ROBERT Anstey First PLAINTIFF And: FRED Anstey Second PLAINTIFF And: CAROL ANN STUCKLESS (ANSTEY) THIRD PLAINTIFF And: VERNA ANSTEY FIRST DEFENDANT AND: PETER ANSTEY SECOND DEFENDANT AND: MCDONALD v. HOUNSELL, 2018 NLSC 40

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Anstey v. Anstey , 2018 NLSC 40 Date : February 21, 2018 Docket : 201701G4223 Between: ROBERT Anstey First PLAINTIFF And: FRED Anstey Second PLAINTIFF And: CAROL ANN STUCKLESS (ANSTEY) THIRD PLAINTIFF And: VERNA ANSTEY FIRST DEFENDANT AND: PETER ANSTEY SECOND DEFENDANT AND: MCDONALD AND HOUNSELL THIRD DEFENDANT Before: Justice Gillian D. Butler Place of Hearing: St. John’s, Newfoundland and Labrador

Date of Hearing: February 12, 2018

Summary: On an Application to Strike the court concluded that the Statement of Claim disclosed no reasonable cause of action against either theFirst or Third Defendant. However, it did disclose a fine thread of a potentially meritorious claim against the Second Defendant. Appearances: Robert Anstey Appearing on his own behalf Fred Anstey Appearing on his own behalf Carol Ann Stuckless Appearing on her own behalf (Anstey) William S. Kennedy Appearing on behalf of the First and Second Defendants Stephen J. May, Q.C. Appearing on behalf of the Third Defendant Authorities Cited: CASES CONSIDERED: Graham v.

Bonnycastle, 2004 ABCA 270 (leave to appeal refused [2004] S.C.C.A. No. 489); Smolinski v.Mitchell, (BC SC), [1995] 10 W.W.R. 68, 57 A.C.W.S. (3d) 231 (B.C.S.C.); R. v. Deschamps, 2003 MBCA 116;Aylward v. Law Society of Newfoundland and Labrador, 2012 NLTD(G) 25; Knight v. Imperial Tobacco Canada Limited, 2011 SCC 42, [2011] 3 S.C.R. 45; BCL Group Inc. v. O'Brien, 2017 NLTD(G) 205; Hunter v. Greggain, [1987] W.D.F.L. 211, 2 A.C.W.S.(3d) 355 (Sask. Q.B.); Melendy v. Drodge, 2016 NLTD(G) 140; Essery Estate (Trustee of) v. Essery, 2016 ONSC 321; Montreal TrustCompany of Canada v.

Hickman, 2001 NFCA 42 STATUTES CONSIDERED: Law Society Act, 1999 S.N.L. L-9.1; Enduring Powers of Attorney Act, R.S.N.L. 1990 c. E-11; AdultProtection Act, S.N.L. 2011, c. A-4.01; Mentally Disabled Persons’ Estates Act, R.S.N.L. c. M-10; Judicature Act, R.S.N.L. 1990, c. J-4;Fraudulent Conveyance Act, R.S.N.L. 1990 c. F-24 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D REASONS FOR JUDGMENT

Butler, J. : INTRODUCTION [ 1 ] The Plaintiffs are three of Verna Anstey’s four children which children constitute her next-of-kin. The Second Defendant is the fourth sibling. [ 2 ] The Third Defendant is the law firm who the Plaintiffs believe prepared, in January 2015, a last Will and Testament, Enduring Power of Attorney and Deed of Conveyance for Verna Anstey. The Plaintiffs believe that these were executed under coercion of the Second Defendant and that each of these documents favours the Second Defendant. [ 3 ] The Statement of Claim filed on May 21, 2017 is very poorly drafted.

It does not reference key facts such as the relationships between the parties, or when and why the Plaintiffs’ relationships with their mother ended. It does not allege that Verna Anstey had conveyed her property at 26 Karon Drive, Torbay, to the Second Defendant in 2015 but this fact is not disputed. [ 4 ] No actual claim is made against Verna Anstey.

The claims against the lawyers are that they breached a duty of care they owed to the Plaintiffs in preparing a Will for Verna Anstey when she lacked capacity (paragraph 11), their refusal to disclose Verna Anstey’s Will (paragraph 9), and their refusal to disclose their notes of any meeting with Verna Anstey (paragraph 12). [ 5 ] The Statement of Claim raises the Plaintiffs’ concern with the actions and involvement of the Second Defendant in their mother’s affairs and provides some scant details.

For example, at paragraph 16 the Plaintiffs allege that “…he has a previous criminal record conviction for fraud / theft (primarily with embezzling money from seniors)…” and at paragraph 19, that the Second Defendant has not acknowledged that he has an enduring Power of Attorney from Verna Anstey.

At paragraph 20, they assert that Verna Anstey suffers from Alzheimer’s disease and has been on the medication “Arizet” for at least three years but that the Second Defendant has refused to be transparent respecting Verna Anstey’s medical condition and care. [ 6 ] At paragraph 23, the Plaintiffs make a general request for remedies under seven different pieces of legislation without particularizing what they feel is justified and required. [ 7 ] The Defendants each seek to have the Statement of Claim struck in its entirety.

On this Application, the issue I must determine is whether the Statement of Claim contains material facts and necessary particulars sufficient to disclose a reasonable cause of action. Rules 14.03 and 14.11 of the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D provide as follows: 14.03. Every pleading shall contain a statement in a

summary form of the material facts on which the party pleading relies for a claim or defence, but not the evidence by which the facts are to be proved, and the statement shall be as brief as the nature of the case admits. 14.11.

(1) Subject to rule 14.11(2), every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded, including (

a) particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies; and (

b) where a party pleading alleges any condition of the mind of any person, including any disorder or disability of mind or any malice, or fraudulent intention, or other condition of mind except knowledge, particulars of the facts on which the party relies.

(2) Where it is necessary to give particulars of debt, expenses, or damages, and those particulars exceed three pages, they may be set out in a separate document referred to in the pleading and the pleading shall state whether the document has already been served and, if so, when or whether it is to be served with the pleading. Analysis [ 8 ] Having listened to the arguments of counsel and the self-represented Plaintiffs and reviewed the authorities cited, I am satisfied that only a very small portion of the Statement of Claim can survive the Application to Strike.

The First Defendant [ 9 ] It was (somewhat reluctantly) conceded during the hearing that there is no reasonable cause of action disclosed by the Plaintiffs against Verna Anstey. I need say no more about this. The First Defendant will be struck as a party to the action.

The Third Defendant [ 10 ] The Third Defendant law firm (asserted to have been solicitors for Verna Anstey) has not yet defended the Statement of Claim but filed a comprehensive Interlocutory Application supported by a Memorandum of Law and Supplemental Memorandum of Law that clearly states the law firm’s position and cites appropriate relevant jurisprudence.

[11] I am satisfied that there is no reasonable cause of action disclosed in the Statement of Claim against the Third Defendant. Thebulk of the assertions made related to the question of whether Verna Anstey executed a Last Will and Testament subsequent to the one ofwhich the Plaintiffs are aware and which is dated in 2014.

The Plaintiffs seek information about this Will, a copy of the Will and thesolicitors’ notes respecting the meeting or meetings with Verna Anstey. [12] There are three primary reasons why the Plaintiffs cannot succeed in their action against the solicitors. [13] Firstly, the validity of any Will is tested on the death of a testatrix and not during her lifetime. The Plaintiffs have the legalright to challenge the validity of any Will for which probate is subsequently requested but that is a future right.

Requests in this respectare therefore premature. [14] Second, while recent cases have established that solicitors may, in certain circumstances, owe a duty of care to a beneficiary,there are limits. [15] I agree with counsel for the Third Defendant that a solicitor’s principal duty is to his/her client and it is only where the interestsof the client and a beneficiary are the same that a duty of care would arise between the beneficiary and the solicitor (Graham v.Bonnycastle, 2004 ABCA 270, leave to appeal refused [2004] S.C.C.A.

No. 489, at paragraph 26). [16] “(W)hen a solicitor undertakes to a client to carry through a transaction which will confer a benefit on a third party” he has a“duty to act with due care which binds the solicitor to his client” and “may readily be extended to the third party who is intended tobenefit” (Smolinski v. Mitchell, (BC SC), [1995] 10 W.W.R. 68, 57 A.C.W.S. (3d) 231 (B.C.S.C.), at paragraph 47). However, the Anstey Plaintiffs do not assert that they fall in this category.

Instead, they assert that they believe the terms of a new Willprepared by the Third Defendant for Verna Anstey are different than her 2014 Will and now benefit the Second Defendant. ThePlaintiffs do not assert an error in the transaction but instead professional misconduct and neglect in taking instructions from a personwho lacked capacity. [17] As I have already stated, a finding of a testatrix’s capacity relative to a Will is tested when the Will is presented and not whenthe testatrix is alive.

If the Anstey Plaintiffs are correct in their assertions of incapacity, the challenged instrument will not be admitted toprobate and the 2014 Will on which they rely will be valid, but that determination is for another day. [18] Third, in order to have a cause of action related to the Code of Professional Conduct, as adopted by the Law Society ofNewfoundland and Labrador, there would need to be a contract between the Plaintiffs and the Third Defendant (R. v. Deschamps, 2003MBCA 116).

Investigation of professional misconduct, absent a contract, would be a primary function of the Law Society, not theCourts (Law Society Act, 1999 S.N.L. L-9.1 and Aylward v. Law Society of Newfoundland and Labrador, 2012 NLTD(G) 25. [19] The Third Defendants will therefore be struck as a party to the action. The Second Defendant [20] As to the Second Defendant, notwithstanding the condition of the Statement of Claim, I find a fine thread of a potentiallymeritorious claim raised against Peter Anstey. [21] The Plaintiffs have plead that the residency of Verna Anstey is unknown (paragraph 4).

There are alternative references to herresiding at 26 Karon Drive, Torbay, Newfoundland and Labrador and at 33 McMaster Road, Orangeville, Ontario. I understand from thePlaintiffs’ submissions that the inconsistency respecting Verna Anstey’s residency has frustrated the Plaintiffs’ valid attempts to have anevaluation of Verna Anstey’s circumstances in response to a report made by the Plaintiffs under

section 12 of the Adult Protection Act,S.N.L. 2011, c. A-4.01 but this fact is not pleaded.

Whether the Plaintiffs have the right to seek an order in the nature of mandamusagainst the Crown authorities in this respect is outside the scope of this proceeding. [22] The Plaintiffs have pleaded that the Second Defendant has a criminal record for fraud or related charges (paragraph 16). [23] The Plaintiffs have pleaded that Verna Anstey suffers from Alzheimer’s and that despite requests of the Second Defendant(who claims to hold her power of attorney), the Second Defendant refuses to provide medical information (paragraph 20). [24] Although it is not pleaded, counsel agree that a Deed of Conveyance was prepared and registered in 2015 transferring title of26 Karon Drive, Torbay, from Verna Anstey to her son, Peter Anstey, subject to a life interest reserved to Verna Anstey.

I am thereforeentitled to rely on this. [25] Although the Second Defendant denies his criminal record and concerns for Verna Anstey’s mental health, on an Applicationto Strike I am required to assume that the bare facts alleged are capable of being proven (Knight v. Imperial Tobacco Canada Limited,2011 SCC 42 , [2011] 3 S.C.R. 45 and BCL Group Inc. v. O'Brien, 2017 NLTD(G) 205) and any doubt must be resolved infavour of the claimant (Hunter v. Greggain, [1987] W.D.F.L. 211, 2 A.C.W.S. (3d) 355 (Sask.

Q.B.), at paragraph 11). [26] The Plaintiffs have pleaded facts which, if proven, (considered with other facts that are not disputed) give rise to a suspicionrespecting whether:

a) Verna Anstey had the capacity to prepare a Last Will and Testament, Enduring Power of Attorney and Deed of Conveyance in2015;

b) The Second Defendant, Peter Anstey, exercised undue influence, fraud or coercion over Verna Anstey in the preparation of theseinstruments; and

c) Verna Anstey is at this time an adult in need of protection or a person under mental disability.

[ 27 ] These assertions made by three of the four next-of-kin of Verna Anstey disclose a reasonable cause of action against the Second Defendant relative to his involvement with Verna Anstey and actions he has taken. [ 28 ] In Melendy v. Drodge , 2016 NLTD(G) 140, I addressed the tragic results that fraud and undue influence by the defendants therein had on the estate of a deceased senior citizen. In the course of my reasoning, I identified “multiple indicators of a fraudulent scheme the Melendys were hatching prior to the death of Dr. George Kennedy”.

The addition of the defendants’ names on various accounts in the Melendy case had enabled them access to substantial savings (approximating $2.3 million) as well as the proceeds of the sale of the lady’s home. The accounts were utilized by the defendants while the elderly lady was alive as if the accounts were their own; there was no proof that she knew or approved of the defendants’ use of her money as their own during her lifetime. [ 29 ] In Melendy , referencing Essery Estate (Trustee of) v.

Essery , 2016 ONSC 321 , I addressed examples of the badges of fraud to include: attempts to control use of property; secrecy of transaction; unusual haste, and retention of benefit. [ 30 ] Within the fine thread of the claim made by the Plaintiffs against Peter Anstey, each of these elements is alleged to be present. [ 31 ] In Melendy I concluded that it was part of the defendants’ scheme to reduce the value of Myrtle Kennedy’s estate as much as possible by converting assets to their benefit before she died.

The defendants therein were successful in this conversion in part because (despite suspicion) there was no request for legal intervention until after the testatrix died. [ 32 ] The Plaintiffs have made very vague requests for statutory relief under specific statutes set out in paragraph 23 of the Statement of Claim. Applying the generous approach required by Knight , there are remedies potentially available to the Plaintiffs, if the facts on which they rely are established. For example: Under the Enduring Powers of Attorney Act , R.S.N.L. 1990 c. E-11:

a) Determination of whether the attorney has acted in the best interests of the donor (section 6);

b) Substitution of attorney (section 9);

c) Requirement that the attorney provide an accounting (section 10). Under the Mentally Disabled Persons’ Estates Act , R.S.N.L. c. M-10:

a) a declaration of incapacity and committal of the custody and management of such a person’s estate to a guardian (who could be the Public Trustee) pursuant to

section 17;

b) notice to the Public Trustee and/or interested persons under sections 22.1 and 26;

c) a preservation order under

section 24. As to the Judicature Act , R.S.N.L. 1990, c. J-4, and the Rules of Court passed pursuant thereto:

a) Rule 8 requires the appointment of a guardian ad litem to represent the interests of a person under disability in any legal action. Under the Fraudulent Conveyances Act , R.S.N.L. 1990 c. F-24:

a) A declaration that the conveyance of property was fraudulent (section 3). [ 33 ] I conclude therefore that four of the vague references to statutes under which the Plaintiffs seek relief potentially provide remedies that could be granted if the Plaintiffs establish entitlement.

Remedy for Defective Pleadings [ 34 ] “So long as [the Statement of Claim] discloses an intention to assert a skeleton, or even a ghost of a claim known to the law (even though all of the constituent elements may not be properly pleaded), then the court may, …allow the claimant to put flesh on the skeleton… by permitting or ordering amendments and/or particulars”. ( Montreal Trust Company of Canada v. Hickman , 2001 NFCA 42 ). [ 35 ] I find no evidence that the Plaintiffs have made the claim against their brother for an ulterior purpose.

To the contrary, the Plaintiffs do not even seek an interest in the home that has been transferred. They claim to be motivated solely by grief associated with the loss of their relationships with their mother, concern for her health and wellbeing and suspicion for the Second Defendant’s actions.

The Second Defendant’s secrecy, inconsistency and refusal to be transparent have fueled their concerns. [ 36 ] I have not been referred to any prejudice the Second Defendant could suffer by allowing the Statement of Claim to be amended. conclusion [ 37 ] The Statement of Claim shall be amended, filed and served on the Defendant by April 15, 2018 as follows:

A. The First and Third Defendants are struck as parties. B. All references to the Second Defendant or P.A. shall be to the Defendant. C. Paragraphs 6 to 14, 17, 21, 22(a), 23(1), 23(6) and 23(7) are struck in their entirety, leaving paragraphs 1-5, 15, 16, 18-20, 22(

b) and (c), 23(2)-(5) and 24-26. D. Relationships between the Plaintiffs, Verna Anstey, and the Defendant shall be pleaded as facts to be added to existing paragraphs 1, 2, 3 and 5. E. Paragraph 4 shall be reworded as follows: The address of Verna Anstey is uncertain as there are representations that she lives at 26 Karon Drive, Torbay, Newfoundland and also 33 McMaster Road, Orangeville, Ontario, L9W 5K7. F.

Paragraph 15 shall be amended to read as follows: A Deed of Conveyance from Verna Anstey to Peter Anstey dated January 2015 (subject to a life interest to Verna Anstey) has been registered at the Registry of Deeds. The Defendant did not advise the Plaintiffs until May 2016 that a Last Will and Testament was executed by Verna Anstey in January 2015. Despite numerous written requests by the Plaintiffs, the Defendant has refused the presentation of the Last Will and Testament. G.

Paragraph 19 shall be amended to add “The Defendant has refused to provide evidence that he holds a valid power of attorney for Verna Anstey”. H. Paragraph 22(

b) and (

c) shall be re-lettered as 22(

a) and (b). I. Following each of the references to the legislation or Rule in sub-paragraphs 23(2)-(5), the Plaintiffs shall specify the specific

section or Rule and the relief or remedy sought under each legislative reference. [ 38 ] In addition to the minimum amendments referenced above, new paragraphs may be added to support the Plaintiffs’ potentially meritorious claims against the sole remaining Defendant. [ 39 ] I encourage the self-represented Plaintiffs to engage counsel who would take an objective approach to the drafting of the Amended Statement of Claim. [ 40 ] I encourage the Defendant, through his counsel, to be honest and transparent with the Plaintiffs respecting the residency and health of Verna Anstey.

Secrecy and inconsistency in this respect fuels the Plaintiffs’ suspicions and concerns. Transparency may eliminate their concerns and the need to pursue legal proceedings to ensure that Verna Anstey’s interests are protected. [ 41 ] In light of the mixed success and in the exercise of my discretion, there shall be no Order as to costs. ________________________ Gillian D. Butler Justice