William M Leahey

1. William M Leahey

2. Victim may Sue Brother’s Estate in Sexual Abuse Case A ruling that allow a civil action based on decades old allegations of sexual abuse to proceed even after the alleged perpetrator’s death is raising question about the duties and liabilities of executors and estate trustees in Nova Scotia. Justice William Kelly of the Nova Scotia Supreme Court has allowed a woman to sue the estate of her older brother who died in 1998 for abuse allegedly inflicted more then 45 years ago during their childhood in a fishing village near Halifax. The September ruling is the first interpretation of provincial amendments introduced in 1993 to extend the time for filing actions based on allegations of historical sexual abuse and adds breath of fiduciary duty to other torts covered such as assault menace and wounding. But for those involved in settling estates the ruling’s significance lies in the finding that the women can pursue her claim for damages against the man’s estate valued at about $215,000 despite the obvious difficulties in mounting defense.

3. The estate’s lawyer Dufferin Harper of Halifax’s Merrick Holm argued the defense would suffer extreme prejudice due to the death of its crucial witness. While Justice Kelly was troubled by the loss of the man’s testimony and instruction he believed evidence available from surviving family members could be used to test the women’s assertions. To deny this action on the basis of this prejudice alone one would almost have to conclude that in the circumstances of the death of defendant no similar action against an estate could survive the judge wrote. To so conclude would not advance respect for the administrations of justice and would be an unjust comment on the capacity of the trail court to ensure a fair trail. It’s easy to sue someone who can’t deny it, acknowledged the women’s lawyers William Leahey but he notes the woman must prove her case and satisfy the trial court that she didn’t unduly delay bringing the actions.

4. There are safeguards that will sill ensure that only legitimate cases are successful in court, “he told The Lawyers Weekly. The women’s accusations are supported by a younger sister who witnessed some acts of abuse and alleges the man abused her as well. Leahey who practices in Halifax describes the ruling as a wake –up call for executors who may be liable for a claim for damages if abuse allegations surface before an estate is formally closed. By one estimate only one in five Nova Scotia estate is closed despite the Probate Act’s requirement of administrations lawyer prefer to obtain release from beneficiaries to save time and expense when handling simple estates in which all assets are transferred to a surviving spouse. Justice Kelly’s ruling raises but does not answer a number of questions including what would happen if an estate were sued before closure but after assets were distributed. It is not clear if beneficiaries could be sued or the executor could be held liable or which or these parties would be responsible for defending such an action against an estate. One thing is clear the ruling opens the door to similar lawsuits in future. This is going to have a wild ranging impact. The limitation period defense has been removed for practical purposes in sexual abuse cases, Leahey said.

5. Justice Kelly reviewed changes to Nova Scotia’s Limitations of Action Act – made in response to the Supreme Court of Canada’s ruling in K.M. v H.M., [1992] 3 S.C.R. 6 – to extend the deadline for filling sexual abuse claims. The act allows claims to be filled up to four years after plaintiffs discover the casual relationship between their injuries and the alleged abuse or overcome physical, mental or psychological conditions arising from the abuse that have prevented them from seeking damages. In the case at bar the 58 years old women who now lives in Ontario had limited contact with her brother after he left home when she was 15. Only in 1997 did she begin the therapy sessions that linked a variety of emotional and medical problems to childhood abuse. There is also evidence she feared her brother and for the safety of the abused sister who lived near him. The judge found she only became capable of launching the action in March, 1999, nine months after her brother death even though she had threatened to pursue criminal charges against him in a 1994 telephone conversation. The lawsuit was filed in June 1999.

6. He also found it was open to the trial judge to find a fiduciary relationship existed between the woman and her brother who was seven years older. The allegations include incidents of folding forced oral sex and attempted intercourse beginning when she was eight. The ruling has implications for people who claim they were abused by a parent or foster parent, older sibling, teacher, doctor or other authority figure Leahey says. People who are out there who…were abused in their childhood and are now adults and think they can’t sue now have the right to sue. He said three elderly clients have retained him since the ruling was reported in local media with instructions to pursue lawsuit based on childhood abuse. Harper could not be reached to discuss the ruling but Leahey said no appeal is expected. The case could go to trial in the spring.

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