William M Leahey

Victim may Sue Brothers

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 perpetrators 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 rulings significance lies
in the finding that the women can pursue her claim for damages
against the mans estate valued at about $215,000 despite the
obvious difficulties in mounting defense.

The estates lawyer Dufferin Harper of Halifaxs 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 mans testimony and
instruction he believed evidence available from surviving family
members could be used to test the womens 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.

Its easy to sue someone who cant deny it, acknowledged the womens
lawyers William Leahey but he notes the woman must prove her case
and satisfy the trial court that she didnt unduly delay bringing the
actions.

There are safeguards that will sill ensure that only legitimate cases are
successful in court, he told The Lawyers Weekly. The womens 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 Acts 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 Kellys 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.



Justice Kelly reviewed changes to Nova Scotias Limitations of Action
Act made in response to the Supreme Court of Canadas 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.

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 whowere abused in their childhood and
are now adults and think they cant 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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