William M Leahey - Abuse Case

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William M Leahey
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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.

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• 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.

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• 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.

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• 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.

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• 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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