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appellant lawyers’ appeal on the
basis that such a claim could not
Bill MacLeod of Vancouver’s
MacLeod & Co., who represented
Ladner’s ex-solicitors, said
Roberts seemed to say that there is no
need to establish a breach of an
equitable duty in order to claim a
“That case, in Ladner,...has
been narrowly considered, and
some would say, restricted to its
facts,” MacLeod told The Law-
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etary nexus” to the property over
which the trust is claimed.
Ladner alleged that Wolfson,
her ex-solicitor, should have
pressed ahead with the remedial
constructive trust claim he had
made over the insurance proceeds, (in addition to the contractual damages he did pursue
against the estate).
The trial judge concluded that
if the constructive trust claim had
been pursued, it likely would have
succeeded. Ladner was awarded
$252,621 against her ex-solicitors. But the Court of Appeal
threw out the negligence award
because the constructive trust
claim could not have succeeded.
Therefore not pursuing it did not
cause Ladner any loss.
The appeal court explained
that the constructive trust claim
could not have succeeded because
the requisite “proprietary connection” was lacking between the
life insurance obligation under-taken by the husband in the separation agreement and the actual
policies that were payable to his
estate on his death.
The ex-spouses were also not
in a fiduciary or trust-like relationship after they concluded
their separation agreement.
Therefore two of the four conditions in Soulos for the imposition
of a good conscience constructive
trust could not be fulfilled.
“I can find no authority for the
proposition that spouses who are
separated and/or divorced, and
have reduced their obligations to
a written contract, nevertheless
have continuing equitable or fiduciary obligations over and above
their contractual commitments,
even to the detriment of other
creditors,” Justice Garson wrote.
In distinguishing Roberts, she
noted that that case involved a
husband who was the named
beneficiary in a life insurance
policy which his ex-wife took out
before their divorce. In their separation agreement the pair
mutually waived any further
claims against each other’s estate.
The wife intended to—and mistakenly thought that she
did—name her sister as the
policy’s new beneficiary. But the
husband was able to collect the
insurance proceeds, in violation
of his undertaking in the separation agreement. In those circumstances the Court of Appeal said
it would be against good conscience to allow the husband to
keep the money.
By contrast, in Ladner, “given
that Mr. Ladner’s estate was not
receiving property to which it was
not entitled, it cannot be said that
it would be against good conscience to allow it to retain the
insurance proceeds,” Justice Garson said. n
Reasons: Ladner v. Wolfson,  B.C.J.