CANADA Canada - Billionaire Couple Barry & Honey Sherman Murdered at Home, Toronto, 15 Dec 2017 #23

[WINDSOR]

I don’t agree that any lawyer working on Honey’s will would have an obligation to disclose this or be seen as obstructing justice. It is complicated. Solicitor-client privilege is real. Even if the lawyer wanted to share information, they may not be able to come forward due to privilege obligations. We have seen the Blaney lawyer Doug Hendler acknowledge his involvement (which is known by contemporaneous emails (redacted) and phone records) but advise he can’t share information due to solicitor-client privilege. MOO.

I agree with the Solicitor-Client privilege, I do not expect any lawyer to share information regarding the contents of a Will. However I believe it would be okay for a lawyer to disclose the existence of a Will. Hendler never disclosed any existence of a Will for Honey, AFAIK. It is counter-intuitive for a lawyer to prepare a Will, which always specifies Estate Trustees, then not tell the Trustees about its existence, especially where the Will may shed some light on the crime. With Honey being deceased, the Trustees can see the Will, otherwise how could they act as Trustees?

 

[WINDSOR]

I am in the camp that believes she had a will. The person who said she was updating her will couldn't have made that up.

The person who said that Honey was preparing a Will, could have:
Misunderstood Honey,
Took what she heard out of context,
Been confused while under stress,
Not been a native English speaker,
Misremembered what she heard,
Honey might have been speaking of future plans,
Possibly made some or all of the story up, it is possible.

 

[WINDSOR]

The bill could have gone to Apotex. As part of a corporate retainer or standard monthly fee.

Still would have been records, which the TPS could request to view as part of the homicide investigation.

 

[WINDSOR]

In summary, Honey and Barry were murdered, and only Barry's Will existed as far as the estate was concerned.
If one believes the 'follow the money' theory. It is the heirs who got the money as the result of the Sherman's deaths.
If you are looking for a motive, that could be one.

If one believes Honey had a Will which would have deprived the heirs of some financial benefits, then you could say the 'follow the money' motive is even stronger, and it also points to the heirs.

Historically, Money and Power are often reasons for murder.

 

[ldlager]

Still would have been records, which the TPS could request to view as part of the homicide investigation.

Nope. Access to financial and business related records were probably never granted to LE.

 

[FPoulet]

I agree with the Solicitor-Client privilege, I do not expect any lawyer to share information regarding the contents of a Will. However I believe it would be okay for a lawyer to disclose the existence of a Will. Hendler never disclosed any existence of a Will for Honey, AFAIK. It is counter-intuitive for a lawyer to prepare a Will, which always specifies Estate Trustees, then not tell the Trustees about its existence, especially where the Will may shed some light on the crime. With Honey being deceased, the Trustees can see the Will, otherwise how could they act as Trustees?

Subject to instructions from the client, I believe a lawyer would disclose the existence of a will, but I don’t think a lawyer would be in a position to disclose that people were working on a will or in the process of changing a will. It is possible that she revoked a will and had not yet created a new one. It is possible that a lawyer did not possess an original of the Will and the Will was missing or destroyed. It could have even been destroyed by Honey before she died.

 

[FromGermany1]

Nope. Access to financial and business related records were probably never granted to LE.

I think, the Apotex lawyers are protecting everything like being at Fort Knox.

 

[hexicon]

Subject to instructions from the client, I believe a lawyer would disclose the existence of a will, but I don’t think a lawyer would be in a position to disclose that people were working on a will or in the process of changing a will. It is possible that she revoked a will and had not yet created a new one. It is possible that a lawyer did not possess an original of the Will and the Will was missing or destroyed. It could have even been destroyed by Honey before she died.

This is my line of thinking too. It seems odd to me that a person in Honey's position would have died without a will. I also doubt that her lawyers would have recommended that she revoke a prior will before a replacement will was executed.

Google tells me that destruction of a will is revocation in Ontario. According to a blog post from a Toronto estate law firm (quoting from a court decision): "if a Will last known to be in custody of testator is not found at his death, the presumption is that the testator destroyed it with the intention of revoking it (“animo revocandi”). However, that presumption may be rebutted by evidence, written or oral, of the facts. The strength of the presumption will depend on the character of the custody which the testator had over the Will." The post goes on to describe a case where the presumption of revocation by destruction was overcome with evidence (over-zealous post-death cleaning of apartment), such that a copy of the original will could be probated.

If Honey kept her original will at home and it was not found after her death, then under Ontario law the presumption is that she revoked it by destruction. If Mary were a beneficiary of that will she would have good reason to try to rebut this presumption, i.e., to argue that the original was merely lost, not destroyed. This in turn makes me think there was some evidence that Honey revoked her will by destroying it and then possibly alerted her lawyers she intended to draft a new one.

This would account for Mary's foiled expectations--perhaps the prior will provided for Mary and Honey fully intended to continue that bequest. Perhaps Honey intended to emulate the Bill Gates Giving Pledge and provide more to charity and less to her relatives.

If Honey had sketched out her intentions for a new will, the lawyers are in an ethically difficult position. This discussion would be protected by attorney-client privilege even though it is highly relevant to the murder investigation.

 

[WINDSOR]

Here is a thought about lawyer-client privilege. John Smith has a meeting with his lawyer. John Smith tells his lawyer that Bill Jones, has threatened to kill him. The lawyer advises John Smith to take precautions.

The next day John Smith is found murdered in his home. The Police announce they have no suspects and ask the public for help. The lawyer sees this request on the TV news. Can the lawyer tell the Police what John Smith disclosed to him the day before his death?

I am not a lawyer, however I think the lawyer-client privilege rule, exists to protect the client's interests. If the client's best interests are not served, or in fact jeopardized by the lawyer's silence, common sense from my perspective says the lawyer has an over-riding duty to act in the best interests of his client.

Fundamentally, who is to be protected? Of course the client and his interests. The lawyer always has an ethical obligation to protect his client and the client's interests.

In the Sherman's case, if a Will existed or was in the process of being prepared, what would be in Honey's best interests?

Would she want the lawyer to speak or remain silent?
I think she would want everybody to know the truth.

 

[FromGermany1]

This is my line of thinking too. It seems odd to me that a person in Honey's position would have died without a will. I also doubt that her lawyers would have recommended that she revoke a prior will before a replacement will was executed.

Google tells me that destruction of a will is revocation in Ontario. According to a blog post from a Toronto estate law firm (quoting from a court decision): "if a Will last known to be in custody of testator is not found at his death, the presumption is that the testator destroyed it with the intention of revoking it (“animo revocandi”). However, that presumption may be rebutted by evidence, written or oral, of the facts. The strength of the presumption will depend on the character of the custody which the testator had over the Will." The post goes on to describe a case where the presumption of revocation by destruction was overcome with evidence (over-zealous post-death cleaning of apartment), such that a copy of the original will could be probated.

If Honey kept her original will at home and it was not found after her death, then under Ontario law the presumption is that she revoked it by destruction. If Mary were a beneficiary of that will she would have good reason to try to rebut this presumption, i.e., to argue that the original was merely lost, not destroyed. This in turn makes me think there was some evidence that Honey revoked her will by destroying it and then possibly alerted her lawyers she intended to draft a new one.

This would account for Mary's foiled expectations--perhaps the prior will provided for Mary and Honey fully intended to continue that bequest. Perhaps Honey intended to emulate the Bill Gates Giving Pledge and provide more to charity and less to her relatives.

If Honey had sketched out her intentions for a new will, the lawyers are in an ethically difficult position. This discussion would be protected by attorney-client privilege even though it is highly relevant to the murder investigation.

At least, short time before the murder there was "stuff, HS had to deal with" at home, and HS even forgot her meeting with the Charity board, quite unusual for her. So, one can imagine, that could have been disputes over her LW and she possibly changed something very important or destroyed her first version of a will. - But I know: this is again the beginning of a circle, we were wandering x-times already.

 

[dotr]

At least, short time before the murder there was "stuff, HS had to deal with" at home, and HS even forgot her meeting with the Charity board, quite unusual for her. So, one can imagine, that could have been disputes over her LW and she possibly changed something very important or destroyed her first version of a will. - But I know: this is again the beginning of a circle, we were wandering x-times already.

Maybe changes were to be made to accommodate for any new family members? speculation.

 

[FPoulet]

Here is a thought about lawyer-client privilege. John Smith has a meeting with his lawyer. John Smith tells his lawyer that Bill Jones, has threatened to kill him. The lawyer advises John Smith to take precautions.

The next day John Smith is found murdered in his home. The Police announce they have no suspects and ask the public for help. The lawyer sees this request on the TV news. Can the lawyer tell the Police what John Smith disclosed to him the day before his death?

I am not a lawyer, however I think the lawyer-client privilege rule, exists to protect the client's interests. If the client's best interests are not served, or in fact jeopardized by the lawyer's silence, common sense from my perspective says the lawyer has an over-riding duty to act in the best interests of his client.

Fundamentally, who is to be protected? Of course the client and his interests. The lawyer always has an ethical obligation to protect his client and the client's interests.

In the Sherman's case, if a Will existed or was in the process of being prepared, what would be in Honey's best interests?

Would she want the lawyer to speak or remain silent?
I think she would want everybody to know the truth.

In such a case, Honey may want her her lawyer to come forward and tell the world. But if she is deceased and didn’t instruct her lawyer about that beforehand, then it is unclear to me that a lawyer would be able to break solicitor-client privilege due to what she or he thinks is in her/his client’s interest. MOO

Could any legal experts in this area weigh in?

 

[FromGermany1]

Maybe changes were to be made to accommodate for any new family members? speculation.

The grandchildren, you mean? But why was it so very urgent, to work on a will before the Florida vacation and Christmas time? One grandchild (and Lauren's son) was/were already there and only the second one from Alex was born recently. Why the hurry? Why possible problems with the last one (if not all 3 grandchildren)?

 

[hexicon]

In such a case, Honey may want her her lawyer to come forward and tell the world. But if she is deceased and didn’t instruct her lawyer about that beforehand, then it is unclear to me that a lawyer would be able to break solicitor-client privilege due to what she or he thinks is in her/his client’s interest. MOO

Could any legal experts in this area weigh in?

Disclaimer: this is not legal advice. Plus I'm not going to claim expertise on ACP, particularly in a private practice setting in Canada, so this is JMO on general background. There are a couple of layers here, and they will vary among jurisdictions:

1. Rules of Professional Conduct: As a general rule, attorneys have a duty to protect the confidentiality of client communications, but each jurisdiction is going to have its own exceptions. In my state, the exceptions are generally aimed at preventing future crimes or harms (not about solving past crimes), and there are no broad exceptions for the client's best interests or substituted judgment about what the client would have wanted. Jurisdictions may differ about whether ACP survives the client's death, and what is a communication in relation to representation. For example, in Windsor's hypothetical above there could be an argument that John Smith's communications about the threats made by Bill Jones were incidental and weren't communicated as part of the attorney-client representation if Smith were consulting the lawyer for unrelated reasons.
2. Admissibility/Rules of evidence: Each jurisdiction has different statutes and/or court rules on admissibility of attorney-client communications, and the language of the statutes/rules and the case law interpreting them will differ. Hypothetically, you could have a scenario where the RPCs permit the attorney to disclose information but it might not be admissible in court, or vice versa.

If I were a wills/estates attorney and had information about a proposed change to a will that would be relevant to the investigation of my client's murder, I would seek an advisory opinion from my bar association on whether/what I could disclose.

 

[newclues]

However, like in any profession, not all lawyers always look after the best interests of their clients. Some might put their interests first or the interests of a third party first. Anything is possible.

 

[Cedars]

Police seized Honey's phone from the house, plus there was a home computer. IMO, her own electronic footprint would have revealed everything TPS needed to know about a will. People today are unable to do anything without leaving a digital trail on their phone, or having a handy electronic copy for quick reference.

JMO

 

[FPoulet]

Disclaimer: this is not legal advice. Plus I'm not going to claim expertise on ACP, particularly in a private practice setting in Canada, so this is JMO on general background. There are a couple of layers here, and they will vary among jurisdictions:

1. Rules of Professional Conduct: As a general rule, attorneys have a duty to protect the confidentiality of client communications, but each jurisdiction is going to have its own exceptions. In my state, the exceptions are generally aimed at preventing future crimes or harms (not about solving past crimes), and there are no broad exceptions for the client's best interests or substituted judgment about what the client would have wanted. Jurisdictions may differ about whether ACP survives the client's death, and what is a communication in relation to representation. For example, in Windsor's hypothetical above there could be an argument that John Smith's communications about the threats made by Bill Jones were incidental and weren't communicated as part of the attorney-client representation if Smith were consulting the lawyer for unrelated reasons.
2. Admissibility/Rules of evidence: Each jurisdiction has different statutes and/or court rules on admissibility of attorney-client communications, and the language of the statutes/rules and the case law interpreting them will differ. Hypothetically, you could have a scenario where the RPCs permit the attorney to disclose information but it might not be admissible in court, or vice versa.

If I were a wills/estates attorney and had information about a proposed change to a will that would be relevant to the investigation of my client's murder, I would seek an advisory opinion from my bar association on whether/what I could disclose.

I agree with this is general concepts. Another consideration is that a practical lawyer may err on the side of conservative, if he or she felt that he/she may be sued by very deep pockets, for example. MOO.

 

[FPoulet]

Police seized Honey's phone from the house, plus there was a home computer. IMO, her own electronic footprint would have revealed everything TPS needed to know about a will. People today are unable to do anything without leaving a digital trail on their phone, or having a handy electronic copy for quick reference.

JMO

But they may not be able to rely on this if it is privileged. They may not have even seen it if privilege was asserted over these devices.

 

[Cedars]

But they may not be able to rely on this if it is privileged. They may not have even seen it if privilege was asserted over these devices.

I don't agree that privelege could ever extend to police investigation of the contents of a privately-owned phone or home computer of an individual who has been murdered.

JMO

 

[FromGermany1]

Police seized Honey's phone from the house, plus there was a home computer. IMO, her own electronic footprint would have revealed everything TPS needed to know about a will. People today are unable to do anything without leaving a digital trail on their phone, or having a handy electronic copy for quick reference.

JMO

bbm
.... if it hadn't been deleted by a tech savvy killer.