Flack v. Rossi

In a recent decision, Flack v. Rossi, 2008 BCSC 670, two children challenged their late father’s designation of their cousin as the beneficiary of his pension plan.

Assunta Caputo and Carmen Caputo alleged that their father, Cosmo Caputo, did not sign the designation. They also alleged that he was bound by an agreement with their mother when they separated to make them the irrevocable beneficiaries of his pension plan. Thirdly, they alleged that their cousin, Nevio Rossi, unduly influenced their father to designate him as the beneficiary.

Mr. Justice Parrett upheld the designation.

The court found that Cosmo Caputo did sign the form designating Mr. Rossi as the beneficiary. The children had a handwriting analyst testify that the signature on the form differed from other handwriting samples of Cosmo Caputo. But, although the court accepted the analyst’s report as an expert report, the court did not give it much weight in light of the inexperience of the analyst, and his admission that the difference in writing could be attributable to other factor’s such as age, disease, physical changes, the size of space, and being rushed or writing slowly. Mr. Justice Parrett accepted the evidence of the witness to Mr. Rossi’s signature that Mr. Rossi signed the form.

Mr. Justice Parrett also rejected the argument that Cosmo Caputo agreed with his former wife to name their children as the irrevocable beneficiaries of his pension. The allegation was inconsistent with the terms of the written separation agreement, in which the wife gave up a claim to the pension in consideration of receiving the matrimonial home. The written agreement purported to be the entire agreement, and specifically revoked any previous agreements.

The children were no more successful in their allegation that Mr. Rossi had unduly influenced their father. Mr. Justice Parrett held that the onus was on the children to prove undue influence. In this respect a pension designation is treated similarly with a will: there is no presumption of undue influence even if the beneficiary is in a position to dominate the person making the designation. This stands in contrast to other gifts made during the donor’s lifetime, in which case there can be a presumption of undue influence.

Mr. Justice Parrett found no evidence that Mr. Rossi unduly influenced Cosmo Caputo. Although he assisted Cosmo Caputo from time to time, other people also provided assistance. There was evidence that when he changed the designation, he was unhappy with his children.

The court dismissed the children’s claims.