Factors In Assessing a Witness’ Testimony

The validity of a witness’ testimony depends on whether their evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at that time: Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.) at 357.

In Bradshaw v. Stenner, 2010 BCSC 1398, aff’d 2012 BCCA 296, Justice Dillon adopted a three-step approach in which the court first considers the testimony of a witness on a “stand alone” basis followed by an analysis of whether the story is inherently believable.

If the testimony survives the first part of the test, the second step is to evaluate the testimony based upon its consistency with other witnesses and with documentary evidence.
Lastly, the court determines “which version of events is the most consistent with the ‘preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions’”: at para. 187.

At para. 186 of Bradshaw the court set out a non-exhaustive list of the factors to be considered in assessing a witness’ evidence:

1. the capacity and opportunity of the witness to observe the events at issue;
2. his or her ability to remember those events;
3. the ability of the witness to resist being influenced by his or her interest in recalling those events;
4. the internal and external consistency of the witness’ evidence;
5. whether the witness’ evidence harmonizes with or is contradicted by other evidence, particularly independent or undisputed evidence;
6. whether his or her evidence seems unreasonable, improbable or unlikely, bearing in mind the probabilities affecting the case; and
7. the witness’ demeanor, meaning the way he or she presents while testifying.

The testimony of non-party disinterested witnesses may provide a “reliable yardstick for comparison”: Bradshaw at para. 187

S. 151 WESA – Leave of the Court Required to Bring Action Against Estate

Bring Action Against Estate

Under WESA leave of the court is required to commence legal proceedings in the name of a specified person and on behalf of the estate of the deceased person and the requirements are set out in S 151 WESA.

Section 151 of WESA states:

Who may sue with leave of court

151(0.1) In this section, “specified person” means a beneficiary, an intestate successor or a person who may commence a proceeding claiming the benefit of Division 6 [Variation of Wills] of Part 4 [Wills].

(1) Despite section 136 [effect of representation grant], a specified person may, with leave of the court, commence proceedings in the name of the specified person and on behalf of the estate of the deceased person
(a) to recover property or to enforce a right, duty or obligation owed to the deceased person that could be recovered or enforced by the personal representative, or
(b) to obtain damages for breach of a right, duty or obligation owed to the deceased person.
(1.1) A specified person may apply for leave of the court under subsection (1) in the proceedings described in that subsection.
(2) Despite section 136, a specified person may, with leave of the court, defend in the name of the specified person and on behalf of the estate of a deceased person, a proceeding brought against the deceased person or the personal representative.
(2.1) A specified person may apply for leave of the court under subsection (2) in the proceeding described in that subsection.
(3) The court may grant leave under this section if
(a) the court determines the specified person seeking leave
(i) has made reasonable efforts to cause the personal representative to commence or defend the proceeding,
(ii) has given notice of the application for leave to
(A) the personal representative,
(B) any other specified persons, and
(C) any additional person the court directs that notice is to be given, and
(iii) is acting in good faith, and
(b) it appears to the court that it is necessary or expedient for the protection of the estate or the interests of a specified person for the proceeding to be brought or defended.
(4) On application by a specified person or a personal representative, the court may authorize a person to control the conduct of a proceeding under this section or may give other directions for the conduct of the proceeding.

For leave to be granted under s. 151 of WESA the applicants must meet the requirements summarized in Hoggan v. Silvey, 2022 BCCA 176:

 In summary, the factors that are relevant in an application pursuant to s. 151 may vary depending on the nature of the application.

The statutory factors will always apply,

-so the petitioner must have standing as a specified person,
-must have made reasonable efforts to cause the personal representative to commence or defend the action,
-must have given the necessary notice, and must be acting in good faith.
-There must be an arguable case, as a meritless case would be neither necessary nor expedient to protect the interests of the estate or the specified person.

However, it will not always be necessary to consider whether the potential relief outweighs the inconvenience to the estate and whether the litigation is in the best interests of the estate.

Rather, as mentioned, s. 151(3)(b) is to be read disjunctively, such that there are four possible ways the standard may be met:

it may be necessary to protect the interests of the estate;

it may be expedient to protect the interests of the estate;

it may be necessary to protect the interests of a specified person;

or it may be expedient to protect the interests of a specified person.

Presumption of Revocation and Lost Wills

Re Bennett Estate 2023 BCSC 559 discussed the presumption of revocation, where the original will of the deceased had been lost, and in an application for directions, ordered that a copy of the will could be probated as there was no evidence that the original will was last in the possession of the deceased so s to invoke the presumption.

The court found that the copy of the will represent of the testamentary intentions of the deceased.

The Presumption of Revocation

The presumption of revocation was explained as follows by Wilson J. in Haider v. Kalugin, 2008 BCSC 930

[9] 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 upon the character of the custody which the testator had over the Will: Sugden v. Lord St. Leonards (1876), 1 P.D. 154 (English C.A.).

[10] In Sigurdson v. Sigurdson [1935] 2 D.L.R. 445 (S.C.C.), at paragraph 49, Davis J. said:
[49]1 It needs very clear and convincing evidence to establish what is alleged to be a lost will. . . .The person propounding such a will has a burden of proof that persists throughout the whole trial to satisfy the court at its conclusion that the will is in fact lost and was not destroyed by the testator with the intention of putting an end to it. Each case of course turns upon its own facts but the principles respecting the well-settled presumption against the Will must be applied to the facts.

[11] In Welch v. Phillips (1836) 1 Moo PC 299, at 302, referred to in Bobersky Estate (Re) [1954] A.J. No. 12 (Alta Dist. Crt.), at paragraph 6, the court said:
[6] If a will traced to the possession of the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by the deceased himself; and that presumption must have effect, unless there is good and sufficient reason to repel it. It is a presumption founded on good sense, for it is highly reasonable to suppose that an instrument of so much importance would be carefully preserved, by a person of ordinary caution, in some place of safety and would not be either lost or stolen, and if, on the death of a maker, is not found in his usual repositories or else where he resides, it is in a high degree of probable that the deceased himself has purposely destroyed it. But this presumption, like all others of fact, may be rebutted by others, which raises a higher degree of probability to the contrary.

Haider was considered. in Whitehead Estate, 2010 BCSC 348 [Whitehead].

At para. 28, the Court concluded that there was no evidence upon which it could conclude that the will of the deceased was properly executed or a true copy of the original will.
At para. 29, the Court went on to consider what the situation would be if that conclusion was incorrect, and the will was properly executed and a true copy. The Court stated that in that case:
… the next issue is whether the original will can be traced to the possession of the deceased. If it can be traced to her possession then on a finding that the original has been lost, the presumption arises that it has been destroyed with the intention of revoking the will.

After referring to Haider at para. 30, the Court in Whitehead concluded at para. 31:

On the evidence presented in this case, I am not able to find that the deceased ever had possession of the original will and therefore the presumption that the will has been destroyed with the intention that it be revoked does not apply.

Pleading a Cause of Action

In order to disclose a cause of action, a notice of civil claim must not simply name that cause of action, but also set out the elements of that cause of action.

Rule 3-1(2)(a) of the Supreme Court Civil Rules, B.C. Reg. 168/2009, provides that a notice of civil claim must set out the material facts in support of a claim.
Material facts are the means by which the claimant will prove the elements of the cause of action and thus are “comprised of every fact that would be necessary for the plaintiff to prove in order to support their claim” and in so doing, are integral to pleadings meeting their role of providing notice and defining the issues to be tried:  Attorney General v Frazier 2022 BCCA 379 at paras. 69-70, citing Mancuso v. Canada (Minister of National Health and Welfare), 2015 FCA 227 at paras. 16–20; Workers Compensation Board v. Sort, 2022 BCCA 318 at para. 102; Mercantile Office Systems Private Ltd. v. Worldwide Warranty Life Services Inc., 2021 BCCA 362 at paras. 21-23; and Kindylides v. Does, 2020 BCCA 330 at para. 34.

At para. 71 of Frazier, the Court of Appeal also made clear that bare allegations based on speculation and assumptions are not material facts, citing Kindylides at para. 33.

In Imperial Tobacco at para. 22, the Supreme Court of Canada stressed the importance of pleading material facts with the now often cited phrase “plead them they must”, explaining that while a claimant may not be able to prove facts at the time they are pled, the claimant must plead them nonetheless. It is not open to the claimant to wait and see how the evidence develops before pleading material facts.

The distinction between evidence and material facts is emphasized in the Supreme Court Civil Rules which require material facts be pled (R. 3 1(2)) while prohibiting pleading evidence (R. 3 7(1)). Material facts are the who, when, where, how and what that gives rise to liability: Frazier at para. 70, while evidence is the means by which the material facts will be proved.

In Frazier at paras. 72 and 75, the Court of Appeal explained that where material facts are not pleaded, an application to strike may be allowed because the claim is not capable of supporting a cause of action and the court cannot properly evaluate whether there is a chance of success. T

Surreptitious Recordings Are Admissible

In C.C. v. S.P.R., 2022 BCSC 1057 [C.C.], the court considered the admissibility of surreptitious recordings. During the trial, the respondent who had made the recordings sought to adduce them, along with transcripts, into evidence. The court . noted (at para. 4) that while the practice of secretly recording a party for use in a family law proceeding should be discouraged, “there are circumstances where the probative value of admitting surreptitiously made recording outweighs the prejudicial effect of its admission”.

Note that it is a criminal offence to secretly record a conversation that is between third parties that you are not privy to the conversation , it is not illegal to record a conversations that you are a party to.

In C.C., at paras. 31-32, Gibb-Carsley J. set out the test applicable in British Columbia for determining the admissibility of surreptitious recordings:
[31] In British Columbia, the court has developed a four-part test to determine the admissibility of surreptitious recordings.

This test as set out by Justice Skolrood in Finch v. Finch, 2014 BCSC 653 at para. 62 [Finch] can be summarized as follows:

i. the recordings must be relevant;
ii. the participants must be accurately identified;
iii. the recordings must be trustworthy; and
iv. the court must be satisfied that the probative value of the recordings outweighs its prejudicial effects.

The court considered the leading cases in this province regarding the use of surreptitious recordings including A.D.B. v. E.B., [1997] B.C.J. No. 227, 1997 CarswellBC 104 (S.C.), Sweeten v. Sweeten, [1996] B.C.J. No. 3138, 1996 CanLII 2972 (S.C.) [Sweeten], and Mathews v. Mathews, 2007 BCSC 1825 [Mathews], and accepted that as a starting point there is a limited discretion for the court to exclude the evidence simply on a policy basis.

Admission of Extrinsic Evidence in Wills Interpretation Post WESA

Zalechuk Estate 2023 BCSC 523 discussed the modern approach to wills interpretation post WESA.

The Court’s power to rectify a will is found in s. 59 of the WESA:

59 (1) On application for rectification of a will, the court, sitting as a court of construction or as a court of probate, may order that the will be rectified if the court determines that the will fails to carry out the will-maker’s intentions because of

(a) an error arising from an accidental slip or omission,
(b) a misunderstanding of the will-maker’s instructions, or
(c) a failure to carry out the will-maker’s instructions.
(2) Extrinsic evidence, including evidence of the will-maker’s intent, is admissible to prove the existence of a circumstance described in subsection (1).
(3) An application for rectification of a will must be made no later than 180 days from the date the representation grant is issued unless the court grants leave to make an application after that date.

(4) If the court grants leave to make an application for rectification of a will after 180 days from the date the representation grant is issued, a personal representative who distributes any part of the estate to which entitlement is subsequently affected by rectification is not liable if, in reasonable reliance on the will, the distribution is made
(a) after 180 days from the date the representation grant is issued, and
(b) before the notice of the application for rectification is delivered to the personal representative.
(5) Subsection (4) does not affect the right of any person to recover from a beneficiary any part of the estate distributed in the circumstances described in that subsection.

In Thiemer Estate, 2012 BCSC 629 which also predated the coming into force of the WESA, Justice Dardi summarized some useful principles of construction. She said that the objective of the court is to ascertain the intention of the testator as expressed in his or her will when it is read as a whole in light of any properly admissible extrinsic evidence. The testator’s intention is to be gathered from the will as a whole and not solely from the provisions in dispute (para. 45 citing Perrin v. Morgan, [1943] A.C. 399 at 406 (H.L.) and (H.L.); Re: Burke (1960), 20 D.L.R. (2d) 396 at 398-399 (Ont. C.A.).

The court is to ascertain the express intention of the testator which is the meaning of the written word as opposed to what the testator may have meant to do when he or she made a will (Thiemer at para. 46 citing Perrin at 406).
Earlier lines of authority endorsed an objective approach to will interpretation but modern jurisprudence recognizes a strict literal approach can defeat the intention of the testator (Thiemer at para. 47, citing “The Law Reform Commission of British Columbia”, Report on Interpretations of Wills, LRC 58 at 6).
[68] At para. 48 Justice Dardi said:

[48] In keeping with contemporary judicial thinking, the courts of this province have favoured the subjective approach to interpreting wills, wherein the objective is to ascertain the actual meaning the testator ascribed to the words he or she used in the will. In determining the testator’s intention the courts have endorsed the analytical approach commonly described as the “armchair rule”. The rule requires that the court put itself in the position of the testator at the point in time when he or she made the will, and from that vantage point construe the language in the will in light of the surrounding facts and circumstances known to the testator.
In Jamt Estate, 2021 BCSC 788, ss. 58 and 59 of the WESA is discussed by Justice Coval. He says that s. 58 is remedial in nature covering a broad discretion in prescribed circumstances to order a writing or marking on a will be fully effective. Section 59, like s. 58 is remedial in nature conferring a broad discretion to rectify a will that fails to carry out the makers intentions in prescribed circumstances. Prior to the enactment of the WESA there was no such statutory authority in British Columbia to rectify wills and common law rectification had very narrow boundaries.

Since there were no judicial considerations of s. 59(1)(a) Justice Coval took guidance from the United Kingdom decision in Re Segelman [1996] Ch. 171 at p. 180 which considered similar but not identical sections of the Administration of Justice Act 1982. He raised three questions:

1) what were the testator’s intentions with regard to the issue for which rectification is sought?
2) does the Will as written fail to carry out those intentions?
3) is that failure a consequence of one of the reasons specified in ss. 59(1)(a)-(c).

Justice Coval concluded that the extrinsic evidence strongly supported granting the rectification sought under s. 59(1). He concluded that Mr. Jamt intended to leave his estate to the petitioner. The accidental slip had been the use of the wrong middle name for the petitioner.

Section 59(2) of the WESA admits extrinsic evidence to prove the circumstances described in s. 59(1) if the court is of the view that the will fails to carry out the will-maker’s intentions because of an error arising from an accidental slip or omission or a misunderstanding or failure to carry out the will-maker’s instructions. Since the Will was prepared by the deceased, I will only consider whether there has been an accidental slip or omission.

In Simpson, the Court of Appeal applied s. 59 to rectify a will in a case where they found a denial of rectification in those particular circumstances would deprive the respondents of the gift the deceased intended them to have, and provide the appellant with a windfall the deceased never intended her to have. An accidental omission arose from the deceased’s failure to realize that his intended gift of the shares would never get to the respondents due to the operation of the survivor clause of the shareholders agreement.

The trial judge allowed the extrinsic evidence of the drafting solicitor’s notes to determine what the testator’s intentions were.
The majority of the Court of Appeal allowed the rectification.

Adjournments

Adjournments are a scourge of the litigation process but a common occurrence for a myriad of reasons.

The decision to adjourn a trial hearing is a discretionary one, governed by the interests of justice and necessitating a balancing of interests: Sidoroff v. Joe (1992), 76 BCLR (2d) 82 BCCA .

Navarro v. Doig River First Nation, 2015 BCSC 2173 [Navarro] provides a succinct summary of the legal principles governing adjournments.

The factors and considerations (at para. 20) include, in no particular order of priority:

  • the expeditious and speedy resolution of matters on their merits;
  • the reasonableness of the request;
  • the grounds or explanation for the adjournment;
  • the timeliness of the request;
  • the potential prejudice to each party;
  • the right to a fair trial;
  • the proper administration of justice;
  • the history of the matter, including deliberate delay or misuse of the court process; and
  • the fact of a self-represented litigant.

 

“Caregiver” Sibling Awarded $115,000 Over Equal Split of Will

Rawlins v Rawlins 2023 BCSC 466 deals with a very common factual scenario in estate litigation, namely, the sibling who spends most of his or her time living at home with his/her parents, ultimately providing personal care in latter years, and seeking additional compensation for having done so.

 

The other siblings typically see the sibling as being somewhat of a freeloader, living rent and board free for most of his or her life and then only providing minimal care for  a short period of time.
The evidence is typically very conflicting as it was in the Rawlins case.

There were three male children born of Mr. and Mrs. Rawlins, who prepared wills in 1977, providing for an equal share between their three sons. The father lived to be 93 and the mother passed away at 85.
One son ( Doug)  lived his entire life in the matrimonial home and had a sporadic work record, with his longest employment being that by one of his siblings under parental pressure to provide same.
After that business closed in 2014 the caregiver brother Doug chose to stay at home and look after his elderly parents on a full-time basis. The estate was primarily the family home and was valued at approximately $2.4 million, which would provide approximately  $800,000 to each of the three male children.

The reasons for judgment are lengthy due to a close examination of what contributions were made by Doug to the estate, and what  personal care was provided to his parents and for what duration.

The court did not apply the law relating to wills variation and instead focused on the plaintiffs claim for unjust enrichment.

The court found that the plaintiff did provide material benefits to the estate of his late mother from the personal care services that he provided to each of his parents in their final years, but that the estate did not receive any benefit from Doug’s allege contributions towards the actual property itself.

The court found that the personal care services that Doug rendered to his parents and their final years involved a deprivation to Doug and that there was no juristic reason for Doug’s enrichment of his mother’s estate in the form of personal care services as he had no contractual, law or statutory duty to provide personal care services for his elderly parents.

The court concluded that Doug’s deceased mother had a legal duty toward Doug in the form of an unjust enrichment claim based on his provision of personal care for both yourself and your late husband are in their final years.
The court particularly examined both the pros and the cons of a child who decides to stay at home and lived with one’s parents, as opposed to moving out and embarking on his or her own journey outside of the parental home.

Interesting enough, the court stated that in making their lifestyle choice to stay at home that he did, Doug deprived himself of any impetus to grow his own nest egg. His brothers, by contrast, move out of the family home acquired their own houses and were largely, if not entirely financially independent.

The court concluded that Doug should be awarded a sum of $115,000 for the years that he cared for his parents, based on $25,000 per year for the three years that he cared for his mother, and $40,000 for the two years that he cared for his mother at another time. He was further ordered to pay two thirds of the total of the unpaid property taxes for the five years that he resided in the home after the death of his last parent.

Vancouver Estate Lawyer-Rebutting the Presumption of Undue Influence

Trevor Todd and Jackson Todd have over 60 years experience in handling contested estate matters including undue influence.

Undue influence is an equitable doctrine used to protect persons from victimization at the hands of others. Equity will set aside transfers brought about by undue influence: Geffen v. Goodman Estate, [1991] 2 S.C.R. 353 at 368, 1991 CanLII 69.

In Stewart v. McLean, 2010 BCSC 64, Justice Punnett considered undue influence.

At para. 92, he noted that the presumption of undue influence arises for gratuitous transfers when a plaintiff establishes that the potential for influence exists or existed in the relationship. In Geffen at 377, Justice Wilson provided a definition of influence:

It seems to me rather that when one speaks of influence one is really referring to the ability of one person to dominate the will of another, whether through manipulation, coercion, or outright but subtle abuse of power…. To dominate the will of another simply means to exercise a persuasive influence over him or her. The ability to exercise such influence may arise from a relationship of trust or confidence but it may arise from other relationships as well.

Justice Punnett also referred to Longmuir v. Holland, 2000 BCCA 538, at para. 71, where Justice Southin defined undue influence as “influence which overbears the will of the person influenced so that in truth what she does is not his own mind.

To rebut the presumption of undue influence, the defendant must show that the donor gave the gift as a result of her own “full, free and informed thought:” Geffen at 379. A defendant could establish this by showing:

a) No actual influence was used in the particular transaction or the lack of opportunity to influence the donor (Geffen at 379; Longmuir at para. 121);

b) The donor had independent advice or the opportunity to obtain independent advice (Geffen at 379; Longmuir at para. 121);

c) The donor had the ability to resist any such influence (Calbick v. Warne, 2009 BCSC 1222 at para. 64);

d) The donor knew and appreciated what she was doing (Vout v. Hay, [1995] 2 S.C.R. 876 at para. 29); or

e) Undue delay in prosecuting the claim, acquiescence or confirmation by the deceased (Longmuir at para. 76).

Another relevant factor may be the magnitude of the benefit or disadvantage (Geffen at 379; Longmuir at para. 121).

 

Campbell Estate (Re), 2022 BCSC 2184 at paras. 213–217 court stated:

Undue influence will be presumed in certain relationships, such as doctor and patient, solicitor and client, and parent and child: Geffen at para. 28. The categories of relationships in which undue influence will be presumed are not fixed. Each case must be considered on its own facts to determine if a “special” relationship exists to support the presumption.

[216]

[42] What then must a plaintiff establish in order to trigger a presumption of undue influence? In my view, the inquiry should begin with an examination of the relationship between the parties. The first question to be addressed in all cases is whether the potential for domination inheres in the nature of the relationship itself. This test embraces those relationships which equity has already recognized as giving rise to the presumption, such as solicitor and client, parent and child, and guardian and ward, as well as other relationships of dependency which defy easy categorization.
[43] Having established the requisite type of relationship to support the presumption, the next phase of the inquiry involves an examination of the nature of the transaction. When dealing with commercial transactions, I believe that the plaintiff should be obliged to show, in addition to the required relationship between the parties, that the contract worked unfairness either in the sense that he or she was unduly disadvantaged by it or that the defendant was unduly benefited by it. From the court’s point of view this added requirement is justified when dealing with commercial transactions because, as already mentioned, a court of equity, even while tempering the harshness of the common law, must accord some degree of deference to the principle of freedom of contract and the inviolability of bargains. Moreover, it can be assumed in the vast majority of commercial transactions that parties act in pursuance of their own self-interest. The mere fact, therefore, that the plaintiff seems to be giving more than he is getting is insufficient to trigger the presumption.
[44] By way of contrast, in situations where consideration is not an issue, e.g., gifts and bequests, it seems to me quite inappropriate to put a plaintiff to the proof of undue disadvantage or benefit in the result. In these situations the concern of the court is that such acts of beneficence not be tainted. It is enough, therefore, to establish the presence of a dominant relationship.
[45] Once the plaintiff has established that the circumstances are such as to trigger the application of the presumption, i.e., that apart from the details of the particular impugned transaction the nature of the relationship between the plaintiff and defendant was such that the potential for influence existed, the onus moves to the defendant to rebut it. As Lord Evershed M.R. stated in Zamet v. Hyman, supra, at p. 938, the plaintiff must be shown to have entered into the transaction as a result of his own “full, free and informed thought”. Substantively, this may entail a showing that no actual influence was deployed in the particular transaction, that the plaintiff had independent advice, and so on. Additionally, I agree with those authors who suggest that the magnitude of the disadvantage or benefit is cogent evidence going to the issue of whether influence was exercised.

[217] McMaster Estate v. McMaster, 2021 BCSC 1100 provides a recent illustration of the application of these principles in this court. In that case, a mother had purchased a home and registered it in joint title with one of her sons. While the deceased’s will provided for her estate to be split evenly between her children, the transfer had already taken nearly all of the deceased’s assets out of her estate. The estate alleged that the son who owned the house with the mother held it pursuant to a resulting trust or as a result of undue influence. In this context, Justice MacDonald summarized the applicable legal principles as follows:

[47] Undue influence is an equitable doctrine to prevent individuals from being taken advantage of by others. It addresses abuses of trust, confidence, and power spanning a range of transactions, including gifts, bequests, and commercial dealings. Transactions induced by undue influence may be set aside.
[48] Vulnerability and dependency are the hallmarks of undue influence.
[49] In order to trigger a presumption of undue influence, the first question to address is whether the potential for domination inheres in the nature of the relationship. The second phase of the inquiry involves an examination of the nature of the transaction: Geffen v. Goodman Estate, [1991] 2 S.C.R. 353 at paras. 40-44.

[50] A relationship of dependency involving a potential for domination may arise among family members: Geffen. A gratuitous transfer from a parent to an adult child does not automatically create a presumption of undue influence. In Wood v. Porter, 2015 BCSC 2354, this Court found a relationship of dependency and domination did not exist between an independent, active, and competent mother and her son. To establish the presumption of undue influence, the plaintiff must establish the existence of a relationship of potential dominance between the parent and the adult child: Modonese at para. 111.

[51] The second phase of the inquiry involves an examination of the nature of the transaction.

[52] To rebut the presumption of undue influence, the defendant must establish that the transferor entered into the transaction of her own “full, free and informed thought”: Geffen at para. 45.

[53] The following factors may be considered when scrutinizing the transaction to determine if Doreen entered into the transaction of her own “full, free and informed thought”: (i) the lack of actual influence or opportunity to influence her; (ii) whether she received or had opportunity to obtain independent legal advice; (iii) her ability to resist any such influence; (iv) whether she knew and appreciated what she was doing; (v) whether there was undue delay in confirmation by Doreen; and (vi) the magnitude of the benefit or disadvantage: Cowper-Smith v. Morgan, 2016 BCCA 200 at para. 50, rev’d on other grounds, 2017 SCC 61; Stewart v. McLean, 2010 BCSC 64 at para. 97.
[Emphasis added.]

Stages of Progressive Dementia

Probably the most difficult area of estate litigation has to do with court actions such as lack of mental capacity to make a will, be financial responsible, make  a substantial gift, or be subject to undue influence to name a few. The common denominator was whether the transferor or will maker had sufficient mental capacity to make an informed and independent decision affecting their wealth and finances.

 

Dementia is marked by a severe decline in cognitive functions, such as thinking, reasoning, and remembering, to the extent that it interferes with the person’s daily life.’

It is estimated that about %80 of dementias are progressive  with Alzheimer’s being the most prevalent.

Dementia typically affects older adults, but it is not a normal part of the aging process—while some amount of forgetfulness is normal with age,
dementia is a severe disorder that can affect the person’s ability to function on a daily basis.

According to the National Institute on Aging, about one-third of all people above the age of 85 have some form of dementia.’ Dementia can stem from
various causes, the most common being Alzheimer’s disease.3 Some of the other causes include Parkinson’s disease, Lewy body dementia, and
frontotemporal dementia.

Dementia progresses in typically 7 stages, ranging from mild to severe.’

The 7 stages of progressive dementia are as follows:

1. No cognitive decline
2. Very mild cognitive decline
3. Mild cognitive decline
4. Moderate cognitive decline
5. Moderately severe cognitive decline
6. Severe cognitive decline
7. Very severe cognitive decline

Stages 1 to 3 are the pre-dementia stages; whereas Stages 4 to 7 are thedementia stages.6 Clinicians typically compare the person’s symptoms to the
criteria listed for each stage and use their judgment to determine whichstage the patient is at.7

The 7 Stages of Dementia

Stage 1: No Cognitive Decline

At this stage, the person is able to function normally and doesn’t exhibit anysigns of memory loss, confusion, or cognitive impairment

However, the structure and functioning of their brain may have started todeteriorate,8 as the neurons (nerve cells) in their brain start to lose
connection with other brain cells and die.

Stage 2: Very Mild Cognitive Decline

The person starts to experience occasional lapses of memory, such as:

· Forgetting where they keep familiar everyday objects
· Forgetting names they once knew very well

At this stage, the symptoms are unlikely to affect the person’s work or social interactions.
In fact, the symptoms may even be too mild to detect in a clinical interview with a healthcare provider, as the person may be able to adequately perform
memory tests during the interview.

Stage 3: Mild Cognitive Decline

This is the stage where cognitive impairment starts to become more noticeable to the patient, as well as their friends, family members, and
colleagues.

The person may start to show symptoms such as:

· Getting lost while walking or driving, particularly in unfamiliar places
· Reading something and retaining very little of it
· Forgetting the names of people they’ve just met
· Losing items of importance or value
· Having trouble concentrating and performing complex tasks
· Experiencing increasing difficulty in social settings
· Frequently forgetting words and the names of loved ones
· Performing poorly at work, to the extent that it becomes evident to
colleagues

The person may start to feel anxious as their symptoms start to become
apparent and interfere with their ability to function.

Stage 4: Moderate Cognitive Decline

In this stage, the person will exhibit a definitive decline in cognitive ability in
a clinical interview.

Some of the symptoms of this stage may include:

· Lack of knowledge of current and recent events
· Difficulty remembering parts of their own personal history
· Trouble with organizing, planning, traveling, and managing finances

At this stage, the person will likely still be able to recognize loved ones’ names and faces, and be able to navigate familiar places. However, they
may start to avoid challenging situations in order to prevent anxiety and hide their distress from others.

Stage 5: Moderately Severe Cognitive Decline

From this stage onward, the person may no longer be able to function
without some assistance.

These are some of the symptoms of this stage:

· Difficulty recalling an important detail such as their address, phone number, or high school
· Disorientation in terms of place and time, such as confusion regarding the season, date, day of the week, or time of day
· Difficulty counting backward from 20 by 2s or from 40s by 4s
(provided they are educated and were once able to do this calculation)
· Trouble with making decisions

In this stage, the person can likely still remember their own name and the names of their spouse and children, but they may struggle with recalling the
names of their grandchildren. They may be able to eat and use the bathroom without assistance, but may need help with tasks such as deciding
what to wear.

Stage 6: Severe Cognitive Decline

 

At this stage, the person may require a high degree of care, as they may have symptoms such as:

· Difficulty remembering the names of their spouse, children, or primary caregivers
· Lack of awareness regarding all the recent events and experiences in their life
· Patchy or skewed recollection of their early life
· Difficulty counting backward or forward to 10
· Lack of awareness regarding their surroundings as well as the time and place
· Inability to travel alone without assistance
· Tendency to wander
The person is also likely to experience emotional and personality changes such as:

· Paranoia, hallucinations, and delusional behavior, such as talking to themselves or believing their caregivers are trying to harm them
· Obsessive symptoms, such as repeatedly performing cleaning activities
· Agitation, anxiety, and even violent behavior
· Loss of willpower, due to being unable to carry a thought long enough to complete the action

During this stage, the person is likely to still be able to remember their name, as well as distinguish between familiar and unfamiliar people in their environment. They will probably need assistance with daily living activities and may experience incontinence as well as sleep-related difficulties

Stage 7: Very Severe Cognitive Decline

In the final stage, the brain appears to lose its connection to the body and
becomes incapable of telling it what to do.

The person is likely to progressively lose their motor skills as well as the ability to speak. They may only be able to utter unintelligible sounds or words, if at all. They will need assistance with all personal care tasks such as eating, walking, and using the bathroom.