Author: Trevor Todd

Court Delay & Dismissal Want of Prosecution

Many court actions, including estate litigation are commenced and then just ” sit there” often for years such that inordinate delay can occur.

After certain criteria are met, typically the defendant will apply to the court for dismissal of the plaintiff’s court action for want of prosecution.

In Drennan v. Smith, 2022 BCCA 86 the Court of Appeal summarized principles to be considered on an application for dismissal for want of prosecution at para. 16 as follows:

Relevant factors for consideration are summarized in Wiegert v. Rogers, 2019 BCCA 334:

On an application to dismiss for want of prosecution, it must be shown that

1)there has been inordinate delay,

2)that the inordinate delay is inexcusable,

3) and that the delay has caused, or is likely to cause, serious prejudice to the defendant.

4) In addition, the final and decisive question, which encompasses the other three, is whether, on balance, justice requires a dismissal of the action: Azeri v. Esmati-Seifabad, 2009 BCCA 133 at para. 9; 0690860 Manitoba Ltd. v. Country West Construction Ltd., 2009 BCCA 535 at paras. 27-28.

Inordinate delay is defined in Drennan at para. 16 (citing para. 32 of Wiegert v. Rogers, 2019 BCCA 334 [Wiegert]) as follows:

…Inordinate delay is delay that is immoderate, uncontrolled, excessive and out of proportion to the matters in question: Azeri at para. 8; Sahyoun v. Ho, 2015 BCSC 392 at para. 17. As Justice Saunders explained in Sun Wave Forest Products Ltd. v. Xu, 2018 BCCA 63 at para. 25, the concept is relative: some cases are naturally susceptible of fast carriage or call for more expeditious prosecution than others. Although there is no universal rule as to when time starts to run, the date of commencement of the action is typically identified as the point from which delay is measured. The delay should be analysed holistically, not in a piece-meal fashion, and the extent to which it may be excusable is highly fact-dependent: Ed Bulley Ventures Ltd. v. The Pantry Hospitality Corporation, 2014 BCCA 52 at para. 38; 0690860 at para. 29.

The plaintiff’s diligence and dispatch in advancing the action is relevant to whether a delay is inordinate. Plaintiffs have a particular onus to move expeditiously when a case involves serious allegations that go to a defendant’s character and credit, see Extra Gift Exchange Inc. v. Accurate Effective Bailiffs Ltd., 2015 BCSC 915 [Extra Gift Exchange Inc.].
In considering the issue of whether there has been inordinate and inexcusable delay, the court is entitled to consider the conduct of the defence contributing to that delay, see Tundra Helicopters Ltd. v. Allison Gas Turbine, 2002 BCCA 145 at para. 21 [Tundra].

The burden is on the applicant to establish that there has been inordinate and inexcusable delay. Once the applicant has established inordinate and inexcusable delay, a rebuttable presumption of prejudice arises:

Once a defendant establishes that delay is inordinate and inexcusable, a rebuttable presumption of prejudice arises: Busse v. Chertkow, 1999 BCCA 313 at para. 18. The concern is with the prejudice that a defendant will suffer in mounting and presenting a defence if the matter goes to trial: 0690860 at para. 27. Relevant matters could include failing memories, unavailable witnesses and the loss or destruction of physical evidence.
…
Drennan at para. 16 (citing para. 33 of Wiegert).

The final and overriding question is whether the interests of justice require dismissal of the action, see Drennan para. 16 (citing para. 33 of Wiegert):

…As to the final consideration — whether, on balance, justice requires dismissal of the action — again, the determination is highly fact-dependent. Relevant matters could include the length of and reasons for the delay, the stage of the litigation, the context in which the delay occurred and the role of counsel in causing the delay (although negligence on the part of a plaintiff’s lawyer may not always amount to an excuse): International Capital Corporation v. Robinson Twigg & Ketilson, 2010 SKCA 48 at para. 45; 0690860 at para. 29.

Four questions are to be addressed in an application to dismiss for want of prosecution:

1. Has there been inordinate delay on the part of the plaintiff in pursuing its claim?
2. Has the delay been inexcusable?
3. Has the delay caused serious prejudice, or is it likely to cause serious prejudice to the defendants?
4. Does the balance of justice require an order dismissing the plaintiff’s claim?
Extra Gift Exchange Inc., at para. 41.

Removal of Lawyer Refused

Jiwani v Jiwani @022 BCCA 451 refused to remove a lawyer for a potential conflict of interest stating that the role of the lawyer was not the basis of the court action, it was instead the enforceability of the marriage agreement turned on whether the appellant husband Mr. Jiwani truthfully disclosed his financial affairs to his wife.

The lawyer’s advice to the respondent in respect of the marriage agreement had not been put in issue.

The Law

In summary, the court has an inherent jurisdiction to remove a lawyer from the record who has a conflict of interest, including a lawyer who may be a witness in a case where they act as counsel (see Ontario Realty Corp. v. Gabriele & Sons Limited, [2006] O.J. No. 4497 (Ont. S.C.J.) at para. 16 and MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235 at para. 18).
The concern that arises when a lawyer testifies is there may be a conflict of interest between the client and the lawyer, and the administration of justice can be impaired by a conflict in the lawyer’s obligation of objectivity to the court, and their obligation as an advocate to the client.

The factors the court considers include:

(a) maintaining the high standard of the legal profession and the integrity of the justice system; and
(b) the right of a litigant to counsel of choice, which they should not be deprived of without good cause (Ontario Realty at para. 17, citing MacDonald Estate at para. 12)

The test to be applied is whether a fair minded reasonably informed member of the public would conclude that a proper administration of justice requires the removal of the lawyer (Ontario Realty at para. 20; Karas et al. v. Her Majesty the Queen et al., 2011 ONSC 5181 at para. 26).

The cases have recognized that when a litigant is deprived of a lawyer of their choice, a hardship may arise, which can only be justified to prevent a more serious injustice (see for example Urquhart v. Allen Estate, [1999] O.J. No. 4816 (Ont. S.C.J.).

While certainty that a lawyer will be called as a witness is not required, the applicant must establish it is likely that counsel can provide material evidence: Ontario Realty at paras. 34-35. In Gichuru v. Purewal, 2017 BCCA 281 at para. 17, the Court of Appeal characterized a removal order as an extraordinary remedy, to be approached with great caution and rarely invoked.

Deliberate Destruction of Evidence ( Spoilation)

The deliberate destruction of material evidence occasionally occurs in estate litigation. The technical term is spoliation.

What does seem to occur on a somewhat regular basis in estate disputes is the disappearance of previous wills, and other relevant documents that may pertain to a death that occurs years later.
Proving that the evidence was deliberately destroyed can of course be very difficult.

The BC Court of Appeal in GEA Refrigeration Canada Inc. v Chang 2020 BCCS 361 , upheld the trial judge’s decision that the defendant’s decision to destroy his computer hard drives was motivated by his knowledge that the information on them would adversely affect his case.

The court upheld the trial judge’s entitlement to draw an adverse inference from the deliberate destruction of evidence if certain conditions are satisfied:

The Supreme Court of Canada decision, St. Louis v. The Queen( 1896) 25 SCR 649 stands for the proposition that sporulation in law does not occur merely because evidence has been destroyed. It occurs where a party has intentionally destroyed evidence relevant to ongoing, or contemplated litigation in circumstances where reasonable inference can be drawn that the evidence was destroyed to affect the litigation.
Once this is demonstrated a presumption arises that the evidence would have been unfavorable to the party destroying it.
That presumption is rebuttable by other evidence through which the alleged spoil later proves that his or her actions, although intentional, were not aimed at affecting the litigation, or through which the party either proves his or her case or repels the case against him or her.

See also McDougall v . Black & Decker Canada Inc., 2008 ABCA 353

Attorney Cannot Transfer Parent’s Assets to Protect Parent’s Finances

An attorney cannot transfer all of the funds to another bank account in the name of another party despite the attorney’s intention to protect the parent – McMullen v McMullen 2006 1656.

The parent was an active 86 year old father who while being frail and declining in health still enjoyed travelling and being independent. He was mentally competent for financial affairs.

His two children fearing that he would succumb to financial abuse, transferred his monies using their power of attorney to their spouses to hold in trust.

The parent sued and the transactions were set aside and the monies ordered be returned to the parent.

It is well established that the attorney acting under a power of attorney is bound to the duties enunciated on the face of the instrument granting the power. In this case, the power of attorney remains exercisable during periods of capacity and mental infirmity. A condition requires the attorneys to provide the donor with regular accountings at any time they assist him in his financial affairs.

It is also well established that the relationship between the attorney and the donor is a fiduciary one. This stems from the agent-principal relationship, as well as the indicators of a fiduciary relationship as described in Frame v. Smith, [1987] 2 S.C.R. 99, which include the unilateral exercise by the fiduciary of some discretion or power, which affects the beneficiary’s legal or personal interest, and where the beneficiary is particularly vulnerable. See British Columbia (Guardian and Trustee of) v. Egli (2004), 28 B.C.L.R. (4th) 375, 2004 BCSC 529, aff’d (2005) 48 B.C.L.R. (4th) 90, 2005 BCCA 627.

In Andreasen v. Daniels-Ferrie, 2001 BCSC 1503, Quijano J. described the requisite standard of care that was to be expected when utilizing a power of attorney at para. 27:
[I]t is well established that the attorney acting under a power of attorney does so in a fiduciary relationship with the donor and that, in addition to whatever duties may be enunciated on the face of the instrument, even where the attorney acts gratuitously he or she has a duty to account, to exercise reasonable care as would a typically prudent person managing his or her own affairs, and not act contrary to the interests of the donor.

[ In most cases involving allegations of a breach of duty regarding the use of a power of attorney, the issues stem from transactions where property was transferred from the donor to the attorney. Under s. 27 of the Property Law Act, any such transaction is not valid unless the power of attorney expressly authorizes it or the principal ratifies it. An unauthorized transaction will constitute a breach of fiduciary duty despite good intentions by the attorney: British Columbia (Guardian and Trustee of) v. Elgi, supra.

This case does not involve a transfer to the attorneys, but rather a transfer to the spouses of the attorneys. Mr. Roberts did not explicitly argue that such a transaction is equivalent to a transfer to the attorneys, but he did raise the applicability of s. 27 of the Property Law Act. He also submitted that the powers given in the power of attorney do not authorize the granting away of the principal’s property without consideration: Begley v. Imperial Bank of Canada [1935] S.C.R. 89, aff’d [1936] 2 All E.R. 367 (J.C.P.C.).

Forgery and Handwriting Analysis

I commonly receive estate enquiries where the enquirer strongly asserts suspicion that documents found after death such s a wills or a transfer were forged.

I predicted many years ago with the advent of S. 58 and 59 WESA ( the curative provisions of defective wills) allowing court approval of unwitnessed or even unsigned written or computer wills as valid after being satisfied that the document represents the last stated intention of the deceased’s testamentary wishes.

The potential for financial abuse and in particular by “forgery” is enormous as many have not gone to professional will drafters after learning of the relaxed will rules and how you can now just do your own.

HANDWRITING

Most of the following law is derived from criminal law but it will apply equally to a civil claim alleging forgery.

A trial judge may make their own handwriting comparison. However, courts have conditioned the use of this power on the trial judge issuing a self-instruction on the dangers of exercising it.
In R. v. Megill, 2021 ONCA 253, the court stated:

The Governing Principles
[84] At common law, proof of handwriting could be made by testimonial or circumstantial evidence. For example, a witness might testify that they saw the act of writing. Or they might give evidence of the circumstances leading up to or pointing back to the act of writing. In a similar way, a qualified witness may testify about the style of the handwriting which requires a comparison between known and the disputed writing: VII Wigmore on Evidence (Chadbourn Rev. 1978), §1991, at pp. 252-57.
[85] The common law also permitted the trier of fact, without the aid of experts, to compare handwriting samples when a proved or admitted standard used for comparison with the disputed writing was already properly admitted as evidence for other purposes. No document was admissible merely as a standard of comparison with the disputed writing: R. v. Abdi (1997), 1997 CanLII 4448 (ON CA), 116 C.C.C. (3d) 385 (Ont. C.A.), at para. 15, citing VII Wigmore on Evidence (Chadbourn Rev. 1978), §§1992-1994, at pp. 257-64.

[86] Under s. 8 of the Canada Evidence Act, R.S.C. 1985, c. C-5, handwriting may be proven by comparison, by expert or lay witnesses, of a disputed handwriting with one that has been proved to be genuine and which has been received in evidence for the purpose of comparison: Abdi, at para. 16.
[87] Section 8 does not oust the common law rule. The section does not preclude a trier of fact from comparing disputed handwriting with admitted or proved handwriting in documents which are properly in evidence and drawing available inferences: Abdi, at paras. 22, 23 and 25.
[Emphasis added.]
In R. v. Hunking, 2016 ONSC 1749, the court stated:
F. The Principles Governing Handwriting Comparisons by the Trier of Fact

[17] In a series of cases the Ontario Court of Appeal has affirmed that a trial judge as trier of fact may make handwriting comparisons between a known or admitted sample of handwriting and another document bearing handwriting, and find that both were written by the accused. However, the court has conditioned the use of this power on the trial judge’s self-instruction on the dangers in exercising it. These cases include R. v. Abdi (1997), 1997 CanLII 4448 (ON CA), 34 O.R. (3d) 499; 1997 CanLII 4448 (Ont. C.A.), R. v. Malvoisin, 2006 Can LII 33304 (Ont.C.A.), and R.v. Flynn, 2010 ONCA 424.
[18] In Abdi, 1997 CanLII 4448 Justice Robins for the Court stated:
In the appellant’s submission, s.8 of the Canada Evidence Act (“the Act”) requires that evidence with respect to the comparison of handwriting be given by experts or witnesses with particular knowledge of the writings of the accused. To allow the jury to compare handwritten documents without witness testimony as to the validity of the comparison, the appellant argues, is to turn the jurors into witnesses and deprive the accused of the right of cross-examination. As I noted earlier, the handwriting in the red address book is the appellant’s.
Section 8 of the [Canada Evidence] Act provides:
8. Comparison of a disputed writing with any writing proved to the satisfaction of the court to be genuine shall be permitted to be made by witnesses, and such writings, and the evidence of witnesses respecting those writings, may be submitted to the court and jury as proof of the genuineness or otherwise of the writing in dispute.
….
Under s. 8, handwriting may be proved by comparison, done by expert or lay witnesses, of the disputed writing with a writing that has been proved to be genuine and which has been admitted into evidence for the purpose of comparison. The question is whether or not, in light of this provision, the trier of fact is entitled to compare the disputed handwriting with the admitted or proved handwriting and form an opinion thereon in the absence of any witness testimony as to the genuineness or otherwise of the disputed writing. Put another way, does s. 8 provide the only means for comparison of handwritten documents and thus preclude comparison by the trier of fact without witness evidence? If the trier of fact does not require such assistance, then the question is what caution need be given as to the dangers of engaging in an unaided comparison.
….
In R. v. Dixon, supra, the Nova Scotia Supreme Court, Appellate Division, held that the statutory provision allowed the comparison to be made by expert or lay witnesses “or without the intervention of any witnesses at all, by the jury themselves, or, in the event of there being no jury, by the court”.
….
….
There is, of course, a potential danger in making unassisted comparisons and the judge’s charge should reflect this danger. The jury should be reminded that it has no expert or other evidence relating to the writings and directed as to the care to be exercised in making the comparison. Any difficulties that a comparison may reasonably present in the light of the circumstances of a given case should be brought to the jury’s attention. As well, the jury may require instruction on the quality of the handwriting exemplar, whether it is of sufficient length and clarity for comparison purposes and, depending on the nature of the facts and the charge, on other matters going to the weight that may be placed upon such a comparison. In cases where forgery or the like is alleged, expert evidence may well be essential.

Joint Tenancy Severed Due to Acrimonious Conduct

In Preskar Estate v Wagner 20023 BCSC 80 a BC court found that a joint tenancy with a right of survivorship had been severed so as to become a tenancy in common by reason of the joint owners acrimonious conduct to each other that was inconsistent with joint tenancy unity.

In Preskar an unmarried couple who own the property in joint tenancy had acrimonious family litigation for many years, starting in 2007 that was never resolved. The joint tenancy was never severed and when Mr. Preskar his estate died, his interest in the joint tenancy property immediately went to his partner by right of survivorship.

The estate successfully sued arguing that there acrimonious course of conduct showed that their “notional” unity of ownership under a joint tenancy had been abandoned, and thus the joint tenancy had been severed and a tenancy in common created many years before his death in 2020.

This meant that the half interest of the deceased would go to his estate rather than to the former joint tenant by right of survivorhip.

The BC court adopted the reasoning of the Ontario Court of Appeal as follows:

Hansen Estate v. Hansen, 2012 ONCA 112 which states as follows at para. 39:

[39] While the determination under the course of dealing test is an inherently fact-specific assessment, the underlying rationale for rule 3 is that it is a means of ensuring that a right of survivorship does not operate unfairly in favour of one owner (or owners) where the co-owners have shown, through their conduct, a common intention to no longer treat their respective shares in the proper as indivisible, unified whole. For example, in the context of negotiations between spouses who are in the midst of a marriage breakdown, even failed or uncompleted negotiations can lead to severance because “the negotiation of shares and separate interests represents an attitude that shows that the notional unity of ownership under a joint tenancy has been abandoned” . . .

S. 58 WESA Criteria For “Curing” A Defective Will

Re Clarke Estate 2023 BCSC 103 is the latest in many S. 58 WESA applications where the court has “cured” a defective will once satisfied that the document is authentic and that it represents the final testamentary intentions of the deceased at the material time.

One of the leading BC cases Estate of Young, 2015 BCSC 182. stated that the two principal issues are:

(1) whether the document is authentic; and

(2) the core issue, whether the document represents the fixed and final, although not irrevocable, testamentary intentions of the deceased at the material time.

The BC courts followed the Manitoba decision of George v Daily the court confirmed that testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death. The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death. A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a will, by its nature, is revocable until the death of its maker. Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.

The burden of proof that a non-compliant document embodies the deceased’s testamentary intentions is a balance of probabilities.

A wide range of factors may be relevant to establishing their existence in a particular case. Although context specific, these factors may include the presence of the deceased’s signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests and the title of the document:

While imperfect or even non-compliance with formal testamentary requirements may be overcome by application of a sufficiently broad curative provision, the further a document departs from the formal requirements the harder it may be for the court to find it embodies the deceased’s testamentary intention: George at para. 81.

Concerning the material time for determining the testamentary intentions of the deceased person, Dickson J. noted at para. 37 that in most cases, the material time for determining testamentary intentions on a s. 58 application is the time when the document in question was created.

In many cases, as here, the material time for determining testamentary intentions on a s. 58 application is the time when the document in question was created. However, as noted in Estate of Young, depending on the circumstances, the material time may vary on this key issue. For example, after creating a document, a will-maker may, by words or actions, manifest a fixed and final intention that it expresses how his or her property is to be disposed of on death and thus that it operates as a will. In other words, a document may acquire a testamentary character by subsequent and sufficient manifestation of the will-maker’s intention: Bennett et al. v. Toronto General Trusts Corporation, 1958 CanLII 49 (SCC), [1958] S.C.R. 392 at 397. Nevertheless, in most cases, the focus of inquiry will be the will-maker’s intention when the document was prepared and executed: see, for example, Sweeney Cunningham Estate v. Sweeney, 2013 NSSC 299 at para. 29; Komonen v. Fong, 2011 NSSC 315 at para. 23.

The principles from Estate of Young were applied in the cases of Smith Estate (Re), 2016 BCSC 350 and Lane Estate, 2015 BCSC 2162

From the foregoing authorities, the following principles are established :

a)The onus in this matter is on the petitioner to prove, on a balance of probabilities, that:
the document is authentic; and
the document embodies the fixed and final, as opposed to irrevocable, testamentary intentions of the deceased.
b)The factors to take into account in determining whether the document contains the testamentary intentions of the deceased include:
the presence of the deceased’s signature,
the deceased’s handwriting,

iii. witness signatures,

revocation of previous wills,
funeral arrangements,
specific bequests,

vii. the title of the documentation,

viii. such other factors as may be relevant given the context, and

c)the material time for determining the testamentary intentions can vary depending on the circumstances, but in many if not most cases the material time is when the document was prepared and executed.

Joint Tenancy vs. Tenancy In Common Explained

Joint tenancy and tenancy in common are the two most common forms of concurrent property ownership in Canada.

In a joint tenancy, the “four unities” of title, interest, time and possession are present and co-owners hold an equal interest in the property as a unified whole. The common law treats joint tenants as a single tenant: each holding the whole for all, with no distinct shares held by anyone.

In contrast, in a tenancy in common one co-owner may hold a greater proportionate interest in the property than the other co-owner(s): Hansen Estate v. Hansen, 2012 ONCA 112 at paras. 29-30; Felske Estate v. Donszelmann, 2007 ABQB 682 at para. 31, aff’d 2009 ABCA 209; Rathwell v. Rathwell, [1978] 2 S.C.R. 436 at 459.

Unity of title means the title of each joint tenant arose from the same act or instrument. Unity of interest means their holdings are perfectly equal in nature, extent and duration. Unity of time means all the interests vested simultaneously. Unity of possession means each joint tenant has a right to present possession and enjoyment of the whole property, but no right to exclusive possession of any individual part of the whole. Assuming all four unities are present, the question of whether a joint tenancy or a tenancy in common has been created is determined by the intention of the grantor: B. Ziff, Principles of Property Law, 6th ed. (Toronto: Carswell, 2014) at 336; Felske Estate at para. 31.

Joint tenancy is often the chosen form of concurrent ownership for family holdings, usually for estate planning purposes. This is unsurprising. The legal fiction of a unified singularity composed of more than one person may fit comfortably in a family context. Unfortunately, however, unity can be fragile and families are not always happy. As Abella J. remarked in Pecore, when divisions arise that unhappiness often finds its painful way into a courtroom.

The principal and distinguishing characteristic of joint tenancy is the right of survivorship, the jus accrescendi. When one joint tenant dies, his or her interest in the property is extinguished and passes to the surviving joint tenant(s). The right of survivorship is, however, a revocable expectancy that manifests only upon success in the so-called “ultimate gamble” – survival – and then only if the joint estate has not been previously destroyed by an act of severance: Estate of Propst, 788 P.2d 628 at 631 (Cal. Sup. Ct. 1990). When given inter vivos, a gift of survivorship rights is to what is left, if anything, when the gamble is won: Simcoff v. Simcoff, 2009 MBCA 80 at para. 64.

The interest of a tenant in common is different with respect to survivorship. Unlike that of a joint tenant, a tenant in common’s interest in property remains intact upon death and passes into his or her estate: Fuller v. Harper, 2010 BCCA 421 at para. 53.

Importantly, parties may hold legal title to property in one form of co ownership while holding equitable title in another. For example, a mother and daughter may be joint tenants in law and tenants in common in equity with respect to jointly-held property by virtue of a trust or an act of severance. If the mother dies first, the daughter assumes full legal title by right of survivorship, but the mother’s equitable interest, being held in common, passes to her estate and the daughter holds legal title as trustee for the beneficial owners, namely herself and her mother’s estate: Pecore at paras. 4-5; Ziff at 341-342.

Equity leans against joint tenancies: As explained in J. McGhee, ed., Snell’s Equity, 31st ed. (London: Sweet & Maxwell, 2005) at 103, the relevant maxim is that equity is equality.
When a joint tenant dies the whole belongs to the survivor(s) and the deceased’s estate takes nothing, which favours the tenant(s) of longevity and is thus unequal, except perhaps for an equal chance at survival. For this reason, equity often treats persons who are joint tenants at law, such as business partners or unequally contributing co-owners, as tenants in common: Mischel Holdings Pty Ltd. v. Mischel, [2013] VSCA 375 at paras. 60-61.

Family Verbal Agreement re Property Upheld

In Sojka v Sojka 2023 BCSC 52 the court upheld a verbal agreement made amongst family members as to the beneficial ownership of a parcel of property.

In Suenv Suen 2013 BCCA 313 the British Columbia Court of Appeal addressed agreements between family members:

[40] A contract is promissory in nature, that is, it is an undertaking by the promisor to do something for the promise in exchange for something. The exchange of promises is enforceable only if there is an agreement or consensus on the “existence, nature and scope of their [respective] rights and duties”
or the concept of a bargain, as an essential feature of the common law of contract at 8:

…what is an essential ingredient of a valid, enforceable, legally acceptable contract, is an agreement that can be called “serious,” that is, made with the kind of serious, binding intent that demarcates the casual promise, undeserving of legal recognition, from a promise which should be effective in law and should be obligatory on the future action, as well as the conscience of the promisor.

[42] The common law of contract is distinguishable from equitable or promissory estoppel where, absent consideration, reliance on a promise that is not fulfilled and gives rise to injury or damage, may be actionable. Consequently, if a promise is support only by “moral consideration”, it is generally not enforceable at common law:
The idea that moral justification could be the basis of a contract, for example, where a promise was made because of the familial relation of the parties, or out of “natural love and affection,” has long since been rejected by the common law (Fridman at 9).

[43] Communications in the family context are often no more than statements of intent or wishes. For a promise, in that context, to rise to the level of a binding enforceable contract there must be strict proof of the terms of the bargain including: the parties, the property, and the consideration. See McKenzie v. Walsh (1920), 61 S.C.R. 312 (S.C.C.), and Ross v. Ross (1957), [1958] O.R. 49, 11 D.L.R. (2d) 561 (Ont.C.A.)

The Court, in determining whether there is a verbal agreement, must apply the objective reasonable bystander test, and consider how the promisor’s conduct would appear to a reasonable person in the position of the promisee: Le Soleil at paras. 324–325. The party alleging the existence of a verbal agreement must prove its existence on a balance of probabilities: Bell v. Bell, 1998 CanLII 3194 at para. 14, [1998] B.C.J. No. 1457 (S.C.).

Where there is no written agreement between the parties but a verbal agreement is alleged, the credibility of each party is a key issue. Their evidence must be “tested against those facts that are not seriously in dispute and with the preponderance of the evidence and the probabilities surrounding the events”: Piga v. Uffelman, 2022 BCSC 983 at para. 14.

BC Estate Lawyer- Who to Sue in a Wills Variation Claim

Trevor Todd a BC estate litigation lawyer has 50 years experience in handling wills variation claims.

It is important to know who must be joined into a wills variation claim as a party.

Rule 21-6(1) and (2) of the Supreme Court Civil Rules read as follows:

21-6 (1) A proceeding under section 60 of the Wills, Estates and Succession Act must be started by a notice of civil claim.

(2) In a proceeding referred to in subrule (1),

(a) the following persons must be parties to the proceeding:

(i) the surviving spouse and children of the will-maker;

(ii) all beneficiaries under the will-maker’s will whose interest may be affected by the order sought;

(iii) the executor of the will, and

(b) the court may order that any other person be joined as a party.

3) In a response to a civil claim , a defendant may raise a claim under S. 60 of WESA on his or her own behalf, and any other party may serve a reply.