Will In “Contemplation of Marriage” Not Revoked

Will In "Contemplation of Marriage" Not Revoked

Pace Estate 2016 BCSC 2306 held that a 2001 will left to “my common law spouse  of four years ” was not revoked by their subsequent marriage under what was then S 15 Wills Act that provided that marriage revoked a will. The parties married over a year  after the execution of the will.

The will did not expressly state that the will was being signed in ” contemplation ” of their marriage.

The parties signed mirror wills at the time leaving the residue of each of their estates to the other.

The parties separated a few years later and divorced in 2009. The effect of S. 16 of the Wills act invalidated the appointment of that spouse as executrix and as the recipient of the residue of his estate when he subsequently died in 2015. In fact he had been living with another spouse for about 2 years prior to his death and there was a dispute as to whether she was his spouse.

Since the introduction of WESA on March 31, 2014 marriage no longer does revoke a previous will.

It is not clear why the first spouse sought an order that the 2002 will had not been revoked by their subsequent marriage, but in any event the court held that it had not been revoked.

Extrinsic evidence was allowed and indicated to the court that the deceased clearly intended his will to be made in contemplation of his marriage even though it did not expressly state so.

The court followed the reasoning of the Court of Appeal in MacLean estate v Christianson 2010 BCCA 374 at paras 30-31 where the court held that it had the right to ascertain all the facts that were known to the testator at the time the will was signed so as to determine the intention.

They had arranged their affairs so that they were the named beneficiaries of each others pensions and insurance.

The court further held that the will could not have been rectified under the provisions of  59 WESA  as his death occurred after the coming into force of WESA  and new statutes are presumed to not have retrospective application where such statutes affect the substantive  rights of others R. Dineley ( 2012) SCJ #58.

The court declared to have held other wise would have frustrated the clear intent of the parties and have run afoul of the presumption against an interpretation that resulted in an intestacy.

The court held that under S 18 of the Wills act the will had been “revived” by showing a contrary intention  that the will had not been revoked by the  subsequent marriage.

Statute Barred Debt to Estate Deducted From Beneficiary

Statute Barred Debt to Estate Deducted From Beneficiary

Re Johnston Estate 2017 BCSC 272 upheld the rule in Cherry v. Boultbee  which provides that where a legatee of a share of the residue is a debtor of the estate, he or she is not entitled to receive his or her legacy without bringing his or her debt into account, even though the debt owed by the beneficiary in that case was 43 years old and was statute barred.

The rule derives from the case of Cherry v. Boultbee (1839), 4 My. & Cr. 442. It is an equitable principle designed to ensure fairness.

The purpose of the rule was to prevent a beneficiary who owed money to an estate from receiving more than his or her fair share of the estate.

In the case of Re: Akerman, Akerman v. Akerman, [1891] 3 Ch. 212, Kekewich J. stated:

A person who owes an estate money, that is to say, who is bound to increase the general mass of the estate by contribution of his own, cannot claim an aliquot share given to him out of that mass without first making the contribution which completes it. Nothing is in truth retained by the representative of the estate; nothing is in strict language set off; but the contributor is paid by holding in his own hand a part of the mass, which, if the mass were completed, he would receive back.

29      The rule has been held to apply even where the debt is statute-barred: see Re: Akerman.

30      The applicant submits that the rule continues to apply in Canada and relies on the decision of the Supreme Court of Canada in Canada Trust Company v. Lloyd et al, [1968] S.C.R. 300.

In that case, the Supreme Court applied the rule in Cherry v. Boultbee in finding that the contribution of three directors who had improperly withdrawn funds from the company some 43 years earlier, had to be taken into account in the distribution of the residue by the receiver. The court noted that the situation was analogous to that of a “legatee who must bring into account even a statute barred debt before he can claim a legacy left to him in the testator’s will”.

31      The applicant also relies on a more recent decision of the Ontario Court of Appeal, Olympia & York Developments Ltd. v. Royal Trust Co. (1993), 103 D.L.R. (4th) 129, where the court confirmed that the rule in Cherry v. Boultbee has been accepted in Canadian decisions and, where appropriate, applied.

The rule in Cherry v. Boultbee does not confer on the estate any right to recoup the amount owing but rather operates to ensure fairness in the distribution of an estate, recognizing that the relationship between a testator and his or her beneficiaries is typically not at arm’s length. The fundamental purpose of the rule is to ensure that beneficiaries are treated fairly and it embodies the principal that he who seeks equity must do equity. As the court noted in Re: Akerman, nothing is being retained by the representative and nothing is being set off but rather, the contributor is paid by what he is holding in his own hand.

The court in Re: Goy & Co Ltd., [1900] 2 Ch. 149, also noted that the claimant has in his own hands that which is applicable to the payment and should pay himself out of that. The question of whether the testator or the estate can recover the debt or whether the debt is statute barred is therefore largely irrelevant to the application of the rule. In my view, the change in approach to limitation provisions by the Supreme Court of Canada in Tolofson does not affect the application of the rule in Cherry v. Boultbee.

37      The decision of the Yukon Territory Court of Appeal in Leeper Estate makes it clear that the rule in Cherry v. Boultbee continues to apply in Canada.

39      The Estate of William Leonide Johnston is, however, entitled to retain and deduct from the share of the estate otherwise payable to the respondent an amount on account of the debt owed to the Estate of William Johnston by the respondent that was outstanding and owing on his death.

The Duty of Care Owed By a Will Drafter

The Duty of Care Owed By a Will Drafter

In Korpiel v Sanguinetti (1999) B.C.J. 1048 the court concluded that a will drafter, usually a solicitor or notary, owes no duty of care to beneficiaries beyond the competent and timely fulfillment of the testator’s testamentary instructions.

In the Sanguinetti case, the court considered whether a will drafter owed a duty to beneficiaries who had been named in a client’s former will.  The plaintiffs were relatives of an elderly testator who had instructed his lawyer to prepare a will bequeathing his home to the plaintiffs.  Some years later, the testator changed his mind and instructed the lawyer to draft a new will, leaving the plaintiffs only a small bequest.

The plaintiffs challenged the later will and brought a court action against the lawyer who drafted it for a breach of fiduciary duty owed to them.  Their claim was dismissed.

The court held that if a will drafter were to conduct him- or herself as proposed by the plaintiffs—that is, to refuse to follow the client’s instructions in preference to the interests the potential beneficiaries—it would be impossible for the will drafter to avoid a conflict of duty and interest.  If the will drafter were to be held to advocate for inclusion of persons or terms of disposition that were contrary to the specific instructions of the client, it would clearly result in a conflict with the will drafter’s primary duty to his or her client.  The court found such a situation would be untenable.

Thus a will drafter cannot owe an independent fiduciary duty to the beneficiary of a will, for if the testator’s instructions were to conflict with the beneficiaries’ interests, the will drafter would be unable to avoid conflicting duties to both parties.

In Smolinski v. Mitchell [1995] 10 W.W.R. 68 (BCSC), Sigurdson J. considered the question of the duty of a solicitor to his client, in contrast to the duty to others who may be deprived of an inheritance by reason of a solicitor’s failure to properly carry out his client’s instructions.  His Lordship quoted from the English decision of Ross v. Caunters [1979] 3 All E.R. 580, [1980] Ch. D. 297 at 322:

“The argument seems to me to confuse duties which differ in their nature. In broad terms, a solicitor’s duty to his client is to do for him all that he properly can, with, of course, proper care and attention.  Subject to giving due weight to the adverb “properly,” that duty is a paramount duty.  The solicitor owes no such duty to those who are not his clients.  He is no guardian of their interests.  What he does for his client may be hostile and injurious to their interests; and sometimes the greater the injuries the better he will have served his client.  The duty owed by a solicitor to a third party is entirely different.  There is no trace of a wide and general duty to do all that properly can be done for him.  Instead, in a case such as the present, there is merely a duty, owed to him as well as the client, to use proper care in carrying out the client’s instructions for conferring the benefit on the third party.”

The Alberta Court of Appeal in Graham v. Bonnycastle, 2004 ABCA 270 (leave to appeal to the S.C.C. refused, [2004] S.C.C.A. No. 489) came to a similar conclusion after an extensive review of the law.

In the Graham case the children of the testator had been equal beneficiaries under a 1984 will.  In 1994, after having been diagnosed with Alzheimer’s disease, the testator executed a new will, leaving a small bequest to each of his children and grandchildren and the residue to his new wife.  After the testator’s death the children commenced litigation challenging both the validity of the marriage and the 1994 will on the basis of lack of mental capacity, which any beneficiary is entitled to do.

Both of those actions were discontinued and a settlement agreement was entered into by the parties.  The children subsequently commenced an action against the solicitor who prepared the 1994 will claiming damages for the difference between the bequest they would have received under the original will and the benefits they received pursuant to the settlement agreement.

The Court of Appeal upheld the decision of the trial judge and dismissed the children’s claims on the grounds that the solicitor owed no duty of care to the children who claimed as beneficiaries under the original will, and that the original will had been revoked by both the subsequent will and the subsequent marriage of the testator.  (Note:  In British Columbia, prior to the enactment of the Wills, Estates and Succession Act on March 31, 2014, a subsequent marriage revoked an existing will but that is no longer the case.)

The court made it clear, however, that by extension of the principles set out in Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1963] 2 All E.R. 575, a leading House of Lords decision, a will drafter may be liable to an intended beneficiary who, as a result of the will drafter’s negligence, does not receive a benefit which the testator intended to grant.

Thus the general rule that a will drafter owes a duty of care only to his or her client and not to any third party, has been modified to include a duty to an intended beneficiary under a will who does not, as result of the will drafter’s negligence, receive a benefit which the testator intended to grant.  This has been labelled the “third-party beneficiary rule”.

The leading case is the House of Lords decision in White v. Jones [1995] 1 All E.R. 691 at 698-99 in which the court found a testator’s solicitor liable to an intended beneficiary for negligently failing to have the testator’s new will prepared and executed before the testator died.

Thus the only duty of care owed to an identified third-party beneficiary is where the will drafter owes a duty to the third-party beneficiary as well as the client, to use proper care and diligence in carrying out the client’s instructions for conferring the benefit on the third party.

In the Graham case the Alberta Court of Appeal held that the will drafter’s primary duty was to carry out the intentions of the testator, after being satisfied that the testator had testamentary capacity and recording his or her observations in that regard, so that the testator’s will would subsequently be admitted to probate.

The will drafter’s duty to ensure testamentary capacity coincides with the duty to ensure that the will accurately reflects the testator’s wishes.  A will drafter could never owe an intended beneficiary a duty of care that is inconsistent with his or her duty to the client. (Hall v. Bennett Estate (2003), 227 D.L.R. (4th) 263 (ONCA).

The imposition of a duty to beneficiaries under a previous will would create inevitable conflicts of interest for a will drafter that would be contrary to public policy.  A will-drafting solicitor or notary cannot have a duty to follow the instructions of his or her client to prepare a new will and, at the same time, have a duty to beneficiaries under previous wills whose interests are likely to be affected by the new will.

The BC Court of Appeal decision of Johnston v. Johnston Estate 2017 BCCA 59 followed the reasoning of both the Graham and Sanguinetti decisions in disallowing the claims of children who inherited under their father’s 2007 will that was modified against their interests by a 2012 will and a codicil thereto.

The testator’s children had been heirs under the 2007 will but were disinherited under the subsequent will, in which the testator left his entire estate to his new wife.

At trial the court struck out that portion of the plaintiff’s claim that alleged that the drafting lawyer owed the children a duty of care as beneficiaries under the 2007 will to, in effect, not carry out their father’s instructions to prepare a new will in terms inconsistent with the provisions of the 2007 will, finding that such claim was doomed to fail.  The Court of Appeal upheld that decision.

Therefore, the only duty a will drafter has to beneficiaries is to carry out the instructions of the will maker in a competent and timely manner.

Non Binding (Precatory) Words In Will Not a Trust

Non Binding (Precatory) Words In Will Not a Trust

Non Binding (Precatory)  words in a will were found not to create a trust that was legally binding on the trustee, but instead that the words were non binding ( precatory) and thus only morally binding an thus an outright bequest.

Killam v Killam 2017 BCSC 175  contains an exhaustive review of the rules of construction in deciding whether the following provision of a will creates a trust that is legally binding to use for the bequest for the health, support and maintenance” of the beneficiary, or whether the words “ it is my desire but I do not direct “are merely morally binding ( precatory) and not legally binding:

The provision in dispute is worded differently than those concerning the other relatives. It reads:

Provided HUMPHREY HUBBARD KILLAM should survive me, then in such event I give and bequeath ONE (1) SHARE to EUGENE HUMPHREY KILLAM, provided, should he predecease me, then to LAWRENCE HEBB KILLAM. It is my desire, however, I do not direct, that said share shall be used for the health, support and maintenance of HUMPHREY HUBBARD KILLAM, for as long as he should live or as long as said funds are available for such purpose.

After an exhaustive review of the rules of construction of the court concluded that the words do not form a trust for the beneficiary and instead is an outright bequest.

Precatory Language

63      Professor Waters, in his authoritative work, Waters’ Law of Trusts in Canada, 4th ed. (Toronto, Ont.: Carswell, 2012), provides an interesting historical context to what some have referred to as “precatory trusts”. He notes, first of all, that the prime question of whether a trust has been created is still one of construction (at 145):

The question which gives rise to most litigation is whether a testator intends to create a trust, or merely impose some kind of moral obligation upon the legatee when he bequeaths personalty or devises land in confidence that the legatee will use the property in certain ways. He may speak, for instance, of his “expectation”, “fervent wish”, “desire”, “firm belief” or “purpose” that this will be done. Such words may give rise to what has been called “a precatory trust”, though, as Rigby L.J. pointed out in the English Court of Appeal, and his words have been echoed in Canada, this title is awkward and incorrect; “a misleading nickname”. If language, once construed, is held to intend a trust, then whether the language is precatory or otherwise, the trust which is thereby set up is the same as any other express trust, and no different rules apply.

64      There was a profound shift in the judicial approach to these sorts of cases starting in the nineteenth century, caused by an English statutory change (at 145 – 147):

Prior to the latter half of the nineteenth century the courts bent over backwards to find that testamentary language of a precatory kind revealed the intention to transfer on trust. By imposing a binding obligation upon the recipient of the property, the wishes of the testator were held to be safeguarded, concerning those who were to benefit from his property. Moreover, before 1830, the executor in English law took the residue of the estate beneficially, if it were not otherwise disposed of; and where it was incumbent upon the executor to respect only the wishes, hopes, desires, and belief of the testator that others would be benefited, the temptation of the executor to ignore those moral obligations was considerable. Then, in 1830, that right of the executor was statutorily taken away, and thereafter, the pace picking up after 1870, the courts became gradually less inclined to discover trust intention in mere precatory words. It is generally agreed that the climate of judicial attitude changed noticeably with the case of Lambe v. Eames and Canadian courts have joined in this new attitude. In 1889, in Bank of Montreal v. Bower, Chancellor Boyd of the Ontario High Court Chancery Division stated:

It would be an otiose undertaking to go through all the cases, for they are numerous, and cannot be reconciled. But since Lambe v. Eames . . . . there has been a new departure in favour of confining language supposed to create a trust for the children [of the testator and the widow] within much narrower limits, than in some of the earlier cases. If the entire interest in the subject of the gift is given with superadded words expressing the nature of the gift, or the confident expectation that the subject will be applied for the benefit of particular persons, but without . . . terms cutting down the interest before given, it will not now be held . . . that a trust has been thereby created.

And in Johnson v. Farney, Meredith C.J.O. adopted the view of Cozens-Hardy M.R. in the leading English case of Re Atkinson that every care has to be taken not to make mandatory words from those which are the mere indication of a wish or request, and that to construe the true intention of the testator, the courts must examine the trust instrument as a whole and not be mesmerised by particular words. Earlier, in Renehan v. Malone, this same view had been expressed by Barker J. On many occasions, Trench v. Hamilton has been approved in Canadian courts. In that case, Lindley L.J. pointed out that the meaning which a court derives must prevail even if judges in the past have drawn different conclusions from more or less similar language.

65      Professor Waters concludes as follows (at 147):

Whether a trust has been created is simply a matter of construction; this principle has not changed. What has changed is the tendency found in the earlier cases to discover imperative meaning in various word formulae, like “wish and direction” or “trusting that” and expressions of that nature.

BC Wills Variation: Severance of Court Actions

Severance of Court Actions Upheld On Appeal

The Court of Appeal in Johnston v Johnston Estate 2017 BCCA 59 upheld the trial decision found at 2016 BCSC 1388 where an action seeking that a will was invalid, or alternatively if it was valid it should be varied under the wills variation provisions , should be severed into two court actions, with the validity of the will to be determined firstly.

The Appeal Court expanded upon the reasons of the trial judge in  ordering a severance of the two claims as follows:

A discretionary decision of a lower court will be reversible where that court misdirected itself or came to a decision that is so clearly wrong that it amounts to an injustice: Elsom v. Elsom, [1989] 1 S.C.R. 1367, at p. 1375. Reversing a lower court’s discretionary decision is also appropriate where the lower court gives no or insufficient weight to relevant considerations: Friends of the Oldman River Society v. Canada . . . [At para. 27.]

(See also: Rise & Shine Grocery & Gas Ltd. v. Novak, 2016 BCCA 483 at paras. 36 — 37.)

43      The standard of review for discretionary decisions is one of deference.

44      As noted by the PGT, in addition to the court’s jurisdiction under Rule 22-5, it may temporarily stay a proceeding pursuant to its inherent jurisdiction or under s. 8(2) of the Law and Equity Act, R.S.B.C. 1996, c. 253, or both: Zurich Indemnity Co. of Canada v. Western Delta Lands Inc. (1997), 38 B.C.L.R. (3d) 273, 95 B.C.A.C. 165 at para. 14 (C.A.), leave to appeal to S.C.C. refused [1997] S.C.C.A. No. 469. In exercising its discretion to grant or deny a stay, the court must weigh the potential benefits and prejudice at play and fairly balance the parties’ competing interests.

45      The court’s jurisdiction under Rule 22-5, s. 8(2) of the Law and Equity Act, and its inherent jurisdiction are exceptions to the principle stated in s. 10 of the Law and Equity Act as to the general avoidance of multiplicity of legal proceedings “as far as possible”.

46      I would endorse the judge’s non-exclusive summary of the key considerations relevant to an application to sever and the general principles governing severance:

[68] The key factors engaged in a general sense on an application to sever were canvassed in Schaper v. Sears Canada, 2000 BCSC 1575[Schaper] at para. 19:

1. . . . the party making the request must show that hearing the claims together would unduly complicate, delay the hearing, or otherwise be inconvenient. If a party applying does not meet this threshold, the court need not go further in any analysis and the application should be dismissed.

2. Have the actions of any party in the proceeding been unreasonable and have they contributed to the complication, the delay, or the inconvenience alleged by the party applying? If this found [sic], that would strengthen the argument to sever.

3. Are the issues between the plaintiff and defendant and the issues between the defendant and the third party sufficiently distinct so as to allow them to be tried separately? If so, that strengthens the argument to sever off third party proceeding.

4. Is the relief claimed by, or the potential obligation of, any party best determined by hearing the evidence of all parties at one hearing? If so, that weakens an application to sever.

5. Does the prejudice to the party applying, prejudice based on undue complication, delay or inconvenience, outweigh any benefit of matters being heard together, or outweigh any considerations related to the overall objective of the rules to ensure a just, speedy and inexpensive determination of every proceeding on its merits, including the avoidance of a multiplicity of proceedings for the benefits of litigants and having concern to congestion in the courts generally?

[69] Guidelines that focused attention more keenly on the efficacy of the trial process were helpfully laid out in O’Mara v. Son, Kim et al., 2007 BCSC 871[O’Mara] at para. 23:

1. whether the order sought will create a saving in pre-trial procedures;

2. whether there will be a real reduction in the number of trial days taken up by the trial being heard at the same trial;

3. whether a party may be seriously inconvenienced by being required to attend a trial in which the party may have a marginal interest;

4. whether there will be a real saving in expert’s time and witness fees;

5. whether one of the actions is at a more advanced stage than the other;

6. whether the order sought will result in delay of the trial of any one of the actions and, if so, whether any prejudice which a party might suffer as a result of that delay outweighs the potential benefits which a consolidated trial might otherwise have;

7. the possibility of inconsistent findings and common issues resulting from separate trials.

[70] Severance may well be appropriate where the determination of one issue will render another one moot: Lawrence v. ICBC, 2001 BCSC 1530[Lawrence].

[71] The judicial discretion to sever trials or hearings is to be exercised sparingly: Morrison Knudsen Co. v. British Columbia Hydro & Power Authority, 1972 CarswellBC 62, 24 D.L.R. (3d) 579 (S.C.); Lawrence at para. 43. The test for severance is not applied in a vacuum; it is to be considered against the backdrop of the nature of the particular case at hand: Wirtz v. Constantini, 137 D.L.R. (3d) 393, 1982 CarswellBC 588 (S.C.). Because the determination involves an individualized assessment of the unique case before the Court, there is no closed list of uniformly applied considerations that inform the exercise of the Court’s discretion.

47      The judge also identified specific principles relevant to the nature of the case before her. In particular, she recognized limitations on the powers of a committee and on the nature of claims that can properly be included in a counterclaim to a proof of will in solemn form proceeding. Citing Re: Langford and The Patients Property Act, 2000 BCSC 721, she said:

[77] There is no question but that as the executor named in the Impugned Wills, the PGT is entitled to bring the Proof of Will Action. On the surface, s. 24 of the PPA suggests that in its capacity as committee of Norman’s estate, the PGT would have the authority to defend against the other claims. However, in Re: Langford and The Patients Property Act, 2000 BCSC 721 [Re: Langford], the Court reasoned that the legislature could not have intended to invest a committee with all of the powers of an executor or administrator such as obtaining title to the deceased’s assets or winding up and distributing the estate of the deceased patient. It held that because s. 24 expressly contemplates that probate or administration will be taken out after a patient’s death, it is intended to be operative only in the intervening period. In the result, Re: Langford held that s. 24 simply authorizes a committee of a deceased patient to maintain the status quo of the deceased patient’s estate during the hiatus period pending the issuance of letters probate or administration.

And as to Clark v. Nash, [1986] B.C.J. No. 1655, 39 A.C.W.S. (2d) 375 (S.C.), aff’d [1987] B.C.J. No. 304, 3 A.C.W.S. (3d) 412 (C.A.), the judge reasoned:

[83] . . . there is case authority that has placed some limitation on the nature of claims that can properly be included in a counterclaim to a proof of will in solemn form proceeding. In Clark v. Nash, [1986] B.C.J. No. 1655 (S.C.) aff’d [1987] B.C.J. No. 304 (C.A.) [Clark], the Court held that the procedure and hearing involved in a proof of will in solemn form proceeding should be limited to the aspects of the will execution, testamentary capacity, want of knowledge and fraud. The Court reasoned that a counterclaim to vary a will that is alleged to be invalid is therefore premature, and hearing it at the same time or before the action involving the proof of the challenged will is neither just nor convenient

[84] Since its pronouncement, Clark has stood for the general proposition that it is improper to include a wills variation claim in an action for proof of will in solemn form on the footing that a valid will is a condition precedent to a variation proceeding. Although I believe that, on occasion, this Court has heard such claims together (presumably without being taken to Clark), Clark nonetheless strengthens the application to sever, at least vis-a-vis David’s claim to have the Impugned Wills varied.

“Adopted Out” Child Cannot Contest Biological Parent’s Estate Under Wills Variation

"Adopted Out" Child Cannot Contest Biological Parent's Estate Under Wills Variation

Boer v Mikaloff Estate 2017 BCSC 21 confirmed that an “adopted out” child cannot contest the will of the biological parent’s estate under S.60 WESA (the wills variation provision) when it answered the following posed question negatively:

Does a child who is adopted by other parents after birth, but who is named as a beneficiary under his birth mother’s will, have standing to seek relief under section 60 of the Wills, Estate and Succession Act, S.B.C. 2009, c. 13?

4      For the reasons that follow, the answer to the question is no. The plaintiff’s claim will be dismissed.

RELEVANT STATUTORY PROVISIONS

6      The relevant statutory provisions are ss. 37(1) and (5) of the Adoption Act, R.S.B.C. 1996, c. 5, the definition of “enactment” in s. 1 of the Interpretation Act, R.S.B.C. 1996, c. 238 and s. 3 and s. 60 of WESA.

7      Subsections 37(1) and (5) of the Adoption Act read:

37 (1) When an adoption order is made,

(a) the child becomes the child of the adoptive parent,

(b) the adoptive parent becomes the parent of the child, and

(c) the parents cease to have any parental rights or obligations with respect to the child, except a parent who remains under subsection (2) a parent jointly with the adoptive parent.

. . .

(5) The family relationships of one person to another are to be determined in accordance with this section, unless this or another enactment specifically otherwise provides or distinguishes between persons related by birth and persons related by adoption.

8      Section 1 of the Interpretation Act defines “enactment”:

In this Act, or in an enactment: . . .

“enactment” means an Act or a regulation or a portion of an Act or regulation;

9      Sections 3 and 60 of WESA read:

3 (0.1) In this section, “pre-adoption parent” means a person who, before the adoption of a child, was the child’s parent.

(1) Subject to this section, if the relationship of parent and child arising from the adoption of a child must be established at any generation in order to determine succession under this Act, the relationship is to be determined in accordance with the Adoption Act respecting the effect of adoption.

(2) Subject to subsection (3), if a child is adopted,

(a) the child is not entitled to the estate of his or her pre-adoption parent except through the will of the pre-adoption parent, and

(b) a pre-adoption parent of the child is not entitled to the estate of the child except through the will of the child.

(3) Adoption of a child by the spouse of a pre-adoption parent does not terminate the relationship of parent and child between the child and the pre-adoption parent for purposes of succession under this Act.

ANALYSIS

17      Section 60 of WESA requires a will-maker to make adequate provision for the proper maintenance and support for the will-maker’s spouse and children that is adequate, just and equitable in the circumstances.

18      A “will-maker” is defined as “a person who makes a will”: s.1 of WESA.

19      A “spouse” is specifically defined for the purposes of WESA: ss. 1 and 2.

20      WESA does not define “child” or “children”.

21      Subsection 37(1) of the Adoption Act provides that when an adoption order is made, “the child becomes the child of the adoptive parent” and “the adoptive parent becomes the parent of the child”. Section 1 of the Adoption Act defines a “child” as “an unmarried person under 19 years of age”.

22      Our Court of Appeal in Clayton v. Markolefas, 2002 BCCA 435, addressed whether an adopted child was “issue” of her birth father enabling her to be entitled to a portion of her birth father’s intestate estate. The Court considered in detail, s. 37 of the Adoption Act as it then read. For the purpose of the case at bar, the changes to s. 37 of the Adoption Act at the time of Clayton and now are not significant.

23      Justice Esson (as he then was), stated:

[6] . . . — It will be seen that s. 37(1) [Adoption Act] retains the concept that upon the making of the adoption order the child becomes the child of the adoptive parent and the adoptive parent becomes the parent of that child. It goes on to provide, subject to an exception which has no application here, that the birth parents cease to have any parental rights or obligations with respect to the child.

[7] Section 37(1)(c) is, in my view, all-important in relation to the present issue. Because the birth parents cease to have any parental rights or obligations, it must follow that the child ceases to have any rights against the birth parents other than those defined in s. 37(6), i.e., rights which vested in the child before the date of the adoption order. The existence of s. 37(6) is inconsistent with a legislative intention to allow other rights of the child against the birth parent to survive the adoption order.

[8] Section 37(6) [should read 37(5)] of the new Act, which provides that the family relationships of one person to another are to be determined in accordance with s.37, also has a clear bearing on the present issue. The question whether a person is “issue” of another person is a matter of family relationships. The clear effect of s.37(1) is that the adoptive child becomes the child of the adoptive parent. From that it follows that all parental obligations fall upon the adoptive parents. It can therefore be said of the present provisions, as Seaton J.A. said of s. 11 of the former Act:

The thrust of these provisions is to move the child from one family to another family and make it a child of the new family and no longer a child of the old family.

Amending Court Pleadings

Amending Court Pleadings

Russell Estate v Larson 2017 BCSC 113 contains a good summary of the law relating to amending court pleadings.

Pleadings are very important in litigation so as to give a concise definition of the issues to be tried and to allow the opposing party to have fair notice of the case against them to be met.

29      The applicants referred to the decision of British Columbia (Director of Civil Forfeiture) v. Violette, 2015 BCSC 1372in support of the application. In that case, the court considered the principles to be considered on an application to amend pleadings and noted:

[39] In Mayer v. Mayer, 2012 BCCA 77 at para. 215, the Court of Appeal affirmed that the fundamental purpose of pleadings is to define the issues to be tried with clarity and precision, to give the opposing parties fair notice of the case to be met, and to enable all parties to take effective steps for pre-trial preparation.

[40] Applications for leave to amend pleadings are considered on the same basis as applications to strike pleadings with the question being whether it is plain and obvious that the proposed amendments are bound to fail. In assessing that question, it is not determinative that the law has not yet recognized a particular claim. In its analysis, the court must be generous and err on the side of permitting an arguable claim to proceed to trial. See: McMillan v. McMillan, 2014 BCSC 546 at paras. 13-14, and cases cited therein.

[41] In Peterson v. 446690 B.C. Ltd., 2014 BCSC 1531 at para.37, this Court summarized the general principles arising on an application to amend pleadings as follows:

[37] Finally, the general principles arising on an application to amend pleading can be summarized as follows:

(a) Amendment to pleadings ought to be allowed unless pleadings fail to disclose a cause of action or defence: McNaughton v. Baker, [1988] 24 B.C.L.R. (2nd) 17 [(C.A.)].

(b) Amendments are usually permitted to determine the issues between the parties and ought to be allowed unless it would cause prejudice to party’s ability to defend an action: Levi v. Petaquilla Minerals Ltd., 2012 BCSC 776).

(c) The party resisting an amendment must prove prejudice to preclude an amendment, and mere, potential prejudice is insufficient to preclude an amendment: Jones v. Lululemon Athletica Inc., 2008 BCSC 719.

(d) Costs are the general means of protecting against prejudice unless it would be a wholly inadequate remedy.

(e) Courts should only disallow an amendment as a last resort: Jones, McNaughton, Innoventure S& K Holdings Ltd. et al. v. Innoventure (Tri-Cities) Holdings Ltd. et al., 2006 BCSC 1567.

30      Here, in my view, the question turns on prejudice. The position of the plaintiff that the new pleadings will raise matters going back 30 years raises no new prejudice. The entire action stems from matters going back 30 years.

31      The other prejudice argued is the potential expiry of the limitation period, the proximity of the trial date and the potential that the trial date will be lost and the fact that document discovery and examinations for discovery have been conducted on the basis of the amended counterclaim.

BC Wills Variation: Executor Added After Expiration of Limitation Date

Executor Added After Expiration of Wills Variation Limitation
 Under the provisions of section 60 WESA, an action under the wills variation provisions must be commenced within 180 days of the grant of probate or the action is statute barred.
In the 1987 decision Cowan v Cowan 17 BCLR ( 2d) 114, the plaintiff commenced an action (by an endorsed writ that existed then but no longer exists), under what was then known as the Wills Variation act, naming the defendant as a beneficiary but failing to name the executor as required by the rules of court.
The court ordered that the executor may be named as a party, despite the fact that the expiration of the limitation period under the wills variation act had expired, holding that the defect amounted only to an irregularity and not a nullity.
The court added the executor as a proper party to the action pursuant to what was then Rule 15(5) (A) (11) and section 4( (1) (A) of the Limitation act, which required that the new party be connected with the subject matter of the original action.
The court found that there was no prejudice to the executor, since he had in fact been served with the cause of action in his capacity as a beneficiary within the 180 day limitation, and the plaintiff had attempted to add the executor as a party in a timely fashion.
The court held that rule 8 (14) meant that all beneficiaries as well as the executor must be named as parties to the proceeding, and where such an individual as an executor is a party to an action in a representative capacity, that capacity should appear in the style of cause. If it is not, then the writ is a regular Raj Kour v Chan (1958) 27 WWR 191 AT 192.

The plaintiff must show that:

1) the person ought to of the named as a party, or b) the parties participation in the proceeding is necessary to ensure that all matters in the proceeding may be effectually adjudicated upon (Ent.. Realty v  Barnes Lake Cattle  Co. (1979) 13 BCLR 293 ( CA).
The court provided the following reasons for concluding that in these particular circumstances that the executor could be added as a party, despite the fact the   180 day limitation period ( then 6 months)  had expired:

20 (a) by R. 8(14) he must be a party;

21 (b) the Wills Variation Act claim was begun within the six-month period;

22 (c) the executor, while not named, was in fact served with the writ;

23 (d) it is clear from the endorsement that the claim is under the Wills Variation Act — not a personal claim against Mr. Cowan;

24 (e) there can be no prejudice to the defendant/beneficiary or executor in this case. There can be no more difficulty with old witnesses and poor memories than if the executor were named in the original writ;

25 (f) the purpose of limitation period under the Wills Variation Act is to enable the executor to distribute funds without fear of a claim being advanced after six months. In this case the beneficiary/executor was served with the writ within six months and there has been no prejudice in that regard;

26 (g) the position of executor, in a Wills Variation Act claim, is one of neutrality. He is to assist the court: Re McCarthy, [1919] N.Z.L.R. 807 (S.C.); Cookv. Webb, [1918] N.Z.L.R. 664. Thus his addition is not prejudicial;

27 (h) refusing to add the executor would not be in accordance with R. 2(1), which states that failure to comply with the rules (R. 8(14)) should be treated as an irregularity not a nullity.

Damage Assessments on Appeal

Damage Assessments on Appeal

“An appellate court will not interfere with a trial judge’s assessment of damages unless he or she erred in principle of law, misapprehended the evidence, failed to consider relevant factors or considered irrelevant factors, or there was no evidence on which the judge could have reached his or her conclusion: Naylor Group Inc. v. Ellis-Don Construction Ltd., 2001 SCC 58 at para. 80.  

An award is inordinately low if it falls substantially below the range for damage awards in the same class of case, such that it demonstrates palpable and overriding error: Cory v. Marsh (1993), 77 B.C.L.R. (2d) 248 (C.A.); Le v. Luz, 2003 BCCA 640.”

As stated by the Supreme Court of Canada in the Naylor Group v Ellis-Don case stated:

It is common ground that the Court of Appeal was not entitled to substitute its own view of a proper award unless it could be shown that the trial judge had made an error of principle of law, or misapprehended the evidence (Lang v. Pollard, [1957] S.C.R. 858, at p. 862), or it could be shown there was no evidence on which the trial judge could have reached his or her conclusion (Woelk v. Halvorson, [1980] 2 S.C.R. 430, at p. 435), or the trial judge failed to consider relevant factors in the assessment of damages, or considered irrelevant factors, or otherwise, in the result, made “a palpably incorrect” or “wholly erroneous” assessment of the damages (Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, at p. 235; Laurentide Motels Ltd. v. Beauport (City), [1989] 1 S.C.R. 705, at p. 810; Widrig v. Strazer, [1964] S.C.R. 376, at pp. 388-89; Woelk, supra, at pp. 435-37; Waddams, supra, at para. 13.420; and H. D. Pitch and R. M. Snyder, Damages for Breach of Contract (2nd ed. 1989) 15§5).  Where one or more of these conditions are met, however, the appellate court is obliged to interfere. 

The Court’s Power to Conrol Itself (Vexatious Litigants)

Vexatious LitigantsSemenoff Estate v Semenoff 2017 BCCA 17 involved the Appeal Court reviewing the power of the court to control it’s own conduct and that of  vexatious litigants appearing in court.

The case arose from an appeal of 30 issues from a summary judgement hearing  and it was argued that the appellant should be declared a vexatious litigant.

 

The Court stated:

The summary trial judge had the power to make the vexatious litigant order pursuant to s. 18 of the Supreme Court Act, R.S.B.C. 1996, c. 443, which provides:

If, on application by any person, the court is satisfied that a person has habitually, persistently and without reasonable grounds, instituted vexatious legal proceedings in the Supreme Court or in the Provincial Court against the same or different persons, the court may, after hearing that person or giving him or her an opportunity to be heard, order that a legal proceeding must not, without leave of the court, be instituted by that person in any court.

 

31      Section 18 confers a broad jurisdiction on the court to control its own process. This Court described the purpose of the provision as follows in S.(M.) v. S.(P.I.) (1998), 60 B.C.L.R. (3d) 232 (B.C.C.A.) at para. 13:

Section 18 of the Supreme Court Act has been in the Act for a great many years. The section gives the court the needed ability to control its own process. It enables the court to put in place an order to prevent a citizen or citizens from being subjected to an endless blizzard of litigation. . . . It is obviously of the utmost importance that there be unfettered access to the courts by citizens but I should think that a corollary of that is that continuing abuse of this most valuable and deeply enshrined democratic right should be dealt with decisively to preserve the rights of all. There is a right to invoke the jurisdiction of the Supreme Court but it is not a right that is without limit. In my opinion, s. 18 of the Supreme Court Act affords to judges of the Supreme Court the authority to order in proper cases that a persistent litigant must seek leave before being able to launch court proceedings. It is a necessary power to ensure the proper administration of justice.