Video Evidence Is Admissible

In the past several years there has been a great increase in the receipt and admissibility of video evidence in civil litigation, as the necessary technology has improved and become ubiquitous.

During the COVID-19 pandemic, video evidence is commonplace. It is not confined to witnesses testifying to routine or inconsequential matters. It is almost always tendered by consent.

Judges have become accustomed to assessing the credibility and reliability of evidence given by a witness seen only on a video screen. Early concerns have been allayed, at least to some extent, by experience.

Section 73(2) of the Evidence Act authorizes the receipt of testimony by any “technology that allows the court, the parties and the witness to engage in simultaneous visual and oral communication”.

I will call this “video evidence”. The court may exercise a discretion to permit video evidence, where the necessary technology is available, unless “one of the parties satisfies the court that receiving the testimony in that manner would be contrary to the principles of fundamental justice”.

If there is an objection, subsection (3) lists the following factors for consideration in deciding whether to allow video evidence:

(a) the location and personal circumstances of the witness;
(b) the costs that would be incurred if the witness had to be physically present;
(c) the nature of the evidence the witness is expected to give;
(d) any other circumstance the court considers appropriate.

Kasatani v Matsubara 2020 BCSC1960 referred to the following cases addressing the exercise of the court’s discretion under s. 72(3):

• Nybo v. Kralj, 2010 BCSC 674at paras. 8 — 12;
• Slaughter v. Sluys, 2010 BCSC 1576at paras. 7 — 12;
• Seder v. Insurance Corporation of British Columbia, 2011 BCSC 823at paras. 26 — 37;
• Miley v. Abulaban, 2014 BCSC 1905at paras. 6 — 17;
• Grahovac v. Hartfiel, 2015 BCSC 1142at paras. 34 — 73; and
• Singh v. Chad, 2018 BCSC 1860at paras. 89 — 93.

In none of these cases did an objecting party satisfy the court that allowing video evidence would, in the circumstances of that case, be contrary to the principles of fundamental justice.

Slaughter is the only one of these cases in which video evidence was not allowed, and it was a split decision in that Justice Beames exercised her discretion to permit video evidence in respect of some witnesses, but not others. At para. 10, she rejected an argument that proper and full cross-examination cannot take place where witnesses appear by video. In exercising her discretion, she took into account the extent to which the evidence would be contentious.

Mutual Wills Are Problematic

Although rare, mutual wills are extremely problematic in estate matters in that typically, a married couple, both sign the same will which in effect creates a binding contract on each other not to change the contents of the will, without the express permission of the other party. A breach of this can give rise to a claim of constructive trust.

As such mutual wills ( as opposed to mirror wills that most couples get where they each have their own will) should be avoided.

Most of the cases define a mutual will as an agreement not to revoke the will, as opposed to alter the will, as is our case. The word alter is defined in Black’s dictionary as to modify or vary in some degree. The word revoke means to destroy or make void an act or document. I note however that in Williams, Wills (1980) stated under agreements relating to mutual wills-” such agreements vary according to the circumstances of particular cases and the wishes of the parties. The wills may be executed upon an agreement that they shall not be revoked or altered”- The case law also states that there must be clear and unequivocal evidence of an agreement not to revoke the wills.

The use of the word alter, as opposed to revoke may possibly affect the outcome, but given that equitable principles are involved, it is unlikely. Re Kerr (1948) 3 DLR 668 is one of the leading cases and states that regardless of its precise terms, a joint will may be evidence of a contract not to revoke.

There is a maxim that equity looks on that as done which ought to have been done, or which has been agreed or directed to be done.

The meaning of this maxim is that equity will treat the subject matter of a contract, as to its consequences and incidents, in the same manner as if the act contemplated by the parties had been completely executed and will act in favor of those persons entitled to the performance of the contract so that no party to the agreement shall suffer from the delay and laches of the defaulter.

Equity has even imposed a constructive trust where the husband and wife agreed not to revoke their mutual wills, even though the surviving spouse died leaving assets only in joint tenancy and not in his estate (Sanderson v University of Manitoba BCCA (1998) 7 WWR 83 ). In other words, it was not dependent on leaving assets in the estate for a constructive trust to be imposed. Sanderson discusses how equity considers it a fraud upon the deceased, who has acted upon and relied upon the mutually binding nature of the agreement, for the survivor to change the will and break the agreement. As the deceased cannot intervene to enforce the obligation, equity will enforce the survivor’s obligation despite the survivor’s subsequent intentions.”

There is a question as to when the law will impose a constructive trust and what property becomes subject to the trust- is it that the date the agreement was signed, the date that the first party dies, or the date that the surviving spouse dies. Donovan Waters cites the decision of Dufour v Pereira (1769) 1 Dick,419 and states that “when the first testator dies, the contract is executed and the court will not permit the survivor to break the contract.”

The decision of Birmingham v. Renfrew (1937) 57 CLR 666 at 689 discusses the situation where the surviving spouse is enabled during his lifetime to deal as absolute owner of the property passing under the will of the party first dying, and to enjoy for his own benefit the full ownership, so that he may convert and expand the proceeds, if he chooses. But when he dies he is to bequeath what is left in his estate in the manner agreed upon. This leaves the question open as to whether the survivor can defeat the purpose of the agreement by making inter vivos dispositions while alive and only leave any residue of his estate to the beneficiaries of the mutual will.

Birmingham v Renfrew is an Australian case, and it may well be that equity will not allow a deed all of the subject property to his daughter so as to defeat the equities of the mutual will.

Re Kerr (1948) 3 DLR 668 states at paragraph 24 that Dufour v Pereira was distinguished In re Oldham: Haldwen v Myles (1925( CH 75. The real point of distinction is to be found in the judgment of Astbury J. At the. 88, where he states:

“Firstly, I think a very great difference between Dufour v Periera and the present case is that in Dufour, the capital of the trust property was secured in fact by the life interest only been given to the survivor, whereas in the present case, the survivor is s. given the whole estate absolutely, and could, if so minded, dispose of the whole property inter vivos.”

At paragraph 25, the court continues ” It should also be mentioned that in RE Oldham : Hadwen v Myles there were two separate documents and the mutual wills were not embodied in the one instrument, as in the case at bar.

The majority of the Supreme court of Canada In Pratt v Johnson (1959) SCR 102 agreed that the surviving spouse can do as he or she pleased with the property during their lifetime, but must dispose by will of what remained by the terms of the agreement. The court found that there was an agreement not to revoke the will, but then said that it was not a matter of the construction of the joint will, but of the effect of the agreement. Their interpretation was that the wife was bound by the agreement to leave whatever property she still held at the time of her death to the joint will remaindermen.

Privilege In Lawyer Communications

Privilege in lawyer communications, including without prejudice offers, can be a somewhat complex legal issue on occasion and this blog is a brief overview of the topic.

Middlecamp v Fraser Valley Real Estate Board 1992 CarswellBC267 ( BCCA) cited R. v. Fosty (1991) SCR 263 wherein the Supreme Court of Canada described the two principal kinds of privilege. At p. 303 :

1) Public Policy

… The first four terms are used to refer to a privilege which was recognized at common law and one for which there is a prima facie presumption of inadmissibility (once it has been established that the relationship fits within the class) unless the party urging admission can show why the communications should not be privileged (i.e., why they should be admitted into evidence as an exception to the general rule). Such communications are excluded not because the evidence is not relevant, but rather because there are overriding policy reasons to exclude this relevant evidence. Solicitor-client communications appear to fall within this first category: see Geffen v. Goodman Estate (1991), 81 D.L.R. (4th) 211, 80 Alta. L.R. (2d) 293, 127 N.R. 241 (S.C.C.); R. v. Solosky (1979), 50 C.C.C. (2d) 495, 105 D.L.R. (3d) 745, [1980] 1 S.C.R. 821.

 

2) The term “case-by-case” privilege is used to refer to communications for which there is a prima facie assumption that they are not privileged (i.e., are admissible).

The case-by-case analysis has generally involved an application of the “Wigmore test” (see above), which is a set of criteria for determining whether communications should be privileged (and therefore not admitted) in particular cases. In other words, the case-by-case analysis requires that the policy reasons for excluding otherwise relevant evidence be weighed in each particular case.

 

Wigmore’s four tests are the standard by which case-by-case privilege will be measured.

They are found in the McNaughton revision (1961), vol. 8, p. 257, para. 2285, as follows:

(1) The communications must originate in a confidence that they will not be disclosed.
(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
(3) The relation must be one which in the opinion of the community ought to be sedulously fostered.
Without Prejudice Communications
(4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

 

Without Prejudice


The public interest in the settlement of disputes generally requires “without prejudice” documents created for or communicated in the course of settlement negotiations to be privileged. It is a “blanket,” “prima facie,” “common law” or “class” privilege because it arises from settlement negotiations and protects the class of communications exchanged in the course of that worthwhile endeavour.

Belanger v. Gilbert (1984), 14 D.L.R. (4th) 428 (B.C. C.A) held that just because a document is marked without prejudice does not mean that is privileged.

in Schetky v. Cochrane et al., [1918] 1 W.W.R. 821, 24 B.C.R. 496, and the judgment of Mr. Justice Martin at p. 827. On that page Mr. Justice Martin referred to the case of Re Daintrey, Ex p. Holt, [1893] 2 Q.B. 116, in which he said:

… it was held that an admission of bankruptcy may be proved in a letter from the debtor to the creditor, though marked “without prejudice” …

Before the privilege arises two conditions must exist,

(a) a dispute or negotiation between two or more parties; and

(b) in which terms are offered

Judicial Declarations/Declaratory Judgements

Declaratory Judgements/Judicial Declarations

Park v Mitchell 2020 BCSC 1147 provides guidance on the law relating to declaratory judgments, a.k.a. judicial declarations.

A judicial declaration is not like a tort where damages are the usual remedy, or a claim for breach of contract where specific performance may be the proper remedy.

A declaratory judgment has no similar common-law or equitable foundation, but instead bases its legal existence upon her role of the Supreme Court (Rule 5(22))

Once the court grants a declaration it is binding on those affected, but unlike a judgment finding a breach of contract and awarding the remedy of specific performance, the declaratory judgment merely declares and goes no further in providing relief to the applicant been stating his or her rights.

A declaration is both the decree that declares an infringement of a right and an order prescribing the remedy.

The granting of a declaration is at the court’s discretion where four criteria are met:

  1. the court has jurisdiction to hear the issue
  2. the dispute is real and not theoretical
  3. the party raising the issue has a genuine interest in its resolution, and
  4. the responding party has an interest in opposing the declaration being sought. Ewart v Canada 2018 SCC 30 at para.81

Where the factors are met, a court looks at the practical value of the declaration in assessing if it should exercise its discretion to grant such a remedy.

A declaration can only be granted if it will have “practical utility”, that is if it will settle a live controversy between the parties.

The court has also phrase the question is whether “a useful purpose would be served” by granting the order. Wakelam v Wyeth Consumer Healthcare 2014 BCCA 36 at para. 71

The Burden of Proof When Contesting Wills

The Burden of Proof When Contesting Wills

Leung v Leung 2013 BCSC 976 sets out a concise legal framework of the burden of proof when contesting wills.

  1. In an action for proof of will in solemn form, the party propounding the will must prove on a balance of probabilities that the will was executed in compliance with the statutory formalities, that the will maker knew and approved of the contents of the will, and that the will maker had testamentary capacity Vout v hay (1995) 2 SCR 876 at paras 19-20;
  2. In order to make a valid will, the will maker must have a baseline level of mental acuity or a disposing mind and memory, sufficient to appreciate and comprehend the nature and effect of the essential elements of the testamentary act. This encompasses an appreciation of the claims of the persons who are the natural objects of her or his estate and the extent of his or her property of which he or she is disposing. Lazlo v Lawton 2013 BCSC 305 at para. 185. The assessment of whether a will maker possesses testamentary capacity is a highly individualized inquiry and is a question of fact to be determined in all the circumstances James v Field 2001 BCCA 267 at para.51;
  3. In certain circumstances, the propounder of the will, in discharging the burden of proof, is aided by a rebuttable presumption of validity. If the will was duly executed in accordance with the requisite statutory formalities after being read over to, or by a testator who appeared to understand it, it is presumed the testator possess the requisite testamentary capacity and knew and approved of its contents Vout at para. 26;
  4. This presumption may be rebutted by evidence of well grounded suspicions, referred to in jurisprudence is suspicious circumstances, relating to one or more of the following circumstances
  5. Surrounding the preparation of the will;
  6. Tending to call in to question the capacity of the will maker; or
  7. Tending to show that the free will of the will maker was overborne by acts of coercion or fraud
  8. If suspicious circumstances are established, then the presumption is spent and the legal burden of proof reverts to the propounder of the will. The propounder of the will, then reassumes the legal burden of proving knowledge and approval, as well as proving testamentary capacity, if the suspicious circumstances reflect on the mental capacity of the will maker to make a will. Woodward v Grant 2007 BCSC 1192 at para.108. In order to discharge the burden, the propounder of the will is required to dispel the suspicious circumstances that have been raised. Ostrander v Black (1996) 12 ETR 219 at para. 20
  9. In Vout the court affirmed that if the court determines that suspicious circumstances exist, the applicable standard of proof is a balance of probabilities. However, the evidence must be scrutinized in accordance with the gravity of the suspicion raised in any particular case. In order to rebut the presumption of validity, those attacking the will must meet the threshold of demonstrating that there is some evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity Maddess v Racz 2009 BCCA 539 at para.31. The court in Scott v Cousins (2001) 37 ETR 113 describes the requisite evidence as that which excites that the suspicion of the court. The evidence must raise a specific and focus suspicion Clark v Nash (1989) 61 DLR 409 at 425 (BCCA)

The court in Laszlo provided the following instructive observations regarding the doctrine of suspicious circumstances at paragraph 207:

“Suspicious circumstances have been found to exist in a wide array of situations and are not necessarily sinister in nature. There is no checklist of circumstantial factors that will invariably fit. The classification. Commonly occurring themes include were beneficiaries instrumental in the preparation of the will(especially where the beneficiary stands in a fiduciary position to the testator), or where the will favor someone who is not previously been the object of the testator’s bounty and does not fall within the class of persons tested is usually remember in their wills, that is to say their next of kin”

Children Born After Death of the Testator

Children Born After Death of the Testator

I recalled learning “en ventre sa mere” in law school and recently had occasion to advise as to whether a great grandchild born after the death of the grandfather testator, would inherit as part of the class of great grandchildren, as the child is a fetus and will be born about 3 months after the death of the grandfather.

When a will states that an estate shall vest to “all great grandchildren or grandchildren living or alive at the time of the death of the testator”, that estate has been held to vest in a share of any fetus alive in the abdomen of the testator’s daughter, daughter-in-law or sister-in-law as the will may provide who is born alive and under WESA survives five days or more.

The common law has developed the concept of “ en ventre sa mere” as far back as 1795.

In Doe v Clarke 126 ER 617 (1765) the court considered a situation where the will left an equal inheritance to such child or children and should be living at the time of my decease, and held that a child that was born seven months after the death of the testator, and thus was en ventre sa mere, comes clearly within the description of children living at the time of my decease.

En ventre sa mere is known as a long-standing legal principle of fundamental importance, as was noted in the leading case Montréal Tramways Company v Leveille 1933 SCR 456 SCC ,that noted that the concept dated back to Roman times, and remains entrenched in civil law codes around the world to this day. It was acknowledged the principle of general application in the common law of England at least by 1748.

A more recent case in 1937 In re Sloan estate (1937) 3 WWR 455 stated that in construing a will by a parent, credit him or her with those feelings which we commonly believe should be the attribute of a parent, and endeavor to construe the will as if he or she were a just and fond parent. ( I submit grandparent would also apply)

The court followed Villar v Gilbey (1907 ) AC 139 stated the following principles re will construction and children born after death:

1) Words referring to children or issue born before, or living at or, as I think we must add, surviving a particular point of time or event will not in their ordinary or natural meaning include a child en ventre sa mere at the relevant date;

2) the ordinary or natural meaning of the words may be departed from, and a fictional construction applied to them so as to include therein en ventre sa mere at the relevant date and subsequently born alive if, but only if, such fictional construction will secure to such child, a benefit to which it would have been entitled if it had actually been born at the relevant date;

3) the only reason and the only justification for applying such a fictional construction is that, where a person makes a gift to a class of children or issue described as unborn before or living at or surviving a particular point of time or event, a child en ventre sa mere must necessarily be within the reason and motive of the gift.

Revocation of a Grant of Probate/Administration

Revocation of a Grant of Probate/Administration

The leading decision in British Columbia on the jurisdiction of a court to revoke a grant of administration or probate is Desbiens v Smith 2010 BCCA 394, which was referred to in Sung estate 2019 BCSC 1202.

In Desbiens the court set aside the grant of probate on the basis that the executor failed to comply with providing statutory notice to a person who had the right to bring a wills variation action.

The jurisdiction of the court to revoke a grant is quite broad, though is to be exercised sparingly and with restraint. Any failure on the part of an executor executrix to comply with statutory notice requirements merely opens the door to an application for revocation.

One of the questions that must be considered is whether the applicant’s claim has sufficient merit to warrant revocation of the grant.

Section 121 of WESA provides that an applicant for a grant of probate or administration must give notice of the proposed application to the persons referred to in the rules. Rule 25 –2(2) is the applicable rule.

The law and practice as to Probate, Administration and Guardianship 1880 by Alfred Howell sstates , at page 300 :

“A Surrogate court possesses, and when it becomes necessary, exercises the power of revoking or annulling for a just cause any grants which it is made; and in doing so, it only resumes into its own hands the powers which it parted with on false or inaccurate suggestions.”

Desbiens adopted the reasoning in Hanson v Rebagliati 1993 BCJ 78 which stated that whether revocation should be granted involves several questions that must be considered:

1. Are the plaintiffs correct in asserting that revocation would affect the limitation period for the bringing of the action under the wills variation act?

2. If so, with the result treat the plaintiffs unduly favourably?;

3. Is the plaintiff’s claim of sufficient merit to justify revocation of the grant?;

4. What would be the effect of revocation on transactions that have already taken place?;

5. Would third parties be prejudiced ?;

6. Would either of the parties suffer and equitable treatment if probate was revoked?.

S.58 WESA: “Whiteout” of Beneficiary Valid

S.58 WESA: "Whiteout" of Beneficiary Valid

Re Levesque Estate 2019 BCSC 927 dealt with a dispute where a portion of the deceased’s will was obscured with “whiteout”, resulting in the legal question of whether the words that were obscured by “whiteout” are deleted from the will, or still form part of the will.

After reviewing the facts and the law, the court concluded that the whiteout, referred to as the alteration, was a deliberate or fixed and final expression of the deceased’s intention to remove Mrs. Nixon, her granddaughter, from the will.

Giving effect to the deceased expressed intention, the court therefore found it appropriate to order that the alteration be made effective pursuant to section 58(3) WESA.

These cases are very fact dependent and the court, carefully reviewed the history of the interactions between the deceased and her immediate family, and in particular in Levesque and the granddaughter contesting the will, and the history of possession of the original will.

Alterations to a will are discussed in section 54.WESA.

Essentially, it requires that an alteration made after the will was executed must be signed of the wills maker whose signature must be witnessed by two witnesses, and each other’s presence and in the presence of the maker. These requirements may be avoided:

a) under section 54(4) (a) if the alteration is not substantial;
b) under section 54 (3) (a) if the alteration has made a word or provision illegible; or
c) under section 54(3) (b) if the alteration is made effective by an order pursuant to section 58.

The alteration in this case dealing with the white out of the beneficiary is substantial and accordingly S54 did not apply.

The courts followed a line of cases stating that to make a word or provision illegible, the words or provision in question must be impossible to read by ordinary inspection of the document, without chemical or other analysis. Re Springay Estate 1991 BCJ 984.

The court then recited the provisions of section 58 of WESA that allows a court to in effect cure deficiencies in a will, and followed the decision of Estate of Young, 2015 BC SC 182 which was approved by the Court of Appeal.

George v Daily (1997) 143 (4th) 273 was again followed by the BC courts at paragraph 35 “ in George 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 this disposal of the deceased 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 for the noncompliant document embodies the deceased testamentary intentions is a balance of probabilities. A wide range of factors may be relevant to establish in their existence in the particular case.

The court in Levesque found that the deceased, carefully dabbed whiteout over a provision in question, and did so undoubtedly with the considered in deliberate act on her part. She was applying the whiteout to the original will. It was not a casual act. The only reasonable inferences that are intention was to remove the provision from the will.

Testamentary Capacity: The Modern Restatement

Testamentary Capacity: The Modern Restatement

The modern restatement of the test for testamentary capacity means that the will maker is sufficiently clear in his/her understanding and memory to know, on his/her own, and in a general way:

1) The nature and extent of his property;
2) the persons who are the natural objects of his bounty and
3) the testamentary provisions he is making, and he must moreover, be capable of
4) appreciating these factors in relation to each other, and
5) forming an orderly desire as to the disposition of his property.

That summary of the five factors of testamentary capacity is from Re Schwartz (1970) can DLR 15(Ont.CA), at 32 where the court provided a modern restatement of the test for testamentary capacity from the seminal case of Banks v Goodfellow (1870) LR5 QB 549.

Re Schwartz in turn was adopted by the Supreme Court of British Columbia in the decision Lazlo v Lawton 2013 BCSC 305 .

Laszlo at paragraph 189 stated that timing is the key, with there being two relevant time factors:

1) The testator must have testamentary capacity when he or she give will instructions;
2) and must have testamentary capacity when the will is executed.

The court in Lazlo went on to recognize that faltering mental capacity is prone to fluctuate and that the authorities permit variation of the degree of capacity required at these pivotal times.

For example, when a testator is competent to provide will instructions, but is not competent at the time required to execute the will, the will may still be valid so long as at the time of execution, the testator was capable of comprehending that he or she was signing a will drawn in accordance with his or her previous instructions. Re Brownhill Estate (9186) 72 NSR (2d) 181

Assessing whether a will maker possesses testamentary capacity is a question of fact and is a highly individualized inquiry.

The will maker must have had the mental capacity to appreciate and comprehend the nature and effect of the essential elements of the testamentary act, including an appreciation of the claims of persons who are the natural objects of his or her estate, as well as an appreciation of the extent of the property to be disposed.

As the Laszlo decision stated at paragraph 242, the criteria requiring the will maker to understand the nature and extent of the property being disposed of as a common area of uncertainty ( the value of one’s estate). This has particularly been the case in areas like Vancouver where property values have dramatically increased for an elderly long time property owner to the point where they are almost unbelievable.

Courts Must Scrutinize Claims Against Estates

Courts Must Scrutinize Claims Against Estates

Wharton v McMinigal 2014 BCCA 434 is authority for the legal proposition that claims against deceased persons estates must be approached by the courts with the most careful scrutiny and indeed at the outset with some suspicion.

The defendant was the executor of the estate of her late husband. They had lived in a common-law relationship for 22 years and then separated.

Title to the matrimonial home had been in joint tenancy, but several years after separation the deceased severed the joint tenancy without the plaintiff’s knowledge.

The plaintiff asserted that she and the deceased had an agreement between themselves not to sever their joint tenancy.

The court held that the plaintiff had not proven, on the balance of probabilities, that there was such an agreement between herself and the deceased not to sever the joint tenancy.

In fact, the court stated that as an owner of one half interest in the property, the defendant had a prima facie right to partition the property and have it sold. The court in fact did order that the estate be partitioned and the net proceeds divided equally.

In finding that claims against deceased persons must be approached with the most careful scrutiny and indeed at the outset with some suspicion, the court followed two decisions by previous BC Supreme Court judges, namely:

Miller v Miller (1987) 14 BCLR 42 at paragraph 51

Miller was followed and quoted with approval in Fraik v Pilon 2012 BC SC 528 at paragraph 2