Category: Probate Litigation

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:

the court has jurisdiction to hear the issue
the dispute is real and not theoretical
the party raising the issue has a genuine interest in its resolution, and
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

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

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;
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;
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;
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
Surrounding the preparation of the will;
Tending to call in to question the capacity of the will maker; or
Tending to show that the free will of the will maker was overborne by acts of coercion or fraud
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
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”

contesting wills Suspicious Circumstances

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.

probate testator

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?.

grant

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.

probate

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.

Testamentary capacity

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

estate claims joint tenancies

What Makes It a Will?

Quinn Estate v Rydland 2019 BCCA 91 visited the old Chestnut Bennett v Toronto General Trusts to set out the bottom line of what makes a document a will.

Section 58 of WESA enables a court to give testamentary effect to documents that were intended to be testamentary. It does not enable a court to give testamentary effect to a document that the will maker never intended would be a will. It is clear on the evidence that the Trust was never intended by the Deceased to be a will, or a testamentary document of any kind.

69. The best evidence of whether a writing was intended to be a testamentary act is the document itself: Bennett v. Toronto General Trusts Corp., 9 D.L.R. (2d) 271 (MBCA) at 375, aff’d [1958] S.C.R. 392 [“Bennett’]. In that case the court of appeal gave significant weight to the fact that the letter in issue did not purport to be a will. Similarly, the Trust was and is a revocable, amendable inter vivos trust that reserved for the will maker the ability to change his testamentary dispositions at any time without complying with the formalities.

The facts in Bennett v Toronto General Trusts revolved around whether the following letter amounted to a halograph will or not.

The Court held that it did not- some of the case’s passages are :

There is no controversy, either in the reasons for judgment in the Courts below, or between the parties, that under the authorities, a holographic paper is not testamentary unless it contains a deliberate or fixed and final expression of intention as to the disposal of property upon death, and that it is incumbent upon the party setting up the paper as testamentary to show, by the contents of the paper itself or by extrinsic evidence, that the paper is of that character and nature: Whyte et al. v. Pollok2; Godman v. Godman3; Theakston v. Marson4.

6 Whether the letter of September 27, 1952, contains per se a deliberate or fixed and final expression of intention must be determined by the phrases immediately preceding and following the intermediate part of the letter where the wishes of Mrs. Gray are expressed; for, read as a whole, the letter has one single subject-matter, indicated as follows by Mrs. Gray: “I Promised to let you know how I would like my will to be made out.”

7 In the opening and closing phrases of the letter, Mrs. Gray conveys to Mr. Dysart sentiments of unreserved trust, reliance and dependence. Born, as admittedly shown by extrinsic evidence, out of an intimate relationship of many years between Mr. Dysart, on the one hand, and Mr. and Mrs. Gray and their children, on the other, these sentiments were those accompanying the mind of Mrs. Gray when, after expressing them, she wrote: “I will try to outline the way I would like to leave the little I have.” And having done so, she closed the letter by informing Mr. Dysart that she would be in Winnipeg in a few days and that she would call him.

8 I am unable to dismiss the view I formed that, read as a whole and according to its ordinary and natural sense, this letter amounts to nothing more than what is a preliminary to a will. While Mrs. Gray indicated to Mr. Dysart the legacies she then contemplated her will to contain, it is clear, in my view, that she did not want that letter to operate as a will. Indeed, by her letter, she is committing to future consultation with Mr. Dysart both the finality of her decisions, if not of her deliberations, and that of the form in which they should eventually be expressed in a regular will, the preparation of which is entrusted to Mr. Dysart himself. If this interpretation properly attends the document, the letter has not per se, and cannot acquire without more, a testamentary nature, and the proposition stated in Godman v. Godman, supra, at p. 271, “that a document which is in terms and instruction for a more formal document may be admitted to probate if it is clear that it contains a record of the deliberate and final expression of the testator’s wishes with regard to his property

WESA wills wills variation act BC

Converting a Petition to an Action

Re Berkenbos Estate 2018 BCSC 1661 involved in application to revoke the issuance of a grant of probate and for an order that the revocation application be converted from a petition into an action.

The court granted both orders. The deceased and her husband were married in 1989 after living together for 10 years and they were not divorced prior to her death in 2015.

One of the triable issues was whether the parties had separated before death and thus were no longer considered to be spouses under WESA. The evidence was contradictory and constituted a bona fide triable issue.

From 2000 onwards the deceased and her husband had an unconventional marriage is the deceased suffered from alcohol and drug dependency and the husband struggles mental health issues.

The deceased will named the husband is sole executor and sole beneficiary and a grant of probate had been issued.

This blog will deal with the issue and law relating to an application to convert a petition into an action.

Having to do such is in my opinion a quirk of the Supreme Court rules for which I see no purpose other than having to undergo such applications for the various types of causes of action that require the commencement of proceedings by way of a petition. Proving a will and solemn form is one example as is revocation of a grant of probate.

The test as to whether the courts should convert a petition into an action is akin to the test to be applied for summary judgment: whether on the relevant facts and applicable law, there is a bona fide triable issue.

In Kerfoot v Richter 2018 BCCA 238 the Court of Appeal confirmed that where there are disputed facts in an originating application, the chambers judge must not weigh the evidence to determine issues of fact.

The Court of Appeal in Kerfoot v Richter relied on its earlier decision in British Columbia Milk Marketing Board v Saputo Products Canada 2017 BCCA 247 where the court held that proceedings brought by petition should be referred to the trial list where there are disputes of fact or law, unless the party requesting the trial is bound to lose

The party who seeks summary judgment in the context of disputed facts bears the evidentiary burden of establishing there is no genuine issue to be tried –McLean v Law Society of British Columbia 2016 BCCA 368 at paragraphs 36 – 39

In considering evidence, however the court must not weigh it but is limited to assessing whether it establishes a triable issue.

The court explained in a previous appeal decision Skybridge Investments LTD v Metro Motors LTD 2006 BCCA 500:

1) If sufficient material facts of being pleaded to support every element of a cause of action, but one or more of those pleated material facts are contested, then the judge ruling on a rule 18(6) application is not to weigh the evidence to determine the issue of fact for the purposes of the application. The judge’s function is limited to a determination as to whether a bona fide triable issue arises on the material before the court in the context of the applicable law. If the judge ruling on a rule 18(6) application must assess to weigh the evidence to arrive at a summary judgment, the plain and obvious or beyond doubt test is not being met.

Legal Procedure probate

S.58 WESA Refused to Cure Defective Will

Poulk Estate 2018 BCSC 1321 is a good review of the law relating to section 58 of WESA and after a review of the facts and law, found that the said curative provisions of section 58 could not be applied.

The deceased was admitted to hospital where he underwent surgery for bowel obstruction where it was discovered he had bowel cancer and he died days later.

The deceased had only one child, the applicant daughter and he was not married at the time of his death.

The deceased had distanced himself from his daughter after separating from her mother when she was less than one year old.

The daughter had attempted to re establish contact with the deceased when she was 16 years old but the relationship did not develop, and at the time of his death the deceased and his daughter had little contact with each other.

A will was drafted following the surgery and it purported to leave the deceased’s estate to his four siblings in equal shares. The will was not drafted by the deceased and it was not signed by him prior to his death.

The daughter sought an order under section 58 WESA seeking determination of whether the will represented the intention of the deceased.

The will was a fill in the blanks form that was not completed by the deceased.

It was not disputed that the will did not meet the requirements of validity as set out in section 37 of WESA.

The will was not completed by the deceased and it was inferred that it was completed by his sister, the will was not signed by the deceased, and there was nothing on the face of the will to indicate the deceased knew and approved of the contents of the will.

Absence of any objective evidence that the deceased knew and approved the contents of the will was particularly concerning is the will was drafted by one of the beneficiaries and was not consistent with previously expressed intentions of the deceased.

The deceased long time friend opposed the deceased was told by him that he was going to will everything to his daughter.

Notes of the social worker in the hospital were troubling to the court, as they suggested that it was the family of the deceased who are focused on preparing the will, rather than the deceased himself, and that the deceased wanted some time to think. Even if there was sufficient evidence to establish the deceased knew and approved the contents of the will, it was far from clear that the will was fixed and final as to the expression of the deceased testamentary intention. It was clear that the deceased might not have appreciated the severity of his illness or imminence of his death.

The will departed from the requirements for validity in section 37 of WESA to a significant degree, and the evidence fell far short of establishing that the will was final and authentic.

On the balance of probabilities, the court found that the will did not represent a deliberate and final expression of the deceased testamentary intentions, and refused to invoke the provisions of section 58 WESA “to cure“ any deficiency.

The court followed the leading case in British Columbia Re Young 2015 BCSC 182 at paragraph 17:

“S 58 is a curative provision. It confers a discretion on the court to relieve against the consequences of noncompliance with testamentary formalities in the record, document or writing or marking on a will or document”. And prescribed circumstances, section 58 permits the court to address and cure issues of formal invalidity in such documents. It cannot, however, be used to uphold the will that is invalid for substandard reasons such as testamentary incapacity or undue influence.

The court also referred to Re Lane estate 2015 BCSC were the court summarized the principles from the Manitoba decision George v Daily that has largely been followed in British Columbia in decision such as Re Young.

1) The standard of proof on an application under the curative provision is proof on a balance of probabilities
2) the greater the departure from the requirements of formal validity, the harder it may be for the court to be satisfied that the document represents the deceased testamentary intention;
3) the requirements for formal validity of a will serve several purposes or functions, including an evidentiary function by providing the court with reliable and permanent evidence of testamentary intention and the terms of the will; and a cautionary function by impressing upon the testator the solemnity, finality, and importance of his actions in making his last will and testament the evidentiary and cautionary functions are particularly relevant to the determination of whether or not our writing or document embodies the testamentary intentions of the deceased not every expression made by a person, whether orally in writing, concerning the disposition of his or her property on death embodies his or her testamentary intentions

The court held at paragraph 65:

The term “testamentary intention” means much more than a person’s expression of how he would like his or her property to be disposed of after death. The essential quality of the terms that there must be a deliberate or fixed and final expression of intention as to the disposal of his or her property on death Bennett v Molinary v Winfrey (1961) SCR 91

probate WESA Wills Variation Acts