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 Would either of the parties suffer and equitable treatment if probate was revoked?.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

What Makes It a Will?

Special costs unfair

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

Converting a Petition to an Action

Converting a Petition to an Action | Disinherited Vancouver

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.

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

Spousal or Child Support After Death

Spousal or Child Support After Death

Bouchard v Bouchard 2018 BCSC 1728 dismissed an application for lump sum child maintenance for monies held in the estate of the deceased to died intestate, but reviewed the law relating to continuing obligations to pay spousal or child maintenance after death and the impact of the recently newish Family Law act allowing for same.

The deceased had been awarded approximately $1.9 million in a serious motor vehicle accident but became drug addicted and spent much of the estate.

Arrears of child maintenance in the amount of $300 per month had accumulated, and the mother on behalf of the infant children of the deceased, brought a court application that monies held in trust by the personal injury lawyers be paid to her as a lump sum child maintenance.

The court declined for largely procedural reasons including the children likely or the soul intestate heirs and their rights needed to be protected.

The court noted that any award for child support would only be a debt as against the deceased’s estate, and establishing a debt against the estate of the deceased person does not entitle a litigant to a court order for the amount of the debt. Debts against an estate must still be considered in terms of priority by the executor or estate administrator, as the case may be. This is one of the reasons why administration of the deceased’s estate is critical.

In the past, under the common law, of payor’s child support obligation ended upon death, Milne v MacDonald Estate 1986 CanLii 931 (BCCA) that unless the parties reached an agreement or there was a court order specifying that the payors support obligations would continue beyond his or her death. If there is such an agreement or court order in existence at the time of death, his obligations could continue as a liability of the estate Crain v Crain 1996 Carswell BC 1174 (BCSC) at paragraphs 11 – 15

The common law has now been changed by the Family Law act that where a payor has a duty to pay support under an agreement or order dies and the agreement or order is silent about whether that duty continues after the payor’s death and is a debt of his or her estate, Section 171 (3) of the FLA now allows the recipient of that support to apply for an order that the duty to pay support continues despite the death of the payor and is a debt of the estate, based on the factors in sections 171 (1)

This recent change in the FLA was allowed in Kumagai v Campbell Estate 2016BC SC 1161 where the act for a court stated that section 171 (3) FLA must be interpreted in a manner consistent with the legislature’s intention to provide a mechanism for the ongoing payment of support upon the death of the payee or spouse.
As a result, the claimant was not precluded by the wording of section 1713) from applying for an order that the deceased spousal support obligation continues despite his death and becomes a debt of his estate.

The court specifically found that the legislative intent of these provisions was to provide a mechanism for the ongoing payment of spousal and child support upon the death of the payee or spouse based on the factors listed in section 171 (1) . The legislature has clearly and expressly change the common-law principles with respect to support under the FLA

The factors set out in section 171 ( 1) entitle support obligations after death in FLA are:

171 (1) before making an order under section 170 (g) for an order after death that a duty to pay child support or spousal support continues after death, the court must consider it all of the following factors:

a) That the person receiving child support or spousal support has a significant need for support that is likely to continue past the death of the person paying child support or spousal support;
b) that the estate of the person paying child support or spousal support is sufficient to meet the needs referred to in paragraph a after taking into account all claims on the estate, including those of creditors and beneficiary;
c) that no other practical means exist to meet the need referred to in paragraph a

2. If an agreement, or an order under section 170g) is made in the person having a duty to pay child support or spousal support dies, the person’s personal representative may make an application, and the court may make an order, to:

a) Set aside or replace with an order made under this part all or part of the agreement, or
b) change, suspend or terminate the order.

3. If a person having a duty to pay child support or spousal support under an agreement or order dies and the agreement or order is silent respecting whether the duty continues after the death of the person and is a debt of his or her estate,

a) The person receiving support may make an application under section 149 relating to children or 165 relating to spouses and
b) if, on consideration of the factors set out in subsection 1 of this section, an order is made, the duty to pay child support or spousal support continues despite the death of the person and as a debt of his or her estate for the period fixed by the court.

Probate Fees and Capital Gains Taxes

Probate Fees and Capital Gains Taxes | Disinherited Vancouver

Re the Estate of Wilma Bouma 2018 BCSC 1466 involved in application brought by the administrator of the estate of the deceased for an order pursuant to section 2(4) of the Probate Fee act to increase the declared value as of death from $211,300-$315,000.

The deceased had use the notice of assessment issued in 2016 that set the value of the property at $211,300, while a subsequent appraisal indicated that the value of the property as of death was in fact $315,000.

The court found that the notice of assessment while issued in 2016, really reflected the relevant time of value for the assessment as of July 1, 2015, and not 2016.

The court ordered that the value of the property as of the date of death was $315,000 and directed that the probate registry process the supplemental affidavit of assets and liabilities based on the larger amount.

The court stated as an aside that the real reason for the application was to not only reflect the true value as of the property as of the date of death, but that the purpose of same was to in effect reduce the amount of capital gains taxes that would be payable on the property.

The effect of the increased value substantially reduce the amount of capital gains taxes payable on the approximate difference of $100,000, while the additional probate fee would only be 1.4% of the additional value namely $1451.

Security For Costs Applications

Security For Costs Applications

Parmar v. Timothy Hunstsman Law Corp. 2018 BCSC 1151 involved a successful application by the defendant that the plaintiff post security for costs for the court action brought by the plaintiff, who lived in Illinois and had no assets in the province of British Columbia.

The defendant prepared a bill of costs, allowing for a five-day trial, full day examinations for discovery, instructing experts, mediation and significant disbursements totaling $35,000.

The court ordered that the plaintiff post security for costs in the amount of $20,000 within 60 days of the court order, or if not paid, the action would be dismissed.

The plaintiff had brought court action against the defendant law firm alleging breach of contract and professional negligence.

The legal principles relating to the jurisdiction of the court to order security for costs by a non-corporate plaintiff arises from the inherent jurisdiction of the court. The order is a discretionary on that must be exercised judicially and in all interests of the parties–Sheill v Coach House Motel Ltd (1982) 37 BCLR 254 ( CA) at 264.

Security for cost applications are typically brought where there are concerns that the plaintiff will not satisfy a costs award made against it because the plaintiff resides outside the jurisdiction and has no assets within it. Those circumstances on their own are not determinative.

The law is clear that poverty should not be a bar to access the court. Access to the court should not be hampered by financial issues, except in special or egregious circumstances–Han v Cho 2008 BCSC 1229 at para 14.

The onus is on the applicant. In a situation where the plaintiff is a corporation, if the defendant can show that it will not likely be able to cover costs if the claimant fails, security is generally granted.

However, security for costs where the plaintiff is an individual requires a different balancing giving the access to justice concerns. The overall balancing is the risk that a successful defendant will be unable to recover costs of security is not granted against the risk that a legitimate claim could be stifled by an order. If the latter is in play, it will override the concerns of the defendant will not recover costs of successful.

The threshold issue is whether the applicant has established, on a prima face the basis that it will be unable to recover costs in the event of success- Equstek Solutions Inc v Jack 2013 BCSC 2135 at para 26-27.

The factors that courts hearing such applications have considered in the exercise of its discretion were listed in I. J. v J.A.M.- BCSC 270 at para 14:

1) the merits of the plaintiff’s claim;
2) whether the plaintiff is bankrupt or insolvent
3) whether the plaintiff has demonstrated an intention not to comply with previous orders relating to costs payable;
4) whether there is a risk the plaintiff is not findable;
5) whether there is evidence suggesting that a false description of residence or a false name has been given to the court or use generally.

The courts often cautiously approach the issue of the merits of the case in applications for security for costs, and typically should avoid going into detail in the success or failure appears obvious.-Wang v BC Medical Association 2011 BCSC 1659.

The courts in this decision did however rely heavily on the fact that the plaintiff’s state of residence is a non-reciprocating jurisdiction and that the plaintiff had no assets in British Columbia.

The plaintiff’s lawyer conceded that the plaintiff had the means to pay security for costs without impeding his ability to pursue the claim.