BC Estate Litigator- What Is the Date After Death to Inherit

Trevor Todd and Jackson Todd have over sixty years combined experience in dealing with contested estate matters.

 

Lewis v Jack 2026 BCCA 18 concerned an appeal  concerning  the interpretation of a will and whether bequests to the beneficiaries vested at the date of the testator’s death or the date of the distribution of the residue. The will in question stated that the residue of the testator’s estate “then remaining” was to be divided to the beneficiaries (his children) “then alive”.

One of the beneficiaries died after the testator’s death but before the estate was distributed. The chambers judge determined the bequests did not vest until the residue was distributed, thus disinheriting that beneficiary. On appeal, the appellant contends the judge erred in interpreting the will by failing to properly apply the usual rule of vesting at the date of the testator’s death. Held:

 

The Appeal was  allowed on the basis that the will, read as a whole, demonstrates the testator’s intention to make provision for all his children who survived him. The words “then alive” are not sufficiently clear to impute an intention to vest the legacies in his will at the time the estate is finally distributed to the beneficiaries.

 

The Law

 

The general principles of will construction  require a court to interpret a will to give effect to the testator’s intention, having regard to the entire will, and assuming the testator intended the words in the will have their ordinary meaning unless a contrary intention is clearly expressed. Where the intention cannot be determined from the language of the document, the court may consider extrinsic evidence of the circumstances surrounding the making of the will: Dice Estate at paras. 36–37; Kirk Estate v. Coates, 2020 ABCA 233 at para. 7

There is a presumption of early vesting that has been present in the law for over 200 years. This means that a testamentary gift is presumed to vest on the death of the testator unless there is a clear intention to the contrary expressed in the will.

[31]         For example, in Cripps v. Wolcott, [1819] Ch. D.12, it was considered settled law that where a legacy is given to two or more persons in equal shares, the survivorship of a legatee is to be determined by reference to “the period of division”, and where no previous interest is given (as, for example, in a life interest), the period of division is the death of the testator. In Duffield v. Duffield, [1829] 4 Eng. Rep. 1334, a long-established rule for the guidance of the courts in construing wills was stated to be:

… that all estates are to be holden to be vested, except estates, in the devise of which a condition precedent to the vesting is so clearly expressed, that the Courts cannot treat them as vested, without deciding in direct opposition to the terms of the will. If there be the least doubt, advantage is to be taken of the circumstance occasioning that doubt; and what seems to make a condition, is holden to have only the effect of postponing the right of possession. This presumption applies where distribution of an estate is postponed, unless the gift is contingent on a condition personal to the legatee.

 

the rule applies whether the residue is gifted to named legatees or a class: Re Hooper at 513 and 517; Re Lauder at 530. The following statement from Halsbury’s Laws of England, 2nd ed, Vol. 34. (Toronto: Butterworth & Co. (Canada) Ltd., 1940), at 319, was referred to with approval by Cartwright J. in Re Hooper:

Whatever may be the time of distribution, where there is a gift to a testator’s next-of-kin, without more, the class prima facie has to be ascertained as at the testator’s death …

[37]         Finally, courts are not inclined to interpret a will in a way that effectively allows the executor to determine the date of vesting. This concern was expressed as early as 1807 in the case of Gaskell v. Harman, [1805] 32 Eng. Rep. 1177, where the Lord Chancellor stated at 1183:

… if a testator thinks proper, whether prudently or not, to say distinctly, shewing a manifest intention, that his legatees, pecuniary or residuary, shall not have the legacies, or the residue, unless they live to receive them in hard money, there is no rule against such intention, if clearly expressed. But that would open to so much inconvenience and fraud, that the Court is not in the habit of making conjectures in favour of such an intention…

… if the words will admit of not imputing to the testator such an intention, it shall not be imputed to him.

 

The appeal court found that the chambers judge erred in law by failing to have regard to the entire will in interpreting the meaning of clause 3(d) and, in doing so, interpreting clause 3(d) as a clear expression of intention sufficient to displace the presumption that a testamentary gift vests on the death of the testator.

When clause 3(d) is interpreted in the context of the will as a whole, the words “then alive” do not connote a contingent gift, nor do they clearly evince an intention to rebut the presumption of early vesting.

It is rare for a court to consider a vesting date that does not correspond to the date of the death of the testator or another person, or a fact personal to a legatee (such as attaining a certain age). The discretion granted to an executor and trustee to “sell, call in or convert” an estate and to pay debts and funeral expenses allows for the orderly disposition of the assets. This is a process that takes time, and any delay in liquidating or dividing up an estate does not prevent a gift from vesting at the testator’s death absent clear language.

 

Vancouver Estate Litigator- Appeal Court Finds Will Invalid Due to Suspicious Circumstances

Trevor Todd and Jackson Todd have over sixty years combined experience in disputing the validity of purported wills

 

The appellant challenged the decision of a chambers judge accepting as valid a will executed by the deceased in 2018. This will differed significantly from the deceased’s earlier will executed in 2001. The 2001 will left the residue of the estate equally to the deceased’s 18 nieces and nephews, such that each would receive around $275,000.

Under the 2018 will, 14 nieces and nephews received only $5,000 each, while the respondent executor who held power of attorney and her three siblings would each receive close to $1.2 million.

The Appeal Court allowed the appeal  finding that the judge failed to grapple with evidence of suspicious circumstances, including the respondent’s role in helping to prepare a will that significantly benefited her and her siblings. This evidence negated the presumption of validity and shifted the burden to the respondent to prove testamentary capacity, knowledge and approval.

The evidence relied on by the judge was not capable of establishing that the deceased understood the value of her estate and the magnitude of the residue. The 2018 will is therefore not valid and the estate is to be distributed according to the 2001 will.

The notary took instructions from the deceased’s power of attorney and prepared the 2028 will based on those instructions. She did not discuss or verify the instructions with the 92 year old testator.

 

THE LAW

 

The appeal court cited   Leung v. Chang, 2013 BCSC 976:

[26]      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 at paras. 19-20.

[27]      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 estate and the extent of her property of which she is disposing: Laszlo v. Lawton, 2013 BCSC 305 at para. 185; Banks v. Goodfellow (1870), L.R. 5 Q.B. 549; Leger v. Poirier, [1944] S.C.R. 152 at 161. 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; Laszlo at para. 197.

[28]      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 possessed the requisite testamentary capacity and knew and approved of its contents: Vout at para. 26.

[29]      This presumption may be rebutted by evidence of “well-grounded suspicions”, referred to in the jurisprudence as “suspicious circumstances”, relating to one or more of the following circumstances:

(i)         surrounding the preparation of the will;

(ii)        tending to call into question the capacity of the will-maker; or

(iii)       tending to show that the free will of the will-maker was overborne by acts of coercion or fraud: Vout at para. 25.

[30]      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 E.T.R. (2d) 219 at para. 30 (Gen. Div.).

[Emphasis added.]

[17]         Although the judge below correctly identified these legal principles, in my respectful view he erred in their application—at least in part because he blended his assessment of undue influence, suspicious circumstances and capacity, observing that the issues “are interrelated”: at para. 16. That approach is to be avoided. The issues should be addressed step-by-step, in keeping with the shifting burden of proof: Laszlo v. Lawton, 2013 BCSC 305 at paras. 200–207; Geluch v. Geluch Estate, 2019 BCSC 2203 at paras. 110–115.

In Lazlo v Lawton the court stated:

 

[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 where a beneficiary is instrumental in the preparation of the will (especially where the beneficiary stands in a fiduciary position to the testator) …

 

[29]         In Harmes v. Hinkson, [1946] 3 D.L.R. 497 at 509, 1946 CanLII 298 (U.K P.C), the Judicial Committee of the Privy Council, citing Barry v. Butlin (1838), 2 Moo. P.C. 480, 12 E.R. 1089, put it this way:

…[I]f a party writes or prepares a Will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased.

The appeal court found five circumstatnces where the tril judge failed to give proper consieration to sususpiciousmcircumstances:

 

Laszlo:

[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 where a beneficiary is instrumental in the preparation of the will (especially where the beneficiary stands in a fiduciary position to the testator) …

[Emphasis added.]

[29]         In Harmes v. Hinkson, [1946] 3 D.L.R. 497 at 509, 1946 CanLII 298 (U.K P.C), the Judicial Committee of the Privy Council, citing Barry v. Butlin (1838), 2 Moo. P.C. 480, 12 E.R. 1089, put it this way:

…[I]f a party writes or prepares a Will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased.

 

SUSPICIOUS CIRCUMSTANCES

 

The appeal court stated five examples where the the trial judge failed to properly consider the effect of suspicious circumstances:

First, the 2018 will was a marked departure from both Mrs. Bush’s and Chris Bush’s stated intentions to benefit their 18 nieces and nephews equally—an intention expressed in the 2001 will.

[20]         Second, there was no explanation offered by Ms. Rodrigues or anyone else as to how Mrs. Bush’s decision to change her will came about. Ms. Rodrigues’ evidence related only to a potential justification for the change:  she and her siblings lived close to the Bushes’ home and therefore had more frequent contact with them, especially in their later years.

[21]         Third, Ms. Rodrigues was instrumental in the preparation of the new will; she wrote out a list of the changes to be made, provided all instructions to Ms. Manvell, arranged the appointment, and drove her aunt to the appointment to execute the will.

[22]         Fourth, the changes greatly benefitted Ms. Rodrigues and her three siblings, who would each receive $1.2 million—a far greater share of the estate than under the 2001 will.

[23]         Fifth, when Ms. Rodrigues applied to probate the 2018 will, causing the other nieces and nephews to ask for a copy of the deceased’s earlier will, Ms. Rodrigues informed them through her lawyer that she was unaware of the existence of an earlier will, when in fact she had provided a copy of the 2001 will to the notary along with the instructions for the preparation of the new will.

 

The appellant relied on more than the power of attorney’s  involvement in the preparation of the will. It was that involvement in combination with her role as a person in a position of trust who benefitted significantly from the changes to the will that the appellant pointed to, contending these facts established suspicious circumstances warranting the setting aside of the presumption of validity

Vancouver Estate Lawyer- Removing an Executor/Trustee

Trevor Todd and Jackson Todd have over sixty years combined experience in resolving estates limitation disputes including the removal of executors

Re Wood Estate 2025 BCSC 2039 was a successful  application by two of three siblings to remove the third sibling for various reason including:

 

)Taking 2 years to obtain a grant of probate in 2019 after the death of the last parent in 20117

)  failing to file tax returns

) failing to pay outstanding taxes;

) a final tax clearance certificate must be applied for and obtained from the Canada Revenue Agency (the “CRA”);

  • )after the clearance certificate is received, there can be a final distribution of any remaining monies to the Estate beneficiaries) writing several abusive curse letters to the beneficiaries who were seeking transparency and asking that the estate be finalized

examples of the letters of response from the executor  to the beneficiaries are:

 

To Sandra on November 24, 2017: “You are sick and need immediate mental help. Hope your kids are well with anxiety and a son who can’t even get a job. Tell your husband F[***] YOU”.

  1. b)To both on October 27, 2020, saying: “ … I simple [sic] do not trust either of you ….”
  2. c)On November 5, 2020, Edward wrote an email suggesting that Sandra and Dianne were implicated in “perjury, fraud, and elder abuse.”
  3. d)To Dianne, on July 12, 2021 (subject line: “YOU are a CLUELESS piece of s[***]”): “You piece of scum. F[***] you. You have destroyed many lives, not mine. Do Not Ever contact me  F[***] YOU”.

 

 

 

[26]         There is no dispute as to jurisdiction. In addition to having inherent jurisdiction, the court has the authority to remove a trustee under s. 30 of the Trustee Act and a personal representative under ss. 158 and 159 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [WESA].

[27]         Section 30 of the Trustee Act reads:

Removal of trustees on application

30  A trustee or receiver appointed by any court may be removed and a trustee, trustees or receiver substituted in place of the trustee or receiver, at any time on application to the court by any trust beneficiary who is not under legal disability, with the consent and approval of a majority in interest and number of the trust beneficiaries who are also not under legal disability.

[28]         The most pertinent portions of s. 158 of WESA read:

Application to remove or pass over personal representative

158   (2) A person having an interest in an estate may apply to the court to remove … a person otherwise entitled to be … a personal representative.

(3) Subject to the terms of a will, if any, and to subsection (3.1), the court, by order, may remove … a person otherwise entitled to be … a personal representative if the court considers that the personal representative … should not continue in office …, including, without limitation, if the personal representative …

…

(f) is

(i)         unable to make the decisions necessary to discharge the office of personal representative,

(ii)        not responsive, or

(iii)       otherwise unwilling or unable to or unreasonably refuses to carry out the duties of a personal representative,

to an extent that the conduct of the personal representative hampers the efficient administration of the estate[.]

[29]         Although the parties have cited a variety of different cases identifying the governing principles, there is no real dispute as to those principles themselves. The dispute between the parties here is as to how those principles apply in circumstances of this case.

[30]         I adopt and rely upon the helpful summary set out by Justice MacNaughton (then of this Court) in Chesko v. Chesko Estate, 2024 BCSC 394 at paras. 53-58:

[53]            The leading authority continues to be Conroy v. Stokes, 4 D.L.R. 124, 1952 CanLII 227 (B.C.C.A.). In Conroy, the Court considered removal and replacement of a trustee because some of the beneficiaries were dissatisfied with the trustee’s handling of the estate. Citing Letterstedt v. Broers, 9 App. Cas. 371, [1884] UKPC 1, the Court confirmed that the main consideration is the collective welfare of the beneficiaries: Conroy at 126.

[54]            A court will not lightly interfere with a testator’s choice of trustee: Nieweler Estate (Re), 2019 BCSC 401 at para. 27 [Nieweler Estate], and not every actual or perceived conflict should lead to disqualification of a trustee or an executor: Conroy at 126–127; Burke v. Burke, 2019 BCSC 383 at para. 43. Mere friction between the trustee and one or more of the beneficiaries is usually insufficient to justify removal of the trustee: Miles v. Vince, 2014 BCCA 289 at para. 84.

[55]            Perfection is not expected of an executor or trustee: Dahle Estate (Re), 2021 BCSC 719 at para. 22. The question is whether the trustee’s acts or omissions endangered the administration of the trust: Carpino v. Carpino, 2022 BCSC 2237 at para. 51, citing Parker v. Thompson (Trustee), 2014 BCSC 1916 at para. 37; see also Burke at para. 29.

[56]            To remove an executor or trustee for misconduct, the evidence must show they endangered estate property, acted dishonestly and without proper care, lacked capacity to execute their duties, or acted without reasonable fidelity: Conroy at 127; see also Nieweler Estate at para. 33.

[57]            Deciding whether to remove an executor or trustee involves considering all the facts, and the context, out of respect for a will-maker’s choice of executor, the court should not interfere except for good reason or, as some cases have said, where doing so is “clearly necessary”: Mardesic v. Vukovich Estate, 30 B.C.L.R. (2d) 170, 1988 CanLII 3125 (S.C.) at paras. 18–19; Burke at paras. 29, 31.

[58]            The development of the principles for removal was summarized by the Court of Appeal in Miles at paras. 84–86:

[84]      What circumstances justify the removal of a trustee? In Letterstedt …, the court established guidelines justifying the removal of a trustee (at 385-389):

  1. If the Court is satisfied that the continuance of the trustee would prevent the trusts being properly executed, the trustee might be removed. It must always be borne in mind that trustees exist for the benefit of those to whom the creator of the trust has given the trust estate.
  2. The acts or omissions must be such as to endanger the trust property or to show a want of honesty, or a want of proper capacity to execute the duties, or a want of reasonable fidelity.
  3. In exercising the delicate jurisdiction of removing trustees, the Court’s main guide must be the welfare of the beneficiaries. It is not possible to lay down any more definite rule in a matter that is so “essentially dependent on details often of great nicety.” The Court must proceed to look carefully into the circumstances of the case.
  4. Where a trustee is asked to resign, and if it appears clear that the continuance of the trustee would be detrimental to the execution of the trusts, even if for no other reason than that human infirmity would prevent those beneficially interested, or those who act for them, from working in harmony with the trustee, and if there is no reason to the contrary from the intentions of the framer of the trust to give this trustee a benefit or otherwise, the trustee is always advised by his own counsel to resign.
  5. The lack of jurisprudence in respect of the removal of a trustee reflects that a trustee when asked to do so, will resign.
  6. If, without any reasonable ground, the trustee refuses to do so the court might think it proper to remove him.
  7. Friction or hostility between trustees and the beneficiary is not of itself a reason for the removal of the trustees. But where the hostility is grounded on the mode in which the trust has been administered, where it has been caused wholly or partially by substantial overcharges against the trust estate, it is not to be disregarded.

 

 

Vancouver Estate Litigation – The Court’s Discretion to Award an Interim Distribution

Trevor Todd and Jackson Todd have over sixty years combined experience in resolving estate disputes including obtaining interim distributions of estate assets

 

In Re Hartin Estate 2025 BCSC 2092 the deceased died in 2019 leaving a substantial estate.

There was an initial distribution of assets but after several more years the applicant sought but was refused  a substantially greater interim distribution from the courts.

 

The court instead ordered further disclosure of accounts and for confidentiality

A  summary of the law pertaining to the court’s discretion to order an interim distribution.

[38]         The court has the authority to order an interim distribution of estate assets further to its general jurisdiction. The court in Zanrosso Estate (Re), 2021 BCSC 2664, referring to Reznik v. Matty, 2013 BCSC 1346 stated at para 14:

… That case involved an estate whose distribution was still outstanding 12 years after the death of a testator. Its assets were worth over $600,000 and there had been just one interim distribution of $100,000. There was also evidence of need for the funds provided by one of the beneficiaries. Ultimately, the Court ordered a $40,000 interim distribution from the estate. It did so by reference to the concept of “assent”, which was described as “an acknowledgement by a personal representative that an asset is no longer required for the payment of the debt, funeral expenses or general legacies”: Reznik v. Matty, 2013 BCSC 1346, at para. 37. Mr. Justice Funt wrote at para. 44:

In the circumstances of this case, where the administration of the Estate has taken already over a decade and there is significant value and liquidity, the executor’s assent should be compelled.

[39]         In Reznik, supra, the court held that the outstanding liabilities does not prevent the assent of part of the residue at para 47:

North J. in Austin also considered the argument that outstanding liabilities should prevent assent of part of the residue. He stated:

Then, further, it is suggested that it is not reasonable to suppose the executors would have assented here, when there are outstanding liabilities. I do not see anything unreasonable in that. No doubt, if there were shown to be very large outstanding liabilities, and the question was whether assent had been given with respect to the only remaining available asset, there would be something in it. But there is nothing in it. There is no improbability in the inferring an assent because there are outstanding liabilities, unless you see the executor would be prejudiced by giving his assent, and it is impossible to say that, unless the other assets with respect to which he has not assented are clearly insufficient to meet the liabilities.

[Emphasis added]

[40]         Hecht v. Reid, 1991 CanLII 963 (BC CA), and Davis v. Burns Estate 2016 BCSC 1982 at para. 31 set out factors to be applied when deciding whether to exercise the court’s discretion to make an interim distribution:

  1. the amount of the benefits sought to be distributed as compared to the value of the estate;
  2. the claim of the beneficiaries on the testator;
  3. the need of beneficiaries for money; and
  4. the consent of the residuary beneficiary to the proposed transfer.

[41]         While these factors are usually considered in the context of leave to make an interim distribution when there is an outstanding wills variation proceeding, the court in Zanrosso Estate accepted, at para. 16, that these factors provide guidance on how to exercise discretion to make an interim distribution generally. The Zanrosso Estate court clarified that the Hecht factors are not an exhaustive list.

[42]         In Zanrosso Estate, the court also considered whether there had been a delay with respect to distributing the estate, although the court found that there had been no such delay in that case.

[43]         In Antonias Estate (Re), 2021 BCSC 2388, the court ordered a distribution of 527,938.64, leaving $447,000 in the estate for fees. The age and vulnerability of the beneficiaries (their ages ranged from 76- 89) and the large holdback contributed to the courts decision to do so.

[44]         In Antonias Estate, the court provided that if the liabilities of the estate were to exceed the remaining reserve account, the beneficiaries would reimburse and indemnify the executor for their share of any such shortfall. The court found this would balance the appropriate prejudice between any delay in distribution and the need for the executor to be fully protected from being personally liable.

[45]         Ruth states that she has no opposition to a similar indemnity order linked to any interim distribution I would order, and points out that she agreed to the same without issue with respect to the 2024 interim distribution.

[46]         In McGovern Estate v. McGovern, 2014 ONSC 1785 at para 41, the court considered whether an executor acted with mala fides or if the executor has behaved unreasonably or breached their fiduciary duty, duty of good faith, and fairness to the beneficiaries.

[47]         The respondents say the cases relied on by the applicant can be readily distinguished.

[48]         In Reznik, for example, the court relied upon the doctrine of “assent” to compel an interim distribution due to factors such as the length of administration (12 years) and when there was “significant value and liquidity” (para. 43). The court also noted that there were “few remaining outstanding or anticipated costs” (para. 6) .

[49]         The respondents maintain those facts are not present here.

 

[51]         The respondents point out that the issue in Antonias Estate was whether the executors could hold back the distribution as ransom for a release, and that the executor was seeking a holdback that was significantly higher than any known liabilities of the estate, neither of which is the case here.

[52]         Finally, the respondents point out that in Zanrosso Estate the court dismissed an application by a residuary beneficiary to compel the personal representative to make an interim distribution. Justice Brongers agreed that the court had the jurisdiction to make such an order but stated that “an order compelling a distribution of the estate over the objection of the personal representative should only be made in exceptional circumstances with the burden lying on the applicant to justify the issuance of an order.” (at para. 16)

[53]         Here, the personal representative is objecting to the distribution, as are three of the four beneficiaries. Of course, Deana herself, the executor, is one of the three objecting beneficiaries.

[54]         In Zanrosso Estate, Justice Brongers found that the executors had been discharging their responsibilities in a reasonable and prudent manner in the circumstances. Factors he considered to dismiss the application included: (1) there had already been a significant interim distribution to the beneficiaries; (2) a lack of any evidence of need by the applicant beneficiary; (3) the delays in the administration of the estate were caused by pre-emptive litigation against the estate brought by the applicant and his threats of future litigation and (4) the executors were waiting for a clearance certificate from the CRA before making a further distribution.

[55]         On the latter point, the court noted the executors’ potential personal liability and “the uncertainty surrounding the capital gain tax treatment of the estate’s primary asset.” (Zanrosso Estate at para. 18).

[56]         The factors cited in Zanrosso Estate bear many similarities to the present case. While I do not find that Ruth’s efforts to obtain information and apply for an interim distribution has been the primary cause of delay in the administration of this case, I find the rest of the factors to be relevant.

 

Vancouver Estate Litigation- S. 52 WESA and the Presumption of Undue Influence in Wills

Mr. Attorney - Shine The Light on Undue Influence

Trevor Todd and Jackson Todd co wrote this article and have over 60 years combined experience in handling estate litigation matters including undue influence.

 

S.52 WESA:    The Presumption of Undue Influence in Wills

 by: Trevor Todd and Jackson Todd

 

INTRODUCTION

In estate litigation, one of the most difficult causes of action to win at trial is that of a plaintiff alleging undue influence. A review of the case law reveals that the majority of undue influence claims are dismissed at trial due to insufficient proof.  It should also be pointed out that these are only the ones that proceeded to judgement.

The cases are not only therefore risky to commence, but the case law also shows that should the allegations of undue-influence prove to be frivolous or even unproven, the plaintiff runs a significant risk of having special costs assessed against them. Such a loss at trial can be devastating to the client, both emotionally and financially, as well as to the involved lawyers.

This paper will discuss the current state of undue influence in estate law, now centered around section 52 of the Wills, Estates and Succession Act (“WESA”).

WHAT IS UNDUE INFLUENCE?

Undue influence can be understood as influence which overbears the will of the person influenced, to the extent that what he or she does is not his or her own act [Longmuir v. Holland, 2000 BCCA 538 at para. 71].

Virtually every estate litigation fact pattern involves an allegation of a degree of influence, or where one party is dependent on another, in which circumstances a questionable transaction either by will or inter vivos occurs.

It is highly difficult to win an undue influence case where the mental capacity of the will-maker is not at least questionable at the relevant time the will or gift was made. It is difficult enough to persuade the Court that someone has acted under the undue influence of another person when the party in question is mentally impaired, to say nothing if they were not.

While rare, it is not truly necessary to be mentally incompetent or compromised to be under the influence or control of another person’s direction, such as witnessed by the behaviour of individuals who join groups or cults, or fall victim to persuasion of third parties (such as romance scammers or identity frauds), often at great personal expense. Such cases, however, simply do not come along very often.

Should there not be other contributing factors, the mere fact of someone being in a position for potential influence might be established, but it can be swiftly rebutted, unless there are some more troubling circumstances, and or a direct connection to a benefit received by the person in the role.

One hypothetical would be someone who held a close relationship to the will-maker, such as someone who had regular contact, but the will-maker was fully independent and the person who benefitted played no role in the process.  Simply by virtue of being in a potential position for influence, ie, with access, viewed in a vacuum, would ultimately not be enough to succeed.

PRIOR TO WESA

Prior to the introduction of section 52 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”), there were two differing burdens of proof: one for wills and one for inter vivos gifts. The Courts drew a distinction between gifts or transfers inter vivos, as opposed to those made by will, and only in the case of “special trust” relationships where the transfer of the asset was inter vivos, did a presumption of undue influence arise [see Geffen v. Goodman (1991) 81 DLR (4th) 211 (SCC)].

Geffen held that these types of special relationships existed between trustee and beneficiary, doctor and patient, solicitor and client, parent and child, and caregivers.

However, no such presumption arose with respect to a will, leaving the plaintiff with the daunting task of proving actual undue influence [Vout v. Hay (1995) 7 ETR (2d) 209 (SCC)].

The special costs consequences for not proving actual undue influence remained a powerful consideration and deterrent to claims.  Presumably, many questionable wills surely remained unchallenged.

S.52 WESA

WESA codified the law when it came to the presumption of undue influence.

S.52 WESA reads as follows:

52        In a proceeding, if a person claims that a will or any provision of it resulted from another person

(a) being in a position where the potential for dependence or domination of the will-maker was present, and

(b) using that position to unduly influence the will-maker to make the

will or the provision of it that is challenged, and establishes that the other person was in a position where the potential for  dependence or domination of the will-maker was present, the party seeking to  defend the will or the provision of it that is challenged or to uphold the gift has the  onus of establishing that the person in the position where the potential for  dependence or domination of the will-maker was present did not exercise undue  influence over the will-maker with respect to the will or the provision of it that is  challenged.

While the statutory provision is to the point, how it has been applied in practice, has not translated to being quite as powerful as the statute sounds.  In theory, the reverse onus of proof should be a powerful tool, but viewed in isolation, s.52 WESA is typically not enough in and of itself to succeed in impugning the will or an inter vivos act.

Presumption of Validity: WESA s.37

For a will to be valid and binding in British Columbia it must meet certain formal requirements in law. The formal requirements for making a valid BC will are now set out in section 37(1) of WESA. To be valid, a will in BC must be:

  • in writing;
  • signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time; and
  • signed by 2 or more of the witnesses in the presence of the will-maker.

Subsection 37(2)(a) of WESA provides that a will that does not comply with section 37(1) is invalid, unless the court orders it to be effective as a will under section 58, which is known as a “curative provision” that allows the court to cure deficiencies in certain circumstances, and is a whole other topic.

Where a will satisfies the statutory formalities set out in section 37(1) of WESA and was duly executed after having been read over by or to the will-maker who appeared to understand it, a presumption of testamentary capacity arises (Devore-Thompson v. Poulain, 2017 BCSC 1289 at para. 57, citing Vout at para. 26.)

This is the presumption that is reversed by s.52 WESA.

REVERSE ONUS OF THE PRESUMPTION

In theory, the reverse onus of proof should make it easier for a disputant to contest a will where a beneficiary was in a position of power or trust over the deceased will-maker or transferor.

  1. 52 is a positive, because the disputant or plaintiff should not have to prove that actual influence, coercion or manipulation occurred. Proving the existence of a relationship of dependence (e.g., a vulnerable will-maker relying on a caregiver for physical needs) or domination (e.g., a controlling beneficiary managing the will-maker’s finances) should be sufficient to trigger the presumption of undue influence.

Once the challenger establishes the potential for dependence or domination, the legal burden of proof should shift to the party seeking to defend the will (the beneficiary/alleged influencer) to prove that undue influence was not exercised. Then the propounder and/or beneficiary must satisfy the court, on a balance of probabilities that the will was the result of the will-maker’s own “full, free, and informed thought.”

To successfully rebut the presumption, the defending party propounding the will or defending the inter vivos act, must provide evidence demonstrating factors such as:

  • the will-maker’s capacity and intentions;
  • that the will-maker received independent legal advice or had the opportunity to do so;
  • that the will-maker was not isolated and knew and appreciated the consequences of the will’s terms;
  • the will-maker possessed the ability to resist any influence; and
  • that the terms of the will were consistent with the will-maker’s previous intentions, or if they changed, there was a rational, documented reason for the change.

All of the above is perhaps what was intended when S.52 WESA was introduced, but generally speaking that is not how the courts have treated it.

It is clear that unless there is accompanying evidence pertaining to capacity or suspicious circumstances, the presumption will typically not be given much weight in the Court’s decision making.

CASELAW

  1. Elder Estate v Bradshaw, 2015 BCSC 1266

In this case an 80-year-old reclusive and cognitively declining will-maker left his entire estate to his (26 year younger) housekeeper, who gradually became his caregiver. The will was challenged by the will-maker’s nephews, who held a distant relationship with him.

Several witnesses testified that their relationship was not suspicious in any manner, and the evidence supported the caregiver’s position that she was his main source of emotional and physical support for many years, and that he stated that he did not know what he would do without her.

In such circumstances the Court saw no reason to resort to the provisions of s.52 WESA, as there was no evidence of undue influence.

  1. Stevens v Esak, 2015 BCSC 331

This case involved an only son and the surviving common law spouse regarding the validity of will and a transfer of property.

The Court found that the will was valid, but set aside the transfer, as it was signed by the deceased on the same day that his doctor had found him no longer capable to manage his own affairs and was confused.

With respect to s. 52 WESA, the Court stated that undue influence can also arise in inter vivos transfers, and that a presumption that it has occurred will arise when the nature of the relationship between the donor and the recipient shows the potential for domination. To rebut it the recipient must show that the donor entered into the transaction of their own full, free and informed thought.

The Court stated that if the circumstances that would impose the statutory onus of s.52 WESA are not established, the party opposing the will may still prove actual undue influence. This requires proof of influence amounted to coercion, resulting in a will that not reflect the deceased true intentions and was not their own act.

The Court found that the situation fell within the description of s.52 WESA and that the onus was on the defendant to show that she had not exerted undue influence in the making of the deceased will. There was no dispute that she was his death-bed caregiver and that he was completely depended on her for meeting of all his needs, except those that fell to medical care providers

As such, the Court found that the transfer was the product of undue influence and that it must be set aside on that basis.

  1. Richter v Richter, 2018 BCCA 238

The Court of Appeal reversed the (then) Master’s concerns about the weakness of the plaintiff’s case, as some of it went no further than mere allegations. The plaintiff had no firsthand knowledge of the events leading up to the making of the impugned will, but that was not surprising giving the nature of the issues.

The Court of Appeal stated that undue influence may be established through circumstantial evidence, some of which included the deceased’s advanced stage in declining health, her dependence on her son and daughter at relevant times, and their advanced knowledge of the impugned a will. The Court of Appeal found that the materials before the Master were sufficient to establish a triable issue and allowed the appeal, converting the petition into an action so that the matter might proceed to trial.

 

  1. Ali v. Walters Estate, 2018 BCSC 1032

In Ali v. Walters Estate, the Holmes J. similarly found that she did not need to address the presumption of undue influence, as ample evidence existed that the will-maker was not under the undue influence of his common-law spouse (of 6 months), who his family knew little about. The Court found that any allegations of undue influence were merely conjecture.

At paragraph 68, Holmes J. addressed the component of influence, finding:

[68]  In all the circumstances, the evidence makes clear that Mr. Walters wanted to make the gift to Ms. Ali allowing her to remain in the condo after his death. While Ms. Ali may have tacitly encouraged him to make this gift, if she did so her actions came nowhere close to coercion.

 

The will-maker had no children and was found to be strong willed and independent, and only physically unwell.

  1. Trudeau v. Turpin Estate, 2019 BCSC 150

In Trudeau v Turpin Estate, the Justice reviewed s.52 WESA and essentially disregarded the presumption of undue influence by finding the evidence was clear that there was no potential for domination by the defendant over the deceased.

The Justice explained at paragraphs 121-122:

[121]     I reject as absurd plaintiff counsel’s submissions that Dorothy’s continuous presence at the Property, her provision of assistance and care to Isabel, her statement to Isabel in the lawyer’s office in April 2005 that she should simply provide for an equal distribution, and her suggestion that Isabel change doctors after her previous doctor had misdiagnosed her bladder condition equates to or resulted in Dorothy having influenced Isabel’s testamentary decision-making in 2015.

[122]     I have no hesitation in finding that the 2015 Will was the result of Isabel’s own full, free, and voluntary thought, without influence by Dorothy or anyone else.  I find that Isabel well knew what she was doing when she executed the 2015 Will.

In coming to that conclusion, the Justice helpfully summarized and discussed the applicable case-law as follows:

[110]    Undue influence can arise where the relations between the donor  and donee at the time of or shortly before the execution of a will have  been such as to raise a presumption that the donee had influence over the  donor: Al!card v. Skinner (1887), 36 Ch.D. 145 (C.A.) at 171; Modonese at  para. 97. A gratuitous transfer from a parent to an adult child creates the  presumption of undue influence by the adult child: Geffen v. Goodman  Estate, [1991] 2 S.C.R. 353 at 378.

[111]    In this context, undue influence does not depend on proof of reprehensible conduct—indeed, the donee may have acted sincerely and honestly. However, equity will intervene as a matter of public policy to prevent influence existing from certain relationships from being abused:  Ogilvie v. Ogilvie Estate (1998), 49 B.C.L.R. (3d) 277 (C.A.) at para. 14, citing Al’card at 171; Modonese at para. 99.

[113] Accordingly, once a relationship with the potential for domination has been established, the next phase of the inquiry is to examine the nature of the transaction. Where a gratuitous transfer is concerned, the onus moves to the defendant to rebut the presumption on the balance of probabilities: Stone v. Campbell, 2008 BCSC 1518 at paras. 43-44.

[114] In Stewart v. McLean, 2010 BCSC 64, Mr. Justice Punnett summarized the legal approach to the question of whether the presumption of undue influence has been rebutted at para. 97:

[97]      To rebut the presumption of undue influence, the defendant  must show that the donor gave the gift as a result of her own “full, free  and informed thought”: Geffen at 379. A defendant could establish this  by showing:

  1. no actual influence was used in the particular transaction or the lack of opportunity to influence the donor (Geffen at 379; Longmuir at para. 121);
  2. the donor had independent advice or the opportunity to obtain independent advice (Geffen at 379; Longmuir at para. 121);
  3. the donor had the ability to resist any such influence (Calbick v. Wame, 2009 BCSC 1222 at para. 64);
  4. the donor knew and appreciated what she was doing (Vout v. Hay, [1995] 2 S.C.R. 876 at para. 29, 125 D.L.R. (0) 431); or
  5. undue delay in prosecuting the claim, acquiescence or confirmation by the deceased (Longmuir at para. 76). Another relevant factor may be the magnitude of the benefit or disadvantage (Geffen at 379; Longmuir at para. 121).

[115] These statements of the law were recently confirmed by our Court of Appeal in Cowper-Smith v. Morgan, 2016 BCCA 200 at paras. 49—53. 3.

This case shows that simply being in a position for potential influence can be strongly rebutted by rebuttal evidence if there are not other suspicious circumstances.

  1. Huff Estate v Huff, 2021 BCSC 1400

Huff Estate was an application to convert a petition to an action based on allegations that the deceased’s will was procured in suspicious circumstances by the undue influence of a daughter who had moved in with the deceased, was present for meetings leading up to the signing of the will, arranged the appointment for the will’s signing, and drove him to the lawyer’s office.

The Court found that she was not bound to lose the decision, and it was necessary for the matter to proceed to trial to weigh and assess the credibility of the parties.

As stated in Robertson v. Dhillon, 20115 BCCA 469, if the defendant is bound to lose, the application should be granted, but if they are not bound to lose, then the application should be dismissed. This approach was followed in Kerfoot v Richter, 2018 BCCA 238, at paras 29 and 35, and the aforementioned Huff decision also followed the reasoning of the Kerfoot decision that undue influence may be established through circumstantial evidence.

In this case, the elements of one or all of the other surrounding circumstances was enough to meet the threshold of a triable action, which in essence, enough to establish the presumption under s.52 WESA.

6

Re Miles Estate, 2023 BCSC 873

Perhaps the most difficult case to rely upon regarding the presumption of S 52 undue influence is the Re Miles Estate decision, which basically stated that undue influence must be proven to show that the will was prepared as a result of the undue influence

In this matter the plaintiff’s claim to invalidate the last will of the deceased on the basis of undue influence and lack of mental capacity was dismissed. In dealing with section 52 of WESA, the Court confirmed that where an attacker of a will establishes the potential for dependence or domination of the will-maker, there is a rebuttable presumption that the will was executed under undue influence, and the onus is then on the proponent of the will to prove and undue influence was not exercised.

The Court stated that in order to rely in the presumption in section 52, the disputant must show not only that a person had the ability to unduly influence the will-maker, but that undue influence was in fact exercised, in that the will or relevant provision was the product of undue influence.

Suspicious circumstances of undue influence must be well-grounded, and presumptions regarding the validity of the will can only be rebutted by evidence of suspicious circumstances. The suspicious circumstances need to surround the preparation of the will, tend to call in to question the deceased testamentary capacity, or tend to show that the deceased free will was overborne by acts of coercion or fraud.

  1. Re Ross Estate, 2024 BCSC 459

In Re Ross Estate, two wills prepared by the deceased in 1979 and 2019 respectively were both struck as being invalid, either because the will-maker lacked the necessary testamentary capacity due to intellectual disability, or because of undue influence exerted by the respondent, who was declared to not be his spouse.

The Court stated that if the circumstances that would impose the statutory onus of section 52 WESA are not established, the party opposing the will may still prove actual undue influence. This standard requires proof of influence amounted to coercion, resulting in a will that did not reflect the deceased true intentions and was not their own act.

The Court stated that even if the presumption of s 52 were not available, they would have not have any difficulty finding based on the evidence that the respondent was the only person interested in liberating the deceased’s funds from the Public Guardian and Trustee, or inferring that she took advantage of his mental incapacity.

In the Court’s comments it is hard to find value in the specific application of s.52, but it can be a further factor assisting the Court in making their decision.

  1. Re Baylis Estate, 2025 BCSC 410

In Re Baylis Estate, a petition was converted to an action and referred the matter to the trial list, based on application materials that were sufficient to raise a triable issue on the issue of undue influence and testamentary capacity and whether the deceased fully understood and approved the contents of the will.

At paragraph 26, Weatherill J. stated:

[26] In short, before an application to prove a will in solemn form will be referred to the trial list, there must be a bona fide triable issue that cannot be determined by reference to affidavits and documents and would affect the outcome of the proceeding. A bona fide triable issue arises where, on the evidence, there is a dispute as to facts or law which raises a reasonable doubt or suggests there is an issue that deserves to be tried. Factors to consider include the undesirability of unnecessary costs and delay, witness credibility assessments being required, the need for the Court to have a full grasp of all the evidence and whether the interest of justice requires a trial to resolve the dispute: Konkin v. Harris, 2022 BCSC 1067 at paras. 72-79; Saputo at paras. 44-45.

In determining whether an application of petition should be converted to an action, the question is whether the party requesting the trial is bound to lose.

s.52 WESA and the quality of the surrounding evidence can become arguable before the Court sooner rather than later one a summary basis once a Petition is commenced.

  1. Re Wilson Estate, 2025 BCSC 457

Re Wilson Estate was an application to prove a will in solemn form, that was granted with the Court finding that the evidence overwhelmingly determined that the deceased was competent to make the subject will.  The Court further found that the respondents had failed to refer to any evidence to rebut the process by which the will was executed, beyond vaguely referring to the deceased’s hospitalization and that she was on pain medication.

With respect to s. 52 WESA, the Court stated that in order to invoke the presumption, the respondents must first prove that the petitioners were in a position of dependence and domination over the deceased. 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 negate knowledge and approval of testamentary capacity.

The Court cited Laszlo v Lawton, 2013 BCSC 305 regarding the doctrine of suspicious circumstances and stated that such suspicions 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 that 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 favors 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.

In Re Wilson, a hospitalization and belief that pain-medications may have been a factor was not enough to invoke s.52 WESA without further specific concerns.

  1. Re Underhill Estate, 2025 BCSC 172243

In Re Underhill Estate, the will-maker was a senior Vancouver solicitor, and his wife of 30 years sought to prove his will in solemn form. The application was opposed by his two sons, who alleged their father lacked mental capacity and was subject to the undue influence of his wife.

The sons’ application to convert their petition to an action was refused by the court.

Dealing with s. 52 WESA, the Court stated that upon a plain reading, the provision reverses the burden of proof in circumstances where there is even the potential for dependence on someone who receives a gift under a will. It does not however change the requirement that undue influence at common-law must ultimately be established on the evidence.

The children were required to prove that suspicious circumstances existed at the time of the execution of the will that raised a specific and focused suspicion that the deceased did not know and approve of the contents of the will, that he lacked the requisite capacity when the will was executed it, and was not the product of his own free will.

At paragraph 154 the Court stated a spousal relationship is not inherently a relationship of dependence for the purposes of s. 52 WESA.

The Court referred to the Miles decision that the challenger of the will must show not only that the person had the potential to unduly exercise the will-maker, but that the undue influence was in fact exercised, and that the will was the product of that influence.

“SUSPICIOUS CIRCUMSTANCES”

It is clear that while s.52 WESA has expanded the situations in which the presumption may be flipped to the propounder, it is clear that to ultimately prove a will or transfer to be invalid, it is won or lost on the supporting evidence.

  1. 52 WESA claims therefore must be accompanied by suspicious circumstance either around the willmaker/transferor’s capacity, the surrounding circumstances, or the will terms or inter vivos recipient.

The doctrine of suspicious circumstances will arise in circumstances that give rise to some suspicion.

The doctrine is intended to ensure that there is no doubt that the making of the will was the free and voluntary act of the will-maker, but what constititutes suspicious is open-ended and fact specific. A quick, inexhaustive list of the innumerable circumstances which could be suspicious includes the following:

  • advanced age or deteriorated health;
  • a marked change in estate planning;
  • where a gift is made to a person with whom the testator had a close relationship but which was not known or recognized by the testator’s family;
  • where a gift is made to a person who is in a position to influence the testator, such as a caregiver or, the primary example, the party preparing the will;
  • where an apparently unwarranted, undeserving or unpopular gift is made to a beneficiary who, in the minds of the those left behind, should not receive the gift;
  • where a gift is made to a beneficiary to whom the testator has had no close relationship, such as unconnected charity;
  • where the division of assets among the children of the testator is substantially unequal, or a certain child or children are harshly treated;
  • where the will substantially deviates from previous wills;
  • a new romantic partner or friend;
  • where a gift is made to a person standing in a fiduciary relationship;
  • where the beneficiary accompanies the testator on each trip to the will-drafter’s office during the process to complete the will;
  • where the will-drafter receives the testator’s instructions from someone other than the testator;
  • where the testator has had a recent serious illness or hospitalization;

where there is any question about the testator’s testamentary capacity

 

  • where there are indications that the testator abuses alcohol or uses medications that are potentially mind-altering;
  • where the testator has entered into a hasty or unwise marriage or common-law relationship;
  • where there is evidence that the testator is depressed; or
  • where there is a language/cultural disability or illiteracy.

The law relating to the intersection of testamentary capacity and suspicious circumstances was well canvassed in Laszlo v. Lawton, 2013 BCSC 305. The Court recognized that faltering mental capacity is prone to fluctuate and the authorities permit variation of the degree of capacity required at such pivotal times.

The well-established case of Banks v. Goodfellow, 1870 LR 5 Q.B. 549, remains the foundation of capacity assessment, and holds that in order to prove the will-maker had testamentary capacity, four criteria must be met:

  1. The testator must understand that she is making a will and that a will disposes of property upon her death;
  2. The testator must know the assets she disposes of; that is, she understands the nature and extent of her property;
  3. The testator must understand and appreciate the claims to which she ought to give effect; that is, those who have an appropriate claim upon her bounty; and
  4. The testator must be free of delusions that may affect her decision

A more modern formulation of the test is found in Re Schwartz, [1970] 2 OR 61 at 78 (CA), aff’d [1972] S.C.R. 150 where Laskin J.A. (dissenting on other grounds) summarized the elements of testamentary capacity:

… The testator must be sufficiently clear in his understanding and memory to know, on his 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. …

To lack testamentary capacity does not mean that the testator must be in a perpetual state of substandard competence- it may change or fluctuate slightly or wildly so that at times a person may be of sound mind, while at other times may not be.

The Courts recognize that Alzheimer’s and dementia can impair a testator’s mental powers, such that he or she is not capable of making a will; however, a diagnosis of dementia, standing alone, does not automatically correspond to testamentary incapacity.

A person who is judicially declared incapable of managing his or her affairs pursuant to adult guardianship legislation, or who suffers from a chronic mental illness such as schizophrenia, may still have the capacity to make a valid will.

The issue of whether a testator has the requisite capacity to make a will is a question of fact to be determined in all of the circumstances. Testamentary capacity, however, is not a medical concept or diagnosis–it is a legal construct. Medical evidence, while important and relevant, is neither essential nor conclusive in determining the presence or absence of testamentary capacity.

Lay witnesses who have known the testator for many years can be very significant witnesses, and it is open to the court to accord greater weight to lay evidence than medical evidence, or to reject the medical evidence altogether.

It naturally follows that there is a connection from s.52 WESA to capacity, as ultimately, the disputant is suggesting that someone was vulnerable, incapable, or was unable to resist influence.

As a practical matter, the standard of proof is a balance of probabilities; however the case law makes clear that the evidence is to be scrutinized in accordance with the gravity of the suspicions raised [Vout v. Hay, [1995] 2 S.C.R. 876 at para. 27].

CASES WITH S.52 WESA, UNDUE INFLUENCE, AND VALIDITY OF WILL CLAIMS

Jung Estate v. Jung Estate, 2022 BCSC 1298, is instructive, as Blake J. held at paragraph 6 of her reasons that the order of determination of issues in a validity of wills case is as follows:

 

  1. Are there suspicious circumstances surrounding the creation and execution of the will?

 

  1. Did the will-maker have testamentary capacity at the time she made the will?

 

  1. Did the will-maker know and approve of the contents of the will? and

 

  1. Was the will-maker unduly influenced to make the will?

 

The interplay between the presumption of validity of a will and the doctrine of suspicious circumstances is summarized by Blake J. at paras 37 to 40 of her reasons in Jung Estate:

37      The parties agree that Jerry, in his capacity as the personal representative of the Will, has proven the formal validity of the Will in accordance with s. 37 of WESA. That is, that the Will is in writing, was signed at the end by the will-maker in the presence of two witnesses present at the same time, and was signed by those witnesses in the presence of the will-maker. When a will is executed in accordance with the statutory formalities after having been read by or to the testator, who appeared to understand it, the propounder is aided by a rebuttable presumption that the will-maker possessed the requisite knowledge and approval, and testamentary capacity: Vout v. Hay,[1995] 2 S.C.R. 876 at para. 26 [Vout ]; Laszlo v. Lawton, 2013 BCSC 305 at para. 202 [Laszlo ]. In such circumstances the testamentary capacity of Ms. Jung, and her knowledge and approval of the contents of the Will, are presumed.

 

38      However, if suspicious circumstances are shown to be present either in respect of Ms. Jung’s testamentary capacity or her knowledge and approval of the contents of the Will, then this evidentiary presumption is said to be spent, meaning it has no application. If so, the burden reverts to Jerry as the propounder of the Will to prove both testamentary capacity and knowledge and approval on a balance of probabilities, which necessarily entails dispelling the suspicious circumstances raised: Vout at para. 27; Laszlo at para. 204; Lantzius Estate, 2015 BCSC 935 at para. 64 [Lantzius Estate ]; Halliday at para. 32.

 

39      The standard of proof is a balance of probabilities; however the case law makes clear that the evidence is to be scrutinized in accordance with the gravity of the suspicions raised: Vout at para. 24; Lantzius Estate at para. 64; Laszlo at para. 205; Leung v. Chang, 2013 BCSC 976 at para. 31, aff’d 2014 BCCA 28, leave to appeal ref’d [2014] S.C.C.A. No. 261 (S.C.C.) (S.C.C.) [Leung]; Allart Estate v. Allart, 2014 BCSC 2211 at para. 33 [Allart Estate].

 

40      Suspicious circumstances must raise what has been described as a “specific and focused suspicion”; a “general miasma of suspicion that something unsavoury may have occurred” is not sufficient: Leung at para. 32; citing Clark v. Nash(1989), 61 D.L.R. (4th) 409 at 425 (B.C.C.A.). Such suspicions must be “well grounded” and will generally relate to circumstances (1) surrounding the preparation and execution of the will, (2) calling into question the capacity of the will-maker, or (3) tending to show that the free will of the will-maker was overborne by acts of coercion or fraud: Vout at para. 25; Allart Estate at para. 32. There is no checklist of suspicious circumstances, but one commonly occurring theme is where a beneficiary is instrumental in the preparation of the will (especially where they stand in a fiduciary position to the testator): Laszlo at para. 207.

As stated in Moore v Drummond, 2012 BCSC 1702 by Smith J. at para. 40:

The “suspicious circumstances” must do more than create “a general miasma of suspicion”; they must create “a specific and focussed suspicion that the testator may not have known and approved of the contents of the will”: Clark v. Nash (1989), 61 D.L.R. (4th) 409 at 425 (BCCA).

In Jung, the Court found that a presumption of undue influence applied but undue influence was not found.  The Defendant had been instrumental in making the arrangements and providing information to the preparing lawyer, including his understanding of what the will-maker wanted, yet the Court found that the will-maker’s receipt of advice and the totality of evidence, on the balance, did not warrant a finding of undue influence.

The burden is on the contesters of a will to rebut the presumption of testamentary capacity by showing there were issues surrounding the creation of the will, such as fraud, undue influence, coercion, or suspicious circumstances, regarding the will-maker’s capacity or knowledge and approval: Singh Estate (Re), 2019 BCSC 272 at para. 89 (“Re Singh Estate”) at para. 61.

It can be seen at the trial level that unless the influence evidence is strong, the Court

will ultimately be considering the evidence alleging suspicions against the will or transfer and that in its support, and will be guided by the strong presumption of capacity and in effect, hesitant to take away a person’s (often final) autonomy.

HOW TO IDENTIFY UNDUE INFLUENCE: Solicitors

This section pertains primarily to elderly clients but is not limited to them.

Explore whether will-maker is in a relationship of dependency, domination or special confidence or trust. Some sample questions to consider asking the will-maker or transferor would be:

  • Do you live alone? With family? A caregiver? A friend?
  • Has anything changed in your living arrangements recently?
  • Are you able to go wherever and whenever you wish?
  • Does anyone help you more than others? Who arranged/suggested this meeting?
  • Does anyone help you make decisions? Who does your banking?
  • Has anyone asked you for money? A gift?
  • Do you feel like you owe anyone something?

Carefully and respectfully explore whether will-maker is a victim of any form of abuse or neglect in other contexts. Some sample questions to consider might be:

  • Has anyone ever hurt you? Has anyone taken anything that was yours without asking?
  • Has anyone scolded or threatened you? Are you alone a lot?
  • Has anyone ever failed to help you take care of yourself when you needed help?
  • Are there people you like to see? Have you seen these people or done things recently with them? Conversely, are there people you don’t wish to see?
  • Has anyone demanded money, estate planning, or transfer of your assets?
  • Has anyone ever threatened to take you out of your home and put you in a care facility?

Obtain relevant information from third parties when possible and if the will-maker consents, such as:

  • Medical assessments
  • Committeeship proceedings
  • Powers of Attorney
  • Financial information
  • Credit search
  • Relationship dynamics

Obtain medical assessment if mental capacity is also in question, but remember that mental capacity to make a will is ultimately a legal test.

Compile a list of events or circumstances indicating undue influence, if detected. If there are concerns about undue influence you should not act, and should proceed appropriately to your circumstances.

If there is potential for the appearance of influence, this aspect should be noted, and there should be evidence in support of how the matter was considered and was not an issue in your determination.

As a practice note, when canvassing these sensitive matters there is clearly need to need to act with tact, discretion and awareness for the client’s well-being, on a case by case basis, and to refer to community resources if and when appropriate.

 

RED FLAGS TO WATCH FOR

 

The preceding section pertained to primarily preparing solicitors asking questions and receiving information from the client, but lawyers will of course need to make their own observations and judgements as well.

The following list is not complete or definitive, but is an aid to practitioners to identify potential undue influence so that they will be alerted to carry out the necessary inquiries before preparing a will or transfer for execution, or working backwards as litigators, what to look for.

(a)        Will-maker invests significant trust and confidence in a person who is a beneficiary or is connected to a beneficiary (e.g. lawyer, doctor, clergy, financial advisor, accountant, formal or informal caregiver, new “suitor” or partner, etc.).

(b)        Isolation of will-maker resulting in dependence on another for physical, emotional, financial or other needs.

(c)        Physical, psychological and behavioral characteristics of will-maker.

Examples:

  • Dependence on beneficiary for sight, hearing, mobility, speech, illness, illiteracy. They will typically be accompanied to the relevant appointments by said person.
  • Signs of withdrawal, neglect/self-neglect (emaciation, inappropriate clothing, bruising, untreated injuries).
  • If they are in state of shock after stressful situation or grieving

(d)       Non-specific factors, such as unusual behaviour or instructions, particularly if the latter is changing.

(e)        Cultural influences, conditioned responses, fear of family member or community.

(f)        Impaired mental function from a psychiatric condition or a non-psychiatric cause (e.g. trauma, stroke, substances)

Examples:

  • Short term memory problems, disorientation, difficulty with finances.
  • Signs of depression (e.g. irritable, agitated, difficulty making decisions, sad face, bowed head, general lethargy).
  • Extreme sense of well-being, continuous speech, inability to concentrate, poor judgment.
  • Apprehensive or appearance of being worried, distressed, overwhelmed.
  • Inability to answer open-ended questions.

(g)        Circumstances related to making of the will and/or the terms.

Examples:

  • Unusual gifts; sudden change for no apparent reason; frequent changes.
  • Marked change in instructions from prior wills.
  • 3rd party initiates instructions which also benefit 3rd party.
  • Beneficiary speaks for will-maker, offers to pay for new will, or is otherwise asserting control.
  • The will-maker relies on notes to give instructions.
  • Spouses: joint retainer but one spouse provides instructions while other remains silent.
  • Recent death of a family member and other family appear to influence changing existing will.
  • Reconciliations

(h)        Characteristics of influencer in will-maker’s family or circle of acquaintance.

Examples:

  • Overly helpful.
  • Insists on being present during interview with practitioner and on calls.
  • Contacts practitioner persistently after instructions are taken.
  • Practitioner observes negative and/or controlling attitude to will-maker.
  • Practitioner is aware that influencer is in difficult financial circumstances and/or engages in substance abuse.

(i)         Practitioner’s “gut feeling”.

Examples:

  • Body language of will-maker indicates fear, anxiety, insecurity, embarrassment, etc.
  • “Influencer” is difficult to deal with at appointment.
  • “Influencer” is rude to staff in office or on telephone, or is overly solicitous.

The practitioner’s gut factor might be formed instantly or it may develop through the course of the intake and meetings, but the gut factor is all encompassing of the other ‘flags’, and you must trust it.

Some helpful considerations for both solicitors and litigators, regarding the further quality of advice when screening for influence is set out in Cowper-Smith v. Morgan, 2016 BCCA 200:

 

51      The following considerations have also been identified as relevant to the assessment of the legal advice provided to the donor (Fowler Estate v. Barnes (1996), 142 Nfld. & P.E.I.R. 223 (Nfld. T.D.), Green J., adopted in Coish v. Walsh, 2001 NFCA 41 (Nfld. C.A.) at para. 23):

 

  1. Whether the party benefiting from the transaction is also present at the time the advice is given and/or at the time the documents are executed;
  2. Whether, though technically acting for the grantor, the lawyer was engaged by and took instructions from the person alleged to be exercising the influence;
  3. In a situation where the proposed transaction involves the transfer of all or substantially all of a person’s assets, whether the lawyer was aware of that fact and discussed the financial implications with the grantor;
  4. Whether the lawyer enquired as to whether the donor discussed the proposed transaction with other family members who might otherwise have benefited if the transaction did not take place; and
  5. Whether the solicitor discussed other options whereby she could achieve her objective with less risk to her.

These are known as the “Coish” factors, and can be helpful considerations for preparing counsel anticipating issues, as well as litigators, assessing the quality of evidence within fact patterns.

Clearly, when faced with even the potential for accusations of potential influence, the drafting lawyer should turn their mind to such possibility and document in their file how they were satisfied in their assessments.

 

There would appear to have been many cases where s.52 WESA may have applied in the initial stages of claims, but were rebutted on the evidence along the way and did not make it to trial.  If and when the legal file is produced, the quality of the file can help these issues be determined earlier rather than later within the litigation, seemingly short of trial.

TIPS ON HOW TO WIN AN UNDUE INFLUENCE CASE

The starting point would be to in your view establish the potential basis for s.52 to apply as the lowest of threshold, but think ahead to the more demanding evidence that will be required with respect to surrounding suspicious circumstances, in order to ultimately prevail.

Before undertaking such a case, counsel should consider being retained on a limited basis to gather preliminary facts, which can assist client and counsel in determining whether there is a good likelihood of success. This may not be required if probable lack of testamentary capacity is apparent from the outset, or conversely, it may be revealed that there is only a ‘general miasma’ of suspicion, ie, conjecture.

The obvious difficulty with most undue influence cases is the absence of witnesses. Most often there are only two people involved; one is now passed away and the other is not talking, or has clear self-interests. Accordingly, there are usually immense problems in determining the facts upon which to allege undue influence, and as such, counsel should be selective in deciding whether or not to accept such cases.

 

If there are no supporting facts or evidence, then counsel should not presume that costs would automatically be paid out of the estate to the involved parties, if the matter involved a will. A claim found to be brought with little or no evidence will be treated as such, even if you have s.52 WESA and its presumption as your starting point.

 

File a Notice to Dispute right away, but you do not need to commence the court action until you have sufficient proof to justify your allegations of undue influence. The respondent/defendants may quickly move for a summary trial, and as mentioned, the Court may award costs or higher costs against your client if you cannot prove the allegations.

Interview the witnesses to the will or transfer, if they are willing to without Court order.

Consider retaining an experienced private investigator to assist in determining the facts if necessary, but it is crucial to interview almost every person who knew the deceased at the relevant times, ie, those in their orbit.

 

Try to obtain information about the disputant – it is surprising how often there may be evidence of prior undue influence allegations by those now alleging it.

 

Get as many records as possible concerning the deceased. This would include all medical records from every doctor and medical institution for at least 7 years prior to death. It would also include the lawyer’s notes, and perhaps the lawyer’s notes of previous wills.

 

Marshall the suspicious circumstances and present them in the form of facts to prove the case (usually built through circumstantial evidence). Look to emphasize situations showing a pattern of the defendant making the deceased more dependent (i.e. isolating and limiting access, declining capacity, etc.)

 

Recognize and benefit from the lack of sophistication of most perpetrators of undue influence. It can be the case that their receipt of the interest is done in a rushed and bullish manner.  It may have been done at an unusual place or time.

It can be the case of a ‘new to the scene’ influencing voice, which aids in establishing the suspicion, as does the ‘slow creep’ of one influencer to the exclusion of others who had an expectation or were previously beneficiaries.

 

Try to avoid a summary trial unless you have an overwhelming case. When seeking to establish the influence of the defendant, credibility assessment (or enough evidence) is a necessary component.

 

Obtain expert opinion(s) from those such as geriatric psychiatrists(s) who preferably have treated the deceased or, if not, then one who never met the deceased. Have them review all of the records and tender an opinion on both testamentary capacity and the relative vulnerability of deceased to any undue influence, at the material time(s).

 

Take these steps as soon as possible. The family may come to see you prior to the death. Even where you cannot assist them to diminish any inappropriate influence, you can start to build your case as pro-actively as possible. This can involve everything from letters to doctors, banks and the Public Guardian and Trustee, to obtaining an injunction or committeeship materials.

 

It can be helpful to use demonstrative evidence such as home videos, photographs, handwriting samples, Facebook pages, diaries and the like to try to demonstrate a “before and after” situation where there is evidence of medical or psychological decline.  The right picture can be illustrative when it comes to either capacity or relationships/influence.

Cross-examine the handling lawyer or notary. Try to get an order to discover them, as even the most careful and senior lawyers may fall short in their duties. It can be highly effective to use the Law Society checklist to cross-examine the lawyer.

 

Lastly, develop early on, work on throughout, and do not underestimate the power of a narrative. The evidence must come together to form a narrative in support of the result you seek to obtain.  This is particularly important for plaintiffs or defendant should the documents be limited or working against your client’s interest.

 

CONCLUSION

S. 52 WESA has helped to expand and clarify the law when it comes to establishing

the presumption of undue influence in wills and inter vivos transfers.  However, it is not a robust tool when it comes to proving the ultimate issues, which will always be determined on a case by case basis, and highly fact-specifically.

There can be cases wherein there are various competing presumptions in play, and while rare, s. 52 WESA could be a deciding factor for the Court.

For example, if there are competing presumptions for the validity and again against an intestacy, and the Court is separately considering the issue of suspicious circumstances, it is one more potential shift of the burden of proof for the Court to consider.

In application, S.52 WESA in our view has not provided the presumption that was desired.  In order to ultimately succeed at trial, there must be good evidence of suspicious circumstances and a connection of the accused to the benefit they received, and not just being in the position for potential influence.

 

 

 

Vancouver Estate Lawyer – Appointing a Litigation Guardian

Trevor Todd and Jackson Todd have over 60 years of combined experience in handling estates disputes including litigation guardians.

 

The decision of Woike v Woike 2025 BCSC 1460 involved a dispute between an incompetent person’s transfer of shares and his step daughter who was appointed his power of attorney and his daughter who applied to be his court appointed litigation guardian.

The dispute arose between the power of attorney and the daughter as it was asserted that the daughter had an interest in litigation that arose out of the transfer of the shares that arises to a conflict of interest.

Since disability was not defined the court also reviewed the test for determining when a person requires the appointment of a a litigation guardian.

Rule 20-2(1) – appointment of litigation guardian

[22]         Rule 20-2(1) of the Supreme Court Civil Rules provides that if a party to a proceeding becomes a mentally incompetent person, the court must appoint a litigation guardian for the party unless a committee has been appointed for the party or the party has a litigation guardian under s. 35(1) of the Representation Agreement Act.

[23]         As the Rules do not define the phrase “persons under disability”, courts have found a person to be under disability if they are an infant or “mentally incompetent”: Karringten v. Morrisonn, 2023 BCSC 570 and E.M.E. v. D.A.W., 2003 BCSC 1878 at para. 16.

[24]         The Interpretation Act, R.S.B.C. 1996, c. 238 defines a “mentally incompetent person” as a person with a mental disorder as defined under s. 1 of the Mental Health Act, RSBC 1996, c. 288. Under the Mental Health Act, a mental disorder is a disorder of the mind that requires treatment and seriously impairs a person’s ability to (a) react appropriately to the person’s environment, or (b) associate with others.

[25]         The overarching test is whether a person is significantly impaired in their ability to conduct their affairs in the broader environment of their community, and that one factor to consider is whether the person is capable of instructing counsel and exercising judgment in relation to the claims at issue: Karringten at para. 32.

 

One of the recommended tests determining whether an individual can conduct civil litigation is whether they have the “ability to act appropriately to a minimal standard that would enable (her) to function in the broader environment of her community”

 

In Lodge (guardian ad litem of) v. Lodge, [2003] B.C.J. No. 1833 which considered the Supreme Court decision of Gronnerud (Litigation Guardian of) v. Gronnerud Estate, [2002] 2 S.C.R. 417, 2002 S.C.C. 38 stated the applicable criteria in appointing a litigation guardian:

[16]      In the more recent decision of Gronnerud (Litigation Guardian of) v. Gronnerud Estate, 2002 SCC 38, the Supreme Court of Canada had an opportunity to comment on the Court’s duty and obligations when faced with a similar application.  In that case the trial court had appointed two adult children as litigation guardians of their mother.  As in this action, the litigation guardians commenced matrimonial proceedings on behalf of their mother against the estate of her husband seeking equal division of matrimonial property, etc.  The Saskatchewan Court of Appeal removed the two adult children as litigation guardians, and replaced them with the Public Trustee.  On further appeal by the two adult children, the Supreme Court of Canada considered the applicable criteria in deciding whether to remove a litigation guardian.  The applicable provision of the Queens Bench Rules of Saskatchewan was set out by the Supreme Court of Canada at para. 14 of its decision.  That Rule provides as follows:

49(1)    Where, at any time, it appears to the court that a litigation guardian is not acting in the best interests of the person under disability, the court may appoint and substitute another person as litigation guardian on such terms and conditions as may seem just.

[17]      The Supreme Court of Canada, in its reasons at para. 3 and following, reviewed the history of the litigation and then reviewed the criteria for removing the litigation guardian.  In so doing, the Court concluded that under the Saskatchewan Rule the test to remove a litigation guardian turned on the “best interests of the dependent adult”.  The Court set out criteria that it found from leading Saskatchewan authorities, which criteria I find would also be required on the appointment under our Rules of Court.  These criteria set out in para. 19 by the Supreme Court of Canada are as follows:

  1. the evidence must establish that the incompetent is unable to act for himself or herself;
  2. evidence should be verified under oath as to the incompetent’s mental condition and his or her inability to act as plaintiff;
  3. evidence must demonstrate that the litigation guardian is both qualified and prepared to act, and in addition is indifferent as to the outcome of the proceedings;
  4. the applicant should provide some evidence to support the claim being made;
  5. the applicant should obtain the consents of the next-of-kin or explain their absence;
  6. if the applicant has a personal representative or power of attorney whose status is not being challenged in the proceedings, some explanation should be offered as to why the attorney or representative has not been invited to bring the claim.

(my emphasis added)

[18]      Major, J. speaking for the majority said this at para. 20:

The third criterion, that of “indifference” to the result of the legal proceedings, essentially means that the litigation guardian cannot possess a conflict of interest, vis-a-vis the interests of the disabled person.  Indifference by a litigation guardian requires that the guardian be capable of providing a neutral, unbiased assessment of the legal situation of the dependent adult and offering an unclouded opinion as to the appropriate course of action.  In essence the requirement of indifference on the part of a litigation guardian is a prerequisite for ensuring the protection of the best interests of the dependent adult.  A litigation guardian who does not have a personal interest in the outcome of the litigation will be able to keep the best interests of the dependent adult front and centre, while making decisions on his or her behalf.  Given the primacy of protecting the best interests of disabled persons, it is appropriate to require such disinterest on the part of a litigation guardian.  (my emphasis added).

…

[21]      Applying these decisions from Ontario and Saskatchewan to Rule 6(8) and 6(10) of the Rules of Court establishes in my mind the following principles with respect to a litigation guardian in British Columbia, namely:

(a)        a litigation guardian will be found to have an “interest in the proceedings” adverse to the person under disability where there is a “high level of conflict”, between the proposed litigation guardian and a party in the proceeding;

(b)        a litigation guardian will also have an “interest adverse to the person under disability” in those cases where the litigation guardian stands to benefit, either directly or indirectly by the litigation, even if that benefit has not vested at the time of the appointment.  It is sufficient that the potential benefit, realistically assessed, is present.

 

Vancouver Estate Lawyer – Handwritten Changes to Will Admitted to Probate

Trevor Todd and Jackson Todd have over 60 years combined experience in handling estate disputes.

Re Koehler Estate 2025m BCSC 1110 exercised S. 58 WESA to cure an otherwise “normal” properly prepared will but for hand  written changes made by the deceased with the assistance of a friend on the same document, wherein the executor was changed and the residue was left to the friend who assisted with the hand notations on the will.

The prime asset of the estate was a house worth $700,000.

The LAW

Court order curing deficiencies

58(1) In this section, “record” includes data that

(a) is recorded or stored electronically,

(b) can be read by a person, and

(c) is capable of reproduction in a visible form.

(2) On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents

(a) the testamentary intentions of a deceased person,

(b) the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or

(c) the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.

(3) Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made

(a) as the will or part of the will of the deceased person,

(b) as a revocation, alteration or revival of a will of the deceased person, or

(c) as the testamentary intention of the deceased person.

(4) If an alteration to a will makes a word or provision illegible and the court is satisfied that the alteration was not made in accordance with this Act, the court may reinstate the original word or provision if there is evidence to establish what the original word or provision was.

[7]            I have been referred to three judgments in respect of the proper application of s. 58 of the WESA in such circumstances: Hadley Estate (Re), 2017 BCCA 311, at paras. 35-40; Gibb Estate (Re), 2021 BCSC 2461, at paras. 40-48; and Jakonen Estate (Re), 2022 BCSC 2261, at para. 44.

[8]            It is clear from these authorities that the focus of the court on a s. 58 application is to determine whether the testamentary document is authentic and represents a fixed and final testamentary intention. The factors listed in Jakonen assist the court in making that determination. Those factors include:

a)     Was the document or record made by the Deceased or by a third party? A document made by the Deceased is more likely to be given effect than a document made by a third party, including a lawyer’s draft: George v. Daily (1997), 143 D.L.R. (4th) 273 (Man. C.A.).

b)     Where was the document or record found? If the Deceased left the document or record in a prominent place where it was likely to be found, or with other testamentary documents, the document or record is more likely to be given effect: Skopyk Estate, 2017 BCSC 2335 at para. 22

c)     Is the document or record signed, or is there any other compliance of the formal requirements for a valid will? The greater the degree of compliance with the formal requirements, particularly if the document is signed, the greater the likelihood that the document or record will be given effect: Estate of Young, 2015 BCSC 182 at para. 39

d)     Is there a title on the document or record? If a document or record is given the title “will” or “codicil” or a similar notation, it is more likely to be given effect: Smith Estate (Re), 2016 BCSC 350 at para. 23.

e)     Is the language of the document or record dispositive, and does it have an air of finality? If so, it is more likely to be given effect: Smith Estate at para. 23.

f)      Does the document or record provide for a rational distribution? If so, it is more likely to be given effect: Skopyk Estate at para. 27

g)     Is the document or record consistent with other evidence of the Deceased’s intentions? If so, it is more likely to be given effect: Estate of Young at para. 3

[9]            Factors a), b), and c) from Jakonen include consideration of who made the notations on the document and other circumstances surrounding its preparation. In this case, Ms. Figgess’ evidence is that the notations were made by her, and not by the deceased. With respect to where the will was found, Ms. Figgess said that the deceased asked her to keep his will at her residence in a file stored in a box marked “TPK,” which she did. With respect to whether the document is signed, the Original Will is, but there are no signatures in respect of the handwritten changes.

[10]         Item e) from Jakonen directs the court to consider whether the language is dispositive. It is my view, having looked at the way the changes are expressed, the Original Will was clear as to what gifts were to go to whom, and the handwritten amendments are sufficiently clear as well. They simply remove one beneficiary and replace that person. So in my view, there is no issue with clarity.

[11]         This application, in my view, stands to be determined on items f) and g) from Jakonen: whether there is a rational distribution, and whether it is consistent with other evidence as to the deceased’s intention, looking at the available evidence as a whole. I appreciate that the deponent on whom I must rely in the circumstances is the person who benefits directly from the handwritten alterations to the will. That said, Ms. Figgess was also someone the deceased relied upon to assist him with such matters and someone that he apparently at all material times intended to make a gift to from his estate.

[12]         The evidence indicates that at his death, the deceased was not in a marriage-like relationship and had no natural or adopted children. The people mentioned in his will were all friends with whom he wishes to share his estate. Ms. Figgess’s evidence with respect to the circumstances surrounding Mr. Mercier’s removal from the will is set out in her affidavit #2 as follows (wherein “Thomas” is the deceased, and “Doug” is Mr. Mercier):

 

BC Estate Lawyer – Trustee’s Duty to Retain Records

Trevor Todd and Jackson Todd have over 60 years combined experience in resolving estate disputes including matters pertaining to executors and trustees.

 

Re Yorkiw Estate 2025 BCSC 1026 had the following to say about an executor’s duty to retain records:

 

Any trustee, but especially an institutional trustee charging for its services, has an obligation to maintain a file of trust documents. In an era in which most business is done electronically — sometimes by email, sometimes by text message, and sometimes perhaps by even more transitory electronic communication — this can pose challenges. If these communications have not been retained in a single, easily searched, repository, it may turn out to be time-consuming and expensive to reconstruct the “file” after the fact.

[6]            But that is why trustees should have procedures for electronic record retention, communicated to the beneficiaries at the outset. It is the trustee that has the obligation of ensuring the integrity of its file and it is the trustee that has the ability to put records management systems in place. The beneficiaries own the file, with the exceptions that are provided for by the caselaw. With proactive record management, it is not clear to me why that should be particularly onerous. Storage is cheaper and search is more sophisticated than it ever has been. If reconstructing the file is expensive or time consuming, then that indicates that prior planning was not adequate.

[7]            Courts will defer to a trustee’s reasonable record management and retention policies, but they are not going to be sympathetic to an institutional trustee coming back and saying it is no longer possible to conceptually determine what the “file” is, especially in the absence of evidence of diligence on the institutional trustee’s part.

[8]            That being said, I do need to try to clarify the conceptual issue of what the “file” is. As a starting point, it is the totality of trust documents. To determine what the file is, therefore, it is necessary to ask what makes a record (i.e., a medium encoding information) a “trust document”.

[9]            This was addressed by Lord Justice Salmon in very different technological circumstances in Re Londonderry’s Settlement, [1964] 3 All E.R. 855. In that case, the English Court of Appeal had to address the apparent conflict between the principle that trustees are not obliged to provide reasons to beneficiaries for discretionary decisions to allocate trust resources with the principle that beneficiaries have a proprietary interest in, and therefore a right to see, all trust documents. If the trustees recorded a communication among themselves, were the beneficiaries entitled to see it? The first principle suggested “no”, while the second principle suggested “yes”.

[10]         They answered this dilemma by saying that there is a right to see the trustee’s file, but that it has exceptions. Records can be withheld or information within records can be redacted if, but only if, there is a rule such that the beneficiary is not entitled to that information. If there is no such rule, then the record is held for the benefit of the beneficiary, and they therefore have an equitable proprietary interest in it, including the ”right to see” the record.

[11]         This principle is distinct from the right of litigants to document discovery, which is both narrower (since the beneficiary’s “right to see” does not require relevance to a material fact in dispute) and broader (since categories of exception to the principle that a beneficiary is entitled to see trust documents are not necessarily privileges).

[12]         In his speech, at p. 863, Lord Justice Salmon made the point that what matters is not really the document, but the information encoded in it. He declined to define trust documents definitively, but he pointed to two characteristics — namely that the document is in the possession of the trustee and that it includes information about the trust that the beneficiaries are entitled to know — that lead to the conclusion that the beneficiaries have a proprietary interest in the documents and are entitled to see them. He went on to say that since what matters is the information, if there is information in such documents that beneficiaries are not entitled to see – in that case, reasons for discretionary disbursements – then the document could be redacted.

[13]         Lord Justice Salmon’s speech has been taken to provide a definition of “trust document”, namely, a document in the possession of the trustee containing information about the trust, not subject to some rule permitting withholding.

[14]         Applying the principle of technological neutrality, this means that all physical and electronic records in the possession or control of the trustee that contain information about the trust are trust documents (and therefore in the “file”), unless:

  1. a)       They are “transitory” records. This would be records of a form that the trustee sets out in advance that it will not retain because the information is either duplicative or unimportant. These transitory records are not part of the “file” if they are, in fact, deleted or made inaccessible. The legitimacy of having rules providing for non-retention of transitory documents arises because this may be in the interests of the beneficiaries, for example, if retention is expensive.
  2. b)       They are within a category of exception to the principle that beneficiaries are entitled to see trust documents. As I identified in my prior decision, one such category would be documents subject to solicitor-client privilege where the trustee can maintain a separate interest from the beneficiary in the legal advice. While it would be best practice to identify these categories in advance and to set up information retention systems based on those categories, this is not required.

[15]         Unless all the information contained in a record is within one of these exceptions, the record is a “trust document” if it contains information relating to the trust and is in the possession of the trustee. So the “file” comprises all such records. The exceptions are set out in the case law. If there are to be any further exceptions, this must be explained to the beneficiaries at the outset, the exception must be in the interest of the beneficiaries (for example, by reducing expense) and the records must not relate to information necessary to accounting for the management of the trust.

 

 

Vancouver Estate Lawyer – Special Costs 2025

Trevor Todd and Jackson Todd have over 60 years experience in handling estate disputes including special costs where warranted.

Special costs are awarded by the court as a form of punitive costs where a party ahs been found to have acted with reprehensible conduct that deserves rebuke.

Parker Cove Properties Limited Partnership v. Gerow, 2024 BCCA 316, the BC  Court of Appeal stated:

The test for granting special costs is set out in Smithies Holdings v RCV Holdings Ltd 2017 BCCA 177at paras. 56–57:

…

[57]      The leading authority on special costs is this Court’s decision in Garcia v. Crestbrook Forest Industries Ltd. (1994), 9 B.C.L.R. (3d) 242 (C.A.). There the Court, set out that the threshold for special cost awards is “reprehensible conduct”. He noted the continuum of circumstances in which special costs could be awarded, ranging from “milder forms of misconduct deserving of reproof or rebuke” to “scandalous or outrageous conduct”:

Having regard to the terminology adopted  in Young v. Young, [[1993] 4 S.C.R. 3], to the terminology adopted  in Fullerton v. Matsqui [(District)(1992), 74 B.C.L.R. (2d) 311 (C.A.)],  and to the application of the standard of “reprehensible conduct”  in Leung v. Leung [(1993), 77 B.C.L.R. (2d) 314 (S.C.)] in awarding special costs in circumstances where he had explicitly found that the conduct in question was neither scandalous nor outrageous, but could only be categorized as one of the “milder forms of misconduct” which could simply be said to be “deserving of reproof or rebuke”, it is my opinion that the single standard for the awarding of special costs is that the conduct in question properly be categorized as “reprehensible”.

In Leung v. Leung, the word reprehensible is a word of wide meaning. It encompasses scandalous or outrageous conduct but it also encompasses milder forms of misconduct deserving of reproof or rebuke. Accordingly, the standard represented by the word reprehensible, taken in that sense, must represent a general and all encompassing expression of the applicable standard for the award of special costs.

As may be seen, the focus is upon whether the conduct in question may “be categorized as ‘reprehensible’”.

Hu v. Dickson, 2015 BCSC 218,  provided a useful review regarding the characterization of reprehensible conduct:

Special costs are awarded where a party’s litigation conduct can be characterized as “reprehensible”. In this context the word reprehensible encompasses both scandalous and outrageous conduct and also milder forms of misconduct deserving of reproof or rebuke: Garcia, para. 17. This does not mean that all forms of misconduct justify a special costs order – rather, the misconduct must be such as to be deserving of reproof or rebuke: Westsea Construction Ltd. v. 0759553 B.C. Ltd., 2013 BCSC 1352 at paras. 32 and 73.

The purpose for this high level of costs is punitive and intended to express the court’s disapproval of the party’s conduct. It is not necessary that all aspects of a party’s conduct in the litigation be reprehensible in order to make an award of special costs that applies to the entire action: Bradshaw v. Stenner, 2012 BCSC 237 at para. 9, leave to appeal ref’d 2012 BCCA 481. However, pursuant to Rule 16‑1(14) of the Supreme Court Family Rules, the court has the discretion to award costs that relate to only certain aspects of a proceeding and may do so where it would be disproportionate to award special costs of the entire proceeding: Gichuru v. Smith, 2014 BCCA 414], para. 91.

The court must exercise restraint in awarding special costs and as such the party seeking special costs must demonstrate exceptional circumstances to justify a special costs order: Westsea, para. 73.

In Kim v. Hong, 2013 BCSC 2248, Justice Griffin quoted extensively from the judgment  in Schwabe v. Dr. Lisinski, 2005 BCSC 1284, where he summarized a number of cases in an effort to discern the kinds of conduct that had been characterized as reprehensible and thus warranting an award of special costs. Justice Griffin also categorized the conduct that had been found to justify an award of special costs in a number of family cases.

From her reasons, it is apparent that the kinds of conduct that warrant an award of special costs include the following:

  • acting with an improper motive, such as to intimidate, exhaust or financially drain the other party in the hopes that they will give up or soften their position in the litigation;
  • dissipating and/or not disclosing assets;
  • abusing the court’s process by, among other things, failing to disclose documents, delaying in disclosing documents, failing to respond to reasonable requests, causing unnecessary interlocutory applications, and breaching the Rules of Court in a manner that prejudices the other party;
  • misleading the court, through outright fabrications or through evasive and/or equivocal responses; and
  • disobeying a court order.

 

Vancouver Estate Lawyer – Interpreting Ambiguous Wills

Trevor Todd and Jackson Todd have over sixty combined years of experience in resolving estate disputes, including the interpretation of ambiguous wills

Anderson v O’Brien 2025 BCSC 200 is a post WESA that deals with the legal principles utilized by the court in interpreting the wording of the will.

In the Anderson case there is an ambiguity to do with a $40,000 bequest to care for the deceased’s animals that was given to two persons. The words, “or if they both die before me” gave rise to a dispute between the parties. “

The court found that the words “or if they both die before me”, when viewed in the context of the surrounding circumstances, demonstrated a deliberate choice by the deceased to create a non-conditional gift. Accordingly, despite the fact that the dogs did not survive the deceased, the court found that the gift did not lapse and that the plaintiff was entitled to be paid the $40,000 legacy.

The Legal Framework 

The principles that apply when a Court is asked to interpret a will were conveniently set out by Justice Burke in Vopicka v. Vopicka Estate, 2017 BCSC 2197 at paras. 12-13:

[12] While there have been somewhat different approaches utilized by the BC Court of Appeal as to when the courts can look beyond the will itself to ascertain the intention of the testator, as noted recently in Killam v. Killam, 2017 BCSC 175, at para. 60, the starting point for any analysis is the language of the will. The court then looks to the surrounding circumstances existing at the time the testator made the will.

[13] A succinct summary of the principles to be applied in interpreting the will are set out in Dice v. Dice Estate, 2012 ONCA 468 [Dice], at paras. 36-38:
[36] The parties agree on the proper approach to the interpretation of a will. First, and foremost, the court must determine the intention of the testator when he made his will. The golden rule in interpreting wills is to give effect to the testator’s intention as ascertained from the language that was used: National Trust Co. Ltd. v. Fleury, [1965] S.C.R. 817 at p. 829; Brown Estate (Re), [1934] S.C.R. 324, at p. 330; Singer v. Singer, [1932] S.C.R. 44, at p. 49. Underlying this approach is an attempt to ascertain the testator’s intention, having regard to the will as a whole.

[37] Where the testator’s intention cannot be ascertained from the plain meaning of the language that was used, the court may consider the surrounding circumstances known to the testator when he made his will – the so-called “armchair rule”: Re Burke, [1960] O.R. 26 (C.A.), at p. 30; Re Shamas, [1967] 2 O.R. 275 (C.A.), at p.279, citing Perrin v. Morgan, [1943] A.C. 399 (U.K. H.L.), at pp. 420-21.

[38] Under this rule, the court sits in the place of the testator, assumes the same knowledge the testator had of the extent of his assets, the size and makeup of his family, and his relationship to its members, so far as these things can be ascertained from the evidence presented. The purpose of this exercise is to put the court in, as close as possible to, the same position of the testator when make his last will and testament.

At para. 13 of Killam v. Killam, 2018 BCCA 64 [Killam BCCA], the British Columbia Court of Appeal acknowledged that the Courts have recognized two approaches to determining a will-maker’s intention:

[13] The “four corners” approach provides that the intention of the testator is to be gleaned from the will itself, and surrounding circumstances are only to be taken into account if the testator’s intention cannot be established from the will. The “armchair” approach requires the court to put itself in the position of the testator at the time the testamentary document was written and to consider the contemporaneous surrounding circumstances in order to ascertain the subjective intentions of the testator. Implicit in the “four corners” approach is recourse to the “armchair” approach if the testator’s intent cannot be made out from the text of the will alone.

At paras. 51-52 of Killam BCCA, the Court of Appeal endorsed Justice Blok’s conclusion below, confirming that the “ultimate question in constructing a testamentary document is to determine the testator’s intention, and… the appropriate “starting point” is the language of the will” (at para. 52). The goal is to ascertain the actual meaning the will-maker ascribed to the words used, as opposed to what the will-maker may have meant to do: Thiemer Estate v. Schlappner, 2012 BCSC 629 at paras. 46-
48. If the Deceased’s intention cannot be discerned from the language of the Will itself, such that extrinsic evidence may be needed, s. 4(2) of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [WESA] limits the admissibility of such evidence (see Roberts Estate (Re), 2021 BCSC 1732 at para. 8):