Vancouver Estate Lawyer- Fraudulent Conveyances to Avoid Creditors

Trevor Todd and Jackson Todd have over sixty years combined experience in handling estate disputes including fraudulent conveyances.

 

In Weng v Fan 2026 BCSC 244 the court set aside a transfer of a mother’s only significant asset in a parcel of property to her son as a “gift” for $1 consideration as a fraudulent conveyance done to hinder, delay or avoid a claim by a creditor for about one million dollars.

The property was transferred after a claim was made against the defendant mother and prior to a judgment being made against her for one $million.

 

The Law

 

Section 1 of the FCA provides that a disposition of property “made to delay, hinder or defraud creditors and others of their just and lawful remedies … is void and of no effect against a person … whose rights and obligations are or might be disturbed, hindered, delayed or defrauded [by the conveyance], despite a pretence or other matter to the contrary”.

           The leading British Columbia authority on fraudulent conveyances is Abakhan & Associates Inc. v. Braydon Investments Ltd., 2009 BCCA 521 [Abakhan]. In Jasmur Holdings Ltd. v. Callaghan, 2019 BCSC 1966 [Jasmur] at para. 17, Justice Giaschi set out the following principles that may be derived from Abakhan:

[17]      …

  1. a)The FCAis to be construed liberally (para. 62);
  2. b)An intent to put one’s assets beyond the reach of creditors is all that is required to void a transaction (para. 73);
  3. c)A dishonest intent or mala fidesis not a necessary element to avoid a transaction under s. 1 of the FCA (para. 65);
  4. d)Intent is a state of mind and a question of fact (para. 74);
  5. e)Intent can be proven by direct evidence of the transferor’s intent as well as by inferences from the transferor’s conduct, the effect of the transfer and other circumstances (para. 80);
  6. f)Where a transfer of property has the effect of delaying, hindering or defeating creditors, the necessary intent is presumed (paras. 58–59 and 75);
  7. g)Inadequate consideration paid for the transferred property may be indicative of fraudulent intent (para. 76);
  8. h)It is not necessary to show the transferor was insolvent at the time of the transfer (para. 60);
  9. i)It is not necessary for the applicant to show that he or she was a creditor at the time of the transfer. Future creditors are also protected (paras. 78 and 87); and
  10. j)It is no defence that the transfer was also in furtherance of a legitimate business objective (paras. 84–85).

Further, the law imposes on a defendant an evidentiary duty to rebut prima facie suspicious circumstances, referred to in the jurisprudence as “badges of fraud.” Where one or more such badges of fraud exist, the requisite fraudulent intent is presumed: Kootenay Savings Credit Union v. Brar, 2021 BCSC 2027 at para. 39.

In Prima Technology Inc. v. Yang, 2018 BCSC 94 [Prima Technology] at para. 23, the Court, citing the decision in Banton v. Westcoast Landfill Diversion Corp., 2004 BCCA 293, listed the following indicia of fraudulent intent:

[23]      …

  1. a)the state of the debtor’s financial affairs at the time of the transaction, including his income, assets and debts;
  2. b)the relationship between the parties to the transfer;
  3. c)the effect of the disposition on the assets of the debtor, i.e. whether the transfer effectively divests the debtor of a substantial portion or all of his assets;
  4. d)evidence of haste in making the disposition;
  5. e)the timing of the transfer relative to notice of debts or claims against the debtor; and

f)      whether the transferee gave valuable consideration of the transfer.

 

Section 2 of the FCA provides:

Application of Act

2 This Act does not apply to a disposition of property for good consideration and in good faith lawfully transferred to a person who, at the time of the transfer, has no notice or knowledge of collusion or fraud.

[Emphasis added.]

In Chan v. Stanwood, 2002 BCCA 474, the Court held:

[20]      … Where the consideration is inadequate or nominal, a creditor need only show that the transferor intended to delay, hinder or defraud the creditor of his remedies. Where on the other hand valuable consideration has passed, the creditor must also show that the transferee actively participated in the fraud.

With respect to the defendant’s assertion that the plaintiff’s claim was barred by the statute of limitation the court stated :

Under s. 8 of the present Act, a claimant should not be deemed to have discovered that they have suffered a loss due to a fraudulent conveyance of property until their claim to that property is established as a result of a judgment.

In the case at bar, judgment in the underlying action was pronounced on February 12, 2024, and this action was commenced on February 26, 2024. The claim was therefore filed well within the two-year limitation period and the defendants’ limitation defence is dismissed

Vancouver Estate Litigator: Couple Who Never Cohabited Found to Be in Marriage-Like Relationship

Marriage-Like Relationship

Trevor Todd nd Jackson Todd have over sixty combined years in resolving estate disputes including marriage like relationships

Sharon Clark died without a will and had no children or surviving parents. Her only sibling, the appellant, challenges the trial judge’s finding that she and her former partner were spouses under the Wills, Estates and Successions Act, S.B.C. 2009, c. 13.

He argues the trial judge erred in failing to consider Ms. Clark’s subjective intentions and in finding there was a marriage-like relationship. The parties never cohabited as a couple.

Held: Appeal dismissed. Determining whether a relationship is marriage-like involves a fact-driven contextual analysis of all the evidence relevant to the various indicia of a spousal relationship. The trial judge did not err in considering the parties’ intentions or in her approach to assessing the indicia of a marriage-like relationship.

MS Clark died in 2020 at age 79. She had been in a relationship with Mr. Matossian for 38 years He died two years after Ms Clark. A court action was commenced that for an order that Clark and Mastossian were spouses under S 2(1)(b) of WESA. The trial judge agreed they were and the appeal court upheld that decision.

The parties never cohabited as man and wife but they spent a lot of time together and many witnesses testified as to same and there was a significant body of evidence such as photographs of them and travel documents together.

The two had separate finances and did not provide for each other in a will or through beneficiary  designations.

They discussed moving together early in their relationship but there wasn’t enough room in her apartment due to her hoarding

She spent most nights at his house ,had a parking stall there and a key to his house.

They had an exclusive sexual relationship and were considered by friends to be a couple. Their daily routines revolved around each other

The Law

  • The generally accepted characteristics of a marriage-like relationship set out many decades ago in Molodowich v. Penttinen, 17 R.F.L. (2d) 376, 1980 CanLII 1537 (Ont. Dist. Ct.): shared shelter, sexual and personal behaviour, the provision of services, social activities, children, economic support and the social perception of the couple;
  • A shorter list of five considerations or factors identified in the much more recent decision of Justice Matthews in McDowell v. Andrews, 2018 BCSC 2216 at para. 23; and
  • The well-established approach to the factors and the evidence in determining whether a relationship is marriage-like.

Addressing this approach, the trial judge recognized that the factors are not to be treated as a checklist and the presence or absence of any particular factor is not determinative, based on leading authorities. Instead, each relationship must be assessed based on a contextual and holistic approach to the evidence, recognizing the diversity of spousal relationships and how they are structured: at para. 60 citing Austin v. Goerz, 2007 BCCA 586 at para. 58.

It is the intentions of the parties plural that is identified as a factor and, in Mother 1 v. Solus Trust Company Limited, 2021 BCCA 461, as a factor that must be considered in deciding whether a relationship was marriage-like. Mother 1 also provides a finding of mutual intention is not a prerequisite as explained in Weber. That explanation informs what I see as the requisite approach to considering the parties’ intentions:

[23]      The parties’ intentions – particularly the expectation that the relationship will be of lengthy, indeterminate duration – may be of importance in determining whether a relationship is “marriage-like”. While the court will consider the evidence expressly describing the parties’ intentions during the relationship, it will also test that evidence by considering whether the objective evidence is consonant with those intentions.

[24]      The question of whether a relationship is “marriage-like” will also typically depend on more than just their intentions. Objective evidence of the parties’ lifestyle and interactions will also provide direct guidance on the question of whether the relationship was “marriage-like”.

[30]         Similarly, Jones v. Davidson, 2022 BCCA 31, endorsed a contextual characterization of the relationship that may or may not include a party’s subjective intention. The Court opined, “subjective evidence, where there is evidence of such, may be tested by reference to the objective evidence”, which, in turn, may address a wide assortment of characteristics or indicia: Jones at para. 24 (emphasis added).

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 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

Digital Will

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):

BC Estate Litigation- S 58 WESA “Cure” Refused

Trevor Todd and Jackson Todd have over 60 years combined experience in handling the estate disputes, including interpreting purported wills and utilizing section 58 WESA.

In Reid estate 2024 BCSC 1932 the court refused to cure a hand written note written by the deceased, and held that it did not represent the last testamentary intentions of the deceased.

Section 58 applications are very fact determinative

The deceased was a longtime chronic alcoholic, and the evidence was that she would often call people in the middle of the night and ramble on in slurred speech.

The court found that the document was not proven to be on the balance of probabilities to be the fixed and final testamentary of the intentions of the deceased due to the following finding of facts:

  1. The document did not refer to itself as a will, but instead started with the words” I smell death”. The evidence was that she would use these types of words in her late night drunken phone calls;
  1. The date of the document was unclear as it was undated;
  1. The document was found to be incomplete in several aspects;
  1. There was a contradictory instruction as to the disposition of her remains. She wrote about internment and then wrote she wanted her ashes scattered, which are inconsistent with each other;
  1. The court questioned why she took a wills questionnaire form with her to the hospital, as opposed to simply not writing another handwritten document to support the allegation that she intended this to be a last testamentary document;
  1. The document was unwitnessed;
  1. She died at age 56, of liver failure due to severe alcoholism;
  1. She was asked if she had prepared a will and she replied that she had not done so and that she was thinking about leaving her estate to all her nieces and nephews, rather than the individual niece, the petitioner, with whom she was close, and who owned property as tenants-in-common with the deceased;

Section 58 is remedial legislation that confers on the court a broad discretion to order a document purporting to be a will be fully effective, despite non-compliance with formal requirements. For an order to be granted under s. 58, the court must be satisfied the document represents the testamentary intentions of the deceased: Hadley Estate (Re), 2017 BCCA 311 at paras. 34 to 35.

        In deciding whether to exercise this curative power, Justice Dickson in Hadley Estate referenced her earlier decision in Estate of Young, 2015 BCSC 182:

     As discussed in Estate of Young, s. 58 is very similar to Manitoba’s curative provision and thus the leading appellate authority on its meaning is George v. Daily. George and several other Manitoba authorities are reviewed in Estate of Young, which review need not be repeated. Their import is summarized at paras. 34–37:

      As is apparent from the foregoing, a determination of whether to exercise the court’s curative power with respect to a non-compliant document is inevitably and intensely fact-sensitive. Two principal issues for consideration emerge from the post-1995 Manitoba authorities. The first in an obvious threshold issue:  is the document authentic?  The second, and core, issue is whether the non-compliant document represents the deceased’s testamentary intentions, as that concept was explained in George.

      In George the court confirmed that testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death. The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death. A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a will, by its nature, is revocable until the death of its maker. Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.

     The burden of proof that a non-compliant document embodies the deceased’s testamentary intentions is a balance of probabilities. A wide range of factors may be relevant to establishing their existence in a particular case. Although context specific, these factors may include the presence of the deceased’s signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests and the title of the document:  Sawatzky at para. 21; Kuszak at para. 7; Martineau at para. 21.

     While imperfect or even non-compliance with formal testamentary requirements may be overcome by application of a sufficiently broad curative provision, the further a document departs from the formal requirements the harder it may be for the court to find it embodies the deceased’s testamentary intention:  George at para. 81.

         The material time for determining testamentary intentions on a s. 58 application is usually the time at which the document in question was created. However, as noted in Estate of Young, depending on the circumstances, the material time may vary on this key issue: Hadley Estate at para. 36. Extrinsic evidence of testamentary intent may be admissible, including evidence of events that occurred before, during, and after the document was created: Hadley Estate at para. 40.

         The onus is on the petitioner seeking to cure a non-compliant document to prove on a balance of probabilities that the document is authentic and that it represents the deceased’s testamentary intentions. Testamentary intention means a deliberate or fixed and final expression of intention of disposal of the deceased’s property on death. The material time for determining testamentary intentions is usually at the time when the document was created.

Vancouver Estate Litigation – Elder Financial Abuse

Trevor Todd and Jackson Todd have over 60 years combined experience in estate litigation including claims of elder financial abuse.

In King v Vimhel 2024 BCSC 1745 a predator who had gone into hiding was found in absentia to have committed elder abuse and ordered to pay punitive damages of $50,000 and return a $1.2 million house to an 88 year old victim with advanced dementia.

The victim was living alone when she met the defendant in 2013. In 2020 she made him a joint tenant on the home she had owned since 1991. He had little or no income  or assets when they met and he was living in his car. the court found that he immediately began to exert undue influence and control over the victim and within a year was in a romantic relationship with the victim and began to physically , verbally and mentally abuse her to the extent that she feared him as he told her he would kill her if she didn’t comply with his demands. He installed security cameras and double -sided locks so he could lock her in and she stopped seeing her family with whom she was close. He took over her finances and forged documents using her name and emptied  a bank account of hers of $515,000 .

He then hid her in a motel which had no cooking facilities and cost $3000 per month. Her daughter hired a private detective who found her in the motel where she was completely isolated and she was ” rescued” by the RCMP.

The court set aside the transfer of the joint tenancy home on the basis of both resulting trust and undue influence.

               Resulting Trust

In Pecore v. Pecore, 2007 SCC 17, the Supreme Court of Canada held:

[20]      A resulting trust arises when title to property is in one party’s name, but that party, because he or she is a fiduciary or gave no value for the property, is under an obligation to return it to the original title owner: see D. W. M. Waters, M. R. Gillen and L. D. Smith, eds., Waters’ Law of Trusts in Canada (3rd ed. 2005), at p. 362.

Where a transferee has received property for no consideration, the law presumes that they hold that property in a resulting trust in favour of the transferor. This is because “equity presumes bargains, not gifts”: Pecore at para. 24.

In Pavlovich v. Danilovic, 2019 BCSC 153 (aff’d 2020 BCCA 36), Justice Iyer, as she then was, recently discussed the law concerning resulting trust claims. She held:

… A resulting trust is presumed to arise in circumstances where a person gratuitously transfers property to another: McKendry v. McKendry, 2017 BCCA 48 at para. 35; Pecore v. Pecore, 2007 SCC 17 at para. 24. Unless the transfer takes place in certain family relationships (see Pecore at paras. 28, 30–33, 36), the law presumes that the transferor intended to convey legal title to the property but retain the beneficial interest. If the presumption of resulting trust applies, it is the transferee who bears the onus of establishing that a gift was intended: Modonese at para. 136; Pecore at para. 24.

When a property is purchased by one party but held in joint tenancy, there is a presumption that the transferor intended to retain the entire beneficial interest, including the right of survivorship, unless there is evidence to the contrary: see McKendry at para. 36; Bergen v. Bergen, 2013 BCCA 492 at para. 42; Baryla v. Baryla, 2019 BCCA 22 at para. 26–29.

The presumption of resulting trust also applies to gratuitous transfers of real property. This is so despite the statutory presumption of indefeasible title in the Land Title Act, R.S.B.C. 1996, c. 250: Fuller v. Harper, 2010 BCCA 421 at para. 43 (sub nom Fuller v. Fuller Estate). In Aujla v. Kaila, 2010 BCSC 1739 at paras. 32–37, Justice Harris concluded that if a transfer is gratuitous, the statutory presumption in s. 23(2) of the Land Title Act, that the party challenging the state of title has the burden of proof, can be discharged by the operation of the presumption of resulting trust: see also Modonese at para. 138–141; Zeligs Estate v. Janes, 2015 BCSC 7 at paras. 39–40; McKendry at para. 37.

In Pecore, the Court highlighted the importance of the resulting trust in situations, like here, where evidence regarding the transferor’s intentions is unavailable or unpersuasive. At para. 23, the Court held, in part:

For the reasons discussed below, I think the long-standing common law presumptions continue to have a role to play in disputes over gratuitous transfers. The presumptions provide a guide for courts in resolving disputes over transfers where evidence as to the transferor’s intent in making the transfer is unavailable or unpersuasive. This may be especially true when the transferor is deceased and thus is unable to tell the court his or her intention in effecting the transfer.

The transfer document signed by the victim provides that the consideration given by the defendant for his one-half interest in the Property was “$1.00 and natural love and affection”. “Natural love and affection” has been termed a formulaic phrase, one not determinative of whether value for a transfer was actually provided: Fleming v. Kwakseestahla, 2010 BCSC 1006 at para. 19; Pinsonneault v. Courtney, 2022 BCSC 120 at para. 168.

Undue Influence

 

In Davy v. Davy, 2019 BCSC 1826, Justice Gomery summarized the legal framework for the assessment of claims of undue influence:

The essential legal framework for the assessment of claims of undue influence was established in Allcard v. Skinner (1887), 36 Ch. D. 145 (C.A.) and confirmed in Geffen v. Goodman Estate, [1991] 2 S.C.R. 353 [Goodman Estate]. This framework is regularly applied in British Columbia; Turner v. Turner, 2010 BCSC 49 [Turner] at paras. 48-61 and 145-157; Modonese v. Delac Estate, 2011 BCSC 82 [Modonese] at paras. 96-129; Porter Estate v. Porter, 2015 BCSC 2354 [Porter Estate] at paras. 36-133; Cowper-Smith v. Morgan, 2016 BCCA 200 [Cowper-Smith] at paras. 39-40 and 48-53; Burkett v. Burkett Estate, 2018 BCSC 320 [Burkett] at paras. 187-217. It was not disputed in argument.

Undue influence is an equitable doctrine to save people from being victimized by other people. A transaction induced by undue influence may be set aside. There are two classes of case. The first class arises where the party seeking to set aside the transaction proves that the defendant engaged in improper conduct that dominated the will of the victim. That is not the plaintiff’s claim in this case.

The second class of case arises where the defendant and the supposed victim were in a relationship of dependency involving a potential for domination of the victim by the defendant. In these cases, if the transaction involved a gift or bequest, as opposed to a commercial transaction, undue influence is presumed and the burden lies on the defendant to show that the victim entered into the transaction as a result of his or her own full, free and informed thought. In the case of a commercial transaction, there is a further requirement: the plaintiff must also show that the contract in question worked unfairness by conferring undue disadvantage on the victim or undue advantage on the defendant.

Vulnerability and dependency are the hallmarks of undue influence: McMaster Estate v. McMaster, 2021 BCSC 1100 at para. 48.