Court Analysis of S. 58 WESA Application to Cure Defective “Will”

Henderson v Myler 2021 BCSC 1649 refused to invoke S. 58 WESA to “ cure” an unsigned note found with the deceased’s will that purported to alter the will’s bequests quite substantially, finding that the note did not reflect the deceased’s last true intentions re the disposition of her estate.

The case is of note as the court sets out it’s analysis of the various pros and cons of finding that the note varying the will was the last true intention of the deceased.
Of further note the court adopted the reasoning of the Supreme Court of Australia in a similar fact case.

As set out in Young at paras. 34–37, the further a document departs from the formal requirements of a will, the harder it may be to find that it embodies the deceased’s testamentary intention.

Later BC cases have held that, particularly when key requirements are absent, such as the deceased’s or witnesses’ signatures, compelling and reliable evidence is required to satisfy the court that the document represents the testamentary intention of the ‎deceased.

Accordingly,‎ extrinsic evidence of the testator’s intentions is relevant, even if such evidence concerns events before or after the creation of the document at issue: Hadley at para. 40 and Poulk Estate, 2018 BCSC 1321 at para. 43.

Other factors include whether the language in the document is precatory or connotes a sense of finality: Lane Estate, 2015 BCSC 2162 at para. 44; Mace Estate (Re), 2018 BCSC 1284 at para. 47.

The factors supporting that the Note represents Ms. Murray’s final intentions are:

1. it was left in Ms. Murray’s lockbox with her 2013 Will;
2. at least until Ms. Murray went into VGH, she kept a key to the lockbox around her neck;
3. all ten beneficiaries in the 2013 Will are also listed on the Note and, with one exception, where two of the names were reversed, the Note tracked the order of the names in the 2013 Will;
4. Mr. Basich was added. He was a close friend of Ms. Murrays, and she repeatedly told him that she had left him something in her will. When he asked her not to mention it again, she responded that it was “too late” as he was already in her will;
5. Ms. Myler’s specific intent at the meeting at the Café was to settle the different dollar amounts set out in the 2013 Will and the Note, and Ms. Murray agreed to discuss it with her. Although Ms. Myler and Ms. Crawford did not witness the Note, they gave some evidence which confirmed that some of its contents reflected Ms. Murray’s wishes;
6. for the most part, the changes Ms. Murray made to her will, as reflected in the Note, are rational and consistent. Given Ms. Murray’s friendship with Mr. Basich, her addition of a gift to him is understandable. The increased amounts are also proportionate to the increase in the approximate value of her assets.

The factors in this case that do not support a finding that the Note represents Ms. Murray’s final intentions are:

1. Ms. Murray did not sign the Note, and it was not witnessed. The Note lacks all of the hallmarks of formal validity;
2. the Note is not titled, and it does not contain formal language revoking the 2013 Will or expressing an intent to change it and no language to show that the Note was intended to have testamentary effect;
3. the Note is not written on formal paper, but on a page from a note pad, suggesting an impermanence or informality rather than a fixed and final intention;
4. there is no express revocation of Ms. Murray’s 2013 Will or expression of her intention to change or alter it;
5. Ms. Murray did not tell anyone about the Note and did not provide a copy of it to her executrices;
6. the Note is a mix of Ms. Murray’s handwriting and Ms. Myler’s handwriting ‎and notations. In some cases, the evidence is unclear as to who made what markings on the Note;
7. the Note did not reflect what Ms. Murray said in discussions with family members about the disposition of her estate;
8. some of the names written on the Note, and not crossed out, did not have a monetary gift assigned to them, suggesting they were not discussed at the May 4, 2017, meeting and that the Note was a work in progress;
9. the Note is a list of certain names with amounts, and in some cases with no amounts. Another note, containing similar information, was found in the kitchen by Ms. Crawford and thrown out. The existence of several notes, with similar writing, suggests an ongoing thought process rather than a final testamentary intent;
10. when Ms. Murray sought to change her 2010 Will, she wrote directly on the original of the Will. There was no writing on the 2013 Will; a signed copy of it remained in the lockbox;
11. the Note does not dispose of the entirety of Ms. Murray’s estate or specify what should happen to the residue of the estate.

In addition, the circumstances surrounding the Note do not suggest a fixed and final intention on Ms. Murray’s part. In 2010, Ms. Murray met with a lawyer to prepare the 2010 Will. In 2013, she met with a notary to prepare the 2013 Will. Ms. Murray brought the 2010 Will to Ms. Deprez to discuss it. She clearly knew she had to “go in” to make changes to her will.
Ms. Murray’s pattern of behaviour was to see a legal professional in order to change a will. Ms. Murray understood the formal process of attending at a professional’s office and going through the process of instructing the professional and formally executing a valid will. With respect to the 2013 Will, at their meeting on January 10, 2017, Ms. Murray told Ms. Deprez that she wished to change her will and she brought her 2013 Will to the meeting. She told Brian that she needed to change her will, and Tim made the appointment for Ms. Deprez to come and see her in February 2017.

Ms. Myler and Ms. Crawford did not ask Ms. Murray to sign the Note they discussed at the Café, and there was no evidence that it was impressed on Ms. Murray that the Note would stand as her last will and testament. There is no evidence that at their meeting at the Café, Ms. Murray considered that the Note she discussed with her friends was a formal document that would govern how her estate was disposed of upon her death
Ms. Myler and Ms. Crawford did not discuss with Ms. Murray what was to happen to the residue, or what was left, of Ms. Murray’s estate after payment of the gifts to her extended family and her friend. In fact, Ms. Crawford testified that after the discussions at the Café, the three friends discussed the need to see a lawyer to finish what was left. Such a meeting was not possible in May 2017, but was planned for Ms. Myler and Ms. Crawford’s fall visit
There is no evidence that Ms. Murray turned her mind to how the Note ‎would affect the disposition of the residue of her estate. It would pass on intestacy to ‎three persons who were expressly excluded from the Note. Daniel and Ron were crossed off in the Note, and Brian was not named at all (nor had he been in the 2010 or 2013 Wills). Ms. Murray also made it clear to Ms. Myler that $100,000 was a sufficient gift to Verna

It cannot have been Ms. Murray’s fixed and final testamentary intention to allow 3/4 of the residue of her estate, approximately $982,500, to pass to her three nephews, when she made it clear she did not wish to leave them anything. Nor can it have been Ms. Murray’s fixed and final testamentary intention that over $300,000 would go to Verna, when she had said $100,000 was enough. The failure to deal with the residue in the Note, in addition to the other factors I have outlined, weighs against accepting the Note as a codicil to Ms. Murray’s 2013 Will or as a new testamentary document. Curing the Note under s. 58 would provide each of Dan, Ron, and Brian with the largest gifts out of her estate, which was not Ms. Murray’s testamentary intention
I cannot speculate as to what Ms. Murray would have done with the residue of her estate if she had gone through the formal process of executing a new will in 2017. Perhaps, it would have been shared equally among all of those who benefitted under the 2013 Will which was what Ms. Myler said in her deposition that she thought would happen. Perhaps, based on advice, she would have made a different arrangement entirely

Although the plaintiffs make much of the fact that the size of the gift to the BC SPCA in the 2013 Will was unusual and inconsistent with the average testamentary gift to the charity, it is not determinative in the analysis. Ms. Murray had no immediate family. It is entirely possible that she chose to benefit a charity that reflected her love of animals as opposed to extended family members. The question is what Ms. Murray subjectively intended, not what an average person would choose to do with their estate.

The plaintiffs also suggest that the timing of the Note supports the inference that Ms. Murray intended it to be a final alteration. Their submission is based on the assumption that the Note was prepared when Ms. Murray was 99, suffering from health issues, and understood that she was nearing the end of her life. As I have said, there is no evidence of when Ms. Murray prepared the Note. The evidence suggests that she did not anticipate a rapid decline in her health around the time of her 99th birthday, since Ms. Myler and Ms. Crawford’s evidence is that they intended to carry on the work of revising and completing Ms. Murray’s will when they return in the fall. I cannot draw the inference the plaintiff suggests.

A document like the Note was analysed in Re Lynch, [2016] VSC 758, a decision of the Supreme Court of Victoria in Australia. The legal principles developed under s. 9 of the applicable Wills Act in that case are similar to those under s. 58 of WESA.

At issue in Lynch were two documents prepared eight years before the deceased’s passing: a handwritten page appointing an executor that was signed and witnessed, and a handwritten, undated, unsigned, and unwitnessed list of names with dollar amounts next to them, written in both blue and black ink. Both documents were created in the hospital before Mr. Lynch underwent surgery, and he was worried that he did not have a will. He did not plan to see a lawyer and said he could do his will “right then and there”. The document was created in front of three witnesses in black ink by the deceased with edits later made in blue ink after discussions at the hospital. Following the page with the beneficiaries and dollar amounts, which remained unsigned and unwitnessed, the page naming the executor was created which was signed and witnessed. One of the witnesses took the documents and placed them in his filing cabinet at home: paras. 41, 43, 45, 48, 55, and 63.

The court in Lynch reviewed cases from that jurisdiction and said that, in determining whether the deceased intended the document to be a will, the court must be satisfied that the deceased demonstrated an intention that, without any alteration or reservation, the document should have effect as his will. The person must have “intended the document to be a legally operative act that disposes of the person’s property upon his or her death, rather than a provisional, preliminary, or tentative proposal.” The court relied on a similar principle to that explained in Young and in Hadley, in the context of s. 58 of WESA, that the further away from formal compliance a document is, the more difficult it will be for the court to be satisfied that the deceased intended the document to be his will: at paras. 11, 15–22.

The court concluded that the second document could not have been intended to have the effect of a will. There was no strong nexus between the list of names and the signed executor page.

The list of names had no heading and was not signed, dated, or witnessed. The court said it bore the “hallmarks of a provisional, preliminary or tentative thought process, rather than a legally operative act that disposes of the deceased’s assets upon his death.” It was relevant that the specific gifts did not add up to the deceased’s entire estate, which brought into question whether the deceased intended to dispose of his estate by way of the list: at paras. 76–78, 87.

There was evidence in Lynch of conversations about seeing a lawyer after the list was created. The discussion was to have the documents reviewed, “if not revised” by a solicitor and that Mr. Lynch should take the documents to a lawyer.

In this case, the Note disposes of $540,000 in specific gifts to Ms. Murray’s extended family and friends, leaving $1,310,000 in the residue (based on a distributable amount of $1.85 million).

A failure to deal with an amount of that size weighs against the Note representing Ms. Murray’s fixed and final intentions. Also, as I have said, Ms. Murray, Ms. Myler, and Ms. Crawford discussed how it would be difficult to see a lawyer during Ms. Myler and Ms. Crawford’s May 2017 visit, and they planned to see one in the fall.

15 Characteristics of a Narcissist

I have done several blogs on narcissism over the years, as it is a frequent attribute of many of the parties involved in estate litigation.

Narcissists amongst other characteristics, have a great feeling of self entitlement which frequently is displayed by parties in estate litigation.

There are two types of narcissism: grandiose and vulnerable, and not all narcissists are the same as there is a spectrum.

Identifying a narcissist at first is not always easy as they are invariably charming people, but after getting to know the person better some of the following characteristics will be noted.

A random list of 15 of the characteristics of narcissism are as follows:

1. Narcissists lack empathy and are therefore unable to recognize or understand the needs and feelings of others so typically they tend to speak and think only of themselves, often about their physical appearance talents or achievements. The comments tend to exaggerate their abilities in these areas;

2. They believe they are superior and even grandiose in terms of their self-importance. This leads to belittling of others by focusing on their flaws, which for a narcissist is an effective way to hide their own shortcomings and preserve their self-image;

3. Having a sense of self entitlement, narcissists expect others to offer them special favors and fulfill the requests without question. The behavior compares to that of a toddler who never learns that he or she is not the center of the world and becomes enraged when others don’t need his or her immediate demands;

4. Because narcissists consider themselves superior they fantasize about how much more powerful they will be and how much more beautiful or how much richer than other people. While it is good to have goals in life, the narcissist goals are almost boundless in their ambition;

5. Upon first impression narcissists come off as incredibly charming and confident, but as the relationship develops their behavior becomes demeaning and aggressive. They often seek out positions of power in leadership and will turn on the charm to manipulate others into giving them what they want. Many people are thus attracted to narcissists as they are confident, charismatic and exciting;

6. Narcissists are extremely competitive and want to strive to win whatever it takes. There are only losers and winners in their mind;

7. While appearing confident on the outside, most narcissists are in fact very sensitive and care very deeply about maintaining their idealized image of themselves. As a result, any type of perceived insult or disapproval can result in a large personal attack which the narcissist typically holds as a grudge and never lets go of it;

8. Narcissists tend to fill their minds with elaborate fantasies about success, power, brilliance, beauty or the perfect mate, and thus feel they should have the best of everything. Because the fantasies are rarely rooted in reality, it can lead to immense frustration and anger when these visions are not achieved;

9. Again, despite appearing confident on the outside, narcissists are often incredibly insecure and have very fragile self-esteem. As such, they require constant praise, but this fragility also makes the narcissist highly reactive to criticism of any sort;

10. Narcissists often do not have a problem in getting people to do what they want, and have no problem taking advantage of others with little to no regard for the feelings are interests of those people as a result of this behavior, narcissists often have very tumultuous friendships and romantic relationships that are quite short lived;

11. Narcissist typically crave attention at all times and will seek it out by such means as dominating conversations. They feel compelled to talk about themselves and exaggerate their accomplishments. A grandiose narcissist craves attention and often receives it by being outspoken, arrogant, self -loving and entitled;

12. Narcissists often lack empathy and are unable to empathize with others or understand other people’s perspectives or comprehend their struggles. A typical comment might be a complaint about how annoying his or her own father is in speaking to someone whose father has just died;

13. Vulnerable narcissists live with the worry of being exposed for their flaws, which in turn will make them feel humiliated and shamed. The need to be perfect and stem either from wanting to satisfy themselves are being perfect, to please others, not all narcissists are perfectionists, but it is a common trait. This type of narcissist needs to achieve what they consider a flawless “performance” in order to achieve fulfillment;

14. Narcissists often eventually develop depression, especially those who are vulnerable narcissists as they do not know how to work through motions properly. Pathological grandiose narcissists can have an inflated ego and more arrogant personalities. When they experience a personal or professional failure, isolation, or lack of accomplishment, it may trigger depression;

15. Narcissists are not always the best at regulating their emotions as they have compromised or fluctuating abilities and emotion regulation. Studies have found that narcissists have difficulties in assessing both their own and other people’s emotions. For example, one of the last things a narcissist wants to encounter is a person who appears to have something that they lack. That leaves the narcissist no choice but to act as if that person is beneath them, and the patronizing attitude is a defense mechanism narcissists may turn to when they feel their emotions are threatened. A narcissist may result to insults or name-calling against the person that they in fact are envious of.

Presumption of Revocation and Lost Wills

Re Bennett Estate 2023 BCSC 559 discussed the presumption of revocation, where the original will of the deceased had been lost, and in an application for directions, ordered that a copy of the will could be probated as there was no evidence that the original will was last in the possession of the deceased so s to invoke the presumption.

The court found that the copy of the will represent of the testamentary intentions of the deceased.

The Presumption of Revocation

The presumption of revocation was explained as follows by Wilson J. in Haider v. Kalugin, 2008 BCSC 930

[9] If a Will last known to be in custody of testator is not found at his death, the presumption is that the testator destroyed it with the intention of revoking it (“animo revocandi”). However, that presumption may be rebutted by evidence, written or oral, of the facts. The strength of the presumption will depend upon the character of the custody which the testator had over the Will: Sugden v. Lord St. Leonards (1876), 1 P.D. 154 (English C.A.).

[10] In Sigurdson v. Sigurdson [1935] 2 D.L.R. 445 (S.C.C.), at paragraph 49, Davis J. said:
[49]1 It needs very clear and convincing evidence to establish what is alleged to be a lost will. . . .The person propounding such a will has a burden of proof that persists throughout the whole trial to satisfy the court at its conclusion that the will is in fact lost and was not destroyed by the testator with the intention of putting an end to it. Each case of course turns upon its own facts but the principles respecting the well-settled presumption against the Will must be applied to the facts.

[11] In Welch v. Phillips (1836) 1 Moo PC 299, at 302, referred to in Bobersky Estate (Re) [1954] A.J. No. 12 (Alta Dist. Crt.), at paragraph 6, the court said:
[6] If a will traced to the possession of the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by the deceased himself; and that presumption must have effect, unless there is good and sufficient reason to repel it. It is a presumption founded on good sense, for it is highly reasonable to suppose that an instrument of so much importance would be carefully preserved, by a person of ordinary caution, in some place of safety and would not be either lost or stolen, and if, on the death of a maker, is not found in his usual repositories or else where he resides, it is in a high degree of probable that the deceased himself has purposely destroyed it. But this presumption, like all others of fact, may be rebutted by others, which raises a higher degree of probability to the contrary.

Haider was considered. in Whitehead Estate, 2010 BCSC 348 [Whitehead].

At para. 28, the Court concluded that there was no evidence upon which it could conclude that the will of the deceased was properly executed or a true copy of the original will.
At para. 29, the Court went on to consider what the situation would be if that conclusion was incorrect, and the will was properly executed and a true copy. The Court stated that in that case:
… the next issue is whether the original will can be traced to the possession of the deceased. If it can be traced to her possession then on a finding that the original has been lost, the presumption arises that it has been destroyed with the intention of revoking the will.

After referring to Haider at para. 30, the Court in Whitehead concluded at para. 31:

On the evidence presented in this case, I am not able to find that the deceased ever had possession of the original will and therefore the presumption that the will has been destroyed with the intention that it be revoked does not apply.

Pleading a Cause of Action

In order to disclose a cause of action, a notice of civil claim must not simply name that cause of action, but also set out the elements of that cause of action.

Rule 3-1(2)(a) of the Supreme Court Civil Rules, B.C. Reg. 168/2009, provides that a notice of civil claim must set out the material facts in support of a claim.
Material facts are the means by which the claimant will prove the elements of the cause of action and thus are “comprised of every fact that would be necessary for the plaintiff to prove in order to support their claim” and in so doing, are integral to pleadings meeting their role of providing notice and defining the issues to be tried:  Attorney General v Frazier 2022 BCCA 379 at paras. 69-70, citing Mancuso v. Canada (Minister of National Health and Welfare), 2015 FCA 227 at paras. 16–20; Workers Compensation Board v. Sort, 2022 BCCA 318 at para. 102; Mercantile Office Systems Private Ltd. v. Worldwide Warranty Life Services Inc., 2021 BCCA 362 at paras. 21-23; and Kindylides v. Does, 2020 BCCA 330 at para. 34.

At para. 71 of Frazier, the Court of Appeal also made clear that bare allegations based on speculation and assumptions are not material facts, citing Kindylides at para. 33.

In Imperial Tobacco at para. 22, the Supreme Court of Canada stressed the importance of pleading material facts with the now often cited phrase “plead them they must”, explaining that while a claimant may not be able to prove facts at the time they are pled, the claimant must plead them nonetheless. It is not open to the claimant to wait and see how the evidence develops before pleading material facts.

The distinction between evidence and material facts is emphasized in the Supreme Court Civil Rules which require material facts be pled (R. 3 1(2)) while prohibiting pleading evidence (R. 3 7(1)). Material facts are the who, when, where, how and what that gives rise to liability: Frazier at para. 70, while evidence is the means by which the material facts will be proved.

In Frazier at paras. 72 and 75, the Court of Appeal explained that where material facts are not pleaded, an application to strike may be allowed because the claim is not capable of supporting a cause of action and the court cannot properly evaluate whether there is a chance of success. T

Admission of Extrinsic Evidence in Wills Interpretation Post WESA

Zalechuk Estate 2023 BCSC 523 discussed the modern approach to wills interpretation post WESA.

The Court’s power to rectify a will is found in s. 59 of the WESA:

59 (1) On application for rectification of a will, the court, sitting as a court of construction or as a court of probate, may order that the will be rectified if the court determines that the will fails to carry out the will-maker’s intentions because of

(a) an error arising from an accidental slip or omission,
(b) a misunderstanding of the will-maker’s instructions, or
(c) a failure to carry out the will-maker’s instructions.
(2) Extrinsic evidence, including evidence of the will-maker’s intent, is admissible to prove the existence of a circumstance described in subsection (1).
(3) An application for rectification of a will must be made no later than 180 days from the date the representation grant is issued unless the court grants leave to make an application after that date.

(4) If the court grants leave to make an application for rectification of a will after 180 days from the date the representation grant is issued, a personal representative who distributes any part of the estate to which entitlement is subsequently affected by rectification is not liable if, in reasonable reliance on the will, the distribution is made
(a) after 180 days from the date the representation grant is issued, and
(b) before the notice of the application for rectification is delivered to the personal representative.
(5) Subsection (4) does not affect the right of any person to recover from a beneficiary any part of the estate distributed in the circumstances described in that subsection.

In Thiemer Estate, 2012 BCSC 629 which also predated the coming into force of the WESA, Justice Dardi summarized some useful principles of construction. She said that the objective of the court is to ascertain the intention of the testator as expressed in his or her will when it is read as a whole in light of any properly admissible extrinsic evidence. The testator’s intention is to be gathered from the will as a whole and not solely from the provisions in dispute (para. 45 citing Perrin v. Morgan, [1943] A.C. 399 at 406 (H.L.) and (H.L.); Re: Burke (1960), 20 D.L.R. (2d) 396 at 398-399 (Ont. C.A.).

The court is to ascertain the express intention of the testator which is the meaning of the written word as opposed to what the testator may have meant to do when he or she made a will (Thiemer at para. 46 citing Perrin at 406).
Earlier lines of authority endorsed an objective approach to will interpretation but modern jurisprudence recognizes a strict literal approach can defeat the intention of the testator (Thiemer at para. 47, citing “The Law Reform Commission of British Columbia”, Report on Interpretations of Wills, LRC 58 at 6).
[68] At para. 48 Justice Dardi said:

[48] In keeping with contemporary judicial thinking, the courts of this province have favoured the subjective approach to interpreting wills, wherein the objective is to ascertain the actual meaning the testator ascribed to the words he or she used in the will. In determining the testator’s intention the courts have endorsed the analytical approach commonly described as the “armchair rule”. The rule requires that the court put itself in the position of the testator at the point in time when he or she made the will, and from that vantage point construe the language in the will in light of the surrounding facts and circumstances known to the testator.
In Jamt Estate, 2021 BCSC 788, ss. 58 and 59 of the WESA is discussed by Justice Coval. He says that s. 58 is remedial in nature covering a broad discretion in prescribed circumstances to order a writing or marking on a will be fully effective. Section 59, like s. 58 is remedial in nature conferring a broad discretion to rectify a will that fails to carry out the makers intentions in prescribed circumstances. Prior to the enactment of the WESA there was no such statutory authority in British Columbia to rectify wills and common law rectification had very narrow boundaries.

Since there were no judicial considerations of s. 59(1)(a) Justice Coval took guidance from the United Kingdom decision in Re Segelman [1996] Ch. 171 at p. 180 which considered similar but not identical sections of the Administration of Justice Act 1982. He raised three questions:

1) what were the testator’s intentions with regard to the issue for which rectification is sought?
2) does the Will as written fail to carry out those intentions?
3) is that failure a consequence of one of the reasons specified in ss. 59(1)(a)-(c).

Justice Coval concluded that the extrinsic evidence strongly supported granting the rectification sought under s. 59(1). He concluded that Mr. Jamt intended to leave his estate to the petitioner. The accidental slip had been the use of the wrong middle name for the petitioner.

Section 59(2) of the WESA admits extrinsic evidence to prove the circumstances described in s. 59(1) if the court is of the view that the will fails to carry out the will-maker’s intentions because of an error arising from an accidental slip or omission or a misunderstanding or failure to carry out the will-maker’s instructions. Since the Will was prepared by the deceased, I will only consider whether there has been an accidental slip or omission.

In Simpson, the Court of Appeal applied s. 59 to rectify a will in a case where they found a denial of rectification in those particular circumstances would deprive the respondents of the gift the deceased intended them to have, and provide the appellant with a windfall the deceased never intended her to have. An accidental omission arose from the deceased’s failure to realize that his intended gift of the shares would never get to the respondents due to the operation of the survivor clause of the shareholders agreement.

The trial judge allowed the extrinsic evidence of the drafting solicitor’s notes to determine what the testator’s intentions were.
The majority of the Court of Appeal allowed the rectification.

Vancouver Estate Lawyer-Rebutting the Presumption of Undue Influence

Trevor Todd and Jackson Todd have over 60 years experience in handling contested estate matters including undue influence.

Undue influence is an equitable doctrine used to protect persons from victimization at the hands of others. Equity will set aside transfers brought about by undue influence: Geffen v. Goodman Estate, [1991] 2 S.C.R. 353 at 368, 1991 CanLII 69.

In Stewart v. McLean, 2010 BCSC 64, Justice Punnett considered undue influence.

At para. 92, he noted that the presumption of undue influence arises for gratuitous transfers when a plaintiff establishes that the potential for influence exists or existed in the relationship. In Geffen at 377, Justice Wilson provided a definition of influence:

It seems to me rather that when one speaks of influence one is really referring to the ability of one person to dominate the will of another, whether through manipulation, coercion, or outright but subtle abuse of power…. To dominate the will of another simply means to exercise a persuasive influence over him or her. The ability to exercise such influence may arise from a relationship of trust or confidence but it may arise from other relationships as well.

Justice Punnett also referred to Longmuir v. Holland, 2000 BCCA 538, at para. 71, where Justice Southin defined undue influence as “influence which overbears the will of the person influenced so that in truth what she does is not his own mind.

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:

a) 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);

b) The donor had independent advice or the opportunity to obtain independent advice (Geffen at 379; Longmuir at para. 121);

c) The donor had the ability to resist any such influence (Calbick v. Warne, 2009 BCSC 1222 at para. 64);

d) The donor knew and appreciated what she was doing (Vout v. Hay, [1995] 2 S.C.R. 876 at para. 29); or

e) 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).

 

Campbell Estate (Re), 2022 BCSC 2184 at paras. 213–217 court stated:

Undue influence will be presumed in certain relationships, such as doctor and patient, solicitor and client, and parent and child: Geffen at para. 28. The categories of relationships in which undue influence will be presumed are not fixed. Each case must be considered on its own facts to determine if a “special” relationship exists to support the presumption.

[216]

[42] What then must a plaintiff establish in order to trigger a presumption of undue influence? In my view, the inquiry should begin with an examination of the relationship between the parties. The first question to be addressed in all cases is whether the potential for domination inheres in the nature of the relationship itself. This test embraces those relationships which equity has already recognized as giving rise to the presumption, such as solicitor and client, parent and child, and guardian and ward, as well as other relationships of dependency which defy easy categorization.
[43] Having established the requisite type of relationship to support the presumption, the next phase of the inquiry involves an examination of the nature of the transaction. When dealing with commercial transactions, I believe that the plaintiff should be obliged to show, in addition to the required relationship between the parties, that the contract worked unfairness either in the sense that he or she was unduly disadvantaged by it or that the defendant was unduly benefited by it. From the court’s point of view this added requirement is justified when dealing with commercial transactions because, as already mentioned, a court of equity, even while tempering the harshness of the common law, must accord some degree of deference to the principle of freedom of contract and the inviolability of bargains. Moreover, it can be assumed in the vast majority of commercial transactions that parties act in pursuance of their own self-interest. The mere fact, therefore, that the plaintiff seems to be giving more than he is getting is insufficient to trigger the presumption.
[44] By way of contrast, in situations where consideration is not an issue, e.g., gifts and bequests, it seems to me quite inappropriate to put a plaintiff to the proof of undue disadvantage or benefit in the result. In these situations the concern of the court is that such acts of beneficence not be tainted. It is enough, therefore, to establish the presence of a dominant relationship.
[45] Once the plaintiff has established that the circumstances are such as to trigger the application of the presumption, i.e., that apart from the details of the particular impugned transaction the nature of the relationship between the plaintiff and defendant was such that the potential for influence existed, the onus moves to the defendant to rebut it. As Lord Evershed M.R. stated in Zamet v. Hyman, supra, at p. 938, the plaintiff must be shown to have entered into the transaction as a result of his own “full, free and informed thought”. Substantively, this may entail a showing that no actual influence was deployed in the particular transaction, that the plaintiff had independent advice, and so on. Additionally, I agree with those authors who suggest that the magnitude of the disadvantage or benefit is cogent evidence going to the issue of whether influence was exercised.

[217] McMaster Estate v. McMaster, 2021 BCSC 1100 provides a recent illustration of the application of these principles in this court. In that case, a mother had purchased a home and registered it in joint title with one of her sons. While the deceased’s will provided for her estate to be split evenly between her children, the transfer had already taken nearly all of the deceased’s assets out of her estate. The estate alleged that the son who owned the house with the mother held it pursuant to a resulting trust or as a result of undue influence. In this context, Justice MacDonald summarized the applicable legal principles as follows:

[47] Undue influence is an equitable doctrine to prevent individuals from being taken advantage of by others. It addresses abuses of trust, confidence, and power spanning a range of transactions, including gifts, bequests, and commercial dealings. Transactions induced by undue influence may be set aside.
[48] Vulnerability and dependency are the hallmarks of undue influence.
[49] In order to trigger a presumption of undue influence, the first question to address is whether the potential for domination inheres in the nature of the relationship. The second phase of the inquiry involves an examination of the nature of the transaction: Geffen v. Goodman Estate, [1991] 2 S.C.R. 353 at paras. 40-44.

[50] A relationship of dependency involving a potential for domination may arise among family members: Geffen. A gratuitous transfer from a parent to an adult child does not automatically create a presumption of undue influence. In Wood v. Porter, 2015 BCSC 2354, this Court found a relationship of dependency and domination did not exist between an independent, active, and competent mother and her son. To establish the presumption of undue influence, the plaintiff must establish the existence of a relationship of potential dominance between the parent and the adult child: Modonese at para. 111.

[51] The second phase of the inquiry involves an examination of the nature of the transaction.

[52] To rebut the presumption of undue influence, the defendant must establish that the transferor entered into the transaction of her own “full, free and informed thought”: Geffen at para. 45.

[53] The following factors may be considered when scrutinizing the transaction to determine if Doreen entered into the transaction of her own “full, free and informed thought”: (i) the lack of actual influence or opportunity to influence her; (ii) whether she received or had opportunity to obtain independent legal advice; (iii) her ability to resist any such influence; (iv) whether she knew and appreciated what she was doing; (v) whether there was undue delay in confirmation by Doreen; and (vi) the magnitude of the benefit or disadvantage: Cowper-Smith v. Morgan, 2016 BCCA 200 at para. 50, rev’d on other grounds, 2017 SCC 61; Stewart v. McLean, 2010 BCSC 64 at para. 97.
[Emphasis added.]

Court Delay & Dismissal Want of Prosecution

Many court actions, including estate litigation  are commenced and then just ” sit there” often for years  such that  inordinate delay can occur.

After certain criteria are met, typically the defendant will apply to the court for dismissal of the plaintiff’s court action for want of prosecution.

In Drennan v. Smith, 2022 BCCA 86  the Court of Appeal summarized principles to be considered on an application for dismissal for want of prosecution at para. 16 as follows:

Relevant factors for consideration are summarized in Wiegert v. Rogers, 2019 BCCA 334:

On an application to dismiss for want of prosecution, it must be shown that

1)there has been inordinate delay,

2)that the inordinate delay is inexcusable,

3) and that the delay has caused, or is likely to cause, serious prejudice to the defendant.

4) In addition, the final and decisive question, which encompasses the other three, is whether, on balance, justice requires a dismissal of the action: Azeri v. Esmati-Seifabad, 2009 BCCA 133 at para. 9; 0690860 Manitoba Ltd. v. Country West Construction Ltd., 2009 BCCA 535 at paras. 27-28.

Inordinate delay is defined in Drennan at para. 16 (citing para. 32 of Wiegert v. Rogers, 2019 BCCA 334 [Wiegert]) as follows:

…Inordinate delay is delay that is immoderate, uncontrolled, excessive and out of proportion to the matters in question: Azeri at para. 8; Sahyoun v. Ho, 2015 BCSC 392 at para. 17. As Justice Saunders explained in Sun Wave Forest Products Ltd. v. Xu, 2018 BCCA 63 at para. 25, the concept is relative: some cases are naturally susceptible of fast carriage or call for more expeditious prosecution than others. Although there is no universal rule as to when time starts to run, the date of commencement of the action is typically identified as the point from which delay is measured. The delay should be analysed holistically, not in a piece-meal fashion, and the extent to which it may be excusable is highly fact-dependent: Ed Bulley Ventures Ltd. v. The Pantry Hospitality Corporation, 2014 BCCA 52 at para. 38; 0690860 at para. 29.

The plaintiff’s diligence and dispatch in advancing the action is relevant to whether a delay is inordinate. Plaintiffs have a particular onus to move expeditiously when a case involves serious allegations that go to a defendant’s character and credit, see Extra Gift Exchange Inc. v. Accurate Effective Bailiffs Ltd., 2015 BCSC 915 [Extra Gift Exchange Inc.].
In considering the issue of whether there has been inordinate and inexcusable delay, the court is entitled to consider the conduct of the defence contributing to that delay, see Tundra Helicopters Ltd. v. Allison Gas Turbine, 2002 BCCA 145 at para. 21 [Tundra].

The burden is on the applicant to establish that there has been inordinate and inexcusable delay. Once the applicant has established inordinate and inexcusable delay, a rebuttable presumption of prejudice arises:

Once a defendant establishes that delay is inordinate and inexcusable, a rebuttable presumption of prejudice arises: Busse v. Chertkow, 1999 BCCA 313 at para. 18. The concern is with the prejudice that a defendant will suffer in mounting and presenting a defence if the matter goes to trial: 0690860 at para. 27. Relevant matters could include failing memories, unavailable witnesses and the loss or destruction of physical evidence.
…
Drennan at para. 16 (citing para. 33 of Wiegert).

The final and overriding question is whether the interests of justice require dismissal of the action, see Drennan para. 16 (citing para. 33 of Wiegert):

…As to the final consideration — whether, on balance, justice requires dismissal of the action — again, the determination is highly fact-dependent. Relevant matters could include the length of and reasons for the delay, the stage of the litigation, the context in which the delay occurred and the role of counsel in causing the delay (although negligence on the part of a plaintiff’s lawyer may not always amount to an excuse): International Capital Corporation v. Robinson Twigg & Ketilson, 2010 SKCA 48 at para. 45; 0690860 at para. 29.

Four questions are to be addressed in an application to dismiss for want of prosecution:

1. Has there been inordinate delay on the part of the plaintiff in pursuing its claim?
2. Has the delay been inexcusable?
3. Has the delay caused serious prejudice, or is it likely to cause serious prejudice to the defendants?
4. Does the balance of justice require an order dismissing the plaintiff’s claim?
Extra Gift Exchange Inc., at para. 41.

Removal of Lawyer Refused

Jiwani v Jiwani @022 BCCA 451 refused to remove a lawyer for a potential conflict of interest stating that the role of the lawyer was not the basis of the court action, it was instead the enforceability of the marriage agreement turned on whether the appellant husband Mr. Jiwani truthfully disclosed his financial affairs to his wife.

The lawyer’s advice to the respondent in respect of the marriage agreement had not been put in issue.

The Law

In summary, the court has an inherent jurisdiction to remove a lawyer from the record who has a conflict of interest, including a lawyer who may be a witness in a case where they act as counsel (see Ontario Realty Corp. v. Gabriele & Sons Limited, [2006] O.J. No. 4497 (Ont. S.C.J.) at para. 16 and MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235 at para. 18).
The concern that arises when a lawyer testifies is there may be a conflict of interest between the client and the lawyer, and the administration of justice can be impaired by a conflict in the lawyer’s obligation of objectivity to the court, and their obligation as an advocate to the client.

The factors the court considers include:

(a) maintaining the high standard of the legal profession and the integrity of the justice system; and
(b) the right of a litigant to counsel of choice, which they should not be deprived of without good cause (Ontario Realty at para. 17, citing MacDonald Estate at para. 12)

The test to be applied is whether a fair minded reasonably informed member of the public would conclude that a proper administration of justice requires the removal of the lawyer (Ontario Realty at para. 20; Karas et al. v. Her Majesty the Queen et al., 2011 ONSC 5181 at para. 26).

The cases have recognized that when a litigant is deprived of a lawyer of their choice, a hardship may arise, which can only be justified to prevent a more serious injustice (see for example Urquhart v. Allen Estate, [1999] O.J. No. 4816 (Ont. S.C.J.).

While certainty that a lawyer will be called as a witness is not required, the applicant must establish it is likely that counsel can provide material evidence: Ontario Realty at paras. 34-35. In Gichuru v. Purewal, 2017 BCCA 281 at para. 17, the Court of Appeal characterized a removal order as an extraordinary remedy, to be approached with great caution and rarely invoked.

BC Estate Lawyer-Removal of an Executor/Trustee 2023

Trevor Todd and Jackson Todd have over 60 years experience in handling contested estate matters including  dealing with difficult executors and having them removed when appropriate..

 

It is difficult to remove and substitute an alternate executor/trustee as a will-maker has the right to choose their executor and trustee.

That choice is entitled to deference and will only be interfered with if there is clear and cogent evidence to do so. In Parker v. Thompson (Trustee), 2014 BCSC 1916, Hinkson, C.J.S.C. stated:

In Haines v. Haines, 2012 ONSC 1816 at para. 10 as equally applicable to the removal of the trustee:

In Johnson v. Lanka, 2010 ONSC 4124, (2010), 103 O.R. (3d) 258 at para. 15, Pattillo J. summarized the principles that should guide the court’s discretion in deciding whether to remove estate trustees:

(a) the court will not lightly interfere with the testator’s choice of estate trustee;
(b) clear evidence of necessity is required;
(c) the court’s main consideration is the welfare of the beneficiaries; and
(d) the estate trustee’s acts or omissions must be of such a nature as to endanger the administration of the trust.

See also Burke v. Burke, 2019 BCSC 383 at para. 29.

In addition, “not every actual or perceived conflict should lead to disqualification of an executor”. Each case turns on its own facts: Burke at para. 43.
s. 30 of the Trustee Act, R.S.B.C. 1996, c. 464 [Trustee Act] . Section 30 states:

Removal of trustees on application

S.30 Trustee Act provides:

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

s. 31 of the Trustee Act provides the authority needed to replace the executor. Section 31 provides:

Power of court to appoint new trustees

31 If it is expedient to appoint a new trustee and it is found inexpedient, difficult or impracticable to do so without the assistance of the court, it is lawful for the court to make an order appointing a new trustee or trustees, whether there is an existing trustee or not at the time of making the order, and either in substitution for or in addition to any existing trustees.

s. 158 and 159 of WESA also provides for the removal or passing over of a personal representative.

In Dahle Estate (Re), 2021 BCSC 718 at para. 20 there are four categories of conduct by an executor that will warrant their removal:

(1) endangerment of trust property;
(2) want of honesty;
(3) want of proper capacity to execute the duties; and
(4) want of reasonable fidelity.

The Admissibility of Hearsay Statements of a Deceased

It is a fact that estate litigation is rife with hearsay evidence, often “from” the deceased  and if certain criteria are met, such evidence is admissible.

In Peterson v. Welwood, 2018 BCSC 1379 at paras. 69-8o the court considered the admissibility of statements of the deceased:

In Gutierrez v. Gutierrez, 2015 BCSC 185 at para. 34 the court summarized the factors that can be considered when assessing the threshold reliability of a hearsay statement:

1) the presence or absence of a motive to lie

2) independent corroborative evidence that “goes to the trustworthiness of the statement” (Blackman at para. 55; Khelawon at para. 67; R. v. Couture, 2007 SCC 28 (S.C.C.) at para. 83);

3) timing of the statement relevant to the event, contemporaneity (Khelawon at para. 67);

4) the declarant’s mental capacity at the time of making the statement (Khelawon at para. 107);

5) solemnity of the occasion and whether the declarant’s statement was made “in circumstances that could arguably be akin to the taking of an oath where the importance of telling the truth and the consequences of making a false statement were properly emphasized” (Couture at para. 89; Khelawon at para. 86).

It is important to recognize that, as a preliminary threshold issue, the court must first find on a balance of probabilities that the statement was in fact made by a deceased declarant before it goes on to determine the treatment and weight of such evidence: Creutz v. Estate of Kristian Winther, 2007 BCSC 1463 at para. 99.

This assessment turns on the credibility of the witnesses who relate to the court the hearsay statements attributed to the deceased declarant: Halfpenny v. Holien (1997), 37 B.C.L.R. (3d) 186 (S.C.).