Offers To Settle

Offers to settleOffers to Settle are a well entrenched litigation tool that is used to make offers to the opposing side, that if rejected, and the winning party “beats” the offer, then the winning party is entitled to increased costs to be awarded to them from the losing party, after the date of the offer.

Rule 37B used to govern offers to settle, but while the wording is the same, it is now Rule 9-1 (1) c and it states:

The … [party(ies)] …, … [name(s) of party(ies)] …, reserve(s) the right to bring this offer to the attention of the court for consideration in relation to costs after the court has pronounced judgment on all other issues in this proceeding.”

Case law has held that to be a valid offer to settle wiyjin the Rules of Court, then the offer must use the wording of the section, including the right to bring the offer to the attention of the trial Judge.

Roach v. Dutra (2010), 5 B.C.L.R. (5th) 95 (C.A.); Wormell v. Hagen, [2009] B.C.J. No. 2236; and Eigeard v. Muench, [2010] B.C.J. No. 1229, are the cases on point

In Roach, Prowse J.A. on behalf of the Court undertook an extensive review of the rule dealing with costs and concluded:

… I am also of the view that the wording of the offer must be substantially compliant with the wording of subrule 1(c)(iii) such that no reasonable person could be misled as to the intent of the offer or the fact that it was an offer within the meaning of Rule 37B. In other words, the offer must be in writing, the wording must make it clear what party is making the offer and to whom it is made, and it must include the fact that the party making the offer is reserving the right to bring the offer to the attention of the court in relation to costs after judgment on all other issues in the proceeding. (at para. 52)

[9] While the decision in Roach, supra, dealt with the former Rule 37B(1)(c)(iii), that rule is identical to the present Rule 9‑1(1)(c)(iii) and, accordingly, I am bound by the decision reached by the Court in Roach.

[10] In Wormell, Goepel J. also dealt with an offer which did not contain the wording required under Rule 37B(1)(c)(iii). In adopting the decision of Powers J. in Lau v. Rai (2009), 72 C.P.C. (6th) 112 (B.C.S.C.) to come to the conclusion that the offer did not constitute an “offer to settle” as defined under the Rule, Goepel J. concluded that the third party’s application for double costs should be dismissed. In Eigeard, Hyslop J. was of a similar opinion and concluded: “There is nothing in the offer of the plaintiff to suggest that the plaintiff intends to bring the offer to the trial judge’s attention as it relates to costs.” (at para. 25).

The party receiving an “offer to settle” is entitled to receive the “warning” that the offer will be brought to the attention of the Court. The possibility that costs will be awarded provides an additional incentive for the party receiving an offer to settle to consider the offer seriously. There should be no doubt that costs may be awarded whether or not the party receiving the offer to settle is ultimately successful.

– See more at: http://www.disinherited.com/blog/offers-settle#sthash.WKEcN9tM.dpufaOffers to Settle are a well entrenched litigation tool that is used to make offers to the opposing side, that if rejected, and the winning party “beats” the offer, then the winning party is entitled to increased costs to be awarded to them from the losing party, after the date of the offer.

Rule 37B used to govern offers to settle, but while the wording is the same, it is now Rule 9-1 (1) c and it states:

The … [party(ies)] …, … [name(s) of party(ies)] …, reserve(s) the right to bring this offer to the attention of the court for consideration in relation to costs after the court has pronounced judgment on all other issues in this proceeding.”

Case law has held that to be a valid offer to settle wiyjin the Rules of Court, then the offer must use the wording of the section, including the right to bring the offer to the attention of the trial Judge.

Roach v. Dutra (2010), 5 B.C.L.R. (5th) 95 (C.A.); Wormell v. Hagen, [2009] B.C.J. No. 2236; and Eigeard v. Muench, [2010] B.C.J. No. 1229, are the cases on point

In Roach, Prowse J.A. on behalf of the Court undertook an extensive review of the rule dealing with costs and concluded:

… I am also of the view that the wording of the offer must be substantially compliant with the wording of subrule 1(c)(iii) such that no reasonable person could be misled as to the intent of the offer or the fact that it was an offer within the meaning of Rule 37B. In other words, the offer must be in writing, the wording must make it clear what party is making the offer and to whom it is made, and it must include the fact that the party making the offer is reserving the right to bring the offer to the attention of the court in relation to costs after judgment on all other issues in the proceeding. (at para. 52)

[9] While the decision in Roach, supra, dealt with the former Rule 37B(1)(c)(iii), that rule is identical to the present Rule 9‑1(1)(c)(iii) and, accordingly, I am bound by the decision reached by the Court in Roach.

[10] In Wormell, Goepel J. also dealt with an offer which did not contain the wording required under Rule 37B(1)(c)(iii). In adopting the decision of Powers J. in Lau v. Rai (2009), 72 C.P.C. (6th) 112 (B.C.S.C.) to come to the conclusion that the offer did not constitute an “offer to settle” as defined under the Rule, Goepel J. concluded that the third party’s application for double costs should be dismissed. In Eigeard, Hyslop J. was of a similar opinion and concluded: “There is nothing in the offer of the plaintiff to suggest that the plaintiff intends to bring the offer to the trial judge’s attention as it relates to costs.” (at para. 25).

The party receiving an “offer to settle” is entitled to receive the “warning” that the offer will be brought to the attention of the Court. The possibility that costs will be awarded provides an additional incentive for the party receiving an offer to settle to consider the offer seriously. There should be no doubt that costs may be awarded whether or not the party receiving the offer to settle is ultimately successful.

Special Costs Refused In Ng “Right To Life Case”

Right To Life Case

Ng v Ng 2013 BCSC 1492 discusses in detail the law relating to special costs, as claimed by the winning party in the previous litigation where the family of Kenny Ng, who had been in a coma for 7 years, in their unsuccessful attempt to prevent the committee of Kenny from cutting off his life support.

The court rejected the claim for special costs, which likely would have well exceeded $100,000 and instead ordered costs on scale B which will be more likely in the range of $15,000.

[12] Rule 14-1(9) of the Supreme Court Civil Rules, B.C. Reg. 168/2009 [Rules] provides:
Costs to follow event

(9) Subject to subrule (12), costs of a proceeding must be awarded to the successful party unless the court otherwise orders.
[13] The Patients Property Act, R.S.B.C. 1996, c. 349 provides pursuant to s. 27: Costs
27 The costs of all proceedings under this Act are in the discretion of the court.

[14] While costs generally follow the event, there are circumstances where costs
may still be awarded to the unsuccessful party.

[15] In Lee v. Lee Estate (1993), 84 B.C.L.R. (2d) 341 (S.C.), the plaintiff, Michael Lee, claimed that he was the son of the testator and that he was entitled to a share of the estate. Genetic testing proved that he was not related to the testator and his claim was dismissed. Mr. Lee claimed special costs from the estate. At paras. 12 – 14, Master Horn found:
An order for costs in favour of a completely unsuccessful party against a completely successful party is a most exceptional order. The general rule is that costs follow the event and while a court may depart from this rule, any departure is usually in the way of depriving a successful party of costs and not of awarding costs to an unsuccessful party. In either case, the usual rule should not be departed from simply because an unsuccessful party did not expect to lose. [Citations omitted]

In probate or administration actions or in proceedings for the construction of wills, the rule may be more frequently departed from. In such cases where the validity of a will or the capacity of the testator to make a will or the meaning of a will is in issue, it is sometimes the case that the costs of all parties are ordered to be paid out of the estate. This is upon the principle that where such an issue must be litigated to remove all doubts, then all interested parties must be joined and are entitled to be heard and should not be out of pocket if in the result the litigation does not conclude in their favour. The estate must bear the cost of settling disputes as a cost of administration. … The question to be asked in such case is whether the parties were forced into litigation by the conduct of the testator or the conduct of the main beneficiaries.

But the case is different where the litigation does not relate to the validity of the will or the capacity of the testator or the construction of the will. Actions brought under dependants relief legislation presume the validity of the will and the capacity of the testator and that his intentions are clear. There are not doubts to be settled. The remedies provided by such legislation are directed to the maintenance and support of the dependants of the testator and are based on public policy. The legislation does not invalidate the will, it merely permits the court to vary the provisions made by the testator. So an unsuccessful action under such legislation cannot be said to have been caused by a testator, or to be have been necessary to enable the estate to be distributed. The action does not benefit the estate.

[Emphasis added.]
[16] According to Lee, in considering whether costs are payable from the estate to an unsuccessful party, the court must consider whether the petitioner was forced to bring the petition

Despite Master Chamberlist’s focus upon the motive of the petitioners in Re Bush, the analysis still turns on whether the application was necessary in any event. The motive of a party in bringing the application is not a determinative factor. In Janzen v. Janzen (2002), 45 E.T.R. (2d) 99, [2002] O.J. No. 1372 (S.C.), Mr. Justice Aitken concluded that the patient’s wife was the appropriate guardian in an application brought by a sibling of the patient to be named as guardian. In deciding which party was entitled to costs, Aitken J. noted that all of the parties to the litigation were motivated by their concern for the patient’s wellbeing. Despite that, Aitken J. held the sibling’s application was unnecessary for the following reasons:
[4] Under s. 20(1) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Schedule A, in the absence of a court order, the spouse of an incapable person is considered to have a higher right than a sibling to give or refuse consent to medical treatment on behalf of the incapable person. The assumption presumably is that in the normal course, a spouse will have been more intimately involved than a sibling in the recent life of the incapable person, will know the wishes of the incapable person, and will act in a way that is respectful of those wishes and that will meet have strong reasons to do so or be prepared to pay all or part of the spouse’s legal costs necessitated by the litigation.
[5] In this case, I consider it significant that Edward Janzen’s siblings were not prepared to listen to the opinion of several doctors who were telling them there was no possibility of recovery of brain functioning by Edward. The difficulty Edward’s siblings had in accepting this terrible news and their acting in a way which they considered in Edward’s best interests does not insulate them from the cost consequences of unsuccessful and more importantly unnecessary litigation.

[19] He ordered the siblings pay a significant amount of the wife’s costs. best interests of the spouse

Special Costs
Legal Framework
[37] I recently reviewed the law with respect to special costs in Westsea Construction Ltd. v. 0759553 B.C. Ltd., 2013 BCSC 1352. My conclusions on the state of the law of special costs in Westsea are relevant to the issues in this case and I have summarized those conclusions here.

[38] The leading authority for special costs in British Columbia is the Court of Appeal’s decision Garcia v. Crestbrook Forest Industries Ltd. (1994), 9 B.C.L.R. (3d) 242 (C.A.). In that decision, Mr. Justice Lambert determined the threshold for awarding special costs is “reprehensible” conduct. He held at para. 17:
Having regard to the terminology adopted by Madam Justice McLachlin in Young v. Young, to the terminology adopted by Mr. Justice Cumming in Fullerton v. Matsqui (District), and to the application of the standard of “reprehensible conduct” by Chief Justice Esson in Leung v. Leung 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”. As Chief Justice Esson said 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.
[39] Lambert J.A. recognized that the meaning of “reprehensible” conduct was still quite broad. He found that in order for a special costs award to be justified, the circumstances had to be exceptional. He continued at paras. 23 and 25:
However, the fact that an action or an appeal “has little merit” is not in itself a reason for awarding special costs. … Something more is required, such as improper allegations of fraud, or an improper motive for bringing the proceedings, or improper conduct of the proceedings themselves, before the conduct becomes sufficiently reprehensible to require an award of special costs.

If the proceedings are taken, not in the reasonable expectation of a satisfactory outcome, but in order to impose the burden of the proceedings themselves on the opposing party in circumstances where one party is financially much stronger than the other, then the absence of merit, coupled with the improper motive, is in my opinion a combination which may well amount to reprehensible conduct sufficient to require an award of special costs.
[Emphasis added.]
[40] Garcia instructs that the purpose of a special costs order is to chastise a litigant and to distance the court from the conduct at issue. Special costs are not compensatory: Grewal v. Sandhu, 2012 BCCA 26 (leave to appeal refused, [2012] S.C.C.A. No. 120) at para. 106.
[41] In Westsea, I suggested that the legal standard of reprehensibility has at times been difficult to apply in cases where the misconduct is of a milder form. As a consequence, reprehensibility has been found even where there are no exceptional circumstances, or as Lambert J.A. termed it, “something more”.

7] The law is quite clear that unsuccessful allegations alone cannot support an order for special costs. I note the reasons of Lambert J.A. in Garcia excerpted above.
[58] As found by Mr. Justice Joyce in Hung v. Gardiner, 2003 BCSC 285:
[16] In order to justify an award of special costs, it is not sufficient simply to establish that the plaintiff’s allegations of bad faith and malice were not proven. It is necessary to show that the plaintiff acted improperly in making or maintaining the allegations in this proceeding or otherwise acted improperly in the manner in which she conducted the litigation before special costs will be awarded. It must be shown, not just that the allegation was wrong, but that it was obviously unfounded, reckless or made out of malice. The matter must be considered from the point of view of the plaintiff at the time she made or maintained the allegations (see Native Citizens Fisheries et al. v.
James Walkus, (July 10, 2002) 2002 BCSC 1030).

Proving Wills – Solemn Form vs Proof In Common Form

 

proving wills

There are two ways of proving wills:

  • the easy way known as common form and,
  • the contested prove it way of solemn form

Proof in solemn form

2009 BCSC 194 Romans Estate v. Tassone discusses the different forms of proving a will- when the validity of the will is in issue, the executor must prove the will in solemn form, by calling the requisite witnesses involved in the wills preparation, along with lay witnesses and medical evidence when necessary.

At Pages 7 of 8 the court states:

VI. Proof of the Will in Common Form or Solemn Form

[48] Often proof of a will in common form is all that is required for the administration of an estate where there is a will. Proof in common form, however, does not conclusively determine the will to be the valid last will of a person.

[49] Proof of the will in solemn form provides some protection for the will, in that it will not later be set aside, unless obtained by fraud or a later will is found: Tristam& Cootes Probate Practice (27th Edition, 1989, p. 572. As noted by the authors of the British Columbia Probate & Estate Administration Manual, 2nd Edition, 2008 Update, at p. 18-17, “[t]he safeguarding effect of a grant in solemn form is an application of the principle of res judicata to what is a judgment in rem”.

[50] 17 Halsbury’s Laws (4th) para. 866 says:

If there is any doubt as to the validity of a will or any apprehension that there may be opposition to it, it is open to the executor, or if there is no executor the person entitled to administration with the will annexed, to prove it in solemn form.

[51] In Trites v. Johnson, [1945] B.C.J. No. 76, [1945] 3 W.W.R. 100 (B.C.S.C.) Macfariane J., as he then was observed that “In a case of this kind where the validity of a will has once been called in question I think it is the duty of the executors to prove the will in solemn form of law….” Proof in solemn form was required even where the party originally requesting such had withdrawn their objection.

[52] In the circumstances, in my view probate in common form is not sufficient in light of the issues raised in the Conveyance Action and in light of the information that is brought before the court in the Probate Action. If the will is proven in solemn form, or per testes, it must be proven in open court, upon notice to all interested persons, and will not be admitted to probate unless the court is satisfied of the due execution of the will, the testator’s knowledge and approval of its contents, his capacity and non-revocation: Osterhoff on Wills and Succession, 6th Edition, 2007, Thomson, Carswell, p. 44. If the will is proven in solemn form then the issue regarding the caveat will be moot.

Pre Trial Examination of Witnesses

 

 

Pre trial witnessParties believe they are entitled to examine witnesses under oath before trial, but in fact, it involves a court application which may or may not succeed.

 

Rule 7-5of the Rules of Court ( previously Rule 28) governs such application.

Rule 7-5 (1) states:

If a person who is not a party of record to an action may have material evidence relating to a matter in question in the action, the court may order that the person be examined on both on the matters in question in the action, and
either before or after the examination, order that the examinee party pay reasonable lawyers costs of the person relating to the application and the examination.

An order cannot be made under this rule when the witnesses are resident out of province.

 

Sinclair v March 97 BCLR (3d) 17 ( CA) stated that the scope of inquiry under this rule is not limited to the issues between the parties as defined in the pleadings, but includes all it is generally relevant between the parties.

 

Coates v Triance 2010 BCSC 294 held that the fact that a witnesses willing to proceed by written questions and answers is not a complete answer to an application under this rule when the witness has been unresponsive. The fact that a witness says that he has no recollection is no barrier, especially when the witnesses key to material events. The scope of the examination will but not be limited to questions for which there were not responsive answers.

 

Preus v Miller 1986 BCD Civ 3629-01 BCSC, held that the applicant must satisfy the court that the information sought may relate to matters in issue, and that it is not “ a fishing expedition”, that there are no compelling reasons why the order should not be made, and that it is based on the probative value of the evidence as opposed to any embarrassment or adverse effects it may be caused. This rule is discretionary would all be used to compel a person such as a probation officer disclose information obtained during a pre-trial inquiry.

Hearsay Evidence In Estate Litigation Is Generally Admissable

 

Hearsay 1Hearsay evidence is generally  more admissable than in any other area of the law.

Modonese v Delac 2011 BCSC 82, affirmed by the Court of Appeal at 2011 BCCA 501, provides a summary of the law re hearsay evidence.

Hearsay: General Principles

[79] The Supreme Court of Canada has repeatedly endorsed a principled approach to the admissibility of hearsay evidence. This approach is set out in R. v. Khelawon, 2006 SCC 57 at para. 2, [2006] 2 S.C.R. 787 [Khelawon]:

… When it is necessary to resort to evidence in this form, a hearsay statement may be admitted if, because of the way in which it came about, its contents are trustworthy, or if circumstances permit the ultimate trier of fact to sufficiently assess its worth. If the proponent of the evidence cannot meet the twin criteria of necessity and reliability, the general exclusionary rule prevails. The trial judge acts as a gatekeeper in making this preliminary assessment of the “threshold reliability” of the hearsay statement and leaves the ultimate determination of its worth to the fact finder.

[80] As set out in R. v. Mapara, 2005 SCC 23 at para. 15, [2005] 1 S.C.R. 358, and repeated in Khelawon, the framework for assessing hearsay evidence is as follows:

(a) Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place.

(b) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance.

(c) In “rare cases”, evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case.

(d) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire.

[81] There are three important points to keep in mind when applying the principled approach to hearsay:

1. The onus is on the party tendering the hearsay evidence to establish necessity and reliability on a balance of probabilities: Khelawon at para. 47.

2. The principled approach should not be compartmentalized, but rather should be considered as a continuum between necessity and reliability. In particular, “there may be instances where the necessity is so great – such as where the declarant is dead – that some elasticity on the issue of reliability may be given”: Roussin v. Bouzenad, 2005 BCSC 1719 at para. 14, [2005] B.C.J. No. 2682.

3. The principled approach is not based on fixed criteria, but is applied case-by-case by identifying the relevant concerns and factors in determining admissibility.

(b) Traditional Exceptions

[82] In Pasko v. Pasko, 2002 BCSC 435, 100 B.C.L.R. (3d) 354 [Pasko], a dispute arose as to the admissibility of statements made by deceased parents to their children in connection with a dispute over whether property had been gifted to certain of the children. Halfyard J. noted at para. 10 that there is an “exception to the hearsay rule which permits evidence to be given of statements made by deceased persons as to their present state of mind (including intention), which statements need not be against interest, provided that the deceased person’s state of mind is relevant to an issue in the case.”

[83] Pursuant to this exception, Mr. Justice Halfyard admitted statements relating to the deceased parents’ intentions to confer a gift, made before and at the time of the two transactions in question.

[84] Following Pasko, if I am wrong in concluding that the statements concerning Regina’s intention to divide her assets equally are not admissible pursuant to s. 5 of the WVA, they ought to be admitted pursuant to this exception to the hearsay rule.

[85] Declarations of mental or emotional state are also an established exception to the rule against hearsay. In R. v. Smith, [1992] 2 S.C.R. 915, 94 D.L.R. (4th) 590 [Smith cited to S.C.R.], the Court held that the state of mind exception to the hearsay rule permits reception of evidence to prove the declarant’s state of mind, but not the truth of the factual assertion which may be contained in it. Statements attributed to a deceased declarant tending to show her state of mind, namely a fear of the defendant, are admissible under this exception to the hearsay rule: R. v. Evans, 2002 BCSC 1674 at para. 35, [2002] B.C.J. No. 3100.

[86] Accordingly, the statements attributed to Regina concerning her fear of the defendant and her fear of upsetting him are admissible pursuant to this exception.

[87] The defendant also objects to the admission of things he said out of court; for example, that he was heard in the background using abusive language, attempting to have his wife, Vera Delac, cease telephone contact with the plaintiff. If the plaintiff did hear the defendant make such statements, they are admissible at trial. In Jones v. Ma, 2010 BCSC 866, 6 B.C.L.R. (5th) 137, Ehrcke J. stated:

9 That issue was specifically addressed by the Ontario Court of Appeal in R. v. Foreman (2002), 62 O.R. (3d) 204 (C.A.). In that case Doherty J.A., delivering the judgment of the Court, said at pages 215 to 216:

Admissions, which in the broad sense refer to any statement made by a litigant and tendered as evidence at trial by the opposing party, are admitted without any necessity/reliability analysis. As Sopinka J. explained in R. v. Evans [1993] 3 S.C.R. 653, at page 664:

The rationale for admitting admissions has a different basis than other exceptions to the hearsay rule. Indeed, it is open to dispute whether the evidence is hearsay at all. The practical effect of this doctrinal distinction is that in lieu of seeking independent circumstantial guarantees of trustworthiness, it is sufficient that the evidence is tendered against a party. Its admissibility rests on the theory of the adversary system that what a party has previously stated can be admitted against the party in whose mouth it does not lie to complain of the unreliability of his or her own statements. As stated by Morgan, “[a] party can hardly object that he had no opportunity to cross-examine himself or that he is unworthy of credence save when speaking under sanction of oath” (Morgan, “Basic Problems of Evidence” (1963), pp. 265-6, quoted in McCormick on Evidence, ibid., p. 140). The rule is the same for both criminal and civil cases subject to the special rules governing confessions which apply in criminal cases. [Emphasis in original].

10 I agree with that statement of the law. It was adopted by our Court of Appeal in R. v. Terrico, 2005 BCCA 361. Admissions made by one party to litigation are generally admissible if tendered by the opposing party, without resort to any necessity/reliability analysis.

(c) The Principled Approach

[88] The statements referred to above under headings “a” and “e” (the physical altercation and the evidence that Regina did not know what Marko had asked her to sign) do not appear to neatly fit under any of the established exceptions to the hearsay rule. I now turn to a consideration of the “principled approach” to hearsay.

(i) Necessity

[89] The principle of necessity does not mean that the hearsay evidence must be necessary in order for a party to prove his or her case. As described by the Court in Smith at 933, the criterion of “necessity” refers to the necessity of the hearsay evidence to prove a fact in issue. To satisfy necessity, the party adducing the evidence must prove that hearsay is the only available means of putting that evidence before the court. Necessity is obviously made out in this case. If Regina’s statements are to be adduced at all, they can only be presented in hearsay form because of her death.

(ii) Reliability

[90] When assessing the reliability of a hearsay statement, the court should adopt a functional approach. Starting from the premise that hearsay statements are presumptively inadmissible, it should then search for indicia of trustworthiness sufficient to displace the general exclusionary rule. In each case, the focus of the inquiry must be on the particular dangers arising from the hearsay nature of the evidence: R. v. Blackman, 2008 SCC 37 at para. 42, [2008] 2 S.C.R. 298.

[91] This requirement can be satisfied in one of two ways: First, where there is an absence of any real concern about the truth of the statement because of the circumstances in which the statement was made; and second, where the truth and accuracy of the evidence can be sufficiently tested by means other than contemporaneous cross examination: Khelawon at paras. 62-63.

[92] All relevant factors and the context should be considered, including the presence of supporting or contradictory evidence in appropriate cases.

[93] In Anderson v. Anderson, 2010 BCSC 911, 58 E.T.R. (3d) 291 [Anderson], the pivotal issue in the trial was similar to that raised in the present case: Did the deceased gift the defendant the legal and beneficial interest in property absolutely through an inter vivos transfer? Accordingly, the actual intention of the deceased at the time of the transfer was of fundamental importance. On the issue of hearsay pertaining to this issue, Dardi J. held:

57 The reporting of some of the Deceased’s statements by interested parties raises a concern regarding the reliability of those statements. This evidence must be carefully scrutinized. Adopting the approach in Stephens v. Austin, 2003 BCSC 341, I have nevertheless determined that the Deceased’s statements adduced in evidence meet the threshold requirement of reliability. I conclude that the fact that some of the witnesses relating the statements are interested parties may be adequately dealt with in the determination of the weight to be attributed to any particular statement.

58 In my view, the real issue with some of the evidence and the weight to be accorded to it is whether the statements were in fact made by the Deceased. The Court must first find on a balance of probabilities that the statement was made before it goes on to determine the treatment and weight of such evidence: Creutz v. Winther Estate, 2007 BCSC 1463. In essence, this assessment turns on the reliability of the various witnesses: Halfpenny v. Holien (1997), 37 B.C.L.R. (3d) 186 (S.C.).

[94] Regina had no motive to fabricate the two statements attributed to her. They were not self-serving. The statements at issue were made in the context of everyday intimate conversations between close relatives and friends, which is an accepted indicator of reliability: R. v. Pasqualino, 2008 ONCA 554 at para. 43, 233 C.C.C. (3d) 319. The defendant has pointed to no evidence that would contradict these statements. Accordingly, the statements possess sufficient hallmarks of threshold reliability to justify admission under the principled exception.

Hearsay Evidence Admitted as Necessary and Reliable

hearsay social

The test for hearsay evidence in short is, is  it necessary and reliable

The Ontario Appeal Court recently admitted statements made by a deceased to family members prior to his death as evidence of his insurer’s mistaken cancellation of one of the deceased’s accidental death policies in Brisco Estate v. Canadian Premier Life Insurance Co. (2012), 113 O.R. (3d) 161, 299 0.A.C. 283, 16 C.C.L.I. (5th) 45, 2012 ONCA 854, 2012 CarswellOnt 15259, 82 E.T.R. (3d) 211(Ont. C.A.). In its decision, the Court clarified the scope of the corroboration requirement of section 13 of the Evidence Act as well as the role corroboration can play in admitting hearsay evidence.

Robert Brisco (“Brisco”) died in a plane crash in 2004. Previously, Brisco had purchased two insurance policies through Canadian Premier Life Insurance Company (“Canadian Premier”) in January 1998: an accidental death policy and a hospital benefits policy. Canadian Premier contended that Brisco had cancelled the accidental death policy in August 1998. Brisco’s estate argued that Brisco had meant to cancel the hospital benefits policy, but that Canadian Premier had cancelled the accidental death policy by mistake. If the accidental death policy was in effect, Brisco’s estate would be entitled to $1,000,000. Brisco had also held another $1,000,000 accidental death policy with a different insurer.

As evidence of the mistake, Brisco’s brother (as estate trustee) and Brisco’s three children each gave evidence that Brisco had made statements to them at various times subsequent to 1998 that indicated he believed he held two million-dollar policies. Although these statements were hearsay, the trial judge admitted the evidence under the “state of mind” exception. Canadian Premier appealed, claiming that Brisco’s statements were inadmissible or, in any event, not corroborated pursuant to section 13 of the Evidence Act.

The Court of Appeal dismissed the appeal. Although the trial judge had erred in admitting the statements under the “state of mind” exception, the statements were admissible under the principled approach to hearsay. As well, the statements made by the deceased to his children did not require corroboration (as explained below) but in any event were

.

Section 13 provides as follows:

In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.

After quoting extensively from Wigmore in Evidence and its criticisms of such survivor disqualification statutes, of which few remain, Rosenberg J.A., writing for the Court, wrote:

Given its anomalous place in the modern law of evidence, especially in a case such as this, I see no reason to give s. 13 a broad interpretation when considering its application nor a narrow interpretation when considering the scope of evidence capable of corroborating the evidence of the interested party.

The Court clarified that section 13 only applies to interested parties who make the claim in their capacity as next of kin, executor, administrator or assignee and not simply because, coincidentally, the person happens to fall within one of those categories. Thus, in this case section 13 only applied to Brisco’s brother as estate executor and not to Brisco’s children because, even though they were estate beneficiaries, they were bringing the suit under a contractual right as beneficiaries of an insurance policy.

In any event, the Court found that the evidence of Brisco’s brother and his children corroborated each other. Importantly, the Court confirmed that several pieces of circumstantial evidence, even if not sufficient on their own, when viewed cumulatively, can corroborate the evidence of an interested party. In this case, the Court accepted that evidence such as the fact that no letter was sent by the insurer confirming the cancellation of the accidental death policy, together with the improbability that Brisco would have chosen to cancel the accidental death policy given the other policies he maintained, the recorded discussions about those policies and that he had just purchased the policy months before, as cumulatively corroborating the evidence of Brisco’s brother (and his children, if need be) sufficient to meet the section 13 requirement.

The Court held that Brisco’s statements were inadmissible under the “state of mind” exception because evidence of present intentions or present beliefs are not admissible to establish past acts.

However, the Court admitted the evidence as necessary and reliable under the principled approach to hearsay. Necessity was established because Brisco was deceased. As sufficient indicia of reliability, the Court pointed to the consistency of the various statements, that there was no obvious motive for Brisco to have lied when he made the statements, at least one statement was made under circumstances of solemnity, and that it was unlikely that Brisco would have forgotten he cancelled a million-dollar policy.

The Court also explained that reliability can be bolstered where there is evidence to confirm or corroborate the accuracy of the statements. As such, the Court looked to the same corroborating evidence discussed in its section 13 analysis in finding the hearsay statements reliable, and therefore admissible under the principled approach.

Courts Summary Dismissal of Capacity/Undue Influence Claim

Courts Summary Dismissal of Capacity/Undue Influence Claim

Summary Dismissal  of Capacity and Undue Influence Claims

Orfus Estate v. Samuel & Bessie Orfus Family Foundation 86 E.T.R. (3d) 6, is an Ontario Court of Appeal case that upheld the summary dismissal of a daughter’s claim of lack of capacity and undue influence re her mother’s $20 million estate.

The law re the Wills Variation act is quite different in Ontario that BC, but disinherited.com believes that the reasoning of this case would be applied in BC Courts.

Court cases that are heard “summarily” are based on affidavits rather than live witnesses, and are generally agreeable to the court provided that issues of who to believe are not in dispute.

S and E were daughters of the testator, and S was estranged from both the testator and her sister E.

The Testator was involved in a successful real estate business, and he made two wills, and S was treated less generously than E.

S began corporate oppression proceedings in respect of the companies, and was to receive $9 million as result of the wind-up of the companies.

The Testator made codicil to wills, in which she cut S out of her estate, save for nominal $1,000 bequest.

The Testator died, leaving an estate of nearly $20 million.

S gave notice of objection to wills and codicil, claiming absence of testamentary capacity or approval of contents of wills and codicil, as well as undue influence on the part of E.

The Trustees brought a successful motion for summary judgment to dismiss S’s objection .

S appealed and the Ontario Court of Appeal dismissed the appeal, finding that the Motion judge did not err in finding that testator knew and approved of contents of her codicil.

The motion judge correctly found that suspicious circumstances existed because E provided all instructions for codicil and benefited from codicil by receiving half of assets that had been designated for S under wills.

Therefore, the presumption of knowledge and approval could not be relied upon , however, the motion judge found, without error, that the trustees met the burden of proving knowledge and approval on balance of probabilities.

There was no evidence that the testator lacked capacity or that her cognitive abilities changed at relevant time — On the contrary, there was also positive evidence, being S’s position in the oppression litigation and the testimony of her family doctor.

The Law

“Admittedly, Bessie Orfus duly signed her codicil. And, ordinarily on proof of due execution, it will be presumed that the testator knew and approved of the contents of the testamentary instrument and had testamentary capacity. But that presumption will not apply where suspicious circumstances are present: see Vout v. Hay, [1995] 2 S.C.R. 876(S.C.C.), at p. 889.

Here, the motion judge correctly found that suspicious circumstances existed. They existed because Elaine provided all the instructions for the codicil to Botnick and because she benefited from the codicil by receiving half the assets that had been designated for Sharon under the 2004 wills.”

84 Thus, the estate trustees could not rely on the presumption. They had to prove on a balance of probabilities that Bessie Orfus knew and approved of the contents of her codicil, indeed that she had testamentary capacity. The motion judge found that they met their burden, and I am not persuaded that he erred in making that finding.

85 As the motion judge noted, no evidence was led that Bessie Orfus lacked testamentary capacity in December 2004 or that her cognitive abilities had changed in any way between May and December 2004. In addition to this “negative” evidence, however, there are two cogent pieces of positive evidence that reasonably support the motion judge’s finding.

Administrator Pendente Lite

Administrator Pendente Lite

It is a frequent occurrence in estate litigation that situations arise where the executor is unable to act, or there is no executor or administrator at all, and the validity of the will or the estate is very much in question.

In such circumstances it is absolutely necessary that it administrator be appointed to essentially preserve the assets of the estate, ”pending the litigation”, or in Latin, pendante lite.

The parties typically agree on a neutral person to be appointed as administrator pendante lite and a court application is made to chambers for such an order.

Such administrator has all the rights and powers of a general administrator, other than the right to distribute the estate assets.

He or she is very much subject to the control of the court, and acts under its direction, and the authority of section 8 of the Estate Administration act.

The purpose of this appointment is to provide interim administration of the estate until the action as being concluded, and basically nothing else.

Once the action has been concluded, this grant will cease, either upon the will been proved and probate granted, or upon the will being set aside and letters of administration granted in its place.

Courts frequently ask that administrators pendante lite be bonded, or that some other restriction be ordered such as real property not be sold or mortgaged without further order of the court.

A creditor or any person beneficially interested in the estate me apply for the appointment of an administrator pendante lite. Generally the court will not appoint a party to the litigation as administrator vessel the creditors and persons would agree to do so, but there is no absolute rule to this effect, it is just generally a conflict.

The court application is brought in these same litigation that is challenging the estate, and usually has an affidavit of the proposed administrator setting out the assets, the litigation, and the proposal.

Equity Depends On the Length of the Lord Chancellor’s Foot?

equity 3

‘Equity is a roguish thing: for law we have a measure, know what to trust to; equity is according to the conscience of him that is Chancellor, and as that is larger or narrower, so is equity. ‘Tis all one as if they should make the standard for the measure we call a foot, a Chancellor’s foot; what an uncertain measure would this be? One Chancellor has a long foot, another a short foot, a third an indifferent foot: ’tis the same thing in a Chancellor’s conscience.’

 

-17th cent. J Selden, Table Talk, quoted in M B Evans and RI Jack (eds), Sources of English Legal and Constitutional History, Butterworths, Sydney, 1984,223-224

Abuse of Process

Kellogg v Kellogg estate 2013 BCSC 946 involves a situation that is very common in estate litigation-a self represented plaintiff alleging serious allegations such as fraud or undue influence, lack of capacity and so forth,when in fact all of the allegations are groundless, and amounts to an abuse of process..

In the Kellogg case one of the testator’s three children applied for probate of the testator’s will, and was opposed by one of the other children, the plaintiff, alleged that the will was procured by fraud and undue influence.

The court pronounced the will in solemn form.

The plaintiff then appealed that order and commenced an action alleging that the defendant was not entitled to act as executor, and that he had obtained the grant of probate an appointment as executor through misrepresentation and fraud on the court.

On the defendant’s application to strike out the claim is disclosing no reasonable cause of action, the court also found that the plaintiffs action was an abuse of process, that included baseless allegations of fraud, and accordingly awarded special costs of $3500 against the plaintiff.

‘abuse of process is a flexible doctrine that allows the Court to prevent a claim from proceeding where it violates such principles as “judicial economy, consistency, finality and the integrity of the administration of justice”.

Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 at para. 37.

(g) categories of abuse of process include those that “involve a deception on the court or constitute a mere sham; where the process of the court is not being fairly or honestly used, or is employed for some ulterior or improper purpose; proceedings which are without foundation or serve no useful purpose and multiple or successive pleadings which cause or are likely to cause vexation or oppression.”

Babavic v. Babowech, [1993] B.C.J. No. 1802 at para. 18 (S.C.).”