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 Proof in solemn form was required even where the party originally requesting such had withdrawn their objection.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.
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 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.
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.
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.
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 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
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.).”
Re Newton estate 2013 BCSC 799, involves a court application between two competing trustees to be appointed the third majority vote trustee of the family trust. When only two remaining trustees were unable to agree on a replacement. One of the trustees applied to appoint a well-qualified person for the trust position that was opposed by the other party on the basis that he was too friendly with the other trustee.
The dissenting trustee instead asks the court to appoint a Judicial Trustee, but the court refused and appointed the friend of the family who was better qualified.
The trust document require that there be three trustees but did not delineate that any one of them should be an independent, institutional or corporate trustee.
The instrument further was broad in its scope and who should be appointed as trustee, and a principle of law was that the wishes of the trust beneficiaries had to be held above other interests. Neither beneficiary objected to the appointment of the applicant, and in fact they promoted. The other concern that the court has in these situations is that the appointment should promote as opposed to impede the execution of the trust.
Appointment of a Trustee
[49] Pursuant to s. 31 of the Trustee Act, R.S.B.C. 1996, c. 464 (Ac)], the court may appoint a new trustee:
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.
[50] The principles that guide the court’s discretion in appointing a new trustee were set out in the English Court of Appeal decision In Re Tempest, (1866) 1 Ch. App. 485 (Tempest) at 487 – 488:
[1.] … the Court will have regard to the wishes of the persons by whom the trust has been created, if expressed in the instrument creating the trust, or clearly to be collected from it. [2.] … the Court will not appoint a person to be trustee with a view to the interest of some of the persons interested under the trust, in opposition either to the wishes of the testator or to the interests of others of the cestuis que trusts. [3.] … the Court in appointing a trustee will have regard to the question, whether his appointment will promote or impede the execution of the trust, for the very purpose of the appointment is that the trust may be better carried into execution.
Appointment of a Judicial Trustee
[51] The Act also provides that the court has a discretionary power to appoint a judicial trustee:
97 (1) If an application is made to the court by or on behalf of the person creating or intending to create a trust, or by or on behalf of a trustee or beneficiary, the court may, in its discretion, appoint a judicial trustee to be a trustee of that trust, either jointly with any other person or as sole trustee, and, if sufficient cause is shown, in place of all existing trustees.
[52] The appointment of a judicial trustee was considered in Wright v. Canada Trust Company (1984), 55 B.C.L.R. 349 (S.C.) at 358 (Wright). The court discussed the function of a judicial trustee and the circumstances where an appointment will be warranted:
Judicial trustees are trustees appointed by the court in those circumstances where the court, on application of the settlor, intending settlor, trustees and beneficiaries, considers that such a person should be appointed. Persons not coming within one of the categories have no status or right to apply under this section. His duties will be determined by the court, and he will either act with the existing trustees or be authorized to act alone, or be required to act in place of the existing trustees. …
In Alexander v. Royal Trust Co., [1949] 1 W.W.R. 867, [1949] 2 D.L.R. 824, the Alberta Supreme Court [Appellate Division] considered s. 58 of the Trustee Act, R.S.A. 1942,c. 215, which is similar to s. [97] of our Trustee Act. The court said a judicial trustee should only be appointed for special reasons and where the circumstances warrant, e.g., where an administration of property by a trustee has broken down, or where the administration is being unduly prolonged and the court does not consider it proper itself to undertake the administration (followed in O’Kelly v. Canada Permanent Trust Co., [1972] 1 W.W.R. 41 (Sask. C.A.), and Re Burr (1968), 1 D.L.R. (3d) 78, (B.C.S.C.)
[53] In view of these reasons, the appointment of a judicial trustee will only be justified on the basis of “special reasons” where the circumstances warrant it.
The term “legal disability” is only defined in the BC Rules of Court, and not in any other statute in this province. Rule 20-2(2) of the BC Rules of Court provides that “a proceeding brought by or against a person under legal disability must be started or defended by his or her litigation guardian.”
According to Rule 20-2(8)(a), persons under legal disability are infants or “mentally incompetent” persons.
The phrase “mentally incompetent person” is defined in the Interpretation Act, R.S.B.C. 1996, c. 238, s.29, to mean “a person with a mental disorder as defined by s. 1 in the Mental Health Act”.
The following definition appears in the Mental Health Act:
“person with a mental disorder” means a person who has a disorder of the mind that requires treatment and seriously impairs the person’s ability to react appropriately to the person’s environment, or to associate with others.
In Holland v. Marshall, 2009 BCCA 311 at paras. 29 and 37, Neilson J. A. held that the “environment” referred to in the definition of mental disorder contemplates the larger community of which the person was a part, and not just the environment of the court system and process. It was not enough that the plaintiff in that case had ADHD and memory problems because his mental disorder did not impair his ability to react appropriately to his environment or to associate with others. As such, he was not found to be legally disabled.
While the definition of “mentally incompetent” seems clear, the term “legal disability” has also been determined by the courts to mean something less stringent. In Pavlick v. Hunt, 2005 BCSC 285 at para. 20, for example, the court applied the definition of “a person under disability” found in Kirby v. Leather, [1965] 2 All E.R. 441 (Eng. C.A.), in which it was held by Lord Denning that the issue of whether or not a person was under a legal disability required a determination of: “whether or not the person had the capacity to exercise judgment in relation to the claims in issue in this lawsuit and possible settlement, as a reasonable person would be expected to do.”
– See more at: http://www.disinherited.com/blog/being-under-legal-disability-bc#sthash.Mq8vIT2D.dpuf
