Court Termination of Representation Agreements

Court Termination of Representation Agreements

Baker-McGrotty v Baker 2016 BCSC 699 discuss when the court will exercise its discretion to NOT terminate representation agreements after the appointment of a committee under the Patients Property Act.

26 Section 19 of the Patients Property act provides as follows:

19 On a person becoming a patient as defined in paragraph (b) of the definition of “patient” in section 1,

(a) every power of attorney given by the person is terminated, and

(b) unless the court orders otherwise, every representation agreement made by the person is terminated.

27 In Lindberg v. Lindberg, 2010 BCSC 1127 (B.C. S.C. [In Chambers]), Mr. Justice Willcock noted that the PPA is silent in relation to the factors the court is to consider in the exercise of its residual discretion to uphold a representation agreement following a declaration of incapacity under the PPA:

[49] The law permits the representation agreement to continue to be effective, despite the onset of disability, and recognizes the autonomous choice of a representative by a patient. The difficulty is that s. 19 of the PPA permits a representation agreement to be saved but does not establish the criteria which should be considered in determining whether or not to exercise that discretion. In the absence of further explicit direction in the legislation, I consider the following factors to be appropriate criteria:

(a) the circumstances in which the representation agreement was executed;

(b) the scope of the representation agreement; and,

(c) the basis for the application to set it aside.

28 The foregoing factors were subsequently adopted by Madam Justice Ross in Dawes v. Dawes, 2012 BCSC 1323 (B.C. S.C.), and there has been no suggestion that these criteria should not apply to the case at bar.

Who Should Be Appointed Committee

Who Should Be Appointed Committee

The thorny topic of  who should be appointed Committee was discussed in Baker-McGrotty V Baker 2016 BCSC 699.

The case involved a representation agreement appointing a care giver but was signed when the patient was severely cognitively impaired, so it was suspect in it’s validity.

The Court then decided who should be appointed committee under the Patients Property Act and had the following to say:

[37]        In Stewart (Re), 2014 BCSC 2321 (CanLII), Mr. Justice Masuhara helpfully summarized the applicable law as follows:

[27]      The application for an appointment invokes the parens patriae jurisdiction of the court and is governed by an assessment of who will serve the patient’s best interest.

[28]      Section 18 of the Act states that:

A Committee must exercise the Committee’s powers for the benefit of the patient and the patient’s family, having regard to the nature and value of the property of the patient and the circumstances and needs of the patient and the patient’s family.

[29]      As has been observed in other cases, the Act does not prescribe criteria for the selection of an appropriate Committee. However, cases have identified various considerations; see for example: Vranic (Re), 2007 BCSC 1949 (CanLII); Bowman (Re), 2009 BCSC 523 (CanLII); Palamarek (Re), 2011 BCSC 563 (CanLII); Re Matthews, 2013 BCSC 1045 (CanLII); and Sangha (Re), 2013 BCSC 1965 (CanLII). They include:

(a) whether the appointment reflects the patient’s wishes, obviously when he or she was capable of forming such a wish;

(b) whether immediate family members are in agreement with the appointment;

(c) whether there is any conflict between family members or between the family and the patient, and whether the proposed Committee would be likely to consult with immediate family members about the appropriate care of the patient;

(d) the level of previous involvement of the proposed Committee with the patient, usually family members are preferred;

(e) the level of understanding of the proposed Committee with the patient’s current situation, and will that person be able to cope with future changes of the patient;

(f) whether the proposed Committee will provide love and support to the patient;

(g) whether the proposed Committee is the best person to deal with the financial affairs and ensure the income and estate are used for the patient’s benefit;

(h) whether a proposed Committee has breached a fiduciary duty owed to the patient, or engaged in activity which diminishes confidence in that person’s abilities to properly handle the patient’s affairs;

(i) who is best to advocate for the patient’s medical needs;

(j) whether the proposed Committee has an appropriate plan of care and management for the patient and his or her affairs and is best able to carry it out; and

(k) whether a division of responsibilities such as between the patient’s estate and the patient’s person to different persons would serve the best interests of the patient, or would such a division be less than optimal for the patient.

[39]      The above listing is of course non-exhaustive or in any particular order. The inquiry is fact specific and a particular factor may or may not be applicable and may attract different weight depending on the circumstances of a case.

[38]        In Vranic (Re), 2007 BCSC 1949 (CanLII), Madam Justice Ballance made the following apposite remarks:

[91]      The test for selecting an appropriate Committee is determined on the court’s assessment of who will serve the patient’s best interests: Public Trustee v. Thomas James Pollen, [1996] B.C.J. No. 2394; Re Watson, 2006 BCSC 503 (CanLII), [2006] B.C.J. No. 709, 2006 B.C.S.C. 503; Re Leeming (1984), 1984 CanLII 566 (BC SC), 14 D.L.R. (4th) 315 (B.C.S.C.); Re Rempel, 2001 BCSC 735 (CanLII), [2001] B.C.J. No. 1036, 2001 B.C.S.C. 735. Under the current legislative scheme, a declaration of incapacity and the appointment of a Committee has the effect of being a blunt order which results in a far-reaching fundamental loss of an adult’s liberties. The “best interests” test is a familiar one in law and, in particular, in the judicial determination of issues which affect children.

[92]      For sound reasons, that standard quite properly reflects the protective approach of the court in dealing with matters which affect children. Although the test by the same name applies in considering the appointment of a Committee for a mentally incapacitated adult, its application requires a more nuanced approach which acknowledges and takes into consideration issues concerning the adult’s autonomy, his personal dignity, his idiosyncrasies and the way he has chosen to live his life while capacitated. It also takes into account most assuredly any wishes he has validly expressed while mentally competent or lucid about who he would like to act as his Committee or otherwise make decisions on his behalf.

[93]      These factors should also inform the manner in which a Committee performs his or her duties. Additional important factors the court is to consider are, the proposed Committee’s previous involvement with the patient or his family, the proposed Committee’s knowledge and understanding of the patient’s situation and needs, the proposed Committee’s level of experience or capability in performing the duties of Committee, any kind of plan or scheme of the proposed Committee for the management of the patient and any potentially conflict of interest between the proposed Committee and the patient. Re West (1978), 20 N.B.R. (2d) 686 S.C.A.D.; Re Taylor (1982), 13 E.T.R. 168 (B.C.S.C.); Re Watts, [2002] B.C.S.C. 1331 (Master); Finlay v. Finaly (1997), 16 E.T.R. (2d) 216 (B.C.S.C.).

Joint Tenancy, Tenancy in Common and the Right of Survivorship

Joint Tenancy, Tenancy in Common and the Right of Survivorship

The BC Appeal Court in Zeligs Estate v Janes 2016 BCCA 280 had the following to say about Joint Tenancy, Tenancy in Common and the Right of Survivorship.

As people age they often transfer property gratuitously to their adult children, and then hold it with them in joint tenancy. Their goals may vary. Some seek assistance with financial management; some wish to gift survivorship rights; some envisage other forms of shared ownership. As the Supreme Court of Canada explained in Pecore v. Pecore, 2007 SCC 17 (S.C.C.) , the intention of the transferor governs what passes beneficially, if anything, in transfers of this sort.

38      Joint tenancy and tenancy in common are the two most common forms of concurrent property ownership in Canada. In a joint tenancy, the “four unities” of title, interest, time and possession are present and co-owners hold an equal interest in the property as a unified whole. The common law treats joint tenants as a single tenant: each holding the whole for all, with no distinct shares held by anyone. In contrast, in a tenancy in common one co-owner may hold a greater proportionate interest in the property than the other co-owner(s): Hansen Estate v. Hansen, 2012 ONCA 112 (Ont. C.A.) at paras. 29-30; Alberta (Public Trustee) v. Felske Estate 2007 ABQB 682 (Alta. Q.B.) at para. 31, aff’d 2009 ABCA 209 (Alta. C.A.); Rathwell v. Rathwell [1978] 2 S.C.R. 436 (S.C.C.) at 459.

39      Unity of title means the title of each joint tenant arose from the same act or instrument. Unity of interest means their holdings are perfectly equal in nature, extent and duration. Unity of time means all the interests vested simultaneously. Unity of possession means each joint tenant has a right to present possession and enjoyment of the whole property, but no right to exclusive possession of any individual part of the whole. Assuming all four unities are present, the question of whether a joint tenancy or a tenancy in common has been created is determined by the intention of the grantor: B. Ziff, Principles of Property Law, 6th ed. (Toronto: Carswell, 2014) at 336; Felske Estate at para. 31.

40      Joint tenancy is often the chosen form of concurrent ownership for family holdings, usually for estate planning purposes. This is unsurprising. The legal fiction of a unified singularity composed of more than one person may fit comfortably in a family context. Unfortunately, however, unity can be fragile and families are not always happy. As Abella J. remarked in Pecore , when divisions arise that unhappiness often finds its painful way into a courtroom.

41      The principal and distinguishing characteristic of joint tenancy is the right of survivorship, the jus accrescendi. When one joint tenant dies, his or her interest in the property is extinguished and passes to the surviving joint tenant(s). The right of survivorship is, however, a revocable expectancy that manifests only upon success in the so-called “ultimate gamble” – survival – and then only if the joint estate has not been previously destroyed by an act of severance: Estate of Propst, Re, 788 P.2d 628268 (U.S. Cal. Sup. Ct. in Banco 1990) at 631. When given inter vivos, a gift of survivorship rights is to what is left, if anything, when the gamble is won: Simcoff v. Simcoff, 2009 MBCA 80 (Man. C.A.) at para. 64.

42      The interest of a tenant in common is different with respect to survivorship. Unlike that of a joint tenant, a tenant in common’s interest in property remains intact upon death and passes into his or her estate: Fuller v. Fuller Estate, 2010 BCCA 421 (B.C. C.A.) at para. 53.

43      Importantly, parties may hold legal title to property in one form of co-ownership while holding equitable title in another. For example, a mother and daughter may be joint tenants in law and tenants in common in equity with respect to jointly-held property by virtue of a trust or an act of severance. If the mother dies first, the daughter assumes full legal title by right of survivorship, but the mother’s equitable interest, being held in common, passes to her estate and the daughter holds legal title as trustee for the beneficial owners, namely herself and her mother’s estate: Pecore at paras. 4-5; Ziff at 341-342.

44      Equity leans against joint tenancies: Law Reform Commission of British Columbia: Report on Co-Ownership of Land (1988) at 23. As explained in J. McGhee, ed., Snell’s Equity, 31st ed. (London: Sweet & Maxwell, 2005) at 103, the relevant maxim is that equity is equality. When a joint tenant dies the whole belongs to the survivor(s) and the deceased’s estate takes nothing, which favours the tenant(s) of longevity and is thus unequal, except perhaps for an equal chance at survival. For this reason, equity often treats persons who are joint tenants at law, such as business partners or unequally contributing co-owners, as tenants in common: Mischel Holdings Pty. Ltd. v. Mischel, [2013] VSCA 375 (Australia Vic. C.A.) at paras. 60-61.

Summary Trial In Court’s Discretion

Summary Trial In Court's Discretion

Whether or not a case is suitable or not to be decided by way of a summary trial is a matter of the court’s discretion depending on an a number of factors.

Cotter v Point Grey Golf and Country Club 2016 BCSC 10 summarized the law:

[82]        The suitability of matters for a summary trial has now been considered by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7 (CanLII).  In that case, the Court was considering Rule 20.04 of the Ontario Rules of Civil Procedure.

[83]        Our Rule 9-7 sets out as follows:

(15)      On the hearing of a summary trial application, the court may

(a) grant judgment in favour of any party, either on an issue or generally, unless

(i)   the court is unable, on the whole of the evidence before the court on the application, to find the facts necessary to decide the issues of fact or law, or

(ii)  the court is of the opinion that it would be unjust to decide the issues on the application,

(b) impose terms respecting enforcement of the judgment, including a stay of execution, and

(c) award costs.

Additionally the Rule provides:

(11)      On an application heard before or at the same time as the hearing of a summary trial application, the court may

(a) adjourn the summary trial application, or

(b) dismiss the summary trial application on the ground that

(i)   the issues raised by the summary trial application are not suitable for disposition under this rule, or

(ii)  the summary trial application will not assist the efficient resolution of the proceeding.

[84]        The Court in Hryniak was concerned with whether it would be appropriate for the judge to proceed on summary judgment and examined the part of the rule that discusses whether there is a “genuine issue requiring a trial”.  The Court also examined when it was in the “interests of justice” for the fact-finding powers on such applications, new to the Ontario Rules of Civil Procedure, to be used in a summary judgment motion.  Lastly, the Court considered the power to call oral evidence and the process to be followed on such a motion.  Importantly, the Rule in Ontario differs from the Rule in British Columbia, permitting greater discretion in British Columbia to proceed or not by way of summary trial.  There are also less tools available to a BC court considering a 9-7 summary trial application as opposed to the Ontario version, which is set out in Rule 20.04

[87]        At para. 58 in Hryniak, the Court held:

[58]      This inquiry into the interest of justice is, by its nature, comparative. Proportionality is assessed in relation to the full trial.  It may require the motion judge to assess the relative efficiencies of proceeding by way of summary judgment, as opposed to trial.  This would involve a comparison of, among other things, the cost and speed of both procedures.  (Although summary judgment may be expensive and time consuming, as in this case, a trial may be even more expensive and slower.)  It may also involve a comparison of the evidence that will be available at trial and on the motion as well as the opportunity to fairly evaluate it.  (Even if the evidence available on the motion is limited, there may be no reason to think better evidence would be available at trial.)

[88]        In connection with the interests of justice inquiry, the Court held that if it was possible for the judge to fairly and justly adjudicate the claim through a summary judgment, it would be against the interests of justice not to do so.

[89]        Hryniak has been considered in British Columbia.  In Crest Realty Westside Ltd. v. W & W Parker Enterprises Ltd., 2015 BCCA 447 (CanLII), the Court of Appeal noted that the decision to proceed by way of summary trial is a matter of discretion, and the Court of Appeal will not interfere unless the discretion was not exercised judicially or exercised on a wrong principal.

[90]        In McLellan v. Shirley, 2015 BCSC 1930 (CanLII), Justice Brown stated that:

[42]      If no genuine issue requires a trial, the court must grant summary trial.

[91]        In Barkwill v. Pachomchuck, 2011 BCCA 207 (CanLII), our Court of Appeal stated:

[14]      The suitability of an action for disposition by way of summary trial depends on whether the evidence is sufficient for the chambers judge to find the facts necessary to give judgment, Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 1989 CanLII 229 (BC CA), 36 B.C.L.R. (2d) 202 (C.A.) at 214-16.

[92]        In N.J. v. Aitken Estate, 2014 BCSC 419 (CanLII), Justice Ehrcke held:

[33]      In my view, Hyrniak v. Mauldin does not change the law regarding summary trials in British Columbia, and does not render the jurisprudence from our Court of Appeal obsolete.

[93]        In the well-known oft cited decision of Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 1989 CanLII 229 (BC CA), 36 B.C.L.R. (2d) 202 (C.A.), Chief Justice McEachern, considering the former Rule for summary trial 18A, held that a number of factors were to be considered in determining the appropriateness of a matter for summary disposition:

[47]      In fact R. 18A substitutes other safeguards which are sufficient to ensure the proper attainment of justice. First, 14 days notice of the application must be given (R. 18A (1.1)); secondly, the chambers judge cannot give judgment unless he can find the facts necessary to decide issues of fact or law (R. 18A(3)(a)); and thirdly, the chambers judge, even if he can decide the necessary factual and legal issues, may nevertheless decline to give judgment if he thinks it would be unjust to do so. The procedure prescribed by R. 18A may not furnish perfect justice in every case, but that elusive and unattainable goal cannot always be assured even after a conventional trial and I believe the safeguards furnished by the Rule and the common sense of the chambers judge are sufficient for the attainment of justice in any case likely to be found suitable for this procedure. Chambers judges should be careful but not timid in using R. 18A for the purpose for which it was intended.

[48]      In deciding whether it will be unjust to give judgment the chambers judge is entitled to consider, inter alia, the amount involved, the complexity of the matter, its urgency, any prejudice likely to arise by reason of delay, the cost of taking the case forward to a conventional trial in relation to the amount involved, the course of the proceedings and any other matters which arise for consideration on this important question.

[94]        Accordingly, the decision to proceed with a summary trial is a matter for the court’s discretion.  Both cost and complexity are included as factors to be considered.  Credibility also remains an important issue for the court to determine.  Nonetheless, if the court is able to find the necessary facts to justly resolve the matter, the court should proceed to judgment

Proprietary Estoppel

Promissory Estoppel Revisited

NOTE:   This Court of Appeal Decision was over turned by the Supreme Court of Canada 2017 SCC 61 and the claim was allowed

 

See blog entry dated  February 2,2018

 

The BC Appeal Court in Cowper-Smith v Morgan 2016 BCCA 200 allowed an appeal in part to over turn the successful  the claim brought for proprietary estoppel at trial by finding that the claim should not be allowed where a non owner of property gave assurances and a reliance thereon with respect to her future intentions based on the assumption she would inherit from her mother the owner., when she might not.  Since the sister  had no enforceable equitable or legal right to the property at the critical time being when the representation was made, the brother should not have relied upon it.

The deceased mother transferred her house into joint tenancy with her daughter in 2001. In 2002 the mother made a will leaving her estate equally to her three children. The mother’s investment accounts were over several years transferred into joint names with the daughter.

A declaration of trust for the house and bank assets was signed in 2001.

The defendant sister told her siblings that the house was put into her name only so she could assist in their mother’s affairs and would all eventually go to her mother’s estate.

The defendant daughter promised to sell one of her brothers her anticipated 1/3 share in the house to lure him back to Canada to take care of his mother.

The trial and appeal courts over turned the transfers and distributed her estate equally as per her will on the basis of undue influence  but the appeal over turned the portion of the judgement that allowed the brother to succeed on the basis that he relied upon the promise made by his sister, he took care of his mother for years, but the sister reneged on her promise to transfer to him her 1/3 of the house as she did not own it when she promised it.

The Appeal Court stated in part:

Commerce International Bank Ltd., [1982] Q.B. 84 (Eng. C.A.) at 122:

When the parties to a transaction proceed on the basis of an underlying assumption (either of fact or of law, and whether due to misrepresentation or mistake, makes no difference), on which they have conducted the dealings between them, neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so. If one of them does seek to go back on it, the courts will give the other such remedy as the equity of the case demands.

70      While the principles of fairness and flexibility have informed the modern approach to the application of proprietary estoppel, as adopted by this Court in its jurisprudence (see Idle-O Apartments Inc. v. Charlyn Investments Ltd., 2014 BCCA 451 (B.C. C.A.) at para. 49; Sabey v. von Hopffgarten Estate, 2014 BCCA 360 (B.C. C.A.); Scholz v. Scholz, 2013 BCCA 309 (B.C. C.A.) at para. 31; Sykes v. Rosebery Parklands Development Society, 2011 BCCA 15 (B.C. C.A.) at paras. 44-46; Erickson v. Jones, 2008 BCCA 379 (B.C. C.A.) at paras. 52-57; Trethewey-Edge Dyking (District) v. Coniagas Ranches Ltd. [2003 CarswellBC 657 (B.C. C.A.)] at paras. 64-73; Zelmer v. Victor Projects Ltd. (1997), 34 B.C.L.R. (3d) 125 (B.C. C.A.) at paras. 36-37), there remains a necessary balancing between an overly broad application of the doctrine under the general guise of “unfairness” and an overly narrow application of the doctrine that places excessive weight on the technical requirements of the doctrine. See Lord Scott’s observations in Cobbe v. Yeoman’s Row Management Ltd., [2008] UKHL 55 (U.K. H.L.) in contrast to Lord Neuberger’s comments in Thorner v. Major, [2009] UKHL 18 (U.K. H.L.).

71      These underlying rationales and explanations for the evolution of the doctrine have led to its modern iteration as enunciated by Madam Justice Bennett in Sabey and affirmed by Madam Justice Newbury in Idle-O Apartments Inc. at para. 49:

[49] From the foregoing I infer that although proprietary estoppel is, like most equitable remedies, flexible and aimed at doing justice, and although the basic elements of the doctrine are not to be technically confined, those elements must still be made out and an equity established. I reproduce again the encapsulation of the doctrine provided recently in Sabey:

Is an equity established? An equity will be established where:

There was an assurance or representation, attributable to the owner, that the claimant has or will have some right to the property, and

The claimant relied on this assurance to his or her detriment so that it would be unconscionable for the owner to go back on that assurance.

If an equity is established, the court must determine the extent of the equity and the remedy appropriate to satisfy the equity.

72      As was noted by Bennett J.A. in Sabey, the bulk of the analysis occurs at the first stage, where “findings with regard to assurances, reliance and detriment are made” and where the court must determine whether it would be unconscionable for the person “to fail to make good on a promise to create a legal right in favour of someone else” (at para. 27).

73      Thus, the elements of the modern doctrine of proprietary estoppel require:

(i) an assurance or representation by the defendant that leads the claimant to form a mistaken assumption or misapprehension that he or she has an interest in the property at issue;

(ii) a causative connection between the assurance or representation and the claimant’s reliance on the assumption such that the claimant changes his or her course of conduct; (

iii) a detriment suffered by the claimant that flows from his or her reliance on the assumption, which causes the unfairness and underpins the proprietary estoppel; and

(iv) a sufficient property right held by the defendant that could be transferred to satisfy the right claimed by the claimant.

 

The Majority of the Court held:

98      There is no doubt that the applicable standard of review in this case is that described by Newbury J.A. in Idle-O Apartments Inc. as follows (at para. 72):

[72] At the outset, I note that the granting of a remedy for proprietary estoppel is a discretionary matter that attracts a high degree of appellate [deference]. The classic statement of the applicable standard of review may be found in Friends of the Old Man River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, where the Court quoted with approval the following passage from Charles Osenton & Co. v. Johnston, [1942] A.C. 130 (H.L.):

The law as to the reversal by a court of appeal of an order made by the judge below in the exercise of his discretion is well-established, and any difficulty that arises is due only to the application of well-settled principles in an individual case. The appellate tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the judge. In other words, appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion, had it attached to them, in a different way. But if the appellate tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight, or no sufficient weight, has been given to relevant considerations such as those urged before us by the appellant, then the reversal of the order on appeal may be justified…(See also Wenngatz v. 371431 Alberta Ltd., 2013 BCCA 225 at para. 9; Stone v. Ellerman, 2009 BCCA 294 at para. 94; and Harper v. Canada (Attorney General), 2000 SCC 57at para. 26.)

99      In considering whether there has been a wrongful exercise of discretion, I begin by noting that in Uglow v. Uglow, [2004] EWCA Civ 987 (Eng. & Wales C.A. (Civil)) at para. 9, the Court of Appeal described the following general principle:

The overriding concern of equity to prevent unconscionable conduct permeates all the different elements of the doctrine of proprietary estoppel; assurance, reliance, detriment and satisfaction are all intertwined.

100      In my view, the assurance given by Gloria to Max in this case was so based on uncertainty as to undermine any claim based on proprietary estoppel and that uncertainty goes to the root of reliance. The uncertainty arises from the fact that both at the time the assurance was given by Gloria and at the time Max acted upon the assurance, the Property was owned by Elizabeth; that is, Gloria had no beneficial interest in the Property and was uncertain what interest she would eventually inherit, if any. In the circumstances, Max cannot have been reasonably certain Gloria could do what she represented she would do. His hope and belief, initiated and encouraged by her, that he would likely be given the opportunity to buy whatever interest Gloria might inherit does not give rise to an interest in his mother’s estate. With respect, I do not agree with Smith J.A.’s view that Gloria’s “clear entitlement to a one-third interest in the Property at the time of the judge’s order” is relevant to whether an estoppel arose when Max acted upon the assurance given to him.

101      In relation to reliance as an essential element of a claim founded upon proprietary estoppel, Snell’s Equity, 31st ed (London: Sweet and Maxwell, 2005) says, at §10-18:

A must have acted in the belief either that he or she already owned a sufficient interest in O’s property to justify the expenditure or that he or she would obtain such an interest although it is not necessary for A to establish that he or she had an expectation in relation to a specific or clearly identified piece of property. But if A has no such belief, and improves land in which he knows he has no interest or merely the interest of the tenant, or licensee or as an occupier who incurs expenditure in the hope of obtaining planning permission and then entering into a contract to buy the land, he or she has no equity in respect of his expenditure. It is not sufficient that A believes he will obtain an interest over O’s property if he is also aware that O may change his mind.

[Emphasis added.]

102      Snell’s Equity proposes that in order to establish the estoppel it is necessary for A to show that O “created or encouraged the belief or expectation on the part of A that O would not withdraw from the agreement in principle”. That is a description of a present and ongoing obligation.

103      The circumstances in the case at bar resemble those in the many reported inheritance cases, including In re Basham and Thorner v. Major, with an important exception: the assurance here did not come from the beneficial owner of the property interest. In my view, the interest found by the judge to have been wrongly obtained through undue influence in respect of the land transfer and Declaration of Trust cannot be regarded as sufficient interest to permit Gloria to make representations or give assurances that might give rise to a proprietary estoppel. The assurance Gloria gave to Max had nothing to do with an interest in the Property created by the transfer or Declaration of Trust (both of which she thought, at the time, to be intended to simply facilitate the handling of the estate). The interest she promised to Max was the right to buy her expected inheritance. She did not yet own that inheritance and might never have come into it.

104      Walker L.J., in the passage from Thorner cited by Smith J.A., was of the view that in order to constitute proprietary estoppel, “the assurances given to the claimant (expressly or impliedly, or, in standing-by cases, tacitly) should relate to identified property owned (or, perhaps, about to be owned) by the defendant” (emphasis added).

105      Walker L.J. does not expand upon his view that an estoppel may arise from assurances made by one who is about to be the owner of the property. Neither the source nor the extent of that qualification to simple ownership is described, other than by a reference later in the paragraph to Crabb v. Arun District Council, in which there is no discussion of property about to be owned by the Council that made the representation in that case. In fact, in Crabb there are repeated references to the legal rights of the person making the representation. Denning M.R. states: “Short of an actual promise, if he, by his words or conduct, so behaves as to lead another to believe that he will not insist on his strict legal rights — knowing or intending that the other will act on that belief — and he does so act, that again will raise an equity in favour of the other; and it is for a court of equity to say in what way the equity may be satisfied” (emphasis added). Scarman L.J., citing Willmott, notes: “the defendant, the possessor of the legal right, must have encouraged the plaintiff in his expenditure of money or in the other acts which he has done, either directly or by abstaining from asserting his legal right” (emphasis added). In short, there is nothing expressly stated in Crabb that contemplates an estoppel arising with respect to property that is other than legally owned by the person making the representation.

106      Even assuming there to be some basis for the view that proprietary estoppel might arise as a result of an assurance given by one about to be the owner of property, I would not expand that class of persons so far as to include a potential beneficiary who gives an assurance to another, years before the death of a testator, with respect to what she will do with an inheritance that she merely anticipates receiving, if the person receiving the assurance acts as requested in the meantime. Not only is there uncertainty, in such a case, with respect to the promisor’s ability to deliver a proprietary interest to the promisee at the time the assurance is given, the uncertainty is not resolved when the promisee acts in reliance upon the promise.

107      Leaving aside, for the moment, the question whether Gloria was in a position to exert undue influence upon her mother, there was uncertainty with respect to the property interest Max was being promised. First, there was uncertainty whether Gloria would inherit anything from her mother. She might have predeceased her mother. Her mother might have changed her will and left Gloria more or less than a one-third interest in the property. Her mother might have sold the house and moved into accommodation more suited to her declining health. Simply by liquidating her property Elizabeth Cowper-Smith would have precluded Max from asserting a right to buy anything from Gloria. Certainly it is not suggested that Elizabeth was in any way restricted in her dealings with the property simply because her daughter made assurances to Max about what she would do on Elizabeth’s death.

108      Without exerting undue influence upon her mother, Gloria was not in a position to determine what property interest Max would receive in exchange for his move to Victoria. The fulfilment of Gloria’s promise was entirely conditional on her mother’s actions, which were outside her control.

109      Further, an obligation on Gloria’s part cannot have arisen before she inherited an interest in the Property. In this case, unlike the inheritance cases, no obligation arose simply as a result of the reliance upon the assurance. Where the assurance comes from the testator, the estoppel arises because there has been such reliance, making it inequitable to permit the testator to resile from the promise. A remedy is available before the testator’s death. As noted by Mummery L.J. in Uglow, proprietary estoppel may be relied upon to prevent a testator from making a will giving specific property to one person, if by his conduct he has previously created the expectation in a different person that he will inherit it:

The testator’s assurance that he will leave specific property to a person by will may thus become irrevocable as a result of the other’s detrimental reliance on the assurance, even though the testator’s power of testamentary disposition to which the assurance is linked is inherently revocable.

110      As Professor MacDougall observes in Estoppel at §6.38, there is a temporal element to proprietary estoppel. The demands of equity and how they are properly satisfied may change over time; but the equity arises when there is reliance. That is the foundation for what he describes at §6.73 as a “more orthodox approach” to the question we face than that which is taken by Smith J.A.:

… [P]roprietary estoppel will not apply where the owner in fact has no existing rights with respect to the property in question when the equity would otherwise arise — i.e., at the time of the detrimental reliance.

111      Uncertainty with respect to the promisor’s ability to fulfill the promise is closely related to the concept of reliance. Key to the acquisition of a proprietary interest by estoppel is the principle that it is unconscionable to permit a person to fail to keep a promise made and reasonably relied upon by the promisee. How can there be reasonable reliance upon a promise to convey an interest in property made by one who does not have such an interest or whose interest is uncertain?

112      Like my colleague, I recognize the evolution of the law of proprietary estoppel has been marked by tensions between, on the one hand, broad principles of flexibility and fairness, and on the other hand, narrow technical requirements. While the jurisprudence tells us that proprietary estoppel is no longer a “Procrustean bed constructed from some unalterable criteria” (see Idle-O Apartments Inc. at para. 23), the Court in Crabb nonetheless insisted the exercise of equitable jurisdiction be rooted in identifiable principles. To that end, the Court adopted the words of Harman L.J. in Bridge v. Campbell Discount Co., [1961] 1 Q.B. 445 (Eng. C.A.) at 459:

Equitable principles are … perhaps rather too often bandied about in common law courts as though the Chancellor still had only the length of his own foot to measure when coming to a conclusion. Since the time of Lord Eldon the system of equity for good or evil has been a very precise one, and equitable jurisdiction is exercised on well-known principles.

113      I do not read this Court’s judgment in Idle-O Apartments Inc. as suggesting that uncertainty that undermines reliance on a representation may be disregarded. To the contrary, when the Court considered whether an equity was established (at para. 23) it required the claimant to establish he believed in the existence of “a right created or encouraged by the words or the actions of the other party such that it would be unfair, unjust or unconscionable to allow the representor to set up its undoubted rights against the claimant”. At para. 57, the Court referred with approval to the trial judge’s recognition that detrimental reliance on the part of the claimant “underpins the claim and establishes the unfairness or unjustness that ought to be addressed by equity. Without such, … the doctrine may become ‘somewhat pointless’ and a ‘circumlocution for doing justice’.”

114      Newbury J.A., after describing the evolving conception of the scope of proprietary estoppel, noted:

[48] This court has adopted the “broader” approach to proprietary estoppel: see Zelmer at para. 49, Erickson at paras. 55-7, and most recently in Sabey at paras. 28-9. This approach is consistent with the judgment of Lord Denning in the seminal English case of Crabb v. Arun District Council, [1976] 1 Ch. D. 179 at 187-9; Oliver J. in Taylor Fashions; Buckley L.J. in Shaw v. Applegate, [1978] 1 All E.R. 123 at 130-1; and various other English authorities. On the other hand, English and Australian courts (and to some extent Canadian courts) have in recent years been at pains to emphasize that proprietary estoppel does not arise simply out of conduct that a court finds to be unconscionable. As observed by Lord Scott in Yeoman’s Row Management Ltd v. Cobbe, [2008] UKHL 55:

… unconscionability of conduct may well lead to a remedy but, in my opinion, proprietary estoppel cannot be the route to it unless the ingredients for a proprietary estoppel are present. These ingredients should include, in principle, a proprietary claim made by a claimant and an answer to that claim based on some fact, or some point of mixed fact and law, that the person against whom the claim is made can be estopped from asserting. To treat a “proprietary estoppel equity” as requiring neither a proprietary claim by the claimant nor an estoppel against the defendant but simply unconscionable behaviour is, in my respectful opinion, a recipe for confusion. [At para. 16.]

[Emphasis added.]

115      Professor MacDougall, at §6.34, echoes Lord Scott’s concerns, suggesting the doctrine of proprietary estoppel “should not be seen as a generalized remedial doctrine for unfairness.” Unfairness, in MacDougall’s view, is merely a general description of what the doctrine seeks to combat. Unfairness is not, in itself, an “overarching principle” that allows proprietary estoppel to be applied even in the absence of the typical requirements.

116      The Court in Idle-O Apartments Inc. further noted that the test for establishing a proprietary estoppel had recently been collapsed, in Sabey, into two components (see para. 30):

There was an assurance or representation, attributable to the owner, that the claimant has or will have some right to the property, and

The claimant relied on this assurance to his or her detriment so that it would be unconscionable for the owner to go back on that assurance.

[Emphasis added.]

117      While the criteria that define the limits of proprietary estoppel are not unalterable, I see no reason in principle why the cause of action should be expanded to permit a person to acquire an interest in property by reliance upon an assurance by a non-owner that falls short of a contractual obligation. Such an expansion would be problematic, untying entirely from its ties to property the only estoppel that can be used as a sword. I would not so extend the cause of action.

118      In my view, the fact Gloria used undue influence to obtain de facto control over the Property and Investments does not affect that conclusion. Max did not, in fact, rely upon that undue influence as assurance that Gloria would deliver on her promise. Even if he had known of the influence exerted by Gloria, equity should not come to the assistance of one who says he arranged his affairs in reliance upon a promise made by a person exerting improper control over a testator with respect to what she would do with the inheritance assured by the exercise of that control. In fairness to him it should be said that Max is not advancing that argument. Even so, the logic of that argument lies at the root of the proposition that undue influence distinguishes this case from others where a non-owner makes assurances about what rights an owner will exercise over property.

Conclusion

119      In the result, I would allow the appeal on this aspect of the order only and set aside the Order made in Max’s favour. In all other respects, I agree with my colleague’s reasons and conclusions.

Saunders J.A.:

I AGREE:

Appeal allowed in part.

Witness Credibility

Witness Credibility

Witness credibility is essential to winning at trial as if a Judge does not believe your client or the witnesses then you will most certainly lose the case.

I have joked for years that the competing stories in estate dispute cases are so diverse that I caution clients that they might well  initially believe they are in the wrong court room.

Mac v Mak 3026 BCSC 1140 stated:

In the often-cited Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.), the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as a whole: Faryna at 357.  The factors were also considered by Justice Dillon in Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186:

[186]    Credibility involves an assessment of the trustworthiness of a witness’ testimony based upon the veracity or sincerity of a witness and the accuracy of the evidence that the witness provides (Raymond v. Bosanquet (Township) (1919), 59 S.C.R. 452, 50 D.L.R. 560 (S.C.C.)). The art of assessment involves examination of various factors such as the ability and opportunity to observe events, the firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness’ evidence harmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct and cross-examination, whether the witness’ testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie, and the demeanour of a witness generally (Wallace v. Davis (1926), 31 O.W.N. 202 (Ont.H.C.); Farnya v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.) [Farnya]; R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para. 128 (S.C.C.)). Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time (Farnya at para. 356).

Value of Contribution

Value of Contribution

The Value of Contribution of a parties to the acquisition or improvement of  an asset does not have to be in money and can take  various individual forms as was discussed in Mac v Mak 2016 BCSC 1140.

The Courts have to scrutinize the relationship and history of the parties and come to a conclusion on a case by case basis as to what if anything each party contributed little or no monies but instead did other things like free  labour in expectation of being put on title.

Mac v Mak was a dispute over ownership of a home that was previously held in joint tenancy by Sau Har Mak and her two daughters.

Sau Har Mak died in August 2012, and full title of the home passed to her daughters on her death.

Two of Sau Har Mak’s sons sought  a declaration that their sisters hold the property on resulting trust for Sau Har Mak’s estate and do not have beneficial ownership of the home.

[92]        The central issue before the Court is whether a joint tenancy was created between Sally Mak, Mary Mak and Sau Har Mak when the Mahon property was purchased on June 17, 1993.

Specifically, the Court must determine whether the transfer was gratuitous, and therefore the presumption of a resulting trust applies, or whether beneficial ownership is governed by the presumption of indefeasible title in favour of Sally and Mary Mak.

 

VALUE

[119]     In Virk v. Pannu, 2006 BCSC 921, aff’d Bajwa v. Pannu, 2007 BCCA 260, Baljit Kaur Bajwa and her mother, Balwant Kaur Virk, together with the defendant, Rupinder Pannu, purchased a property as joint tenants for $249,000.  Ms. Bajwa and Ms. Virk as plaintiffs had provided the down payment of $35,000, and the balance of the purchase price came from a mortgage with their financial institution.  Mr. Pannu did not contribute any money towards the purchase, but became a covenanter on the mortgage.  He assisted in searching for the property and engaging a realtor.  The court held that the onus was on the plaintiffs seeking to displace the presumption of indefeasible title created by s. 23(2) of the Land Title Act and there was no cogent evidence doing so.  The court held that the presumption of resulting trust did not apply because Mr. Pannu had given “value” for his interest, and he was not unjustly enriched if he retained a one-third interest in the property.

[120]     As noted by the Court of Appeal in Bajwa, “[w]hether value is given is a question of fact to be determined on the evidence in each case”: para. 16.  As the facts in Bajwa indicate, value does not necessarily involve the contribution of money: para 16.  The court stated:

[16]      The Virks rely on Professor Waters’ text, Law of Trusts in Canada, 2d. ed. (Toronto: Carswell, 1984) at 299. The passage on that page of the text says that for a resulting trust to be inferred the person said to be a trustee must have given no value for his legal interest. It follows that if it is found as a fact that the person whose equitable interest is challenged did give value, there can be no resulting trust. Whether value was given is a question of fact to be determined on the evidence in each case. …

See also Chuang, paras. 10 and 11:

[10]      Whether a transfer is found to be gratuitous, and therefore whether the presumption of resulting trust arises, is a question of fact, and even the exchange of money is not determinative (Modonese) [Modonese v. Delac Estate, 2011 BCSC 82]. In this case, although the Claimant did pay some money towards the purchase of the Property, the registration as a 50% owner, as opposed to the 15% she contributed, was based on the parties’ intention to have a life together. There may be cases where unequal contributions leading to equal ownership will not be gratuitous (if for example the deal could not be completed without the lesser contributing party’s contacts), but those would seem to be different from the present case. In Miller v. Walker, 2006 ABQB 424 [Miller], the court found that unequal contributions to a property that was immediately registered as a joint tenancy raised the presumption of resulting trust (although the presumption was rebutted in that case). Further, the Claimant herself argues (and not merely in the alternative) that the presumption of advancement applies, and since the presumption of advancement only arises on gratuitous transfers, her position would seem to implicitly concede that the transfer was gratuitous.

[11]      The presumption of resulting trust can itself be rebutted by the presumption of advancement, and either presumption can be defeated by evidence of a contrary intention on the part of the donor.

See also Klein v. Wolbeck, 2016 ABQB 28 at para. 176:

Put aside the difficulty that Mr Klein did not transfer the Lands to Ms Wolbeck since the transferors were Mr Klein’s parents. The doctrine of resulting trust has no purchase because Ms Wolbeck did provide value. She was also a mortgagor. Her acquisition of her joint interest was not a gratuitous transaction: Lutz v Lutz, 2013 ABCA 159 at para 12. Mr Klein did not put up the entire down payment himself and gratuitously cause the certificate of title to reflect a joint interest for Ms Wolbeck.

[121]     The courts have occasionally found that unequal contributions leading to equal ownership may be considered a gratuitous transfer: Chuang at paras. 10 and 11.

Abuse of Process in BC Estate Litigation

Special Costs Not to Include Pre Litigation Conduct

Many estate litigation claims and counterclaims contain far too much emotional distortion so as to become frivolous, vexatious, unnecessary and otherwise an abuse of process that upon application, may lead to those portions of the claim found to be such to be stricken or dismissed entirely.

In Wotherspoon v Steele 2016 BCSC 818, the plaintiffs believed that all matters between themselves and their defendant brother had been resolved at mediation.

The defendant subsequently  balked on carrying through with the settlement and filed a specious counterclaim that the court struck completely on the basis that it was without legal foundation and an abuse of process.

28      The test for striking a pleading under R. 9-5(1)(b), on the basis that it is unnecessary, scandalous, frivolous or vexatious, was recently summarized in Willow v. Chong, 2013 BCSC 1083 (B.C. S.C.), where Madam Justice Fisher said:

[20] Under Rule 9-5(1)(b), a pleading is unnecessary or vexatious if it does not go to establishing the plaintiff’s cause of action, if it does not advance any claim known in law, where it is obvious that an action cannot succeed, or where it would serve no useful purpose and would be a waste of the court’s time and public resources: Citizens for Foreign Aid Reform Inc. v Canadian Jewish Congress, [1999] BCJ No. 2160 (SC); Skender v Farley, 2007 BCCA 629

29      The abuse of process standard under R. 9-5(1)(d) allows the court to prevent a claim from proceeding where to do so would violate principles of judicial economy, consistency, finality and the integrity of the administration of justice: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 (S.C.C.) at paras. 35-37.

Interpretation of Court Orders

Interpretation of Court Orders

Interpretation of Court Orders occasionally arises in estate litigation where poorly drafted previous orders may require subsequent interpretation. Basically it is the same basic law as interpreting a contract.

In Athwal v. Black Top Cabs Ltd., 2012 BCCA 107 (B.C. C.A.) [ the Court of Appeal set out the following principles of contractual interpretation

[42] The contractual intent of parties to a written contract is objectively determined by construing the plain and ordinary meaning of the words of the contract in the context of the contract as a whole and the surrounding circumstances (or factual matrix) that existed at the time the contract was made, unless to do so would result in an absurdity. Where the language of a contract is not ambiguous (that is, when viewed objectively it raises only one reasonable interpretation), the words of the written contract are presumed to reflect the parties’ intention. An interpretation that renders one or more of the contract’s provisions ineffective will be rejected.

[43] Extrinsic evidence to explain the meaning of an unambiguous contractual provision is not admissible. Evidence of a party’s subjective intention in executing the contract, or of their understanding of the meaning of the words used in the contract, is not admissible to vary, modify, add to or contradict the express words of the written contract. This is particularly so where a contract contains an “entire agreement” clause.

When interpreting a consent order, a court should try and make sense of and give effect to each of the provisions of the agreement using general contractual interpretation principles: Pacific Destination Properties Inc. v. Granville West Capital Corp., 2009 BCSC 982, at para. 59

A court must assume that the parties intended to stipulate for what was fair and reasonable, having regard to their mutual interests and to the main objects of the contract: in Arrow Transfer Co. Ltd. v. Fleetwood Logging Co. Ltd., 1961 Carswell  BC 253, 30 D.L.R. (2d) 631, at p. 6

In Mercantile Bank of Canada v. Sigurdson, [1978] 3 W.W.R. 523  the court quoted the following from Corbin on Contracts (1964), vol. 3, p. 210, para. 552, in its explanation of the rule against absurdity as it applies to the construction of contracts:

It is quite possible for two parties to make a valid contract that seems unfair or unreasonable or even absurd to other people. If, however, the words of agreement can be interpreted so that the contract will be fair and reasonable, the court will prefer that interpretation (emphasis added).

A party cannot hide behind a restrictive and literal interpretation to circumvent a order and make a mockery out of the administration of justice: S.B.G. v. A.D.I., 2013 BCSC 1540, at para. 11

 

 

Independent Legal Advice and Undue Influence

Independent Legal Advice and Undue Influence

Under normal circumstances independent legal advice, if properly given should be sufficient to rebut any presumption of undue influence, but that was not the case in Cowper-Smith v Morgan 2016 BCCA 200 where the Court of Appeal upheld the trial judge in finding inter alia , that the independent legal advice provided was inadequate to rebut the presumption of undue influence.

The case should stand as a wake-up call to any practitioners dispensing independent legal advice that it must be thorough and relevant to the assessment of the question or issue before them, and to take the time and charge accordingly.

Failing to do so may expose professional liability by disappointed beneficiaries.

The Appeal Court stated as follows re the law of Independent Legal Advice:

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

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

[The “Coish” factors; citations omitted.]

52      The respondents also rely on jurisprudence that identifies two branches for assessing the adequacy of the independent legal advice given where an allegation of undue influence is raised: (i) advice as to understanding and voluntariness (attendance on execution); and (ii) advice as to the merits of a transaction (the wisdom of entering into the transaction). The first branch of the test requires that the independent advisor is satisfied the donor understands the transaction and enters into it freely and voluntarily. The second branch of the test requires something more than the independent advisor being satisfied that the donor understands the effect of the transaction and wishes to make the gift; it also requires that the independent advisor is satisfied that “the gift is one that is right and proper in all the circumstances of the case, and if he cannot so satisfy himself he should advise his client not to proceed.” See Cope v. Hill, 2005 ABQB 625 (Alta. Q.B.), aff’d 2007 ABCA 32 (Alta. C.A.) at paras. 210-212, citing Gold v. Rosenberg, [1997] 3 S.C.R. 767 (S.C.C.), Corbeil v. Bebris (1993), 141 A.R. 215 (Alta. C.A.), and Halsbury’s Laws of England, vol 18, 4th ed. at 157, para. 343.

53      Assessing the adequacy of the legal advice given is a fact-specific inquiry. It does not reduce to any precise test. In some circumstances, it may require advice on only the nature and consequences of the transaction. However, where concerns or allegations of undue influence arise, generally there will be a need to give “informed advice” on the merits of the transaction. See Cope at paras. 213-215, citing Brosseau v. Brosseau, 1989 ABCA 241 (Alta. C.A.) at paras. 22-23, Coomber v. Coomber, [1911] 1 Ch. [723] and Wright v. Carter, [1903] 1 Ch. 27 (Eng. C.A.) at 57-58.

Did the judge err in finding the presumption of undue influence and the presumption of resulting trust had not been rebutted?

54      It is common ground that findings with respect to undue influence and the intention of a party to gratuitously transfer property to another are subject to a deferential standard of review. See Boda Estate v. Boda, 2014 BCCA 354 (B.C. C.A.) at para. 72. An appellate court may not interfere with the findings and inferences of fact by a trial judge absent palpable and overriding error (see Housen v. Nikolaisen, 2002 SCC 33 (S.C.C.) at para. 10). Palpable error is one that is readily or plainly seen (Housen at para. 5); overriding error is one that must have or may have altered the result (see Van Mol (Guardian ad litem of) v. Ashmore, 1999 BCCA 6 (B.C. C.A.) at paras. 11-12).

55      The application of a legal standard to findings or inferences of fact raises a question of mixed fact and law. Where an alleged error of mixed fact and law can be attributed to the application of the wrong legal standard, element of the legal test, or error in principle, the error may be characterized as an error of law and is subject to the standard of correctness. However, if the legal principle is not readily extricable from the findings or inferences of fact, then the judge’s conclusions should not be overturned absent palpable and overriding error (Housen at paras. 26-36).

56      All three standards of review are engaged in this appeal. The appellant contends the judge erred in law by adopting a flawed approach in her assessment of the evidence of Ms. Iverson and Mr. Easdon, in order to determine whether the presumption of undue influence was rebutted. The appellant further alleges that in applying the legal test for rebutting the presumption of undue influence, the judge made a palpable and overriding factual error based on an erroneous inference that Elizabeth did not intend to execute the June 22, 2001 documents because she did not understand the nature and consequences of those documents. This error, the appellant submits, was material to her conclusion that the presumption of undue influence was not rebutted.