Encroachment of a Spousal Trust

Encroachment of a Spousal Trust

Toigo Estate 2018 BCSC 936 reviewed the law of the court’s jurisdiction to grant an order approving a resolution of the trustees discretionary power to encroach upon the capital of a spousal trust created by the deceased in favor of his wife.

Pursuant to the spousal trust the spouse was to receive the net income from the estate during her lifetime, and the trustees having uncontrolled discretion to encroach on the capital of the residue of the estate in favor of the spouse during her lifetime.

The amount of the estate was substantial and the trustee approved a resolution allowing the spouse to encroach upon the capital of the estate in the amount of 50% so as to allow her to distribute the estate in accordance with her own estate planning.

The court reviewed the law and allowed the encroachment as recommended by the trustee.

Given the magnitude of the estate and the proposed encroachment, the trustee sought approval of the court prior to proceeding with the encroachment.

S. 86 (1) the Trustee act, RSBC governs the courts exercise of powers in relation to a trust. That section permits an executor or administrator to seek the following by way of petition:

“A trustee, executor or administrator may, without commencing any other proceeding, apply by petition to the court or by summons on a written statement to a Supreme Court judge in chambers, for any opinion, advice or direction of the court on a question respecting the management or administration of the trust property or the assets of the will maker or intestate.”

The court also retains inherent jurisdiction to supervise trust despite statutory enactments on the matter.

In Public Guardian and Trustee v Colwell 2004 BCSC 1622 qt para. 32 . The court stated:

“Donovan Waters Law of Trusts in Canada notes that courts have retained their inherent jurisdiction to supervise trusts – none of this legislation is taken away the inherent powers, so that the courts can fall back upon them should the statutory powers prove inadequate.

The key principle governing the courts inherent jurisdiction is the welfare of the beneficiaries of the trust.

In Mansbridge and Roulston 2004 BCSC 1605 , the court discussed section 86 of the Trustee act, and at paragraph 51 stated “ on an application for directions under section 86 of the Trustee act, the court should not exercise the trustee’s powers, but rather confine itself to advice on any legal issues that arise in connection with the trustees obligations. The principle is enunciated In re Fulford (1913) 29 )LR 375 at 382.

In Tomlinson Estate 2016 BCSC 1223 at paragraph 53-54, the court quoted Waters Law of Trusts in Canada, stating” the issue of management or administration as a limitation upon the trust the act power of the court to give his advice, opinion, or direction as being more particularly raised in connection with motions which turned out to involved a conflict as the ownership of the assets. The courts refused to give such assistance when there is essentially a conflict between interested parties, and this is not merely because the court has not necessary evidence before it, because it is felt that a fight whether or not it is patent, is not a matter of management or administration”

The court relied upon the inherent jurisdiction of the court to permit the substantial encroachment sought by the petitioner, as the encroachment would affect the residual beneficiaries being the grandchildren of the deceased in and to the substantial estate.

In Courage estate 1975 10 NFLD & PEIR 511 the court stated that the law is long settled that were trustees are given the right to encroach on capital, coupled with broad discretionary powers, the courts will not interfere with the exercise of these powers unless they are exercised unfairly and there are no mala fides with regard to their exercise.

“It is the noted that in this case, the trustees are given power to encroach on the capital of the whole residuary estate, not just a portion thereof, and I can find nothing in the will to support the contention that the amounts to be divided amongst the children after the way staff, are to be placed in any special category during her lifetime.”

Essentially, the court is in effect making a declaration that the trustees proposed exercise of the power is lawful, in other words, that the proposed exercises within the proper ambit of the power, but the trustees are acting honestly, as in reaching their decision.

The trustees have taken into account all relevant matters, have taken into account no irrelevant matters, and have not reached a decision that no reasonable body of trustees could have reached. The effect is to protect the trustees from any challenge to the decision by persons interested in the trust, and to make clear that the trustees are entitled to indemnity from the trust assets in respect of the costs or other financial consequences of their decision. It is immaterial that the court had it been exercising a discretion of its own, would’ve exercised it in a way different from that proposed by the trustees.
The court, however, should exercise caution, and not act as a rubberstamp or take a lax approach.

The court found that all of the above-noted legal considerations are consistent with section 86 (1) of the Trustee act

The court found that the trustee’s decision was made in good faith, that he did not stand to gain from the encroachment in any way, and the proposed division, that is equal shares between each of the deceased children and equal shares between the grandchildren, is a desirable and proper encroachment by the spouse of the deceased in order to more equitably distribute the estate amongst the grandchildren of the deceased.

Adjournment of Trials

Adjournment of Trials | Disinherited Vancouver Litigation

The adjournment of a trial is a discretionary matter to the court, and the discretion must be exercised in accordance with the interests of justice, which in turn require a balancing of the interests of the parties.

The facts of the application for an adjournment are often very important to the application of the legal principles governing same.

One aspect of the overall interests of justice is bringing matters to an expeditious conclusion. In the BC Court of Appeal decision Sidoroff v Joe 76 BCLR )2d) 82 . The court stated at paragraph 10:

The balancing of the interests of justice is a difficult and delicate matter that requires a careful consideration of all of the elements of the case, and certainly one of them is the expeditious and speedy bringing to a conclusion of these matters. So there is no error in principle in stating that as an aspect of the overall interests of justice.

One of the leading case in British Columbia is Navarro v Doig River First Nation 2015 BCSC 2173, where the court adjourned the trial and reviewed the law relating to same.

The court may order adjournment of a trial by application pursuant to rule 12-1(9) (a) or at a trial management conference, according to Rule 12-2 (9) (1) .

An adjournment under Rule 12-2 cannot be based upon affidavits, but can be based upon the trial briefs and statements of counsel, even if one party objects.

If a trial management judge considers that further evidence by way of affidavit is required, the matter be referred to a chambers judge for application. Reasons for an adjournment at a a trial management conference include that the matter cannot be completed in the time set for trial or that there are outstanding pretrial matters that show that the matter is not ready for trial.

A judge has broad discretion when an adjournment is sought and has wide powers in relation to the order that is made. The discretion must of course be exercised judicially in accordance with appropriate legal principles. The exercise of discretion is a delicate and difficult matter that addresses the interests of justice might balancing the interests of the plaintiff and of the defendant.

There are numerous factors to be considered on an adjournment application. The paramount consideration is the interests of justice and ensuring that there will remain a fair trial on the merits of the action- Graham v Vandersloot 2012 ONCA 60.

Because the overall interests of justice must prevail at the end of the day, courts are generous, rather than overly strict in granting adjournments, particularly where granting the request will promote a decision on the merits. The natural frustration of judicial officials in opposing parties over delays in processing civil cases must give way to the interests of justice, which favors the claimant having his day in court and a fair chance to make out his case.

Factors or considerations to adjournment trial in no particular order of priority are:

• the expeditious and speedy resolution of matters on their merits;
• the reasonableness of the request;
• the timeliness of the request;
• the right to a fair trial
• the proper administration of justice;
• the history of the matter, including deliberate delay or misuse of the court process;
• the fact of a self represented litigant

Securing a fair trial on the merits of the action is the ultimate goal. This requires consideration of the nature of the claim. If the claim is novel, then the prospect for success is one factor to consider. However, the prospect for substantial succession not be the sole basis for refusal of an adjournment.

Also, for consideration is the question of whether there has been a previous adjournment, and if so, the reasons for that, prior adjournment. If the circumstances of not changed, subsequent application will likely not be successful.

Timeliness of the request is a factor. An application made it the opening of trial on the grounds that a party cannot be present will be carefully scrutinized as to the effect upon other parties, whether the parties evidence is crucial, and what other recourse was available. If the trial is already underway in adjournment may be indefinite, the court will want to consider whether to certain that granting an adjournment would resolve the issue that was the cause of the adjournment request.

The explanation for the need of an adjournment is an important consideration. It is been said that simple neglect to get property ready for hearing, while irksome for the other party, will still usually lead to an adjournment on the 30 that the prejudice to the person denied the adjournment will be greater than prejudice to the person who’s forced to accept an adjournment.

Prejudice to the parties. If an adjournment is granted or not granted must be considered. Any prejudice to be suffered by either side must be weighed and balanced. However, it is non-compensable prejudice that is pivotable. If the problems raised by an explanation of prejudice can be met by conditions of an adjournment, then, upon consideration of all of the circumstances, and adjournment may be granted.

Overall delay in the history of proceedings may be a factor. Prolonged delay due to tactical considerations may be inexcusable and resulting injustice to the other side because a fair trial is no longer possible. However, a delay forced on a party by negligence listers, impecuniousity, or illness is distinguished from tactical delay. The issue is whether the delay is excusable in light of the reason for it, and other circumstances.

The fact that a litigant’s self representative is relevant, but does not entitle him to a pass. The object is to facilitate as far as reasonable the ability of a self represented litigant to fairly present his case on the relevant issues.

The court may impose terms and conditions to an adjournment under rule 13 (1) (19) , however, the terms must be just and all of the circumstances. A party seeking certain terms and condition should generally prove that he or she will be prejudiced in some way by the order.

Converting a Petition to an Action

Converting a Petition to an Action

Certain claims such as proving a will in solemn form must be brought by petition, and if the matter is to proceed, the petition must be converted to an action by way of a court order.

In Kerfoot v Richter 2018 BCCA 238 the executor of an estate brought a petition to prove the will of the deceased in solemn form. The beneficiaries in the will were the deceased’s three adult children, one of whom received only a small portion of the estate. The appellant disputed the validity of the will and applied to have the proceedings converted from a petition to an action. The appellant contended that the deceased lacked testamentary capacity of the will was procured as a result of undue influence by her two siblings, the respondents.

Her application was dismissed by the chambers judge but the Court of Appeal allowed the appeal and ordered that the petition be converted to an action.

The appeal court stated that the test to be applied on an application to convert a proceeding brought by petition to an action is whether on relevant facts and applicable law, there is a bona fide triable issue. The materials before the chambers judge were sufficient to establish a triable issue.

In making the order to convert the petition into an action, the trial judge will continue to have full discretion to give directions concerning the out procedure to be followed in accordance with Supreme Court rules 22 –1-(7) (d) and 25-14 (8).

Rule 25-14(8) provides a similar discretion to the court to give directions about the procedure in estate matters, and provides:

8. Without limiting any other power of the court under this or any other part of the Supreme Court civil rules, the court may, on its own motion or on application, give directions concerning the procedure to be followed in any matter under this part, and without limiting this, they give directions respecting any of the following:

a) The issues to be decided;
b) who the parties will be, including directions for the addition or substitution of a party
c) how evidence may or must be presented;
d) summary disposition of any or all issues in the matter
e) the trial or any or all of the issues in the matter
f) pleadings;
g) examinations for discovery and discovery of documents, service or delivery of a notice, process, order or document on any person
h) dispensing with service or delivery
i) representation of any person or interest.

The court applied the test in Robertson v. Dhillon 2015 BCCA 469, where the appeal court confirmed that the test is akin to the test to be applied for summary judgment, that is whether on the relevant facts and applicable law, there is a bona fide triable issue.

Where there are disputed facts in the pleadings, the party who seeks either summary judgment or dismissal bears the evidentiary burden of showing that there is no genuine issue to be tried, and that is proven through evidence. McLean v. Law Society British Columbia 2016 BC CA 368, at paragraphs 36 – 39.

In considering evidence, the court must not way it, but is limited to assessing whether it establishes a triable issue. The court referred to Skye Bridge investments LTD v. Metro motors LTD 2006 BC CA 500:12. If sufficient material facts of being pleaded to support every element of a cause of action, but one or more of those pleated material facts are contested, then the judge ruling on a rule 18 (6)  application is not to weigh the evidence to determine the issue of fact for the purpose of the application. The judges function is limited to a determination as to whether a bona fide triable issue arises on the material before the court in the context of the applicable law. If a judge ruling on a rule 18 (6) application must assess and weigh the evidence to arrive at a summary judgment, the plane and obvious are beyond doubt test is not be met.

While a judge is not to weigh evidence, he or she may draw inferences that are strongly supported by undisputed facts. Importantly, a party seeking to establish there is a triable issue cannot rely on mere allegations, but must establish the existence of material issues , Canada v Lameman 2008 SCC 14 at paragraph 11. It is this latter requirement that precludes a matter from being referred to trial on the basis of mere assertions.

Witness Immunity and Republication of Judgements

Witness Immunity and Republication of Judgements

I have on occasion received letters from parties involved in litigation that I have blogged about demanding that I remove the blog because of involving their name, however the law is clear that republication of a judgment without amendment or commentary that remains in force does not afford a party aggrieved by the judgment to a civil claim.

The BC Court of Appeal recently dealt with the immunity of a witness in respect of evidence given in court, and the issue of republication of a judgment in Lefebvre v Durakovic Estate 2018 BCCA 201.

The court held that a witness enjoys absolute immunity in respect of evidence given in court, and that republication without abridgement, alteration or commentary of a judgment that remains in force does not afford a party aggrieved by the judgment to a civil claim.

The plaintiff had commenced a broad ranging action against defendant alleging various forms of abuse, defamation, breach of trust, breach of contract, extortion, intimidation, negligence and so forth, and the plaintiff appealed the judge’s decision to strike out portions of the action on of the basis of an abuse of process by giving false testimony before the registrar.

The court initially discussed the issue of witness immunity and quoted the decision McDaniel v. McDaniel 2008 BCSC 653, varied, at 2009 BCCA 53 , which held that witnesses are absolutely immune from civil liability for anything that they say in court, even if what they said is false, and even if they harboured malicious motives for giving evidence. The immunity is expensive. It applies to evidence given before quasi-judicial administrative tribunals as well as courts. It also applies to out of court statements made in the course of preparing to give testimony, and even to discussions with counsel for the purpose of determining whether or not the witness has relevant evidence to gift, or litigation that is in contemplations, statements made by a potential witness on the subject matter of the litigation will fall within this immunity.

The immunity is essential to the administration of justice in order to foster an atmosphere in which witnesses and counselor unfettered in their preparations for judicial proceedings, neither should face the possibility of a civil suit over there discussions. The needy, however, does have limits. It is not apply to everything a lawyer does in his or her professional capacity, nor does it apply simply because matters discussed between the parties might potentially at some point come before judicial or quasijudicial body. The immunity is directed at facilitating the gathering and preparation of evidence for litigation. That is not the context in which a statement is made the immunity will not apply.

The lawyer had republished the judgment on his website and the plaintiff took issue with this and the court held that the plaintiff had no cause of action in respect of the publication of the chambers judge’s reasons for judgment.

The court held that the accurate republication of a decision of the court is subject to at least qualified privilege. The materials provided by counsel in the court application included a reference to the judgment of McDougall v. Knight (1890) 25 QBD 1 (C.A) which set out the rationale for the privilege:

The judgment of a judge of the land is in itself an act of such public and distinct character as to make it in the interest of the Commonwealth that they should know it in toto, and provided it is either given verbatim correctly, or correctly summarize, it seems to me that the public policy requires that to be the law, I have no hesitation in saying that I believe that to be the lot the present day. It appears to me that it would be to put an end you fetter on the press to hold that the publication of the judgment is not privileged. Unless the judgment fairly summarize the evidence. I cannot doubt that the judgments of courts must be presumed to be fair, accurate inadequate and to make the person who report such a judgment prove that it is so, when to put on him a burden inconsistent with the interests of the Commonwealth.

In 1890, the main way of publishing judgments would’ve been through the press, and the court held that the same rationale is available today in respect to publication on the Internet.

The appeal court held that the judge was correct in finding that the plaintiff could have no claim in respect of the republication. The publication complained of in parts of the claim that were struck was of a judgment that continued in force. The judgment was not the subject of any publication ban. In publishing the judgment. The defendant did not abridge, alter, nor did he comment on it. It is not alleged in the context in which the judgment was published distorted the findings of the court

Absent special circumstances such as a publication ban, the publication of a judgment is in the public interest. A judge and is unlike other court documents, such as pleadings, arguments are affidavits. A judgment as a public declaration of an independent, impartial body vested with the authority to make decisions.

The mere fact that a person feels aggrieved by the judgment of a court does not give them a right to restrict its publication order claim, damage in respect of it. Merely alleging that a person who republishes a judgment is motivated by malice does not turn the completely lawful dissemination of a public decision of the court into an actionable tort.

The court did leave open the possibility that republication of a judgment could give rise to copyright issues or privacy legislation as same were not involved in this case.

Impeaching Witness Credibility

Impeaching Witness Credibility

The Supreme Court of Canada summarized the law relating to the impeachment of witness credibility in the rule in Browne v. Dunn in R.v Lyttle 2004 SCC 5 at paragraph 64:

“The rule in Browne v Dunn requires counsel to give notice to those witnesses whom the cross examiner intends later to impeach. The rationale for the rule is that the cross examiner should give an opportunity of making any explanation, which is open to the witness, not only as a rule of professional practice in the conduct of the case, but that is essential to fair play and fair dealing with witnesses.”

The rule although designed to provide fairness to witnesses in the parties, is not fixed, and the extent of its application is within the discretion of the trial judge, after taking into account all of the circumstances of the case.

In R.v Quansah 2015 ONCA 237 at paragraph 77 the court summarized the fairness considerations animating the confrontation principle:

1. Fairness to the witness whose credibility is attacked: the witnesses alerted that the cross examiner intends to impeach his or her evidence, and given a chance to explain why the contradictory evidence, or any inferences to be drawn from it, should not be accepted;

2. Fairness to the party whose witness is impeached- the party calling the witness has notice of the precise aspect of that witnesses testimony that are being contested, so that the party can decide whether or what confirmatory evidence to call; and

3. Fairness to the trier of fact: without the rule, the trier of fact would be deprived of information that might show the credibility impeachment to be unfounded, and this compromise the accuracy of the verdict.

The purpose of the rule in Browne v Dunn is to protect trial fairness. (– R. Podolski 2018 BCCA 96 at paragraph 145)

While it is often referred to as a rule, it’s legal application will depend on the circumstances of the case. The rule is not ossified, and flexible rule of universal and unremitting application that condemns a cross examiner who defaults to an evidentiary abyss.

The jurisprudence reflects that were trial fairness is unaffected by lack of cross examination, a cross examiner’s failure to confront a witness will not violate the rule in Browne v. Dunn.

This may be a case where it is clear or apparent, on considering all of the circumstances, which may include the pleadings and questions put to the witness an examination for discovery, that the witness or opposite party had clear, ample and effective notice of the cross examiners position or theory of the case. Therefore, where the other party, the witness, and the court are not caught by surprise because they are aware of the central issues of the litigation, the rule in Browne v. Dunn is not engaged.

Where the rule is engaged, a trial judge enjoys broad discretion in determining the appropriate remedy, and there is no fixed consequence for an infringement of the rule.

Factors to consider:

In Quansah at paragraph 117, the court listed the following factors that may inform the appropriate remedy:

  • The seriousness of the breach;
  • the context of the breach;
  • the timing of the objection
  • the position of the offending party;
  • any request to permit recall of a witness
  • the availability of the impugned witness for recall;
  • the adequacy of an instruction to explain the relevance of failure to cross examine.

A trial judge may diminish the weight of the contradictory evidence. Other remedies include recalling the witness, and in the jury context, giving a specific instruction to the jury about the failure to comply with the rule as a factor to consider in assessing credibility.

Revoking a Grant of Probate

Revoking a Grant of Probate

Debsbiens v Smith Estate 2010 BCCA 392 discusses the concept of revoking a grant of probate, which typically involves one of two attacks, namely finding a defect in the process leading up to the grant of probate, such as failure to serve a beneficiary with notice, or submitting false, or fraudulent information to the court in support of the application.

One problem that can be encountered in such an application is that if the client cooperated with the initial application, they may be estopped from trying to attack the grant. – Hayes v Montreal Trust Company 1977 BCJ 1317.

A typical case where a grant of probate has been set aside for failure to provide notice to potential beneficiary was noted in Shaw v. Reinhart 2004 BCSC 588 were a plaintiff in a wills variation action alleged that she had been the deceased’s common-law spouse of the date of his death. The action was brought some 10 months after the grant of probate that was issued to the deceased sons. They had not provided the plaintiff was notice under the Estate Administration Act, as they took the position that the plaintiff was not the deceased common-law spouse of the date of death. The executors brought an application to strike the claim as having been brought outside the limitation. However, this application was rejected and the court instead granted the plaintiff leave to move to have the grant of probate revoked.

Similarly, in Somodi v Szabados 2007 BCSC 857 the plaintiff was found to be a common-law spouse of the deceased, but the executor and sole beneficiary under the will was the deceased son and did not acknowledge the plaintiff as the deceased common-law spouse, instead contending that the relationship was simply one of landlord and tenant. He did not provide the plaintiff was notice of his application for probate. The plaintiff commenced an action under the wills variation act more than two years after the grant of probate. The court held in favor of the plaintiff stating that it is the plaintiff’s position that where the status of a common-law spouse is at issue, notice under section 112 of the Estate Administration act must be given, and where it is not, the defendant is estopped from relying on the limitation defence.

As in the Shaw decision, the court concluded that where the status of a common-law spouse is at issue, notice under the estate administration act must be given and failure to do so, precludes reliance on the limitation period.

Grounds for revoking probate:

Courts have jurisdiction to revoke grants of probate where evidence discloses that the grant ought not to have been issued. There are numerous grounds which probate can be revoked such as:

  • where subsequent wills of been discovered;
  • it is been found that the will is otherwise invalid;
  • where it has been determined that the testator was not in fact dead;
  • where the executor was under a legal disability, such as being a minor or mentally infirmed,
  • and where probate has been obtained by fraud.

In short, where it is shown that a condition precedent to the grant of probate was not fulfilled, the court has jurisdiction to revoke the grant.

Ravenscroft v Ravenscroft 1670 1 Lev. 305, stated that the jurisdiction of the probate court to revote a grant of probate is quite broad, though it is be exercised sparingly. The court possesses and when it becomes necessary exercises the power of revoking or annulling for a just cause any grant which it has made, and in doing so, it only resumes into its own hands the powers which it parted with on false or inaccurate suggestions.

Can You Prove Mental Incapacity for a Will?

Can You Prove Mental Incapacity for a Will?

Nykoryak v Anderson 2017 BCSC 1800 is a decision that in many respects is indicative of how difficult it is to succeed in having a will set aside on the basis of lack of mental capacity.

The court found that the testator who is aged 93, when he executed his last will had sufficient mental capacity to do so, despite some underlying cognitive issues. The evidence of his doctor and the lawyer who drafted the will was accepted by the court in proving that he had testamentary capacity.

The court held that the law is clear that the issue to be decided is not whether the deceased suffered from cognitive impairment when the will was executed, but rather, whether, despite the cognitive impairment, the deceased was able to:

1) Understand the nature and effect of a will understand the extent of what was being bequeathed under the will;

2) remember the persons who might be expected to benefit under the will

3) understand the nature of the claims that may be made by a person who is excluded by the will;

4) understand the extent of what was being bequeathed under the will

The lawyer who took instructions for the will had filed an affidavit at a summary trial, hearing, setting out his discussions with the testator. It was clear that the testator could not of had the discussion he had with the lawyer, if he did not meet the foregoing criteria.

In addition, the testator’s long time physician had provided an opinion in the form of an expert report that although the testator had some underlying cognitive issues at the time he executed his will, including some short-term memory loss and occasional confusion, he was nevertheless probably aware of what he was doing at the time.

 

The Law

The test for testamentary capacity was commented upon in Bull Estate v. Bull 2015 BCSC 136 at paragraphs 114 – 117:

114- the test for testamentary capacity is not overly onerous. Sufficient mental capacity to make a will may exist, despite the presence of cognitive deterioration, and the testator may have sufficient mental capacity even if his or her ability to manage other aspects of his/ her affairs is impaired.

115- simply having an imperfect or impaired memory does not in itself absent testamentary capacity unless it is so great as to leave no disposing memory. A disposing mind and memory is on able to comprehend of his own initiative and volition. The essential elements of the will making, property, objects, just claims to consideration, revoking of existing dispositions and the like. Moore v Drummond 2012 BCSC 1702 at 158

116- the testator should have an appreciation of the claims of the persons who are natural objects of his/her estate and the extent of his or her property of which he/ she is disposing Allart Estate v Allart 2014 BCSC 211 at para 30

117- Because testamentary capacity is a legal question, and not a medical question, a medical opinion, although valuable and relevant is not determinative of testamentary capacity Laszlo v. Lawton BCSC 305 at para 190

In the Ontario decision Birtzu v. McCron 2017 ONSC 1420 at para 40 the court stated:

40- the applicant notes that testamentary capacity is not the same thing is the capacity to manage one’s property and the capacity to confer a power of attorney. I agree. This does not mean the test is higher for testamentary capacity, rather, it is different. Should this point need illustration, none better can be found, then in the decision Palahnul v Palahahnuk Estate 2006 OJ 5304 were a will made by an 80-year-old testator had been found incapable of caring for her own person or her own property. The testator was cared for by a niece, under an agreement with the public Guardian and trustee, the court found:

Testator requirements for making a valid will:

The requirements for a testator to have a sound disposing mind in order to make a valid will include the following:

  • The testator must understand the nature and effect of a will
  • The testator must recollect the nature and extent of her property
  • The testator must understand the extent of what she is giving under the will
  • The testator must remember the person she might be expected to benefit under her will
  • The testator were applicable must understand the nature of the claims that may be made by a person she is excluding from the will.

Establishing a lack of testamentary capacity

Isolated memory or other cognitive deficits do not establish lack of testamentary capacity.

Such things as imperfect memory, inability to recollect names and even extreme imbecility, do not necessarily deprive a person of testamentary capacity. The real question is whether the testator’s mind and memory are sufficiently sound to enable him or her to appreciate the nature of the property was bequeathing, the manner of distributed and the objects of his or her bounty.

Care must be taken in reading the physicians clinical notes are in interpreting their diagnoses.

Diagnosing someone is having dementia does not necessarily mean the person is demented. Diagnosing someone is having Alzheimer’s dissolving the person lacks capacity, though it may foretell a loss of capacity. If the disease progresses, as expected. Delete from an initial diagnosis to a conclusion of legal incapacity is unwarranted and very dangerous reasoning.

Proof In Solemn Form and Attestation Clauses

Proof In Solemn Form and Attestation Clauses

Bhall Estate 2017 BCSC 1867 involved a contested application to prove a will in solemn form where the court inter alia relied upon the presence of the attestation clause to be of some significance.

The will was drafted by a lawyer who kept very few notes and could not recollect who interpreted his instructions as the deceased spoke and understood no English.

Despite these shortcomings, the court found the will to be valid and granted probate.

Attestation Clauses

As noted in Allart Estate v. Allart, 2014 BCSC 2211, at paragraphs 58 and 59, the presence of an attestation clause is of significance. There the court said this:

[58] More significantly, in this case, the Original Will has an attestation clause, from which it can be presumed that the will was duly executed and witnessed by persons who knew the requirements of the Wills Act. The court will not assume that a person has signed his or her name to the attestation knowing it to be untrue: Beaudoin at para. 11; Yen Estate at paras. 14-16.

[59] Given the presence of the attestation clause with the names of the two witnesses below it attesting to the signature of the Decease [sic], as well as the apparent compliance with the statutory requirements for a will, I conclude that the doctrine of omnia presumuntur rite esse acta applies. I must presume that the will was duly executed by the Deceased and witnessed by individuals who knew the requirements of the Act unless evidence to the contrary is proven.

Is a Will Valid By A Grant of Probate?

Is a Will Valid By A Grant of Probate?

Seepa v Seepa 2017 ONSC 5368 revisited the question of whether a will is recognized as valid by a grant of probate.

The Court followed Neuberger v. York, 2016 ONCA 191:

a. The court’s jurisdiction in probate is inquisitorial because the court’s decision does more than just bind the parties to the dispute. If probate is granted, a will is recognized in rem (or for the whole world). In carrying out its inquisition, the court has a special responsibility to the testator who cannot be present to give voice to his or her true intentions. (See para. 68);

b. A person with a financial interest in an estate may ask the court to probate a will. He or she then has the burden to prove that the will was duly signed, that the testator had capacity when he or she signed it, and that the testator had knowledge of the contents of the will and approved them. (See para. 77);

c. Upon proof that the testator duly signed a will, the law will assume that the other required facts are proven unless someone opposing probate adduces evidence that, if accepted, would undermine the testator’s knowledge, approval, or capacity. This type of evidence is referred to as “suspicious circumstances.” (See para. 77);

d. If suspicious circumstances exist, then the full legal burden reverts to those supporting probate to prove that testator’s knowledge, approval, and capacity. By contrast, those who allege that a will is invalid due to the exercise of undue influence have the burden of proof of that allegation throughout. (See para. 78);

e. The court’s decision to grant probate is discretionary. So too is the manner in which the decision will be made. (See para. 87);

24  The court has discretion as to the manner or process for the proof of a will. The first issue is whether the court will allow a proponent of a will to prove the necessary facts without a formal hearing or whether the court will require a proponent of a will to engage in a full, formal litigation process to prove the necessary facts. The process for formally proving the necessary facts to obtain probate is referred to as “proof in solemn form.”

25  The court is empowered and generally will accept proof of probate summarily, without an oral hearing, unless someone with a financial interest asks the court to require proof in solemn form under Rules 75.01 and 75.06 of the Rules of Civil Procedure, RRO 1990, Reg. 194.

26 At para. 88 of Neuberger, Gillese J.A. discusses the decision whether to require proof in solemn form as follows:

In my view, an Interested Person must meet some minimal evidentiary threshold before a court will accede to a request that a testamentary instrument be proved. In the absence of some minimal evidentiary threshold, estates would necessarily be exposed to needless expense and litigation. In the case of small estates, this could conceivably deplete the estate. Furthermore, it would be unfair to require an estate trustee to defend a testamentary instrument simply because a disgruntled relative or other potential beneficiary makes a request for proof in solemn form. (Emphasis added)

Spoliation of Evidence

Spoliation of Evidence

Spoliation of evidence is the intentional destruction of relevant evidence when litigation exists or is pending.

There are few cases on the issue in Canada but it does occur on occasion.

In Holland ( Guardian ad litem) v Marshall 2008 BCCA 468 the appeal court stated re a medical malpractice suit where it was alleged hospital records had been deliberately destroyed:

55      Justice Brooke stated his understanding of the law of spoliation of evidence based on four case authorities to which he was referred by counsel for the respondents. The following is a summary of what was stated:

1. A rebuttable evidentiary presumption arises where evidence of spoliation exists; the doctrine of spoliation is an evidentiary rule raising a presumption and not an independent tort giving rise to a cause of action (St. Louis v. R. (1896), 25 S.C.R. 649 (S.C.C.)).

2. In an appropriate case, destruction of documents carries a procedural but not substantive remedy, an action for damages cannot be sustained solely on the ground that documents have been destroyed (Endean v. Canadian Red Cross Society (1998), 48 B.C.L.R. (3d) 90 (B.C. C.A.)).

3. Spoliation requires four elements in evidence: a) the evidence has been destroyed; b) the evidence destroyed was relevant to an issue in the lawsuit; c) legal proceedings were pending; and d) the destruction of documents was an intentional act indicative of fraud, or an intention to suppress the truth (Dyk v. Protec Automotive Repairs Ltd. (1997), 41 B.C.L.R. (3d) 197 (B.C. S.C.)).

4. There is no common law duty of care to preserve property which may possibly be required for evidentiary purposes; such an obligation can only be imposed by court order granted pursuant to the Rules of Court (Dawes v. Jajcaj, 1999 BCCA 237, 66 B.C.L.R. (3d) 31 (B.C. C.A.), aff’g (1995), 15 B.C.L.R. (3d) 240 (B.C. S.C.), leave to appeal ref’d (2000), [1999] S.C.C.A. No. 347 (S.C.C.)).

56      Justice Brooke accepted the evidence presented by the Hospital that Ms. Holland’s records were destroyed in accordance with its policy in place at the time and not for the purpose of suppressing evidence. He concluded there was no evidentiary foundation for Ms. Holland’s assertion of spoliation on the part of the defendant physicians or the Hospital. In that regard, Brooke J. said:

In Gray v McNeil 2016 ABQB 645 the court found evidence of spoliation had been rebutted by corroborative evidence:

A mother had contents of the deceased’s laptop computer erased days before examination for discovery, and her actions in erasing laptop computer amounted to spoliation .

Counsel for both parties agreed that the  laptop would be examined, and the mother engaged in deliberate act to destroy evidence so it was not available for ongoing legal proceedings.

The mother did not merely wipe out evidence of deceased’s private life, but also evidence that could prove or disprove whether and when 2011 will was created on laptop.

Spoliation created presumption that evidence on computer would have been unfavourable to mother, but the presumption was rebutted by other evidence that corroborated mother’s evidence. 

Spoliation, which is the intentional destruction of relevant evidence when litigation exists or is pending: McDougall v. Black & Decker Canada Inc., 2008 ABCA 353, 440 A.R. 253 (Alta. C.A.), at para 29. The spoliation of relevant evidence is a serious matter. As was noted in Doust v. Schatz, 2002 SKCA 129, 227 Sask. R. 1 (Sask. C.A.), at para 27 “[t]he integrity of the administration of justice in both civil and criminal matters depends in a large part on the honesty of parties and witnesses. . . . A party is under a duty to preserve what he knows, or reasonably should know, is relevant in an action….”

124      The principle remedy for spoliation is the imposition of a rebuttable presumption that the evidence which was destroyed would not have assisted the spoliator. The presumption can be rebutted by evidence showing the spoliator did not intend, by destroying the evidence, to affect the litigation, or by other evidence that proves her case, McDougall at para 18:

. . . Spoliation in law does not occur merely because evidence has been destroyed. Rather, it occurs where a party has intentionally destroyed evidence relevant to ongoing or contemplated litigation in circumstances where a reasonable inference can be drawn that the evidence was destroyed to affect the litigation. Once this is demonstrated, a presumption arises that the evidence would have been unfavourable to the party destroying it. This presumption is rebuttable by other evidence through which the alleged spoliator proves that his actions, although intentional, were not aimed at affecting the litigation, or through which the party either proves his case or repels the case against him.