Expert Reports and Opinions

Expert Reports and Opinions

Many estate litigation cases involve the necessity of obtaining an expert opinion in the form of a written  report that summarizes the evidence that  the expert  will  and opinion give at trial. The expert must set out the factual assumptions and documents that were relied upon in forming the written expert report and opinion.

Expert reports are what is known in law as “opinion evidence and may contain hearsay evidence as per the following guidelines”

The Court of Appeal summarized the correct approach for dealing with opinion evidence of this type in Mazur v. Lucas, 2010 BCCA 473 (B.C. C.A.).

When deciding what weight to place on expert evidence, the trier of fact must assess the extent to which the expert relied on hearsay evidence and factual assumptions, and the reliability of those hearsay statements and assumptions. Madam Justice Garson for the Court summarized this as follows:

[40] From these authorities, I would summarize the law on this question as to the admissibility of expert reports containing hearsay evidence as follows:
  • An expert witness may rely on a variety of sources and resources in opining on the question posed to him. These may include his own intellectual resources, observations or tests, as well as his review of other experts’ observations and opinions, research and treatises, information from others — this list is not exhaustive. (See Bryant, The Law of Evidence in Canada, at 834-835)
  • An expert may rely on hearsay. One common example in a personal injury context would be the observations of a radiologist contained in an x-ray report. Another physician may consider it unnecessary to view the actual x-ray himself, preferring to rely on the radiologist’s report.
  • The weight the trier of fact ultimately places on the opinion of the expert may depend on the degree to which the underlying assumptions have been proven by other admissible evidence. The weight of the expert opinion may also depend on the reliability of the hearsay, where that hearsay is not proven by other admissible evidence. Where the hearsay evidence (such as the opinion of other physicians) is an accepted means of decision making within that expert’s expertise, the hearsay may have greater reliability.
  • The correct judicial response to the question of the admissibility of hearsay evidence in an expert opinion is not to withdraw the evidence from the trier of fact unless, of course, there are some other factors at play such that it will be prejudicial to one party, but rather to address the weight of the opinion and the reliability of the hearsay in an appropriate self-instruction or instruction to a jury.

WESA Probate Delivery Rules

WESA Probate Delivery Rules

Re Davies estate 2014 BCSC 1233 deals with the WESA probate rules relating to the 21 day notice and proof of delivery of that notice.

This blog will be of note to anyone applying for a grant of probate or administration as to the requirements to be met before a grant will issue.

[6]             Rule 25-2(1), (2) and (3) and Rule 25-4(2) of the Supreme Court Civil Rules provide as follows:

(1)        Subject to this rule, unless the court otherwise orders, a person intending to apply for an estate grant or for the resealing of a foreign grant in relation to the estate of a deceased must, at least 21 days before submitting for filing the materials required for that application under this Part, deliver the following to the persons referred to in subrule (2):

(a)        a notice that complies with subrule (3);

(b)        whichever of the following, if any, that applies to the intended application:

(i)         if the intended applicant intends to apply for a grant of probate or a grant of administration with will annexed, a copy of the will in relation to which the application is to be made;

(ii)        if the intended applicant intends to apply for the resealing of a foreign grant or for an ancillary grant of probate or an ancillary grant of administration with will annexed, a copy of the foreign grant and, if a copy of the will in relation to which the foreign grant was issued is not attached to the foreign grant, a copy of the will;

(iii)       if the intended applicant intends to apply for an ancillary grant of administration without will annexed, a copy of the foreign grant.

[en. B.C. Reg. 149/2013, s. 8; am. B.C. Reg. 44/2014, Sch. 1, s. 3 (a).]

(2)        The documents referred to in subrule (1) must be delivered to the following persons:

(a)        if the deceased left a will, each of the following who is not a person by whom or on whose behalf the documents referred to in subrule (1) are to be delivered (a person by whom or on whose behalf the documents referred to in subrule (1) are to be delivered is, in this subrule, called an “intended applicant”):

(i) each person

(A)       who is named in the will as executor or alternate executor,

(B)       whose right to make an application for an estate grant in relation to the deceased is prior to or equal to the intended applicant’s right to make that application, and

(C)       who is alive at the time of the deceased’s death;

(ii)        each beneficiary under the will who is not referred to in subparagraph (i) of this paragraph;

(iii)       each person who, under Division 1 of Part 3 of the Wills, Estates and Succession Act, would have been an intestate successor if the deceased did not leave a will and who is not referred to in subparagraph (i) or (ii) of this paragraph;

(b)        if the deceased did not leave a will,

(i)         each person who, under Division 1 of Part 3 of the Wills, Estates and Succession Act, is an intestate successor of the deceased, and

(ii)        each creditor of the deceased whose claim exceeds $10,000 and who is not referred to in subparagraph (i) of this paragraph;

(c)        if the deceased was a Nisga’a citizen, the Nisga’a Lisims government;

(d)        if the deceased was a member of a treaty first nation, the treaty first nation;

(e)        any other person who, by court order under subrule (14) (a), is to receive notice;

(f)         any person not referred to in paragraph (a), (b), (c), (d) or (e) of this subrule who has served a citation on the intended applicant in relation to the deceased.

[en. B.C. Reg. 149/2013, s. 8.]

(3)        A notice under subrule (1) must be in Form P1, must be signed by the intended applicant or the intended applicant’s lawyer and must contain the following:

(a)        the name, last residential address and date of death of the deceased;

(b)        subject to subrule (4), the name and mailing address of the intended applicant and an address for service for the intended applicant, which address for service must be an accessible address that complies with Rule 4-1 (1);

(c)        if the intended applicant is an individual, the city and country in which the intended applicant ordinarily lives;

(d)        the estate grant or resealing for which the intended applicant intends to apply;

(e)        the registry of the court where the submission for estate grant or submission for resealing will be filed;

(f)         the following statements in relation to each person to whom the notice is delivered:

(i)         that the person has a right to oppose,

(A)       in the case of a notice provided in relation to an application for an estate grant, the issuance to the intended applicant of either or both of an authorization to obtain estate information and an estate grant, or

(B)       in the case of a notice provided in relation to an application for a resealing of a foreign grant, either or both of the issuance of an authorization to obtain resealing information and the resealing of the foreign grant;

(ii)        that the person may or may not be entitled to claim against the estate for relief, including a claim under

(A)       the Family Law Act, or

(B)       Division 6 of Part 4 of the Wills, Estates and Succession Act;

(iii)       that, if the person chooses to take a step referred to in subparagraph (i) or (ii) of this paragraph, the person must do so within the time limited by any relevant rule of court or other enactment;

(iv)       that the person may consult with that person’s own lawyer concerning the person’s interest in, or rights against, the estate;

(v)        in the case of an application for a grant of administration, that the person may apply for an order requiring the intended applicant to provide security unless the intended applicant is the Public Guardian and Trustee;

(g)        the following statements:

(i)         that an estate grant may issue or a foreign grant may be resealed, as the case may be, without further notice, on any date that is at least 21 days after the date on which the notice is delivered, or on any earlier date ordered by the court;

(ii)        if an authorization to obtain estate information issues to the intended applicant, the intended applicant may apply for an estate grant without further notice, and if an authorization to obtain resealing information issues to the intended applicant, the intended applicant may apply for the resealing of the foreign grant without further notice;

(iii)       that if an estate grant issues to the intended applicant as a result of the application, the intended applicant must provide, if there is a will, to the beneficiaries or, if there is no will, to intestate successors of the deceased, an accounting as to how the estate was administered and how the estate assets were distributed, and

(iv)       that if a foreign grant is resealed as a result of the application, the intended applicant must provide, if there is a will, to the beneficiaries or, if there is no will, to intestate successors of the deceased, an accounting as to how the estate comprising the assets to which the resealed grant applies was administered and how those assets were distributed.

[en. B.C. Reg. 149/2013, s. 8; am. B.C. Reg. 44/2014, Sch. 1, s. 3 (b).]

25-4(2) The registrar must not issue an authorization to obtain estate information under subrule (1) (a) of this rule or an estate grant under subrule (1) (b) unless the registrar is satisfied that

(a)        notice of the application has been delivered in accordance with Rule 25-2,

(b)        the application materials comply with Rule 25-3,

(c)        without limiting paragraph (b), if the application is for a grant of probate or a grant of administration with will annexed and is supported by an affidavit in Form P3, it was appropriate for that form of affidavit to be filed in support of the application,

(d)        if the application is for an ancillary grant of probate or administration,

(i)         the information in the foreign grant respecting the name of the deceased and the other names by which the deceased was known exactly matches the information in the submission for estate grant respecting those names, and

(ii)        each of the persons to whom the foreign grant was issued is an applicant in the submission for estate grant, and the names of the applicants in the submission for estate grant exactly match the names of the persons to whom the foreign grant was issued,

(e)        if the document to be issued is an authorization to obtain estate information, the only document that remains to be filed is the affidavit of assets and liabilities for estate grant and the applicant requires the authorization to obtain estate information to facilitate the applicant’s ability to determine the assets in the estate and the liabilities applicable to them,

(f)         if the document to be issued is an estate grant, all fees payable in relation to the application, including all probate fees, have been paid,

(g)        there is no notice of dispute in effect in relation to the estate, and

(h)        there is no reason to require a hearing in relation to the application.

[en. B.C. Reg. 149/2013, s. 8.]

[7]             Rule 25-2(1) clearly provides that at least 21 days before submitting materials for filing, the applicant must deliver certain things to certain persons.

[8]             The first thing which must be delivered is a notice which complies with subrule (3). Reference to subrule (3) reveals that such notice must be in Form 1, must be signed by the intended applicant or his or her lawyer, and must contain all of the enumerated information referred to in subrule (3)(a)-(g) inclusive. Form 1 in its entirety is mandatory; the other material to be delivered varies with the type of application and is detailed in subrule (1)(b).

[9]             Rule 25-2(2) details who is to receive the notice detailed in subrule (1) in both will and non-will situations as well as situations in which the deceased was a Nisga’a citizen or a member of a treaty first nation or when a person has served a citation.

[10]         Rule 25-4(2), again in mandatory fashion, states that the registrar must not issue an authorization for information under Rule 25-4(1)(a) or an estate grant under Rule 25-4(1)(b) unless he or she is satisfied, among other things, that notice of the application has been delivered in accordance with Rule 25-2.

[11]         Form P9 is the form which provides the registrar with evidence as to who received notice of the application and of what that notice consisted. Nowhere in the standard Form P9 is there specific reference to when notice was delivered, however, that does not reduce the duty on the registrar to be satisfied that proper 21 day notice has been provided.

[12]         The absence of express evidence of the date of delivery is not fatal in itself. The Form P9 may well be silent in its body as to the date of delivery but may have been sworn 21 or more days before the application was submitted. In such case, as long as the list of enumerated persons correctly identifies the persons entitled to notice, the registrar may properly infer adequate notice and process the application for the estate grant. In situations where that Form P9 is sworn less than 21 days before the filing of the application the inference is not available and sufficient evidence as to the date of delivery must be provided in order that the registrar may be satisfied as to observance of and compliance with Rule 25-2. Where such evidence satisfies the registrar that proper 21 day notice was given before the application was filed, the matter may be processed based on the original application date; where the evidence fails to establish that 21 day notice was given before the application was filed the original application cannot be remediated and must be resubmitted following a proper 21 day notice period, established by proper evidence.

[13]         In this particular file, and as indicated at the outset of these reasons, the application was filed a mere four days after the swearing of the Form P9 and contained no evidence as to the date of delivery. In such circumstances additional evidence must be provided in order to establish the date of delivery and thus the provision of the required 21 day notice. Until such evidence is provided the application for probate cannot be considered further or processed.

Passing Over: Removing An Executor

Passing Over: Removing An Executor

Special circumstances sometimes occur where it is appropriate for the Court to Pass Over the named executor in favour of another  which effectively removes the named executor

In Re Thomasson Estate, 2011 BCSC 481 the court Passed over the named executor by reason of personal conflict of interest.

The Court stated:

[28]         The application is not to remove Alex as an executor but simply to pass over him so that an enquiry can be undertaken of the transfer of the Property to him and his wife by the deceased in 2006, and a determination can be made if any further actions need be taken in regards to the Property.

[29]         In the circumstances of this case, it is my opinion that there is a perceived conflict of interest between Alex in his role as an executor and his interest in his personal capacity. If an action is instituted by the executors as a result of the transfer of the Property, it would be against Alex. In my opinion, Alex, in his capacity as executor, cannot attack the transfer of the Property to himself while at the same time maintaining, in his personal capacity, that the transfer of the Property was proper. By making such a finding I am not prejudging the case. I am simply of the view that, in the circumstances of this case, if an action is commenced as a result of the enquiries into the transfer, Alex cannot conscientiously act as a plaintiff in his capacity as an executor in a case where he will be the defendant.

Many cases have stated that the right of a testator to nominate the executor to administer his estate should not be lightly interfered with. (see Re Agnew Estate (1941) 3 W.W.R.723) That case also stated that, apart from statute, a court of probate had no right to refuse probate to an executor named in a will unless he was legally incompetent to act.

Ill will or animosity displayed between the parties is in itself not a sufficient ground to pass over an executor.

In Mortimer on Probate 2nd ed., p.209, the learned author states: “Where a will has been made, and an executor appointed, “the court cannot exercise any discretion as to granting or refusing probate. If probate is refused, it must be on the ground of some legal disability, recognized and allowed by the common law. For an executor is but a trustee for the deceased, and such person as the testator thought proper to appoint for that office, without any previous qualification; nobody can add qualifications to him other than those which the testator has imposed, but he shall be who, and in what manner, the testator shall judge proper”.

In Re Wolfe Estate, 21 W.W.R. 85, B.C.C.A., the court held that under Section 92 of the Trustee Act, it is within the judicial discretion of the Supreme Court or judge thereof to appoint a judicial trustee before the grant of letters probate or letters of administration in place of an executor or person entitled to administration.

Re Haggerty Estate, 60 W.W.R. 574 held that Section 9 of the Estate Administration Act confers a limited and unusual discretion on a court to pass over a named executor “by reason of special circumstances”.

In that case a grant was refused where the named executor had within the last year been convicted of a crime involving misappropriation of estate funds. The court stated that while a testator’s choice of executor should not be lightly interfered with, this was a proper case where discretion should be exercised by refusing the grant to the named executor. The court discussed a long line of authorities that evidence of bad character alone is not a sufficient ground for refusing a grant.

In fact, in Re Oughton, 40 E.T.R. 296, the notorious sex offender Oughton who was sentenced to an indeterminate sentence was not passed over as executor, on the basis that his circumstances were not sufficient to justify passing him over.

In Stadelmier vs Hoffman 25 E.T.R. 174 however, the court passed over one of four named executors, where the other three intended to bring action against the fourth on the basis of undue influence with respect to some large inter vivos gifts. The court exercised its discretion to pass over due to the position of actual conflict that the fourth executor was in. He could not in his capacity of executor attack the gift to himself, while at the same time maintain in his personal capacity that the gifts were proper.

WESA Will Framework

WESA Will Framework

The statutory framework of WESA (Estates, Succession and Wills act) was set out in British Columbia v Sheaffer 2015 BCSC 1306 where the court held that an improperly executed will  prior to the enactment of WESA on March 31, 2014 could not be rectified by the “curative” provisions of S 58 WESA, and that only wills done after that date may qualify.

See previous blogs  for more information on the curative provisions of S 58 WESA where for example an unwitnessed  suicide note and  a collection of unwitnessed but signed letters in an envelope were found to be valid wills under s 58 WESA.

Facts:

The deceased died leaving no surviving spouse or children and in his last will signed in 1974  he bequeathed the residue of his estate to his spouse (who predeceased him in 1993), with gift over to her son ( the beneficiary).

The  Public Guardian and Trustee (PGT) asserted the 1974 will was the last subsisting last will and testament of deceased .

The Defendants, who were friends of deceased, asserted an unsigned document dated September 2011 should stand as deceased’s last will and testament.

The PGT brought application for an order to cancel all caveats filed by defendant in connection with deceased’s estate and that she be granted letters of administration with 1974 will annexed .

Decision:

The Court held  the PGT could apply for letters of administration with 1974 will annexed as the unsigned will was not a valid testamentary disposition.

The unsigned will did not comply with formal execution requirements of Wills Act in force at material time prior to WESA’s introduction on March 31,2014.

Since the  Wills, Estates and Succession Act (“WESA“) was not applicable, the court had no discretion to overlook failure to strictly comply with statutorily prescribed execution requirements .

Deceased died prior to statutorily-prescribed qualifying date imposed by s. 186 of WESA and accordingly the  1974 will constituted the subsisting last will and testament of deceased and the defendant was not a beneficiary of deceased’s estate.

Law:

Statutory Framework

22. On March 31, 2014, the WESA came into force in British Columbia. Its enactment heralded significant changes in the law with respect to of wills and estate administration in this province.

23. For the most part, the WESA applies to the estates of persons who have died on or after March 31, 2014, and to the wills of such persons, even though their wills may have been made prior to March 31, 2014. The effect of the transitional provisions is that s. 58 of the WESA is only engaged if the date of death of the will-maker is after March 31, 2014. While there are narrow exceptions to the date of the will-maker’s death as being the qualifying event for the application of the WESA, they do not apply to the case at hand.

24. Prior to the enactment of the WESA, long-standing principles of formalism governed the creation, alteration, and revocation of wills in British Columbia. These principles were codified in the Wills Act. The pertinent legislative provisions prescribing the requisite statutory formalities for due execution, are set out in s. 4 of the former Wills Act:

4 Subject to section 5, a will is not valid unless:

(a) at its end it is signed by the testator or signed in the testator’s name by some other person in the testator’s presence and by the testator’s direction,

(b) the testator makes or acknowledges the signature in the presence of 2 or more attesting witnesses present at the same time, and

(c) 2 or more of the attesting witnesses subscribe the will in the presence of the testator.

25. It was well-settled in British Columbia, prior to the enactment of the WESA, that it was necessary to strictly comply with the statutorily prescribed formalities for creating a will. The courts have no discretion in waiving those requirements. In Ellis v. Turner (1997), 43 B.C.L.R. (3d) 283 (B.C. C.A.), the Court of Appeal commented on these strict compliance provisions, at 285:

The Wills Act creates a scheme designed to insure that a document purporting to be a testamentary disposition is in fact the will of the testator. A strong indicia of authenticity is proof that the will was signed at its end in the presence of witnesses. This Court must interpret, apply and respect the law as passed by the legislature. To declare the will in this case to be valid would be to by-pass the clear provisions of the Wills Act and to create a discretion in this Court which is not found in the Act. This is something which we cannot do.

26. The formalities for execution have been incorporated into s. 37 of the WESA. However, the WESA has introduced a remedial provision in s. 58 that gives the court a broad authority to “cure” a purported will, an alteration to a will, or the revocation of a will that does not satisfy the signing and witnessing requirements prescribed by s. 37. Section 58 constitutes a key component of the modernization of the law of wills and succession in British Columbia because it empowers the court to uphold the will-maker’s true intentions even where the will, a gift under the will, or a purported alteration or revocation of the will is invalid pursuant to other provisions of the WESA.

27. The application of s. 58 extends to “a record, document or writing or marking on a will or document”. The pertinent provisions of the WESA provide as follows:

58 (1) In this section, “record” includes data that

(a) is recorded or stored electronically,

(b) can be read by a person, and

(c) is capable of reproduction in a visible form.

(2) On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents

(a) the testamentary intentions of a deceased person,

(b) the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or

(c) the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.

(3) Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made

(a) as the will or part of the will of the deceased person,

(b) as a revocation, alteration or revival of a will of the deceased person, or

(c) as the testamentary intention of the deceased person.

(4) If an alteration to a will makes a word or provision illegible and the court is satisfied that the alteration was not made in accordance with this Act, the court may reinstate the original word or provision if there is evidence to establish what the original word or provision was.

186 (1) Subject to subsections (2) and (3) of this section and section 189, Part 4 [Wills] applies to a will, whenever executed, if the will-maker dies on or after the date on which Part 4 comes into force.

(2) Subsection (1) does not invalidate a will validly made before the date on which Part 4 comes into force.

(3) Subsection (1) does not revive a will validly revoked before the date on which Part 4 comes into force.

Is Social Media Relevant in Court?

Production of Social Media Documents

Almost all trial lawyers scour social media such as Facebook to find out more about the opposing counsel and parties and it is absolutely amazing what can frequently be found that is highly relevant to the court case. Even more amazing is the police in checking out social media even on occasion find incriminating statements by the likes of Hells Angels members – “loose lips sink ships” certainly does  apply in the age of narcissism and entitlement.”

If documents are on social media that are relevant to the court case, the opposing counsel can apply to court to have them produced under the rules of court and in particular Rule 7-1(14) .

This was done in Cui v Metcalfe 2015 BCSC 1195 where the plaintiff had 3600 hundred photos and videos of herself that could be relevant to the court action but the judge exercised his discretion and ordered some disclosure but not all.

The Law

In Fric v. Gershman, 2012 BCSC 614, Master Bouck dealt with an application in an action arising from a motor vehicle accident. She helpfully reviewed the earlier cases considering applications for production of photographic evidence on social media sites. She distinguished those cases in which disclosure was ordered from those in which it was not. She concluded, at para. 26, that the factor which distinguished the cases was whether the plaintiff claimed physical injuries arising from an accident as opposed to cognitive or psychological injuries. She said:

When physical impairment is alleged, the relevancy of photographs showing the plaintiff engaged in activities that require some physical effort seems rather clear.

[16]  In Fric, Master Bouck concluded that some of the plaintiff’s photographs ought to be disclosed. In para. 55 of her reasons, she makes it clear that she is ordering the disclosure under Rule 7-1(14), at the second stage of disclosure contemplated in the new Rules.

[17]  An order under Rule 7-1(14) follows counsel engaging in the demand and response process contemplated in Rules 7-1(10) to (13), during which the parties’ positions are clarified. As described by Justice Voith in XY, LLC v. Canadian Topsires Selection Inc., 2013 BCSC 584:

[22] The salutary objects of Rule 7-1(10)-(14) are many and varied. Several of these objects were identified by Justice Fitch in Lit v. Hare, 2012 BCSC 1918:

[67] The Rule is designed to promote dialogue between the parties, informal resolution of document production disagreements where that is possible and, where it is not, targeted litigation that focuses on those well-defined issues that remain contentious. The Rule operates to restrain the impulse to litigate document production issues as a course of first resort where those issues might be resolved through discussion, including by requiring the parties to articulate and defend their respective positions. In my view, the Rule is also designed to facilitate the adjudicative process by narrowing the issues and argument and particularizing, to the extent possible, the documents or categories of documents sought before an application is made. As Master Bouck observed in Balderston, at para. 29, in the context of the SCCR:

The intent of Rule 7-1(11) is to inform the opposing party of the basis for the broader disclosure request in sufficient particularity so that there can be a reasoned answer to the request. The Rule allows the parties to engage in debate or discussion and possibly resolve the issue before embarking on an expensive chambers application.

[23] To the various positive functions that were described by Justice Fitch and that are fostered by Rule 7-1(10)-(14), I would add that the exchange of correspondence which is required to take place between counsel under the Rules, and which inevitably forms a part of the application record, will often be extremely useful to the chambers judge or master who hears the production application. That correspondence serves to explain and crystallize the respective positions of the parties. In addition, the process described by Justice Fitch – discussion between counsel and winnowing the proper scope of expanded production – is consistent with the overarching goal of proportionality under the Rules

Will Interpretation Law

Will Interpretation Law

Dunn v TD Canada Trust 2016 BCSC 270 was a Rule 9-7 application to determine the words directing the trustee to retain in the form in which they are at the time of my death all investments in bonds and stocks which they had done since 1957.

The question that came after almost 60 years was were the trustees required to keep the bonds and stocks in specie for the lifetimes of the daughters, or did the will give the trustees the power to retain or sell as deemed advisable in the trustees absolute discretion.

After a lengthy analysis of the law the court concluded that the trustee was required to retain the testators bonds and stocks in specie for the lifetime of the daughters , subject to encroachment if the balance of the capital of the estate was otherwise exhausted.

The Law

[18] As noted, the parties agree as to the rules of construction to be employed in determining the intention of the testator. Generally, it is to be a staged approach where a second or subsequent step or method is only employed where the previous has not allowed the court to determine the testator’s intention.

[19] The first approach is to look at the ordinary meaning of the words used within the four corners of the will. Counsel referred to several cases that have articulated this in slightly different ways with each articulation providing some assistance and clarity. Counsels’ presentation of the law, evidence and argument was concise and effective.

[20] The defendants referenced TLC The Land Conservancy of British Columbia v. The University of British Columbia, 2014 BCCA 473 [TLC], as well as others in these paragraphs from the defendants’ written argument:

44. In TLC The Land Conservancy of British Columbia v. The University of British Columbia, 2014 BCCA 473 the Court stated:

[45] The parties are also agreed as to the general principles governing the interpretation of wills. The basic principle was articulated by the Supreme Court of Canada in National Trust Co. Ltd. v. Fleury, 1965 CanLI118 (SCC), [1965] S.C.R. 817 at 829:

In the construction of wills, the primary purpose is to determine the intention of the testator and it is only when such intention cannot be arrived at with reasonable certainty by giving the natural and ordinary meaning to the words which he has used that resort is to be had to the rules of construction which have been developed by the Courts in the interpretation of other wills.

[46] Other relevant principles include the following statements from James MacKenzie, Feeney’s Canadian Law of Wills, loose-leaf, 4th ed. (Markham, Ont.: LexisNexis, 2000):

  • §10.43 … the most influential rule of construction is that the court may construe the words used by the testator in their ordinary sense…
  • §10.60 The testator’s intention is to be gathered from a consideration of the will as a whole and not solely from the swords used, say, in an unclear portion of the will. The ordinary meaning rule and other rules of construction are entirely subservient to the content of the will. This idea is often expressed by saying that the testator’s intention is to be ascertained, first of all, from the four corners of the will…
  • §10.61 It is reasonable to presume that the testator’s intention was that effect be given to every word of his or her will..[footnotes omitted]

[47] It is appropriate to consider surrounding facts and circumstances only if the language of the will is ambiguous: Feeney’s Canadian Law of Wills at §10.51.

45. There are a number of principles that the court utilizes in determining the testator’s intention from the plain meaning of the words used within the four corners of the will:

(a) A cardinal principle of interpretation of a will is that each clause must be construed in the context of the will as a whole. It is incorrect to interpret a single clause in a will without reference to the will as a whole.

TLC, supra, at para. 46; Feeney’s Canadian Law of Wills, loose-leaf, 4th ed. (Markham Ont: Lexis Nexis, 2000) at §10.60

(b) The court should interpret the will in a way which gives effect to all the words used in a will, and reject interpretations that would render certain words or phrases inoperable.

Stark, Re, [1969] 2 O.R. 881, 7 D.L.R. (3d) 313 (C.A.)

(c) In interpreting a will, the Court should not add or insert words unless it is “patently obvious” that there has been an inaccurate expression by the testator of his or her intention, and the words that should be read in are clearly what the testator had in mind.

Laws v. Dobson Estate, 2006 BCSC 1519 at para. 56 Brooks Estate, Re, 2011 BCSC 1606

(d) Where a testator repeats a word or phrase, it should be presumed that the testator intended to express the same idea.

Middlebro v. Ryan (1924), [1925] 1 D.L.R. 589, [1925] S.C.R. 10

(e) Where a testator uses different words or phrases, it should be presumed that the testator intended to express difference ideas.

Lanterman Estate v. Lanterman (19[9]7), 18 E.T.R. (2d) 254, 202 A.R. 285 (AB Surr. Ct.)

[21] The applicants’ summary of the law on this point references some different authorities as follows:

27. It is well accepted that the primary purpose in the interpretation of a will is to determine the intention of the testator. This ought to be accomplished, where possible, based solely on the ordinary meaning of the words used within the four

corners of the Will by reading it as a whole. If the testator’s intention can be determined in the context of the Will as a whole, it is unnecessary to look any further.

Smith v. Smith Estate (Trustee of), 2008 BCSC 1189 (“Smith BCSC”)

at paras. 30-31;

Smith v. Smith Estate (Trustee of) [2010] BCJ No. 370 (“Smith BCCA”)

at paras. 18 & 28

Feeney’s Canadian Law of Wills (4th edition) (“Feeney’s”) at §10.60

28. The Supreme Court of Canada has commented that ordinary meaning often refers to a reader’s first impression meaning:

Although the weight to be given to the ordinary meaning of words varies enormously depending on their context, in the instant case, a textual interpretation supports a comprehensive analysis based on the purpose of the Act. Most often, “ordinary meaning” refers “to the reader’s first impression meaning, the understanding that spontaneously emerges when words are read in their immediate context” (R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 21; Marche v. Halifax Insurance Co., [2005] 1 S.C.R. 47, 2005 SCC 6, at para. 59). In Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn., [1993] 3 S.C.R. 724, at p. 735, Gonthier J. spoke of the “natural meaning which appears when the provision is simply read through”.

Pharmascience Inc. v. Binet, 2006 SCC 48 [at para. 30]

29. When interpreting a will, the court should consider the Will as a whole to garner the intention of the testator, rather than particular phrases in isolation.

Smith BCCA supra, at para. 30 Henderson Estate v. Honeyboum [2003] B.C.J. No. 783 at paras. 11 and 25

30. Where a clause is ambiguous and capable of two reasonable interpretations, one in harmony with the balance of the will and one at variance to it, the former is to be preferred.

Feeney’s at §10.62 Re Galt, Royal Trust Co. v. Martin (1957), 12 DLR (2d) 140 (BCCA) (“Galt”) at [142]

31. The law is that it is reasonable to presume that the Testator’s intention was that effect be given to every word of his or her will and that none of the words be rejected. This principle is outlined in Smith BCSC as follows:

The court should make every effort to reconcile two apparently conflicting provisions of a will, rather than to absolutely ignore one or the other of them, or call either or both of them void for uncertainty.

Feeney’s at §10.61 Smith BCSC at para. 34

32. Where in a will there is an omission that is plain on its face or an ambiguity, the Court may apply common sense to make a change or addition if the testator’s intention is clear.

Laws v. Dobson Estate, [2006] BCJ No. 2700 at para. [55]

[22] Where the intention of the testator cannot be determined from the language used in the will, resort may be had to the so-called “armchair rule” of construction, which has been described in Smith v. Smith Estate, 2010 BCCA 106 at para. 18, citing Re Burke (1959), 20 D.L.R. (2d) 396 at 398, [1960] O.R. 26 (Ont. C.A.):

Each Judge must endeavour to place himself in the position of the testator at the time when the last will and testament was made. He should concentrate his thoughts on the circumstances which then existed and which might reasonably be expected to influence the testator in the disposition of his property. He must give due weight to those circumstances in so far as they bear on the intention of the testator. He should then study the whole contents of the will and, after full consideration of all the provisions and language used therein, try to find what intention was in the mind of the testator. When an opinion has been formed as to that intention, the Court should strive to give effect to it and should do so unless there is some rule or principle of law that prohibits it from doing so.

[23] It is also well-established that in an application of the armchair rule, direct extrinsic evidence of intent is generally not admissible: Thiemer Estate, 2012 BCSC 629 at para. 50; Aii Estate (Re), 2014 BCSC 340 at paras. 18-19; and Souch v. Johnson, 2014 BCSC 1889 at para. 31.

[24] Both parties in this application maintain that their respective positions on the proper interpretation of this will are established by the words alone and that I need not reference or rely on any other rule of construction, including the armchair rule to interpret this will.

[25] If, after an examination of the language used within the four corners of the will and, if necessary, aided by the application of the armchair rule, the intention of the testator still has not been determined, other rules of construction may be employed. As will be seen from the analysis which follows, I do not find it necessary to resort to additional rules of construction; therefore, I will not address them further.

Discovery on Credibility Not Allowed

Discovery on Credibility Not Allowed

The issue of credibility in estate litigation is often raised as the stories between the conflicting parties are often so different that they are hard to reconcile in any way.

One of such credibility issues that sometimes occurs is the opposing counsel asking if the opposing party has a criminal record.

It is not permitted to ask questions relating only to credibility or have documents produced for the same purpose as to allow such would encourage ” fishing expeditions”

[24] The plaintiff has referred to Sandhu (Guardian ad litem of) v. Philipow (1996), 1996 CanLII 2368 (BC SC), 24 B.C.L.R. (3d) 78, 49 C.P.C. (3d) 317 (S.C.), in which the plaintiffs sought abstracts of the defendants’ driving records for the purpose of determining whether the defendants had been convicted of any offences arising out of the accidents in question or any other offences. The application was denied because whether the defendants had been convicted was a collateral issue going only to credibility. The plaintiff also refers to Stathis v. Jones, Gable & Co., [1982] B.C.J. No. 1337 (S.C.) for the same principle: discovery on the issue of credibility is not permitted. There is no dispute with the principles set out by these cases, but they do not assist the plaintiff as the medical issue in this case relates to the reliability of his memory which is not a collateral issue here.

See also:  Roberts v. Singh et al, 2006 BCSC 906

[11] The first question before me deals with whether or not these records, as sought by the defendants, are relevant and thereby produceable when they deal only with the issue of credibility.  This issue was addressed by Master Horn in the case of Sandhu (Guardian ad liten of) v. Philipow, [1996] B.C.J. No. 1113.  In that case Master Horn was dealing with a request that the Superintendent of Motor Vehicles be compelled to furnish the plaintiffs with an abstract of the driving records of the defendants in the action.  Master Horn, at paragraph 8 of his decision says as follows:

The issue whether a witness has been convicted or not is a collateral issue which goes to credibility only (see Clarke v. Holdsworth (1967) 62 W.W.R. 1 (S.C.)).  It is well established that the credibility of a party or of a witness is not a matter in issue in an action.  The credibility of a party is not a matter which is examinable on discovery (see M.(A.) v. Ryan (1994) 1994 CanLII 6417 (BC CA), 98 B.C.L.R. (2d) 1 (B.C.C.A.); Union Bus Sales v. Dueck on Broadway Ltd. (1958) 24 W.W.R. 644 (B.C.C.A.).  The document which plaintiff’s counsel seeks from the Superintendent is not relevant if it relates to credibility only.

[12] Although Master Horn went on to consider whether or not he could compel by court order the Superintendent to do something which by statute he had discretion not to do, that in my view, in no way weakens the statement of law which is reflected in ¶ 8 of Master Horn’s reasons.

[13] Credibility is a collateral issue.  In this regard the defendants already have the evidence of the plaintiff given at his examination for discovery.  The file material sought by the defendants in their Notice of Motion is in my respectful view irrelevant and accordingly I decline to order its production.

And:  Zecher v. Josh, 2011 BCSC 311 (CanLII),

[57] Based on the evidence presented, I agree with the plaintiff that the defendants are embarking on a fishing expedition for evidence from which an attack can be made on the plaintiff’s credibility. Such evidence will not be ordered produced under Rule 7-1 as credibility is not a material fact: Roberts v.Singh 2006 BCSC 906

Public Policy Voids Homophobic Will

Public Policy Voids Homophobic Will

An Ontario judge in Royal trust Corp. of Canada v The University of Western Ontario et al 2016 ONSC 1143 has struck down a deceased doctor Priebe’s  attempt to set up university scholarships exclusively for white, single and heterosexual students, ruling the unusual stipulations clash with “public policy.”

Dr. Priebe’s will directed his trustee to set up bursaries for students in science but also directed that one should be to: Caucasian, male, single, heterosexual students”.

Another bursary was to a  ” hard -working, single, Caucasian ( white) girl who is not a feminist or lesbian”

Some male bursaries were peculiar such as the recipient should ideally demonstrate that” that are not afraid of manual work in the selection of their summer employment”.

The court deleted these bursary awards on the basis that they were discriminatory  of marital status, gender, race and sexual orientation , and thus were void on the ground of public policy and were deleted from the will.

The  Law

[9] The leading authority is Canada Trust Co. v. Ontario Human Rights Commission. 1990 CanLn 6849 at 22 (Ont. C.A.)

In that case, the indenture, under which the inter vivos trust was created, contained four recitals relating to race, religion, citizenship, anceshy, ethnic origin and colour with respect to the persons eligible to receive scholarships under the will. One recital stated: “The Settlor believes that the white race is, as a whole, best qualified by nature to be entrusted with the development of civilization and the general progress of the world along the best lines.”

[10] The Ontario Court of Appeal in Canada Trust Co. found the charitable trust to be void on the ground of public policy to the extent that it discriminated on the ground of race (colour, nationality, ethnic origin, religion and sex.

[11] As a guiding principle, the court in Canada Trust Co. stated that each trust must be evaluated on a case-by-case basis should its validity be challenged and cautioned that not all restrictions amount to discrimination and are therefore contrary to public policy. ethnic origin), religion and sex.

Enforcing Foreign Judgements

Enforcing Foreign Judgements

Ace Life Insurance Co. v Li 2015 BCSC 2533 held that a judgement against the defendant for $100,000 in Hong Kong as the personal representative of her late husband’s estate for court costs as the losing party in an action she brought on behalf of the estate, but stood to personally gain if she had won, could be enforced in British Columbia.

This area of law is known as Conflict of Laws and it can be very difficult to navigate- the facts of this case as such are limited to between Hong Kong and British Columbia and not every judgement from around the world will be enforced.

The Court held that the foreign judgments for court costs could be enforced in British Columbia for a few reasons including that to do so would not offend the basic morality of Canadians and the costs had been assessed on a legislated code after a fair trial.

The legal test for enforcing foreign judgements

[10] There was no dispute on the legal test to be applied when an application is made to enforce a foreign judgment. In Morguard Investments Ltd. v. The Savoye, [1990] 3 S.C.R. 1077, the Supreme Court of Canada considered whether an Alberta judgment could be enforced in the B.C. courts. It held that it could, and the Supreme Court of Canada adopted the “real and substantial connection” test. That test asks whether there is a real and substantial connection between the defendant in the domestic action and the subject matter of the litigation in the foreign judgment sought to be enforced. In 2003, the Supreme Court of Canada had occasion to consider whether the test should be applied to international judgments, and it held that it did in Beals v. Saldanha, [2003] 3 S.C.R. 416.

[11] Ms. Li does not deny that Ace Life Insurance has established the real and substantial connection test in this case. She says an exception applies and the judgment should not be enforced on that basis.

[12] In Beals, the court discusses the defences available to a domestic defendant at paras. 39 to 77, which include fraud, public policy and lack of natural justice. Ms. Li relies on public policy defence in this case.

[13] At paras. 71 to 77, Justice Major, on behalf of the majority of the court, sets out the scope of this defence. To be successful, the domestic defendant must establish that the foreign law is contrary to Canadians’ view of basic morality or where the outcome is so egregious it would shock the conscience or be unacceptable to reasonable Canadians. One example suggested would be enforcement of a judgment rendered by a court proven to be corrupt or biased.

[14] As noted by Justice Major, the public policy defence amounts to the impeachment of a foreign judgment by condemning the foreign law on which the judgment is based. He stressed it is not a defence to be granted lightly and ought to have narrow application.

[15] In that case, the plaintiff in the Canadian litigation was attempting to enforce an award it received from a jury in Florida. The Florida litigation involved a dispute about the sale of vacant land owned by residents in Ontario. The Ontario defendant chose not to actively defend the action and default judgment was entered. A jury awarded $210,000 in damages and $50,000 in punitive damages. The award was not appealed.

[16] The successful party in the Florida action then sought to enforce its award in Ontario. In the meantime, interest accrued such that by the time the case was heard in the Supreme Court of Canada, the award had grown to over $800,000. The majority of the Supreme Court of Canada concluded that although the amount involved was large, that did not on its own create a basis to refuse to enforce the judgment, and at para. 76 Justice Major stated:

Even if it could be argued in another case that the arbitrariness of the award can properly fit into a public policy argument, the record here does not provide any basis allowing the Canadian court to re-evaluate the amount of the award. The public policy defence is not meant to bar enforcement of a judgment rendered by a foreign court with a real and substantial connection to the cause of action for the sole reason that the claim in that foreign jurisdiction would not yield comparable damages in Canada.

[17] Ace Life Insurance submits it has easily met the test to enforce the Hong Kong judgment. It then asks this court to order the costs to be paid by Ms. Li in her personal capacity as opposed to as a representative of her husband’s estate.

Should the Hong Kong judgment be enforced?

[18] In relation to the first issue, Ms. Li argues that the award offends against the principles of proportionality and therefore would offend Canadians’ sense of basic morality. In my view this argument cannot succeed. It is akin to the argument that was raised and rejected in Beals that it was the amount of the award that would offend Canadians.

Spousal Separation Needs Intention

Spousal Separation Needs Intention

It is often difficult for third parties to know if a spousal couple has “legally” separated or not and a sudden death will invariably lead to litigation over the issue.

The Courts have established in Manitoba, and I believe it would be followed in BC, that in order for separation to be established “theevidence of separation must be “clear and convincing”, and the intention to separate must be “communicated to the other party and acted upon”.
Venditti v. Slobodiianik 2013 MBQB 202 has the following quote of law:
23 The cases of separate and apart under the same roof generally focus on the physical living arrangements of the parties but there is another important consideration as well, namely, whether one or both had formed the intention to live separate and apart thereby destroying the consortium of the married relationship: see apart thereby destroying the consortium of the married relationship: see Eamer v. Eamer (1971), 21 D.L.R. (3d) 18 (Man. Q.B.); Herman v. Herman (1969), 3 D.L.R. (3d) 551 (N.S.S.C.); Coates v. Coates, [2000] M.J. No. 272, 146 Man.R. (2d) 249 (Master Harrison – Man. Q.B.) – upheld on appeal 2000 MBQB 197.
24 As well, Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), a unmarried cohabitation case developed a useful list of factors and components deserving of consideration when courts are called upon to consider when “unmarried cohabitation” begins and ends. In doing so, Kurisko D.C.J. reviewed many of the historical decisions on marriage, consortium, conjugal relations and cohabitation. The Molodowich list of factors has been commented on favourably by the Supreme Court of Canada in M. v. H., [1999] 2 S.C.R. 3, and has been used and applied in a number of cases in Manitoba and elsewhere. In Manitoba see Huberdeau v. Reid, 2007 MBQB 69; McGee v. Ranson, 2003 MBQB 182; Maresich v. Penner, 2007 MBQB 85; Bullied v. Kallen, 2008 MBQB 268.
25 Two further cases provide helpful reference points and hearken back to the injunction in Galbraith, supra, that the evidence in support of a claim of separation or cessation of cohabitation must be “clear and convincing”. In Gibbons v. Kowal, 2006 MBQB 11, Hanssen J. held that:
A conjugal relationship ends “… when either party regards it as being at an end and, by his or her conduct, [demonstrates] in a convincing manner that this particular state of mind is a settled one.” [para. 9]
26 Finally, in Field v. McLaren, 2009 MBQB 118, Douglas J. (as she then was) in the context of a common-law partner Family Property Act claim held at para. 10 that:
Certainly I accept it is settled law that the intention of one party to separate may be sufficient to sever the relationship. Judged objectively though there must be evidence that an intention to separate was not only held, but was communicated to the other party and acted upon. The person desiring to separate must act in a way consistent with an intention to separate.
. . .
48 A discordant and disrupted marriage over many years is not the equivalent of a separation or cessation of cohabitation.
37      In summary: cohabitation may be considered to continue notwithstanding a “discordant relationship”, the evidence of separation must be “clear and convincing”, and the intention to separate must be “communicated to the other party and acted upon”.