Tag: Wills Issues

Mistakes In Wills and How To Fix Them

Mistakes in wills are frequently made and then subsequently not discovered until typically many years later after the passing of the will maker.

The usual types of mistakes break into two areas- that the will was not properly executed in accordance with established principles ,or the will itself does not make sense, is ambiguous, and needs to be constructed and interpreted.

Section 59 of WESA provides a new section allowing the court to rectify a will if the court determines that the will fails to carry out the will maker’s intentions because of:

1) an error arising from an accidental slip or omission;

2) a misunderstanding of the will maker’s instructions;

3) A failure to carry out the will maker’s instructions.

The court further allows for extrinsic evidence, that is evidence relating to the circumstances under which the will instructions were given and the will executed ,including evidence of the will maker’s intent, in order to prove the existence of the circumstance described in section 1 aforesaid .

For further reading on the construction or interpretation of wills, also see blogs on this site dated September 8,2011

December 9,2011

June 1, 2012

April 20,2013 and

June 2, 2013.

The general guidelines of case law with respect to interpretation and construction of wills is as follows:

The goal in interpreting a will is to give effect to the testamentary intentions of the testatrix for the distribution of her estate: Rondel v. Robinson Estate, 2011 ONCA 493, 337 D.L.R. (4th) 193, at para. 23.

[17] The Ontario Superior Court of Justice in Re Kaptyn Estate, 2010 ONSC 4293, 102 O.R. (3d) 1, (“Kaptyn Estate”) helpfully summarized many of the principles relating to the interpretation and construction of wills:

a) The court will seek to determine the actual intention of the testator, as opposed to an objective intent presumed by law (para. 31).

b) Other cases interpreting words in other wills are of little assistance since the task is to interpret this testator’s subjective intentions (para. 32).

c) There is a distinction between interpretation and construction of a will. Interpretation seeks to determine the testator’s subjective intentions from the words used in light of the surrounding circumstances. Rules of construction are a default process turned to by the courts when the testator’s actual intentions cannot be ascertained (para 34).

d) The starting position of the court is the “armchair rule”, where the court puts itself in the place of the testator at the time when he made his will. This allows consideration of some extrinsic evidence of the surrounding circumstances known to the testator as might bear on his intentions (para. 35).

e) The authorities distinguish between admissible and inadmissible extrinsic evidence in interpreting a will (paras. 35-38):

i. “indirect extrinsic evidence” of the surrounding circumstances known to the testator at the time he made the will is generally admissible. This includes evidence of such things such as the testator’s occupation and property and financial situation; his relationships with family and friends; and natural objects of his grant;

ii. “direct extrinsic evidence” of the testator’s intentions is generally inadmissible. This is so as to preserve the will itself as the primary evidence, and to avoid the situation of an “oral will” displacing the written form. However, there is an exception where there is an “equivocation”, namely, where the will describes two or more persons or things equally well. In that situation, the law will allow evidence of the testator’s intention. Examples of inadmissible direct evidence are such things as notes or statements of the testator as to his intention, or instructions he gave his lawyer in preparing the will;

f) the court will interpret the will viewed as a whole (para. 138);

g) the court will prefer an interpretation that leads to a testacy, not an intestacy (para. 139); and,

h) the court will not hesitate to correct obvious mistakes, including deleting or inserting words, where to do so accords with the testator’s intentions, or where not to do so would lead to an absurd result (para 140).

[18] The proper approach of the court is to consider the language of the will in light of the surrounding circumstances together, rather than one first and then the other: Abram Estate v. Shankoff, 2007 BCSC 1368 at para. 77.

Interest Is Claimable on Lump Sum Wills Variation Awards

While it is much more common for courts to award a percentage of the residue of an estate to a wills variation claimant, it does on occasion occur where the court will order a lump sum award which may include interest..

That is a case in Sawchuk v Mackenzie 2000 BCCA 10, where the Court of Appeal increased the $500,000 lump sum award ordered by the trial judge to the sum of $1 million. The issue then became whether or not the plaintiff was entitled to interest on the award of $1 million and the court agreed. The rationale for their award of interest was that a lump sum under the wills variation act is a pecuniary legacy as opposed to a pecuniary judgment, and as such is subject to the general law that interest starts to run on a pecuniary gift one year after the testator’s death, at the rate set by the Canada interest act. The court had the following to say with respect to the issue of interest:Interest Is Claimable On Lump Sum Wills Variation Awards:

The issue remaining is whether the provision made by the Court attracts interest. It is conceded that a pecuniary legacy attracts interest: see Crerar v. Crerar Estate (1998), 24 E.T.R. (2d) 1 (B.C. C.A.) per Southin J.A. at p. 16. The formal order under appeal varies the will by deleting the amount of $10,000 from the bequest to the appellant and substituting the amount of $500,000. The effect of that order is that the provision for the appellant is made through a variation of the will and the will then speaks as varied. The form of the gift as a pecuniary legacy is unchanged; the variation is solely in the amount. The further variation that I would order does not affect the form of the bequest.
19 Mr. Carphin contended that the formal order is erroneous and the provision should have been made outside the will, presumably in the form of an order that the estate be charged with payment of the provision awarded to the appellant separately from the legacy of $10,000 under the will. The conceptual issue is: Does the court make provision for a claimant under the Wills Variation Act by varying the terms of the will or by making provision outside the will?

20 In my view, section 2 as worded is capable of both interpretations. Surprisingly, counsel were unable to direct the Court to any authorities in which this question has been addressed although it was acknowledged that orders made under the Act often direct variation of the will in the same manner as the formal order under appeal. The title of the statute is the Wills Variation Act, although it was formerly the Testator’s Family Maintenance Act and the name change occurred during a general statutory revision, likely without any consideration of the point at issue here. “Provision” is a general term without a precise technical legal meaning. In my opinion “provision out of the testator’s estate” is sufficiently wide to include variation of the terms of the will to give effect to the object of the Act as well as an order for payment or disposition of estate property apart from the will. Section 8 of the Interpretation Act, R.S.B.C. 1996, c. 238 directs that the Act is to be construed as being remedial and “given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.” Variation of the terms of a will in a proper case appears to me to be an appropriate means of giving effect to the objects of the Act and in my opinion the wording of s. 2 permits that interpretation. In this case the trial judge has given effect to his order through a variation of the terms of the legacy to the appellant and I think it was appropriate to do so. In my view, the trial judge erred only in the amount he substituted in the legacy and the clause of the formal order should stand with the amount of $1 million rather than $500,000.
21 The disposition remains a pecuniary legacy under the will, although varied in amount and attracts interest under the rule applicable to pecuniary legacies. So characterized I do not think that it is a “pecuniary judgment” within s. 1 of the Court Order Interest Act, R.S.B.C. 1996, c. 79. I agree with the conclusion to that effect in Morgan v. Morgan (1984), 16 E.T.R. 288 (B.C. S.C.), following an earlier unreported decision in the same court.

22 Wepruk (Guardian ad litem of) v. McMillan Estate (1993), 87 B.C.L.R. (2d) 194 (B.C. C.A.) is distinguishable. Wepruk (Guardian ad litem of) involved a pecuniary award to a common law spouse from an intestate estate under s. 86 of the Estate Administration Act, R.S.B.C. 1979, c. 114, for the support and maintenance of the spouse. It did not involve variation of a will and took the form of a pecuniary judgment against the estate. The Court concluded that the award was a pecuniary judgment within the meaning of the Court Order Interest Act but no interest was payable as the award was for a future pecuniary loss excluded by s. 2(a) of the Act.

23 Here there is no pecuniary judgment against the estate independently of the will. The provision takes the form of a variation of the will and the provision is effective through the will. Accordingly, in my opinion it is not a pecuniary judgment and the Court Order Interest Act has no application. Interest is payable under the general law applicable to pecuniary legacies, at the rate set by the Interest Act (Canada), R.S.C. 1985, c. I-15. I would amend the order of the trial judge to delete reference therein to the Court Order Interest Act. The order should direct that interest be paid after one year from the date of the testatrix’s death: see Hecht v. Hecht Estate (1991), 62 B.C.L.R. (2d) 145 (B.C. C.A.).
24 I would allow the appeal and increase the legacy to the appellant to $1 million.
Appeal allowed.

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Wills Variation- “Estranged” Son vs Neighbour

In Moore v. Drummond 2013 BCSC 1762 the Court in a wills variation claim divided the estate 50/50 between an alleged estranged disinherited son and a long time neighbour.

The reasoning for the disinheritance of the son and bequest to the neighbour was explained as: :

7. My reasons for providing for my neighbours, CASEY MOORE and CLARA MOORE are because they have been a lot of help to me and have become my good friends over many years.

8. I have not given any part of my estate to my son, Bruce Drummond, because he does not visit me and he does not need anything from me. Bruce is retired and I believe he made good money as a logger.

[5] In my previous reasons, I found the statement about Bruce not visiting to be incorrect in that he did visit from time to time. However, Dee had previously expressed hostility to him in speaking to others. In his evidence at the resumed trial, Bruce confirmed that, throughout his life, his mother was bitter about the fact that her pregnancy with him had forced her into an unhappy marriage. She frequently referred to him as a “bastard.” As a child, Bruce was raised primarily by his grandmother and great-grandmother and did not live full-time with his parents until age 12.

[6] Bruce is now 77. He retired as a contract logger in 2007 and has pension income totalling about $20,000 a year. He lives in Quesnel, where he has owned a mobile home for 27 years. The home has an assessed value of $43,500 and sits on a pad that is rented for $220 a month. He has no significant savings or investments.

[7] Bruce testified that after his mother moved to Smithers in the 1960s, he generally visited once a year and provided small amounts of financial assistance from time to time. However, during the last two years of her life, she asked him not to visit because she was self-conscious about her condition. He last saw her in the spring of 2009, although they remained in telephone contact until February 2010.

[8] Although Dee stated in her will that she believed Bruce had made good money as a logger, he testified that they never specifically discussed his income. He said he made average wages for a logger, working 8 or 9 months a year.

[9] Bruce also testified that he did not learn of the new will until after Dee’s death and that he was surprised and shocked.

[10] Section 2 of the Wills Variation Act provides that if, in the court’s opinion, a will fails to make adequate provision for the proper maintenance and support of the testator’s spouse or children, the court may vary the will to make the provision it considers adequate, just and equitable in the circumstances. In the leading case of Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807, 116 D.L.R. (4th) 193 [Tataryn], the Supreme Court of Canada said the purpose of that section is to enforce the testator’s legal and moral obligations, but that a testator’s freedom to dispose of his or her property should be interfered with only in so far as the statute requires. At para. 17, the Court said:

[17] … The Act did not remove the right of the legal owner of property to dispose of it upon death. Rather, it limited that right. The absolute testamentary autonomy of the 19th century was required to yield to the interests of spouses and children to the extent, and only to the extent, that this was necessary to provide the latter with what was “adequate, just and equitable in the circumstances.” And if that testamentary autonomy must yield to what is “adequate, just and equitable”, then the ultimate question is, what is “adequate, just and equitable” in the circumstances judged by contemporary standards. Once that is established, it cannot be cut down on the ground that the testator did not want to provide what is “adequate, just and equitable”.

[11] There is no suggestion that Dee owed any legal obligation to her adult son. The question is one of moral obligation. The Court in Tataryn said at para. 28 that such obligations are based on “society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards.” While such obligations clearly exist in relation to spouses and dependent children, the Court also added at para. 31:
[31] … While the moral claim of independent adult children may be more tenuous, a large body of case law exists suggesting that, if the size of the estate permits and in the absence of circumstances which negate the existence of such an obligation, some provision for such children should be made.

[12] In McBride v. McBride Estate, 2010 BCSC 443 [McBride], at paras. 129-135, Ballance J. identified a number of factors for consideration in determining the existence or strength of a testator’s moral duty. The ones possibly relevant to this case are:

· Contributions by the claimant to the accumulation of a testator’s assets or the provision of other types of contribution or care;

· Conduct of the testator that created a bona fide expectation of a benefit;

· The role played by the testator in any estrangement or breakdown of the relationship between the testator and the claimant; and,

· Whether the testator’s reasons purporting to explain a disinheritance are valid and rational.

[13] Although there is as some evidence of financial contributions by Bruce over the years, these appear to have been modest and infrequent. All the evidence about Dee’s personality indicates that she was fiercely independent and unlikely to either ask for or accept any significant financial support.

[14] Bruce was aware of Dee’s previous will, in which he was the sole beneficiary. While that could be said to have created an expectation of benefit, it cannot in itself, be the determining factor. Testamentary autonomy, which Tataryn says must still be protected, includes the right to change a will.

[15] The significant issues in this case are the nature of the mother-son relationship and the stated reasons for disinheritance.

[16] Although this was not a case of complete estrangement, it is clear that the relationship between Dee and Bruce had always been a distant one, with a strong undertone of hostility and resentment. That hostility and resentment arose entirely with Dee (although Bruce may have responded in kind). She held him responsible for matters over which he had no control — the circumstances and consequences of his birth. In McBride, Ballance J. said at para 132:

[132] In the early development of the caselaw, a long period of separation, abandonment or estrangement between a child and testator was frequently, though not invariably, taken to militate against finding a moral duty to an adult child. The modern judicial trend indicates that the court will enquire into the role played by the testator in the estrangement or relationship breakdown, and where it is seen to be largely the fault of or at the insistence of a testator, it will likely not negate a testator’s moral duty, and may even enhance it. The weight of the authorities also indicates that the court may discern a moral duty as a means of rectifying the testator’s childhood neglect of the children: Gray v. Gray Estate, 2002 BCCA 94, 98 B.C.L.R. (3d) 389, Doucette v. Clarke, 2007 BCSC 1021, 35 E.T.R. (3d) 98 [Doucette]; Tomlyn v. Kennedy, 2008 BCSC 331, 38 E.T.R. (3d) 289; Wilson v. Watson, 2006 BCSC 53, 21 E.T.R. (3d) 285; P.S.G. v G.G. Estate, 2005 BCSC 1855; Ryan.

[17] As to the testator’s stated reasons for disinheritance, the Court of Appeal said in Kelly v. Baker (1996), 15 E.T.R. (2d) 219, [1996] B.C.J. No. 3050 (C.A.), that the testator’s moral obligation can be negated by “valid and rational” reasons:
[58] … The law does not require that the reason expressed by the testator in her will, or elsewhere, for disinheriting the appellant be justifiable. It is sufficient if there were valid and rational reasons at the time of her death – valid in the sense of being based on fact; rational in the sense that there is a logical connection between the reasons and the act of disinheritance.

[18] In McBride, Ballance J. pointed out that this approach may be difficult to reconcile with the objective test based on society’s reasonable expectations mandated by Tataryn. However, she said at para. 142:

[142] … I would respectfully observe that there appears to be a growing trend in the authorities decided in the aftermath of Kelly to favour rejection of objectively insufficient reasons on the pretence that they are simply not rational.

[19] However one interprets the test to be applied, I am bound to find on the basis of the authorities that the reasons stated in the will were insufficient to displace the moral obligation. The statement that Bruce never visited was factually incorrect. The statement that he did not need anything from her was based on an assumption unsupported by any specific knowledge. Dee knew nothing about Bruce’s income, other than the fact he had worked as a logger, and knew nothing about his financial circumstances in retirement. Bruce testified that they never discussed these matters and I find that, given her attitude toward him, Dee was unlikely to have been interested.

[20] Tataryn and other case law makes clear that “society’s reasonable expectations” require a testator to consider adult independent children. Although a testator may in some circumstances reasonably exclude such a child based on the child’s financial circumstances and absence of need, the reasonable expectation is that a prudent testator would only do so on the basis of actual knowledge rather than speculation.

[21] For these reasons, I find that Dee’s will failed to meet her moral obligations and therefore fell short of the “adequate provision” required by s. 2(1) of the Act.

[22] The will should be varied in a way that “achieves the justice the testator failed to achieve,” while interfering with testamentary freedom “only in so far as the statute requires” (Tataryn, at para. 33). That requires the court to weigh the competing claims. The Supreme Court of Canada in Tataryn said at para. 32:

[32] How are conflicting claims to be balanced against each other? Where the estate permits, all should be met. Where priorities must be considered, it seems to me that claims which would have been recognized during the testator’s life — i.e., claims based upon not only moral obligation but legal obligations — should generally take precedence over moral claims. As between moral claims, some may be stronger than others. It falls to the court to weigh the strength of each claim and assign to each its proper priority… Any moral duty should be assessed in the light of the deceased’s legitimate concerns which, where the assets of the estate permit, may go beyond providing for the surviving spouse and children.

[23] Like Bruce’s claim, that of Mr. and Mrs. Moore is a purely moral one. Dee clearly felt gratitude for their day to day assistance and friendship. Her relationship with them, although not based on any family connection, was closer than her relationship with her son. This was partly her choice, but was also a simple product of physical proximity.

[24] Counsel for Bruce suggests that the will be varied to give him the real property, which now accounts for about 85 per cent of the estate. In my view, that would vary the will beyond what the statute requires and would give insufficient weight to testamentary freedom. Balancing the competing claims and the competing interests protected by the Act, I find that the estate should be divided equally, with one half going to Bruce and the other to Mr. and Mrs. Moore. In the circumstances, the parties will each bear their own cost

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Will in Contemplation of Marriage

Prior to the WESA legislation in BC prior to March 31, 2014 a marriage revoked an existing will unless the will was made in contemplation of marriage.

The BC Appeal court in MacLean Estate v. Christiansen, 2010 BCCA 374dealt with the matter.

The BCCA examined a will using the word spouse, but not actually saying the will was made in contemplation of the marriage. The trial judge found that the marriage was revoked but the appeal court reversed that decision and held that the will was valid.

[1] The principal issue in this appeal is whether the will of Gordon William MacLean was revoked by his subsequent marriage to Karen Christiansen. The appellant trustee and executor, a solicitor, prepared the will with the knowledge that Mr. MacLean intended to marry Ms. Christiansen. Through inadvertence, he failed to include as a term of the will the customary declaration contemplated by s. 15(a) of the Wills Act, R.S.B.C. 1996, c. 489, that the will was made in contemplation of the marriage. Absent such a declaration, a will is revoked pursuant to s. 14(1 )(a) of the Wills Act.

[25] After a comprehensive analysis of the origin and purpose of the Saskatchewan equivalent to s. 15 of the Wills Act, the English Wills Act, 1837 (U.K.) 7 Will. 4 & 1 Vic, c. 26, and An Act to amend the Wills Act of Ontario, S.0.1897, c. 20, the court considered whether the statute required a “formal declaration” or statement of intention. After considering the modern approach to statutory interpretation described by Ruth Sullivan in Dreidger on the Construction of Statutes, 3d. ed. (Markham, Ont: Butterworths Canada Ltd., 1994) and the ordinary dictionary meaning of the word “declaration”, the court held at para. 26:

[26] Thus, on a plain reading of the section and giving the word its ordinary meaning, a declaration need not be a formal statement. In my opinion, the ordinary meaning of the word is that there be a written statement in the will referable to a subsequent marriage.

[26] The court then addressed the question whether the will as a whole, and not merely some gift in it, must be made in contemplation of the particular marriage to be celebrated, adopting Re Coleman, [1975] 1 All E.R. 675 at 680. The court concluded that the whole will, not “some substantial part of it”, must be made in contemplation of the marriage.

[27] I respectfully adopt those interpretations.

[28] The question then in the case at bar is, whether the words in the will “my spouse

KAREN CHRISTIANSEN, and the creation, by words, of a spousal trust in favour of Ms. Christiansen and the appointment of “Karen” as the trustee of the spousal trust fund amount to sufficient declaration that the will is made in contemplation of the subsequent marriage.

[29] The respondent submits that in accordance with the holding of the chambers judge, the words do not amount to sufficient declaration, absent which the Court may not consider extrinsic evidence.

[30] With respect, that position does not accord with established authority. Again, the law on this point was usefully summarized in Ratzlaffat paras. 35-36:

[35] I adopt the position of Lord Cairns in Charter v. Charter, as did Idington J. in Marks v. Marks, that the court has a right to ascertain all the facts which were known to the testator at the time he made the will and thus to place itself in the testator’s position in order to ascertain the meaning and application of the language he uses. A probate judge is entitled to take into account the surrounding circumstances which existed at the time of the execution of the will in order to determine the proper construction of the will. The extrinsic evidence can include utterances and non-testamentary writings as well as direct evidence.

[36] That position is consistent with the approach in Re Foss. The testator, Foss, made his will in 1956 some eight days before his marriage. He stated in his own handwriting on a printed will form “I give devise and bequeath all my personal belongings money, shares in companys, insurance policys and property to my wife (Mrs. P. Foss)”. The will was duly executed. It was common knowledge that Mr. Foss was to be married in a few days. He died in 1972 leaving a widow and three infant children. Helsham J. considered whether extrinsic evidence would be admissible in these terms:

Whilst it is correct to say that the fact that a marriage was contemplated must appear by some expression in the will itself, it is also correct to say that whether the will contains such an expression must depend upon the construction of the will. If the will clearly contains such an expression, then there is no problem. If it does not, but there are some words which may or may not amount to such expression, then the will must be construed so as to find its true meaning. In order to ascertain the meaning of the words used by a testator it is permissible to construe the document in the light of the surrounding circumstances. This is the law in relation to ambiguities of language used in a testamentary document, and applies no less to the aspect of whether a testator has expressed the fact that his marriage was contemplated as to any other. For limited purposes the Probate Court has always been a court of construction, one purpose being to ascertain whether a will should be admitted to Probate: In the Estate ofFawcett (Dec’cf.) (3). This is such a case.

He concluded:
The problem arises in relation to evidence. When it is necessary to decide whether a will has not been revoked by a subsequent marriage, because it is expressed to be made in contemplation of a marriage, is it permissible to admit evidence of the circumstances that existed at the time the will was made – to read what the testator said in his will bearing in mind the situation that pertained at the time, or is the court confined the terms of the will itself in order to ascertain whether it is expressed to be made in contemplation of marriage?

There can be no dispute that evidence is admissible as to the marital state of the deceased and any interested party at the date the will was made, and of the subsequent marriage of the deceased.

That brings up the matter for decision. But can the court consider any other facts, as for example, that the deceased was engaged to be married, whether or not he was living with a person whom he describes in his will as his wife and whom he subsequently married, what time elapsed between will and marriage, and so on? On this matter of evidence views has differed.

After referring to Charter v. Charter, supra, he continued:
In my opinion where a question arises as to whether an expression used by a testator in a will is sufficient to prevent revocation, by subsequent marriage, of that will by reason of the operation of s. 15(2) of the Wills, Probate and Administration Act, then extrinsic evidence of surrounding circumstances, in addition to the fact and date of marriage, will be admissible in order to answer the question.

This approach is also consistent with what this Court stated in Haidl v. Sacher.

[Footnotes omitted.]

[31] The court concluded, at para. 41:

[41] Thus, evidence of the surrounding circumstances is admissible to construe the relevant clause in the will for the purpose of deciding whether it should be admitted to probate. The “surrounding circumstances” are admissible.

[32] Similarly, in Layer v. Burns Philp Trustee Co. Ltd. and others (1986), 6 N.S.W.L.R. 60 (C.A.), Mahoney J.A. held at 65:
Where it is clear that a word or term used has, amongst its accepted or dictionary meanings, a number of different meanings, extrinsic evidence is admissible to assist the court in determining which of such meanings the word or term bears in the particular case.

[33] The Shorter Oxford English Dictionary, 6th ed. (Toronto: Oxford University Press, 2007), notes the origin of the word “spouse” from the Latin sponsus bridegroom, sponsa bride, and defines “spouse” as a “married person; a person’s lawfully married husband or wife”.

[34] Similarly, in Taylor v. Rossu, 1998 ABCA 193,161 D.L.R. (4th) 266 at para. 92, the court held that “The ordinary meaning of the word “spouse” is a person who is joined in lawful marriage to another person.”

[35] On that basis, there is arguably no ambiguity and the term used in the will can be said to refer to Mr. MacLean’s wife whom he was yet to marry, Ms. Christiansen.

[36] By contrast, the chambers judge found no ambiguity because, at the time in

Mr. MacLean and Ms. Christiansen were living in a “common law” (or “spouse-like”) relationship. There is authority to support that conclusion. For instance, in Ferguson v. Armbrust, 2000 SKQB 219, 187 D.L.R. (4th) 367 at para. 41, the court found that “‘spouse’ may reasonably be interpreted as being limited to legally married spouses or as including both legally married spouses and common law spouses as the context requires”.

[37] If one accepts that the word “spouse” may refer to either a legally married person or a person living in a marriage-like relationship, then the use of the word in the circumstances at bar was ambiguous. Extrinsic evidence is thus admissible to determine the meaning in this case.

[38] The circumstances of the making of the will in this case were summarized in the appellant’s factum:
(a) The Will was made after joint tax and estate planning with Ms. Christiansen.
(b) Both Mr. MacLean and Ms. Christiansen were sophisticated financial professionals.
(c) The Will was executed after the wedding date and arrangements had been set.
(d) The solicitor preparing the Will knew of the wedding; was invited to and attended the wedding reception and advised Mr. MacLean and Ms. Christiansen on honeymoon travel arrangements to Italy.
(e) [The Will] was prepared at a time when Mr. MacLean and Ms. Christiansen were living in a stable, long-term, common-law relationship.
(f) The Will provides for benefits to Ms. Christiansen under a spousal trust.
(g) The Will speaks of Ms. Christiansen as his spouse.
(h) The Will addresses and balances the needs of Ms. Christiansen and of Mr. MacLean’s children.
(i) As their wedding date approached in May 2007, Mr. MacLean told Ms. Christiansen that he intended to have a Will and Power of Attorney in place before they were legally married.

[39] When one examines the terms of the will and the circumstances in which it was prepared, there can be no doubt that Mr. MacLean intended that the will would survive his marriage to Ms. Christiansen and provide for her for the remainder of her life. On her death, the one-half of the residue of the spousal trust then remaining would form part of the residue for the benefit of the testator’s children. This was obviously a carefully constructed estate plan. The extrinsic evidence overwhelmingly supports the construction that “spouse” meant Mr. MacLean’s legal spouse, to whom he was, at the date of making the will, not married but was clearly contemplating marrying.

[40] Further, the whole will was drafted in a manner in which it cannot be said that only the gift to Ms. Christiansen was contemplated. The spousal trust and the children’s fund planned as an integral part of a whole. In my opinion, the whole will was, when one examines the extrinsic evidence, expressed to be made in contemplation of the impending marriage to Ms. Christiansen.

[41] As the Supreme Court of Canada stated in Marks v. Marks (1908), 40 S.C.R. 210 at 212:

In other words, it is claimed that there cannot be any one who can answer to that description “my wife” except the one person who may in law be decided to be such.

I do not think the law so binds us.

Unless it does, I do not see why we should pervert the most obvious intention of this testator. I think we are bound to read his language in light of all the circumstances that surrounded, and were known to him when he used it and give effect to the intention it discloses when so read.

[42] This construction of the will further satisfies the legal presumption against an interpretation of a will that would create an intestacy. Thus, in Re Harrison; Turner v. Hellard (1885), 30 Ch. D. 390 at 393-394 (C.A.), Lord Esher, for the Court, held:

… when a testator has executed a will in solemn form you must assume that he did not intend to make it a solemn farce – that he did not intend to die intestate when he has gone through the form of making a will. You ought, if possible, to read the will so as to lead to a testacy, not an intestacy. This is a golden rule.

[43] It follows that I would find that the references to “spouse” in the will and the extrinsic evidence establish that Mr. MacLean’s will was made in contemplation of his marriage to Ms. Christiansen. I would therefore order that the will be admitted to probate.

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Where There Is a Cult, There Is Undue Influence

Undue Influence and Cults

In recent years there have been a rash of news stories about people who have escaped from various cults, sects, communes or other extremely private organizations ,such as Scientology.

Today’s news brings the story of a Marxist commune in South London that is being investigated for slavery and other such related charges. It is the family of Sian Davies who is pursuing the matter since Sian more or less dropped out of society in the mid-1970s when she joined the Marxist commune.

The family understood that she had disappeared, until the police informed them that she had died in 1997 after apparently falling from a window in the groups house in South London.

The family is apparently pursuing the matter on the basis that Ms. Davies was psychologically controlled through political indoctrination.

The Marxist commune is typical of a large number of groups that have sprung up in our society, throughout the world, that are somewhat similar in the way that they originate, their power structure, and their governance.

Some cults exercise extraordinary control over their members lives and use thought reform process, diet and intimidation to influence and control its members..

Another common denominator is that the leader of the cult your commune is often depicted as having supernatural powers that causes members of the group to subject themselves to the leaders everywhere and desire and profit.

Many of us remember the commune in Oregon in the late 1970s, where the “ Bagwan” leader had approximately 66 Rolls Royces that he drove around in, while the members of the cult worked extremely hard for very little, and had sexual relations with their leader when he requested.

The purpose of this article is to state that in legal terms, members of the cult who were under the extreme influence of a leader, to the extent that the leader has mind control over his or her subjects, is classic undue influence.

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The Doctrine of Ademption By Conversion

The doctrine of ademption by conversion — a rule of the law of wills whereby a specific bequest “adeems”, or fails, if at the testator’s death the specified property is not found among his or her assets — either because the testator has parted with it, or because the property has “ceased to conform to the description of it in the will”, or because the property has been wholly or partially destroyed. (J. MacKenzie, ed., Feeney’s Canadian Law of Wills (4th ed., loose-leaf, 2000) at §15.2.)

The doctrine applies as a matter of law, irrespective of the testator’s intentions in the matter, although his or her intentions are clearly relevant to the anterior question of whether the gift in question is a “specific” legacy (and therefore subject to ademption), or a general one (not subject to ademption). The doctrine is also subject to the qualification that even if the gift in question is a specific legacy, it may be saved in some circumstances if the property has changed “in name or form only”, and still forms part of the testator’s property at the date of death.

Being a specific legacy, the gift will be adeemed by conversion if the property has “ceased to exist as part of the testator’s property in his lifetime” (Jarman, at 1065) or has ceased to conform to the description in the will (Feeney, at §15.2).

Whether it was intended for the gift to be adeemed is not relevant: the doctrine applies “irrespective of the testator’s intentions.” (Hurzin v. Neumeyer Estate (1990) 69 D.L.R. (4th) 18 (B.C.C.A.), at 22; Jarman, at 1065

Ademption will not occur where the specific property in question has been changed “in name or form only” so that it “exists as substantially the same thing, although in a different shape.” (Halsbury, supra, vol. 50 at para. 394, citing Oakes v. Oakes (1852) 9 Hare 666 at 672, approved in In re Slater [1907] 1 Ch. 665 at 672 (C.A.).) Whether the change is one in name or form only is a question of fact: In re Jameson [1908] 2 Ch. Ill at 115; Feeney, at §15.27.

Predictably, a body of case-law has developed involving situations in which someone other than the testator has caused the change to occur — e.g., where corporate shares have been forcibly exchanged on an amalgamation or statutory reorganization (see In re Jameson, supra, In re Slater, supra, In re Faris [1911] 1 I.R. 165, In re Leeming [1912] 1 Ch. 828, Re Humphreys (1915) 60 Sol. Jo. 105, In re Kuypers [1925] Ch. 244, and Re Ogilvy (1966) 58 D.L.R. (2d) 385 (Ont. H.C.),

In most of these cases the gift was saved on the basis that the Court found that the change was one in form only.

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Legacies – General or Specific

Re Wood Estate 2004 BCCA 556, contains a good discussion on the differences between general and specific bequests, aka legacies.

There are generally two classes of legacies — specific and general.

Halsbury’s Laws of England (4th ed. 1998) describes the categories as follows:

A specific legacy must be of some thing or of some interest, legal or equitable, forming part of the testator’s estate; it must be a part as distinguished from the whole of his personal property or from the whole of the general residue of his personal estate; it must be identified by a sufficient description, and separated in favour of the particular legatee from the general mass of the testator’s personal estate. . . .

A general legacy may or may not be part of the testator’s property: it has no reference to the actual state of his property, and is a gift of something which, if the testator leaves sufficient assets, must be raised by his executors out of his general personal estate. Whether or not a particular thing forms part of the testator’s personal estate is a pure question of fact; so long as it is the testator’s at his death it is capable of being specifically bequeathed. Whether or not it has been separated from the general personal estate depends upon the true construction of the will. In the case of real estate a devise, whether of a specific property or by way of residue, is specific. [Vol. 17, paras. 1228-9; emphasis added.]
J.B. Clark and J.G.R. Martyn, the authors of Theobald on Wills (15th ed., 1993), explain the distinction in a similar way:
A general legacy is a legacy, not of any particular thing, but of something which is to be provided out of the testator’s general estate, for instance: “I give £100 to X”; or, “I give £1,000 3 per cent. War Loan to X.” The executors’ obligation is to provide the property given for the legatee and it is irrelevant whether it formed part of the testator’s assets at his death. On the other hand, a specific legacy is a gift of a severed or distinguished part of the testator’s property, thus showing an intention that the property shall pass to the legatee in specie. For instance: “I give my dwellinghouse, Blackacre, to X”; or “I give my silver teaspoons to X.” The severance must be done by the testator, not by some analysis in a court of equity. . . . A specific legacy does not abate until after the general legacies are exhausted, but it is liable to ademption by the testator in his lifetime. The court leans against holding legacies to be specific. [at 243-44; emphasis added.]

Accordingly, a gift of “my grandfather’s gold watch” or of “the shares of XYZ Ltd. now standing in my name” is a specific one, but a gift of “a gold watch” or of “$10,000 worth of shares of XYZ Ltd” is likely to be a general one which must be paid out of the testator’s personal estate if he or she does not own a gold watch or such shares at the date of death. (R. Jennings, ed., Jarman on Wills (8th ed., 1951), at 1037-38.)
[12] Although the third category, demonstrative legacies, was traditionally seen as a sub-category of general legacies (see Jarman, at 1043-44), more modern texts treat these as a kind of hybrid. As Clark and Martyn note, a demonstrative legacy

is by its nature a general legacy, usually pecuniary, directed to be satisfied primarily (but not solely) out of a specified fund or a specified part of the testator’s property. The authors give as an example a gift of “£100 to be raised out of the sale of my Surrey properties.” {Theobald, at 24 4-4 5.) A gift of this kind will not be adeemed even if the proceeds of the Surrey properties cease to exist or to be identifiable prior to the testator’s death. Feeney also notes that such legacies are:

. . . in the nature of a pecuniary and general legacy, except that the will indicates a particular fund out of which it is to be primarily paid. However, if the will shows that the legacy is to be paid out of a particular fund, and that fund only, it is then a specific legacy and is subject to ademption. [§15.8; emphasis added.]
[13] In the case at bar, of course, the gift was of “any cash or any stocks and bonds” held in the RBC account. It is not possible to say that a given amount was to be paid “primarily but not solely” out of the account. Arguably as well, the phrases “any cash” and “any stocks and bonds”, which {counsel agreed) may in this context be equated with “all cash and all stocks and bonds held at the date of my death”, indicate that the gift referred specifically to whatever was being held in the RBC account at the time of the testator’s death — again, not to something to be paid or transferred out of the account. (See Jarman, at 1053.) In my view, then, the gift in clause 3(a) (v) could not be said to be a demonstrative one. Rather, it was a specific legacy — a gift in specie of the actual contents of the account, identifiable not by sum or numbers of shares but only by the broker’s name (RBC) and account number mentioned in the will. Without these “identifiers”, one could not say how much cash or which stocks and bonds Mr. Wood intended to bequeath to his children.
[14] Being a specific legacy, the gift will be adeemed by conversion if the property has “ceased to exist as part of the testator’s property in his lifetime” (Jarman, at 1065) or has ceased to conform to the description in the will (Feeney, at §15.2). Applying this principle to the case at bar, it is clear that in transferring his cash, stocks and bonds from RBC account number 861-16199-1-0 in Vancouver to a different account at Midland in Nanaimo, Mr. Wood caused the subject-matter of the gift to cease to conform to the description of it in the will. Whether he intended for the gift to be adeemed is not relevant: the doctrine applies “irrespective of the testator’s intentions.” (Hurzln v. Neumeyer Estate (1990) 69 D.L.R. (4th) 18 (B.C.C.A.), at 22; Jarman, at 1065.) On this point, I agree with counsel for the appellant that to the extent the Chambers judge below may have considered evidence of the testator’s family situation and other “surrounding circumstances” to decide whether Mr. Wood intended the gift to fail, he was in error.

[15] As noted earlier, however, ademption will not occur where the specific property in question has been changed “in name or form only” so that it “exists as substantially the same thing, although in a different shape.” (Halsbury, supra, vol. 50 at para. 394, citing Oakes v. Oakes (1852) 9 Hare 666 at 672, approved in In re Slater [1907] 1 Ch. 665 at 672 (C.A.).) Whether the change is one in name or form only is a question of fact: In re Jameson [1908] 2 Ch. Ill at 115; Feeney, at §15.27.

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BC Court Rules Sperm Freezer at UBC Was Like a “Warehouse Rental”

Lam vs the University of British Columbia 2013BCSC 2094, involved a class-action suit brought by hundreds of sperm donors that had stored their sperm with the defendant University, and their sperm was damaged as a result of the sperm freezer malfunctioning.

At issue was whether the complicated contract signed by each donor prevented that donor from bringing court action against the University due to an exclusion clause of liability.

The court underwent a very detailed analysis and concluded that the sperm was property, and that it was analogous to goods being stored in a warehouse, and the law has been clear for many years that the warehouseman cannot escape liability by inserting such a clause in the contract.

Each sperm donor is seeking damages of between 20 and $100,000 each.

The court examined similar cases from various jurisdictions around the world and stated in part:

35. “The question as to whether sperm is property has been considered by a number of courts. In Yearworth, the Court of Appeal (Civil Division) considered a case with some similarity to the present action. The claimants were cancer patients who, before undergoing chemotherapy, provided sperm samples to the defendant hospital. The sperm were frozen and stored in liquid nitrogen but the samples thawed when the liquid nitrogen levels fell too low. The court rejected the hospital’s argument that the common law does not recognize a substance generated by the body as capable of being owned. It concluded the claimants owned the sperm and stated at para. 45:

In this jurisdiction developments in medical science now require a reanalysis of the common law’s treatment of and approach to the issue of ownership of parts or products of a living human body, whether for present purposes (viz. an action in negligence) or otherwise.

[36] In Yearworth, the court also concluded there was a gratuitous bailment of the sperm by the claimants, and that the hospital was liable to the claimants under the law of bailment.

[37] In Bazley, the Supreme Court of Queensland was asked to determine whether sperm stored by a hospital was property. The sperm was placed in storage when Mr. Bazley was diagnosed with cancer. After his death his wife sought an order preserving the sperm so that she could use it. The hospital took the position under national ethical guidelines that it was required to destroy the sperm as Mr. Bazely had not completed an instruction form transferring the right to use the sperm to his wife. Ms. Bazely argued that the sperm was property which was part of Mr. Bazley’s estate and that it passed to her under his will.

[38] After reviewing the relevant common law authority, including Yearworth and Palmer on Bailment, 3rd ed. (2009), the court concluded at para. 33:

The conclusion, both in law and in common sense, must be that the straws of sperm currently stored with the respondent are property, the ownership of which vested in the deceased while alive and in his personal representatives after his death. The relationship between the respondent and the deceased was one of bailor and bailee for reward because, so long as the fee was paid, and the contact maintained, the respondent agreed to store the straws.

[39] Two Canadian cases have considered whether sperm or frozen embryos are property. In C.C. v. A.W., 2005 ABQB 290, the court considered whether the respondent who had gifted sperm to the claimant for her to use for the conception of children could prevent her use of the embryos. The court found the respondent’s gift was unqualified and concluded at para. 21 that the fertilized embryos were the claimant’s property:

The remaining fertilized embryos remain her property. They are chattels that can be used as she sees fit. Mr. A.W. is not in a position to control or direct their use in any fashion. They shall be returned to Ms. C.C.. Conversely, as they are not Mr. A.W.’s property and he has no legal interest in them, he is not responsible for paying for their storage. That responsibility lies with Ms. C.C. who owns the embryos.

[40] In J.C.M. v. A.N.A., 2012 BCSC 584, Russell J. relied on the decision in C.C. for the proposition that stored sperm is property. She found the reasoning in Yearworthto be persuasive and stated at para. 58:

Further support for this position is found in the Yearworth case. This decision provided a much more detailed basis for a finding of sperm as property. As is acknowledged in that case, typically the common law did not allow for human beings, living or deceased, or their body parts and products to be considered property. This was, no doubt, for good reason. However, I agree with the court of appeal’s finding that medical science has advanced to a point where the common law requires rethinking of this point.

[41] These cases did not consider whether the term “property”, as used in legislation, could include sperm. They were concerned with whether the common law now regards stored sperm or embryos as property. That distinction is of no consequence to the analysis I must make in this case. Courts in a variety of jurisdictions have come to the conclusion that stored sperm is property. I agree with the conclusion arrived at in these cases. The frozen sperm at issue in this case is the property of the class members. The sperm was ejaculated, frozen and stored for the purpose of using it for conception. Applying the current state of the law of property to the definition in the WRAleads to a conclusion that frozen sperm is “goods”.

[42] The next step in the analysis is to ask if the purpose of the provisions in the WRA justifies the application of those provisions to the new definition of property. One of the purposes of the WRA was to codify the common law of bailment. Under the common law, a bailee is required to exercise the same care and diligence with respect to the bailed goods as a careful and vigilant person would exercise over his own similar goods in like circumstances. Sections 2(4) and 13 of the WRA effectively accomplish that. There is no reason why these provisions should not be applied to property that can be stored for reward which was not contemplated at the time the legislation was enacted. The purpose of requiring bailees to exercise adequate care and diligence applies equally to all kinds of property that can be stored for reward.

[43] The other step in the Cote analysis is to ask if the legislative provision in question is sufficiently general to permit its application to things unknown at the time of enactment. As I have already noted, the definition of goods is broad and inclusive. In other words, the provision is sufficiently general to apply to things unknown at the time of passage. There is no reason not to apply the provisions of the WRAto goods which fall within the current understanding of “all property other than things in action, money and land.”

[44] A textual analysis also requires consideration of the enactment as a whole. UBC argues that if “goods” includes sperm, an explicit or implicit conflict is created with other provisions in the WRA and the WLA. As I set out below, I conclude it is not necessary to consider provisions of the WLA when interpreting the provisions in the WRA. Moreover, there is no explicit or implicit conflict with other provisions in the WRAif “goods” includes sperm.

[45] The thrust of UBC’s argument is that the conflict arises because it is an offence to sell sperm. Pursuant to s. 7(1) of the Assisted Human Reproduction Act, it is an offence to “purchase or advertise for the purchase of sperm or ova from a donor or person acting on behalf of a donor.” If a warehouser could issue a negotiable receipt or a transferrable nonnegotiable receipt for frozen sperm, UBC argues this would mean that the sperm could be sold or transferred. This would be contrary to the Assisted Human Reproduction Actand public policy. I reject this submission.

[46] The focus by UBC on the ability of a warehouser of sperm to issue a negotiable receipt is misplaced. It is not an issue in this case because the Agreement does not purport to be negotiable. It is a nonnegotiable receipt. More importantly, the possibility of a warehouser issuing a negotiable receipt for the storage of sperm does not create the kind of conflict that requires “goods” to be interpreted not to include sperm. There is no requirement for a warehouser to issue negotiable receipts – the WRA provides for the issuance of nonnegotiable receipts. It also permits the inclusion of terms in a receipt so long as those terms are not contrary to provisions in the WRA: s. 2(4)(a). Further, if a receipt purports to be negotiable but another statute makes it an offence to sell the property in question, this would not create an irreconcilable conflict. It would only mean that the holder of the receipt would have to comply with other statutory provisions.

[47] The fact that a nonnegotiable receipt can be transferred similarly does not create a conflict or an absurdity. Rather, the holder of such a receipt could be subject to other laws or regulations. A warehouser who issues a receipt for a special class of goods would likely be aware of the existence of other statutory provisions, just as the Andrology Lab would be knowledgeable about laws relating to the transfer and use of sperm. It is for this reason that the Agreement contained specific provisions regarding delivery and use of the sperm.

[48] By analogy, the fact that it is an offence to transfer firearms except in accordance with law would not result in the conclusion that firearms are not “goods” or that the WRA does not apply to the storage of firearms. Rather, any sale or transfer of firearms would have to be made in accordance with other legislative provisions including the Criminal Code and the Firearms Act.

[49] The fact that sperm cannot be purchased does not prevent it from falling within the definition of “goods” in the WRA. It simply reflects the fact that sperm, like other classes of property, is subject to control or regulation by other statutory provisions. If sperm is property that can be stored and for which a receipt can be issued, then it falls within the definition of “goods” in the WRA.

[50] In summary, on a grammatical or textual analysis, the frozen sperm specimens covered by the Agreement fall within the definition of goods in the WRA. The definition is clear and unequivocal; “goods” is meant to include “all property” with three exceptions. Those exceptions do not apply to sperm and the inclusion of sperm in the definition is not inconsistent with other provisions in the WRA.

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30 Year Commonlaw Spouse Awarded $150,000 More Than His Half of the Assets

Griese v Syvret 2013 BCSC 1601 is a wills very action trial involving a couple that lived in a commonlaw relationship for 30 years before the death of the commonlaw spouse in 2010 at age 84.

Her major asset was the matrimonial home which they both purchased by contributing an equal amount, that was registered as tenants in common at her death. Her surviving spouse obtained his one half interest in the property worth $727,000, however the wife left her entire estate but for a dining room suite, to a child that she had never adopted, but had raised since the age of six years as her own. The child had been abandoned in an orphanage due to a birth defect. At the time of the trial, the young man was earning $60,000 a year and his wife was earning 30,000.

The issue before the court was what if anything more ought the surviving spouse receive from the deceased in recognition of her legal and moral obligations to him.

The court took some guidance from the statutory scheme of distribution as set out in the estate administration act, had the deceased died intestate.

After careful analysis, the legal discussion of the which follows hereafter, the court awarded the husband a lump sum of $150,000.

In Tataryn (at p. 821) McLachlin J. (as she then was), writing for the Court explained that together these societal norms provide a guide to what is “adequate, just and equitable” in the circumstances of the case.

[61] Also in Tataryn the Supreme Court of Canada recognized the importance of protecting testamentary autonomy, where (at pp. 823-4) McLachlin J. stated:

I add this. In many cases, there will be a number of ways of dividing the assets which are adequate, just and equitable. In other words, there will be a wide range of options, any of which might be considered appropriate in the circumstances. Provided that the testator has chosen an option within this range, the will should not be disturbed. Only where the testator has chosen an option which falls below his or her obligations as defined by reference to legal and moral norms, should the court make an order which achieves the justice the testator failed to achieve. In the absence of other evidence a will should be seen as reflecting the means chosen by the testator to meet his legitimate concerns and provide for an ordered administration and distribution of his estate in the best interests of the persons and institutions closest to him. It is the exercise by the testator of his freedom to dispose of his property and is to be interfered with not lightly but only in so far as the statute requires.

[62] The approach in Tataryn was carefully summarized and grounded in principles of family law by Martinson J. in Steernberg v. Steernberg, 2006 BCSC 1672 as follows (unattributed paragraphs refer to Tataryn):

[59] The language of the WVA confers a broad discretion on the Court, which allows judges to craft results that are just in the specific circumstances of the case and which are adequate, just and equitable in light of contemporary standards, values and expectations (at ¶15). The WVA addresses two main interests – the “adequate, just and equitable provision for the spouses and children of testators” and testamentary autonomy; testamentary autonomy must yield to what is “adequate, just and equitable.” (at ¶16-17).

[60] In looking at current societal norms, two sorts of norms are available and both must be addressed (at ¶28); together they provide a guide as to what is adequate, just and equitable in the circumstances. They are legal obligations and moral obligations.

[61] Legal obligations are “the obligations which the law would impose on a person during his or her life were the question of provision for the claimant to arise” (at ¶28). The legal obligations may be found in the Divorce Act, R.S.C. 1985, c. 3 (2d Supp.), family property legislation, and the law of unjust enrichment (at ¶30). When, as in this case, the parties are not separated or divorced at the time of death the law nonetheless imposes uncrystallized legal obligations that a testator owes to his or her spouse (at ¶28).

[62] Second, the Court should consider the testator’s moral obligations to his or her spouse and children, in light of “society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards” (at ¶28). With respect to the moral obligation to a spouse, the Court concluded that most people would agree that although the law may not require a supporting spouse to make provision for a dependent spouse after death, a strong moral obligation to do so exists if the size of the estate permits. The moral obligation is broader than the legal obligation and is assessed at the date of death.

[63] The moral duty is customized to each specific claimant. The test in determining whether a testator spouse has breached his or her moral duty is whether, as a just husband or wife he or she properly considered the situation of his or her spouse and an appropriate standard of living for that person: Holland v. Holland (1995), 9 E.T.R. (2nd) 119 (B.C.S.C.).

[64] The moral claim of independent adult children is more tenuous than the moral claim of spouses. But if the size of the estate permits, and in the absence of circumstances negating the existence of such an obligation, some provision for adult independent children should be made (at ¶31).

[65] Circumstances that will negate the moral obligation of the testator are “valid and rational” reasons for disinheritance. To constitute “valid and rational” reasons for disinheritance, the reason must be based on true facts and the reason must be logically connected to the act of disinheritance: Bell v. Roy Estate (1993), 75 B.C.L.R. (2d) 213 (B.C.C.A.); Clucas v. Clucas Estate (1999), 25 E.T.R. (2d) 175 (B.C.S.C.); Comeau v. Mawer Estate (1999), 25 E.T.R. (2d) 276 (B.C.S.C.); and Kelly v. Baker (1996), 15 E.T.R. (2d) 219 (B.C.C.A.).

[66] As between moral claims, some may be stronger than others. The Court must weigh the strength of each claim and assign to each its proper priority. In doing so, the Court should take into account the important changes resulting from the death of the testator. There is no longer any need to provide for the person who died and reasonable expectations following upon death may not be the same as in the event of a separation during lifetime. A will may provide a framework for the protection of the beneficiaries and future generations and the carrying out of legitimate social purposes. Any moral duty should be assessed in light of the person who dies’ legitimate concerns which, where the assets of the estate permit, may go beyond providing for the surviving spouse and children: Tataryn at ¶32.

[67] The test of what is “adequate and proper maintenance and support” as referred to in s. 2 of the WVAis an objective test. The fact that the testator was of the view that he or she adequately and properly provided for the disinherited beneficiary is not relevant if an objective analysis indicates that the testator was not acting in accordance with society’s reasonable expectations of what a judicious parent would do in the circumstances by reference to contemporary community standards: Tataryn; Walker v. McDermott, [1930] S.C.R. 44; Price v. Lypchuk Estate (1987), 11 B.C.L.R. (2d) 371 (C.A.); Clucas, above; and Dalziel v. Bradford et al.(1985), 62 B.C.L.R. 215 (B.C.S.C.).

[68] When possible, all claims should be met. However, if an estate is not large enough to accommodate both the testator’s legal and moral duties, then the legal duties should take priority (at ¶38).

[69] In many cases there will be a number of ways of dividing the assets which are adequate, just and equitable. In other words, there will be a wide range of options, any of which might be considered appropriate in the circumstances. Provided that the testator has chosen an option within this range, the will should not be disturbed. Only where the testator has chosen an option which falls below his or her obligations as defined by reference to legal and moral norms, should the Court make an order which achieves the justice the testator failed to achieve. In the absence of other evidence a will should be seen as reflecting the means chosen by the testator to meet his legitimate concerns and provide for an ordered administration and distribution of his estate in the best interests of the persons and institutions closest to him. It is the exercise by the testator of his freedom to dispose of his property and is to be interfered with not lightly but only in so far as the statute requires (at ¶33).

[63] About fifteen years after Tataryn the British Columbia Court of Appeal decided Picketts v. Hall (Estate), 2009 BCCA 329. In Picketts, Mr. Justice Low, writing for the Court, addressed the issue of the legal and moral duty owed by a testator to a common law spouse, and whether different considerations apply to a common law spouse than to a married spouse in an application to vary a will.

[64] The facts in Pickettswere that Mr. Hall and Ms. Picketts had lived together for 21 years as though they were a married couple. On Mr. Hall’s death, Ms. Picketts was 75 years of age. He left two adult sons, and an estate worth $18,000,000.

[65] Under his will, Mr. Hall left Ms. Picketts the condominium they had been living in, and $2,000 per month for her life. The Court of Appeal awarded Ms. Picketts $5,500,000, an amount close to one-third of the value of the estate, which was the amount she would have received under the provisions of the EAA.

[66] Low J.A. dealt with Mr. Hall’s moral obligation to Ms. Picketts and the application of the EAA, as follows:

[54] Although McLachlin J. in Tataryn did not discuss the Estate Administration Act, R.S.B.C. 1996, c. 122, or its applicable predecessor, under the topic of legal obligations, I think that statute bears mentioning at this point. The provisions in the statute as to intestacy succession create a default succession in law if a person should die without a will. Section 85 states that, on an intestacy in which there is a surviving spouse and a surviving child or surviving children, the spouse is entitled to the first $65,000 of the estate and half of the residue if there is one child surviving, and one-third of the estate if there is more than one child surviving.

[55] In the unlikely event that Mr. Hall had died intestate, Ms. Picketts would have received one-third of the entire estate. This is because the definition of “common law spouse” in the Estate Administration Act was amended by the Definition of Spouse Amendment Act, S.B.C. 1999, c. 29, to mean, inter alia, “a person who has lived and cohabited with another person in a marriage-like relationship, including a marriage-like relationship between two persons of the same gender, for a period of at least 2 years immediately before the other person’s death”. This is essentially the same definition as the definition of “spouse” in the Wills Variation Act. The two definitions became law on the same date.

[56] Although the intestacy provisions of the Estate Administration Act do not directly affect the legal considerations under Tataryn, it is significant that the Legislature chose to amend both statutes at the same time. This can be seen as a dovetailing of the two statutes to reflect the social norms of the day and, to repeat the quote from Tataryn at p. 822, to “reflect a clear and unequivocal social expectation, expressed through society’s elected representatives…”

[67] In Rose v. Bloomfield, 2010 BCSC 315, it was argued unsuccessfully before Mr. Justice Cohen (in light of the above comments of Low J.A. with regard to the distribution scheme of EAA) that the provisions of the EAA with regards to intestacy ought not to be taken into consideration when assessing whether a testator’s provision for a spouse is “adequate, just and equitable”. Cohen J. concluded:

[49] It is not known whether the decision in Hecht v. Hecht Estate was cited to Low J.A. Regardless, I do not agree with the defendants’ interpretation of Low J.A.’s reasons. In my opinion, His Lordship clearly adopted the distribution scheme legislated under the EAA as a means by which to assess whether a testator’s provision for a spouse is “adequate, just and equitable”. Accordingly, I am satisfied that in the case at bar it is open for me to take guidance from the scheme of distribution set out in the EAA when determining whether the Will made adequate provision for the plaintiff, and in my consideration of an appropriate discretionary distribution of the deceased’s estate.

[68] In the present case, I take some guidance from the scheme of distribution set out in the EAA. Had Ms. Jacques died intestate, the defendant would not be entitled to a share of her estate under the EAA. He would not qualify as “issue” and by virtue of s. 83 of the EAA, the plaintiff as the deceased’s spouse would receive her entire estate. Pursuant to s. 85 of the EAA, in the event that the defendant had been adopted and the net value of the deceased’s estate exceeded $65,000, the plaintiff as spouse would receive the first $65,000 and the balance would be split in half between the plaintiff and the defendant.

[69] I also note that had the deceased not made the defendant a beneficiary of her estate, he would not be entitled to bring a claim pursuant to the WVA to challenge the Will. This is because the defendant is neither a natural nor an adopted child. An expanded definition of child is not permitted, for example to include foster children:Peri v. McCutcheon,2011 BCCA 401.

[70] Also of note are the comments of Low J.A. in Pickettsregarding competing claims to an estate as between adult independent children and a loyal spouse:

[60] Cases decided by this court since Tataryn are of limited assistance because the present case is unusual on its facts. I will, however, refer to one case.

[61] In Bridger v. Bridger Estate, 2006 BCCA 230, the testator’s estate was valued at about $311,000 and the trial judge varied the will that favoured three daughters from a first marriage over the testator’s second wife of 38 years. In writing for the majority to dismiss the appeal, Mackenzie J. A. said this:

[20] … Tataryn recognizes that there is no clear legal standard to judge moral claims and the test is more nebulous where the surviving spouse is not strictly speaking a dependent spouse and the children are all financially independent adults. While, as McLachlin J. observes in Tataryn, there may be a number of options for dividing assets by a testator which are adequate, just and equitable, I do not think they include a disposition that entirely prefers the moral claims of adult independent children to those of a loyal spouse who provided care for the testator over years of debilitating decline…

[62] It seems to me that it is also not a viable option for the court to approve a disposition that substantially prefers the moral claims of adult independent children to those of a long-term, caring and dedicated spouse.

[Emphasis added in Picketts]

[71] In deciding whether or not the deceased’s Will made adequate provision for the plaintiff, her long-term spouse, I find certain aspects of the evidence to be of particular note, namely:

o Apart from the Aldergrove property and the likelihood that the plaintiff provided some additional financial support to Ms. Jacques after she retired and he continued to work, fundamentally they kept their financial affairs separate;

o In purchasing their only residence together after about seven years of cohabitation, they purchased it as tenants in common as opposed to joint tenants;

o They both contributed approximately equally to the purchase of the Aldergrove property from their separate financial resources;

o Neither Ms. Jacques nor the plaintiff made provision for the other in their wills (with the exception of Ms. Jacques leaving the plaintiff the dining room set and her half interest in the Aldergrove property as an alternate beneficiary, if the bequest to the defendant failed);

o The deceased raised the defendant as her son from within six months of his birth and persevered in doing so after her husband died;

o The deceased had a close relationship with the plaintiff as her common law husband of 30 years as of the time of her death, and he provided considerable care and comfort to her in the last months of her life;

o The deceased also had a very close relationship with the defendant who was essentially her only child in all ways except that he was not adopted by her;

o The plaintiff contributed approximately $80,811 in terms of maintenance and repairs to the Aldergrove property; the deceased contributed an unrecorded amount likely to be less than $10,000;

o As the plaintiff has received payment for his half interest in the Aldergrove property he has already reaped the benefit of half of any such expenditures;

o The plaintiff is not in particular financial need at this time, and given his age is in generally good health and enjoying life; and

o The defendant is not in financial need as he is an adult person of independent means.

[72] In the present case when I analyze the legal and moral obligations of the testatrix to the plaintiff in the context of Tatarynand the jurisprudence that follows, I find that she did not make adequate provision for her common law spouse of 30 years. I assess her “uncrystallized” legal obligation to the plaintiff at the time of her death to have been modest spousal support. I note that his retirement income was approximately twice the amount of hers, so in practical terms, had the parties separated, the plaintiff likely would have been required to pay her a very modest amount of spousal support. Their “family assets” under the Family Relations Act, R.S.B.C. 1996, c. 128 would have been divided much as occurred upon her death.

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What Happens to Your Data After You Die?

Reprinted From Forbes Magazine.

When you die, you’ll leave behind a digital presence – dead data, or a graveyard in the cloud.

The only things certain in life are death and data. Data After You Die?

Every year, Facebook cheerfully suggests I reconnect with some friends on their birthdays. I’d certainly like to, but there’s a glaring complication: these particular friends are dead.

The grieving process being one of the most human of them all, it naturally dredges up all kinds of complex, contemplative thoughts. Loss transcends other divisions, real or imagined, because whether we want to think about death or not, it is something that affects us all.

Earlier this year, Cisco published its Visual Networking Index – estimating that by 2015, annual global IP traffic will pass the zettabyte threshold. Much of this represents the activities and movements of real, living people. Short of a global catastrophe, these imprints will remain online long after these people are dead.

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Historically, an executor of a will is entrusted to sort and delegate items of interest. With so many of our possessions and details of our personal lives now finding their home in the digital realm, ownership, moral, and sociological questions are raised: who does your digital life belong to, who should have access to it, and where does society go from here?

No matter how unpalatable, the subject of death is something businesses will have to wake up to and tackle head on, according to William Beresford, co-founder of data specialist Beyond Analysis.

“When you register for Facebook, how inclined are you to fill in a contact email for someone when you die?” he asks.

There are mechanisms in place for removing a dead user’s profile, but in Facebook’s case you will need to provide a birth and death certificate, and prove that you are the lawful representative of the deceased. Hardly a pleasant or high priority task.

“It’s a complex idea, and it’s not the sort of thing you think about when you’re living your digital life,” Beresford says. “There are interesting challenges: how do I filter my personal digital existence? I went online in ’92, hopefully when I die there will be 50 or 60 years worth of digital history. It’s a potential minefield.

“We’re going to have to find a way to consolidate our digital existence, which currently is completely fragmented. There’s going to have to be some way where you can collect that information in one place, or know that’s where you can access it – who does it come down to, and who would you rather have it?”

The dead have historically not had much of a right to privacy. But bridging the gulf between our digital and physical lives could change this, at least according to Gavin Llewellyn, partner at law firm Davenport Lyons.

“Increasingly, we are seeing companies encroaching on people’s rights of privacy,” Llewellyn says. “Google has imposed a contractual term into its Gmail service to enable it to scan emails in order to produce targeted advertising. It is doubtful that many users were aware of this when Google’s T&Cs were altered.

“While the letter of the law may be on Google’s side, privacy rights are a fundamental human right and should not be able to be waived without users being made aware of what is happening to their information,” Llewellyn says. “Greater notice should arguably be given of an intention to invade people’s privacy rights, and it shouldn’t matter whether those people are live or dead.”

Duncan White, co-founder of data exchange platform Handshake, believes the way data is treated in 2013 is illogical and almost criminal.

“Data brokerages take your data, sell it, and make money from it,” White says. “That’s crazy. It’s like saying I’ll take your car, sell it, profit from it – it’s theft, for want of a better word. People are taking assets that are rightfully yours and are making money out of it.”

Data is valuable, but the businesses that control it play a numbers game to retain their own value. For example, companies like Facebook and Twitter count on the sheer scale of the data they generate to appease the markets. “To suddenly take away half of their users would slash market value,” White says. “In essence, if for whatever reason people aren’t active, their data is useless, but they’re aggregating it all and monetizing it apropos.”

White compares the amount of dead data floating around the web to the man-made islands of trash that pollute our oceans.

“There must be vast tracts of unclaimed data just floating around, taking up exabytes and exabytes, that nobody is actually doing anything with,” White says. “Data is very cheap to collect, and the whole move to big data is around volume and collecting data from everywhere… The way big data is going, so much is generated it becomes value-less, and floats off into the sea.”

If data is going to waste now, then what are some possible applications for the future?

Former CTO of British Telecom and independent analyst Peter Cochrane is optimistic about the potential for dead-people’s data to provide us with valuable insights after they have left this world. ”Some are arguing because we don’t write letters anymore, we won’t know as much about people as we did in the past. I think we’ll know even more,” Cochrane says.

“Compare Stephen Hawking and Isaac Newton. Newton wrote lots of interesting letters and people wrote interesting letters to him,” Cochrane says. “Some of those survived and they form the basis of our understanding of him and his life. But if we look at Stephen Hawking, we’re going to have a legacy of all his emails, electronic copies of all the scientific papers he wrote, his Facebook account, and any other social media he had – so in actual fact we’ll have a much wider and deeper understanding of the man and his legacy.”

Cochrane asks me to stop and count how many transmitters I have around me. There are a lot.

“For me it’s over 18,” Cochrane says, going on to list not just his mobile phone, laptop or iPad, but his car, his car keys, Wi-Fi hubs, and the controllers for every electronic device in his home.

“There’s just a huge amount of stuff now that leaves a ‘slime trail’ of digital presence,” Cochrane says. “Wherever we go, we leave a slime trail. We inadvertently log on to Wi-Fi, Bluetooth, 3G, 4G, and this leaves an indelible record of where we’ve gone. What we do is recorded and saved. And so there is a huge amount of data about us.”

All of this data we leave behind – this ‘slime trail’ – brings up many more questions: why are Peter and I talking? Will we ever meet, and if so, where? Why? Who do we both know?

“That’s very interesting commercial information,” he says. And with the emergence of technologies like Google Glass and Microsoft’s Mylifebits, the world is progressing to a point where your entire day can be summed up and searchable in minutes. ”A digital slime trail is being established. We’re all leaving a vast database of who we were, what we did, how we contributed to society, what diseases we suffered – all of those things. And that is going to be mined in the future. No doubt about it.

Cochrane believes sci-fi intrigues such as talking to the dead, using advanced combinations of artificial intelligence and data gathering, could well be possible.

He cites discussions he had a “long time ago”, speaking with leading scientists about capturing their lectures, their work, and how it could be feasible for a virtual presence of the deceased to answer questions, based on what they knew, how they think, and in line with their life experiences. “That seems to me a fairly reasonable and tenable endpoint,” Cochrane says. “All the components for this exist, this is no scientific hypothesis, this is an engineering challenge.”

“I lost both my parents in fairly tragic situations, and my wife in an even worse situation. I often ponder what I’d do if I’d got them actually embedded in a machine – would I choose to talk to them? When you lose somebody, especially a parent or your wife, you tend on occasions to talk to them. They’re still with you. They never get older. Sometimes, you will talk to them. I just wonder where that will go. I can imagine it being incredibly comforting and upsetting at the same time. The technology to do this – the price will tumble, the availability will rocket, and you will be able to do this not just for the ‘special’ people in society, but for everybody, if you so wish. People will have a choice. I’m expecting this in my children’s lifetime.”

Visions of intelligent, post-death communication may be strikingly lofty. But developments in the modern world which we now take for granted would have seemed unimaginable just fifty years ago. In the nearer term, collating data on health could provide benefits to humanity as a whole.

Technologies like IBM Watson can cope with a vastly larger number of variables than people, and potentially make better judgment calls than humans in the case of medical analysis. Companies like 23AndMeare already focusing on genetic analysis, while Google-backed Calico made headlinesby taking on the ageing process itself. Just as organ donation can help further research now, so too will charting your life and, ultimately, your deathA lot of the information about the people who’ve died early will be gathered, and an analysis will be done to figure out if there was a common strand,” Cochrane says. “Why did they die early? What was it?”

“I can just imagine, in my children’s lifetime, there being a huge industry heading in this direction,” Cochrane says.

The unprecedented rise and rise of our digital lives, combined with our increasing reliance on the connected world, pose questions society will have to answer together. As our on- and offline presences converge, it is arguable we’re living in a transitional phase. Finding ourselves at the foot of a steep learning curve, there are debates to be had about just how we want our digital shadows to be used, who they are owned by, and what purposes they can serve, whether we are around to have that input or not.

Estate Planning Suspicious Circumstances Undue Influence wills Wills Issues wills variation Wills Variation Acts Wills Variation Claims Wills Void

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