Tag: Wills Issues

Due Execution In Wills

Yen Estate v Yen- Zimmerman   aka Hsia v Yen- Zimmerman, 2012 BCSC 1620 contains a long analysis of the law relating to the requirements for execution of the will, and focusing on the presumption of due  execution of the will when him him him him him the attesting witnesses who appear to have properly executed the will are no longer able to testify at court in support of the proof in solemn form application to prove the validity of the will.

The deceased daughter was murdered in 1972 leaving behind her two children.

The deceased made a will the following year and divided his estate equally between three surviving daughters and made no provision for the two grandchildren.

The executrix brought a court action to prove the deceased’s 1973 will in solemn form and to have it admitted into probate, and the court allowed same.

The court found that there were three signatures on the last page of the will purporting to be those of the deceased and two witnesses. Accordingly the will was signed in the manner required by section 4 of the wills act.

The problem arose that the signatures of one witness and the deceased were proven, while the second signature had not been proven and the signer’s identity was unknown.

The court applied the common law presumptions of due execution and found that in signing the impugned document, the deceased intended to make his last will as he signed the documents filed last will and testament in the presence of a lawyer.

It was open to the court to draw the inference that the second signor signed as a witness and did so in the presence of a lawyer and the deceased.

The court quoted the following extensive review of the law in this area:

Section 4 of the Wills Act sets out the requirements for execution of a will. It provides in part that:

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

1. at its end it is signed by the testator…,
2. the testator makes or acknowledges the signature in the presence of 2 or more attesting witnesses present at the same time, and
3. 2 or more of the attesting witnesses subscribe the will in the presence of the testator.

23.  The common-law principles applicable in these circumstances were summarized and explained in, among other cases, Re Laxer, [1963] 1 O.R. 343; [1963] O.J. No. 659 (CA). In that case, Schroeder J.A. began his analysis by noting at para. 25 (cited to [1963] O.J. N. 659) that:

The Courts have shown a decided tendency to lean towards an effectuation of the expressed wishes of persons if satisfied that they really are their testamentary wishes, and when a testamentary document appears to be regular on its face and apparently duly executed, the evidence as to some defect in execution must be clear, positive and reliable [citations omitted].

At paragraph 27, he wrote that “[i]t is well settled that if a will on the face of it appears to be duly executed the presumption is that all acts have been done rightly”. This presumption is a particular instance of the more general presumption or inference that Lindley L.J. explained in Harris v. Knight (1890), LR. 15 P.D.170 (C.A.), where at pp. 179-180 he wrote:

…The maxim, “Omnia praesumuntur rite esse acta” is an expression, in a short form, of a reasonable probability, and of the propriety in point of law of acting on such probability. The maxim expresses an inference which may reasonably be drawn when an intention to do some formal act is established; when the evidence is consistent with that intention having been carried into effect in a proper way; but when the actual observance of all due formalities can only be inferred as a matter of probability. The maxim is not wanted where such observance is proved, nor has it any place where such observance is disproved. The maxim only comes into operation where there is no proof one way or the other; but where it is more probable that what was intended to be done was done as it ought to have been done to render it valid; rather than that it was done in some other manner which would defeat the intention proved to exist, and would render what is proved to have been done of no effect…

It is a presumption or inference that is “stronger or weaker according to any material facts connected with the case” (Laxer at para. 32). The underlying purpose of the presumption, in the context of proving due execution of a testamentary instrument, was explained by Schroeder J.A. at para. 33:

The authorities supporting the application of the presumption favouring due execution of a testamentary instrument lay down a very sound and salutary principle, since a contrary rule would make the rights of devisees and legatees depend not only upon the honesty, but also upon the frail and slippery memory of witnesses. No man could be sure of dying testate, since the dishonesty or forgetfulness of a witness could frustrate all his precautions to comply with the requirements of the law.

]      Evidence of some defect in execution must be cleat, positive and reliable, where a testamentary document appears to have been properly executed. The maxim Omnia praesumuntur rite esse acta applies and all things are presumed to have been rightly and duly performed: Re Laxer…

He also cited with approval the decision of Dalziel v. Bradford, [1985] B.C.J. No. 2754 (S.C.), where McEachern C.J.S.C. (as he then was) wrote at para. 41:

[41]      Re Laxer, supra, particularly lays down the principle at p. 206 that apparent due execution is sufficient to cause the Court to presume that everything was done right. That authority also explains that the presumption of due execution is a salutary principle since a contrary rule would make the right of beneficiaries depend as much upon the honesty and reliability of witnesses as upon the language of the testamentary instrument. In addition, for some obscure reason, an attestation clause is said to be a significant factor supporting this presumption, and there is such a clause in this codicil.

Thus, in the absence of any credible evidence by the witnesses to the will, indeed \n the face of their evidence to the contrary, the court in Beniston Estate held the will was properly executed relying on the presumptions in Laxer.

[31]     In Beaudoin Estate v. Taylor, [1999] B.C.J. No. 770 (S.C.), the witnesses to a will testified that the deceased did not sign the will in their presence. Further, they could not recall if, when they signed the will, the deceased’s signature was on the document. The issue was whether the deceased had acknowledged his signature in the presence of the witnesses. At para. 11 Bumyeat J. wrote:

[11]      …Where there is a regular attestation clause, it can be presumed that the will was duly witnessed by a person who knew the requirements of the Wills Act. The court will not assume that a person has signed his or her name to the attestation knowing it to be untrue…

He then applied that presumption in the context of the other evidence and found that the will had been properly executed.

[32]     Six years later in Jung, Re Estate of Horace Lee, 2005 BCSC 1537, Burnyeat J. was faced with a somewhat different issue. He was asked to find that a will had been proven in solemn form. The witnesses to the will gave evidence that it was signed in accordance with the requirements of the Wills Act. The difficulty was that the deceased had signed in the midst of the attestation clause as opposed to where he should have signed. Burnyeat J. referred to Laxer and specifically adopted the following statement from para. 32 of that judgment:

[32]      Where the circumstances point to the fact that a testator intended a document to be his will and thought that he was complying with the statutory requirements as to execution the Court will presume that everything was right, so that where there is any doubt about the recollection of the attesting witnesses, or where for any reason it cannot be relied upon, and where upon the evidence viewed in its entirety it can fairly be  

concluded that the will ought to be held good, the Court may say that it is satisfied that the will was duly and properly executed.

Jung was appealed and Burnyeat J.’s decision was overturned but not on this point. When the matter came back for a second trial, Silverman J. relied on Laxer (2007 BCSC 1740). At paragraph 46, he cited it as support for the following proposition:

When probating wills, the court proceeds on the presumption that the will was properly executed, if it appears to be properly executed when it is presented to the court. This is a rebuttable presumption that may be defeated if, after considering all the evidence and relevant circumstances, it is probable that all the formalities of execution were not met. The presumption of valid execution can be stronger or weaker depending on any material facts connected with the case…

[33]    The defendants point out that Vout v. Hay is not mentioned in any of these cases, and they argue that, as a result, they are of no particular assistance. Rather than conclude that Vout v. Hay was simply overlooked by all involved in these cases, I think it more likely that it is not referred to because it is not helpful in deciding questions of due execution.

[34]    Finally, the underlying rationale for the presumptions remains as compelling now as it was 50 years ago when Laxer was decided or 100 years ago when Harris v. Knight was handed down.

[35]    In conclusion, I am satisfied that the presumptions or inferences summarized and explained in Laxer, and the cases cited therein, remain available in resolving issues of due attestation and proving knowledge of the content of testamentary instruments.

[36]    I turn now to the facts and the application of the law to those facts. As Lindley L.J. pointed out in Harris, the maxim omnia praesumuntur rite esse acta “expresses an inference which may reasonably be drawn when an intention to do some formal act is established; when the evidence is consistent with that intention having been carried into effect in a proper way; but when the actual observance of all due formalities can only be inferred as a matter of probability”. I am satisfied that the deceased, in signing the impugned document, intended to do a formal act, namely, make his last will. The evidence that supports that inference is that he signed a document styled “Last Will and Testament” and that he did so in the presence of a lawyer who, in all likelihood, drew the document.

[37]    There is a second presumption which may be a particular or specific instance of the more general maxim embodied in the Latin expression set out above. It arises from the presence of the attestation clause. It was explained in Wright v. Sanderson (1884), 9 P.D. 149:

…If the attesting witnesses were both dead, then, on proof of their handwriting, the codicil would, if there was no other evidence, be admitted to probate, not only the presumption omnia rite esse acta, but in consequence of the presumption that what was stated, in the

Die Without a Will?

My late mother was convinced that if you die without a will, it all goes to the government.

I don’t know where that notion came from, but she wasn’t the only person who believed that.

If a person dies without a will, their estate is distributed in accordance with British Columbia’s “intestacy” laws. A person who wishes to administer the estate must apply to a Court in British Columbia to obtain a “Grant of Letters of Administration.”

The provisions of the Estate Administration act provide for such occurrences, and the current formula ( about to change later this year at an unknown date) is as follows:

If you die without a will Intestacy laws prescribe that the estate will be distributed as follows, in the listed priority:

1. If there are no children and a spouse, the estate goes to the spouse.
2. If there is no spouse and only children, the estate is divided equally among the children. If a child predeceases the parent, but leaves children (for example, grandchildren of the deceased person), then the grandchildren inherit their parents’ share of the estate.
3. If there is a spouse and children, the spouse is entitled to:
   (a) the first $65,000
   (b) a life estate in the home
   (c) household contents
   (d) half of the residue if there is one child, or 1/3 of the residue if there is more than one child.
   The remainder is divided equally among the children.
4. If there is no spouse or children, the estate goes to the parent(s).
5. If there is no spouse, children or parents, then the estate is divided between brothers and sisters. If a brother or sister predeceases but leaves children (the nieces and nephews), then the nieces and nephews inherit their parents’ share of the estate.
6. Alternatively, the estate is divided between nieces and nephews.
7. Alternatively, the estate is divided between the next of kin of equal degree of blood relation

– See more at: http://www.disinherited.com/blog/who-gets-what-when-you-die-without-will#sthash.Ipuiz1ff.dpuf

Bentley v Anglican Synod of the Diocese of New Westminster 2009 BCSC 1608 is indicative of the type of litigation that can ensue between various charities that are or had previously been closely aligned.

Several churches in recent years have undergone bitter disputes amongst its congregation to do with issues such as same-sex marriage.

The elderly testatrix bequeathed property in Hong Kong worth approximately $2.2 million to “the building fund of the Church of the Good Shepherd”, which was her home church.

However due to the decision of the Bishop to authorize the right for blessing of same-sex relationships, several congregations left the diocese, including the named church.

The plaintiffs brought an application for an order for a cy-pres scheme for the proceeds from disposition of the property, and succeeded.

The court found that the bequest was to the parish, not the congregation.

The incorporating declaration of the parish stated that it was “Chinese community in Greater Vancouver Regional District”

The court found that the testatrix intended the proceeds to be applied to build the needs of the parish serving the Chinese community.

However all the churches with substantial Chinese congregations had left the diocese and affiliated with the Anglican Network in Canada.

Accordingly the court found that it would be unlikely there would be a need in the diocese for new building for the Chinese community.

Accordingly the court ordered a scheme for the funds to be held for the building needs of the Anglican Network in Canada congregation that best fulfilled the testatrix charitable intent.

The decision contained a good deal of discussion on the doctrine of cy-pres:

” The approach to determining a testator’s intention was recently set out in Re Johnston Estate, 2008 BCSC 1185 at para. 18, 42 E.T.R. (3d) 286:

When attempting to glean a testator’s intentions in the context of a possible charitable bequest, the law has taken a broad approach with a view to finding such an intention where the evidence supports it.  It is not a matter of asking what a reasonable person in the place of the testator would have meant, but rather attempting to discern what the specific testator meant when he or she made the bequest. The Will itself is the primary source of that intention, but it is not the only source. Regard may be had to the surrounding circumstances, and that is so whether on its face the Wll is ambiguous or not.

Cy- pres is a remedy used to save an existing trust that is otherwise impossible or impracticable to perform. Donovan W.M. Waters, ed., Waters’ Law of Trusts in Canada, 3rd ed. (Toronto: Thomson Carswell, 2005) at 773 describes the cy-pres doctrine in these terms:

It sometimes happens that when the donor’s instrument of gift takes effect, the charitable object or the required mode of achieving the object cannot be carried out. The court will then by order approve a scheme, or require a scheme to be drawn up, for the trust property to be applied to an object or mode of achieving the object which is as close as possible to that set out by the donor.  For the court to have this jurisdiction two things must be established; first, that it is impossible to carry out the object or mode of attainment, or, if it is indeed possible, that to carry out the object or mode would in the circumstances be impracticable. Second, it must be shown that the donor in making the gift had a general or overriding charitable intent. If both tests are satisfied, then the court as part of its inherent jurisdiction will, in its discretion, make the appropriate order for a cy­pres scheme.

[323]  A number of prerequisites to cy-pres jurisdiction can be drawn from the foregoing:

(1) the donor must have transferred property in trust for a particular charitable purpose or object;

(2) it must be impossible or impracticable to administer the trust according to that purpose or object; and

(3) the donor must have demonstrated a general or overriding charitable intent. Where these conditions are met, the court then has jurisdiction to order a scheme for the trust property that is as close as possible to that intended by the donor.

[324] An example of a case involving religious property in which the cy-pres doctrine was invoked is Parish of Christ Church v. Canada Permanent Trust Co. A testator left part of his estate in trust for a parish corporation. The trust income was permitted to be used for church repairs but the capital was only to be used for the purpose of constructing a new church, whenever that might occur. Parish members applied to vary the terms of the trust on the basis of the cy-pres doctrine. They argued that the existing historical building required extensive repairs and renovations, and they sought to be permitted to direct the funds to that purpose. They additionally submitted that even if the church were accidentally destroyed some time in the future, insurance proceeds would cover the cost of rebuilding.

[325]  Rogers J. held that the arguments advanced by the plaintiffs did not justify application of the cy-pres doctrine. He observed that though laudable, the plaintiffs’ present desire to preserve the old church did not bind future church officials who might hold a different view of the matter. He also considered irrelevant the fact that the church was adequately insured, as it could not be assumed that the policy would always be in force or cover every contingency. Ultimately, Rogers J. wrote, the Court had to concern itself with the wishes of the testator as to the disposition of the property, not the wishes of others; the testator’s intention in that case was clear.

[326]  In Re Lysaght, [1966] 1 Ch. 191 (Chancery Div.), is another example of the doctrine being invoked. The testatrix had bequeathed funds to the Royal College of Surgeons for scholarship purposes. A recipient had to be “of the male sex and the son of a duly qualified British born medical man … and any such student must be a British born subject and not of the Jewish or Roman Catholic faith”.   The Royal College declined to accept the bequest on those terms, stating that the exclusion of students of the Jewish and Roman Catholic faiths was “so invidious and so alien to the spirit of the college’s work as to make the gift inoperable in that form.” (It did not appear to object to the other restrictions.) The College was willing to accept the gift with that provision deleted.

[327] The Court held that the paramount intention of the testatrix was that the College be the trustee of an endowment fund. If the provision requiring religious discrimination was insisted upon, the College would disclaim the trust and thus defeat the testatrix’s paramount intention entirely. Performance of the trust was therefore impracticable. The Court ultimately ordered that the trust as set out in the will be amended by omitting the words “and not of the Jewish or Roman Catholic faith”. As the Court wrote at 207, “[t]he impracticability of giving effect to some ineffectual part of the testatrix’s intention cannot, in my judgment, be allowed to defeat her

Marriage Separation Agreement

Ward v. Ward et al, 2006 BCSC 448 is one of a few BC court decisions that hold that a marriage separation agreement is not a bar to a claim subsequently brought under the Wills Variation act by a surviving former spouse.

The rules applying to Wills Variation claims are different from the harsher divorce laws as per the Supreme Court of Canada’s decision in Hartshorne v Hartshorne (2004) SCJ  NO. 20 ( SCC)

The defendants,  Ward and David  Ward, are beneficiaries of their deceased father’s estate. Their father, David Forsyth Ward, divorced their mother and, in 1986, married the plaintiff, Shirley Ann Ward.

Two days before their wedding, David Forsyth Ward and Shirley Ann Ward signed a pre-nuptial agreement (the “marriage agreement”), clause 14 of which states:

14.      The Wife is not either during the Husband’s lifetime, or after his death, should he predecease her, save and except as may be expressly provided in a valid Will and Testament of the Husband, to take, claim,demand or receive any right in any property that he might own at his death, nor is she to demand, take or receive any dependant’s award or allowance as provided for by the Wills Variation Act, or similar legislation; AND SAVE as otherwise herein provided each party hereby forever waives, releases and relinquishes to the other and to the heirs, executors, administrators, devisees, legatees and assigns of the other all rights, interest or claims of inheritance and to a distributive share in the estate of the other (in the event of intestacy), either as widow, widower, heir, survivor, distributee, or next of kin in and to all of the estate of the other whether now owned or hereafter acquired.

David Forsyth Ward died in September 2004. By a will dated December 22, 2000, he left the entirety of his estate, with the exception of his pension benefits, to his two adult sons (the “will”).

In April 2005, the plaintiff commenced an action claiming, in part, under s. 2 of the Wills Variation Act, R.S.B.C. 1996, Chap. 490, for a declaration that the will fails to make adequate provision for her proper maintenance and support.

The court firstly reviewed some existing case law :

“In Boulangerv. Singh, [1984] B.C.J. No. 3163 (C.A.), the court upheld the decision of the trial judge that the separation agreement was not a bar to recovery under the Wills Variation Act. Without discounting in any way the evidentiary importance of the separation agreement, the court said this:

Thus, an agreement between parties may be perfectly suitable at the time it is made, and it may be treated as binding upon the parties during the lifetime of the testator. But, having regard to the scope and policy of the statute and the public interest, the moral duty of the testator may have to be reviewed in a wider context, and in the light of the circumstances existing at the date of the death of the testator.

Later, the court referred to the “facts of their marriage, separation arrangements and conduct after separation” as affecting the appellant’s moral claim upon the testator (at para. 29). The court reapplied the Boulangerlest in Wagner v. Wagner Estate, [1991] B.C.J. No. 3404 (C.A.). There, the court reaffirmed that the moral duty must be assessed as at the date of the death of the testator.”

  Finally, counsel referred to the trial and appellate court decisions in Chutter v. Chutter Estate. I need only refer to the latter, found at [2000] B.C.J. No. 653 (CA), in relation to the issue at hand, namely whether the agreement operates as an automatic bar. Mackenzie J A., for the court, stated:

The trial judge correctly, in my respectful view, did not consider the separation agreement to be an automatic bar to the appellant’s claim, but that it was a factor to be considered in weighing the merits of the appellant’s moral claim, (para. 9)

Hotchpot clause has been around since at least the 12th Century, although disinherited.com has seen fewer in more recent years than even 25 years ago.

The purpose of such a clause in a will is to equalize the benefits that beneficiaries have or will receive, as advances during the life of the testator, so as in the words of Re Cosier (1897) 1 Ch. 325 ( C.A.)” :

“What is the object of every hotchpot clause? It is simply to prevent a person to whom a testator has left a share of his estate, and who has been advanced in the testator’s lifetime, from obtaining, by the combined effect of the bequest and the advance, more of the testator’s property than he intended the legatee should have.”

Black’s Law Dictionary defines “hotchpot” as:

“the blending and mixing [of] property belonging to different persons, in order to divide it equally.

Anciently applied to the mixing and blending of lands given to one daughter in frank marriage, with those descending to her and her sisters in fee-simple, for the purpose of dividing the whole equally among them; without which the daughter who held in frank marriage could have no share in the lands in fee-simple. Hotchpot or the putting in hotchpot, is applied in modern law to throwing the amount of an advancement made to a particular child, in real or personal estate, into the common stock, for the purpose of a more equal division, or of equalizing the shares of all the children.”

Thus in order to achieve this equity, the testator might in his will refer to the fact that certain property :

1) has already been transferred and that it should be brought into account by hotchpot;

2) a debt owing at death is in turn converted into an advancement by way of a loan and brought into account by hotchpot

– See more at: http://www.disinherited.com/blog/what-does-hotchpot-clause-will-mean#sthash.g6kiB7FU.dpuf