Wills Variation -Abandoned Infant

abandoned childMcMain v Leblanc 2013 BCSC 891 involves a fact pattern that is all too frequent in wills variation cases-the abandoned infant  who subsequently finds himself or herself disinherited from the absconding parent, often under the pretext of lack of contact, or even estrangement, but rarely the deserter parent.

In 1969 the testator separated from his wife and two-year-old son, the plaintiff when they resided in England. The testator moved to Canada in 1972 and thereafter paid no child support whatsoever and had almost no contact at all with his son.

In fact he and his wife had initially fought over custody of the plaintiff, and the mother was granted same.

No one heard from him for some years until he showed up unannounced in 1975 asking to see the plaintiff. After that brief visit he was again not hurting again for another seven years when he once again turned up unexpectedly and had two brief visits. He then phoned again in 1989. The plaintiff contacted the testator by phone from time to time but the testator expressed no interest in seeing him.

 

The testator died in 2011 and the plaintiff only heard of his father’s death when he received a copy of his father’s 2005 will, which excluded the plaintiff on the following basis:

“I have had limited contact and have not seen him in over 20 years”

The estate consisted of $330,000 cash and was left solely to the testator’s niece. In addition the niece had received an RRSP of approximately $121,000 net of taxes, outside of the estate.

The court ordered the son $180,000 out of the estate holding that the testator could not justify avoiding his moral obligations to his only child in death, by resorting to his indifference to his parental responsibilities in life. The plaintiff had a strong moral claim to a share of his father’s estate.

 

The court had the following legal reasoning and comments :

In the  wills variation case of Graham v. Chalmers, 2010 BCCA 13, Kirkpatrick J.A. referred to the leading authority interpreting the Act, Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807 (S.C.C.), and said at paras. 29 and 30:

[29] Tataryn is the leading decision in this area of the law. McLachlin J. (as she then was), speaking for the Court, clarified the principles applicable to the Wills Variation Act. Tataryn continues as the governing authority. On an application to vary a will “the court must ask itself whether the will makes adequate provision and if not, order what is adequate, just and equitable. These are two sides of the same coin” (Tataryn at 814). “Adequate, just and equitable” is determined in the specific circumstances and in light of contemporary standards.

Against this consideration is balanced the principle of testamentary autonomy. However, testamentary autonomy must ultimately yield to what is “adequate, just and equitable”: Tataryn at 815-816.

[10] In Tataryn, supra, McLachlin J. clarified that what is “adequate, just and equitable” must be viewed in light of current societal norms, and wrote:

[28] … Furthermore, two sorts of norms are available and both must be addressed. The first 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. These might be described as legal obligations. The second type of norms are found in society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards. These might be called moral obligations, following the language traditionally used by the courts. Together, these two norms provide a guide to what is “adequate, just and equitable” in the circumstances of the case.

[11] In this wills variation case, the plaintiff was the testator’s only child. No other person was entitled to make a claim under the Act. The plaintiff did not advance legal obligations to support his claim. He relied, instead, on the moral obligations referred to in Tataryn.

[12] The defendant acknowledged that the circumstances under consideration here gave rise to a moral obligation in the testator respecting the plaintiff, but submitted that the testator’s written reasons for disinheriting the plaintiff were valid and rational, and that the plaintiff had failed to discharge the burden of establishing that those reasons were false or unwarranted. Accordingly the defendant submitted that the testator’s moral duty in respect of the plaintiff was negated: Bell v. Roy Estate (1993), 75 B.C.L.R. (2d) 213.

[13] The law requires only that the reasons should be valid, meaning based on fact, and rational, in the sense that there is a logical connection between them and the act of disinheritance: Kelly v. Baker, [1996] 82 B.C.A.C. 150.

[14] Therefore, as previously stated, the defendant submitted that the plaintiff’s claim should be dismissed. In the alternative, the defendant took the position that the plaintiff’s moral claim to provision from the estate, if not negated, was tenuous or weak, and the plaintiff should be entitled to a maximum of 1/3 of the net estate, or approximately $130,000.

[15] By contrast the plaintiff’s position is that the reasons for disinheritance were unwarranted and only superficially or partially true, and asked that all or substantially the all of the net estate should be awarded to him.

However, there was one aspect of his life in which the testator came up badly short, and that was in the discharge of his parental obligations to his son. Whatever the strengths of the testator’s character, and I am prepared to accept that there were many, he had this one flaw: having brought the plaintiff into the world, and having fought assertively to gain custody of him, after his departure from England, he gave him short shrift and ignored and neglected him for most of his life.

[83] Apart from a couple of short visits in England, and with the notable exception of the trip to Canada in 1983, during his lifetime the testator provided the plaintiff with precious little material or emotional support. He occasionally raised the plaintiff’s hopes of establishing a proper relationship him, and I am satisfied that this is precisely what the plaintiff wanted, but then disappointed him by reverting into himself and allowing lengthy periods to pass without any communication.

[84] No one will ever know for sure what motivated, or failed to motivate, the testator. His attitude towards his son is most peculiar, especially when it is considered that, during their brief and intermittent encounters with each other, it appears that the testator and plaintiff got on well.

[85] I have no idea why, after the successful 1983 visit, the silence between father and son should have resumed, or why the testator would not agree to have the plaintiff come and stay with him for a while in 1988. It is a mystery to me why the testator travelled to England in 1989 for his sister’s funeral without looking up the plaintiff. His failure to make the effort to meet the plaintiff in Vancouver in 1995 strikes me as most odd as well, and the excuses given, that he had slept in and that, in essence, the visit would be too brief to merit the expense of making the journey, strike me as being petty, self-centred and more than a little sad.

[86] The testator seems to have been tightly connected to his sisters and their offspring. He was married to his second wife Betta for many years. He was a caring and devoted dog owner. I conclude that he was capable of forming strong bonds with loved ones, and of commendable constancy in his relationships with others, human and canine alike. But for some reason that I simply cannot fathom he rejected and neglected his son.

[87] I conclude that the testator turned his back on the plaintiff from an early age. Such efforts as he made over the years to care for his son or provide him with material or emotional support were miniscule. Most of the effort to keep any relationship alive was made by the plaintiff. Apart from a couple of impromptu appearances on the plaintiff’s doorstep in England and the 1983 Canadian visit, the testator’s life-long indifference to his only son was almost total.

Although every case must be decided on its peculiar facts, and the facts at bar differ from those in Gray v. Nantel,supra, nevertheless I would respectfully adopt the spirit of the following observation of Donald J.A. as follows at para. 17 of the judgment:

[17] I cannot accept that a child so neglected for his first 18 years and then treated shabbily during a brief reconciliation can be said to forfeit the moral claim to a share in his father’s estate by abandoning any further effort to establish a relationship. The fault in this sad story lies with the father and, in my opinion, the onus to seek further reconciliation was on his shoulders. The testator gave the appellant virtually nothing in an emotional or material way; the will was his last opportunity to do right by his son.

[90] Here, too, the testator had one last opportunity to behave after the manner of a judicious parent and recognize his moral obligation to his son by means of his will. He failed in

What Constitutes a Marriage-Like Relationship?

The Criteria of a Marriage-Like Relationship

Campbell v Campbell 2011 BCSC 1491 is a family law, common-law relationship of approximately 5 years that again reviews the various criteria as to what constitutes a common-law marriage.

The parties cohabited unmarried for approximately February 1998 two spring 2002. The female worked the odd job, was primarily financially dependent on her male partner, and she spent most of her time with duties around the home including assisting all the children in the blended family from time to time. Her household activities occupied much of her time. Her husband worked at his job full-time work in a considerable number of hours per week.

One of the issues was that prior to getting married, the parties entered into a marriage agreement, After reconciling after approximately 1 years separation,the parties ultimately married in August 2005. The relationship continued on in much the same basis.

The court at paragraph 39 makes a clear statement that in the eyes of the law, spouses are individuals who are either married to one another or living in a marriage-like relationship. Marriage-like is not defined in the family relations act or in estate litigation estate law for that matter, and thus the meaning has largely been developed through case law.

The Law

( 40) The starting point with respect to what constitutes a marriage-like relationship is the Court of Appeal’s decision in Gostlin v. Kergin (1986), 3 B.C.L.R. (2d) 264 at 268,1 R.F.L. (3d) 448 [Gostlin], wherein the Court stated:

… If each partner had been asked, at any time during the relevant period of more than two years, whether, if their partner were to be suddenly disabled for life, would they consider themselves committed to life-long financial and moral support of that partner, and the answer of both of them would have been ‘Yes’, then they are living together as husband and wife. If the answer would have been ‘No1, then they may be living together, but not as husband and wife.

Of course, in the particular circumstances of any case, the answer to that question may prove elusive. If that is so, then other, more objective indicators may show the way. Did the couple refer to themselves, when talking to their friends, as husband and wife, or as spouses, or in some equivalent way that recognized a long-term commitment? Did they share the legal rights to their living accommodation? Did they share their property? Did they share their finances and their bank accounts? Did they share their vacations? In short, did they share their lives? And, perhaps most important of all, did one of them surrender financial independence and become economically dependent on the other, in accordance with a mutual arrangement?

[41] The subjective intention of the parties is not determinative. As suggested in Gostlin, if one party submits that it was not their intention to commence a marriage-like relationship at that particular time, his or her statement is not conclusive if objective factors exist that suggest that a marriage-like relationship existed (see also Takacs v. Gallo (1998), 157 D.L.R. (4th) 623 at para. 53,48 B.C.L.R. (3d) 265 (C.A.), leave to appeal to SCC ref d, [1998] S.C.C.A. No. 238).

[42] In Molodowich v. Penttinen, [1980] O.J. No. 1904,17 R.F.L. (2d) 376 (Dist. Ct), the Court delineated the type of objective factors that might point to the existence of a marriage-like relationship. Such factors include: their living and sleeping arrangements; their sexual and personal behaviour; how they divided domestic tasks; whether and how they interacted with their respective families and communities; whether they held themselves out as a “couple”; whether one spouse relied on the other for financial support; and their conduct and attitude towards children.

[43] There is no “checklist of characteristics” that must be present in order to qualify as a marriage or marriage-like relationship. As the Court held in Austin v. Goerz, 2007 BCCA 586 at para. 58,74 B.C.L.R. (4th) 39 [Austin]:

[58] It is understandable that the presence or absence of any particular factor cannot be determinative of whether a relationship is marriage-like. This is because equally there is no checklist of characteristics that will invariably be found in all marriages. In this regard I respectfully agree with the following from the judgment of Ryan-Froslie J. in Yakiwchuk v. Oaks, 2003 SKQB 124 [Yakhvchuk]:

[ 10] Spousal relationships are many and varied. Individuals in spousal relationships, whether they are married or not structure their relationships differently. In some relationships there is a complete blending of finances and property – in others, spouses keep their property and finances totally separate and in still others one spouse may totally control those aspects of the relationship with the other spouse having little or no knowledge or input. For some couples, sexual relations are very important – for others, that aspect may take a back seat to companionship. Some spouses do not share the same bed. There may be a variety of reasons for this such as health or personal choice. Some people are affectionate and demonstrative. They show their feelings for their “spouse” by holding hands, touching and kissing in public. Other individuals are not demonstrative and do not engage in public displays of affection. Some “spouses” do everything together – others do nothing together. Some “spouses” vacation together and some spend their holidays apart. Some “spouses” have children – others do not. It is this variation in the way human beings structure their relationships that make the determination of when a “spousal relationship” exists difficult to determine. With married couples, the relationship is easy to establish. The marriage ceremony is a public declaration of their commitment and intent. Relationships outside marriage are much more difficult to ascertain. Rarely is there any type of “public” declaration of intent. Often people begin cohabiting with little forethought or planning. Their motivation is often nothing more than wanting to “be together”. Some individuals have chosen to enter relationships outside marriage because they did not want the legal obligations imposed by that status. Some individuals have simply given no thought as to how their relationship would operate. Often the date when the cohabitation actually began is blurred because people “ease into” situations, spending more and more time together. Agreements between people verifying when their relationship began and how it will operate often do not exist.

[Italics emphasis in original; underline emphasis added.]

[44] Each relationship is unique, and as described by Dardi J. in J.J.G. v. K.M.A., 2009 BCSC 1056 at para. 34,71 R.F.L. (6th) 349 [J.J.G.], “in undertaking the analysis of what constitutes a marriage­like relationship, the court should take a broad view in order to reflect the diversity of spousal relationships that exist in modern society.” Further, the Court noted at para. 37:

[37] In summary, in undertaking an analysis of whether persons are living together as spouses, the court must examine the relationship as a whole and consider all the various objective criteria referred to in the authorities. The presence or absence of one particular factor will not be determinative. The court must recognize that each relationship is unique and, in applying a flexible approach within the context of the particular relationship, make a determination as to whether the parties intended to and were living in a marriage-like relationship.

Common Law Spouse of 21 Years Awarded %70 Estate

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The plaintiff and the deceased lived together in a common-law marriage like relationship for 21 years in a house owned by Rose. At the time of cohabitation, Rose was divorced and the deceased was separated. Rose had one child from a previous relationship.

 

At the time of the deceased death, Rose was retired and owned a house worth $1,240,000.

 

The deceased and his mother jointly owned a condominium and term deposits of some $69,000.

 

The defendants were the deceased sister and brother, nieces and nephews.

 

In generate 2007, one month prior to his death, Rose and the deceased made handwritten changes to the deceased will and had roses some type of the new will. The new will appointed rose as executor, made special bequests to the church and cancer foundation and gave the residue of the estate to Rose.

 

The new will was signed but not witnessed.

 

The new will had markings Rose said were made by him after the deceased died and not by the deceased to indicate she did not agree with parts of the will.

 

Rose asked a Notary Public to transfer the bank accounts into joint names.

 

The Notary Public attended the hospital to speak with the deceased, but did not prepare a new will as she said there was no spontaneous response from the deceased to requests to prepare a new will.

 

Rose brought court action to vary the will as he said the original will did not make adequate provision for his maintenance and support.

 

The action was allowed on the basis of the deceased had neither illegal nor moral obligation to the defendants, where she had both to Rose.

 

Rose’s net worth in relation to the deceased was not a factor. The variation of the will was adequate just and equitable to Rose and entirely appropriate in all the circumstances.

 

The court ordered that Rose receive 70% of the net value of the estate with the residue to be divided between the church and the other defendants.

 

THE LAW

The basis for bringing a claim to vary a will, is found in s. 2 of the Wills Variation Act, R.S.B.C. 1996, c. 490 (the “Act”):

2. Despite any law or statute to the contrary, if a testator dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the testator’s spouse or children, the court may, in its discretion, in an action by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the testator’s estate for the spouse or children.

[37] The plaintiff comes within the definition of “spouse” found in the Act:

“Spouse” means a person who

(a) is married to another person, or

(b) is living and cohabitating with another person in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, and has lived and cohabitated in that relationship for a period of at least 2 years.

[38] Counsel for the parties are on common ground that the test for whether a testator has made adequate provision for the maintenance and support of a spouse is the decision of the Supreme Court of Canada in Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807. In Tataryn, the Court found that two sets of societal norms must be addressed:

(1) legal obligations which the law would impose upon the testator during his or her lifetime; and

(2) moral obligations, which are society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards.

[39] At p. 821 of her reasons, McLachlin J. (as she then was) explained that together these societal norms provide a guide to what is “adequate, just and equitable” in the circumstances of the case.

[40] The Court also recognized the importance of protecting testamentary autonomy. At pp. 823-4 McLachlin J. held, as follows:

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.

[41] However, counsel are not on common ground about whether the recent decision in Picketts v. Hall (Estate), 2009 BCCA 329, 95 B.C.L.R. (4th) 83, has changed the law, or whether the outcome applies to the facts in the case at bar.

[42] In Picketts,the Court squarely 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.

[43] In that case, 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.

[44] 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 awarded Ms. Picketts $5,500,000, which was an amount close to one-third of the value of the estate, the amount she would have received under the provisions of the Estate Administration Act, R.S.B.C., 1996, c. 122 (the “EAA”).

[45] 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…”

Who Owns Your Digital Data After Death

Reprinted from the Economist July 18,2013

The Economist explains

Who owns your digital data after death ?

AFTER we die, our bodies are reduced to dust or ash, through burial or cremation. The fate of the digital corpuses we leave behind is rather more complicated. Before the advent of internet-hosted storage and services, your digital remains would have been accessible only to those with physical access to your computers, and only then if you had not applied encryption or password protection. But these days many people leave traces of their lives spread across the internet. Facebook knows who we love and hate, Google knows what we are interested in, Amazon knows what we buy, and so on. Specialist services may even store information about your genetic makeup (23andme) or archives of your files (Dropbox, CrashPlan, and many others). Who owns your data when you’re dead?

No one, not even a probate lawyer, will tell you that the process of transferring property by writing a will—or dealing with the absence of one—is a simple matter. But when it comes to financial assets, physical goods or property, thousands of years of tradition and many hundreds of years of legal precedent provide a basis on which to proceed in even the most esoteric cases. Digital assets that are stored on shared servers in the cloud, by contrast, are so new that legal systems have not yet caught up. Five American states have passed legislation to provide executors and other parties with a legal basis on which to assert authority over digital assets, and others are considering similar rules, but these laws vary widely in what they cover (the oldest of them covers only e-mail). There are no federal laws. The same is true in other countries. To complicate matters further, internet firms may be based in different countries from their users and may store data in servers in many countries, making it unclear whose laws would apply.

A paper by Maria Perrone in the journal CommLaw Conspectus explains how internet firms and digital service-providers sit in final judgment when it comes to deciding the fate of data belonging to the dead. Some firms cite an American law from 1986, the Stored Communications Act, as clearly prohibiting many forms of data handover to heirs or estates, even with verified written instructions asking for data to be released. The law provides no exemptions and involves hefty prison sentences for violators. But every company seems to have its own set of rules, procedures and terms of service. Some require a legal executor to make a request, while others honour requests from anyone who can prove a family connection or even a link to an online obituary. Facebook limits valid parties to requesting either that an account be removed or be turned into a memorial site. Twitter says bluntly that it can deactivate an account on presentation of several bits of information, but it is “unable to provide account access to anyone regardless of his or her relationship to the deceased.” Some firms delete accounts after inactivity; others refuse to allow renewals to keep the data alive; others won’t allow any changes, and leave a user’s data frozen in time, to the distress of those left behind. Several companies, such as Cirrus Legacy and LegacyLocker, offer digital safes for passwords and documents, releasing them only to authorised parties in the event of the owner’s death. But such firms state clearly that their contract is not legally binding in two regards: a judge or executor might compel them to release information to people other than those specific by the owner, and the passwords may be useless if they relate to an account that has been separately deactivated or shut down.

All this can be maddening for those dealing with grief. But there are signs of progress. In April, Google released the Inactive Account Manager, which in effect allows users of its service to set up a digital will. When enabled, it activates a dead-man’s switch, and if the account is not used for a specified period (between three and 18 months) an e-mail can be sent to a trusted contact, and there is an option to delete the account automatically. The trusted contact can then follow a procedure to gain access to the account. Other internet giants may follow suit and offer similar features. More broadly, America’s Uniform Law Commission, a non-partisan group that creates model legislation that is then adopted unchanged by many American states, has a “Fiduciary Access to Digital Assets” committee working on amendments to existing ULC laws that would give executors many of the same powers over digital assets that they have over financial and physical ones, while absolving service providers of any liability. These adjustments could be incorporated into some states’ laws as soon as 2015, though some federal fiddles may be required as well. In her paper, Ms Perrone notes that such uniformity would mean that “people would no longer have to rely on companies’ varying terms of use to determine how to manage digital assets.” When dealing with death, a little certainty can be a great comfort.

“Marriage Like Relationship” Upheld

The criteria for a marriage like relationship was upheld in the Duga case.marriage like relationship

The courts have been grappling with the often difficult to determine issue of what is a marriage like relationship for several years. Many of the earlier decisions were difficult to reconcile, especially when it became clear that a goodly number of parties have rather untraditional manners of living in a marriage like relationship.

The trial Judge found the following facts:

“The evidence of their continuing emotional commitment to each other [after they began living in separate houses in November 2003], their continuing mutual expectations of fidelity, their continuing presentation to friends and family as a couple, and their joint vacations all militate in favour of finding that the parties intended to continue their marriage-like relationship.

Between the fall of 2003 and September 2006, Mr. Dutra continued to provide economic support to Ms. Roach. He gave her cash from time to time and paid her telephone and hydro bills for the Page Two property. Throughout their relationship, Mr. Dutra permitted Ms. Roach to use his bank card to make purchases for herself, for her own children, and to purchase groceries and household items.

Before and after the plaintiff moved to the Page Two property, Ms. Roach and Mr. Dutra provided care to each other’s children. Mr. Dutra developed a close relationship with the plaintiff’s daughter, and became a father figure to her. Mr. Dutra’s children went camping with the plaintiff and her children.

Until September 2006, when they separated, the plaintiff and the defendant continued their marriage-like relationship. They saw themselves, and were seen by others, to be a couple who were engaged to be married. Mr. Dutra willingly provided financial support for Ms. Roach and she, with his consent, continued to be economically dependent upon him during the time they maintained separate residences. Their mutual expectations of fidelity continued after the acquisition of the Page Two property. They continued to share their lives, and intended to live in a marriage-like relationship. The plaintiff and the defendant were “spouses” within the meaning of subsection (b) of the definition of that term in s. C(1) of the FRA until they separated in mid-September 2006. “

The appeal court upheld the trial judge’s finding that the parties were in fact in a marriage like relationship for three years.

The Law:

Section 1(1) provides, in part:

1.(1) In this Act:

“spouse” means a person who

(a) …

(b) … lived with another person in a marriage-like relationship for a period of at least 2 years if the application under this Act is made within one year after they ceased to live together, and, for the purposes of this Act, the marriage-like relationship may be between persons of the same gender,

[12] In addressing the issue of whether the parties were spouses within the meaning of s. 1(1), the trial judge engaged in a detailed analysis of all aspects of the parties’ relationship. He canvassed numerous authorities, including Gostlin v. Kergin (1986), 1 R.F.L. (3d) 448, 3 B.C.L.R. (2d) 264 (C.A.); Takacs v. Gallo (1998), 157 D.L.R. (4th) 623, 48 B.C.L.R. (3d) 265 (C.A.), leave to appeal dismissed, [1998] S.C.C.A. No. 238; and Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.). He also considered authorities which dealt with situations in which the parties were found to have lived in a marriage-like relationship despite having lived separately for extended periods, including McColl v. Scott, 2001 BCSC 1109, and Roch v. Payne, [1999] B.C.J. No. 2739 (S.C.).

[13] As earlier stated, Mr. Dutra does not now dispute that he and Ms. Roach lived together in a marriage-like relationship for approximately three years from December 2000 to November 2003. The question is whether the nature of their relationship changed in November 2003 when the parties decided to live in separate residences, albeit five minutes apart. Mr. Dutra submits that when this move occurred, the relationship ceased being marriage-like. In the alternative, he submits that, even if the parties’ relationship could in other respects be regarded as marriage-like, Ms. Roach no longer qualified as a spouse within the meaning of s. 1(1) since the parties were no longer living together. In short, Mr. Dutra submits that, in order to qualify as a “spouse” within the meaning of s. 1(1), not only does the parties’ relationship have to be marriage-like, but the parties also have to be living together, or, at the very least, intending to live together.

[14] It is clear from the trial judge’s reasons that he did not accept that the mere fact that the parties began to live in separate residences in these circumstances changed the fundamental nature of their relationship from marriage-like to non-marriage-like. In that regard, he referred to Ms. Roach’s evidence that the intention of the parties in making this change was to strengthen their relationship, not to end it, or transform it into something fundamentally different than it was before.

[15] The trial judge set out many, but not all, of the factors upon which he relied in concluding that the parties were spouses after November 2003 at paras. 91-94 of his decision:

… The evidence of their continuing emotional commitment to each other [after they began living in separate houses in November 2003], their continuing mutual expectations of fidelity, their continuing presentation to friends and family as a couple, and their joint vacations all militate in favour of finding that the parties intended to continue their marriage-like relationship.

Between the fall of 2003 and September 2006, Mr. Dutra continued to provide economic support to Ms. Roach. He gave her cash from time to time and paid her telephone and hydro bills for the Page Two property. Throughout their relationship, Mr. Dutra permitted Ms. Roach to use his bank card to make purchases for herself, for her own children, and to purchase groceries and household items.

Before and after the plaintiff moved to the Page Two property, Ms. Roach and Mr. Dutra provided care to each other’s children. Mr. Dutra developed a close relationship with the plaintiff’s daughter, and became a father figure to her. Mr. Dutra’s children went camping with the plaintiff and her children.

Until September 2006, when they separated, the plaintiff and the defendant continued their marriage-like relationship. They saw themselves, and were seen by others, to be a couple who were engaged to be married. Mr. Dutra willingly provided financial support for Ms. Roach and she, with his consent, continued to be economically dependent upon him during the time they maintained separate residences. Their mutual expectations of fidelity continued after the acquisition of the Page Two property. They continued to share their lives, and intended to live in a marriage-like relationship. The plaintiff and the defendant were “spouses” within the meaning of subsection (b) of the definition of that term in s. 1(1) of the FRA until they separated in mid-September 2006.

[16] In my view, there is no basis for interfering with the trial judge’s conclusion that the parties were spouses within the meaning of s. 1(1) of the FRA ( Family Relations act). The question of whether parties are living in a marriage-like relationship is largely fact-driven and depends on the individual circumstances of each case. Here, I am satisfied that the trial judge properly applied the legal test set out in s. 1(1) of the FRAin relation to the unique facts before him. His findings of fact turned, in part, on findings of credibility. In that regard, the trial judge found that Mr. Dutra tended to minimize the extent of his commitment to the relationship. At para. 51 of his decision, the trial judge stated:

The defendant [Mr. Dutra] also asserted that the relationship only lasted for another three or four months after he gave Ms. Roach the two rings in the summer of 2004. I reject Mr. Dutra’s evidence on this point. I accept the testimony of the plaintiff that the parties continued their relationship after they purchased the Page Two property, and remained a couple, despite strains in the relationship from time to time, until September 2006. …

[17] I am not persuaded that the wording of s. 1(1) precludes a finding that these parties, who had been living in a marriage-like relationship for three years, cannot be found to be spouses within the meaning of that section simply because they began living in separate residences with a view to preserving their relationship. In adopting the trial judge’s conclusion in that respect, I agree with the following passage at paras. 18-19 of the reasons for judgment of Master Groves (as he then was) in McColl, where, in dealing with a similar argument, he stated:

… Clearly the words, “live together” must be read in the context of the entire section where it talks earlier about living with another person in a marriage-like relationship for a period of two years. To suggest that if parties are by reasons of, say, health, hospitalization, overseas attendance in the military or for general work purposes, as is the case here, temporarily separate that the “spousal definition clock”, for lack of a better term, then starts running, would result in numerous couples essentially ceasing to be spouses as a result of this temporary separation. The legislature in my view would have to make that intention clear.

If for all purposes mere physical separation ends a “marriage-like” relationship, clear wording to that effect would be required. The general purpose of the Family Relations Act is to recognize spouses who make a commitment to one another and to apportion support consequences of that commitment between them upon relationship breakdown. The legislation requires that they live in a marriage-like relationship of at least two years. To say that all marriage-like relationships involve continuous cohabitation, that a temporary interruption for health or work reasons in that continuous cohabitation ends a spousal relationship, is not in my view what the legislature intended.

[18] In that case, Master Groves found that the parties continued to view themselves as spouses and expected their relationship to continue as such despite their physical separation.

[19] In this case, however, Mr. Dutra says that there is no evidence that the parties separated with the intention of resuming cohabitation and that their choice to live in separate residences was not imposed by external circumstances such as illness or work-related demands.

[20] It is apparent, however, that the trial judge accepted that the parties decided to live in separate residences as a temporary measure to alleviate the tensions between Ms. Roach and Mr. Dutra’s teen-age daughter. It is implicit in his reasons that he accepted Ms. Roach’s evidence that the purpose of the move was to maintain the relationship, not to change its essential nature. In effect, it could be said that the parties continued to live together in a marriage-like relationship, but in two homes, rather than one. The trial judge found that they continued to relate to one another in much the same way as before; that is, as spouses.

[21] In effect, Mr. Dutra is asking this Court to retry the issue of whether the parties were spouses within the meaning of s. 1(1). In the absence of significant and identifiable error on the part of the trial judge, and I find none, there is no basis for doing so. There is no doubt that the facts of this case were unusual given the period that the parties lived under separate roofs before their relationship ended, but there were numerous indicia which supported the trial judge’s conclusion that they were, nonetheless, spouses within the meaning of s. 1(1) and that they regarded themselves as such until their relationship ended in September 2006. As Mr. Justice Frankel stated, in speaking for the Court in Austin v. Goerz, 2007 BCCA 586, at para. 58, “there is no checklist of characteristics that will invariably be found in all marriages.”

[22] Since I have concluded that the trial judge was correct in finding that the parties lived together in a marriage-like relationship within the meaning of s.1(1) of the FRA until September 2006, it follows that Ms. Roach brought her application for spousal support within the one year limitation period set forth in that section.

Charitable Gifts

Canadian tax laws are structured such that in the area of estate planning, donations if made to a registered charity, can give rise to tax credits that can be used to offset the income of the deceased.

Accordingly, if a deceased person leaves a charitable bequest in his or her will, then the tax department deems that the donation is made immediately on the deceased death in the year of the death, and that can be used in the immediately preceding year for taxation purposes.

Cash bequests are undoubtedly the most common form of charitable gift, however charities are more than willing to accept securities, real property, valuable art and other such assets.

 

It is of course extremely important to determine if the gift is in fact charitable or not.

From a tax perspective, only a gift to a registered charity or gift to another qualified donee gives rise to the tax benefits permitted by the income tax act.

 

Where charitable gift would otherwise fail, it possibly may be saved by way of the cy-pres doctrine where the court applies the gift only to charitable gifts of a similar nature. To be a registered charity, it must have as its exclusive purpose the pursuit of charitable ones and there are generally three types:

 

A charitable organization that actually carries out charitable act to the such as the Salvation Army;
2. A public foundation whose primary purpose is raising and dispersing funds to qualified domains, such as the United Way

 

A private foundation that does much the same as a public foundation but does not meet its requirements. Generally speaking charity must be public in nature and generally related to topics such as the relief of poverty, the advancement of education, the advancement of religion, and other purposes beneficial to the community.
Persons wishing to take advantage of estate planning such as charitable gifting should seek the services of a qualified estate solicitor. it is reported that 84% of Canadians aged 15 and older make regular charitable or nonprofit donations , usually to a variety of causes in which they believe personally, and for whom they feel compassion the most. in fact theResearch shows that only 13% of donors do so for income tax credits, whereas up to 94% of donors do it simply because it makes them feel better and they feel compassion for the recipients, and that they’re giving back to society.as was blogged last week, wherein it was reported that 50 Americans had contributed over $7 billion in charity in 2012, it would apit would appear that the bulk of charitable dollars comes from a very small six segment of the population . generally speaking the likelihood of giving tends to increase with age, increases with income, and is also associated with higher levels of education. women are more likely than men to make donations, whereas men are more likely to make larger average gifts . discussions with billionaires and their philanthropy indicates that their major motivation for giving was to give back to the community .

“Tenor of the Will”

Tenor of the willSometimes poorly drafted wills fail to expressly provide for the appointment of an executor.

The will however may direct a person to perform one or more duties that may be described as those of an executor, and accordingly the courts have developed the concept of an “executor according to the tenor of the will”, being a person who is not expressly named in the will as an executor, but who is directed to do those duties.

For example words such as “ to hold and administer all of my estate”, or “to carry out my wishes”, have been interpreted as amounting to the appointment of an executor according to the tenor of the will.

 

An executor can derive his or her office from a testamentary appointment only.

His or her appointment however may be either express or constructive. If no executor is expressly appointed in the will, yet the testator has re-recommended are committed the right and duties which pertain to any executor to one or more persons, and amounts to a constructive appointment and the person is referred to as an executor according to the tenor of the will.

 

 

In re McMillan 1925 CarswellSask 126, [1925] 3 W.W.R. 584

A will reading, “I bequeath all my estate to Mrs. Annie Stewart to be divided equally among Mrs. Stewart and Mrs. Stewart’s brothers and sister,” held not to constitute Mrs. Stewart an executrix according to the tenor of the will. Extrinsic evidence of the testatrix’s intention held inadmissible.

n In the Goods of Way [1901] P. 345, it was held that in each case it was “a question of construction of each particular document,” and in that particular case the word, “administer” appeared, and the petitioner was held to be the executor according to the tenor.

4 In In re Pryse, [1904] P. 301, 73 L.J.P. 84, the Court dealt largely with the question as to whether probate should be granted or letters of administration with the will annexed — a matter of practice. But in that case there was a direction to pay a debt, and one of the grounds put forward was that the applicant was the “universal heir,” and letters of administration with the will annexed were ordered to issue.

5 In In the Estate of MacKenzie [1909] P. 305, 26 T.L.R. 39, the headnote is:

In the absence of a direction to pay debts, the trustees were not executors according to the tenor.

6 In In the Goods of Lush (1887) 13 P.D. 20, 57 L.J.P. 23, directions to get in the estate of the testator and to distribute it in a certain manner after the payment of all funeral and other expenses, was held sufficient to constitute a trustee an executor according to the tenor.

7 In In the Goods of Jones, 2 Sw. & Tr. 155 (164 E.R. 952) the deceased left everything to his brothers in trust to be equally divided by him between himself and his surviving brothers. Held, not an executor according to the tenor. This case most resembles the one at bar.

8 In In the Goods of Wilkinson [1892] P. 227, A. and B. were appointed trustees of the will and testament, and the wish expressed that they should pay the funeral and other debts and it was held that they were thereby constituted executors according to the tenor.

9 In In the Goods of Adamson (1875) L.R. 3 P. & D. 253, the headnote reads:

In order to constitute one an executor according to the tenor of a will it must appear, on a reasonable construction thereof, that the testator intended that he should collect his assets, pay his debts and funeral expenses, and discharge the legacies contained in such will.

10 And in Halsbury, vol. 14, sec. 241, appears the following passage:

But where it cannot be gathered from the will that the person named as trustee is required to pay the debts of the testator, and generally to administer his estate, he is not entitled to probate.

In the case of In re Pamela Cook, 1902 P. 114 the plaintiff was appointed executor according to the tenor. In that case a person was designated to pay all the just debts. The judge describing that person as a trustee said:

“But I think that the more reasonable construction is that, inasmuch as under this will the debts which the trustee is directed to pay must of necessity be paid out of the estate, the effect of the will is to appoint the trustee executor according to the tenor. I therefore grant probate to him.”

Collapse of Gift: Saunders v Vautier

Termination of Trusts: Saunders v Vautier

The Rule of Saunders v Vautier

For various reasons parents often wish to delay any bequest to a child for many years, often to the point where the child would be a senior citizen before the child inherited. Very often these types of trusts provide that the child is maintained in a meagre sort of fashion with the income, and discretionary capital as the trustee in his or her absolute discretion considers necessary and advisable. If drafted correctly, these types of trusts can be upheld by the courts. However in a situation that recently came into our office, and is currently before the courts, disinherited.com is optimistic that the trust will be collapsed by reason of its failure to comply with the rule of Saunders v Vautier ( 1841) EWHC Ch J82. In our situation the deceased directed that the son’s share be held in trust until he attained the age of 65 years, and that he be paid the sum of $1000 per month until he attained the age of 65 years.

The trustee also had discretion to pay certain amounts of capital for education and advancement or benefit.. The important legal point was that the trust did not provide for a gift over to another beneficiary in the event that the offer said child failed to live to the age of 65 so that he could inherit out rightly. Furthermore, our client is over the age of majority and is legally mentally competent, and therefore according to the after said rule of law, our client is entitled to have the trust collapsed and be paid the entire inheritance right away.

The rule of Saunders v Vautier was briefly summarized by the Supreme Court of Canada in Buschau v. Rogers Communications Inc., 2006 SCC 28: 21 The common law rule of Saunders v Vautier can be concisely stated as allowing beneficiaries of a trust to depart from the settlor’s original intentions provided that they are of full legal capacity and are together entitled to all the rights of beneficial ownership in the trust property. More formally, the rule is stated as follows in UnderbillandHayton: Law of Trusts and Trustees (14th ed. 1987), at p. 628: If there is only one beneficiary, or if there are several (whether entitled concurrently or successively) and they are all of one mind, and he or they are not under any disability, the specific performance of the trust may be arrested, and the trust modified or extinguished by him or them without reference to the wishes of the settlor or trustees.

According to D.W.M. Waters, M.R. Gillen and L.D. Smith, eds., Waters Law of Trusts in Canada (3rd ed. 2005), at p. 1175, the rule was developed in the 19th century and originated as an implicit understanding of Chancery judges that the significance of property lay in the right of enjoyment. The idea was that, since the beneficiaries of a trust would eventually receive the property, they should decide how they intended to enjoy it. Waters et al., at 1177, set out three situations in which the rule of Saunders v. Vautier operates, the first of which is directly applicable to the Trust in this case: (1) A beneficiary who is adult, of sound mind, and entitled to the whole beneficial interest may require the trustees to transfer the trust property to him. For instance, to A $50,000 payable on his twenty-fifth birthday, the income to be payable to him annually until he attains that age.

In the first situation and the example given, A can call for the capital and any income withheld during minority on his coming of age, provided he is then of sound mind. As stated in Waters et al., at 117   There are two keys to a Saunders v. Vautier termination of the trust: first, that the beneficiary, or all the beneficiaries, when there is more than one, are fully capacitated, in the sense of being adult and of sound mind; second, that the person or persons seeking to terminate do indeed represent the full beneficial interests, actual and possible, in the trust property. Saunders v. Vautier has been applied in British Columbia to a trust set up by court order despite the Public Trustee’s argument that the objective of the structured settlement would be defeated if the beneficiary could determine the trust immediately on attaining the age of 19 years. As set out in Grieg v. National Trust Co. (1998), 20 E.T.R. (2d) 309 (B.C.S.C.):

The rule in Saunders v Vautier is founded on two principles,

The beneficiary is of full capacity.

The beneficiary has the full beneficial interest, both as to payments during the beneficiary’s lifetime and through the control of the reversionary interest. 8 Given both of these, there is no conflicting interest nor lack of capacity to a determination of the trust. In my view, the fact the trust was set up by court order gives it no special quality which would restrict the right to determine the trust in accordance with these principles. With the petitioner having attained majority, and having settled the reversionary interest in favour of her estate, she now has a right to determine the trust and receive the sum held on her behalf. Saunders v. Vautier was also applied in Frolek v. Frolek, [1986] B.C.J. No. 1869 (S.C.), at p. 7 (Q.L.), in a more difScult situation where the trust provided that the capital remaining in the trust fund on the death of the sole beneficiary of the trust would form part of the residue of her estate: I conclude on the authority of Re Johnston (supra), and Re Dawson (supra), and with the benefit of Professor Waters’ helpful discussion of the problem, that Winnifred is entitled to terminate the trust provision in her favour, and to call now for payment to her of the capital sum of $500,000.1 reach that conclusion because: no other person has any interest in the subject of the trust; the provision in Charlie’s will which makes any residue of the trust’s capital, part of the residue of Winnifred’s estate, gives her effective power to dispose of the remainder upon her death; and the trustee’s power to encroach on the capital for Winnifred’s benefit, and to treat her generously, makes it clear that the capital was to be used for her benefit during her life.

The Law of Equitable Set Off and Restitution

Restitution

The Law of Equitable Set Off and Restitution

Kessel Estate v Rikxoort 2012 BCSC 1270 involves a dispute arising from a complex financial transaction between the deceased and the defendants.

The parties had entered into a buy sell agreement which provided that the survivor of the parties would by the other shares in a relevant company. After the deceased sudden death, the deceased personal representatives brought action for damages arising from the buy sell agreement, alleging conversion of assets of a company, and sought a windup of the partnership.

The court allowed the remedy in part and reviewed various aspects of the law, including mistake of fact and set-off.

 

The following excerpt from the decision relates to the law of Equitable set off:

260 The Court of Appeal reviewed the law of set-off in Wilson v. Fotsch, 2010 BCCA 226(B.C. C.A.). It described law of equitable set off as being available provided that there is a relationship between the cross-obligations such that it would be unfair or inequitable to permit one to proceed without taking the opposing claim into account. The requirements for a claim of equitable set-off are as follows:

 

1. The party relying on a set-off must show some equitable ground for being protected against his adversary’s demands;

 

2. The equitable ground must go to the very root of the plaintiff’s claim before a set-off will be allowed;

 

3. A cross-claim must be so clearly connected with the demand of the plaintiff that it would be manifestly unjust to allow the plaintiff to enforce payment without taking into consideration the cross-claim;

 

4. The plaintiff’s claim and the cross-claim need not arise out of the same contract; and

 

5. Unliquidated claims are on the same footing as liquidated claims.

 

261 The textbook by S.M. Waddams, The Law of Damages, looseleaf (Toronto: Canada Law Book, 1991 at para 1.1770, says the following with respect to tortfeasors who use the proceeds of a conversion to pay down the plaintiff’s debts:

 

The preferable view, therefore, seems to be not to reduce recovery, on account of repayment of the debt, in any case in which the defendant could not, in an independent action, obtain restitution for the benefit conferred upon the plaintiff by repayment of the debt.

 

262 Mr. Justice Stinson of the Ontario Superior Court of Justice commented on the court’s unwillingness to allow recovery of benefits conferred by “officiousness” in J.B.C. Consulting Inc. v. Gray(2000), 47 O.R. (3d) 212(Ont. S.C.J.) at para. 19, as follows:

 

[19] Historically, juridical justification for retention of the benefit has been described as existing where a plaintiff acted officiously, or where the defendant has been the unwilling or unwitting recipient of benefits conferred by the plaintiff, that is, where the defendant’s affairs have been interfered with via the plaintiff’s payment without the defendant’s awareness or despite the defendant’s objections. The courts have allowed recovery where the plaintiff has conferred the benefit on the defendant as the result of a legal or practical compulsion, in the absence of officiousness.

 

263 Stinson J. allowed the set-off in J.B.C. Consulting Inc.. Although there was no compulsion on the plaintiff to confer the benefit, the defendant knew of the benefit he would receive before it was given. Although the defendant did not acquiesce, neither did he object.

 

264 Stinson J. also adopted the following passage from J.D. McCamus and P.D. Maddaugh, The Law of Restitution in Canada (Aurora: Canada Law Book, 1990) at 739-740, as an accurate statement of the modern approach to restitution:

 

In sum, the few unfortunate constraints that have developed in connection with the principle enunciated by Cockburn C.J. in Moule v. Garrett must perforce lose much of their relevance in light of the modern theory of the law of restitution based upon the doctrine of preventing an unjust enrichment. Thus, it should not matter that one party has discharged another’s liability in circumstances of practical, as opposed to strictly legal, compulsion. Nor should it be of concern if the liability of each of the parties should arise from different sources. Indeed, in cases of practical compulsion or economic duress, it is meaningless to speak of any liability whatsoever on the part of the plaintiff to have satisfied the obligation owed by the defendant. Discharge of another’s liability — although conferred in an indirect fashion — is, after all, simply one form of enrichment. So long as that benefit is bestowed by a plaintiff in circumstances such that the defendant cannot, in all good conscience, retain it, restitutionary relief ought to be awarded…

 

[underlining added; italics added by Stinson J.]

 

265 The word “officious” is defined in the Concise Oxford English Dictionary, 11th ed. (Oxford University Press, 2004), as “asserting authority or interfering in a domineering way”.

 

266 The Supreme Court of Canada discussed the concept of “incontrovertible benefit” as providing a basis for restitution of unsought benefits in Peel (Regional Municipality) v. Canada, [1992] 3 S.C.R. 762(S.C.C.), at 795-796:

 

An “incontrovertible benefit” is an unquestionable benefit, a benefit which is demonstrably apparent and not subject to debate and conjecture. Where the benefit is not clear and manifest, it would be wrong to make the defendant pay, since he or she might well have preferred to decline the benefit if given the choice.

 

It is thus apparent that any relaxation on the traditional requirement of discharge of legal obligation which may be effected through the concept of “incontrovertible benefit” is limited to situations where it is clear on the facts (on a balance of probabilities) that had the plaintiff not paid, the defendant would have done so. Otherwise, the benefit is not incontrovertible.

Court Adds Bequest to Will Omitted By Drafting Solicitor

Drafting Solicitor

Daradick v McKeand Estate 82 ETR (3d) 324, the Ontario Supreme Court made a very practical decision to allow the rectification of the will where there had been obvious drafting solicitor negligence in omitting a specific and substantial bequest.

The case reviews both the law of British Columbia and Ontario, and perhaps leads to the conclusion that the Ontario law is more flexible than that of British Columbia in allowing rectification of wills.

 

The testator made wills in 1992 and 2005, and left the matrimonial home in both wills to her daughter, provided that the testator’s husband was not alive at the time of her death.

The testator’s husband died in 2005.

In 2010 the testator’s solicitor took instructions from her regarding a new will, and according to the drafting solicitor, the testator instructed him that the matrimonial home was to be gifted to the daughter, and he made note of this on the reverse side of his sheet of notes.

According to the drafting solicitor, his secretary did not see the notes regarding the bequest of the matrimonial home to the daughter on the other side of the will, and she prepared the 2010 will without reference to that bequest.

 

After the testator’s death, the daughter brought a court application to rectify the 2010 will.

 

The court allowed the will to be rectified by adding that the matrimonial home would be bequeathed to the daughter.

 

Because the respondents led no rebuttal evidence, it was surmised that the facts as stated in the affidavits of the daughter and the solicitor were not challenged.

 

In the solicitors affidavit, he acknowledged that he made an error and that he did not include the matrimonial home in the 2010 will, as he had been instructed to do.

 

The court determined that the solicitors error could and should be corrected. If the 2010 will were not rectified, then the only other recourse of action would be a lawsuit against the solicitor or the estate, or both, which would be very costly.

33 The respondents cited a number of court cases from the Provinces of Alberta and British Columbia, which state that the courts have very limited powers in rectifying wills. They also cited Feeney’s Canadian Law of Wills, 4th edition.

 

34 At 3.26 Feeney wrote the following:

 

The approach in Re Rapp was rejected by McFayden J. of the Alberta Court of Queen’s Bench, and more recently by Melvin J. and Burnyeat J. of the Supreme Court of British Columbia. Justice Burnyeat suggested that the Rapp decision overlooked the contrary decision of the Court of Appeal in Clark v. Nash, which should be followed. It seems that the traditional restrictive view is still law.

 

35 However the author does state at 3.28 the following:

 

…Yet, when the mistake is that of a draftsperson who inserts words that do not conform with the instructions he or she received, then, provided it can be demonstrated that the testator did n and him and him ot approve of those words, the court will receive evidence of the instructions (and the mistake) and the offending words may be struck out.

 

36 The Court of Appeal in British Columbia stated in Clark v. Nash, [1987] B.C.J. No. 304(B.C. C.A.) the following:

 

… [N]o case supports the proposition that a Will that is a complete Will so far as form and content are concerned can be rectified by substituting as residuary beneficiaries the names of ten persons who are legatees named in that Will for two other persons.

 

37 As I stated earlier, the respondents did not cite any cases from the Province of Ontario.

 

38 In the Robinson Estate v. Robinson, [2010] O.J. No. 2771(Ont. S.C.J.), Mr Justice Belobaba wrote the following at paragraphs 24, 25, 26 and 27:

 

24. Where there is no ambiguity on the face of the will and the testator has reviewed and approved the wording, Anglo-Canadian courts will rectify the will and correct unintended errors in three situations:

 

(1) where there is an accidental slip or omission because of a typographical or clerical error;

 

(2) where the testator’s instructions have been misunderstood; or

 

(3) where the testator’s instructions have not been carried out.

 

25. The equitable power of rectification, in the estates context, is aimed mainly at preventing the defeat of the testamentary intentions due to errors or omissions by the drafter of the will. This is a key point. Most will-rectification cases are prompted by one of the above scenarios and are typically supported with an affidavit from the solicitor documenting the testator’s instructions and explaining how the solicitor or his staff misunderstood or failed to implement these instructions or made a typographical error.

 

26. Courts are more comfortable admitting and considering extrinsic evidence of testator intention when it comes from the solicitor who drafted the will, made the error and can swear directly about the testator’s instructions. They are much less comfortable relying on affidavits (often self-serving) from putative beneficiaries who purport to know what the testator truly intended.

 

27. Here is how Feeney’s puts it:

 

[T]he application for rectification is usually based on the ground that, by some slip of the draftsman’s pen or by clerical error, the wrong words were inserted in the will; the mistake may be latent in the letters of instruction or other documents. Yet, when the mistake is that of the draftsperson who inserts words that do not conform with the instructions he or she received, then, provided it can be demonstrated that the testator did not approve those words, the court will receive evidence of the instructions (and the mistake) and the offending words may be struck out.

 

39 The Ontario Court of Appeal upheld the decision of Justice Belobaba. See Robinson Estate v. Robinson, [2011] O.J. No. 3084(Ont. C.A.).

 

40 Mr. Justice Pattillo, in Lipson v. Lipson, [2009] O.J. No. 5124(Ont. S.C.J.), stated the following at paragraphs 32 and 39-42:

 

32It has been long established in Ontario that the court has the power to delete or add words to a will by necessary implication.

 

. . .

 

39In Mistakes In Wills In Canada, by Stan Sokol (Carswell, 1995), at p. 95, the learned author, referring to the above noted cases, summarizes the criteria which must be established before a court can add words to a will as follows:

 

1. upon reading of the will, it must be apparent on the face of the instrument that a word or words have been omitted from the will,

 

2. from a reading of the will as a whole, the intention of the testator must be so strongly expressed that the language of the will could not support a reasonably contrary intention or interpretation, and

 

3. from a reading of the whole will and in light of surrounding circumstances, the court must be able to determine, with sufficient precision, what the omitted words were which are required to give effect to the testator’s intention.

 

40In Myhill Estate v. Office of the Children’s Lawyer(2001), 39 E.T.R. (2d) 90 (Ont. S.C.J.), Haley J., in considering whether certain words should be added to a will, referred to and applied the three criteria set forth in Mistakes in Wills in Canada, supra.

 

41Surrounding circumstances include circumstances surrounding the making of the will; the testator’s property at the time of the will; the testator’s use of property; the testator’s relationship to named and potential beneficiaries; and prior wills. See: Harmer Estate, supra, at para. 30 and 31; Mistakes in Wills in Canada, supra, pp. 211-214.

 

42In my view the above principles concerning when a court can delete or add words to a will apply not only in circumstances where a word or words are omitted but also where an incorrect word or words are contained therein. In either case, before a court can delete or insert words to correct an error in a will, the Court must be satisfied that:

 

(i) Upon a reading of the will as a whole, it is clear on its face that a mistake has occurred in the drafting of the will;

 

(ii) The mistake does not accurately or completely express the testator’s intentions as determined from the will as a whole;

 

(iii) The testator’s intention must be revealed so strongly from the words of the will that no other contrary intention can be supposed; and

 

(iv) The proposed correction of the mistake, by the deletion of words, the addition of words or both must give effect to the testator’s intention, as determined from a reading of the will as a whole and in light of the surrounding circumstances.