S. 52 WESA: Undue Influence Presumption re Dependence

S. 52 WESA: Undue Influence Presumption re Dependence

Positions of dependence or domination are frequently involved in estate litigation and typically relate to caregiving or predator type behavior that ultimately takes advantage of  feeble mind.

Elder Estate v Bradshaw 2015 BCSC 1266 involved a contested court action re  the validity of the deceased’s will as a result of allegations of lack of mental capacity and undue influence.

The deceased left his entire estate to a 26 year younger housekeeper who gradually became his caregiver. The will was challenged by his three nephews who were his next of kin on an intestacy.

The decision is a good source of law relating to both the legal framework for proving the validity of a will in solemn form, as well as a review of undue influence, both with respect to a bequest left in the will and monies advanced to a joint bank account.

The court examined the evidence of several witnesses and concluded that there was no undue influence on the part of the caregiver with either the will or the joint bank account.

The deceased was elderly, had no next of kin and was almost reclusive. The relationship between the parties was over several years and the witnesses testified that their relationship was not suspicious in any manner. The evidence supported the caregiver’s position that she was his main source of emotional and physical support for many years, and he stated that he did not know what he would do without her.

It is somewhat surprising that the court does not adopt  s. 52 WESA in its reasons for judgment relating to the issue of the shifting onus of proof re undue influence other than to say that the legal framework to prove the will in solemn form is still the law relating to the shifting burden of proof, despite the wording of s.  52.

It is almost impossible to separate the two issues of lack of mental capacity and undue influence as they are invariably intertwined in the facts. Probably the only undue influence case that might occur without there being lack of mental capacity is the situation of a cult were on person controls the minds of many.

 

THE  LAW

[10]         In Leung v. Chang, 2013 BCSC 976, Dardi J. summarized the pertinent authorities and legal framework for analyzing a proof in solemn form claim where issues of testamentary capacity and undue influence are raised:

Legal Framework of Proving a Will Valid In Solemn Form

[25]      The Supreme Court of Canada in Vout v. Hay, [1995] 2 S.C.R. 876 clarified the principles with respect to the burden of proof in litigation regarding contested wills. The Court articulated the considerations which govern the interrelation of the doctrine of suspicious circumstances and the issues of testamentary capacity, knowledge and approval, undue influence and fraud.

[26]      In an action for proof of will in solemn form, the party propounding the will must prove on a balance of probabilities that the will was executed in compliance with the statutory formalities, that the will-maker knew and approved of the contents of the will and that the will-maker had testamentary capacity: Vout at paras. 19-20.

[27]      In order to make a valid will, the will-maker must have a “baseline level of mental acuity” or a “disposing mind and memory”, sufficient to appreciate and comprehend the nature and effect of the essential elements of the testamentary act. This encompasses an appreciation of the claims of the persons who are the natural objects of her estate and the extent of her property of which she is disposing: Laszlo v. Lawton, 2013 BCSC 305 at para. 185; Banks v. Goodfellow (1870), L.R. 5 Q.B. 549; Leger v. Poirier, [1944] S.C.R. 152 at 161. The assessment of whether a will-maker possesses testamentary capacity is a highly individualized inquiry and is a question of fact to be determined in all the circumstances: James v. Field, 2001 BCCA 267 at para. 51; Laszlo at para. 197.

[28]      In certain circumstances, the propounder of the will, in discharging the burden of proof, is aided by a rebuttable presumption of validity. If the will was duly executed in accordance with the requisite statutory formalities after being read over to or by a testator who appeared to understand it, it is presumed the testator possessed the requisite testamentary capacity and knew and approved of its contents: Vout at para. 26.

[29]      This presumption may be rebutted by evidence of “well-grounded suspicions”, referred to in the jurisprudence as “suspicious circumstances”, relating to one or more of the following circumstances:

(i)         surrounding the preparation of the will;

(ii)        tending to call into question the capacity of the will-maker; or

(iii)       tending to show that the free will of the will-maker was overborne by acts of coercion or fraud: Vout at para. 25.

[30]      If suspicious circumstances are established, then the presumption is spent and the legal burden of proof reverts to the propounder of the will. The propounder of the will then reassumes the legal burden of proving knowledge and approval, as well as proving testamentary capacity, if the suspicious circumstances reflect on the mental capacity of the will-maker to make a will: Woodward v. Grant, 2007 BCSC 1192 at para. 108. In order to discharge the burden, the propounder of the will is required to dispel the suspicious circumstances that have been raised: Ostrander v. Black (1996), 12 E.T.R. (2d) 219 at para. 30 (Gen. Div.).

[31]      In Vout, the Court affirmed that if a court determines that suspicious circumstances exist, the applicable standard of proof is a balance of probabilities. However, the evidence must be scrutinized in accordance with the gravity of the suspicion raised in any particular case.

[32]      In order to rebut the presumption of validity, those attacking the will must meet the threshold of demonstrating that there is some evidence “which, if accepted, would tend to negative knowledge and approval or testamentary capacity”: Vout at para. 27; Maddess v. Racz, 2009 BCCA 539 at para. 31. The court in Scott v. Cousins (2001), 37 E.T.R. (2d) 113 (Ont. S.C.J.) describes the requisite evidence as that which “excites the suspicion of the court”. A “general miasma of suspicion that something unsavoury may have occurred” is insufficient to rebut the presumption of validity; the evidence must raise a “specific and focused suspicion”: Clark v. Nash (1989), 61 D.L.R. (4th) 409 at 425 (B.C.C.A.).

[33]      The court in Laszlo provides the following instructive observations regarding the doctrine of suspicious circumstances at para. 207:

Suspicious circumstances have been found to exist in a wide array of situations and are not necessarily sinister in nature. There is no checklist of circumstantial factors that will invariably fit the classification. Commonly occurring themes include where a beneficiary is instrumental in the preparation of the will (especially where the beneficiary stands in a fiduciary position to the testator), or where the will favours “someone who has not previously been the object of [the testator’s] bounty and does not fall within the class of persons testators usually remember in their wills, that is to say their next of kin.

Undue Influence

[34]      When undue influence or fraud is alleged, the party opposing probate always bears the legal burden of proving on a balance of probabilities the affirmative defence of undue influence: Vout at para. 28. It is important to appreciate that in these circumstances, the doctrine of suspicious circumstances and the shifting of the burden of proof has no application.

[35]      In order to invalidate a will on the grounds of undue influence, the asserting party must prove that the influence exerted against the will-maker amounted to coercion, such that the will did not reflect the true intentions of a free will-maker and was not the product of the will-maker’s own act. The undue influence must constitute coercion which could not be resisted by the will-maker and which destroyed his or her free agency. It is well-established on the authorities that if the will-maker remains able to act freely, the exercise of significant advice or persuasion on the will-maker or an attempt to appeal to the will-maker or the mere desire of the will-maker to gratify the wishes of another, will not amount to undue influence: Maddess v. Racz, 2008 BCSC 1550 at para. 324 aff’d 2009 BCCA 539; Freeman v. Freeman (1889), 19 O.R. 141 at 155 (C.A.); Scott at para. 112.

[11]         I adopt this summary as accurate and applicable in respect of the issues regarding the validity of the 2011 Will in the present case. Paragraphs 34-35 of the quoted passage are no longer applicable to wills to which s. 52 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [WESA] applies, that is, where the will-maker died after March 31, 2014.

WESA Probate Delivery Rules

WESA Probate Delivery Rules

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

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

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

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

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

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

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

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

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

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

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

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

(i) each person

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(A)       the Family Law Act, or

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

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

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

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

(g)        the following statements:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

WESA Will Framework

WESA Will Framework

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

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

Facts:

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

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

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

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

Decision:

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

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

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

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

Law:

Statutory Framework

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

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

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

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

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

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

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

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

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

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

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

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

(a) is recorded or stored electronically,

(b) can be read by a person, and

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

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

(a) the testamentary intentions of a deceased person,

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

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

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

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

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

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

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

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

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

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

Wills Variation: Long Time Spouses “Non Traditional”

Wills Variation - Long Time Spouses "Non Traditional"

A five court appeal panel heard Kish v Sobachak Estate 2016 BCCA 65, reduced a wills variation award involving two long time companions who met later in life having had children from previous marriages. They remained financially independent, maintained separate homes, and did not wish to be treated as spouses.

Shortly before the males death from cancer, he changed his will to give his entire estate worth $186,000 to his only child, a single mother of three.

The plaintiff also changed her will  at the same time to provide for her son and grandson exclusively.

The plaintiff moved in with the deceased for the last several years and took care of her during her lengthy illness until her death

At a summary Supreme Court trial, the court found the parties did have  a marriage like relationship and varied the will pursuant to the wills variation act to provide the plaintiff with the bequest of $100,000 based primarily on her  financial need. The court stated that had they separated prior to death that the deceased would have had a legal obligation to maintain the plaintiff.

The plaintiff was in a care facility and her monthly expenses were mostly provided for by a third party and she had equity in he home that she could utilize.

The appeal court overturned this decision and reduce the award to $30,000, finding that the trial judge erred in holding that the plaintiff was in need given the substantial equity in her house, which was not being utilized for her benefit . In reducing the award, the court stated that the trial judge should have given greater weight to the principle of testator autonomy given the nontraditional relationship between the parties.

Law cited

[53] Sadly, her needs are now few and are taken care of in the institution. There is little that can be done to increase her enjoyment of life. It is hard to disagree with the suggestion, which we put to counsel during the hearing, that the trial judge’s award under the WVA will only serve the purpose of increasing Ms. Kish’s estate. As noted by Mr. Justice Finch, as he then was, in Frolek v. Frolek [1986] B.C.J. No. 1869 (S.C.):

It is not the purpose of the Wills Variation Act… to enable an applicant to build up an estate of her own, but rather to ensure that she is appropriately maintained and supported during her lifetime.

[54] I agree that the trial judge does appear to have erred in finding that Ms. Kish was in a position of “need”, at least in the strict sense. The equity in her house, or rental income therefrom, can and should be used to ensure that her standard of living for her remaining years is more than “bare bones”.

[55] The question remains, however, whether an award from Mr. Sobchak’s estate was necessary to ensure that “adequate” provision was made for Ms. Kish. As noted earlier, no evidence was provided as to the financial arrangements between Ms. Kish and the facility in which she lives. Many of these facilities are governed by the Continuing Care Fees Regulation, B.C. Reg. No. 17/2013, s. 5 of which provides a formula that incorporates a statutory maximum and minimum, for determining the monthly charge payable by persons receiving “residential care services”. Under such arrangements, it is not likely Ms. Kish would be accumulating a “shortfall” as the trial judge seemed to find. However, we again simply have no evidence on the point.

[56] Even if we were to assume all Ms. Kish’s needs are being met by “the state”, however, the case law suggests that that fact would not be fatal to a claim for spousal support on a separation: see Moge v. Moge [1992] 3 S.C.R. 813; Harvey v. Harvey (1995) 9 B.C.L.R. (3d) 83 (C.A.); Papaspirou v. Soussoudis (1999) 2 R.F.L. (5th) 437 (Ont. S.C.) at para. 5; and Norrish v. Norrish 2015 ABQB 370 at para. 58. Thus it is likely Mr. Sobchak would have had some legal obligation of support during his lifetime.

[57] Turning to the question of the moral obligation owed by the “judicious person” in Mr. Sobchak’s position, more factors come into play. One is the competing claim of Ms. Doyle and her expectations. She of course was not a dependant child to whom a legal obligation was owed by her father when he died (see Tataryn at 822); but he had clearly led her to believe she would inherit substantially. She is the mother of his grandchildren, to whom he was close. The trial judge stated at para. 37 that Mr. Sobchak “actually had, strong moral obligations to his daughter in addition to the obligations both legal and moral, that he had to the plaintiff.” On the other hand, Ms. Doyle did receive his RRIF of $250,000 – an amount almost equal to the value of the estate itself.

[58] In Tataryn, the Court stressed that the moral claims of a spouse will usually take precedence over those of adult children. In the words of McLachlin J.:

… most people would agree that although the law may not require a supporting spouse to make provision for a dependent spouse after his death, a strong moral obligation to do so exists if the size of the estate permits. Similarly, most people would agree that an adult dependent child is entitled to such consideration as the size of the estate and the testator’s other obligations may allow. While the moral claim of independent adult children mav be more tenuous, a large body of case law exists suggesting that, if the size of the estate permits and in the absence of circumstances which negate the existence of such an obligation, some provision for such children should be made: Brauerv. Hilton (1979), 15 B.C.L.R. 116 (C.A.); Cowan v. Cowan Estate (1988), 30 E.T.R. 216 (B.C.S.C.), afTd (1990), 37 E.T.R. 308 (B.C.C.A.); Nutty v. Nutty Estate (1989), 41 B.C.L.R. (2d) 343 (C.A.). See also Price v. Lypchuk Estate, supra, and Bell v. Roy Estate (1993), 75 B.C.L.R. (2d) 213 (C.A.) for cases where the moral duty was seen to be negated. [At 822-3; emphasis added.]

[59] In Bridger v. Bridger Estate 2006 BCCA 230, Mr. Justice Mackenzie for the majority discussed the claims of adult children vis-a-vis the claim of a long-term spouse:

Tataryn recognizes that there is no clear legal standard to judge moral claims and the test is more nebulous where the surviving spouse is not strictly speaking a dependent spouse and the children are all financially independent adults. While, as McLachlin J. observes in Tataryn, there may be a number of options for dividing assets bv a testator which are adeguate. iust and eguitable. I do not think they include a disposition that entirely prefers the moral claims of adult independent children to those of a loval spouse who provided care for the testator over years of debilitating decline. I am satisfied that the trial judge was right to recognize unfulfilled legal and moral obligations of the testator to Mrs. Bridger, as those terms are understood in a wills variation context. The legal obligation can be quantified as above. The question then becomes the measure of the outstanding moral obligation. [At para. 20; emphasis added.]

(See also Picketts v. Hall (Estate) 2009 BCCA 329, where the Court observed that “it is … not a viable option for the court to approve a disposition that substantially prefers the moral claims of adult independent children to those of a long-term caring and dedicated spouse.”)

[60] There is no doubt that claims of adult children do not and should not overshadow a testator’s moral duty to a spouse, especially where (as in Bridger and Picketts) the relationship or marriage was a long-term one. Here, however, the parties met late in life after each had become self-supporting and had had children. They took particular care to keep their finances separate and consistently indicated they did not wish to be married again. From the amendments made to their wills in early 2013, it is clear both wished to benefit their own children on death to the exclusion of the surviving spouse. (Arguably, they had an understanding to this effect.) Mr. Sobchak’s estate was relatively modest (indeed, after payment of the income tax on his RRIF, it was $186,000 – unless one adds in $74,000, representing the $12,000 in cash received by his daughter and the $62,000 amount referred to in the “Lending Agreement” described earlier). Using the larger figure of $260,000, the estate exceeds the equity in Ms. Kish’s house by only $40,000; using the $186,000 figure, his estate (to which she had not contributed) was less than her main asset.

[61] In Tataryn, the Court stated that testator autonomy is one of the two interests “protected” by the WVA. In the circumstances of this case, it seems to me that “contemporary community standards” would be more respectful of that principle than was found to be appropriate in the ‘traditional’ marriages in Br/cfgerand Picketts. Many today would find it unfair or inappropriate to disregard the wishes of both parties that their modest estates, built up through their own individual efforts, should be their own and that their respective children should benefit exclusively therefrom. And, while it is true that government is presumably supplying Ms. Kish’s needs, most would not regard her as living on some type of subsidy or ‘handout’. Rather, she is receiving benefits from a medical system to which all Canadians contribute and from which all are entitled to receive medical care

Wills Variation and Second Long Marriages

Wills Variation and Second Long Marriages

Anderson v Coles 2016 BCSC 13 involves the approach by the court when dealing with a wills variation action between a surviving spouse of a 20 year second marriage and the interests of competing children born of the first marriage.

The court essentially divided the matrimonial home, being the largest family asset 50-50, and gave the surviving spouse an additional bequest of $90,000 to cover the deceased’s notional spousal support and moral obligation.

The parties married at age 62, being two years after the death of the testator’s first wife of 40 years.

They lived together in the testator’s home for 20 years until his hospitalization and then  death in December 2012.

Six months prior to his death, the testator commenced divorce proceedings.

He provided in his will that the plaintiff could remain in the house for her life and receive income from residue of the estate on the condition that she remained unmarried and following her death or remarriage, the estate would then be divided among the testator’s adult children.

The court found that the will did not make adequate just and equitable provision for the plaintiff given the length of marriage and the plaintiffs notional entitlement to half the family assets and spousal support of $90,000.

Legal obligation

[38] Considering the considerable length of the marriage in this case, following two years of cohabitation, and Mrs. Anderson’s contributions during that marriage to the cleaning and preparation for sale of two previous homes, and her assistance in the beautification of the Celista property as well as her $7,000.00 financial contribution to the landscaping at 7th Avenue, I am not persuaded that a notional equal division of family assets would have been unfair to Mr. Anderson. The plaintiff does not claim an equal division would be unfair to her, although of course she argued that the investment assets should be included. In short, I would notionally find Mrs. Anderson to be legally entitled to one half of $362,702.85 in respect of the division of family assets.

Notional spousal support

[39] The plaintiff argues that in the event of a divorce prior to Mr. Anderson’s death, she would have been entitled to spousal support on both a compensatory and a non-compensatory basis. She submits that she suffered an economic disadvantage from the marriage itself by retiring prematurely from a job which paid her approximately $36,000 per year, in order to marry Mr. Anderson and share his life in retirement. She also argues that she has suffered an economic disadvantage from the end of the marriage in that she lost the monthly amount that Mr. Anderson was giving her for expenses and lost the ability to share expenses with him.

[40] The defendants argue that no spousal support would be payable because both parties are beyond the point of being employable and would be in similar positions financially. The case of Glanville v. Glanville, [1998] B.C.J. No. 2960 was cited, where no support was payable on those findings. The distinction here is that given the notional property division I have made, the parties would not be in similar positions financially. The income difference would be $18,848 annually, using the 2007 to 2011 averages.

[41] On the notional spousal support issue, I find entitlement and reference to the Spousal Support Advisory Guidelines would provide a mid-point of $6,926.64 annually. It is, of course, useful in the notional exercise to quantify a lump sum, which in this case I would have assessed at $30,000.

[42] Adding the notional value of spousal support to the property value results in a notional legal claim of $211,351.

Moral obligations of the deceased

[43] The Tataryn case recognized that the determination of moral duties is an uncertain business because there are no clear legal standards by which to judge moral duties. However, the court ranked Mrs. Tataryn’s moral claim as one of “a high order on the facts of this case”, and of two grown and independent sons, the court said “The moral claims of the sons cannot be put very high. There is no evidence that either contributed much to the estate.”

[44] The facts in the Tataryn case are very different from the present case because the Tataryn marriage was one of 43 years and there was no issue of competing moral duties to a spouse and children of a previous marriage. That issue was, however, dealt with in Picketts v. Hall, 2009 BCCA 329, cited by the plaintiff for a number of propositions, despite the very obvious distinction that Picketts involved an estate worth $18,000,000.

[45] The plaintiff in Picketts was a common-law spouse of 21 years standing with very modest personal means at the time their relationship started and at the time of Mr. Hall’s death. Mr. Hall’s will left her their matrimonial home condominium, $2,000 per month for life, and three months use of a Hawaiian condominium. The balance of the estate went to two independent adult sons. The trial judge varied the will on a maintenance based approach to provide for $175,000 per year maintenance, a lump sum to renovate the condo and to set aside a fund for her potential nursing care. The Court of Appeal varied the will further to provide for a lump sum of $5 million, plus the family home, the personal and household effects and an amount in lieu of the time in the Hawaiian condo.

[46] The plaintiff relies on portions of the following paragraphs from Picketts:

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

[63] In assessing the substantial moral obligation of the testator toward his spouse in this case (in addition to the substantial legal obligation), I take into account the following:

(1) the absence of a legal obligation of Mr. Hall to either of his sons;

(2) the length of the marital relationship between Mr. Hall and Ms. Picketts – 21 years;

(3) the agreement of Ms. Picketts to give up her career thereby depriving her of the opportunity to accumulate an estate of her own other than through modest inheritances from her father and her brother;

(4) the necessity for Ms. Picketts to dip into her limited savings to supplement the living expenses Mr. Hall had agreed to provide;

(5) the lengthy period of loving and effective care Ms. Picketts provided to her spouse during his decline;

(6) the promise Mr. Hall made that he would take care of Ms. Picketts as though she were his wife;

(7) the size and liquidity of the estate.

[64] I do not see Mr. Hall’s promise mentioned in item (6) as being limited to the provision of maintenance. The promise has to be considered in the context in which it was made. It was given upon Mr. Hall reneging on an accepted marriage proposal that he had announced socially and which he had confirmed with a ring. I have no doubt that the friends who were witness to both promises would have expected the latter to have been kept by a bequest of capital from his estate. Although the residual promise is not actionable per se, I see it as a significant factor in consideration of the moral obligation toward Ms. Picketts that arose in this case.

[65] Ms. Picketts is entitled to administer her own financial affairs without being dependant on the estate. She is also entitled to a measure of testamentary autonomy of her own so that she can pass her own estate to whomever she wishes.

[66] In all the circumstances of this case, it is my opinion that it is adequate, just and equitable for Ms. Picketts to receive from the estate a lump sum payment of $5M plus the family home, the personal and household effects, and the settled amount for the Hawaii condominium. This variation of the will would properly address Mr. Hall’s legal obligation to Ms. Picketts, and his moral obligations to her and to his two sons, without interfering with his testamentary autonomy more than the Act requires.

Wills Variation- The Legal Obligation to Provide For Infants

The Legal Obligation to Provide For Infants

Heatherfield ( Litigation Guardian of) v Heatherfield Estate 2015 BCSC 505    is one of the few reported cases as to of what constitutes adequate provision for a minor, dependent child beyond the decision in Cameron (Public Trustee of) v. Cameron Estate (1991), 41 E.T.R. 30 (B.C.S.C.) [Cameron].

The deceased died suddenly at age 53 leaving to infant children, and a will leaving his entire estate of approximately $1.2 million to a former common-law partner.

The will obviously did not adequately provide for the two infant children, and as the introductory sentence stated, there has been very little judicial interpretation of just how much is required to satisfy the claims of a minor and dependent child, as opposed to the many decisions relating to the adequacy of an adult independent child that have been decided.

The court held that the deceased failed to fulfil the legal or moral obligations of the contemporary judicious parent by leaving the entirety of his substantial estate to his former spouse to whom he owed no legal or moral duty, on whom he was not relying, and with whom he did not have an agreement as to how she would subsequently provide for the children.

Only the children had the standing to bring the claim under the wills variation act, which the Public Guardian and trustee did on their behalf.

The mother  strongly objected to the Public Guardian and Trustee being the continuing trustee for the children, and asked that she herself the appointed in that capacity.

Mdm. Justice Ballance varied the entire will to divided equally between the two minor children and allowed the mother to be the appropriate trustee.

[68]         In the course of his reasons, the trial judge described Cameron as the first of its kind.  While it is accurate to say that it was a test case, the issue of launching a will variation claim on behalf of minor children where the estate was bequeathed to the surviving parent, had been briefly canvassed in the earlier decision of Re Malat (B.C.S.C., Vancouver Registry No. X8945/75, Meredith J. 18 August 1975, Unreported) [Malat].

[69]          In Malat, the Public Trustee applied under the now repealed Equal Guardianship of Infants Act to be appointed guardian of the deceased’s two minor daughters for the limited purpose of bringing an application under the predecessor legislation to the WVA.  The application was dismissed on a technical ground.  Although the court was not required to confront the variation issue on the merits, in dismissing the application, Meredith J. remarked unfavourably, in obiter dicta, about the prospect of such proceedings pitting the children against their mother, triggering unwanted legal costs and the risk of family discord.  Commenting that the possible disruption might be more harmful to the children than any benefit they might receive from the estate, Meredith J. continued at p. 2:

I have not the slightest reason to suppose that Mrs. Malat would do other than the best for all her children during her lifetime, nor should I speculate that she will do other than make adequate provision for her children out of what may remain of her assets, including those inherited from her husband on her death.

Accordingly, as I am inclined to the view that the order sought would detract from rather than advance the interest of the two children, the order is refused.

[70]         Although Malat does not appear to have been drawn to the attention of the trial judge in Cameron, he echoed many of the sentiments expressed by Meredith J.

[71]         In the end, Mr. Cameron was awarded his costs against the Public Trustee.  The Public Trustee sought leave to appeal the judgment with respect to costs only.  Leave was granted on the condition that the Public Trustee undertake to pay the special costs “of the estate” no matter what the outcome of the appeal and, failing that, the application for leave would be dismissed.  The leave application was abandoned.

ANALYSIS

[72]         In my opinion, Cameron is neither binding nor persuasive authority in determining whether the Deceased adequately provided for his two minor children.

[73]         In the first place, the facts in Cameron are readily distinguishable in a meaningful way from the case at hand.  More crucially, Cameron was decided before Tataryn clarified and refined the analytical approach.  In my respectful view, the teachings of Tataryn have affected the validity of Cameron insofar as it purports to be authoritative for the broad proposition that a variation claim brought by a minor child is doomed to fail where the surviving parent is the sole or primary beneficiary and has cared for that child, in factual situations of the kind present here.

[74]         Only Zachary and Shanon, ages 12 and 9 respectively at the time of trial, have standing to bring a claim under the WVA with respect to the Will.  That the Deceased owed them a legal duty is undisputed and is underscored by the fact that, at the time of his death, he was obligated by court order to pay child support and contribute toward their special and extraordinary expenses.  Similarly, there can be no question but that he also owed his minor and financially dependent children a moral duty.

Physically Disabled Adult Awarded Entire Estate

Physically Disabled Adult Awarded Entire Estate

Disabled people, both mentally or physically or both, are often extremely short changed in their inheritance.

This blog involves a case Trevor Todd handled for a physically disabled married adult who was literally treated like a child by her entire extended family.

Dale was initially bequeathed a punitive monthly stipend of $1000.

We sued under the Wills Variation act and Dale was awarded the entire $700,000 as a lump sum payment.

I am reproducing the entire reasons for judgement as it was not reported as a decision.

The case is one of only a few reported cases involving a Wills Variation action brought by an adult independent child who is seriously physically handicapped, but mentally competent, who has not been adequately provided for by his or her deceased parent(s).

IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20041214

Docket: L030198

Registry: Vancouver

Between:

Dail Ann Hesse

Plaintiff

And:

Howard Kenneth Da vies, as Executor of

the Estate of Gwynneth Eleanor Farley, Deceased,

Howard Kenneth Davies, Wendy Breaks, Bill Davies,

Pat Clifford, Keri Joint, Jim Farley, Lisa Farley, David Farley,

Rick Heard, Ted Heard, Judy Davis, Joan Gibsons, Carol Sieb,

Merle Gogal, Terry Roberts, Sharon Ward, Pauline Ward,

Jewel Middlemeass, Glenda Read Eleanor Kormos,

Greg Roberts and David Roberts

Defendants

Before: The Honourable Mr. Justice Fraser

Oral Reasons for Judgment

 

December 14,2004 Vancouver, B.C.

 

VANCOUVER SUPREM

11:36:37 a.m.       12-19-2005                 3/8

 

Hesse v. Davies et a/_______________________________________ Page 2

[1]     THE COURT: This is an application by the plaintiff, Dail Ann Hesse, for a declaration that the Last Will and Testament of Gwynneth Eleanor Farley, her mother, dated the 6th of June, 2000, did not make adequate, just and equitable provision for her in all the circumstances.

[2]     Because I am satisfied as to the proper result, I am going to give my Ruling today. Those present will appreciate that the virtue of pronouncing decisions promptly carries with it the disadvantage that the choice of words is sometimes less felicitous than if the matter is postponed and the Judgment handed down sometime later. So I will state that I do reserve the right to amend these Reasons should they be transcribed into written form. It is my practice when I do that to indicate any significant amendment by the use of square brackets, so that the Reasons as transcribed will clearly indicate on the face of the document what has been added.

[3]     Mrs. Hesse is the only child of her mother. Her mother died on the 18th of October, 2002. Her Last Will and Testament is in evidence. It is what is sometimes refenred to as a “stationer’s Will,0 that is, a preprinted form with blanks to be filled in. The Will evidently was prepared by the plaintiff’s aunt, Thelma Davies, sometimes known as Terry Davies. It has the familiar inadequacies of a will prepared by amateurs.

[4]     The estate is sizable, having a present value of almost $700,000 after payments from the estate in excess of $100,000. Having a will prepared by an amateur for an estate of this size is certainly an instance of penny wise and pound foolish.

 

VANCOUVER SUPREM                                                                                11:37:00a.m.       12-19-2005                 4/6

Hesse v. Davies et al______________________________________        Page 3

[5]     The plaintiff is 46 years old. She has cerebral palsy, which leaves her with significant disabilities. She is unable to walk without the aid of crutches. Even with crutches, her balance is poor and it is often very painful to walk. She suffers from arthritic pain and other painful conditions such as palsy seizures. There have been other physical difficulties.

[6]     The plaintiff is married to Bruce Hesse. They married about 10 years ago. When they married, Mrs. Hesse forfeited her disability pension because Mr. Hesse was an income earner. This seems to me an important indication that the marriage was based on love and loyalty as opposed to greed or expectations of money. Mr. Hesse is employed and earns approximately $42,000 per year, gross. He has disabilities of his own, although they are minor in comparison to those of Mrs. Hesse. Apart from some payments from the estate since the death of Mrs. Hesse’s mother, Mr. Hesse has been the sole support of himself and his wife.

[7J     The scheme of the Will is that Mrs. Hesse is to be paid the monthly sum of $1,000 per month from the estate until she becomes 60 years old, at which time she will inherit the residue. The executor was given the power to pay off the mortgage against the townhouse that Mr. and Mrs. Hesse already owned, and he has done so. The balance due on the mortgage as at September of this year was approximately $105,000 and that mortgage has been cleared off. At the same time, the executor paid to Mrs. Hesse the arrears of the $1,000 per month payments, which at that time totalled approximately $23,000.

 

11:37:23 a.m.       12-19-2005                 5/8Page 4

+++                                VANCOUVER SUPREM

Hesse v. Davies et al

[8]     The evidence discloses that Mrs. Hesse has needs which are fairly substantial in terms of cost. In particular, Mrs. Hesse would like to buy a rancher style house with suitable handicap facilities. The estimated cost of such a house, which I take to be somewhat approximate, is $450,000. Then there are other matters, special devices to assist in her comfort living in the home, such as a reclining chair, an electric bed, a suitable vehicle for transportation and so forth. I see these needs as entirely reasonable.

[9]     There are two alternate futures before Mrs. Hesse. One involves another 14 years in their two-story townhouse. The other involves at least the possibility of a house which is more suitably designed for her.

[10]   Technically, I suppose, to describe these as “needs” could be seen as overstating the case. On the other hand, I am entirely satisfied that the .quality of life of a person with disabilities is enormously enhanced if that person has a proper home and proper aids for more comfortable living.

[11]   Those who resist this application, principally Wendy Breaks and Pat Clifford, have told me that they do so on altruistic grounds. They say that their aunt had only the best interests of Mrs. Hesse in mind and that the design of the Will should be respected by me.

[12]   It is difficult to know what to do with that contention. The Will itself does not explain why it was designed in that way. In fact, the only evidence as to the ultimate intentions of the testator is a handwritten note, which is Exhibit A to the affidavit of

 

VANCOUVER SUP REM                                                                               11:37:45 a.m.       12-19-2005                6/6

Hesse v. Davies et a/______________________________________        Page 5

Dail Hesse sworn on 19 November 2004, the key words of which are, “Everything is bequeathed to my daughter, Dail Ann Farley.”

[13]   Along the road, some of those persons who were connected with Mrs. Hesse and her parents have convinced themselves that Bruce Hesse is an untrustworthy person who will take advantage of his wife and dissipate the estate, leaving Mrs. Hesse destitute later in life at the time when she will most need money to support herself in comfort.

[14]   I am not satisfied on the evidence that these suspicions can be supported. It seems to me the track record of Mr. Hesse speaks louder than the fears of others. In marrying his wife, Mr. Hesse gave up whatever benefit he might have received from the disability pension that Mrs. Hesse was receiving before then, and he has been the sole support of Mrs. Hesse over 10 years of mam’age. In addition, there is evidence that he faithfully paid child support to his daughter from an earlier mam’age until that daughter became 19.

[15]   There is a natural inclination on the part of a parent to protect a child. One interpretation of this Will is that its provisions were conceived as a means of protecting Mrs. Hesse from her own husband. If so, I find that this rationale is not supported by the history.

[16]   The people who will be deprived potentially if I vary the Will as asked, that is, to order that the entire estate be given absolutely to Mrs. Hesse, are numerous cousins, approximately 22, who, if Mrs. Hesse dies before the age of 60, will share

 

11:38:07 a.m.       12-19-2005

+++                               Vancouver suprem

Page 6

Hesse v. Davies et al

the residue of the estate. Under the provisions of the Will, the capital will remain intact, subject only to the payments of $1,000 per month.

[17]   My view is that the moral claims of these cousins pales against the moral obligation that Mrs. Hesse’s mother had toward Mrs. Hesse. I can identify no reason why Mrs. Hesse should be kept out of an important sum of money which will enable her to live a more comfortable and more fulfilled life, given the opportunity that better circumstances will give her to use her energy and her physical abilities effectively.

[18]   I do conclude that the testator failed her daughter in terms of the moral obligations she had towards her daughter.

[19]   I am prepared to think — I am not going so far as to say that I hold — that Gwynneth Farley drew her Will with the best of intentions. It is impossible to know as between Thelma Davies and Gwynneth Farley which of them was the source of the concept or the design of the Will.

[20] Thus, I am satisfied that the order sought by Mrs. Hesse should be granted, and I do declare that the entire residue of the estate be awarded to Mrs. Hesse for her own use absolutely.

(DISCUSSION BETWEEN THE COURT AND COUNSEL RE COSTS AND APPROVAL AS TO FORM OF ORDER)

[21]   THE COURT: Through counsel, Mrs. Hesse has waived her claim for costs against Ms. Breaks and Ms. Clifford, costs to which she at least had a prima facie claim to recover. \t seems to. me unnecessary to award costs of this application to

7/8

 

VANCOUVER SUPREM                                                                                11:38:28 a.m.       12-19-2005

Hesse v. Davies eta!___________________________________________ Page 7

the executor because It appears to me that he was obliged to respond to the application and did so, and I assume that he will be able to recover his proper costs in the course of passing accounts.

[22]   MR. TODD: Yes, that’s my point. So, My Lord, Breaks and Clifford do not endorse the order, just by –

[23]   THE COURT: No, the order may be entered without approval as to form by Ms. Breaks or Ms. Clifford.

8/8

 

The Honourable Mr. Justice Fraser

Deceased Beneficiary May Claim Wills Variation (WESA)

 

A Wills Variation Action  ( S. 60 WESA) may Be commenced even after death of Disappointed Beneficiary by his or her personal representative as per Currie Estate v Bowen ( 1989) 35 BCLR (2d) 46.

In that case the husband died six weeks before his wife and his will made no provision for his wife.

The court held that the wife’s right of action under the wills variation act vested at the date of the husband’s death, and that the wife’s personal representative had the right to bring a wills variation action after her death.

They had been married 25 years and there were no children of the marriage. That husbands will made no provision for his wife and his estate was valued at $517,000`, and hers at $130,000.

The plaintiffs were the children of the wife from an early marriage, and the administrators of her estate.

The defendants were the husband’s executor and the children of the husband’s first marriage. The plaintiffs commenced an action under the wills variation act and the defendants applied to dismiss the action.

The court dismissed the application holding that the wills variation act gave the wife the right to claim and equitable share in her husband’s estate, a right which vested at the time of his death. Because the right to advance the claim was granted by statute, and was not founded in tort, and was broader than a claim for mere support or maintenance, the cause of action therefore survived death. Although the statute did not explicitly authorize the claim to be made by the personal representative of the deceased, that right was implied.

In Barker v. Westminster Trust Co., 57 B.C.R. 21, [1941] 3 W.W.R. 473, 614 [1941] 4 D.L.R. 514 (C.A.), the Court of Appeal wrestled with this issue in an inconclusive way. O’Halloran J.A. held that an action under the Testator’s Family Maintenance Act survived the death of the claimant. He said at p. 478:

In the language of Lord Mansfield, cited supra, the appellant’s cause of action is founded in a duty which the testatrix owed him.
That duty was imposed by the statute when it provided the Court should intervene on the application of a wife, husband or child who claimed to have been deprived of “proper maintenance” in the will of the testator. It must follow therefore that the appellant’s right to apply under the statute passes to his executors. That being so, and the maxim actio personalis moritur cum persona being excluded, the objections to the motion to add the executors of the appellant as parties must fail.
And he concluded by saying, at p. 495:
In the circumstances I see no grounds for depriving the husband of that share in the estate of his wife which the policy of our law has indicated to be adequate, just and equitable if she had not made a will.
He went on to rely on s. 13 of the statute to which reference has been made above. McDonald J.A. came to the opposite conclusion. His opinion is summarized at p. 496:
It seems however advisable to consider the question on broader lines as well. The long title of the Act shows that it is an Act to secure adequate and proper maintenance for the persons entitled to apply and under sec. 3 the Court is to give for that purpose what is “adequate, just, and equitable in the circumstances.”
The peculiar nature of these powers if fairly obvious; though the terms “just” and “equitable” are used they cannot be used in the technical sense, for no standard is provided, and “justice” and “equity” in the legal sense presuppose some standard. Obviously the statute uses these terms in a popular and looser sense; the Court is to apply moral or ethical standards. The Court is to be governed by the applicant’s needs and moral claims and not by anything resembling legal rights.
Sloan J.A. gave the third decision, and while he aligned himself with O’Halloran J.A. in the result, he found it unnecessary to come to a conclusion at this point.

The Executor’s Duties and Powers Under a Will

 

executors dutiesReznik v Matty 2013 BCSC 1346, a wills variation action in BC, has a very succinct summary of the executor’s duties and powers of under a will.

 

 

The trial in Reznik was inter alia related to a Wills Variation action where 4 beneficiaries applied  for and were awarded an interim distribution of the estate assets of $10,000 each.

 

The executor argued that there was no such authority, and the Court, as per yesterday’s blog, found it had general jurisdiction to make such an order.

 

In a nutshell, the Court concluded:  ” In short, the power given under the Will to the respondent to retain any portion of the estate in the form in which it may have been at the time of the deceased’s death does not displace the executor’s duty to distribute. As Middleton J. observed, such a power “must not be converted into a trust to hold

 

The Executor’s Duties and Power Under the Will

[29]    An executor has a duty to settle the affairs of the estate and to distribute in accordance with the terms of the Will. A power granted to an executor exists within the context of the executor’s duty to settle the affairs of the estate and to distribute.

[30]    Feeney’s The Canadian Law of Wills, 4th ed. (Markham: LexisNexis, 2000) at 8.17 states:

The executor must not unreasonably delay in getting the assets and settling the affairs of the estate and he will be personally responsible for any loss occasioned by undue delay. There is no hard and fast rule as to what constitutes undue or unreasonable delay, but it is the practice to speak of the executor’s or administrator’s year and the courts attach importance to the question whether the alleged failure to convert or realize assets that resulted in the loss to the estate occurred within or beyond a year. Therefore, all investments that are not proper to retain should be realized within a year of the testator’s death or, in the case of an administration, within a year of the date of the grant. Normally, too, other residuary property should be liquidated and distribution made within the year.

[31]    A power to retain an asset does not override the executor’s duty to settle the affairs of the estate and to distribute. Justice Middleton in Re Sievert (1922), 61 D.L.R. 199 (O.N.S.C. App. Div.) stated at 200:

No case determines that, when trustees are given property with instructions to realise and distribute at such time as the executors think fit, any one beneficiary may demand an immediate realisation if the executors or trustees bona fide think that realisation should, in the interest of all, be delayed.

All such trustees must understand that the trust is a trust for sale and must not be converted into a trust to hold; but, so long as this is kept in mind and good faith is shewn, the Court cannot interfere and take from the trustees the power the testator has given them.

[32]    In short, the power given under the Will to the respondent to retain any portion of the estate in the form in which it may have been at the time of the deceased’s death does not displace the executor’s duty to distribute. As Middleton J. observed, such a power “must not be converted into a trust to hold”. Despite the passing of over ten years, I do not have evidence before me to show that the respondent has not acted in good faith. That said, it is apparent that the Estate holds assets of significant value (assuming the Passage Island lots have value).

Winning an Undue Influence Case

Winning an Undue Influence Case

A review of case law makes clear the majority of such allegations are dismissed at trial due to insufficient proof. Frequently the court simply finds the testator had sufficient mental capacity and therefore allows the will to be propounded.

The loss of an undue influence case at trial can have devastating effects on both the client and the lawyer. This is especially true for the lawyer handling such a case on a contingency fee basis. An undue influence trial usually requires many days of examinations for discovery. Such a trial often takes a minimum of two weeks. Disbursements can be substantial including fees for medical expert witnesses and private investigators..

Such influence is most often exerted in private aware from other friends, family members of potential beneficiaries. There are rarely eyewitnesses who observe blatant undue influence being exerted. It sometimes seems therefore, the only way to prove such a case is with a written confession from the person who exerted the influence.

It is a real challenge for counsel to successfully convince the court to set aside the will or inter vivos gift, on the basis of undue influence.

Outline

winning an undue influence case

In this paper I will examine briefly the case law surrounding undue influence and then set out twenty practice tips that will hopefully assist a plaintiff’s counsel in winning his or her undue influence trial.

What is Undue Influence?

Undue influence is an equitable doctrine. It is a category of constructive fraud. A very fine line separates legitimate influence from undue influence. These cases are understandably very much fact driven. Success in such cases usually requires a meticulous examination of the facts, particularly those that appear suspicious.

The following oft cited passage sets out the test for undue influence at law:

A-It is settled law that undue influence sufficient to invalidate a will extends a considerable distance beyond an exercise of significant influence – or persuasion – on a testator. It is also clear that the possibility of its existence is not excluded by a finding of knowledge and approval. To be undue influence in the eye of the law there must be – to sum it up in a word – coercion. It must not be a case in which a person has been induced by [strong relationships] to come to a conclusion that he or she will make a will in a particular person’s favour, because if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another, though you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal. It is only when the will of the person who becomes a testator is coerced into doing that which he or she does not desire to do, that it is undue influence. (Wingrove v. Wingrove (1885), 11 P.D. 81 (Eng. Prob. Ct.), at page 82.)

This passage is cited with approval in Williams and Mortimer, Executors, Administrators and Probate, (17th edition, 1993), at page 184. The authors continue as follows;

A-Thus undue influence is not bad influence but coercion. Persuasion and advice do not amount to undue influence so long as the free volition of the testator to accept or reject them is not invaded. Appeals to the affections or ties of kindred, to the sentiment of gratitude for past services, or pity for future destitution or the like may fairly be pressed on the testator. The testator may be led but not driven and his will must be the offspring of his own volition, not the record of someone else’s. There is no undue influence unless the testator if he could speak his wishes would say Athis is not my wish but I must do it.

2 Kinds of Undue Influence: Actual and Presumed

1) Actual: In cases of actual undue influence, the recipient must be shown to have coerced the transferor to make will or inter vivos gift. The conduct must be such that the court finds that the transfer or disposition was not the true will or free intention of the victim. Proof may be shown indirectly by circumstantial evidence, and sometimes by direct evidence such as threats, lies, and promises that the recipient had no intention to keep.

2) Presumed: Here a relationship of trust and confidence between the transferor and transferee raises a rebuttable presumption that the transfer was made by undue influence. Once the relationship of trust and confidence is shown, the onus of proof shifts to the transferee to prove that the transferor made the transferor after full, free, and informed thought. The policy of preserving public confidence in relationships of trust and confidence allows otherwise valid transfers to be voided. Generally speaking, the courts will be more inclined to interfere to set aside a substantial gift or transfer, as opposed to gifts of a minor nature.

Any presumption of undue influence is rebuttable by showing that the transfer was made after full, free and informed thought. This is often done by showing that the transfer or obtained proper independent advice.

N.B. This doctrine of presumed undue influence does not apply to testamentary dispositions

Differing Burdens Of Proof– Wills versus Inter vivos Gifts or Transfers

A key point is the distinction made between gifts or transfers inter vivos as opposed to those made by will. As noted above, in the case of special “trust” relationships where a transfer is made during life, a presumption of undue influence will arise. Where the gift or transfer is made by will however, no such presumption arises and the plaintiff has the daunting task of proving actual undue influence.

In the recent case of Araujo v. Neto, 2001 BCSC 935, Justice Sigurdson does an exhaustive review of the case law.

Justice Sigurdson initially deals with the issue of onus of proof. He states:

A-The onus for proving undue influence for inter vivos gifts differs depending on the nature of the relationship between the parties. In the absence of a fiduciary or special relationship, the onus rests on the party alleging undue influence to prove it. However undue influence is presumed to apply to certain relationships or in certain circumstances and the onus shifts to the recipient of the gift to rebut it.

The Judge continues as follows:

Feeney in The Canadian Law of Wills, 3rd ed., Vol. 1 (Vancouver: Butterworths, 1987) draws a distinction between the burden of proof when alleging undue influence in the making of a will and in the case of an inter vivos gift made to a person in a special relationship, at page 42:

In the case of gifts inter vivos to persons standing in a fiduciary relationship, or some other relationship whereby the donee was in a position to overbear the donor, such persons must show that they did not influence the donor in making the gift. There is, so to speak, a presumption of undue influence. There is no such presumption in the case of wills. A person in a position to overbear a testator may exercise persuasion to obtain a will or legacy in his favour and it will stand in the absence of positive proof of undue influence by those who assert it.

Undue Influence in Gifts or Transfers

Lord Justice Cotton in Allcard v. Skinner (1887), 36 Ch. D. 145 (Eng. C.A.), at 171 spoke of undue influence in connection with two classes of voluntary gifts:

“First, where the Court has been satisfied that the gift was the result of influence expressly used by the donee for that purpose; second, where the relations between the donor and donee have at or shortly before the execution of the gift been such as to raise a presumption that the donee had influence over the donor. In such a case the Court sets aside the voluntary gift, unless it is proved that in fact the gift was the spontaneous act of the donor acting under circumstances which enabled him to exercise an independent will and which justifies the Court in holding that the gift was the result of a free exercise of the donor’s will.”

At page 181 Lord Justice Lindley said:

“The second group consists of cases in which the position of the donor to the donee has been such that it has been the duty of the donee to advise the donor, or even to manage his property for him. In such cases the Court throws upon the donee the burden of proving that he has not abused his position, and of proving that the gift made to him has not been brought about by any undue influence on his part. In this class of cases it has been considered necessary to show that the donor had independent advice, and was removed from the influence of the donee when the gift to him was made.

This remains an accurate statement of the law, although the courts have taken a more flexible approach to the second class of case and it is not always necessary to show that the donor had independent advice in order to rebut the presumption of undue influence.”

In Goodman Estate v. Geffen (1991), 81 D.L.R. (4th) 211 (S.C.C.) at 221 Wilson J. asked:

What are the factors that go to establishing a presumption of undue influence? This question has been the focus of much debate in recent years. Equity has recognized that transactions between persons standing in certain relationships with one another will be presumed to be relationships of influence until the contrary is shown.

She noted that these included the relationship between trustee and beneficiary, doctor and patient, solicitor and client, parent and child, guardian and ward and future husband and fiance.

Wilson J. in Geffen then said at pages 221 and 227:

“Beginning, however, with Zamet v. Hyman, [1961] 3 All E.R. 933, it came to be accepted that the relationships in which undue influence will be presumed are not confined to fixed categories and that each case must be considered on its own facts. Since then it has been generally agreed that the existence of some Aspecial@ relationship must be shown in order to support the presumption although what constitutes such a Aspecial@ relationship is a matter of some doubt.

It seems to me rather that when one speaks of Ainfluence@ one is really referring to the ability of one person to dominate the will of another, whether through manipulation, coercion, or outright but subtle abuse of power. … To dominate the will of another simply means to exercise a persuasive influence over him or her. The ability to exercise such influence may arise from a relationship of trust or confidence but it may arise from other relationships as well.

What then must a plaintiff establish in order to trigger a presumption of undue influence? In my view, the inquiry should begin with an examination of the relationship between the parties. The first question to be addressed in all cases is whether the potential for domination inheres in the nature of the relationship itself.”

In Ogilvie v. Ogilvie Estate (1998), 49 B.C.L.R. (3d) 277 (B.C. C.A.) at 295, the Court of Appeal, in the context of discussing the various judgments in Geffen, stated that:

The task to be undertaken by the court is to determine whether there existed in the relationship between donor and donee the potential for influence.@ In that case, the trial judge had stated the following at para. 41 of her reasons (reported at (1996), 26 B.C.L.R. (3d) 262 (B.C. S.C.):

A-In my opinion, the case before me is a classic case of the second category of undue influence, not the first. I agree that the Plaintiffs fall short of proving any unfair or improper conduct on the part of the Defendants. The rule of evidence applicable to the doctrine of undue influence doesn’t require the Plaintiffs to do so. They only have to show the Aspecial relationship of influence@ between the Grahams and Hugh Ogilvie in the sense that they managed his affairs or gave him advice and, therefore, had a duty to ensure he received independent advice before making substantial gifts in their favour. Then the burden shifts to the Grahams to show that Hugh Ogilvie had independent advice, or was free of their influence when making the subject gifts.

The Court of Appeal in Ogilvie, supra, concluded that the trial judge undertook the correct scrutiny of the relationship between the donor and the donee and the questioned transactions, and upheld her decision that a special relationship existed and that the presumption of undue influence had not been rebutted by the defendants.

Undue Influence in Wills

The decision of Scott vs Cousins 37 E.T.R. (2d) 113 summarizes the leading Canadian case on undue influence re wills, namely Vout v. Hay (1995), 7 E.T.R. (2d) 209 (S.C.C.)

A-The principles that I believe are established by the decision of the Supreme Court, and that are relevant here, can be stated as follows:

1. The person propounding the will has the legal burden of proof with respect to due execution, knowledge and approval and testamentary capacity.

2. A person opposing probate has the legal burden of proving undue influence.

3. The standard of proof on each of the above issues is the civil standard of proof on a balance of probabilities.

4. In attempting to discharge the burden of proof of knowledge and approval and testamentary capacity, the propounder of the will is aided by a rebuttable presumption.

Upon proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity. (at page 227)

5. This presumption simply casts an evidential burden on those attacking the will

6. The evidential burden can be satisfied by introducing evidence of suspicious circumstances – namely, Evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity. In this event, the legal burden reverts to the propounder

7. The existence of suspicious circumstances does not impose a higher standard of proof on the propounder of the will than the civil standard of proof on a balance of probabilities. However, the extent of the proof required is proportionate to the gravity of the suspicion.

8. A well-grounded suspicion of undue influence will not, per se, discharge the burden of proving undue influence on those challenging the will:

It has been authoritatively established that suspicious circumstances, even though they may raise a suspicion concerning the presence of fraud or undue influence, do no more than rebut the presumption to which I have referred. This requires the propounder of the will to prove knowledge and approval and testamentary capacity. The burden of proof with respect and fraud and undue influence remains with those attacking the will. (ibid.)

Suspicious Circumstances

Suspicious circumstances or are simply circumstances that arouse the suspicion of the court. In the leading case, Barry v. Butlin (1838) 2 Moo. P.C. 480, it was held that the court ought not to pronounce in favor of the will unless the suspicion is removed. That role has been extended to include all cases in which a will is prepared under circumstances which raise a well grounded suspicion that it does not express the mind of the testator. ( Clark v. Nash (1989) 34 E.T.R. 174 (B.C.C.A.)

Undue influence can be established on the balance of probabilities through circumstantial evidence. In Scott v. Cousins, 37 E.T.R. (2d) 113, the Court describes circumstantial evidence that may be considered in undue influence cases:

In determining whether undue influence has been established by circumstantial evidence, courts have traditionally looked to such matters as the willingness or disposition of the person alleged to have exercised it, whether an opportunity to do so existed and the vulnerability of the testator or testatrix. … The testatrix does not have to be threatened or terrorized: effective domination of her will by that of another is sufficient. … This, I believe, is a consideration of no little importance in the present case as well as in the increasing number of those involving wills made by persons of advanced age. Other matters that have been regarded as relevant, within limits, are the absence of moral claims of the beneficiaries under the will or of other reasons why the deceased should have chosen to benefit them. The fact that the will departs radically from the dispositive pattern of previous wills has also been regarded as having some probative force.

Examples of suspicious circumstances may include:

1) an elderly testator;

2) a testator who is unwilling to provide the solicitor with full information relating to the assets, liabilities, medical history, or family condition and circumstances;

3) a testator who has suffered significant ill health, particularly if the condition, disease, or medication could affect the mental stability or general mental outlook of the testator;

4) a disposition of the estate which seems unusual in the context of the circumstances as known to the testator.

5) a beneficiary who has been particularly involved in “assisting” the testator in the preparation of the will;

6) dispositions in the will drastically different from the terms of the former will;

7) circumstances where the testator appears dependent upon another, for example allowing the other person to speak on his or her behalf;

8) a testator with questionable testamentary capacity;

9) a testator who has had numerous wills prepared in a short period of time;

10) a testator who has recently contracted a hasty or unwise marriage; 11) a testator with a language, learning , intellectual or cultural disability;

12) a testator who has recently changed living circumstances, particularly one who moves in with the alleged perpetrator;

13) a will that makes no gifts to those seemingly appropriate;

14) a will prepared on instructions provided by the questionable beneficiary.

15) cases where the long lost beneficiary seems to arrive “out of the nowhere”

16) a testator suffering from depression/loneliness.

The existence of any one or more of these factors does not necessarily mean that the will is vulnerable to attack. However the presence of any one or more of these factors is probably the best avenue for plaintiff=s counsel to attack the will. Successful counsel will be vigilant as to these and other suspicious circumstances.

Practice tips on how to win an undue influence case

1) Before undertaking such a case, particularly on a contingency fee basis, counsel should consider being retained initially only to gather facts. This will assist both client and counsel in determining whether there is a good likelihood of success.

This may not be required if probable lack of testamentary capacity is apparent from the outset. The obvious difficulty with most undue influence cases is the absence of witnesses. Most often there are only two people involved. One is now dead and the other is not talking. Accordingly there are usually immense problems in determining the facts upon which to allege undue influence.

I simply stress that counsel should be very selective in deciding whether or not to accept such cases. Certainly the size of the estate should be considered when making this decision.

2) File a probate caveat right away, but do not commence the court action until you have sufficient proof to justify your allegations of undue influence. The defense may quickly move for a summary trial. The court may award costs or higher costs against your client if you cannot prove the allegations.

3) Consider retaining an experienced private investigator to assist in determining the facts. Undue influence cases demand a meticulous examination of the facts. The private investigator should take signed statements from any witnesses who have material evidence. I consider it necessary to interview almost every person who knew the deceased at the relevant times. Try to obtain a background report on the defendant. It may be surprising how often there may be evidence of prior undue influence allegations. Interview the witnesses to the will or transfer.

4) Get as many records as possible concerning the deceased. This would include all medical records from every doctor and medical institution for at least 10 years prior to death, together with all long-term care records, social work records, nursing home records, care facilities, work or school records (if appropriate), and the like. It would also include the lawyer=s notes, and perhaps the lawyer=s notes of previous wills. The majority of undue influence cases involve senior citizens and there is often an issue of testamentary capacity. I stress however that undue influence can occur in non senior situations such as for example, a young person joining a cult.

5) Marshall the suspicious circumstances and present them in the form of a compelling argument to prove the case (usually through circumstantial evidence). Look to stress situations showing a pattern of the defendant making the deceased more dependant ( ie isolating and limiting access)

6) Try to determine the names and addresses of the witnesses that the alleged perpetrator relies upon, and try to interview them. I have found that if the defendant appears to be flaky, (which is often the case ),then the old adage often applies Abirds of a feather flock together@ often applies. Having this information will assist you in your cross examination.

7) Recognize and benefit from the lack of sophistication of most perpetrators of undue influence. Usually perpetrators are unsophisticated in their methods. While undue influence is a form of civil fraud, the defendants are usually not particularly intelligent, skilled, or savvy.

8) Try to avoid a summary trial unless you have an overwhelming case. I have succeeded at trial, particularly through cross-examination, on cases which may well have been lost on a summary trial. On a summary trial the judge never has the opportunity to assess the credibility of the witnesses. As mentioned above, often these characters can be quite “flakey” and may contrast well with presentable and sympathetic plaintiffs.

9) In setting aside inter vivos gifts, take advantage of the presumption of undue influence where there is a special relationship situation. There often is a house keeping situation present.

10) Obtain expert opinion(s) from those such as geriatric psychiatrists(s) who never met the deceased. Have them review all of the records and tender an opinion on both testamentary capacity and the relative vulnerability of deceased to any undue influence.

11) Get on the case and take these steps as soon as possible. The family may come to see you prior to the death. Even where you cannot assist them to diminish any inappropriate influence, start to build your case as pro-actively as possible. This can involve everything from letters to doctors, banks and the Public Guardian, to obtaining an injunction or committeeship order.

12) Use demonstrative evidence such as home videos, photographs, handwriting samples and the like to try to demonstrate a “before and after” situation where there is evidence of medical or psychological decline.

13) Cross examine the handling lawyer or notary. Try and get an order to discover him or her for discovery. Even the most careful and senior lawyers may fall short in their duties. It can be highly effective to use the Law Society checklist to cross examine the lawyer. I refer you to Danchuk v. Calderwood 15 E.T.R.(2d) 193 where the Judge comments on the solicitors handling of the will:

In keeping with what I understand to be the law applicable to the duty of a solicitor, in the circumstances here, I accept the submission of counsel for the defendants that she failed with respect to that duty.

In my view, in the particular circumstances here, at the outset:

(A) she should have regarded the circumstances as suspicious having regard to the deceased’s advanced age and considerable seniority to that of the plaintiff as well as his apparent dependency upon her, including allowing her to speak for him;

(B) she should have undertaken an inquiry, including interviewing the plaintiff and the deceased separately with regard to the age difference and as to the independence of the deceased in giving instructions;

(C) the inquiry should have confirmed whether the deceased had a prior existing will and, if such a will existed, what were the reasons for any variations or changes there from prompting the disposition being put forward;

(D) the inquiry should have encompassed why and for what reasons the deceased had given a power of attorney to his daughter in late 1992 and, more importantly, why upon revocation of that power of attorney a new power of attorney was to be given by the deceased to the plaintiff; and,

(E) collateral to (D), supra, the inquiry should have included some investigation of the health of the deceased.

In this perspective, I understand the law to be that a solicitor does not discharge her duty in the particular circumstances here by simply taking down and giving expression to the words of the client with the inquiry being limited to asking the testator if he understands the words. Further, I understand it to be an error to suppose because a person says he understands a question put to him and gives a rational answer he is of sound mind and capable of making a will. Again, in this perspective, there must be consideration of all of the circumstances and, particularly, his state of memory.

If the solicitor had made such inquiry and had been made aware of the circumstances in a fuller sense, including the medical assessment of the ongoing progression and state of senile dementia, I am satisfied the said will would not have been prepared by her at that time.

14) Obtain medical opinions of treating physicians as to both testamentary capacity and whether the deceased may well have been more susceptible to undue influence given his or her medical condition.

15) Be bold and confident in the presentation of your case. The defense will always be skeptical and the court may be as well.

16) Be prepared to prove the relative inequality of the parties. The court should be made to understand any power differential. Age, infirmity and loneliness will likely render any person more vulnerable to inappropriate influences and this should be clearly demonstrated for the court.

17) Be prepared to prove the substantial unfairness of the will or bargain.

18) Prepare a chronology of relevant medical or factual events germane to your case.

19) Think hard and often as to how you will present your case.

20) Prepare and use a written opening at trial.

Conclusion

Undue influence case have always been difficult to prove for a variety of reasons, and probably will remain that way for some time yet into the future. I hope this paper’s outline of the law of undue influence, together with the twenty practice tips will bring success to plaintiff’s counsel in the future.

Further reading on undue influence:

Identifying Undue Influence

Undue Influence and Independent Legal Advice

23 Signs of Undue Influence in Dysfunctional Families