Beneficiaries Can Disclaim an Inheritance

Beneficiaries Can Disclaim an Inheritance

You can refuse  or disclaim an inheritance

What do you do when a formerly beloved relative dies, bequeathing to you a piece of swampland polluted by atomic waste? Must you accept this “gift”? The legal answer is clearly “no” so long as you disclaim an inheritance in a timely fashion before receiving any benefit or otherwise dealing with the property.

There may be many reasons an intended beneficiary decides to disclaim an inheritance. Our law permits an intended beneficiary to simply refuse the gift. The purported gift is then deemed to be void ab initio (from the beginning). It becomes as if the gift had never been given.

There are rare exceptions to this right of disclaimer, largely limited to situations such as where a trustee has agreed to accept a conveyance of property.

In this article we will review some situations where beneficiaries have disclaimed an inheritance and the resulting legal consequences.

Legal requirements to disclaim an inheritance

The legal requirements to disclaim an inheritance are minimal. A disclaimer may be effected by contract, by deed, by writing or even informally through conduct.

The intended recipient of the gift need only renounce the interest, in effect, by saying “I will not be the owner of it”. The key is doing so before dealing with the property in any way.

The decision of Re Moss, (1977) 77 D.L.R. (3d) 314, is a good illustration of disclaimer by an informal act.

This case involved an elderly man chewing tobacco on the lawn of his local Kingdom Hall. As a result of this impropriety, the Jehovah’s Witnesses excommunicated him and a short time later he died – without having changed his will leaving everything to his church.

The church elders considered this gift and soon voted to disclaim the inheritance on the basis that it would be improper for them to accept such a gift from an excommunicated member.

When challenged in court, the court upheld the disclaimer, concluding the actions of the church elders were sufficient to disclaim an inheritance of the kind. Nothing more was required.

In doing so, the court cited Townson vs. Ticknell (1819) 3 B & Ald. 31, as the authority for the proposition that an estate cannot be forced upon a person. Further it is not necessary to go to trouble or expense to demonstrate that a gift is not accepted.

Note however the crucial question of timing. You may disclaim an inheritance only before the beneficiary has derived any benefit from the assets. Once a benefit has been taken, then the disclaimer can no longer be made. A. R. Mellows, The Law of Succession, p. 508.

When you disclaim an inheritance, it’s all or nothing

Where there is a single undivided gift, the law requires the donee to either take the gift entirely or disclaim it entirely: the donee cannot take only part of the gift and disclaim the rest.

This principle is illustrated in the following cases:

1. Guthrie v. Walrond (1883), L.R. 22 Ch.D 573. “Here the intended gift was all my estate and effects in the island of Mauritius”. The court held that the donee must take all or nothing and could not pick and choose.

2. Green V. Britten ( 1873) 42 L.J. Ch. 187. This involved a gift of 6 leasehold villas together with an ornamental park. The court held that this was one entire gift and the recipient could not take the villas alone and leave the park.

Retroactive to the Date of Death

Once made, a disclaimer will be retroactive to the date of death of the deceased. A beneficiary who disclaims a gift is refusing to acquire the property of another. Thus the effect of the disclaimer is that the property is never acquired. Re Metcalfe (1972) 3 O.R. 598.

What Becomes of the Disclaimed Gift?

When you disclaim an inheritance, unless there is a gift over, the disclaimed gifts will fall into the residue of the estate. Where a gift of the residue is disclaimed, in the absence of a gift over then an intestacy results. If no contrary intention appears in the will, the disclaimed residue will pass on an intestacy. Re Stuart (1964) 47 W.W.R. 500(check Cite)

In Re Backhouse (1931) W.N. 168 (Ch.), a specific legacy, once disclaimed, became part of the residue of the estate.

Where an intestacy occurs, the next of kin are to be determined, prima facie, as of the date of the testator’s death unless there is sufficient indication in the will to some other effect: McEachern v. Mittlestadt (1963) 46 W.W.R. 359.

To disclaim an inheritance is not a fraudulent conveyance

In Mulek v. Sembaliuk ( 1985) 2 W.W.R. 385, a couple married and had four children. Ten years later the husband’s father died leaving him an inheritance. Following the death, the parties commenced divorce proceedings. The husband ran up significant arrears of maintenance and alimony.

The husband disclaimed his interest in his father’s estate which prevented his wife and children from attaching these funds to satisfy the maintenance claim.

At trial the wife was granted an order setting aside the husband’s disclaimer on the basis that it was a fraudulent conveyance.

The Court of Appeal granted the husband’s appeal, holding that a disclaimer does not convey property, rather it avoids the gift being conveyed in the first place. The husband had no obligation to accept the bequest, in spite of his obligation to support his dependants. The husband did not convey property by disclaiming his interest thus this disclaimer could not be categorized as a fraudulent conveyance.

In the Bank of Nova Scotia v. Chan, 68 C. B. R. ( N.S.) 118, five will beneficiaries were named as co defendants in an action brought by a judgment creditor of one beneficiary who disclaimed his interest. The creditor alleged that the debtor defendant, by disclaiming his interest, had conveyed this interest with the intent to defeat or defraud creditors.

Once more the court held that a disclaimer of a beneficiary’s entitlement under a will is not a conveyance and therefore not covered by the Fraudulent Conveyances Act.

The court went on to say that should it be found that the defendant had received some form of kickback for giving up his interest, then that would be an assignment of interest rather than a proper disclaimer. Such an assignment might very well be a fraudulent conveyance.

Acceleration to disclaim an inheritance

A disclaimer may result in the acceleration of subsequent interests, thus permitting future heirs to take immediately.

Blacks Law dictionary, revised 4th edition, 1968 defines acceleration as “the shortening of the time from vesting in possession of an expectant interest – hastening of the enjoyment of an estate which was otherwise postponed to a later period”

The recent decision Clarke v. Di Bella 2010 BCSC 505 is a good example of such an acceleration which effectively wound up a lengthy trust.

Mrs. Bushby died in July 2007, leaving a will and an estate valued at $600,000. Her will created a trust with a life interest for her only niece with the residue divided equally among those of the daughter’s nieces/nephews alive at the time of her death. The will also provided that if any of those nieces/nephews predeceased the this niece, and they themselves had children, then their children would receive their parent’s share.

The niece was middle aged and had 3 nieces/nephews who, at the time of the hearing, were 28, 26 and 23 years of age. None had any children of their own.

The niece and her 3 nieces/nephews brought an action jointly, in which the daughter sought to renounce her interest in the trust and to have the property vest immediately and absolutely in her nieces/nephews equally.

The application was opposed by the Public Guardian who took the position that the acceleration would improperly extinguish the contingent interests of unborn beneficiaries of the will.

The court set out four clear principles relating to acceleration:

a) acceleration is presumed unless there is an indication to the contrary;

b) in assessing whether there is any intention to the contrary, the court must look at both the instrument and the surrounding circumstances;

c) the instrument must be examined in its entirety, and clauses must not be examined in isolation; and

d) the intentions must be viewed, as nearly as is possible, from the perspective of the testator, applying an objective standard.

The court held that while it is clear that the testatrix intended to provide for her daughter, there is nothing to suggest that the daughter could not disclaim that benefit and provide immediately for the ultimate beneficiaries upon her death.

The court held that the aunt was free to disclaim her entitlement thus accelerating her nieces/nephews’ interests in the estate. Each niece/nephew thus inherited one third of the estate upon attaining the age of 25 years (the age stipulated by the testatrix).

Conclusion

Beneficiaries cannot be forced to accept gifts. Beneficiaries have the right to refuse to accept gifts and may choose to do so for a wide variety of reasons.

The Clarke V. DiBella decision is an excellent example of the court permitting the a beneficiary to disclaim her interest, in order to accelerate the passing of an absolute interest to her own children.

General Rule In Wills Variation Actions Is Loser Pays the Winners Court Costs

Wills Variation Actions

Todd v Walker 2009 BCSC 537 is authority for the above proposition re costs.

The parties were half siblings.

The deceased left $1 to her daughter plaintiff, and the residue to her son, who was also the executor.

At trial the daughter was awarded %40 of the assets and was awarded double costs for trial and trial preparation as she had filed an offer to settle, and then did better at trial than the offer was for.

The court found that the decision to defend the action was his and his alone, so therefor he was personally responsible for payment of his sisters costs, rather than having his and her costs paid from the estate .

A helpful statement of the principles governing the issue of costs in estate litigation was set out by Martinson J. in Steernberg v. Steernberg, 2007 BCSC 953, in which she noted:

[21] In Vielbig v. Watertand Estate (1995), 121 D.LR. (4th) 485,1 B.C.L.R. (3d) 76 (C.A.), the British Columbia Court of Appeal approved the following summary of the law made by Master Horn in Lee v. Lee Estate (1993), 84 B.C.L.R. (2d) 341 (S.C.), with respect to costs in estate actions and actions under the Wills Variation Act:

An order for costs in favour of a completely unsuccessful party against a completely successful party is a most exceptional order. The general rule is that costs follow the event and, while a court may depart from this rule, any departure is usually in the way of depriving a successful party of costs and not of awarding costs to an unsuccessful party. In either case, the usual rule should not be departed from simply because an unsuccessful party did not expect to lose ….

In probate or administration actions or in proceedings for the construction of wills, the rule may be more frequently departed from. In such cases where the validity of a will or the capacity of the testator to make a will or the meaning of a will is in issue, it is sometimes the case that the costs of all parties are ordered to be paid out of the estate. This is upon the principle that where such an issue must be litigated to remove all doubts, then all interested parties must be joined and are entitled to be heard and should not be out of pocket if in the result the litigation does not conclude in their favour. The estate must bear the cost of settling disputes as a cost of administration …. The question to be asked in such case [sic] is whether the parties were forced into litigation by the conduct of the testator or the conduct of the main beneficiaries.

But the case is different where the litigation does not relate to the validity of the will or the capacity of the testator or the construction of the will. Actions brought under dependants’ relief legislation presume the validity of the will and the capacity of the testator and that his intentions are clear. There are not doubts to be settled. The remedies provided by such legislation are directed to the maintenance and support of the dependants of the testator and are based on public policy. The legislation does not invalidate the will, it merely permits the court to vary the provisions made by the testator. So an unsuccessful action under such legislation cannot be said to have been caused by a testator, or to have been necessary to enable the estate to be distributed. The action does not benefit the estate.

[5] Thus, in actions brought under the Wills Variations Act, the general rule is that the unsuccessful party is to personally pay the successful party’s costs.

Valuation of Trust Assets

valuation of trust assetsValuation of the  Fair Market Value of Trust Assets

It can often be difficult for the parties in estate disputes to agree upon the fair market value of trust assets that range from antiques, to recreational property, the former matrimonial home, to a small business, to a small empire.

Such was the recent problem in determining the value of the “empiric” estate of the late Jack Cewe, and litigation arising out of a contingency fee signed by a disappointed beneficiary of the estate with a Vancouver law firm. I will blog on the contingency fee issue on a subsequent date.

There was a tremendous range in the valuations of the assets of the estate ranging from one expert who valued the estate at $106 million and another who valued at 44.7 million.

At the taxation of accounts, the registrar found that the value lay in between the two valuations and validated the value at $65 million with little in the way of any mathematical breakdown or analysis.

The approach taken by the registrar was described by the Supreme Court judge on review as “holistic”.

 

The court followed the following excerpt in law from that of Cyprus Anvil Mining Corp. v. Dickson(1986) 8 BCLR (2d)145 (BCCA) :

 

The parties are in agreement that Cyprus Anvil Mining Corp. v. Dickson (1986), 8 B.C.L.R. (2d) 145 (C.A.) [Cyprus Anvil] is the leading authority with regard to the process the Court should follow in determining the fair market value of the trust assets. The registrar cited from Cyprus Anvil and then identified her task at para. 366 as follows:

[366] According to Cyprus Anvil, I must consider all useful evidence and mathematical calculations and apply my professional judgment to determine the fair market value to be ascribed to the Trust Assets. I am not required to accept or reject any of the expert opinions in part or in whole. The opinions of the expert witnesses are intended to provide guidance to me, but due to the unexacting nature of valuation (it is an art and not a science), I should be cautious in accepting any one opinion as correct. It is more likely than not that the value will fall somewhere between the parties’ expert opinions.

 

[135] The registrar was faced with great disparity between the expert opinions. The expert called by the Solicitors valued JCL at $106 million. The expert called on behalf of the Client valued it at $44.7 million. The registrar concluded that all the experts were qualified and she appears to have accepted parts of each of their valuations, while rejecting other parts. She ultimately found that the value lay in between the two valuations and valued JCL at $65 million.

[136] In Cyprus Anvil, the Court, at para. 54, summarizes the process to be followed in a valuation:

In summary, it is my opinion that no method of determining value which might provide guidance should be rejected. Each formula that might prove useful should be worked out, using evidence, mathematics, assessment, judgment or whatever is required. From all that has been done, the judge is still left only with a mixture of raw material, process material on which he must exercise his judgment to determine fair value.

Wills Variation- Adequate, Not Equal

Gray v Gray Estate 2012 BCSC 1310 is an increasingly common estate litigation scenario- a fight between the adult children of a first marriage and those of second or even third marriages, who are often much younger then the first set.

The law in BC is clear that under the Wills Variation act, a parent has a more obligation to treat his children adequately- it need not be even amongst them.

 

The Testator’s will gave cash bequests of $10,000 to each of his three children from first marriage, and bulk of his $630,000 estate to his son from second marriage.

The  Testator had limited contact with his children from the first marriage after divorcing their mother when children were young, although relationships improved somewhat when children grew up .

The Testator had a better relationship with his  son from second marriage because testator lived with this son throughout his childhood and as young adult .

None of testator’s children were wealthy and some had serious financial difficulties at times .

The  Testator’s two sons from first marriage brought application to vary will pursuant to s. 2 of Wills Variation Act

Their  Application was granted

The Court held that all of testator’s children had moral claims to his estate, which could be satisfied from testator’s estate

The alleged estrangement was not a valid reason for the testator to prefer the son from second marriage so significantly.

The Testator’s apparent desire to preserve the real property was not a valid or rational objective sufficient to negate moral claims of children from first marriage.

The Testator did not make adequate provision from his estate for maintenance and support of sons from first marriage .

Adequate, just and equitable provision could be made without dividing estate equally among three sons which recognized closer bond testator had with son from second marriage .

The residue of estate was divided one-half to son from second marriage and one-quarter each to sons from first marriage in addition to cash bequest.
In Ryan v. Delahaye Estate, Justice Smith stated, at para. 67:

“The adequacy of a moral claim is not easy to assess, especially where a child has not been disentitled, but has received something less than her sibling. In the absence of express reasons for an unequal distribution, contemporary standards create a reasonable expectation of children sharing equally in a parent’s estate. However no legal obligation exists to do so. The court must be cautious that it does not use the legislation to rewrite the will and thereby disregard the testatrix’s motives or reasons in distributing her estate in the manner she has chosen.”

180     In McBride v. McBride Estate, Justice Ballance noted that while equal treatment of independent adult children will generally be considered fair and equitable, equal treatment is not always required in order to make adequate, fair and equitable provision.

181     In this case I am of the view that adequate, just and equitable provision can be made for Gerald and David Gray without dividing the estate equally among the three sons; and an unequal division does provide recognition for the closer bond James Gray had developed with his youngest son as a result of the much different circumstances prevailing when Daryl Gray was growing up in his father’s home.
182     I direct that the residue of the estate be divided one-half to Daryl Gray and one-quarter each to David Gray and Gerald Gray. The one-quarter share of the residue payable to each of Gerald Gray and David Gray shall be in addition to the $10,000 bequest made to each of them in the will.

 

Mischievous Wills

mischievous willsLooking back on the innumerable wills that disinherited.com has reviewed, it is odd that I can really think of only one that was not so much mischievous, as just a “bad” idea  will.

Nevertheless, the result was that the deceased’s 6 cats and 2 dogs are maintained at great expense by a full time caretaker until  the last to live  ( 20 years for cats), and then to the residual beneficiaries.

We have certainly seen many malicious and vindictive wills, but none that were just outright mischievous.

 

Two well known Mischievous Wills cases are  those of Toronto lawyers Charles Millar and Sam Weir.

 

1. Sam Weir: Sam left a will leaving $3500 to the Law Society in trust to pay the income each year to the student graduating with the lowest marks.

His stated reason was that he knew many lawyers who had become successful by `keeping their lack of knowledge in the dark`.

 

He strongly recommended that the winner spend the money on a night on the town.

 

IF the Law Society accepted the gift, it was sweetened with a $10,000 bequest to be spent on the `Weir Lectures

 

`The Law Society refused the gift on the grounds that it was `not charitable

 

`2. By far the most famous Canadian mischievous will was that of Charles Millar, whose will ended up in exhaustive litigation that kept 30 lawyers, 9 judges and nine mothers embroiled in litigation for years.

 

. The preamble to Millar’s  will read as follows:

This will is necessarily uncommon and capricious because I have no dependants or near relatives and no duty rests upon me to leave any property at my death and what I do leave is proof of my folly in gathering and retaining more than I required in my lifetime.

In one clause of his will Millar gave a share in the Ontario Jockey Club to each of two opponents of gambling and to a competitor of the Jockey Club.

In another clause, he gave one share of the O’Keefe Brewery Company to each protestant minister and to each Orange Lodge in Toronto,

many of whom were firm proponents of temperance.

In another clause of the will, Millar devised his house in Jamaica to three friends who hated each other.

Finally he left the residue “at the expiration often years from my death … to the Mother who has … given birth in Toronto to the greatest number of children”.

The resulting “Baby Derby” contest was won by four Toronto mothers, each of whom had nine children born during the ten year period. The validity of this gift is discussed in the following case.

RE MILLAR (1937), [1938] S.C.R. 1. [1938] 1 D.L.R. 65. 1937 (Supreme Court of Canada)

Charles Millar gave the residue of his estate upon trust to convert and accumulate and to give the capital and accumulated income to the mother or mothers who had, in the 10-year period following his death, given birth in Toronto to the greatest number of children. As noted above, four mothers won the contest, each having had nine children during the period.

Millar’s next of kin contested the will on the ground that it was contrary to public policy.

They were unsuccessful at first instance*© and on appeal to the Ontario Court of Appeal. (3) They then appealed to the Supreme Court of Canada, which also agreed with the Ontario courts on this point and upheld the will.

Some of the children of the several contestants were illegitimate and it was held that the contests only applied to legitimate children.

– See more at: http://www.disinherited.com/blog/mischievous-wills#sthash.sYwlUS8B.dpuf

The Presumption of Due Execution In Wills

Due Execution In Wills

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Who Gets What When You Die Without a Will

Die Without a Will?

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

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

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

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

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

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

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

Charitable Intent Found In Impractical Trust, Cy-Pres Doctrine Applied

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

Will Invalid For Not Being Signed At Its End

Will Invalid

Ellis v Turner 20 ETR (2d) 306 BCCA involved a decision of the British Columbia Court of Appeal were by the court upheld the trial judge’s decision that the will of the deceased was invalid by reason of the fact that he printed his name at the top of the will document but not at the bottom of the document.

The will was declared not to be testamentary and the testatrix was declared to have died intestate

Section 4 of the wills act says that subject to section 5, a will is not valid unless at its end is signed by the testator or signed in his name by some other person in his presence and by his direction.

The same provision also provides that the testator must make or acknowledged his signature in the presence of two or more attesting witnesses present at the same time, and that two or more of the attesting witnesses subscribe the will in the presence of the testator.

” 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.”

Marriage Separation Agreement Not a Bar to a Wills Variation Claim

Marriage Separation Agreement

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

 

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

 

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

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

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

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

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

The court firstly reviewed some existing case law :

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

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

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

 

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

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