What Happens When You Lose Your Will?

What happens when you lose your will? Many people, in fact, do. They might be hoarders or they might be very careful people but they don’t appreciate that that document that they signed many years ago and took home is perhaps the original of a very valid document that only takes effect upon a death. So it’s important to safeguard where the will is kept.

The main reason is that if the will is lost while in your possession and then you die, you are presumed to have revoked that will and that the will no longer exists. This is a rebuttable presumption and the court will be allowed to look at whether you referred to the will, whether you referred to the will to your general nature as to what type of person you were and to any other previous wills that you might have done in an attempt to see if the presumption can be rebutted. The most important thing to remember though is to safeguard your will.

Mental Capacity and Marriage

This video is about capacity to marry. That’s mental capacity. We all know the story of Anna Nicole Smith and her love affair and marriage to the 94 year-old billionaire. After his untimely passing, there was years and years of litigation which centered on whether he had mental capacity to marry the late Anna Nicole Smith. It never did get resolved.

At common law, very little intelligence was required to enter into the simple contract of marriage. More recently, the courts have taken a more realistic and modern view that the contract of marriage is not as simple as it once was and that a higher standard of capacity is required.

Refusing Inheritance with Disclaimer

What disclaimer means is that if you inherit under a will, no one can force you to actually accept the inheritance. Now, why wouldn’t you want and accept an inheritance? But there are situations where it does exist.

For example, in one particular case, a deadbeat father had not paid child maintenance for many, many years. When his own father in fact died, and the deadbeat was about to inherit a substantial sum of money, he learned that his wife and his children were about to attach on to the inheritance. He accordingly disclaimed the interest in the inheritance just to further punish the wife and children and that right to disclaim was upheld by the courts.

Another benefit of disclaimer can be the introduction of the doctrine of acceleration. For example, if one person benefits for their lifetime and it is to be ultimately turned over to their essential beneficiaries upon their death, they can refuse the inheritance which will accelerate the inheritance of the residual beneficiaries. That can sometimes be advantageous to all parties.

When is Cy-Pres Doctrine Used in Vancouver?

What Cy-Pres Doctrine means is that the courts will try and find a general testamentary intentioned to benefit a charity. If that charity has been misdescribed in your will, the courts will try and find another charity of a similar fashion and intention to instead inherit.

For example, in Vancouver, everyone seems to think that there’s an entity known as Children’s Hospital. It is commonly used in verbiage but it does not legally exist. So if a will is written leaving the assets to a charity such as Children’s Hospital, and the charity has been misnamed, the courts will try and put their self in the position of the testator to find out what the true intention was in benefitting a particular charity and find a substitute charity to instead benefit.

Using DNA in Vancouver Estate Litigation for Proof of Paternity

DNA in British Columbia estate litigation is widely used and it is readily accepted by the courts as proof of paternity in particular. The first time I used DNA was in approximately 1991 when somebody committed suicide off a ferry. Their body was never found. A child from the Northwest Territories of Canada came forward and said that he was her father. She had no proof whatsoever of this. She had a photograph of him in which he looked somewhat like him but other than that, the marriage certificate and birth registration made no mention of this child.

We obtained DNA from the deceased siblings across the country and it concluded that 99.99 percent that she was his child. He died without a will. She inherited his entire estate. It is common to use DNA in estate litigation as many, many people find out late in life that who they thought was the father was in fact not their father. I recently had this happen of the 55 year-old man who found out that his father was not in fact his father and another man who had lived with the family was. It was quite a shock, needless to say. Court orders can be obtained to force people to grant DNA. It is a discretionary remedy but such an order can be obtained if it is necessary. I’ve done so in several occasions.

Obligations of a Power of Attorney

Obligations of a Power of Attorney

The Manitoba Supreme Court in Krawchuk v Krawchuk 2017 MBQB 47 outlined the legal obligations  of a power of attorney.

Manitoba’s laws for powers of attorneys are essentially the same as for British Columbia.

The Court stated inter alia as follows:

18      The applicable law with respect to the obligation of an attorney in his or fiduciary relationship with the donor was not at issue. Some of the applicable principles can be summarized as follows:

(a) as a fiduciary, an attorney has an obligation to act in the best interests of the settler or donor and cannot permit his or her personal interests to conflict with that obligation (see Brown v. Lefebvre, 2007 ABQB 195, 419 A.R. 347 (Alta. Q.B.) at para. 20);

(b) the obligations of an attorney include keeping proper accounts of the trust estate, distinct from other accounts and preserving receipts for cancelled cheques (see Re Lefebvre at para. 21);

(c) the obligations of an attorney include producing accounts to the donor, court and any beneficiary and insuring the accounts clearly show all monies and assets received or accounted for;

(d) an enduring power of attorney requires the highest commitment of good faith, loyalty and trust (see B. (E.) v. B. (S.), 2010 MBQB 15, 248 Man. R. (2d) 260 (Man. Q.B.) at para. 50; Todosichuk v. Daviduik Estate, 2004 MBCA 191, 190 Man. R. (2d) 254 (Man. C.A.));

(e) breach of a fiduciary relationship gives rise to the widest array of equitable remedies (see Todosichuk at para. 21; Wewaykum Indian Band v. R., [2002] 4 S.C.R. 245, 2002 SCC 79 (S.C.C.));

(f) equitable remedies are always in the discretion of the court which is concerned not only in compensating a wronged plaintiff but also in upholding the obligations of good faith and loyalty (see Todosichuk at para. 22; Canson Enterprises Ltd. v. Boughton & Co., [1991] 3 S.C.R. 534 (S.C.C.));

(g) the fiduciary relationship has trust, not self-interest, at its core, and when breach occurs, the balance favours the person wronged (see Todosichuk at para. 22; Canson Enterprises at p. 543 per McLachlin J. (as she then was)); and

(h) in considering whether to grant a remedy, and if so, the nature of the remedy, the question of deterrence is often most relevant (see Todosichuk at para. 25).

Determining Legal Fees When No Retainer Agreement is Present

Determining Legal Fees When No Retainer Agreement is Present

If a lawyer does not have a contingency fee agreement or retainer agreement then the courts will use various criteria to determine the appropriateness of the legal fees based on quantum meruit (a reasonable fee for services rendered).

One of the chestnuts in this area of law is the Court of Appeal decision from Saskatchewan – Yule v City of Saskatoon  1955 , 17 WWR 296 which adopted the criteria set out in Re Solicitor: 

11.  Re Solicitor (1920) 47 O.L.R. 522, supra.: the matters to be considered in arriving at a proper amount on the basis of a quantum meruit;  are:

1)  the extent and character of the services rendered,

2) the labour, time and trouble involved,

3) the character and importance of the litigation in which the services were rendered,

4) the amount of money or the value of the property involved,

5)  the professional skill and experience called for,

6) the character and standing in his profession of the counsel and

7) the results achieved.

Appointing and Removing a Litigation Guardian

Appointing and Removing a Litigation Guardian

Under Supreme Court Rule 20 – 2 (2) a proceeding brought by or against a person under a legal disability must be started or defended by his or her litigation Guardian.

A person is typically under a legal disability when under the age of 19 years, or has a disorder of the mind that seriously impairs the person’s ability to react appropriately to the court and its processes.

Rule 20 – 2 (8) (b) states that the proposed litigation guardian of the person under the legal disability must have no interest in the proceeding adverse to that person.

Rule 20-2 ( 1(11) states that if it is in the interest of a party who is under disability, the court may remove a point or substitute a litigation Guardian.

The Supreme Court of Canada, reviewed the criteria for appointing and removing a litigation Guardian in Gronnerud (Litigation Guardian of) v. Gronnerud Estate, 2002 SCC 38 (S.C.C.),

17      The Supreme Court of Canada, in its reasons at para. 3 and following, reviewed the history of the litigation and then reviewed the criteria for removing the litigation guardian. In so doing, the Court concluded that under the Saskatchewan Rule the test to remove a litigation guardian turned on the “best interests of the dependent adult”. The Court set out criteria that it found from leading Saskatchewan authorities, which criteria I find would also be required on the appointment under our Rules of Court. These criteria set out in para. 19 by the Supreme Court of Canada are as follows:

1. the evidence must establish that the incompetent is unable to act for himself or herself;

2. evidence should be verified under oath as to the incompetent’s mental condition and his or her inability to act as plaintiff;

3. evidence must demonstrate that the litigation guardian is both qualified and prepared to act, and in addition is indifferent as to the outcome of the proceedings;

4. the applicant should provide some evidence to support the claim being made;

5. the applicant should obtain the consents of the next-of-kin or explain their absence;

6. if the applicant has a personal representative or power of attorney whose status is not being challenged in the proceedings, some explanation should be offered as to why the attorney or representative has not been invited to bring the claim. (my emphasis added)

18      Major, J. speaking for the majority said this at para. 20:

The third criterion, that of “indifference” to the result of the legal proceedings, essentially means that the litigation guardian cannot possess a conflict of interest, vis-a-vis the interests of the disabled person. Indifference by a litigation guardian requires that the guardian be capable of providing a neutral, unbiased assessment of the legal situation of the dependent adult and offering an unclouded opinion as to the appropriate course of action. In essence the requirement of indifference on the part of a litigation guardian is a prerequisite for ensuring the protection of the best interests of the dependent adult. A litigation guardian who does not have a personal interest in the outcome of the litigation will be able to keep the best interests of the dependent adult front and centre, while making decisions on his or her behalf. Given the primacy of protecting the best interests of disabled persons, it is appropriate to require such disinterest on the part of a litigation guardian. (my emphasis added).

19      In upholding the removal of the adult children as their mother’s litigation guardian, the Court noted that they could not act in their mother’s best interest because they failed to meet this particular criterion of “indifference”. At para. 22, relative to “indifference”, the Court said this:

In my opinion, The Court of Appeal was correct in removing Judy and Glenn as Cherie Gronnerud’s litigation guardians and replacing them with the Public Trustee. Judy and Glenn could not act in their mother’s best interests because they fail to meet the third Szwydky criterion. Namely, they were not indifferent as to the outcome of the proceedings surrounding the estate of Harold Gronnerud, such as the claim under The Matrimonial Property Act and the claim for dependent’s relief. As residuary beneficiaries under Harold’s will, Judy and Glenn have an interest in proceedings that could result in the movement of assets from Harold’s estate to Cherie’s estate. As Cherie’s 1967 holograph will is not broad enough to cover all potential assets passing from Harold’s estate, those new assets would be distributed to all four of Cherie’s children equally in accordance with the laws of intestacy. If proceedings brought by Cherie’s litigation guardian against Harold’s estate are successful, Judy and Glenn could stand to gain more as beneficiaries with one-quarter interest each in Cherie’s newly increased estate, as opposed to residuary beneficiaries under Harold’s will. It is obvious that Judy and Glenn cannot be said to be disinterested in the results of the legal proceedings. The Court of Appeal was correct to remove them as litigation guardians.

20      Applying that rationale to the circumstances at bar, I am of the view that, like the adult children in Gronnerud, Alan in this case is not “indifferent” to the outcome of the proceedings. These are matrimonial proceedings in which assets may move from the defendant, Winston Lodge, to the Estate of Mary Lodge. That is what family litigation is about. There is a claim for reapportionment advanced in the pleadings. As such, Alan would benefit from having as much as possible of his father’s holdings being reapportioned to his mother. His potential inheritance would be enhanced in value as the result of him being a beneficiary under his mother’s will. Given her incompetency due to Alzheimer’s disease, it is unlikely that she will ever make another will, or be in a legal position to change her designation of Alan as a beneficiary. He therefore could never be said to be indifferent as to the outcome of this family litigation. The same rationale would apply to Dean Lodge.

21      Applying these decisions from Ontario and Saskatchewan to Rule 6(8) and 6(10) of the Rules of Court establishes in my mind the following principles with respect to a litigation guardian in British Columbia, namely:

(a) a litigation guardian will be found to have an “interest in the proceedings” adverse to the person under disability where there is a “high level of conflict”, between the proposed litigation guardian and a party in the proceeding;

(b) a litigation guardian will also have an “interest adverse to the person under disability” in those cases where the litigation guardian stands to benefit, either directly or indirectly by the litigation, even if that benefit has not vested at the time of the appointment. It is sufficient that the potential benefit, realistically assessed, is present.

Intention to Gift: The Legal Requirements

Intention to Gift: The Legal Requirements

A gift requires three elements  to be legally effected, namely an intention to donate, an acceptance of the gift, and delivery of the gift. All three elements must be present for the gift to be complete, and it is then irrevocable.

The gift is the voluntary transfer of property from one person to another without full consideration.
It is well settled law, as confirmed by the Supreme Court of Canada in the Pecore v Pecore  2007 SCC 17 that the courts look to the intention of the donor at the time of the transfer in order to determine if a gift was actually intended.
Anyone who intends to make a gift of property for little or no consideration must ensure that the intention of the donor is well documented. A Deed of gift given under seal, along with the statutory declaration of the intention to gift is probably the best evidence that the courts will rely upon.
The problem however is that a minority of purported gifts are not substantiated at all as to the intention of the donor, which then forces, the court to assess the reliability of the evidence, if any of intention to gift.
Probably the most common form of contentious gifts are the use of joint tenancy in both real property and investments. By reason of the nature of the joint tenancy, upon the death of a joint tenant, the surviving joint tenant automatically becomes the registered owner of the property by right of survivorship. This happens immediately upon death, and does not form part of the estate of the deceased or attract probate fees.
Common reasons for putting property in joint tenancy is to avoid probate fees or avoid a claim under the wills variation statutes, which are inconsistent with an intention to gift and will typically result in a claim of resulting trust being made against the surviving joint tenant.
Accordingly, a mere transfer of the legal title into joint tenancy is not conclusive as to the transfers intention as the beneficial interest may belong to the estate of the deceased and not the surviving joint tenant unless there was a clear indication of the transfers intention to gift.
While the courts will primarily look at the time of the transfer as to  the intention of the deceased as to whether a gift was intended, the courts may also consider the donors subsequent actions to the extent that those actions are relevant to the donors intention of the time of transfer.

Accordingly, a transfer of title into joint tenancy has three potential legal consequences:

A) an immediate gift of both legal and beneficial title;
B) a transfer of the legal title only, so that the transferee holds the property on a resulting trust for the transferor’s estate;
C) as recognized in the Pecore decision, a transfer of the legal title with a right of survivorship in the asset, but a transfer of beneficial title only upon the death of the transferor.

McKendry v McKendry  2015 BCSC 2433 followed the Pecore case and stated inter alia:

[109]   The legal principles applicable when considering a gratuitous transfer into joint tenancy are not in dispute. The basic question is whether the transferor intended to make a gift, or whether the transferee holds the property transferred on a resulting trust.

[110]   Pecore v. Pecore, 2007 SCC 17, is the leading case.

[111]   It is the actual intention of the transferor at the time of the transfer that is relevant: Pecore, at paras. 5,44 and 59. The presumption of resulting trust is a rebuttable presumption of law and general rule that applies to gratuitous transfers.

When a transfer is challenged, the presumption allocates the legal burden of proof.

Thus, where a transfer is made for no consideration, the onus is placed on the transferee to demonstrate that a gift was intended. See Pecore, at paras. 24 and 43.

Rothstein J. also noted (Pecore, at para.44):

[44]   As in other civil cases, regardless of the legal burden,

both sides to the dispute will normally bring evidence to support their position. The trial judge will commence his or her inquiry with the applicable presumption and will weigh all of the evidence in an attempt to ascertain, on a balance of probabilities, the transferor’s actual intention. Thus, as discussed by Sopinka et al, in The Law of Evidence in Canada, at p. 116, the presumption will only determine the result where there is insufficient evidence to rebut it on a balance of probabilities.

[112]   Accordingly, where a gratuitous transfer is being challenged, the trial judge must begin the inquiry by determining the proper presumption to apply and then weigh all the evidence relating to the actual intention of the transferor to determine whether the presumption has been rebutted: Pecore, at para. 55. In general, evidence of the transferor’s intention at the time of the transfer ought to be contemporaneous, or nearly so to the transaction: Pecore, at para. 56.

Nevertheless, evidence of intention that arises subsequent to a transfer should not automatically be excluded. However, such evidence “must be relevant to the intention of the transferor at the time of the transfer

Notice to Dispute: Understanding the Rules

Notice to Dispute: Understanding the Rules

A party wishing to contest the issuance of a grant of probate or administration may file a Notice to Dispute under Rule 25 (10) of the Supreme Court Rules.

While a notice to dispute is in effect, the registrar must not issue an estate grant. The court may, on application, remove the notice of dispute if the court determines that the filing is not in the best interests of the estate. A notice of dispute is in effect for one year after the date of filing unless renewed or removed by order of the court or the will is proved in solemn form. 

Re: Dow Estate 2015 BCSC 292 stated:

[14]         A person who is interested in an estate including an applicant for the estate grant could apply to set aside the notice of dispute pursuant to Rule 25-10(10). The court may remove the notice of dispute if the court determines that the filing is not in the best interests of the estate (Rule 25-10(11)).

Rule 25-10 — Notices to Dispute

(1)To oppose the issuance of an estate grant, an authorization to obtain estate information or an authorization to obtain resealing information or to oppose the resealing of a foreign grant, a person to whom documents have been or are to be delivered under Rule 25-2 (2) must file a notice of dispute that accords with subrule (3) of this rule before the earlier of:

(a) the issuance of an authorization to obtain estate information or an authorization to obtain resealing information, and

(b) the issuance of an estate grant or the resealing of a foreign grant.

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

Only one notice of dispute to be filed

(2)A person must not file more than one notice of dispute in relation to any one estate.

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

Contents of notice to dispute

(3)A notice of dispute referred to in subrule (1) must be in Form P29, must provide an address for service of the disputant, which address for service must be an accessible address that complies with Rule 4-1 (1), and must disclose

(a) that the disputant is a person to whom documents have been or are to be delivered under Rule 25-2 (2), and

(b) the grounds on which the notice of dispute is filed.

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

Amendment of notice to dispute

(4)A notice of dispute may be amended once without leave of the court, and after that only with leave of the court.

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

(5)Rule 6-1 (2) and (3) applies to an amendment of a notice of dispute without leave of the court and, for that purpose, a reference in that rule to a pleading is deemed to be a reference to the notice of dispute.

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

Renewal of notice of dispute

(6)The court may renew a notice of dispute, for any period the court considers appropriate, as follows:

(a) if the application for renewal is brought before the notice of dispute ceases to be in effect, if the court is satisfied that it is appropriate to make an order for renewal;

(b) if the application for renewal is brought after the notice of dispute ceases to be in effect, if the court is satisfied that

(i) there were good reasons that the application for renewal could not be brought before the notice of dispute ceases to be in effect,

(ii) substantial prejudice would be suffered by the person seeking renewal of the notice of dispute if the order for renewal is not made, and

(iii) no other person interested in the estate would suffer substantial prejudice if the order for renewal is made.

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

Application for renewal of notice of dispute

(7)Subject to Rule 8-5 (6), an application to renew a notice of dispute filed in relation to an estate must be made on notice to

(a) each person who has submitted for filing a submission for estate grant, or a submission for resealing, in relation to the estate,

(b) each person who has filed a notice of dispute in relation to the estate, and

(c) any other interested person to whom the court directs notice be given.

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

No grant while notice to dispute in effect

(8)While a notice of dispute is in effect in relation to the estate of a deceased, the registrar must not, with respect to that estate,

(a) issue an estate grant, an authorization to obtain estate information or an authorization to obtain resealing information, or

(b) reseal a foreign grant.

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

Withdrawal of notice of dispute

(9)A disputant may withdraw a notice of dispute by filing a withdrawal of notice of dispute in Form P30.

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

Application to remove notice of dispute

(10)A person who is interested in an estate in relation to which a notice of dispute has been filed, including, without limitation, an applicant for an estate grant or for the resealing of a foreign grant, may apply on notice to the disputant for an order removing the notice of dispute.

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

Grounds on which notice to dispute may be removed

(11)On an application under subrule (10), the court may, by order in Form P31, remove a notice of dispute if the court determines that the filing is not in the best interests of the estate.

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

When notice of dispute ceases to be in effect

(12)A notice of dispute in relation to an estate ceases to be in effect as follows:

(a) subject to paragraph (b), on the date that is one year after the date on which the notice of dispute was filed;

(b) if the notice of dispute has been renewed under subrule (6), at the end of the renewal period;

(c) if the notice of dispute is withdrawn by the disputant under subrule (9);

(d) if the will in relation to which the notice of dispute relates is proved in solemn form;

(e) if the court orders, under subrule (11) or otherwise, that the notice to dispute is removed.