Rebutting the Presumption of Resulting Trust For Gratuitous Transfers

Rebutting the Presumption of Resulting Trust For Gratuitous Transfers

Rebutting the presumption of a resulting trust for the gratuitous transfer of property was discussed in Wong v Huang 2012 BCSC 975 and Frischnecht v Nowak 2018 BCSC 1430. In both cases the court reviewed the relevant authorities and found that the transfers of property in both cases had rebutted the presumption of a resulting trust.

The presumption of a resulting trust is rebuttable by proof on a balance of probabilities, given that were a transfer of property has been made for no payment, the onus is on the transferee to prove that a gift was intended.

Wong v Huang cited the leading case of Pecore v Pecore 2007 SCC 17 at para. 24. – Only the intention of the transferor is relevant, and intention is determined at the time of the transfer.

Pecore is the leading case on the presumption of resulting trust with respect to gratuitous transfers of property from one individual to another, and the legal decision as to whether the property should be treated as a gift or whether the property is subject to return or repayment as it is held in trust.

Pecore discussed two presumptions namely the presumption of a resulting trust and the presumption of advancement. The court described the nature of these competing presumptions at paragraph 24, and 27 – 28 respectively:

24. The presumption of resulting trust as 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- this is so because equity presumes bargains, not gifts.

27. The presumption of resulting trust is the general rule for gratuitous transfers. However, depending on the nature of the relationship between the transferor of the transferee, the presumption of resulting trust will not arise and there will be a presumption of advancement instead. If the presumption of advancement applies, it will fall on the party challenging the transfer to rebut the presumption of a gift.

28. Historically, the presumption of advancement has been applied in two situations. The first is where at the transfer is a husband and the transfer is his wife ( Hyman v Hyman (1934) 4 DLR 532 (SCC) at para. 538. The second is where the transfer is a father in the transferee as his child, which is at issue in this appeal.

Regardless of which presumption applies, either presumption may be rebutted by evidence on the ordinary civil standard of a balance of probabilities.

Pecore limited the rebuttable presumption of advancement with regard to gratuitous transfers from parent to child and be limited in application to transfers by mothers and fathers to minor children.

In the Wong decision, the transfer was made to the defendant minor child, but the plaintiff was not his mother or father. Thus the presumption of advancement did not apply.

Since the transfer was made without consideration, the presumption of resulting trust applied unless that presumption is rebutted on the balance of probabilities. Therefore the onus of proof was on the minor defendant to prove on a balance of probabilities that the plaintiff’s intention in making the transfer was to complete a gift of a one half interest in the property to the defendant.

It is only the intention of the plaintiff transferor that governs, not the intention or understanding of the transferee or anyone else- Rascal Trucking : Kerr v Baranow 2011 SCC 10.

It is only the transferor’s intention at the time of the transfer that matters. Thus if a transfer later regrets the transfer or changed his mind about his intentions, that does not change the nature of the transaction.

In the Wong decision the plaintiff was an 86-year-old man who transferred a one half interest in his property to his six-year-old great-nephew. At the time of trial the nephew was 12 years old.

The plaintiff and the infant defendant had a close relationship at the time of the transfer of the property, and the plaintiff was estranged from his own children.

The court concluded in Wong that on the balance of probabilities the plaintiff’s intention when he made the transfer six years before the trial date, was to make an unconditional gift to the defendant of the one half interest in the plaintiff’s home.

The court viewed several aspects to the circumstances relating to the transfer, and found that it was not an isolated event, but instead must be viewed in the context of the plaintiffs expressed intentions going back to 2000 when the defendant was born. At that time the plaintiff wrote letters that he signed to transfer to change the ownership of the home to himself of the defendant as co-owners, indicating he would be leaving the remainder of his estate to the defendant as well.

The plaintiff wrote letters indicating that the transfer had been completed, and that the ownership certificate indicated that he and the defendant were co-owners. The plaintiff’s lawyer created a joint tenancy, and not a tenancy in common, with the effect that so long as the joint tenancy was not severed, the entire legal interest in the property would best of the defendant, outside of his will, upon the plaintiff’s death.

In the Frischknecht decision the plaintiff and the defendant were unrelated but had a relationship akin to that of mother and son. The plaintiff signed over her share of the property to the defendant at a time when she was suffering from diminishing mental capacity.

Her biological children who lived in Europe challenged the transfer.

In May 2001, the plaintiff and the defendant executed a co- ownership agreement, which when read by the court, was evidence of an intention by the plaintiff to transfer the property as a gratuitous gift to the defendant.

Despite the plaintiffs diminishing mental capacity, the lawyer who handled the transfer testified that the plaintiff clearly understood what she was doing and wanted to gift her half of the property to the defendant.

The court was impressed with the evidence of the experienced, careful and diligent solicitor, who testified that there were no issues relating to undue influence or mental competency.

The court concluded that the gift was unconditional and that the plaintiff intended to gift her interest in the property without any conditions attached, and specifically without any conditions relating to the repayment of mortgage funds. The plaintiff intended that the property be transferred to the defendant without consideration.

In both cases the court found evidence sufficient to rebut the presumption of resulting trust.

Probate Fees and Capital Gains Taxes

Probate Fees and Capital Gains Taxes | Disinherited Vancouver

Re the Estate of Wilma Bouma 2018 BCSC 1466 involved in application brought by the administrator of the estate of the deceased for an order pursuant to section 2(4) of the Probate Fee act to increase the declared value as of death from $211,300-$315,000.

The deceased had use the notice of assessment issued in 2016 that set the value of the property at $211,300, while a subsequent appraisal indicated that the value of the property as of death was in fact $315,000.

The court found that the notice of assessment while issued in 2016, really reflected the relevant time of value for the assessment as of July 1, 2015, and not 2016.

The court ordered that the value of the property as of the date of death was $315,000 and directed that the probate registry process the supplemental affidavit of assets and liabilities based on the larger amount.

The court stated as an aside that the real reason for the application was to not only reflect the true value as of the property as of the date of death, but that the purpose of same was to in effect reduce the amount of capital gains taxes that would be payable on the property.

The effect of the increased value substantially reduce the amount of capital gains taxes payable on the approximate difference of $100,000, while the additional probate fee would only be 1.4% of the additional value namely $1451.

Loan or Gift Amongst Families

Loan or Gift Amongst Families - Disinherited

Zellweger v Zellweger 2018 BCSC 1227 discussed inter alia the criteria for determining if monies advanced within the family context are a loan or a gift.

Zellweger cited Byrne v Byrne 2015 BCSC 318 at para. 43 in which the court sets out the relevant factors for determining whether funds advanced in a family law context are loans or gifts:

“These were addressed in Kuo v Chu 2009 BCCA 405 at para. 9 , where the Court of Appeal adopted the factors described in Locke v Locke 2000 BCSC 1300 as applicable to the question of whether alone or gift was intended:

• Whether there were any contemporaneous documents evidencing a loan;
• whether the manner for repayment is specified;
• whether there is security held for the loan;
• whether there are advances to one child and not others, or advances of on equal amounts to various children;
• whether there has been any demand for payment before the separation of the parties;
• whether there has been any partial repayment; and, whether there was any expectation, or likelihood of repayment.

After reviewing the facts of the case, the judge in the Zellweger decision held that the funds were properly characterized as loans.

In Berry v. Page (1989) 38 BCLR (2d) 244 BCCA the appeal court discussed the importance of properly characterizing the nature of alone in order to determine when the limitation period under the previous Limitation Act begins to run:

“the characterization of the loan as either a contingent loan or demand loan determines whether or not the action is statute barred under the Limitation act. It is well-established of the cause of action accrues, and the statute of limitation runs, from the earliest time at which repayment can be required. For demand loan, the statute of limitations runs as of the date of the advancement of the funds, and not from the date of the demand. No demand is necessary in order for the cause of action to arise.”

S.46 WESA: Priorities of Distribution When Gifts Fail

S.46 WESA: Priorities of Distribution When Gifts Fail | Disinherited

Terezakis Estate 2018 BCSC 805 discusses section 46 of WESA relating to an interpretation of the residue of a will that dealt with its interpretation with respect to two of five children who had predeceased the will maker.

The two children who had predeceased the will maker also left children.

The residue clause of the will was confusing as to whether it was the intention of the will maker to leave the share of any child who might have predeceased the testator to the children of the predeceased children ie to the grandchildren of the deceased.

The court applied the armchair rule of construction that requires the court to put itself in the position of the testator at the time when the will was made and to construe the language from the vantage point in order to determine the actual or subjective intent of the testator –Re Burke (1960) O.R. 26 (C.A.).

The court noted that the will information sheet reflected that the testator presumed wishes to ensure that her grandchildren receive a share of the residue of her estate in the event that any of her children predeceased her. This was the expressed intention of the testator at the time the will was drafted, and the court applying the rule armchair rule, stated that it was the best evidence upon which the will should be interpreted by the court.

The court referred to both sections 42 and 46 of WESA.

Section 42 WESA states:

42. This section is subject to a contrary intention appearing in a will.

42(4)  gifts of property to a class of persons that:

a) is described as a will makers issue or descendants, or by a similar word and
b) b) encompasses more than one generation of beneficiaries, must be distributed as if it were part of an intestate estate to be distributed to descendants.

The court was also mindful of the presumption that a testator does not intend to create an intestacy- Milwarde-Yates v Sipila 2009 BCSC 277 at para. 49.

S.46 WESA states:

1) if gifts in a will cannot take effect for any reason, including, because of beneficiary dies before the will maker, the property that is subject of the gifts must, subject to a contrary intention appearing in the will, be distributed to the following priorities:

a) to the alternative beneficiary of the gifts, if any, named are described by the will maker, whether the gifts fail for a reason specifically contemplated by the will maker, or for any other reason;

b) if the beneficiary was the brother, sister, or a descendent of the will maker, to their descendants, determined that the date of the will maker’s death, in accordance with section 42(4) WESA (that refers to the particular words in a will);

S 46(2) states:

2) if gifts cannot take effect because of beneficiary dies before the will maker, subsection(1) applies whether the beneficiary’s death occurs before or after the will is made.

The court accordingly ordered that the distribution of the estate be made equally among her children and grandchildren, being the grandchildren of the predeceased children.

Security For Costs Applications

Security For Costs Applications

Parmar v. Timothy Hunstsman Law Corp. 2018 BCSC 1151 involved a successful application by the defendant that the plaintiff post security for costs for the court action brought by the plaintiff, who lived in Illinois and had no assets in the province of British Columbia.

The defendant prepared a bill of costs, allowing for a five-day trial, full day examinations for discovery, instructing experts, mediation and significant disbursements totaling $35,000.

The court ordered that the plaintiff post security for costs in the amount of $20,000 within 60 days of the court order, or if not paid, the action would be dismissed.

The plaintiff had brought court action against the defendant law firm alleging breach of contract and professional negligence.

The legal principles relating to the jurisdiction of the court to order security for costs by a non-corporate plaintiff arises from the inherent jurisdiction of the court. The order is a discretionary on that must be exercised judicially and in all interests of the parties–Sheill v Coach House Motel Ltd (1982) 37 BCLR 254 ( CA) at 264.

Security for cost applications are typically brought where there are concerns that the plaintiff will not satisfy a costs award made against it because the plaintiff resides outside the jurisdiction and has no assets within it. Those circumstances on their own are not determinative.

The law is clear that poverty should not be a bar to access the court. Access to the court should not be hampered by financial issues, except in special or egregious circumstances–Han v Cho 2008 BCSC 1229 at para 14.

The onus is on the applicant. In a situation where the plaintiff is a corporation, if the defendant can show that it will not likely be able to cover costs if the claimant fails, security is generally granted.

However, security for costs where the plaintiff is an individual requires a different balancing giving the access to justice concerns. The overall balancing is the risk that a successful defendant will be unable to recover costs of security is not granted against the risk that a legitimate claim could be stifled by an order. If the latter is in play, it will override the concerns of the defendant will not recover costs of successful.

The threshold issue is whether the applicant has established, on a prima face the basis that it will be unable to recover costs in the event of success- Equstek Solutions Inc v Jack 2013 BCSC 2135 at para 26-27.

The factors that courts hearing such applications have considered in the exercise of its discretion were listed in I. J. v J.A.M.- BCSC 270 at para 14:

1) the merits of the plaintiff’s claim;
2) whether the plaintiff is bankrupt or insolvent
3) whether the plaintiff has demonstrated an intention not to comply with previous orders relating to costs payable;
4) whether there is a risk the plaintiff is not findable;
5) whether there is evidence suggesting that a false description of residence or a false name has been given to the court or use generally.

The courts often cautiously approach the issue of the merits of the case in applications for security for costs, and typically should avoid going into detail in the success or failure appears obvious.-Wang v BC Medical Association 2011 BCSC 1659.

The courts in this decision did however rely heavily on the fact that the plaintiff’s state of residence is a non-reciprocating jurisdiction and that the plaintiff had no assets in British Columbia.

The plaintiff’s lawyer conceded that the plaintiff had the means to pay security for costs without impeding his ability to pursue the claim.

Admissible Extrinsic Evidence In S. 58 WESA Applications

Admissible Extrinsic Evidence in S. 58 WESA Applications | Disinherited

Admissible extrinsic evidence in S 58 WESA applications to “ cure” defective wills was discussed in Re Mace Estate 2018 BCSC 1284.

In short, the ordinary rules of admissibility apply.

Ordinarily, evidence must be relevant to a live issue and not be subject to exclusion under any other rule of law or policy to be admissible.

Relevance must therefore be assessed on a case-by-case basis , as set out in Regina v White 2011 SCC 13:

“In order for evidence to satisfy the standard of relevance, it must have some tendency is a matter of logic and human experience to make the proposition for which it is advanced, more likely than that proposition would be in the absence of that evidence”.

Under section 58 WESA inquiries to determine, on a balance of probabilities, whether a noncompliant document embodies the deceased testamentary intentions at whatever time is material. The task is inherently challenging because the person best able to speak to these intentions, namely the deceased is not available to testify.

In addition, by their nature, the source of documents being assessed will likely not have been created with legal assistance. Given this context, and subject to the ordinary rules of evidence, the court will benefit from learning as much as possible about all that could illuminate the deceased state of mind, understanding and intention regarding the document.

Accordingly, extrinsic evidence of testamentary intent is admissible on the inquiry –Langseth estate v Gardiner (19990) 75 DLR (4th) 25 at 33 ( Man. CA)

The case authorities discuss that the extrinsic evidence may include events that occurred before, when and after the document was created – the key issue in an application under section 58 is whether, on the balance of probabilities, the item placed before the court, the record or document or writing or marking on a will or document, was intended to have testamentary effect: that is, does it represent the deliberate or fixed and final expression of intention of the material time as to the to the disposal of the will maker’s property on death? The role of the court on an application under section 58 is not to determine the validity of the instrument per se, or the validity of the gifts contained within it, but determine whether the instrument represents the deceased testamentary intention- Re Smith Estate 2016 BCSC 350.

The BC Court of Appeal decision in Re Hadley Estate 2017 BCCA 311 confirm that section 58 of WESA does not require a basic level of compliance with the formalities of making a will. The consideration of the court is whether the document represents the testamentary intentions of its maker. The material time for determining these intentions will in many cases be the time at which the will was made. However, a document may acquire a testamentary character by subsequent and sufficient manifestation of the will maker’s intention.

In addition to the language of the document, extrinsic evidence of testamentary intent is admissible on the inquiry, such as the circumstances surrounding its creation and direct statements of the deceased. Such evidence benefits. The court, since the person who made the document will no longer be available to testify, and often the document will not have been made with the assistance of counsel.

The most common situation in which an application fails is where the court is simply not satisfied that the propounded document or record contains the will maker’s final thoughts are intentions with respect to the will or its alteration, revocation or revival, but is just a draft are some preliminary notes that are subject to change. As one court as put it, the curative provisions allow the court to overlook the formal requirements of the act, but not to speculate on the testamentary intentions of the deceased – Re Archer Estate 2005 SKQB 118 at para. 9

Admissions and Notices to Admit

Admissions and Notices to Admit are covered by rule 7-7 of the Rules of Court. A Notice to Admit is a very powerful and useful tool in civil litigation.

Rule 7-7(1) relates to Notices to Admit and states as follows:

1) in an action which a response to civil claim has been filed, a party of record may, by service of a notice to admit in form 26, request any party of record to admit, for the purposes of the action only, the truth of a fact or the authenticity of the documents specified in the notice.

2) Unless the court otherwise orders, the truth of a fact or the authenticity of the documents specified in the notice to admit, is deemed to be admitted, for the purposes of the action only, unless, within 14 days after service of the notice to admit, the party receiving the notice to admit serves on the party serving the notice to admit a written statement that

a) Specifically denies the truth of the fact of the authenticity of the document;
b) sets out in detail the reasons why the party cannot make the admission or,
c) states that the refusal to admit the truth of the factor the authenticity of the document is made in the grounds of privilege or relevancy or that the request is otherwise improper, and sets out in detail the reasons for the refusal.

Rule 7-7(5) deals with the withdrawal of an admission:

5) a party is not entitled to withdraw

a) An admission made in response to a notice to admit,
b) a deemed admission under several(2), or
c) an admission made in a pleading, petitioner response to petition

except by consent or with leave of the court

6) an application for judgment or any other application may be made to the court, using as evidence

a) admissions of the truth of a fact or the authenticity of a document made
1) in an affidavit or pleading filed by a party
2) in an examination for discovery of a party or person examined for discovery on behalf of a party, or
3) in response to a notice to admit, or
admissions of the truth of a factor the authenticity of a document deemed to be made under several(2)

The principles to be drawn from the authorities that govern an application to withdraw an admission of fact are set out in Hamilton v Ahmed (1999) 28 CPC (4th) 139 BCSC 11:

1. That the test is whether there is a triable issue which, in the interests of justice, should be determined on the merits and not disposed of by admission of fact;
2. that in applying that test, all the circumstances, should be taken into account, including the following:
3. that the admission has been made inadvertently, hastily, or without knowledge of the facts;
4. that the fact admitted was not within the knowledge of the party making the admission
5. that the fact admitted is not true
6. that the fact admitted is one of mixed fact and law
7. that the withdrawal of the admission would not prejudice a party
8. that there has been no delay in applying to withdraw the admission.

Admissions of fact are not lightly set aside.

The Hamilton case was followed by the BC Court of Appeal in Munster &Sons Developments Ltd v Shaw 2005 BCCA 564.

Judicial Recusal

Judicial Recusal | Disinherited Estate Litigation Vancouver

The issue of judicial recusal recently made the British Columbia media when a provincial court judge appeared to have shed tears while hearing a victim impact statement prior to sentencing the accused.The defense counsel made a motion for the judge to recuse herself, which she ultimately refused.

The law relating to judicial recusal was reviewed in Hokhold v Gerbrandt 2017 BCSC 1246 were claimant’s motion to the judge to consider recusal was dismissed on the basis. There is no cogent evidence to support a finding of reasonable apprehension of bias.

The legal principles of judicial recusal were summarized in Regina v Gaudaur 2007 BCSC 434 at paragraphs 3 – 16.

“ The threshold for finding real or perceived biases high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity. Indeed, an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice. Where reasonable grounds to make such an allegation arise, counsel must be free to fearlessly raise such allegation, yet this is a serious step that should not be taken lightly. “

The Supreme Court of Canada in Wewaykum Indian Band v Canada (2003) 2 SCR 259 at paragraph 57 stated:

“ Public confidence in our legal system is rooted in the fundamental belief that those who adjudicated law must always do so without bias or prejudice and must be perceived to do so”

In R v. RDS (1997)3 SCR 484 , the Supreme Court of Canada also stated that a system of justice, if it is to have the respect and confidence of its society, must ensure that trials are fair and that they appear to be fair to the informed and reasonable observer. This is a fundamental goal of the justice system. Any free and democratic society.

These qualities are of fundamental importance to our society and to members of the judiciary. Fairness and impartiality must be both subjectively present and objectively demonstrated to the informed and reasonable observer. If the words or actions of the presiding judge give rise to a reasonable apprehension of bias to the informed and reasonable observer, this will render the trial unfair.

Demonstrating actual bias is not necessary, even if it could be established. The appropriate inquiry is whether there is a reasonable apprehension of bias, as it is sometimes described, a “real likelihood or probability of bias”.

The apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question, obtaining thereon the required information. In the words of the Court of Appeal, that test is what would it informed person, viewing the matter, realistically, and practically, and having thought the matter through, conclude would he or she think that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly.

When the judge creates a reasonable apprehension of bias, the judge must recuse him or herself.

Production of Documents: Court Ordered Affidavit to Verify

Production of Documents: Court Ordered Affidavit to Verify | Disinherited

Grandmaison v Berkenbos 2018 BCSC 1329 reviewed the law relating to when a court will order an affidavit to verify the legal test for the court to order an affidavit verifying the production of a list of documents.

The trial lasted 165 days, and involved 31 interlocutory court applications.

The Supreme Court decision was review of the Masters order that ordered production of the affidavit verifying the list of documents.

The court upheld the Masters decision on the basis that the master had reason that the appellant’s attitude to production brought reasonable cause to suspect that relevant documents may be hidden.

The test was set out in Centura Building Systems v Blackcomb Mountain development Ltd 2007 BCSC 939 at para. 38”:

“ The court has the discretion, under rule 26 (3) to order such an affidavit were document production has been clearly in adequate, or where a party has displayed a dilatory or casual attitude to document production. However, an affidavit will not be ordered were there has been a genuine dispute about what is producible. Where case involves a large number of documents. Some flexibility may be required.”
The term clearly inadequate was described in Copithorne v Benoit 2010 BCSC 130 at para. 11:

Rule 26(3) of the Rules of Court provides that a court may order that a party provide an affidavit verifying a list of documents. A useful authority on this issue is the decision Foundation Company of Canada LTD v Burnaby (1978) BCJ 557 at paragraph 7

“When some documents which are significant to the defense her claim of one party have, for whatever reason, been omitted for many list delivered under rule 26

(1) in the absence of any adequate explanation or reason for such a mission, an order directing the delinquent party to deliver an affidavit verifying the list of discovered documents ought, in my view, to be made.

The term ”dilatory or casual attitude” has been described as an attitude that gives the other parties reasonable cause to suspect that either deliberately or by willful indifference, relevant documents may be hidden from them. Synergy management Group Ltd v Walker Systems Corp. ( 1992) BCJ2109 at paragraph 15.

The court concluded that the court may order a party of record to serve an affidavit verifying a list of documents and circumstances, including:

1. when document production has been clearly inadequate meaning documents that are significant to the defense her claim of one party have been omitted for many list delivered under the rule, and there is no adequate explanation or reason for the omission; or

2. When a party has displayed a dilatory or casual attitude to document production, giving the other party reasonable cause to suspect that either deliberately or by willful indifference, relevant documents may be hidden from them

In addition, an affidavit will not be ordered where there is a genuine dispute as to what is producible.

The court concluded that suspicions by themselves are sufficient for an order pursuant to rule 7-1(8) the suspicions in that case were supported by conduct that gave the other party reasonable cause to suspect that relevant documents may be hidden from them.

Gardner v Viridis Energy Inc 2012 BCSC 1816 frame the legal test as follows. At paragraph 52:

“ Rule 7-1(8) permits a court to order that a party provide an affidavit verifying its list of documents when the absence of any adequate explanation, relevant documents have been omitted from the list of documents. Such an order may also be made were party has shown a dilatory and casual attitude to production of documents, leading to an inference that either deliberately or by willful indifference, relevant documents may be hidden”

S. 58 WESA Refused to Cure Unsigned Will

S. 58 WESA Refused to Cure Unsigned Will | Disinherited Vancouver

In Poulk Estate 2018 BCSC 1321 the court declined to “cure” and last unsigned will and testament under the provisions of section 58 WESA.

The case does not stand for the proposition that under WESA and unsigned will cannot be cured under section 58. It really comes down to the specific fact pattern of each case.

It was not disputed that the will did not meet the requirements of a validly executed will as set out in section 37 WESA that provides as follows:

1) to be valid, a will must be

a) in writing,
b) signed at its end by the will maker, or the signature then must be acknowledged by the will maker as his or hers, in the presence of two or more witnesses present at the same time, and
c) signed by two or more of the witnesses in the presence of the will maker.

Subsection 2, provides that a will that does not comply with section 37(1) is invalid unless the court orders it to be effective as a will under section 58.

Before granting an order that a document is fully effective as a will pursuant to section 58 (3) WESA, the court must be satisfied that the document represents the testamentary intention of the deceased.

The leading case in British Columbia is the Estate of Young 2015 BCSC 182 at paragraph 17:

“ Section 58 of the WESA is a curative provision. It confers a discretion on the court to relieve against the consequences of noncompliance with testamentary formalities and a record, document or writing or marking on a will or document “. In prescribed circumstances, section 58 permits the court to address and cure issues of formal invalidity in such documents. It cannot, however, be used to uphold a will that is invalid for substantive reasons, such as testamentary incapacity or undue influence “

In Re Lane Estate 2015BCSC 2162 the court summarize the applicable principles of the Manitoba decision largely followed by the British Columbia courts, namely George v Daily (1997) MJ No. 51 (C.A.)

a) The standard of proof on an application under the curative provision is proof on the balance of probabilities;
b) the greater the departure from the requirements of formal validity, the harder it may be for the court to be satisfied that the document represents the deceased testamentary intention;
c) the requirements for formal validity of a will serve several purposes, or functions, including:
1) an evidentiary function by providing the court with reliable and permanent evidence of testamentary intention in the terms of the will, and
2) a cautionary function by impressing upon the testator. The Solomon T, finality, and importance of his or her actions in making his or her last will and testament
d) the evidentiary and cautionary functions are particularly relevant to the determination of whether or not a writing or document embodies the testamentary intentions of the deceased.
e) Not every expression made by a person, whether orally, in writing, concerning the disposition of his or her property on death embodies his or her testamentary intentions
f) the court held at paragraph 65:

“ the term testamentary intention means much more than a person’s expression of how he would like his or her property to be disposed of after death. The essential quality of the terms that there must be a deliberate or fixed and final expression of intention as to the disposal of his or her property on death Bennet, Moliinary v Winfrey (1961) SCR 91

The court continued at paragraph 33 that:

“ The factors relevant to the determination of whether a document that does not comply with testamentary formalities embodies the deceased testamentary intention or context specific. They may include the presence of the deceased signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests, and the title of the document.

In the Poulk decision, the purported will was a fill in the blanks form that was not completed by the deceased. In all likelihood the document was completed by a beneficiary of the will.

The will was not signed by the deceased and there was nothing on the face of the will to indicate the deceased knew and approved of the contents of the will.

The absence of any objective evidence that the deceased knew and approved of the contents of the will is particularly concerning as the will was drafted by one of the named beneficiaries and is not consistent with the previously expressed intentions of the deceased.

The deceased was in hospital, and died seven hours after the will was prepared.

The court further stated that even if there was sufficient evidence to establish the deceased knew and approved the contents of the will, it was far from clear that the will was a fixed and final expression of the deceased testamentary intention.

The court found that the hospital records of the deceased indicated that he may not of appreciated the severity of his illness or the imminence of his death.

The will departed from the requirements for a valid will under section 37 of WESA to a significant degree. While it was in writing, it did not bear the signature or indeed any handwriting of the deceased or the signatures of two witnesses.

The affidavit material fell short of compelling the court to find reliable evidence that the will was both final and authentic.

Accordingly, the court declined to exercise its curative remedies under section 58 WESA