No Ademption of Gift in Will

No Ademption of Gift in Will | Disinherited Vancouver Estate Litigation

Re Wood Estate 2004 BCCA 556 at para. 1 describes the doctrine of ademption as

“ a rule of the law of wills, whereby a specific bequests “adeems” or fails, if at the testator’s death the specified property is not found among his or her assets – either because the testator has parted with it, or because the property has ceased to conform with to the description of it in the will, or because the property has been wholly or partially destroyed — the doctrine applies as a matter of law, irrespective of the testator’s intentions in the matter, although his or her intentions are clearly relevant to the anterior question of whether the gift is in question is a specific legacy (and therefore subject to ademption or a general one (not subject to ademption). The doctrine is also subject to the qualification that even if the gift in question is a specific legacy, it may be saved in some circumstances of the property has changed “ in name or form only “and still forms part of the testator’s property of the date of death ”.

A specific legacy was defined in Re Wood as being of something or interest, forming part of the testator’s estate, identifiable by a sufficient description is separated from the general mass of the estate in favor of a particular legatee.

A general legacy was described as a gift of something, which of the testator leaves sufficient assets, must be raised by the executors of his general estate.

The court described demonstrative legacies as a kind of hybrid between specific and general legacies. By their nature they are a general legacy, usually pecuniary, directed to be satisfied, primarily, but not solely, out of the specified fund or a specified part of the testator’s property.

In Re Thorne Estate 2018 BCSC 934 the testator under his 1997 will, bequeathed the proceeds of the sale of his home to his Goddaughter. The will also provided that if the Goddaughter so wished, she could retain title to the property, in which case she was to be responsible for paying out the reverse mortgage on the property or arranging refinancing.

The testator developed dementia 10 years later, and was placed in a special care facility costing in excess of $8000 per month.

There were virtually no other assets in his estate other than the house, and his power of attorney sold the house, paid off the substantial reverse mortgage and other charges, and set aside $50,000 for the testator’s ongoing care, with the balance being placed in an investment.

After the deceased’s death, the executors of his estate sought the court’s direction as to whether the gift to the God daughter of the sale proceeds of the house failed by reason of ademption, or if it formed part of his estate as a demonstrative legacy that was not subject to ademption so long as the sale proceeds were, as the were here, traceable and identifiable.

The court held that the gift was not a specific legacy, but instead was a demonstrative legacy and not subject to ademption as the sale proceeds were clearly identifiable.

The court applied the basic principle governing the interpretation of wills, as set out in National Trust Company, LTD v Fleury (1965) SCR 817 at 829:

“ In the construction of wills, the primary purpose is to determine the intention of the testator, and it is only when such intention cannot be arrived at with reasonable certainty by giving the natural and ordinary meaning to the words which he has use that resort is to be had to the rules of construction which have been developed by the courts in the interpretation of other wills. It is to be remembered that such rules of construction are not rules of law and that if their application results in attributing to the testator an intention which appears inconsistent with the scheme of the will as a whole, then they are not to prevail”

The court found that the deceased’s intentions were clear and that the natural and ordinary meaning of the words were sufficient to intend a gift to the Goddaughter of his residence, together with the option of retaining ownership of the residence under certain conditions.
The court found that the bequest was a demonstrative legacy and not subject to ademption so long as the sale proceeds were traceable and identifiable.

The court further stated that even if it was incorrect, and the bequest was specific in nature, the specific property in question had been changed “in name or form only, so that it exists as substantially the same thing, although in a different shape”.

Duties and Liabilities of Executors / Trustees

Duties and Liabilities of an Executor / Trustee | Disinherited Estate Litigation

The duties and potential liabilities for executor/trustees can be onerous and personally risky if not properly carried out.

It is extremely important that the testator’s choice of his or her executor be given serious consideration. The attending notary or solicitor must remember that most clients have very little understanding as to the tasks and requirements that a personal representative must perform and the responsibilities that must be assumed. The appointment of the wrong person can be a costly and emotionally draining experience for all concerned. Accordingly it is important that the will’s draftsperson investigate the desired appointment and provide prudent legal advice as to who should be chosen to be the executor and trustee. Very often that choice cannot properly be made until the attending notary or solicitor firstly enquires as to the nature of the assets and the intentions to be carried out in the will.

It is very important that the prospective personal representative be made aware of the onerous duties associated with acting in such capacity. An executor who does not wish to act, or who has not intermeddled in the estate, can renounce the appointment.

11 considerations to make before naming your executor

There are many questions that the testator should consider prior to naming his or her executor, some of which are:

(i) will the executor be willing to act;
(ii) is the executor sufficiently sophisticated to carry out the job;
(iii) is the person trustworthy;
(iv) is the person young enough or healthy enough to carry out the job;
(v) will the executor be biased;
(vi) will the executor be able to work well with the beneficiaries;
(vii) does the executor have the time to do the job;
(viii) can the executor afford to do the job;
(ix) is there any conflict of interest or potential conflict of interest;
(x) should there be more than one executor;
(xi) the distance between where the testator and the executor reside.

The nature of the client’s affairs must be thoroughly examined to determine the type of active business interests, assets in foreign jurisdictions, loans or gifts to beneficiaries and the complexity of the various personal property and investments in the estate.

Duties of a personal representative

An executor/trustee derives his or her title from the will of the deceased while an administrator on the other hand derives his or her power by appointment from the court. Whether executor, trustee or administrator, both are referred to as the personal representative of the deceased.

A personal representative has a duty to act solely and exclusively for the benefit of the beneficiaries. This duty is construed strictly and forbids a personal representative from making a profit that is not authorized or occupying a position where the personal representative’s self interests would conflict with the duty to the beneficiaries. The Courts of Equity have required personal representatives to ensure that each beneficiary receives exactly what he or she is entitled to receive under the will or the estate. The personal representative must maintain an “even hand” when dealing with all beneficiaries.
Where there is no will, section 130 of WESA sets priorities for persons applying for grants of administration. It is prudent to have each person entitled to an interest in the estate and each person with an equal or prior right to apply for letters of administration, provide written consent to the application. This eliminates the risk of competing applications and minimizes the risk of the court requiring an administrator to provide a bond or other security.

The personal representative has a duty in exercising all of his or her powers, whether discretionary or administrative, to maintain the standard of care of a reasonably prudent businessperson managing someone else’s property. Generally speaking, the personal representative cannot delegate his or her duties. The Courts in recent years however have permitted delegation of administrative duties that a reasonable and prudent businessperson would delegate in the management of his or her own business affairs. This would include the use of brokers, real estate agents, accountants, lawyers, and appraisers.

 

The personal representative’s general duties are as follows: 

Prior to the introduction of WESA on March 31, 2014 it was far easier for the personal representative to search for and locate the last will of the deceased. There are now a large number of documents and types of information that may be relevant to what is a testamentary instrument as the will itself is not necessarily a single instrument. For example, recent court cases have held that the will may consist of a will and codicils, a will with documents incorporated by reference, or several documents which, when read together, comprise one will. Other documents might be held to be testamentary instruments pursuant to section 58 of WESA so the lawyer must ensure that the client is advised to bring any and all documents that appeared to express a testamentary intention to the lawyer for consideration.
Section 58 of WESA also states that data recorded or stored electronically may be a will or a revocation, alteration or revival of a will or stated testamentary intention so that searches of the deceased’s electronic records need to be made in case there is a document that might be determined to be such a record. Even suicide notes have been held to be valid wills while various diary extracts have also beenconsidered by the court to be testamentary in nature.

(1) To dispose of the deceased’s body.

It is the executor and not the testator’s spouse or family, who has the right to determine the place and manner of burial. Section 5 of the Cremation, Internment and Funeral Services act, SBC 2004 sets the hierarchy of persons who are entitled to control the disposition of remains. At the top of the list is the personal representative named in the will of the deceased. The right of the executor takes priority over the right of a spouse or other close relatives. If the person who has the right to control disposition is unavailable or unwilling, the right passes to the next person on the priority list. Proper funeral expenses incurred are payable out of the estate. Generally, the person who instructs the funeral director will be personally liable to pay all expenses incurred, but is entitled to indemnity as a first priority against the estate for the reasonable expenses of a suitable funeral. There are some cases where the executor has been denied reimbursement of the full funeral costs where the costs have been found to be excessive under the circumstances.

(2) Searching For and Taking Possession or Control of the Deceased’s Assets.

The personal representative must take steps to search for any cash, jewelry, and valuables and arrange for their safekeeping. Any personal property must be locked up and properly insured. Other assets that may require insurance coverage must also be checked into. Financial institutions and government agencies must be notified of the death. Mail must be re-directed and the bills, including mortgages, must be paid. Rents must be either collected or paid and businesses must be managed for the interim until distribution of the estate or until the sale of the business. A personal representative must enquire as to whether they have sufficient legal authority to carry on the business, and must also be cognizant of the potential for personal liability for carrying on the business.
Property that does not pass to the personal representative includes joint tenancy with a right of survivorship, property that will pass to a named beneficiary, such as in a pension plan, or RRSP and property held by the deceased as trustee.

(3) Complete a Schedule of all of the Deceased’s Assets and Ascertain Their Value.

After the executor has taken charge of the assets of the estate and has made a full inventory of the assets and a valuation of same, the personal representative should then arrange to have an application made to the court for the issue of a grant of probate. In the case where the deceased dies intestate or without a named beneficiary, there is often a delay experienced in finding some appropriate person to step forward and apply for letters of administration. The Rules of Court assume that in practice, in the absence of special circumstances, the court will usually give priority to appointing as administrator of the estate, the person or persons who have the greatest interest in the estate. In practice, consents will be required from any person entitled to share in the estate who has a greater or equal right to apply. Thus, if two or more persons are equally entitled to apply, they must either apply jointly, consent to the appointment of one of them or have the appointment confirmed by the Court. There is no limitation on the number of administrators who may be appointed.

(4) Advertise for Creditors.

Before any debts of the estate are paid, the executor or administrator should see to the publication of the proper advertisement for creditors, claims and other claims against the estate. From my experience, common sense should prevail in deciding whether or not to advertise for creditors as the costs can be considerable. In the case of a deceased with simple assets and a history of paying his or her bills on time, it may not be necessary to publish such an advertisement. However, if the personal representative is to protect him or herself from liability, then serious consideration should be given to the placement of such an advertisement, as provincial legislation states that the personal representative shall not be personally liable to creditors where notice has been properly given and the assets of the estate have already been distributed.

(5) To Notify Beneficiaries, Possible Beneficiaries Such as a Possible Common Law Spouse and Persons Who Would Inherit On an Intestacy With Respect to an Application For Probate or Grant of Administration;

(6) Enquiries must be made with respect to the Canada Pension plan, obtaining full particulars of any insurance on the deceased’s life, reviewing beneficiary designations, which may be revocable or a revocable, and reviewing RRSPs and RRIF’s

(7) To Ensure That Investments Are Authorized.

There is a duty to examine the assets and investments of the estate and, in general, to convert in a reasonable and timely manner, the assets that do not qualify as authorized investments for the estate. The executor must be concerned with assets that may waste (ie, an unheated greenhouse) or that are too speculative (penny stocks) or reversionary assets;

(8) To complete and file income tax returns and where necessary obtain a Clearance Certificate from Revenue Canada. Previous tax return should be reviewed in order to discover assets of the deceased and an estate tax return must be filed for the year preceding the death of the deceased.

(9) To pay the debts, including funeral, legal, testamentary expenses, succession duties and probate fees.

(10) To claim all debts due to the deceased and generally collect all of the assets that form part of the estate.

(11) To keep accounts:

One of the most important duties of the personal representative is to keep records and to be prepared to account to creditors and to persons who have a beneficial interest in the estate. The personal representative must give to anyone to whom he or she owes a duty such information as that person reasonably requires. The type and amount of information varies but the duty to account is owed to beneficiaries, unpaid legatees, unpaid creditors, successors, trustees, others who may have an interest in the deceased’s assets and others provided for by statutes such as the Public Guardian or Revenue Canada.

(12) To Investigate, Continue or Bring and Maintain Court Actions on Behalf of the Estate:

A personal representative of a deceased claimant may continue or bring and maintain an action for a loss or damage to the person or property of the deceased in the same manner and with the same rights and remedies as the deceased, except for certain actions such as libel and slander, pain and suffering and loss of expectancy of earnings.

The personal representative should remain neutral in any litigation concerning the distribution of estate assets, such as a wills variation action under section 60 WESA, and to assist the parties in determining the net amount of the estate that might be available for distribution. A personal representative, however, cannot maintain his or her own court action where he or she and the estate are on opposite sides. If that situation arises, then the personal representative must resign. The exception is that section 151 WESA now allows a beneficiary to seek leave of the court to prosecute an action without the need to replace the personal representative first.

(13) To distribute the assets in accordance with the will or the laws of intestacy.

Potential liabilities of the personal representative:

In Ketcham v Walton 2012 BCSC 175 at paragraph 10 , the court stated that the basic principle of an executor’s duty to specified potential beneficiaries of the will is neutrality. The court quoted Quirico v Pepper estate (1999) 22 BCTC 82 BCSC : “The primary duty of an executor is to preserve the assets of the estate, pay the debts and distribute the balance to the beneficiaries entitled under the will, or in accordance with any other order made under the wills variation act. An executor should not pick sides between the beneficiaries and use estate funds to finance litigation on their behalf under the former Wills Variation act ( now Section 60 WESA). It is a matter of indifference to the executor as to how the estate should be divided.. He or she need only comply with the terms of the will or any variation of it made by the court.”

14. Debts and Liabilities

A personal representative may be personally liable for the debts of the deceased to the extent of assets coming into the hands of the personal representative. It is therefore extremely important that the debts are properly listed and valued in the inventory of assets and liabilities. Particular care must be given to not distribute the assets to beneficiaries until either a clearance certificate has been issued by the federal tax authorities or more than sufficient assets have been held back from any interim distribution, so that the taxes can be paid. Failure to pay federal and provincial taxes can result in personal liability for the personal representative. Personal representatives are strongly encouraged to use the expertise of a tax accountant, so as to determine capital gains and losses for income tax purposes, to calculate foreign taxes, and to determine what property tax if any, is payable. This list is not exhaustive.
Valuations may often be difficult and complex and again, the personal representative should use a professional appraiser, qualified accountant or other expert for determining such valuations.

15. Failure To Keep Accounts

A trustee has an obligation to keep proper accounts, including a complete record of his or her activities and be in a position at all times to prove that he or she administered the trust prudently and honestly. He or she must have the accounts ready to give full information whenever required- Sandford v Porter (1889) OJ No.43, 16 OAR 565 (CA)

A trustee who fails to retain receipts supporting substantial cash withdrawals of expenses charged against an estate has not adequately carried out his or her duties and may be held personally liable for the unsubstantiated withdrawals.

If a trustee has mixed his or her own funds with the funds being held for another, all of the property must be taken to be the other’s property until the trustee is able to prove what part of it is his or her own Norman estate (1951) OJ 501 CA.

The trustee, not the beneficiaries bears the onus of establishing that the management and disbursement of funds is consistent with the terms of the trust.

16. Using Trust Assets For Personal Gain

It is a basic principle of trust law that a trustee is not entitled to use the trust property for his or her own personal benefit. If the trustee cannot account for or explain disbursements or expenses charged against a trust, he or she is personally liable to the trust for those disbursements and expenses.
A trustee who improperly enjoys the benefit of trust assets without authority and allows non-beneficiaries, such as his family, to also benefit is liable to the trust for the amounts of the value of the benefits received -Langston v Landen 2008 ONCA 321

17. Improper Delegation to Third Parties and improper Charging of Fees

There is authority for the proposition that the fees paid by a trustee in respect of the preparation of accounts must be borne by the trustee and deducted from the amount of compensation payable Eisenstat Estate v O’Hara (1995) OJ 548.

There is also authority for the proposition that where the trustee delegates the care and management of a trust to a professional, the professional fees incurred by the trust are deducted from the compensation paid to the trustee . Holt Estate (1994) 2ETR (2d) 163

18. Reckless and Unreasonable Behavior

An executor/trustee may be personally liable for costs for reckless and unreasonable behavior that amounts to reprehensible conduct for the opposing plaintiff’s action for no other reason than to frustrate the plaintiff’s claim. From my experience this typically arises between competing siblings Craven v Osdacz 2017 ONSC 4396.

19. Losses Due to Actions or Inactions

If an estate suffers any losses as a result of an executor/trustee’s actions or inactions such as failure to rent real property, the executor is obliged to repay the estate for such losses with interest. Re Sangha 2018 BCSC 54. An executor/trustee may be personally liable for interest lost to the estate for failing to invest estate assets. Re Proniuk 1984 CarswellAlta 285.

20. Conflicts of Interest

Moffat v Weststein (1996) 29 O.R. (3d) 371 canvassed the duty of an executor/trustee to avoid conflicts of interest, and at page 390 stated ” subsumed in the fiduciary’s duties of good faith and loyalty is the duty to avoid a conflict of interest. The fiduciary must not only avoided direct conflict of interest, but also must avoid the appearance of a potential or possible conflict. The fiduciary is barred from dividing loyalties between competing interests, including self-interest.

21. Improper Investments

Executors/trustees are only authorized to make investments of estate assets as provided for under the Trustee Act and must not invest any estate assets in speculative or risky types of investments. They must undertake their responsibilities with the ordinary care and prudence of a reasonable investor Stranger v Royal trust Co (1947) 1 WWR 538 and may be found personally liable for losses incurred by the estate for improper investments.

22. Failure to Pay Income Taxes

Under the Income Tax act an executor trustee will be personally liable for any unpaid taxes, interest and penalties that may be payable by an estate if the assets are distributed before obtaining a clearance certificate from the Canada Revenue Agency certifying that all taxes, interest and penalties have been assessed and paid. As such, it is crucial for the personal representative to obtain tax advice from a properly qualified accountant and to withhold substantial monies to ensure sufficient funds to pay taxes, in the event that an interim distribution is made to the beneficiaries.

Conclusion

The duties and liabilities of a personal representative set out in this article are not exhaustive but do give an indication as to the number of factors to not only decide whether a person should be appointed to act as the personal representative, or alternatively agreed to act as the personal representative due to the onerous tasks and potential liabilities that can be imposed on an executor/ trustee.
A personal representative should always retain an estate lawyer and accountant for the purpose of handling the rigours of carrying out the duties imposed by the office of being a personal representative and avoiding the serious liabilities that can be personally imposed on him or her for improperly carrying out the duties associated with such a fiduciary duty.

Cross Examination On An Affidavit

Cross Examination On An Affidavit | Disinherited Vancouver Estate Litigator

In HMB Holdings Ltd v Replay Resorts Inc 2018 BCCA 263 the BC Court of Appeal reviewed the law relating to cross examination on an affidavit.

The authority to order cross examination on an affidavit is found in Rule 22-1( 4)(a) of the Supreme Court Civil Rules. It is a discretionary jurisdiction to which difference is owed.

The appeal court will not interfere with the decision to grant or refuse cross examination, unless the chambers judge has committed an error in principle in resolving the application.

The applicable principles to be applied when reviewing a chambers judgment by the Court of Appeal for refusing cross examination on an affidavit were discussed in Balla v Fitch research Corp. 2000 BCCA 448 which followed the decision of the BC Court of Appeal in Brown v. Garrison 63 WWR248 at paragraph 250:

“clearly, and it is being long so held, the judge has a discretion which he or she must exercise on proper principles as to whether or not cross examination should be directed on the application of a party. There is no question that in the normal course where the affidavit on which the cross examine is sought includes facts that are an issue, the deponent will be so ordered to attend if it application therefor is sought. But the circumstances may be such that the judge may properly exercise his or her discretion to refuse such an application, and in this case, I am of the opinion such circumstances existed. This court has great reluctance to interfere with the exercise of a judge’s discretion unless it is clear that that discretion has been wrongly exercised in that no sufficient weight has been given to relevant considerations or that on other grounds a miscarriage of justice resulted”

At paragraph 251, the court continued:

“if facts need to be determined the trial of an issue is an appropriate or even regular method for such determination, but if there is little or no dispute as to facts it is obviously quite proper for the judge to exercise his or her discretion to deal with the problem summarily. Here, although the facts were not admitted, they were not attacked so that, in substance, the learned judge had only to determine a question of law, or at the most a question of mixed fact and law.

The appeal court reversed the decision in Rheault v Rheault (1988) 2 BCLR (2d) 138 when it concluded that the chambers judge had erred in exercising his discretion as the facts deposed to in the affidavits were challenged and an issue, and the chambers judge had overlooked the real issue sought to be established by the cross examination.

In HMB Holdings the appeal court concluded that the chambers judge applied too strict a test to determine whether factual assertions were challenged, and in issue, holding that if the chambers judge’s conclusion were to be sustained, the respondents would be insulated from having their evidence tested on an application which was directed to the dismissal of the plaintiff’s case.

Accordingly, the court ordered cross examination of the affidavit in question.

What Constitutes Practicing Law

What Constitutes Practicing Law

Vogt v Scott 2015 BCSC 1725 reviews the essential elements of what constitutes the practice of law, as defined by the Legal Professions act.

There has been much discussion recently in the United States as to whether Michael Cohen was acting as President Trumps lawyer or not, or was merely something else, such as a “fixer”. A review of in excess of 1 million documents of Cohen’s determined  that most of them were outside the scope of practicing law and thus were not governed by the principle of solicitor client privilege.

The Vogt decision involved a dispute about a lawyers statements of accounts totaling $35,000, in which the lawyer was acting as a “parenting coordinator for the parties to assist in implementing the parenting plan for their children.

The court held that the lawyer in acting as a parenting coordinator was not in fact acting as a lawyer practicing law, as defined by the Legal Professions act, and thus the amount of the disputed accounts were not reviewable under the Legal Professions act, and instead were a matter of contract.

The same principle would apply to disputing an account rendered by a mediator.

The court defined the practice of law at paragraph 27 as follows…

Practice of Law includes:

a) appearing as counsel or advocate,
b) drawing revising or settling:
1) a petition, memorandum, notice of articles or articles under the business corporations act, or an application, statement, affidavit, minute, resolution, by law, or other documents relating to the incorporation, registration, organization, reorganization, dissolution or winding up of a corporate body;
2) a document for use in a proceeding, judicial or extrajudicial;
3) a will, deed of settlement, trust deed, power of attorney, or a document relating to a probate or a grant of administration or the estate of a deceased person
4) a document relating in any way to a proceeding under a statute of Canada or British Columbia, or
5) an instrument relating to real or personal estate that is intended, permitted or required to be registered, recorded or filed in the registry or other public office

c) Doing enactor negotiating in any way for the settlement of, or settling, claim or demand for damages;
d) agreeing to place of the disposal of another person the services of a lawyer;
e) giving legal advice;
f) making an offer to do anything referred to in paragraphs a-e;
g) making a representation by a person that he or she is qualified are entitled to do anything referred to in paragraphs a-e

Practice of law does not include:

h) any of those tasks if performed by a person who is not a lawyer or not for or in the expectation of a fee, gain or  reward, direct or indirect, from the person for whom the acts are performed
i) the drawing, revising a settling of an instrument by a public officer in the course of the officers duty;
j) the lawful practice of a Notary Public;
k) the usual business carried on by an insurance adjuster who is licensed under the financial institutions act;
l) agreeing to do something referred to in paragraph G if the agreement is made under a prepaid legal services plan, or other liability insurance program.

The definition provided by the legislation is inclusive and not exclusive.

The court concluded that the bills rendered by the parenting coordinator, even though he was a lawyer, to not represent a bill or fees, charges and disbursements to be paid to a lawyer or law firm for services provided pursuant to an agreement for the purposes of part eight of the Legal Professions act. As a consequence, the registrar had no jurisdiction, pursuant to the Legal Professions act to embark upon a review of the bill submitted.

Revocation of a Grant of Probate

Revocation of a Grant of Probate

The leading case in British Columbia on the revocation of a grant of probate is Desbiens v Smith Estate 2010 BCCA 394 .

That decision was decided on the basis of improper service of the application for the grant of probate under what was then section 112 of the Estate Administration act.

That statute was incorporated into the provisions of WESA and Desbiens v Smith Estate was followed in Al- Sabah Estate 2016 BCSC 1781.

The term revocation, setting aside, as well as recalling are all used interchangeably with respect to an order by the court to in effect cancel the grant of probate and make an order accordingly.

Such applications typically arise as a result of a necessary party not being served with the application materials and then subsequently learning of the grant of probate, and then seeking a remedy to set it aside so as to typically contest the estate.

Another fairly common situation that arises is where the executor fails to serve a common-law spouse of the deceased on typically the basis that the executor believes that it was not a true marriage like relationship that should give rise to the spouse being served with materials.

This in fact occurred in Shaw v Reinharrt 2004 BCSC 588, where the plaintiff in a wills variation action alleged that she had been the deceased common-law spouse as of the date of death. She brought court action 10 months after the grant of probate to the deceased’s sons, which was at that time approximately four months too late. The spouse argued that she had not been provided notice under the Estate Administration act, and the court instead granted the plaintiff leave to move the grant of probate to be recalled.

Similarly, in Somodi v Szabados 2007 BCSC 857 the plaintiff was a common-law husband of the deceased, and the executor under the will was the deceased son, but failed to acknowledge the plaintiff as the deceased common-law spouse, instead contending that the relationship was simply one of landlord and tenant.

The executor did not provide the plaintiff with notice of his application for probate, the plaintiff commenced action under the wills variation act more than two years after the grant of probate.

The court held in favor of the plaintiff stating that where the status of a common-law spouse is at issue, notice of the application for probate must be given and failure to do so, precludes reliance on the limitation period, which is currently 180 days after the grant of probate. The court granted the plaintiff leave to commence a claim and to seek to have the grant of letters probate set aside.

Probate is strictly speaking, the proof of the deceased’s will. In granting probate, ecclesiastical authorities, and later the common-law courts, certified the document proffered as the deceased last will was what it purported to be.

A grant of probate, however, has always had ancillary purposes as well. A court granting probate examines not only the authenticity of the will, but also its validity, both in terms of formalities of execution and capacity of the testator, and the legal capacity of the person appointed as executor, to act as such.

Courts have jurisdiction to revoke grants of probate where evidence discloses that the grant ought not to of issued.

There are numerous grounds in which probate can be revoked– for example, where subsequent wills of the deceased are discovered; where it has been found that the will is otherwise invalid; where has been determined that the testator is not in fact dead; where do sure that the executors under a legal disability ( minority or mental infirmity); and were probate has been obtained by fraud.

In short, where it is shown that a condition precedent to the grant of probate was not fulfilled , the court has jurisdiction to revoke the grant.

As far back as 1670 in Ravensroft v Ravenscroft 1 Lev 305, the court stated that the jurisdiction of the probate court to revoke a grant of administration is quite broad, though it ought to be exercised sparingly.

Implied Waiver of Solicitor Client Privilege Restricted

Implied Waiver of Solicitor Client Privilege Restricted | Disinherited

HMB Holding Ltd v Replay Resorts Inc 2018 BCCA 263 reviewed the law relating to implied waiver of solicitor client privilege and restricted it’s application.

Communications with respect to legal advice between a lawyer and the client is generally speaking a near absolute protection that cannot be disclosed.

In the ordinary course of litigation, the question of waiver of solicitor client privilege will arise in one of two ways:

1. a litigant will challenge a list of documents that asserts privilege over documents, and bring an application in relation to particular documents listed, but not disclosed;

2. a litigant may refuse to answer a question based on the assertion of privilege, permitting a narrow order to be sought together to the question asked on the scope of the waiver claimed.

The two leading cases on implied waiver of privilege prior to this decision were Doman Forest Products LTD v GMAC Commercial Credit Canada 2004 BCCA 512 and Soprema inc v Woldridge Mahon LLP 2016 BCCA 471.

In Soprema the BCCA explain the starting point for understanding the test for implied waiver at paragraph 50:

“ The starting point of an articulation of the test for implied waiver must recognize with the Supreme Court of Canada has made clear about the importance of solicitor client privilege. In R. v McClure 2001 SCC 14 at paragraph 35, the court said that solicitor client privilege must be as close to absolute is possible to ensure public confidence and retain relevance. As such, it will only yield in certain clearly defined circumstances, and does not involve a balancing of interests on a case-by-case basis. Furthermore, the court said at paragraph 17 that solicitor client privilege is part of the fundamental Canadian legal system-it has evolved into a fundamental than substantial of rule of law. This view was affirmed in Goodis v Ontario 2006 SCC 31 at paragraphs 20 – 21, where the Supreme Court of Canada made clear that communications protected by privilege should be disclosed only where absolutely necessary, applying as restrictive a test is may be formulated short of an absolute prohibition in every case quote”

In an Ontario judgment Creative Career Systems, Inc. v. Ontario 2012 OH NSC 649 at paragraph 31, cited Sopinka : The Law of Evidence in Canada, fifth edition, at4,159:

“waiver is not occur because the party discloses that he or she received legal advice, nor does it occur because the party admits that he or she relied on the legal advice; it occurs because the party chooses to use the legal advice is a substantial development of his or her claim or defence “

In Soprema the BCCA explained that voluntarily injecting into the litigation requires more than a statement of the litigants understanding of the law. It normally would require a pleading of reliance on legal advice (or the absence of legal advice as in Do Process LP v Infokey Software Inc 2015 BCCA 52).
In a proper case, evidence of such reliance. If it goes to a material issue may be sufficient, and even argument that the evidence shows reliance on legal advice can give rise to an implied waiver R. V Campbell (1999) 1 SCR 565

The appeal court in HMB Holdings overturned the Chambers Judge decision on the basis that the correct test for waiver was improperly applied when the judge concluded that by asserting that the conspiracy claim had been filed when it was filed to protect limitation period that the plaintiff was waiving privilege over solicitor client communications on the subject.

The court adopted the language in paragraph 51 of Soprema that the test relied on by the judge does not automatically give effect to the near absolute protection of solicitor client privilege mandated by the Supreme Court “