Month: March 2020

Converting a Petition to an Action and Trial

Re Cameron 2020 BCSC 157 discusses the test to convert a petition to an action and to refer the matter to the trial list.

Under the Supreme Court rules many actions such as proof in solemn form actions must be commenced by petition, as opposed to notice of civil claim. ( See rules 1-2 (4) and 2-1(2)(b).)

When the petition is opposed it is necessary to apply to court to convert the petition to an action on the basis that there is a triable issue.

One of the leading case in British Columbia Milk Marketing Board v Saputo Products 2017 BCCA 247.

The Supreme Court chambers judge dismissed the application to convert the petition to an action and refer the matter to the trial list, and the Court of Appeal reversed that decision.

The appeal court stated that on the hearing of a petition, judge must be satisfied that there is no dispute as to the facts are law, which raises a reasonable doubt, or which suggests that there is a defense that deserves to be tried. If such a dispute exists, the judge may refer the matter to the trial is pursuant to rule 22 –1 (7) .

The test is not that used to determine a summary trial, but rather it is akin to that on an application for summary judgment under rule 9-6.

The cases do not establish an invariable rule as to what steps must be taken to resist a summary trial application.

On all such applications the issue is whether on the relevant facts and applicable law, there is a bona fide triable issue. The onus of establishing that there is not such an issue rests upon the applicant, and must be carried to the point of making it manifestly clear, which the court interpreted as much the same as beyond a reasonable doubt. If the judge hearing the application is left in doubt as to whether there is a triable issue, the application should be dismissed.

In essence, if the defendant is bound to lose, the application should be granted, but if he is not bound to lose then the application should be dismissed.

Thus the test for determining whether matter should be converted into an action is not that used for determining suitability for summary trial, but rather is akin to that applied on application for summary judgment. Accordingly, unless the judge is satisfied that there is no dispute as to the facts are law that raises a reasonable doubt, or which suggests that there is a defense that deserves to be tried, an application brought by convert petition should be converted into an action.

This approach was confirmed by the Court of Appeal in Kerfoot v Richter 2018 BCCA 238, which involved the petition to prove a will in solemn form. One of the deceased children oppose the application on the ground that the deceased lacked testamentary capacity and applied to have the petition converted into an action. The chambers judge dismissed the application, but the Court of Appeal reversed it, emphasizing that the test in Saputo required proceedings brought by petition to be referred to the trial list where there are disputes of fact or law, unless the party requesting the trial is bound to lose.

On the other hand, the party seeking to establish a triable issue cannot rely on “mere allegations”, and the court is entitled to draw inferences that are strongly supported by undisputed facts.

Trustee Disclosure to Beneficiaries

Al-Sabah Estate 2020 BCSC 169 reviewed the law relating to how much information beneficiaries are entitled to receive when seeking to hold a trustee to account.

The jurisprudence in British Columbia does not set out a precise or even a general list of what a beneficiary to an estate is entitled to seek by way of disclosure from an administrator or trustee, apart from what is required by the Rules of Court in the context of an application to pass accounts.

The court in Al-Sabah firstly framed the duty to disclose within the two sides of a fiduciary relationship because the trust divides legal and beneficial title to property between a trustee and a beneficiary, respectively the hallmark characteristic of the trust is the fiduciary relationship between the parties.

The trustee is to hold the trust property solely for the beneficiaries’ enjoyment. As a matter of law, this fiduciary relationship in turn impresses the office of the trustee was certain duties.

In particular three duties recognizing Canadian law, as fundamental:

A trustee must act honestly and with that level of skill and prudence, which would be expected of the reasonable person of business administrating his or her own affairs;
a trustee cannot delegate the office to another;
a trustee cannot profit personally from its dealings with the trust property, or if the beneficiaries of the trust.

Correspondingly the beneficiary of a trust has the right to hold the trustee to account for its administration of the trust property, and to enforce the terms of the trust.

In the Privy Council decision Schmidt v. Rosewood Trust ( 2003) JCJ 26, the Privy Council held that while the trustee has a fundamental duty to account for the trust property, a beneficiary simply by asserting a claim does not have an entitlement to disclosure as of right.

The strength of the claim must be assessed and balanced against competing interests, such as personal or, commercial confidentiality stated that the trustee has a fundamental duty to account for the trust property.

However, the extent of the trust information that will be ordered depends in the particular circumstances.

In Martin estate 2009 BCSC 1407 several beneficiaries made requests for information from the trustees of an estate is the parties prepared for a passing of the accounts. The beneficiaries in question were charities. The only remaining assets of the estate were corporate shares.

The trustees refused to provide some of the information sought by the beneficiaries because it was not available to them in their capacity as trustees, but as a result of confidential corporate relationship in the very Corporation, which comprise the remaining assets of the estate. They alleged that the information was commercially sensitive.

The court In re Martin estate concluded that the information sought by the beneficiaries ought to be provided. There was no unmanageable prejudice relating to an explanation for payment of sums to an individual and what was done to earn the money and in any event, the beneficiaries offered confidentiality agreements.

The court held that to order otherwise might also invite mischief in the trustees in future cases could concluded is open to them to incorporate companies to carry on estate business in order to shield themselves from scrutiny by the beneficiaries.

However, in McLean v. McLean Estate 2009 BCSC 292 the court held that a passing of accounts is not the forum for beneficiaries to embark in a “fishing trip” to find evidence of trustee bad faith or pursue other remedies against executors.

S.58 WESA: Suicide Note Valid Will

In Gregoire v Cordani 2020 BCSC 276 held that a signed but unwitnessed suicide note was remedied as per the curative provisions of section 58 WESA, and held to be a valid will.

The essence of the suicide note was as follows:

This is my will. Please respect my wishes.

Claude Gregoire common-law husband gets my apartment and all its contents and HSBC bank account.

Michael Cordani brother get all the rest RRSP account at HSBC
Stephen and Adam get nothing

Nobody, no doctors, is to blame. Please be happy for me.

Signed
Social Insurance Number

The court reviewed the law under sections 58 of WESA being the curative provision that provides the court with discretion to order that a record that does not conform with section 37 WESA is fully effective as a will.

The court must be satisfied on the balance of probabilities, first, that the document is authentic, and second, that the document records. The deceased deliberate or fixed and final expression of intention as to disposal of his or her property on death.

The court referred to the leading case in British Columbia , re Hadley Estate 2017 BC CA 311, which amongst other things stated that after creating the document, a will maker may, by words or actions, manifest a fixed and final intention that expresses how his or her property is to be disposed of on death, and thus that it operates as a will. In other words, a document may require a testamentary character by subsequent and sufficient manifestation of the will maker’s intention.

The burden of proof that a noncompliant document embodies the deceased testamentary intentions is a balance of probabilities. A wide range of factors may be relevant to establishing their existence in a particular case.

Although context specific, these factors 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.

Extrinsic evidence of testamentary intent is admissible on a section 58 inquiry, so long as it meets the ordinary rules of evidence.

The court concluded that there was no other will or testamentary document in existence.

A number of factors were considered by the court in reaching the conclusion the suicide note was a valid will, namely:

The document is referred to as a will and states her intention that the note be treated as such;
the note does not appoint an executor but specifically addresses the referred to two parties to please respect my wishes. The court held that this is a direction to those parties to act on her behalf;
the note was in the deceased handwriting and signed by her;
the note was not witnessed, but it does refer to her depression and appears to be written in contemplation of taking her own life. The court held that why the note was not witnessed and the lack of witnesses does not evince an intention that this was not to be treated as her will;
the note was found in her locked car by the place near where her body was found, indicating an intention that it be found;
the note was dated the same date that she went missing;
the deceased made specific bequests of major assets of her estate;
the note stated her social insurance number, bank account numbers and the address of her apartment;
the language of the note con vase an air of finality;
she left nothing to her two other brothers and mother, which was consistent with statements made to her common-law husband that she had decided to cut these people from her life;
the common-law husband stated that he and the deceased are discussed, leaving their respective estates to each other, but there is no discussion of what portion of the estate, so this is not inconsistent with the note
there are no allegations of testamentary incapacity or undue influence.

Elderly Will-Makers and Testamentary Capacity

The age of elderly will-makers has never been an element of the test for testamentary capacity.

In the leading case of Banks v Goodfellow (1870) LR 5QB 549 on testamentary capacity, the court underscored that it is a sound and disposing mind and memory that is the key to analysis of testamentary capacity and not the particular state of the body.

The Supreme Court of Canada in Laramee v Ferron (1909) SCJ No. 10, 41 SCR 391 endorsed a cautionary judicial approach when the will maker is elderly.

The Supreme Court stated that the courts must be careful not to substitute suspicion for proof. The court must not by extensively doing so rendered impossible for old people to make wills of their worldly goods.

“The eyes may grow dim, the ear may lose its acute sense, and even the time may falter at times and objects it attempts to describe, yet the testamentary capacity be ample.”

To deprive lightly the aged of the right to make a will would often to be to rob them of their last protection against cruelty or wrong on the part of those surrounding them, and their only means of attracting towards them such help, comforts and tenderness as old-age needs.

In order to make a valid will, the will maker must have a baseline level of mental acuity or a disposing mind and memory, sufficient to appreciate and comprehend the nature and effect of the essential elements of the testamentary act. This encompasses an appreciation of the claims of the persons who are the natural objects of his or her estate and the extent of his or her property of which he or she is disposing. Lazlo v Lawton 2013 BCSC 305 at para. 185.

The Ontario Court of Appeal case of re-Schwartz (1970) 10 DLR (3d) 15 t 32 stated:

The testator must be sufficiently clear in his or her understanding and memory to know, on his or her own, and in a general way:

the nature and extent of his or her property;
the persons who are the natural objects of his or her bounty;
the testamentary provisions he or she is making,
he or she must, moreover, be capable of appreciating these factors in relation to each other, and
forming an orderly desire as to the disposition of his or her property.

Wills Variation: Who are Children of the Deceased?

There is no definition of child or children in the wills variation act ( now Section 60 WESA), but the case law is clear that only a natural child or adopted child of the deceased can have the standing to bring a claim for a share of the testator’s estate if not adequately provided for. Lansing v Richardson 2002 BCSC 262.

Clayton v Markolefas 2002 BCCA 435 stands for the proposition that a child who is the natural child of the testator, but who was legally “adopted out” by an adoptive parent no longer has the status to bring an action under wills variation legislation, as the adoption is “for all purposes”.

In Peri v McCutcheon 2011 BCCA 401 a five-member panel of the Court of Appeal confirmed the law that where a child was in loco parentis with the deceased, but not formally adopted by the testator, was not entitled to bring a claim for a share of the testator’s estate under wills variation legislation.
In Peri the stepchild sought to challenge the will of her biological mother’s husband, which did not make provision for her. DNA evidence established that the testator was not the plaintiffs father, but the plaintiff’s birth certificate and Canadian immigration card indicated that the testator was in fact her father. After her birth. The plaintiff was placed in private foster care and had limited contact with the testator, but the testator did pay for some of her expenses.

The appeal court held that the plaintiff did not fit within the definition of children, but did clearly state that a question of whether it is appropriate for the word children to be expanded to encompass applicants who are not either natural or adopted children of the testator “ is one which should wait a more compelling factual foundation”.

Passing Over/Removal of an Executor Trustee

One of the most common enquiries in estate litigation relates to the beneficiaries’ dissatisfaction with the named executor/trustee and their intention to either pass over or remove him or her.

Passing over or removing an executor/trustee is very often a difficult task to achieve as the law has been clear for many years that the deceased’s right to nominate his or her executor is not to be lightly interfered with: Re Wolfe (1957) 7 DLR (2d) 215 at 219 (BCCA).

Passing over an executor utilizes essentially the same legal criteria as removing an executor except that a passing over occurs before the named executor starts to act in a representative capacity.

Section 158 of the Wills, Estates and Succession Act [SBC 2009] c. 13 (“WESA”)

Section 158 is a new provision where persons interested in the estate, including beneficiaries, intestate heirs, creditors and co-executors can apply to remove or pass over a person entitled to be the personal representative.

It must be noted that removal as a personal representative does not remove the person as a trustee, as the latter must be done under the Trustee Act. Whereas most personal representatives are named as the executor and trustee of the will, (or are court- appointed administrators), there is a distinction between the two roles of executor and trustee which can become important when applying to pass over or remove a personal representative, such as an executor.

S.158(1) defines pass over to mean grant of probate or administration to a person who has less priority than another person to become a personal representative.

A person having an interest in an estate may apply to the court to remove or pass over a person otherwise entitled to be or to become a personal representative.

S.158(3) codified some of the common law decisions by setting out some of the criteria that the court may consider in adjudicating an application to either pass over or remove a personal representative such as the named executor as follows:

a) refusal to accept the office of or to act as personal representative without renouncing the office;
b) is incapable of managing his or her own affairs;
c) purports to resign from the office of personal representative;
d) being a Corporation, is dissolved during liquidation;
e) has been convicted of an offense involving dishonesty;
f.) is an undischarged bankrupt
g) is:
i) unable to make the decisions necessary to discharge the office of personal representative;
ii) not responsive, or
iii) otherwise unwilling or unable to or unreasonably refuses to carry out the duties of a personal representative

The aforesaid criteria must show that the personal representative is hampering the efficient administration of the estate, or a person granted power over financial affairs under the Patients Property Act (RSBC 1996) c.349.

Section 159 WESA

Section 159 of WESA is also a new provision that states that if the court discharges or removes a personal representative, the court must appoint another person who consents to act as the substitute personal representative, unless the administration of the estate is completed or the court does not consider it necessary that a new appointment be made.

Cases Involving Passing Over

In Re Thomasson Estate, 2011 BCSC 481, the court passed over the named executor by reason of personal conflict of interest.

The court stated that the application was not to remove the executor but simply to pass over him so that an enquiry can be undertaken of the transfer of the property to him and his wife by the deceased in 2006, and a determination can be made if any further actions need be taken in regards to the property.

There was a perceived conflict of interest between the named executor in his role as an executor and his interest in his personal capacity regarding the property transfer that was being challenged and he was passed over.

In Re Haggerty Estate 21 WWR 85 BCCA, a grant was refused where the named executor had within the last year been convicted of a crime involving misappropriation of estate funds.

The court stated that while a testator’s choice of executor should not be lightly interfered with, this was a proper case where discretion should be exercised by refusing the grant to the named executor. The court discussed a long line of authorities which state that evidence of bad character alone is not a sufficient ground for refusing a grant.

However, in Re Oughton, 40 ETR 296, Oughton, a notorious sex offender who was sentenced to an indeterminate sentence, was not passed over as executor on the basis that his circumstances were not sufficient to justify passing him over.

In Stadelmier v. Hoffman 25 ETR 174, however, the court passed over one of four named executors where the other three intended to bring action against the fourth on the basis of undue influence with respect to some large inter vivos gifts. The court exercised its discretion to pass over due to the position of actual conflict that the fourth executor was in. He could not in his capacity of executor attack the gift to himself, while at the same time maintain in his personal capacity that the gifts were proper.

Courts are hesitant to interfere with the testator’s right to nominate his or her executor trustee.

The court does, however, have both a statutory power under s. 31 of the Trustee Act, RSBC 1996, c. 464 and an inherent power to remove or pass over a trustee or executor: Mardesic v. Vukovich Estate (1988), 30 BCLR (2d) 170 (BCSC); Seaton Estate, Re, 2003 BCCA 555 (BCCA).

In fact, in Crawford v .Jardine (1997) OJ No. 5041 at para. 18, the court stated that removal of an estate trustee should only occur on the clearest of evidence that there is no other course to follow.

The court further stated that it is not every mistake or neglect of duty on the part of the trustees which will lead to the removal. It must be shown by the applicant that the non-removal of the trustee will likely prevent the trust from being properly executed.

Section 31 of the Trustee Act (RSBC 1996) c. 464

If it is expedient to appoint a new trustee and it is found inexpedient, difficult or impracticable to do so without the assistance of the court, it is lawful for the court to make an order appointing a new trustee or trustees, whether there is an existing trustee or not at the time of making the order, and either in substitution for or in addition to any existing trustees.

In Mardesic the court removed the trustee because he was in a conflict of interest with the interests of all the beneficiaries of the estate, noting that s. 31 conferred a very broad power on the court.

The test for removal of an executor or trustee is set out in Conroy v. Stokes, [1952] 4 DLR 124 (BCCA), where the Court confirmed at pp. 126-127 that the main test for removal of a trustee is the welfare of the beneficiaries.

It is somewhat trite law that the court’s main guide in deciding to remove an executor or trustee should be the welfare of the beneficiaries: Letterstedt v. Broers (1884) 9 App. Cas. 371.

The sanction of removal of an executor or trustee is not intended to punish the executor or trustee for past welfare of the beneficiaries, but instead is to protect the assets of the trust and the interests of the beneficiaries. However, past misconduct that is likely to continue will often be sufficient to justify removal.

In Dirnbeger Estate (2016) BCSC 439 the court considered an application for removal and replacement of an executor. The executor had in fact retained numerous professionals to assist, but eventually dismissed each one due to his inability to maintain a professional relationship with them. After four years the estate remained undistributed.

The court, citing Conroy v. Stokes (1952) 4 DLR 124 set out the four categories of conduct on the part of an executor or trustee that warrant removal:

endangerment of the trust property;
want of honesty;
want of proper capacity to execute duties; and
want of reasonable fidelity.

The court removed the trustee due to his inability to discharge his duties after four years, and to maintain relationships with trustees, as well as his unaccountable hostility towards a sibling who was a beneficiary and an alternate executor.

Conclusion

The courts are most reluctant to interfere with the deceased’s right to nominate his or her executor/trustee, and it is only the most egregious conduct, that harms or potentially harms the best interests of the beneficiaries, that will prompt the court to pass over, or alternatively, remove an executor or trustee and substitute another.
Each case is very fact-specific and most applications to remove an executor are vigorously contested as there are often great personal conflicts between the beneficiaries and the named executor/trustee. However, emotional conflict is not a major factor in the court’s decision as to whether to pass over or remove an executor/trustee and substitute another.

Heavy Onus on Will Drafter to Check for Capacity

Friesen Estate (1985) Man QB 88 sets out the law relating to testamentary capacity in Manitoba, including the heavy onus on a lawyer , notary or will drafter who takes instructions to test for mental capacity.

77 The law reports of England and Canada are replete with lengthy decisions setting forth the principles to be applied when testamentary capacity has been challenged, and describing the standards expected of a solicitor who has drafted a challenged will. Banks v. Goodfellow (1870), L.R. 5 Q.B. 549; Tyrrell v. Painton, [1894] P. 151 (C.A.); Menzies v. White (1892), 9 Gr. 574; Murphy v. Lamphier (1914), 31 O.L.R. 287 (affirmed 32 O.L.R. 19); Leger v. Poirier, [1944] S.C.R. 152, [1944] 3 D.L.R. 1 (S.C.C.), and Slater v. Chitrenky, [1981] 4 W.W.R. 421, 10 E.T.R. 191, (sub nom. Re Campbell; Slater v. Chitrenky) 28 A.R. 54 (Alta. Surr. Ct.) [affirmed [1982] 3 W.W.R. 575, 11 E.T.R. 171 (C.A.)], are only a few. Rather than review or quote extensively from those cases, I will enumerate what I regard to be the basic rules to be garnered therefrom, as they apply to this case.

Proving testamentary capacity rests upon he who propounds the will or seeks to take advantage therefrom.
For a testator to be of a sound and disposing mind, he must understand the extent of the property of which he is disposing; he must be able to comprehend and appreciate the nature of the claims of others who might be expected to participate in his bounty.
Whenever a will is prepared and executed in circumstances which arouse the suspicion of the Court, it will not be admitted to probate unless the person propounding it produces evidence which is sufficient to remove the suspicion and to satisfy the Court that the testator both knew and approved the contents of the will.
The weight of the onus will be proportionate to the gravity of the suspicion raised in any particular case.
Neither the superficial appearance of lucidity nor the ability to answer simple questions in an apparently rational way are sufficient evidence of capacity.
The duty upon a solicitor taking instructions for a will is always a heavy one. When the client is weak and ill, and particularly when the solicitor knows that he is revoking an existing will, the responsibility will be particularly onerous.
A solicitor cannot discharge his duty by asking perfunctory questions, getting apparently rational answers, and then simply recording in legal form the words expressed by the client. He must first satisfy himself by a personal inquiry that true testamentary capacity exists, that the instructions are freely given, and that the effect of the will is understood.

78 In most respects these rules apply in the same way to both the second and third wills. Although the documents were executed approximately one hour apart, under somewhat different cirumstances, there is no reason to think that Jake’s mental condition had changed significantly for the better or the worse.

Proving testamentary capacity rests upon he who propounds the will or seeks to take advantage therefrom.
For a testator to be of a sound and disposing mind, he must understand the extent of the property of which he is disposing; he must be able to comprehend and appreciate the nature of the claims of others who might be expected to participate in his bounty.
Whenever a will is prepared and executed in circumstances which arouse the suspicion of the Court, it will not be admitted to probate unless the person propounding it produces evidence which is sufficient to remove the suspicion and to satisfy the Court that the testator both knew and approved the contents of the will.
The weight of the onus will be proportionate to the gravity of the suspicion raised in any particular case.
Neither the superficial appearance of lucidity nor the ability to answer simple questions in an apparently rational way are sufficient evidence of capacity.
The duty upon a solicitor taking instructions for a will is always a heavy one. When the client is weak and ill, and particularly when the solicitor knows that he is revoking an existing will, the responsibility will be particularly onerous.
A solicitor cannot discharge his duty by asking perfunctory questions, getting apparently rational answers, and then simply recording in legal form the words expressed by the client. He must first satisfy himself by a personal inquiry that true testamentary capacity exists, that the instructions are freely given, and that the effect of the will is understood.

78 In most respects these rules apply in the same way to both the second and third wills. Although the documents were executed approximately one hour apart, under somewhat different circumstances, there is no reason to think that Jake’s mental condition had changed significantly for the better or the worse.

BC Wills Variation Lawyer: Extending the Limitation Period

BC Wills Variation: Extending the Limitation Period

Trevor Todd and son Jackson Todd have over 60 combined years of legal experience in dealing with wills variation claims.

There is 180 day limitation period from the date of probate for wills variation claims brought under British Columbia’s Wills Variation Act ( now S 60 WESA) that may be extended under certain circumstances.

Under WESA, a claimant must start any court action within 180 days of the grant of probate to the executor of the impugned will. This allows for the timely distribution of the estate by enabling the executor to distribute the estate without fear of later claims.

At first glance, this the 180 day limitation period appears fixed with no discretion to extend that time limit, but there are three notable exceptions where the statutory time limit may in fact be extended.

1. The Limitation Act Exception

The first exception occurs where another claimant has already made a BC Wills Variation Act claim in respect of the same estate within the prescribed six month limit. In such a case s. 4 of the Limitation Act permits an additional party to commence his or her action relating to the same estate even after the 180 day limitation period.

As a practice note, it is extremely important for counsel to keep this exception in mind when seeking to settle any Wills Variation Act claim. Even though the 180 limitation period has long since elapsed, in the absence of a court ratified settlement, other eligible claimants could still decide to make a late claim.

2. The Equitable Doctrine of Estoppel

The second exception involves the doctrine of estoppel which in some cases can effectively prevent a defendant from successfully pleading that a Wills Variation Act claim is statute-barred. This exception arises from the law of promissory estoppel.

Halsbury’s Laws of England defines promissory estoppel as follows: “when one party has, by his words or conduct, made to the other a clear and unequivocal promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to their previous legal relations subject to the qualification which he himself introduced.”

In British Columbia, this equitable defence of estoppel has been successfully raised as a shield to defeat the defendant’s argument that the plaintiff’s Wills Variation Act claim is statute barred.

This caselaw has stemmed from the case of Maracle v Travellers Indemnity Co. of Canada (1991) C.P.C. (2d) 213 (S.C.C.) which held that promissory estoppel may prevent a defendant from relying on a statutory limitation where a plaintiff can establish the following three conditions:

that the defendants made an unambiguous promise or assurance that they would not rely on the limitation period;
that the defendants intended to alter the legal relationship between the parties; and
that the plaintiff reasonably relied upon the representation of the defendants and thus did not commence an action within the prescribed time.

In British Columbia, the case of MacDonald v. MacDonald Estate (1996) 8 W.W.R. 160 first established that this defense of promissory estoppel could be used in respect of an otherwise statute barred action under the B.C. Wills Variation proceedings.

This case involved the will of mother who died leaving two sons. To one son she left one dollar. To the other son, her executor, she left a residence. The disinherited plaintiff son had received proper notice of the application for a grant of probate yet brought his action after the limitation period had elapsed The defendant sought to have the case dismissed on the basis that it was time barred by virtue of s. 3 of the British Columbia Wills Variation Act.

The plaintiff argued promissory estoppel. He alleged that even before their mother’s death, the defendant had told him of the disinheritance but assured him he would nevertheless share the estate equally between them. Those assurances continued after her death and the plaintiff thus did hundreds of hours of work on the home.

This abruptly ended when the defendant reneged on the agreement two months after limitation period expired. The plaintiff argued that the defendant was estopped from relying on the limitation period.

The court held that the doctrine of promissory estoppel does apply to statutory limitation under the B.C.Wills Variation Act, saying as follows:

“In my opinion, the case and textual authority favours the position that estoppel is available as an argument whenever a limitation period is relied upon regardless of the source. It is admittedly easier to use the estoppel argument where the statute gives the court discretion to extend the limitation period. However, the absence of such statutory jurisdiction in the Wills Variation Act, in my opinion, does not preclude the court from exercising its equitable jurisdiction in considering the remedy of estoppel. [para. 54]”

The MacDonald case held that the requirements for promissory estoppel appeared to be met and the application by the defendant to dismiss the case as being out of time was dismissed. The plaintiff was permitted to proceed to trial.

This decision was cited with approval in the later decision of Chan v. Lee Estate 2004 BCCA 644.

In this later case, the trial judge found that estoppel by conduct effectively extended the BC Wills Variation Act limitation period by preventing the defendants from pleading the action was statute barred.

This case involved a Chinese family where the deceased father gave his sons the lion’s share of his estate. His daughters brought their Wills Variation Act claim three years after probate had been granted. The sons opposed the claim on the basis it was out of time.

The trial judge found that the sons were estopped by their conduct concluding that it would be “wholly inequitable” to permit the sons to succeed with their defence that the daughters action was statute barred. This finding was upheld by the Court of Appeal.

Needless to say, such late claims are clearly precarious. For example, the court refused to accept the claim of estoppel in Westover v. Cairns 2004 BCSC 1572. In that case a child commenced a Wills Variation Act claim slightly out of time. The child had hired a lawyer shortly after probate issued and the court found that he had clearly contemplated a Wills Variation Act claim at that time. The court found nothing in the correspondence or conduct of the other beneficiaries to evidence an unambiguous promise that they would not rely upon the limitation period. Thus the claim was dismissed.

3. Lack of Proper Notice of Intention to Apply for Probate.

The third exception involves s. 112(1) of the Estate Administration Act RSBC. This section requires an applicant for a grant of probate or letters of administration to give notice of the intended application to all those eligible to make a claim under the British Columbia Wills Variation Act. This notice is clearly designed to afford potential Wills Variation Act claimants a reasonable time to consider their options.

Desbiens v. Bernacki 2008 BCSC 696 dealt with a case where the deceased’s children did not receive the notice as required under the Estate Administration Act.

The case involved a deceased who had left his four young children in the care of the Ontario Children’s Aid Society. Other than brief and occasional contact, he had almost no contact with his children for the rest of his life. He moved to British Columbia where he remarried in late 2003 dying shortly thereafter. By his will he appointed his lawyer as his executrix and left his estate to his widow.

In giving wills instructions to his lawyer, the deceased had explicitly denied having any children. It was thus only after death that the executrix lawyer learned of the children when she found the names and addresses of three children amongst his papers. She mailed the required notices to those addresses.

The children learned of the death long after the passage of the limitation period and commenced a Wills Variation Act claim. The executrix and widow sought to have the children’s claims dismissed as statute barred.

The plaintiff children argued that the executrix had failed to take reasonable steps to give them proper notice as required under the Estate Administration Act and the defendants were therefore estopped from invoking the limitation period in defence of the claim.

The court conducted a detailed analysis of the steps taken by the executrix in an effort to comply with the notice provisions in section 112 of the Estate Administration Act and ultimately agreed with the Plaintiffs’ position.

Here the accuracy of the addresses was questionable as they were for individuals who had long been out of touch with the testator. Therefore the court ruled the executrix was required to take some further reasonable steps to confirm that any notices sent would likely reach the intended recipients.

The court was critical that the executrix had not applied for an order under section 112(3) of the Estate Administration Act for directions by the court with regard to the notices to be sent. In particular the court noted that she had presented no evidence of any steps taken to verify the currency of the addresses in the address book or of any research to find the plaintiffs’ current addresses. The court found that all of the addresses were long outdated and that none of the four children received any notice.

Citing the case of Chan v. Lee, the court ruled in favour of the timeliness of the children’s claim. The court ruled that the executrix failure to take reasonable steps to determine the correct addresses was conduct which estopped or prevented the defendants from raising the limitation defence. Bracken, J. held that the plaintiffs claim should not be dismissed as statute barred but rather should proceed to trial.

Wills Variation: Lump Sum or Periodic Payments

There is both prior court authority and statutory authority in S 64 WESA that allows the court to exercise its discretion to release a part of the testator’s estate either as a lump sum or periodic payments for a spouse or children in a wills variation action.

The court also has jurisdiction to create a trust in favor of the will maker’s spouse or children and the authority to order a transfer of property into the trust.

Prior to WESA , in Hecht v Hecht (1990) 39 ETR 165 BCSC the court held that a legacy under a will can be paid notwithstanding a pending claim for variation when the risk of the variation order will encroach upon the funds needed to satisfy the legacy is remote.

Paragraph 42 of Hecht states the factors to be considered by the court when deciding whether to exercise its discretion to release part of an estate from the effect of a variation order include:

A. The amount of the benefits sought to be distributed as compared to the value of the estate
B. the claimant the beneficiaries on the testator
C. the need of the beneficiaries for money;
D. the consent of the residuary beneficiary to the proposed distribution

Davis v. Burns 2016 BCSC 1982, also allowed an interim distribution to a beneficiary under a wills variation action, where the court specifically exercised its inherent jurisdiction to do so.

The court ordered that more than 50% of his potential residual share, despite the objection of another residuary beneficiary, citing lack of prejudice, since the distribution only amounted to 10% of the total value of $2,500,000.

The court followed the criteria previously set out in Hecht.

In Davis, the court held that, having regard to the plaintiff’s financial need in the amount of the benefits to be distributed from the estate, the distribution to the plaintiff would not prejudice the estate or the executor’s duties.

Wills Variation: Moral and Legal Duty Owed to Infants

A willmaker, (formerly known as a testator), owes both a Legal and a Moral obligation to an infant child under wills variation caselaw ( now S 60 WESA).

In B. v. Taylor 2008 BCSC 1498 is one of the surprisingly few cases to discuss what the appropriate division of an estate is when considering an infant child or children.

The deceased left his entire estate to his common-law spouse. The deceased had a love child with another woman just a few years before he died. They never met.

The case was essentially one of that between the infant child and the common-law spouse as to the apportionment of $1 million estate.

The court ruled that the defendant’s submission that the value of the deceased child should be based on the amount of child support over the child’s life, was held by the court to not be helpful as it was only calculated as the lowest amount that would have been payable.

The common-law spouse was not dependent and she had significant assets derived primarily from her relationship with the testator. Accordingly the infant child was awarded 65% of the estate as the child’s claim to priority over that of the common-law spouse, who is not dependent

The Court essentially followed the leading case and awarded the infant child 65% of a $1 million estate:

7 Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807 (S.C.C.) is the governing authority. In Tataryn, the Court considered the language of s. 2 of the Wills Variation Act and the words “adequate, just and equitable”. McLachlin J., who delivered the judgment of the Court, stated that the obligations which the law would impose on a person during his or her life must be the first consideration. As to such obligations, she stated at paras. 821-22:

… It follows that maintenance and property allocations which the law would support during the testator’s lifetime should be reflected in the court’s interpretation of what is “adequate, just and equitable in the circumstances” after the testator’s death.

The legal obligations on a testator during his or her lifetime reflect a clear and unequivocal social expectation, expressed through society’s elected representatives and the judicial doctrine of its courts. Where provision for a spouse is in issue, the testator’s legal obligations while alive may be found in the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp), family property legislation and the law of constructive trust …. The legal obligation of a testator may also extend to dependent children. And in some cases, the principles of unjust enrichment may indicate a legal duty toward a grown, independent child by reason of the child’s contribution to the estate. The legal obligations which society imposes on a testator during his lifetime are an important indication of the content of the legal obligation to provide “adequate, just and equitable” maintenance and support which is enforced after death.

8 Reference was then made to the testator’s moral duties towards a spouse and children. Speaking of the standard by which to judge moral duties, McLachlin J. stated at paras. 822-23:

… Nevertheless, the uncertainty, even in this area, may not be so great as has been sometimes thought. For example, most people would agree that although the law may not require a supporting spouse to make provision for a dependent spouse after his death, a strong moral obligation to do so exists if the size of the estate permits. Similarly, most people would agree that an adult dependent child is entitled to such consideration as the size of the estate and the testator’s other obligations may allow. While the moral claim of independent adult children may be more tenuous, a large body of case law exists suggesting that, if the size of the estate permits and in the absence of circumstances which negate the existence of such an obligation, some provision for such children should be made ….

She continued at para. 823:

How are conflicting claims to be balanced against each other? Where the estate permits, all should be met. Where priorities must be considered, it seems to me that claims which would have been recognized during the testator’s life — i.e., claims based upon not only moral obligation but legal obligations — should generally take precedence over moral claims. As between moral claims, some may be stronger than others. It falls to the court to weigh the strength of each claim and assign to each its proper priority. In doing this, one should take into account the important changes consequent upon the death of the testator. There is no longer any need to provide for the deceased and reasonable expectations following upon death may not be the same as in the event of a separation during lifetime. A will may provide a framework for the protection of the beneficiaries and future generations and the carrying out of legitimate social purposes. Any moral duty should be assessed in the light of the deceased’s legitimate concerns which, where the assets of the estate permit, may go beyond providing for the surviving spouse and children.

9 Many cases have considered Tataryn but there are relatively few dealing with claims made by infant children. During argument, reference was made to Barnsley v. Barnsley (1996), 142 D.L.R. (4th) 335 (B.C. S.C. [In Chambers]); Handlen (Guardian ad litem of) v. Handlen Estate, 2001 BCSC 1528 (B.C. S.C.); C. (L.A.) (Guardian ad litem of) v. Koller Estate, 2004 BCSC 30 (B.C. S.C.); Lansing (Guardian ad litem of) v. Richardson, 2002 BCSC 856 (B.C. S.C.); and Morphy (Guardian ad litem of) v. Mohr, [1998] B.C.J. No. 71 (B.C. S.C.). However, it was not argued that these decisions were of particular assistance to the resolution of the case at bar because of the factual differences.