Month: July 2022

The Admissibility of Medical Records

Re Gibb Estate 2021 BCSC 2461 outlined the law relating to the admissibility of medical records.

While medical records are generally admissible, the court refused to do so in Gibb estate on the basis that it was a section 58 WESA application and the medical records from years prior were not relevant.

Singh Estate (Re), 2019 BCSC 272 considered the admissibility of a deceased’s medical records and reviewed the law.

In that case, the petitioner sought to introduce medical records to establish the first-hand observations of the authors not as “proof of accuracy of the author’s opinion or for the correctness of the statements.” (para. 35) but as an exception to the rule against hearsay pursuant to the standard business records exception.

The court summarized the applicable law:

[48] While clinical records are hearsay, they are admissible under the business records exception both at common law and under s. 42 of the Evidence Act. The requirements for the admission of medical records as business records are set out in Ares. The Supreme Court of Canada held at 626:
Hospital records, including nurses’ notes, made contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record should be received in evidence as prima facie proof of the facts stated therein.

[49] Justice Burnyeat in McTavish summarized the principles from Ares at 311-12:

1. The notes taken must be made contemporaneously.
2. The notes must be made by someone having a personal knowledge of the matters being recorded.
3. The notes must be made by someone who has a duty himself or herself to record the notes or to communicate the notes to someone else to record as part of the usual and ordinary course of their business.

4. The matters which are being recorded must be of the kind that would ordinarily be recorded in the usual and ordinary course of that business.

5. A statement in the records of the fact that a certain diagnosis was made will be admissible.

6. Recorded observations, diagnosis and opinions will be admissible providing they are recorded in accordance with points 1 through 4.

7. The fact that the referring doctor relied upon another doctor’s opinion to assist in coming to his or her own diagnosis and opinion is only evidence of that fact so that the other opinion does not become evidence unless it is otherwise admissible. Accordingly, it is only evidence of the fact that the referring doctor wished or required that opinion to be received before forming his or her own opinion.

8. Statements made by parties or by experts which are recorded in the usual and ordinary course of business but which lie outside the exception to the hearsay rule are hearsay and will not be admitted into evidence unless they can be brought within Section 14 of the Evidence Act which allows for the admissibility of such statements if it can be shown that they are proof of a prior inconsistent statement.

[50] The issue of third party statements was addressed in Cambie Surgeries. Justice Steeves provides:
…any statement by the patient or any third party that is not within the observation of the doctor or person who has a duty to record such observations in the ordinary course of business is not admissible for any purpose and will be ignored by the trier of fact…

Laszlo v. Lawton, 2013 BCSC 305 [Laszlo] held that evidence of symptoms exhibited by a will-maker before and after making a will can support an inference of capacity at the time the will was made:

[190] The diminishment of mental capacity, particularly in the elderly, will frequently emerge and worsen over time. In light of that, evidence of symptoms exhibited by a testatrix both before and after the making of the will may support an inference relevant to the determination of the presence or absence of testamentary capacity at the material time: see generally, Smith v. Tebbett (1867), L.R. 1 P.& D. 354 at 398; Kri v. Patterson, [1989] O.J. No. 1817 (Surr. Ct.); Fawson Estate (Re), 2012 NSSC 55; Moore v. Drummond, 2012 BCSC 170 at para. 47 [Moore]; Coleman v. Coleman, 2008 NSSC 396 [Coleman].

[57] In summary, the medical records are admissible as business records for the fact that the statements therein were made. The direct observations of the various medical practitioners are admissible and relevant to the issue of suspicious circumstances. The respondents’ concerns regarding remoteness go to the weight of the records rather than their admissibility.

S.58 WESA Allows Extrinsic Evidence Re Intention

Re Chou 2022 BCSC 783 reviewed the test to be applied in determining whether a S 58 WESA order should be made to remedy a defective will and that extrinsic evidence was admissible re the testator’s intention.

In Estate of Young, 2015 BCSC 182 the court inter alia stated:

Section 58 of the WESA is a curative provision. It confers a discretion on the court to relieve against the consequences of non-compliance with testamentary formalities in a “record, document or writing or marking on a will or document”. In prescribed circumstances, s. 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.

A determination of whether to exercise the court’s curative power with respect to a non-compliant document is inevitably and intensely fact-sensitive.

Two principal issues for consideration emerge from the post-1995 Manitoba authorities.

The first in an obvious threshold issue: is the document authentic?

The second, and core, issue is whether the non-compliant document represents the deceased’s testamentary intentions, as that concept was explained in George.

The court confirmed that testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death.

The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death. A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a will, by its nature, is revocable until the death of its maker. Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.

The burden of proof that a non-compliant document embodies the deceased’s 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’s signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests and the title of the document: Sawatzky at para. 21; Kuszak at para. 7; Martineau at para. 21

While imperfect or even non-compliance with formal testamentary requirements may be overcome by application of a sufficiently broad curative provision, the further a document departs from the formal requirements the harder it may be for the court to find it embodies the deceased’s testamentary intention:

The Court of Appeal in Hadley Estate (Re), 2017 BCCA 311 stated:

Sitting as a court of probate, the court’s task on a s. 58 inquiry is to determine, on a balance of probabilities, whether a non-compliant document embodies the deceased’s testamentary intentions at whatever time is material. The task is inherently challenging because the person best able to speak to these intentions – the deceased – is not available to testify. In addition, by their nature, the sorts 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’s state of mind, understanding and intention regarding the document. Accordingly, extrinsic evidence of testamentary intent is admissible on the inquiry: Langseth Estate v. Gardiner (1990), 75 D.L.R. (4th) 25 at 33 (Man. C.A.); Yaremkewich Estate (Re) at para. 32; George. As is apparent from the case authorities, this may well include extrinsic evidence of events that occurred before, when and after the document was created: see, for example, Bennett; George; Estate of Young; Re MacLennan Estate (1986), 22 E.T.R. 22 at 33 (Ont. Surr. Ct.); Caule v. Brophy (1993), 50 E.T.R. 122 at paras. 37–44 (Nfld. S.C.).
IV. Discussion

Testamentary Capacity and Knowledge and Approval of a Will

Nassim v Healey, 2022 BCSC 402 at para. 44 summarized the rules regarding the burden of proof relating to testamentary capacity, and knowledge and approval .

The rules regarding the burden of proof in relation to testamentary capacity were set out by the Supreme Court of Canada in Vout v. Hay, (SCC), [1995] 2 S.C.R. 876 [Vout].

Essentially, the party who asserts that the will is valid – the “propounder” – benefits from a presumption that the testator had the necessary testamentary capacity so long as the will was prepared in accordance with the applicable statutory formalities, and was read by or to the testator who appeared to understand it.

However, that presumption can be rebutted if the opposing party raises “suspicious circumstances” in relation to:

(1) the preparation of the will;

(2) the will-maker’s capacity, or

(3) coercion or fraud that overbears the will-makers’ free will.

Where suspicious circumstances are raised, the burden then shifts to the propounder to prove testamentary capacity.

In addition to capacity, the testator’s knowledge and approval of the contents of the will must be established, with the propounder having the legal burden to prove same.

In addition to the will-maker’s general testamentary capacity, the Court must also be satisfied that the will-maker knew and approved of the contents of the will. The notion of “knowledge and approval” was explained by Baker J. in Johnson v. Pelkey (1997), 1997 CanLII 2935 (BC SC), 36 B.C.L.R. (3d) 40 at paras. 107–109 (S.C.) as follows:

At common law, the party seeking to propound a will has the legal burden to prove the testator’s knowledge and approval of the provisions of the will. Vout v. Hay, (1995) 1995 CanLII 105 (SCC), 7 E.T.R. (2d) 209, (S.C.C.), Russell v. Fraser, (1980), 1980 CanLII 737 (BCCA), 118 D.L.R. (3d) 733, (B.C.C.A.).

Any will that does not express the real or true “intention” of the testator will be set aside, even if the testator had testamentary capacity, and was not subject to undue influence.

In Russell v. Fraser, cited above, at page 739, the Court of Appeal held that where the person seeking to propound the will prepared the instructions for the will and takes a substantial benefit under the will, the burden of proving that the testator knew and approved the contests of the will is made more onerous.

The interested party must “affirmatively prove that the (testator) did in truth appreciate the effect of what she was doing”. Riach v. Ferris, 1934 CanLII 13 (SCC), [1935] 1 D.L.R. 118, [1934] S.C.R. 725 at 736.

Furthermore, as was noted by Madam Justice Francis in Geluch v. Geluch Estate, 2019 BCSC 2203 at para. 127, knowledge and approval require the will-maker to be aware of the magnitude of the residue of their estate, and to appreciate the effect of its disposition. Simply knowing the contents of the will is insufficient.

The rules regarding the burden of proof in relation to knowledge and approval are the same as those that apply in respect of testamentary capacity. There is a presumption that the will-maker who executes a formally valid will knows and approves its contents, but that presumption does not apply if suspicious circumstances are present. In such a case, the burden shifts to the propounder to prove knowledge and approval on a balance of probabilities, with the evidence being scrutinized in accordance with the gravity of the suspicion: Laszlo at paras. 201-207.

In Bhalla Estate 2017 BCSC 1867 the applicant was the sole the initiator, translator and sole beneficiary of an alleged will and therefor when such person seeks to propound the will , the burden of proving that the testator knew and approved the contest is made more onerous. Re Grace 2022 BCSC 653.

Counterclaim Not Allowed in Petition Proceedings

Edward Chapman Ltd v FS Property Inc 2022 BCCA 213 allowe3d an appeal where the Master had allowed a counter claim to be filed in opposition to a petition and categorically stated that there is no such thing as a counterclaim to a petition.

The proceeding was a foreclosure which must be commenced by petition.

There were other remedies available such as converting the petition to an action and allowing discoveries and a counter claim.

The overall structure of the Rules distinguishes between proceedings commenced by petition, and those commenced by notice of civil claim.

In essence, unless a proceeding falls within R. 2-1(2), or within another rule providing for a petition, or an enactment otherwise provides, the proceeding must be commenced by notice of civil claim.

However, certain categories of disputes must be commenced by petition, as set out in R. 2-1(2) and elsewhere in the Rules (and some categories must be commenced by requisition, which is not in issue here).

As such, the hearing of the petition is governed by the Rules applicable to chambers proceedings: R. 22-1(1)(a). Rule 22-1(7)(d) permits a court to order that there be a trial of an issue, and that pleadings be filed. This is expressly incorporated into foreclosure proceedings by R. 21-7(5). Rule 22-1(7) provides:

Without limiting subrule (4), on the hearing of a chambers proceeding, the court may

(a) grant or refuse the relief claimed in whole or in part, or dispose of any question arising on the chambers proceeding,

(b) adjourn the chambers proceeding from time to time, either to a particular date or generally, and when the chambers proceeding is adjourned generally a party of record may set it down on 3 days’ notice for further hearing,

(d) order a trial of the chambers proceeding, either generally or on an issue, and order pleadings to be filed and, in that event, give directions for the conduct of the trial and of pre-trial proceedings and for the disposition of the chambers proceeding.

Rule 16-1 provides for the type of pleadings that can be filed in a petition proceeding.

Further, R. 16-1(18) provides:

Without limiting the court’s right under Rule 22-1 (7) (d) to transfer the proceeding referred to in this rule to the trial list, the court may, whether or not on the application of a party, apply any other of these Supreme Court Civil Rules to a proceeding referred to in this rule.

Rule 16-1(18) acknowledges the ability, under R. 22-1(7), to refer a petition proceeding to the trial list. This would involve converting the proceeding to an action, and giving directions for the filing of pleadings and any other necessary directions, as contemplated by R. 22-1(7).

But R. 16-1(18) also provides flexibility for a petition proceeding to employ some of the tools of an action for determination of issues within the petition proceeding itself, such as limited discovery. These tools can be borrowed and used selectively, while preserving the summary nature of the petition proceeding: see L’Association des parents de l’école Rose-des-Vents v. Conseil scolaire francophone de la Colombie-Britannique, 2011 BCSC 89 at para. 30.

R. 16-1(18) does not permit the filing of a counterclaim within a petition proceeding.

A counterclaim is provided for in R. 3-4. It is a form of pleading a claim, delivered within an action after a notice of civil claim has been filed. Rule 3-4(1) provides:

(1) A defendant in an action who wishes to pursue a claim within that action against the plaintiff must, within the time set out for the filing of a response to civil claim under Rule 3-3 (3), file a counterclaim in Form 3 that accords with Rule 3-7.

The form of a counterclaim is a prescribed form under the Rules, Form 3. The beginning of the form itself incorporates the words:

This action has been brought by the plaintiff(s) against the defendant(s) for the relief set out in the notice of civil claim filed in this action.

The logic of the Rules and Forms as a whole, make it clear that a counterclaim can only be advanced within an action. In my view, the decision of 1076586 Alberta Ltd. v. Stoneset Equities Ltd., 2015 BCCA 182, still applies, including the holding, at para. 60, that there would have to be an action (either by notice of civil claim or by order that the petition stand as a notice of civil claim), not a petition proceeding, in order for there to be a counterclaim.

Unjust Enrichment and Constructive Trusts

Trevor Todd and Jackson Todd have been practicing in contested estates for over sixty combined years including cases involving unjust enrichment and the imposition of a remedial constructive trust.

Unjust enrichment involves an enrichment of the defendant, a corresponding deprivation to the plaintiff, and the absence of any juristic reason for the
enrichment: Kerr v. Baranow, 2011 SCC 10 at paras. 36-45.

Nouhi v. Pourtaghi, 2019 BCSC 794:

[20] A constructive trust is sufficient to sustain a registration of a certificate of
pending litigation. Madam Justice Dickson (as she then was) said as follows
in Jacobs v. Yehia, 2015 BCSC 267:

[24] “An estate or interest in land” may include both legal and equitable
interests. The test is not to be narrowly defined, but the mere fact that a
claim relates to land does not convert it into a claim for a proprietary
interest: Montgomery v. Klassen, [1996] B.C.J. No. 1739 (B.C. S.C.),
para. 22; Seville Properties Ltd. v. Coutre, 2005 BCSC 1105 (B.C. S.C.).

[25] Where funds are obtained through wrongful means and can be
traced to the acquisition or improvement of land, the court may impose a
remedial constructive trust sufficient to sustain a CPL. In addition, the
claim for tracing may, in and of itself, justify an equitable charge on land
for purposes of supporting a CPL: Meola, para. 9; Drunker Inc. v. Hong,
2011 BCSC 905, paras. 19, 22 and 36; Samji (Trustee of) v. Chatur, 2013
BCSC 1915 paras. 60-64; Lament v. Constantini, [1985] B.C.J. No. 2988

[26] Constructive trusts are equitable remedies available for acts such as
fraud and unjust enrichment….

Jacobs was decided in 2015. The holding that “wrongful means” can be
the basis for a remedial constructive trust, if wrongful means is broader than
unjust enrichment and breach of fiduciary duty, has been overtaken by the
decision of the Court of Appeal in BNSF Railway Company v. Teck Metals Ltd.,
2016 BCCA 350.

In that case, Madam Justice Newbury reviewed the
development of the constructive trust in Canada in order to consider whether
constructive trusts were only available to remedy unjust enrichment and breach
of fiduciary duty or whether they were also available on a wide, substantive or
institutional basis.

[22] Newbury, J.A. quoted from the Court of Appeal in Atlas Cabinets and
Furniture Ltd. v. National Trust Co., [1990], 45 B.C.L.R. (2d) 99 (C.A.) in which
Lambert J.A., at 108, described the difference between the two types of
constructive trusts as follows:

A substantive constructive trust is to be distinguished from a remedial
constructive trust. In a substantive constructive trust, the acts of the

parties in relation to some property are such that those acts are later
declared by a court to have given rise to a substantive constructive trust
and to have done so at the time when the acts of the parties brought the
trusts into being…. In a remedial constructive trust, on the other hand,
the acts of the parties are such that a wrong is done by one of them to
another so that, while no substantive trust relationship is then and there
brought into being by those acts, nonetheless a remedy is required in
relation to the property and the court grants that remedy in the form of a
declaration which, when the order is made, creates a constructive trust by one of the parties in favour of another party….

Newbury, J.A. concluded that in Canada, a remedial constructive trust is
available to remedy unjust enrichment and breach of fiduciary duty. She also
held that it is open to the court to develop the law pertaining to substantive
constructive trusts on a case-by-case basis “where good conscience so
requires”: BNSF at paras. 55-56 citing Soulos v. Korkontzilas, [1997] 2 S.C.R.
217 at para. 34.

Court Costs Framework In Civil Cases 2022

Einboden v Porter 2022 BCSC 1227 set out a good explanation and framework of how the court considers and awards court costs.

Costs of a proceeding must be awarded to the successful party unless the court otherwise orders: Rules, R. 14-1(9). As the defendant did not seek an order otherwise, I order the plaintiff is entitled to his costs.

[ If costs are payable to a party under the Rules or by order, those costs must be assessed as party and party costs in accordance with Appendix B of the Rules, unless certain enumerated circumstances exist, none of which apply in this case: Rules, R. 14-1(1).

Fixing the Scale of Costs

Under Appendix B, if a court has made an order for costs, the court may fix the scale, from Scale A to Scale C in subsection (2), under which the costs will be assessed, and may order that one or more steps in the proceeding be assessed under a different scale from that fixed for other steps: Rules, Appendix B, s. 2(1).

Section 2(2) of Appendix B provides that in fixing the scale of costs, the court must have regard to the following principles:

(a) Scale A is for matters of little or less than ordinary difficulty;
(b) Scale B is for matters of ordinary difficulty;
(c) Scale C is for matters of more than ordinary difficulty.

While the Supreme Court Rules, B.C. Reg. 221/90 (the “Former Rules”) were repealed and replaced by the Rules in July 2010, the former elevated costs regime and the interpretations thereof continue to assist the court in determining the appropriate scale of costs: Meghji v. British Columbia (Ministry of Transportation and Highways), 2014 BCCA 105 at para. 138. The Former Rules, prior to revision in 2007, prescribed five scales of costs ranging from Scale 1 through 5, for matters of little difficulty, less than ordinary difficulty, ordinary difficulty or importance, more than ordinary difficulty or importance, and unusual difficulty or importance, respectively. Following the 2007 revision, the two higher scales, Scales 4 and 5, were merged into the new Scale C: Meghji at para. 135; Slocan Forest Products Ltd. v. Trapper Enterprises Ltd., 2010 BCSC 1494 at para. 5. Therefore, Scale C costs are for matters of more than ordinary difficulty or importance or for matters of unusual difficulty or importance.

[9 Section 2(3) of Appendix B provides that in fixing the appropriate scale under which costs will be assessed, the court may take into account the following:

(a) whether a difficult issue of law, fact or construction is involved;
(b) whether an issue is of importance to a class or body of persons, or is of general interest;
(c) whether the result of the proceeding effectively determines the rights and obligations as between the parties beyond the relief that was actually granted or denied.

[ In Mort v. Board of School Trustees of School Board No. 63 (Saanich), 2001 BCSC 1473 at para. 6, Justice R.D. Wilson described the following factors as being relevant to determining the degree of difficulty or importance of a matter:

(a) the length of the trial;
(b) the complexity of the issues involved;
(c) the number and complexity of pre-trial applications;
(d) whether or not the action was hard fought with little or nothing being conceded along the way;
(e) the number and length of Examinations for Discovery;
(f) the number and complexity of Experts’ Reports; and
(g) the extent of the effort required in the collection and proof of facts.

Although Mort considered the former elevated costs regime under the Supreme Court Rules, with its five scales, the above factors remain relevant in determining the degree of difficulty under the current Rules: Meghji at para. 138.

The factors set out in Mort are not exhaustive: Monument Mining Limited v. Balendran Chong & Bodi, 2013 BCSC 179 at para. 6. Moreover, the fact that several of the considerations are neutral factors in a given case does not allow them to be notionally set-off against or deducted from the factors militating in favour of an order for increased costs, if Scale C is justified on the basis of one or more of the other factors: Slocan at para. 23.

Uplift Costs
After fixing the appropriate scale of costs, the court may order that the value for each unit allowed for the proceeding, or any step in the proceeding, be 1.5 times the value that would otherwise apply to a unit in that scale, if the court finds that, as a result of unusual circumstances, an award of costs on that scale would be grossly inadequate or unjust: Appendix B, s. 2(5). This is referred to as “uplift costs” and is intended to indemnify the successful party where there are unusual circumstances: Shen v. West Continent Development Inc. (BC0844848), 2022 BCSC 462 at para. 30.

Misconduct can constitute an unusual circumstance justifying an award of uplift costs but the party asserting misconduct must establish “there was misconduct deserving of some form of rebuke, including disobedience of court processes, incivility, frivolity, actions taken in bad faith, and impertinence”: Shen at para. 32, citing J.P. v. British Columbia (Children and Family Development), 2018 BCCA 325 at para. 57.
An award of costs is not grossly inadequate or unjust merely because there is a difference between the actual legal expenses of a party and the costs to which that party would be entitled under the scale of costs fixed: Appendix B, s. 2(6).

Disinherited and Unfair Wills BC-Wills Variation and Adult Independent Children

Wills Variation Summary 2022 re Adult Independent Children

If you have been disinherited or the will is unfair , then Trevor Todd ahs 50 years experience in contesting unfair wills.

The leading case Tataryn v Tataryn (1994) 2 SCR 807 clarified that most people would agree that an adult independent child is entitled to such consideration as the size of the estate and the testator’s other obligations may allow, after he for after firstly satisfying any legal obligations owed to a spouse or dependent children.

The court recognized that while the moral claim of an independent adult child may be more tenuous, a large body of case law existed that suggested that if the size of the estate, permitted and in the absence of circumstances which negate the existence of such an obligation, some provision for such children should be made in an estate.

The court was clear that the testator’s will should only be interfered with to the extent necessary to meet the testator’s legal and moral obligations and also that so long as the testator has chosen an option which is within the range of appropriate options for dividing his or her estate, the will should not be disturbed.

The two leading cases on the summary of overriding principles the courts will consider and a wills variation claim are Clucas estate (1999) 25 ETR 175 at para. 12 and later McBride v Voth 2010 BCSC 443 at paras 129-142.

Subsequently in Dundsdon v Dunsdon 2012 BCSC 1274 at para. 234 the court identified the following 10 considerations as those which have been accepted, in the post Tataryn era, as informing the existence and strength of a testator’s moral duty to independent children:

1. The relationship between the testator and the claimant, including abandonment, neglect and estrangement by one or the other;
2. The size of the estate;
3. The contributions if any, by the claimant;
4. Any reasonably held expectations to inherit of the claimant;
5. The standard of living of the testator and the claimant;
6. Gifts and bequests made by the testator outside of the will or previously by inter vivos gifts;
7. The testator’s reasons for any disinheritance;
8. The financial need another personal circumstances, including disability of the claimant;
9. Any misconduct or poor character of the claimant;
10. Competing claimants and other beneficiaries.

Estrangement

When adult children are disinherited by their parents on the basis of alleged estrangement, the courts will examine the relationship very closely to attempt to determine whether the disinherited child, or the parent, were more at fault than the other for the estrangement.

Estrangement situations often present factual problems for the court to determine in wills variation claims, and the modern judicial trend indicates that the courts will inquire into the role played by the testator in the estrangement, or the relationship breakdown, and where does seem to be largely the fault of her at the insistence of the testator, it will likely not negated testator’s moral duty, and may in fact, even enhance it.

The courts have become familiar with abandonment or purported estrangement between a child and an adult, and more times than not in recent judicial cases, the court has indicated that the it may discern a moral duty, as a means of rectifying the testator’s childhood neglect of the children in the event of abandonment. Gray v Gray 2002 BCCA 94.
See also Doucette v Clarke 2007 BCSC 1021.

The comments made by an appeal court judge in the Gray decision is often quoted with respect to claims brought by children who were abandoned early in life by the deceased:

“I cannot accept that a child so neglected for his first 18 years and then treated shabbily during a brief reconciliation can be said to forfeit the moral claims to a share in his or her father’s estate by abandoning any further effort to establish a relationship. The fault in this sad story lies with the father and, in my opinion, the onus to seek further reconciliation was on his shoulders. The testator gave the appellant virtually nothing in an emotional or material way, the will was his last opportunity to do right by his son. “

In J.R. v JDM 2016 BCSC 2265 the court dealt with a claim brought by a disinherited daughter who the deceased stated he had not seen for over 10 years as his reason for the disinheritance.
The daughters evidence was that she had been sexually and emotionally abused by her father, together with his lack of financial contribution to her education and general welfare, and this evidence was accepted by the court.

As is often the case in these factual estrangement cases, the daughter left home at age 15, and any attempt by her in subsequent years to make amends with her father was rejected by him.

She was not invited to his second wedding for example. The court found that the onus for repairing the relationship and seeking any form of reconciliation with the daughter rested squarely with the father, and his moral duty to her was enhanced as result of his blameworthy conduct.

In Baulne v Baulne Estate 2002 BCSC 1905 the parents of the claimant committed suicide together, taking with them. Their disabled son. The claimant was the only surviving child of the deceased couple and the disinherited him in favor of their grandchildren.

The claimant had in fact refuse to allow his parents to visit their granddaughter, and in fact formalized it in a restraining order against his parents.

The court notwithstanding the truth of the will makers reason for the disinheritance, held that the deceased parents, particularly the mother, were jointly responsible for the estrangement and varied the will, such that the claimant receive 60% from each of his parents estates.

Even though it was found that the plaintiff treated his parents with disrespect, the court found on the evidence that while the plaintiff treated his parents, the court was unable to conclude that it negated the moral obligations of his parents otherwise owed to him.

Generally speaking, there is no law under the wills variation act that says children must be treated equally by a deceased parent, and it has been unusual for a sole disinherited child to receive greater than 50% of an estate in a wills variation claim.

One of the leading cases in wills variation claims in British Columbia is my own decision where I acted for plaintiff, in the case of Ryan vs. Delahaye 2003 BCSC 1081 , the reasons for judgment are which are on this website under my cases. In that decision the daughter had been left 20% of the estate while her brother had been left 80%. More importantly the brother had benefited much more beneficially from his parents then his sister, and his position in life was extremely contrary to that of the plaintiff. The court varied the Will and the sister was awarded an equal share as the brother.
The decision raised national news as many Canadians mostly in other provinces do not adhere to the principle that there is a moral obligation on a parent to provide for an adult independent child who is capable of being self-supporting. British Columbia is the only province in Canada who has such a law and we have had it for almost 100 years.

1. In McMain v. LeBlanc, 2013 BCSC 891, the will-maker’s estranged son was completely disinherited. The $330,000 estate was left solely to the will-maker’s niece. The court found that the will-maker was the primary cause of the estrangement, as he unilaterally withdrew from parent-child relationship. The plaintiff was awarded $180,000 from the estate.

Austin v Janzen 2006 BCSC 2100 was a case of mine where a mother abandoned her daughter at a young age and then later disinherited her, so we filed a wills variation action and took it to trial where we obtained an equal one third share.
19] The plaintiff’s claim is based on her mother’s treatment of her during her life and particularly on a claim that lack of contact with the mother was due to unilateral withdrawal by the mother. And in that regard I agree that the weight of the evidence establishes that the deceased did unilaterally withdraw from her relationship with her daughter Margaret when Margaret was a young child. I find on the evidence that the estrangement between mother and daughter was created by this unilateral withdrawal and I will say no more. At the point when the deceased attempted to bring her daughter back into the fold, more than a long distance telephone call to a young child would be required in the circumstances. In my view, there was no moral obligation on the child Margaret to attempt to initiate or revive a relationship with her mother beyond that point.

McBain v LeBlanc 2013 BCSC 891 adopted the same principle of law, following the BCCA in Gray v Gray Estate 2002 BCCA 94:

“In Gray v. Nantel, supra, nevertheless I would respectfully adopt the spirit of the following observation of Donald J.A. as follows at para. 17 of the judgment:

[17] I cannot accept that a child so neglected for his first 18 years and then treated shabbily during a brief reconciliation can be said to forfeit the moral claim to a share in his father’s estate by abandoning any further effort to establish a relationship. The fault in this sad story lies with the father and, in my opinion, the onus to seek further reconciliation was on his shoulders. The testator gave the appellant virtually nothing in an emotional or material way; the will was his last opportunity to do right by his son.

[90] Here, too, the testator had one last opportunity to behave after the manner of a judicious parent and recognize his moral obligation to his son by means of his will. He failed in this.

[91] In my estimation, as in Gray, this case involves the testator’s unilateral withdrawal from the parent child relationship. I appreciate that there was occasional contact between the plaintiff and testator, but my overall finding is that the plaintiff wanted a relationship, and the testator, for whatever reason, could not be bothered.

[92] In my judgment, the testator cannot resort to his indifference to his parental responsibilities in life as a justification for avoiding his moral obligations to his only son in death.

Here are six cases where the court in a wills variation action varied the will to provide at least %50 to an adult child who was not adequately provided for in their parent’s will.

The cases will not apply to every disinherited adult child but are a good guideline where the court is likely to vary the will to provide at least half to an adult child.
Here are six short summaries of decisions where an adult child was awarded 50% or more of a parent’s estate:

1. McMain v. LeBlanc, 2013 BCSC 891, the will-maker’s estranged son was completely disinherited. The $330,000 estate was left solely to the will-maker’s niece. The court found that the will-maker was the primary cause of the estrangement, as he unilaterally withdrew from parent-child relationship. The plaintiff was awarded $180,000 from the estate.

2. Baulne v. Baulne Estate, 2002 BCSC 1905, the parents of the claimant committed suicide together, taking with them their disabled son. The claimant was the only surviving child of the deceased couple. For various reasons stated in their mirror wills, including the claimant’s refusal to allow them to have access to their grandchild, the deceased couple disinherited the claimant from their estates, which had a combined net value of $467,000.

The claimant’s refusal to allow his parents to visit their granddaughter was true, and in fact, formalized in a restraining order obtained by the claimant. Notwithstanding the truth of the will-makers’ reason for the disinheritance, the court held that the deceased parents, particularly the mother, were jointly responsible for the estrangement, and varied the will such that the claimant received 60% from each of his parents’ estates. The defendant beneficiaries of the wills were the nieces and nephews of the claimant’s deceased parents.

3. Schipper v Schipper Estate 2010 BCSC 1067

The Plaintiff adult daughter was only child of the testator and her husband. The daughter had very close relationship with her parents until about three years before the testator’s death. The Testator’s will gave 25 per cent of estate to the daughter, 50 per cent to an adult nephew J, and 25 per cent to adult nephew A .

The Testator’s rationale was that daughter had not visited her for three years, had not shown interest in her parents, and was not in need of financial assistance .The daughter brought action for wills variation of testator’s will under Wills Variation Act to make adequate provision for her and the action was allowed. The daughters share was increased to %50 with J receiving 2/3 of the remaining and one third of the remaining to nephew A. Daughter found to be loving ,faithful child. The daughter’s claim was not based on financial need as her combined assets with her husband were $980,000.
The sufficiency of reasons for disinheritance was taken as part of the question of whether reasons of the testator were rational .

The testator overreacted to perceived lack of interest by daughter .the testator had little factual information about daughter’s financial need .The reasons expressed by testator for making dispositions were not rational , nor did they provide a proper basis for supporting provision made. The reasons did not have logical connection with reduced inheritance.

4. Pattie v. Standal 42 B.C.L.R. (3d) 211 a child never saw his father again after age seven due to a divorce.

The child’s mother did not receive child support. The deceased left his estate to his common law wife of two years.

There was no memorandum to the will or other evidence as to why the child was disinherited.

The court awarded the child 50% of the estate on the basis of both the failure to meet the moral obligation, as well as failing his legal obligation to support his child during his lifetime.

5. Gray v Gray Estate 2002 BCCA 94:

(89) I cannot accept that a child so neglected for his first 18 years and then treated shabbily during a brief reconciliation can be said to forfeit the moral claim to a share in his father’s estate by abandoning any further effort to establish a relationship. The fault in this sad story lies with the father and, in my opinion, the onus to seek further reconciliation was on his shoulders. The testator gave the appellant virtually nothing in an emotional or material way; the will was his last opportunity to do right by his son.

[90] Here, too, the testator had one last opportunity to behave after the manner of a judicious parent and recognize his moral obligation to his son by means of his will. He failed in this.

[92] In my judgment, the testator cannot resort to his indifference to his parental responsibilities in life as a justification for avoiding his moral obligations to his only son in death.

6. Ryan v Delahaye Estate 2003 BCSC 1081, concluded that inter vivos (life time) transfers and assets passing by right of survivorship pass outside the estate, and are therefore not subject to a wills variance claim.

Nevertheless she ruled that the court can consider them when assessing, from the perspective of a judicious person, whether a parent has met his or her moral obligations to an adult child.
The court considered that the Deceased parents had paid for their son’s education and made interest-free loans to him. The parents had not provided similar benefits to their daughter.
Smith J. found that the 80/20 split in the will (lion’s share to the son) did not provide proper maintenance and support for the daughter.

The court ruled that an adequate, just and equitable distribution would give the daughter an equal share of the residue of the estate and varied the will to divide the residue equally between the two children.

Ejectment

Blacks law dictionary defines ejectment as an action to restore possession of property to the person entitled to it. Not only must the plaintiff establish a right to possession in himself, but he must also show that the defendant in his wrongful possession. If the defendant has only trespassed on the land, the action is for trespass IE damages

An action for ejectment requires the plaintiffs to demonstrate:

1. That the plaintiff has title to the property;
2. That the defendant currently possesses the property; and
3. That the plaintiff intends to regain possession of the property.

Berscheid v. Ensign, [1999] B.C.J. No. 1172 (S.C.) and Portland Managements Ltd. v. Harte, [1977] Q.B. 306 (C.A.)

Berscheid stated:

The tort of ejectment, now known as an action for the recovery of land, is an action to restore possession of land to a party lawfully entitled to it.

67 The distinction between ejectment and trespass to land is that in trespass, the plaintiff always maintains possession of the land in question, as opposed to ejectment, where the plaintiff has lost possession of land lawfully his and must therefore sue for its recovery.

68 Thus, to ground an action of ejectment, the plaintiff must first be dispossessed of property which is rightfully his.
The facts demonstrating such dispossession must be pled, i.e. the plaintiff must show that lands to which he owns a possessory right are now possessed by the defendant.

In order to resist the order for possession the defendants need only demonstrate a right of possession consistent with the plaintiff’s title.
As well, a summary procedure ought not to be used where there are complex issues of fact or law to be tried. See North Shore Winter Club v. Co-operators General Insurance Co., [1993] B.C.J. No. 219 (S.C.).

See also (Terbasket v. Harmony Co-ordination Services Ltd., 2003 BCSC 17 [Terbasket] at para. 16 (leave to appeal ref’d, on other grounds: 2003 BCCA 238))

S.59 WESA Order Made After 180 Days Post Probate

Wills Drafting- The Myth of the “Simple Will” _ Disinherited

Simpson v Zaste 2022 BCCA 208 was an appeal from an order granting leave to rectify a will under S 59 WESA, after the 180 day limitation period of the wills variation provisions under section 60, and to rectify a will pursuant to section 59 of WESA.

The appeal court allowed the appeal in part and granted leave, but the rectification was set aside and substituted.

The deceased had intended to gift certain shares to his children that were subject to a shareholder agreement requiring his personal representative to sell the shares to the other shareholder at fair market value, less the amount of a life insurance policy in favor of the appellant widow.

The deceased fail to recognize that the effect of the shareholders agreement was that the gift would fail and his estate would receive an unintended windfall.

The children out of time for a wills variation claim successfully brought an application for rectification to receive the gross value of the shares, including the value of the life insurance policy.

The appeal court found that the judge erred by failing to recognize the prejudice to the appellant to be out of time to bring her own variation claim upon rectification of the will.

The judge erred further in speculating that the deceased intended his children to receive the gross value of the shares when the evidence indicated that the children were only to receive the shares as encumbered, and the widow was to receive the proceeds of the life insurance policy.

Given the merits of the claim however it was in the interests of justice to grant leave and rectify the will to gift the net value of the shares to the children.

Court Invokes Parens Patriae in Patients Property Application

Re Binder (Patients Property Act) 2022 BCSC 990 utilized the parens patriae jurisdiction of the Supreme Court to overcome a problem in the Patients Property Act with respect to the admissibility of foreign doctors medical evidence as the act doesn’t permit it.

The court invoked its inherent jurisdiction under parens patriae ( “parent of the country”) and admitted medical evidence of the patient from a foreign doctor.

In Parker v. Barbeau, [1998] B.C.J. No. 841 (B.C.S.C.), Justice Shaw cited Re Eve (1986), 1986 CanLII 36 (S.C.C.) at p. 28 for a description of the source and meaning of the Court’s parens patriae jurisdiction.

In essence it is founded on necessity, specifically, the need to protect those who cannot protect themselves and the jurisdiction may be exercised in many situations.

In Johnston v. Johnson, 2003 BCSC 110 at para. 20, Justice Goepel noted, citing L(M) v. D(F),1999 CanLII 6429 (BCSC) at 142, that the threshold required before the court can consider using its parens patriae jurisdiction as a basis to appoint a committee is the need for a lacuna in the legislative framework for the protection of such persons.

The court was satisfied that there was a gap in the legislative framework of the PPA for protecting an individual such as Johann. There is no mechanism for recognizing the order of the Swiss authority and given Johann’s circumstances, specifically his ill health and his inability to attend examination by doctors in British Columbia, he cannot avail himself of the procedure provided by the PPA.