15 Characteristics of a Narcissist

I have done several blogs on narcissism over the years, as it is a frequent attribute of many of the parties involved in estate litigation.

Narcissists amongst other characteristics, have a great feeling of self entitlement which frequently is displayed by parties in estate litigation.

There are two types of narcissism: grandiose and vulnerable, and not all narcissists are the same as there is a spectrum.

Identifying a narcissist at first is not always easy as they are invariably charming people, but after getting to know the person better some of the following characteristics will be noted.

A random list of 15 of the characteristics of narcissism are as follows:

1. Narcissists lack empathy and are therefore unable to recognize or understand the needs and feelings of others so typically they tend to speak and think only of themselves, often about their physical appearance talents or achievements. The comments tend to exaggerate their abilities in these areas;

2. They believe they are superior and even grandiose in terms of their self-importance. This leads to belittling of others by focusing on their flaws, which for a narcissist is an effective way to hide their own shortcomings and preserve their self-image;

3. Having a sense of self entitlement, narcissists expect others to offer them special favors and fulfill the requests without question. The behavior compares to that of a toddler who never learns that he or she is not the center of the world and becomes enraged when others don’t need his or her immediate demands;

4. Because narcissists consider themselves superior they fantasize about how much more powerful they will be and how much more beautiful or how much richer than other people. While it is good to have goals in life, the narcissist goals are almost boundless in their ambition;

5. Upon first impression narcissists come off as incredibly charming and confident, but as the relationship develops their behavior becomes demeaning and aggressive. They often seek out positions of power in leadership and will turn on the charm to manipulate others into giving them what they want. Many people are thus attracted to narcissists as they are confident, charismatic and exciting;

6. Narcissists are extremely competitive and want to strive to win whatever it takes. There are only losers and winners in their mind;

7. While appearing confident on the outside, most narcissists are in fact very sensitive and care very deeply about maintaining their idealized image of themselves. As a result, any type of perceived insult or disapproval can result in a large personal attack which the narcissist typically holds as a grudge and never lets go of it;

8. Narcissists tend to fill their minds with elaborate fantasies about success, power, brilliance, beauty or the perfect mate, and thus feel they should have the best of everything. Because the fantasies are rarely rooted in reality, it can lead to immense frustration and anger when these visions are not achieved;

9. Again, despite appearing confident on the outside, narcissists are often incredibly insecure and have very fragile self-esteem. As such, they require constant praise, but this fragility also makes the narcissist highly reactive to criticism of any sort;

10. Narcissists often do not have a problem in getting people to do what they want, and have no problem taking advantage of others with little to no regard for the feelings are interests of those people as a result of this behavior, narcissists often have very tumultuous friendships and romantic relationships that are quite short lived;

11. Narcissist typically crave attention at all times and will seek it out by such means as dominating conversations. They feel compelled to talk about themselves and exaggerate their accomplishments. A grandiose narcissist craves attention and often receives it by being outspoken, arrogant, self -loving and entitled;

12. Narcissists often lack empathy and are unable to empathize with others or understand other people’s perspectives or comprehend their struggles. A typical comment might be a complaint about how annoying his or her own father is in speaking to someone whose father has just died;

13. Vulnerable narcissists live with the worry of being exposed for their flaws, which in turn will make them feel humiliated and shamed. The need to be perfect and stem either from wanting to satisfy themselves are being perfect, to please others, not all narcissists are perfectionists, but it is a common trait. This type of narcissist needs to achieve what they consider a flawless “performance” in order to achieve fulfillment;

14. Narcissists often eventually develop depression, especially those who are vulnerable narcissists as they do not know how to work through motions properly. Pathological grandiose narcissists can have an inflated ego and more arrogant personalities. When they experience a personal or professional failure, isolation, or lack of accomplishment, it may trigger depression;

15. Narcissists are not always the best at regulating their emotions as they have compromised or fluctuating abilities and emotion regulation. Studies have found that narcissists have difficulties in assessing both their own and other people’s emotions. For example, one of the last things a narcissist wants to encounter is a person who appears to have something that they lack. That leaves the narcissist no choice but to act as if that person is beneath them, and the patronizing attitude is a defense mechanism narcissists may turn to when they feel their emotions are threatened. A narcissist may result to insults or name-calling against the person that they in fact are envious of.

Factors In Assessing a Witness’ Testimony

The validity of a witness’ testimony depends on whether their evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at that time: Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.) at 357.

In Bradshaw v. Stenner, 2010 BCSC 1398, aff’d 2012 BCCA 296, Justice Dillon adopted a three-step approach in which the court first considers the testimony of a witness on a “stand alone” basis followed by an analysis of whether the story is inherently believable.

If the testimony survives the first part of the test, the second step is to evaluate the testimony based upon its consistency with other witnesses and with documentary evidence.
Lastly, the court determines “which version of events is the most consistent with the ‘preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions’”: at para. 187.

At para. 186 of Bradshaw the court set out a non-exhaustive list of the factors to be considered in assessing a witness’ evidence:

1. the capacity and opportunity of the witness to observe the events at issue;
2. his or her ability to remember those events;
3. the ability of the witness to resist being influenced by his or her interest in recalling those events;
4. the internal and external consistency of the witness’ evidence;
5. whether the witness’ evidence harmonizes with or is contradicted by other evidence, particularly independent or undisputed evidence;
6. whether his or her evidence seems unreasonable, improbable or unlikely, bearing in mind the probabilities affecting the case; and
7. the witness’ demeanor, meaning the way he or she presents while testifying.

The testimony of non-party disinterested witnesses may provide a “reliable yardstick for comparison”: Bradshaw at para. 187

S. 151 WESA – Leave of the Court Required to Bring Action Against Estate

Bring Action Against Estate

Under WESA leave of the court is required to commence legal proceedings in the name of a specified person and on behalf of the estate of the deceased person and the requirements are set out in S 151 WESA.

Section 151 of WESA states:

Who may sue with leave of court

151(0.1) In this section, “specified person” means a beneficiary, an intestate successor or a person who may commence a proceeding claiming the benefit of Division 6 [Variation of Wills] of Part 4 [Wills].

(1) Despite section 136 [effect of representation grant], a specified person may, with leave of the court, commence proceedings in the name of the specified person and on behalf of the estate of the deceased person
(a) to recover property or to enforce a right, duty or obligation owed to the deceased person that could be recovered or enforced by the personal representative, or
(b) to obtain damages for breach of a right, duty or obligation owed to the deceased person.
(1.1) A specified person may apply for leave of the court under subsection (1) in the proceedings described in that subsection.
(2) Despite section 136, a specified person may, with leave of the court, defend in the name of the specified person and on behalf of the estate of a deceased person, a proceeding brought against the deceased person or the personal representative.
(2.1) A specified person may apply for leave of the court under subsection (2) in the proceeding described in that subsection.
(3) The court may grant leave under this section if
(a) the court determines the specified person seeking leave
(i) has made reasonable efforts to cause the personal representative to commence or defend the proceeding,
(ii) has given notice of the application for leave to
(A) the personal representative,
(B) any other specified persons, and
(C) any additional person the court directs that notice is to be given, and
(iii) is acting in good faith, and
(b) it appears to the court that it is necessary or expedient for the protection of the estate or the interests of a specified person for the proceeding to be brought or defended.
(4) On application by a specified person or a personal representative, the court may authorize a person to control the conduct of a proceeding under this section or may give other directions for the conduct of the proceeding.

For leave to be granted under s. 151 of WESA the applicants must meet the requirements summarized in Hoggan v. Silvey, 2022 BCCA 176:

 In summary, the factors that are relevant in an application pursuant to s. 151 may vary depending on the nature of the application.

The statutory factors will always apply,

-so the petitioner must have standing as a specified person,
-must have made reasonable efforts to cause the personal representative to commence or defend the action,
-must have given the necessary notice, and must be acting in good faith.
-There must be an arguable case, as a meritless case would be neither necessary nor expedient to protect the interests of the estate or the specified person.

However, it will not always be necessary to consider whether the potential relief outweighs the inconvenience to the estate and whether the litigation is in the best interests of the estate.

Rather, as mentioned, s. 151(3)(b) is to be read disjunctively, such that there are four possible ways the standard may be met:

it may be necessary to protect the interests of the estate;

it may be expedient to protect the interests of the estate;

it may be necessary to protect the interests of a specified person;

or it may be expedient to protect the interests of a specified person.

Presumption of Revocation and Lost Wills

Re Bennett Estate 2023 BCSC 559 discussed the presumption of revocation, where the original will of the deceased had been lost, and in an application for directions, ordered that a copy of the will could be probated as there was no evidence that the original will was last in the possession of the deceased so s to invoke the presumption.

The court found that the copy of the will represent of the testamentary intentions of the deceased.

The Presumption of Revocation

The presumption of revocation was explained as follows by Wilson J. in Haider v. Kalugin, 2008 BCSC 930

[9] If a Will last known to be in custody of testator is not found at his death, the presumption is that the testator destroyed it with the intention of revoking it (“animo revocandi”). However, that presumption may be rebutted by evidence, written or oral, of the facts. The strength of the presumption will depend upon the character of the custody which the testator had over the Will: Sugden v. Lord St. Leonards (1876), 1 P.D. 154 (English C.A.).

[10] In Sigurdson v. Sigurdson [1935] 2 D.L.R. 445 (S.C.C.), at paragraph 49, Davis J. said:
[49]1 It needs very clear and convincing evidence to establish what is alleged to be a lost will. . . .The person propounding such a will has a burden of proof that persists throughout the whole trial to satisfy the court at its conclusion that the will is in fact lost and was not destroyed by the testator with the intention of putting an end to it. Each case of course turns upon its own facts but the principles respecting the well-settled presumption against the Will must be applied to the facts.

[11] In Welch v. Phillips (1836) 1 Moo PC 299, at 302, referred to in Bobersky Estate (Re) [1954] A.J. No. 12 (Alta Dist. Crt.), at paragraph 6, the court said:
[6] If a will traced to the possession of the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by the deceased himself; and that presumption must have effect, unless there is good and sufficient reason to repel it. It is a presumption founded on good sense, for it is highly reasonable to suppose that an instrument of so much importance would be carefully preserved, by a person of ordinary caution, in some place of safety and would not be either lost or stolen, and if, on the death of a maker, is not found in his usual repositories or else where he resides, it is in a high degree of probable that the deceased himself has purposely destroyed it. But this presumption, like all others of fact, may be rebutted by others, which raises a higher degree of probability to the contrary.

Haider was considered. in Whitehead Estate, 2010 BCSC 348 [Whitehead].

At para. 28, the Court concluded that there was no evidence upon which it could conclude that the will of the deceased was properly executed or a true copy of the original will.
At para. 29, the Court went on to consider what the situation would be if that conclusion was incorrect, and the will was properly executed and a true copy. The Court stated that in that case:
… the next issue is whether the original will can be traced to the possession of the deceased. If it can be traced to her possession then on a finding that the original has been lost, the presumption arises that it has been destroyed with the intention of revoking the will.

After referring to Haider at para. 30, the Court in Whitehead concluded at para. 31:

On the evidence presented in this case, I am not able to find that the deceased ever had possession of the original will and therefore the presumption that the will has been destroyed with the intention that it be revoked does not apply.

Pleading a Cause of Action

In order to disclose a cause of action, a notice of civil claim must not simply name that cause of action, but also set out the elements of that cause of action.

Rule 3-1(2)(a) of the Supreme Court Civil Rules, B.C. Reg. 168/2009, provides that a notice of civil claim must set out the material facts in support of a claim.
Material facts are the means by which the claimant will prove the elements of the cause of action and thus are “comprised of every fact that would be necessary for the plaintiff to prove in order to support their claim” and in so doing, are integral to pleadings meeting their role of providing notice and defining the issues to be tried:  Attorney General v Frazier 2022 BCCA 379 at paras. 69-70, citing Mancuso v. Canada (Minister of National Health and Welfare), 2015 FCA 227 at paras. 16–20; Workers Compensation Board v. Sort, 2022 BCCA 318 at para. 102; Mercantile Office Systems Private Ltd. v. Worldwide Warranty Life Services Inc., 2021 BCCA 362 at paras. 21-23; and Kindylides v. Does, 2020 BCCA 330 at para. 34.

At para. 71 of Frazier, the Court of Appeal also made clear that bare allegations based on speculation and assumptions are not material facts, citing Kindylides at para. 33.

In Imperial Tobacco at para. 22, the Supreme Court of Canada stressed the importance of pleading material facts with the now often cited phrase “plead them they must”, explaining that while a claimant may not be able to prove facts at the time they are pled, the claimant must plead them nonetheless. It is not open to the claimant to wait and see how the evidence develops before pleading material facts.

The distinction between evidence and material facts is emphasized in the Supreme Court Civil Rules which require material facts be pled (R. 3 1(2)) while prohibiting pleading evidence (R. 3 7(1)). Material facts are the who, when, where, how and what that gives rise to liability: Frazier at para. 70, while evidence is the means by which the material facts will be proved.

In Frazier at paras. 72 and 75, the Court of Appeal explained that where material facts are not pleaded, an application to strike may be allowed because the claim is not capable of supporting a cause of action and the court cannot properly evaluate whether there is a chance of success. T

Surreptitious Recordings Are Admissible

In C.C. v. S.P.R., 2022 BCSC 1057 [C.C.], the court considered the admissibility of surreptitious recordings. During the trial, the respondent who had made the recordings sought to adduce them, along with transcripts, into evidence. The court . noted (at para. 4) that while the practice of secretly recording a party for use in a family law proceeding should be discouraged, “there are circumstances where the probative value of admitting surreptitiously made recording outweighs the prejudicial effect of its admission”.

Note that it is a criminal offence to secretly record a conversation that is between third parties that you are not privy to the conversation , it is not illegal to record a conversations that you are a party to.

In C.C., at paras. 31-32, Gibb-Carsley J. set out the test applicable in British Columbia for determining the admissibility of surreptitious recordings:
[31] In British Columbia, the court has developed a four-part test to determine the admissibility of surreptitious recordings.

This test as set out by Justice Skolrood in Finch v. Finch, 2014 BCSC 653 at para. 62 [Finch] can be summarized as follows:

i. the recordings must be relevant;
ii. the participants must be accurately identified;
iii. the recordings must be trustworthy; and
iv. the court must be satisfied that the probative value of the recordings outweighs its prejudicial effects.

The court considered the leading cases in this province regarding the use of surreptitious recordings including A.D.B. v. E.B., [1997] B.C.J. No. 227, 1997 CarswellBC 104 (S.C.), Sweeten v. Sweeten, [1996] B.C.J. No. 3138, 1996 CanLII 2972 (S.C.) [Sweeten], and Mathews v. Mathews, 2007 BCSC 1825 [Mathews], and accepted that as a starting point there is a limited discretion for the court to exclude the evidence simply on a policy basis.

Admission of Extrinsic Evidence in Wills Interpretation Post WESA

Zalechuk Estate 2023 BCSC 523 discussed the modern approach to wills interpretation post WESA.

The Court’s power to rectify a will is found in s. 59 of the WESA:

59 (1) On application for rectification of a will, the court, sitting as a court of construction or as a court of probate, may order that the will be rectified if the court determines that the will fails to carry out the will-maker’s intentions because of

(a) an error arising from an accidental slip or omission,
(b) a misunderstanding of the will-maker’s instructions, or
(c) a failure to carry out the will-maker’s instructions.
(2) Extrinsic evidence, including evidence of the will-maker’s intent, is admissible to prove the existence of a circumstance described in subsection (1).
(3) An application for rectification of a will must be made no later than 180 days from the date the representation grant is issued unless the court grants leave to make an application after that date.

(4) If the court grants leave to make an application for rectification of a will after 180 days from the date the representation grant is issued, a personal representative who distributes any part of the estate to which entitlement is subsequently affected by rectification is not liable if, in reasonable reliance on the will, the distribution is made
(a) after 180 days from the date the representation grant is issued, and
(b) before the notice of the application for rectification is delivered to the personal representative.
(5) Subsection (4) does not affect the right of any person to recover from a beneficiary any part of the estate distributed in the circumstances described in that subsection.

In Thiemer Estate, 2012 BCSC 629 which also predated the coming into force of the WESA, Justice Dardi summarized some useful principles of construction. She said that the objective of the court is to ascertain the intention of the testator as expressed in his or her will when it is read as a whole in light of any properly admissible extrinsic evidence. The testator’s intention is to be gathered from the will as a whole and not solely from the provisions in dispute (para. 45 citing Perrin v. Morgan, [1943] A.C. 399 at 406 (H.L.) and (H.L.); Re: Burke (1960), 20 D.L.R. (2d) 396 at 398-399 (Ont. C.A.).

The court is to ascertain the express intention of the testator which is the meaning of the written word as opposed to what the testator may have meant to do when he or she made a will (Thiemer at para. 46 citing Perrin at 406).
Earlier lines of authority endorsed an objective approach to will interpretation but modern jurisprudence recognizes a strict literal approach can defeat the intention of the testator (Thiemer at para. 47, citing “The Law Reform Commission of British Columbia”, Report on Interpretations of Wills, LRC 58 at 6).
[68] At para. 48 Justice Dardi said:

[48] In keeping with contemporary judicial thinking, the courts of this province have favoured the subjective approach to interpreting wills, wherein the objective is to ascertain the actual meaning the testator ascribed to the words he or she used in the will. In determining the testator’s intention the courts have endorsed the analytical approach commonly described as the “armchair rule”. The rule requires that the court put itself in the position of the testator at the point in time when he or she made the will, and from that vantage point construe the language in the will in light of the surrounding facts and circumstances known to the testator.
In Jamt Estate, 2021 BCSC 788, ss. 58 and 59 of the WESA is discussed by Justice Coval. He says that s. 58 is remedial in nature covering a broad discretion in prescribed circumstances to order a writing or marking on a will be fully effective. Section 59, like s. 58 is remedial in nature conferring a broad discretion to rectify a will that fails to carry out the makers intentions in prescribed circumstances. Prior to the enactment of the WESA there was no such statutory authority in British Columbia to rectify wills and common law rectification had very narrow boundaries.

Since there were no judicial considerations of s. 59(1)(a) Justice Coval took guidance from the United Kingdom decision in Re Segelman [1996] Ch. 171 at p. 180 which considered similar but not identical sections of the Administration of Justice Act 1982. He raised three questions:

1) what were the testator’s intentions with regard to the issue for which rectification is sought?
2) does the Will as written fail to carry out those intentions?
3) is that failure a consequence of one of the reasons specified in ss. 59(1)(a)-(c).

Justice Coval concluded that the extrinsic evidence strongly supported granting the rectification sought under s. 59(1). He concluded that Mr. Jamt intended to leave his estate to the petitioner. The accidental slip had been the use of the wrong middle name for the petitioner.

Section 59(2) of the WESA admits extrinsic evidence to prove the circumstances described in s. 59(1) if the court is of the view that the will fails to carry out the will-maker’s intentions because of an error arising from an accidental slip or omission or a misunderstanding or failure to carry out the will-maker’s instructions. Since the Will was prepared by the deceased, I will only consider whether there has been an accidental slip or omission.

In Simpson, the Court of Appeal applied s. 59 to rectify a will in a case where they found a denial of rectification in those particular circumstances would deprive the respondents of the gift the deceased intended them to have, and provide the appellant with a windfall the deceased never intended her to have. An accidental omission arose from the deceased’s failure to realize that his intended gift of the shares would never get to the respondents due to the operation of the survivor clause of the shareholders agreement.

The trial judge allowed the extrinsic evidence of the drafting solicitor’s notes to determine what the testator’s intentions were.
The majority of the Court of Appeal allowed the rectification.

Adjournments

Adjournments are a scourge of the litigation process but a common occurrence for a myriad of reasons.

The decision to adjourn a trial hearing is a discretionary one, governed by the interests of justice and necessitating a balancing of interests: Sidoroff v. Joe (1992), 76 BCLR (2d) 82 BCCA .

Navarro v. Doig River First Nation, 2015 BCSC 2173 [Navarro] provides a succinct summary of the legal principles governing adjournments.

The factors and considerations (at para. 20) include, in no particular order of priority:

  • the expeditious and speedy resolution of matters on their merits;
  • the reasonableness of the request;
  • the grounds or explanation for the adjournment;
  • the timeliness of the request;
  • the potential prejudice to each party;
  • the right to a fair trial;
  • the proper administration of justice;
  • the history of the matter, including deliberate delay or misuse of the court process; and
  • the fact of a self-represented litigant.

 

“Caregiver” Sibling Awarded $115,000 Over Equal Split of Will

Rawlins v Rawlins 2023 BCSC 466 deals with a very common factual scenario in estate litigation, namely, the sibling who spends most of his or her time living at home with his/her parents, ultimately providing personal care in latter years, and seeking additional compensation for having done so.

 

The other siblings typically see the sibling as being somewhat of a freeloader, living rent and board free for most of his or her life and then only providing minimal care for  a short period of time.
The evidence is typically very conflicting as it was in the Rawlins case.

There were three male children born of Mr. and Mrs. Rawlins, who prepared wills in 1977, providing for an equal share between their three sons. The father lived to be 93 and the mother passed away at 85.
One son ( Doug)  lived his entire life in the matrimonial home and had a sporadic work record, with his longest employment being that by one of his siblings under parental pressure to provide same.
After that business closed in 2014 the caregiver brother Doug chose to stay at home and look after his elderly parents on a full-time basis. The estate was primarily the family home and was valued at approximately $2.4 million, which would provide approximately  $800,000 to each of the three male children.

The reasons for judgment are lengthy due to a close examination of what contributions were made by Doug to the estate, and what  personal care was provided to his parents and for what duration.

The court did not apply the law relating to wills variation and instead focused on the plaintiffs claim for unjust enrichment.

The court found that the plaintiff did provide material benefits to the estate of his late mother from the personal care services that he provided to each of his parents in their final years, but that the estate did not receive any benefit from Doug’s allege contributions towards the actual property itself.

The court found that the personal care services that Doug rendered to his parents and their final years involved a deprivation to Doug and that there was no juristic reason for Doug’s enrichment of his mother’s estate in the form of personal care services as he had no contractual, law or statutory duty to provide personal care services for his elderly parents.

The court concluded that Doug’s deceased mother had a legal duty toward Doug in the form of an unjust enrichment claim based on his provision of personal care for both yourself and your late husband are in their final years.
The court particularly examined both the pros and the cons of a child who decides to stay at home and lived with one’s parents, as opposed to moving out and embarking on his or her own journey outside of the parental home.

Interesting enough, the court stated that in making their lifestyle choice to stay at home that he did, Doug deprived himself of any impetus to grow his own nest egg. His brothers, by contrast, move out of the family home acquired their own houses and were largely, if not entirely financially independent.

The court concluded that Doug should be awarded a sum of $115,000 for the years that he cared for his parents, based on $25,000 per year for the three years that he cared for his mother, and $40,000 for the two years that he cared for his mother at another time. He was further ordered to pay two thirds of the total of the unpaid property taxes for the five years that he resided in the home after the death of his last parent.