Vancouver Wills Variation Lawyer- The Leading Case- Tataryn

Trevor Todd of Disinherited.com has 50 years experience in the Vancouver general area handling wills variation cases to obtain  just results for a disinherited child or spouse.

 

The law of wills variation currently flows from section 60 of the Wills, Estates and Succession Act (“WESA”)
 which empowers the court, in its discretion, to vary a will if, in the court’s
opinion, the will does not make adequate provision for the proper maintenance and support of
the will-maker’s spouse or children:

Despite any law or enactment to the contrary, if a will-maker dies leaving a will that
does not, in the court’s opinion, make adequate provision for the proper maintenance
and support of the will-maker’s spouse or children, the court may, in a proceeding by or
on behalf of the spouse or children, order that the provision that it thinks adequate, just

and equitable in the circumstances be made out of the will-maker’s estate for the
spouse or children.

The governing authority in British Columbia on the application of section 60 of the Act is the
Supreme Court of Canada decision in Tataryn v. Tataryn Estate, [1994] 2 SCR 807.

 

In that case, Justice McLachlin ) set out the key principles that must guide the court in the
exercise of its discretion, including the following:

  1. The test for determining what is “adequate, just and equitable” is that of the “judicious
    father of a family seeking to discharge both his marital and his parental duty”.
  2. The determination of what is “adequate, just and equitable” should be made according
    to contemporary standards. Those standards will change from time to time and the
    courts are not bound by the views and awards made in earlier times when standards
    were different.
  3. While the WESA protects both the interests of “adequate, just and equitable” provision
    for claimants and testamentary autonomy, the former interest is paramount.
    Testamentary freedom must yield to the extent required to achieve adequate, just, and
    equitable provision for the applicant spouse and/or children and only to that extent.
  4. A proper determination of what is “adequate, just and equitable” has two distinct
    components: assessment of the will-maker’s “legal obligations” and “moral obligations”
    to the claimant.
  5. All claims against the estate should be met if the size of the estate so permits. If all
    claims cannot be met, legal obligations should take precedence over moral obligations.
  6. The moral claim of independent adult children is more tenuous than the moral claim of
    spouses or dependent adult children. But if the size of the estate permits, and in the
    absence of circumstances negating the existence of such an obligation, some provision
    for adult independent children should be made.
  7. In any given case, there will be a wide range of options, any of which might be
    considered appropriate in the circumstances. Provided that the testator has chosen an
    option within this range, the will should not be disturbed.

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Fixing a Will in BC-Digital Will Cured Under S. 58 WESA

Trevor Todd and Jackson Todd have over sixty years combined experience in estate litigation including ” fixing or curing” wills that fall short of proper execution procedures in icluding the advent of digital wills..

 

Rempel Estate v Dudley 2020 BCSC 2207 found that certain documents in digital form represented the true testamentary intentions of the deceased and cured the execution deficiencies under S. 58 WESA.

Canada Trust as administrator of the estate of the deceased petitioned the Court for an order under s. 58 of the Wills, Estate and Succession Act, S.B.C. 2009, c. 13 [WESA] that certain documents in digital form represent the testamentary intentions of the deceased, Mr. Rempel. As well, the petitioner sought an order that “deficiencies in any of the said documents which are found to be testamentary be cured”.
The documents in issue are contained on two memory sticks, the first of which contains recordings, including a voice memorandum created by Mr. Rempel and recordings of several telephone conversations between Mr. Rempel and a notary public.
The second memory stick contains file folders and sub-folders created by Mr. Rempel that hold electronic drafts of documents which potentially express Mr. Rempel’s testamentary intentions in the event he died without a will. More specifically, the latter documents include will instruction client questionnaire forms, i.e., drafts of information then sought by a notary public, presumably with the eventual intent to prepare a will, but the search of his premises did locate several paper and electronic documents which indicated Mr. Rempel had been actively working towards completion of a formal will.

The Law

Evidence of statements made by the deceased are admissible. I quote from Pasko v. Pasko, 2002 BCSC 435 at para. 10:

10 There is another exception to the hearsay rule which permits evidence to be given of statements made by deceased persons as to their present state of mind (including intention), which statements need not be against interest, provided that the deceased person’s state of mind is relevant to an issue in the case. See R. v. Smith (1992) 75 C.C.C. 3d 257.

In Modonese v. Delac Estate, 2011 BCSC 82 at para. 84 following reference to Pasko, the Court stated:

84 Following Pasko, if I am wrong in concluding that the statements concerning Regina’s intention to divide her assets equally are not admissible pursuant to s. 5 of the WVA, they ought to be admitted pursuant to this exception to the hearsay rule.

[The WVA was a reference to the Wills Variation Act, RSBC 1996, c.490, as repealed by WESA]

The hearsay statements attributed to the deceased are reliable in that they are repeated in many of the documents prepared by Mr. Rempel over a considerable period of time and, as such, are reliable as to his intentions regarding the disposition of his estate.

The introduction of s. 58 represented a departure from the formalities for execution which had been required under the Wills Variation Act, RSBC 1996, c.490, as repealed by WESA, which was discussed by Dardi J. in British Columbia (Public Guardian and Trustee) v. Shaeffer, 2015 BCSC 1306 at para. 26:

26 The formalities for execution have been incorporated into s. 37 of the WESA. However, the WESA has introduced a remedial provision in s. 58 that gives the court a broad authority to “cure” a purported will, an alteration to a will, or the revocation of a will that does not satisfy the signing and witnessing requirements prescribed by s. 37. S. 58 constitutes a key component of the modernization of the law of wills and succession in British Columbia because it empowers the court to uphold the will-maker’s true intentions even where the will, a gift under the will or a purported alteration or revocation of the will is invalid pursuant to other provisions of the WESA.

In order to be a testamentary document capable of being “cured” under s. 58, the document “must record a deliberate or fixed and final expression of the deceased’s intention regarding disposal of his property on death”: Re Smith Estate 2016 BCSC 350 at para. 23.

Fraudulent Conveyances/Transfers

The issue of whether a transfer of assets gratuitously made is a Fraudulent Conveyance or not vis a vis creditors is found in the caselaw arising from the Fraudulent Conveyance Act (FCA).

Section 2 of the FCA provides:

This Act does not apply to a disposition of property for good consideration and in good faith lawfully transferred to a person who, at the time of the transfer, has no notice or knowledge of collusion or fraud.

Two key questions arise when determining the validity of the Transfer: (1) whether there was good consideration for the Transfer, and (2) whether the defendants had the requisite intent.

A conveyance of property by a debtor to a creditor to satisfy an antecedent debt is made for good consideration and not void for fraud. As explained long ago by the Supreme Court of Canada in Mulcahy v. Archibold (1898), 28 S.C.R. 523, at 529(para.3):

… So long as there is an existing debt and the transfer to him is made for the purpose of securing that debt and he does not either directly or indirectly make himself an instrument for the purpose of subsequently benefitting the transferor, he is protected and the transaction cannot be held void.

[ The Court of Appeal relied on this proposition more recently in First Royal Enterprises Ltd. v. Armadillo’s Restaurant Ltd. (1995), 15 B.C.L.R. (3d) 254, 1995 CanLII 605 (C.A.) at para. 31, confirming that a pre¬existing debt can furnish good consideration within the meaning of the FCA, and so long as the debt is honestly due and owing, there is good consideration.

Where valuable consideration has passed, the party seeking to impeach the Transfer must show that the transferee actively participated in the fraud: Meeker Cedar Products Ltd. v. Edge (1968), 68 D.L.R. (2d) 294, 1968 CanLll 666 (B.C.C.A.) at 299, aff’d (1968), 1 D.L.R. (3d) 240, 1968 CanLII 776 (S.C.C.); First Royal Enterprises at para. 24; and Chan v. Stanwood, 2002 BCCA 474 at para. 20.

A bare assertion of a defence is insufficient to meet the applicant’s burden of establishing a “meritorious defence”. The applicant’s affidavit material should contain sufficient detail and supporting documents to buttress the asserted defence: Leibenzeder Estate v. MacIntyre, 2023 BCSC 1422 at para. 183.

The applicant must provide, by admissible evidence, sufficient detail to allow the chambers judge to determine whether a meritorious defence exists: Forgotten Treasures International Inc. v. Lloyd’s Underwiters, 2020 BCCA 341 at paras. 26–30.

The only intent necessary to meet the requirements of section 1 of the FCA is to “put one’s assets out of reach of one’s creditors”: Royal Bank of Canada v. Clarke, 2009 BCSC 481 at para. 20. No further dishonest or morally blameworthy intent is required: Abakhan & Associates Inc. v. Braydon Investments Ltd., 2009 BCCA 521 at para. 73.

Previous Wills Ordered Produced

In DeContiis v DeContiis Estate 2023 BCSC 2163 , a wealthy father of seven boys did six wills between 1997 and 2009 which the plaintiff sought to be produced in order to determine the deceased true intentions re his estate planning.

The deceased left a last will, January 2016, which disinherited one son entirely.

In 2019. The deceased established an alter ego trust in which he put substantial assets.

The plaintiff sought and was granted production of the previous six wills of the deceased in order to determine the deceased true intentions re his estate planning

The plaintiff argues that s. 62 of Wills and Estate Succession Act, S.B.C. 2009, c. 13 supports production of the prior wills. Section 62 states:
Evidence

62 (1) In a proceeding under section 60, the court may accept the evidence it considers proper respecting the will-maker’s reasons, so far as may be determined,
(a)for making the gifts made in the will, or

(b)for not making adequate provision for the will-maker’s spouse or children,

including any written statement signed by the will-maker.

(2) In estimating the weight to be given to a statement referred to in subsection (1), the court must have regard to all the circumstances from which an inference may reasonably be drawn about the accuracy or otherwise of the statement.

[The amended notice of civil claim at para. 53 of Part 3, Legal Basis, asserts that “prior wills, executed before 2016 and without the undue influence of the Younger Brothers, included the Plaintiff as a beneficiary”.

Based on these paragraphs of the amended notice of civil claim alone, the defendants ought to have listed the prior wills in their initial list of documents because they are material.

The prior wills are squarely at issue because the court considers prior wills where a will or other estate planning documents are challenged.

The prior wills are relevant to the claim of undue influence because they will disclose how the deceased treated the plaintiff in the prior wills which would be an indication of Innocenzo’s attitudes toward Ivano over time.

In Jung v. Poole Estate, 2021 BCSC 623, the trial judge analyzed the deceased’s attitudes towards his disinherited children by, in part, examining the terms of the prior wills (paras.

51 to 52) and Geluch v. Geluch Estate, 2019 BCSC 2203, in which the trial judge considered prior wills as evidence of the deceased’s prior wishes that were inconsistent with the impugned final will (para. 117).

Rule 7-1(11) requires listing and production of documents that “relate to any or all matters in question in the action”. The test for such disclosure is whether the documents “may enable a party, directly or indirectly, to advance their own case or damage that of their adversary, including documents that may fairly lead to a train of inquiry having either consequence”: Richter v. Richter Estate, 2023 BCSC 105 at paras. 57 and 58.

In Westman v. Westman, 2000 BCSC 236, the trial judge referred to the history of the deceased’s prior wills as indicative of an “inter-family phenomenon” (at para. 34) that was relevant to an assessment of whether the will made adequate provision for the deceased’s spouse. In the present case, the analogy to “inter-family phenomenon” is the changing attitudes Innocenzo had to each of his sons. The prior wills are relevant to this issue.

in Kobzos v. Kobsoz Estate, 2019 BCSC 2254, the documents relating to the deceased’s estate planning were relevant for production.

Executor Remuneration

The legal principles re executor’s remuneration and charges for legal services, are set out in Bernhard v. Wist, 2011 BCSC 101:

Section 88 of the Trustee Act, [R.S.B.C. 1996, c. 464] governs executor’s remuneration. The executor is entitled to:

a) a maximum of 5 per cent of the gross [aggregate] value of the estate;
b) a maximum of 5 per cent of the income earned during the administration of the estate; and
c) an annual “care and management fee” of 0.4% of the average market value of the assets.

However, the percentages stipulated in s. 88 are not necessarily to be applied in every calculation of remuneration. The percentages provide a rough guide to assist in appropriate computation of the executor’s remuneration: Re Turley Estate (1955), 16 W.W.R. 72 (B.C.S.C.). In the end, the court must be satisfied that the compensation claimed “bears some reasonable relationship to the work and responsibility involved”: Re La Chance, [1955] 15 W.W.R. 141 (B.C.S.C.).

Various factors are to be considered when determining the appropriate executor’s fee. Those factors include the magnitude of the estate, the care and responsibility involved, the time occupied in the administration, the skill and ability displayed and the success (or lack thereof) achieved in the administration: Re McColl Estate (1967), 65 W.W.R. 110 (B.C.S.C.). Similar, but not the same, types of considerations apply with respect to a care and management fee: Re Pedlar (1982), 34 B.C.L.R. 185 (S.C.).

In terms of calculating the capital fee, the gross aggregate value of the estate is the realized value of the original assets of the estate.

If the estate suffers any losses as a result of an executor’s actions (or inaction), the executor is obliged to repay the estate, with interest. The interest is calculated pursuant to the Court Order Interest Act, R.S.B.C. 1996, c. 79, unless there is a finding that the executor has used estate monies for his or her own benefit. In that circumstance, the executor may be required to pay compound interest (see Waters, D.W.M., Waters’ Law of Trusts in Canada, 3rd edition at pp.1228-1229).
An adverse inference may be drawn against an executor’s reliability if he or she fails to produce relevant documents as requested by the beneficiaries or ordered by the court: Booty v. Hutton, [1996] B.C.J. No. 2286 (S.C.).

The executor is entitled to be reimbursed from the estate for a solicitor’s bill for legal services rendered provided that those legal costs have been reasonably and properly incurred and do not relate to work that could have been performed by the executor. Fees paid for any services that could have been performed by the executor should be deducted from the executor’s remuneration: Re Lloyd Estate (1954), 12 W.W.R. (N.S.) 445.

Furthermore, an executor is not entitled to employ a solicitor to do work that the executor could do, such as ordinary letters, attendances, paying insurance premiums and the like, attending to banking matters and other ordinary duties that do not require the skill or expertise of a solicitor: Sharp v. Lush (1879), 10 Ch. 468 applied in Re Smith, [1972] 2 O.R. 256 (Surr. Ct).

Vancouver Estate Lawyer-Joint Accounts and Adult Children

vancouver estate lawyer

Trevor Todd and Jackson Todd have over 60 years experience in handling contested estate matters including the often thorny question of parents transferring financial assets into the name of their children.

Such transfers  could amount to a gift, a loan or a trust depending on the intention of the parent transferring the assets.

The Law

In Kolic v Kolic 2019 BCSC 1463 the court discussed a number of cases , starting with Pecore v Pecore re dealing with parents transferring financial assets into the names of their adult children.

The presumption, where funds are held jointly by a testator with an adult child, is there is a resulting trust in favour of the testator. The onus is on the adult child to prove the funds were intended as a gift. As Rothstein J. stated in Pecore v. Pecore, 2007 SCC 17 at para. 53:

… [T]he presumption of a resulting trust means that it will fall to the surviving joint account holder to prove that the transferor intended to gift the right of survivorship to whatever assets are left in the account to the survivor. Otherwise, the assets will be treated as part of the transferor’s estate to be distributed according to the transferor’s will.

[82] The process for determining a transferor’s intention is addressed at length in Pecore:

What Evidence May a Court Consider in Determining Intent of the Transferor?

55] Where a gratuitous transfer is being challenged, the trial judge must begin his or her inquiry by determining the proper presumption to apply and then weigh all the evidence relating to the actual intention of the transferor to [determine whether the presumption has been rebutted …

Evidence Subsequent to the Transfer

[56] The traditional rule is that evidence adduced to show the intention of the transferor at the time of the transfer “ought to be contemporaneous, or nearly so,” to the transaction: see Clemens v. Clemens Estate, [1956] S.C.R. 286, at p. 294, citing Jeans v. Cooke (1857), 24 Beav. 513, 53 E. R. 456 (Rolls Ct.). Whether evidence subsequent to a transfer is admissible has often been a question of whether it complies with the Viscount Simonds’ rule in Shephard v. Cartwright, [1955] A. C. 431 (H.L.), at p. 445, citing Snell’s Principles of Equity (24th ed. 1954), at p. 153:

The acts and declarations of the parties before or at the time of the purchase, [or of the transfer] or so immediately after it as to constitute a part of the transaction, are admissible in evidence either for or against the party who did the act or made the declaration. … But subsequent declarations are admissible as evidence only against the party who made them …

The reason that subsequent acts and declarations have been viewed with mistrust by courts is because a transferor could have changed his or her mind subsequent to the transfer and because donors are not allowed to retract gifts. As noted by Huband J.A. in Dreger [(Litigation Guardian of) v. Dreger (1994), 5 E.T.R. (2d) 250], at para. 33: “Self-serving statements after the event are too easily fabricated in order to bring about a desired result.”

[59] … I am of the view that the evidence of intention that arises subsequent to a transfer should not automatically be excluded if it does not comply with the Shephard v. Cartright rule. Such evidence, however, must be relevant to the intention of the transferor at the time of the transfer: Taylor v. Wallbridge (1879), 2 S.C.R. 616. The trial judge must assess the reliability of this evidence and determine what weight it should be given, guarding against evidence that is self-serving or that tends to reflect a change in intention.

Bank Documents

[61] While I agree that bank documents do not necessarily set out equitable interests in joint accounts, banking documents in modern times may be detailed enough that they provide strong evidence of the intentions of the transferor regarding how the balance in the account should be treated on his or her death: see B. Ziff, Principles of Property Law (4th ed. 2006), at p. 332. Therefore, if there is anything in the bank documents that specifically suggests the transferor’s intent regarding the beneficial interest in the account, I do not think that courts should be barred from considering it. Indeed, the clearer the evidence in the bank documents in question, the more weight that evidence should carry.

Control and Use of the Funds in the Account

[64] First, it may be that the dynamics of the relationship are such that the transferor makes the management decisions. He or she may be more experienced with the accounts. This does not negate the beneficial interest of the other account holder. Conversely, evidence that a transferee controlled the funds does not necessarily mean that the transferee took a beneficial interest. Ageing parents may set up accounts for the sole purpose of having their adult child manage their funds for their benefit.

[65] Second, in cases involving an ageing parent and an adult child, it may be that the transferee, although entitled both legally and beneficially to withdraw funds, will refrain from accessing them in order to ensure there are sufficient funds to care for the parent for the remainder of the parent’s life.

[66] Finally, as previously discussed, the fact that a transferor controlled and used the funds during his or her life is not necessarily inconsistent with an intention at the time of the transfer that the transferee would acquire the balance of the account on the transferor’s death through the gift of the right of survivorship.

[83] As the Court of Appeal emphasized in Bergen v. Bergen, 2013 BCCA 492, “the actual intention of the grantor is the governing consideration” (at para. 38).

[84] The burden is on Mary to establish the funds she received, either jointly or in her sole name, were a gift from Violet. In Unger v. Unger Estate, 2017 BCSC 1946, Forth J. noted:

[56] Historically when a father has transferred property to his child it was presumed that the transfer was intended as a gift. This is known as the presumption of advancement. In Pecore v. Pecore, 2007 SCC 17 [Pecore], the Supreme Court of Canada, however, narrowed this presumption and held that it does not apply in cases where the child was at the age of majority at the time of the transfer. Instead, transfers to children at the age of majority give rise to the presumption of a resulting trust, which places a burden on the adult child alleging that the transfer was a gift: Pecore at paras. 22-36.

[57] At the time of the transfer Lorrain was an independent adult, and therefore she bears the burden of proving that the transfer was intended as a gift. In situations involving the transfer of financial assets, such as joint bank accounts, a key question is whether the parent transferred the assets into the joint account in order to have the child assist in managing the financial affairs of the parent or whether the parent indeed intended it as a true gift. The Court noted in Pecore at para. 45:

[45] In cases where the transferor’s proven intention in opening the joint account was to gift withdrawal rights to the transferee during his or her lifetime … and also to gift the balance of the account to the transferee alone on his or her death through survivorship, courts have had no difficulty finding that the presumption of a resulting trust has been rebutted and the transferee alone is entitled to the balance of the account on the transferor’s death.

[85] In Williams v. Williams Estate, 2018 BCSC 711, Marzari J. summarized several possible scenarios:

[87] With respect to joint accounts, Pecore (see paras. 45-47) establishes that it is possible for a transferor to intend to transfer only the right of survivorship, without transferring the benefit of the account during their lifetime.

[88] It is the actual intent of the transferor at the time of the transfer that is determinative of whether the account is to be treated as joint during the lifetime of the transferor, whether the right of survivorship in a joint account applies, or whether a resulting trust arises for the benefit of the estate in the entire amount: Pecore at paras. 5 and 59.

[89] In cases where, as the defendant alleges here, the intent of the transferor is to grant the right of survivorship only, the gift is not the specific amount in the account at the time of the transfer, but rather whatever the account balance is at the time of death. The Court in Pecore accepted that the account balance may fluctuate over time, and though the intent at the time of transfer must be to transfer the right of survivorship, it need not be to transfer a specific amount:

[50] Some judges have found that a gift of survivorship cannot be a complete and perfect inter vivos gift because of the ability of the transferor to drain a joint account prior to his or her death: see e. g. Hodgins J. A. ‘s dissent in Re Reid, [[1921] O.J. No. 250]. Like the Ontario Court of Appeal in Re Reid, at p. 608, and Edwards v. Bradley, [[1957] S.C.J. No. 37] at p. 234, I would reject this view. The nature of a joint account is that the balance will fluctuate over time. The gift in these circumstances is the transferee’s survivorship interest in the account balance – whatever it may be – at the time of the transferor’s death, not to any particular amount. [Emphasis added in Williams.]

 

[92] In Omelaniec Estate v. Manly, 2010 BCSC 1226, this Court considered the evidence of bank employees who handled the transfers. Just like the case at bar, there were two types of such evidence.

a) First, detailed evidence of a bank employee who could speak to the deceased’s intention; and

b) Second, financial representatives who had less specific recollections, but testified to their usual practices.

[93] Both types of evidence were found to be admissible for the purposes of establishing the intent of the transferor to transfer the funds in the accounts to the joint account holder upon death. This Court also relied upon similar evidence from bank representatives as to “normal practice” in the context of advising as to the right of survivorship on joint accounts in Halfpenny v. Holien, [1997] B.C.J. No. 1486 at paras. 20, 34 and 40 and Mordo v. Nitting, 2006 BCSC 1761 (see paras. 234-236, 428).

[94] However, a bank document that simply marks that the account is to be joint or with a right of survivorship, even together with evidence that this was explained by a bank representative, does not necessarily rebut the presumption of resulting trust on its own. For example, in Stade Estate (Re), 2017 BCSC 2354, the court was critical when there was no supporting or additional evidence:

[83] Randall also claims that Mrs. Stade’s “lawyers and bank employees told her (and I) that a right of survivorship meant I would get the money in the account when she died”. Randall’s counsel submits this is admissible as evidence of what was said to Mrs. Stade and Randall at the time. However, I am unable to rely on Randall’s evidence alone. Further, this specific evidence is vague; Randall does not identify these lawyers and bank employees; he does not explain when these people made the statement he claims they made; and there is no explanation as to why a lawyer would have been involved at the time the Bank Account, Term Deposit or Shares were put into joint names. For these reasons, I am unable to give this evidence any weight.

[95] In Madsen Estate v. Saylor, 2007 SCC 18, Rothstein J. for the majority held that financial institution documents along with testimony in relation to them did not constitute sufficient evidence to rebut the presumption of resulting trust in that case:

[18] Van Melle J. found that there was no evidence to support Patricia’s position that her father intended to gift the contents of his joint accounts to her – there was no documentation to that effect, there was no clear statement to anyone and the father’s conduct vis‑à-vis the joint accounts while he was alive did not support this contention. Indeed, she also did not believe much of Patricia’s evidence, finding that she was “evasive and gave conflicting evidence” and that she “purposely misrepresented events” (para. 51). Van Melle J. found that the father had sole control of the assets in the accounts during his lifetime and he declared and paid all income tax on the income generated from the joint accounts and investments. She concluded that the joint account agreement was not determinative of the father’s intention. She could not find evidence of an intention to benefit Patricia financially over the other children.

[27] Having regard to the lack of clarity in the documents on this critical point, I would accord them little weight insofar as the issue of beneficial entitlement to the assets in the accounts is concerned.

[96] In Kyle Estate v. Kyle, 2017 BCCA 329, the Court of Appeal upheld the trial judge’s finding that the presumption of resulting trust had not been rebutted, noting that bank documents are not necessarily sufficient to rebut the presumption:

[29] Nor do I consider the judge’s failure to analyze the long form agreement an error that is either palpable or overriding. The judge concluded it was the short form agreement that was shown to Jack. In any case, neither agreement precluded a resulting trust. They appear to me to fill the primary function of clarifying the rights of the joint tenants on one part and the financial institution on the other, affirming the bank’s obligation to allow withdrawal of the funds by a surviving joint tenant. They cannot be taken as conclusive evidence that as between the joint tenants there was no resulting trust, although without doubt they establish the joint account discussed in Pecore.

[87] As a result, joint bank account documents in and of themselves are not necessarily sufficient to rebut the presumption of resulting trust.

[88] In Shkuratoff v. Shkuratoff, 2007 BCSC 1061, purchasing a GIC solely with the deceased’s funds was sufficient to create a presumption of resulting trust, and despite Rothstein J.’s comments “regarding the evidential effect of bank documents”, a signature card on the investment portfolio did not overcome the presumption because it was “not sufficiently detailed to indicate the intentions of the Deceased upon her death” (at para. 33).

[89] The presence of the giftee when the transfer is made, even in the presence of a notary, may be a factor that favours upholding the presumption of a resulting trust. In Modonese v. Delac Estate, 2011 BCSC 82, Groves J. stated:

[152] The presumption is applicable since, after consideration of all of the evidence, I am of the view that the defendant has failed to adduce sufficient evidence to rebut the presumption. I am not satisfied that the defendant has met the onus of proving on a balance of probabilities that his mother intended to gift the property to him through the transfer into joint tenancy. The only evidence that exists in support of the defendant’s claim is statements made by the defendant himself, whose evidence I do not accept.

[153] On the contrary, there is ample evidence that, at best, Regina was confused or uncertain about the transfer and at worst did not know what the transfer involved. Additionally, despite attending before a notary public to witness her signature, there was no real effort by that notary public to obtain the independence of Regina’s thought process and her intention to transfer. In fact, the entire circumstances of the transfer, arranged by Marko, paid for by Marko, with Marko being physically present, vitiate against any level of independence of mind by Regina. The notary public did not know Regina and did not have an opportunity to get to know her under the circumstances of this transfer such that he could in any way be satisfied as to the independence of her actions.

Enforcing Oral Contracts

Stojka v Stojka 2023 BCCA 446 held that a binding  oral contract existed between two brothers with respect to a beneficial interest in a property.

The court reviewed the law re oral contracts and in particular amongst family members where the communications in the family context are often no more than statements of intent or wishes.

The question of whether a given requirement for the formation of a contract has been met “involves applying a legal standard to a set of facts and is therefore a question of mixed fact and law”: Housen v. Nikolaisen, 2002 SCC 33 at para. 26.

If a party to an oral agreement acts as though there were a binding contract or the other party relies on the agreement to their detriment the party is unable to rely of the lack of a written agreement as a defence: Le Soleil Hotel & Suites Ltd. v. Le Soleil Management Inc., 2009 BCSC 1303 at paras. 342–345 [Le Soleil];

• An enforceable agreement is reached where parties have reached a meeting of the minds and the parties express themselves outwardly in a manner that indicates an intention to be bound: Le Soleil at paras. 322–323;

• Reasonable certainty of the terms of the agreement are required: Le Soleil at paras. 339–340;

• The existence of an oral agreement is determined by applying the objective reasonable bystander test to consider how the promisor’s conduct would appear to a reasonable person in the position of the promise: Le Soleil at paras. 324–325;

• The party alleging the oral agreement must be able to prove its existence on the balance of probabilities: Bell v. Bell, 1998 CanLII 3194 at para. 14, [1998] B.C.J. No. 1457 (S.C.).

Vancouver Lawyer – Wills Variance and Assets Outside of the Estate

Trevor Todd and Jackson Todd have over sixty years combined experience in handling contested estates including wills variation claims.

Only assets passing pursuant to a will and requiring probate can be attacked under the wills variance laws.

Other assets passing outside of the estate such as joint tenancies cannot be attacked under wills variation claims, but the court can take those assets into account.

Assets passing outside of the estate such as inter vivos dispositions and assets passing by right of survivorship are relevant to determining whether a will should be varied under wills variation provisions and the issue of adequate provision for an adult child.

In Inch v. Battie, 2007 BCSC 1249 it was stated:

It thus appears that, although transfers passing outside of the Will are not part of the estate, the effect of such gifts can be considered in determining to what extent, if any, the court should vary the distribution under the Will.

In DeLeeuw v. DeLeeuw, 2003 BCSC 1472, Masuhara J. did consider the assets transferred to the claimant, the surviving spouse, before the testator’s death, in determining whether he made adequate provision for her proper maintenance and support (at paragraphs 98 – 100).

In Ryan v. Delahaye Estate, 2003 BCSC 1081, D. M. Smith J. considered compensation provided to the testator’s son for his devotion during the parents’ lifetime, and an interest-free loan made to him, in determining if there was proper maintenance and support for the other child. I thus conclude that, although inter vivos dispositions, and assets passing as a result of a right of survivorship pass outside the estate, and are thus not subject to a claim under the Wills Variation Act, the court can consider them when assessing, from the perspective of a judicious person, in the circumstances, whether a parent has met her moral obligations to an adult child.