Vancouver Estate Lawyer – Presumption of Death Orders

Trevor Todd and Jackson Todd have over 60 years combined experience in estate litigation matters including applications for Presumption of Death orders.

Re Martin 2024 BCSC 1948 dealt with a presumption of death order that was granted in October 2024 with respect to an individual who went missing in December 2009 and most likely died in a fire. His personal effects including passport, identification and money were found in his car.

The missing person had just recently been accused of several sexual assaults.

The court found it probable that after all the passage of time that the deceased likely died in the fire where he worked.

Section 3(1) of the Presumption of Death Act, R.S.B.C. 1996, c. 444 [Act] creates a presumption of death in certain circumstances:

3 (1) If, on the application of an interested person under the Supreme Court Civil Rules, the court is satisfied that

(a) a person has been absent and not heard of or from by the applicant, or to the knowledge of the applicant by any other person, since a day named,
(b) the applicant has no reason to believe that the person is living, and
(c) reasonable grounds exist for supposing that the person is dead,
the court may make an order declaring that the person is presumed to be dead for all purposes, or for those purposes only as are specified in the order.

There is no requirement in the Act for seven years to have passed before the presumption can apply as was the case at common law: Re Schmidt, 1987 CanLII 2730 (B.C.C.A.) at para. 12.

The standard of proof rests on the petitioners on the balance of probabilities: Re Schmidt at para. 13; Re Cyr, 2006 BCSC 1523 at para. 7.

A helpful list of non-exhaustive factors is provided in the Alberta King’s Bench decision of Comey Estate, 2010 ABQB 343 at para. 58, with citations removed:
a. the time, location, and circumstances of the disappearance;
b. the extent and nature of the post-disappearance searches;
c. a prior history of fraud;
d. the presence or absence of a motive for missing person to remain alive but disappear;
e. the time between a life insurance policy being obtained and the subsequent disappearance;
f. facts suggesting the disappearance was a consequence of foul play; and
g. abandonment of valuable property.

Vancouver Estate Litigation – Undue Influence and Wills Variation Claims Heard at Same Time

Trevor Todd and Jackson Todd have over 60 years combined experience in estate litigation, including acting for victims of financial/elder abuse, wills variation and undue influence.

In Cornies v Cornies estate 2024 BCSC 1766, the court dealt with an estate litigation procedural issue. 

The defendants brought a court application to sever the claims of the plaintiffs  to firstly hear whether the will was unduly influenced and valid or not , and if valid  to then  proceed with the wills variation claim.

There had been previous court decisions, including the Johnston case of the BC Court of Appeal that had held that a claim brought that includes both a question as to the validity of the will, together with a claim for a variation of the same will, should not be heard at the same time at trial. Instead, the validity of the will should firstly be determined and then if invalid, then the wills variation claim proceed.

The facts were slightly unusual in that the defendant was both the executor and primary beneficiary of the will. He had been the lawyer for the deceased for many years and prepared the will in his favour.

The Cornies decision did not follow the Johnston decision , and instead allowed the trial to proceed on the basis that both the undue influence, and the wills variation claims will be heard at the same time at trial.

 

The Law of Severance of Claims

Rule 22-5(6) of the British Columbia Supreme Court Civil Rules permits the court to sever claims. It reads as follows:

Separation

(6) If a joinder of several claims or parties in a proceeding may unduly complicate or delay the trial or hearing of the proceeding or is otherwise inconvenient, the court may order separate trials or hearings or make any other order it considers will further the object of these Supreme Court Civil Rules.

[36] In practice, Rule 22-5(6) gives the court the authority to sever claims and/or order separate trials or hearings when combining multiple claims or multiple parties would overly complicate or delay the proceedings or cause other inconveniences. This rule allows the court to simplify the litigation process and ensure that trials proceed efficiently and fairly.

[37] When considering a request for severance under Rule 22-5(6), a trial judge should apply a multi-faceted analysis based on factors established in case law.

Although there is no rigid test, the case law suggests that courts should consider a variety of factors when deciding whether to sever a claim. The case Schaper v. Sears Canada, 2000 BCSC 1575, is a key decision which outlines the factors a court should consider when determining whether to sever proceedings. In Schaper, the BCSC identified the following factors that a trial judge should consider:

a) Complication, Delay, or Inconvenience: The party requesting severance must show that hearing the claims together would unduly complicate, delay the hearing, or otherwise be inconvenient;
b) Party Actions: Have the actions of any party contributed to the complication, delay, or inconvenience? If so, severance may be more appropriate;
c) Distinct Issues: Are the issues between the plaintiff and defendant, and between the defendant and third party, sufficiently distinct? If so, that strengthens the argument for severance;
d) Efficiency and Judicial Economy: The court must assess whether hearing all parties together will provide the most efficient outcome and avoid unnecessary duplication of evidence; and
e) Prejudice: The court weighs whether the prejudice from hearing matters together outweighs the benefits.
In short, severance is appropriate when it simplifies proceedings, reduces duplication of evidence, and ensures a fair and efficient trial process
The court followed the reasoning of the Schaper v Sears Canada case , 2000 BCSC 1575 and allowed both claims to be heard at the same time.
Is not unusual for lawyers to bring both claims were the will’s validity is questioned, while at the same time asking that the will be varied under wills variation guidelines.

The court found that it really makes sense that the claims be heard at the same time as there is a good deal of duplication of the evidence involved in both claims