Vancouver Estate Lawyer- Revocation of Estate Grants

Trevor Todd and Jackson Todd have over sixty years combined experience at handling estate disputes, including the revocation of an estate  grant.

Re Barretto Estate 2025 BCSC 239 revoked a grant of administration on the basis of misrepresentation that should have prevented the grant from issuing in the first place.

The application is brought pursuant to Rules 25-5(5), 25-14(1)(c) of the Supreme Court Civil Rules, B.C. Reg. 168/2009 [Rules] and this Court’s inherent jurisdiction.

As this Court recently summarized in Narsaiya Estate (Re), 2023 BCSC 1350 at paras. 30-32:

a) Rule 25-5(5) provides that, on application, the Court may order that an estate grant be revoked;
b) Rule 25-14(1)(c) provides that, where there has been an application for estate grant, a person may bring an application under Part 8 of the Rules for an order revoking an estate grant; and
c) Rule 25-1(1)(b) defines “estate grant” as including a grant of administration, whether the grant is made for general, special or limited purposes.

This Court’s jurisdiction to revoke a grant of administration is broad, although it is to be exercised sparingly. As summarized by our Court of Appeal in Desbiens v. Smith, 2010 BCCA 394 at para. 62:

Courts have jurisdiction to revoke estate grants where evidence discloses that the grant ought not to have issued. There are numerous grounds on which probate can be revoked: e.g., where subsequent wills have been discovered; where it has been found that the will is otherwise invalid; where it has been determined that the testator is not, in fact, dead; where it is shown that the executor is under a legal disability (minority or mental infirmity); and where probate has been obtained by fraud. In short, where it is shown that a condition precedent to the grant of probate was not fulfilled, the court has jurisdiction to revoke the grant […]

Section 159(1) of the WESA provides:

If the court discharges or removes a personal representative, the court
a) must appoint another person who consents to act as the substitute personal representative, unless
i. the administration of the estate is complete, or
ii. the court does not consider a new appointment necessary, and
b) may, if the personal representative has resigned or is removed as a trustee, concurrently appoint the person referred to in paragraph (a) as trustee under the Trustee Act in place of the trustee being discharged or removed.
Section 159(1)(a) of the WESA sets out that in the usual course, when a grant of administration is revoked, the Court must issue a grant of administration to another individual. However, the Court has discretion not to appoint another person as a substitute administrator if the administration of the estate is complete or if the Court deems it unnecessary to appoint a substitute.

Vancouver Estate Lawyer- Interpreting Ambiguous Wills

Trevor Todd and Jackson Todd have over sixty combined years of experience in resolving estate disputes, including the interpretation of ambiguous wills

Anderson v O’Brien 2025 BCSC 200 is a post WESA that deals with the legal principles utilized by the court in interpreting the wording of the will.

In the Anderson case there is an ambiguity to do with a $40,000 bequest to care for the deceased’s animals that was given to two persons. The words, “or if they both die before me” gave rise to a dispute between the parties. “

The court found that the words “or if they both die before me”, when viewed in the context of the surrounding circumstances, demonstrated a deliberate choice by the deceased to create a non-conditional gift. Accordingly, despite the fact that the dogs did not survive the deceased, the court found that the gift did not lapse and that the plaintiff was entitled to be paid the $40,000 legacy.

 

The Legal Framework 

The principles that apply when a Court is asked to interpret a will were conveniently set out by Justice Burke in Vopicka v. Vopicka Estate, 2017 BCSC 2197 at paras. 12-13:

[12] While there have been somewhat different approaches utilized by the BC Court of Appeal as to when the courts can look beyond the will itself to ascertain the intention of the testator, as noted recently in Killam v. Killam, 2017 BCSC 175, at para. 60, the starting point for any analysis is the language of the will. The court then looks to the surrounding circumstances existing at the time the testator made the will.

[13] A succinct summary of the principles to be applied in interpreting the will are set out in Dice v. Dice Estate, 2012 ONCA 468 [Dice], at paras. 36-38:
[36] The parties agree on the proper approach to the interpretation of a will. First, and foremost, the court must determine the intention of the testator when he made his will. The golden rule in interpreting wills is to give effect to the testator’s intention as ascertained from the language that was used: National Trust Co. Ltd. v. Fleury, [1965] S.C.R. 817 at p. 829; Brown Estate (Re), [1934] S.C.R. 324, at p. 330; Singer v. Singer, [1932] S.C.R. 44, at p. 49. Underlying this approach is an attempt to ascertain the testator’s intention, having regard to the will as a whole.

[37] Where the testator’s intention cannot be ascertained from the plain meaning of the language that was used, the court may consider the surrounding circumstances known to the testator when he made his will – the so-called “armchair rule”: Re Burke, [1960] O.R. 26 (C.A.), at p. 30; Re Shamas, [1967] 2 O.R. 275 (C.A.), at p.279, citing Perrin v. Morgan, [1943] A.C. 399 (U.K. H.L.), at pp. 420-21.

[38] Under this rule, the court sits in the place of the testator, assumes the same knowledge the testator had of the extent of his assets, the size and makeup of his family, and his relationship to its members, so far as these things can be ascertained from the evidence presented. The purpose of this exercise is to put the court in, as close as possible to, the same position of the testator when make his last will and testament.

At para. 13 of Killam v. Killam, 2018 BCCA 64 [Killam BCCA], the British Columbia Court of Appeal acknowledged that the Courts have recognized two approaches to determining a will-maker’s intention:

[13] The “four corners” approach provides that the intention of the testator is to be gleaned from the will itself, and surrounding circumstances are only to be taken into account if the testator’s intention cannot be established from the will. The “armchair” approach requires the court to put itself in the position of the testator at the time the testamentary document was written and to consider the contemporaneous surrounding circumstances in order to ascertain the subjective intentions of the testator. Implicit in the “four corners” approach is recourse to the “armchair” approach if the testator’s intent cannot be made out from the text of the will alone.

At paras. 51-52 of Killam BCCA, the Court of Appeal endorsed Justice Blok’s conclusion below, confirming that the “ultimate question in constructing a testamentary document is to determine the testator’s intention, and… the appropriate “starting point” is the language of the will” (at para. 52). The goal is to ascertain the actual meaning the will-maker ascribed to the words used, as opposed to what the will-maker may have meant to do: Thiemer Estate v. Schlappner, 2012 BCSC 629 at paras. 46-
48. If the Deceased’s intention cannot be discerned from the language of the Will itself, such that extrinsic evidence may be needed, s. 4(2) of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [WESA] limits the admissibility of such evidence (see Roberts Estate (Re), 2021 BCSC 1732 at para. 8):

Vancouver Estate Lawyer- Court Orders $150,000 Punitive Damages Against Administrator

Leibenzeder Estate v MacIntyre 2025 BCSC 189 is noteworthy as the court ordered punitive damages against the administrator in the amount of $150,000, in addition to other substantial damages.

The court that the administrators misconduct as a fiduciary was malicious, oppressive, and high-handed, and her failure to participate in this application is yet a further demonstration of her contempt for court processes.

Trevor Todd and Jackson Todd have practiced estate litigation for over 60 combined years including dealing with difficult executors and administrators.

Applicable Legal Test  For Punitive Damages

Punitive damages are not compensatory. They are intended to punish a defendant for “‘malicious, oppressive and high-handed’” misconduct that represents a “marked departure from ordinary standards of decent behaviour”: Whiten v. Pilot Insurance Co., 2002 SCC 18 at para. 36.
As Justice Goepel explained in Ojanen v. Acumen Law Corporation, 2021 BCCA 189 at para. 77, citing Whiten at para. 69, the three objectives of punitive damages are retribution, deterrence, and denunciation. Punitive damages are only to be awarded in exceptional circumstances when compensatory damages would not adequately achieve these objectives.
In Whiten at para. 94, the Court set out several principles to be considered in making an award of punitive damages. In summary, these principles include that:

a) punitive damages are the exception rather than the rule, and are imposed only if there has been high-handed, malicious, arbitrary, or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour;

b) punitive damages are generally awarded only where the misconduct would otherwise be unpunished or where other penalties are unlikely to achieve the objectives of retribution, deterrence, and denunciation;

c) punitive damages are awarded only if compensatory damages (which to some extent are punitive in nature) are insufficient to accomplish these objectives, and the amount awarded is no greater than necessary to rationally accomplish their purpose;

d) the purpose of punitive damages is not to compensate the plaintiff, but to give a defendant his or her just desert (retribution), to deter the defendant and others from similar misconduct in the future (deterrence), and to mark the community’s collective condemnation (denunciation) of what has happened;

e) when awarded, punitive damages should be assessed in an amount reasonably proportionate to the harm caused, the degree of the misconduct, the plaintiff’s relative vulnerability, and any advantage or profit gained by the defendant, having regard to any other fines or penalties suffered by the defendant for the misconduct in question; and

f) moderate awards of punitive damages, which inevitably carry a stigma in the broader community, are generally sufficient.

In Whiten at para. 113, the Court set out the factors that determine the level of a defendant’s blameworthiness. These factors include:

a) whether the misconduct was planned and deliberate;
b) the defendant’s intent and motive;
c) whether the defendant persisted in the outrageous conduct over a lengthy period of time;
d) whether the defendant concealed or attempted to cover up their misconduct;
e) the defendant’s awareness that what they were doing was wrong;
f) whether the defendant profited from their misconduct; and
g) whether the interest violated by the misconduct was known to be deeply personal to the plaintiff.

The quantum of punitive damages should be proportionate to the degree of misconduct in light of its nature, the harm it caused, the plaintiff’s vulnerability, and any advantage it wrongfully gained the defendant.

Awards of significant amounts have been made against defendants who abuse the court’s process or breach fiduciary duties. The more reprehensible the conduct, the higher the award: Mulligan v. Stephenson, 2016 BCSC 1941 at para. 140.

The Estate has provided me with several cases in which punitive damage awards of $100,000 or more have been made against a fiduciary. For example, in Walling v. Walling, 2012 ONSC 6580, an award of $100,000 was made against an executor who mismanaged and squandered the estate in breach of his fiduciary duty to his nephews, the beneficiaries. The defendant also breached numerous court orders requiring him to comply with the terms of the will and to pay costs.

In Zhang v. Zhang, 2022 BCSC 2156, an award of $100,000 was made against a fiduciary who secretly traded shares held in trust for a beneficiary and failed to account to the beneficiary for the proceeds of sale.

In 6071376 Canada Inc. v. 3966305 Canada Inc., 2019 ONSC 3947, an award of $200,000 was made against a defendant who induced a group of investors to invest in the purchase of a property, then secretly sold it without their knowledge. The court found that the defendant lied to the plaintiffs and covered up the sale for more than six years.