Vancouver Estate Lawyer – Joint Wills vs Mutual Wills

Joint Wills vs Mutual Wills

Trevor Todd and Jackson Todd have over sixty combined years handling estate disputes.

The Bc Court of Apeal in Aulinger v Oda 2026 BCCA 13 allowed an appeal based on the trial judge’s misunderstanding of the difference between Joint wills vs mutual wills,. The trail judge treated them synonymously while they are in fact legally distinguishable.in 1995 Mr and Mrs Siebert together made a will in Germany that was handwritten and signed by both of them:

Testament

In case of our death, we, Daniela and Johannes Siebert, name Mr. Martin Steger and Ms. Gertrud Steger as universal heirs of our entire estate.

The named beneficiaries, Martin and Gertrud Steger, were Daniela Seibert’s parents.

The trail judge found that it was a valid German will and  went on to find that the 1995 will was revoked by a further will made by Ms. Siebert in 2019. She died later in 2019 and Johannes Siebert in 2022. He found that as a result of Mrs Siebert revoking her 1995 that Mr. Sibert died intestate.

The Court of Appeal found this conclusion to be an error.

The judge erred in holding that the 1995 will was revoked by the 2019 will. The judge’s interpretation derives from an incorrect understanding of the legal nature of a joint will and does not approach the interpretive problem as a search for testamentary intent, consider the surrounding circumstances favouring the appellant’s interpretation, or have regard for the presumption against an intestacy. The 2019 will was only made by one testator and could not revoke the other testator’s prior testamentary dispositions.

THE LAW

The common law distinguishes joint wills and mutual wills. Canadian courts have ratified the following description of a joint will from Halsbury’s Laws of England, (4th ed. reissue, 1998) vol. 50, para.257

Joint wills. A joint will is a will made by two or more testators contained in a single document, duly executed by each testator, and disposing either of their separate properties or of their joint property. It is not, however, recognised in English law as a single will. It is in effect two or more wills; it operates on the death of each testator as his will disposing of his own separate property; …

Re Creelman, McIntyre v. Gushue (1956), 2 D.L.R. (2d) 494 at 498, 1956 CanLII 357 (N.S.S.C.); Benjamins v. Chartered Trust Company, [1965] S.C.R. 251 at 271, 1965 CanLII 7; Re Stanley Estate (1968), 69 D.L.R. (2d) 431 at 432–433, 1968 CanLII 594 (B.C.S.C.); Re Hnatiw, [1977] W.W.R. 764 at para. 3, 1976 CanLII 909 (S.K.Q.B.).

[24]         Mutual wills are wills made by two or more testators that confer reciprocal benefits. Mutual wills may be contained in separate documents, or may be contained in a single joint document, in which case it is also a joint will: Halsbury’s at para. 258; James MacKenzie, Feeney’s Canadian Law of Wills (Fourth edition) (Toronto: LexisNexis) (looseleaf updated November, 2025 release 122) at 1.44.

[25]         An agreement (which may be implied) not to revoke reciprocal dispositions is sometimes viewed as a defining feature of a mutual will and sometimes not: Robert Chambers, “Constructive Trusts in Canada” (1999) 37:1 Alta LR 173; compare Halsbury’s at para. 128, Feeney’s at 1.45. Whether or not such an agreement is a characteristic feature or whether the term “mutual will” can be used more broadly is not a question that has to be decided in this case. Where there is such an agreement then, prior to the death of one of the testators, the agreement is revocable, but unless revocation occurs, the death of one testator makes it binding on the survivor: Halsbury’s at para. 258.

[26]         In the case of mutual wills contained in a joint will, the existence of an agreement not to revoke may be implied by the terms of the wills themselves: Re Johnson, 8 D.L.R. (2d) 221, 1957 CanLII 188 (S.K.C.A.) at paras. 15–16; Re Gillespie, [1969] 1 O.R. 585, 1968 CanLII 281. In the case of mutual wills contained in separate documents, extrinsic evidence is required to prove an agreement not to revoke.

[27]         Equity’s answer to a survivor’s attempt to revoke a bequest contained in a mutual will that has become binding is the imposition of a constructive trust in favour of the originally intended beneficiary: University of Manitoba v. Sanderson Estate (1998), 47 B.C.L.R. (3d) 25 (C.A.) at paras. 46–59, 1998 CanLII 4328 [Sanderson Estate]. The trust is imposed on the survivor’s estate, after the death of the first to die. It does not invalidate the survivor’s new will, but prevents it from coming into full effect contrary to the terms of the agreement that accompanied the making of the mutual wills.

[28]         Accordingly, joint wills and mutual wills are conceptually different. Joint wills are contained in a single document, and mutual wills need not be. Joint wills may but need not necessarily confer reciprocal benefits. A joint will is not a single will—it operates on the death of each testator as that testator’s will disposing of that testator’s own separate property. The revocation of a joint will by the testator who dies first is not a revocation of the joint will as it pertains to the surviving testator—it is only a revocation of the revoking testator’s will: WESA, s.55.

[29]         The conceptual distinction between joint and mutual wills was not addressed in the Court below, and as noted, the judge considered the terms “mutual will” and “joint will” to be synonymous. Importantly, he received no assistance on the effect in law of the revocation of a joint will by the testator who dies first and, as will be seen, this led to an error material to his reasoning.

Will Interpetration

The essential principles of construction are pithily summarized in Brink v. Reeves Estate, 2025 BCCA 295 at para. 9, citing Killam at paras. 13 and 52 and Smith v. Smith Estate, 2010 BCCA 106 at paras. 18 and 28:

  1. The primary objective is to determine the testator’s intention;
  2. The will must be considered in its entirety;
  3. If there is no ambiguity on the face of the will it should be interpreted according to the language used (the “four corners approach”); and
  4. Only if there is ambiguity should the court resort to evidence of surrounding circumstances (the “armchair rule”).

[40]         In this case, the entirety of the will is contained in a single sentence, repeated here for ease of reference:

In case of our death, we, Daniela and Johannes Siebert, name Mr. Martin Steger and Ms. Gertrud Steger as universal heirs of our entire estate.

[41]         The interpretive issue concerns the reference to “our death”.

A notable feature of the 1995 will is that it provides only for the disposition of “our entire estate” in the event of “our death”. It does not say what is to be done if one of the makers dies before the other. The reference to “our entire estate” suggests an assumption that the property of one would be inherited by the other in the interim.

The appeal court concluded that in making the 2019 will in which Mr. Seibert did not participate, Ms. Siebert revoked her 1995 will, but she did not revoke Mr. Siebert’s 1995 will. It remained in force and came into effect upon his death in 2022.

Vancouver Estate Litigator – Without Prejudice Letters

Without Prejudice Letters

Trevor Todd and Jackson Todd have over sixty years combined experience in handling estates disputes.

Repp v Butler 2026 BCSC 107 reviewed the law relating to the admissibility into evidence of letters marked without prejudice.

The court found that the letter issue issue in Repp did not include any attempt to offer any settlement and thus was admissible.

The General Rule about Without Prejudice Letters

The Supreme Court of Canada in Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37 is authority for the proposition that settlement negotiations are protected by the common law rule that “without prejudice” communications made in the course of such negotiations are inadmissible: at para. 13. That privilege covers any settlement negotiations, whether successful or not: at paras. 15–16.

However in  of Acciona Wastewater Solutions LP v. Greater Vancouver Sewerage and Drainage District, 2025 BCSC 2040, et out a succinct summary of the applicable legal principles:

[85]      Settlement privilege is a common law rule of evidence that protects communications exchanged by parties as they try to settle a litigious dispute. Sometimes called the “without prejudice rule”, it enables parties to participate in settlement negotiations without fear that information they disclose will be used against them in litigation: Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35 at para. 31.

[86]      Settlement privilege is a “class” or “blanket” privilege. It protects the class of communications exchanged in the course of settlement negotiations, as well as documents created for the purpose of that endeavour: Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37 paras. 12, 16.

[87]      The use of the words “without prejudice” is not essential. What matters is the intent of the parties to settle the dispute: Sable Offshore Energy at para. 14.

[88]      Justice Veenstra confirmed the test for settlement privilege in Stancor Enterprises Ltd. v. Fiorvento, 2022 BCSC 1842 at para. 92, citing Abdul-Ahad v. Challa, 2021 BCSC 795 at para. 35:

  1. a)A litigious dispute must be in existence or within contemplation;
  2. b)The communication must be made with the express or implied intention that it would not be disclosed to the court in the event negotiations failed; and
  3. c)The purpose of the communication must be to attempt to effect a settlement.

[89]      The party asserting settlement privilege must establish that a “litigious dispute” was either in existence or within contemplation, and the communications in question were made for the purpose of attempting to effect a settlement of that dispute. This means that litigation must be more than a mere possibility for the privilege to apply: Blue Line Hockey Acquisition Co., Inc. v. Orca Bay Hockey Limited Partnership, 2007 BCSC 143 [Blue Line Hockey] at para. 103.

[90]      Litigation can be said to be within contemplation when a reasonable person, with the same knowledge of the situation as one or both of the parties, would find it unlikely that the dispute will be resolved without it: Hamalainen v. Sippola (1991), 1991 CanLII 440 (BC CA), 62 B.C.L.R. (2d) 254 (C.A.).

The onus was on Ms. Repp, as the party asserting settlement privilege, to establish that a “litigious dispute” was either in existence or within contemplation and the court found that neither was present.

The law is clear that the use of the phrase “without prejudice” is not, in and of itself, sufficient to protect a document from disclosure; rather, the content of the document must contain a settlement offer or refer to settlement indirectly by either inviting compromise or some other approach to resolution: Abdul-Ahad v. Challa, 2021 BCSC 795 at para. 38; see also Fluor Enterprises Inc. v. Leder Investments Ltd., 2025 ABKB 234 at para. 48. As noted by Justice Fitzpatrick in Reum Holdings Ltd. v. 0893178 B.C. Ltd., 2015 BCSC 2022:

The use or non-use of the words “without prejudice” in any settlement negotiation is not necessarily determinative of whether privilege is invoked. What is important, is whether the negotiations took place with the intent of the parties towards a settlement of the action: [Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37] at para. 14; see also Belanger v.Gilbert (1984), 1984 CanLII 355 (BCCA), 58 B.C.L.R. 191 (C.A.)…

Vancouver Estate Litigator: Couple Who Never Cohabited Found to Be in Marriage-Like Relationship

Marriage-Like Relationship

Trevor Todd nd Jackson Todd have over sixty combined years in resolving estate disputes including marriage like relationships

Sharon Clark died without a will and had no children or surviving parents. Her only sibling, the appellant, challenges the trial judge’s finding that she and her former partner were spouses under the Wills, Estates and Successions Act, S.B.C. 2009, c. 13.

He argues the trial judge erred in failing to consider Ms. Clark’s subjective intentions and in finding there was a marriage-like relationship. The parties never cohabited as a couple.

Held: Appeal dismissed. Determining whether a relationship is marriage-like involves a fact-driven contextual analysis of all the evidence relevant to the various indicia of a spousal relationship. The trial judge did not err in considering the parties’ intentions or in her approach to assessing the indicia of a marriage-like relationship.

MS Clark died in 2020 at age 79. She had been in a relationship with Mr. Matossian for 38 years He died two years after Ms Clark. A court action was commenced that for an order that Clark and Mastossian were spouses under S 2(1)(b) of WESA. The trial judge agreed they were and the appeal court upheld that decision.

The parties never cohabited as man and wife but they spent a lot of time together and many witnesses testified as to same and there was a significant body of evidence such as photographs of them and travel documents together.

The two had separate finances and did not provide for each other in a will or through beneficiary  designations.

They discussed moving together early in their relationship but there wasn’t enough room in her apartment due to her hoarding

She spent most nights at his house ,had a parking stall there and a key to his house.

They had an exclusive sexual relationship and were considered by friends to be a couple. Their daily routines revolved around each other

The Law

  • The generally accepted characteristics of a marriage-like relationship set out many decades ago in Molodowich v. Penttinen, 17 R.F.L. (2d) 376, 1980 CanLII 1537 (Ont. Dist. Ct.): shared shelter, sexual and personal behaviour, the provision of services, social activities, children, economic support and the social perception of the couple;
  • A shorter list of five considerations or factors identified in the much more recent decision of Justice Matthews in McDowell v. Andrews, 2018 BCSC 2216 at para. 23; and
  • The well-established approach to the factors and the evidence in determining whether a relationship is marriage-like.

Addressing this approach, the trial judge recognized that the factors are not to be treated as a checklist and the presence or absence of any particular factor is not determinative, based on leading authorities. Instead, each relationship must be assessed based on a contextual and holistic approach to the evidence, recognizing the diversity of spousal relationships and how they are structured: at para. 60 citing Austin v. Goerz, 2007 BCCA 586 at para. 58.

It is the intentions of the parties plural that is identified as a factor and, in Mother 1 v. Solus Trust Company Limited, 2021 BCCA 461, as a factor that must be considered in deciding whether a relationship was marriage-like. Mother 1 also provides a finding of mutual intention is not a prerequisite as explained in Weber. That explanation informs what I see as the requisite approach to considering the parties’ intentions:

[23]      The parties’ intentions – particularly the expectation that the relationship will be of lengthy, indeterminate duration – may be of importance in determining whether a relationship is “marriage-like”. While the court will consider the evidence expressly describing the parties’ intentions during the relationship, it will also test that evidence by considering whether the objective evidence is consonant with those intentions.

[24]      The question of whether a relationship is “marriage-like” will also typically depend on more than just their intentions. Objective evidence of the parties’ lifestyle and interactions will also provide direct guidance on the question of whether the relationship was “marriage-like”.

[30]         Similarly, Jones v. Davidson, 2022 BCCA 31, endorsed a contextual characterization of the relationship that may or may not include a party’s subjective intention. The Court opined, “subjective evidence, where there is evidence of such, may be tested by reference to the objective evidence”, which, in turn, may address a wide assortment of characteristics or indicia: Jones at para. 24 (emphasis added).

BC Estate Litigator – What Is the Date After Death to Inherit

Trevor Todd and Jackson Todd have over sixty years combined experience in dealing with contested estate matters.

Lewis v Jack 2026 BCCA 18 concerned an appeal  concerning  the interpretation of a will and whether bequests to the beneficiaries vested at the date of the testator’s death or the date of the distribution of the residue. The will in question stated that the residue of the testator’s estate “then remaining” was to be divided to the beneficiaries (his children) “then alive”.

One of the beneficiaries died after the testator’s death but before the estate was distributed. The chambers judge determined the bequests did not vest until the residue was distributed, thus disinheriting that beneficiary. On appeal, the appellant contends the judge erred in interpreting the will by failing to properly apply the usual rule of vesting at the date of the testator’s death. Held:

The Appeal was  allowed on the basis that the will, read as a whole, demonstrates the testator’s intention to make provision for all his children who survived him. The words “then alive” are not sufficiently clear to impute an intention to vest the legacies in his will at the time the estate is finally distributed to the beneficiaries.

The Law

The general principles of will construction  require a court to interpret a will to give effect to the testator’s intention, having regard to the entire will, and assuming the testator intended the words in the will have their ordinary meaning unless a contrary intention is clearly expressed. Where the intention cannot be determined from the language of the document, the court may consider extrinsic evidence of the circumstances surrounding the making of the will: Dice Estate at paras. 36–37; Kirk Estate v. Coates, 2020 ABCA 233 at para. 7

There is a presumption of early vesting that has been present in the law for over 200 years. This means that a testamentary gift is presumed to vest on the death of the testator unless there is a clear intention to the contrary expressed in the will.

[31]         For example, in Cripps v. Wolcott, [1819] Ch. D.12, it was considered settled law that where a legacy is given to two or more persons in equal shares, the survivorship of a legatee is to be determined by reference to “the period of division”, and where no previous interest is given (as, for example, in a life interest), the period of division is the death of the testator. In Duffield v. Duffield, [1829] 4 Eng. Rep. 1334, a long-established rule for the guidance of the courts in construing wills was stated to be:

… that all estates are to be holden to be vested, except estates, in the devise of which a condition precedent to the vesting is so clearly expressed, that the Courts cannot treat them as vested, without deciding in direct opposition to the terms of the will. If there be the least doubt, advantage is to be taken of the circumstance occasioning that doubt; and what seems to make a condition, is holden to have only the effect of postponing the right of possession. This presumption applies where distribution of an estate is postponed, unless the gift is contingent on a condition personal to the legatee.

the rule applies whether the residue is gifted to named legatees or a class: Re Hooper at 513 and 517; Re Lauder at 530. The following statement from Halsbury’s Laws of England, 2nd ed, Vol. 34. (Toronto: Butterworth & Co. (Canada) Ltd., 1940), at 319, was referred to with approval by Cartwright J. in Re Hooper:

Whatever may be the time of distribution, where there is a gift to a testator’s next-of-kin, without more, the class prima facie has to be ascertained as at the testator’s death …

[37]         Finally, courts are not inclined to interpret a will in a way that effectively allows the executor to determine the date of vesting. This concern was expressed as early as 1807 in the case of Gaskell v. Harman, [1805] 32 Eng. Rep. 1177, where the Lord Chancellor stated at 1183:

… if a testator thinks proper, whether prudently or not, to say distinctly, shewing a manifest intention, that his legatees, pecuniary or residuary, shall not have the legacies, or the residue, unless they live to receive them in hard money, there is no rule against such intention, if clearly expressed. But that would open to so much inconvenience and fraud, that the Court is not in the habit of making conjectures in favour of such an intention…

… if the words will admit of not imputing to the testator such an intention, it shall not be imputed to him.

The appeal court found that the chambers judge erred in law by failing to have regard to the entire will in interpreting the meaning of clause 3(d) and, in doing so, interpreting clause 3(d) as a clear expression of intention sufficient to displace the presumption that a testamentary gift vests on the death of the testator.

When clause 3(d) is interpreted in the context of the will as a whole, the words “then alive” do not connote a contingent gift, nor do they clearly evince an intention to rebut the presumption of early vesting.

It is rare for a court to consider a vesting date that does not correspond to the date of the death of the testator or another person, or a fact personal to a legatee (such as attaining a certain age). The discretion granted to an executor and trustee to “sell, call in or convert” an estate and to pay debts and funeral expenses allows for the orderly disposition of the assets. This is a process that takes time, and any delay in liquidating or dividing up an estate does not prevent a gift from vesting at the testator’s death absent clear language.

Vancouver Estate Litigator – Appeal Court Finds Will Invalid Due to Suspicious Circumstances

Will Invalid

Trevor Todd and Jackson Todd have over sixty years combined experience in disputing the validity of purported wills

In Kroeger v Bush Estate  2026 BCCA 16 the appellant challenged the decision of a chambers judge accepting as valid a will executed by the deceased in 2018. This will differed significantly from the deceased’s earlier will executed in 2001. The 2001 will left the residue of the estate equally to the deceased’s 18 nieces and nephews, such that each would receive around $275,000.

Under the 2018 will, 14 nieces and nephews received only $5,000 each, while the respondent executor who held power of attorney and her three siblings would each receive close to $1.2 million.

The Appeal Court allowed the appeal  finding that the judge failed to grapple with evidence of suspicious circumstances, including the respondent’s role in helping to prepare a will that significantly benefited her and her siblings. This evidence negated the presumption of validity and shifted the burden to the respondent to prove testamentary capacity, knowledge and approval.

The evidence relied on by the judge was not capable of establishing that the deceased understood the value of her estate and the magnitude of the residue. The 2018 will is therefore not valid and the estate is to be distributed according to the 2001 will.

The notary took instructions from the deceased’s power of attorney and prepared the 2028 will based on those instructions. She did not discuss or verify the instructions with the 92 year old testator.

THE LAW

The appeal court cited   Leung v. Chang, 2013 BCSC 976:

[26]      In an action for proof of will in solemn form, the party propounding the will must prove on a balance of probabilities that the will was executed in compliance with the statutory formalities, that the will-maker knew and approved of the contents of the will and that the will-maker had testamentary capacity: Vout at paras. 19-20.

[27]      In order to make a valid will, the will-maker must have a “baseline level of mental acuity” or a “disposing mind and memory”, sufficient to appreciate and comprehend the nature and effect of the essential elements of the testamentary act. This encompasses an appreciation of the claims of the persons who are the natural objects of her estate and the extent of her property of which she is disposing: Laszlo v. Lawton, 2013 BCSC 305 at para. 185; Banks v. Goodfellow (1870), L.R. 5 Q.B. 549; Leger v. Poirier, [1944] S.C.R. 152 at 161. The assessment of whether a will-maker possesses testamentary capacity is a highly individualized inquiry and is a question of fact to be determined in all the circumstances: James v. Field, 2001 BCCA 267 at para. 51; Laszlo at para. 197.

[28]      In certain circumstances, the propounder of the will, in discharging the burden of proof, is aided by a rebuttable presumption of validity. If the will was duly executed in accordance with the requisite statutory formalities after being read over to or by a testator who appeared to understand it, it is presumed the testator possessed the requisite testamentary capacity and knew and approved of its contents: Vout at para. 26.

[29]      This presumption may be rebutted by evidence of “well-grounded suspicions”, referred to in the jurisprudence as “suspicious circumstances”, relating to one or more of the following circumstances:

(i)         surrounding the preparation of the will;

(ii)        tending to call into question the capacity of the will-maker; or

(iii)       tending to show that the free will of the will-maker was overborne by acts of coercion or fraud: Vout at para. 25.

[30]      If suspicious circumstances are established, then the presumption is spent and the legal burden of proof reverts to the propounder of the will. The propounder of the will then reassumes the legal burden of proving knowledge and approval, as well as proving testamentary capacity, if the suspicious circumstances reflect on the mental capacity of the will-maker to make a will: Woodward v. Grant, 2007 BCSC 1192 at para. 108. In order to discharge the burden, the propounder of the will is required to dispel the suspicious circumstances that have been raised: Ostrander v. Black (1996), 12 E.T.R. (2d) 219 at para. 30 (Gen. Div.).

[17]         Although the judge below correctly identified these legal principles, in my respectful view he erred in their application—at least in part because he blended his assessment of undue influence, suspicious circumstances and capacity, observing that the issues “are interrelated”: at para. 16. That approach is to be avoided. The issues should be addressed step-by-step, in keeping with the shifting burden of proof: Laszlo v. Lawton, 2013 BCSC 305 at paras. 200–207; Geluch v. Geluch Estate, 2019 BCSC 2203 at paras. 110–115.

In Lazlo v Lawton the court stated:

[207]    Suspicious circumstances have been found to exist in a wide array of situations and are not necessarily sinister in nature. There is no checklist of circumstantial factors that will invariably fit the classification. Commonly occurring themes include where a beneficiary is instrumental in the preparation of the will (especially where the beneficiary stands in a fiduciary position to the testator) …

[29]         In Harmes v. Hinkson, [1946] 3 D.L.R. 497 at 509, 1946 CanLII 298 (U.K P.C), the Judicial Committee of the Privy Council, citing Barry v. Butlin (1838), 2 Moo. P.C. 480, 12 E.R. 1089, put it this way:

…[I]f a party writes or prepares a Will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased.

The appeal court found five circumstatnces where the tril judge failed to give proper consieration to sususpiciousmcircumstances:

Laszlo:

[207]    Suspicious circumstances have been found to exist in a wide array of situations and are not necessarily sinister in nature. There is no checklist of circumstantial factors that will invariably fit the classification. Commonly occurring themes include where a beneficiary is instrumental in the preparation of the will (especially where the beneficiary stands in a fiduciary position to the testator) …

[29]         In Harmes v. Hinkson, [1946] 3 D.L.R. 497 at 509, 1946 CanLII 298 (U.K P.C), the Judicial Committee of the Privy Council, citing Barry v. Butlin (1838), 2 Moo. P.C. 480, 12 E.R. 1089, put it this way:

…[I]f a party writes or prepares a Will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased.

SUSPICIOUS CIRCUMSTANCES

The appeal court stated five examples where the the trial judge failed to properly consider the effect of suspicious circumstances:

First, the 2018 will was a marked departure from both Mrs. Bush’s and Chris Bush’s stated intentions to benefit their 18 nieces and nephews equally—an intention expressed in the 2001 will.

[20]         Second, there was no explanation offered by Ms. Rodrigues or anyone else as to how Mrs. Bush’s decision to change her will came about. Ms. Rodrigues’ evidence related only to a potential justification for the change:  she and her siblings lived close to the Bushes’ home and therefore had more frequent contact with them, especially in their later years.

[21]         Third, Ms. Rodrigues was instrumental in the preparation of the new will; she wrote out a list of the changes to be made, provided all instructions to Ms. Manvell, arranged the appointment, and drove her aunt to the appointment to execute the will.

[22]         Fourth, the changes greatly benefitted Ms. Rodrigues and her three siblings, who would each receive $1.2 million—a far greater share of the estate than under the 2001 will.

[23]         Fifth, when Ms. Rodrigues applied to probate the 2018 will, causing the other nieces and nephews to ask for a copy of the deceased’s earlier will, Ms. Rodrigues informed them through her lawyer that she was unaware of the existence of an earlier will, when in fact she had provided a copy of the 2001 will to the notary along with the instructions for the preparation of the new will.

The appellant relied on more than the power of attorney’s  involvement in the preparation of the will. It was that involvement in combination with her role as a person in a position of trust who benefitted significantly from the changes to the will that the appellant pointed to, contending these facts established suspicious circumstances warranting the setting aside of the presumption of validity

Vancouver Estate Lawyer – Removing an Executor/Trustee

Removing an Executor

Trevor Todd and Jackson Todd have over sixty years combined experience in resolving estates limitation disputes including the removal of executors.

Re Wood Estate 2025 BCSC 2039 was a successful application by two of three siblings to remove the third sibling for various reason including:

)Taking 2 years to obtain a grant of probate in 2019 after the death of the last parent in 2017.

)  failing to file tax returns

) failing to pay outstanding taxes;

) a final tax clearance certificate must be applied for and obtained from the Canada Revenue Agency (the “CRA”);

  • )after the clearance certificate is received, there can be a final distribution of any remaining monies to the Estate beneficiaries) writing several abusive curse letters to the beneficiaries who were seeking transparency and asking that the estate be finalized

examples of the letters of response from the executor to the beneficiaries are:

To Sandra on November 24, 2017: “You are sick and need immediate mental help. Hope your kids are well with anxiety and a son who can’t even get a job. Tell your husband F[***] YOU”.

  1. b)To both on October 27, 2020, saying: “ … I simple [sic] do not trust either of you ….”
  2. c)On November 5, 2020, Edward wrote an email suggesting that Sandra and Dianne were implicated in “perjury, fraud, and elder abuse.”
  3. d)To Dianne, on July 12, 2021 (subject line: “YOU are a CLUELESS piece of s[***]”): “You piece of scum. F[***] you. You have destroyed many lives, not mine. Do Not Ever contact me  F[***] YOU”.

[26]         There is no dispute as to jurisdiction. In addition to having inherent jurisdiction, the court has the authority to remove a trustee under s. 30 of the Trustee Act and a personal representative under ss. 158 and 159 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [WESA].

[27]         Section 30 of the Trustee Act reads:

Removal of trustees on application

30  A trustee or receiver appointed by any court may be removed and a trustee, trustees or receiver substituted in place of the trustee or receiver, at any time on application to the court by any trust beneficiary who is not under legal disability, with the consent and approval of a majority in interest and number of the trust beneficiaries who are also not under legal disability.

[28]         The most pertinent portions of s. 158 of WESA read:

Application to remove or pass over personal representative

158   (2) A person having an interest in an estate may apply to the court to remove … a person otherwise entitled to be … a personal representative.

(3) Subject to the terms of a will, if any, and to subsection (3.1), the court, by order, may remove … a person otherwise entitled to be … a personal representative if the court considers that the personal representative … should not continue in office …, including, without limitation, if the personal representative …

…

(f) is

(i)         unable to make the decisions necessary to discharge the office of personal representative,

(ii)        not responsive, or

(iii)       otherwise unwilling or unable to or unreasonably refuses to carry out the duties of a personal representative,

to an extent that the conduct of the personal representative hampers the efficient administration of the estate[.]

[29]         Although the parties have cited a variety of different cases identifying the governing principles, there is no real dispute as to those principles themselves. The dispute between the parties here is as to how those principles apply in circumstances of this case.

[30]         I adopt and rely upon the helpful summary set out by Justice MacNaughton (then of this Court) in Chesko v. Chesko Estate, 2024 BCSC 394 at paras. 53-58:

[53]            The leading authority continues to be Conroy v. Stokes, 4 D.L.R. 124, 1952 CanLII 227 (B.C.C.A.). In Conroy, the Court considered removal and replacement of a trustee because some of the beneficiaries were dissatisfied with the trustee’s handling of the estate. Citing Letterstedt v. Broers, 9 App. Cas. 371, [1884] UKPC 1, the Court confirmed that the main consideration is the collective welfare of the beneficiaries: Conroy at 126.

[54]            A court will not lightly interfere with a testator’s choice of trustee: Nieweler Estate (Re), 2019 BCSC 401 at para. 27 [Nieweler Estate], and not every actual or perceived conflict should lead to disqualification of a trustee or an executor: Conroy at 126–127; Burke v. Burke, 2019 BCSC 383 at para. 43. Mere friction between the trustee and one or more of the beneficiaries is usually insufficient to justify removal of the trustee: Miles v. Vince, 2014 BCCA 289 at para. 84.

[55]            Perfection is not expected of an executor or trustee: Dahle Estate (Re), 2021 BCSC 719 at para. 22. The question is whether the trustee’s acts or omissions endangered the administration of the trust: Carpino v. Carpino, 2022 BCSC 2237 at para. 51, citing Parker v. Thompson (Trustee), 2014 BCSC 1916 at para. 37; see also Burke at para. 29.

[56]            To remove an executor or trustee for misconduct, the evidence must show they endangered estate property, acted dishonestly and without proper care, lacked capacity to execute their duties, or acted without reasonable fidelity: Conroy at 127; see also Nieweler Estate at para. 33.

[57]            Deciding whether to remove an executor or trustee involves considering all the facts, and the context, out of respect for a will-maker’s choice of executor, the court should not interfere except for good reason or, as some cases have said, where doing so is “clearly necessary”: Mardesic v. Vukovich Estate, 30 B.C.L.R. (2d) 170, 1988 CanLII 3125 (S.C.) at paras. 18–19; Burke at paras. 29, 31.

[58]            The development of the principles for removal was summarized by the Court of Appeal in Miles at paras. 84–86:

[84]      What circumstances justify the removal of a trustee? In Letterstedt …, the court established guidelines justifying the removal of a trustee (at 385-389):

  1. If the Court is satisfied that the continuance of the trustee would prevent the trusts being properly executed, the trustee might be removed. It must always be borne in mind that trustees exist for the benefit of those to whom the creator of the trust has given the trust estate.
  2. The acts or omissions must be such as to endanger the trust property or to show a want of honesty, or a want of proper capacity to execute the duties, or a want of reasonable fidelity.
  3. In exercising the delicate jurisdiction of removing trustees, the Court’s main guide must be the welfare of the beneficiaries. It is not possible to lay down any more definite rule in a matter that is so “essentially dependent on details often of great nicety.” The Court must proceed to look carefully into the circumstances of the case.
  4. Where a trustee is asked to resign, and if it appears clear that the continuance of the trustee would be detrimental to the execution of the trusts, even if for no other reason than that human infirmity would prevent those beneficially interested, or those who act for them, from working in harmony with the trustee, and if there is no reason to the contrary from the intentions of the framer of the trust to give this trustee a benefit or otherwise, the trustee is always advised by his own counsel to resign.
  5. The lack of jurisprudence in respect of the removal of a trustee reflects that a trustee when asked to do so, will resign.
  6. If, without any reasonable ground, the trustee refuses to do so the court might think it proper to remove him.
  7. Friction or hostility between trustees and the beneficiary is not of itself a reason for the removal of the trustees. But where the hostility is grounded on the mode in which the trust has been administered, where it has been caused wholly or partially by substantial overcharges against the trust estate, it is not to be disregarded.

Vancouver Estate Litigation – The Court’s Discretion to Award an Interim Distribution

Interim Distribution

Trevor Todd and Jackson Todd have over sixty years combined experience in resolving estate disputes including obtaining interim distributions of estate assets

In Re Hartin Estate 2025 BCSC 2092 the deceased died in 2019 leaving a substantial estate.

There was an initial distribution of assets but after several more years the applicant sought but was refused  a substantially greater interim distribution from the courts.

The court instead ordered further disclosure of accounts and for confidentiality

A  summary of the law pertaining to the court’s discretion to order an interim distribution.

[38]         The court has the authority to order an interim distribution of estate assets further to its general jurisdiction. The court in Zanrosso Estate (Re), 2021 BCSC 2664, referring to Reznik v. Matty, 2013 BCSC 1346 stated at para 14:

… That case involved an estate whose distribution was still outstanding 12 years after the death of a testator. Its assets were worth over $600,000 and there had been just one interim distribution of $100,000. There was also evidence of need for the funds provided by one of the beneficiaries. Ultimately, the Court ordered a $40,000 interim distribution from the estate. It did so by reference to the concept of “assent”, which was described as “an acknowledgement by a personal representative that an asset is no longer required for the payment of the debt, funeral expenses or general legacies”: Reznik v. Matty, 2013 BCSC 1346, at para. 37. Mr. Justice Funt wrote at para. 44:

In the circumstances of this case, where the administration of the Estate has taken already over a decade and there is significant value and liquidity, the executor’s assent should be compelled.

[39]         In Reznik, supra, the court held that the outstanding liabilities does not prevent the assent of part of the residue at para 47:

North J. in Austin also considered the argument that outstanding liabilities should prevent assent of part of the residue. He stated:

Then, further, it is suggested that it is not reasonable to suppose the executors would have assented here, when there are outstanding liabilities. I do not see anything unreasonable in that. No doubt, if there were shown to be very large outstanding liabilities, and the question was whether assent had been given with respect to the only remaining available asset, there would be something in it. But there is nothing in it. There is no improbability in the inferring an assent because there are outstanding liabilities, unless you see the executor would be prejudiced by giving his assent, and it is impossible to say that, unless the other assets with respect to which he has not assented are clearly insufficient to meet the liabilities.

[40]         Hecht v. Reid, 1991 CanLII 963 (BC CA), and Davis v. Burns Estate 2016 BCSC 1982 at para. 31 set out factors to be applied when deciding whether to exercise the court’s discretion to make an interim distribution:

  1. the amount of the benefits sought to be distributed as compared to the value of the estate;
  2. the claim of the beneficiaries on the testator;
  3. the need of beneficiaries for money; and
  4. the consent of the residuary beneficiary to the proposed transfer.

[41]         While these factors are usually considered in the context of leave to make an interim distribution when there is an outstanding wills variation proceeding, the court in Zanrosso Estate accepted, at para. 16, that these factors provide guidance on how to exercise discretion to make an interim distribution generally. The Zanrosso Estate court clarified that the Hecht factors are not an exhaustive list.

[42]         In Zanrosso Estate, the court also considered whether there had been a delay with respect to distributing the estate, although the court found that there had been no such delay in that case.

[43]         In Antonias Estate (Re), 2021 BCSC 2388, the court ordered a distribution of 527,938.64, leaving $447,000 in the estate for fees. The age and vulnerability of the beneficiaries (their ages ranged from 76- 89) and the large holdback contributed to the courts decision to do so.

[44]         In Antonias Estate, the court provided that if the liabilities of the estate were to exceed the remaining reserve account, the beneficiaries would reimburse and indemnify the executor for their share of any such shortfall. The court found this would balance the appropriate prejudice between any delay in distribution and the need for the executor to be fully protected from being personally liable.

[45]         Ruth states that she has no opposition to a similar indemnity order linked to any interim distribution I would order, and points out that she agreed to the same without issue with respect to the 2024 interim distribution.

[46]         In McGovern Estate v. McGovern, 2014 ONSC 1785 at para 41, the court considered whether an executor acted with mala fides or if the executor has behaved unreasonably or breached their fiduciary duty, duty of good faith, and fairness to the beneficiaries.

[47]         The respondents say the cases relied on by the applicant can be readily distinguished.

[48]         In Reznik, for example, the court relied upon the doctrine of “assent” to compel an interim distribution due to factors such as the length of administration (12 years) and when there was “significant value and liquidity” (para. 43). The court also noted that there were “few remaining outstanding or anticipated costs” (para. 6) .

[49]         The respondents maintain those facts are not present here.

[51]         The respondents point out that the issue in Antonias Estate was whether the executors could hold back the distribution as ransom for a release, and that the executor was seeking a holdback that was significantly higher than any known liabilities of the estate, neither of which is the case here.

[52]         Finally, the respondents point out that in Zanrosso Estate the court dismissed an application by a residuary beneficiary to compel the personal representative to make an interim distribution. Justice Brongers agreed that the court had the jurisdiction to make such an order but stated that “an order compelling a distribution of the estate over the objection of the personal representative should only be made in exceptional circumstances with the burden lying on the applicant to justify the issuance of an order.” (at para. 16)

[53]         Here, the personal representative is objecting to the distribution, as are three of the four beneficiaries. Of course, Deana herself, the executor, is one of the three objecting beneficiaries.

[54]         In Zanrosso Estate, Justice Brongers found that the executors had been discharging their responsibilities in a reasonable and prudent manner in the circumstances. Factors he considered to dismiss the application included: (1) there had already been a significant interim distribution to the beneficiaries; (2) a lack of any evidence of need by the applicant beneficiary; (3) the delays in the administration of the estate were caused by pre-emptive litigation against the estate brought by the applicant and his threats of future litigation and (4) the executors were waiting for a clearance certificate from the CRA before making a further distribution.

[55]         On the latter point, the court noted the executors’ potential personal liability and “the uncertainty surrounding the capital gain tax treatment of the estate’s primary asset.” (Zanrosso Estate at para. 18).

[56]         The factors cited in Zanrosso Estate bear many similarities to the present case. While I do not find that Ruth’s efforts to obtain information and apply for an interim distribution has been the primary cause of delay in the administration of this case, I find the rest of the factors to be relevant.

Vancouver Estate Lawyer – Notices of Dispute

Trevor Todd and Jackson Todd have in excess of sixty years combines experience in handling contested estate matters including dealing with Noticees of Dispute.

Notices of Dispute

Notices of dispute were formerly known as  caveats and are used to prevent the issuance of an estate grant or authorization or resealing if there are concerns over the validity of the testamentary document or with the suitability of a  particular personal representative.

It must be stressed that the purpose of filing a notice of dispute is when the validity of the document or the suitability of the personal representative is in issue, and for no other purpose. If the notice of dispute serves no other purpose but to stand in the way of the administration of the estate, or if it is filed for an improper purpose, the dispute may be liable for costs. Chang v Chang Estate 2010 BCCA 111.

For example in a wills variation proceeding it is improper to file a Notice of Dispute if there is no concern re the validity of the will or choice of executor.

Rule 25 – 10 governs notices of dispute and the procedures for opposing the issuance of a representation grant. The proper form of the notice of dispute is founded form P 29 ( Rule 25 – 10(3)), and must include contact details in the grounds on which the notice of dispute is filed.

A person may file only one notice of dispute concerning any one estate, but that notice of dispute may be found in any court registry in British Columbia. There is no requirement that the disputant serve a  copy of the notice of dispute on the proposed applicant, although professional courtesy should provide that it be done.

To have standing to file a notice of dispute, the disputant must have received notice pursuant to rule 25 -2(2)) or claim an interest under a prior or subsequent will ( Rule 25 – 10(1)).

The notice of dispute must be filed before the earlier of the issuance of an authorization to obtain estate information or an authorization to obtain receiving information and the issuance of an estate grant, or the resealing of a foreign grant. If the disputant received notice under 25 –2(2)) . This should ensure that they felt before the 21 day period for filing an application expires.

A notice of dispute is in effect for one year and can be amended once without leave of the court-Rule25-10(5)). It is also renewable upon application for any reason the court considers appropriate before it ceases to be in effect, if the court thinks is appropriate or after it ceases to be in effect based on a three-part test.

The three-part test is found that rule 25-10B) and includes:

-If there were good reasons that the application for renewal could not be brought before a notice of dispute ceases to be in effect

-substantial prejudice would be suffered by the person seeking treatment.

-The renewal of the notice of dispute if the order for renewal is not made, and-

no other person interested in the estate would suffer substantial prejudice if the order for renewal is mad

Removal or Withdrawl of a Notice to Dispute

A person who is interested in an estate in relation to a notice of dispute has been filed, has standing to bring an application to remove the notice of dispute( Rule 25-10(10) . Effect of a successful application is that the notice of dispute ceases to have effect

The test for removing a notice of dispute is found in rule 25-10(11) , which provides that the court may remove the notice of dispute if it determines that the filing is not in the best interests of the estate. Form 31 of the rules provides a form of order for the removal of a notice of dispute

In re Richardson estate 2014 BCSC 2162, the court held that the language of Rule 25-10(11) is broad and that  the best interests of the estate can be an economic issue, one requiring the weighing of the value of the decision or issue in dispute with the overall value of this state. The court also added that noneconomic factors can be important to the best interests of the estate.

If the court does remove the notice of dispute, it may impose conditions of other matters are outstanding. For example, in Ray Haynes estate, 2021 BCSC 669 the court held it was in the best interest of the estates to remove the notice of dispute and impose various conditions to ensure that this second not distribute distribute any of the estates property in dispute until  the substantial legal issues were resolved.

Even where a notice of dispute is withdrawn or expires, if it is challenged the validity of the will, proof in solemn form may be required.

If multiple issues are raised during an application to remove the notice of dispute, the court may direct further proceedings before removing the notice. Re Martyniuk Estate 2016 2024 where social’s status was also in dispute.