Annulment for Non Consummation

Annulment for Non Consummation

In S.Z. v X.J. 2020 BCSC 1336 an annulment was granted on the grounds that the marriage had not been consummated, and could not be consummated due to the respondent’s impotence.

An annulment was brought instead of a divorce by reason of religious grounds.

An action for annulment must be based on facts which existed as at the date of the marriage, and not fax that arose only after the date of the marriage, and in the latter the remedy for the claimant is an order for divorce.

The petitioner alleged that the marriage contract, which she entered into with the respondent is void as a result of his inability to complete an essential implied term of the contract, namely engaging in sexual intercourse.

In C. v L. 2003 BCSC 1461 the court reviewed the law relevant to an action for annulment on the grounds of a failure to consummate.

That decision confirmed that in such a common-law action remains available in British Columbia.

The onus is on the claimant to establish that one or both of the parties is incapable of engaging in sexual intercourse to do a physical or psychological capacity.

The impotence need not be a general incapacity to engage in sexual intercourse, but can be with respect to the particular spouse only.

In Jones v . Jones (1948) OR 22, the court concluded that there was no rule which required a defendant to give evidence contrary to the evidence of the claimant. If the claimant present sufficient evidence to satisfy the court that her husband was incapable, and the court is satisfied that such evidence is bona fide and true, the order should be allowed.

The claimant is not required to obtain medical evidence of the respondent’s incapacity in order to establish the claim.

The evidence established that the marriage was never consummated due to the inability of the respondent to maintain an erection. They attempted sexual intercourse each week for approximately 8 months, but were unable to have sexual intercourse. The claimant asked the respondent to see a doctor, but the respondent failed to do so.

The respondent deposed that he had a new girlfriend and they have sexual intercourse regularly. There was no evidence from the girlfriend. The court found that that evidence was largely irrelevant as it did not contradict the claimant’s evidence that he was incapable of having sexual intercourse with her.

Electronic Wills and S. 58 WESA

Electronic Wills and S. 58 WESA

Much of the legal profession and general public do not realize that the age of electronic/digital wills is already upon us as per WESA.

Section 58 (1) WESA reads as follows:

In this section, “record” includes data that:

1) is recorded or stored electronically,
2) can be read by a person, and
3) is capable of reproduction in a visible form.

The term “record” explicitly anticipates that a document in electronic form may become a valid testamentary document.

This definition may even be broad enough to include audio or audiovisual recordings that can be stored electronically and can be reproduced in visual form in the likes of a transcript. The definition of record may well involve many forms of permanent media.




The case that goes the furthest in curing a testamentary document that was in electronic form is Hubschi Estate 2019 BCSC 2040.

A terse message found on the deceased’s computer was “cured” under S. 58 WESA and found to be a valid will.

Specifically, the court found that the electronic Microsoft Word document found in the deceased’s password–protected personal computer after his death was the last will of Mr. Hubschi.

The court application was unopposed but the Judge thoroughly reviewed the law under S.58 WESA.

The computer message was found on the deceased’s computer labelled “Budget for 2017” and read as follows:

“Get a will made out at some point. A 5-way assets split for remaining brother and sisters. Greg, Annette or Trevor as executor.”

As the document was “cured” by the court pursuant to S. 58 WESA, the deceased’s assets were to be distributed to the foster siblings who he grew up with in accordance with the intention set out in the document.

Had the document not been “cured”, the deceased would have died intestate, and his assets would have been distributed to blood relatives in Switzerland with whom he had no relationship, in accordance with S. 23 WESA.

The deceased was given up at birth and at age 3 was placed in a foster home in which he grew up with the five siblings to whom the court divided his estate equally.
He died without any children, nor did he marry.

The court strongly implied that closeness of the beneficiaries will be a factor to be considered as the court is very cognizant the deceased’s estate would have gone to relatives he had no relationship with as opposed to his foster siblings with whom he had a close relationship until his death. An intestacy would have clearly NOT reflected the deceased’s final wishes.

The court also founded particularly significant that the deceased had reviewed the “Budget for 2017” the day of his death, and he modified it that same day. This supported the inference that the document reflected the deceased’s wishes as of the date of his death, and demonstrated a fixed intention, even though the words ”get a will done at some point” on the face of it suggested a lack of a fixed and final intention.

S. 58 WESA

Section 58 of WESA allows the court to make an order that a “record, document or writing or marking on a will or document” represents the testamentary intentions of the deceased person, even though the making of the will does not comply with WESA.

The court may, as the circumstances require, order that a record or document or writing or marking on a will to be fully effective as though it had been made as part of the deceased’s will.

The court needs to be satisfied on the balance of probabilities that the record represents the full and final testamentary intentions of the deceased and can be saved by section 58. WESA.

The BC courts, firstly in Young Estate 2015 BCSC 182 adopted the Manitoba Court of Appeal decision George v Daily (1997) 143 DLR (4th) 273.

In George the court confirmed that testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death.

The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death. A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a will, by its nature, is revocable until the death of its maker. Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.

The court in Hubschi extensively quoted the B.C. Court of Appeal decision in Hadley Estate, Re 2017 BCCA 311.

Under section 58 WESA there is no minimum level of execution or other formality for a testamentary document to be found fully effective (Hadley Estate at paragraph 35). If the court grants an order under section 58(3) a document may be admitted to probate, regardless of its form.

The party seeking an order under section 58(3) must demonstrate on the balance of probabilities that:

1) The testamentary document is authentic;
2) The testamentary document contains the full, final and fixed intention of the will maker

The case law has established that the testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death.

The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death.

A very wide range of factors may be relevant to establishing its existence in a particular case.


Under Covid-19 amendments passed in British Columbia in the summer of 2020, an electronic will is conclusively deemed to be signed if the electronic signature is in, attached to, or associated with the will so that it is apparent the will maker intended to give effect to the entire will.
The amendments also give directions on how to alter or revoke an electronic will.
An electronic will is revoked only in one or more of the following circumstances:
1) by the will maker, or a person in the presence of the will maker and by the will maker’s direction, the deleting of one or more electronic versions of the will or of part of the will with the intention of revoking it;
2) by the will maker, or a person in the presence of the will maker and by the will maker’s direction, burning, tearing or destroying all or part of a paper copy of the will in some manner, in the presence of a witness, with the intention of revoking all or part of the will;
3) by any other act of the will maker, or another person in the presence of the will maker and by the will maker’s direction, if the court determines under section 58 (relating to curing deficiencies) that

• the consequences of the act of the will maker or the other person is apparent; and
• the act was done with the intent of the will maker to revoke the will, in whole or in part.

A written declaration made in accordance with Section 55 may be in electronic form and signed with an electronic signature.

A deletion of one or more electronic versions of a will or part of a will is not evidence of an intention to revoke the will.


Hubschi referred to two Australian cases that the court found informative, though not binding:

1) Nichol v Nichol & Anor (2017) QSC 220 where an Australian court held that a will contained in an unsent text message on the phone of the deceased could be enforced. The case was disputed by the widow who had separated from the deceased just before the deceased’s suicide, and their son, who would have taken on an intestacy.

The text message gave the assets to several nephews named in the text, who had been very close to the deceased.

The text stated:

“ you and nephew keep all that I have house and superannuation, put my ashes in the back garden– wife will take her stuff only she’s okay gone back to her ex at D9 beaten AGAIN bit of cash behind TV in a bid in the bank cash card pin— my will.”

The judge found that all the essential elements of the will were there, despite the form.

The text message had not been sent, and this suggested to the court that the deceased had intended it to be found.

2) In Yazbek v Yazbek (2012) NSWSC 594 the Supreme Court of New South Wales addressed the acceptance of a Microsoft document ”Will.doc” found on the deceased’s laptop after his death.

The computer record of the deceased’s intentions was accepted as his will based on surrounding circumstances, including his distribution of substantial assets. The testator wrote the document in terms indicating he would not be alive at the time the document was read. The testator had recently opened the computer, which suggested an inference that he had reviewed the will and was prepared to leave those terms in place.

A third Australian decision, Re Yu (2013) Q SC 322, the High Court of Queensland gave probate to a will contained in the iPad of the deceased, who had killed himself. The will was prepared like a traditional will ie. with the heading Last Will and Testament, and it contained many of the traditional provisions of a will, like the appointment of an executor and replacement executor.

The court found that the will was a document that was testamentary and was intended to be legally effective. The application was not contested.


While incredibly convenient to the public, the growing use of electronic wills should expose some problems and obstacles that will be encountered, such as not having the password to computers, the encryption of documents, and general lack of knowledge on the part of executors to be increasingly vigilant for possible digital/electronic wills that might be stored on phones, tablets or computers.

From an estate litigator’s point of view a key issue for electronic wills will be the wills authentication and whether an electronic signature could and should be accepted as a signature for the purposes of executing a will.

This area of law seems fraught with potential problems for disappointed beneficiaries who might allege lack of capacity and undue influence, as there will typically not be the same probing for same by an attending lawyer or notary. For young families with fewer assets, creating an “e-will” might be cheaper, more convenient and better than no will at all, however for older clients with greater net worth and who are, generally speaking, more susceptible to financial abuse and undue influence, or may lack capacity, an “e-will” may not be a good idea.

Spousal Separation Severs Joint Tenancy

Spousal Separation Severs Joint Tenancy

The estate of Eleanor Maureen Cook 2019 BCSC 417 confirmed that pursuant to S. 81 Family Law act a joint tenancy asset owned by spouses is severed into a tenancy in common as of the date that they separate.

Pursuant to S. 83 Family Law act they are not considered to have separated  if within one year of separation they being living together again and the primary purpose for doing so is to reconcile and they continue to live together for one or more periods totalling at least 90 days.

Equal entitlement and responsibility

81 Subject to an agreement or order that provides otherwise and except as set out in this Part and Part 6 

(a)spouses are both entitled to family property and responsible for family debt, regardless of their respective use or contribution, and

(b)on separation, each spouse has a right to an undivided half interest in all family property as a tenant in common, and is equally responsible for family debt.

Division 2 — Determining Family Property and Family Debt

83 (1)For the purposes of this Part, spouses are not considered to have separated if, within one year after separation,

(a)they begin to live together again and the primary purpose for doing so is to reconcile, and

(b)they continue to live together for one or more periods, totalling at least 90 days.

(2)Nothing in this Part affects a division of property under an agreement or order in a circumstance where, after the agreement or order was made, spouses live together and then separate again.

(3)For the purposes of this Part, property received by a spouse from a trust in respect of the spouse’s beneficial interest in property held in the trust must be considered to be property derived from that beneficial interest.

(4)In this Part, “property” includes a beneficial interest in property unless a contrary intention appears.

Wills Variation Awards Fall Rateably

Wills Variation Awards Fall Rateably

Section 65 WESA provides that, unless the court otherwise determines, the incidence of the payments ordered falls rateably on the whole estate.

Several cases confirmed that the BC courts prefer in most instances to satisfy a claimant’s claim( assuming it is meritorious) with a payment that falls rateably on all beneficiaries..

In Sawchuck v McKenzie Estate 2000 and BCCA 10, the court awarded $1 million to the appellant childhood applied to vary the will.

The appeal court stated “ I agree with the trial judge that the incidence of the provision for the appellant should fall rateably on the residuary beneficiaries”.

Tomlyn v Herchenson Estate 2008 BCSC 331 the court varied the will and then found that the remaining specific bequests be paid rateably from the money available in substitution for, and satisfaction of those bequest, stating:

“The result of these provisions is that the monies remaining for distribution to satisfy the cash bequests of $270,000 and Raymond’s Fund of $50,000 is approximately $173,000. I order that Raymond’s Fund be reduced from $50,000 to $25,000 payable to or for the benefit of Raymond Olsen at $400 per month and that, upon his death, what remains shall be payable to the Royal City Humane Society in substitution for and satisfaction of the specific bequest of $50,000.

The remaining specific bequests amount to $220,000 and the approximate monies available in payment of those bequests is approximately $148,000 less costs, which I will deal with below.

It is ordered that the beneficiaries of the specific bequests set out in para. 13 of the Will be paid rateably from the money available in substitution for and satisfaction of those bequests.”

Revival: S. 58 WESA Used

Revival: S. 58 WESA Used

Jacobson Estate 2020 BCSC 1280 showed the court’s willingness to expand the use of section 58 WESA as a remedial tool to revive the provisions of a will that had been revoked by operation of section 56(2) WESA due to the separation of spouses.

The deceased was in a same-sex marriage like relationship for over 30 years and provided in her will of November 2014 that her surviving partner would receive the residue of her estate.

However, in June 2017 they separated as spouses, and by reason of S. 56(2) WESA, a testamentary gift to a spouse of the will maker is automatically revoked when they cease to be spouses.

The applicant successfully applied for an order under section 58 (2)(b) WESA to revive the clauses of the will that gave property to the surviving partner.

The court found that the deceased was not aware of the provisions of section 56 WESA, and that she repeatedly spoke to many people, including her own lawyer, that she nevertheless wished her former partner to inherit, despite their separation.

For example, she specifically instructed her lawyer to delete a clause from a separation agreement that prohibited the parties from seeking a share of the others estate, because the deceased specifically intended for her estate to go to her former partner.


S.56 Revocation of Gifts

56(2)- if the will maker makes a gift to a person who was or becomes the spouse of the will maker, and after the will is made in before the will maker’s death the will maker and his or her spouse cease to be spouses under section 2, the gift is revoked in the gift must be distributed as if the spouses died before the will maker.

Revival of a will:

57(4) a part of a will that has been revoked may not be revived except:
a) by an order of the court, under section 58. If the court is satisfied that the will maker intended to give effect to the will or part of the will that was revoked; or

b) in accordance with any other provision of this act that recognizes the revival of a will.

The court was left to determine whether an order could be made by the court pursuant to sections 57(4) re-revival, and section 58 re-curative provision for defective wills.
The court determined that the factual findings demonstrate that the will in its present form would not have the legal effect that corresponded with the deceased actual wishes.

The leading case of Hadley estate 2017 BC CA 311 at paragraphs 33 – 35 moved British Columbia from a strict compliance jurisdiction to one with the legislative focus on testamentary intention.

The appeal court found that the section 58 was remedial in nature and conferred a broad discretion on the court to order that a record or document or writing or marking on a will or document be fully effective, despite noncompliance with the statutory requirements.

Although section 58 cannot be used to uphold the will that is substantially invalid, it permits the court to cure issues of formal invalidity in prescribed circumstances.

The court concluded that based on the deceased’s unequivocal ,repeated, and consistent affirmation that the terms of the will be followed after her death, that the terms on the face of the will represent of the deceased true testamentary intention.

Accordingly, the court found that the purpose of section 58 is to ensure that discernible testamentary intentions are not thwarted “ for no good reason” by a failure to comply with statutory requirements.

Demented Willmakers “Might” Be Able to Do a Will

Demented Willmakers “Might” Be Able to Do a Wil

In certain circumstances, a demented person found to be incapable under the Patients Property act may still have sufficient mental capacity to properly instruct a lawyer to prepare a will.

This is because of the concept of the will maker having “ good days and bad days“, namely lucid intervals sufficient to have the necessary mental capacity.

Royal Trust Co. v Rampone (1974) 4 WWR 735 involved a second codicil that was challenged on the ground of mental capacity. There had been a declaration of the testator being mentally incapable of managing his affairs prior to signing the codicil.

The medical evidence was that the cause of the will maker’s infirmity due to arteriosclerosis was to the effect that the disease impaired amongst other things judgment and memory.

Prior to signing the will the deceased had entered into a very imprudent business transaction and further admitted that his business affairs reproving too much for him to the extent that he had turned some of them over to a daughter.

The evidence of members of his family and others close to him was that he had good days and bad days, and that when he made the codicil in question he was perfectly lucid and appeared to fully understand what he was doing. The effect of the codicil was to bring into his will two sons whom he had earlier passed over under a mistake of fact.

The medical evidence was that the will maker was competent to make a will, while at the same time was unable to manage his own affairs.

The court held that where a declaration of mental infirmity had been made prior to execution of the testamentary document, a particularly heavy onus was upon those propounding the will.

But incapacity to manage business affairs generally was not necessarily indicative of incapacity to make a simple codicil, though the circumstances must be looked at with care.

In Can. Permanent Toronto General Trust Co. v Whitton (1965) 51 WWR 484 at 492 the court stated:

“ There is an onus on the propounder of the will to prove testamentary capacity. Surely that onus is heavy, or when at the time of the execution of the will the testator is held by the court to be incapable of managing his or her affairs.”

In deciding upon the capacity of the testator to make his or her will, it is the soundness of the mind and not the particular state of the bodily health that is to be attended to.

The latter may be in a state of extreme imbecility, and yet he or she may possess sufficient understanding to direct how his or her property shall be disposed of; his or her capacity may be perfect to dispose of his or her property by will, and yet very inadequate to the management of other business, such as for its this to make contracts for the sale or purchase of property.

In O’Neil v Royal Trust CO. (1946) SCR 622, at 628 the court stated after a review of the whole of the evidence, that it fell short of establishing that because a person is unable to manage his or her affairs that he or she is incompetent to make a will.


Costs Against Lawyers 2020

Costs Against Lawyers 2020

In Walsh v Muirhead 2020 BCCA 225 the Court of Appeal reversed an award of costs made against a lawyer in the lower court, and recited many of the principles relating to costs towards against lawyers, both as counsel, and as a lawyer who is not a party to an action.

It is trite law that superior courts have the power to order that a lawyer personally pay the costs that flow from an unsuccessful application brought on behalf of their clients, if the lawyer’s conduct warrants such an award.

Rule 14-1(33) of the Supreme Court rules specifically authorizes an order that if the court considers that a party’s lawyer has caused costs to be incurred without reasonable cause, or has caused costs to be wasted through delay, neglect, or some fault, the court may do any one of the following, including order that the lawyer be personally liable for all or part of any costs that his or her client is being ordered to pay do another party.

Rules 57(30) and 57(37) have expanded the scope of conduct which might support cost orders against lawyers. The court now has a discretion to order a lawyer to pay costs, where he or she has caused costs to be incurred without reasonable cause, or has caused costs to be wasted through delay, neglect, or some other fault.

Accordingly, under rule 57(37) mere delay or mere neglect may in some circumstances be sufficient for an order of costs to be made against a lawyer .

An order for costs against a lawyer who is not a party to an action is also available under a superior courts inherent jurisdiction to supervise the conduct of the lawyers who appeared before it.

The courts have the power to maintain respect for their authority. This includes the power to manage and control the proceedings conducted before them. R. v Anderson 2014 SCC 41

A court therefore has inherent power to control abuse in this regard and prevent the use of procedure in a way that would be manifestly unfair to a party to the litigation before it, or would in some way bring the administration of justice into disrepute.

This is a discretion that must of course be exercised in a deferential manner, but it allows a court to ensure the integrity of the justice system.

There is an established line of cases in which courts have recognized that the awarding of costs against lawyers personally flows from the right and duty of the courts to supervise the conduct of lawyers who appeared before them, and to note in sometimes penalize any conduct of such a nature as to frustrate or interfere with the administration of justice.

As officers of the court lawyers have a duty to boot respect, the court’s authority. If they fail to act in a manner consistent with their status the court may be required to deal with them by punishing their misconduct.

In Nazmdeh v Spraggs 2010 BCCA 131, a five-member division of the appeal court, makes clear that ordering counsel to personally pay special costs as provided under Rule 14-1(33) , as opposed to party and party costs, requires a finding of “reprehensible conduct”. Consistent with the rationale underlying the need for restraint in awarding costs against counsel, generally the strangest test for special cost respect the duties of lawyers to protect the confidentially of their clients and to advocate with courage.

It also takes into account the uniquely punitive nature of the award and states that an award of costs against a lawyer personally can be justified only on an exceptional basis, where the lawyers ask of seriously undermine the authority of the courts are seriously interfered with the administration of justice.

It is a high threshold to meet where a court has before been unfounded, frivolous, dilatory or vexatious proceeding that denotes a serious abuse of the judicial system by a lawyer, or dishonest or malicious misconduct in his or her part, that is deliberate.

If a party is to seek special costs against a lawyer, then prior notice of the allegations against him or her and the possible consequences should be provided to the lawyer enough in advance to enable the lawyer to prepare adequately.