Author: Trevor Todd

Rebutting the Presumption of Undue Influence

Undue influence is an equitable doctrine used to protect persons from victimization at the hands of others. Equity will set aside transfers brought about by undue influence: Geffen v. Goodman Estate, [1991] 2 S.C.R. 353 at 368, 1991 CanLII 69.

In Stewart v. McLean, 2010 BCSC 64, Justice Punnett considered undue influence.

At para. 92, he noted that the presumption of undue influence arises for gratuitous transfers when a plaintiff establishes that the potential for influence exists or existed in the relationship. In Geffen at 377, Justice Wilson provided a definition of influence:

It seems to me rather that when one speaks of influence one is really referring to the ability of one person to dominate the will of another, whether through manipulation, coercion, or outright but subtle abuse of power…. To dominate the will of another simply means to exercise a persuasive influence over him or her. The ability to exercise such influence may arise from a relationship of trust or confidence but it may arise from other relationships as well.

Justice Punnett also referred to Longmuir v. Holland, 2000 BCCA 538, at para. 71, where Justice Southin defined undue influence as “influence which overbears the will of the person influenced so that in truth what she does is not his own mind.

To rebut the presumption of undue influence, the defendant must show that the donor gave the gift as a result of her own “full, free and informed thought:” Geffen at 379. A defendant could establish this by showing:

a) No actual influence was used in the particular transaction or the lack of opportunity to influence the donor (Geffen at 379; Longmuir at para. 121);

b) The donor had independent advice or the opportunity to obtain independent advice (Geffen at 379; Longmuir at para. 121);

c) The donor had the ability to resist any such influence (Calbick v. Warne, 2009 BCSC 1222 at para. 64);

d) The donor knew and appreciated what she was doing (Vout v. Hay, [1995] 2 S.C.R. 876 at para. 29); or

e) Undue delay in prosecuting the claim, acquiescence or confirmation by the deceased (Longmuir at para. 76).

Another relevant factor may be the magnitude of the benefit or disadvantage (Geffen at 379; Longmuir at para. 121).

Campbell Estate (Re), 2022 BCSC 2184 at paras. 213–217 court stated:

Undue influence will be presumed in certain relationships, such as doctor and patient, solicitor and client, and parent and child: Geffen at para. 28. The categories of relationships in which undue influence will be presumed are not fixed. Each case must be considered on its own facts to determine if a “special” relationship exists to support the presumption.

[216]

[42] What then must a plaintiff establish in order to trigger a presumption of undue influence? In my view, the inquiry should begin with an examination of the relationship between the parties. The first question to be addressed in all cases is whether the potential for domination inheres in the nature of the relationship itself. This test embraces those relationships which equity has already recognized as giving rise to the presumption, such as solicitor and client, parent and child, and guardian and ward, as well as other relationships of dependency which defy easy categorization.
[43] Having established the requisite type of relationship to support the presumption, the next phase of the inquiry involves an examination of the nature of the transaction. When dealing with commercial transactions, I believe that the plaintiff should be obliged to show, in addition to the required relationship between the parties, that the contract worked unfairness either in the sense that he or she was unduly disadvantaged by it or that the defendant was unduly benefited by it. From the court’s point of view this added requirement is justified when dealing with commercial transactions because, as already mentioned, a court of equity, even while tempering the harshness of the common law, must accord some degree of deference to the principle of freedom of contract and the inviolability of bargains. Moreover, it can be assumed in the vast majority of commercial transactions that parties act in pursuance of their own self-interest. The mere fact, therefore, that the plaintiff seems to be giving more than he is getting is insufficient to trigger the presumption.
[44] By way of contrast, in situations where consideration is not an issue, e.g., gifts and bequests, it seems to me quite inappropriate to put a plaintiff to the proof of undue disadvantage or benefit in the result. In these situations the concern of the court is that such acts of beneficence not be tainted. It is enough, therefore, to establish the presence of a dominant relationship.
[45] Once the plaintiff has established that the circumstances are such as to trigger the application of the presumption, i.e., that apart from the details of the particular impugned transaction the nature of the relationship between the plaintiff and defendant was such that the potential for influence existed, the onus moves to the defendant to rebut it. As Lord Evershed M.R. stated in Zamet v. Hyman, supra, at p. 938, the plaintiff must be shown to have entered into the transaction as a result of his own “full, free and informed thought”. Substantively, this may entail a showing that no actual influence was deployed in the particular transaction, that the plaintiff had independent advice, and so on. Additionally, I agree with those authors who suggest that the magnitude of the disadvantage or benefit is cogent evidence going to the issue of whether influence was exercised.

[217] McMaster Estate v. McMaster, 2021 BCSC 1100 provides a recent illustration of the application of these principles in this court. In that case, a mother had purchased a home and registered it in joint title with one of her sons. While the deceased’s will provided for her estate to be split evenly between her children, the transfer had already taken nearly all of the deceased’s assets out of her estate. The estate alleged that the son who owned the house with the mother held it pursuant to a resulting trust or as a result of undue influence. In this context, Justice MacDonald summarized the applicable legal principles as follows:

[47] Undue influence is an equitable doctrine to prevent individuals from being taken advantage of by others. It addresses abuses of trust, confidence, and power spanning a range of transactions, including gifts, bequests, and commercial dealings. Transactions induced by undue influence may be set aside.
[48] Vulnerability and dependency are the hallmarks of undue influence.
[49] In order to trigger a presumption of undue influence, the first question to address is whether the potential for domination inheres in the nature of the relationship. The second phase of the inquiry involves an examination of the nature of the transaction: Geffen v. Goodman Estate, [1991] 2 S.C.R. 353 at paras. 40-44.

[50] A relationship of dependency involving a potential for domination may arise among family members: Geffen. A gratuitous transfer from a parent to an adult child does not automatically create a presumption of undue influence. In Wood v. Porter, 2015 BCSC 2354, this Court found a relationship of dependency and domination did not exist between an independent, active, and competent mother and her son. To establish the presumption of undue influence, the plaintiff must establish the existence of a relationship of potential dominance between the parent and the adult child: Modonese at para. 111.

[51] The second phase of the inquiry involves an examination of the nature of the transaction.

[52] To rebut the presumption of undue influence, the defendant must establish that the transferor entered into the transaction of her own “full, free and informed thought”: Geffen at para. 45.

[53] The following factors may be considered when scrutinizing the transaction to determine if Doreen entered into the transaction of her own “full, free and informed thought”: (i) the lack of actual influence or opportunity to influence her; (ii) whether she received or had opportunity to obtain independent legal advice; (iii) her ability to resist any such influence; (iv) whether she knew and appreciated what she was doing; (v) whether there was undue delay in confirmation by Doreen; and (vi) the magnitude of the benefit or disadvantage: Cowper-Smith v. Morgan, 2016 BCCA 200 at para. 50, rev’d on other grounds, 2017 SCC 61; Stewart v. McLean, 2010 BCSC 64 at para. 97.
[Emphasis added.]

Stages of Progressive Dementia

Probably the most difficult area of estate litigation has to do with court actions such as lack of mental capacity to make a will, be financial responsible, make a substantial gift, or be subject to undue influence to name a few. The common denominator was whether the transferor or will maker had sufficient mental capacity to make an informed and independent decision affecting their wealth and finances.

Dementia is marked by a severe decline in cognitive functions, such as thinking, reasoning, and remembering, to the extent that it interferes with the person’s daily life.’

It is estimated that about %80 of dementias are progressive with Alzheimer’s being the most prevalent.

Dementia typically affects older adults, but it is not a normal part of the aging process—while some amount of forgetfulness is normal with age,
dementia is a severe disorder that can affect the person’s ability to function on a daily basis.

According to the National Institute on Aging, about one-third of all people above the age of 85 have some form of dementia.’ Dementia can stem from
various causes, the most common being Alzheimer’s disease.3 Some of the other causes include Parkinson’s disease, Lewy body dementia, and
frontotemporal dementia.

Dementia progresses in typically 7 stages, ranging from mild to severe.’

The 7 stages of progressive dementia are as follows:

1. No cognitive decline
2. Very mild cognitive decline
3. Mild cognitive decline
4. Moderate cognitive decline
5. Moderately severe cognitive decline
6. Severe cognitive decline
7. Very severe cognitive decline

Stages 1 to 3 are the pre-dementia stages; whereas Stages 4 to 7 are thedementia stages.6 Clinicians typically compare the person’s symptoms to the
criteria listed for each stage and use their judgment to determine whichstage the patient is at.7

The 7 Stages of Dementia

Stage 1: No Cognitive Decline

At this stage, the person is able to function normally and doesn’t exhibit anysigns of memory loss, confusion, or cognitive impairment

However, the structure and functioning of their brain may have started todeteriorate,8 as the neurons (nerve cells) in their brain start to lose
connection with other brain cells and die.

Stage 2: Very Mild Cognitive Decline

The person starts to experience occasional lapses of memory, such as:

· Forgetting where they keep familiar everyday objects
· Forgetting names they once knew very well

At this stage, the symptoms are unlikely to affect the person’s work or social interactions.
In fact, the symptoms may even be too mild to detect in a clinical interview with a healthcare provider, as the person may be able to adequately perform
memory tests during the interview.

Stage 3: Mild Cognitive Decline

This is the stage where cognitive impairment starts to become more noticeable to the patient, as well as their friends, family members, and
colleagues.

The person may start to show symptoms such as:

· Getting lost while walking or driving, particularly in unfamiliar places
· Reading something and retaining very little of it
· Forgetting the names of people they’ve just met
· Losing items of importance or value
· Having trouble concentrating and performing complex tasks
· Experiencing increasing difficulty in social settings
· Frequently forgetting words and the names of loved ones
· Performing poorly at work, to the extent that it becomes evident to
colleagues

The person may start to feel anxious as their symptoms start to become
apparent and interfere with their ability to function.

Stage 4: Moderate Cognitive Decline

In this stage, the person will exhibit a definitive decline in cognitive ability in
a clinical interview.

Some of the symptoms of this stage may include:

· Lack of knowledge of current and recent events
· Difficulty remembering parts of their own personal history
· Trouble with organizing, planning, traveling, and managing finances

At this stage, the person will likely still be able to recognize loved ones’ names and faces, and be able to navigate familiar places. However, they
may start to avoid challenging situations in order to prevent anxiety and hide their distress from others.

Stage 5: Moderately Severe Cognitive Decline

From this stage onward, the person may no longer be able to function
without some assistance.

These are some of the symptoms of this stage:

· Difficulty recalling an important detail such as their address, phone number, or high school
· Disorientation in terms of place and time, such as confusion regarding the season, date, day of the week, or time of day
· Difficulty counting backward from 20 by 2s or from 40s by 4s
(provided they are educated and were once able to do this calculation)
· Trouble with making decisions

In this stage, the person can likely still remember their own name and the names of their spouse and children, but they may struggle with recalling the
names of their grandchildren. They may be able to eat and use the bathroom without assistance, but may need help with tasks such as deciding
what to wear.

Stage 6: Severe Cognitive Decline

At this stage, the person may require a high degree of care, as they may have symptoms such as:

· Difficulty remembering the names of their spouse, children, or primary caregivers
· Lack of awareness regarding all the recent events and experiences in their life
· Patchy or skewed recollection of their early life
· Difficulty counting backward or forward to 10
· Lack of awareness regarding their surroundings as well as the time and place
· Inability to travel alone without assistance
· Tendency to wander
The person is also likely to experience emotional and personality changes such as:

· Paranoia, hallucinations, and delusional behavior, such as talking to themselves or believing their caregivers are trying to harm them
· Obsessive symptoms, such as repeatedly performing cleaning activities
· Agitation, anxiety, and even violent behavior
· Loss of willpower, due to being unable to carry a thought long enough to complete the action

During this stage, the person is likely to still be able to remember their name, as well as distinguish between familiar and unfamiliar people in their environment. They will probably need assistance with daily living activities and may experience incontinence as well as sleep-related difficulties

Stage 7: Very Severe Cognitive Decline

In the final stage, the brain appears to lose its connection to the body and
becomes incapable of telling it what to do.

The person is likely to progressively lose their motor skills as well as the ability to speak. They may only be able to utter unintelligible sounds or words, if at all. They will need assistance with all personal care tasks such as eating, walking, and using the bathroom.

Court Delay & Dismissal Want of Prosecution

Many court actions, including estate litigation are commenced and then just ” sit there” often for years such that inordinate delay can occur.

After certain criteria are met, typically the defendant will apply to the court for dismissal of the plaintiff’s court action for want of prosecution.

In Drennan v. Smith, 2022 BCCA 86 the Court of Appeal summarized principles to be considered on an application for dismissal for want of prosecution at para. 16 as follows:

Relevant factors for consideration are summarized in Wiegert v. Rogers, 2019 BCCA 334:

On an application to dismiss for want of prosecution, it must be shown that

1)there has been inordinate delay,

2)that the inordinate delay is inexcusable,

3) and that the delay has caused, or is likely to cause, serious prejudice to the defendant.

4) In addition, the final and decisive question, which encompasses the other three, is whether, on balance, justice requires a dismissal of the action: Azeri v. Esmati-Seifabad, 2009 BCCA 133 at para. 9; 0690860 Manitoba Ltd. v. Country West Construction Ltd., 2009 BCCA 535 at paras. 27-28.

Inordinate delay is defined in Drennan at para. 16 (citing para. 32 of Wiegert v. Rogers, 2019 BCCA 334 [Wiegert]) as follows:

…Inordinate delay is delay that is immoderate, uncontrolled, excessive and out of proportion to the matters in question: Azeri at para. 8; Sahyoun v. Ho, 2015 BCSC 392 at para. 17. As Justice Saunders explained in Sun Wave Forest Products Ltd. v. Xu, 2018 BCCA 63 at para. 25, the concept is relative: some cases are naturally susceptible of fast carriage or call for more expeditious prosecution than others. Although there is no universal rule as to when time starts to run, the date of commencement of the action is typically identified as the point from which delay is measured. The delay should be analysed holistically, not in a piece-meal fashion, and the extent to which it may be excusable is highly fact-dependent: Ed Bulley Ventures Ltd. v. The Pantry Hospitality Corporation, 2014 BCCA 52 at para. 38; 0690860 at para. 29.

The plaintiff’s diligence and dispatch in advancing the action is relevant to whether a delay is inordinate. Plaintiffs have a particular onus to move expeditiously when a case involves serious allegations that go to a defendant’s character and credit, see Extra Gift Exchange Inc. v. Accurate Effective Bailiffs Ltd., 2015 BCSC 915 [Extra Gift Exchange Inc.].
In considering the issue of whether there has been inordinate and inexcusable delay, the court is entitled to consider the conduct of the defence contributing to that delay, see Tundra Helicopters Ltd. v. Allison Gas Turbine, 2002 BCCA 145 at para. 21 [Tundra].

The burden is on the applicant to establish that there has been inordinate and inexcusable delay. Once the applicant has established inordinate and inexcusable delay, a rebuttable presumption of prejudice arises:

Once a defendant establishes that delay is inordinate and inexcusable, a rebuttable presumption of prejudice arises: Busse v. Chertkow, 1999 BCCA 313 at para. 18. The concern is with the prejudice that a defendant will suffer in mounting and presenting a defence if the matter goes to trial: 0690860 at para. 27. Relevant matters could include failing memories, unavailable witnesses and the loss or destruction of physical evidence.
…
Drennan at para. 16 (citing para. 33 of Wiegert).

The final and overriding question is whether the interests of justice require dismissal of the action, see Drennan para. 16 (citing para. 33 of Wiegert):

…As to the final consideration — whether, on balance, justice requires dismissal of the action — again, the determination is highly fact-dependent. Relevant matters could include the length of and reasons for the delay, the stage of the litigation, the context in which the delay occurred and the role of counsel in causing the delay (although negligence on the part of a plaintiff’s lawyer may not always amount to an excuse): International Capital Corporation v. Robinson Twigg & Ketilson, 2010 SKCA 48 at para. 45; 0690860 at para. 29.

Four questions are to be addressed in an application to dismiss for want of prosecution:

1. Has there been inordinate delay on the part of the plaintiff in pursuing its claim?
2. Has the delay been inexcusable?
3. Has the delay caused serious prejudice, or is it likely to cause serious prejudice to the defendants?
4. Does the balance of justice require an order dismissing the plaintiff’s claim?
Extra Gift Exchange Inc., at para. 41.

Removal of Lawyer Refused

Jiwani v Jiwani @022 BCCA 451 refused to remove a lawyer for a potential conflict of interest stating that the role of the lawyer was not the basis of the court action, it was instead the enforceability of the marriage agreement turned on whether the appellant husband Mr. Jiwani truthfully disclosed his financial affairs to his wife.

The lawyer’s advice to the respondent in respect of the marriage agreement had not been put in issue.

The Law

In summary, the court has an inherent jurisdiction to remove a lawyer from the record who has a conflict of interest, including a lawyer who may be a witness in a case where they act as counsel (see Ontario Realty Corp. v. Gabriele & Sons Limited, [2006] O.J. No. 4497 (Ont. S.C.J.) at para. 16 and MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235 at para. 18).
The concern that arises when a lawyer testifies is there may be a conflict of interest between the client and the lawyer, and the administration of justice can be impaired by a conflict in the lawyer’s obligation of objectivity to the court, and their obligation as an advocate to the client.

The factors the court considers include:

(a) maintaining the high standard of the legal profession and the integrity of the justice system; and
(b) the right of a litigant to counsel of choice, which they should not be deprived of without good cause (Ontario Realty at para. 17, citing MacDonald Estate at para. 12)

The test to be applied is whether a fair minded reasonably informed member of the public would conclude that a proper administration of justice requires the removal of the lawyer (Ontario Realty at para. 20; Karas et al. v. Her Majesty the Queen et al., 2011 ONSC 5181 at para. 26).

The cases have recognized that when a litigant is deprived of a lawyer of their choice, a hardship may arise, which can only be justified to prevent a more serious injustice (see for example Urquhart v. Allen Estate, [1999] O.J. No. 4816 (Ont. S.C.J.).

While certainty that a lawyer will be called as a witness is not required, the applicant must establish it is likely that counsel can provide material evidence: Ontario Realty at paras. 34-35. In Gichuru v. Purewal, 2017 BCCA 281 at para. 17, the Court of Appeal characterized a removal order as an extraordinary remedy, to be approached with great caution and rarely invoked.

Deliberate Destruction of Evidence( Spoilation)

The deliberate destruction of material evidence occasionally occurs in estate litigation. The technical term is spoliation.

What does seem to occur on a somewhat regular basis in estate disputes is the disappearance of previous wills, and other relevant documents that may pertain to a death that occurs years later.
Proving that the evidence was deliberately destroyed can of course be very difficult.

The BC Court of Appeal in GEA Refrigeration Canada Inc. v Chang 2020 BCCS 361 , upheld the trial judge’s decision that the defendant’s decision to destroy his computer hard drives was motivated by his knowledge that the information on them would adversely affect his case.

The court upheld the trial judge’s entitlement to draw an adverse inference from the deliberate destruction of evidence if certain conditions are satisfied:

The Supreme Court of Canada decision, St. Louis v. The Queen( 1896) 25 SCR 649 stands for the proposition that sporulation in law does not occur merely because evidence has been destroyed. It occurs where a party has intentionally destroyed evidence relevant to ongoing, or contemplated litigation in circumstances where reasonable inference can be drawn that the evidence was destroyed to affect the litigation.
Once this is demonstrated a presumption arises that the evidence would have been unfavorable to the party destroying it.
That presumption is rebuttable by other evidence through which the alleged spoil later proves that his or her actions, although intentional, were not aimed at affecting the litigation, or through which the party either proves his or her case or repels the case against him or her.

See also McDougall v . Black & Decker Canada Inc., 2008 ABCA 353

Attorney Cannot Transfer Parent’s Assets to Protect Parent’s Finances

An attorney cannot transfer all of the funds to another bank account in the name of another party despite the attorney’s intention to protect the parent – McMullen v McMullen 2006 1656.

The parent was an active 86 year old father who while being frail and declining in health still enjoyed travelling and being independent. He was mentally competent for financial affairs.

His two children fearing that he would succumb to financial abuse, transferred his monies using their power of attorney to their spouses to hold in trust.

The parent sued and the transactions were set aside and the monies ordered be returned to the parent.

It is well established that the attorney acting under a power of attorney is bound to the duties enunciated on the face of the instrument granting the power. In this case, the power of attorney remains exercisable during periods of capacity and mental infirmity. A condition requires the attorneys to provide the donor with regular accountings at any time they assist him in his financial affairs.

It is also well established that the relationship between the attorney and the donor is a fiduciary one. This stems from the agent-principal relationship, as well as the indicators of a fiduciary relationship as described in Frame v. Smith, [1987] 2 S.C.R. 99, which include the unilateral exercise by the fiduciary of some discretion or power, which affects the beneficiary’s legal or personal interest, and where the beneficiary is particularly vulnerable. See British Columbia (Guardian and Trustee of) v. Egli (2004), 28 B.C.L.R. (4th) 375, 2004 BCSC 529, aff’d (2005) 48 B.C.L.R. (4th) 90, 2005 BCCA 627.

In Andreasen v. Daniels-Ferrie, 2001 BCSC 1503, Quijano J. described the requisite standard of care that was to be expected when utilizing a power of attorney at para. 27:
[I]t is well established that the attorney acting under a power of attorney does so in a fiduciary relationship with the donor and that, in addition to whatever duties may be enunciated on the face of the instrument, even where the attorney acts gratuitously he or she has a duty to account, to exercise reasonable care as would a typically prudent person managing his or her own affairs, and not act contrary to the interests of the donor.

[ In most cases involving allegations of a breach of duty regarding the use of a power of attorney, the issues stem from transactions where property was transferred from the donor to the attorney. Under s. 27 of the Property Law Act, any such transaction is not valid unless the power of attorney expressly authorizes it or the principal ratifies it. An unauthorized transaction will constitute a breach of fiduciary duty despite good intentions by the attorney: British Columbia (Guardian and Trustee of) v. Elgi, supra.

This case does not involve a transfer to the attorneys, but rather a transfer to the spouses of the attorneys. Mr. Roberts did not explicitly argue that such a transaction is equivalent to a transfer to the attorneys, but he did raise the applicability of s. 27 of the Property Law Act. He also submitted that the powers given in the power of attorney do not authorize the granting away of the principal’s property without consideration: Begley v. Imperial Bank of Canada [1935] S.C.R. 89, aff’d [1936] 2 All E.R. 367 (J.C.P.C.).

Forgery and Handwriting Analyis

I commonly receive estate enquiries where the enquirer strongly asserts suspicion that documents found after death such s a wills or a transfer were forged.

I predicted many years ago with the advent of S. 58 and 59 WESA ( the curative provisions of defective wills) allowing court approval of unwitnessed or even unsigned written or computer wills as valid after being satisfied that the document represents the last stated intention of the deceased’s testamentary wishes.

The potential for financial abuse and in particular by “forgery” is enormous as many have not gone to professional will drafters after learning of the relaxed will rules and how you can now just do your own.

HANDWRITING

Most of the following law is derived from criminal law but it will apply equally to a civil claim alleging forgery.

A trial judge may make their own handwriting comparison. However, courts have conditioned the use of this power on the trial judge issuing a self-instruction on the dangers of exercising it.
In R. v. Megill, 2021 ONCA 253, the court stated:

The Governing Principles
[84] At common law, proof of handwriting could be made by testimonial or circumstantial evidence. For example, a witness might testify that they saw the act of writing. Or they might give evidence of the circumstances leading up to or pointing back to the act of writing. In a similar way, a qualified witness may testify about the style of the handwriting which requires a comparison between known and the disputed writing: VII Wigmore on Evidence (Chadbourn Rev. 1978), §1991, at pp. 252-57.
[85] The common law also permitted the trier of fact, without the aid of experts, to compare handwriting samples when a proved or admitted standard used for comparison with the disputed writing was already properly admitted as evidence for other purposes. No document was admissible merely as a standard of comparison with the disputed writing: R. v. Abdi (1997), 1997 CanLII 4448 (ON CA), 116 C.C.C. (3d) 385 (Ont. C.A.), at para. 15, citing VII Wigmore on Evidence (Chadbourn Rev. 1978), §§1992-1994, at pp. 257-64.

[86] Under s. 8 of the Canada Evidence Act, R.S.C. 1985, c. C-5, handwriting may be proven by comparison, by expert or lay witnesses, of a disputed handwriting with one that has been proved to be genuine and which has been received in evidence for the purpose of comparison: Abdi, at para. 16.
[87] Section 8 does not oust the common law rule. The section does not preclude a trier of fact from comparing disputed handwriting with admitted or proved handwriting in documents which are properly in evidence and drawing available inferences: Abdi, at paras. 22, 23 and 25.
[Emphasis added.]
In R. v. Hunking, 2016 ONSC 1749, the court stated:
F. The Principles Governing Handwriting Comparisons by the Trier of Fact

[17] In a series of cases the Ontario Court of Appeal has affirmed that a trial judge as trier of fact may make handwriting comparisons between a known or admitted sample of handwriting and another document bearing handwriting, and find that both were written by the accused. However, the court has conditioned the use of this power on the trial judge’s self-instruction on the dangers in exercising it. These cases include R. v. Abdi (1997), 1997 CanLII 4448 (ON CA), 34 O.R. (3d) 499; 1997 CanLII 4448 (Ont. C.A.), R. v. Malvoisin, 2006 Can LII 33304 (Ont.C.A.), and R.v. Flynn, 2010 ONCA 424.
[18] In Abdi, 1997 CanLII 4448 Justice Robins for the Court stated:
In the appellant’s submission, s.8 of the Canada Evidence Act (“the Act”) requires that evidence with respect to the comparison of handwriting be given by experts or witnesses with particular knowledge of the writings of the accused. To allow the jury to compare handwritten documents without witness testimony as to the validity of the comparison, the appellant argues, is to turn the jurors into witnesses and deprive the accused of the right of cross-examination. As I noted earlier, the handwriting in the red address book is the appellant’s.
Section 8 of the [Canada Evidence] Act provides:
8. Comparison of a disputed writing with any writing proved to the satisfaction of the court to be genuine shall be permitted to be made by witnesses, and such writings, and the evidence of witnesses respecting those writings, may be submitted to the court and jury as proof of the genuineness or otherwise of the writing in dispute.
….
Under s. 8, handwriting may be proved by comparison, done by expert or lay witnesses, of the disputed writing with a writing that has been proved to be genuine and which has been admitted into evidence for the purpose of comparison. The question is whether or not, in light of this provision, the trier of fact is entitled to compare the disputed handwriting with the admitted or proved handwriting and form an opinion thereon in the absence of any witness testimony as to the genuineness or otherwise of the disputed writing. Put another way, does s. 8 provide the only means for comparison of handwritten documents and thus preclude comparison by the trier of fact without witness evidence? If the trier of fact does not require such assistance, then the question is what caution need be given as to the dangers of engaging in an unaided comparison.
….
In R. v. Dixon, supra, the Nova Scotia Supreme Court, Appellate Division, held that the statutory provision allowed the comparison to be made by expert or lay witnesses “or without the intervention of any witnesses at all, by the jury themselves, or, in the event of there being no jury, by the court”.
….
….
There is, of course, a potential danger in making unassisted comparisons and the judge’s charge should reflect this danger. The jury should be reminded that it has no expert or other evidence relating to the writings and directed as to the care to be exercised in making the comparison. Any difficulties that a comparison may reasonably present in the light of the circumstances of a given case should be brought to the jury’s attention. As well, the jury may require instruction on the quality of the handwriting exemplar, whether it is of sufficient length and clarity for comparison purposes and, depending on the nature of the facts and the charge, on other matters going to the weight that may be placed upon such a comparison. In cases where forgery or the like is alleged, expert evidence may well be essential.

Joint Tenancy Severed Due to Acrimonious Conduct

In Preskar Estate v Wagner 20023 BCSC 80 a BC court found that a joint tenancy with a right of survivorship had been severed so as to become a tenancy in common by reason of the joint owners acrimonious conduct to each other that was inconsistent with joint tenancy unity.

In Preskar an unmarried couple who own the property in joint tenancy had acrimonious family litigation for many years, starting in 2007 that was never resolved. The joint tenancy was never severed and when Mr. Preskar his estate died, his interest in the joint tenancy property immediately went to his partner by right of survivorship.

The estate successfully sued arguing that there acrimonious course of conduct showed that their “notional” unity of ownership under a joint tenancy had been abandoned, and thus the joint tenancy had been severed and a tenancy in common created many years before his death in 2020.

This meant that the half interest of the deceased would go to his estate rather than to the former joint tenant by right of survivorhip.

The BC court adopted the reasoning of the Ontario Court of Appeal as follows:

Hansen Estate v. Hansen, 2012 ONCA 112 which states as follows at para. 39:

[39] While the determination under the course of dealing test is an inherently fact-specific assessment, the underlying rationale for rule 3 is that it is a means of ensuring that a right of survivorship does not operate unfairly in favour of one owner (or owners) where the co-owners have shown, through their conduct, a common intention to no longer treat their respective shares in the proper as indivisible, unified whole. For example, in the context of negotiations between spouses who are in the midst of a marriage breakdown, even failed or uncompleted negotiations can lead to severance because “the negotiation of shares and separate interests represents an attitude that shows that the notional unity of ownership under a joint tenancy has been abandoned” . . .

S. 58 WESA Criteria For “Curing” A Defective Will

Re Clarke Estate 2023 BCSC 103 is the latest in many S. 58 WESA applications where the court has “cured” a defective will once satisfied that the document is authentic and that it represents the final testamentary intentions of the deceased at the material time.

One of the leading BC cases Estate of Young, 2015 BCSC 182. stated that the two principal issues are:

(1) whether the document is authentic; and

(2) the core issue, whether the document represents the fixed and final, although not irrevocable, testamentary intentions of the deceased at the material time.

The BC courts followed the Manitoba decision of George v Daily 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 burden of proof that a non-compliant document embodies the deceased’s testamentary intentions is a balance of probabilities.

A wide range of factors may be relevant to establishing their existence in a particular case. Although context specific, these factors may include the presence of the deceased’s signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests and the title of the document:

While imperfect or even non-compliance with formal testamentary requirements may be overcome by application of a sufficiently broad curative provision, the further a document departs from the formal requirements the harder it may be for the court to find it embodies the deceased’s testamentary intention: George at para. 81.

Concerning the material time for determining the testamentary intentions of the deceased person, Dickson J. noted at para. 37 that in most cases, the material time for determining testamentary intentions on a s. 58 application is the time when the document in question was created.

In many cases, as here, the material time for determining testamentary intentions on a s. 58 application is the time when the document in question was created. However, as noted in Estate of Young, depending on the circumstances, the material time may vary on this key issue. For example, after creating a document, a will-maker may, by words or actions, manifest a fixed and final intention that it expresses how his or her property is to be disposed of on death and thus that it operates as a will. In other words, a document may acquire a testamentary character by subsequent and sufficient manifestation of the will-maker’s intention: Bennett et al. v. Toronto General Trusts Corporation, 1958 CanLII 49 (SCC), [1958] S.C.R. 392 at 397. Nevertheless, in most cases, the focus of inquiry will be the will-maker’s intention when the document was prepared and executed: see, for example, Sweeney Cunningham Estate v. Sweeney, 2013 NSSC 299 at para. 29; Komonen v. Fong, 2011 NSSC 315 at para. 23.

The principles from Estate of Young were applied in the cases of Smith Estate (Re), 2016 BCSC 350 and Lane Estate, 2015 BCSC 2162

From the foregoing authorities, the following principles are established :

a)The onus in this matter is on the petitioner to prove, on a balance of probabilities, that:
the document is authentic; and
the document embodies the fixed and final, as opposed to irrevocable, testamentary intentions of the deceased.
b)The factors to take into account in determining whether the document contains the testamentary intentions of the deceased include:
the presence of the deceased’s signature,
the deceased’s handwriting,

iii. witness signatures,

revocation of previous wills,
funeral arrangements,
specific bequests,

vii. the title of the documentation,

viii. such other factors as may be relevant given the context, and

c)the material time for determining the testamentary intentions can vary depending on the circumstances, but in many if not most cases the material time is when the document was prepared and executed.

Joint Tenancy vs. Tenancy In Common Explained

Joint tenancy and tenancy in common are the two most common forms of concurrent property ownership in Canada.

In a joint tenancy, the “four unities” of title, interest, time and possession are present and co-owners hold an equal interest in the property as a unified whole. The common law treats joint tenants as a single tenant: each holding the whole for all, with no distinct shares held by anyone.

In contrast, in a tenancy in common one co-owner may hold a greater proportionate interest in the property than the other co-owner(s): Hansen Estate v. Hansen, 2012 ONCA 112 at paras. 29-30; Felske Estate v. Donszelmann, 2007 ABQB 682 at para. 31, aff’d 2009 ABCA 209; Rathwell v. Rathwell, [1978] 2 S.C.R. 436 at 459.

Unity of title means the title of each joint tenant arose from the same act or instrument. Unity of interest means their holdings are perfectly equal in nature, extent and duration. Unity of time means all the interests vested simultaneously. Unity of possession means each joint tenant has a right to present possession and enjoyment of the whole property, but no right to exclusive possession of any individual part of the whole. Assuming all four unities are present, the question of whether a joint tenancy or a tenancy in common has been created is determined by the intention of the grantor: B. Ziff, Principles of Property Law, 6th ed. (Toronto: Carswell, 2014) at 336; Felske Estate at para. 31.

Joint tenancy is often the chosen form of concurrent ownership for family holdings, usually for estate planning purposes. This is unsurprising. The legal fiction of a unified singularity composed of more than one person may fit comfortably in a family context. Unfortunately, however, unity can be fragile and families are not always happy. As Abella J. remarked in Pecore, when divisions arise that unhappiness often finds its painful way into a courtroom.

The principal and distinguishing characteristic of joint tenancy is the right of survivorship, the jus accrescendi. When one joint tenant dies, his or her interest in the property is extinguished and passes to the surviving joint tenant(s). The right of survivorship is, however, a revocable expectancy that manifests only upon success in the so-called “ultimate gamble” – survival – and then only if the joint estate has not been previously destroyed by an act of severance: Estate of Propst, 788 P.2d 628 at 631 (Cal. Sup. Ct. 1990). When given inter vivos, a gift of survivorship rights is to what is left, if anything, when the gamble is won: Simcoff v. Simcoff, 2009 MBCA 80 at para. 64.

The interest of a tenant in common is different with respect to survivorship. Unlike that of a joint tenant, a tenant in common’s interest in property remains intact upon death and passes into his or her estate: Fuller v. Harper, 2010 BCCA 421 at para. 53.

Importantly, parties may hold legal title to property in one form of co ownership while holding equitable title in another. For example, a mother and daughter may be joint tenants in law and tenants in common in equity with respect to jointly-held property by virtue of a trust or an act of severance. If the mother dies first, the daughter assumes full legal title by right of survivorship, but the mother’s equitable interest, being held in common, passes to her estate and the daughter holds legal title as trustee for the beneficial owners, namely herself and her mother’s estate: Pecore at paras. 4-5; Ziff at 341-342.

Equity leans against joint tenancies: As explained in J. McGhee, ed., Snell’s Equity, 31st ed. (London: Sweet & Maxwell, 2005) at 103, the relevant maxim is that equity is equality.
When a joint tenant dies the whole belongs to the survivor(s) and the deceased’s estate takes nothing, which favours the tenant(s) of longevity and is thus unequal, except perhaps for an equal chance at survival. For this reason, equity often treats persons who are joint tenants at law, such as business partners or unequally contributing co-owners, as tenants in common: Mischel Holdings Pty Ltd. v. Mischel, [2013] VSCA 375 at paras. 60-61.