Vancouver Estate Lawyer- Lost Wills and The Presumption of Destruction

Trevor Todd and Jackson Todd have over sixty years combined experience in handling estate disputes, including lost wills and the presumption of destruction.

 

Facts of Re Finsant estate 2024 BCSC 217

The deceased died at the age of 81 years in her home. Searches of the home and her personal effects did not find a will. It was known that she had executed a will, almost 20 years earlier, and that the deceased had possession of it. She lived alone, and had no children or surviving siblings and her home was reasonably orderly.

The court found that she appeared to be mentally competent.

The estate dispute was between the named beneficiaries in the will and her next of kin on an intestacy.

 

Under these circumstances, the court found that she had either intentionally destroyed the will or was lost, stolen or accidentally destroyed.

There is a presumption of destruction of the will that the court found had not been rebutted, and that she must be presumed to have died intestate.

 THE LAW

The presumption of destruction was set out in Welch v. Phillips (1836), 1 Moo PC 299 at p. 302, and remains the law in British Columbia: Haider v. Kalugin, 2008 BCSC 930, at para. 11. If, as here, a will is traced to the possession of the deceased and last seen there and is not forthcoming on death, it is presumed to have been destroyed by the deceased, a presumption that holds unless there is “good and sufficient reason to repel it.”

In modern Canadian civil law, there is only one standard of proof in civil cases regardless of the nature of the allegation, namely, proof on a balance of probabilities: F.H. v. McDougall, 2008 SCC 53, at para. 40. But the quality of the evidence necessary to make a finding on that standard will depend on the inherit probabilities or improbabilities: McDougall; Canada v. Fairmont Hotels Inc., 2016 SCC 56, at para. 36.

As Justice Ehrcke explained in Thierman Estate v. Thurman, 2013 BCSC 503 at para. 43:

The presumption [of destruction] recognizes that the burden of proof is on the party attempting to rely on a non‑original copy of a will. Thus, the presumption of destruction of a will that had been in the testator’s possession but cannot be found on his death may be rebutted by evidence establishing on a balance of probabilities that the will was inadvertently lost or misplaced.

 

The ultimate issue is whether, on a balance of probabilities, the will was more likely to have been deliberately destroyed because the testator had a change of heart or was more likely lost, stolen or accidentally destroyed. The legal onus is on the applicant – in this case Ms. Beggs – as the person trying to rely on a non‑original copy. What the presumption adds is the common‑sense point that we would expect a person who wants a will to be executed to keep it where it can be found when they die. In the absence of a contrary reason, this is the more inherent probability. The application of the legal standard and burden of proof will take this into account.

In other words, if a will in the deceased’s possession cannot be found after a reasonable search, the quality of evidence necessary to support the inference that it was destroyed intentionally is less than that required to support the inference that it was lost or inadvertently destroyed.

At para. 13 of Haider,  the court set out the factors typically looked at in deciding whether the presumption of destruction has been rebutted as follows:

 

  • whether the terms of the will itself were reasonable;
  • whether the testator continued to have good relationships with the beneficiaries in the copy of the will up to the date of death;
  • where personal effects of the deceased were destroyed prior to the search for the will being carried out;
  • the nature and character of the deceased in taking care of personal effects;
  • whether there were any dispositions of property that support or contradict the terms of the copy sought to be probated;
  • statements made by the testator which confirm or contradict the terms of distribution set out in the will;
  • whether the testator was of the character to store valuable papers, and whether the testator had a safe place to store the papers;
  • whether there is evidence that the testator understood the consequences of not having a will, and the effects of intestacy;
  • whether the testator made statements to the effect that he had a will;

 

 

BC Contested Estates- The Criteria For Removing an Executor

Trevor Todd and Jackson Todd have over sixty years combined experience in handling contested estates, including the removal of executors.

The law relating to the removal of an executor was summarized in Nand Estate (Re), 2022 BCSC 1718 and followed in Re Walker Estate 2024 BCSC 250.

The Court has power, under both s. 30 of the Trustee Act, R.S.B.C. 1996, c. 464 as well as its own inherent jurisdiction, to make an order removing a trustee: Dirnberger Estate, 2016 BCSC 439 [Dirnberger Estate] at para. 9, citing Morelli v. Morelli, 2014 BCSC 106 at para. 29.

Section 158(3) of the WESA allows the Court to remove a person entitled under a will from being a personal representative in the circumstances enumerated in that section. Subsection 158(3)(f)(iii) allows for removal where the personal representative is:

(iii) otherwise… 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

Notwithstanding that jurisdiction, courts are very hesitant to interfere with the discretion of the will-maker to remove an Executor. To do so, good reason must be shown for believing that the interests of a person entitled under the will are in danger: Re: Estate of Andre Jacques Blitz, Deceased, 2000 BCSC 1596 at para. 20.

Indeed, in deciding whether to remove an estate’s trustee, the Court’s main guide should be “the welfare of the beneficiaries”: Crawford v. Jardine, 1997 O.J. No. 5041 (Ont. Ct. (Gen. Div.)) at para. 18.

In Dirnberger Estate, at para. 11, the Court set out the four categories of conduct on an Executor’s part that will warrant removal as follows:
a) endangerment of the trust property;
b) want of honesty;
c) want of proper capacity to execute the duties; and
d) want of feasible fidelity.

In Parker v. Thompson (Trustee) 2014 BCSC 1916, at paras. 35 to 43, the Court added “actual dishonesty” and “lesser basis of a trustee’s ability to act impartially” as bases for removing a trustee.

It also reiterated the removal of a trustee “should not be lightly entertained”, and citing Radford v. Radford Estate, 2008 CarswellOnt 5297, 43 E.T.R. (3d) 74, set out a number of other considerations to apply when considering an application for the removal of a trustee. They are:

• removal must be the only course to follow;
• non-removal must likely prevent the proper execution of the trust; and
• removal is not intended to punish for past conduct.

The existence of friction between a trustee and one or more of the beneficiaries is usually not sufficient, of itself, to justify the removal of the trustee: Dirnberger Estate at para. 10, citing Erlichman v. Erlichman, 2000 BCSC 173 at para. 8.

Vancouver Estate Lawyer – Gratuitous Transfer Is Gift

vancouver estate lawyer

Trevor Todd and Jackson Todd have over sixty years combined experience in handling contested estates , including gifts versus resulting trust claims.

Franco v Franco Estate 2023 BCSC 1015 held that the gratuitous transfer from a father to one of three children was a valid gift having found that the deceased clearly intended the transfer of properties and a joint bank account to be a gift.

The presumption of resulting trust was rebutted.

Documentary and affidavit evidence established that the deceased intended to gift to his daughter rights of survivorship in real property and bank accounts owned by him at the time he made those transfers. That evidence includes the transfer documents, the Deed of Gift and bank account documents, as well as the affidavits of independent witnesses.

The Law

In McKendry v. McKendry, 2017 BCCA 48, the Court of Appeal stated the requirements for a legally binding gift:

A gift is a gratuitous transfer made without consideration. Two requirements must be met for an inter vivos gift to be legally binding: the donor must have intended to make a gift and must have delivered the subject matter to the donee. The intention of the donor at the time of the transfer is the governing consideration. In addition, the donor must have done everything necessary, according to the nature of the property, to transfer it to the donee and render the settlement legally binding on him or her: Kooner at 79-80; Pecore at para. 5.

A gift may be delivered in various manners. For example, a donor may choose to transfer property directly to a donee or a trustee, or may retain possession and make a declaration of trust. Once a gift is given, the donor cannot retract it. If it is incomplete, however, the court will not perfect a gift. Accordingly, where the gift rests merely in a promise or unfulfilled intention, the court will not compel an intending donor to follow through with making the gift: Kooner at 79-80; Pecore at para. 56.

The standard for proving a gift is the usual civil standard of a balance of probabilities: Singh Estate v. Shandil, 2007 BCCA 303 at paras. 24-27.

Where, as in this case, a parent makes a gratuitous transfer to an independent adult child, the presumption of resulting trust arises and the transferee must prove on a balance of probabilities that the transferor intended the transfer as a gift: Sandwell v. Sayers, 2023 BCCA 147 at paras. 39-41, citing Pecore v. Pecore, 2007 SCC 17 at paras. 24-26, 44.

In Newhouse v. Garland, 2022 BCCA 276 at paras. 54-56, the Court of Appeal clarified that the presumption is engaged only where there is insufficient evidence to displace it.
That is, if the transferee leads evidence showing that it is more likely than not that the transferor intended the transfer to be a gift, the presumption does not apply: Pecore at para. 59.

If available, the most compelling evidence is direct evidence of the transferor’s intention at the time of transfer. Circumstantial evidence from that time is also important. While post-transfer conduct is also relevant, it should be treated with caution because of the danger that after-the-fact evidence may be self-serving or may reflect a change in intention: Pecore at para. 59.

Vancouver Estate Lawyer-Presumption of Undue Influence Applied

Trevor Todd and Jackson Todd have over 60 years combined legal experience in handling estate disputes, including undee influence.

Re Campbell estate 2022 BCSC 2184 set aside a transfer in favour of one child over others on the basis of both undue influence and resulting trust.

The defendants knew that the deceased was frail and vulnerable and were clearly in a position of dominance over her.

UNDUE INFLUENCE

The law relating to the presumption of undue influence was described by Madam Justice Wilson in Geffen v. Goodman Estate, [1991] 2 S.C.R. 353 [Geffen]. At para. 23 she wrote that:

The equitable doctrine of undue influence was developed, as was pointed out by Lindley L.J. in Allcard v. Skinner (1887), 36 Ch. D. 145, not to save people from the consequences of their own folly but to save them from being victimized by other people (at pp. 182-83). In the context of gifts and other transactions, equity will intervene and set aside such arrangements if procured by undue influence.

[215] 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] At paras. 42–45, Wilson J. set out what must be established to trigger the presumption of undue influence in these terms:

[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.

[Emphasis added.]

[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.]

[218] Applying those principles to the present case, I find that the potential for dominance clearly existed in Ivan’s relationship with Mrs. Campbell. Mrs. Campbell was experiencing cognitive decline, she was vulnerable, and she was increasingly dependent on others for activities of daily living, including Ivan. She was engaging in uncharacteristically risky financial behaviour. Ivan had informed himself of the details of Mrs. Campbell’s finances, and attended the meetings with her at the CIBC and RBC. Ivan was in a dominant position in his relationship with Mrs. Campbell.

BC Contested Estates Lawyers- Gifts vs. Resulting Trusts

Contested Estate

Trevor Todd and Jackson Todd have handled contested estate matters such as joint accounts, joint ownership , gifts vs trust that all deal with the principles of resulting trusts.

Resulting trusts most commonly result from a gratuitous transfer of funds or an asset from one party to another.

 The Presumption of Resulting Trust

The presumption of resulting trust is a rebuttable presumption of law that applies to most gratuitous transfers: Pecore v. Pecore, 2007 SCC 17 at para. 24. Equity presumes bargains, not gifts.

Thus, it is presumed that a transferor intended to convey only legal title to a transferee who did not provide consideration and that the transferee holds the beneficial interest in the property in a “resulting trust” in favour of the transferor. The transferee must therefore return the property to the transferor upon request: Pecore at paras. 20 and 24.

The party who obtained the benefit of the transfer must rebut this presumption.

Typically, the transferee must prove on a balance of probabilities that the transferor intended a gift at the time of the transfer, or that there was evidence of the transferor’s contrary intention: Pecore at paras. 24, 25, 43.

Evidence of Intention

In Weaver v. Weaver Estate, 2019 BCSC 132, the court stated:

[62]      If the evidence establishes, on a balance of probabilities, that the transferor’s actual intention was to gift the property, then the presumption has been rebutted. It is the intention of the donor at the time of the transfer that is the governing consideration. To rebut the presumption of resulting trust, the donee must show not only that a gift was intended, but that the donor has done everything necessary to transfer the property to the donee and render the transfer legally binding: McKendry v. McKendry, 2017 BCCA 48 [McKendry] at para. 31.

In Fuller v. Harper, 2010 BCCA 421, the Court of Appeal confirmed that the court should only rely on the presumption of resulting trust where there is insufficient evidence to establish the transferor’s actual intent at the time of the transfer:

[47]      The effect of the presumption only becomes evident after all the evidence, both direct and circumstantial, on the surrounding circumstances in which the transfer was made, has been weighed. Only if the trial judge is unable to reach a conclusion about the transferor’s actual intention at the time of the transfer, will the presumption be applied to tip the scales in favour of the transferor or his estate: [citations omitted]…

Regarding evidence of after-the-fact conduct which may prove the original intention of the transferor, Justice Rothstein stated the following in Nishi v. Rascal Trucking Ltd., 2013 SCC 33:

[41]      Evidence that arises subsequent to a gratuitous transfer can be admissible to show the true intention of the transferor (Pecore, at para. 59). However, it is the intention of the transferor at the time of the transfer that is determinative. The difficulty with subsequent evidence is that it may well be self-serving or the product of a change in intention on the part of the transferor (Pecore, at para. 59).

Schouten Estate v. Swagerman-Schouten, 2014 BCSC 2320, where the court described the care that must be taken when considering evidence of the deceased’s intention:

[6]           Care must be taken to guard against after the fact evidence that may be self-serving (Pecore at para. 59; Fuller at para. 49; Chung at para. 51; Anderson at para. 164). The credibility of a witness should be gauged by its harmony with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (Farnya v. Chorny, [1952], 2 D.L.R. 354 at 357 (B.C.C.A.), Aujla at para. 36). Care must also be taken not to treat any single type of evidence as determinative but to weigh all of the evidence (Pecore at paras. 55, 68-69). D. Smith J.A. for the court in Fuller at para. 49 put it in a nutshell: “In short, the court must consider if the transferor had any rational purpose for the transfer other than a gift”.

In Bergen v. Bergen, 2013 BCCA 492, the Court focused on the assessment of the presumption when dealing with a joint bank account. Turning to Pecore, the Court in Bergen stated:

[7]        It is the third major holding in Pecore, however, with which we are concerned in the case at bar.  Under the heading “How Should Courts Treat Survivorship in the Context of a Joint Account?”, Rothstein J. considered the operation of the presumption of resulting trust in the context of joint bank accounts.  He began as follows:

In cases where the transferor’s proven intention in opening the joint account was to gift withdrawal rights to the transferee during his or her lifetime (regardless of whether or not the transferee chose to exercise that right) and also to gift the balance of the account to the transferee alone on his or her death through survivorship, courts have had no difficulty finding that the presumption of a resulting trust has been rebutted and the transferee alone is entitled to the balance of the account on the transferor’s death.

In certain cases, however, courts have found that the transferor gratuitously placed his or her assets into a joint account with the transferee with the intention of retaining exclusive control of the account until his or her death, at which time the transferee alone would take the balance through survivorship. …

There may be a number of reasons why an individual would gratuitously transfer assets into a joint account having this intention. A typical reason is that the transferor wishes to have the assistance of the transferee with the management of his or her financial affairs, often because the transferor is ageing or disabled. At the same time, the transferor may wish to avoid probate fees and/or make after-death disposition to the transferee less cumbersome and time consuming.  [At paras. 45-7.]

[      Proof of intention was considered in Creyke v. Creyke, 2016 BCCA 499:

[53]      The actual intention of the grantor is determined on the whole of the evidence. The presumption of resulting trust is simply a legal assumption the court will make if sufficient evidence on the point is not adduced.  In many cases, persuasive and reliable evidence of the grantor’s actual intention may be presented by the parties.  The presumption of resulting trust will only determine the result where there is insufficient evidence to rebut it on a balance of probabilities: Pecore at paras. 22-23, 44.

[18]       In Franco v. Franco Estate, 2023 BCSC 1015, the court confirmed at para. 42 that “if the transferee leads evidence showing that it is more likely than not that the transferor intended the transfer to be a gift, the presumption does not apply.”

In Fuller v. Harper, 2010 BCCA 421, the Court of Appeal overturned the trial judge’s decision to grant a declaration of trust. At paras. 69–70, the Court of Appeal explained that the legal error related to the application of the presumption of resulting trust, and held that if the trial judge had considered all the direct and circumstantial evidence of actual intent at the time of transfer, the burden of rebutting the presumption would have been met.

Kolic v. Kolic, 2019 BCSC 1463. Justice Punnett provided a helpful summary of the cases dealing with joint accounts and resulting trusts. The plaintiff summarized those principles as follows:

  1. a)The burden of proof is on the adult child to establish that the jointly held funds were a gift (para. 84, citing Unger v. Unger Estate, 2017 BCSC 1946);
  2. b)It is the testator’s intent at the time of the transfer that determines whether the right of survivorship applies, or whether a resulting trust arises for the benefit of the estate (para. 85, citing Williams v. Williams Estate, 2018 BCSC 711);
  3. c)Bank documents indicating a right of survivorship are not necessarily sufficient to rebut the presumption of resulting trust, even where the documents were explained by the bank representatives (paras. 86–88, citing Stade Estate (Re), 2017 BCSC 2354; Madsen Estate v. Saylor, 2007 SCC 18; Kyle Estate v. Kyle, 2017 BCCA 329; Shkuratoff v. Shkuratoff, 2007 BCSC 1061); and
  4. d)The presence of the giftee when the transfer is made may be a factor favouring upholding the presumption of resulting trust (para. 89, citing Modonese v. Delac Estate, 2011 BCSC 82).

Summary of Resulting Trusts 

 

In summary, where a gratuitous transfer is challenged, the presumption of resulting trust arises and it falls to the surviving transferee to prove that the transferor intended to gift the asset at their death. Otherwise, the asset will be treated as part of the transferor’s estate to be distributed according to their will: Pecore at para. 53.

 

Vancouver Wills Variation Lawyer- The Leading Case- Tataryn

Trevor Todd of Disinherited.com has 50 years experience in the Vancouver general area handling wills variation cases to obtain  just results for a disinherited child or spouse.

 

The law of wills variation currently flows from section 60 of the Wills, Estates and Succession Act (“WESA”)
 which empowers the court, in its discretion, to vary a will if, in the court’s
opinion, the will does not make adequate provision for the proper maintenance and support of
the will-maker’s spouse or children:

Despite any law or enactment to the contrary, if a will-maker dies leaving a will that
does not, in the court’s opinion, make adequate provision for the proper maintenance
and support of the will-maker’s spouse or children, the court may, in a proceeding by or
on behalf of the spouse or children, order that the provision that it thinks adequate, just

and equitable in the circumstances be made out of the will-maker’s estate for the
spouse or children.

The governing authority in British Columbia on the application of section 60 of the Act is the
Supreme Court of Canada decision in Tataryn v. Tataryn Estate, [1994] 2 SCR 807.

 

In that case, Justice McLachlin ) set out the key principles that must guide the court in the
exercise of its discretion, including the following:

  1. The test for determining what is “adequate, just and equitable” is that of the “judicious
    father of a family seeking to discharge both his marital and his parental duty”.
  2. The determination of what is “adequate, just and equitable” should be made according
    to contemporary standards. Those standards will change from time to time and the
    courts are not bound by the views and awards made in earlier times when standards
    were different.
  3. While the WESA protects both the interests of “adequate, just and equitable” provision
    for claimants and testamentary autonomy, the former interest is paramount.
    Testamentary freedom must yield to the extent required to achieve adequate, just, and
    equitable provision for the applicant spouse and/or children and only to that extent.
  4. A proper determination of what is “adequate, just and equitable” has two distinct
    components: assessment of the will-maker’s “legal obligations” and “moral obligations”
    to the claimant.
  5. All claims against the estate should be met if the size of the estate so permits. If all
    claims cannot be met, legal obligations should take precedence over moral obligations.
  6. The moral claim of independent adult children is more tenuous than the moral claim of
    spouses or dependent adult children. But if the size of the estate permits, and in the
    absence of circumstances negating the existence of such an obligation, some provision
    for adult independent children should be made.
  7. In any given case, there will be a wide range of options, any of which might be
    considered appropriate in the circumstances. Provided that the testator has chosen an
    option within this range, the will should not be disturbed.

{00966402.2}

Fixing a Will in BC-Digital Will Cured Under S. 58 WESA

Trevor Todd and Jackson Todd have over sixty years combined experience in estate litigation including ” fixing or curing” wills that fall short of proper execution procedures in icluding the advent of digital wills..

 

Rempel Estate v Dudley 2020 BCSC 2207 found that certain documents in digital form represented the true testamentary intentions of the deceased and cured the execution deficiencies under S. 58 WESA.

Canada Trust as administrator of the estate of the deceased petitioned the Court for an order under s. 58 of the Wills, Estate and Succession Act, S.B.C. 2009, c. 13 [WESA] that certain documents in digital form represent the testamentary intentions of the deceased, Mr. Rempel. As well, the petitioner sought an order that “deficiencies in any of the said documents which are found to be testamentary be cured”.
The documents in issue are contained on two memory sticks, the first of which contains recordings, including a voice memorandum created by Mr. Rempel and recordings of several telephone conversations between Mr. Rempel and a notary public.
The second memory stick contains file folders and sub-folders created by Mr. Rempel that hold electronic drafts of documents which potentially express Mr. Rempel’s testamentary intentions in the event he died without a will. More specifically, the latter documents include will instruction client questionnaire forms, i.e., drafts of information then sought by a notary public, presumably with the eventual intent to prepare a will, but the search of his premises did locate several paper and electronic documents which indicated Mr. Rempel had been actively working towards completion of a formal will.

The Law

Evidence of statements made by the deceased are admissible. I quote from Pasko v. Pasko, 2002 BCSC 435 at para. 10:

10 There is another exception to the hearsay rule which permits evidence to be given of statements made by deceased persons as to their present state of mind (including intention), which statements need not be against interest, provided that the deceased person’s state of mind is relevant to an issue in the case. See R. v. Smith (1992) 75 C.C.C. 3d 257.

In Modonese v. Delac Estate, 2011 BCSC 82 at para. 84 following reference to Pasko, the Court stated:

84 Following Pasko, if I am wrong in concluding that the statements concerning Regina’s intention to divide her assets equally are not admissible pursuant to s. 5 of the WVA, they ought to be admitted pursuant to this exception to the hearsay rule.

[The WVA was a reference to the Wills Variation Act, RSBC 1996, c.490, as repealed by WESA]

The hearsay statements attributed to the deceased are reliable in that they are repeated in many of the documents prepared by Mr. Rempel over a considerable period of time and, as such, are reliable as to his intentions regarding the disposition of his estate.

The introduction of s. 58 represented a departure from the formalities for execution which had been required under the Wills Variation Act, RSBC 1996, c.490, as repealed by WESA, which was discussed by Dardi J. in British Columbia (Public Guardian and Trustee) v. Shaeffer, 2015 BCSC 1306 at para. 26:

26 The formalities for execution have been incorporated into s. 37 of the WESA. However, the WESA has introduced a remedial provision in s. 58 that gives the court a broad authority to “cure” a purported will, an alteration to a will, or the revocation of a will that does not satisfy the signing and witnessing requirements prescribed by s. 37. S. 58 constitutes a key component of the modernization of the law of wills and succession in British Columbia because it empowers the court to uphold the will-maker’s true intentions even where the will, a gift under the will or a purported alteration or revocation of the will is invalid pursuant to other provisions of the WESA.

In order to be a testamentary document capable of being “cured” under s. 58, the document “must record a deliberate or fixed and final expression of the deceased’s intention regarding disposal of his property on death”: Re Smith Estate 2016 BCSC 350 at para. 23.

Fraudulent Conveyances/Transfers

The issue of whether a transfer of assets gratuitously made is a Fraudulent Conveyance or not vis a vis creditors is found in the caselaw arising from the Fraudulent Conveyance Act (FCA).

Section 2 of the FCA provides:

This Act does not apply to a disposition of property for good consideration and in good faith lawfully transferred to a person who, at the time of the transfer, has no notice or knowledge of collusion or fraud.

Two key questions arise when determining the validity of the Transfer: (1) whether there was good consideration for the Transfer, and (2) whether the defendants had the requisite intent.

A conveyance of property by a debtor to a creditor to satisfy an antecedent debt is made for good consideration and not void for fraud. As explained long ago by the Supreme Court of Canada in Mulcahy v. Archibold (1898), 28 S.C.R. 523, at 529(para.3):

… So long as there is an existing debt and the transfer to him is made for the purpose of securing that debt and he does not either directly or indirectly make himself an instrument for the purpose of subsequently benefitting the transferor, he is protected and the transaction cannot be held void.

[ The Court of Appeal relied on this proposition more recently in First Royal Enterprises Ltd. v. Armadillo’s Restaurant Ltd. (1995), 15 B.C.L.R. (3d) 254, 1995 CanLII 605 (C.A.) at para. 31, confirming that a pre¬existing debt can furnish good consideration within the meaning of the FCA, and so long as the debt is honestly due and owing, there is good consideration.

Where valuable consideration has passed, the party seeking to impeach the Transfer must show that the transferee actively participated in the fraud: Meeker Cedar Products Ltd. v. Edge (1968), 68 D.L.R. (2d) 294, 1968 CanLll 666 (B.C.C.A.) at 299, aff’d (1968), 1 D.L.R. (3d) 240, 1968 CanLII 776 (S.C.C.); First Royal Enterprises at para. 24; and Chan v. Stanwood, 2002 BCCA 474 at para. 20.

A bare assertion of a defence is insufficient to meet the applicant’s burden of establishing a “meritorious defence”. The applicant’s affidavit material should contain sufficient detail and supporting documents to buttress the asserted defence: Leibenzeder Estate v. MacIntyre, 2023 BCSC 1422 at para. 183.

The applicant must provide, by admissible evidence, sufficient detail to allow the chambers judge to determine whether a meritorious defence exists: Forgotten Treasures International Inc. v. Lloyd’s Underwiters, 2020 BCCA 341 at paras. 26–30.

The only intent necessary to meet the requirements of section 1 of the FCA is to “put one’s assets out of reach of one’s creditors”: Royal Bank of Canada v. Clarke, 2009 BCSC 481 at para. 20. No further dishonest or morally blameworthy intent is required: Abakhan & Associates Inc. v. Braydon Investments Ltd., 2009 BCCA 521 at para. 73.

Previous Wills Ordered Produced

In DeContiis v DeContiis Estate 2023 BCSC 2163 , a wealthy father of seven boys did six wills between 1997 and 2009 which the plaintiff sought to be produced in order to determine the deceased true intentions re his estate planning.

The deceased left a last will, January 2016, which disinherited one son entirely.

In 2019. The deceased established an alter ego trust in which he put substantial assets.

The plaintiff sought and was granted production of the previous six wills of the deceased in order to determine the deceased true intentions re his estate planning

The plaintiff argues that s. 62 of Wills and Estate Succession Act, S.B.C. 2009, c. 13 supports production of the prior wills. Section 62 states:
Evidence

62 (1) In a proceeding under section 60, the court may accept the evidence it considers proper respecting the will-maker’s reasons, so far as may be determined,
(a)for making the gifts made in the will, or

(b)for not making adequate provision for the will-maker’s spouse or children,

including any written statement signed by the will-maker.

(2) In estimating the weight to be given to a statement referred to in subsection (1), the court must have regard to all the circumstances from which an inference may reasonably be drawn about the accuracy or otherwise of the statement.

[The amended notice of civil claim at para. 53 of Part 3, Legal Basis, asserts that “prior wills, executed before 2016 and without the undue influence of the Younger Brothers, included the Plaintiff as a beneficiary”.

Based on these paragraphs of the amended notice of civil claim alone, the defendants ought to have listed the prior wills in their initial list of documents because they are material.

The prior wills are squarely at issue because the court considers prior wills where a will or other estate planning documents are challenged.

The prior wills are relevant to the claim of undue influence because they will disclose how the deceased treated the plaintiff in the prior wills which would be an indication of Innocenzo’s attitudes toward Ivano over time.

In Jung v. Poole Estate, 2021 BCSC 623, the trial judge analyzed the deceased’s attitudes towards his disinherited children by, in part, examining the terms of the prior wills (paras.

51 to 52) and Geluch v. Geluch Estate, 2019 BCSC 2203, in which the trial judge considered prior wills as evidence of the deceased’s prior wishes that were inconsistent with the impugned final will (para. 117).

Rule 7-1(11) requires listing and production of documents that “relate to any or all matters in question in the action”. The test for such disclosure is whether the documents “may enable a party, directly or indirectly, to advance their own case or damage that of their adversary, including documents that may fairly lead to a train of inquiry having either consequence”: Richter v. Richter Estate, 2023 BCSC 105 at paras. 57 and 58.

In Westman v. Westman, 2000 BCSC 236, the trial judge referred to the history of the deceased’s prior wills as indicative of an “inter-family phenomenon” (at para. 34) that was relevant to an assessment of whether the will made adequate provision for the deceased’s spouse. In the present case, the analogy to “inter-family phenomenon” is the changing attitudes Innocenzo had to each of his sons. The prior wills are relevant to this issue.

in Kobzos v. Kobsoz Estate, 2019 BCSC 2254, the documents relating to the deceased’s estate planning were relevant for production.

Executor Remuneration

The legal principles re executor’s remuneration and charges for legal services, are set out in Bernhard v. Wist, 2011 BCSC 101:

Section 88 of the Trustee Act, [R.S.B.C. 1996, c. 464] governs executor’s remuneration. The executor is entitled to:

a) a maximum of 5 per cent of the gross [aggregate] value of the estate;
b) a maximum of 5 per cent of the income earned during the administration of the estate; and
c) an annual “care and management fee” of 0.4% of the average market value of the assets.

However, the percentages stipulated in s. 88 are not necessarily to be applied in every calculation of remuneration. The percentages provide a rough guide to assist in appropriate computation of the executor’s remuneration: Re Turley Estate (1955), 16 W.W.R. 72 (B.C.S.C.). In the end, the court must be satisfied that the compensation claimed “bears some reasonable relationship to the work and responsibility involved”: Re La Chance, [1955] 15 W.W.R. 141 (B.C.S.C.).

Various factors are to be considered when determining the appropriate executor’s fee. Those factors include the magnitude of the estate, the care and responsibility involved, the time occupied in the administration, the skill and ability displayed and the success (or lack thereof) achieved in the administration: Re McColl Estate (1967), 65 W.W.R. 110 (B.C.S.C.). Similar, but not the same, types of considerations apply with respect to a care and management fee: Re Pedlar (1982), 34 B.C.L.R. 185 (S.C.).

In terms of calculating the capital fee, the gross aggregate value of the estate is the realized value of the original assets of the estate.

If the estate suffers any losses as a result of an executor’s actions (or inaction), the executor is obliged to repay the estate, with interest. The interest is calculated pursuant to the Court Order Interest Act, R.S.B.C. 1996, c. 79, unless there is a finding that the executor has used estate monies for his or her own benefit. In that circumstance, the executor may be required to pay compound interest (see Waters, D.W.M., Waters’ Law of Trusts in Canada, 3rd edition at pp.1228-1229).
An adverse inference may be drawn against an executor’s reliability if he or she fails to produce relevant documents as requested by the beneficiaries or ordered by the court: Booty v. Hutton, [1996] B.C.J. No. 2286 (S.C.).

The executor is entitled to be reimbursed from the estate for a solicitor’s bill for legal services rendered provided that those legal costs have been reasonably and properly incurred and do not relate to work that could have been performed by the executor. Fees paid for any services that could have been performed by the executor should be deducted from the executor’s remuneration: Re Lloyd Estate (1954), 12 W.W.R. (N.S.) 445.

Furthermore, an executor is not entitled to employ a solicitor to do work that the executor could do, such as ordinary letters, attendances, paying insurance premiums and the like, attending to banking matters and other ordinary duties that do not require the skill or expertise of a solicitor: Sharp v. Lush (1879), 10 Ch. 468 applied in Re Smith, [1972] 2 O.R. 256 (Surr. Ct).