Wills Variation- Adequate, Not Equal

Gray v Gray Estate 2012 BCSC 1310 is an increasingly common estate litigation scenario- a fight between the adult children of a first marriage and those of second or even third marriages, who are often much younger then the first set.

The law in BC is clear that under the Wills Variation act, a parent has a more obligation to treat his children adequately- it need not be even amongst them.

 

The Testator’s will gave cash bequests of $10,000 to each of his three children from first marriage, and bulk of his $630,000 estate to his son from second marriage.

The  Testator had limited contact with his children from the first marriage after divorcing their mother when children were young, although relationships improved somewhat when children grew up .

The Testator had a better relationship with his  son from second marriage because testator lived with this son throughout his childhood and as young adult .

None of testator’s children were wealthy and some had serious financial difficulties at times .

The  Testator’s two sons from first marriage brought application to vary will pursuant to s. 2 of Wills Variation Act

Their  Application was granted

The Court held that all of testator’s children had moral claims to his estate, which could be satisfied from testator’s estate

The alleged estrangement was not a valid reason for the testator to prefer the son from second marriage so significantly.

The Testator’s apparent desire to preserve the real property was not a valid or rational objective sufficient to negate moral claims of children from first marriage.

The Testator did not make adequate provision from his estate for maintenance and support of sons from first marriage .

Adequate, just and equitable provision could be made without dividing estate equally among three sons which recognized closer bond testator had with son from second marriage .

The residue of estate was divided one-half to son from second marriage and one-quarter each to sons from first marriage in addition to cash bequest.
In Ryan v. Delahaye Estate, Justice Smith stated, at para. 67:

“The adequacy of a moral claim is not easy to assess, especially where a child has not been disentitled, but has received something less than her sibling. In the absence of express reasons for an unequal distribution, contemporary standards create a reasonable expectation of children sharing equally in a parent’s estate. However no legal obligation exists to do so. The court must be cautious that it does not use the legislation to rewrite the will and thereby disregard the testatrix’s motives or reasons in distributing her estate in the manner she has chosen.”

180     In McBride v. McBride Estate, Justice Ballance noted that while equal treatment of independent adult children will generally be considered fair and equitable, equal treatment is not always required in order to make adequate, fair and equitable provision.

181     In this case I am of the view that adequate, just and equitable provision can be made for Gerald and David Gray without dividing the estate equally among the three sons; and an unequal division does provide recognition for the closer bond James Gray had developed with his youngest son as a result of the much different circumstances prevailing when Daryl Gray was growing up in his father’s home.
182     I direct that the residue of the estate be divided one-half to Daryl Gray and one-quarter each to David Gray and Gerald Gray. The one-quarter share of the residue payable to each of Gerald Gray and David Gray shall be in addition to the $10,000 bequest made to each of them in the will.

 

Equity Demands “Clean Hands”

clean hands2Equity  demands  “clean hands”  or it will not be exercised.

Wachter v Carlson 2012 BCSC 1390 is a good example of the horrendous legal predicament elderly couple can find themselves in by entering into well intentioned, but poorly thought out, and not legally prepared, arrangements commonly known as “care for life” situations.

 

They typically involve the wealthier elderly couple moving in with a child and his or her family, often within a self contained suite, and often after putting up most if not all of the funds to purchase the house.

There is often a complete failure to protect their legal interests such as by registering the property on their own names.

These great plans can go very much sideways, and  often do as a result of a matrimonial split, or family dispute of some significance.

 

The Wachter case is one of those situations that occurred and fortunately the court rectified through the application of the application of unjust enrichment, while denying the defendants arguments that the plaintiff’s did not have the “clean hands” maxim demanded of  equity, and returned the home to the parents.

The plaintiffs were the parents of the female defendant and her husband who had entered into an arrangement,  whereby the defendants would arrange mortgage financing for the purchase of a house in the Okanagan, in which the plaintiffs will also live.

The plaintiffs located and bid on the house, confirmed with the defendants that the mortgage financing was in place, put down the down payment, performed an inspection, and paid all closing costs re-its purchase.

The defendants however were named as the purchaser on the contract for the purchase and sale of the property, and title was registered only in their names.

The parties had entered into a rental agreement for 60 months, which was the length of the mortgage.

Under the agreement, the plaintiffs were responsible for rent at the same amount as the mortgage, property taxes all utilities and insurance.

After five years the relationship between the parties broken down and the plaintiffs brought court action claiming ownership of the house.

The court allowed the action and ordered that title to the house be transferred by the defendants to the surviving plaintiff and her deceased’s estate, as tenants in common.

The court based its decision on both the laws of unjust enrichment and resulting trust.

The court found that virtually all of the documents such as the rental agreement, were provided for at the request of the bank so as to be entitled to mortgage financing, and did not accurately reflect the landlord and tenant relationship between the parties.

The correspondence between the parties acknowledge the defendants understanding that the plaintiffs have an equitable interest in the house, and that they would benefit from an increased equity in the house as a result of renovations that the plaintiffs had completed at their own expense.

The court found that title to the house was placed in the defendants names only to enable them to obtain more the mortgage necessary to purchase the house, as the plaintiffs could not obtain mortgage financing giving their poor financial situation.

The plaintiffs had performed all of the tasks, and paid all of the costs related to the home ownership, except securing the mortgage financing.

The court found that it was clear that the agreement between the parties was that the plaintiffs would hold the house as equitable owners, and pursuant to that agreement, the court declared the plaintiffs to in fact be been the beneficial owners of the house.

Furthermore the defendants failed to prove that the plaintiffs had not come to court with clean hands, and were thus precluded from an equitable remedy.

The Wachters plead the applicability of the doctrines of unjust enrichment and resulting trust as the basis upon which title to the Vernon home be transferred to them. The concepts of unjust enrichment and resulting trust are discussed in Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269 (S.C.C.). The determination of whether there has been unjust enrichment requires findings to the following questions:

a) Have the Carlsons, as defendants, been enriched?
b) Have the Wachters, as plaintiffs, suffered a deprivation?
c) Is there no reason in law or justice for the Carlsons’ retention of the benefit conferred by the Wachters?

In Kerr, Cromwell J., writing for the court, states:

[40] The third element of an unjust enrichment claim is that the benefit and corresponding detriment must have occurred without a juristic reason. To put it simply, this means that there is no reason in law or justice for the defendant’s retention of the benefit conferred by the plaintiff, making its retention “unjust” in the circumstances of the case: …

Keeping Your Will Out of Court

1. INTRODUCTION

Probably the best way that a lawyer or Notary can keep his or her Will out of court is to always bear in mind the end use of the product.

The primary goal of a client in executing a Will is to ensure that his or her lifetime accumulated wealth will pass to the estate in accordance with the testator=s directions. For the product to achieve that result requires it to be successfully admitted into probate by an appropriate court.

The professional draftsperson must have a solid grasp of not only the requirements of the Wills Act, but also, an understanding of the myriad of legal issues that can interrupt, or derail, the achievement of a successful Aproduct@ being admitted to probate. In order to be successful in this regard, the draftsperson must be acutely aware of the nature of potential litigation facing the Will and fully appreciate the legal issues that relate to such litigation. It is a huge responsibility, and a vast topic of law. This paper is certainly not an exhaustive examination of everything that can Abite you@ when preparing Wills, but I believe that most of the significant topics have been addressed.

Accordingly, the following topics related to the proper preparation of a Will are discussed in this paper.

2. THE NATURE OF A WILL

The law recognizes two basic ways in which persons may make gratuitous gifts of property:

1. by inter vivos gift and;

2. by testamentary disposition.

A donor makes an inter vivos gift when he or she intends the transfer of interest to be immediate and irrevocable. The gift is perfected during the lifetime of the donor. For a valid inter vivos gift, there must be evidence of a donative intent of the donor to be unconditionally bound by the transfer, coupled with the delivery of either the subject matter of the gift or by some appropriate indicator of title.

A testamentary gift on the other hand occurs when the donor intends to make a gift that is effective only upon the donor’s death, and is revocable until then. The gift is said to be “dependent on death for its vigour and effect.” Any instrument that is entirely dependent for its vigour and effect upon a death will be held to be testamentary.

A true testamentary gift, when properly executed, is a Will. It confers no interest on its beneficiaries, other than hope, until the unrevoked Will takes effect by the testator’s death.

3. ELEMENTS OF A WILL

There are basically four requirements.

A) Intended to Have Disposing Effect

A Will must express the testator’s real donative intention. It will not be a valid Will if the testator merely writes a statement importing information about his or her future intentions regarding his or her Will. Another example is where undue influence has been exerted upon the testator. As the testator is not expressing his or her true intention, the Will should be invalid.

B) Intended Not to Take Effect until After Death and to Be Entirely Dependent on Death for its Operation

If at the time of the execution of the document, the document is legally effective to pass some immediate interest in the property, no matter how slight, the transaction will not be classified as testamentary. If the transaction is not testamentary, the property will not be included as part of the estate and will not be available for creditors. If a document is not executed as a Will, and appears to pass property to other persons on the death of the person who owned the property, the validity of the instrument is likely to be called into question as an attempt to make a Will and evade the consequences of a testamentary act. The fact that a document describes itself as a Will and is executed as a Will does not necessarily make it testamentary. The entire document will be rejected from probate if all of its dispositions are operative before death. However, a part of the document that is testamentary, because it has no operation at all until death, may be severed and admitted to probate.

C) Intended to Be Irrevocable

A Will is revocable even when it is expressed to be irrevocable and even if the testator covenants not to revoke it. Even a statute such as the Wills Variation Act, which allows a court to vary a Will, does not alter the revocable essence of a Will. When a Will is revoked in breach of a contract not to revoke it, the testator or the estate may be liable in damages or subject to some equitable remedy. Where the Will is a mutual Will, the promise not to revoke may give rise to a constructive trust that is irrevocable, in favour of the Will’s beneficiaries. The term “mutual Wills” refers to Wills that dispose of property belonging to two persons, usually a husband and wife, who have agreed to pool their property and to provide, by their Wills, for its disposition according to an agreed scheme. Persons who make mutual Wills usually agree not to alter or revoke them without the other’s consent, and it is out of this agreement not to revoke that a constructive trust may arise. The agreement not to revoke may be incorporated in the Will by recital or otherwise, or it may be established outside of the Will.

D) Executed in Accordance with the Wills Legislation of the Appropriate Jurisdiction. (See Part Two in this article.)

4. FORMALITIES FOR MAKING A VALID WILL

Section 3 of the Wills Act states that a Will must be in writing, but there are no restrictions as to the materials on which, or by which, it may be written, or as to what language may be used. It may be handwritten or typed, but if both a pencil and an ink pen are both used, there is a presumption that the pencil writing was only deliberative and it will be excluded from probate unless the court decides that the testator intended to include it.

Signature by Testator

The signature of the testator must be intended as an act of execution of the Will. The mark of the testator is a sufficient signature whether he can write or not. Another person, in the testator’s presence and by his direction, may sign a testator’s name on behalf of the testator. Section 4 of the Wills Act (excluding military forces while on active service and mariners in the course of a voyage) requires that a Will be signed at its end by the testator or signed in the testator’s name by some other person in the testator’s presence, and by the testator’s direction. The testator must make or acknowledge the signature in the presence of two or more attesting witnesses, all present at the same time, and then the two or more of the attesting witnesses must subscribe the Will in the presence of the testator.

Place of Signature

Section 6 of the Wills Act states that a Will is deemed to be signed at its end if the signature of the testator, made either by the testator or the person signing for the testator, is placed at or after or following or under or beside or opposite to the end of the Will so that it is apparent on the face of the Will that the testator intended to give effect by the signature to the writing signed as his or her Will.

The same section states that a Will is not rendered invalid in any of the following circumstances:

a) the signature does not follow immediately the end of the Will;

b) a blank space intervenes between the concluding words of the Will and the signature;

c) the signature is placed among the words of a testimonium clause or of an attestation clause or follows or is after or under an attestation clause, either with or without a blank space intervening, or follows or is after or under or beside the name of a subscribing witness;

d) the signature is on a side or page or other portion of the paper or papers containing the Will on which no disposing part of the Will is written above the signature; and

e) there appears to be sufficient space to contain the signature on or at the bottom of the side or page or other portion of the same paper on which the Will is written and preceding that on which the signature appears.

Who Can Be a Witness?

The requirement that a witness be present refers to the witness’s mental as well as his or her physical presence. A blind person is not capable of being a witness to a Will. A blind testator may sign with a signature, however, by a mark, or by directing a third person to sign on his or her behalf. In each case, the attestation clause should reflect what has occurred and also confirmation that the Will was read over to the testator prior to execution.

Section 10 of the Wills Act states: “If a person who attested a Will was at the time of its execution or afterward has become incompetent as a witness to prove its execution, the Will is not on that account invalid.

This section does not give effect to a disposition or direction that is underneath the signature or that follows the signature or to a disposition or direction inserted after the signature was made. Any disposition under or following the signature is invalid. See Re Brown Estate (1953) 10 W.W.W. (N.S.) 163.

Section 11 of the Wills Act provides that if a Will is attested by a person to whom or to whose then wife or husband a beneficial devise, bequest or other disposition or appointment, or affecting property, except charges and directions for payment of debt, is thereby given or made, the devise, the bequest or other disposition or appointment is void so far only as it concerns the person so attesting, or the wife or the husband or a person claiming under any of them but the person so attesting is a competent witness to prove the execution of the Will or its validity or invalidity.

Section 12 of the Wills Act provides that a creditor of the testator is a competent witness to prove the execution of the Will or its validity or invalidity.

Section 13 of the Wills Act provides that an executor may be a valid witness to the execution of the Will.

The witnesses need not know that the document is a Will. It is sufficient for the witnesses to see the testator in the act of writing his signature, although they do not see the signature and do not know what he is writing. It does not suffice if a witness, though present in the same room, is not aware that the testator is writing. Similarly if a witness departs before the testator completes his intended signature, this does not suffice. The testator must acknowledge the signature by his words or conduct. An express acknowledgment by the testator is desirable but not essential and no particular form of words is required. It is sufficient that the testator, or someone in his presence and on his behalf, simply request the witnesses to sign the document before them, without telling him that it is his Will.

The attesting witnesses must subscribe with the intention that the subscription made should be an attestation of the Will, and evidence is admissible to show whether such was the intention or not. A signature made without any intention of attesting is excluded from probate, but there is a presumption that a person signing at the end of the Will does so as a witness.

Witnesses need not sign by name; initials or description, or a mark, are sufficient if intended as the signature of the witness. Tracing over a previous signature with a dry pen is not a signature, as the witness must subscribe and not merely acknowledge previous signature. One witness cannot sign for another. Nor can the third persons sign for witness. A witness cannot sign in the name of another person if the witness intends to make it appear that the Will was attested by that other person. However a witness or a third person may guide the hand of a witness while he makes his signature. The mark of the testator will be valid even if the testator requires assistance in making it. See Re White (1948) 1 D.L.R. 572

Attestation Clause

While no form of attestation clause is required, nevertheless an attestation clause is highly desirable because it facilitates the grant of probate. In the absence of the sufficient attestation clause, the court would then require that due execution of the Will be established by affidavit evidence before granting probate in common form. An attestation clause raises a presumption that the Will was duly executed.

The Date

A Will should be dated, but if it is not, or is dated imperfectly, a grant may still be obtained. The court would then require at least one of the witnesses to swear an affidavit stating the date of execution.

Age

The testator must be 19 years or older, unless at the time of making the Will the person is or has been married or is a person as set out in section 5 of the Act, i.e., a member of the armed forces while placed in active service or a mariner at sea or in the course of a voyage. Section 7 of the Wills Act also prevents a person under 19 from making a Will in contemplation of marriage.

Alterations

Any alteration to the Will must be signed by the testator and the witnesses in the margin or near the alteration in the Will or at the end of or opposite to a memorandum referring to the alteration which is contained in the Will. (Section 17)

5. SOLICITOR/NOTARY NEGLIGENCE

The leading causes of claims and complaints against lawyers and Notaries with respect to Wills preparation are as follows.

_ Misuse of precedents

_ Failure to take adequate instructions

_ Insufficient knowledge of the law

_ Insufficient revision and review

_ Failure to apply the “what if” test

_ Too much haste in drafting the Will

I am listing for your review many of the frequent errors made by solicitors in Will drafting cases, that show up in the case law.

A. Failure to take detailed notes

B. Failure to declare that the Will was made in contemplation of marriage

C. Failure to advise marriage revokes a Will

D. Failure to include a residue clause

E. Failure to dispose of the entire residue of the estate

F. Incorrectly drawing a codicil that improperly reflects on the Will

G. Failure to include a specific bequest, such as a residence, contrary to the testator’s instructions, resulting in the gift following into the residue of the estate

H. Failure to properly conduct Land Title searches

I. Failure to sever joint ventures contrary to instructions and provisions of the Will

J. Incorrectly naming charities

K. Failure to promptly carry out testator’s instructions

L. Using words such as “issue”

M. Having a spouse of a beneficiary witness the Will

N. Missing limitation dates, such as the six month date from Letters Probate in the Wills Variation Act

O. Failing to probe the testator’s mind to determine sufficient mental capacity

P. Failure to interview the client in sufficient depth

Q. Failure to ascertain the existence of suspicious circumstances

R. Failure to react properly to the existence of suspicious circumstances

S. Interviewing the testator in the presence of interested party or parties

T. Failing to obtain a mental status examination

U. Using a term in a Will that is ambiguous requiring an interpretation

V. Taking instructions from a person other than the testator and failing to confirm instructions with the testator

W. Failure to provide a discretionary trust for mentally disabled children, or others who receive a form of state welfare

CASE LAW DISCUSSION RE: STANDARD OF CARE FOR SOLICITOR NEGLIGENCE

In the Jacobsen Ford – Mercury Sales Ltd. v. Sivertz 1980 1 W.W.R. 141, it was stated:

“A lawyer is obliged to act as a ‘prudent solicitor’ and must ‘bring to the exercise of his profession a reasonable amount of knowledge, skill and care in connection with the business of his client.’ There is no liability for mere errors in judgment because a solicitor does not undertake not to make mistakes but only not to make negligent mistakes. The determination is said to be a question of degree, and there is a borderline between negligence and no negligence: see Linden Canadian Tort Law 1977 pp. 108 – 109.”

In Marbel Developments Ltd. v. Pirani (January 24, 1994) Vancouver Registry No. C925970, it was held that:

“A solicitor’s duty is determined by the work undertaken rather than by his or her circumstances … the standard is only one of reasonable competence: it is not a standard of perfection Y or of strict liability.”

The court will first look at the nature and extent of the solicitor’s retainer.

The Supreme Court of Canada stated in Central and Eastern Trust Company v. Rafuse (1986) 31 D.L.R. (4th) 481 at 523:

AA solicitor is required to bring reasonable care, skill and knowledge to his performance of the professional service which he has undertaken: see Hett v. Pun Pong 1890, 18 S.C.R. 290 at p. 292.@

The requisite standard of care has been variously referred to as that the reasonably competent solicitor, the ordinary competent solicitor and the ordinary prudent solicitor.

LIABILITY TO DISAPPOINTED BENEFICIARIES

In 1978, Justice Atkins, in Wittingham v. Crease and Company 3 E.T.R. 97, found the lawyer negligent in having a spouse of a beneficiary witness the Will. This in turn caused that bequest to fail, and the solicitor was liable in damages for negligence to the “disappointed beneficiary,” in an amount being the difference between what the beneficiary received on an intestacy and what the beneficiary would have received after a successful application under the Wills Variation Act.

The following year, our Court of Appeal followed Wittingham (supra), and in Tracy v. Atkins 16 B.C.L.R. 223, found that despite the fact that the defendant’s solicitors did not represent the Plaintiff, a lawyer could be liable to an opposing party if he or she placed him or herself in a “sufficient relationship of proximity,” that he or she incurred a duty of care toward the plaintiffs.

Thus, the BC Courts in the late ’70s began to allow recovery on the basis of the Hedley Byrne principle. The principle of that case is that if a person seeks information from a person possessing a special skill and trust, that person to exercise due care, and if that person knew or ought to have known that reliance was being placed on his or her skill and judgment, he or she owes a duty of care to the first person. Further, absent express disclaimer of responsibility, the first person can recover damages for financial loss caused by the negligent misrepresentation, where spoken or written, of the second person.

Again in 1979, the British Court of Appeal in Ross v. Caunters, followed Wittingham and found liability against a lawyer to disappointed beneficiaries, where the lawyers had drafted a Will, forwarded the Will to the testator for execution, but failed to properly ensure that a beneficiary did not witness the Will. A beneficiary in fact did witness the Will and was successful in a claim against the lawyer for damages for the loss of the benefits under the Will.

Probably the current high watermark of solicitor’s liability to disappointed beneficiaries is the House of Lords decision of White v. Jones (1995)1 All E.R. 691.

In that case a testator had a law firm prepare a Will where he disinherited two daughters. He subsequently reconciled with his daughters and wrote a letter on July 17 to his lawyers requesting that they prepare a new Will with a specific gift to each of the two daughters. The law firm never did prepare the Will prior to the testator’s death on September 14. The two daughters brought an action for negligence and recovered their loss from the lawyers.

The majority of the House of Lords held that Hedley Byrne cannot properly give rise to a tortious liability. There is no duty of care other than to the client, and Hedley Byrne ought not to apply in cases of pure economic loss, and there is no “loss in not receiving a gift.” In the result, the House of Lords fashioned a new basis for a remedy based on a concept of “transferred loss,” that is since the deceased cannot take action against the solicitor for breach of the retainer, the right to do so was treated as transferred to the beneficiary.

It would appear that this White v. Jones approach gives rise to the argument that liability to the beneficiary is necessarily limited by the terms of the contract of retainer of the solicitor.

The following excerpt from the decision pretty well sums up this area of law:

“The very purpose of the employment of the solicitor is to carry out the client’s wish to confer a particular testamentary benefit on the intended beneficiary. There is no other purpose. If the solicitor negligently fails to achieve that purpose, justice requires that there should be some remedy available.”

There are now over 20 years of jurisprudence that clearly establish that a solicitor can be liable in negligence to a disappointed beneficiary, who loses his or her inheritance as a result of a lack of due diligence on the lawyer’s part that causes the disappointed beneficiary to not inherit as was contemplated by the testator.

Given the number of Wills that have been prepared over the years, and the ever increasing degree of the duty of care owed by a solicitor to his or her clients and beneficiaries, gives reason to believe that claims by disappointed beneficiaries against solicitors will only increase in the future.

6. SUGGESTIONS TO AVOID POTENTIAL LIABILITY

Take your time. Be cautious. Seriously consider charging your actual time on a Wills file. If your client objects, then educate the client about the amount of time needed to prepare a Will so as to ensure that the client’s lifetime accumulated wealth will pass to his or her chosen heirs.

2. When the Will is ready for execution, read it through a number of different times, each time assuming a different scenario involving contingencies relevant to the Will.

3. Do not be a dabbler. If you do not routinely draw Wills, then consider not doing them at all.

4. Use a checklist when taking instructions. The three Law Society Practice Checklist Manuals are an excellent start, and can be modified to suit you . I always use it when I cross-examine a lawyer or Notary. It usually makes them look incompetent if they have not followed a checklist.

5. Get all the necessary information about your client’s personal circumstances , including special situations such as a disabled child. It is essential to obtain complete information about the client’s estate, including details about the nature in value of each asset, its location, and how it is registered.

6. Review copies of earlier Wills, insurance policies, separation agreements, marriage contracts, or any other documents that may affect the client’s estate.

7. Take the necessary time to satisfy your responsibility to ensure that the client understands what the Will says, what it means, and that the client approves its contents. It is essential to go through the Will clause by clause with the client. The lawyer should attend upon the client to make sure that the Will is properly executed. If this is not possible, the lawyer has a duty to make sure that when the original of the Will is sent out for signature, it is accompanied with a very clear letter of instructions on how to execute the Will. You have a further obligation to subsequently ensure that the Will is in fact executed and is put in safekeeping.

8. It is essential to keep very careful notes of Will’s instructions and all communications with Will’s clients. If there is a mistake or an ambiguity and the drafting, it may be these notes that will determine the construction that the court will put on the Will. Notes are especially crucial if there are any unusual circumstances surrounding the Will. A few examples of this might include elderly or infirm testators, blindness or deafness, poor language skills, deathbed Wills, or testators whose Wills might be subject to challenge all the basis of undue influence or lack of capacity.

9. Utilize good legal assistants, but do not place too much reliance on them. Ultimately you cannot delegate your own responsibility to ensure that the Wills are prepared correctly.

10. Always file a Wills Notice with the Division of Vital Statistics. Although it is not mandatory, you should do so, particularly in light of the development of liability in favour of disappointed beneficiaries.

11. Maintain a Wills index with the name and address of the testator, the filing number of the Will file, the name of the executor, the date of execution of the Will, and the Will’s location.

12. Deliver a final letter to the client confirming the location of the Will, the date that it was signed, and reminding the client to review the Will from time to time. It is also essential to make the client aware that marriage revokes the Will and that divorce may affect the validity of some of the provisions of the Will.

13. Probe the testator’s mind to ensure that there is sufficient mental capacity to prepare a Will. If there is any doubt, a medical opinion should be obtained.

14. Always take instructions in the absence of potential beneficiaries or executors.

15. Record detailed reasons why any person who would be an appropriate object of the testator’s bounty is being omitted from the Will, and then consider the preparation of a detailed memorandum to the Will in conjunction with your notes.

16. Try not do codicils. It is too easy to make a mistake.

17. Do not use the words issue, per stirpes, per capita.

18. If a charity is a beneficiary in a Will, then it is imperative to do two things:

(i) understand the structure of the charity, and obtain the testator’s instructions on which part of the charity her or she wishes to benefit; and

(ii) ensure that the name of the charity is correct. The easiest way of understanding the structure of the charity and finding out its proper name is to telephone the charitable organization and explain your inquiry relates to a gift made by Will, and to speak with a person authorized to give you the information. See also each year’s Canadian Donor=s Guide for assistance.

19. Only sign one original, and make it clear that a copy is, in fact, a copy.

20. Use memorandums to explain why certain beneficiaries are not being provided for, such as in a Wills Variation situation. Set out the reasons in detail, and try to ensure that the reasons set out are factually accurate, and not merely vindictive and mean spirited.

21. Do not under any circumstances attempt to prepare a Will that is Aover your head@ or that you should not be preparing due to restrictions on your practice, i.e., Notaries doing Wills with discretionary trust provisions. AIf in doubt, refer it out@ should be your motto.

22. Try to use percentages, rather than specific amounts.

23. Ensure that the executors have sufficient powers to carry out their job. For example, if the testator has a business, then include powers to operate the business, such as the power to order inventory. Otherwise the trustee may only be able to operate the business much like a receiver, unless appointed special powers by the court, on application.

24. Do not include an RRSP designation clause, or revocation of an RRSP clause in a Will.

7. AMBIGUOUS DESCRIPTIONS: SOME RULES FOR RESOLVING THEM

Wrong Description

The principle of falsa demonstratio non nocet means that if, on considering the language of the Will with the aid of any admissible extrinsic evidence, the court comes to the conclusion that the testator intended to pass something and can determine what that something is, then the fact that the testator gave it a wrong description in his Will, does not prevent the Will taking effect in regard to the subject matter intended by the testator. This principle also applies to a wrong description of a person in a Will. For example in Re Gifford (1944) Ch.186, the testator by her Will made a gift of her war bonds. At the date of her Will, she held no war bonds, as 10 years previously they had been converted into consolidated inscribed stock. The court held that the latter stock passed under the gift.

But this principle has been held inapplicable to property which at the date of the Will the testator did not possess and did not contemplate possessing. Thus in Re Gifford, the court held that savings certificates purchased by the testator after the date of her Will did not pass under the gift of her war bonds.

2. Property Disposed of Before the Date of the Will

If this occurs the courts have three alternatives.

a) The court may decide that some other property possessed by the testator at the date of his Will was meant, and if so, then the latter property passes under the testator as a specific gift pursuant to the falsa demonstratio principle as occurred in Re Gifford.

b) The court may construe the legacy as general or demonstrative, and not specific. In that event, the legacy is provided for the beneficiary out of the testator’s general estate.

c) The court may construe the gift as specific, and decide that the testator possessed no property that fell within the description in the Will, and thus the gift fails.

3. The Testator Thought He Had Property, but Did Not

If the testator makes a specific gift of a thing he thinks he has but never had, or other thing that he intends to purchase, but does not, the gift is void. Where there is nothing answering to any part of the description, a specific gift fails.

4. Inconsistent Clauses

Where inconsistent clauses appear in the same Will, as a last resort, a Arule of thumb@ has been created, and may be applied so as to avoid having both clauses being held void for uncertainty. The rule is that the latter of the two inconsistent provisions prevails. It is a rule of last resort and will be applied only if the Will and the surrounding circumstances provide no means of reconciling the two clauses.

8. PRINCIPLES OF CONSTRUCTION AND INTERPRETATION OF WILLS

In construing a Will, the object of the court is to ascertain to the intention of the testator as expressed in his Will when it is read as a whole in the light of the surrounding circumstances in which it was made. Several of the main principles are discussed below, and while they do not really restrict the court in ascertaining the testator’s meaning, they give the court flexibility in its interpretation. In many instances, they attribute a presumed intention to the testator if the words of the Will have left the intention doubtful and uncertain.

The leading case is perhaps Perrin v. Morgan (1943) A.C.399 where Lord Simon stated:

“The fundamental rule in construing the language of a Will is to put on the words used the meaning which, having regard to the terms of the Will, the testator intended. The question is not, of course, what the testator meant to do when he made his Will, but what the written words he uses mean in the particular case-what are the expressed intentions of the testator.@

a) The Court Cannot Rewrite a Will

The function of a court of construction is to construe the testator’s Will, not to make a new Will for him.

b) The Court Does Not Guess

The court will not speculate upon what the testator may be supposed to have intended to do, and instead will only try to determine what that which the testator has written means. See Abbot v. Middleton (1858) 7 H.L. C. 68.

c) Identical Words Are Presumed to Have the Same Meaning

It is presumed that if a word or phrase is used with a clear meaning in one part of the Will, it is intended to bear the same meaning elsewhere if it is repeated and its meaning there is uncertain.

d) Effect to Be Given to All Words

As a general principle, when interpreting an ambiguous or uncertain clause, the court will strive to give effect to all the words used by the testator, unless to do so would be contrary to the testator’s plainly expressed intentions in some other parts of the Will.

An example of this principle may be found in the Ontario Court of Appeal decision in Re Stark (1969) 2 O.R. 881. In that case, the testator had made a gift to his “nephews” and the court interpreted that word to include nephews of the half-blood. When he made his Will, the testator had only one nephew of the whole- blood and the circumstances were such that it was unlikely that he would have any further nephews of whole-blood. The court concluded that the use of the plural in mentioning the nephews can only have been for the purpose of including nephews of both the full-and half-blood.

e) Presumption that Words to be Given their Ordinary Meaning

Prima facie the words and phrases used in a Will are to be given their ordinary meaning. But often a word used in a Will needs to be considered in its context as part of a phrase or sentence in order to ascertain its ordinary meaning. If the meaning of a word or phrase has changed with the passage of time, it is the ordinary meaning current when the Will was made that is relevant. If a word or phrase has more than one ordinary meaning, i.e., the word “money,” then no presumption will arise that if there is one particular meaning rather than the other, and the court determines the meaning intended by the testator by considering all the provisions of the Will in the light of the surrounding circumstances. In fact, in the decision of Perrin v. Morgan (supra), the House of Lords decided that the word money has several ordinary meetings, and did not have a single strict and primary meaning and in fact, had one or more popular or secondary meetings.

If a word or phrase has only one ordinary meaning and no special meaning, the ordinary meaning rule raises a presumption that the word or phrase bears that ordinary meaning. This presumption may be rebutted in two ways.

(i) The Dictionary Principle

This is another application of the principle that a Will is to be read as a whole. It is called such because the testator applied his own Adictionary.@ If it can be shown that in light of the surrounding circumstances that the testator used that word or phrase in a different sense from its ordinary meaning, then the word or phrase is to be construed in that different sense. The testator is free to use words to meet whatever he wishes, if he makes the sense in which he is using them clear in his Will.

(ii) Secondary Meaning Makes Sense

If the ordinary meaning does not makes sense when a Will is read in the light of the surrounding circumstances in which it was made, and a word or phrase has a secondary meaning that does makes sense, the word or phrase is to be given that secondary meaning. Under this rule the word or phrase must be capable of bearing the secondary meaning to be put on it; the surrounding circumstances cannot make “black” mean “white.

f) Presumption that Technical Words Are to Be Given their Technical Meaning

This rule often applies to any word or expression that has a recognized meaning as a “term of art” used by lawyers and Notaries in drafting. The court then decides whether a word or expression has a technical legal meaning and, if so, what that meaning is. This presumption can also be rebutted by the application of the aforesaid dictionary principle and secondary meaning “makes sense” rules.

g) The Entire Will Is to Be Read In Context

The intention of the testator is to be collected from the Will as a whole, read in its context. Particular words and phrases are not to be read in isolation from the entire context.

h) Presumption Against Intestacy

If a Will is fairly capable of two interpretations, one resulting in some or all of the property being incompletely disposed of and the other completely disposing of all of the testator’s property, it is presumed that the testator intended to dispose of his or her entire estate, and did not intend to die intestate in respect of the whole or any part of the estate. The presumption is especially strong if the testator has purported to dispose of all of his or her property.

The presumption against intestacy is often invoked in the “money” cases where the testator leaves “all the rest of my money” to a named person. Unless the word money is construed to mean “estate” the testator would usually die partially intestate. The courts will often so construe a word to prevent an intestacy.

i) Presumption of Rationality

A testator is entitled to be capricious in the disposition of his or her property and effect will be given to his or her intention so far as the law allows, if it is clearly expressed. It is presumed that the testator did not intend capricious, arbitrary, unjust or irrational consequences to flow from his or her dispositions. This presumption is frequently relied on in finding an error or omission that the court is willing to correct.

j) Presumption of Legality

If a Will is ambiguous and one possible interpretation of the Will appears to offend against the rule of law, while another possible construction that the Will reasonably bears does not, the testator’s intentions will be presumed to accord with the law.

k) Presumption Against Disinheritance

As a general rule, if the words of the Will are ambiguous, the court will prefer a construction that will benefit the testator’s heirs or immediate next of kin over one that favours more distant relatives or nonrelatives.

l) General Versus Particular Intention

If a testator expresses both a general and a particular intention with respect to a certain gift,, and the two are inconsistent, or the particular intention cannot be given effect to because of a rule of law, the court will give effect to the paramount general intention by disregarding, modifying, or restricting the particular intention. A frequent application of this principle that the particular intention yields to the general if the two are inconsistent, arises when the testator first disposes of an apparently absolute gift, followed by a gift over of what remains. If the two provisions cannot be reconciled, the court has then to give such effect to the wishes of the testator as is legally possible, by ascertaining which part of the testamentary intention predominates and by giving effect to it, rejecting the subordinate intention as being repugnant to the dominant intention.

m) Restriction of An Absolute Gift

In plain English, the testator cannot give absolutely, then in the next breath, take away from the absolute gift.

The Supreme Court of Canada in Blackburn v. McCallum (1903) 33 S.C.R. 65 stated at p. 92:

“when property is given absolutely a condition cannot be annexed to the gift inconsistent with its absolute character Y .”

9. THE POWER OF THE COURTS TO RECTIFY A WILL

Mr. Justice Burnyeat, in Brand vs. Adams 1998 CanRepBC 186, reviewed the jurisdiction of the Court to rectify an improperly drawn Will. He concluded that the Court DOES have the jurisdiction to strikeout words inserted by mistake, but that the Court=s jurisdiction DOES NOT extend to the power to add or substitute words in any circumstances. The following passage is cited from that decision.

A The Supreme Court may sit as either a Court of Probate or a Court of Construction. When it sits as a Court of Probate, it has jurisdiction to grant probate. Once probate of a Will has been granted, the Court sits as a Court of Construction and has jurisdiction to interpret the Will.

“In the exercise of the Probate jurisdiction, the Court certifies that the Will is valid and that the personal representative named in the Grant is entitled to administer the Estate. The Court also has a limited power, confined to deleting words, to rectify the wording of a Will to accord with what it determines to have in fact been the testator’s will.

“In the exercise of the construction jurisdiction [as opposed to the Supreme Court sitting as a Court of Probate], the Court interprets or construes the contents of the testamentary documents that have been approved by the Court in the exercise of its probate jurisdiction. The Court of Construction can only interpret the words that validly constitute the Will, as determined by the Court of Probate. If the Will was admitted to probate without any application for rectification, then the words that validly constitute the Will are those contained in the original document. If a rectification application was brought, the words that validly constitute the Will are those that resulted from the court’s rectification prior to the grant of probate. The Court [of Probate] cannot insert missing words and must be satisfied that the Testator did not “know and approve” the use of the words struck out. The equitable doctrine of rectification of written documents does not generally apply to Wills. The courts have construed the Wills Act so that there is no jurisdiction to add words to a Will, and only limited jurisdiction to delete or ignore words. If words have been omitted in error from the Will, and, because the court has no jurisdiction to add words, the Will is admitted into probate without rectification, a construction application can subsequently be brought to determine the meaning of the Will in the form in which probate was granted.

Feeney, The Canadian Law of Wills (2nd Edition), 1982, Vol. I:

“The jurisdiction of the Court of Probate to correct mistakes in a Will is very limited; it is confined “to striking out words inserted by mistake without the approval of the Testator. It does not extend to adding or substituting words in any circumstances. There is simply no jurisdiction to rectify a Will. (At pp.39-40)@

PART EIGHT

CLASS GIFTS

Problems can arise in the interpretation of Wills as to whether or not the testator intended to benefit a class of beneficiaries as opposed to certain named individuals. If a gift to an individual fails, then as a general rule the gift lapses and devolves on an intestacy. If a gift to a member of a group of persons or a class fails, then that gift does not lapse but is shared by the remaining members of the class who survive the testator.

In April 2000, I was counsel on a Will’s interpretation application called Milthorp v. Milthorp. The testator left the residue of the estate to her two natural children and named them, as well as her husband’s four children, and named them. One of the husband’s children predeceased his father, and the question arose as to whether that child’s interest lapsed and went by way of an intestacy, or was it a class gift, and thus went to the surviving children equally. Madam Justice Smith reviewed the law and concluded that it was not a class gift.

The following are some excerpts from that decision that define a class gift.

In Kingsbury v. Walters (1901), A.C. 187, 70 LT Ch 546, Lord MacNaughten

set out the test for class gifts:

“When there is a gift to a number of persons who are united or connected by some common tie, and you can see that the testator was looking to the body as a whole rather than to the members constituting the body as individuals, and also you can see that he intended that if one or more of that body died in his lifetime the survivors should take the gift between them, there is nothing to prevent your giving effect to the wishes of the testator.”

The definition of a class gift in Halsbury, 2nd edition, was cited with approval by the Ontario Supreme Court in Re Brush, [1943] 1 D.L.R. 74 at paragraph 25:

“Prima facie a class gift is a gift to a class of persons included or comprehended under some general description and bearing a certain relation to the testator or another person. Thus, where a testator divides his residue into as many equal shares as he shall have children surviving him, or predeceasing him leaving issue, and gives a share to or in trust for each such child, the gift is to a class.”

At page 365 of Re Brush, the court referred to the decision of Bolton v. Bailey (1879), 26 Gr. 361, in which Proudfoot V.C. quoted with approval Jarman’s definition of a class gift:

“… a gift to a class as a gift of an aggregate sum to a body of persons, uncertain in number at the time of the gift, to be ascertained at a future time, and who are all to take equally, the share of each being dependent for its amount upon the ultimate number of persons.”

Halsbury goes on to say, at pp. 144-5:

“Gifts to persons described only by relationship are sometimes construed as class gifts, and sometimes as gifts to individuals. A gift may be nonetheless a gift to a class because some of the members are referred to by name, or because a person … is excluded by name … . On the other hand, a gift to an individual and the children of another individual is not regarded as a class gift, unless there is something in the context to show that the testator intended to form a class.”

At p. 145 the author of Halsbury states:

“… gifts to several persons designated by name or number or by reference are not class gifts, and are liable to lapse.”

A somewhat similar statement is made in Theobald on Wills, 9th edition., p. 670:

“A gift ‘to the five daughters of A’ or to ‘my nine children,’ or to ‘my said three sisters,’ is not a gift to a class.@

When Does the Class Close?

In Bullock v. Downes (1860) 9 H.L.C.1, it was held that prima facie the next of kin are to be ascertained at the death of the testator, but, that if there is a sufficient indication to that effect in the words of the Will, the time for ascertaining the class may be the time fixed by the Will as the period of distribution.

PART NINE

CONDITIONAL GIFTS

If words are included in a Will that show that a testator intended a gift to be ineffective unless some specific event occurs or some state of affairs continues, then the gift is subject to a condition of which there are two kinds: condition precedent and condition subsequent.

Where the condition must occur for the gift to take effect, then the gift is subject to a condition precedent. If the language shows that the gift is to take effect but terminate on the happening of the condition, then it is a condition subsequent.

It is a question of construction in every case whether a reference to an event indicates a condition upon which the gift depends, or is merely a statement of the testator=s reason for making the gift.

In McKeen Estate v. McKeen Estate (1993) N.B.J. 69, it was held that the crucial distinction is whether the happening of the condition is an event that caused the gift to spring into being, and thus vest, or whether the happening signifies that an existing (already vested) interest is to come to an end.

If a condition precedent is considered to be too vague or too uncertain to be enforceable, then the gift will fail entirely. On the other hand, a vague or uncertain gift will be perfected if the condition subsequent is void.

A condition precedent must be expressed with sufficient clarity for a court to determine that any failure to comply with it should disentitle the beneficiary completely. A distinction should be drawn that it is still possible to postpone an interest to a future time, and that does not constitute a condition precedent. For example, ATo Mr. A, two years after my death@ is not a contingent gift.

An example of a condition precedent can be found in the decision Melnik v. Sawycky (1978) 1 W.W.R. 107, where the testator left all his estate to his niece who was living in the U.S.S.R., AProvided that the said niece come to Canada and make her permanent home in Canada.@

The Saskatchewan Court of Appeal held that the gift was a condition precedent, and that she must come to Canada to live as that was a condition of the acquisition of the gift and not merely a condition (subsequent) of its retention.

Similarly, in Robertson v. Thomas and Roberts (unreported B.C.C.A Victoria Registry VO1078, November 29,1990), the Court determined that a bequest of a house to a beneficiary Aif she wishes to live in it@ was a condition precedent to the beneficiary receiving the gift, and that she must elect to do so before the gift vested to her.

10. REPUGNANT CONDITIONS

Testators sometimes attempt to effect a restraint on enjoyment of a gift by attaching a condition to the gift in an attempt to control the conduct of the donee with regard to it. The law will usually give effect to this, so long as the condition precedent is not impossible to fulfill, is expressed with sufficient clarity, and does not violate a rule of public policy.

Thus it has been upheld that if a testator gives a gift on the condition that the donee ensure that the testator is not put into an old person=s home, and it is proved that the donee allowed the testator to be put into such a home, then the gift failed. Re Archibald (1933) N.L.47.

As previously discussed, a restraint on alienation of a gift absolute will not be allowed. Thus a condition on a gift of real property that it not be sold Aas long as grass grows and water runs@ was found to be void. McEachern v. New Brunswick Housing Corp. (1990) 117 N.B.R. (2d) 14

CONDITION POSTPONING ENJOYMENT BEYOND THE AGE OF MAJORITY (RULE IN SAUNDERS v. VAUTIER)

Feeney, The Canadian Law of Wills (4th edition), states at 16.7 as follows:

A The most usual type of condition that is void as being repugnant to the nature of an absolute gift is a gift of the capital of a fund to a person subject to a condition that the fund is not to be paid to the person until that person attains some age greater that the age of majority. Usually a condition of this kind can only be valid if the income from the fund is given to another person until such time as the beneficiary attains a specified age. Unless there is a gift over of the intermediate income, or the Will so clearly takes the income from the donee that a court will hold that there is an intestacy as to the income until the specified age is reached, the donees are entitled to call for the whole fund, provided only that they are sui juris [they are not under a legal disability to act for themselves].@

In Re Squire, (1962) O.R.863, the Ontario court found as follows.

Facts: A testator left certain real estate to two of his grandsons to be held in trust until they reached the age of 30 years. The trustee was to invest the income for their benefit, and it had a discretion to advance sums for their education.

Held: The properties became vested in the two grandsons and they were entitled to receive them at the age of 21. (The age of majority in Ontario at that time.) A devise had to be interpreted as vesting unless some condition precedent expressed in the bequest prevented the vesting. Testator’s intention in respect of vesting could be inferred from the fact that the two grandsons were entitled to the interim income and there was no gift over if they failed to reach the age of 30 years, the property was separated from the rest of the estate, and they were excluded from sharing in the residue.

11. IMPOSSIBLE CONDITIONS

An impossible condition precedent to fulfill with respect to land, will render the gift void. However, where the gift is one of personalty [moveable property or chattels], even though the condition is clearly a condition precedent, yet impossible to fulfill, then the gift may be allowed to stand.

12. CONDITIONS AGAINST PUBLIC POLICY

There are many conditions that in the interest of the public, or the Crown, that may be said to be against public policy. The conditions may vary over time, but generally speaking, conditions that offend the law, or are an unreasonable restraints on marriage, or a condition that attempts to avoid the Wills Variation Act, or is racially offensive, may be void. Some conditions that were formerly held to be void, may now be allowed, and vice versa. This is simply because of changes of public opinion over time, which the Courts attempt to reflect.

13. CONCLUSION

AA gift is not a kiss in the dark. Unlike the memory of a kiss which fades in time, the giving of a gift has lasting consequences.@

(Per Justice Greer in Schilthuis v. Arnold, (1941) O.J. 2212 at page 2 of 25.)

Much can be done to protect the document, the executor, the beneficiaries, and YOURSELF from litigation. The more knowledge and understanding the draftsperson has, then the more likely it will be that Apreventative@ measures can be taken to increase the probability that a successful estate administration will be achieved without the involvement of litigation. The draftsperson must not only prepare the Will in a manner that properly sets out the intentions of the testator, but also, the preparation must also serve to provide maximum protection to the integrity of the Will should it be attacked, as well as to avoid liability for negligence on the part of the draftsperson.

Mischievous Wills

mischievous willsLooking back on the innumerable wills that disinherited.com has reviewed, it is odd that I can really think of only one that was not so much mischievous, as just a “bad” idea  will.

Nevertheless, the result was that the deceased’s 6 cats and 2 dogs are maintained at great expense by a full time caretaker until  the last to live  ( 20 years for cats), and then to the residual beneficiaries.

We have certainly seen many malicious and vindictive wills, but none that were just outright mischievous.

 

Two well known Mischievous Wills cases are  those of Toronto lawyers Charles Millar and Sam Weir.

 

1. Sam Weir: Sam left a will leaving $3500 to the Law Society in trust to pay the income each year to the student graduating with the lowest marks.

His stated reason was that he knew many lawyers who had become successful by `keeping their lack of knowledge in the dark`.

 

He strongly recommended that the winner spend the money on a night on the town.

 

IF the Law Society accepted the gift, it was sweetened with a $10,000 bequest to be spent on the `Weir Lectures

 

`The Law Society refused the gift on the grounds that it was `not charitable

 

`2. By far the most famous Canadian mischievous will was that of Charles Millar, whose will ended up in exhaustive litigation that kept 30 lawyers, 9 judges and nine mothers embroiled in litigation for years.

 

. The preamble to Millar’s  will read as follows:

This will is necessarily uncommon and capricious because I have no dependants or near relatives and no duty rests upon me to leave any property at my death and what I do leave is proof of my folly in gathering and retaining more than I required in my lifetime.

In one clause of his will Millar gave a share in the Ontario Jockey Club to each of two opponents of gambling and to a competitor of the Jockey Club.

In another clause, he gave one share of the O’Keefe Brewery Company to each protestant minister and to each Orange Lodge in Toronto,

many of whom were firm proponents of temperance.

In another clause of the will, Millar devised his house in Jamaica to three friends who hated each other.

Finally he left the residue “at the expiration often years from my death … to the Mother who has … given birth in Toronto to the greatest number of children”.

The resulting “Baby Derby” contest was won by four Toronto mothers, each of whom had nine children born during the ten year period. The validity of this gift is discussed in the following case.

RE MILLAR (1937), [1938] S.C.R. 1. [1938] 1 D.L.R. 65. 1937 (Supreme Court of Canada)

Charles Millar gave the residue of his estate upon trust to convert and accumulate and to give the capital and accumulated income to the mother or mothers who had, in the 10-year period following his death, given birth in Toronto to the greatest number of children. As noted above, four mothers won the contest, each having had nine children during the period.

Millar’s next of kin contested the will on the ground that it was contrary to public policy.

They were unsuccessful at first instance*© and on appeal to the Ontario Court of Appeal. (3) They then appealed to the Supreme Court of Canada, which also agreed with the Ontario courts on this point and upheld the will.

Some of the children of the several contestants were illegitimate and it was held that the contests only applied to legitimate children.

– See more at: http://www.disinherited.com/blog/mischievous-wills#sthash.sYwlUS8B.dpuf

Court Prefers Lawyers Opinion Over Doctor’s On Mental Capacity

Testimony

 

Moore v Drummond BCSC 1702 is not the first decision where the evidence of the lawyer who  prepared a will  is preferred over that of a family doctor, on the issue of whether or not a deceased  had mental capacity to prepare a will.

One year before her death the testatrix made a new will naming her neighbours as executors and soul beneficiaries, to the exclusion of her son.

The solicitor who drafted her will had no concerns about her testamentary capacity.

Whoever just one week before, the testator’s family Dr. told the Public Guardian and Trustee that the deceased had dementia and was no longer capable of managing her affairs.

After her death the executors brought action to prove the will in solemn form, and the sons brought a counterclaim to find the will invalid.

The court found the will of valid, and specifically found that the testator had the requisite capacity to make a new will.

The executors could not rely upon the presumption of validity because the suspicious circumstances caused by the fact that the doctor had expressed an opinion that the testator was incapable of managing her affairs.

However the doctors opinion was found to by the court to be a general one that commented in abstract on the testator’s ability to manage her affairs.

The solicitor who met with the deceased was more focused on the question of testamentary capacity, and was satisfied on the basis of his interview with her, observations and extensive experience.

The testator was able to accurately tell the solicitor what her property consisted of, and articulate reasons for disinheriting her son and favouring her neighbours.

The court found that the testator’s decision was consistent with the negative attitude previously expressed about her son and long-standing friendship with her neighbours.

The court commented as follows on the law relating to testamentary capacity:

 

The frequently quoted test for testamentary capacity comes from Banks v Goodfellow (1870), 5 QB 549 at 567:

… [The testator] ought to be capable of making his will with an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, of the persons who are the objects of his bounty, and the manner in which it is to be distributed between them. It is not necessary that he should view his will with the eye of a lawyer, and comprehend its provisions in their legal form. It is sufficient if he has such a mind and memory as will enable him to understand the elements of which it is composed, and the disposition of his property in its simple forms.

[34]         In Leger v. Poirier, [1944] SCR 152 at 161, the Supreme Court of Canada used the term “disposing mind and memory”, which it defined as “one able to comprehend, of its own initiative and volition, the essential elements of will-making, property, objects, just claims to consideration, revocation of existing dispositions, and the like …”

[35]         A more recent formulation of the test is found in Re Schwartz, [1970] 2 OR 61  at 78 (CA), aff’d [1972] SCR 150where Laskin J.A. (dissenting on other grounds) summarized the elements of testamentary capacity:

… The testator must be sufficiently clear in his understanding and memory to know, on his own, and in a general way (1) the nature and extent of his property, (2) the persons who are the natural objects of his bounty and (3) the testamentary provisions he is making; and he must, moreover, be capable of (4) appreciating these factors in relation to each other, and (5) forming an orderly desire as to the disposition of his property….

[36]         This does not mean the testator must have perfect mental capacity for all purposes or be able to remember all details. Diminished capacity does not equate to lack of capacity and a person who has been deemed incapable of managing his or her own affairs may still be able to make a valid will: Royal Trust Co v Rampone, [1974] 4 WWR 735 at 743 (BCSC).

[37]          In Banks the court said at 566:

In these cases it is admitted on all hands that though the mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act, in its different bearings, the power to make a will remains.

And at 567:

… his capacity may be perfect to dispose of his property by will, and yet very inadequate to the management of other business, as, for instance, to make contracts for the purchase or sale of property. For, most men, at different periods of their lives, have meditated upon the subject of the disposition of their property by will, and when called upon to have their intentions committed to writing, they find much less difficulty in declaring their intentions than they would in comprehending business in some measure new.

[38]         The existence of testamentary capacity does not depend on scientific or medical definitions and medical opinions are not necessarily determinative: Field v James, 2001 BCCA 267 at para 77; Baker Estate v Myhre (1995), 168 AR 248 at para 39.

[39]         The party seeking to prove a will must show that it is in fact the will of a “free and capable testator,” but there is a presumption in favour of validity where the will has been duly executed, with the requisite formalities, after having been read by or to a testator who appeared to understand it. That presumption may be rebutted by evidence of suspicious circumstances, in which case the burden reverts to the propounder to prove validity on the balance of probabilities. The suspicious circumstances that may rebut the presumption may relate to the preparation of the will, the capacity of the testator, or a suggestion of coercion or fraud: Vout v Hay, [1995] 2 SCR 876. The court in Vout added at paragraph 25:

Since the suspicious circumstances may relate to various issues, in order to properly assess what effect the obligation to dispel the suspicion has on the burden of proof, it is appropriate to ask the question “suspicion of what?”

[40]         The “suspicious circumstances” must do more than create “a general miasma of suspicion”; they must create “a specific and focussed suspicion that the testator may not have known and approved of the contents of the will”: Clark v Nash (1989), 61 DLR (4th) 409 at 425 (BCCA).

The Presumption of Due Execution In Wills

Due Execution In Wills

Yen Estate v Yen- Zimmerman   aka Hsia v Yen- Zimmerman, 2012 BCSC 1620 contains a long analysis of the law relating to the requirements for execution of the will, and focusing on the presumption of due  execution of the will when him him him him him the attesting witnesses who appear to have properly executed the will are no longer able to testify at court in support of the proof in solemn form application to prove the validity of the will.

The deceased daughter was murdered in 1972 leaving behind her two children.

The deceased made a will the following year and divided his estate equally between three surviving daughters and made no provision for the two grandchildren.

The executrix brought a court action to prove the deceased’s 1973 will in solemn form and to have it admitted into probate, and the court allowed same.

The court found that there were three signatures on the last page of the will purporting to be those of the deceased and two witnesses. Accordingly the will was signed in the manner required by section 4 of the wills act.

The problem arose that the signatures of one witness and the deceased were proven, while the second signature had not been proven and the signer’s identity was unknown.

The court applied the common law presumptions of due execution and found that in signing the impugned document, the deceased intended to make his last will as he signed the documents filed last will and testament in the presence of a lawyer.

It was open to the court to draw the inference that the second signor signed as a witness and did so in the presence of a lawyer and the deceased.

The court quoted the following extensive review of the law in this area:

Section 4 of the Wills Act sets out the requirements for execution of a will. It provides in part that:

4  Subject to section 5, a will is not valid unless

  1. at its end it is signed by the testator…,
  2. the testator makes or acknowledges the signature in the presence of 2 or more attesting witnesses present at the same time, and
  3. 2 or more of the attesting witnesses subscribe the will in the presence of the testator.

 

23.  The common-law principles applicable in these circumstances were summarized and explained in, among other cases, Re Laxer, [1963] 1 O.R. 343; [1963] O.J. No. 659 (CA). In that case, Schroeder J.A. began his analysis by noting at para. 25 (cited to [1963] O.J. N. 659) that:

The Courts have shown a decided tendency to lean towards an effectuation of the expressed wishes of persons if satisfied that they really are their testamentary wishes, and when a testamentary document appears to be regular on its face and apparently duly executed, the evidence as to some defect in execution must be clear, positive and reliable [citations omitted].

At paragraph 27, he wrote that “[i]t is well settled that if a will on the face of it appears to be duly executed the presumption is that all acts have been done rightly”. This presumption is a particular instance of the more general presumption or inference that Lindley L.J. explained in Harris v. Knight (1890), LR. 15 P.D.170 (C.A.), where at pp. 179-180 he wrote:

…The maxim, “Omnia praesumuntur rite esse acta” is an expression, in a short form, of a reasonable probability, and of the propriety in point of law of acting on such probability. The maxim expresses an inference which may reasonably be drawn when an intention to do some formal act is established; when the evidence is consistent with that intention having been carried into effect in a proper way; but when the actual observance of all due formalities can only be inferred as a matter of probability. The maxim is not wanted where such observance is proved, nor has it any place where such observance is disproved. The maxim only comes into operation where there is no proof one way or the other; but where it is more probable that what was intended to be done was done as it ought to have been done to render it valid; rather than that it was done in some other manner which would defeat the intention proved to exist, and would render what is proved to have been done of no effect…

It is a presumption or inference that is “stronger or weaker according to any material facts connected with the case” (Laxer at para. 32). The underlying purpose of the presumption, in the context of proving due execution of a testamentary instrument, was explained by Schroeder J.A. at para. 33:

The authorities supporting the application of the presumption favouring due execution of a testamentary instrument lay down a very sound and salutary principle, since a contrary rule would make the rights of devisees and legatees depend not only upon the honesty, but also upon the frail and slippery memory of witnesses. No man could be sure of dying testate, since the dishonesty or forgetfulness of a witness could frustrate all his precautions to comply with the requirements of the law.

 

]      Evidence of some defect in execution must be cleat, positive and reliable, where a testamentary document appears to have been properly executed. The maxim Omnia praesumuntur rite esse acta applies and all things are presumed to have been rightly and duly performed: Re Laxer…

He also cited with approval the decision of Dalziel v. Bradford, [1985] B.C.J. No. 2754 (S.C.), where McEachern C.J.S.C. (as he then was) wrote at para. 41:

[41]      Re Laxer, supra, particularly lays down the principle at p. 206 that apparent due execution is sufficient to cause the Court to presume that everything was done right. That authority also explains that the presumption of due execution is a salutary principle since a contrary rule would make the right of beneficiaries depend as much upon the honesty and reliability of witnesses as upon the language of the testamentary instrument. In addition, for some obscure reason, an attestation clause is said to be a significant factor supporting this presumption, and there is such a clause in this codicil.

Thus, in the absence of any credible evidence by the witnesses to the will, indeed \n the face of their evidence to the contrary, the court in Beniston Estate held the will was properly executed relying on the presumptions in Laxer.

[31]     In Beaudoin Estate v. Taylor, [1999] B.C.J. No. 770 (S.C.), the witnesses to a will testified that the deceased did not sign the will in their presence. Further, they could not recall if, when they signed the will, the deceased’s signature was on the document. The issue was whether the deceased had acknowledged his signature in the presence of the witnesses. At para. 11 Bumyeat J. wrote:

[11]      …Where there is a regular attestation clause, it can be presumed that the will was duly witnessed by a person who knew the requirements of the Wills Act. The court will not assume that a person has signed his or her name to the attestation knowing it to be untrue…

He then applied that presumption in the context of the other evidence and found that the will had been properly executed.

[32]     Six years later in Jung, Re Estate of Horace Lee, 2005 BCSC 1537, Burnyeat J. was faced with a somewhat different issue. He was asked to find that a will had been proven in solemn form. The witnesses to the will gave evidence that it was signed in accordance with the requirements of the Wills Act. The difficulty was that the deceased had signed in the midst of the attestation clause as opposed to where he should have signed. Burnyeat J. referred to Laxer and specifically adopted the following statement from para. 32 of that judgment:

[32]      Where the circumstances point to the fact that a testator intended a document to be his will and thought that he was complying with the statutory requirements as to execution the Court will presume that everything was right, so that where there is any doubt about the recollection of the attesting witnesses, or where for any reason it cannot be relied upon, and where upon the evidence viewed in its entirety it can fairly be  

concluded that the will ought to be held good, the Court may say that it is satisfied that the will was duly and properly executed.

Jung was appealed and Burnyeat J.’s decision was overturned but not on this point. When the matter came back for a second trial, Silverman J. relied on Laxer (2007 BCSC 1740). At paragraph 46, he cited it as support for the following proposition:

When probating wills, the court proceeds on the presumption that the will was properly executed, if it appears to be properly executed when it is presented to the court. This is a rebuttable presumption that may be defeated if, after considering all the evidence and relevant circumstances, it is probable that all the formalities of execution were not met. The presumption of valid execution can be stronger or weaker depending on any material facts connected with the case…

[33]    The defendants point out that Vout v. Hay is not mentioned in any of these cases, and they argue that, as a result, they are of no particular assistance. Rather than conclude that Vout v. Hay was simply overlooked by all involved in these cases, I think it more likely that it is not referred to because it is not helpful in deciding questions of due execution.

[34]    Finally, the underlying rationale for the presumptions remains as compelling now as it was 50 years ago when Laxer was decided or 100 years ago when Harris v. Knight was handed down.

[35]    In conclusion, I am satisfied that the presumptions or inferences summarized and explained in Laxer, and the cases cited therein, remain available in resolving issues of due attestation and proving knowledge of the content of testamentary instruments.

[36]    I turn now to the facts and the application of the law to those facts. As Lindley L.J. pointed out in Harris, the maxim omnia praesumuntur rite esse acta “expresses an inference which may reasonably be drawn when an intention to do some formal act is established; when the evidence is consistent with that intention having been carried into effect in a proper way; but when the actual observance of all due formalities can only be inferred as a matter of probability”. I am satisfied that the deceased, in signing the impugned document, intended to do a formal act, namely, make his last will. The evidence that supports that inference is that he signed a document styled “Last Will and Testament” and that he did so in the presence of a lawyer who, in all likelihood, drew the document.

[37]    There is a second presumption which may be a particular or specific instance of the more general maxim embodied in the Latin expression set out above. It arises from the presence of the attestation clause. It was explained in Wright v. Sanderson (1884), 9 P.D. 149:

…If the attesting witnesses were both dead, then, on proof of their handwriting, the codicil would, if there was no other evidence, be admitted to probate, not only the presumption omnia rite esse acta, but in consequence of the presumption that what was stated, in the

Court Finds Will Valid -Testator Not Delusional

Delusional 2Hsia v Yen-Zimmerman 2012 BCSC 1620 raised the allegation that the will of the deceased was invalid due to his lack of capacity caused by a delusion arising out of the murder of his daughter in 1972.

 

His will made in 1973 left everything to his surviving three daughters and did not provide for the two children of the murdered daughter.

The defendants unsuccessfully argued that the deceased lacked testamentary capacity at the time he signed the will by reason of suffering from insane delusion that in order to erase pain of the murder of his daughter, he had to abandon his relationship with her two children, to the extent of excluding them from his will.

The court dismissed this argument and admitted the will into probate finding that the deceased was a rational and functioning member of society in 1973, that there were no suspicious circumstances of the kind necessary to displace the presumption of testamentary capacity.

His reaction to his daughter’s death was not suggestive of an insane delusion or pathological denial of her death, but was simply an expression of his personal grief.

Moreover his relationship with the grandchildren did not cease abruptly, but instead diminished over time to the point where it was almost nonexistent, which may partly be by reason caused by  her surviving husband remarrying  very shortly after her death.

Moreover, the deceased surviving three children had a greater material needs then the two grandchildren did at that time.

 

The Courts comments re capacity are as follows:

 

 

” as the propounder of the will has the burden of proving testamentary capacity. The test for testamentary capacity has been variously expressed. A comprehensive and frequently cited explanation of what it entails is that of Laskin J.A. (as he then was) in Schwartz (Re), [1970] 2 O.R. 61 (C.A.) at p. 79, where he wrote:

…The testator must be sufficiently clear in his understanding and memory to know, on his own, and in a general way (1) the nature and extent of his property, (2) the persons who are the natural objects of his bounty and (3) the testamentary provisions he is making; and he must, moreover, be capable of (4) appreciating these factors in relation to each other, and (5) forming an orderly desire as to the disposition of his property…

[43]    In proving testamentary capacity, the propounder has the benefit of a rebuttable presumption. Sopinka J. held at para. 26 of Vout v. Hay.

[26]     .. .Although the propounder of the will has the legal burden with respect to… testamentary capacity, the propounder is aided by a rebuttable presumption. Upon proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity.

[44]    I have concluded that the will of Mr. Yen was “duly executed with the requisite formalities” and inferred that he knew and approved of its contents. Subject to the question of “suspicious circumstances”, it is presumed that he had the necessary testamentary capacity.

[45]    The presumption of testamentary capacity is a rebuttable, and as Rothstein J. pointed out in Pecore v. Pecore, 2007 SCC 17 at para. 22:

[22]      … rebuttable presumption of law is a legal assumption that a court will make if insufficient evidence is adduced to displace the presumption. The presumption shifts the burden of persuasion to the opposing party who must rebut the presumption…

[46]    To rebut this presumption the defendants must establish suspicious circumstances that tend to call into question the capacity of the testator. As Sopinka J. put it in Vout v. Hay at para. 27, the force of the presumption will be spent, or the burden it imposes will be met, by those attacking the will:

…adducing or pointing to some evidence which, if accepted, would tend to negative… testamentary capacity. In this event, the legal burden reverts to the propounder.

[47]    Thus, the issue is whether there is some evidence which, if accepted, tends to call into question the capacity of Mr. Yen to make a will valid.

 

[48]    The defendants have pleaded that:

  1. The mother of these Defendants, who was the daughter of the Deceased, was murdered in August 1972. This caused mental pain and anguish to the deceased.
  2. These Defendants say that the Deceased suffered from an insane delusion that in order to erase the pain and anguish from his mind of the murder of his daughter, he had to abandon his relationship with the children of his murdered daughter, which abandonment included their exclusion from his Will.

[49]    The defendants correctly state that the first issue that arises in these circumstances is whether the evidence is such that it should “excite the suspicion of the court” to the degree necessary to spend the persuasive force of the presumption and cause the onus of proving capacity to revert to the plaintiff. The second issue is, assuming the presumption is rebutted, whether the evidence establishes on a balance of probabilities that the testator had the necessary capacity.

[50]    The notion of an “insane delusion” was considered by Cockburn C.J. in Banks v. Goodfellow. It has remained a part of the law of testamentary capacity since. According to Feeney’s Canadian Law of Wills, 4th ed., “a delusion is a belief in a state of facts which no rational person would believe” (at para. 2.9). In Banton v. Banton (1998), 164 D.L.R. (4th) 176 (OntC.J.), Cullity J. adopted the following definition of “insane delusion” at para. 32:

[32]      …”A delusion is insanity where one persistently believes supposed facts (which have no real existence except in his perverted imagination) against all evidence and probability and conducts himself however logically upon the assumption of their existence.”

[51]    Not any insane delusion will be sufficient to support a finding of lack of testamentary capacity. The delusion must bear some rational connection to the bequests in the will.

Who Gets What When You Die Without a Will

Die Without a Will?

My late mother was convinced that if you die without a will, it all goes to the government.

I don’t know where that notion came from, but she wasn’t the only person who believed that.

If a person dies without a will, their estate is distributed in accordance with British Columbia’s “intestacy” laws. A person who wishes to administer the estate must apply to a Court in British Columbia to obtain a “Grant of Letters of Administration.”

The provisions of the Estate Administration act provide for such occurrences, and the current formula ( about to change later this year at an unknown date) is as follows:

If you die without a will Intestacy laws prescribe that the estate will be distributed as follows, in the listed priority:

  1. If there are no children and a spouse, the estate goes to the spouse.
  2. If there is no spouse and only children, the estate is divided equally among the children. If a child predeceases the parent, but leaves children (for example, grandchildren of the deceased person), then the grandchildren inherit their parents’ share of the estate.
  3. If there is a spouse and children, the spouse is entitled to:
    (a) the first $65,000
    (b) a life estate in the home
    (c) household contents
    (d) half of the residue if there is one child, or 1/3 of the residue if there is more than one child.
    The remainder is divided equally among the children.
  4. If there is no spouse or children, the estate goes to the parent(s).
  5. If there is no spouse, children or parents, then the estate is divided between brothers and sisters. If a brother or sister predeceases but leaves children (the nieces and nephews), then the nieces and nephews inherit their parents’ share of the estate.
  6. Alternatively, the estate is divided between nieces and nephews.
  7. Alternatively, the estate is divided between the next of kin of equal degree of blood relation

– See more at: http://www.disinherited.com/blog/who-gets-what-when-you-die-without-will#sthash.Ipuiz1ff.dpuf

Lawyers Limited From Benefiting From Client’s Will

Lawyers Limited From Benefiting From Client's Will

Lawyers in BC are now limited in various aspects of receiving any benefits from a will his or her office prepared.

As of January 1, 2013 the Law Society Rules of BC now provide: Chapter 3 – Relationship to Clients | The Law Society of British Columbia

TESTAMENTARY INSTRUMENTS AND GIFTS

3.4-37 A lawyer must not include in a client’s will a clause directing the executor to retain the lawyer’s services in the administration of the client’s estate.

3.4-38 Unless the client is a family member of the lawyer or the lawyer’s partner or associate, a lawyer must not prepare or cause to be prepared an instrument giving the lawyer or an associate a gift or benefit from the client, including a testamentary gift.

3.4 39 A lawyer must not accept a gift that is more than nominal from a client unless the client has received independent legal advice.”

Charitable Intent Found In Impractical Trust, Cy-Pres Doctrine Applied

Bentley v Anglican Synod of the Diocese of New Westminster 2009 BCSC 1608 is indicative of the type of litigation that can ensue between various charities that are or had previously been closely aligned.

Several churches in recent years have undergone bitter disputes amongst its congregation to do with issues such as same-sex marriage.

The elderly testatrix bequeathed property in Hong Kong worth approximately $2.2 million to “the building fund of the Church of the Good Shepherd”, which was her home church.

However due to the decision of the Bishop to authorize the right for blessing of same-sex relationships, several congregations left the diocese, including the named church.

The plaintiffs brought an application for an order for a cy-pres scheme for the proceeds from disposition of the property, and succeeded.

The court found that the bequest was to the parish, not the congregation.

The incorporating declaration of the parish stated that it was “Chinese community in Greater Vancouver Regional District”

The court found that the testatrix intended the proceeds to be applied to build the needs of the parish serving the Chinese community.

However all the churches with substantial Chinese congregations had left the diocese and affiliated with the Anglican Network in Canada.

Accordingly the court found that it would be unlikely there would be a need in the diocese for new building for the Chinese community.

Accordingly the court ordered a scheme for the funds to be held for the building needs of the Anglican Network in Canada congregation that best fulfilled the testatrix charitable intent.

The decision contained a good deal of discussion on the doctrine of cy-pres:

 

” The approach to determining a testator’s intention was recently set out in Re Johnston Estate, 2008 BCSC 1185 at para. 18, 42 E.T.R. (3d) 286:

When attempting to glean a testator’s intentions in the context of a possible charitable bequest, the law has taken a broad approach with a view to finding such an intention where the evidence supports it.  It is not a matter of asking what a reasonable person in the place of the testator would have meant, but rather attempting to discern what the specific testator meant when he or she made the bequest. The Will itself is the primary source of that intention, but it is not the only source. Regard may be had to the surrounding circumstances, and that is so whether on its face the Wll is ambiguous or not.

Cy- pres is a remedy used to save an existing trust that is otherwise impossible or impracticable to perform. Donovan W.M. Waters, ed., Waters’ Law of Trusts in Canada, 3rd ed. (Toronto: Thomson Carswell, 2005) at 773 describes the cy-pres doctrine in these terms:

It sometimes happens that when the donor’s instrument of gift takes effect, the charitable object or the required mode of achieving the object cannot be carried out. The court will then by order approve a scheme, or require a scheme to be drawn up, for the trust property to be applied to an object or mode of achieving the object which is as close as possible to that set out by the donor.  For the court to have this jurisdiction two things must be established; first, that it is impossible to carry out the object or mode of attainment, or, if it is indeed possible, that to carry out the object or mode would in the circumstances be impracticable. Second, it must be shown that the donor in making the gift had a general or overriding charitable intent. If both tests are satisfied, then the court as part of its inherent jurisdiction will, in its discretion, make the appropriate order for a cy­pres scheme.

[323]  A number of prerequisites to cy-pres jurisdiction can be drawn from the foregoing:

(1) the donor must have transferred property in trust for a particular charitable purpose or object;

(2) it must be impossible or impracticable to administer the trust according to that purpose or object; and

(3) the donor must have demonstrated a general or overriding charitable intent. Where these conditions are met, the court then has jurisdiction to order a scheme for the trust property that is as close as possible to that intended by the donor.

[324] An example of a case involving religious property in which the cy-pres doctrine was invoked is Parish of Christ Church v. Canada Permanent Trust Co. A testator left part of his estate in trust for a parish corporation. The trust income was permitted to be used for church repairs but the capital was only to be used for the purpose of constructing a new church, whenever that might occur. Parish members applied to vary the terms of the trust on the basis of the cy-pres doctrine. They argued that the existing historical building required extensive repairs and renovations, and they sought to be permitted to direct the funds to that purpose. They additionally submitted that even if the church were accidentally destroyed some time in the future, insurance proceeds would cover the cost of rebuilding.

[325]  Rogers J. held that the arguments advanced by the plaintiffs did not justify application of the cy-pres doctrine. He observed that though laudable, the plaintiffs’ present desire to preserve the old church did not bind future church officials who might hold a different view of the matter. He also considered irrelevant the fact that the church was adequately insured, as it could not be assumed that the policy would always be in force or cover every contingency. Ultimately, Rogers J. wrote, the Court had to concern itself with the wishes of the testator as to the disposition of the property, not the wishes of others; the testator’s intention in that case was clear.

[326]  In Re Lysaght, [1966] 1 Ch. 191 (Chancery Div.), is another example of the doctrine being invoked. The testatrix had bequeathed funds to the Royal College of Surgeons for scholarship purposes. A recipient had to be “of the male sex and the son of a duly qualified British born medical man … and any such student must be a British born subject and not of the Jewish or Roman Catholic faith”.   The Royal College declined to accept the bequest on those terms, stating that the exclusion of students of the Jewish and Roman Catholic faiths was “so invidious and so alien to the spirit of the college’s work as to make the gift inoperable in that form.” (It did not appear to object to the other restrictions.) The College was willing to accept the gift with that provision deleted.

[327] The Court held that the paramount intention of the testatrix was that the College be the trustee of an endowment fund. If the provision requiring religious discrimination was insisted upon, the College would disclaim the trust and thus defeat the testatrix’s paramount intention entirely. Performance of the trust was therefore impracticable. The Court ultimately ordered that the trust as set out in the will be amended by omitting the words “and not of the Jewish or Roman Catholic faith”. As the Court wrote at 207, “[t]he impracticability of giving effect to some ineffectual part of the testatrix’s intention cannot, in my judgment, be allowed to defeat her