Co-Executor Trustee Removed for Lack of Co-operation

Co-Executor Trustee Removed for Lack of Co-operation

Levi- Bandel v Talesiesin Estate 2011 CarswellBC 384 is a good example of what disinherited.com perceives as an increased willingness by the courts to remove obstructive and uncooperative executors and trustees in the interests of the beneficiaries.

The deceased estate was managed by 2 co-executrixes who were also the co trustees.

The deceased made a bequest to pay $25,000 to one of the trustees for the care of the deceased’s 2 cats, with any residue of the sum going to an animal organization.

The petitioner who was a trustee but not a beneficiary, brought this application to have the co trustee removed as an estate manager, to have her pass accounts, for a declaration that she was not entitled to remuneration, as well as special costs.

All of that relief was granted by the court.

The co trustee had taken the cats to live with her, and the petitioner successfully argued that any expenses for the care of the cats had to be approved by the estate.

The court found it had jurisdiction to remove a trustee, and determined that the welfare of the beneficiaries was the major factor in possible removal.

The co trustees’ failure to act prevented the estate from being properly administered, so the co executor was removed.

It was not necessary to appoint a new trustee in place of the removed trustee.

Six Year Limitation For Debt

Six Year Limitation For Debt Starts With the Acknowledgement Six Year limitationof the Debt

In Gabriel Estate v Ward 2011 Carswell BC 1042, the court dealt with the issue as to when the statutory limitation of 6 years for the collection of a debt commenced to run. The plaintiffs B and R were the executors of the deceased’s estate. The plaintiff G was the former husband of the deceased. All of the plaintiffs claimed that the former husband and the deceased loaned the defendant W sums of money in 1991 and 1994, and that the deceased loaned the defendant further monies in 1999. W paid part of the loans in 2000 and 2001. W claimed that the obligation to pay the other monies was statute barred as a result of being outside of the six-year limitation. The plaintiff brought an action for repayment of the loan and the action was allowed. The court held that the time ran under the six-year limitation starting when the debtor properly acknowledged the debt. Despite prior vague statements. W’s proper acknowledgment was only found in a 2007 e-mail setting out amounts owing. The plaintiffs were allowed to collect on all but one loan that was made, as the remaining loans were within the limitation. In the experience of disinherited.com, executors of estates are often faced with rather vague documents that seem to evidence loans made to various individuals, who invariably tend to forget to repay the funds after death.

Foreign Will Mistakenly Revoked Canadian Will Creating Intestacy

The August 2011 decision of the Ontario Court of Appeal in Robinson’s Estate v Robinson is a good example of the pitfalls that may inadvertently occur when a testator has wills prepared in different jurisdictions.

It is becoming increasingly common for the general public to own assets in two or more countries.

It is also generally advisable to have a will pertaining to assets owned in each jurisdiction.

Thus this recommended practice may mean that a person may end up with perhaps two, or three wills.

The danger that can occur is that one subsequent will might inadvertently revoke a previous foreign will.

This is exactly what happened in the Robinson case.

The testator executed two separate wills, one to deal with property held in her native Spain, and one to deal with her Canadian property.

The 1st will clearly indicated that another will existed dealing with Canadian property.

The lawyer who drafted the Canadian will and the later revision, did not ask about other wills or location of assets.

The Canadian will accordingly contained the standard revocation clause revoking all previous wills.

The lawyer and estate administrator only found out about the European will after the testator’s death, and after some assets had been distributed.

An application was made to the court to rectify the will.

It was refused on the basis that the intention of the testator was set out in the will, and the testator was only mistaken as to the legal effect.

That decision was appealed and the appeal was dismissed.

Affidavit evidence tendered by beneficiaries and the estate trustee as to the testator’s intention was not admissible.

The court could not find that the testator did not intended to revoke his European will.

The court held that the claims of the estate trustee and beneficiary were based on the premise that the court could make findings of intention on the part of the testator.

Since the will was unequivocal, there could be no exception to show that the intention of the testator should not have been honoured.

Harsh as the decision might seem, disinherited.com is of the opinion that it is correct.

It would appear that the appropriate remedy is to sue the lawyer for negligence, for failing to adequately canvass with his client as to other wills and other foreign assets, and drafting the will accordingly so as to not revoke the other wills.

$20 Million Lottery Jackpot Claim Dismissed Under Trust Law

$20 Million Lottery Jackpot Dismissed due to trust law.Lottery

It is not uncommon to hear about litigation claiming entitlement to share in lottery jackpots arising out of former friends or co- employees.

Invariably the claim is that for quite a long period of time, often years, a group of friends or co-workers contributed money to a lottery scheme with an intention to share the winningsContinue reading

The Importance of Credibility

The truth is out thereThe Importance of Credibility

Credibility is simply that quality in a witness which renders his or her evidence worthy of belief.

One of the most important jobs that I judge has is which witness’s testimony is to believed, and which testimony is to be discounted.

When there is conflicting testimony, as there almost always is in estate litigation, the judge must assess each witnesses credibility in order to make findings of fact.

Some of the general guidelines that the courts follow with respect and credibility are as follows:

1 The Supreme Court of Canada in Goodman Estate the Geffen 2 SCR 353 (1991) held that findings of fact made at trial based on credibility of witnesses are not to be reversed on appeal unless the trial judge made some palpable and overriding error which affected his assessment of the facts. Even where a finding of fact is not contingent upon credibility, the appellate court should maintain a non-interventionist approach to a review of trial court findings. In all cases, appellate review should be limited to those instances where a manifest error has been made;

2. In FH v MCDougall 2008 SCC 53 the Supreme Court of Canada further stated that “provided the judge has not ignored the evidence, finding the evidence of one party credible may well be conclusive of the results because that evidence is inconsistent with that of the other party. In such cases, leaving one party will mean explicitly or implicitly that the other party was not believed on the important issue in the case.” ;

3. Faryna v Chorny (1952) 2 DLR 354 is perhaps the most frequently cited case of the subject of credibility assessment. At 357 it was stated that:

“the credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth.

The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions.

In short, the real test of the truth the story of a witness in such a case must be its harmony with the preponderance of the probabilities which are practical and informed person would readily recognize as reasonable in that place and in those conditions.”

4. in Unique Tool and Gauge Inc v Impact Tool (2002) OJ 681 at para 21 it stated:

” the witnesses ability and opportunity to observe;

his appearance and manner while testifying;

his power of recollection;

any interest, bias or prejudice you may have;

any inconsistencies in his testimony and, the reasonableness of his testimony when considered in the light of its harmony with the preponderance of the probabilities that the evidence was credible, believable and reliable.

5. In R v RWB (1993) BCSC 192 held that another very important factor in assessing credibility is the parties interests.

Whether a witness has a motive to lie is one factor which may be considered in assessing the credibility of witness, but it is not the only factor to be considered. It is essential that the credibility and reliability of the complainants evidence be tested in the light of all of the other evidence presented.

Lost Wills and the Presumption of Revocation

lostLost Wills and the Presumption of Revocation

An update to this article is that since the introduction of WESA on April 1, 2014, I anticipate that the courts will be more willing to allow copies of wills as proof of the testator’s intention to more easily admissible into probate

Often when a person dies, his or her original will cannot be found and will never be found.

Frequently years have passed between between the date the will was signed and the testator’s death.

In many circumstances a true copy of the will be accepted for probate in the place of the original will.

However, if the will was last known to be in the custody of the testator, and is not found after the death of the testator, then the presumption is that the testator destroyed the will with the intention of revoking it.

The presumption of revocation may be rebutted by evidence such as the following:

A. The character of the testator;

B. The existence of codicils;

C. Statements made to beneficiaries with respect to provisions made for them; and

D. Words and actions of the testator before and after the execution of the will.

The degree of evidence required by the Courts to rebut this presumption is not usually very high.

If the existence of a valid will is proved then the presumption of revocation is rebutted. The contents of the will must then be proved.

If there is a copy or completed draft, and the solicitor who prepared the will gives evidence as to proof of execution by the testator, there should be sufficient evidence of the contents of the will.

If there is no copy or completed draft, the evidence of the witness as to the contents of the will may be sufficient, even if that witness has an interest in the will.

Such evidence may include statements made by the testator before or after the execution of the will, evidence that the witness with the will, evidence of codicils to a will that reference to the will in written documents.

Adopted Daughter Awarded Equal Share In Wills Variation Claim

tug of warAdopted Daughter Awarded Equal Share

Laing v Jarvis Estate 2011 BCSC 1082 is yet another Wills Variation claim in British Columbia, where the courts have awarded an equal share to a disinherited child, in this case, an adopted one.

The plaintiff was 55 years of age and was adopted by the deceased who died in 2007 at age 84.

The deceased left everything to her natural son and there was no mention whatsoever of the plaintiff in the will.

The notes taken by the lawyer who prepared the will recorded that the plaintiff had had no contact with the deceased “in years”, and that the plaintiff had disowned the deceased.

The plaintiff was married and had 2 young children in her care, one of which was disabled. Her husband was unemployed and they had together almost no assets.

The court awarded the plaintiff an equal share in the estate.

The evidence did not confirm that the plaintiff had no contact with the deceased and years, or that the plaintiff had disowned the deceased.

The court found that while there might have been long periods where the plaintiff and the deceased did not see each other, they were in contact by telephone. The plaintiff also had medical and family reasons for not traveling a long distance to visit her mother.

Accordingly there were no valid and rational reasons for the deceased at the time of her death, to disinherit her daughter.

The court followed an increasingly strong line of case authorities to the effect that there is a presumption that children should share equally in their parents estates.

The court made the following significant quote:

In McBride v Voth, 2011 BCSC 443, Mdm. Justice Ballance considers the proposition of treating adult independent children equally when considering the act. She states at paragraph 134:

” On the other hand, in Vielbig v Waterland Estate (1995) 1 BCLR (3d) 76, (CA), the Court of Appeal held that equal treatment among independent adult children is prima facie favor from a moral duty standpoint. In Ryan, the court held that in the absence of relevant reasons for a non-equal distribution, there was a reasonable expectation that adult children were shared equally, you don’t know legal obligation requiring equal distribution exists. The emerging rule of thumb to the effect that equal apportionment among children prima facie discharges at testator’s moral duty was applied in Inch. There, the court held that an equal distribution was prima facie fair, despite the fact that one child received significant assets by way of inter vivos transfers.

disinherited.com strongly approves of this increasing trend by the court to treat adult independent children equally on a prima facie basis.

Wills Variation Claims Are Generally Well Suited For Summary Trial Disposition

Summary Trial Disposition

Wills Variation claims in British Columbia are generally speaking well-suited for a summary trial disposition.

A summary trial is heard by a judge who reads at affidavit materials and listens to submission by counsel.

This is supposed to the more traditional route of witnesses testifying in the witness stand.

A summary trial proceeding is generally speaking faster, cheaper, less stressful, and quicker to be tried that the traditional route.

Where a summary trial will definitely not work, is when there is a discrepancy in the credibility amongst the major witnesses in the trial.

The Court is very loathe to determine an important issue such as credibility based on an affidavit, rather than viewing the demeanor of the witness in the witness stand

In making a determination whether a trial should be heard summarily, the general rule is set out in Inspiration Management Ltd. v.McDermid St. Lawrence Ltd., 1989 CanLII 2728 (BC CA), (1989), 36 BCLR (2d) 202 (C.A.). Mr. Justice McEachern C.J.B.C., for the court, stated:

[48] In deciding whether it will be unjust to give judgment the chambers judge is entitled to consider, inter alia, the amount involved, the complexity of the matter, its urgency, any prejudice likely to arise by reason of delay, the cost of taking the case forward to a conventional trial in relation to the amount involved, the course of the proceedings and any other matters which arise for consideration on this important question.

[10] In RC Hotel Ventures Ltd. v. Meristar Sub 2C, L.L.C., 2008 BCSC 918 (CanLII), 2008 BCSC 918, at para. 13, Mr. Justice Masuhara listed a variety of factors that may be considered in assessing the suitability of a trial being heard by summary trial. These factors are:

(a) A court should be reluctant to decide isolated issues in the absence of a full factual matrix and should not decide issues on the basis of assumed facts.

(b) While the court may in certain circumstances resolve issues and find facts in the face of conflicting evidence, it should be reluctant to do so where there are direct conflicts in affidavit evidence, the resolution of which will require findings with respect to credibility.

(c) A court should be reluctant to resolve factual issues in the absence of admissible evidence where such evidence may well be tendered in admissible form at a subsequent trial.

(d) A court should be reluctant to “slice off” and decide isolated issues and circumstances where resolution of those issues will not resolve the litigation or will only resolve the litigation if answered in a particular way. In such circumstances, the 18A applicant will be required to demonstrate and the court expected to decide that the administration of justice including the orderly and effective use of court time will be enhanced by dealing with the separate issue brought forth by the applicant.

(e) The matter will not suitable for resolution by Rule 18A where resolution of a particular issue or issues in the summary trial will require that the court make findings or rulings which will impact on parties or issues which are not before the court on the application. In particular, the court hearing the summary trial must not decide the issues on the basis of facts which might be inconsistent with the findings of the judge at trial.

(f) In some cases, the complexity of the issues raised or the volume of the material before the court may be such that the matter is unsuitable for resolution by summary trial.

As a matter of practice, disinherited.com attempts to resolve most of her estate litigation disputes by mediation or summary trial firstly, rather than resorting to a trial by witnesses.

Administration of an Estate Pending Litigation

Estate Pending Litigation

It is very common in contested estates that the assets of the deceased are not properly dealt with in a timely manner as a result of the dispute.

This is particularly the case when the court action relates to the actual validity of the will and a dispute arises as to who if anyone, is the appropriate personal representative of the deceased.Continue reading

BC Power of Attorney Act Sets Out the Duties and Powers

BC Power of Attorney Act Sets Out the Duties and Powers

The provisions of the BC Power of Attorney act effective September 1, 2011, are a big improvement over the previous legislation, particularly in that the duties and powers of the attorney are clearly set out in sections 19 and 20 of the act.

S. 19- The duties of the attorney that must be carried out are:

A. Act honestly and in good faith;
B. Exercise the care diligence and skill of a reasonably prudent person;
C. Act within the authority given in the enduring power of attorney and under any enactment;
D keep prescribed records and produce the records for inspection and copying at the request of the adult

S 20. Powers of the Attorney

The attorney must also do the following;

A. Give priority when managing the adult financial affairs to meeting the personal care and health care needs of the adult;
B. unless otherwise specified in the power of attorney, and the handles property only in accordance with the trustee act;
C. Encourage the adult involvement in decision-making;
D. Not dispose of property that the attorney knows is a specific testamentary gift of the adults will;
E. Use reasonable efforts to keep the adult personal effects that the disposal of the adult

The attorney must keep the adult the property separate from his or her own unless the property is jointly owned by the adult and the attorney.

An Attorney may make a gift or loan, or charitable gift, from the adults property if the enduring power of attorney permits the attorney to do so, but the total value of all gifts loans and charitable gifts made by an attorney in a year must not be more than the lesser of

a) 10% of the adult taxable income for the previous year ;
b) and $5000.

An attorney may not will make her change her will for the adult form of the attorney is acting, but may change a beneficiary designation made by the adult, if the court authorizes the change, or create a new beneficiary designation, if the designation is made in an instrument that is renewing replacing, or converting a similar instrument made by the adult, or a new instrument made by the adult, while capable, and the newly designated beneficiary is the adult estate.

disinherited.com is optimistic that these clear guidelines will assist in reducing the amount of financial abuse that has historically taken place through the mis-use of a Power of Attorney.