Category: Contested Wills

Vancouver Estate Lawyer- Interpreting an Ambiguous Trust or Will

Trevor Todd and Jackson Todd have over 60 years combined experience in resolving estate disputes, including the interpretation of trust documents.

In Re RM Platererr Education trust 2025 BCSC 1204 grandmother established a trust for the education of her grandchildren that was ambigouos and required the assistance of the court with directions on it’s interpretation.

THE LAW

The Court has the jurisdiction to assist in this matter pursuant to section 86 of the Trustee Act, R.S.B.C. 1996 c. 464, and Rule 2-1(c) and (d) of the Supreme Court Civil Rules, BC Reg 168/2009, Part 2: British Columbia v. Friends of Beacon Hill Park, 2023 BCCA 83; Toigo Estate (Re), 2018 BCSC 936.

[28] In The Bank of Nova Scotia Trust Company (Trustee) v. Quinn, 2019 BCSC 439, Justice Voith (as he then was) set out the applicable analysis with regard to interpreting a trust document:

[21] The Court, in Re Ali Estate, explained the role of a court of construction:

23. … the court is concerned with ascertaining the meaning of the testamentary documents that have been approved by the court in the exercise of its probate jurisdiction. It is axiomatic that the court must interpret or construe a will in the form in which it has been admitted to probate.

[22] Additionally the Court, in Re Ali Estate, said:

24. … the scope of admissible evidence is generally more constrained in a construction hearing. In that instance, a court may only consider the words of the will and if, applying the subjective approach, the evidence of the surrounding circumstances known to the testator at the time the will was made. Except in very restricted circumstances (such as equivocation), the court is not permitted to review direct evidence of the testator’s intentions on a construction application…

[23] Thus, sitting as a court of construction, a court’s primary task in interpreting a trust is to determine the actual intention of the settlor on the basis of the trust instrument as a whole. In Re Tyhurst Estate, [1932] S.C.R. 713, at 716, the Court said:

In construing a will the duty of the court is to ascertain the intention of the testator, which intention is to be collected from the whole will taken together. Every word is to be given its natural and ordinary meaning and, if technical words are used, they are to be construed in their technical sense, unless from a consideration of the whole will it is evident that the testator intended otherwise.

See also James MacKenzie, Feeney’s Canadian Law of Wills, 4^th ed., (Toronto: LexisNexis, 2000) (loose-leaf updated May 2016) at §10.1 and 11.1.

[24] Rules of interpretation and construction are applied only if the intention of the testator cannot be determined on the plain meaning of the words of the trust: National Trust Co. Ltd. v. Fleury, [1965] S.C.R. 817 at 829; Feeney’s Canadian Law of Wills at §10.19.

[25] Uncertainty with respect to the settlor’s intent may result from ambiguity or mistake. An ambiguity arises when the meaning of a particular word or phrase is unclear. A mistake usually arises when there has been a mistaken inclusion of unintended words, a failure to include intended words, or a mistaken use of one word or expression in place of the one intended: BC Probate and Estate Administration Practice Manual (Vancouver: Continuing Legal Education Society of British Columbia, updated April 2018) at §9.36.

[26] In such circumstances, a court of construction can add, strike and amend words as necessary in order to give effect to a testator’s intentions where that intention is plain and clear. The court will also interpret any gaps in a will that were left by the court of probate: Re Moiny Estate, 2001 BCCA 100 at para. 19; Milwarde-Yates v. Sipila, 2009 BCSC 277 at para. 48.

[27] In Thiemer Estate v. Schlappner, 2012 BCSC 629 at paras. 45-47, Madam Justice Dardi distilled these various principles and said:

In construing a will, the objective of the court is to ascertain the intention of the testator as expressed in his or her will when it is read as a whole in light of any properly admissible extrinsic evidence… It is a cardinal principle of interpretation that the testator’s intention is to be gathered from the will as a whole and not solely from those provisions which have given rise to the controversy…

Another fundamental tenet affirmed by an established line of authorities is that the court is to ascertain the expressed intention of the testator – the meaning of the written words used in the particular case – as opposed to what the testator may have meant to do when he or she made the will.

Earlier lines of authority endorsed an objective approach to will interpretation. However, modern jurisprudence recognizes that a strict literal approach can defeat the intention of the testator, thereby leading to unjust results… The liberal interpretive approach finds its roots in the seminal decision of the House of Lords in Perrin.

[28] Justice Dardi went on, at para. 48 of Thiemer Estate, to explain that British Columbia courts favour a subjective approach when interpreting testamentary documents:

In keeping with contemporary judicial thinking, the courts of this province have favoured the subjective approach to interpreting wills, wherein the objective is to ascertain the actual meaning the testator ascribed to the words he or she used in the will. In determining the testator’s intention the courts have endorsed the analytical approach commonly described as the “armchair rule”. The rule requires that the court put itself in the position of the testator at the point in time when he or she made the will, and from that vantage point construe the language in the will in light of the surrounding facts and circumstances known to the testator.

[29] It is clear that the “armchair rule” applies to inter vivos trusts: see Wong Joint Partner Trust (Trustee of) v. Wong, 2010 BCSC 1331 at para. 7; Stewart v. Stewart, 2018 BCSC 556 at paras. 50-56.

[29] Similarly, in Killam v. Killam, 2018 BCCA 64 [Killam BCCA] the Court of Appeal affirmed the analytical approach adopted by Justice Blok on the interpretation of wills or other instruments. In his chambers decision, Killam v. Killam, 2017 BCSC 175 [Killam BCSC], Blok J. distinguished between the “four corners” approach and the “armchair” approach. In Killam BCCA, the Court of Appeal discussed this distinction as follows:

[50] In commencing the construction exercise, the judge noted that the parties referred to two approaches to the interpretation of wills, the “four corners” approach and the “armchair” approach respectively. He described the difference between the two approaches in the following manner:

[44] … The “four corners” approach to the interpretation of wills (or other instruments) means that the intention of the testator is to be taken from within the “four corners” of the document itself, at least in the first instance, and surrounding circumstances are not to be considered unless the intention of the testator cannot be ascertained from the language of the will alone. The “armchair” approach requires the court, at the outset, to place itself in the position of the testator at the time he or she wrote the will (that is, to sit in his or her “armchair”), and to consider the (then) surrounding circumstances and context in order to ascertain the subjective intentions of the testator.

[51] As I have said, the judge determined that, on reading the relevant authorities, he was unable to conclude which approach to employ. In outlining his approach to constructing the will the judge said:

[60] … No matter which approach is favoured, the starting point for any analysis is the language of the will and, in this case, the first codicil as well. I therefore begin with an analysis of the language used in the will and I will then look to the surrounding circumstances existing at the time the testator made the will.

[52] In my view, there is no error in the approach outlined by the judge. The ultimate question in constructing a testamentary document is to determine the testator’s intention, and, as the judge said, the appropriate “starting point” is the language of the will.

[30] In Killam BCSC, Blok J. also identified that the case authorities in British Columbia have articulated two different approaches with respect to the “armchair approach” that, in his view, were “not consistent”: at para. 47. Justice Blok described these two approaches as the “armchair approach” and the “expansive armchair approach”. He explained:

[47] …Some indicate that surrounding circumstances are not to be considered unless the testator’s intentions cannot be discerned from the will itself. Others indicate that surrounding circumstances are to be considered at the outset in articulating the proper approach to be used.

[31] Justice Blok observed that the British Columbia Court of Appeal had previously “endorsed both approaches in different cases” which had “[left] the issue in an unsatisfactory state of uncertainty”: Killam BCSC at para. 56. Unfortunately, on the appeal from Blok J.’s decision, the Court of Appeal declined to endorse one approach or the other, leaving the law in a continued state of uncertainty. Accordingly, Blok J. decided to employ a combination of the two approaches:

[60] In light of this legal uncertainty I conclude that some combination of the two approaches is called for here. No matter which approach is favoured, the starting point for any analysis is the language of the will and, in this case, the first codicil as well. I therefore begin with an analysis of the language used in the will and I will then look to the surrounding circumstances existing at the time the testator made the will.

[32] For the purposes of these reasons, I intend to proceed in a similar manner. I will apply the “four corners” approach as a starting point and then, if the intention of the settlor cannot be ascertained from the language of the Trust Deed alone, proceed to apply the “armchair approach”. I do not intend to apply the “expansive armchair approach” identified in Killam BCSC although, for reasons that will become clear below, I would have reached the same conclusion regardless of which approach is applied.

BC Estate Lawyer – Removing a Notice of Dispute

Trevor Todd and Jackson Todd have practiced estate litigation for over sixty years, including the filing and removal of Notices of Dispute.

Pursuant to Rules 25-10(10) and 25-10(11), the test to remove a Notice of Dispute is whether the filing of the notice is in the best interests of the estate: Richardson Estate (Re), 2014 BCSC 2162 at paras. 54, 58.

Rule 25 – Application to remove notice of dispute

(10)A person who is interested in an estate in relation to which a notice of dispute has been filed, including, without limitation, an applicant for an estate grant or for the resealing of a foreign grant, may apply on notice to the disputant for an order removing the notice of dispute.

Grounds on which notice of dispute may be removed

(11)On an application under subrule (10), the court may, by order in Form P31, remove a notice of dispute if the court determines that the filing is not in the best interests of the estate.

When notice of dispute ceases to be in effect

(12) A notice of dispute in relation to an estate ceases to be in effect as follows:

(a)subject to paragraph (b), on the date that is one year after the date on which the notice of dispute was filed;

(b)if the notice of dispute has been renewed under subrule (6), at the end of the renewal period;

(c)if the notice of dispute is withdrawn by the disputant under subrule (9);

(d)if the will in relation to which the notice of dispute relates is proved in solemn form;

(e)if the court orders, under subrule (11) or otherwise, that the notice of dispute is removed.

In Stoker v Young 2024 BCSC 637 the objection to the ground raised by the Notice of Dispute pertained directly to the will’s validity and the validity of the estate grant which is sought. In the circumstances, it was necessary for the will to be proven in solemn form.

In Martyniuk Estate, 2016 BCSC 2024, the court held that it was not appropriate to deal with an application to cancel a notice of dispute where more issues were at play than the administration of the estate, and in that case a summary trial was directed on the issue of spousal status.

Further, in the case of Schell Estate (Re), 2019 BCSC 2168, the court held that where there are allegations of lack of testamentary capacity or allegations of undue influence, proof in solemn form is required.

Deliberate Destruction of Evidence ( Spoilation)

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

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

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

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

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

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

Forgery and Handwriting Analysis

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

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

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

HANDWRITING

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

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

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

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

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

The Difference Between a Mirror Will and a Mutual Will

In my experience, there is a lot of confusion amongst the public as to the difference between a mutual will and a mirror will, with the latter often being mistaken for the former.

Mutual wills are actually very rare – I have seen two in almost 50 years of practice and they were both identified as a mutual will and both testator signed the same document wherein they contracted with the other that the survivor would not be able to vary the bequests in the future.

A mirror will typically contains gifts by each to the other of their respective estates, with the same contingent gifts over of the residue of the estate of the survivor of them. Typically, this is a husband and a wife, leaving everything to each other, and in the event that the other fails to survive for a certain period of time, such as 30 days, then to alternate beneficiaries who are usually their children.

A mutual will is much more than a mirror will, it is an agreement that the wills not be changed and is a constraint of testamentary freedom. It contains a contract between the parties to the mutual will that the will not be changed after the death of one of the parties.

The testamentary intentions of will makers expressed in their mirror wills is not enough to establish that they had agreed that the survivor would not be able to vary the bequests in the future.

A true mutual will therefore is a binding contract between typically spouses not to revoke or change or replace their wills. It is an agreement between the parties to dispose of their estate in a particular way that equity and forces through the mechanism of a constructive trust after the first of the spouses of died, if the survivor does not abide by their agreement. Oosteroff On Wills 8th Ed at pp127-28.

The most fundamental prerequisite for an application of the doctrine of mutual wills is that there be an agreement (contract) between the individuals who made the wills.

The mutual wills agreement must satisfy:

1) the requirements for a binding contract and not be just some loose understanding or sense of moral obligation;
2) it must be proven by clear and satisfactory evidence;
3) it must include an agreement not to revoke the wills. Edell v Sitzer (2001) 55 O.R. 198 at para.73

In Bellinger v Nuytenn Estate 2002 BCSC 571 .the court held that honor is not a sufficient foundation on its own, and that a mutual will agreement will not be found to exist for the evidence is more consistent with some loose understanding or moral obligation rather than a binding, enforceable agreement.

The agreement may be proven either from the words of the will itself or from extrinsic evidence. The extrinsic evidence does not necessarily have to come from documents and it may be hearsay testimony from interested parties, but the courts have held that mere assertions from which inferences should be drawn are not acceptable as reliable evidence, to prove the existence of a mutual will agreement. Trotman v Thompson 2006 OJ No. 681

The burden of proof rests with the party that alleges the existence of a mutual will agreement, and that onus is heavy in that there must be clear evidence of the mutual will agreement. Cassin v Cassin (2007) 30 ETR 289 at para. 37

Mental Capacity to Make a Will

Jung Estate v Jung Estate 2022 BCSC 1298 reviewed the law on mental ( testamentary) capacity to make a will and found the will invalid.

The most frequently quoted test for testamentary capacity is the English decision of Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 (Eng. Q.B.) at 567, which remains relevant today.

To prove that a will-maker had testamentary capacity, the proponent of the will must lead evidence that establishes that the will-maker:

a) understood the nature of the act of making a will and its effects;
b) understood the extent of the property of which he or she is disposing;
c) was able to comprehend and appreciate the claims to which he or she ought to give effect; and
d) had no disorder of the mind or insane delusion that influenced his or her making of the will.

Laszlo v Lawton 2013 BCSC 305 at para. 188; Halliday v haklliday Estate 2019 BCCA 554 at para. 26.

This test was restated in modern times in Schwartz v. Schwartz (1970), 10 D.L.R. (3d) 15 at 32 (Ont. C.A.) ,aff’d [1972] S.C.R. 150 [Schwartz] as the will-maker must be sufficiently clear in his or her understanding and memory to know, on their own: the nature and extent of their property; the persons who are the natural objects of their bounty; the testamentary provisions they are making; and they must be capable of appreciating those factors in relation to each other and forming an orderly desire as to the disposition of their property: Laszlo at para. 188.

While will-makers are not expected to know the composition of their estate assets and their respective values in an exact manner “with the metronomic precision of an accountant”, they must have an appreciation of the general nature of their assets and an understanding of their extent. An appreciation of the value of their assets, expressed either in terms of dollars or quantitatively, will suffice: Laszlo at paras. 242 – 249; Henderson v. Myler, 2021 BCSC 1649 at para. 107.

Testamentary capacity is neither a medical concept nor a diagnosis, but rather is a legal construct. While medical evidence may be relevant it is not conclusive in determining the existence of testamentary capacity at the critical times: Laszlo at para. 198; Halliday at para. 29. Whether a will-maker possessed testamentary capacity at the necessary times is a question of fact, to be determined from all of the circumstances: Laszlo at para. 197. A critical and meaningful analysis is required to determine testamentary capacity: Halliday at para. 29. The authorities establish that in assessing testamentary capacity, the evidence of the drafting solicitor, who took instructions and prepared the will, is often given considerable weight, particularly where that person is an experienced wills and estates lawyer: Benekritis v. Gilbert Estate, [1998] B.C.J. No. 171at paras. 41 – 43.

Testamentary capacity requires a “disposing mind and memory” which is described 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 disposition, and the like …”: Laszlo at para. 194, quoting from Leger v. Poirier, [1944] S.C.R. 152 at 161 [Leger]. Merely being able to provide rational responses is not sufficient or conclusive of capacity; rather, “there must be a power to hold the essential field of the mind in some degree of appreciation as a whole”: Leger at 162.

Bull Estate v. Bull, 2015 BCSC 136 at para. 114 [Bull] held that the test for testamentary capacity is not “overly onerous” and that the presence of cognitive deterioration may not preclude testamentary capacity. Testamentary capacity may be present even if the will-maker is incapable of managing other aspects of his or her life: Halliday at para. 28. However, a disposing mind and memory is “one able to comprehend, of its own initiative and volition, the essential elements of will making, property, objects, just claims to consideration, revoking dispositions and the like”: Moore v. Drummond, 2012 BCSC 1702 at para. 34, citing Leger at 161; Bull at para. 115.

A will-maker must have testamentary capacity when they give instructions for their will, and when they review and execute the will. However, as mental capacity can fluctuate, the case law permits a variation of the degree required at these two key times; for example, if a will-maker is competent to give instructions, but not competent at the time the will is executed, it may nonetheless be valid so long as at the time of execution the will-maker was capable of comprehending she was executing a will drawn in accordance with her prior instructions: Laszlo at para. 189.

Appointing an Administrator of a Will

Berlinguette Estate 2022 BCSC 1098 discussed the criteria for appointing an administrator of a will and Sections 130 and 132 WESA.

Sections 130 and 132 of WESA address the appointment of an administrator for a person who dies without a will:

130 If a person dies without a will, the court may grant administration of the deceased person’s estate to one or more of the following persons in the following order of priority:

(a) the spouse of the deceased person or a person nominated by the spouse;
(b) a child of the deceased person having the consent of a majority of the children of the deceased person;
(c) a person nominated by a child of the deceased person if that person has the consent of a majority of the deceased person’s children;
(d) a child of the deceased person not having the consent of a majority of the deceased person’s children;
…
132 (1) Despite sections 130 and 131, the court may appoint as administrator of an estate any person the court considers appropriate if, because of special circumstances, the court considers it appropriate to do so.

(2) The appointment of an administrator under subsection (1) may be
(a) conditional or unconditional, and
(b) made for general, special or limited purposes.

In order for the court to appoint an administrator under WESA, that person must be independent and indifferent to the outcome of the estate’s distribution.

The Court of Appeal in Ruffolo v. Juba-Ruffolo, 2005 BCCA 26, determined that one of the relevant considerations for appointing an administrator was whether the potential appointee could act with detachment and even-handedness:

[15] In this case, there is a need for detachment and even-handedness to ensure that the estate is administered for the benefit of each of the beneficiaries under the statute, that is, the appellant widow and the child. With the respondent’s acknowledged animosity toward the appellant, it is not possible to conclude that the detachment required to properly administer the estate would be present.

In Raye v. Phillip Estate, 2021 BCSC 387 at para. 27, Justice Norell considered the factors a court must consider in exercising its discretion to appoint an administrator, including neutrality and a lack of actual or perceived conflict of interest:

[27] In exercising its discretion to appoint an administrator, the court must consider the best interests of the estate and all persons interested in the estate. The court should appoint an administrator who is likely best able to convert the estate to the advantage of those who are interested in it: Flores v. Mendez, 2014 BCSC 951 at paras. 35-41. The support of the majority of beneficiaries is a significant factor in determining an appropriate administrator: Godby Estate (Re), 2015 BCSC 1809 at para. 47. An administrator must act with “detachment and even handedness” and without animosity: Ruffolo v. Juba-Ruffolo, 2005 BCCA 26 at para. 15. An administrator should play a neutral role and not pick sides between beneficiaries and should be indifferent as to how the estate is to be divided: Kolic Estate (Re), 2016 BCSC 1312 at paras. 25-26. An actual or perceived conflict of interest may cause a court to appoint a new executor or administrator: Ching Estate (Re), 2016 BCSC 1111 at para. 22.

In El-Adams Estate (Re), 2022 BCSC 75, Justice Forth considered whether the mother of a deceased daughter should be appointed the interim administrator of her daughter’s estate. The mother was engaged in a legal proceeding with a person with whom her daughter had been in a relationship. That individual claimed that he should be declared the daughter’s husband, thus entitling him to inherit her estate. The mother of the deceased opposed the application for such a declaration and sought to be appointed the estate administrator.
Justice Forth acknowledged that the deceased’s mother was a person of integrity, but held that it was inappropriate to appoint her as the administrator because she was in litigation regarding the estate with the individual seeking a declaration that he was deceased’s husband. In setting out why the court must avoid appointing the mother, Forth J. commented on the importance of the administrator being neutral and indifferent to the outcome:
[39] I turn now to whether the petitioner is the appropriate person to be appointed. I have no hesitation in accepting that the petitioner is a person of integrity that has strived to do her best to care for Jenna. As a mother, she has the tragic burden of coping with the loss of her daughter. However, in my view, appointing her as an interim administrator will likely result in more strife between the respondent and Jenna’s family. It is unfortunate that issues of distrust have already arisen. An administrator must act with “detachment and even-handedness” and without animosity: Ruffolo v. Juba-Ruffolo, 2005 BCCA 26 at para. 15.

[40] Until the issue of the respondent’s status is determined, there are steps that the interim administrator may have to take to deal with the two outstanding lawsuits. The two actions are: the respondent’s action that he has continued against Adams Glass; and the action that Kayla has against Adams Glass and Jenna. In my view, it is inappropriate for the petitioner, as the mother of Kayla, to be providing instructions on behalf of the defendants in this lawsuit, where her daughter is the plaintiff. I anticipate that the petitioner may well be a witness in that action, in that it involves Kayla’s allegations of undue influence against her sister, Jenna, respecting their father, Mr. Adams.
…
[42] As matters currently stand, both the petitioner and respondent are in a potential conflict since one or the other will be inheriting the Estate. An administrator should play a neutral role. An administrator should not pick sides between beneficiaries, and should be indifferent as to how the estate is to be divided: Raye at para. 27. Neither of these parties is indifferent.

Executor and Proving the Will in Solemn Form

When the validity of a will is in question, the propoundor of the will (usually the executor) is often forced to prove the validity of the will in solemn form, by commencing a court action and having a judge determine the wills validity, as opposed to a non contentious probate where the will is approved by a court registrar in common form.

In Romans estate v. Tassone 2009 BCCA 421, the appeal court discussed the difference between proving a will in common form, and proving a will in solemn form as follows:

Often proof of a will in common form is all that is required for the administration of an estate where there is a will. Proof in common form, however, does not conclusively determine the will to be the valid last will of a person.

Proof of the will in solemn form provides some protection for the will, in that it will not later be set aside, unless obtained by fraud or a later will is found: Tristam & Cootes Probate Practice (27th Edition, 1989, p. 572. As noted by the authors of the British Columbia Probate & Estate Administration Manual, 2nd Edition, 2008 Update, at p. 18-17, “[t]he safeguarding effect of a grant in solemn form is an application of the principle of res judicata to what is a judgment in rem”.

17 Halsbury’s Laws (4th) para. 866 says:

If there is any doubt as to the validity of a will or any apprehension that there may be opposition to it, it is open to the executor, or if there is no executor the person entitled to administration with the will annexed, to prove it in solemn form.

In Trites v. Johnson, [1945] B.C.J. No. 76, [1945] 3 W.W.R. 100 (B.C.S.C.) Macfarlane J., as he then was observed that “In a case of this kind where the validity of a will has once been called in question I think it is the duty of the executors to prove the will in solemn form of law….”

Proof in solemn form was required even where the party originally requesting such had withdrawn their objection.

If the will is proven in solemn form, or per testes, it must be proven in open court, upon notice to all interested persons, and will not be admitted to probate unless the court is satisfied of the due execution of the will, the testator’s knowledge and approval of its contents, his capacity and non-revocation: Osterhoff on Wills and Succession, 6th Edition, 2007, Thomson, Carswell, p. 44.

S. 86 Trustee Act Directions After a Murder

Re Unger 2022 BCSC 189 involved an application by the executors of the estate for advice and direction as authorized by Section 86 of the Trustee act regarding the disposition of the deceased’s estate, given that her own son had murdered her, the issue became who was entitled to his share of the estate.

The deceased was survived by two sons, Clayton and Logan, who were each 50% beneficiaries of her will.
As Clayton murdered his mother, all parties agreed there is a rule of public policy which excludes the person responsible for another person’s death from taking any benefit because of their criminal act.

The rule was discussed at length in the Supreme Court of Canada decision Oldfield v . Transamerica Life Insurance Co of Canada , 2002 SCC 22 at paragraphs 14 – 15.

Prior to his mother’s death, Clayton was found to have conceived a child ( Adeline) who was born approximately 11 days after his mother’s death. His mother knew of the child and the court found that the child was “en ventre sa mere” and could inherit.

The court was asked to determine who should inherit what was to be Clayton’s portion of his mother’s estate: his daughter, his brother Logan, or two charities named as alternate beneficiaries under the will. The value of the estate was approximately $860,000. The court found that the paramount concern was the intent of the testator at the time the will was executed.

Relevant Legislation to the Trustee Act

This application is authorized by s. 86(1) of the Trustee Act, which states:

86(1) A trustee, executor or administrator may, without commencing any other proceeding, apply by petition to the court, or by summons on a written statement to a Supreme Court judge in chambers, for the opinion, advice or direction of the court on a question respecting the management or administration of the trust property or the assets of a testator or intestate.

Section 46 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [WESA] is foremost for consideration in this case:

46(1) If a gift in a will cannot take effect for any reason, including because a beneficiary dies before the will-maker, the property that is the subject of the gift must, subject to a contrary intention appearing in the will, be distributed according to the following priorities:

(a) to the alternative beneficiary of the gift, if any, named or described by the will-maker, whether the gift fails for a reason specifically contemplated by the will-maker or for any other reason;

(b) if the beneficiary was the brother, sister or a descendant of the will-maker, to their descendants, determined at the date of the will-maker’s death, in accordance with section 42(4) [meaning of particular words in a will];

(2) If a gift cannot take effect because a beneficiary dies before the will-maker, subsection (1) applies whether the beneficiary’s death occurs before or after the will is made.

The Public Guarian on behalf of Adeline provided the Court with two authorities to support its position, being Jollimore Estate v. Nova Scotia (Public Archives), 2011 NSSC 218 and Dhaliwall v. Dhaliwall, [1986] B.C.J. No. 1463 (S.C.).In both cases, the testator was murdered by a named family beneficiary and intended, if the named beneficiary was not to receive the estate, for the estate to pass to the alternate beneficiaries. In Jollimore, to the Nova Scotia Public Archives, and in Dhaliwall, to the deceased’s children.

“The court should do its best to see, in a matter of this kind, that the obvious intentions of a testator are not defeated. The proposition that there should be an intestacy because the will uses the words, “if X survives” and X did survive, results not only in the testator suffering the indignity of murder but also the affront of the defeat of his obvious testamentary intention. If the gift is a residuary gift and there is a gift over, less violence is done to the testator’s intentions if the court holds that a person barred by the rule of public policy is deemed to have died immediately before the testator than by any other possible solution to this problem. ”

DECISION

The portion of the residue of Ms. Unger’s estate is to pass to Adeline for the following reasons:

a) Under the rule of public policy, Clayton was not entitled to what would have been his portion of Ms. Unger’s estate, Ms. Unger having died as a result of Clayton’s actions.

b) The clear intent in the Will was that should either of Ms. Unger’s children predecease her, under para. 7(b)(ii) of the Will, any children of her children who are alive at her death or are en ventre sa mere should receive the deceased child’s share.

c) Adeline was an “alternate beneficiary” of the gift to Clayton as contemplated by s. 46(1)(a) of the WESA, and is therefore the first priority for distribution of Clayton’s share. Logan was not an alternate beneficiary of Clayton. He was a primary beneficiary of the residue along with Clayton and had no claim against Clayton’s share.

Admissibility of Medical Records

Many types of estate litigation cases such as testamentary capacity, undue influence, committee applications and others rely on medical evidence, which is typically initially obtained from medical records that are subsequently admitted into evidence at trial provided they meet the legal requirements set out below.

Re Gibb Estate 2021 BCSC 2461 quoted Re Singh Estate 2019 BCSC 272, which reviewed the law relating to the admissibility of medical records as an exception to the rule against hearsay pursuant to the standard business records exception.

The court summarize the applicable law:

[48] While clinical records are hearsay, they are admissible under the business records exception both at common law and under s. 42 of the Evidence Act. The requirements for the admission of medical records as business records are set out in Aresv Venner 1970 SCR 608

The Supreme Court of Canada held at 626:

Hospital records, including nurses’ notes, made contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record should be received in evidence as prima facie proof of the facts stated therein.

[49] Justice Burnyeat in McTavish summarized the principles from Ares at 311-12:

1. The notes taken must be made contemporaneously.

2. The notes must be made by someone having a personal knowledge of the matters being recorded.

3. The notes must be made by someone who has a duty himself or herself to record the notes or to communicate the notes to someone else to record as part of the usual and ordinary course of their business.

4.The matters which are being recorded must be of the kind that would ordinarily be recorded in the usual and ordinary course of that business.

5. A statement in the records of the fact that a certain diagnosis was made will be admissible.

6. Recorded observations, diagnosis and opinions will be admissible providing they are recorded in accordance with points 1 through 4.

7. The fact that the referring doctor relied upon another doctor’s opinion to assist in coming to his or her own diagnosis and opinion is only evidence of that fact so that the other opinion does not become evidence unless it is otherwise admissible. Accordingly, it is only evidence of the fact that the referring doctor wished or required that opinion to be received before forming his or her own opinion.

8. Statements made by parties or by experts which are recorded in the usual and ordinary course of business but which lie outside the exception to the hearsay rule are hearsay and will not be admitted into evidence unless they can be brought within Section 14 of the Evidence Act which allows for the admissibility of such statements if it can be shown that they are proof of a prior inconsistent statement.

[50] The issue of third party statements was addressed in Cambie Surgeries. Justice Steeves provides:

…any statement by the patient or any third party that is not within the observation of the doctor or person who has a duty to record such observations in the ordinary course of business is not admissible for any purpose and will be ignored by the trier of fact…
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