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(c)if the notice of dispute is withdrawn by the disputant under subrule (9);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

deliberate destruction of evidence

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

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.


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

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

Executor and Proving the Will in Solemn Form | Disinherited

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

S. 86 Trustee Act Directions After a Murder | Disinherited

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];

(c) to the surviving residuary beneficiaries, if any, named in the will, in proportion to their interests.

(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. ”


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

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…

S. 43 WESA: Gifts to Will Witnesses or Their Spouses

S. 43 WESA: Gifts to Will Witnesses or Their Spouses

Prior to the introduction of WESA on March 31, 2014 the law was clear that the court had no discretion to allow for gifts to a will witnesses or to his or her spouse. Estate of Jason M. Bird 2002 BCSC 1584.

The purpose of that rule was to prevent fraud and undue influence, but its rigid application often defeated the genuine intention of the testator.
As a result of s. 43 WESA, gifts made in such circumstances where a beneficiary or his or her spouse witnesses the will is still presumptively void, but the courts now have the discretion to declare them valid.

The factual circumstances of where s.43 will usually apply is the home made will, and not that prepared by a solicitor.

This is largely due to the effects of s. 58 WESA which empowers the court to order that a document or other record is fully effective as the will of a deceased person if the court is satisfied that the document represents the testamentary intentions of that deceased person.

After verifying the authenticity of the testamentary document, the courts will the focus in on what was the intention of the testator in exercising its discretion pursuant to s. 43 (4) WESA.

At this time there have been three cases decided by the court relating to s.43 WESA, and the court has allowed the validity of each bequest under s. 43 in each case after closely examining the facts and probable intention of the deceased.

1. Bach Estate (Re), 2017 BCSC 548

The testator was predeceased by his wife and was survived by one natural child and two stepchildren. in September 2014, the testator’s sister (the “applicant”) and her husband accompanied the testator to a notary public’s office for the purpose of creating a new will, in which he named the applicant as the sole beneficiary of his estate.
The notary public advised the testator to come back the next day to execute this new will. After that appointment, the testator had to be hospitalized the same day.

That same evening the testator signed a document in which he left his entire estate to the applicant. A physician and the applicant’s husband witnessed the document. The next day the testator passed away.

The applicant brought an application for an order that the document be declared a valid will pursuant to s. 37(1) and s. 58 WESA and that the gift under the will be declared valid pursuant to s. 43 (4) and the application was allowed.

The testator had informed his friend that he wanted to leave his estate to his sister and he had an appointment with a notary public for this purpose. Additionally, the physician who witnessed the document stated that the contents of the document were read aloud to him, that the testator agreed with the contents, and that he understood the document was intended to indicate his wishes for the estate.

Based upon all of the evidence the Court was satisfied that the document executed on September 9, 2014 amounted to a will and represented the testator’s testamentary intent. The gift was not void.

The document was handwritten and read:

SEPT. 9, 2014



In full to my sister

Sharon Rose Thibodeau

“T. Bach”

Witness: “E. Willms”

SEPT 9/14

Witness: “R. Thibodeau”

September 9, 2014

The court’s analysis relied heavily on the s. 58 WESA case law that focused on the intention of the testator .

The court specifically relied upon Yaremkewich Estate (Re), 2015 BCSC 1124, that considered s. 58 and the concept of testamentary intent when considering curing deficiencies in a purported will, stating:

[35] In George the court confirmed that testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death. The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death. A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a will, by its nature, is revocable until the death of its maker. Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.

The court allowed extrinsic evidence to be admitted on the question of testamentary intent under s. 43(5) and stated that the court is not limited to the evidence that the inspection of a document provides.

2. Wolk v Wolk 2021 BCSC 1881 reviewed the law of will witnesses or their spouses receiving a gift to them under and the effect of s. 43 (4) of WESA .

The deceased left the following document:
“I leave to my parents, Michael Dawson Wolk and/or Lynda Ruth Wolk should they survive me all monies and properties of my estate with the proviso that they in turn provide a portion of the estate to my daughters, Jessica Berens and [E.H.] either in trust or in a protected format such that they will in turn receive a stipend when they reach the age of twenty-five (25) should they also survive me. This includes the repayment of monies to my parents for loans and assistance given me over the years including the overseeing of my daughter [E.H.].

My parents can decide if the money goes to education payments, RRSPs’, or a similar portfolio to protect my daughters for later in life.
This is as given by me on this 9th day of September 2016.”
The beneficiaries of the “ will” witnessed the document.

Under s. 40 of WESA, the fact that a signing witness is given a gift under the will does not affect the capacity to serve as a witness:

Will Witnesses

s. 40 …

(2) A person may witness a will even though he or she may receive a gift under it, but the gift may be void under s. 43

However a gift to a signatory witness is automatically void by statute, but the court may declare such a gift valid on application under s.43(4) WESA.

Section 43 of WESA includes the following:

(1) Unless a court otherwise declares under subsection (4), a gift in a will is void if it is to

(a) a witness to the will-maker’s signature or to the spouse of that witness,
. . .
(3) If a gift is void under subsection (1), the remainder of the will is not affected.

(4) On application, the court may declare that a gift to a person referred to in subsection (1) is not void and is to take effect, if the court is satisfied that the will-maker intended to make the gift to the person even though the person or his or her spouse was a witness to the will.

(5) Extrinsic evidence is admissible for the purposes of establishing the will-maker’s intention under subsection (4).

The court followed the Re Bach estate decision finding that s. 43(4) is centrally concerned with testamentary intent.

The court was further concerned that absent a declaration of the will’s validity under s. 43(4), there would be a partial intestacy under s. 25 of WESA which would not have been the intended result of the deceased.
The Court found that the deceased wanted the witnesses to receive the bequests as a gift and allowed such under Rule 43(4) WESA.

3. Re Le Gallais Estate 2017 BCSC 1699 dealt with the charging clause in a will that provided that if the lawyer who prepared and witnessed the will should act as the executrix and attend to the legal work of the estate, then she would be entitled to a fee for the usual and proper charge for such legal work.

A legal issue arose as to whether the charging clause in favour of the lawyer was valid due to the fact that the lawyer witnessed the will.

The drafting lawyer M. Isherwood had known the deceased professionally for over 40 years.

The charging clause stated:

“If the said Constance Dora Isherwood should act as Executrix of this my will and should also attend to the legal work of my estate, she shall be entitled to the usual and proper charge for such legal work.”

The court found that the deceased was an experienced business woman who would have known that legal work was required to finalize her estate after her passing.

The court invoked S. 43 ( 4) WESA that a gift to the lawyer was intended and that under the circumstances, the charging clause was not void by reason of her having witnessed the will and would take effect.


The courts have focused on the intention of the deceased when determining relief under s. 43 WESA when a bequest has been made to a witness of the will, or to his or her spouse.

Prior to the introduction of WESA there were strict execution requirements under the previous Wills Act that when not followed undoubtedly resulted in outcomes that were contrary to the intention of the deceased. While well intended these execution rules were strict and the court lacked discretion to in effect do justice.

To date the cases reported under s. 43 (4) have followed the rationale of the several cases reported under as the curative provisions s. 58 WESA and focused on the fixed and final intention of the deceased when signing a purported testamentary document him. Where the court is satisfied as to its validity, it will order curative provisions under both sections of WESA.

Determining the intention of the deceased when examining a document appearing to be a will together with extrinsic evidence from witnesses can be a daunting fact driven exercise for the trier of fact, but is a fact of estate litigation as seemingly more and more people attempt to save money and do their own will.