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Proof in solemn form was required even where the party originally requesting such had withdrawn their objection.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


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.

Duress In Family and Estate Situations

Blom v Blom 2921 BCSC 181 set aside a separation agreement and gift letter on the basis of the common law remedy of duress.


The claimant also pleaded S 93 of the Family Law act .

Duress in a family law context has been considered in previous judgements.

In one case, Justice Brown usefully set out a definition of duress as follows (G.C.G. v. M.J.T., 2016 BCSC 1277):

Duress is a form of oppressive contractual conduce directed by one party towards another to compel them to act to their disadvantage, or, as Black’s Law Dictionary frames it: in a manner they otherwise would not. The underlying question in most cases … is whether the oppressor’s action vitiated the consent of the oppressed party.

The onus to prove duress lies with the party alleging it, in this case the respondent (Young v. Sherk, 2019 BCSC 312, at para. 84; citing Roberts v. Roberts, 2000 BCSC 611, at para.

As well, mere emotional difficulty or strain generally is insufficient to establish duress and to set aside a family agreement; (Young, at para. 85; citing A.B. v. T.R., 2013 BCSC 1798, at para. 19).

The context in which duress can arise has been discussed in other cases. For example, G.C.G. cited a previous decision from the Supreme Court of Canada as follows (G.C.G., at para. 108; citing Rick v. Brandsema, 2009 SCC 10, at para. 1):

This court has frequently recognized that negotiations following the disintegration of a spousal relationship take place in a uniquely difficult context. The reality of this singularly emotional negotiating environment means that special care must be taken that, to the extent possible, the assets of the former relationship are distributed through negotiations that are free from informational and psychological exploitation.

Brandsema also pointed out that bargains between spouses in a marriage breakdown “should not be seen to be, subject to the same rules as those applicable to commercial contracts negotiated between two parties of equal strength” (G.C.G., at para. 109; citing Brandsema, at para. 40).

As the above authorities point out, negotiations following separation ( or deaths) create a uniquely difficult context, one that is singularly emotional and where parties can be particularly vulnerable.

Special care is required to ensure that assets from the prior relationship are distributed free from any exploitation.

The circumstances of the signing of the separation agreement in Blom case involved a mother worried the father would alienate her from her children and they certainly give rise to those concerns.

Ordinarily Resident

Waslenchuk estate 2020 BCSC 1929 dealt with a common issue in estate litigation- when will wills made in other jurisdictions apply to British Columbia- the issue usually is resolved by where was the deceased ordinarily resident.

Section 101 of WESA provides that regardless of where a will is made, the administration of an estate of a deceased person who was ordinarily resident or domiciled in British Columbia at the date of the person’s death is governed by the statute.

A person is ordinarily resident in the place where, in the settled routine of their life, they regularly, normally, or customarily live. It is not determined by counting the number of days a person spends in the jurisdiction: Cresswell v. Cresswell Estate, 2017 BCSC 178at para. 26,

The court cited Blazek v. Blazek, 2009 BCSC 1693 at paras. 31- 33.

Ordinarily Resident

Section 3 of the WESA provides that the court has territorial competence in a proceeding if the person is “ordinarily resident in British Columbia at the time of the commencement of the proceedings.”


The meaning of “ordinarily resident” has been considered by the courts on many occasions.

The authority often referred to is Thomson v. Minister of National Revenue (1945), [1946] S.C.R. 209, [1946] C.T.C. 51 (S.C.C.), where Mr. Justice Estey stated:

“A reference to the dictionary and judicial comments upon the meaning of these terms indicates that one is “ordinarily resident” in the place where in the settled routine of his life he regularly, normally or customarily lives. One “sojourns” at a place where he unusually, casually or intermittently visits or stays. In the former the element of permanence; in the latter that of the temporary predominates. The difference cannot be stated in precise and definite terms, but each case must be determined after all of the relevant factors are taken into consideration, but the foregoing indicates in a general way the essential difference. It is not the length of the visit or stay that determines the question. ”

“ordinarily resident” should be given a broad and liberal interpretation, in accordance with the provisions of the Act regarding corporations ordinarily resident in the province; “ordinarily resident” does not require a counting of days in which a party may spend in this jurisdiction. One can be ordinarily resident in more than one jurisdiction.
. . . . .
It is well established that a person may have more than one residence…

Domicile is based on a person’s choice to fix voluntarily their sole or chief residency in a particular place with an intention to continue to reside there for an unlimited time: Sato v. Sato, 2017 BCSC 1394at paras. 7-10, 14, aff’d 2018 BCCA 287 at paras. 45-48, 51, 53.

Memory Stick Will Valid: S. 58 WESA

Rempel Estate v Dudley 2020 BCSC 1766 held that one document amongst documents contained on two memory sticks, was in fact a valid will that could be cured of any deficiencies pursuant to section 58 of WESA.

The case is one of several indicating a trend for the courts to examine digital wills and if satisfied that the document demonstrates a deliberate or fixed and final expression of the deceased’s intentions regarding disposal of property on death, to then cure any deficiencies under section 58 WESA.

In the Rempel case none of the documents were signed or witnessed, but did reveal personal records, which were testamentary in nature.

The memory sticks had been located in the deceased’s computer found in his residence.

The first memory stick contained recordings, including a voice memorandum between the deceased and a notary dealing with various testamentary expressions.

The second memory stick contained file folders and subfolders that contain various electronic drafts of documents which express the deceased testamentary intentions. They all started with his address in the opening line states- “In the event of something happening to me, and having no other proper will, this is how I wish my estate to be handled.” The documents and with the statement “ These are my wishes” and there is a space for a signature, below which he typed his name, month and year of the document.

Hearsay statements in the memory sticks were held reliable and that they are repeated in many of the documents prepared by the deceased over a considerable period of time, and as such are reliable as to his intentions regarding the disposition of his estate ( see Pasko v Pasko 2020 BCSC 435 at para. 10.)

Section 58 WESA permits the court to cure deficiencies in wills and cure noncompliant documents that constitute a deceased testamentary intentions and states:

58 (1) in this section, record includes data that:
a) is recorded or stored electronically,
b) can be read by a person, and
c) is capable of reproduction in a visible form

2) on application, the court may make an order under section 3 if the court determines that a record, document or writing or marking on a will or documents represents
a) the testamentary intentions of the deceased person,
b) the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person,
c) or the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than the will.

Section 3 goes on to provide that the court may, as the circumstances require, order that a record or document or writing or making on a will or document be fully effective as though it had been made

a) as the will or part of the will of the deceased person,
b)as a revocation, alteration or revival of a will of the deceased person, or
c) as the testamentary intention of the deceased person.

The case law in British Columbia In such decisions as Estate of Young, 2015 BC SC 182, which followed a leading authority in Manitoba George v Daily ( 1997) 143 (4th) 273 ( Man C.A.) seems well settled :

“The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased 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.”

Wills Variation: No Presumption of Paternity

Wills Variation: No Presumption of Paternity

There is no presumption of paternity in British Columbia in wills variation cases so paternity must therefor be proven. Under section 26 of the Family Law act however, there are several types of recognized paternity relationships that give rise to a presumption of paternity.

Wills Variation Cases

In Barnes Estate v Barnes 2013 BC SC 1846 the court stated:

Section 26 of the family law act outlines a number of situations in which a male person is presumed to be a child’s biological father. There is no presumption of paternity with respect to wills actions.

In Lansing v Richardson 2002 BC SC 262, the plaintiff claimed that she was entitled to a share of the testator’s estate pursuant to the wills variation act because she was a biological daughter of the testator.However, the evidence of paternity was inconclusive.

The court held at paragraph 18:

“Under the wills variation act paternity must be established before a legal claim can be recognized: the burden under the wills variation act is on the plaintiff– to establish paternity on a balance of probabilities, and under that act there is no legislative presumptions, so the common-law burden of proof applies.”

Family Cases:

S. 26 of the Family Law act creates a number of situations in which there is a presumption of paternity:

  • a man may be presumed to be the child’s biological father if he was married to the child’s mother when the child was conceived and born;
  • a man will be  the presumed father of the child if he was married to the child’s mother and the marriage ended within 300 days prior to the child’s birth. I have through death, divorce or through a declaration of an invalid marriage;
  • if a man seeks to marry the child’s mother, following the child’s birth and acknowledges the child as his own, his paternity will also be presumed.
  • There is also a presumption of paternity if the man lived with the child’s mother in a non-marital relationship within 300 days prior to the child’s birth
  • a father who has a nonbiological relationship with the child through adoption will have legal paternity of child.

“Inheritance” Given Broad Interpretation

"Inheritance" Given Broad Interpretation

The words inherit and inheritance were given a very broad interpretation in Lotimer v Johnston 2019 BCSC 2098.

The parties were married for many years, but separated in 2007 and negotiated a separation agreement.

The husband agreed that as the wife had shared an inheritance she received from her mother during the marriage, that he would provide to her 25% of any inheritance that he would receive from his mother. The agreement was negotiated between the couple and reduced to writing by lawyers.

Soon after the separation agreement was signed the husband showed the document to his mother, and a few months later, the mother changed her will, to instead leave the husband only $10,000, rather than sharing equally in her $1 million estate with his sister.

Between the date of the separation agreement and the mother’s death, the husband received gifts totaling $330,000.

The mother put the husband and his sister on title with her on her home as joint tenants.

By 2012 the mother had liquidated most of her assets and started to give them to her son, daughter and grandchildren,

The wife successfully argued that $310,000 of that sum was in fact the husband’s inheritance and ordered that the wife be paid one quarter of that said sum.

The husband argued that the dictionary definition of inherit and inheritance supports the view that it inheritances property received from an ancestor under the law of intestacy or from anyone pursuant to a will.. Both avenues contemplated transfer of property effective upon the death of the giver. He argued that the monies that he received from his mother during her lifetime were inter vivos gifts that were made not an expectation of death.

The court rejected this argument, and said that the words inherit and inheritance are not legal terms of art, having a specialized legal meaning that it must be assumed that the parties, assisted by their lawyers, intended to invoke. The court found that the agreement was substantially based on discussions between the parties, rather than careful legal drafting.

The court held that the interpretation of contractual language in most cases, including this one, is a question of mixed fact and law grounded in the circumstances at hand.

The word inheritance encompasses a range of meanings, and the court concluded that the concept of an inheritance does not require that the giver has died.

The court instead allowed a broader understanding of inheritance that encompass gifts made by the mother in her lifetime that she intended to substitute for a gift effective on death, and found that was consistent with the language used by the parties in light of the surrounding circumstances.

The gifts were found to be intended by the mother to stand in place of the testamentary bequests to her son.

Suspicious Circumstances

Suspicious Circumstances | Disinherited Estate Litigation

An important aspect of challenging the validity of a will due to lack of testamentary capacity is to look for suspicious circumstances which if found have the effect of shifting the onus of proof from a presumption of mental capacity to the propounder of the will having to prove mental capacity.

In addition to testamentary capacity, the propounder of a will must establish “that the testator knew and approved of the contents thereof.” With regard to this requirement, the Supreme Court of Canada in Lidstone v McWilliams ( 1931) 3 DLR 455 SCC, noted at p. 456-7:

When it has been established that a will has been duly executed by a testator having testamentary capacity, and also established that it was read by, or read over to, the testator before execution, there arises ordinarily, in the absence of suspicious circumstances, a strong presumption that he knew and approved of its contents, but there is no inflexible rule on the subject. If, however, there are circumstances which arouse the suspicions of the Court — as, for example, if the will was prepared by a person who takes a benefit under it – the party propounding the will must remove the suspicion by proving that the testator knew and approved of the contents of the document, and it is only when this has been done that the onus of proving fraud or undue influence is thrown on the opponents of the will.

Mr. Justice Lambert referred to that passage and explained the meaning of the term “suspicious circumstances” in Clark v. Nash (1989), 61 D.L.R. (4th) 409 at 425 (B.C.C.A.):

It is important to recognize that the “suspicious circumstances” referred to in that passage, and in other authorities, are not circumstances that create a general miasma of suspicion that something unsavory may have occurred, but rather circumstances which create a specific and focused suspicion that the testator may not have known and approved of the contents of the will.

The doctrine of suspicious circumstances may arise in circumstances in which the background concerning the making of the will gives rise or should give rise to some suspicion. The doctrine is intended to ensure that there is no doubt that the making of the will was the free and voluntary act of the testator. In dealing with the will, the Supreme Court of Canada in Vout v. Hay 1995 125 D.L.R. (4th) stated that when dealing with the doctrine of suspicious circumstances and the onus of proof, the party alleging undue influence must prove it, and the question becomes which is more persuasive: the evidence calling into question the validity of the will (the suspicious circumstances) or the evidence supporting it.

It is crucial that a will practitioner look for and identify factors which might appear to be suspicious and to ensure that there is ample evidence to override those circumstances as having had an effect on the testator, prior to the execution of the will. Again there should be a detailed record made of the practitioner’s observations, and the notes preserved.


A short list of the innumerable circumstances in which might be suspicious is as follows:

(a) where a gift is made to a person with whom the testator had a close relationship but which was not known or recognized by the testator’s family;

(b) where a gift is made to a person who is in a position to influence the testator, such as a care-giver, or the worst example, the party preparing the will;

(c) where an apparently unwarranted, undeserving, or unpopular gift is made to a beneficiary who, in the minds of the those left behind, should not receive the gift;

(d) where a gift is made to a beneficiary to whom the testator has had no close relationship, such as a charity;

(e) where the division of assets among the children of the testator is substantially unequal, or a certain child or children are harshly treated;

(f) where the will substantially deviates from previous wills;

(g) where a gift is made to a person standing in a fiduciary relationship;

(h) where the beneficiary accompanies the testator on each trip to your office during the process to complete the will;

(i) where you receive the testator’s instructions from someone other than the testator;

(j) Where there has been a recent serious illness or hospitalization;

(k) where there is any question at all about testamentary capacity;

(l) where there are indications of substantial medications that are potentially mind altering, being used;

(m) where there is a hasty or unwise marriage or common-law relationship;

(n) where there is evidence of depression;

(o) where there is a language/cultural disability or illiteracy;

(p) if you have been asked to prepare a will for someone by which you are to inherit, then you should ensure that the testator receives independent legal advice, and preferably take no part whatsoever in the preparation of the will.

In circumstances where the testator has a will and substantial changes are being made, it would be prudent to enquire of the testator as to the provisions of the previous will and the reasons for the changes.

Similarly if a child or children are being disinherited, you should consider preparing a detailed memorandum pursuant to the provisions of the Wills Variation Act ( now S 60 WESA) and enclosing a copy of that signed memorandum with the original will. You should try and insure the accuracy of the information, so that the testator is not subsequently viewed by the court as being vindictive, as opposed to objective.