Special costs are frequently awarded against failed litigants of undue influence claims, but this was not the case in our Allart estate v Allart 2016 BC SC 768.
There the judge declined to do so on the basis that the plaintiff had an honest belief that her case was meritorious and her failed allegations of undue influence and suspicious circumstances were not sufficiently reprehensible by themselves to give rise to special costs.
The Court distinguished the conduct from the leading BC case of Leung v Chang 2014 BCSC 1243., finding the behaviour in Leung was more egregious than that of the defendant. For example, Leung the allegations were not supported by any evidence, or evidence was not led.
The evidence in the Allart case in support of the position of the defendant was scant and ultimately was not persuasive, and it cannot be said that there was nothing to raise her suspicions.
Madam Justice Dardi awa4ded special costs against a self represented litigant and summarized the approach to failed allegations of undue influence in estate litigation and an award of special costs in Leung v. Chang, 2014 BCSC 1243:
[50] Where an unsuccessful party has advanced but failed to prove allegations that a will was procured by undue influence, typically the usual rule will apply and costs will be assessed against that party: Maddess at para. 71; Mawdsley at para. 36. These are serious allegations which “stop just short of fraud”: Hamilton v. Sutherland, [1992] 5 W.W.R. 151 at 163 (B.C.C.A.). Whether a failed allegation of undue influence is sufficiently reprehensible that it warrants the court’s condemnation through a special costs award depends on the particular circumstances. The court frequently has found that unsubstantiated allegations of undue influence justified an award of special costs: Benekritis v. Gilbert Estate, [1998] B.C.J. No. 171 (S.C. [In Chambers]); Bates v. Finley, 2002 BCSC 159 ; Kouwenhoven Estate v. Kouwenhoven, 2001 BCSC 1402 ; Stanton v. Stanton Estate, 2008 BCSC 470 ; Maddess at para. 74.
[18] Furthermore, the fact that a party is unrepresented is not itself a basis for declining special costs. A litigant must still comply with the rules and procedures of the court; failure to do so is not excused by one’s self-represented status: Leung at para. 66.
[19] An award of special costs may be made against a litigant with indigent status in the proceeding: Sahyoun v. Ho, 2015 BCSC 392 at para. 157; Keremelevski v. V.W.R. Capital Corporation, 2013 BCSC 612 at para. 71; Leger v. Metro Vancouver YWCA, 2013 BCSC 2021 at para. 78.
Section 46 WESA deals with the lapsed gifts in wills often caused by poor will drafting , failure by the parties to properly consider what the future may bring , or the beneficiary predeceasing, any of which results in disappointed beneficiaries not receiving the intended gift.
Instead of wording the will’s bequest of “any real property that I own at the time of my death” , many will- drafters instead incorrectly state a particular address of a particular property, owned at the time of the will making, but long sold before death.
The gift of real property in that situation has lapsed simply because it ceased to exist.
Almost by definition, a lapsed gift results when a substantial change in circumstances occurs between the execution of the will and death, so that the gift has either failed or ceased to exist.
The lapsed gift often results from both poor drafting together with the simple fact that many people do not realistically ponder their aging and succession and just resort to avoidance.
Very often the beneficiary predeceases the will- maker at which time the “anti-lapse rule of S 46 of WESA (Wills, Estates and Succession Act) ” establishes a default scheme for determining alternative beneficiaries of a lapsed gift.
The Default Scheme of Section 46 WESA (Replacing and altering the previous S. 29 Wills Act)
Section 46 applies to all gifts of any nature, whether specific in nature or residual but only if there is no contrary intention stated in the will.
If the will- maker has named an alternate beneficiary for a gift that has lapsed, then in that event the alternate beneficiary has the first priority to inherit the gift, no mater what the reason for the failure of the gift.
If there was no alternative beneficiary of the gift , and the named beneficiary is either a sibling, or as descendant of the will- maker, then the named beneficiary’s descendants will be entitled to the failed gift.
If there was no descendant of the will- maker , then the gift will go to the residual beneficiaries in proportion to their named interests in the will.
When gifts cannot take effect
46 (I) 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 (I) applies whether the beneficiary’s death occurs before or after the will is made
Becker v Becker 2016 BCSC 487 nicely summarizes much of the law relating to mental capacity aka testamentary capacity including the law re the burden of proof in mental capacity cases.
THE LAW
51 The burden of proving testamentary capacity is on the party propounding the Will, but there is a presumption of capacity where the Will has been duly executed, with the requisite formalities, after having been read by or to a testator who appeared to understand it. That presumption may be rebutted by evidence of suspicious circumstances, in which case the burden reverts to the propounder to prove testamentary capacity on the balance of probabilities: Vout v. Hay, [1995] 2 S.C.R. 876 (S.C.C.).
52 The “suspicious circumstances” must do more than create “a general miasma of suspicion”; they must create “a specific and focused suspicion that the testator may not have known and approved of the contents of the will: Clark v. Nash (1989), 61 D.L.R. (4th) 409 (B.C. C.A.) at 425.
53 Suspicion may relate to circumstances:
i) surrounding the preparation of the will;
ii) tending to call into question the capacity of the testator; or
iii) tending to show that the free will of the testator was overborne by acts of coercion or fraud: Laszlo v. Lawton, 2013 BCSC 305 (B.C. S.C.) at para. 202.
54 The usual civil standard of proof — namely, proof on a balance of probabilities — applies, but as a practical matter the extent of the proof required will be proportionate to the gravity of the suspicion, which will vary with the circumstances peculiar to each case: Vout at para. 24; Laszlo at para. 205.
55 In Laszlo at para. 207, Justice Ballance said there is no fixed checklist of circumstances that will be considered suspicious, but:
[207] … [c]ommonly occurring themes include where a beneficiary is instrumental in the preparation of the will (especially where the beneficiary stands in a fiduciary position to the testator), or where the will favours “someone who has not previously been the object of [the testator’s] bounty and does not fall within the class of persons testators usually remember in their wills, that is to say their next of kin”: Longmuir v. Holland, 2000 BCCA 53, at para. 69 [Longmuir]; Heron Estate v. Lennox, 2000 BCSC 1553 at para. 67 [Heron Estate].
56 Ballance J. also discussed, at paras. 189 and 190, the question of timing:
[189] Timing is key. In general, the first relevant time that testators must have testamentary capacity is when they give will instructions; the second is when the will is executed. In recognition of the fact that faltering mental capacity is prone to fluctuate, the authorities permit variation of the degree of capacity required at these pivotal times. For example, the will of a testator who is competent to give instructions, but has lost capacity when the will is executed, may be valid so long as, at the time of execution, the testator was capable of comprehending that she was executing a will drawn in accordance with her previous instructions: Parker v. Felgate (1883), 8 P.D. 171; Brownhill Estate (1986), 72 N.S.R. (2d) 181 (Co. Ct).
Leontowicz Estate v Bakus 2016 BCSC 601 dealt with the validity of a trust relating to mining stakes where it was argued that the deceased had entered into a Joint Venture Agreement that must be based on whether or not there is a binding contract between the venturers.
The court reviewed the evidence and documents and concluded that the deceased in creating the trust did not intend to create a Joint Venture Agreement and discussed the law relating to same :
76 I reject the defendant’s proposition that the Deceased, Bakus and Dahl intended the Trust Declarations as joint venture agreements. A trust declaration may form part of a joint venture agreement, but it must itself constitute a valid trust and satisfy all the essential elements summarized earlier in these Reasons.
77 The invalid Trust Declarations in this case purported to create bare trusts. They do not declare or contain the terms necessary to constitute an enforceable joint venture. The actions Bakus undertook both with respect to the Deceased’s mineral claims and to his own did not represent performance of the terms of a joint venture agreement. The Trust Declarations did not authorize them and there is no joint venture agreement to be found that does so, either in writing or clearly inferable from the parties’ conduct, or from the surrounding circumstances.
78 The subject matter of the venture remains at best ill-defined and vague. In other words, if there was a form of contract, it would be void for uncertainty of essential terms. There is no expressed right of mutual control or management of the enterprise. There is no provision for a right of accounting or reimbursement for extraordinary contributions made to the venture of the kind Bakus said he had made and for which he should be compensated. The purported assets of the alleged joint venture are at best uncertain.
What is a Joint Venture Agreement?
[31] … Although its existence depends on the facts and circumstances of each particular case, and while no definite rules have been promulgated that apply generally to all situations … the following factors must be present [for a valid joint venture]:
(a) A contribution by the parties of money, property, effort, knowledge, skill or other asset to a common undertaking;
(b) A joint property interest in the subject matter of the venture;
(c) A right of mutual control or management of the enterprise;
(d) Expectation of profit, or the presence of “adventure”, as it is sometimes called;
(e) A right to participate in the profits;
(f) Most usually, limitation of the objective to a single undertaking or ad hoc enterprise.
75 To be valid, the joint venture agreement must have at its foundation a binding contract among the partners or joint venturers which contains all the essential terms of the agreement between the parties: Blue Line Hockey Acquisition Co., Inc. v. Orca Bay Hockey Limited Partnership, 2009 BCCA 34[Blue Line] at para. 10; see also, Palmar Properties Inc. v. JEL Investments Ltd., at paras. 37-41. In Blue Line, the parties’ intention to form a joint venture agreement was found in the express terms of the joint venture agreement and the trust declaration, which the defendants did not dispute were validly executed.
Positions of dependence or domination are frequently involved in estate litigation and typically relate to caregiving or predator type behavior that ultimately takes advantage of feeble mind.
Elder Estate v Bradshaw 2015 BCSC 1266 involved a contested court action re the validity of the deceased’s will as a result of allegations of lack of mental capacity and undue influence.
The deceased left his entire estate to a 26 year younger housekeeper who gradually became his caregiver. The will was challenged by his three nephews who were his next of kin on an intestacy.
The decision is a good source of law relating to both the legal framework for proving the validity of a will in solemn form, as well as a review of undue influence, both with respect to a bequest left in the will and monies advanced to a joint bank account.
The court examined the evidence of several witnesses and concluded that there was no undue influence on the part of the caregiver with either the will or the joint bank account.
The deceased was elderly, had no next of kin and was almost reclusive. The relationship between the parties was over several years and the witnesses testified that their relationship was not suspicious in any manner. The evidence supported the caregiver’s position that she was his main source of emotional and physical support for many years, and he stated that he did not know what he would do without her.
It is somewhat surprising that the court does not adopt s. 52 WESA in its reasons for judgment relating to the issue of the shifting onus of proof re undue influence other than to say that the legal framework to prove the will in solemn form is still the law relating to the shifting burden of proof, despite the wording of s. 52.
It is almost impossible to separate the two issues of lack of mental capacity and undue influence as they are invariably intertwined in the facts. Probably the only undue influence case that might occur without there being lack of mental capacity is the situation of a cult were on person controls the minds of many.
THE LAW
[10] In Leung v. Chang, 2013 BCSC 976, Dardi J. summarized the pertinent authorities and legal framework for analyzing a proof in solemn form claim where issues of testamentary capacity and undue influence are raised:
Legal Framework of Proving a Will Valid In Solemn Form
[25] The Supreme Court of Canada in Vout v. Hay, [1995] 2 S.C.R. 876 clarified the principles with respect to the burden of proof in litigation regarding contested wills. The Court articulated the considerations which govern the interrelation of the doctrine of suspicious circumstances and the issues of testamentary capacity, knowledge and approval, undue influence and fraud.
[26] In an action for proof of will in solemn form, the party propounding the will must prove on a balance of probabilities that the will was executed in compliance with the statutory formalities, that the will-maker knew and approved of the contents of the will and that the will-maker had testamentary capacity: Vout at paras. 19-20.
[27] In order to make a valid will, the will-maker must have a “baseline level of mental acuity” or a “disposing mind and memory”, sufficient to appreciate and comprehend the nature and effect of the essential elements of the testamentary act. This encompasses an appreciation of the claims of the persons who are the natural objects of her estate and the extent of her property of which she is disposing: Laszlo v. Lawton, 2013 BCSC 305 at para. 185; Banks v. Goodfellow (1870), L.R. 5 Q.B. 549; Leger v. Poirier, [1944] S.C.R. 152 at 161. The assessment of whether a will-maker possesses testamentary capacity is a highly individualized inquiry and is a question of fact to be determined in all the circumstances: James v. Field, 2001 BCCA 267 at para. 51; Laszlo at para. 197.
[28] In certain circumstances, the propounder of the will, in discharging the burden of proof, is aided by a rebuttable presumption of validity. If the will was duly executed in accordance with the requisite statutory formalities after being read over to or by a testator who appeared to understand it, it is presumed the testator possessed the requisite testamentary capacity and knew and approved of its contents: Vout at para. 26.
[29] This presumption may be rebutted by evidence of “well-grounded suspicions”, referred to in the jurisprudence as “suspicious circumstances”, relating to one or more of the following circumstances:
(i) surrounding the preparation of the will;
(ii) tending to call into question the capacity of the will-maker; or
(iii) tending to show that the free will of the will-maker was overborne by acts of coercion or fraud: Vout at para. 25.
[30] If suspicious circumstances are established, then the presumption is spent and the legal burden of proof reverts to the propounder of the will. The propounder of the will then reassumes the legal burden of proving knowledge and approval, as well as proving testamentary capacity, if the suspicious circumstances reflect on the mental capacity of the will-maker to make a will: Woodward v. Grant, 2007 BCSC 1192 at para. 108. In order to discharge the burden, the propounder of the will is required to dispel the suspicious circumstances that have been raised: Ostrander v. Black (1996), 12 E.T.R. (2d) 219 at para. 30 (Gen. Div.).
[31] In Vout, the Court affirmed that if a court determines that suspicious circumstances exist, the applicable standard of proof is a balance of probabilities. However, the evidence must be scrutinized in accordance with the gravity of the suspicion raised in any particular case.
[32] In order to rebut the presumption of validity, those attacking the will must meet the threshold of demonstrating that there is some evidence “which, if accepted, would tend to negative knowledge and approval or testamentary capacity”: Vout at para. 27; Maddess v. Racz, 2009 BCCA 539 at para. 31. The court in Scott v. Cousins (2001), 37 E.T.R. (2d) 113 (Ont. S.C.J.) describes the requisite evidence as that which “excites the suspicion of the court”. A “general miasma of suspicion that something unsavoury may have occurred” is insufficient to rebut the presumption of validity; the evidence must raise a “specific and focused suspicion”: Clark v. Nash (1989), 61 D.L.R. (4th) 409 at 425 (B.C.C.A.).
[33] The court in Laszlo provides the following instructive observations regarding the doctrine of suspicious circumstances at para. 207:
Suspicious circumstances have been found to exist in a wide array of situations and are not necessarily sinister in nature. There is no checklist of circumstantial factors that will invariably fit the classification. Commonly occurring themes include where a beneficiary is instrumental in the preparation of the will (especially where the beneficiary stands in a fiduciary position to the testator), or where the will favours “someone who has not previously been the object of [the testator’s] bounty and does not fall within the class of persons testators usually remember in their wills, that is to say their next of kin.
Undue Influence
[34] When undue influence or fraud is alleged, the party opposing probate always bears the legal burden of proving on a balance of probabilities the affirmative defence of undue influence: Vout at para. 28. It is important to appreciate that in these circumstances, the doctrine of suspicious circumstances and the shifting of the burden of proof has no application.
[35] In order to invalidate a will on the grounds of undue influence, the asserting party must prove that the influence exerted against the will-maker amounted to coercion, such that the will did not reflect the true intentions of a free will-maker and was not the product of the will-maker’s own act. The undue influence must constitute coercion which could not be resisted by the will-maker and which destroyed his or her free agency. It is well-established on the authorities that if the will-maker remains able to act freely, the exercise of significant advice or persuasion on the will-maker or an attempt to appeal to the will-maker or the mere desire of the will-maker to gratify the wishes of another, will not amount to undue influence: Maddess v. Racz, 2008 BCSC 1550 at para. 324 aff’d 2009 BCCA 539; Freeman v. Freeman (1889), 19 O.R. 141 at 155 (C.A.); Scott at para. 112.
[11] I adopt this summary as accurate and applicable in respect of the issues regarding the validity of the 2011 Will in the present case. Paragraphs 34-35 of the quoted passage are no longer applicable to wills to which s. 52 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [WESA] applies, that is, where the will-maker died after March 31, 2014.
S. 58 of WESA (Wills, Succession and Estates act) once again came to play to cure an otherwise defective will in Re Smith Estate 2016 BCSC 350.
Once again the leading case in BC to date of re Young estate 2015 BCSC 182 was followed.
The facts:
The deceased and her husband lived together in a common law relationship for about 35 years until they married in 2012 .
The applicant was the deceased’s granddaughter who as a child was very close to the deceased and lived with her for period of time.
The applicant remained very involved with the deceased as an adult.
The deceased advised that she had drafted three documents and signed them having asked the applicant if she would be the executor of her will and she agreed.
After the death of the deceased, the applicant searched for any testamentary documents in all places she thought they might reasonably be found including funeral box .
The applicant found a clipped and stapled together copy of a 2008 document, an original 2011 document, and an original “funeral arrangements” document. ( three in total)
The applicant brought applications for determinations that two handwritten records represented the testamentary intentions of deceased, and were fully effective as though they had been made as or part of her will; and for orders and declarations setting out results of these determinations as well as orders dispensing with service of notice of application on particular beneficiaries, and her special costs .
The Court granted the orders.
The law:
17 Turning to the applicable law, WESA came into force on March 31, 2014. Among other things, section 58 permits the court to allow a document to be fully effective as though it had been made as a will, where the court determines the document represents a deceased’s testamentary intentions. Before WESA, documents that failed to strictly comply with the formal requirements of the Wills Act, R.S.B.C. 1996, c. 489 regarding the making, signing, and witnessing of a will were invalid.
18 Section 58 was first considered in Young Estate, Re, 2015 BCSC 182 (B.C. S.C.). Madam Justice Dickson observed the provision is curative, providing the court with a discretion in prescribed circumstances to relieve against the consequences of non-compliance with testamentary formalities. It cannot however be used to uphold a will that is invalid for substantial reasons such as testamentary incapacity or undue influence. Her decision relied upon the principles set out in George v. Daily (1997), 143 D.L.R. (4th) 273 (Man. C.A.) which dealt with similar provisions in the Manitoba Wills Act.
19 At paragraph 35, Dickson J. described the approach to an application under s. 58 of WESA as follows:
… (t) he 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.
20 She concluded the factors relevant to determining whether a document embodies the deceased’s testamentary intention are context-specific and may include the presence of the deceased’s signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests, and the title of the document.
Discussion and analysis:
21 During the hearing the applicant quite properly raised an issue about the validity of the gift to her set out in the 2011 document suggesting it may be construed as creating an unenforceable gift-over. I agree entirely with her further submission, however, that it is not the role of the court on an application pursuant to s. 58 to determine the validity of the instrument per se including the validity of the gifts it sets out. To the extent this approach may have been taken in Beck Estate, Re, 2015 BCSC 676 (B.C. S.C.), I decline, respectfully, to follow that decision.
22 Turning to the application of s. 58 to the facts of this case, the applicant recognizes the handwriting in the documents as that of the deceased. In any event, it is clear to me the handwriting matches known samples of her handwriting. Accordingly, I find the documents are authentic.
23 In this case, the factors relevant to determining whether each of the documents records a deliberate or fixed and final expression of the deceased’s intention regarding disposal of her property on death include:
The presence of her signature indicating her approval of the content of each document.
The titles she gave to each of the documents.
The content of the documents:
The first sets out and distributes a long list of clearly identified personal items to many specific beneficiaries on the event of her death and,
The second, includes a specific distribution of her real property, again, on the event of her death.
Both documents are expressed in language that conveys an air of finality.
The deceased met with Mr. Smith to discuss her will and presented him with both of these documents along with a third regarding funeral arrangements. She advised him she had drafted them herself and signed the first two. Her husband was also present for that meeting.
She subsequently met with the applicant and expressly asked her if she would agree to be her executor which she did. She advised the applicant that all of the necessary documents would be found in a funeral box she had prepared.
After the death of the deceased, the applicant then found a copy of the 2008 document, the original 2011 document and the funeral arrangements document in that funeral box. No other documents setting out a testamentary intention were ever located despite a diligent search.
24 After weighing all of these factors, I find on the balance of probabilities that the 2008 and 2011 documents represent the deliberate and final expressions of the deceased’s testamentary intentions. I therefore grant the orders sought by the applicant.
25 Pursuant to Rule 25-14(8)(i), I grant a further order dispensing with the requirement to serve the beneficiaries of the gifts set out in the 2008 document with notice of the application. I am satisfied that most of these gifts have already been distributed. As described in the document, they appear to involve personal items with little monetary value, and the beneficiaries would not have an entitlement upon an intestacy.
Wills made before March 31, 2014 , are still subject to the strict rules of compliance that existed prior to when WESA came into force as per Public Guardian BC v Sheaffer et al 2015 BCSC 1306.
The deceased died in 2011 leaving a 1974 will that was unsigned. The court found it void as the curative provisions of s 58 WESA do not apply to deaths before March 31, 2014.
The Law For Deaths Prior to March 31, 2014 re Wills
It was well-settled in British Columbia, prior to the enactment of the WESA, that it was necessary to strictly comply with the statutorily prescribed formalities for creating a will. The courts have no discretion in waiving those requirements. In Ellis v. Turner (1997), 43 B.C.L.R. 283 (C.A.), the Court of Appeal commented on these strict compliance provisions, at 285:
The Wills Act creates a scheme designed to insure that a document purporting to be a testamentary disposition is in fact the will of the testator. A strong indicia of authenticity is proof that the will was signed at its end in the presence of witnesses. This Court must interpret, apply and respect the law as passed by the legislature. To declare the will in this case to be valid would be to by-pass the clear provisions of the Wills Act and to create a discretion in this Court which is not found in the Act. This is something which we cannot do.
26 The formalities for execution have been incorporated into s. 37 of the WESA. However, the WESA has introduced a remedial provision in s. 58 that gives the court a broad authority to “cure” a purported will, an alteration to a will, or the revocation of a will that does not satisfy the signing and witnessing requirements prescribed by s. 37. Section 58 constitutes a key component of the modernization of the law of wills and succession in British Columbia because it empowers the court to uphold the will-maker’s true intentions even where the will, a gift under the will, or a purported alteration or revocation of the will is invalid pursuant to other provisions of the WESA.
27 The application of s. 58 extends to “a record, document or writing or marking on a will or document”.
The pertinent provisions of the WESA provide as follows:
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 subsection (3) if the court determines that a record, document or writing or marking on a will or document represents
(a) the testamentary intentions of a deceased person,
(b) the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or
(c) the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.
(3) Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking 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.
(4) If an alteration to a will makes a word or provision illegible and the court is satisfied that the alteration was not made in accordance with this Act, the court may reinstate the original word or provision if there is evidence to establish what the original word or provision was.
186 (1) Subject to subsections (2) and (3) of this section and section 189, Part 4 [Wills] applies to a will, whenever executed, if the will-maker dies on or after the date on which Part 4 comes into force.
(2) Subsection (1) does not invalidate a will validly made before the date on which Part 4 comes into force.
(3) Subsection (1) does not revive a will validly revoked before the date on which Part 4 comes into force.
Willmakers often leave an unsigned, un-witnessed and undated memorandums alongside his or her Will that usually purports to dispose of largely sentimental valued personal effects and household items, that may or may not be of legal effect.
The question generally is whether the memorandum was specifically referred to in the will and came into existence at the time of the will, so that it may be incorporated as part of the will, or failing same it is of no legal effect.
Studer Estate v Studer 2009 SKQB 366, a Saskatchewan case discusses the law:
“ The case of Chamberlain, Re (1975), [1976] 1 W.W.R. 464 (Sask. Surr. Ct.) as establishing in Saskatchewan the threshold requirement for incorporating unattached memorandum referred in a will. These conditions must firstly all exist, as follows:
The document must be referred to in the will;
The reference in the will must be sufficient to identify the documents;
The document must be an existing document, and not one that is to come into existence at a future date.
36 Before discussing the above, I also agree with counsel the onus to satisfy that the three essential criteria have been met is placed upon the party submitting the document for incorporation (See: Thomas Estate v. Gay, [1996] O.J. No. 2901 (Ont. Gen. Div.) (this onus is the usual civil standard of the balance of probabilities).
37 My review of the three conditions is as follows:
The document must be referred to in the will.
38 I find that, arguably, the Memorandum was referred to in the Will and that paragraph 3(d) states:
…to the charities outlined in the memorandum kept with this my Will. …
The memorandum itself makes reference to (d) of the Will of Berna Studer. However, as set out below, this is not determinative of these matters.
The reference in the will must be sufficient to identify the documents.
39 Again, arguably, this may be the case here. The wording of the Will makes reference to a Memorandum and the Memorandum makes reference to paragraph (d) of the Will of Berna Studer. Again, this is not determinative.
The document must be an existing document, and not one that is to come into existence at a future date.
40 However, this condition clearly has not been met here. There is no evidence that the Memorandum was “an existing document” and I find that the Memorandum was one “to come into existence at a future date”.
41 Accordingly, since all three conditions must be met, then the Memorandum cannot be incorporated into the Will. As indicated, it certainly does not have stand-alone testamentary status.
42 The Janice Wilkes’ letter has no testamentary status as indicated and clearly came into existence a considerable time after Berna signed her Will. Accordingly, it cannot be incorporated into the Will.
A disrespectful, estranged adult child and almost abusive,who was also virtually unemployable and living on welfare, was awarded 40% of the $50,000 estate of his mother, Bronson v Bronson Estate 1996 BCJ 3038
The plaintiff was raised as a single child in abject poverty by the deceased- he never knew his father.
He actually hit his mother on one occasion.
The Bronson case arguably stands for the proposition that if an adult child has need, he or she may still succeed in a wills variation action despite there being valid reason to disinherit the child.
“There is some evidence that relations between mother and son were not always friendly but I am doubtful if it could be said that there was a continuing course of physical abuse of his mother by her son, the plaintiff — it was probably a situation where there were frustrations on both sides and it appeared from the evidence that at times, the son spoke harshly or disrespectfully to his mother. It seems pretty clear that there was a degree of estrangement on the part of the mother towards her son and I daresay that to a degree that estrangement was occasioned by his sometimes inconsiderate treatment of her.
17 In this case, the court faces the claim of an adult son who is to a degree disabled. The plaintiff struck me, in giving his evidence and in argument, as reasonably articulate but he says that the sequelae of his 1974 accident have caused him great difficulty in finding and keeping steady employment. However, his early history immediately after high school was not altogether productive on the work front and I am by no means fully convinced that he is as unemployable as he claims to be. However, given his poor work history, it is undoubtedly the case that he is a person who would have above ordinary difficulty in finding steady remunerative employment. In short, his prospects are not highly favourable by any means.
18 A case that in some ways may throw light on the instant situation is the earlier British Columbia case of Re Bailey Estate, a judgment of Wilson C.J.S.C., reported at [1972] 1 W.W.R. 99 and on appeal, affirming the trial judgment at [1972] 3 W.W.R. 640. The headnote conveniently sets out the essence of the case. The case involved the estate of the wife of Nat Bailey, the well known local restaurant proprietor of White Spot fame.
By her will the testatrix left her entire estate, worth some $250,000, to her husband if he survived her by more than ten days, otherwise to her three grandsons, the children of the petitioner, who was her son by a former marriage. The husband, a wealthy man in his own right, survived the testatrix and took her estate. The petitioner was a weak-willed and irresponsible spendthrift who had enjoyed generous treatment from his mother on many occasions in the past and had, by his own conduct, thrown away many chances of making good engineered for him by her kindness. He was now earning $100 per week without any guarantee of continued employment and he was in debt.
Wilson C.J.S.C. on a full review of the authorities, held that notwithstanding the petitioner’s deplorable record as disclosed by the evidence, he was the only person to whom, within the framework of The Testator’s Family Maintenance Act, the testatrix owed a moral duty which she had not fulfilled; an order made under the Act by a judge was not to be considered primarily as a reward for good conduct and character or as a punishment for bad conduct and existing claims and considered in the light of the magnitude of the estate. In the case at bar the moral duty undoubtedly owed by the testatrix to the petitioner would be met by an order directing payment to him of $300 per month for his lifetime.
19 At p. 102, the Chief Justice used this langauge concerning the applicant in that case:
I am therefore confronted with a situation in which it cannot be said that the mother had any debt of gratitude to her son, or any reason to suppose he would put to proper use any capital sum she might leave him. She had, on the contrary, a long record of totally unappreciated benevolences conferred by her on her son, of wasted opportunities and of bitterly disappointed maternal hopes.
20 There are differences in that case and the case at bar and I think that here the son from time to time did try to help his mother around the property but in general, he was not of great assistance to her economically and I think that relations were often poor between them. Based on their relationship, his claims to her moral bounty were quite minimal. In considering what I might describe as the merits of his claim to receive an inheritance from his mother, I would not be inclined to take a particularly expansive view. But I cannot lose sight of the fact that he is to an extent a disadvantaged person and clearly he is the only surviving close blood relative of the testatrix. Bearing in mind the words of Chief Justice Wilson in the case of Re Bailey Estate and some of the comments of that able jurist Freedman J. (as he then was) in Re Karabin(1954) 13 W.W.R. (N.S.) 222 (referred to by the Chief Justice in the Bailey case), it seems to me that the mother may be said to have failed in her duty to her son, having regard to the authorities that have construed our statute and similar statutes in other jurisdictions. The authorities do make it clear, however, that this class of legislation does not give to the judiciary a roving commission to wholly disregard the wishes of testators and to recast wills according to the individual jurists’ notions of justice. That said, however, it must be honestly recognized, as observed in the Allardice case, that the views of different jurists may not always coincide and to some extent each case involves a judgment call and a value judgment. In effect, someone must make the decision and the individual judge is called upon to do so.
Verwoord v. Goss, 2014 BCSC 2122 is one of a few cases, and perhaps a trend in incapacity law, where the courts have found a will invalid by reason that the deceased was delusional about a beneficiary that should have been considered, by reason of paranoid thoughts towards the beneficiary ( “she was out to get him” ) and cognitive impairment.
I have excerpted the legal reasoning on incapacity that also provides the factual basis to support the fining that delusions towards the expected beneficiary to support the invalidation of the will.
Testamentary Capacity
189 Turning now to the issues I must decide, at the outset I must determine whether or not Bart had capacity to make the 2009 Will prepared by Lynda Cassels. I have determined that he did not.
190 The law regarding testamentary capacity is well-known and was helpfully summarized by Halfyard J. in Btydon v. Malamas, 2008 BCSC 749 (B.C. S.C.) ^Brydon”). As held in that case, where a will has been duly executed, and the testator appears to know and approve of the contents of that will, the law presumes that the testator possessed the requisite testamentary capacity. However, where facts are proven which “create the suspicion” of non-capacity on the part of the testator, that presumption is rebutted. The onus accordingly then shifts to the proponents of the will, who must “prove, on the balance of probabilities, that the testator did possess testamentary capacity” (para. 51).
191 To prove testamentary capacity, the proponents of the will, here the defendants, must establish that when the 2009 Will was made, Bart “had a disposing mind and memory,” that he understood the nature of the will and its effects, the extent of the property disposed, and was “able to comprehend and appreciate the claims to which he ought to give effect” (Brydon, paras. 48-49). This test has also been articulated as requiring proof that Bart was not ailing under a disorder of the mind which “poisonjed] his affections, pervert[ed] his sense of right, or prevented] the exercise of his natural faculties” (para. 49). In other words, the defendants must prove that Bart was not acting under a disorder of the mind which caused him to execute a will that would not have been made were he of sound mind at the time.
192 In Feeney’s Canadian Law of Wills, 4th ed. (Markham, Ont.: LexisNexis Canada, 2000), it is noted that issues respecting the mental capacity of a testator generally fall into two categories: specific delusions and senile dementia (§2.8). The former involves irrational beliefs held by the testator which affected the dispositions made in the will. Often, such beliefs involve an aversion for a specific family member, which will only undermine capacity where the aversion cannot be rationally explained, or if it is found “that the testator was merely feigning … in order to rationalize his failure to provide for his family” (§§2.9-2.11). As noted in Brydon, the deluded testator irrationally believes facts which have no basis in reality, and conducts his affairs based on the assumption that those facts exist (para. 210).
194 Additionally, I am of the view that Lynda Cassel’s opinion relating to Bart’s capacity is weakened by the fact that she appeared to accept as true all of Bart (and Dennis’) allegations with respect to Caroline, that I have found to be false. I have also considered that Bart’s allegations in the 2008 WVA declaration, which he told Lynda Cassels he did not read, were true, and those contained in his 2009 WVA declaration are false. As I have noted, I cannot determine whether Bart did hold any prejudice with respect to Dennis as an American Indian, but I am not satisfied that issue has any importance since under the 2008 Codicil Bart was continuing to treat all of his children equally.
195 Finally, I do not give weight to the evidence of Brenda Milbrath, since she acknowledged that her opinion would have been impacted if she had known that Bart was experiencing the kind of delusions that I have found he was in fact having.
196 Both the evidence of Bart’s lawyers and the evidence of the doctors deserve careful scrutiny in determining whether Bart had capacity, but ultimately a decision on capacity is a common sense decision based on all of the evidence I have heard.
197 While I accept that the presumption of testamentary capacity applies to Bart’s 2009 Will, I find that the presumption has been rebutted. Not only have the plaintiffs raised “suspicious circumstances” concerning Bart’s capacity, but in my view, there is overwhelming evidence that Bart was acting ailing under delusions at the time that he executed the 2009 Will. These include the specific delusions that Caroline was “out to get him” was “following him” and “was spying on him.” There is nothing to indicate that Bart’s delusions with respect to Caroline were feigned, nor are they explicable, as I find that Bart’s perception of Caroline’s actions was wholly irrational and entirely inconsistent with the events that actually occurred.
198 In Brydon, supra, the Court recognized that there must be some connection between the delusion and the contested transaction in order for a transaction to be invalidated (para. 209). There can be no doubt of a reasonable connection between the 2009 Will and Bart’s delusions concerning Caroline. Indeed, this is evidenced in Bart’s statutory declarations made at the time, which expressly attribute Caroline’s lesser share of Bart’s estate to “[h]er actions [which] have caused me great pain and expense.”
199 All of Bart’s beliefs about Caroline and Caroline’s actions were wrong and were in direct conflict with what he would have believed had he not been cognitively impaired. I find that all of Bart’s statements in his 2009 WVA declaration have been conclusively disproven at trial. While I cannot determine whether or not Bart did have any prejudice against Dennis as a result of his ethnicity (as indicated in the sealed WVA declaration), I find that is not dispositive since it is my view that Bart’s overarching concerns about Dennis and Thea were expressed in the 2008 WVA declaration and have been proven.
Verwoord v. Goss, 2014 BCSC 2122, 2014 CarswellBC 3339
As noted in Feeney’s Canadian Law of Wills, supra, senile dementia arises where the mental faculties of the testator are so diminished that the testator lacked capacity. The mere fact of a diagnosis or advanced age is not sufficient, as the overarching question is whether the testator “has sufficient mental power … to appreciate and understand” the will (§§2.13-2.15). In this regard, I do not place any weight on the results of the test conducted on Bart in January 2010, since, as noted by Dr. Bater, test results are not conclusive to a diagnosis. Further, I have real concerns that those results are invalid, as I am suspicious that the results were achieved by coaching by the defendants.
I find that Bart’s testamentary capacity had been undercut by senile dementia by the time of the making of the 2009 Will. I accept that the question of whether Bart had Alzheimer’s or another form of dementia is not determinative in this regard. However, Bart’s memory limitations, confusion, and general cognitive impairment had so eroded his faculties that he could not “appreciate and understand” the will at the time that it was made.
Further, Bart’s beliefs about Caroline’s actions were encouraged and conveyed to his lawyer Lynda Cassels. In his e-mails to Ms. Cassels, Dennis included such language as “Caroline’s attempt to nail his coffin shut,” “…set Caroline off like hell has no fury,” “Caroline is acting like Hitler and a dictator,” which language would have been particularly influential with Bart since he was living in the Netherlands during World War II, “Caroline will weave her web of lies and deceit,” and “Bart fears Caroline’s wrath.” I conclude that since Dennis was using such language with Ms. Cassels, he was similarly using such language when he spoke to Bart. In my view, the reasonable inference to be drawn is that Dennis encouraged Bart’s delusional beliefs respecting Caroline.
203 The evidence indicates that Bart’s susceptibility to delusion as well as the impairment of his faculties increased substantially around the time of Bart and Anna’s European vacation, and became more acute particularly in the period following Anna’s death. While it is not possible to identify with precision when, precisely, he was deprived of testamentary capacity, I find that this occurred subsequent to the 2008 Codicil but prior to the making of the 2009 Will. Accordingly, I find that Bart lacked testamentary capacity to make the 2009 Will.
204 As noted by the majority in Rogers, Re.\ 19631 B.CJ.■■No. 133 (B.C. C.A.), the requisite capacity to make inter vivos gifts is the same as testamentary capacity (para. 30). For the reasons I have outlined above, I also find that Bart lacked sufficient capacity to make the inter vivos dispositions in January 2010. As noted, Bart’s capacity had diminished even further by this poin
Wills made before March 31, 2014 , are still subject to the strict rules of compliance that existed prior to when WESA came into force as per Public Guardian BC v Sheaffer et al 
Willmakers often leave an unsigned, un-witnessed and undated memorandums alongside his or her Will that usually purports to dispose of largely sentimental valued personal effects and household items, that may or may not be of legal effect.
Mental Incapacity and Paranoid Delusions