Re Horton 2020 BCSC 87 reviewed the criteria required for an order of committeeship under the Patient’s Property act and ordered that the Public Guardian and Trustee be appointed and the contesting applicants denied court costs due to their wrongful conduct motivated by an animus against the other.
S.2 Patients Property Act provides that the Attorney General, a near relative of a person or other person may apply to the court for an order declaring that a person is, because of:
a) mental infirmity arising from disease, age or otherwise, incapable of managing his or her affairs, or incapable of managing himself or herself, or incapable of managing himself or herself or his or her affairs.
The act does not prescribed criteria for or factors to be considered in the selection of a person to serve as a committee, but it is well-established that the test invokes the parens patriae jurisdiction of the court and is governed by an assessment of who will serve the patient’s best interests. Re Bowman 2009 BCSC 523 at para. 32
Re Stewart 2014 BCSC 2321 at para. 29 summarize the factors that have been considered in other cases in determining who should be appointed to serve as committee:
whether the appointment reflects the patient’s wishes, when he or she was capable of forming such a wish;
whether immediate family members are in agreement with the appointment;
whether there is any conflict between family members are between the family and the patient, and whether the proposed committee would be likely to consult with immediate family members about the appropriate care of the patient;
the level of previous involvement of the proposed committee with the patient, with family members usually been preferred over an outsider;
the level of understanding of the proposed committee of the patient’s current situation, and whether that person will be able to cope with future changes;
whether the proposed committee will provide love and support to the patient;
whether the proposed committee is the best person to deal with the financial affairs and ensure the income and estate are used for the patient’s benefit;
whether the proposed committee has breached a fiduciary duty owed to the patient, or engaged in activity which diminishes confidence in that person’s abilities to properly handle the patient’s affairs;
who was best to advocate for the patient’s medical needs;
whether the proposed committee has an appropriate plan of care and management for the patient and his or her affairs, and is best able to carry it out;
whether a division of responsibility, such as between the patient’s estate in the patient’s person to different persons would serve the best interests of the patient, or whether such a division would be less than optimal.
The court pointed out that this list of factors, it is not exhaustive, the enquiry is fact specific, and one or more factors may not be applicable in any particular case, and the factors may be given different weight depending on the circumstances.
Costs Denied
Generally speaking, successful applicants for a committeeship should be awarded special costs payable under the patient’s estate, and that even’s unsuccessful applicants whose actions were motivated by concern for the best interests of the patient should be awarded special costs payable out of the estate. Re Atwal BCSC 660 at paras. 23-25.
The court however denied both applicants costs in these proceedings by reason of their wrongful conduct that was motivated by Animus against the other, thus necessitating the court applications by reason of their ongoing power struggle.
The BC Court of Appeal upheld a Supreme Court decision that notaries are not allowed to prepare wills in British Columbia that create life estates or trusts under the Notaries act – in the decision Society of Notaries v Law Society of British Columbia 2017 BCCA 448.
The decision largely revolved around an interpretation of section 18 of the Notaries act RSBC , and in particular section 18 (b) (1) that states:
A member enrolled and in good standing may do the following:
b) draw and supervise the execution of wills
1) by which the will- maker directs the will makers estate to be distributed immediately on death;
2) that provide that if the beneficiaries named in the will predecease the will maker, there is a gift over to alternative beneficiaries vesting immediately on the death of the will maker, or
3) that provide for the assets of the deceased to vest in the beneficiary or beneficiaries as members of a class not later than the date when the beneficiary or beneficiaries or the youngest of the class attains majority. The court reviewed the history of the legislation in British Columbia pertaining to notaries and referred to a previous decision in Law Society of British Columbia v. MacDonald 2013 BC SC 1204, that restrained the notary from engaging in the unauthorized practice of law, wherein the notary had drawn a will that included a trust and a life estate.
The McDonald decision stated that the notaries act appears directed at simple wills, where the gift is distributed both legally and beneficially immediately
The McDonald decision stated that the interpretation of the words distributed immediately on death in section 18 (B)(1) referred to the immediate distribution of the estate, and did not mean that some beneficial interest will be distributed immediately with rights to full legal title and to possession to be distributed later because the remainder man’s right to distribution is postponed by the life tenant’s right to possession, a will that contains a life estate does not affect immediate distribution.
The court concluded that when comparing the wording of the Legal Profession act and the Notaries act, it was evident that the legislative assembly authorize notaries to draw only the three types of wills described in sections 18 B, (1), (2), and (3).
That provision is disjunctive in that each of its subsections describes a different type of will.
The court then looked at several dictionary interpretations of the words distribute or distribution and found a distinguishing interpretation between the use of the word distributed and the use of the word vested into other subsections, that failed to support the legal argument advanced by the notaries.
The court referred to Jarman on Wills, as approved in the decision Browne v. Moody 1936 AC 635 that stated:
“ Even though there is no other gift than in the direction to pay or distribute in future: yet if such payment or distribution appeared to be postponed for the convenience of the fund their property, the vesting will not be deferred until the period in question. Thus, where a sum of stock is bequeathed to A for life, and after his decease, to trustees, upon trust to sell and pay and divide the proceeds to in between C and D, or to pay certain legacies there out to C. Indeed, as the payment or distribution is evidently deferred until the deceased of A, for the purpose of giving precedence to his life interest, the alternator legatees take a vested interest at the decease of the testator.”
Accordingly, the court rejected the notaries argument that the legislature had authorized notaries to draw wills that contain life estates and trusts in which the beneficial interest or interests vest immediately on the death of the will maker.
Aho v Kelly 1998 CarawellBC 1285 held that a one third owner of a property who also held a life estate in the property had the right to capitalize the life estate and force a sale of the property under the partition of property Act. The other two co owners could not have partitioned the property while the life estate was in place but the holder of the life estate could do so.
Here, this petitioner is a tenant in common in her own right. While she is also a trustee with the respondents under s. 96 of the Estate Administration Act (if that section still applies in light of the 1995 settlement), she nevertheless enjoys an independent capacity as a tenant in common and in that capacity she can invoke s. 2 of the Partition of Property Act.
28 Obviously, a court would be extremely cautious in ordering the sale of lands subject to a life estate where the life tenant does not consent. But where the life tenant agrees, the court enjoys jurisdiction to order a sale:
29 Chupryk was a case similar to that at bar to the extent that the life tenant there was also a reversioner as to a one-third interest in title to the lands. Matas J.A. considered the cases at length. He summarized the Ontario cases (at 62):
The relationship of tenants in common to each other and to a life tenant has been considered in several decisions. In summary, it has been held (not unanimously) that partition legislation may be invoked in Canada only by persons having “an estate in possession” or having “the immediate right to its possession”: Laskin, ibid, p. 402.
In an early case, Lalor v. Lalor (1883), 9 P.R. 455, it was held by Proudfoot J., that a tenant for life is entitled to a partition and where there is a right to a partition there may be a right to a sale as the Court may determine. But in Murcar v. Bolton (1884), 5 0.R. 164 (followed in Rajotte v. Wilson (1904), 3 0.W.R. 737) in a contest between a life tenant and her children who held the remainder in fee, as tenants in common, it was held by a majority (2:1) that there was no power to compel a sale of land as against the tenant for life. …
30 Matas J.A. concluded (at 65):
… In my respectful view (supported, I think, by the reasoning in Lalor, supra, and in the dissenting judgments in Murcar and Bunting, supra) Mr. Chupryk is entitled to apply for an order for sale and the Court is empowered under the Act to exercise its equitable jurisdiction to make the order. The power is discretionary: Fritz v. Fritz (No. 1), 57 Man. R. 510, [1950] 1 W.W.R. 446, [1950] 2 D.L.R. 104 (C.A.).
No doubt the discretion would be exercised cautiously. It would be a rare case where a life tenant would be compelled to suffer partition or sale against his wishes. But here, the life tenant, who is also the registered owner of an estate in remainder, has not objected to a sale.
31 Chupryk was considered in Morris v. Howe (1982), 38 O.R. (2d) 480 (Ont. H.C.).
32 DuPont J. held (at 485, referring to Chupryk,):
To the extent that this decision may be seen as authority for the propositions that a life tenant may obtain sale of land over the opposition of a remainderman, or that one of several remainderman may obtain partition (and hence possibly sale) of the lands before the remainder has fallen into possession and without the consent of a prior life tenant, Lalor and Bunting v. Servos, establishes that the law of this province is to the contrary. But I think the conflict between the laws of Manitoba and Ontario in these respects may be more apparent than real. The essential fact in Chupryk, was that all the parties interested in the land desired sale. This, it appears to me, distinguishes the case from the various Ontario decisions to which I have referred. This also distinguishes it from the instant application.
33 It will be seen that the case at bar presents a different variation on the theme in Morris . Here one of the reversioners, who is also a life tenant, seeks a sale of the lands.
34 In Morris, DuPont J. goes on to say (at 485):
I do not think that where, as here, land is subject to consecutive interests of a sole life tenant and a remainderman, this Court can or ought to grant the life tenant an order the effect of which will be to defeat the remainderman’s interest in the lands without his consent and against his reasonable opposition. I find that the respondent’s opposition to sale of the lands is reasonable, having regard to all the circumstances. I leave open for future consideration factual situations where it can be concluded that such opposition is not reasonable.
35 I conclude that it is open to me to follow Chupryk, and I do so.
36 That then engages the court’s discretion under sections 2 and 7 of the Partition of Property Act.
37 I will deal with the exercise of my discretion, after I have considered the remaining questions which I have posed.
(b) Common Law Life Estate and Value
38 Clearly a common law life estate is a property interest having some “value”. I use that word in the sense of an amount of money or goods for which a thing can be exchanged in the open market. At common law, a life estate is alienable. Upon a transfer it becomes an estate pur autre vie.
39 Kwasnycki (supra) reminds us that a life tenant has the right to occupy the property in question and to rent or lease the whole or part thereof for his or her lifetime and to enjoy the net income therefrom.
44 That a common law life estate has value was finally, implicity, recognized in Crow v. Samiroden (December 22, 1997), Doc. New Westminister S0-34057 (B.C. S.C.) and Blowers, Re (1985), 24 E.T.R. 143 (Man. Q.B.).
45 I repeat the second question in this analysis:
Does the common law life tenant’s interest have a value capable of capitalization which should properly be discharged out of the proceeds of sale under the Partition of Property Act?
Re: Zarowiecki 1092 CarswellMan 99 dealt with the valuation of a life estate in a homestead and followed the formula dictated by the Supreme Court of Canada in Re Morice v Davidson (1943) SCR 545, utilizing actuarial calculations.
The Supreme Court of Canada decision, Re Morice; Morice v. Davidson, [1943] S.C.R. 94, 545, [1943] 1 D.L.R. 680, [1943] 4 D.L.R. 658, establishes the proper procedure to be followed. At p. 97 Hudson J. states:
When the appellant and respondent agreed to sell the property, they were selling two separate estates: the life estate of the appellant and the remainder of the fee simple held by the respondent as executor of the estate. The proceeds of the sale belonged to the parties in the proportion which the life estate bore to the remainder.
Further:
20 “… the value of the life estate must be ascertained on the basis of $4,275”, (the net proceeds of the sale) “being the value of both life estate and remainder, and when this is done the appellant will be entitled to be paid the amount fixed as value of the life estate.” And at p. 98:
If the parties cannot agree no doubt the amount should be fixed on a reference with the aid of an actuary.
21 There has been no agreement in this case nor any apparent hope of agreement.
22 The learned justice concluded, at p. 98:
The net proceeds of the sale of the homestead should be divided in proportion to the respective values of the life estate and of the remainder, the widow accordingly receiving out of such proceeds the share representing the value of the life estate.
23 The net proceeds of the sale of the homestead property amounted to $202,284.51, as agreed by counsel. The value of the widow’s life estate, the amount to which she is entitled out of the sale proceeds, is calculated on the basis of actuarial evidence. The ingredients in the calculation are the interest rate, the value of the property and the life expectancy of the widow: Re Casselman (1974), 6 O.R. (2d) 742, 47 D.L.R. (3d) 354 (H.C.).
24 Two experts were heard in the present case on the application of the three factors. Dr. John McCallum, economist and professor of finance and administrative studies at the University of Manitoba, testified that the interest rate to be used would represent a real rate of return. That would take into account such items as inflation and any other of a negative character, as opposed to the nominal interest rate. He stated that in conventional use in North America, two to three per cent were indicative of a real return. He found that three per cent in this case would be a not unreasonable figure.
25 Mr. John Corp, consulting actuary of Reed Stenhouse, adopted the three per cent interest rate as an acceptable and reasonable real rate of return in his calculation of the life interest based on the sale proceeds. He also took into account, he testified, the age of Mary Zarowiecki, which, it was agreed, was 82 years at the time of sale. He used the Manitoba Life Tables for females, 1975-77, published by Statistics Canada. Mr. Corp found that the proportion of the value of the property attributable to the life tenant is 17.83 per cent. The time of sale, when the life estate was disposed of, was the proper time on which to base the calculation. According to Mr. Corp’s testimony, he followed accepted actuarial practice.
26 I find that the value of the life estate is 17.83 per cent of the net proceeds of the sale of the homestead or $36,067.39, which sum is payable forthwith in a lump sum upon receipt by the estate of the sale proceeds.
Mowaqtt v BC Attorney general 2016 BCCA 113 dealt with a long established principle of adverse possession relating to squatters long time use of property that had escheated to the crown . A claim of squatters to legal entitlement to a parcel of property occasionally occurs in estate disputes in this blog from the BC Court of Appeal explains this long-established legal principle .
The appeal was from an order dismissing the appellant’s claim, based on the doctrine of adverse possession, for recognition of title to land long possessed by them and others.
The claim derived from occupancy of land on Kootenay Lake by squatters no later than 1909.
The absolute legal title to this land escheated to the Crown by dissolution of the corporate titleholder in 1930.
The trial judge found that the appellants had not proved continuous possession of the land for the years 1916 to 1920. This gap, he said, broke the continuity required for a successful claim.
The BC Court of Appeal allowed the appeal :
The claim depended upon limitations provisions that derive from 1833 English limitations legislation, received into British Columbia law November 19, 1858, contemporaneously with proclamation of the Colony of British Columbia. The claim depended on a web of circumstantial evidence that should be tested on the basis of “its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions”.
The issues are resolved as follows:
1) The appellants did not lack standing to bring the claim. Whatever claim prior possessors of the land had was passed to the appellants.
2) It was not necessary for the appellants to establish that the squatters’ use of the property was inconsistent with the use of the land intended by the owner of the absolute title. The requirement to prove inconsistent use does not apply in British Columbia.
3) Evidence not considered, or not fully considered in the context of other evidence, demonstrated that the gap in likely possession was shorter than found by the judge. Applying an approach consistent with the Land Title Inquiry Act and the nature of proof available, and considering the shortened gap, the nature of the property and the circumstances known of persons associated with the property, it is more likely than not that the adverse possession of the land by squatters had the degree of continuity between 1916 and 1920 required for the claim. As years subsequent to 1923 were not addressed by the judge, the petition is remitted to the Supreme Court of British Columbia for final determination.
The Doctrine of Adverse Possession
[5] Adverse possession is an ancient doctrine rooted in the common law’s recognition of a possessory estate in fee simple and attenuated by the application of statutes of limitation. Recognition of an estate based on possession creates conflict between the rights of the possessor (sometimes called the squatter) and the superior right of the true or “paper” owner who has a right to evict the person in possession.
[6] Since 1833 in England, by the Real Property Limitation Act, 1833 (3 & 4 Will 4, c. 27), received in British Columbia on November 19, 1858 through what is now s. 2 of the Law and Equity Act, R.S.B.C. 1996, c. 253, the doctrine of adverse possession has required the true owner to sue to recover possession of land within a limitation period. Once the applicable limitation period has expired, the true owner’s cause of action in trespass and ejectment may be barred or extinguished, in consequence of which the true owner’s title may be extinguished and a person in possession will be entitled to have that title recognized. As L. Smith J. observed in Re: Land Title Inquiry Act and Canadian Pacific Railway Company, 2002 BCSC 1041:
[47] … where a party has had the intention to possess property and has in fact possessed it for the period of time stipulated in the limitation statute, effectively excluding the true owner, the true owner will be barred from bringing an action to recover the land. …
[7] As a true owner’s title is ultimately defeated by failing to pursue his cause of action against a squatter within the limitation period, the doctrine of adverse possession recognizes that the true owner must be in a position to assert his or her rights against someone. Accordingly, various preconditions and limitations to a claim to adverse possession have developed. In Principles of Property Law, 6th ed. (Toronto: Carswell, 2014), Bruce Ziff explains the necessary elements for adverse possession at 142:
… To succeed, the acts of possession must be open and notorious, adverse, exclusive, peaceful (not by force), actual (generally), and continuous. If any one of these elements is missing, at any stage during the statutory period, no rights against the paper owner can be successfully asserted. …
In general, … the adverse use must be such as to put the paper owner on notice that a cause of action has arisen. After all, the doctrine is based on the failure to bring suit within the limitation period, and therefore time should not run unless it is fair to hold a delay against the owner. Hence, the occupation must be open and notorious, and not clandestine. The adverse possessor must send out a clarion call to the owner, who, if listening, should realize that something is awry. Usually this means that the squatter must use the land in the way that an owner might.
[8] The doctrine of adverse possession does not require that the adverse possessor be the same person, provided adverse possession is continuous. Possession by different squatters can be “tacked” on one after the other, provided there is always someone for the true owner to sue. Anger & Honsberger, Law of Real Property, loose-leaf (consolidated December 2015), 3rd ed. by Anne W. La Forest (Toronto: Canada Law Book, 2006) at §28:50 states:
Once adverse possession has commenced, thus causing a right of action to accrue in some person with a superior right to possession, the time will continue to run against that person so long as there is continually some person in adverse possession who may be sued. Thus, either successors by transfer or by devolution to the title of the original adverse possessor, or a subsequent adverse possessor who is acting independently to dispossess the original adverse possessor or those claiming under them, may add together, or tack, all the prior periods of time together to extinguish the superior claim. However, if the original adverse possessor or those claiming title under them should abandon possession before the superior right of possession is extinguished, and there should be a gap before a subsequent adverse possessor acquires possession, no tacking is possible. During the period when no one was in adverse possession, the person with the superior right to possession would have no person to sue. Accordingly, time ceases to run against that person and, when the subsequent adverse possession occurs, time starts running an
Campaigners for the right to die are to have their arguments heard by the Supreme Court in the latest round of their legal battle.
It involves family of the late Tony Nicklinson of Wilts, who had locked-in syndrome, and Paul Lamb of Leeds, who was paralysed in a road crash.
They want the law changed so they can be allowed to die with the help of
Legal correspondent, BBC News
These cases raise some of the most profound ethical, moral and legal questions imaginable. Whilst it is not a crime to commit suicide, it remains a serious crime to assist someone to do so, punishable by up to 14 years imprisonment.
Paul Lamb’s argument is that the current law represents a disproportionate and discriminatory interference with his right to a private and family life under Article 8 of the Human Rights Act, because it does not allow him to end his life at a time and in a manner of his choosing – with the help of a medical professional. To fix that, he wants there to be a defence available to any doctor who assists a severely disabled person to end their life. This would be subject to strict safeguards, and would have to be sanctioned by a court in each individual case.
However, the defence is known as ‘necessity’ and it is based on the idea that it is necessary to assist to end a life in order to end unbearable suffering. That is hugely controversial and whilst many people will have enormous empathy with Paul Lamb and others like him, they fear that any relaxation in the law governing assisted suicide or euthanasia, would expose vulnerable groups such as the elderly, those with dementia and the disabled to pressure to end their lives so as not to be a financial or emotional burden.
There will be nine judges on the panel, rather than the normal five, overseeing the four-day hearing.
‘Unanimously dismissed’
Paul Lamb, 57, has been almost completely paralysed from the neck down since a car accident 23 years ago and says he is in constant pain.
He has called for the law to be changed so any doctor who helped him die would have a defence against the charge of murder.
Tony Nicklinson was paralysed from the neck down after suffering a stroke while on a business trip to Athens in 2005.
After losing his High Court battle last year, he refused food and died naturally, aged 58, a week later at his home in Wiltshire. His widow Jane is continuing his fight.
Earlier this year, Mr Lamb joined forces with Mr Nicklinson’s family to fight a joint legal battle.
‘Conscience of the nation’
In their Appeal Court case, the decision centred on whether the High Court was right to rule Parliament, not judges, should decide whether the law on assisted dying should change.
The three Court of Appeal judges unanimously dismissed the Nicklinson and Lamb challenge.
In the judgement, the Lord Chief Justice Lord Judge said Parliament represented “the conscience of the nation” when it came to addressing life and death issues, such as abortions and the death penalty.
“Judges, however eminent, do not: our responsibility is to discover the relevant legal principles, and apply the law as we find it,” he said.
At the same hearing a third paralysed man won his case seeking clearer prosecution guidance from the director of public prosecutions (DPP) for health workers who help others die.
The man, known only as Martin, wants it to be lawful for a doctor or nurse to help him travel abroad to die with the help of a suicide organisation in Switzerland. His wife and other family want no involvement in his suicide.
The Supreme Court will also deal with the DPP’s appeal against the Court of Appeal’s ruling in Martin’s favour.
Euthanasia For Terminally Ill Children Proposed In Belgium.
Further to my blog of a few days ago, Belgium is once again in the news as it is close to introducing legislation to grant euthanasia for terminally ill children, thus breaking what has been almost a universal tattoo.
It is expected that the law will pass a full Parliament vote and if so, it would make Belgium the first country in the world to remove the age limit for euthanasia procedure.
The Netherlands, a next-door neighbour, already allows euthanasia for children as young as 12 years, although these cases have rarely been recorded.
The new proposal in Belgium would remove any age limitation.
The law would also allow a psychologist to determine whether a child is able to choose to die.
“Death by Doctor” as euthanasia is often known, is strictly illegal in Canada.
Belgium however has in recent years enacted perhaps the world’s most liberal euthanasia laws. It is one of three countries along with the Netherlands and Luxembourg who have legalized euthanasia as a “medical alternative”.
A recent lethal injection given to a transsexual who suffered unbearable psychological and physical suffering following childhood abuse and terribly failed sex change operations, made international headlines.
What was unusual about the case was that the patient was not terminally ill, or even in much physical pain, but instead was primarily psychologically ill.
There is no requirement in Belgium that the patient be terminally ill, and in fact euthanasia has been granted to individuals who have predisposed genetic conditions leading to blindness and other undesirable conditions. The laws simply state that euthanasia is legal if the person who requested it is experiencing unbearable physical or mental point pain, resulting from an incurable accident or pathological condition. The request must be made in writing and approved by a physician after consultation with a colleague. A third doctor is consulted if the patient’s death is not imminent.
The view of the Belgian medical profession was that the ailing transsexual was really no different than someone suffering from multiple sclerosis or substantial paralysis.
Currently one in 50 deaths in Belgium are by euthanasia, and the trend is growing.
– See more at: http://www.disinherited.com/blog/belgium%E2%80%99s-liberal-controversial-euthanasia-laws#sthash.2JvUsSDB.dpuf
Life estates, also known as life interests, are a well-established part of estate planning.
The owner of a life estate (“the life tenant”) has the right to occupy, use and deal with real and/or personal property for his or her lifetime. When the life tenant dies, the remaining interest in the property then passes to the next person entitled, historically named the “remainderman”. The interest remaining after the death of the life tenant is called the “remainder interest”. After the death of the life tenant, the remainderman enjoys full ownership of the property.
Historically men of means, by their wills, left their wives life estates in their property. The widow could use the matrimonial home and investments for her life. When she died, these assets would then typically pass to their children.
In modern times, life estates are often used by testators in second marriages. They are used to provide security both to the second husband or wife and to ensure the ultimate inheritance of the property by the testator’s own children. A life interest is provided to the second spouse with the remainder interest in the property passing to children, after that spouse’s death.
Life estates, such as a discretionary trust for life, may also be used to provide financial security for disabled children, spendthrift children or drug and/or alcohol addicted children. Because the child never has complete control of the principal, he or she cannot dissipate the assets.
During his or her lifetime, a life tenant enjoys the right to possession and management of the property. This includes the right to earn rent from the property.
The various obligations of the owners are apportioned between the life tenant and the ultimate owner, the remainderman. For example, the life tenant will be responsible for paying the property taxes and the interest on any mortgage. The remainderman will be responsible for insuring the property and repaying the mortgage principal.
In general terms, a life tenant is entitled to use the property during his or her lifetime, but must treat the property in such a manner that it is not damaged and does not deteriorate, beyond reasonable wear and tear.
Life estates may be created:
– by will;
– by a trust indenture;
– by land transfer
– by court order;
– pursuant to s. 96 of the Estate Administration Act, RSBC, which covers succession on intestacies. It gives the surviving spouse the right to use the matrimonial home as a residence for life.
Caselaw Dealing with Life Interests Created by Will
1. Wilson v Wilson (1944) 1 W.W.R. 223
In this case the will provided the wife should receive all of the deceased’s property “for her sole use and benefit forever”. This was immediately followed by a direction that, upon her death, the residue be equally divided between their children.
The court held that the wife took only a life interest and the remainder went to the children. They found that the use of the word “forever” only emphasized that during the wife’s life, she should have the sole use and benefit of the property.
2. Pellan Estate v Pellan 1954 CarswellBC 92
The deceased left a homemade will that included the following clause “I give, devise and bequeath unto my husband the house at 1115 Princess to enjoy as long as he is able and then sold or given to the old ladies home”.
The court ruled that “to enjoy as long as he is able” can mean, at most, as long as he shall live. Therefore the husband received only a mere life interest.
3. Re Mulhall Estate (1975) W.W.D.120
The deceased’s will gave the whole of his estate to his wife so long as she remained his widow and in the event of her remarriage, the estate was to be wound up and divided in a specified manner.
The court held that it was clear that the stated intention of the testator was for the widow to hold the whole of his estate so long as she remained a widow, and went on to provide specific directions as to the vesting of his estate in the event of her remarriage. The widow therefore only received a life interest.
4. Cielien v. Tresidder 1987 Carswell BC 159 BCCA
The testator died after living with his common law wife and her son for 12 years. He left a stationary form will that provided that his common-law wife was to have the testator’s real property and all his other assets. It continued “however, upon the sale or disposal of the real estate as described above, the proceeds shall be equally divided between her son and my children.”
The trial judge held that the meaning of the will was to only give her a life interest in property. On appeal the court held that there were no words in the will to support an intention on the part of the testator to confer on his wife only a life interest in the property. On the contrary, he had intended her to have an absolute interest in it.
Caselaw Dealing with Power of Encroachment
1. Re Tomashewsky Estate (1923) 1 D.L.R. 1143
A testator gave all his real and personal estate “unto my wife, to use it all during her life, and after her death to pass among our children as she may think proper to divide and direct”.
On an application to interpret the will, the court held that the widow took only a life interest in the property with no power to encroach upon the capital of the estate. Upon her death she could give the remaining personal and real property to such of the children as she might select.
2. B.C. Minister of Finance v. Fraser (1974) 6 W.W.R. 560
By will a testator left his wife “a life interest in my estate and property”. The will provided that the remainder was to pass to a charitable society.
The estate consisted of both real property and cash. The issue was whether the spouse was entitled to encroach upon the cash during her life.
Since there was no clause in the will showing that the testator intended his widow to have a power of encroachment on the estate capital, the court ruled she was not allowed to do so.
The court held that it was well settled law that when the words “life interest” are used in the will in relation to personal property, then the life tenant may enjoy the income and nothing more. A testator must expressly or impliedly indicate an intention to give the life tenant a power of encroachment.
3. Pask v Tyler 1977 Carswell BC 293
Here the court was asked to determine whether the words “during her lifetime” created an absolute interest, a life interest, or a life estate with a power of encroachment.
There was no specific clause in the will allowing the wife to encroach on capital. Nevertheless, the testator did empower his trustee to convert his assets into cash and credit and to invest in any investment which she in her uncontrolled discretion considered advisable.
The court held that the power to convert and invest, read together with the other clauses in the will, established that the testator’s true intent was to bequeath a life estate to his wife with power to encroach upon the interests of the remainder. The court reasoned that since the estate was not large, if the testator had intended that his wife should only have the income from the estate, then he could have easily expressed that intention.
Disputes Over Repairs to the Property
Leaky condominiums have squarely raised the question of financial responsibility for costly repairs.
According to Water’s Law of Trusts in Canada, third edition, at page 1050 -51:
“the generally followed rule is that the tenant must meet ordinary or day-to-day repairs out of income, while repairs to the structure are the responsibility of the capital. This makes perfectly good sense, given the nature of each successive beneficiaries interest. Unfortunately, the authorities are by no means clear”
The Estate of Lynn Louise Hawkins, Deceased 2006 BCSC 1374 involved litigation concerning a leaky condo and the question of whether a life tenant should bear the expense of the significant repairs. In this case, the repairs amounted to over $71,000.
In this case the strata corporation had made the repair and then passed the cost along, as a special levy, to the individual unit owners. Under protest, the life tenant who had inherited under an estate, paid this strata council assessment. She then sought reimbursement from the estate, arguing that the special levy was not truly her responsibility as it did not represent “maintenance costs and repairs” as stipulated under the will.
The court held that the language of the repair clause under the will did not make the special levy a repair obligation of the life tenant. Instead, the court found that the levy represented an expense of a capital nature and was thus an obligation of the estate.
The court referred to a number of decisions differentiating between recurring, periodic repairs and those repairs necessary for the proper preservation of the building. The cases held that restoration repairs should be paid out of capital and whereas recurring repairs should be paid out of income. The court recognized that these general principles are often difficult to apply, particular for the trustee who has a duty to act impartially between the beneficiaries.
Determining the Value of a Life Estate
There is clearly a significant value to a virtually mortgage free home for life, which is often what a life estate entails. But what if one wants to move? Assessing the value of the life estate appears relatively simple in cases where the life tenant continues to live in the home or collects rents. Presumably the value can be calculated using the monthly rentals and the life expectancy of the life tenant and capitalizing the result.
It becomes more complicated, however, where a life tenant must sell the property thus ending the life estate. Such a situation may arise where there are insufficient estate assets to pay the estate debts and expenses requiring the property to be sold. Another example may involve joint ownership where the life tenant only owns a one half interest in the property and the one owner wishes to force a sale of the property under the Partition of Property Act.
The case law is not entirely clear as to whether, in such circumstances, the life tenant has a measurable value, capable of capitalization, and payable to the life tenant upon the termination of a life estate. It may depend on whether one is dealing with historic common law rights or statutory rights on intestacy accorded by the Estate Administration Act.
In Aho v Kelly 57 BCLR (3d) 369, the court dealt with the situation involving the settlement of previous estate proceedings between a stepmother and two stepchildren. The settlement involved registering the title to the matrimonial home in all three names as equal tenants in common. It also included, however, the formal registration on title of a life estate in the stepmother’s name.
The stepmother maintained that she enjoyed a common law life estate in the lands and that her interest had a value capable of capitalization. She argued that value of her interest was significantly higher than a one third interest in the proceeds of sale.
The court noted that it should be extremely cautious in ordering the sale of lands subject to a life estate without the consent of the life tenant. In this case, the court found that it had jurisdiction to order a sale because the stepmother did in fact consent.
The court found that the widow’s life interest did have a value capable of capitalization. It further found that, upon partition and sale this value should be paid from the sale proceeds, to the widow in priority to the remaindermen step children.
The court determined the value of the life estate based on the widow having a life expectancy of a further 18.7 years. This yielded a value entitling her to receive 76% of the sale proceeds upon sale, in priority to the two stepchildren who shared the balance.
A very different conclusion was reached in Khan v Khan 2004 BCSC 186. This case also dealt with the issue of the capitalized value of a life estate given upon intestacy, however in this case it was dealing with a life interest given under the terms of the Estate Administration Act. This case reached a very different conclusion.
In Khan the deceased husband had owned 50% of the house as a tenant in common with his mother. The house consisted of two self-contained units with related families living in either unit.
The husband had died intestate thus his widow inherited a life estate under the provisions of the Estate Administration Act. The widow sought a court order for partition and sale of the house and a direction that she was entitled to the balance of the sale proceeds after the mortgage was discharged (she was only 38 years old, thus the actuarial value of her life interest was calculated to be worth 96% of the value of the entire home.)
The court held that the wife was entitled to only a life estate in the one half of the property owned by her husband and that this interest would end if she chose to sell. The court relied, in particular, on the wording of Estate Administration Act, s. 96 which provides that the life estate shall exist for “so long as the surviving spouse wishes to retain the estate for life.” At para [17] Groberman, J found ” This language is inconsistent with the idea that the beneficiary of the life estate may choose to sell it.”
The court held that the wife’s application for partition and sale was inconsistent with any wish to retain the estate for life. Accordingly the wife’s life estate would be extinguished upon sale and thus had no value.
Conclusion
Life interests have long been important estate planning tools and it is expected that their use will continue as such. We can anticipate more litigation involving these estates as our society become more complex and life expectancies increase.
The Supreme Court of Canada has ruled that doctors cannot unilaterally choose to end life support services for Hassan Rasouli, an Ontario man who has been comatose since 2010.
In a 5-2 decision, justices for Canada’s highest court ruled doctors must first obtain consent from the man’s family, or, failing that, apply for permission from Ontario’s Consent and Capacity Board, a quasi-judicial body that addresses matters of consent under Ontario’s Health Care Consent Act.
The court stressed, however, that its ruling applied only to cases in Ontario, and did not address the broader ethical question of who has the final say — doctors or family — in end-of-life care for incapacitated people. In effect, it said that Ontario has a board set up for determining such matters, and that Rasouli’s case should have been brought before it.
Writing for the majority on the bench, Chief Justice Beverley MacLachlin upheld the decision of two lower courts rejecting the doctors’ position. The doctors had argued that Ontario’s consent act did not apply in Rasouli’s case because “consent is not required for withdrawal of life support that does not provide any medical benefit to the patient.”
Rasouli, a retired engineer, fell into a coma after undergoing brain surgery for a benign tumour in 2010. His attending physicians at Sunnybrook hospital gave him a poor prognosis with little chance of meaningful recovery from the coma, although his diagnosis was recently upgraded from “vegetative” to “minimally conscious.”
Rasouli’s family maintains his condition is improving and sought an initial court injunction to stop the doctors from ending life support.
Rasouli’s wife, Parichehr Salasel, refused consent to end life support, citing the couple’s Shia Muslim religion and a belief that her brain-damaged husband’s movements indicate some level of minimal consciousness.
Salasel screamed in approval when the decision came through Friday, saying she was “happy for all humans,” not just for her husband, who she said shows clear signs of consciousness.
The Rasouli case, at a glance
The history:In October 2010, retired engineer Hassan Rasouli underwent minor brain surgery for a benign tumour at Sunnybrook Hospital in Toronto. Days later, a bacterial meningitis infection left him severely brain damaged and comatose. With a prognosis that foresaw next to no chance of meaningful recovery, attending physicians in the intensive care unit announced plans to withdraw life support measures. Rasouli’s wife, herself a medical doctor, and two adult children felt it was too early to make a life-ending judgment call. The family got a court injunction to block doctors from pulling the plug. The case has since wound its way up to the nation’s top court.
The Question:The Rasouli case raised critical issues about end-of-life rights in Canada. Should physicians have final say on when to stop life-sustaining treatment when they feel it has become futile? Or should the families of incapacitated patients be able to defend their wishes for medical intervention and demand continued care? Clear guidelines were lacking.
The Significance:Supporters on both sides of the issue warned of wide-reaching impacts from any decision. Those in favour of allowing doctors to make the call said physicians could be more reluctant to admit patients to the ICU — where the sickest patients undergo aggressive treatment in hopes they will recover and be discharged — if they knew they wouldn’t have the ability to withdraw life support. Life-sustaining treatment is intended as a stop-gap on the road to recovery, they said, and sustained efforts to keep a body alive are painful, expensive and often do little more than delay the inevitable. Those supporting patient and family choice said Canadians have a right to care that is respectful of, and consistent with, a patient’s wishes, worldview and religious beliefs. Some worried the cost of intensive care might motivate decisions on the part of doctors, while the value of an individual’s life should be determined by those closest to him or her.
The Major Players:Sunnybrook Hospital doctors Brian Cuthbertson and Gordon Rubenfeld were appellants in the case. Rasouli’s wife, Parichehr Salasel, was the respondent on her husband’s behalf. Another significant player was Ontario’s Consent and Capacity Board, an intervener in the case. The board was one of the only provincial institutions set up to deal with questions of capacity to consent to medical treatment that fall under Ontario’s health acts, however it was created with a mandate of addressing mental health issues, not the ethical quandaries present in end-of-life care. Other interveners included: the Euthanasia Prevention Coalition, the Canadian Critical Care Society, Advocacy Centre for the Elderly, Evangelical Fellowship of Canada, and the HIV and AIDS Legal Clinic of Ontario.
The doctors argued withdrawing life-sustaining measures did not require consent from Rasouli’s wife, his surrogate decision-maker, because discontinuing care did not constitute “treatment” as set out under Ontario’s law. For the same reason, the doctors said, they did not require permission from the province’s Consent and Capacity Board to end care.
But MacLachlin wrote that the doctors’ interpretation of language in Ontario’s law was too narrow.
“First ‘treatment’ and ‘health-related purpose’ are not confined to procedures that are of medical benefit in the view of the patient’s medical caregivers,” she wrote.
The term “treatment” should be broadly interpreted to include “anything that is done” for a patient under a variety of circumstances — palliative, therapeutic, preventative, diagnostic or cosmetic, she said.
“In forestalling death, life support arguably falls within ‘therapeutic’ and ‘preventative’ purposes listed in the definition of ‘treatment,’ ” she wrote.
The court also rejected a third argument from the doctors, that requiring consent to withdraw life-sustaining practices in cases where there is no hope of recovery put them in an “untenable ethical situation.”
Dilemmas in end-of-life care are “inherent to medical practice,” MacLachlin said, and should not undermine provisions set out in the Act that clearly provide for a “meaningful role” of family and surrogate decision-makers in providing consent for treatment, including the discontinuation of life-prolonging measures and the beginning of palliative care.
“While the end-of-life context poses difficult ethical dilemmas for physicians, this does not alter the conclusion that withdrawal of life support constitutes treatment requiring consent under the HCCA,” MacLachlin wrote.
Further, the Act provides appropriate channels for dispute resolution through the Consent and Capacity Board, she said.
It is now up to the doctors to appeal to the board for a ruling on whether they can withdraw life support for Rasouli; however any decision rendered by the board can still be challenged in court.
A spokesman for Sunnybrook hospital told the Poston Friday that a decision has not been made yet on whether to dispute the decision by Rasouli’s family.
“There is a possibility of that. I should emphasize at this point, there has been no decision making around that …No decision has been taken about the consent and capacity board at this point,” chief medical executive, Dr. Andy Smith said.
“In terms of reflecting in general on how this has gone over the last three years, I do want to emphasize the extraordinarily positive relationship, the therapeutic relationship, between Mr. Rasouli’s family, the doctors, the rest of the care team. The care of Mr. Rasouli has been of the highest care and attention.”
While Dr. Smith “really appreciates the guidance the court has provided,” he said he is not worried that the decision will force Sunnybrook’s ICU to keep many patients on life support against the advice of their medical team.
“Sunnybrook has the largest ICU resource in the country. We have over 4,000 new, intensive care, really sick patients every year, that we take care of. When you look at our unit and all the other units across the land, these type of scenarios are not at all uncommon.”
“[But] It’s actually very common that the families work collaboratively with their doctors and their ICU teams to make the right decision in the case. That happens all the time.”
Justice MacLachlin was careful to state the court’s decision only addressed the issue of what Ontario’s act allows. Canada-wide, it did not address who “in the absence of a statute, should have the ultimate say in whether to withhold or withdraw life-sustaining treatment.”
Rasouli’s case did not, she said, “require us to resolve the philosophical debate over whether a next-of-kin’s decision should trump the physicians’ interest in not being forced to provide non-beneficial treatment and the public interest in not funding treatment deemed to be of little value.”
Five provinces and territories — Manitoba, B.C. Yukon, Quebec and Prince Edward Island – have similar legislation dealing with consent for medical intervention, but only Ontario has a board set up to deal with disputes. In the absence of such boards, dilemmas must be determined by the courts, Friday’s ruling concluded.
Justices Andromache Karakatsanis and Rosalie Abella formed the dissenting opinion on the court. In her written reasons, Karakatsanis held that Ontario’s Act should be interpreted the same way as common law, which she said does not “entitle a patient to insist upon continuation of treatment.
“Other courts have explicitly concluded that consent is not required for the withdrawal of treatment and that it is not appropriate for a court to interfere with medical doctors acting unilaterally professionally in the best interests of a patient.”
