Category: Probate Litigation

The Bogus Expert

A bogus expert was recently discussed in a sexual assault appeal, JP v BG 2016 BCCA 91 , when the Court labelled a bogus expert report as a” fraud on the court”.

The so called expert was in fact a recipient of a “diploma mill” and had very little in the way of credibility or credentials.

THE COURT STATED:

11 This brings me to the primary bases on which B.G. seeks an extension of time to appeal the family case; that there has been a fraud committed on the court by a witness called by the mother, Claire R. Reeves. Despite objection by the Province and B.G., Claire Reeves was permitted to give expert opinion evidence in the area of child sexual abuse and incest. Her evidence was lengthy, and heard over two days. She also filed a written report.

12 Claire Reeves has not responded to the allegations made, although counsel for J.P. has spoken with her. Thus, the comments I make about her relate to allegations and are not findings of fact.

13 She filed an expert report, and presented herself with qualifications that included a Doctorate in Clinical Counselling, Masters of Science in Clinical Psychology, Bachelor of Science in Family Mediation, and a Bachelor of Arts in Journalism.

14 Counsel for B.G. has examined these qualifications and discovered that they all appear to be online degrees obtained from unaccredited organizations, referred to colloquially as “diploma mills”. Other evidence was led to demonstrate that Claire Reeves was allegedly not truthful with respect to her employment, expertise and experience in court. For example, despite saying that she had testified in multiple cases in the United States, she does not appear on a United States expert witness data base, nor does she appear in any case after an extensive search conducted by a representative of LexisNexis. In other words, there is strong evidence to support the allegation that a fraud has been committed on the court.

15 In addition, B.G. submits, Reeves based much of her opinion on a theory called “child sexual abuse accommodation syndrome”, popularized in the 1980’s and 1990’s. This theory suggests that certain behaviours of children are consistent with sexual abuse. This theory was discredited as a diagnostic tool by the doctor who advanced the theory in the first place, and has not been admitted into courts as proof of sexual assault for decades. For example, see R. v. K. (A.) (1999), 45 O.R. (3d) 641 (Ont. C.A.) at paras. 61-62, 86, 125-129.

At paragraph 29 Bennett JA labelled such bogus expert evidence s a “ fraud of the court”.

Legal Procedures probate

Joint Tenancy Severed By Trust

A joint tenancy of co owned property was severed by the signing of a trust agreement by one of the co owners held the BC Court of Appeal in Public Guardian BC v Mee 1972 WWR 424 .

The respondent was the joint tenant with her former husband of real property.

Following divorce proceedings the husband executed a declaration of trust which was not registered at the Land Registry Office but was left with a solicitor.

By the document he constituted himself a trustee of his undivided one-half interest in the property for his infant son “until the sale or other disposition, or until the said William Donald Mee attains the full age of twenty-one (21) years, in trust for the said William Donald Mee to permit the said lands and premises to be used as a residence for himself, his mother and sisters.”

Further provision was made that if the property were sold one-half of the proceeds of sale were to be held in trust for the son, to be used for his education, and given to him on his becoming 21. The husband died some 5 years later and the wife made an application, which was successful, for a declaration that the property vested in her by right of survivorship.

The Public Trustee, on behalf of the infant appealed and the appeal was allowed.

The execution of the trust agreement was not consistent with unity of title and the joint tenancy was therefore severed and became a tenancy in common..

THE LAW

A declaration of trust had the same binding effect as a transfer to a trustee and could as effectively sever a joint tenancy as a transfer made to a trustee; the trust created by the father in the case at bar was completely constituted and was binding on his heirs, executors, administrators and assigns.

It followed that a severance of the joint tenancy was effected: Milroy v. Lord (1862), 4 De G.F. & J. 264, 45 E.R. 1185; Stonehouse v. Attorney General of British Columbia, 33 W.W.R. 625, 26 D.L.R. (2d) 391, affirmed [1962] S.C.R. 103, 37 W.W.R. 62, 31 D.L.R. (2d) 118 applied.

6 There is no doubt, and it was conceded by the respondent in the Court below as well as in this Court, that a vaid declaration of trust (although not registered in the appropriate Land Registry Office) could effectively sever a joint tenancy to the same extent as a transfer made to a trustee would do. The principle that a declaration of trust has the same binding effect as a transfer to a trustee has been long the law and is set out in the oft-cited case of Milroy v. Lord (1862), 4 De G.F. & J. 264, 45 E.R. 1185, wherein Turner L.J. at p. 1189 said:

… in order to render a voluntary settlement valid and effectual, the settlor must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him. He may of course do this by actually transferring the property to the persons for whom he intends to provide, and the provision will then be effectual, and it will be equally effectual if he transfers the property to a trustee for the purposes of the settlement, or declares that he himself holds it in trust for those purposes … but, in order to render the settlement binding, one or other of these modes must, as I understand the law of this Court, be resorted to, for there is no equity in this Court to perfect an imperfect gift.

Consolidation of Court Actions

It is not uncommon that two estate cases are commenced at the same time that relate to the same estate, and in such situations an order is often made for consolidation of the court actions or alternatively, that they be heard at the same time by the same judge.

THE LAW

Rule 22-5(8) of the Supreme Court Civil Rules provides:

Consolidation

(8) Proceedings may be consolidated at any time by order of the court or may be ordered to be tried at the same time or on the same day.

In The Owners, Strata Plan BCS 2854 v. Travelers Guarantee, 2013 BCSC 2428, Mr. Justice Steeves discussed the factors to be considered:

[14] It is well established in the authorities that I have a broad discretion under this Rule. As well, a number of previous cases have discussed consolidation applications. In these there appear to be acceptance of the following factors that should be considered:

• Whether there is a common question of law and fact. That is an important factor, but not the only one:

• Avoidance of multiplicity of proceedings.

• Savings of time and expense.

• Inconvenience to parties.

• Whether one action is at a more advanced stage.

• Whether an order results in delay of trial and so prejudice to one party; and

• Avoidance of inconsistent results.

This is from Merritt v. Imasco, [1992] B.C.J. No. 160, Shah v. Bakken (1996), 20 B.C.L.R. (3^rd) 393, and ICBC v. Sam (1998), 24 C.P.C. (4^th) 338.

Paragraph 37 from the Globalnet Management Solutions Inc. v. Aviva Insurance Company of Canada, 2013 BCSC 829, decision:

[37] Master Joyce held the issue is not to be determined solely on the basis of the commonality of issues, although that is described as important, and the first factor to be considered, but that after finding commonality the court should look at factors which were enumerated as follows:

(1) Will the order sought create a saving in pretrial procedures, (in particular, pre-trial conferences)?

(2) Will there be a real reduction in the number of trial days taken up by the trials being heard at the same time?

(3) What is the potential for a party to be seriously inconvenienced by being required to attend a trial in which that party may have only a marginal interest?

(4) Will there be a real saving in experts’ time and witness fees?

(5) Is one of the actions at a more advanced stage than the other?

(6) Will the order result a delay of the trial of one of the actions?

(7) If so, does any prejudice which a party may suffer as a result of that delay outweigh the potential benefits which a combined trial might otherwise have?

[16] A broad summary of my role under an application for consolidation is set out at paragraph 39 of Globalnet (citing Master Keighley in Sohal Estate v. Argitos, 2010 BCSC 916, para. 22) and that is: will the order to consolidate make sense in the circumstances?

Legal Procedures Trial Procedures

Joint Venture Agreement

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;

(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.

contested wills Legal Procedures probate

Court Costs Summarized

LeClair v Mibrella Inc. 2011 BCSC 533 summarized the law of court costs and it was recently re cited in Parmar Estate v Tiwari 2016 BCSC 540:

costs represent an important instrument by which courts can either promote or, conversely, sanction given conduct. Rule 14-1(9) provides one means of achieving this overarching object;
the onus is on the person who seeks to displace the usual rule that costs follow the event though Rule 14-1(9) conveys a discretion to the court, that discretion is to be exercised in a principled way;
the exercise of discretion must be connected to the conduct or misconduct of a party in the litigation;
the conduct in question can arise either at trial or at some earlier stage in the proceeding
costs are not to be used to sanction a party whose evidence was exaggerated or who gave evidence in error; and
where a court concludes that a party has intentionally or deliberately sought to mislead the court, that party will normally be deprived of costs.

Apportionment of Court Costs

Mawdsley v Meshen 2011 BCSC 923 , at para. 44:

[44] An essential principle articulated by the Court of Appeal in Worthington and Sutherland, and recently endorsed in Lewis v. Lehigh Northwest Cement Limited, 2009 BCCA 424, at para. 36, is that because apportionment is an exception to the usual rule, it is to be confined to relatively rare cases. Consequently, it would be overly simplistic to approach apportionment as being a given in all cases where the party who has been successful overall has lost one or more issues, even discrete issues, in the proceeding. There is no automatic entitlement to apportionment despite the aforesaid outcome. At the end of the day, apportionment is meant to achieve fairness in the particular circumstances. For that reason, care must be taken so that an apportionment does not result in an unintended or plainly unfair set-off of costs to a plaintiff who has enjoyed substantial success. Of necessity, apportionment is a matter of judicial discretion.

Costs probate

Expert Reports and Opinions

Many estate litigation cases involve the necessity of obtaining an expert opinion in the form of a written report that summarizes the evidence that the expert will and opinion give at trial. The expert must set out the factual assumptions and documents that were relied upon in forming the written expert report and opinion.

Expert reports are what is known in law as “opinion evidence and may contain hearsay evidence as per the following guidelines”

The Court of Appeal summarized the correct approach for dealing with opinion evidence of this type in Mazur v. Lucas, 2010 BCCA 473 (B.C. C.A.).

When deciding what weight to place on expert evidence, the trier of fact must assess the extent to which the expert relied on hearsay evidence and factual assumptions, and the reliability of those hearsay statements and assumptions. Madam Justice Garson for the Court summarized this as follows:

[40] From these authorities, I would summarize the law on this question as to the admissibility of expert reports containing hearsay evidence as follows:

An expert witness may rely on a variety of sources and resources in opining on the question posed to him. These may include his own intellectual resources, observations or tests, as well as his review of other experts’ observations and opinions, research and treatises, information from others — this list is not exhaustive. (See Bryant, The Law of Evidence in Canada, at 834-835)
An expert may rely on hearsay. One common example in a personal injury context would be the observations of a radiologist contained in an x-ray report. Another physician may consider it unnecessary to view the actual x-ray himself, preferring to rely on the radiologist’s report.
The weight the trier of fact ultimately places on the opinion of the expert may depend on the degree to which the underlying assumptions have been proven by other admissible evidence. The weight of the expert opinion may also depend on the reliability of the hearsay, where that hearsay is not proven by other admissible evidence. Where the hearsay evidence (such as the opinion of other physicians) is an accepted means of decision making within that expert’s expertise, the hearsay may have greater reliability.
The correct judicial response to the question of the admissibility of hearsay evidence in an expert opinion is not to withdraw the evidence from the trier of fact unless, of course, there are some other factors at play such that it will be prejudicial to one party, but rather to address the weight of the opinion and the reliability of the hearsay in an appropriate self-instruction or instruction to a jury.

estate litigation Legal Procedures probate

WESA Probate Delivery Rules

Re Davies estate 2014 BCSC 1233 deals with the WESA probate rules relating to the 21 day notice and proof of delivery of that notice.

This blog will be of note to anyone applying for a grant of probate or administration as to the requirements to be met before a grant will issue.

[6] Rule 25-2(1), (2) and (3) and Rule 25-4(2) of the Supreme Court Civil Rules provide as follows:

(1) Subject to this rule, unless the court otherwise orders, a person intending to apply for an estate grant or for the resealing of a foreign grant in relation to the estate of a deceased must, at least 21 days before submitting for filing the materials required for that application under this Part, deliver the following to the persons referred to in subrule (2):

(a) a notice that complies with subrule (3);

(b) whichever of the following, if any, that applies to the intended application:

(i) if the intended applicant intends to apply for a grant of probate or a grant of administration with will annexed, a copy of the will in relation to which the application is to be made;

(ii) if the intended applicant intends to apply for the resealing of a foreign grant or for an ancillary grant of probate or an ancillary grant of administration with will annexed, a copy of the foreign grant and, if a copy of the will in relation to which the foreign grant was issued is not attached to the foreign grant, a copy of the will;

(iii) if the intended applicant intends to apply for an ancillary grant of administration without will annexed, a copy of the foreign grant.

[en. B.C. Reg. 149/2013, s. 8; am. B.C. Reg. 44/2014, Sch. 1, s. 3 (a).]

(2) The documents referred to in subrule (1) must be delivered to the following persons:

(a) if the deceased left a will, each of the following who is not a person by whom or on whose behalf the documents referred to in subrule (1) are to be delivered (a person by whom or on whose behalf the documents referred to in subrule (1) are to be delivered is, in this subrule, called an “intended applicant”):

(i) each person

(A) who is named in the will as executor or alternate executor,

(B) whose right to make an application for an estate grant in relation to the deceased is prior to or equal to the intended applicant’s right to make that application, and

(ii) each beneficiary under the will who is not referred to in subparagraph (i) of this paragraph;

(iii) each person who, under Division 1 of Part 3 of the Wills, Estates and Succession Act, would have been an intestate successor if the deceased did not leave a will and who is not referred to in subparagraph (i) or (ii) of this paragraph;

(b) if the deceased did not leave a will,

(i) each person who, under Division 1 of Part 3 of the Wills, Estates and Succession Act, is an intestate successor of the deceased, and

(ii) each creditor of the deceased whose claim exceeds $10,000 and who is not referred to in subparagraph (i) of this paragraph;

(d) if the deceased was a member of a treaty first nation, the treaty first nation;

(e) any other person who, by court order under subrule (14) (a), is to receive notice;

(f) any person not referred to in paragraph (a), (b), (c), (d) or (e) of this subrule who has served a citation on the intended applicant in relation to the deceased.

[en. B.C. Reg. 149/2013, s. 8.]

(3) A notice under subrule (1) must be in Form P1, must be signed by the intended applicant or the intended applicant’s lawyer and must contain the following:

(a) the name, last residential address and date of death of the deceased;

(b) subject to subrule (4), the name and mailing address of the intended applicant and an address for service for the intended applicant, which address for service must be an accessible address that complies with Rule 4-1 (1);

(d) the estate grant or resealing for which the intended applicant intends to apply;

(e) the registry of the court where the submission for estate grant or submission for resealing will be filed;

(f) the following statements in relation to each person to whom the notice is delivered:

(i) that the person has a right to oppose,

(A) in the case of a notice provided in relation to an application for an estate grant, the issuance to the intended applicant of either or both of an authorization to obtain estate information and an estate grant, or

(B) in the case of a notice provided in relation to an application for a resealing of a foreign grant, either or both of the issuance of an authorization to obtain resealing information and the resealing of the foreign grant;

(ii) that the person may or may not be entitled to claim against the estate for relief, including a claim under

(A) the Family Law Act, or

(B) Division 6 of Part 4 of the Wills, Estates and Succession Act;

(iii) that, if the person chooses to take a step referred to in subparagraph (i) or (ii) of this paragraph, the person must do so within the time limited by any relevant rule of court or other enactment;

(iv) that the person may consult with that person’s own lawyer concerning the person’s interest in, or rights against, the estate;

(v) in the case of an application for a grant of administration, that the person may apply for an order requiring the intended applicant to provide security unless the intended applicant is the Public Guardian and Trustee;

(g) the following statements:

(i) that an estate grant may issue or a foreign grant may be resealed, as the case may be, without further notice, on any date that is at least 21 days after the date on which the notice is delivered, or on any earlier date ordered by the court;

(ii) if an authorization to obtain estate information issues to the intended applicant, the intended applicant may apply for an estate grant without further notice, and if an authorization to obtain resealing information issues to the intended applicant, the intended applicant may apply for the resealing of the foreign grant without further notice;

(iii) that if an estate grant issues to the intended applicant as a result of the application, the intended applicant must provide, if there is a will, to the beneficiaries or, if there is no will, to intestate successors of the deceased, an accounting as to how the estate was administered and how the estate assets were distributed, and

(iv) that if a foreign grant is resealed as a result of the application, the intended applicant must provide, if there is a will, to the beneficiaries or, if there is no will, to intestate successors of the deceased, an accounting as to how the estate comprising the assets to which the resealed grant applies was administered and how those assets were distributed.

[en. B.C. Reg. 149/2013, s. 8; am. B.C. Reg. 44/2014, Sch. 1, s. 3 (b).]

25-4(2) The registrar must not issue an authorization to obtain estate information under subrule (1) (a) of this rule or an estate grant under subrule (1) (b) unless the registrar is satisfied that

(a) notice of the application has been delivered in accordance with Rule 25-2,

(b) the application materials comply with Rule 25-3,

(c) without limiting paragraph (b), if the application is for a grant of probate or a grant of administration with will annexed and is supported by an affidavit in Form P3, it was appropriate for that form of affidavit to be filed in support of the application,

(d) if the application is for an ancillary grant of probate or administration,

(i) the information in the foreign grant respecting the name of the deceased and the other names by which the deceased was known exactly matches the information in the submission for estate grant respecting those names, and

(ii) each of the persons to whom the foreign grant was issued is an applicant in the submission for estate grant, and the names of the applicants in the submission for estate grant exactly match the names of the persons to whom the foreign grant was issued,

(e) if the document to be issued is an authorization to obtain estate information, the only document that remains to be filed is the affidavit of assets and liabilities for estate grant and the applicant requires the authorization to obtain estate information to facilitate the applicant’s ability to determine the assets in the estate and the liabilities applicable to them,

(f) if the document to be issued is an estate grant, all fees payable in relation to the application, including all probate fees, have been paid,

(g) there is no notice of dispute in effect in relation to the estate, and

(h) there is no reason to require a hearing in relation to the application.

[en. B.C. Reg. 149/2013, s. 8.]

[7] Rule 25-2(1) clearly provides that at least 21 days before submitting materials for filing, the applicant must deliver certain things to certain persons.

[8] The first thing which must be delivered is a notice which complies with subrule (3). Reference to subrule (3) reveals that such notice must be in Form 1, must be signed by the intended applicant or his or her lawyer, and must contain all of the enumerated information referred to in subrule (3)(a)-(g) inclusive. Form 1 in its entirety is mandatory; the other material to be delivered varies with the type of application and is detailed in subrule (1)(b).

[9] Rule 25-2(2) details who is to receive the notice detailed in subrule (1) in both will and non-will situations as well as situations in which the deceased was a Nisga’a citizen or a member of a treaty first nation or when a person has served a citation.

[10] Rule 25-4(2), again in mandatory fashion, states that the registrar must not issue an authorization for information under Rule 25-4(1)(a) or an estate grant under Rule 25-4(1)(b) unless he or she is satisfied, among other things, that notice of the application has been delivered in accordance with Rule 25-2.

[11] Form P9 is the form which provides the registrar with evidence as to who received notice of the application and of what that notice consisted. Nowhere in the standard Form P9 is there specific reference to when notice was delivered, however, that does not reduce the duty on the registrar to be satisfied that proper 21 day notice has been provided.

[12] The absence of express evidence of the date of delivery is not fatal in itself. The Form P9 may well be silent in its body as to the date of delivery but may have been sworn 21 or more days before the application was submitted. In such case, as long as the list of enumerated persons correctly identifies the persons entitled to notice, the registrar may properly infer adequate notice and process the application for the estate grant. In situations where that Form P9 is sworn less than 21 days before the filing of the application the inference is not available and sufficient evidence as to the date of delivery must be provided in order that the registrar may be satisfied as to observance of and compliance with Rule 25-2. Where such evidence satisfies the registrar that proper 21 day notice was given before the application was filed, the matter may be processed based on the original application date; where the evidence fails to establish that 21 day notice was given before the application was filed the original application cannot be remediated and must be resubmitted following a proper 21 day notice period, established by proper evidence.

[13] In this particular file, and as indicated at the outset of these reasons, the application was filed a mere four days after the swearing of the Form P9 and contained no evidence as to the date of delivery. In such circumstances additional evidence must be provided in order to establish the date of delivery and thus the provision of the required 21 day notice. Until such evidence is provided the application for probate cannot be considered further or processed.

Legal Procedures probate WESA wills variation

Passing Over: Removing An Executor

Special circumstances sometimes occur where it is appropriate for the Court to Pass Over the named executor in favour of another which effectively removes the named executor

In Re Thomasson Estate, 2011 BCSC 481 the court Passed over the named executor by reason of personal conflict of interest.

The Court stated:

[28] The application is not to remove Alex as an executor but simply to pass over him so that an enquiry can be undertaken of the transfer of the Property to him and his wife by the deceased in 2006, and a determination can be made if any further actions need be taken in regards to the Property.

[29] In the circumstances of this case, it is my opinion that there is a perceived conflict of interest between Alex in his role as an executor and his interest in his personal capacity. If an action is instituted by the executors as a result of the transfer of the Property, it would be against Alex. In my opinion, Alex, in his capacity as executor, cannot attack the transfer of the Property to himself while at the same time maintaining, in his personal capacity, that the transfer of the Property was proper. By making such a finding I am not prejudging the case. I am simply of the view that, in the circumstances of this case, if an action is commenced as a result of the enquiries into the transfer, Alex cannot conscientiously act as a plaintiff in his capacity as an executor in a case where he will be the defendant.

Many cases have stated that the right of a testator to nominate the executor to administer his estate should not be lightly interfered with. (see Re Agnew Estate (1941) 3 W.W.R.723) That case also stated that, apart from statute, a court of probate had no right to refuse probate to an executor named in a will unless he was legally incompetent to act.

Ill will or animosity displayed between the parties is in itself not a sufficient ground to pass over an executor.

In Mortimer on Probate 2nd ed., p.209, the learned author states: “Where a will has been made, and an executor appointed, “the court cannot exercise any discretion as to granting or refusing probate. If probate is refused, it must be on the ground of some legal disability, recognized and allowed by the common law. For an executor is but a trustee for the deceased, and such person as the testator thought proper to appoint for that office, without any previous qualification; nobody can add qualifications to him other than those which the testator has imposed, but he shall be who, and in what manner, the testator shall judge proper”.

In Re Wolfe Estate, 21 W.W.R. 85, B.C.C.A., the court held that under Section 92 of the Trustee Act, it is within the judicial discretion of the Supreme Court or judge thereof to appoint a judicial trustee before the grant of letters probate or letters of administration in place of an executor or person entitled to administration.

Re Haggerty Estate, 60 W.W.R. 574 held that Section 9 of the Estate Administration Act confers a limited and unusual discretion on a court to pass over a named executor “by reason of special circumstances”.

In that case a grant was refused where the named executor had within the last year been convicted of a crime involving misappropriation of estate funds. The court stated that while a testator’s choice of executor should not be lightly interfered with, this was a proper case where discretion should be exercised by refusing the grant to the named executor. The court discussed a long line of authorities that evidence of bad character alone is not a sufficient ground for refusing a grant.

In fact, in Re Oughton, 40 E.T.R. 296, the notorious sex offender Oughton who was sentenced to an indeterminate sentence was not passed over as executor, on the basis that his circumstances were not sufficient to justify passing him over.

In Stadelmier vs Hoffman 25 E.T.R. 174 however, the court passed over one of four named executors, where the other three intended to bring action against the fourth on the basis of undue influence with respect to some large inter vivos gifts. The court exercised its discretion to pass over due to the position of actual conflict that the fourth executor was in. He could not in his capacity of executor attack the gift to himself, while at the same time maintain in his personal capacity that the gifts were proper.

Executor Issues Executor Removal Executors and Fiduciaries Fiduciary Fiduciary Issues probate

WESA Will Framework

The statutory framework of WESA (Estates, Succession and Wills act) was set out in British Columbia v Sheaffer 2015 BCSC 1306 where the court held that an improperly executed will prior to the enactment of WESA on March 31, 2014 could not be rectified by the “curative” provisions of S 58 WESA, and that only wills done after that date may qualify.

See previous blogs for more information on the curative provisions of S 58 WESA where for example an unwitnessed suicide note and a collection of unwitnessed but signed letters in an envelope were found to be valid wills under s 58 WESA.

Facts:

The deceased died leaving no surviving spouse or children and in his last will signed in 1974 he bequeathed the residue of his estate to his spouse (who predeceased him in 1993), with gift over to her son ( the beneficiary).

The Public Guardian and Trustee (PGT) asserted the 1974 will was the last subsisting last will and testament of deceased .

The Defendants, who were friends of deceased, asserted an unsigned document dated September 2011 should stand as deceased’s last will and testament.

The PGT brought application for an order to cancel all caveats filed by defendant in connection with deceased’s estate and that she be granted letters of administration with 1974 will annexed .

Decision:

The Court held the PGT could apply for letters of administration with 1974 will annexed as the unsigned will was not a valid testamentary disposition.

The unsigned will did not comply with formal execution requirements of Wills Act in force at material time prior to WESA’s introduction on March 31,2014.

Since the Wills, Estates and Succession Act (“WESA“) was not applicable, the court had no discretion to overlook failure to strictly comply with statutorily prescribed execution requirements .

Deceased died prior to statutorily-prescribed qualifying date imposed by s. 186 of WESA and accordingly the 1974 will constituted the subsisting last will and testament of deceased and the defendant was not a beneficiary of deceased’s estate.

Law:

Statutory Framework

22. On March 31, 2014, the WESA came into force in British Columbia. Its enactment heralded significant changes in the law with respect to of wills and estate administration in this province.

23. For the most part, the WESA applies to the estates of persons who have died on or after March 31, 2014, and to the wills of such persons, even though their wills may have been made prior to March 31, 2014. The effect of the transitional provisions is that s. 58 of the WESA is only engaged if the date of death of the will-maker is after March 31, 2014. While there are narrow exceptions to the date of the will-maker’s death as being the qualifying event for the application of the WESA, they do not apply to the case at hand.

24. Prior to the enactment of the WESA, long-standing principles of formalism governed the creation, alteration, and revocation of wills in British Columbia. These principles were codified in the Wills Act. The pertinent legislative provisions prescribing the requisite statutory formalities for due execution, are set out in s. 4 of the former Wills Act:

4 Subject to section 5, a will is not valid unless:

(a) at its end it is signed by the testator or signed in the testator’s name by some other person in the testator’s presence and by the testator’s direction,

(b) the testator makes or acknowledges the signature in the presence of 2 or more attesting witnesses present at the same time, and

25. 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. (3d) 283 (B.C. 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

(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

(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.

probate unsigned wills WESA wills variation

Is Social Media Relevant in Court?

Almost all trial lawyers scour social media such as Facebook to find out more about the opposing counsel and parties and it is absolutely amazing what can frequently be found that is highly relevant to the court case. Even more amazing is the police in checking out social media even on occasion find incriminating statements by the likes of Hells Angels members – “loose lips sink ships” certainly does apply in the age of narcissism and entitlement.”

If documents are on social media that are relevant to the court case, the opposing counsel can apply to court to have them produced under the rules of court and in particular Rule 7-1(14) .

This was done in Cui v Metcalfe 2015 BCSC 1195 where the plaintiff had 3600 hundred photos and videos of herself that could be relevant to the court action but the judge exercised his discretion and ordered some disclosure but not all.

The Law

In Fric v. Gershman, 2012 BCSC 614, Master Bouck dealt with an application in an action arising from a motor vehicle accident. She helpfully reviewed the earlier cases considering applications for production of photographic evidence on social media sites. She distinguished those cases in which disclosure was ordered from those in which it was not. She concluded, at para. 26, that the factor which distinguished the cases was whether the plaintiff claimed physical injuries arising from an accident as opposed to cognitive or psychological injuries. She said:

When physical impairment is alleged, the relevancy of photographs showing the plaintiff engaged in activities that require some physical effort seems rather clear.

[16] In Fric, Master Bouck concluded that some of the plaintiff’s photographs ought to be disclosed. In para. 55 of her reasons, she makes it clear that she is ordering the disclosure under Rule 7-1(14), at the second stage of disclosure contemplated in the new Rules.

[17] An order under Rule 7-1(14) follows counsel engaging in the demand and response process contemplated in Rules 7-1(10) to (13), during which the parties’ positions are clarified. As described by Justice Voith in XY, LLC v. Canadian Topsires Selection Inc., 2013 BCSC 584:

[22] The salutary objects of Rule 7-1(10)-(14) are many and varied. Several of these objects were identified by Justice Fitch in Lit v. Hare, 2012 BCSC 1918:

[67] The Rule is designed to promote dialogue between the parties, informal resolution of document production disagreements where that is possible and, where it is not, targeted litigation that focuses on those well-defined issues that remain contentious. The Rule operates to restrain the impulse to litigate document production issues as a course of first resort where those issues might be resolved through discussion, including by requiring the parties to articulate and defend their respective positions. In my view, the Rule is also designed to facilitate the adjudicative process by narrowing the issues and argument and particularizing, to the extent possible, the documents or categories of documents sought before an application is made. As Master Bouck observed in Balderston, at para. 29, in the context of the SCCR:

The intent of Rule 7-1(11) is to inform the opposing party of the basis for the broader disclosure request in sufficient particularity so that there can be a reasoned answer to the request. The Rule allows the parties to engage in debate or discussion and possibly resolve the issue before embarking on an expensive chambers application.

[23] To the various positive functions that were described by Justice Fitch and that are fostered by Rule 7-1(10)-(14), I would add that the exchange of correspondence which is required to take place between counsel under the Rules, and which inevitably forms a part of the application record, will often be extremely useful to the chambers judge or master who hears the production application. That correspondence serves to explain and crystallize the respective positions of the parties. In addition, the process described by Justice Fitch – discussion between counsel and winnowing the proper scope of expanded production – is consistent with the overarching goal of proportionality under the Rules

Legal Procedures probate Social media