Will Witnesses No Longer Required

Will Witness No Longer Required

For my first 40 years of practice, and for time immemorial before , there were strict requirements for the execution of a will – a failure thereof could result in an invalid or partially invalid will.

That all changed under sections 58 and 59 of WESA, known as the “curative provisions” or the “ dispensation powers”.

Many recent decisions have allowed what would have been previously invalid wills to be admitted into probate as valid , despite the lack of any witnesses to the will, provided the court is satisfied it is the will makers signature and firm intention as to the disposal of his/her property after death. ( This is to be distinguished from other Province’s holographic wills which must be “ wholly written and signed by the will maker so typed and drug stores do not apply there but do in BC under WESA).

One of the interesting by products of the liberalization of the requirements for will execution is that many more people will do their own wills to save money and this will result in more estate litigation for various later discussed reasons.

The Law

The BC Courts have followed the reasoning of a Manitoba Court of Appeal case George v. Daily (1997) 143 DLR (4th) 273 which discussed at length the limits placed on a courts “curative powers” and held there must be a deliberate or fixed and final expression of intention as to the disposal of his/her property on death.

The chambers judge who had held that a letter written by the deceased’s accountant to the deceased’s solicitor containing proposed revisions to the deceased’s will should be admitted to probate was reversed. The accountant had prepared the letter after receiving instructions from the deceased to change his will to leave most of his estate to various charities rather than to his children. When the deceased later met with his solicitor and confirmed the alterations to the will contained in his accountant’s letter, the solicitor requested the deceased obtain a certificate from his doctor confirming that he had the capacity to execute the will. The deceased died two months later without having obtained the medical certificate. The solicitor had not spoken with the deceased in the interim, nor had he prepared a new will.

In George, the Court stated the following principles:

It is well established that imperfect compliance, even non-compliance, with the formal requirements of The Wills Act may be excused. However, it must be established that the document being propounded was intended by the deceased to have testamentary effect. The court must therefore be satisfied on a balance of probabilities that the writing embodies the testamentary intent of the testator or testatrix

(a) The standard of proof on an application under the curative provision is proof on a balance of probabilities (para. 20).

(b) The greater the departure from the requirements of formal validity, the harder it may be for the court to be satisfied that the document represents the deceased’s testamentary intention (para. 19).

(c) The requirements for formal validity of a will serve several purposes or functions, including:

  1. an evidentiary function by providing the court with reliable and permanent evidence of testamentary intention and the terms of the will; and
  2. a cautionary function by impressing upon the testator the solemnity, finality, and importance of his actions in making his “last will and testament” (at paras. 21-26).

(d) The evidentiary and cautionary functions are particularly relevant to the determination of whether or not a writing or document embodies the testamentary intentions of a deceased (para. 22).

(e) Not every expression made by a person, whether orally in writing, concerning the disposition of his or her property on death embodies his or her testamentary intentions (para. 62).

(f) The court held at para. 65:

The term “testamentary intention” means much more than a person’s expression of how he would like his/her property to be disposed of after death. The essential quality of the term is that there must be a deliberate or fixed and final expression of intention as to the disposal of his/her property on death: Bennett; Molinary v. Winfrey (1960), [1961] S.C.R. 91; and Canada Permanent Trust Co. v. Bowman, [1962] S.C.R. 711.

The leading case on the curative powers of section 58 and 59 WESA in B.C. are those of Madam Justice Dickson ( since elevated to the Appeal Court) in Re Young Estate 2015 BCSC 182 which largely follows George v. Daily:

… The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death. A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a will, by its nature, is revocable until the death of its maker. Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.

Other Cases

In Beck Estate (Re), 2015 BCSC 676, Master Young (as she then was) considered a handwritten document in letter form, which the deceased dated and signed. The court found that the words “Codicil to my Last Will” and instructions that the document was to be read out by her lawyer suggested a deliberate or fixed and final expression of intention regarding the disposal of the deceased’s property upon her death. The deceased had also given the document to her executor for safekeeping one week before her death, and had told him that she thought the unwitnessed Codicil was valid.

Re Lane 2015 BCSC 2162 held that none of  seven handwritten notes made between April 14, 2012 and January 9, 2015 represented the intention of the deceased to alter her Last Will and Testament dated July 12, 1994 and could not be cured under s 58 of WESA, the “curative provisions”.

The case is helpful in determining the boundaries of the curative provision of s 568 in that the judge sets out the various reasons why the scrap notes could e testamentary and then the reason why they may not be testamentary, and concludes the latter.

In an uncontested application Re the Estate of David Woolrich, deceased Vancouver Registry V140043 ( unreported dated January 21,2015, ), a short 4 page hand printed suicide note of the deceased was approved as his last will and testament under the curative powers of S 58 WESA and George v. Daily was followed.

Affidavit materials filed made it clear that it was the deceased who wrote the note and that it was his final testamentary intention.

Homemade wills lead to litigation

The public is reluctant to pay a lawyer’s hourly rate to prepare what they invariably regard is a “simple” will. (Every lawyer  should know there is no such thing as a simple will)

Many lawyers have historically been prepared to prepare wills as a loss leader , but with increased overheads and consumer  sensitivity to price,  there is friction in the area of preparation of wills, powers of attorney, representation agreements and other estate planning documents  that, when combined with the information available on the Internet , will cause many in the public to cost  save by preparing their own wills and other estate documents .

As the public becomes more aware of the curative provisions of WESA, they will become increasingly encouraged  to prepare their own wills.

Most law firms that are economically viable in wills and estates now charge their hourly rate which  is often much higher than the client is prepared to pay.

The Curative provisions  of WESA were well-intentioned and generally are reasonable once the court is satisfied that the documents reflect the intentions of the deceased .

The problem essentially is that the legal test for mental capacity is a legal test, not medical, and the removal of the  lawyer  from the preparation of the will process  is simply an unintended  consequence  that will ultimately lead to more contested “homemade” wills  litigation, particularly in issues related to mental capacity, undue influence and wills interpretation .

Wills Interpretation Guidelines

Wills Interpretation GuidelinesEberwein Estate v. Saleem, 2012 BCSC 250 (B.C. S.C.), the executor sought advice and direction from the court regarding bequests in a Will which were unclear, and the court set out the general guidelines for wills interpretation.

 

[30] Courts are greatly suspicious of attempts by testators to give with one hand and retain with the other. If an absolute gift is made, accompanied by uncertain language expressing a wish or request, the courts are reluctant to imply a trust: McIver Estate v. McIver, [1981] B.C.J. No. 68 (S.C.) at para 4; Sutherland Estate v. Nicoll Estate, [1944] S.C.R. 253 at 262, [1944] 3 D.L.R. 551 [sub. nom. Hayman v. Nicoll]. In the McIver case, the word “trust” was used and so the court did not consider the words to be “merely precatory or recommendatory”. However, in the present case, the word “trust” was not used in the clause at issue. Rather, I find that the words used here imposed no defined restrictions on the beneficiaries and are so loose that a trust could not have been intended by Ms. Eberwein, who was sufficiently sophisticated to have spelled out a trust clearly if that is what she intended.

 

16      The goal in interpreting a will is to give effect to the testamentary intentions of the testatrix for the distribution of her estate: Robinson Estate v. Robinson, 2011 ONCA 493, 337 D.L.R. (4th) 193 (Ont. C.A.), at para. 23.

 

17      The Ontario Superior Court of Justice in Kaptyn Estate, Re, 2010 ONSC 4293, 102 O.R. (3d) 1 (Ont. S.C.J.), (“Kaptyn Estate”) helpfully summarized many of the principles relating to the interpretation and construction of wills:

 

  1. The court will seek to determine the actual intention of the testator, as opposed to an objective intent presumed by law (para. 31).
  2. Other cases interpreting words in other wills are of little assistance since the task is to interpret this testator’s subjective intentions (para. 32).
  1. c) There is a distinction between interpretation and construction of a will. Interpretation seeks to determine the testator’s subjective intentions from the words used in light of the surrounding circumstances. Rules of construction are a default process turned to by the courts when the testator’s actual intentions cannot be ascertained (para 34).

 

  1. The starting position of the court is the “armchair rule”, where the court puts itself in the place of the testator at the time when he made his will. This allows consideration of some extrinsic evidence of the surrounding circumstances known to the testator as might bear on his intentions (para. 35).
  1. e) The authorities distinguish between admissible and inadmissible extrinsic evidence in interpreting a will (paras. 35-38):

 

  1. “indirect extrinsic evidence” of the surrounding circumstances known to the testator at the time he made the will is generally admissible. This includes evidence of such things such as the testator’s occupation and property and financial situation; his relationships with family and friends; and natural objects of his grant;
  3. “direct extrinsic evidence” of the testator’s intentions is generally inadmissible. This is so as to preserve the will itself as the primary evidence, and to avoid the situation of an “oral will” displacing the written form. However, there is an exception where there is an “equivocation”, namely, where the will describes two or more persons or things equally well. In that situation, the law will allow evidence of the testator’s intention. Examples of inadmissible direct evidence are such things as notes or statements of the testator as to his intention, or instructions he gave his lawyer in preparing the will;

 

  1. f) the court will interpret the will viewed as a whole (para. 138);
  2. g) the court will prefer an interpretation that leads to a testacy, not an intestacy (para. 139); and,
  3. h) the court will not hesitate to correct obvious mistakes, including deleting or inserting words, where to do so accords with the testator’s intentions, or where not to do so would lead to an absurd result (para 140).

 

18      The proper approach of the court is to consider the language of the will in light of the surrounding circumstances together, rather than one first and then the other: Abram Estate v. Shankoff, 2007 BCSC 1368 (B.C. S.C.) at para. 77.

 

Incorporation By Reference

Incorporation By ReferenceIncorporation by reference typically occurs when a trust company is appointed executor and the deceased’s will makes reference to a certain fee agreement entered into between the then client and the trust company to retain their services as executor/trustee and to pay a  fee schedule.

 

Another common example is the  reference to a memorandum of items to be distributed as part of the will, without actually being contained within the will itself.

Re Marshall Estate 39 ETR ( 2d) 87 is such a case re  an undated memorandum of personal items found in the deceased’s personal effects several weeks after death.

The court found that the memorandum had obviously been prepared shortly before the will and was instructions for the will and not meant to be testamentary in character.

No inconsistency existed between the memorandum and the will and the memorandum was simply the memorandum referred to in the will, and those portions of it pertaining personalty were admitted into probate by incorporation of reference .

Theobald On Wills 13th ed.para 275 : “Even though the documents may be invalid as an independent instrument, it will take effect if incorporated by reference in the will, as part of the testamentary disposition”

Re Jackson (1985 ) 2 WWR 91 allowed parol evidence to be admitted for the purpose of determining whether the memorandum was the one referred to in the will.

1

                         Tristram aind Cootes, Probate Practice, 23rd ed. (1970), at pp. 699-700, summarizes the reported cases in respect to the requirements to permit the incorporation by reference into a will of a testamentary paper. The requirements are these. The document to be incorporated:

2        (A)    must be in existence at time of execution;

3        (B)    and must be described as then existing;

4        (C)    and in such terms that it is capable of being ascertained; and

(D)  the will must not state that the document is not to     form part of it

Missing Heirs

missing heirs 2People, including heirs, go missing for all sorts of reasons all the time. This of course presents a problem to an executor who must serve all heirs under the will, and anyone who would inherit on an intestacy, along with a copy of any application for probate with a copy of the will attached.

I am frequently contacted by enquiries on my website asking if there is any way in which one can in effect , be notified or a website that can be visited  as to  search someone’s death .

Regrettably, there is not. The problem is compounded by spouses taking another  spouses surname .

One advantage with inheritances is that people often will eventually hear word of the passing of a loved one and may seek out a possible inheritance .

The executor must use all reasonable means possible to try and determine the location and serve the perspective heir with notice of the probate application .

This will typically involve professional search locators who can essentially find anyone  as long as they “participate in society “by doing such things as filing tax returns, etc.

Many people do not.

The problem  out of the missing heir for the executor then becomes how does he or she finalize the estate so as to be discharged of his or her duties?

 

The answer lies in sections 39 and 40 of the Trustee act or the personal representative can obtain a discharge for the missing beneficiary  by obtaining an order that, the personal representative be at liberty to distribute the estate, including of the payment of the missing person share, but into court.

If the evidence of the missing their approaches something similar to a presumption of death order , in other words, very strong inference can be drawn  that the heir is “not about “so to speak get  a “Benjamin order”. If such order is granted, the trustee may then be discharged by distributing the estate, including the missing heirs portion, to the remaining beneficiaries.

Solicitor Client Privilege and the Will File

Solicitor Client Privilege Upheld By Highest Court

Solicitor client privilege and the will file can often end up in a tug of war between the executor upholding a claim of privilege after the death of the estate deceased, and beneficiaries who want to see the lawyers notes and other file contents of the same deceased.

The decision of Chang v. Lai Estate 2014 BCSC 128 discusses these competing principles in the context of the advice re a   wills variation action was also in the same file as advice and documentation relating to the administration of the estate.

The court held that solicitor client privilege should apply where the beneficiaries are in an adversarial relationship with the executor. Solicitor client privilege will remain in place to preserve the confidentiality of those communications. There must be a joint for common interest before the court will entertain disclosing such communications, as otherwise they will remain privileged.

[16] It is well established that a beneficiary has a proprietary interest in and a right to production of any document relating to advice sought and obtained by an executrix or trustee in connection with the administration of an estate. The executrix cannot claim solicitor-client privilege over such documents because they have a commonality of interest with the beneficiaries in the administration of the estate. The advice taken by the executrix is for the benefit of all beneficiaries under the will. There is no need to protect solicitor-client communications from disclosure because the beneficiaries and the executrix have a joint interest in the advice: Re Ballard Estate at p. 354. The same principle applies to legal opinions the executrix obtains regarding the proper administration of the estate. No solicitor-client privilege applies because the legal opinion sought by the executrix was to further the interests of the beneficiaries under the will: Re Ballard Estate at p. 354.

[17]         The beneficiary is not, however, entitled to production of all communications between legal counsel and the executrix. Where there is an adversarial relationship between a trustee and a beneficiary, there is no “joint interest” that compels disclosure of communications that would normally be protected by solicitor-client privilege. As Lederman J. says in Re Ballard Estate at p. 354:

… there is no need to protect the solicitor-client communication from disclosure to those very persons who are claiming under the estate. The communications remain privileged as against third parties who are strangers or are in conflict with the estate, but as was stated in Stewart v. Walker, supra, not those who are claiming under the estate. And that is because the trustee and beneficiary have a joint interest…

[18]         The requirement for a joint or commonality of interest was recognized in MacPherson, where Humphries J. says at para. 18:

Both sides cited cases which stand for the same basic proposition:  A beneficiary has a proprietary interest in and is entitled to production of documents relating to advice sought and obtained by a trustee in connection with the administration or management of, for instance, a pension plan, or an estate (see Froese v. Montreal Trust Co. of Canada [1993] B.C.J. No. 1529 (S.C.), aff’d [1993] B.C.J. No. 1847 (C.A.); Re Ballard Estate [1994] O.J. No. 2281 (Gen. Div.); Cooke et al v. Canada Trust  (Van. Reg. No. S011763, October 22, 2004; leave to appeal granted); Merritt v. Imasco Enterprise Inc. [1992] B.C.J. No. 2011; Thomas v. Secretary of State for India in Council (1870) 18 W.R. 312 (Ch.)), but not to documents that arise in the course of an adversarial relationship between the trustee and beneficiary.

[19]         There are clearly conflicting principles in this case. On the one hand, it is of the utmost importance to protect solicitor-client communications from disclosure. The law has consistently upheld the confidential nature of such communications and strictly construed the circumstances that may be regarded as an implicit waiver of the privilege. On the other hand, the beneficiaries of a trust are entitled to production of documents that fall broadly within the category of administration of the estate.

[20]         Balancing these conflicting principles, I find that the issue in this case must be resolved in favour of the plaintiffs. The underlying basis for exempting from solicitor-client privilege those documents that relate to advice sought in connection with the administration of the estate is the joint or common interest of the trustee and the beneficiary. It follows that where the beneficiary is in an adversarial relationship with the executrix, solicitor-client privilege remains in place to preserve the confidentiality of those communications. In this case the defendants do not have a common or joint interest with the plaintiffs regarding the wills variation action. Their interests are clearly in conflict due to the variation of the will sought by the plaintiffs. Thus legal advice sought and received for that purpose remains privileged.

[21]         Furthermore, the fact that the plaintiffs retained the same legal counsel to act for them in regard to the wills variation action and the administration of the estate does not amount to a waiver of solicitor-client privilege. Regardless of whether Mr. Takahashi was in a conflict of interest position (and in light of the practice in estate law this is questionable), the plaintiffs cannot be taken to have waived solicitor-client privilege because he acted in both capacities. The fact that Mr. Takahashi kept the same file for both the wills variation litigation and the administration of the estate is unfortunate; however, it does not evidence a waiver of solicitor-client privilege by his clients qua plaintiffs in the wills variation action.

[22]         For these reasons, I dismiss the defendants’ application for production of the remaining documents from Mr. Takahashi’s file”

 

Pet Trusts

Pet TrustsPet Trusts

Today’s news mentioned that a deceased left $100,000 to care for her 12 parrots.

At first blush this may seem unreasonable, but given that her wealth was in excess of 5 1/2 million dollars, and the long life expectancy of parrots, this may not have been an unreasonable amount to leave in  trust for one’s  surviving pets.

In fact it is advisable that if one intends to care for a surviving pet, that an appropriate sum of funds be  set aside in one’s will to provide for this occurrence. Such trust fund amount could be reasonably calculated given the life expectancy of the animal, the cost of food care and veterinary services.

On the other hand, approximately 20 years ago, I was consulted with respect to a deceased single physician with no children who suddenly died young, and left her 1 million Dollar estate to her two cats and four dogs for their lifetime care.

In legal terminology, this is called an “imperfect trust”.

The million dollars was obviously an inordinate and inappropriate sum of money to provide for the animals, and the residual beneficiaries of the million dollar estate sought my advice.

The long and short of it, was that the dogs life expectancy being Great Danes was only seven years, but the cats life expectancy was in the range of 20 years.

We resolved the matter by providing for an appropriate amount of funds for care for the animals, and distributed the residue of the estate to the residual beneficiaries. The pets were in no legal position to object or consent.

Admissibility of Out of Court Statements

Out of Court Statements

Documents such as diaries, notes, letters and various statements made by witnesses out-of-court, are normally not admissible by reason of hearsay, but may be admissible if adduced for a purpose other than proof of its contents, when it then becomes circumstantial evidence and is admissible if relevant. Regina v. Khelawon 2006 SCC 57 at paras 56-57

Verwoord v. Goss, 2014 BCSC 2122, an undue influence and lack of mental capacity case, a daughter who had been estranged from the deceased and her family for 30 years prior to the deceased’s death, had a joint tenancy condominium with the deceased, purportedly created shortly before his death, set aside by reason of her undue influence and his  senile dementia.

Various documents such as diaries notes and letters were introduced as evidence and the Court dealt with the issue of hearsay evidence, and distinguish the difference where evidence is adduced for the proof of its contents, and thus generally in admissible, as opposed to documents, statements, and such instead amounting to circumstantial evidence and being admissible  if relevant.

The following quote is from this decision on the issue of admissibility of out-of-court statements:

180       During the course of the trial a number of out-of-court statements of individuals who were not called as witnesses at the trial were led. By way of example, there were numerous references to statements made by Bart to all of the parties and to the doctors. There was extensive reference to Bart’s diary which was a daily record of activities that he kept. There were other writings of Bart including a handwritten note that Bart prepared outlining his view of Caroline’s actions, which he provided to his lawyer Lynda Cassels. There were also references to statements that Dennis Vance, the Beacon Homecare caregiver, made to witnesses including to Caroline.

181 The purpose for which an out-of-court statement is adduced determines whether that statement is properly construed as hearsay. If the statement is adduced in order to prove the truth of its contents, the statement is hearsay and therefore presumptively inadmissible. If, on the other hand, the statement is adduced for a purpose other than proof its contents, it instead amounts to original circumstantial evidence and is admissible if relevant: R. v. Khelawon, 2006 SCC 57 (S.C.C.) (paras. 56-57).

182 When such out-of-court statements were led in this case, I have not considered them for the truth of their contents as hearsay. For example, statements and writings by Dennis Vance, are relevant to explain actions that Caroline subsequently took to respond to the information relayed to her through Dennis Vance, but not for the truth of their contents.

Similarly, Bart’s statements to various healthcare providers, to his lawyers and in his diary and other writings constitute statements of fact of his mental state at the time. These statements are admissible as a state of mind or present intentions exception to the hearsay rule as described by Iacobucci J. in v. Starr, 2000 SCC 40 (S.C.C.) (para. 168).

  • Some of these statements, for example Bart’s statements to his lawyers in writing and orally, would be largely dispositive o this trial rf they were admissible for the truth of their contents. For example, elsewhere m Lemons I have found that all of the statements about Caroline’s actions which are contained in the 2009 WVA declaS^Ta Cs two-page handwritten note have been proved false at trial. Appended to that WVA  note between Bart and Caroline which reads as follows:
  • declaration as an exhibit is a handwritten

Caroline has the papers at her home. Necessary to execute moms “will”. Papers will not be returned because Carol needs them. June 15/09185     Caroline wrote in order to help her father remember:

186     Bart wrote:

? In the bank?? Carol I will fight

How about my will Carol!!! Are you going to act the same as you did with my money you to the end!! [sic]

187     This note is highly relevant to demonstrate Barts state of mind and concerns about Caroline’s actions. A further two-page handwritten note of Bart’s which he provided to Lynda Cassels   constitutes a disjointed, repetitive and occasionally illegible narrative which again provides evidence as to the frailty of Bart’s faculties at the time that  he wrote it. It also provides evidence of the erroneous conclusions that Bart had drawn with respect to Caroline’s actions

188     As I have noted elsewhere, one of the greatest ironies of this evidence of Bart’s state of mind is that he demonstrated repeated concerns that Caroline was taking advantage of him financially to the detriment those concerns about Caroline’s actions were the actions that the Goss defendants did in fact take. By the time of Bart’s death, both the house and condominium were in joint names with Thea, and Dennis Goss represented both of those real estate transfers as gifts so that the estate was almost completely dissipated by the time he applied for probate

Executor Court Actions Before Probate

Court ActionsExecutor Court Actions Before Probate

The law seems to be clear that an executor can bring an action in his or her capacity as executor before probate is granted but cannot obtain judgment in the action without probate having been granted:  see Chetdy v. Chetdy, [1916] 1 A.C. 603 (P.C.), cited by Allen J. in Harshenin v. Bayoff, [1991] B.C.J. No. 3161 (S.C.).

 

Romans Estate v Tassone 2009 BCCA 421 discussed how an executor may have to commence court action to prove a will is valid band before a grant of probate can be obtained, and the duty of the court to ensure that the validity of the will is proven firstly.

The chambers judge referred to Trites v. Johnson, [1945] B.C.J. No. 76, [1945] 3 W.W.R. 100 (B.C.S.C.). In that case, the will had been proven in common form and the plaintiffs sued for revocation of the grant of probate on the basis that there had been undue influence and lack of testamentary capacity. In a counterclaim, the executors sought proof of the will in solemn form. The plaintiffs withdrew their action but the trial judge, Macfarlane J., determined that he should proceed with the counterclaim for proof of the will in solemn form. He said this:

[4]        In a case of this kind where the validity of a will has once been called in question I think it is the duty of the executors to prove the will in solemn form of law, and the practice is that they ask for this in the action by way of counterclaim. I think therefore that even though the plaintiff in the action at the trial wishes to withdraw, the executors should be allowed to proceed to establish the validity of the will notwithstanding the application to withdraw.

[21]         Although this case is not directly on point on the facts, I take this general observation by Macfarlane J. to have application. In my opinion, the validity of the will here having been properly called into question, the court cannot let the matter pass without requiring the executor to prove the will in solemn form before proceeding with the action. In some cases, of course, an executor might seek to prove the will in solemn form on the basis of a concern raised by the executor and not by another party.

Proof of Will In Solemn Form vs. Common Form

Solemn FormWhen the validity of a will is in question, the propoundor of the will is often forced to prove the validity of the will in solemn form, by commencing a court action and having a judge determine the wills validity, as opposed to a non contentious probate where the will is approved by a court registrar in common form.

 

The BC Court of Appeal in Romans estate v. Tassone 2009  BCCA 421, the court discussed the difference between proving a will in common form, and proving a will in solemn form as follows:

[48]      Often proof of a will in common form is all that is required for the administration of an estate where there is a will. Proof in common form, however, does not conclusively determine the will to be the valid last will of a person.

[49]      Proof of the will in solemn form provides some protection for the will, in that it will not later be set aside, unless obtained by fraud or a later will is found:  Tristam & Cootes Probate Practice (27th Edition, 1989, p. 572. As noted by the authors of the British Columbia Probate & Estate Administration Manual, 2nd Edition, 2008 Update, at p. 18-17, “[t]he safeguarding effect of a grant in solemn form is an application of the principle of res judicata to what is a judgment in rem”.

[50]      17 Halsbury’s Laws (4th) para. 866 says:

If there is any doubt as to the validity of a will or any apprehension that there may be opposition to it, it is open to the executor, or if there is no executor the person entitled to administration with the will annexed, to prove it in solemn form.

[51]      In Trites v. Johnson, [1945] B.C.J. No. 76, [1945] 3 W.W.R. 100 (B.C.S.C.) Macfarlane J., as he then was observed that “In a case of this kind where the validity of a will has once been called in question I think it is the duty of the executors to prove the will in solemn form of law….”  Proof in solemn form was required even where the party originally requesting such had withdrawn their objection.

[52]      In the circumstances, in my view probate in common form is not sufficient in light of the issues raised in the Conveyance Action and in light of the information that is brought before the court in the Probate Action. If the will is proven in solemn form, or per testes, it must be proven in open court, upon notice to all interested persons, and will not be admitted to probate unless the court is satisfied of the due execution of the will, the testator’s knowledge and approval of its contents, his capacity and non-revocation: Osterhoff on Wills and Succession, 6th Edition, 2007, Thomson, Carswell, p. 44. If the will is proven in solemn form then the issue regarding the caveat will be moot.

Registrar Says It Is Role of Courts to Interpret Documents

Interpret DocumentsA Registrar declined to interpret documents on a  Passing of Accounts hearing in Lam v Daphne’s Fund ( Trustee of) 2015 BCSC 623, in effect stating that it was the role of the  Courts to construe underlying trust documents and not the Registrar.

 

Since the respondent wished to contest the validity of the alter ego trust, he should bring a court action to do so. Due to the complexity of the situation, the Court ordered that the registrar should report to the court and make recommendations to the court but it was the court that should make the final order with respect to the accounts.

I have noted that there is often a great deal of confusion in the practice of estate litigation as to the proper format of determining such questionable transactions and documents at a formal passing of accounts, as opposed to a separate court action. It would appear that the preferable remedy is to have a separate court action to contest the validity of documents in question, and save the passing of accounts for after their validity has been determined.

The Court Stated In Part:

Ms. Chan asks that the court direct the registrar to inquire into and report on matters such as the validity of the alter ego trust and the exercise by the deceased of a special power of appointment under the trust on the validity of terms of paragraphs 9 and 10 of a testamentary instrument dated November 13, 2009, on the appropriateness of the manner, timing and proportionality by which the trustees of the alter ego trust funded a $5 million sum in “Deborah’s fund” it is called, including seeking an assurance and use of the $5 million insurance monies received by certain corporations, and on the nature and extent of the beneficial interest held by Daphne’s trustee in Deborah’s fund, including the $5 million added to Deborah’s fund and further.

Before his death Mr. Lam had engaged in estate planning with the assistance of professionals, including lawyers and accountants. The estate planning resulted in a sophisticated and complex series of inter-related documents that included the creation of an alter ego trust by deed of settlement effective April 26, 2006. Mr. Lam’s will, dated the same day, April 26, 2006, which is the will subject to this petition, as is the alter ego trust I just referred to, Mr. Lam also made a life insurance trust declaration on the same day, April 26, 2006. On November 13, 2009, Mr. Lam executed a codicil to his will and on the same day, November 13, 2009, he executed a testamentary instrument exercising a power of appointment. That last document is not subject to any relief sought in this petition.

Ms. Chan asks that the court direct the registrar to inquire into and report on matters such as the validity of the alter ego trust and the exercise by the deceased of a special power of appointment under the trust on the validity of terms of paragraphs 9 and 10 of a testamentary instrument dated November 13, 2009, on the appropriateness of the manner, timing and proportionality by which the trustees of the alter ego trust funded a $5 million sum in “Deborah’s fund” it is called, including seeking an assurance and use of the $5 million insurance monies received by certain corporations, and on the nature and extent of the beneficial interest held by Daphne’s trustee in Deborah’s fund, including the $5 million added to Deborah’s fund and further.

In deciding whether to order the executors and trustees to pass the estate accounts, I must keep in mind that the executors derive their authority from the will, not from any order of probate. I also bear in mind that, although probate can be recalled or set aside, so long as a probate order remains in effect, it is proof that the will is valid and that it is the last will of the deceased. Conversely, until probate is granted, passing of accounts of an executor and trustee named in a will who has not sought to have the will admitted to probate might turn out to be a waste of judicial resources if a later will is found or if a defect in the will leads to it being found ineffective.

Some of the directions Ms. Chan seeks would have the court attach to the order for the passing of the accounts terms that would call upon the registrar to construe the underlying trust documents. I refer here to the request the registrar be directed to inquire into and report on things like the validity of the alter ego trust and any exercise by the deceased of a special power of appointment under the trust, or the validity of the terms of paragraphs 9 and 10 of the testamentary instrument of November 13, 2009.

[36]         With respect to these requests, these are matters that this court, and not its registrar, should deal with. If Ms. Chan wishes to question the validity of the alter ego trust and/or paragraphs 9 and 10 of the testamentary instrument, it should bring the appropriate action seeking construction of these documents or attacking their validity.

This is a complicated situation. It is no doubt going to be difficult for the registrar to work his or her way through it, meaning absolutely no disrespect to the registrars of this court, these are matters where the responsibility for the final decision should rest with the court and not with the registrar. That means that the registrar should report to the court, make recommendations to the court if appropriate, but that the court should hear from the parties and make the final order with respect to the accounts.

[43]         I therefore decline to order that the registrar certify their findings and they become binding on the beneficiaries without further order of the court, but order instead that the registrar state the results of the passing of the accounts of the alter ego trust and the insurance fund in the form of a report and recommendations to the court.