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.

Who Owns Found Money?

Who Owns Found Money

Who Owns Found Money?

The basic and ancient principle of law that governs such situations where the finder of a chattel/Money acquires good title to it against all but the true owner or one enjoying a superior title   -Armory v Delamirie (1722) 1 Str.505 ( Eng. K.B.)

However, as with most ancient principles of law, and to the delight of estate litigation lawyers , there are a number of exceptions to the rule.

The cases are largely fact driven and simplistically can be divided into two types:

1) where the original owner of the money or object was not known,

2) where the owner of the chattel can be shown to have a superior title to the finder.

 

Reasonable diligence must be used to locate the true owner as the finder cannot have owned it prior to its discovery.

 

Its a fact that a great many people likely hide something of value or significance amongst their possessions or within objects or walls. On most occasions it is probably simply quietly kept.

(I make no comment on how the Proceeds of Crime Legislation Fits Into the Normal Estate Case)

 

An example of where the ownership of the funds was traced back and given to a person having a superior title can be found in Corporation of the City of Cranbrook v Brown, Lester et all, unreported Cranbrook registry 19980511, of Justice Melnyk.

A widow of a deceased person who had a habit of stashing away money in hidden locations in his residence, was ultimately found to be the true owner of a bag of money that fell from a couch that had been sold by her  for $100 in the year following the deceased death, and then subsequently given away to a third party.

While moving the couch a bag of money fell from it.

The court awarded the money to the widow as she was the rightful heir of the deceased’s estate, and was found to have a superior title to the money by virtue of the coach and its money having been vested in her by the estate of the deceased.

The courts further stated that had it not been possible to determine who place the money and the coach, that the case may well have been decided differently.

Similarly in Weitzner v Herman  (2000) 33 ETR (2d) 310, involved a widow who was sole beneficiary under her late husband’s estate. The purchasers of their home that they had occupied together for 38 years, and then by the widow subsequently for another 11 years, demolished the home and found $130,000 in cash and an unquantified amount of silver coins hidden in the fire extinguisher in a crawlspace.

The court again held that the widow was the rightful owner of the money as on the balance of probabilities, it was the testator who hid the money and the fact that the widow did not know about the money did not prevent it from passing under his will investing in her.

For a further discussion on the issue of lost chattels and bailment, I refer the reader to Bird v the Town of Fort Frances, (1949)  2 DLR 791

Funeral Costs Must Be Reasonable

Funeral CostsChernichan v. Chernichan Estate 2001 CarswellAlta 1730, 2001 ABQB 913, basically held that while funeral expenses are a top priority of the estate debts, the funeral costs themselves must be reasonable in relationship to the financial situation of the deceased, particularly where there is an insolvent estate as was this one.
In fact, funeral expenses of $10,800 in this estate were held to be mostly excessive considering that the deceased was insolvent, even to the extent that the funeral lunch and expense was disallowed.
The court went on to give an interesting discussion as to the responsibility for funeral expenses and how it  has been applied in a few situations.
Responsibility for Funeral Expenses
11      The first question is which entity is responsible for the funeral expenses. Professor G.H.L. Fridman in Restitution, (2nd ed.) (Carswell, 1992) summarizes the law at pp. 279-80:
The primary responsibility for insuring the burial of a deceased person falls on the personal representative of the deceased, who will in turn be entitled to an indemnity for expenses in this regard out [of] the estate as a first charge. Where the estate is inadequate to bear the burden, a secondary responsibility falls on the person responsible in law for the support of the deceased. Thus, the surviving spouse will be responsible for the burial of a spouse, and the parent for the burial of a child in the absence of a surviving spouse. Where provincial legislation casts a duty on a child to support a parent, the child should also be responsible for the burial of a parent in whatever order the support duty with respect to the deceased person’s parents and spouse is apportioned. It has also been suggested that there is a common law duty to bury on any landowner or householder on whose premises the deceased has died. As well, in Canada, a statutory duty is imposed on municipalities to bury an unclaimed body discovered within their limits. The legislation would appear to establish that the statutory duty on the municipality is one of last resort.
Thus, primary responsibility for the burial of the deceased rests on his estate. Secondary liability will rest on the surviving spouse, parents, and children of the deceased in the order of support obligations under provincial law. Tertiary responsibility lies on the householder. Finally, a residual responsibility rests on the municipality within whose limits the deceased was discovered. (footnotes omitted)
In Alberta the residual responsibility for the burial of destitute or indigent persons falls on the Minister of Family and Social Services under Reg. 13 of the Cemeteries Act General Regulation, Alta. Reg. 249/98, and the residual responsibility for burial of unclaimed bodies essentially falls on the universities under s. 59 of the Universities Act, R.S.A. 1980, c. U-5. The responsibility at law for funeral expenses is not unlimited, and only extends to “reasonable” expenses.
12      In the will the deceased charged his estate with his funeral expenses. The estate is therefore primarily responsible for the funeral expenses at law and by its terms.
13      At common law a spouse is responsible for the funeral expenses of his or her deceased spouse. The rule originally only applied to husbands, but it has applied to both spouses since wives became entitled to their own estates. This rule applies whether the deceased and the surviving spouse were separated or not: Davey v. Cornwallis (1930), [1931] 1 W.W.R. 1 (Man. C.A.) (citing English authority) and Routtu v. Routtu (1954), [1955] 1 D.L.R. 627 (N.B. Co. Ct.). In this latter case the mother died in the house of her son. He had to bury her, but was able to recover from his father who had a higher obligation to bear the expense.
Accordingly, in this action the Respondent personal representative, being the surviving spouse, would be responsible for the funeral expenses at common law next after the estate. The spouse is only liable for any shortfall in the estate, the estate being primarily liable: Pearce v. Diensthuber (1977), 17 O.R. (2d) 401, 81 D.L.R. (3d) 286 (Ont. C.A.). Here there were sufficient assets in the estate before the C.C.R.A. was paid, so this rule is not engaged.
14      Where one party pays funeral expenses, he or she is generally able to recover them from any person who has a higher obligation to pay them, even if that person had no input into or even knowledge of the funeral: Schara Tzedeck v. Royal Trust Co. (1952), [1953] 1 S.C.R. 31 (S.C.C.) at p. 37.
Funeral arrangements must usually be made in a very short period of time, sometimes before the personal representative is identified, and invariably before probate is issued. The family usually makes the arrangements without regard to who is in a technical sense legally responsible for either making the arrangements or paying the expenses. Because of the public interest in the prompt and dignified disposal of human remains, the law imposes a duty on those ultimately responsible to reimburse the person who actually incurs the obligation. The obligation to reimburse arises in restitution, not in contract, and is founded on considerations of necessity, unjust enrichment and public health: Goff and Jones, The Law of Restitution, (5th ed., 1998), pp. 480-81. Thus the son in Routtu could recover from his father. See also Tkachuk v. Uhryn (1952), 6 W.W.R. (N.S.) 515 (Sask. Dist. Ct.) (daughter entitled to costs of funeral from estate); and Sargent & Son Ltd. v. Buday, [2000] O.J. No. 5476 (Ont. S.C.J.) (estate must reimburse son). The Applicant is therefore prima facie entitled to reimbursement for the reasonable expenses he incurred.
15      The only exception to this liability would appear to arise if the present Applicant voluntarily agreed to pay the funeral expenses, or to put it another way, voluntarily agreed to give up his right to reimbursement from the estate. Since these debts were the responsibility of the estate, this would have in effect been a gift from the Applicant to the estate. There is contradictory affidavit evidence on this point which cannot be resolved on this record. The same holds true for the assertion that the mother of the deceased agreed to pay for the luncheon. Those issues can only be resolved by a trial of an issue.

Reasonable Funeral Expenses

22      The liability of the estate, the personal representative, and the surviving spouse for funeral expenses is not unlimited. That liability is limited to expenses that are reasonable having regard to the deceased’s station in life and the other circumstances. The insolvency of the estate is one significant circumstance that must be kept in mind. It is also relevant whether those concerned knew or ought to have known at the time of the funeral that the estate was insolvent: Stag v. Punter (1744), 3 Atk. 119, 26 E.R. 872 (Eng. Ch. Div.). When an estate is insolvent, it is incumbent on all concerned to ensure that funeral expenses are reasonable.

23      There is no universal answer as to which expenses are reasonable and which are not. The funeral ritual in our society is intricately bound up with cultural and religious beliefs and practices. The law permits the expenditure of estate funds for a decent burial in accordance with the traditions of the deceased so long as extravagant and unreasonable expenses are avoided: Mullick v. Mullick (1829), 1 Knapp 245, 12 E.R. 312 (Eng. Ch. Div.). Where an estate is insolvent, those involved in the burial must limit themselves to the minimum expenses that will accord a dignified interment.

24      It follows that what is reasonable in one context may not be reasonable in another. The case law on what is “reasonable” is impossible to reconcile if this is not kept in mind. Where an estate is solvent, and funeral arrangements are made by the personal representative, he or she will be able to charge to the estate (as against the beneficiaries) all expenses consistent with the culture, religion and station in life of the deceased, even if some of the expenses might be viewed objectively as “luxuries”. Where the estate is solvent, but the funeral arrangements are made by someone other than the personal representative who now seeks reimbursement from the estate, the same rule will generally apply. However, a person seeking reimbursement must exercise greater restraint because the personal representative (who has the right to inter the body), the beneficiaries or ultimately a court, may disagree on what is fitting for the deceased. Some expenses that would be allowed to a personal representative as against beneficiaries may not be allowed to a third party as against the personal representative. Where the estate is insolvent, and funeral expenses are being asserted against creditors, or against someone with a higher duty to pay (see para. 11, supra), a stricter rule applies. With insolvent estates there is authority that only “necessary” expenses are allowed, although the better view is that the test is still “reasonableness”, but the insolvency becomes a primary factor: Edwards v. Edwards (1834), 2 C & M 613, 149 E.R. 905 (Eng. Exch.).

25      The debate respecting the reasonableness of funeral expenses in insolvent estates is summarized in Widdefield on Executors’ Accounts (5th ed., 1967) at pp. 1-2:

Funeral expenses, says Sir Edward Coke, according to the degree and quality of the deceased, are to be allowed of the goods of the deceased, before any debt or duty whatever. But an executor or administrator is not justified in incurring such as are extravagant, even as it respects the legatees or next of kin entitled in distribution: 3 Inst. 202. Nor, as against creditors, is he warranted in spending more than that which is absolutely necessary. For strictness, says Lord Holt, no funeral expenses are allowed against a creditor, except for the coffin, ringing the bell, and the fees of the parson, clerk and bearers; but not for the pall or ornaments: Shelly’s Case, 1 Salk. 296, 91 E.R. 262.

Perhaps, observes Dr. Burn, the expenses of the shroud and the digging of the grave ought to have been added: 4 Burn E. L. 348, 8th ed.

This statement of Lord Holt, though inappropriate to our times, suggests that the line be drawn so as to include what is necessary in the sense of giving a Christian burial, excluding the ornamental accompaniments and provisions for mourners and strangers which they might make for themselves. Thus, at the present day, the undertaker’s and grave digger’s necessary services shall be allowed in addition to those pertaining to religious exercises; also the cost of a plain coffin or casket, the conveyance of the remains to the grave, and the grave itself; all these being essential to giving the remains a decent funeral. On the other hand, mutes, weepers, pall-bearers in needless array; carriages for mourners, and especially carriages for casual strangers; floral decorations, refreshments, hired musical performers, and the processional accompaniments of a funeral, – all these, though appropriate, often, to the burial of those who have left good estates, are inappropriate to the poor and lowly, and to those whose creditors must virtually pay or contribute to the cost. Public demonstrations which increase the outlay, the attendance of societies to which the deceased belonged, military and civic escorts, and the like, are always properly borne by such bodies or the public thus gratified, rather than imposed as a charge upon a private estate which cannot readily bear the burden: Schouler on Wills, 1472.

26      In this estate I am satisfied that the charges for the clergyman, the burial plot and the interment (apart from the grave marker) are reasonable. I doubt that an expensive luncheon is ever justified in an insolvent estate, and it is disallowed; the persons who ordered the luncheon will be responsible for that expense. The parties did not actively challenge the reasonableness of the funeral service charges, or the casket and liner. On the record I can only say that they are higher than some seen in probate applications before the Court, and if there is any dispute there will have to be a trial of an issue on this point. The cost of the grave marker I will deal with separately in the next section.

“Floodgates of Litigation” Held Specious

Floodgates of LitigationI discovered a 1992  court decision  debunking the theory of “floodgates of litigation “– a long time insurance industry alarm akin to the sky will fall, unless restrictions are put on various types of claims, usually through legislation or sometimes the courts, to limit the amount of damages or the types of cases that may be brought before the courts.

It is legally analogous to the “Domino Theory” of communism that prevailed at the United States State Department throughout the last several decades of the last century.

The facts of the case itself are not necessarily important – I think it is simply the recognition by a court of appeal that like most floodgates of litigation arguments, the one raised in this case was specious.

Signalisation de Montréal Inc. v. Services de Béton Universels Ltée

Federal Court of Canada — Court of Appeal

1992 CarswellNat 159F, 1992 CarswellNat 159, [1993] 1 F.C. 341, 147 N.R. 241, 37 A.C.W.S. (3d) 1108, 46 C.P.R. (3d) 199, 58 F.T.R. 230

Finally, the respondent threatened us with the “floodgates” argument: if the purchaser of a patented article is to be held to be an implied non-exclusive licensee and thereby to have the right to claim for damages for infringement pursuant to section 55, there will be no end to infringement actions by all the ultimate purchasers of all the patented monkey wrenches, ballpoint pens, flashlights, clocks and whatnots that human ingenuity has invented and placed on the market.

23      Like most “floodgates” arguments, this one is specious

 

Forcing Sale of a Jointly Owned Property

Jointly Owned PropertyCo-owners of real property often find themselves in situations where one or more owners wish to or have to force a sale of jointly owned property, which is resisted by other co-owners.

The courts generally speaking will grant an order forcing a sale of a jointly owned property unless in the situation of hardship, such as a mother and young children in the matrimonial home being attempted to be forced sold by the estranged husband.

Conflict over jointly owned property  is a fact of life whether it be between spouses, relatives, or business partners- at some point disputes often arise that cause one party to seek legal counsel and to take proceedings under the Partition of Property act to force a sale of the property.

(Re the Partition of Property Act,  Ryser v. Rawlings, 2008 BCSC 1050 at para. 22. I would note in particular, paras. 27-29 in Ryser to the effect that the Court must order a sale of the property if requested to do so by a co-owner and that the Court’s discretion to order otherwise is a narrow one and one which is suggested would involve significant hardship.

[24] Mr. Morris’ counsel has also referred me to Sahlin v. The Nature Trust of British Columbia, Inc., 2011 BCCA 157. Mr. Justice Frankel in that case at para. 24 described the discretion to refuse a sale as broad and unfettered and that it gives the Court the ability, having regard to the particular facts and circumstances, to refuse to order a sale where a sale would not do justice between the parties.

[25] A point of disagreement between the parties concerned the onus of proving any “good reason to the contrary.” In Zimmerman at para. 25, the Court adopted a quote from Dunford v. Sale, 2007 BCSC 1422, to the effect that the onus is on the respondent in that respect. That conclusion is contradicted somewhat by the Court of Appeal in Sahlin at para. 23. It does not appear that the Court in Zimmerman had the benefit of considering this decision, since the reasons of the Court of Appeal were issued between the date of the hearing and the issuance of reasons. In any event, although the Court of Appeal stated that there is no legal onus on the respondent in this respect, the Court did adopt language from the earlier case of Bradwell v. Scott, 2000 BCCA 576, in stating:

This language is neutral in terms of onus. It is for the court to assess the evidence and to determine whether justice requires that such an order be denied. In practical terms, it would be for those opposing the application to put before the court evidence tending to establish a good reason for refusing it.