Property of the deceased in each jurisdiction he or she owned assets will require a resealing of the grant of probate.
When the deceased person owns assets requiring probate in more than one jurisdiction, it is necessary for the executor to obtain a grant of probate in one area where the deceased owned assets, and then have the same grant resealed in each other jurisdiction where the deceased owned assets.
In British Columbia the statute known as the Probate Recognition Act, RSBC 1996 allows for such resealing of the grant from another jurisdiction, in British Columbia .
The law is clear that without the receiving of the grant of probate in British Columbia, an executor who has been granted probate by a foreign court , including another province, has no status to deal with assets within British Columbia Re Fisher 57 WWR 552 (BCSC)
In determining whether to resealed grant of probate, a court is entitled to satisfy itself that the original will and grant of probate was, as a matter of form, made in accordance with the laws of the originating jurisdiction .as a practical matter however, the resealing court does not undertake the kind of in-depth inquiry that is made when the court considers proof in solemn form Plantz v Plantz (1995) 7 WWR 205
The resealing process is largely and administrative step required to facilitate the execution of a will based in a foreign jurisdiction and subject to the laws of that jurisdiction.
Things such as the mental capacity of the deceased and his legal obligations with respect to the estate are governed by the originating jurisdiction
In the decision George estate, Re (1945 ) 3 WWR 520 ( Sask KB), the court stated that ” resealing of letters probate merely gives legal recognition in Saskatchewan to the original grant and authorizes the grantee to carry out in that province the powers conferred by the original Grant. There can be no alteration in the terms of the grant and no change in the executor or administrator named therein.”
Accordingly a court in British Columbia on resealing application , cannot remove the executor or alter the terms of the grant of probate made in a foreign jurisdiction, such as another province.
In Re McGregor Estate 2014 BCSC 896, the deceased left a bequest to “Auxiliary to Woodlands”, a charitable organization that no longer existed at the time of death, but was saved from lapsing as a bequest of the estate by the application of the doctrine of Cy-Pres.
Generally speaking when a gift is left to an institution which later ceases to exist, the gift either lapses and fails to be distributed on an intestacy, or comes under the Cy- Pres doctrine. This doctrine applies to save the gift with the court can infer that the testator intended to devote that property to a general charitable and purpose, as was found by the court in this case.
A complicating factor was that the will provided for no gift over in the event of the failure of the bequest to the auxiliary to Woodlands, which was a former charitable association that provided “extracurricular services” to mentally disabled residents about school.
At the time of the making of the will, the son of the deceased was a resident of that school, but auxiliary services ceased to exist by the date of the deceased death in 1995 .
The executor brought a court application to have the will interpreted, and the court found that the will indicated a general charitable intent in favor of institutions dedicated to the improvement of the lives of the mentally disabled .
The cour applied the Cy–Pres-doctrine, and ordered that the gift be redirected to another society, which was a charitable organization providing extracurricular social support services to mentally disabled persons, and where the deceased son resided until his death in 2013.
Cy-Pres Doctrine law
19] It sometimes happens, as in this case, that testators leave a legacy to an institution which later ceases to exist. When that happens, the gift either lapses and falls to be distributed on an intestacy, or comes under the cy-pres doctrine. The doctrine of cy-pres applies to save the gift where the court can infer that the testator intended to devote that property to a general charitable purpose: see Re Estate of Robert Hugh Buchanan (1996), 11 E.T.R. (2d) 8 (B.C.S.C), affirmed (1997), 44 B.C.L.R. (3d) 283 (C.A.), which the Court followed in McGregor.
[20] Cy-pres means “as near as” possible; according to the Court of Appeal in Buchanan Estate, in cases where a charitable gift or bequest has become impossible or impracticable, it allows the court to apply the property to some other charitable purpose as nearly as possible resembling the original purpose.
The case of Buchanan Estate is factually quite similar to this matter. There, the testator left an estate of approximately $1.1 million. The residue of the estate was to go to the Loyal Protestant Home for Children. Unfortunately, there was no legal entity with that name, although there was a
Loyal Protestant Association in New Westminster, which had operated a residential care home for orphans and underprivileged children during the deceased’s lifetime. Further, prior to the deceased passing, the association had ceased to operate the home and its charitable activities had shifted away from that particular purpose. The association instead was involved in distributing funds to other altruistic and charitable associations.
[25] Justice Hogarth indicated that there was no difficulty with the failure to appropriately name the legal entity operating the institution. However, he held that where the gift was given “with the obvious intent of benefiting the particular function that… the Home was performing at the time the will was made”, it could not go to the association where it no longer carried on the activities that the testator intended to assist; that is to say, “basic care for orphans and other underprivileged children”.
[26] Discussing whether the will showed a general charitable intention, Hogarth J. noted that such an intention appeared where the donor’s paramount intention with the gift is to effect some charitable purpose. He indicated that the court should examine the testator’s gift and what would be involved in the testator’s plan or project. The gift must be examined to determine whether or not the “specific formulation of the purpose of the bequest is … exhaustive of the intention of the testator” (quoting Weninger Estate v. Canadian Diabetes Assn. (1993), 2 E.T.R. (2d) 24 at 33 (Ont. G.D.)).
[27] Hogarth J. accepted that Mr. Buchanan’s intent was to help fulfil the objects of the Loyal Protestant Home for Children; in other words, to better the lives of indigent children. “The question becomes, then, whether this intention was so specific as to limit it to the children of the non-existent Loyal Protestant Home for Children in New Westminster”, he said.
[28] In my view, the same question is raised here. It appears that Ms. McGregor’s intent was to help fulfil the objects of the Auxiliary for Woodlands. She wished to support their efforts to improve the lives of the mentally challenged by providing opportunities for activities or services that would not otherwise be available. The question is whether the gift was specific to the residents of Woodlands who were benefited by the work of the Auxiliary.
[29] In Buchanan Estate, Hogarth J. concluded that there was a general charitable intent, despite the fact that the will specifically named one institution. In doing so, he relied particularly on two points: first, the gift was a residuary bequest made to a charitable institution with no gift over on its failure; second, the will otherwise contained bequests to some, although not all, of the testator’s next of kin. The criteria in other decisions, he concluded, exhibited a common theme:
A general charitable intention will be evidenced in part when the gift consists of the residue of the estate and there is no obvious consideration of what happens to the gift should it lapse. The underlying assumption is that the testator did not make preparations in the event of a lapse, because he had planned that the money would go forward to his general charitable purpose.
Whether a will is prepared by a lawyer or a layman, it is often the case that the will or a portion thereof is unclear as to its intention or meaning, and when that is the case is referred to the Supreme Court of British Columbia to interpret the will or portion thereof that needs interpretation.
The recent decision of Re Ali Estate 2014 BCSC 340, involved in interpretation of the words” my interest in the company “.
The deceased owned shares of the company operated with his brother, and left an estate valued at $9 million including the company worth approximately 1/2 that amount .
The testator was owed a shareholders loan as well as a debt from the company under a promissory note.
In his will the testator left 70% of my interest in the company to his brother.
On an application to interpret the meaning of that clause, the court found on the proper interpretation of the will as a whole and in light of the circumstances known to the will maker at the date of the will, that the testator intended the shareholders loan and the promissory note to be included in the bequest of his interest in the company.
THE LAW Re INTERPRETATION OF WILLS
The general principles which govern the disposition of this matter are not controversial. In Thiemer Estate, 2012 BCSC 629, I summarized the governing principles as follows:
[45] In construing a will, the objective of the court is to ascertain the intention of the testator as expressed in his or her will when it is read as a whole in light of any properly admissible extrinsic evidence: Rondel v. Robinson Estate, 2011 ONCA 493, at paras. 23-24; Theobald on Wills, 15th ed. (London: Sweet and Maxwell, 1993) at 199. It is a cardinal principle of interpretation that the testator’s intention is to be gathered from the will as a whole and not solely from those provisions which have given rise to the controversy: Perrin v. Morgan,[1943] A.C. 399 at 406 (H.L.); Re: Burke (1960), 20 D.L.R. (2d) 396 at 398-399 (Ont. C.A.).
[46] Another fundamental tenet affirmed by an established line of authorities is that the court is to ascertain the expressed intention of the testator – the meaning of the written words used in the particular case – as opposed to what the testator may have meant to do when he or she made the will: Perrin at 406.
[47] Earlier lines of authority endorsed an objective approach to will interpretation. However, modern jurisprudence recognizes that a strict literal approach can defeat the intention of the testator, thereby leading to unjust results: Law Reform Commission of British Columbia, Report on Interpretation of Wills, LRC 58 (Victoria, MAG, 1982) at 6. The liberal interpretive approach finds its roots in the seminal decision of the House of Lords in Perrin.
[48] In keeping with contemporary judicial thinking, the courts of this province have favoured the subjective approach to interpreting wills, wherein the objective is to ascertain the actual meaning the testator ascribed to the words he or she used in the will. In determining the testator’s intention the courts have endorsed the analytical approach commonly described as the “armchair rule”. The rule requires that the court put itself in the position of the testator at the point in time when he or she made the will, and from that vantage point construe the language in the will in light of the surrounding facts and circumstances known to the testator.
[49] In Re: Burke, the Ontario Court of Appeal articulated the guiding principles which were cited with approval by our Court of Appeal in Davis Estate v. Thomas (1990) 40 E.T.R. 107 (B.C.C.A.) and Smith v. Smith Estate, 2010 BCCA 106, at paras. 18 and 28 respectively:
… Each Judge must endeavour to place himself in the position of the testator at the time when the last will and testament was made. He should concentrate his thoughts on the circumstances which then existed and which might reasonably be expected to influence the testator in the disposition of his property. He must give due weight to those circumstances in so far as they bear on the intention of the testator. He should then study the whole contents of the will and, after full consideration of all the provisions and language used therein, try to find what intention was in the mind of the testator. When an opinion has been formed as to that intention, the Court should strive to give effect to it and should do so unless there is some rule or principle of law that prohibits it from doing so.
.
[51] Since the meaning of words in wills can differ so much according to the context and circumstances in which they are used, previously decided cases are of limited assistance except in so far as they may express general principles of construction. This notion has repeatedly been embraced by Canadian courts: Kaptyn Estate (Re) at para. 32; Perrin at 406; Re: Burke at 398.
The court will also in its interpretation of the will, look to the ordinary meaning of words as per a reputable dictionary.
The Canadian Oxford Dictionary, 2d ed., defines interest as:
…
5 (a) “A financial stake (in an undertaking, etc.)”.
(b) “A legal concern, title or right (in property)”.
[32] The Dictionary of Canadian Law, 2d ed. defines interest as:
Something which a person has in a thing when that person has advantages, duties, liabilities, losses or rights connected with it, whether ascertained or potential, present or future”
[33] The ordinary meaning of “interest” is expansive and in my view the ordinary meaning of an “interest” in a company is not limited to shareholdings in that company. It follows that in gifting his “interest in the Company”, the Deceased intended to dispose of more than his shares in the Company. It is reasonable to conclude that in the context of the Will, the Deceased intended to bequeath the entirety of his financial stake in the Company, including any indebtedness owing to him by the Company, be it a shareholder’s loan or other debt evinced by a promissory note.
[34] Recourse to the armchair rule and consideration of the circumstances known to the Deceased at the time he made the Will also support the conclusion that he intended that the Shareholder’s Loan and Promissory Note were to be included in the subject bequest.
Special costs , in a nutshell means that the losing party pays all the legal fees of the winning party, and are being awarded on an increasingly frequent basis for reprehensible behavior.
The general public by and large for many decades already thought that was the law, but in fact, it is a relatively new development, especially in estate litigation.
As a matter of trial practice , awards of special costs are actually rare, and the award of costs, while discretionary and based on a number of factors, rarely consists of payment of the entire winning parties costs, but only a significant portion thereof.
There are several other blogs on this website on situation where special costs and other types of court awarded costs are discussed in detail, including:
November 19, 2013
September 1, 2013
August 18, 2013
April 14,2013
May 24, 2012
May 23, 2012
I have recently been blogging about the Panghali case where the ten year old girl was awarded $500,000 damages against the murderer of her mother, pursuant to the Family Compensation Act.
Generally speaking there must be ” reprehensible conduct” of the party at fault, and the Court refused to award special cots against the murderer, as his reprehensible conduct was not directly related to the course of the litigation.
The Court explains its rationale for refusing the winning party special costs against the losing party as follows:
The plaintiffs claim special costs. They say that such costs are available where the conduct giving rise to the liability is reprehensible and criminal in nature. They cite Wiebe v. Gunderson et al, 2003 BCSC 1931, for that principle.
[97] The defendant responds that the “motivation” of the plaintiffs in seeking special costs is based on the defendant’s criminal conduct and that somehow it is really a claim for punitive damages. Therefore, relying on B.(P.) v. B. (W.) (1992), 11 O.R. (3d) 161 (Gen. Div.) at para. 21, he submits he has already been sanctioned and punished and that “to award punitive damages in a civil lawsuit would amount to double jeopardy”.
[98] With respect there are difficulties with both these statements of law. To begin, in Whiten v. Pilot Insurance Co., 2002 SCC 18 at para. 69, the Supreme Court of Canada clearly states that punitive damages may be awarded even where the defendant has already been punished by a criminal court for an offence arising out of substantially the same facts. It is simply another factor to consider in determining whether punitive damages are necessary in the circumstances. There is no “double jeopardy” defence and, as such, no argument that special costs are barred by analogy.
[99] As to the availability of special costs for pre-litigation criminal conduct, I am not convinced that the law is as clear as the plaintiff suggests. In fairness, the plaintiff did acknowledge that there are no cases that directly address similar circumstances. As such, the question of whether special costs are available in a Family Compensation Act claim where the conduct causing death is criminal in nature (and has received a criminal sanction) is, at least in British Columbia, to some extent one of first impression.
[100] The plaintiff is correct to say that special costs are awarded where there has been reprehensible conduct on the part of one of the parties. Reprehensible conduct includes “scandalous or outrageous conduct … [and] milder forms of misconduct deserving of reproof or rebuke” (Garcia v. Crestbrook Forest Industries Ltd. (1994), 119 D.L.R. (4th) 740 at para. 17 (B.C.C.A.)).
[101] The purpose of special costs is to chastise or punish a litigant, and to allow the court to disassociate itself from the litigant’s misconduct: Mayer v. Osborne Contracting Ltd., 2011 BCSC 914 at paras. 8, 10.
[102] Generally speaking, special costs are only available for misconduct in the course of the litigation itself. However, in exceptional circumstances, special costs can be awarded where pre-litigation conduct warrants rebuke: Dockside Brewing Co. Ltd. v. Strata Plan LMS 3837, 2007 BCCA 183 at para. 90. To attract an award of special costs, the pre-litigation conduct must give rise to a compensable legal wrong: Evergreen Building Ltd. v. IBI Leaseholds Ltd., 2009 BCCA 275 at para. 33.
[103] As noted in Elsen v. Elsen, 2011 BCSC 1011 at para. 14, such awards will be “quite rare.” The case law establishes two generally accepted exceptions where special costs may be awarded for reprehensible conduct prior to litigation (see Golden Capital Sec. Ltd. v. Holmes et al., 2003 BCSC 1265 at para. 166). The first was identified in Verleg v. Angeloni (1993), 20 C.P.C. (3d) 132 (B.C.S.C.), where the court said that one exception involved misconduct giving rise to litigation in the nature of fraud or unconscionability (at para. 10). That is the exception relied on in Wiebe. It is not applicable here.
[104] The second exception is identified in Sun Life Assurance Co. v. Ritchie, 2000 BCCA 231 at para. 54:
[54] … However, there may arise circumstances where special costs may be awarded because of the reprehensible conduct giving rise to the litigation, particularly where the fruits of the litigation do not provide any appropriate compensation in relation to the reprehensible conduct. … [Emphasis added]
[105] A number of cases have commented on the Sun Life exception. In Golden Capital the court said that the special costs were suitable where such an order would be “the only method in which the court can demonstrate its disapproval for the misconduct” (para. 167).
[106] In most cases, reprehensible conduct giving rise to the cause of action can be addressed by an award of punitive damages, rather than special costs: D.H. v. L.J.H., [1997] B.C.J. No. 2724 at para. 26 (S.C.). Where the plaintiff receives punitive damages, the fruits of the litigation clearly provide compensation for the reprehensible conduct, and special costs should not be awarded. Awarding both for the same conduct would comprise double compensation: McPhillips v. British Columbia Ferry Corp. (1993), 16 C.P.C. (3d) 284 at para. 18 (B.C.S.C.). In a number of decisions the court has refused to award special costs on the basis that punitive damages have already fulfilled that function: see P.B. v. R.V.E., 2008 BCSC 613 at para. 27; and Manavi v. McDonald, [1993] B.C.J. No. 463 (S.C.) at para. 23.
[107] There are others where the court has found that the fruits of the litigation are sufficient even absent a punitive damages award. In Owners, Strata Plan KAS 3267 v. Smith, 2011 BCSC 387 at para. 27, the court noted that the defendant’s pre-litigation conduct was reprehensible, but pointed out that it gave rise to the (successful) claim for a damages award:
[27] … In my view, the fruits of this litigation, being judgment for money owing, will provide full compensation of the corporation’s loss. This is not one of those unusual circumstances were reprehensible pre-litigation conduct gives rise to a need to add special costs to the claimant’s recovery in order to redress something lacking in the main award. …
[108] In Elsen and Adtronics Signs Ltd. et al. v. Sicon Group Inc., et al. (re costs), 2005 BCSC 440 at para. 23, the misconduct complained of had given rise to the cause of action and the resultant award of damages and had therefore been adequately addressed.
[109] One of the difficulties in this case is that punitive damages are not available in a claim under the FCA: see Allan Estate v. Co-operators Life Insurance Co., 1999 BCCA 35 at para. 71. The FCA is not punitive in nature (see Duncan, para. 48). It is only meant to provide financial recompense for pecuniary losses flowing from the death itself, rather than providing a sanction for the wrongdoer’s role in the death.
[110] I agree with the plaintiffs that Mr. Panghali’s conduct was reprehensible. Indeed it is difficult to envision more reprehensible conduct than that of the defendant in murdering his wife and their child’s mother and burning her body in an effort to escape detection. However, in the circumstances I do not think that this is a proper basis for an award of special costs. First, the court has already demonstrated its disapproval of that misconduct in the criminal proceedings. Mr. Panghali is serving a life sentence for the murder. Second, I have some concerns about awarding special costs with the goal of punishing the conduct giving rise to the cause of action when the statutory basis for the cause does not permit an award of punitive damages. If special costs were claimed for misconduct in the course of the litigation itself the situation would be different; but in these circumstances such an award would essentially do indirectly what the court cannot do directly.
[111] Finally, following Adtronics and Strata Plan KAS, I find that the award of damages in this matter, which flows directly from the conduct complained of, provides full compensation for the pecuniary loss. As a result I decline to award special costs. The plaintiffs have otherwise been successful and will receive costs at Scale B.
Fraud is a deception deliberately practiced in order to secure unfair or unlawful gain (adjectival form fraudulent; to defraud is the verb, and the Badges of Fraud are used by the court s as rough gauge as to whether Fraud exists in the situation or not..
As a legal construct, fraud is both a civil wrong (i.e., a fraud victim may sue the fraud perpetrator to avoid the fraud and/or recover monetary compensation) and a criminal wrong (i.e., a fraud perpetrator may be prosecuted and imprisoned by governmental authorities).
Defrauding people or organizations of money or valuables is the usual purpose of fraud, but it sometimes instead involves obtaining benefits without actually depriving anyone of money or valuables, such as obtaining a drivers license by way of false statements made in an application for the same.
There are a number of articles relating to fraud on this website, most of which deal with Fraudulent Transactions or conveyances to try and hinder creditors such as beneficiaries.
Undue influence is also a civil form of fraud and yesterdays blog discusses in some detail the fraudulent aspect involved in undue influence
The Badges of Fraud
Suspicious circumstances which our courts may characterize as “badges of fraud” include the following:
1) Secrecy surrounding the transaction
2) Cash payments were made
3) No change of possession occurred after the conveyance;
4) Transfer to non-arm’s-length person;
5) The transferor has few remaining assets;
6) The transfer was effected with unusual haste;
7) Grossly inadequate consideration was paid;
8) A benefit was retained by the transferor under the settlement;
9) The transfer was made in the face of potential litigation;
10) Lack of accurate documentation supporting the transaction.
These “badges of fraud” are enumerated in Bank of Montreal v. Vandine (1953) 1 D.L.R. 456;
Prodigy Graphics Group Inc. V. Fitz- Andrews, (2000) O.J. No. 1203 ( Ont. S. C. J.);
Mistakes in wills are frequently made and then subsequently not discovered until typically many years later after the passing of the will maker.
The usual types of mistakes break into two areas- that the will was not properly executed in accordance with established principles ,or the will itself does not make sense, is ambiguous, and needs to be constructed and interpreted.
Section 59 of WESA provides a new section allowing the court to rectify a will if the court determines that the will fails to carry out the will maker’s intentions because of:
1) an error arising from an accidental slip or omission;
2) a misunderstanding of the will maker’s instructions;
3) A failure to carry out the will maker’s instructions.
The court further allows for extrinsic evidence, that is evidence relating to the circumstances under which the will instructions were given and the will executed ,including evidence of the will maker’s intent, in order to prove the existence of the circumstance described in section 1 aforesaid .
For further reading on the construction or interpretation of wills, also see blogs on this site dated September 8,2011
December 9,2011
June 1, 2012
April 20,2013 and
June 2, 2013.
The general guidelines of case law with respect to interpretation and construction of wills is as follows:
The goal in interpreting a will is to give effect to the testamentary intentions of the testatrix for the distribution of her estate: Rondel v. Robinson Estate, 2011 ONCA 493, 337 D.L.R. (4th) 193, at para. 23.
[17] The Ontario Superior Court of Justice in Re Kaptyn Estate, 2010 ONSC 4293, 102 O.R. (3d) 1, (“Kaptyn Estate”) helpfully summarized many of the principles relating to the interpretation and construction of wills:
a) The court will seek to determine the actual intention of the testator, as opposed to an objective intent presumed by law (para. 31).
b) Other cases interpreting words in other wills are of little assistance since the task is to interpret this testator’s subjective intentions (para. 32).
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).
d) 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).
e) The authorities distinguish between admissible and inadmissible extrinsic evidence in interpreting a will (paras. 35-38):
i. “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;
ii. “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;
f) the court will interpret the will viewed as a whole (para. 138);
g) the court will prefer an interpretation that leads to a testacy, not an intestacy (para. 139); and,
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 at para. 77.
New Probate Rule 25-11 greatly expands the power and effect of issuing a Citation.
The form prescribed in P32 is much more detailed in the information required.
The person cited with the Citation has 14 days of personal service to respond and deliver to the citing party:
1) a copy of the grant;
2) a copy of the filed submission for the grant;
3) if not yet i8ssued, a copy of the materials filed in support of the grant,
4) if no steps have ben taken towards obtaining probate, the disputant must file an Answer under Form P33
Under 25-11(2) the citation must also be personally served on each alternate executor in the event that the first executor fails to comply with the 14 day rule, or file an Answer.
Under Section 25-11 (5) , a person cited is deemed to have renounced executorship if:
a) the person cited refuses to comply with providing the information or filing an Answer under 25-11 (4), is deemed to have renounced executorship.
2) or obtain a grant of probate within 6 months of the date the citation was served
5-11 (6) deals with the effect of failing to answer a Citation or refusing probate:
1) if the person fails to apply for probate , provide an Answer or fails to provide the information, he or she is deemed to have renounced the executorship.
In that event, the citor or another person interested in the estate may apply for:
1) a grant of probate or administration with will annexed;
2) an order under S 58 curing deficiencies in the testamentary document;
3) that the testamentary document be proved in solemn form;
4) if the testamentary document is in the possession of a third party, the issuance of a subpoena under Rule 25-12 to require the cited person to file the testamentary document
RULE 25-11—CITATIONS
Citation to apply for probate
(1) If a testamentary document is or may be in existence, a person interested in the estate may
serve by personal service on each person named as an executor in the testamentary document a citation
in Form P31 fed. note: Form P32] in respect of the testamentary document to require the served person
to apply for a grant of probate in relation to that testamentary document
Alternate executors
(2) A citation under subrule (I) in relation to a grant of probate
(a) must be served by personal service on each alternate executor if an event, including, without limitation, an event referred to in subrule (5), occurs that entitles the alternate executor to assume the office of executor, and
(b) must not be served on an alternate executor until an event referred to in
paragraph (a) occurs that entitles that alternate executor to assume the office of executor.
Citation to be supported
(3) A citation under subrule (I) in relation to a testamentary document must include
(a) an address for service of the citor, which address for service must be an accessible address that complies with Rule 4-1(1), and
(b) a statement of the citor providing ,
(i) the grounds for the citor’s knowledge of or belief as to the existence of the
testamentary document, and (ii) information available to the citor that will allow the testamentary document
to be identified.
Answer to citation
(4) A person who is cited by being served with a citation under subrule (I) must, within 14 days
after being served with the citation,
(a) if the cited person has been issued a grant of probate in respect of the testamentary document in relation to which the citation was issued, serve on the citor, by ordinary service, a copy of the estate grant, or
(b) if the cited person has not yet been issued a grant of probate in respect of the testamentary document in relation to which the citation was issued, serve the citor as follows:
(i) if the cited person has filed a submission for estate grant under Rule 25-3(2) in respect of the testamentary document, serve on the citor, by ordinary service, a copy of the filed submission for estate grant along with copies of the other documents filed under Rule 25-3(2);
(ii) if subparagraph (i) does not apply but the cited person has delivered
documents under Rule 25-2( I) in relation to an application for a grant of probate that the cited person intends to pursue in respect of the testamentary document, serve on the citor, by ordinary service, a copy of those documents;
(iii) if the cited person has not taken any step under this Part in relation to the estate, serve on the citor, by ordinary service, an answer in Form P33 providing an address for service that is an accessible address that complies with Rule 4-1 (I) and stating that the cited person
(A) will apply for a grant of probate in respect of the testamentary document, or
(B) refuses to apply for a grant of probate in respect of the testamentary document
Deemed renunciation of executorship
(5) A person who is cited under subrule (I) to apply for a grant of probate in relation to a
testamentary document is deemed to have renounced executorship in relation to that testamentary
document if
(a) he or she is a person referred to in subrule (4)(b)(i), (ii) or (iii)(A) and does not (i) serve on the citor the document that, under that provision, he or she is required to serve, or
(ii) obtain a grant of probate within 6 months after the date on which the citation was served or within any longer period that the court on the application of the cited person may allow, or (b) he or she is a person who serves on the citor an answer referred to in
subrule (4)(b)(iii)(B).
Effect of failure to answer citation or give reason for refusing probate
(6) If each person who is cited under subrule (I) to apply for a grant of probate in relation to a
testamentary document is deemed under subrule (5) to have renounced executorship in relation to the
testamentary document, the citor or another person interested in the estate may, without limiting any
other right the citor or other person may have, apply for one or more of the following:
(a) a grant of probate or a grant of administration with will annexed in relation to the testamentary document or another testamentary document;
(b) an order under section 58 of the Wills, Estates and Succession Act curing any deficiencies in the testamentary document;
(c) an order that the testamentary document is a will proved in solemn form;
(d) if the testamentary document is in the possession of a cited person, the issuance of a subpoena under Rule 25-12 to require the cited person to file the testamentary document
Affidavit of deemed renunciation for grant of probate
(7) The citor may swear an affidavit of deemed renunciation in Form P34 if the person who has been
served with a citation in respect of a testamentary document is deemed under subrule (5) to have
renounced executorship in relation to the testamentary document.
Sections 58 and 59 of WESA are clearly the most significant differences between the former legislations and the new legislation to be brought into effect on March 31, 2014. These two sections basically allow the court to cure defects in a will and to rectify an error in a valid will and allow it to carry out the will maker’s intentions.
The clear intent of the legislation is to allow the court to focus on what was the testator’s intent rather than on technical deficiencies to the execution of the will.
Much will be written about and litigated for many years concerning these two sections.
Todays blog will include a copy of section 58, that allows the Court to cure deficiencies, with a few comments.
Court order curing deficiencies
58 (I) In this section, “record” includes data that
(a) is recorded or stored electronically,
(b) can be read by a person, and
(c) is capable of reproduction in a visible form.
(2) On application, the court may make an order under subsection (3) if the court determines that a
record, document or writing or marking on a will or document represents
(a) the testamentary intentions of a deceased person,
(b) the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or
(c) the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.
(3) Even though the making, revocation, alteration or revival of a will does not comply with this Act,
the court may, as the circumstances require, order that a record or document or writing or marking on a
will or document be fully effective as though it had been made
(a) ■ as the will or part of the will of the deceased person,
(b) as a revocation, alteration or revival of a will of the deceased person, or
(c) as the testamentary intention of the deceased person.
(4) If an alteration to a will makes a word or provision illegible and the court is satisfied that the alteration was not made in accordance with this Act, the court may reinstate the original word or provision if there is evidence to establish what the original word or provision was.
The first paragraph defining “record”to enable electronic wills, which are undoubtedly noncompliant by definition, but can still be accepted for probate by the court under section 58 by virtue of the new definition of “record”.
The court has in effect changed the law after hundreds of years of being relatively “strict compliance”re-the execution of wills, to now about more of an “imperfect compliance”, that can be remedied by the court in its search for what was the true intention of the testator.
Garnett Estate v Garnett Estate 2013 BCSC 1731 is an interesting case where pre WESA, a lawyers questionnaire re will instructions was determined by the court to be a valid will and admitted into probate.
In this case the executrix brought an action to prove the will of the deceased in solemn form.
The deceased was in palliative care and it became apparent that she would not survive long enough to meet with a lawyer to complete a new will. She then had two witnesses sign the lawyers questionnaire left by the lawyer, which the deceased signed in the witnesses presence.
The will questionnaire did not have a residue clause, and in fact the two witnesses to the will were beneficiaries so they could not inherit under that document.
Nevertheless the court determined that the testamentary intention of the deceased was to make “a fixed and final expression as to the disposal of her property on death “( Das Estate 2012 NSSC 441 at para 18).
The court found that despite the unconventional form of the 2008 document and its original generation as a lawyers questionnaire which would ordinarily have led to the finalization of a more sophisticated document, the court found in the circumstances of the deceased demonstrated her obvious intention that the document constituted testamentary disposition.
Proof of a will in solemn form
[35] I quote from Gillis v. Ardies, 2009 BCSC 215 at paras. 19-20 per Parrett J.:
[19] In today’s process, proof in solemn form requires the executor (or the will’s proponents) to meet the evidentiary burden of proving the will before the court. In such a hearing the executor must satisfy the court by adducing evidence –
that the will in question was duly executed;
that the testator had the capacity to appreciate and understand its contents; and
that he had the ability to sign the will.
[20] In the present case, proving the will in solemn form is required to address the issue of whether or not portions of the writing are invalid, and to determine what, in fact, constitutes the will.
[36] I find the above a helpful summary of the steps I must take to deal with the application to prove Ms. Garnett’s will in solemn form.
The doctrine of ademption by conversion — a rule of the law of wills whereby a specific bequest “adeems”, or fails, if at the testator’s death the specified property is not found among his or her assets — either because the testator has parted with it, or because the property has “ceased to conform to the description of it in the will”, or because the property has been wholly or partially destroyed. (J. MacKenzie, ed., Feeney’s Canadian Law of Wills (4th ed., loose-leaf, 2000) at §15.2.)
The doctrine applies as a matter of law, irrespective of the testator’s intentions in the matter, although his or her intentions are clearly relevant to the anterior question of whether the gift in question is a “specific” legacy (and therefore subject to ademption), or a general one (not subject to ademption). The doctrine is also subject to the qualification that even if the gift in question is a specific legacy, it may be saved in some circumstances if the property has changed “in name or form only”, and still forms part of the testator’s property at the date of death.
Being a specific legacy, the gift will be adeemed by conversion if the property has “ceased to exist as part of the testator’s property in his lifetime” (Jarman, at 1065) or has ceased to conform to the description in the will (Feeney, at §15.2).
Whether it was intended for the gift to be adeemed is not relevant: the doctrine applies “irrespective of the testator’s intentions.” (Hurzin v. Neumeyer Estate (1990) 69 D.L.R. (4th) 18 (B.C.C.A.), at 22; Jarman, at 1065
Ademption will not occur where the specific property in question has been changed “in name or form only” so that it “exists as substantially the same thing, although in a different shape.” (Halsbury, supra, vol. 50 at para. 394, citing Oakes v. Oakes (1852) 9 Hare 666 at 672, approved in In re Slater [1907] 1 Ch. 665 at 672 (C.A.).) Whether the change is one in name or form only is a question of fact: In re Jameson [1908] 2 Ch. Ill at 115; Feeney, at §15.27.
Predictably, a body of case-law has developed involving situations in which someone other than the testator has caused the change to occur — e.g., where corporate shares have been forcibly exchanged on an amalgamation or statutory reorganization (see In re Jameson, supra, In re Slater, supra, In re Faris [1911] 1 I.R. 165, In re Leeming [1912] 1 Ch. 828, Re Humphreys (1915) 60 Sol. Jo. 105, In re Kuypers [1925] Ch. 244, and Re Ogilvy (1966) 58 D.L.R. (2d) 385 (Ont. H.C.),
In most of these cases the gift was saved on the basis that the Court found that the change was one in form only.
