Administration Ad Colligenda Bona

Several years ago disinherited.com had an estate where the deceased had substantial assets that needed protection, while it took in excess of two years to locate his very distant next of kin in the far-off Ukraine. He had died intestate and no person came forward to be appointed administrator of the estate.

In these situations where there is a delay in the appointment of a general administrator and it is necessary for the protection of the estate that someone be empowered to protect the assets, then the court may well appoint an administrator ad colligenda bona.

This type of grant and is typically made when situations arise where either there is no one to be appointed administrator, or they cannot be located, or they have refused to accept a grant of administration.

 

The grant may even be made to a creditor or to a friend of the deceased, as the main purpose is to protect the assets until a proper administrator can be found and appointed.

 

The grant is usually limited to a particular purpose and time until the jungle until the general grant is made. It is for the administration only, the will is not proved her annexed, and bonding is generally required.

In Re Shalapay 3 BCLR 3d 217 the Court held that an Administratrix is entitled to reasonable remuneration for services performed as administratrix and as solicitor.

There is no statutory authority for the appointment of an administrator ad colligenda bona. However, the scope of the appointment is similar in nature to that of an administrator pendente lite. If the estate is large, a percentage fee as contemplated by s. 90 of the Trustee Act would be ridiculous. On the other hand, if the estate were small, a percentage fee might be insufficient.

An administratrix ad colligenda bona should be entitled to reasonable remuneration rather than a percentage of the estate for her work as administratrix and to her reasonable fees as solicitor. Her accounts as solicitor would be subject to review under the Legal Profession Act.

What Is Double Probate?

Executors frequently appoint more than one person as his or her personal representative, and on occasion not all parties who are entitled to apply for probate actually do. However at the same time they do not renounce their executor ship and reserve the right to apply at a later date.

If that executor does apply for probate at a later date, the new grant is called a double probate, that runs concurrently with the earlier grant, assuming one or more of the first executors to probate is still living.

 

The applicant for the double probate includes only the un- administered estate in his or her affidavit. The affidavit must also give particulars of the early grant of probate, and show that the power to him or her to apply was in fact reserved in the earlier grant.

 

The same notice of intention to apply for probate pursuant to section 112 of the Estate Administration act must be sent to all interested parties again, along with the appropriate supporting materials.

While textbook authors have stated that in theory one executor may apply for a grant of probate without notifying the other executors, in practice it is doubtful that a court would make such an order without notice, as it is important that the executors who are not appointed, reserve their right to apply at a later date, and that the right is specifically stated in the initial grant of probate.

Copy of Will Not Admitted to Probate, as No Proof Original Was Ever Signed

Re Whitehead Estate 2010 BCSC 348, the deceased was a founding member of a credit union and a retired bank manager. After his death, a “trued up” copy of will dated December 21, 1979 was found, but the original of that will was never located.

Under the will his sister was to receive $356,000, whereas on an intestacy, the sisters estate would receive 120,000. The sister had survived her brother, but subsequently died leaving two daughters.

The deceased was a meticulous record keeper who wrote letters to friends prior to his death that said she was getting her affairs in order, and did not want to leave loose ends for executors.

 

The deceased met with her financial advisors three times in the last month of her life. The financial advisor said that the deceased had plans to establish funds for various charities so as to reduce gifts to individuals and had placed $400,000 aside and guaranteed investment certificates.

 

The deceased solicitor had died and the original will was not found amongst his files.

 

The proposed administrator of the deceased estate made an application for a declaration that the deceased died intestate rated

 

The application was allowed.

 

No evidence was called to establish that the copy of will was properly executed in the first place, or was in fact a true copy of will.

There was no presumption that the will was destroyed, as there was no evidence that the deceased ever had possession of the original will.

 

20 The test for proving a lost will requires proof of the due execution of the will; particulars tracing possession of the will to the date of death, and afterwards if the will was lost after death; rebuttal of the presumption that the will was destroyed by the testator with the intention of revoking it; and proof of the contents of the lost will: Sorkos v. Cowderoy, [2006] O.J. No. 3652(Ont. C.A.).

 

21 Similarly, in O’Donovan v. O’Donovan, [2009] O.J. No. 5020(Ont. S.C.J.) the court noted that:

 

As previously stated, the original wills have not been located. Sheila found signed copies in the residence. Proving a lost will can be accomplished; that is proof as to its contents, due execution and testator’s capacity: see Oosterhoff on Wills and Succession, 5th edition, Carswell 2001 at p. 355. Professor Oosterhoff adds the propounder of the will “… must usually also overcome the presumption of destruction “animo revocandi” … if the will was last known to be in the deceased’s possession”: see, also, Lefebvre v. Major, [1930] S.C.R. 252(S.C.C.); and Sorkos v. Cowderoy (2006), E.T.R. (3d) 108 (Ont. C.A.). This concept follows the English authorities: see Sugden v. Lord St. Leonards(1876), 1 P.D. 154(C.A.).

 

There is no issue arising in this case as to the deceased’s testamentary capacity.

 

22 The applicant referred to Goudge, Re, [1978] N.B.J. No. 337(N.B. Prob. Ct.). In that case one of the issues was whether or not there was a properly executed will. The solicitor who had drawn the will testified that he was one of the witnesses to the execution of the will by the testatrix. He also said the second witness was present at the time the will was executed. On that evidence the will was proven to be a copy of a properly executed will.

 

23 The applicant says that kind of evidence is missing in this case. Not only has the solicitor who drew the will died, but also there is no one available who can identify the witnesses to the will whose names appear in the “trued up” copy. While the will has all of the appearances of a copy of a properly executed will, the applicant says that it cannot be presumed to be properly executed by appearance only and requires evidence from someone who can swear that it is a true copy of will and that it was properly executed.

 

24 In Goudge’s Estate, supra., and other cases such as Green Estate, Re, 2001 ABQB 835(Alta. Q.B.), and Flaman Estate, Re, [1997] S.J. No. 442(Sask. Q.B.) evidence was presented by a witness who was able to testify to the proper execution of the will and that it was a true copy of the original.

 

25 In Flaman, the court held that the two main requirements to admit a copy of will to probate are that there be proof of execution of the original and proof of the contents. The court held that there was no proof of execution of the will and it was not admitted to probate. Instead, a direction was given that proper proof of execution was required. The court referred to Williams on Wills, 5th ed., Vol. 1 (London, Butterworths, 1980) at p. 96 where it was stated:

 

… Where a testamentary document has been lost or destroyed in such a way as not to effect a revocation probate may be granted of the contents thereof upon proof of such contents and due execution and attestation of the instrument. Where the person setting up an alleged will cannot produce any copy or draft or any written evidence of its contents, he must prove all these matters so as to remove all reasonable (but not all possible) doubt on these points

 

. . . . .

 

9 As well, R.B. Rowe, E. Heward & G.F. Dawe, eds, Tristam and Coote’s Probate Practice, 25th ed. (London: Butterworths, 1978) sets out at p. 561 what an affidavit should show if, as in this case, no copy or draft of the will is available. First of all, “[i]f the original will was not forthcoming at the death of the testator, the full circumstances in which it was last known to be in existence but failed to be forthcoming at the death.” Secondly, “[d]ue execution of the original will, which should, whenever possible, be proved by one of the attesting witnesses.” Thirdly, the affidavit must also show “[w]ho are the persons prejudiced by the admission of the document sought to be established … and whether they are all sui juris.” Is there anyone who would take a greater interest under an intestacy or under an earlier will? Fourthly, the affidavit should “depose to the contents of the will as set out in a reconstruction, which should be in the form of a separate document exhibited to the affidavit.”

 

10 T.G. Feeney in The Canadian Law of Wills, states at p. 99 that:

 

… [P]robate may be granted of the contents of the lost will, after proof of due execution, on such secondary evidence as a copy or a draft or solicitor’s notes or any other written evidence; and indeed, if it is sufficiently clear, even oral testimony may be probated.

 

And the 35 C.E.D. (West. 3rd), Vol. 35, states at p. 155-162, s. 179 that:

 

S. 179 Should the presumption be rebutted, the lost will may be admitted to probate upon proof of due execution, and evidence of its contents may be adduced by way of a copy or a draft, solicitor’s notes or other writings, or even by oral testimony.

 

[Emphasis added]

 

26 In this case, there is no evidence to identify the witnesses to the execution of the will nor is there any evidence to show that the will is a true copy of the original will. While the copy presented has all of the characteristics of a legitimate copy of an original will, on the authorities it cannot be presumed that the original was properly executed or that the copy presented is a true copy. The authorities require proof of both.

 

27 It may be that the necessary proof can be presented through means other than a witness to the execution of the will. For example, proof of the usual practice followed by a solicitor or legal assistant that a will was only “trued up” once it had been properly executed and compared to the original may be sufficient to show that it is in fact a true copy. But some evidence is necessary to establish the necessary facts and here there is none. There is no witness available or even identified to say that the will was properly executed nor is there anyone to attest to any other evidence to establish that the copy of will is a true copy as that term is understood in law. Even if the standard of proof is lower than a balance of probabilities there is an absolute absence of any evidence whatsoever in this case.

 

28 The applicant is therefore entitled to succeed on the ground that there is no evidence upon which the court can conclude that the will of the deceased was properly executed or that it is a true copy of the original will.

 

29 If that conclusion is incorrect and the will is in fact properly executed and a true copy of the original, the next issue is whether the original will can be traced to the possession of the deceased. If it can be traced to her possession then on a finding that the original has been lost, the presumption arises that it has been destroyed with the intention of revoking the will. Feeney in The Canadian Law of Wills, 3rd edition, vol. 1 at pp. 134-135 states:

 

The same presumption, that of destruction animo revocandi, that arises when a destroyed or mutilated will is found among the testator’s papers on his death, arises also when it is shown that the testator’s will was last traced to his possession but cannot be found on his death. The presumption is well recognized in Canadian case law, but the fullest inquiries for the lost will must be shown to have been made for a court to apply the presumption in the first place. The presumption is often rebutted either by the circumstances tending to show a contrary conclusion or by declarations made by the testator showing that he regarded the lost will as valid and subsisting. However, strong evidence is usually needed to rebut the presumption.

 

30 The beneficiaries under the will submit that there is no evidence to suggest that the deceased was in possession of the will. No one has said that the original will was ever known to be in her possession nor is there any reference in the affidavit material to a comment of the deceased that she had at any time had the original of her will in her possession. The deceased named her solicitor as the sole executor of her estate without any alternates and it is likely that the original at least initially remained in his possession. The beneficiaries also say that if the deceased was in possession of her original will, there was no need for her to keep a copy in a briefcase containing other important papers. See Haider v. Kalugin, 2008 BCSC 930(B.C. S.C. [In Chambers]), at para. 22.

 

31 On the evidence presented in this case, I am not able to find that the deceased ever had possession of the original will and therefore the presumption that the will has been destroyed with the intention that it be revoked does not apply.

 

Conclusion

32 On the evidence the applicant is entitled to a declaration that the deceased died intestate as there is no evidence that the copy of will presented in evidence was ever properly executed by the deceased or that it is in fact a true copy of will.

When Can a Will Draftman’s Notes Be Admissible to Interpret a Will Meaning?

Re Hoedl Estate 2012 ONSC 6857 involves the issue of whether the drafting solicitors notes are admissible at a hearing to interpret a will meaning.

The executor of the deceased estate was also the solicitor who drafted the will.

The executor initially advised of one proposed distribution of the residue, and then subsequently advised of the second proposal after checking his notes made at the time of drafting the will.

The executor brought a court application for interpretation of the will in order to resolve the confusion created by the two conflicting proposed distributions of the residue.

One of the residual beneficiaries brought a motion for an order that the lawyer’s notes made at the time of the drafting of the will should not be admitted at the hearing.

That motion was dismissed and the notes were admissible at the hearing.

The court found that the wills meaning was clear and that his words were supported by the contemporaneous notes. The notes would not have been admissible to contradict clear words of the will.

However here if the will was ambiguous and could be read in two ways, and the notes would be admissible as extrinsic evidence to clarify the testator’s intention.

12 In Robinson Estate v. Robinson, 2011 ONCA 493(Ont. C.A.) (CanLII), the court reaffirmed the general principal that extrinsic evidence of a testator’s intention is not admissible in the face of an unambiguous will. However, Juriansz, J.A., speaking for the court, said the following, at para. 24:

Of course, it is always possible that the testator’s expression of her testamentary intentions may be imperfect. When a will takes effect and is being interpreted, the testator is no longer available to clarify her intentions. Extrinsic evidence is admissible to aid the construction of the will. The trend in Canadian jurisprudence is that extrinsic evidence of the testator’s circumstances and those surrounding the making of the will may be considered, even if the language of the will appears clear and unambiguous on first reading. Indeed, it may be that the existence of an ambiguity is only apparent in the light of the surrounding circumstances.

Presumption of Resulting Trust Rebutted By Evidence of Love and Affection

IN the Spirit of ThingsThere is a presumption of resulting trust over a gift when a substantial asset is transferred for little or no consideration,-here the presumption was overcome by evidence of love and affection.

Oord v Oord 2012 BCSC 1857 is the classic scenario where a well-intentioned family ended up in litigation concerning the ownership to the home which the plaintiff and her deceased husband purchased with their son and his wife and two children. The purchase price for the home came entirely from the parents but title was registered in the names of both parents and both the son and daughter-in-law as joint tenants. After the death of the husband, his interest was transferred to the remaining three joint tenants in equal shares. The son and the daughter-in-law subsequently separated.

The mother plaintiff brought this action for a declaration that the son and daughter in law held part of their interest in the property in trust for the mother, for an order for partition and sale of the property, and for division of the proceeds in accordance with the beneficial interest. The court dismissed the action and found that as the monies used to purchase the property came entirely from the parents, the registration of title to the property and all four names amounted to a gratuitous transfer in favor of the son and daughter-in-law.

The presumption of advancement could not apply, and the presumption of resulting trust applied, but was rebutted by the sun with regard to the initial payment to purchase the lot. The existence of love and affection and desire on the part of the parents to assist their children was relevant in the courts determination as to whether the presumption of resulting trust was rebutted. The court found that the living arrangement was intended to be a permanent situation, and that the parents intended to make a gift of one half of the purchase price of the property, because they knew it was the only way such an arrangement would be possible. The court ordered partition and sale of the property, finding that sale was the only method for division of the parties interests.

In the leading case, Pecore v. Pecore, [2007] 1 S.C.R. 795 [Pecore], Mr. Justice Rothstein, writing for the majority, discussed the principles to be applied by the court when dealing with gratuitous transfers and determining whether a resulting trust was created or whether the transfer was a gift. He began by defining the competing notions of resulting trust and advancement at paras. 20 – 21:

20 A resulting trust arises when title to property is in one party’s name, but that party, because he or she is a fiduciary or gave no value for the property, is under an obligation to return it to the original title owner … .

21 Advancement is a gift during the transferor’s lifetime to a transferee who, by marriage or parent-child relationship, is financially dependent on the transferor.

[28] While it is the actual intention of the transferor at the time of the transfer that determines how a dispute concerning a gratuitous transfer should be determined, the law has developed certain rebuttable presumptions that will arise, depending on the circumstances. Rothstein J. referred to these presumptions at para. 22, as follows:

22 In certain circumstances which are discussed below, there will be a presumption of resulting trust or presumption of advancement. Each are rebuttable presumptions of law: see e.g. Re Mailman Estate, [1941] S.C.R. 368, at p. 374; Niles v. Lake, [1947] S.C.R. 291; Rathwell v. Rathwell, [1978] 2 S.C.R. 436, at p. 451; J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 115. A rebuttable presumption of law is a legal assumption that a court will make if insufficient evidence is adduced to displace the presumption. The presumption shifts the burden of persuasion to the opposing party who must rebut the presumption: see Sopinka et al., at pp. 105 – 6.

[29] With regard to gratuitous transfers, it is the presumption of a resulting trust that generally applies to gratuitous transfers as stated at para. 24 of Pecore:

24 The presumption of resulting trust is a rebuttable presumption of law and general rule that applies to gratuitous transfers. When a transfer is challenged, the presumption allocates the legal burden of proof. Thus, where a transfer is made for no consideration, the onus is placed on the transferee to demonstrate that a gift was intended: see Waters’ Law of Trusts, at p. 375, and E. E. Gillese and M. Milczynski, The Law of Trusts (2nd ed. 2005), at p. 110. This is so because equity presumes bargains, not gifts.

[30] The rebuttable presumption of advancement was restricted in Pecore to gratuitous transfers from a parent to a minor child (para. 40).

[31] As Rothstein J. remarked at para. 41:

41 There will of course be situations where a transfer between a parent and an adult child was intended to be a gift. It is open to the party claiming that the transfer is a gift to rebut the presumption of resulting trust by bringing evidence to support his or her claim. In addition, while dependency will not be a basis on which to apply the presumption of advancement, evidence as to the degree of dependency of an adult transferee child on the transferor parent may provide strong evidence to rebut the presumption of a resulting trust.

[32] If the particular circumstances give rise to the presumption of a resulting trust, the burden of proof falls upon the party challenging the formation of a resulting trust to establish that the transfer was a gift. The standard of proof that is applicable to rebut the presumption is the balance of probabilities (Pecore at para. 43). The approach to be taken by the trial judge in examining this rebuttal is set out at para. 44 of Pecore:

44 As in other civil cases, regardless of the legal burden, both sides to the dispute will normally bring evidence to support their position. The trial judge will commence his or her inquiry with the applicable presumption and will weigh all of the evidence in an attempt to ascertain, on a balance of probabilities, the transferor’s actual intention. Thus, as discussed by Sopinka et al. in The Law of Evidence in Canada, at p. 116, the presumption will only determine the result where there is insufficient evidence to rebut it on a balance of probabilities.

[33] The evidence that a court may consider in determining the intent of the transferor includes evidence that arises subsequent to a transfer provided that the evidence is relevant to the intention of the transferor at the time of the transfer (Pecore at para. 59).

Executor Compensation Is Taxable Unless Gifted In the Will

disinherited.com has seen innumerable estate disputes concerning the amount of executor compensation and trustee is entitled.

Under the Trustee Act in British Columbia, the maximum is 5% and it would appear that most executors feel entitled to claim this amount.

Executor compensation can be particularly irksome to the other siblings and is often viewed as one child as executor, lording the authority over the others and then being compensated for it.

Considering that executor compensation is normally taxable, and this is often not known to the executor, it can often be helpful to resolve this disputes by considering the income tax implications for personal income tax to the executor that arises.

The payment of executor compensation can be split over two or more calendar years which can affect the personal taxation rate as of result of perhaps lower marginal rates.

Nevertheless the income is taxable unless proper avoidance techniques are employed.

The use of a specific bequest in the will by the testator to the executor, in lieu of executors fees, can often be successfully utilized in avoiding personal tax for compensation.

No reference can be made in the will that the gift is in lieu of executor compensation, but instead the amount set out in the will could instead perhaps equate to the approximate amount that they might be paid in compensation.

There is always the risk that the executor might seek double dipping, but there is a presumption in law to overcome that the specific bequest was given instead of executor compensation.

Another way of avoiding the tax implications, particularly in negotiations or amongst functional families, is to not claim the compensation but instead have the beneficiaries gift an appropriate amount to the executor in recognition of the labor and time incurred.

Claim For Property Promised Years Before Upheld

verbal-agreement

A Claim For Interest In Property Verbally Promised Years Before, Was Upheld By Court As  An Agreement

Verbal promises to provide property years in the future, in return for services  for the life of the promissor, are increasingly common in estate litigation.

Such arrangements, usually made between loved ones, and  with the best of intentions, can go “sideways” very easily, simply due to the vagaries of life.

 

Such was the recent Ontario decision of Cowderoy v Sorkos Estate 77 ETR (3d) 246

(The decision contains an exhaustive review of the equitable principle of proprietary estoppel, which I will reproduce in the February 10.13 blog)

 

The Testator was involved in a common law relationship with plaintiffs’ grandmother for approximately 40 years.

During the relationship, the  testator purchased a farm and cottage, and ran various businesses .

The Testator and plaintiffs had a close relationship, substantively as grandfather and grandchildren

the Plaintiffs claimed they entered agreement with testator in 1985, when they were 17 and 13, that in exchange for their ongoing assistance with farm and

cottage testator would leave them properties, and money for maintenance, on his death

The Plaintiffs assisted the testator with maintenance and improvements to both properties over next 25 years ,and on his death in 2009, the  testator left three wills:

1)  2001 will bequeathed farm and property, as well as $500,000 each, to plaintiffs;

2)  2003 will bequeathed $50, 000 to plaintiff P, $1,000 to plaintiff M, and did not bequeath properties to plaintiffs ;

3)  2008 codicil increased bequest to M to $25,000, but otherwise 2003 will remained unchanged

The  Plaintiffs brought action against estate for interest in farm and cottage.

The action was allowed

The conduct of both plaintiffs and testator could be considered to determine if sufficient acts of part performance took alleged agreement outside operation of Statute of Frauds

From the time of the 1985 agreement, the  testator and the plaintiffs unequivocally ordered their affairs with each other on basis of agreement .

The  Plaintiffs had clearly assisted testator with maintenance and improvements to both properties over 25 years

The witness testimony was evidence of testator’s actions, and was corroborative of 1985 agreement .

The 2001 will was also corroborative of existence of agreement, despite changes made in 2003 will and codicil .

The contract was one which, if it were properly-evidenced by writing, would have been specifically enforceable .

Proprietary estoppel applied in circumstances.

The  Testator had made representations on numerous occasions, over course of years, and in front of third parties.

The Testator’s representations were clear and unequivocal and at all times related to farm and cottage .

No question arose that plaintiffs had relied on representations made by testator in 1985 to their detriment, often subordinating their lives to testator’ s wishes and demands.

The Testator was no longer in legal position in 2003 to leave farm and cottage to beneficiaries other than plaintiffs

The plaintiffs were granted interest in farm and cottage, but purported transfer of funds claimed by plaintiffs lacked necessary corroboration

Conditional Gift In Will Found Invalid

conditional gift
A Conditional gift in will is surprisingly common, and depending on their particular proviso, the Court may or may not uphold the gift.
The 1996 BC case of Unger v Gossen is a case where the conditional gift was found to be invalid.The testator in BC left the residue of his estate to nephews who lived in a foreign communist country, the USSR , provided they become residents of Canada within 15 years of her death.

If the nephews did not fulfill this immigration condition, or died before qualifying, then the children of that nephew were to receive his share on the condition that they become residents of Canada within 16 years of the testators death

The testator became mentally incapable to change her will after communism collapsed in the country before her death.

The nephews by operation of law were not able to become residents of Canada. An expert opinion from an immigration lawyer opined that due to the selection criteria set out in the Immigration Act, none of the nephews would be eligible to immigrate to Canada.

All of the potential beneficiaries agreed that the estate should be divided equally amongst the nephews, and the executor sought a Court order to that effect.

The Court found the conditional gift to be a condition precedent that should be found to be invalid.

The Court held that the main consideration of the testator was her intention to provide for the nephews, and the condition precedent she provided was impossible to perform due to the laws of Canada’s Immigration Act.

The purpose of the condition precedent was to ensure that her estate went to the nephews directly, and did not fall into the hands of the Communist government, which was known to occur.

It was the gift, and not the condition precedent that was the testator a motivation, and the performance of the condition was not the very reason for the gift, and thus the condition failed.

The court reviewed several similar decisions, as well as Feeney, the Canadian Law of Wills, 3d edition at page 246, that stated in part that condition precedents in wills that are impossible to perform, that are so known to the testator, should be disregarded. It must be shown that the performance of the condition was not the sole motive for the bequest.
Similarly, if the impossibility was not known to the testator, or if the condition when created was possible, but has since become impossible by an act of God, or a contrary law, or some act not attributable to the testator, then both the legacy and the condition are void.

– See more at: http://www.disinherited.com/blog/conditional-gift-will-found-invalid#sthash.4yH7wqci.dpuf

Letters of Administration Revoked For Failing To Satisfy Test

Letters of Administration Revoked For Failing To Satisfy Test of Co

Letters of Administration Revoked For Failure to Prove Common Law Spouse Marriage Like Relationship

Souraya v Kinch 2012 BCSC 1252 involves a case where the grant of letters of administration revoked on the basis that the deceased’s alleged common-law spouse,failed to  prove that she met the  definition of common-law spouse as per  section 1 of the Estate Administration Act, which defines a common-law spouse as either:

1) a person who is united to another person by a marriage that, although not a legal marriage, is valid by common-law, or

2) a person who has lived and cohabited with another person in a marriage like relationship, including a marriage like relationship between persons of the same gender, for a period of at least two years immediately before the other person’s death.

The deceased was gunned down in his motor vehicle at the age of 36, apparently  a victim of gang violence.

He died without leaving a will or children.

The defendant Kinch contended at the time of his death that she was his common-law spouse and on that basis, she claims sole entitlement to his estate and the right to administer the estate.

Kinch had earlier applied for and was granted letters of administration, but the sister of the deceased brings this action to set aside the order granting letters of administration to Kinch.

The court held that the grant should be set aside on the basis that Kinch was not, and had failed to prove that she was a common-law spouse of the deceased as per the after said definition.

The court found that there were many factors which pointed to a lack of permanent reason long-term marriage like commitment to each other.

Some of the criteria which the court relied upon were:

  • that the deceased maintained a separate residence from Kinch and intended to do so indefinitely,
  • there was a lack of significant financial interrelationships,
  • and there was a relationship characterized by conflict and breakups.

THE  LAW

The decision gives a very good review of recent law relating to common-law relationships.

The following extract is important:

[11]    In Austin v. Goerz, 2007 BCCA 586, the Court of Appeal held that neither capacity to legally marry nor financial dependence upon the deceased are required in order to come within the definition. The Court applied the decision of the Supreme Court of Canada in M. v. H. [1999] 2 S.C.R. 3, in which the Court considered the requirements of a “conjugal” relationship, for purposes of the statute under consideration in that case. In Austin, at para. 57, the Court quoted from M. v. H. as follows:

[57] Apposite is the more recent decision of the Supreme Court of Canada in M. v. H., [1999] 2 S.C.R. 3, which concerned that portion of the definition of “spouse” in the Family Law Act, R.S.0.1990, c. F.3, conferring certain rights on either a man or woman who are not married to each other but who live together in a “conjugal relationship.” In discussing the requirements of conjugal (i.e., marriage-like) relationships, Cory J. indicated that while financial dependence is a factor it is but one of many to be considered:

59 Molodowich v. Penttinen (1980), 17 R.F.L (2d) 376 (Ont. Dist. Ct.), sets out the generally accepted characteristics of a conjugal relationship. They include shared shelter, sexual and personal behaviour, services, social activities,

economic supportand children, as well as the societal perception of the couple. However, it was recognized that these elements may be present in varying degrees and not all are necessary for the relationship to be found to be coniuoal. While it is true that there may not be any consensus as to the societal perception of same-sex couples, there is agreement that same-sex couples share many other “conjugal” characteristics. In order to come within the definition, neither opposite-sex couples nor same-sex couples are required to fit precisely the traditional marital model to demonstrate that the relationship is “conjugal”.

[Emphasis in original]

[12]    In Austin the Court of Appeal again held (as in Takacs) that how the parties arranged their financial affairs is but one factor to be considered. The Court stated that the presence or absence of any particular factor is not determinative of whether a relationship is marriage-like, observing that, equally, there is no checklist of characteristics that will invariably be found in all marriages. The Court concluded that the chambers judge (at para. 62):

[62] …properly took a holistic approach in finding that Ms. Goerz and Mr. Austin “were in a committed, marriage-like relationship for all purposes.”

[13]    The correct approach, therefore, is “holistic”, meaning that all appropriate factors should be considered, without any particular factor being considered determinative.

[14]    As the authorities set out, many objective indicators and factors may be considered. Several such factors are referred to in Gostlin v. Kergin (1986), 3 B.C.L.R. (2d) 264, (CA), where Justice Lambert stated (at 268):

Did the couple refer to themselves, when talking to their friends, as husband and wife, or as spouses, or in some equivalent way that recognized a long-term commitment? Did they share the legal rights to their living accommodation? Did they share their property? Did they share their finances and their bank accounts? Did they share their vacations? In short, did they share their lives? And, perhaps most important of all, did one of them surrender financial independence and become economically dependent on the other, in accordance with a mutual arrangement?

All those questions, and no doubt others, may properly be considered as tending to show whether a couple who have lived together for more than two years have done so with the permanent mutual support commitment that, in the relevant sense of the Family Relations legislation, constitutes living together as husband and wife.

[15]    Takacs, and M. v. H., cited in Austin, supra, refers to the list of generally accepted characteristics of a conjugal relationship as set out in Molodowich v. Penttinen, (1980) 17 R.F.L. (2d) 376 (Ont. Dist. Ct.). The list of factors referred to in Molodowich is as follows (at para. 16):

(1)       Shelter:

  1. Did the parties live under the same roof?
  2. What were the sleeping arrangements?

(c)        Did anyone else occupy or share the available accommodation?

(2)         Sexual and personal behaviour:

  1. Did the parties have sexual relations? If not, why not?
  2. Did they maintain an attitude of fidelity to each other?
  3. What were their feelings toward each other?
  4. Did they communicate on a personal level?
  5. Did they eat their meals together?
    1. What, if anything, did they do to assist each other with problems or during illness?
  6. Did they buy gifts for each other on special occasions?

(3)         Services:

What was the conduct and habit of the parties in relation to:

  1. Preparation of meals,
  2. Washing and mending clothes,
  3. Shopping,
  4. Household maintenance,
  5. Any other domestic services?

(4)        Social:

  1. Did they participate together or separately in neighbourhood and community activities?
  2. What was the relationship and conduct of each of them towards members of their respective families and how did such families behave towards the parties?

(5)        Societal:

What was the attitude and conduct of the community towards each of them and as a couple?

(6)        Support (Economic):

  1. What were the financial arrangements between the  parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)?
  2. What were the arrangements concerning the acquisition and ownership of property?
  3. Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?

(7)        Children:

What was the attitude and conduct of the parties concerning children?

– See more at: http://www.disinherited.com/blog/letters-administration-revoked-failing-satisfy-test-common-law-spouse-deceased#sthash.gfzr1Lj6.dpuf

Administrator Appointed Pending Litigation

Administrator Appointed Pending Litigation

Independent Administrator Appointed For  Estate Assets Pending Litigation, aka administrator pendent lite.

A common feature of many estate  disputes  is the acrimonious nature between the various claimants to the assets of the deceased.

In fact, certain cases become renowned within the profession and the courts for the extreme degree of the acrimony between the various parties.

The most  recent  decision of the ongoing saga Karsonas v. Karsonas Estate 2012 BCSC 1604 is yet another example of  litigation that seemingly never will end.

Without going into the details of why and who were involved in the acrimony, suffice to say that there were many previous contested court applications relating to this estate, and appeals there from.

In situations such as this, smart counsel will or should apply to the Supreme Court of British Columbia for the appointment of an administrator pendente lite,  ( Latin for “pending the outcome of the litigation”)

Mdm. Justice Ballance, who is vastly experienced in estate disputes, made such an order noting the extensive deterioration of the estate properties, a partition action between the testator and his children in regard to one property, and another court action by the plaintiff children disputing the testator’s last will and certain trust documents.

There was a contested cross -application by the niece of the deceased  to be appointed as executrix or administrator pendente lite, or trustee without compensation, that was dismissed.

The court noted that the hostility between the parties, and that the administration of the estate was fraught with obvious difficulties, required the appointment of an experienced neutral third-party which was vastly preferable to the niece, being blood related .

The court in fact allow the application of the testator’s children to have an independent trust company appointed as administrator pendente lite.