Dysfunctional Families Are Everywhere

Dysfunction

 

Dysfunctional families are everywhere.

 

Some years ago the Vancouver Sun ran a feature on dysfunctional families and  reported that one in three British Columbians expect to be disinherited by their parents.

Practising estate litigation for over 40 years, it is easy to believe there are more dysfunctional than functional families. Indeed the dysfunctional family is the bread and butter of our practice. With the growing number of second marriages and blended families, the numbers are ever increasing.

In this article wehope to share some insights into dysfunctional families. IWe have no scientific expertise, only a wealth of practical experience dealing with the financial, emotional and psychological aftermath of such families.

WHAT IS A DYSFUNCTIONAL FAMILY?

Most of us grow up believing our own family is “normal”. It is only with life experience that we may come to recognize there is perhaps “something unusual” about our own upbringing and family life. We may also come to realize that many families are unfortunately not the happy, healthy families to which we all aspire.

Typically a dysfunctional family is one where the relationships between parents and children are strained and unnatural. Although there may be many different root causes, such families usually involve one or more family member with a serious problem that impacts every other member of the family. In turn, the other family members adopt atypical roles and behavior that allow the family to function on a basic level. For example, an older child may assume a caretaking role towards younger siblings to cover for an alcoholic mother.

A dysfunctional family often means parents fail to adequately provide for their children’s emotional, psychological and/or physical needs. Such children often suffer from low self-esteem all of their lives. Needless to say, this impacts every aspect of their lives from jobs to marriages to financial security.

Many families may seem normal at first glance. Scratch the surface, however, and some surprising relationships are exposed. For example, a recent case involved a family who, four days before the death of the patriarch, learned that he had another family in another city. You can imagine the profound shock and grief caused by this deception. The surviving family questioned their basic beliefs about who they were.

TYPES OF DYSFUNCTIONAL FAMILIES

The following are some examples of patterns occurring in dysfunctional families. Although classifed under various titles, there is often a great deal of overlap as often many problem behaviours occurs in the same family.

1) Addiction

In this scenario one or both parents have addictions relating to drugs, alcohol, gambling, sex, work or food. Any such addiction can clearly have strong negative effects on other family members. One case we had involved a crack cocaine addict who was disinherited by his father after moving in with him and turning his home into a crack house.

Alcohol abuse is far more common and is extremely destructive as well.

2) Physical Violence

In such families, one or both parents use physical violence as a means of control through intimidation. The children may be the victim of violence, may be forced to witness their mother being beaten, to participate in punishing siblings or simply may live in fear of explosive outbursts. Such children frequently grow up with anxiety and depression issues. What is more, they are far more susceptible to abuse themselves. Sons raised in such families are at a much higher risk of becoming abusive husbands while the daughters more often become victims of violence.

3) Lack of Emotional Support

In these families, one or both parents fail to provide their children with adequate emotional support (often they also fail to provide basic physical and financial care at the same time). For example, one case involved a man who had simply been ignored as a child and left to fend largely for himself. He grew up to be an emotional cripple who completely lacked social skills and lived a very isolated existence. Thus he was awarded a large share of his parents’ estates. He would need those funds to survive since he was effectively unemployable.

4) Religious Fundamentalism and Rigidly Dogmatic Beliefs

Such families frequently involve parents who exert a strong authoritarian control. These families rigidly adhere to a particular belief, sometimes religiously or culturally based. Compliance with cultural or religious expectations is not expected, it is demanded.

For example we had a one case involving an overly strict mother who put down the family dog because her daughters girls did not keep their room clean enough.

A more extreme example of such behavior would be the family “honour killings” we read of from time to time. These involve male family members killing a female member because she is believed to have “brought shame” on the family.

5) Overly Possessive Parents

We have had many cases involving overly possessive parents who exploit their children, treating them as possessions whose primary purpose is to respond to the parents’ needs. They often do not encourage their child to become independent. This sometimes results in this scenario where one child, typically the youngest, never leaves home. Instead the child cares for the parent until death and is often “rewarded” or “compensated” for his or her “sacrifice”. Most often the other siblings view him or her as a freeloader.

It is sometimes amazing to hear the childish emotions these situations continue to evoke in adult children. In one case we represented a youngest child who had never left home and who was rewarded with privileges and a larger inheritance than his 4 older siblings. At the examinations for discovery when the older sister was questioned as to why the others hated our client , she responded “Because he was allowed cheese sandwiches before bed, and we were not.”

5) Sexual Abuse

As more cases of family sexual abuse surface, it is clear that sexual abuse by anyone but especially a parent will produce lifelong emotional scars for the victim. Typically it is the father or stepfather who sexually abuses a daughter or stepdaughter. It is shocking however, how frequently mothers ignore the disclosures of abuse and deny that their husband (the breadwinner and meal ticket) could have perpetrated such acts. This failure to believe and to protect the child only aggravates an already difficult situation.

One case we had involved the death of a father who had divided his estate in equal shares among his children and one grandson. When his daughter was questioned as to the motives for such a distribution, she disclosed that her father had sired this son. .

CONCLUSION

Every family varies greatly in the frequency and severity of dysfunctional interactions.

In dysfunctional families children may be forced to take sides in conflicts, they may be ignored, discounted, criticized or abused. Other parents may be inappropriately intrusive, overly involved and protective. Many children of dysfunctional families complain that their parents were emotionally distant and uninvolved. The fundamentalist family may provide excessive rules while the addicted parents may provide no guidelines or structure. Some children may be rejected while their siblings receive preferential treatment. Children may be slapped, punched, kicked or emotionally abused and locked out of the house. Some children runaway or leave home at an early age. Others never leave.

The bottom line with all dysfunctional families is that such abuse and neglect inhibit the development of healthy adults with healthy relationships. As adults, such people often have difficulty in judging and trusting others and themselves. They often experience difficulties in their workplace, in their relationships and with their very identities.

What is more, in the world of the estate litigation, they are often disinherited.

Wrongly Described Bequests

no longer existsIf  the court comes to the conclusion that the testator intended to pass a bequest, and can determine what that something is, then the fact that the testator wrongly described the bequest  in his or her  will, does not prevent the will taking effect in regard to the subject matter intended by the testator.

The principle may be applied in whatever part of the description the error occurred

 

 

Baxevandis Estate case( 2007 BCSC 1657) in its entirety as it is a good summary of the topic of abatement, and specifically the issue of where a specific gift abates and is sold and there is a surplus of funds after the liabilities are paid, who is entitled to the surplus?

 

The case also discusses the difference when a gift is said to abate as opposed to the gift having adeemed, when in both cases, the gift no longer exists at the time of death.

Any property which has to be sold to satisfy creditors is said to abate, rather than to adeem.

The court held that the balance of the proceeds from the sale of abated property goes to the divisee of the abated property, and not into the residue.

 

Background

[1] The deceased, Grammata Margaret Baxevanidis, died on May 24, 2004 (the “Deceased”).

[2] The Deceased left a will dated June 25, 2002 (the “Will”), which was granted probate on October 28, 2004.

[3] During her lifetime, the Deceased had two main assets: the home she lived at in Vancouver, British Columbia (the “Home”) and the home she owned in Vancouver, British Columbia that was rented to various tenants (the “Rental Property”).

[4] The Deceased’s daughter, Agapie Kennell, (the “Daughter”), had lived with the Deceased in the Home until the Daughter was 40 years old, during which time she provided the Deceased with care and companionship. Because of this, the Deceased promised the Daughter to gift to her the Home.

[5] However, during her lifetime, the Deceased transferred the Home to her son, Athanasios Dennis Baxevanidis, also known as Dennis Baxevanidis (the “Son”). The Deceased then promised her Daughter that the Rental Property would be given to her in the Deceased’s Will instead.

[6] In her Will, the Deceased gifted the Rental Property to the Daughter and directed that the remainder of her assets be divided equally between the Son and the Daughter.

[7] At the time of death, the Deceased’s estate consisted of the Rental Property, a real property located in Point Roberts (the “Point Roberts Property”), various bank accounts, a Registered Retirement Income Fund (“RRIF”), and a Canada Death Benefit.

[10] The petitioner, Jimmy Malamas, is the executor of the Deceased’s Will (the “Executor”).

[11] On May 7, 2007, the Canada Revenue Agency reassessed the Deceased’s income tax return concluding that a further $71,122.47, plus interest, was owed by the estate.

[12] The exact amount of the estate’s debts is still unknown. However, it is likely that the estate’s assets (not including the Rental Property) are insufficient to satisfy the whole debt.

[13] The Daughter has agreed to either loan or gift the appropriate sum to the estate to ensure that the Rental Property does not have to be sold in order to pay the estate’s debts. She has paid $74,000.00 into her lawyer’s trust account for this purpose.

Abatement

II. The Executor seeks advice and directions from the court, under s. 86 of the Trustee Act, R.S.B.C. 1996, c. 464, as to the following questions:

(i) If the Rental Property must be sold to satisfy debts of the estate, do the net proceeds of that sale fall into the general residue of the estate to be split equally between the Son and the Daughter?

(ii) If the answer is yes, can the Executor transfer the Rental Property to the Daughter subject to a charge with respect to the outstanding debts of the estate, pursuant to s. 79 of the Estate Administration Act, R.S.B.C. 1996, c. 122, without any regard to the Son’s possible interest?

(iii) Can the Daughter pay the estate debts herself, without a sale of the Rental Property and maintain the specific gift of the Rental Property to her?

(iv) Can the Executor borrow funds from the Daughter or anyone else, secured by way of a mortgage on the Rental Property, to pay the estate debts, pursuant to s. 67 of the Estate Administration Act?

III. Decision

(i) If the Rental Property is sold, do the proceeds convert to the estate’s residue?

[14] According to James MacKenzie, ed., Feeney’s Canadian Law of Wills, 4thed. (Toronto: Butterworths, 2000) at para. 15.3:

An estate may be legally unable to satisfy a legacy or devise not only because the property has ceased to exist or has ceased to exist in substantially the same state (not only that is, by reason of an ademption by conversion), but also because of the testator’s debts which must be satisfied out of the estate property. However, this latter situation is technically referred to as an abatement. Any property which has to be sold to satisfy creditors is said to abate, rather than to adeem. [emphasis mine]

[15] In Thompson (Guardian ad Litem of) v. Thompson Estate, 2005 BCSC 1814, 22 E.T.R. (3d) 268, Melnick J. at para. 15 described the law, as follows:

Unless there is a contrary intention in the Will, “the order in which assets are liable to pay debts is determined by well defined rules” (A.H. Oosterhoff,Oosterhoff on Wills and Succession, 5thed. (Scarborough: Carswell, 2001) at 499). The rules are described in James Mackenzie, Feeney’s Canadian Law of Wills, 4thed. looseleaf, (Markham: Butterworths, 2000) at para. 8.52:

In the payment of debts the residuary estate must first be exhausted and residuary personalty and realty are liable rateably for the debts. After the residuary estate has been exhausted, general legacies abate pro rata, then demonstrative and specific rateably after that, and finally devises. Devises abate last because of the general rule that personalty is primarily liable for the payment of debts.

[16] At para. 16 in Thompson, supra, Melnick J., quoting from Smith Estate, Re, 2003 SKQB 361, [2004] 7 W.W.R. 516, set out the order of abatement, as follows:

First, residuary personalty;

Second, residuary real property;

Third, general legacies, which include pecuniary bequests from the residue;

Fourth, demonstrative legacies, that is bequests from the proceeds of a specific asset or fund not forming part of the residue; [See Re Culbertson (1967), 62 D.L.R. (2d) 134 (Sask. C.A.)]

Fifth, specific bequests of personalty;

Sixth, specific devises of real property.

[17] The types of legacies have been described in Feeney’s Canadian Law of Wills, supra at para. 8.51, as follows:

A general legacy is a gift out of the residuary estate after the payment of debts and specific legacies. The most usual kind of a general legacy is a pecuniary legacy. A specific legacy is one which the testator has separated from the residuary estate in favour of a particular legatee and since the testator has shown that he or she intends that the legatee shall take the specific thing unconditionally, while it may have to be sold to pay debts, it will not abate to meet debts until the residuary estate and general legacies have been exhausted.

[18] In Thompson, supra, a number of real estate lots (Lot 1, 2, and 3) formed the largest part of the deceased’s estate along with a truck, a boat, and the contents of some bank accounts. There were three beneficiaries under the will, namely the wife, and two of the deceased’s daughters. The will provided that Lot 1 was to go to the wife, while Lots 2 and 3 were to be sold and the proceeds divided more or less equally amongst the three beneficiaries.

[19] As of the date of the hearing, legal title of Lot 1 remained with the executor for the estate, while both Lots 2 and 3 were sold in accordance with the deceased’s wishes. The estate owed significant debts. A large portion of the proceeds of the sale of Lots 2 and 3 and various other funds received after the deceased’s death had been used to pay the debts of the estate. However, after the debts were satisfied, there remained some cash.

[20] The court held that as there was not enough money in the estate to pay all the gifts made in the will, some or all of the gifts had to abate and be reduced pro rata. At issue was the order in which the assets of the estate were liable to pay its debts.

[21] The court found that the contents of the bank accounts formed the residue of the estate and were first liable for the debts of the estate (even though the will contained no residuary clause, which meant that the residue would pass according to the law of intestate succession). The truck and boat were both gifted to the wife as general legacies and were liable to pay the debts of the estate after the residue was abated, but prior to Lots 1, 2 and 3. The court found that the gift to the wife of Lot 1 was clearly a devise of real property and it was therefore last in line for liability for the estate’s debts. What cash remained in the estate after payment of the debts was solely attributed to the sale of Lots 2 and 3. The court held that the remaining cash did not fall into residue, but was to be divided equally by the three beneficiaries in accordance with the will.

[22] Thus, even though the legacies of Lots 2 and 3 abated, the remainder of the proceeds from the sale of these lots did not fall into residue.

[23] In Patry Estate v. Robinson, 2003 ABQB 707, [2004] 2 W.W.R. 378, the testator left a vehicle to his common law wife, “free of all encumbrance”. The residue of his estate was to be shared equally by his three children. At the time of his death, the vehicle was valued between $24,500.00 and $26,000.00. However, the outstanding loan on the vehicle was $29,000.00. The executrix returned the vehicle to the car dealership and they extinguished the loan. There was only $13,316.26 left in the estate after payment of estate taxes and other debts.

[24] Coutu J., at para. 12, relying on Feeney’s Canadian Law of Wills, supra,found that because the vehicle was a specific bequest, it did not abate until the residuary estate and general demonstrative legacies had first been exhausted. Therefore, the court found that the estate’s residue was subject to abatement before the gift of the vehicle. This meant that the wife’s claim as specific legatee took priority to the claims of the children as residual beneficiaries. The wife was entitled to the $13,316.26 left in the estate.

[25] The court ruled that even though the vehicle, as a specific bequest, had to be sold to satisfy the estate’s debts, the gift itself did not fail nor did the proceeds of sale fall into the estate’s residue.

[26] Tamboline v. Dobbs(1998), 25 E.T.R. (2d) 50 (B.C.S.C.) is a Wills Variation Act action, which also required the court to consider the issue of abatement and the estate’s tax liability.

[27] The testator’s daughter was named beneficiary of certain property and claimed that tax liability relating to disposition of property should be borne by the estate. The testator had also left a number of specific bequests including real property as well as stocks, bonds and jewellery. In addition, the residue was to be divided equally amongst two of the testator’s three children. The estate’s debts exceeded the value of the property that was left as residue.

[28] Pitfield J. found at para. 59 that “income tax obligations arising as a consequence of death are legally enforceable debts to be discharged by the executor. In the absence of any specific direction in the will, there is no reason to conclude that the tax burden should fall upon any asset, not in residue, to the exclusion of any other.”

[29] Pitfield J. also found that after the residue was exhausted to pay the estate’s debts, the specific bequests of land, jewellery, shares, etc. were to bear their “rateable proportion of all debts of the estate” payable as a consequence of death, including taxes, interest and penalties but excluding mortgages.

[30] In the case at bar, clause 3(a) of the Will states, as follows:

I GIVE, DEVISE AND BEQUEATH all my property of every nature and kind and wheresoever situate, including any property over which I may have a general power of appointment to my Trustees upon the following trusts:

(a) To pay out of and charge to the capital of my general estate my just debts, funeral and testamentary expenses and all estate, inheritance, succession, probate and other taxes, duties and fees whether imposed by or pursuant to the law of this or any other jurisdiction whatsoever, that may be leviable or payable in connection with any property passing … Without imposing any obligation upon my Trustees to do so I hereby AUTHORIZE them to pay out of and charge to the capital of my general estate any and all tax on capital gains which may be deemed to arise on my death or on any subsequent disposition of assets which may be made or deemed to be made by my Trustees during their administration of my estate.

[emphasis added]

[31] Applying the above noted law to the facts in this application, the Point Roberts Property, the various bank accounts, the RRIF, and the Canada Death Benefit form the residue of the Deceased’s estate, while the Rental Property is properly described as a specific devise of real property.

[32] Further, the income tax payable by the estate to the Canada Revenue Agency is an obligation arising as a consequence of the Deceased’s death and is thus a legally enforceable debt to be discharged by the Executor.

[33] There is no specific direction in the Will that the estate’s income tax or other debt attach specifically to the Rental Property, and thus, must be paid out in accordance with the rules described in Thompson, supra.

[34] The Rental Property, as a specific devise of real property, is last in line for liability of the estate’s debts.

[35] Thus, the estate’s debts must be satisfied by exhausting the assets contained in the residue first, and only then would the gift of the Rental Property abate.

[36] Accordingly, I find that if the Rental Property must be sold to satisfy the debts of the estate, the net proceeds do not fall into the residue of the estate, but must be transferred to the Daughter.

[37] Given my answer to the first question, it is not necessary to answer question (ii).

(iii) Can the Daughter pay the estate debts herself, without a sale of the Rental Property and maintain the specific gift of the Rental Property to her?

[38] In Holmes Estate (Re), 2007 BCSC 51, 29 E.T.R. (3d) 67 at para. 6, Goepel J. states, as follows:

The primary objective for the court in interpreting a will is to determine the testator’s intention. The will must be considered in its entirety. If there is no ambiguity on the face of the will then it should be interpreted according to the ordinary meaning attributed to the words used. Only if there is an ambiguity should the court resort to evidence of surrounding circumstances. In the leading case of Perrin v. Morgan, [1943] A.C. 399 (H.L.) the court stated at p. 406:

[T]he fundamental rule in construing the language of the will is to put on the words used the meaning which, having regard to the terms of the will, the testator intended. The question is not, of course, what the testator meant to do when he made his will, but what the written words he uses mean in the particular case – what are the “expressed intentions” of the testator.

In Davis Estate v. Thomas (1990) 40 E.T.R. 107 (B.C.C.A.) the court adopted the words of Mr. Justice Laidlaw in Re Burke (1959), 20 D.L.R. (2d) 396 at 398 (Ont. C.A.) at p. 110 as follows:

The Court is now called upon to construct a particular document and at the outset, I emphasize what has been said before so frequently. The construction by the Court of other documents and decisions in other cases respecting the intention of other testators affords no assistance whatsoever to the Court in forming an opinion as to the intention of the testator in the particular case now under consideration. Other cases are helpful only insofar as they set forth or explain any applicable rule of construction or principle of law. 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 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 of the contents of the will and, after full consideration of all of the provisions and language used therein, try to find what intention was in the mind of the testator. Where 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.

[39] In the instant case, clause 7(ii) of the Will provides, as follows:

7. IN ORDER THAT my wishes may be more effectively carried out I hereby give my Trustees the following additional powers:

…

(ii) To compromise, settle and waive any claim or claims at any time due to or due by my said Estate for such consideration and upon such terms and conditions as my Trustees may deem advisable. [emphasis mine]

[40] On my interpretation of the Will, I find that clause 7(ii) contains a broad power to the Executor to accept funds from the Daughter to preserve the promise the Deceased made to the Daughter during her lifetime so that the Daughter can receive her bequest of the Rental Property.

[41] Given the answer to question (iii), I do not find it necessary to answer question (iv).

IV. Conclusion

1. The answer to question (i) is no.

2. The answer to question (iii) is yes.

No Lack of Capacity or Undue Influence – Will Admitted to Probate

Chang Estate v Chang 2013 BCSC 976 is a well considered judgement of Justice Dardi, who had extensive experience in estate litigation prior to her elevation to the Bench.

The testatrix,a widow, died in 2007 at age 98. She and her late husband had four children, and their only daughter the plaintiff, was the youngest. Their three sons were the defendants.

In 1998 the deceased and her husband purchased a house and put one son on title as a joint tenant with his parents. The testatrix and her husband never did live in that property, and that particular son collected the rent and prayed paid the property taxes and expenses , until 2004 when the testatrix paid two thirds of the property taxes and utilities.

In 1997 that sons, son sued his grand mother and grandfather over a dispute that had arisen regarding the property.

The matter went to trial in July 1999 and was dismissed.

The testatrix found those events very distressing and in January 1998 she and her husband severed the joint tenancy , leaving that son with a one third interest as a tenant in common.

 

The testatrix executed her will in July 2000, and her husband executed a reciprocal will at the same time.

The plaintiff was appointed the executrix, and the son with the one third interest in the property was given a $10 bequest, with the remainder of the estate being divided 30% to the plaintiff, 30% to one brother and 40% to the other brother.

 

The will explain the reasons for the minimal bequest to the one son, saying the testatrix and her husband had provided much assistance to him and had given him one third of the Surrey property, from which he had collected all of the rents for his own use.

 

The will also said that he and his family house have caused us much grief, heartache, and unhappiness and shame.

 

The plaintiff applied to prove the will and codicil dated July 2005 in solemn form.

 

The son challenged the validity of the will and codicil on the grounds that the testatrix lacked testamentary capacity and that the will was a product of coercion and or undue influence.

 

The court held that the testatrix had proved on the balance of probabilities that the will was executed in compliance with the statutory formalities, that the testatrix knew and approved of the contents of the will, and that she had testamentary capacity.

 

The professionals who prepared the will gave evidence, and it was proven that both documents were executed after having been read to the testatrix, who appeared to understand the contents.

 

The law presume the testatrix knew and approved of the will and possess the requisite testamentary capacity.

 

The evidence of the testatrix physician and those who prepared the documents and attended upon execution also established attempted testamentary capacity.

 

No suspicious circumstances arose in the facts established by the evidence, nor was there any evidence of undue influence by the plaintiff or anyone else.

Legal Framework

[25] The Supreme Court of Canada in Vout v. Hay, [1995] 2 S.C.R. 876 clarified the principles with respect to the burden of proof in litigation regarding contested wills. The Court articulated the considerations which govern the interrelation of the doctrine of suspicious circumstances and the issues of testamentary capacity, knowledge and approval, undue influence and fraud.

[26] In an action for proof of will in solemn form, the party propounding the will must prove on a balance of probabilities that the will was executed in compliance with the statutory formalities, that the will-maker knew and approved of the contents of the will and that the will-maker had testamentary capacity: Vout at paras. 19-20.

[27] In order to make a valid will, the will-maker must have a “baseline level of mental acuity” or a “disposing mind and memory”, sufficient to appreciate and comprehend the nature and effect of the essential elements of the testamentary act. This encompasses an appreciation of the claims of the persons who are the natural objects of her estate and the extent of her property of which she is disposing: Laszlo v. Lawton, 2013 BCSC 305 at para. 185; Banks v. Goodfellow (1870), L.R.5 Q.B. 549; Leger v. Poirier, [1944] S.C.R. 152 at 161. The assessment of whether a will-maker possesses testamentary capacity is a highly individualized inquiry and is a question of fact to be determined in all the circumstances: James v. Field, 2001 BCCA 267 at para. 51; Laszlo at para. 197.

[28] In certain circumstances, the propounder of the will, in discharging the burden of proof, is aided by a rebuttable presumption of validity. If the will was duly executed in accordance with the requisite statutory formalities after being read over to or by a testator who appeared to understand it, it is presumed the testator possessed the requisite testamentary capacity and knew and approved of its contents:Vout at para. 26.

[29] This presumption may be rebutted by evidence of “well-grounded suspicions”, referred to in the jurisprudence as “suspicious circumstances”, relating to one or more of the following circumstances:

(i) surrounding the preparation of the will;

(ii) tending to call into question the capacity of the will-maker; or

(iii) tending to show that the free will of the will-maker was overborne by acts of coercion or fraud: Vout at para. 25.

[30] If suspicious circumstances are established, then the presumption is spent and the legal burden of proof reverts to the propounder of the will. The propounder of the will then reassumes the legal burden of proving knowledge and approval, as well as proving testamentary capacity, if the suspicious circumstances reflect on the mental capacity of the will-maker to make a will: Woodward v. Grant, 2007 BCSC 1192 at para. 108. In order to discharge the burden, the propounder of the will is required to dispel the suspicious circumstances that have been raised: Ostrander v. Black (1996), 12E.T.R. (2d) 219 at para. 30 (Gen. Div.).

[31] In Vout, the Court affirmed that if a court determines that suspicious circumstances exist, the applicable standard of proof is a balance of probabilities. However, the evidence must be scrutinized in accordance with the gravity of the suspicion raised in any particular case.

[32] In order to rebut the presumption of validity, those attacking the will must meet the threshold of demonstrating that there is some evidence “which, if accepted, would tend to negative knowledge and approval or testamentary capacity”: Vout at para. 27; Maddess v. Racz, 2009 BCCA 539 at para. 31. The court in Scott v. Cousins (2001), 37 E.T.R. (2d) 113 (Ont. S.C.J.) describes the requisite evidence as that which “excites the suspicion of the court”. A “general miasma of suspicion that something unsavoury may have occurred” is insufficient to rebut the presumption of validity; the evidence must raise a “specific and focused suspicion”: Clark v. Nash (1989), 61 D.L.R. (4th) 409 at 425 (B.C.C.A.).

[33] The court in Laszlo provides the following instructive observations regarding the doctrine of suspicious circumstances at para. 207:

Suspicious circumstances have been found to exist in a wide array of situations and are not necessarily sinister in nature. There is no checklist of circumstantial factors that will invariably fit the classification. Commonly occurring themes include where a beneficiary is instrumental in the preparation of the will (especially where the beneficiary stands in a fiduciary position to the testator), or where the will favours “someone who has not previously been the object of [the testator’s] bounty and does not fall within the class of persons testators usually remember in their wills, that is to say their next of kin.

Undue Influence

[34] When undue influence or fraud is alleged, the party opposing probate always bears the legal burden of proving on a balance of probabilities the affirmative defence of undue influence: Vout at para. 28. It is important to appreciate that in these circumstances, the doctrine of suspicious circumstances and the shifting of the burden of proof has no application.

[35] In order to invalidate a will on the grounds of undue influence, the asserting party must prove that the influence exerted against the will-maker amounted to coercion, such that the will did not reflect the true intentions of a free will-maker and was not the product of the will-maker’s own act. The undue influence must constitute coercion which could not be resisted by the will-maker and which destroyed his or her free agency. It is well-established on the authorities that if the will-maker remains able to act freely, the exercise of significant advice or persuasion on the will-maker or an attempt to appeal to the will-maker or the mere desire of the will-maker to gratify the wishes of another, will not amount to undue influence: Maddess v. Racz, 2008 BCSC 1550 at para. 324 aff’d 2009 BCCA 539; Freeman v. Freeman (1889), 19 O.R. 141 at 155 (C. A.); Scott at para. 112.

Administration Durante Absentia

Section 7 of the Estate Administration Act allows the court to appoint a person to administer an estate or part of it where an executor resides out of the province “and it appears to the court to be necessary or convenient by reason of the insolvency of the estate of the deceased or other special circumstances.”

 Administration Durante Absentia

Section 11 provides: .(1) This section applies if

(a) the executor to whom probate of a will has been granted, or

 

(b) the administrator to whom administration of an estate has been granted,

 

is residing outside British Columbia at the end of 12 calendar months from the death of the deceased.

 

(2) A creditor, spouse, next of kin or legatee may apply to the court for an order under subsection (3), on an affidavit setting out

 

(a) the capacity in and the grounds on which the applicant applies, and

 

(b) that delay is being caused in the administration of the estate of the testator or intestate, owing to the absence of the executor or administrator from British Columbia.

 

(3) On application under subsection (2), the court may grant to the applicant special administration of the estate of the deceased person, either general or limited, and on the terms as to notice and security as the court thinks fit.

 

(4) Subsections (1) to (3) do not abridge the powers of the court as defined in preceding sections.

 

(5) If an executor capable of acting returns to British Columbia and becomes resident in British Columbia when an application under subsection (2) is pending, the executor must be made a party to the application, and the costs incurred by granting administration under subsection (3) are in the discretion of the court.

 

(6) A person to whom administration is granted under subsection (3) has the same powers as an administrator appointed pending the minority of the next of kin.

 

(7) Pending an application for the grant of special administration under subsection (3) the court may appoint a person to collect any debts or effects due to the estate and to give discharges for them.

 

(8) A person appointed under subsection (7) must give security as the court orders for the proper discharge of the person’s duties.

 

s.11(2) A creditor, spouse, next of kin or legatee may apply to the court for an order under subsection (3), on an affidavit setting out(a) the capacity in and the grounds on which the applicant applies, and

(b) that delay is being caused in the administration of the estate of the testator or
intestate, owning to the absence of the executor or administrator from British Columbia.

 

Such a grant has been held to continue in force after the death of the original personal representative. (Taynton v. Hannay (1802) 3 Bos. & P26).

 

The application is made by way of a requisition and should be accompanied by an affidavit setting out the capacity in and the grounds upon which the applicant applies, and that the delay has been caused in the administration of the estate due to the absence of the personal representative from the province. Notice should be given to any person who has received a prior grant.

 

The grant is usually limited to the time at which the absentee returns to the province.

 

If an executor or administrator has disappeared (as opposed to being absent from the province) an application for revocation of the grant and issuance of a further grant under s. 7 of the Estate Administration Act may be advisable.

Administration By Attorney

Administration By AttorneyRule 21 (27) provides for the administration of an estate by an attorney.:

“ If a person entitled to administration resides outside British Columbia, administration by attorney, or administration with the will annexed, may be granted to the person or the person’s attorney acting under a power of attorney”.

The attorney need not be a resident of British Columbia, and such a grant generally will not be made to an attorney residing in the same jurisdiction as the donor.

In re Edmundson Estate 1963, 44 WWR 119 (BCSC) , the court commented at page 123 that the case law:

“suggests that if the principal and the attorney are both resident in the same place, the court would prefer the principle be appointed rather than the attorney. In other words, the provision for the appointment of an attorney is an additional right given to the person otherwise entitled to the administration to have an attorney appointed if the residence of the person otherwise entitled out of the jurisdiction makes it difficult for that person to perform his or her duties.”

The grant is limited for the use and benefit of the person who appoints the attorney and until that person applies for administration in British Columbia.

Administration by an attorney might be used when the person entitled to the administration has one or more of the following criteria:

A. Has language difficulties that may prevent him or her effectively handling the estate in British Columbia;

B. May be difficult to contact for the purpose of providing instructions are executing documents;

C. May have difficulty dealing with assets in this jurisdiction ie running an active business.

If there are several persons entitled to the grant, all residents of the jurisdiction, the grant may be made to the attorney of one, but subject to the consent of the others. Such an attorney is not merely the agent of the principal, but is responsible for the due administration of the assets and is liable to be called to account by the persons interested in the estate.

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).