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.

Executors of Deceased Substituted For Deceased

Executors of DeceasedExecutors of Deceased Substituted For the Deceased In Court Action

Dicken Mechanical Ltd v Nohels Group Inc 2012 BCSC 917 is a good example of the process that the Rules of Court have established to deal with the situation where  one a party dies and how his or her executor can, in  court actions that survive a death, be substituted as the litigation  party in the place of the deceased.

The plaintiff had commenced a court action against the defendant  limited company and a personal director for damages relating to contaminated soil.

The defendant personal director died after the commencement of the proceedings.

The real issue was whether or not the claim was one that survived death or not, as it is only actions that survive death that the rules allow for an executor to be substituted as a party for a  deceased litigant.

The court ruled that claims under the Waste Management legislation do in fact survive death and allowed the deceased defendant’s executors to be joined in as substituted defendants for the deceased director.

Rule 6-2(1) of the Supreme Court Rules provides for a continuation of an action against a deceased person where the claim survives death.

With respect to the type of cases that survive death vs. those that do not, the court cited:

The maxim actio personalis moritur cum persona (“a personal right of action dies with

the person”: Black’s Law Dictionary, 6th Ed., p. 31) was discussed by Southin J.A. in McCulloch v. Green, [1995] B.C.J. No. 567, wherein she wrote at para.

… this maxim “is not applied in the old authorities to causes of actions on contracts, but to those in tort, which are founded on malfeasance or misfeasance to the person or property of another: which latter are annexed to the person, and die with the person, except where the remedy is given to (or by) the personal representatives by the statute law.” And the general rule of the common law was, that if an injury were done either to the person or to the property of another for which unliquidated damages only could be recovered in satisfaction, the action died with the person to whom, or by whom, the wrong was done …

For example, if a person is rear ended and suffers pain and suffering as well as wage loss, and dies before trial, the deceased’s  claim for pain and suffering dies with him or her, but the executors may continue the claim for the lost wages.

Beneficiary Who Prepared Will Has Heavy Burden

Beneficiary Who Prepared Will Has Heavy Burden

Beneficiary Who Prepared Will and Substantially Benefits has a very heavy burden of proof

Cooke v Walsh 1965 (52) WWR 449 is a chestnut of a decision by former Chief Justice Wilson that deserves comment  even 37 years later.

The deceased made a will shortly before she died when she was very ill.

The defendant Walsh prepared the will on as he put it the instructions of the deceased. No lawyer or independent advisor was involved..

The judge found that at the time Walsh was not merely an agent of the deceased but instead was a fiduciary in that he managed her apartment, collected or rents, and got her to sign necessary checks, as well as looking after her personal affairs.

After reading extensively reviewing the law the court found that the burden of proof imposed on the defendants to prove that the testatrix knew and approved of the contents of the will of the time of execution, was so grave that it might hardly be removed.

The court cited the following authorities of law relating to its decision:

  • Kerr on Fraud, 7th ed., p. 429, says this:

If a person benefited by a will has himself prepared it, or procured it to be prepared, the law looks on the case with suspicion, and the Court requires clear and satisfactory proof that the testator knew and approved the contents of the instrument, and that it expressed his real intentions. {Baker v. Batt, [1838] 2 Moo PCC 317, at 320,12 ER 1026; Greville v. Tylee, [1851] 7 Moo PCC 320,13 E.R. 904; Re Harmes Estate; Harmes and Custodian of Enemy Property v. Hinkson, [1946] 2 W.W.R. 433,62 T.L.R. 445, affirming [1943] S.C.R. 61). If there be no evidence of instructions previously given, or knowledge of its contents, the party propounding it must prove by evidence of some description or other that the testator knew and approved of the instrument. (Barry v. Butlin, [1838] 2 Moo PCC 480, at 491, 12 ER 1089; Mitchell v. Thomas, [1847] 6 Moo PCC 137,13 E.R. 636; Vellasawmey Servai v. Sivaraman Servai (1929) 57 LR Ind App 96). The onus of proof may be increased by circumstances, such as unbounded confidence in the drawer of the will, extreme debility in the testator, clandestine and other circumstances, which may increase the presumption even so much as to be conclusive against the instrument. (Paske v. Ollat, [1815] 2 Phillim 323, at 324,161 ER 1158; Jones v. Godrich, [1845] 5 Moo PCC 16,13 E.R. 394; Greville v. Tylee; Ashwell v. Lomi, [1850] 2 LR P & D 477; Harmes v. Hinkson.)

Proof of knowledge of the contents of a will may be given in any form. The degree of proof depends on the circumstances of each case. Although in perfect capacity, knowledge of the contents will be inferred; yet where capacity is impaired, and the benefit of the drawer of the will large, the suspicion is strong, and the proof must be most stringent. Where the drawer of an instrument gives himself a benefit under the instrument, it is a case for suspicion, depending more or less upon the circumstances of each individual case, and the proof must be in proportion to the degree of suspicion, which of course will vary. {Paske v. Ollat; Harmes v. Hinkson.) The greater the benefit and the less the capacity the more stringent is the requirement of proof of knowledge of the contents. {Durnell v. Corfield, [1844] 1 Rob Eccl51,at63,163ER961.)

If a testator being of sound mind and capacity has read the will, there is, as a general rule, sufficient evidence to show that he knew and approved of its contents. {Atter v. Atkinson [1869] LR 1 P & D 665, 20 LT 404, 33 JP 440.) So, also, if a will has been read over to a capable testator on the occasion of its execution, or there is evidence to show that its contents have been brought to his notice in any other way, this fact when coupled with his execution thereof will, as a general rule, be sufficient to show that he approved as well as knew the contents thereof. {Guardhouse v. Blackburn, [1866] LR 1 P & D 109, at 116, 35 LJ P & M 116.) But circumstances may exist which may require that something further shall be done in the matter than the mere establishment of the fact of the testator having been a person of sound mind and capacity, and of his having had read over to him that which had been prepared for him, and which he executed as his will. There is no unyielding rule of law (especially when the ingredient of fraud enters into the case) that when it has been proved that a testator, competent in mind, has had a will read over to him, and has thereupon executed it, all further inquiry is shut out {Fulton v. Andrew [1875] LR 7 HL 448, at 469,44 UP 17).

The exercise of undue influence may be a ground for the interposition of the Court to set aside a will. Though a man may have a mind of sufficient soundness and discretion to manage his own affairs in general, still, if such a dominion or influence be obtained over him as to prevent his exercising that discretion in the making of a will, he cannot be considered as having such a disposing mind as will give it effect {Mountain v. Bennett, [1787] 1 Cox Eq Cas 353, at 355, 29 ER 1200).

In cases of weakness of mind, arising from the near approach of death or otherwise, strong evidence may be required that the contents of the will were known to and approved by the testator executing the will at such a time {Mitchell v. Thomas [supra]; Durnell v. Corfield [supra;), and that the execution was his spontaneous act {Tribe v. Tribe ([1849] 1 Rob Eccl 775,163 ER 1210,13 Jur 793).

When it has been proved that a will has been executed with due solemnities by a person of
competent understanding, and apparently a free agent, the burden of proving that it was
executed under undue influence rests on the party who alleges it {Boyse v. Rossborough;
Boyse v. Colclough, [1857] 6 HLC 2, at 49,10 ER 1192), or at least he must show facts
from which the Court would be justified in treating the circumstances attending the bounty
as suspicious.

Further, in order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis that it was obtained by undue influence; it must be shown that they are inconsistent with a contrary hypothesis {Boyse v. Rossborough; Boyse v. Colclough [supra], at p. 51).

The burden of proving that it was executed under undue influence is not discharged by showing merely that the beneficiary had the power unduly to overbear the will of the testator; it must be shown that in the particular case the power was exercised and that execution of the will was thereby obtained {Craig v. Lamoureux, [1919] 3 W.W.R. 1101, [1920] AC 349, 89 UPC 22, reversing 49 S.C.R. 305. As to the particulars that may be ordered see Re Shrewsbury [Earl] Estate; McLeod v. Shrewsbury [Earl] [1922] P 112, 91 UP 46).

  • I have taken the unusual step of citing this long passage from a text book because, having looked at the authorities cited, I cannot better epitomize them.
  • I suppose I should, since both were Privy Council decisions on Canadian appeals, pay particular regard to Re Harmes Estate; Harmes and Custodian of Enemy Property v. Hinkson, supra, and Craig v. Lamoureux, supra.
  • Wintle v. Nye, [1959] 1 W.L.R. 284,103 Sol J 220, a decision of the House of Lords, is cited in Hanbury’s Modern Equity, 8th ed., p. 655 and, at p. 656, the learned author says that, as a result of that judgment “no sensible distinction between wills and transactions inter vivos can now be drawn.”
  • I cite this passage from the opinion of the Lord Chancellor, Viscount Simonds, at p. 291:

My Lords, the relevant law is not, I think in doubt. It was, as the Court of Appeal were unanimously of opinion, correctly stated by the learned judge by reference in particular to the judgment of Parke, B. in Barry v. Butlin [supra], at 482. It is not the law that in no circumstances can a solicitor or other person who has prepared a will for a testator take a benefit under it. But that fact creates a suspicion that must be removed by the person propounding the will. In all cases the court must be vigilant and jealous. The degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled. It may, on the other hand, be so grave that it can hardly be removed.

  • I do not think this passage quarrels with the previous authorities I have mentioned. But a thing to be kept in mind in regard to Wintle v. Nye is that the House of Lords did not find undue influence, they found that the issue was this (Lord Simonds at p. 292): “What was in issue was whether she [the testatrix] understood and approved the contents of the will she executed.” On the facts they decided the case against the solicitor who had drawn and propounded the will and who was the chief beneficiary.
  • The decision of the Supreme Court of Canada in Adams v. McBeath (1897) 27 S.C.R. 13, affirming 3 B.C.R. 513, citing Boyse v. Rossborough; Boyse v. Colclough, supra, at p. 49,

The Court held that the English rule of Wintle v Nye aforesaid had not been complied with and the very grave onus of proof the defendant  faced, not met.

– See more at: http://www.disinherited.com/blog/beneficiary-who-prepared-will-and-substantially-benefits-has-very-heavy-burden-prove-will-valid#sthash.bQ72ZSSd.dpuf

Unsigned Draft Will Refused Probate

The only thing surprising about this decision from a British Columbia perspective is that it actually proceeded to court.

The solicitor prepared the draft will and advised the deceased in writing that she was to make an appointment to come in and sign it.

The deceased never did execute the draft will, and despite this, her relatives brought application for admission into probate of the unsigned document, purporting it to be her last will and testament.

The application for probate was dismissed.

The court ruled that a draft will could not be admitted to probate as it would fail the proper requirements of execution.

In Saskatchewan there needs to be at least some attempt at execution of a formal will.

It was not clear to the court that the document express the final wishes of the deceased, as the document was specifically noted as being draft subject to revisions.

There was no evidence that the deceased was confused as to the need to sign the will, as the solicitor’s letter was clear and unequivocal as to the requirement for further action on the part of the deceased.

Words “Born After” Interpreted

Born after“Born After” Interpreted in Two Express Trusts

Turk v Turk 2011 ONSC 6497 dealt with the various rules of construction and interpretation of the words“born after the date of the settlement” that were used in to family trust settled by a grandmother in 1992 and 1996, for the benefit of her two sons families.

One of the sons remarried after a divorce, and adopted two children who were 18 and 17 years of age at the time of their adoption.

Both were clearly born before, and not after,  the date that the trust was settled.

The two sons brought an application to have the terms of the trust interpreted, which resulted in the adopted children not being  beneficiaries of either trust.

After analyzing some of the general rules of interpretation, the court found that there was no ambiguity in the clause “born after the date of this settlement”, and that the words “born after” in particular,  meant exactly what they said, and had no other natural meaning.

Some of the principles used by the court are as follows:

 

  • All parties agree that there is no Canadian case law, which is on all fours with the issues in the interpretation of these Trusts. One firstly looks at the Settlor’s intention as ascertained from the four corners of the Trust Settlements themselves and from the Trusts as a whole and not solely from the words used. See: James MacKenzie, Feeney’s Canadian Law of Wills, 4th ed. Looseleaf (Markham: LexisNexis Canada Inc., 2000) at para. 10.60.

 

  • Feeney’s, also says that if a Trust Deed describes a certain person with sufficient certainty to enable a Court to recognize the person intended by the settler, the Court will overlook the inaccuracy in the rest of the description. In my view, this principle cannot apply to the Trusts in question. Such descriptions relate to a beneficiary’ name, which is incorrectly spelled or misdescribed, such as a charity’s name. It can also apply when a testator or settlor describes someone as “my niece Ann Smith”, but that person is not blood-related to the testator or settler and whose name is actually “Anne Smith”, not the name shown in the document.

 

  • I have also reviewed the wording of Feeney’s in paragraphs 10.61,10.62,10.67,10.69, 10.71,10.80, 10.98,11.14,11.1,11.12,11.29 and 11.33.1 cannot see where any of these propositions apply to the wording of the Trusts. The clause in the Trusts is worded, “…and any other children of Jonah Turk born after the date of this Settlement, and the issue of such children”. There is nothing in this clause that is ambiguous or capable of two constructions. The words “born after” mean exactly what they say.

 

  • Nor can I find that the Settlor’s intention is not clearly expressed in the words used in the Trusts. The words “born after” cannot have any other meaning than their natural meaning.

There is no doubt as to the meaning of the words “born” and “after”. Any natural children Jonah may have in the future, and any infants or other children he may adopt who were born after the dates of the Settlements, would be included in the class described in the Trusts. Nor can I see where the Settlor had a general intent other than what the words themselves say in the Trusts.

There is no indication that she contemplated her son, Jonah, adopting adult persons or children who were almost adults and born “before” the dates of the Settlements, so that they would now be included in the classes of beneficiaries named in the Trusts.

  • The construction of the words of the Trusts is neither unjust nor absurd nor does the rule against disinheritance apply, as outlined in Feeney, in para. 10.80. The words “Jonah’s Family”, while now including his adopted children, is not a conflicting provision to “born after”. A conflicting provision must arise in the original wording of the Trust Deed, so that it is conflicting throughout the time from the Trust’s settlement date to the date of the interpretation. That is not the case here. The problem only arose when Jonah adopted persons born after the dates of the Trusts.

 

  • On the question of what is the Settlor’s intention, I adopt the traditional view on the interpretation of trusts as summarized in Lewin on Trusts 18th ed., John Mowbray et al., (Toronto: Thomson Sweet & Maxwell, 2008) at 200-201:

“Lifetime settlements are no different from other documents in that the subjective intentions of their authors are irrelevant. What counts is that the objective meaning that the words of the document convey to the court when considered as a whole in light of the surrounding circumstances.”

The intention that the court seeks is the intention as expressed; that is, the way in which the document is to be understood, not the purpose, motive, desire or other subjective state of mind of the settlor. The reason for the rule is that, otherwise, no lawyer would be safe advising on the construction of a written instrument, nor any party in taking under it.

 

Objections to Hearsay Evidence Often Denied In Estate Litigation

objection cartoon

The Manitoba case of  Young v Paille 2012 CarswellMan 12  is a good example of how far the courts are prepared to go to allow hearsay evidence to be admitted in most estate litigation cases where it is the best evidence available.

(disinherited.com has previously blogged on the issue of hearsay and those comments can be reached through the search engine.)

The respondent elderly mother suffered a seizure in early 2007 and was soon thereafter diagnosed as showing signs of dementia.

Around this time the mother’s husband began to write letters to his brother about her situation.

On May 15, 2007 he reported that things were “going very badly”.

On the same day the mother signed a power of attorney.

Family members had contacted a lawyer to request that powers of attorney be prepared naming two of the mother’s children as the attorneys.

In 2010 the husband died

A third child of the mother brought an application for a declaration that the mother’s power of attorney was void because she lacked requisite mental capacity.

The Court declared that the mother was incompetent at the time she signed  her power of attorney, and  thus it was avoid.

Most importantly the husband’s letters were admitted into evidence and were given significant weight by the judge.

The letters provided detail about circumstances that were generally corroborated by medical information, and concern about the mother’s condition at precise times that were in  issue at trial.

There was no basis for the assertion that the husband was exaggerating to get sympathy.

There was no significant danger of perception, memory or credibility which would have rendered the letters unreliable.

The Court found that the letters were the best evidence available where his testimony was unavailable, and thus submitted his letters despite them being technically hearsay evidence.

disinherited.com applauds this sensible and practical type of decision that avoid the previous historically hard and fast rules that had related to and largely prevented the admissibility of hearsay evidence

Holograph Wills Not Valid In British Columbia (BC)

Holograph willsPlease note that since the date of this original blog, the curative provisions of s 58 of WESA may have altered the law relating to the topic of holograph wills.

Holograph wills are ones that is entirely written and signed by the testator, but does not have the witness attestation that is required in British Columbia in order to make a will valid. ( Two witnesses and the testator sign the will,  all in the presence of each other, is required in British Columbia)

Many non lawyers have heard the story of the Alberta farmer pinned under his tractor and dying, who wrote on the dust of the tractor’s fender “everything to mom”.

The holograph will/fender was not dated, but the fender was admitted into court as the last valid holograph will of the deceased, and everything went to mom..

That would not be a valid will in British Columbia for a few reasons, but most primarily, the absence of the two witnesses.

The holograph will must still have the necessary animus testandi, meaning the deliberate intention to dispose of property after death.

There cannot be any question of this testamentary intention as there is no requirement that the holograph will identify itself as a will.

There are examples where letters have been held sufficient to be admitted to probate as holograph wills.

The decision Re Neilson Estate (1989) 96 NBR (2d) 2 involved a deceased who had delivered three pages of handwritten instructions to her lawyer, and then signed the last page with her first name, and  put the pages in an envelope with her full name on the outside.

The court admitted these instructions as a valid holograph will .

disinherited.com is strongly supportive of the existing law in  British Columbia requiring two witnesses to all be present, and both watch the testator sign his or her name, and then the testator watching the witnesses attest their names, all at the same time.

There is already far too much  abuse in the wills and estates arena, and the absence of two witnesses can only lead to further wills and financial  abuse, particularly of the elderly.

Who Gets What When There is No Will (Intestate)

What happens when there is no will?

My late mother used to tell me even when I was an established estate lawyer that when someone dies without a will, his or her assets go to the government.

No matter how hard I tried, I could never persuade her of the provisions of the Estate Administration Act RSBC that exists to prevent that very occurrence ,unless there is absolutely no next of kin anywhere in the world.

The provisions that are set out in this blog will be dramatically changing as of likely 2013 when revamped legislation is brought into effect.

In the interim, sections 83-91 inclusive of the Estate Administration Act set out a statutory formula as to who gets what when a person dies without a will(intestate):

 

Intestate leaving spouse but no issue ( issue are lineal descendants- children, grandchildren etc.)

83  If an intestate dies leaving a spouse but no issue, the person’s estate goes to the spouse.
Intestate leaving issue

84   If an intestate dies leaving issue, subject to the rights of the spouse, if any, the person’s estate
must be distributed per stirpes among the issue.

Intestate leaving spouse and issue

85(1) In this section, “net value” means the value of an estate wherever located, both in and out of
British Columbia, after payment of the charges on it and the debts, funeral expenses, expenses of
administration and probate fees.

  1. This section applies if an intestate dies leaving a spouse and issue.
  2. If the net value of the person’s estate is not greater than $65 000, the estate goes to the spouse.
  3. If the net value of the person’s estate is greater than $65 000, the spouse is entitled to $65 000, and has a charge on the estate for that sum.
  4. After payment of the sum of $65 000, the residue of the estate goes as follows:

 

  1. if the intestate dies leaving a spouse and one child, 1/2 goes to the spouse;
  2. if the intestate dies leaving a spouse and children, 1/3 goes to the spouse.

(6)If a child has died leaving issue and the issue is alive at the date of the intestate’s death, the
spouse takes the same share of the estate as if the child had been living at the date.

Spousal share if 2 or more persons are entitled as spouse

85.1 For the purposes of section 85, if 2 or more persons are entitled as a spouse they share the spousal share in the estate in the portions determined by the court as the court considers just.

Estate going to parents

86(1) If an intestate dies leaving no spouse or issue, the person’s estate goes to the person’s father
and mother in equal shares if both are living.
(2) If either of the person’s mother or father is dead, the estate goes to the survivor. Estate going to brothers and sisters

87(1) If an intestate dies leaving no spouse, issue, father or mother, the person’s estate goes to the
person’s brothers and sisters in equal shares.

(2) If a brother or sister is dead, the children of the deceased brother or sister take the share their parent would have taken if living, but further representation must not be admitted.

Estate going to nieces and nephews

88If an intestate dies leaving no spouse, issue, father, mother, brother or sister, the person’s estate
goes to the person’s nephews and nieces in equal shares, and representation must not be admitted in
any case.

Estate going to next of kin

89If an intestate dies leaving no spouse, issue, father, mother, brother, sister, nephew or niece, the
person’s estate must be distributed equally among the next of kin of equal degree of consanguinity
to the intestate, and representation must not be admitted in any case.

Kindred and half blood

90(1) For the purpose of this Part, degrees of kindred are to be computed by counting upward from
the intestate to the nearest common ancestor and then downward to the relative.

(2) The kindred of the half blood inherit equally with those of the whole blood in the same degree. Posthumous births

91         Descendants and relatives of the intestate, conceived before the person’s death but born
afterwards, inherit as if they had been born in the lifetime of the intestate and had survived the
intestate.