Hand Written Alterations to a Will Approved – S. 59 WESA

Hand Written Alterations to a Will Approved - S. 59 WESA

In an unopposed hearing Re Jamt Estate 2021 BCSC 788 the court approved hand written alterations to a will pursuant to S. 59 (1) (a) WESA.

The deceased had fully obscured with thick black pen the provisions of the original will, printed in new additions in two paragraphs and initialed the changes.

Witnesses identified the handwriting.

The additions were substantive and made after the will was executed, so S. 54(4 nr) of WESA did not apply, and instead S.58 and 59 of WESA were applied.

S. 58 WESA: One of the leading case on this section is re Hadley Estate 2017 BCSC 311

S. 58 is remedial in nature, conferring a broad discretion in prescribed circumstances to order a writing or marking on a will fully effective despite non-compliance with the statutory requirements for alteration.

Under s. 58, the two questions to answer regarding the Alterations are: (a) whether they are authentic, in the sense of actually being made by Mr. Jamt himself; and (b) whether they represent his deliberate, i.e., fixed and final, testamentary intentions (Hadley Estate (Re), para. 36).

As stated in Hadley Estate (Re) (at para. 38), WESA does not provide guidance on what evidence is admissible for a s. 58 analysis. Given the inherent challenges of establishing a deceased’s intentions, the court will benefit from allowing wide-ranging evidence regarding the deceased’s state of mind, understanding and intentions, subject to the rules of evidence:

Sitting as a court of probate, the court’s task on a s. 58 inquiry is to determine, on a balance of probabilities, whether a non-compliant document embodies the deceased’s testamentary intentions at whatever time is material. The task is inherently challenging because the person best able to speak to these intentions – the deceased – is not available to testify. In addition, by their nature, the sorts of documents being assessed will likely not have been created with legal assistance.

Given this context and subject to the ordinary rules of evidence, the court will benefit from learning as much as possible about all that could illuminate the deceased’s state of mind, understanding and intention regarding the document. Accordingly, extrinsic evidence of testamentary intent is admissible on the inquiry: Langseth Estate v. Gardiner (1990), 75 D.L.R. (4th) 25 at 33 (Man. C.A.); Yaremkewich Estate (Re) at para. 32; George.

As is apparent from the case authorities, this may well include extrinsic evidence of events that occurred before, when and after the document was created: see, for example, Bennett; George; Estate of Young; Re MacLennan Estate (1986), 22 E.T.R. 22 at 33 (Ont. Surr. Ct.); Caule v. Brophy (1993), 50 E.T.R. 122 at paras. 37–44 (Nfld. S.C.).

S. 59 WESA

59 WESA Sections 59(1) and (2) say:

Rectification of Will

59 (1) On application for rectification of a will, the court, sitting as a court of construction or as a court of probate, may order that the will be rectified if the court determines that the will fails to carry out the will-maker’s intentions because of

(a) an error arising from an accidental slip or omission,
(b) a misunderstanding of the will-maker’s instructions, or
(c) a failure to carry out the will-maker’s instructions.

(2) Extrinsic evidence, including evidence of the will-maker’s intent, is admissible to prove the existence of a circumstance described in subsection (1).

Prior to this decision the sole reported consideration of s. 59 appears to be Huber Estate (Re), 2019 BCSC 866, in which a will was rectified under s. 59(1)(b) because it failed to carry out the maker’s intentions due to her lawyer’s misunderstanding about the number of children she had.

Re Jamt estate was the first judicial consideration of s. 59(1)(a), which was the specific provision on which the petitioner relied upon.

The court found that the evidence strongly supported granting the rectification sought under s. 59(1)(a).

It indicated that Mr. Jamt’s intention was to leave his estate to the petitioner Per Martin, his Will as written failed to carry out this intention, and it did so because of Mr. Jamt’s accidental slip in confusing the petitioner’s middle name with that of Mr. Jamt’s brother, Per Kare Jamt, who had died in 1994.

Adjournment of a Trial

The decision to adjourn a trial hearing is a discretionary one, governed by the interests of justice and necessitating a balancing of interests: Sidoroff v. Joe (1992), 76 BCLR (2d) 82 BCCA .

 

The court outlined some relevant factors in Navarro v. Doig River First Nation, 2015 BCSC 2173:

A judge exercises discretion when an adjournment is sought and has wide powers in relation to the order that is made. The discretion must, of course, be exercised judicially in accordance with appropriate principles. The exercise of discretion is a delicate and difficult matter that addresses the interests of justice by balancing the interests of the plaintiff and of the defendant. This balancing requires a careful consideration of all of the elements of the case including the nature of the proceedings and the parties.

The Court of Appeal will be extremely reluctant to interfere with a decision of a trial judge on an adjournment matter which is integral to exercise of judicial discretion.

There are numerous factors to be considered on an adjournment application.

 

The paramount consideration is the interest of justice in ensuring that there will remain a fair trial on the merits of the action.

Because the overall interests of justice must prevail at the end of the day, courts are generous rather than overly strict in granting adjournments, particularly where granting the request will promote a decision on the merits.

The natural frustration of judicial officials and opposing parties over delays in processing civil cases must give way to the interests of justice, which favours a claimant having his day in court and a fair chance to make out his case.

Other factors or considerations include (in no particular order of priority):

• the expeditious and speedy resolution of matters on their
merits (Rule 1-3(1));

• the reasonableness of the request;

• the grounds or explanation for the adjournment;

• the timeliness of the request;

• the potential prejudice to each party;

• the right to a fair trial;

• the proper administration of justice;

• the history of the matter, including deliberate delay or misuse of
the court process; and

• the fact of a self-represented litigant.

Legal Disability and Litigation Guardian

Stanford v Murad 2021 BCSC 130 dealt with a legal dispute involving a demented person who is likely under a legal disability, and thus required a litigation Guardian.

The 89-year-old plaintiff’s litigation Guardian had fallen very dependent on the defendant, and possibly had married her. He no longer wanted his children to look after his financial affairs, and instead wanted the defendant as he did not believe that she would take his money without asking. There was evidence that the defendant had isolated the plaintiff and had prevented him from seeing than communicating with others.

An application was made by the aged to remove his litigation Guardian and/or declare that he was not a person under a legal disability.

There was evidence that the aged plaintiff had a long history of psychiatric disorders, including brain lesions, depression, concussions, severe strokes and severe dementia.

The court found that there is evidence that raised significant concerns about whether the aged plaintiff was under a legal disability, that is whether he was incapable of exercising judgment in relation to claims in the lawsuit as a reasonable person would be expected to do.

Because there was conflicting evidence, the court found that an independent medical opinion was needed, and thus ordered for the purpose of providing a medical opinion to the court regarding whether the aged plaintiff was capable of instructing counsel in exercising judgment in relation to the claims in issue, and possible settlement, as a reasonable person would be expected to do.

Rule 20-2 is a complete code respecting people under disability.
….
(2) A proceeding brought by or against a person under legal disability must be started or defended by his or her litigation guardian.
(3) Unless a rule otherwise provides, anything that is required or authorized by these Supreme Court Civil Rules to be done by or invoked against a party under disability must
(a) be done on the party’s behalf by his or her litigation guardian, or
(b) be invoked against the party by invoking the same against the party’s litigation guardian.
….
(5) Unless the court otherwise orders or an enactment otherwise provides, a person ordinarily resident in British Columbia may be a litigation guardian of a person under disability without being appointed by the court.
….
(8) Unless a committee has been appointed, the lawyer for a person under disability, before acting in a proceeding, must, unless subrule (9) applies, file a certificate that he or she knows or believes that

(a) the person to whom the certificate relates is an infant or mentally incompetent person, giving the grounds of that knowledge or belief, and if the person to whom the certificate relates is a mentally incompetent person, that a committee has not been appointed for the person, and
(b) the proposed litigation guardian of the person under disability has no interest in the proceeding adverse to that person.
(11) If it is in the interest of a party who is under disability, the court may remove, appoint or substitute a litigation guardian.

The test for whether a person is under legal disability for the purposes of Rule 20-2 is whether the person is capable to instruct counsel and to exercise judgment in relation to the claims in issue and the possible settlement as a reasonable person would be expected to do: Walker v. Manufacturers Life Insurance Co., 2015 BCCA 143 at para. 12.

Under the Adult Guardianship Act, R.S.B.C. 1996, c. 6, s. 3, an adult is presumed capable unless proven otherwise.

A judge has discretion to take steps, including ordering a medical examination, to determine whether a litigation guardian should be appointed: Walker at para. 33; Pavlick v. Hunt, 2005 BCSC 285 at paras. 20-23.

In order to protect the best interests of the dependent adult, the litigation guardian cannot have a personal interest in the outcome of the legal proceedings: Gronnerud (Litigation Guardian of) v. Gronnerud Estate, 2002 SCC 38 at para. 20.

Certificates of Pending Litigation (CPL)

Lipskaya v Guo 2020 BCSC 2090 canceled a certificate of pending litigation registered against the property where the owner was indebted to her for arrears of child maintenance.

The court found that the certificate of pending litigation (CPL) had been improperly filed as the claim did not disclose an interest in the land.

 

What Is a CPL and When Can It Be Filed?

 

A CPL is a mechanism by which a party may secure a claimed interest in land.

The certificate gives notice to the world at large that the legal or beneficial title to the property is in dispute. It does not prevent an actual transfer or change in the title, but any transfer or change would be subject to the certificate of pending litigation, and thus risky.

It’s It is not to be used as a form of pre-judgment execution in respect of a purely financial claim. The requirement that there be a claim for an interest in land stems from s. 215(1) of the Land Title Act, R.S.B.C. 1996, c. 250 [LTA].

In Chen v. Jin, 2019 BCSC 567, the court set out the principles governing an application to cancel a CPL

The key to s. 215(1)(a) is that the CPL must be grounded in a claim to an interest in land

It is improper to file a CPL as leverage to secure a financial claim: Drein v. Puleo, 2016 BCSC 593at paras. 8-10.

The correct test to be applied in an application to cancel a CPL that is alleged to be non-compliant with s. 215 of the Land Title Actis simply whether the pleadings disclose a claim for an interest in land. Where a CPL fails to properly claim an interest in land, it should be cancelled on the basis that it does not meet that precondition: Xiao v. Fan, 2018 BCCA 143at paras. 19 and 27.

 

Cancellation of a CPL

The process for making this determination as set out by the Court of Appeal in Xiao is as follows:

Accordingly, the correct test to be applied in an application to cancel a CPL that is alleged to be non-compliant with s. 215 of the Land Title Act is simply whether the pleadings disclose a claim for an interest in land. In such an application, no evidence is to be considered.

If the merits of the claim for an interest in land are challenged, a defendant should apply for a summary dismissal of that part of the claim under Rule 9-6(4), where evidence may be considered, and the test to be applied is whether there is a bona fide triable issue of fact or law. If that part of the claim is dismissed, a defendant may then apply to have the CPL cancelled under s. 254. See also Bilin v. Sidhu, 2017 BCCA 429and Berthin v. Berthin, 2018 BCCA 57.

Video Evidence Is Admissible

In the past several years there has been a great increase in the receipt and admissibility of video evidence in civil litigation, as the necessary technology has improved and become ubiquitous.

During the COVID-19 pandemic, video evidence is commonplace. It is not confined to witnesses testifying to routine or inconsequential matters. It is almost always tendered by consent.

Judges have become accustomed to assessing the credibility and reliability of evidence given by a witness seen only on a video screen. Early concerns have been allayed, at least to some extent, by experience.

Section 73(2) of the Evidence Act authorizes the receipt of testimony by any “technology that allows the court, the parties and the witness to engage in simultaneous visual and oral communication”.

I will call this “video evidence”. The court may exercise a discretion to permit video evidence, where the necessary technology is available, unless “one of the parties satisfies the court that receiving the testimony in that manner would be contrary to the principles of fundamental justice”.

If there is an objection, subsection (3) lists the following factors for consideration in deciding whether to allow video evidence:

(a) the location and personal circumstances of the witness;
(b) the costs that would be incurred if the witness had to be physically present;
(c) the nature of the evidence the witness is expected to give;
(d) any other circumstance the court considers appropriate.

Kasatani v Matsubara 2020 BCSC1960 referred to the following cases addressing the exercise of the court’s discretion under s. 72(3):

• Nybo v. Kralj, 2010 BCSC 674at paras. 8 — 12;
• Slaughter v. Sluys, 2010 BCSC 1576at paras. 7 — 12;
• Seder v. Insurance Corporation of British Columbia, 2011 BCSC 823at paras. 26 — 37;
• Miley v. Abulaban, 2014 BCSC 1905at paras. 6 — 17;
• Grahovac v. Hartfiel, 2015 BCSC 1142at paras. 34 — 73; and
• Singh v. Chad, 2018 BCSC 1860at paras. 89 — 93.

In none of these cases did an objecting party satisfy the court that allowing video evidence would, in the circumstances of that case, be contrary to the principles of fundamental justice.

Slaughter is the only one of these cases in which video evidence was not allowed, and it was a split decision in that Justice Beames exercised her discretion to permit video evidence in respect of some witnesses, but not others. At para. 10, she rejected an argument that proper and full cross-examination cannot take place where witnesses appear by video. In exercising her discretion, she took into account the extent to which the evidence would be contentious.

Mutual Wills Are Problematic

Although rare, mutual wills are extremely problematic in estate matters in that typically, a married couple, both sign the same will which in effect creates a binding contract on each other not to change the contents of the will, without the express permission of the other party. A breach of this can give rise to a claim of constructive trust.

As such mutual wills ( as opposed to mirror wills that most couples get where they each have their own will) should be avoided.

Most of the cases define a mutual will as an agreement not to revoke the will, as opposed to alter the will, as is our case. The word alter is defined in Black’s dictionary as to modify or vary in some degree. The word revoke means to destroy or make void an act or document. I note however that in Williams, Wills (1980) stated under agreements relating to mutual wills-” such agreements vary according to the circumstances of particular cases and the wishes of the parties. The wills may be executed upon an agreement that they shall not be revoked or altered”- The case law also states that there must be clear and unequivocal evidence of an agreement not to revoke the wills.

The use of the word alter, as opposed to revoke may possibly affect the outcome, but given that equitable principles are involved, it is unlikely. Re Kerr (1948) 3 DLR 668 is one of the leading cases and states that regardless of its precise terms, a joint will may be evidence of a contract not to revoke.

There is a maxim that equity looks on that as done which ought to have been done, or which has been agreed or directed to be done.

The meaning of this maxim is that equity will treat the subject matter of a contract, as to its consequences and incidents, in the same manner as if the act contemplated by the parties had been completely executed and will act in favor of those persons entitled to the performance of the contract so that no party to the agreement shall suffer from the delay and laches of the defaulter.

Equity has even imposed a constructive trust where the husband and wife agreed not to revoke their mutual wills, even though the surviving spouse died leaving assets only in joint tenancy and not in his estate (Sanderson v University of Manitoba BCCA (1998) 7 WWR 83 ). In other words, it was not dependent on leaving assets in the estate for a constructive trust to be imposed. Sanderson discusses how equity considers it a fraud upon the deceased, who has acted upon and relied upon the mutually binding nature of the agreement, for the survivor to change the will and break the agreement. As the deceased cannot intervene to enforce the obligation, equity will enforce the survivor’s obligation despite the survivor’s subsequent intentions.”

There is a question as to when the law will impose a constructive trust and what property becomes subject to the trust- is it that the date the agreement was signed, the date that the first party dies, or the date that the surviving spouse dies. Donovan Waters cites the decision of Dufour v Pereira (1769) 1 Dick,419 and states that “when the first testator dies, the contract is executed and the court will not permit the survivor to break the contract.”

The decision of Birmingham v. Renfrew (1937) 57 CLR 666 at 689 discusses the situation where the surviving spouse is enabled during his lifetime to deal as absolute owner of the property passing under the will of the party first dying, and to enjoy for his own benefit the full ownership, so that he may convert and expand the proceeds, if he chooses. But when he dies he is to bequeath what is left in his estate in the manner agreed upon. This leaves the question open as to whether the survivor can defeat the purpose of the agreement by making inter vivos dispositions while alive and only leave any residue of his estate to the beneficiaries of the mutual will.

Birmingham v Renfrew is an Australian case, and it may well be that equity will not allow a deed all of the subject property to his daughter so as to defeat the equities of the mutual will.

Re Kerr (1948) 3 DLR 668 states at paragraph 24 that Dufour v Pereira was distinguished In re Oldham: Haldwen v Myles (1925( CH 75. The real point of distinction is to be found in the judgment of Astbury J. At the. 88, where he states:

“Firstly, I think a very great difference between Dufour v Periera and the present case is that in Dufour, the capital of the trust property was secured in fact by the life interest only been given to the survivor, whereas in the present case, the survivor is s. given the whole estate absolutely, and could, if so minded, dispose of the whole property inter vivos.”

At paragraph 25, the court continues ” It should also be mentioned that in RE Oldham : Hadwen v Myles there were two separate documents and the mutual wills were not embodied in the one instrument, as in the case at bar.

The majority of the Supreme court of Canada In Pratt v Johnson (1959) SCR 102 agreed that the surviving spouse can do as he or she pleased with the property during their lifetime, but must dispose by will of what remained by the terms of the agreement. The court found that there was an agreement not to revoke the will, but then said that it was not a matter of the construction of the joint will, but of the effect of the agreement. Their interpretation was that the wife was bound by the agreement to leave whatever property she still held at the time of her death to the joint will remaindermen.

Privilege In Lawyer Communications

Privilege in lawyer communications, including without prejudice offers, can be a somewhat complex legal issue on occasion and this blog is a brief overview of the topic.

Middlecamp v Fraser Valley Real Estate Board 1992 CarswellBC267 ( BCCA) cited R. v. Fosty (1991) SCR 263 wherein the Supreme Court of Canada described the two principal kinds of privilege. At p. 303 :

1) Public Policy

… The first four terms are used to refer to a privilege which was recognized at common law and one for which there is a prima facie presumption of inadmissibility (once it has been established that the relationship fits within the class) unless the party urging admission can show why the communications should not be privileged (i.e., why they should be admitted into evidence as an exception to the general rule). Such communications are excluded not because the evidence is not relevant, but rather because there are overriding policy reasons to exclude this relevant evidence. Solicitor-client communications appear to fall within this first category: see Geffen v. Goodman Estate (1991), 81 D.L.R. (4th) 211, 80 Alta. L.R. (2d) 293, 127 N.R. 241 (S.C.C.); R. v. Solosky (1979), 50 C.C.C. (2d) 495, 105 D.L.R. (3d) 745, [1980] 1 S.C.R. 821.

 

2) The term “case-by-case” privilege is used to refer to communications for which there is a prima facie assumption that they are not privileged (i.e., are admissible).

The case-by-case analysis has generally involved an application of the “Wigmore test” (see above), which is a set of criteria for determining whether communications should be privileged (and therefore not admitted) in particular cases. In other words, the case-by-case analysis requires that the policy reasons for excluding otherwise relevant evidence be weighed in each particular case.

 

Wigmore’s four tests are the standard by which case-by-case privilege will be measured.

They are found in the McNaughton revision (1961), vol. 8, p. 257, para. 2285, as follows:

(1) The communications must originate in a confidence that they will not be disclosed.
(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
(3) The relation must be one which in the opinion of the community ought to be sedulously fostered.
Without Prejudice Communications
(4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

 

Without Prejudice


The public interest in the settlement of disputes generally requires “without prejudice” documents created for or communicated in the course of settlement negotiations to be privileged. It is a “blanket,” “prima facie,” “common law” or “class” privilege because it arises from settlement negotiations and protects the class of communications exchanged in the course of that worthwhile endeavour.

Belanger v. Gilbert (1984), 14 D.L.R. (4th) 428 (B.C. C.A) held that just because a document is marked without prejudice does not mean that is privileged.

in Schetky v. Cochrane et al., [1918] 1 W.W.R. 821, 24 B.C.R. 496, and the judgment of Mr. Justice Martin at p. 827. On that page Mr. Justice Martin referred to the case of Re Daintrey, Ex p. Holt, [1893] 2 Q.B. 116, in which he said:

… it was held that an admission of bankruptcy may be proved in a letter from the debtor to the creditor, though marked “without prejudice” …

Before the privilege arises two conditions must exist,

(a) a dispute or negotiation between two or more parties; and

(b) in which terms are offered

Judicial Declarations/Declaratory Judgements

Declaratory Judgements/Judicial Declarations

Park v Mitchell 2020 BCSC 1147 provides guidance on the law relating to declaratory judgments, a.k.a. judicial declarations.

A judicial declaration is not like a tort where damages are the usual remedy, or a claim for breach of contract where specific performance may be the proper remedy.

A declaratory judgment has no similar common-law or equitable foundation, but instead bases its legal existence upon her role of the Supreme Court (Rule 5(22))

Once the court grants a declaration it is binding on those affected, but unlike a judgment finding a breach of contract and awarding the remedy of specific performance, the declaratory judgment merely declares and goes no further in providing relief to the applicant been stating his or her rights.

A declaration is both the decree that declares an infringement of a right and an order prescribing the remedy.

The granting of a declaration is at the court’s discretion where four criteria are met:

  1. the court has jurisdiction to hear the issue
  2. the dispute is real and not theoretical
  3. the party raising the issue has a genuine interest in its resolution, and
  4. the responding party has an interest in opposing the declaration being sought. Ewart v Canada 2018 SCC 30 at para.81

Where the factors are met, a court looks at the practical value of the declaration in assessing if it should exercise its discretion to grant such a remedy.

A declaration can only be granted if it will have “practical utility”, that is if it will settle a live controversy between the parties.

The court has also phrase the question is whether “a useful purpose would be served” by granting the order. Wakelam v Wyeth Consumer Healthcare 2014 BCCA 36 at para. 71

The Burden of Proof When Contesting Wills

The Burden of Proof When Contesting Wills

Leung v Leung 2013 BCSC 976 sets out a concise legal framework of the burden of proof when contesting wills.

  1. 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 v hay (1995) 2 SCR 876 at paras 19-20;
  2. 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 or his estate and the extent of his or her property of which he or she is disposing. Lazlo v Lawton 2013 BCSC 305 at para. 185. 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;
  3. 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 possess the requisite testamentary capacity and knew and approved of its contents Vout at para. 26;
  4. This presumption may be rebutted by evidence of well grounded suspicions, referred to in jurisprudence is suspicious circumstances, relating to one or more of the following circumstances
  5. Surrounding the preparation of the will;
  6. Tending to call in to question the capacity of the will maker; or
  7. Tending to show that the free will of the will maker was overborne by acts of coercion or fraud
  8. 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) 12 ETR 219 at para. 20
  9. In Vout the court affirmed that if the 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. 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 Maddess v Racz 2009 BCCA 539 at para.31. The court in Scott v Cousins (2001) 37 ETR 113 describes the requisite evidence as that which excites that the suspicion of the court. The evidence must raise a specific and focus suspicion Clark v Nash (1989) 61 DLR 409 at 425 (BCCA)

The court in Laszlo provided the following instructive observations regarding the doctrine of suspicious circumstances at paragraph 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 were beneficiaries instrumental in the preparation of the will(especially where the beneficiary stands in a fiduciary position to the testator), or where the will favor someone who is not previously been the object of the testator’s bounty and does not fall within the class of persons tested is usually remember in their wills, that is to say their next of kin”

Children Born After Death of the Testator

Children Born After Death of the Testator

I recalled learning “en ventre sa mere” in law school and recently had occasion to advise as to whether a great grandchild born after the death of the grandfather testator, would inherit as part of the class of great grandchildren, as the child is a fetus and will be born about 3 months after the death of the grandfather.

When a will states that an estate shall vest to “all great grandchildren or grandchildren living or alive at the time of the death of the testator”, that estate has been held to vest in a share of any fetus alive in the abdomen of the testator’s daughter, daughter-in-law or sister-in-law as the will may provide who is born alive and under WESA survives five days or more.

The common law has developed the concept of “ en ventre sa mere” as far back as 1795.

In Doe v Clarke 126 ER 617 (1765) the court considered a situation where the will left an equal inheritance to such child or children and should be living at the time of my decease, and held that a child that was born seven months after the death of the testator, and thus was en ventre sa mere, comes clearly within the description of children living at the time of my decease.

En ventre sa mere is known as a long-standing legal principle of fundamental importance, as was noted in the leading case Montréal Tramways Company v Leveille 1933 SCR 456 SCC ,that noted that the concept dated back to Roman times, and remains entrenched in civil law codes around the world to this day. It was acknowledged the principle of general application in the common law of England at least by 1748.

A more recent case in 1937 In re Sloan estate (1937) 3 WWR 455 stated that in construing a will by a parent, credit him or her with those feelings which we commonly believe should be the attribute of a parent, and endeavor to construe the will as if he or she were a just and fond parent. ( I submit grandparent would also apply)

The court followed Villar v Gilbey (1907 ) AC 139 stated the following principles re will construction and children born after death:

1) Words referring to children or issue born before, or living at or, as I think we must add, surviving a particular point of time or event will not in their ordinary or natural meaning include a child en ventre sa mere at the relevant date;

2) the ordinary or natural meaning of the words may be departed from, and a fictional construction applied to them so as to include therein en ventre sa mere at the relevant date and subsequently born alive if, but only if, such fictional construction will secure to such child, a benefit to which it would have been entitled if it had actually been born at the relevant date;

3) the only reason and the only justification for applying such a fictional construction is that, where a person makes a gift to a class of children or issue described as unborn before or living at or surviving a particular point of time or event, a child en ventre sa mere must necessarily be within the reason and motive of the gift.