Converting a Petition to an Action

Converting a Petition to an Action

Certain claims such as proving a will in solemn form must be brought by petition, and if the matter is to proceed, the petition must be converted to an action by way of a court order.

In Kerfoot v Richter 2018 BCCA 238 the executor of an estate brought a petition to prove the will of the deceased in solemn form. The beneficiaries in the will were the deceased’s three adult children, one of whom received only a small portion of the estate. The appellant disputed the validity of the will and applied to have the proceedings converted from a petition to an action. The appellant contended that the deceased lacked testamentary capacity of the will was procured as a result of undue influence by her two siblings, the respondents.

Her application was dismissed by the chambers judge but the Court of Appeal allowed the appeal and ordered that the petition be converted to an action.

The appeal court stated that the test to be applied on an application to convert a proceeding brought by petition to an action is whether on relevant facts and applicable law, there is a bona fide triable issue. The materials before the chambers judge were sufficient to establish a triable issue.

In making the order to convert the petition into an action, the trial judge will continue to have full discretion to give directions concerning the out procedure to be followed in accordance with Supreme Court rules 22 –1-(7) (d) and 25-14 (8).

Rule 25-14(8) provides a similar discretion to the court to give directions about the procedure in estate matters, and provides:

8. Without limiting any other power of the court under this or any other part of the Supreme Court civil rules, the court may, on its own motion or on application, give directions concerning the procedure to be followed in any matter under this part, and without limiting this, they give directions respecting any of the following:

a) The issues to be decided;
b) who the parties will be, including directions for the addition or substitution of a party
c) how evidence may or must be presented;
d) summary disposition of any or all issues in the matter
e) the trial or any or all of the issues in the matter
f) pleadings;
g) examinations for discovery and discovery of documents, service or delivery of a notice, process, order or document on any person
h) dispensing with service or delivery
i) representation of any person or interest.

The court applied the test in Robertson v. Dhillon 2015 BCCA 469, where the appeal court confirmed that the test is akin to the test to be applied for summary judgment, that is whether on the relevant facts and applicable law, there is a bona fide triable issue.

Where there are disputed facts in the pleadings, the party who seeks either summary judgment or dismissal bears the evidentiary burden of showing that there is no genuine issue to be tried, and that is proven through evidence. McLean v. Law Society British Columbia 2016 BC CA 368, at paragraphs 36 – 39.

In considering evidence, the court must not way it, but is limited to assessing whether it establishes a triable issue. The court referred to Skye Bridge investments LTD v. Metro motors LTD 2006 BC CA 500:12. If sufficient material facts of being pleaded to support every element of a cause of action, but one or more of those pleated material facts are contested, then the judge ruling on a rule 18 (6)  application is not to weigh the evidence to determine the issue of fact for the purpose of the application. The judges function is limited to a determination as to whether a bona fide triable issue arises on the material before the court in the context of the applicable law. If a judge ruling on a rule 18 (6) application must assess and weigh the evidence to arrive at a summary judgment, the plane and obvious are beyond doubt test is not be met.

While a judge is not to weigh evidence, he or she may draw inferences that are strongly supported by undisputed facts. Importantly, a party seeking to establish there is a triable issue cannot rely on mere allegations, but must establish the existence of material issues , Canada v Lameman 2008 SCC 14 at paragraph 11. It is this latter requirement that precludes a matter from being referred to trial on the basis of mere assertions.

Witness Immunity and Republication of Judgements

Witness Immunity and Republication of Judgements

I have on occasion received letters from parties involved in litigation that I have blogged about demanding that I remove the blog because of involving their name, however the law is clear that republication of a judgment without amendment or commentary that remains in force does not afford a party aggrieved by the judgment to a civil claim.

The BC Court of Appeal recently dealt with the immunity of a witness in respect of evidence given in court, and the issue of republication of a judgment in Lefebvre v Durakovic Estate 2018 BCCA 201.

The court held that a witness enjoys absolute immunity in respect of evidence given in court, and that republication without abridgement, alteration or commentary of a judgment that remains in force does not afford a party aggrieved by the judgment to a civil claim.

The plaintiff had commenced a broad ranging action against defendant alleging various forms of abuse, defamation, breach of trust, breach of contract, extortion, intimidation, negligence and so forth, and the plaintiff appealed the judge’s decision to strike out portions of the action on of the basis of an abuse of process by giving false testimony before the registrar.

The court initially discussed the issue of witness immunity and quoted the decision McDaniel v. McDaniel 2008 BCSC 653, varied, at 2009 BCCA 53 , which held that witnesses are absolutely immune from civil liability for anything that they say in court, even if what they said is false, and even if they harboured malicious motives for giving evidence. The immunity is expensive. It applies to evidence given before quasi-judicial administrative tribunals as well as courts. It also applies to out of court statements made in the course of preparing to give testimony, and even to discussions with counsel for the purpose of determining whether or not the witness has relevant evidence to gift, or litigation that is in contemplations, statements made by a potential witness on the subject matter of the litigation will fall within this immunity.

The immunity is essential to the administration of justice in order to foster an atmosphere in which witnesses and counselor unfettered in their preparations for judicial proceedings, neither should face the possibility of a civil suit over there discussions. The needy, however, does have limits. It is not apply to everything a lawyer does in his or her professional capacity, nor does it apply simply because matters discussed between the parties might potentially at some point come before judicial or quasijudicial body. The immunity is directed at facilitating the gathering and preparation of evidence for litigation. That is not the context in which a statement is made the immunity will not apply.

The lawyer had republished the judgment on his website and the plaintiff took issue with this and the court held that the plaintiff had no cause of action in respect of the publication of the chambers judge’s reasons for judgment.

The court held that the accurate republication of a decision of the court is subject to at least qualified privilege. The materials provided by counsel in the court application included a reference to the judgment of McDougall v. Knight (1890) 25 QBD 1 (C.A) which set out the rationale for the privilege:

The judgment of a judge of the land is in itself an act of such public and distinct character as to make it in the interest of the Commonwealth that they should know it in toto, and provided it is either given verbatim correctly, or correctly summarize, it seems to me that the public policy requires that to be the law, I have no hesitation in saying that I believe that to be the lot the present day. It appears to me that it would be to put an end you fetter on the press to hold that the publication of the judgment is not privileged. Unless the judgment fairly summarize the evidence. I cannot doubt that the judgments of courts must be presumed to be fair, accurate inadequate and to make the person who report such a judgment prove that it is so, when to put on him a burden inconsistent with the interests of the Commonwealth.

In 1890, the main way of publishing judgments would’ve been through the press, and the court held that the same rationale is available today in respect to publication on the Internet.

The appeal court held that the judge was correct in finding that the plaintiff could have no claim in respect of the republication. The publication complained of in parts of the claim that were struck was of a judgment that continued in force. The judgment was not the subject of any publication ban. In publishing the judgment. The defendant did not abridge, alter, nor did he comment on it. It is not alleged in the context in which the judgment was published distorted the findings of the court

Absent special circumstances such as a publication ban, the publication of a judgment is in the public interest. A judge and is unlike other court documents, such as pleadings, arguments are affidavits. A judgment as a public declaration of an independent, impartial body vested with the authority to make decisions.

The mere fact that a person feels aggrieved by the judgment of a court does not give them a right to restrict its publication order claim, damage in respect of it. Merely alleging that a person who republishes a judgment is motivated by malice does not turn the completely lawful dissemination of a public decision of the court into an actionable tort.

The court did leave open the possibility that republication of a judgment could give rise to copyright issues or privacy legislation as same were not involved in this case.

Impeaching Witness Credibility

Impeaching Witness Credibility

The Supreme Court of Canada summarized the law relating to the impeachment of witness credibility in the rule in Browne v. Dunn in R.v Lyttle 2004 SCC 5 at paragraph 64:

“The rule in Browne v Dunn requires counsel to give notice to those witnesses whom the cross examiner intends later to impeach. The rationale for the rule is that the cross examiner should give an opportunity of making any explanation, which is open to the witness, not only as a rule of professional practice in the conduct of the case, but that is essential to fair play and fair dealing with witnesses.”

The rule although designed to provide fairness to witnesses in the parties, is not fixed, and the extent of its application is within the discretion of the trial judge, after taking into account all of the circumstances of the case.

In R.v Quansah 2015 ONCA 237 at paragraph 77 the court summarized the fairness considerations animating the confrontation principle:

1. Fairness to the witness whose credibility is attacked: the witnesses alerted that the cross examiner intends to impeach his or her evidence, and given a chance to explain why the contradictory evidence, or any inferences to be drawn from it, should not be accepted;

2. Fairness to the party whose witness is impeached- the party calling the witness has notice of the precise aspect of that witnesses testimony that are being contested, so that the party can decide whether or what confirmatory evidence to call; and

3. Fairness to the trier of fact: without the rule, the trier of fact would be deprived of information that might show the credibility impeachment to be unfounded, and this compromise the accuracy of the verdict.

The purpose of the rule in Browne v Dunn is to protect trial fairness. (– R. Podolski 2018 BCCA 96 at paragraph 145)

While it is often referred to as a rule, it’s legal application will depend on the circumstances of the case. The rule is not ossified, and flexible rule of universal and unremitting application that condemns a cross examiner who defaults to an evidentiary abyss.

The jurisprudence reflects that were trial fairness is unaffected by lack of cross examination, a cross examiner’s failure to confront a witness will not violate the rule in Browne v. Dunn.

This may be a case where it is clear or apparent, on considering all of the circumstances, which may include the pleadings and questions put to the witness an examination for discovery, that the witness or opposite party had clear, ample and effective notice of the cross examiners position or theory of the case. Therefore, where the other party, the witness, and the court are not caught by surprise because they are aware of the central issues of the litigation, the rule in Browne v. Dunn is not engaged.

Where the rule is engaged, a trial judge enjoys broad discretion in determining the appropriate remedy, and there is no fixed consequence for an infringement of the rule.

Factors to consider:

In Quansah at paragraph 117, the court listed the following factors that may inform the appropriate remedy:

  • The seriousness of the breach;
  • the context of the breach;
  • the timing of the objection
  • the position of the offending party;
  • any request to permit recall of a witness
  • the availability of the impugned witness for recall;
  • the adequacy of an instruction to explain the relevance of failure to cross examine.

A trial judge may diminish the weight of the contradictory evidence. Other remedies include recalling the witness, and in the jury context, giving a specific instruction to the jury about the failure to comply with the rule as a factor to consider in assessing credibility.

Revoking a Grant of Probate

Revoking a Grant of Probate

Debsbiens v Smith Estate 2010 BCCA 392 discusses the concept of revoking a grant of probate, which typically involves one of two attacks, namely finding a defect in the process leading up to the grant of probate, such as failure to serve a beneficiary with notice, or submitting false, or fraudulent information to the court in support of the application.

One problem that can be encountered in such an application is that if the client cooperated with the initial application, they may be estopped from trying to attack the grant. – Hayes v Montreal Trust Company 1977 BCJ 1317.

A typical case where a grant of probate has been set aside for failure to provide notice to potential beneficiary was noted in Shaw v. Reinhart 2004 BCSC 588 were a plaintiff in a wills variation action alleged that she had been the deceased’s common-law spouse of the date of his death. The action was brought some 10 months after the grant of probate that was issued to the deceased sons. They had not provided the plaintiff was notice under the Estate Administration Act, as they took the position that the plaintiff was not the deceased common-law spouse of the date of death. The executors brought an application to strike the claim as having been brought outside the limitation. However, this application was rejected and the court instead granted the plaintiff leave to move to have the grant of probate revoked.

Similarly, in Somodi v Szabados 2007 BCSC 857 the plaintiff was found to be a common-law spouse of the deceased, but the executor and sole beneficiary under the will was the deceased son and did not acknowledge the plaintiff as the deceased common-law spouse, instead contending that the relationship was simply one of landlord and tenant. He did not provide the plaintiff was notice of his application for probate. The plaintiff commenced an action under the wills variation act more than two years after the grant of probate. The court held in favor of the plaintiff stating that it is the plaintiff’s position that where the status of a common-law spouse is at issue, notice under section 112 of the Estate Administration act must be given, and where it is not, the defendant is estopped from relying on the limitation defence.

As in the Shaw decision, the court concluded that where the status of a common-law spouse is at issue, notice under the estate administration act must be given and failure to do so, precludes reliance on the limitation period.

Grounds for revoking probate:

Courts have jurisdiction to revoke grants of probate where evidence discloses that the grant ought not to have been issued. There are numerous grounds which probate can be revoked such as:

  • where subsequent wills of been discovered;
  • it is been found that the will is otherwise invalid;
  • where it has been determined that the testator was not in fact dead;
  • where the executor was under a legal disability, such as being a minor or mentally infirmed,
  • and where probate has been obtained by fraud.

In short, where it is shown that a condition precedent to the grant of probate was not fulfilled, the court has jurisdiction to revoke the grant.

Ravenscroft v Ravenscroft 1670 1 Lev. 305, stated that the jurisdiction of the probate court to revote a grant of probate is quite broad, though it is be exercised sparingly. The court possesses and when it becomes necessary exercises the power of revoking or annulling for a just cause any grant which it has made, and in doing so, it only resumes into its own hands the powers which it parted with on false or inaccurate suggestions.

Can You Prove Mental Incapacity for a Will?

Can You Prove Mental Incapacity for a Will?

Nykoryak v Anderson 2017 BCSC 1800 is a decision that in many respects is indicative of how difficult it is to succeed in having a will set aside on the basis of lack of mental capacity.

The court found that the testator who is aged 93, when he executed his last will had sufficient mental capacity to do so, despite some underlying cognitive issues. The evidence of his doctor and the lawyer who drafted the will was accepted by the court in proving that he had testamentary capacity.

The court held that the law is clear that the issue to be decided is not whether the deceased suffered from cognitive impairment when the will was executed, but rather, whether, despite the cognitive impairment, the deceased was able to:

1) Understand the nature and effect of a will understand the extent of what was being bequeathed under the will;

2) remember the persons who might be expected to benefit under the will

3) understand the nature of the claims that may be made by a person who is excluded by the will;

4) understand the extent of what was being bequeathed under the will

The lawyer who took instructions for the will had filed an affidavit at a summary trial, hearing, setting out his discussions with the testator. It was clear that the testator could not of had the discussion he had with the lawyer, if he did not meet the foregoing criteria.

In addition, the testator’s long time physician had provided an opinion in the form of an expert report that although the testator had some underlying cognitive issues at the time he executed his will, including some short-term memory loss and occasional confusion, he was nevertheless probably aware of what he was doing at the time.

 

The Law

The test for testamentary capacity was commented upon in Bull Estate v. Bull 2015 BCSC 136 at paragraphs 114 – 117:

114- the test for testamentary capacity is not overly onerous. Sufficient mental capacity to make a will may exist, despite the presence of cognitive deterioration, and the testator may have sufficient mental capacity even if his or her ability to manage other aspects of his/ her affairs is impaired.

115- simply having an imperfect or impaired memory does not in itself absent testamentary capacity unless it is so great as to leave no disposing memory. A disposing mind and memory is on able to comprehend of his own initiative and volition. The essential elements of the will making, property, objects, just claims to consideration, revoking of existing dispositions and the like. Moore v Drummond 2012 BCSC 1702 at 158

116- the testator should have an appreciation of the claims of the persons who are natural objects of his/her estate and the extent of his or her property of which he/ she is disposing Allart Estate v Allart 2014 BCSC 211 at para 30

117- Because testamentary capacity is a legal question, and not a medical question, a medical opinion, although valuable and relevant is not determinative of testamentary capacity Laszlo v. Lawton BCSC 305 at para 190

In the Ontario decision Birtzu v. McCron 2017 ONSC 1420 at para 40 the court stated:

40- the applicant notes that testamentary capacity is not the same thing is the capacity to manage one’s property and the capacity to confer a power of attorney. I agree. This does not mean the test is higher for testamentary capacity, rather, it is different. Should this point need illustration, none better can be found, then in the decision Palahnul v Palahahnuk Estate 2006 OJ 5304 were a will made by an 80-year-old testator had been found incapable of caring for her own person or her own property. The testator was cared for by a niece, under an agreement with the public Guardian and trustee, the court found:

Testator requirements for making a valid will:

The requirements for a testator to have a sound disposing mind in order to make a valid will include the following:

  • The testator must understand the nature and effect of a will
  • The testator must recollect the nature and extent of her property
  • The testator must understand the extent of what she is giving under the will
  • The testator must remember the person she might be expected to benefit under her will
  • The testator were applicable must understand the nature of the claims that may be made by a person she is excluding from the will.

Establishing a lack of testamentary capacity

Isolated memory or other cognitive deficits do not establish lack of testamentary capacity.

Such things as imperfect memory, inability to recollect names and even extreme imbecility, do not necessarily deprive a person of testamentary capacity. The real question is whether the testator’s mind and memory are sufficiently sound to enable him or her to appreciate the nature of the property was bequeathing, the manner of distributed and the objects of his or her bounty.

Care must be taken in reading the physicians clinical notes are in interpreting their diagnoses.

Diagnosing someone is having dementia does not necessarily mean the person is demented. Diagnosing someone is having Alzheimer’s dissolving the person lacks capacity, though it may foretell a loss of capacity. If the disease progresses, as expected. Delete from an initial diagnosis to a conclusion of legal incapacity is unwarranted and very dangerous reasoning.

Enforcing Settlement Agreements

Probably most litigation lawyers have experienced the situation where a settlement is made on behalf of their client who then subsequently changes his or her mind.

I have found this to have occurred on several occasions in recent years after a mediation of many hours of negotiations concluding in an agreement is signed by all the parties, only to have one of the parties to express “settlement remorse” soon after and try and get out of the settlement.

The law relating to the enforcement of settlement agreements was discussed in Gaida Estate v. McLeod 2013 BCXSC 1168.

The court adopted the Alberta decision of Laughaug V. Canadian Immigration Specialists Ltd. 2011 ABQB 609 , where the court identified four situations in which a settlement agreement would be set aside:

a.) mutual mistake and a fresh action could be commenced to achieve the same effect;
b.) misapprehension or mistake by the lawyer entering into the agreement, but only if court intervention is necessary to give effect to the settlement;
c.) the lawyer settles without authority and the third party is aware of that limited authority;
d.) evidence that the lawyer entered into the agreement, in defiance of express and specific instructions from the client.

In British Columbia the legal principles applicable to the enforcement of settlement agreements are stated in the judgment Roumanis v Hill 2013 BCSC 1047.

The court found that the plaintiff solicitor had made to the settlement with the knowledge of the client and her express instructions and it was only after the lawyer communicated the acceptance to the opposing counsel that the plaintiff changed her mind.
The court upheld the settlement , finding that the court has no discretion to refuse to enforce a binding settlement made on the instructions of a client.

The BC Court relied upon the decision of Robertson v. Walwyn et al (1988) BCJ 485 (C.A.), which stated that a completed settlement agreement is the same as any other contract. If the contract is valid and enforceable by ordinary principles of contract law, and if it is in issue in appropriate proceedings, then the court in the end must give effect to it.

The Robertson decision held that where a settlement agreement is made with the knowledge and consent of the parties, and where there is no ground for setting aside the agreement under general contract principles, such as fraud, duress, lack of capacity or mutual mistake, then the court has no alternative but to enforce the agreement.

The agreement may be enforced within the same court action , it not being necessary to commence a separate action for its enforcement.

Proof In Solemn Form and Attestation Clauses

Proof In Solemn Form and Attestation Clauses

Bhall Estate 2017 BCSC 1867 involved a contested application to prove a will in solemn form where the court inter alia relied upon the presence of the attestation clause to be of some significance.

The will was drafted by a lawyer who kept very few notes and could not recollect who interpreted his instructions as the deceased spoke and understood no English.

Despite these shortcomings, the court found the will to be valid and granted probate.

Attestation Clauses

As noted in Allart Estate v. Allart, 2014 BCSC 2211, at paragraphs 58 and 59, the presence of an attestation clause is of significance. There the court said this:

[58] More significantly, in this case, the Original Will has an attestation clause, from which it can be presumed that the will was duly executed and witnessed by persons who knew the requirements of the Wills Act. The court will not assume that a person has signed his or her name to the attestation knowing it to be untrue: Beaudoin at para. 11; Yen Estate at paras. 14-16.

[59] Given the presence of the attestation clause with the names of the two witnesses below it attesting to the signature of the Decease [sic], as well as the apparent compliance with the statutory requirements for a will, I conclude that the doctrine of omnia presumuntur rite esse acta applies. I must presume that the will was duly executed by the Deceased and witnessed by individuals who knew the requirements of the Act unless evidence to the contrary is proven.

Is a Will Valid By A Grant of Probate?

Is a Will Valid By A Grant of Probate?

Seepa v Seepa 2017 ONSC 5368 revisited the question of whether a will is recognized as valid by a grant of probate.

The Court followed Neuberger v. York, 2016 ONCA 191:

a. The court’s jurisdiction in probate is inquisitorial because the court’s decision does more than just bind the parties to the dispute. If probate is granted, a will is recognized in rem (or for the whole world). In carrying out its inquisition, the court has a special responsibility to the testator who cannot be present to give voice to his or her true intentions. (See para. 68);

b. A person with a financial interest in an estate may ask the court to probate a will. He or she then has the burden to prove that the will was duly signed, that the testator had capacity when he or she signed it, and that the testator had knowledge of the contents of the will and approved them. (See para. 77);

c. Upon proof that the testator duly signed a will, the law will assume that the other required facts are proven unless someone opposing probate adduces evidence that, if accepted, would undermine the testator’s knowledge, approval, or capacity. This type of evidence is referred to as “suspicious circumstances.” (See para. 77);

d. If suspicious circumstances exist, then the full legal burden reverts to those supporting probate to prove that testator’s knowledge, approval, and capacity. By contrast, those who allege that a will is invalid due to the exercise of undue influence have the burden of proof of that allegation throughout. (See para. 78);

e. The court’s decision to grant probate is discretionary. So too is the manner in which the decision will be made. (See para. 87);

24  The court has discretion as to the manner or process for the proof of a will. The first issue is whether the court will allow a proponent of a will to prove the necessary facts without a formal hearing or whether the court will require a proponent of a will to engage in a full, formal litigation process to prove the necessary facts. The process for formally proving the necessary facts to obtain probate is referred to as “proof in solemn form.”

25  The court is empowered and generally will accept proof of probate summarily, without an oral hearing, unless someone with a financial interest asks the court to require proof in solemn form under Rules 75.01 and 75.06 of the Rules of Civil Procedure, RRO 1990, Reg. 194.

26 At para. 88 of Neuberger, Gillese J.A. discusses the decision whether to require proof in solemn form as follows:

In my view, an Interested Person must meet some minimal evidentiary threshold before a court will accede to a request that a testamentary instrument be proved. In the absence of some minimal evidentiary threshold, estates would necessarily be exposed to needless expense and litigation. In the case of small estates, this could conceivably deplete the estate. Furthermore, it would be unfair to require an estate trustee to defend a testamentary instrument simply because a disgruntled relative or other potential beneficiary makes a request for proof in solemn form. (Emphasis added)

Common Law Spouse Expanded

Common Law Spouse Expanded

Connor estate 2017 BCSC 978 could be a bit of a game changer for common law WESA spouses in the sense that the court finding that the parties were spouses could be an “expansion” of the concept of common law spouse.

Kent J found a long time couple to be common law spouses despite:

  • the parties maintained two entirely separate residences and did not live under the same roof;
  • each undertook their own separate domestic tasks such as meal preparation, shopping, tending to clothing and household maintenance;
  • no mingling of finances occurred;
  • sexual relations between them in their respective households were significantly reduced in the last two years;
  • Ms. Connor’s hospital records identified her marital status as single and indicated Mr. Chambers as an alternative contact identifying him as a “friend”;
  • Ms. Connor identified herself as “single” on her tax returns and Mr. Chambers identified himself as “separated” after 2012;
  • Mr. Chambers identified his wife as his “current spouse” in the spousal declaration for his municipal pension plan application in September 2011, a designation that was never changed;
  • in August 2013 Mr. Chambers declared for the purposes of his group benefits with Manulife Financial that he had no common-law spouse and he did not declare Ms. Connor as a beneficiary;
  • Mr. Chambers’ children had no involvement in the life of Ms. Connor and indeed the son was never even introduced to her; and
  • neither Mr. Chambers nor Ms. Connor displayed photographs of each other in their respective residences.

The application to determine if  Chambers was a common law spouse was opposed by her five half siblings whom she did not know.

For much of the long time relationship the male partner Chambers  lived with his wife and family and saw the female Connor when he could.

The Judge found that they never lived together under the same roof as a result of Connor being a hoarder and there was no room for her partner Chambers to reside in her residence.

She had left him her $410,000 RRSP and the Judge found it likely that while she died intestate, that she had prepared a will that had left  him a substantial bequest, but the will could not be found.

Molodov/lch v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), which was also relied on in the case referred to above, was invoked in a recent WESA decision to identify generally accepted characteristics of a “marriage-like relationship”, Richardson Estate (Re), 2014 BCSC 2162:

[22]  A leading authority with respect to the meaning of “marriage-like relationship” (sometimes also referred to as “cohabitation”, Campbell v. Campbell. 2011 BCSC 1491 at para. 80) is Molodowich v. Penttinen (1980), 17 RFL (2d) 376 (ONDC):

[16] I propose to consolidate the statements just quoted by considering the facts and circumstances of this case with the guidance of a series of questions listed under the seven descriptive components involved, to varying degrees and combinations, in the complex group of human inter­relationships broadly described by the words “cohabitation” and “consortium”

7 Guidelines to Common Law Relationships

(1) SHELTER:

(a) Did the parties live under the same roof?

(b) What vie re the sleeping arrangements?

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

 

(2) SEXUAL AND PERSONAL BEHAVIOUR:

(a) Did the parties have sexual relations? If not, why not?

(b) Did they maintain an attitude of fidelity to each other?

(c) What were their feelings toward each other?

(d) Did they communicate on a personal level?

(e) Did they eat their meals together?

(f) What, if anything, did they do to assist each other with problems or during illness?

(g) Did they buy gifts for each other on special occasions?

 

(3) SERVICES:

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

(a) Preparation of meals,

(b) Washing and mending clothes,

(c)  Shopping,

(d) Household maintenance,

(e)  Any other domestic services?

 

(4) SOCIAL:

(a) Did they participate together or separately in neighbourhood and community activities?

(b) 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):

a) What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)?

(b) What were the arrangements concerning the acquisition and ownership of property?

(c) 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?

[23] Other authorities have emphasized that this is not a checklist and “these elements may be present in varying degrees and not are all necessary for the relationship to be found conjugal” (M. v. H. [1999] 2 S C R. Sat para. 59; cited in Austin v. Goerz 2007 BCCA 586at para. 57: the Court of Appeal equated “conjugal” with “marriage-like” in the same paragraph).

8    In Weber v. Leclerc 2015 BCCA 492, leave to appeal to SCC refused, [2016] S.C.C A No 19, the Court again reviewed the case law respecting “marriage-like relationships”, noting:

[23]     The parties’ intentions — particularly the expectation that the relationship will be of lengthy, indeterminate duration — may be of importance in determining whether a relationship is “marriage-like”. While the court will consider the evidence expressly describing the parties’ intentions during the relationship, it will also test that evidence by considering whether the objective evidence is consonant with those intentions.

[24]     The question of whether a relationship is “marriage-like” will also typically depend on more than just their intentions. Objective evidence of the parties’ lifestyle and interactions will also provide direct guidance on the question of whether the relationship was “marriage-like”.

Lawyer Duty Taking Will Instructions: Suspicious Circumstances

Lawyer Duty Taking Will Instructions: Suspicious Circumstances

The duty of a lawyer/solicitor  in taking will instructions when suspicious circumstances are present was discussed in Shroff v Schroff 2017 MBQB 51.

Suspicious Circumstances

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”: Longmuir v. Holland, 2000 BCCA 53, at para. 69 [Longmuir]; Heron Estate v. Lennox, 2000 BCSC 1553 at para. 67 [Heron Estate]. In Moore, N. Smith J. found the fact that the testatrix’s doctor had described her as no longer capable of managing her affairs and as suffering dementia around the time she made her will constituted a suspicious circumstance.

The suspicious circumstances may be raised by

(1) circumstances surrounding the preparation of the will,

(2) circumstances tending to call into question the capacity of the testator, or

(3) circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud.

Duty of the Solicitor When taking Will Instructions When Suspicious Circumstances Present:

[28] As to the role of a solicitor taking instructions from an elderly testator, he quoted with approval the following passage from Murphy v. Lamphier (1914), 31 O.L.R. 287 (H.C.) at 318 (at para. 81):

A solicitor is usually called in to prepare a will because he is a skilled professional man. He has duties to perform which vary with the situation and condition of the testator. In the case of a person greatly enfeebled by old age or with faculties impaired by disease, and particularly in the case of one labouring under both disabilities, the solicitor does not discharge his duty by simply taking down and giving legal expression to the words of the client, without being satisfied by all available means that testable capacity exists and is being freely and intelligently exercised in the disposition of the property. The solicitor is brought in for the very purpose of ascertaining the mind and will of the testator touching his worldly substance and his comprehension of its extent and character and of those who may be considered proper and natural objects of his bounty. The Court reprobates the conduct of a solicitor who needlessly draws a will without getting personal instructions from the testator, and, for one reason, that the business of the solicitor is to see that the will represents the intelligent act of a free and competent person.

[29] Guided by these principles, Hunter, J., concluded that the solicitor (at para. 93):

… did not go far enough, given the suspicious circumstances … to substantiate testamentary capacity. Further inquiries needed to be made to ascertain Ms. Peter’s capacity. Perhaps those inquiries were made, but if so, they were not documented and [the solicitor] has a very limited recollection of their conversations. If a solicitor has good reason to be concerned about testamentary capacity – and such seemed clearly to be the case here – then a systematic assessment of the testator’s capacity should take place, and if doubts remain then there should be an assessment by a physician or a psychologist.

[30] In Cousins Estate, Re, another will case where suspicious circumstances existed, Cullity, J., observed (at para. 70):

The obligations of solicitors when taking instructions for wills have been repeatedly emphasised in cases of this nature. At the very least, the solicitor must make a serious attempt to determine whether the testator or testatrix has capacity and, if there is any possible doubt – or other reason to suspect that the will may be challenged – a memorandum, or note, of the solicitor’s observations and conclusions should be retained in the file: see, for example, Maw v. Dickey (1974), 6 O.R.(2d) 146 (Ont. Surr. Ct.), at pages 158-59; Eady v. Waring [(1974), 2 O.R.(2d) 627 (Ont. C.A.)] …, at page 635; Murphy v. Lamphier … at pages 318-21. Some of the authorities go further and state that the solicitor should not allow a will to be executed unless, after diligent questioning, testing or probing he or she is satisfied that the testator has testamentary capacity. This, I think, may be a counsel of perfection and impose too heavy a responsibility. In my experience, careful solicitors who are in doubt on the question of capacity, will not play God – or even judge – and will supervise the execution of the will while taking, and retaining, comprehensive notes of their observations on the question.