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.

Notice to Dispute: Understanding the Rules

Notice to Dispute: Understanding the Rules

A party wishing to contest the issuance of a grant of probate or administration may file a Notice to Dispute under Rule 25 (10) of the Supreme Court Rules.

While a notice to dispute is in effect, the registrar must not issue an estate grant. The court may, on application, remove the notice of dispute if the court determines that the filing is not in the best interests of the estate. A notice of dispute is in effect for one year after the date of filing unless renewed or removed by order of the court or the will is proved in solemn form. 

Re: Dow Estate 2015 BCSC 292 stated:

[14]         A person who is interested in an estate including an applicant for the estate grant could apply to set aside the notice of dispute pursuant to Rule 25-10(10). The court may remove the notice of dispute if the court determines that the filing is not in the best interests of the estate (Rule 25-10(11)).

Rule 25-10 — Notices to Dispute

(1)To oppose the issuance of an estate grant, an authorization to obtain estate information or an authorization to obtain resealing information or to oppose the resealing of a foreign grant, a person to whom documents have been or are to be delivered under Rule 25-2 (2) must file a notice of dispute that accords with subrule (3) of this rule before the earlier of:

(a) the issuance of an authorization to obtain estate information or an authorization to obtain resealing information, and

(b) the issuance of an estate grant or the resealing of a foreign grant.

[en. B.C. Reg. 149/2013, s. 8.]

Only one notice of dispute to be filed

(2)A person must not file more than one notice of dispute in relation to any one estate.

[en. B.C. Reg. 149/2013, s. 8.]

Contents of notice to dispute

(3)A notice of dispute referred to in subrule (1) must be in Form P29, must provide an address for service of the disputant, which address for service must be an accessible address that complies with Rule 4-1 (1), and must disclose

(a) that the disputant is a person to whom documents have been or are to be delivered under Rule 25-2 (2), and

(b) the grounds on which the notice of dispute is filed.

[en. B.C. Reg. 149/2013, s. 8.]

Amendment of notice to dispute

(4)A notice of dispute may be amended once without leave of the court, and after that only with leave of the court.

[en. B.C. Reg. 149/2013, s. 8.]

(5)Rule 6-1 (2) and (3) applies to an amendment of a notice of dispute without leave of the court and, for that purpose, a reference in that rule to a pleading is deemed to be a reference to the notice of dispute.

[en. B.C. Reg. 149/2013, s. 8; am. B.C. Reg. 44/2014, Sch. 1, s. 8 (a).]

Renewal of notice of dispute

(6)The court may renew a notice of dispute, for any period the court considers appropriate, as follows:

(a) if the application for renewal is brought before the notice of dispute ceases to be in effect, if the court is satisfied that it is appropriate to make an order for renewal;

(b) if the application for renewal is brought after the notice of dispute ceases to be in effect, if the court is satisfied that

(i) there were good reasons that the application for renewal could not be brought before the notice of dispute ceases to be in effect,

(ii) substantial prejudice would be suffered by the person seeking renewal of the notice of dispute if the order for renewal is not made, and

(iii) no other person interested in the estate would suffer substantial prejudice if the order for renewal is made.

[en. B.C. Reg. 149/2013, s. 8.]

Application for renewal of notice of dispute

(7)Subject to Rule 8-5 (6), an application to renew a notice of dispute filed in relation to an estate must be made on notice to

(a) each person who has submitted for filing a submission for estate grant, or a submission for resealing, in relation to the estate,

(b) each person who has filed a notice of dispute in relation to the estate, and

(c) any other interested person to whom the court directs notice be given.

[en. B.C. Reg. 149/2013, s. 8.]

No grant while notice to dispute in effect

(8)While a notice of dispute is in effect in relation to the estate of a deceased, the registrar must not, with respect to that estate,

(a) issue an estate grant, an authorization to obtain estate information or an authorization to obtain resealing information, or

(b) reseal a foreign grant.

[en. B.C. Reg. 149/2013, s. 8.]

Withdrawal of notice of dispute

(9)A disputant may withdraw a notice of dispute by filing a withdrawal of notice of dispute in Form P30.

[en. B.C. Reg. 149/2013, s. 8.]

Application to remove notice of dispute

(10)A person who is interested in an estate in relation to which a notice of dispute has been filed, including, without limitation, an applicant for an estate grant or for the resealing of a foreign grant, may apply on notice to the disputant for an order removing the notice of dispute.

[en. B.C. Reg. 149/2013, s. 8.]

Grounds on which notice to dispute may be removed

(11)On an application under subrule (10), the court may, by order in Form P31, remove a notice of dispute if the court determines that the filing is not in the best interests of the estate.

[en. B.C. Reg. 149/2013, s. 8.]

When notice of dispute ceases to be in effect

(12)A notice of dispute in relation to an estate ceases to be in effect as follows:

(a) subject to paragraph (b), on the date that is one year after the date on which the notice of dispute was filed;

(b) if the notice of dispute has been renewed under subrule (6), at the end of the renewal period;

(c) if the notice of dispute is withdrawn by the disputant under subrule (9);

(d) if the will in relation to which the notice of dispute relates is proved in solemn form;

(e) if the court orders, under subrule (11) or otherwise, that the notice to dispute is removed.

Hearsay Evidence In Vancouver Estate Disputes

Hearsay Evidence In Vancouver Estate Disputes

Hearsay evidence is very common in Vancouver estate disputes and generally speaking is allowed by the courts subject to a few principled rules so long as it is not relied upon for “the truth of its contents”.

Hearsay evidence was discussed in Horton v Bruce 2017 BCSC 712 which adopted the principled approach set out at para. 30 in Harshenin v. Khadikin, 2015 BCSC 1213 (B.C. S.C.), citing R. v. P. (R.) (1990), 58 C.C.C. (3d) 334 (Ont. H.C.).

Justice Dardi stated that, on the “principled approach” to hearsay exception, hearsay evidence is presumably inadmissible when relied upon for the truth of its contents, however, if the statement is not proffered for its truth but rather offered pursuant to a well-established exception such as the deceased person’s state of mind, the hearsay evidence is then admissible.

4 rules of hearsay evidence in Vancouver estate disputes:

[33] The onus is on the party tendering the hearsay evidence to establish the necessity and reliability on a balance of probabilities. The court in this case must assess both the threshold reliability of the statement at issue and the statement’s ultimate reliability having regard to the entirety of the evidence…

[34] In this case, because the declarant is deceased, necessity is clearly established. That leaves for determination the issue of the reliability of the various statements attributed to the Deceased.

[35] A court is required to assess the reliability of a statement sought to be adduced by way of hearsay evidence by examining the circumstances under which that statement was made. A circumstantial guarantee of trustworthiness is established if the statement was made in circumstances which “substantially negate” the possibility that the declarant was untruthful or mistaken…

[36] As a preliminary threshold issue, the court must first find on a balance of probabilities that the statement was made by the Deceased before it goes on to determine the treatment and weight of such evidence: Creutz v. Estate of Kristian Winther, 2007 BCSC 1463 at para. 99. In essence, this assessment turns on the credibility of the various witnesses…

 

Fraudulent Wills: Vancouver Sun Article

Fraudulent Wills

The Vancouver Sun published an article I wrote on the increased risk of fraudulent wills that may occur under WESA.

The B.C. inheritance-and-estate law brought in two years ago has increased the risk of forged and fraudulent wills, says a lawyer involved in the debate about its creation.

Trevor Todd, who runs disinherited.com, said the situation is worrying given that in his 40-year practice he previously saw only one forged will — in the late-1970s. That case involved a nightclub doorman and his legal-secretary girlfriend taking advantage of the chronically drunk bar owner with a will that left everything to the bouncer. The club owner’s widow hired a handwriting expert and the case was settled out-of-court when the will was unveiled as a fake.

The old rules required that a will be in writing, signed by the testator and two witnesses, all in the presence of each other, and neither of whom nor their spouses could inherit as a beneficiary.
(The doorman used two bar flies as witnesses — the girlfriend having alerted him to the perils of signing the phoney document.)
Most forged-wills cases involve handwritten documents, known as holographs, putatively signed by the deceased with no witnesses.

Several decisions since the Wills, Estates and Succession Act (WESA) came into effect March 31, 2014, however, have allowed wills that previously would have been ruled invalid to be probated despite irregularities such as the lack of witnesses.

In one of the first post-WESA cases, (Re the Estate of Woolrich, V140043, unreported, Jan. 21, 2015), the B.C. Supreme Court found a suicide note to be a valid will.

In Re Smith Estate 2016 BCSC 350, the court granted probate to three clipped and stapled-together documents — two handwritten and the other an original funeral-arrangements brochure, all unsigned and unwitnessed.

In Re Yaremkewich Estate 2015 BCSC 1124, the witnesses signed a blank template that didn’t have attached the lists of bequests found with the will after death.

Also, they couldn’t recall if the deceased had signed the will template at the same time as they did. The judge still approved the will, including the lists of bequests. “To date the courts have not set any limit on what type of documentation is necessary to prove a will-maker’s true intentions with respect to his or her last will,” Todd said. “It is possible, for example, that an email message might be admitted to probate as a will. Such a thought immediately conjures up the prospect of an increase in faked wills.”

The previous legislation took a very strict approach to wills, Todd explained, so any deviation caused a will to be deemed wholly or partly invalid. For policy reasons, the government decided far greater court discretion was required to “cure” previously “defective” wills.

Passed in 2009, WESA included provisions that allowed probate as long as the intention of the testator was clear.

At the time, litigators including Todd, predicted more, not fewer lawsuits with the adoption of a significantly different conception of what could be considered a valid will.

With the public now increasingly preparing their own wills, Todd maintained, the self-help process has exacerbated the problem providing even greater opportunity for deathbed legerdemain.
“As the public increasingly prepare their own wills, all without the ‘screen’ of a lawyer testing for capacity and undue influence, it appears inevitable that there will be more forged or faked testamentary documents,” he said.

Combating a counterfeit will, he added, is difficult because bringing a charge of forgery is tantamount to alleging fraud, requires expensive handwriting experts and, if unproven, results in a heavy, special-costs award against the accuser. “Handwriting experts require 20 to 30 handwritten signatures of the deceased, preferably originals only, which they analyze through microscopes,” he said. “Their job is often complicated by the effect of tremors, arthritis or other related afflictions that a frail or elderly will-maker may have.”

And lawyer-prepared wills aren’t a palatable solution.

“There is a great price barrier as to what people will pay professionals to prepare wills, given the availability of will kits and such on the Internet,” Todd noted.

Use of Multiple Wills Approved

Use of Multiple Wills Approved

In re: Berkner Estate 2017 BCSC 619 the Court approved the use  of Multiple Wills in estate planning. 

The applicant submits that a person is entitled to have more than one valid will. As an example, multiple wills may be used when a will maker has assets in multiple jurisdictions. Rather than preparing a single will and then seeking a resealing in all other jurisdictions where the deceased holds property, multiple wills may be utilized. The Canadian Estate Planning Guide (Toronto: Wolters Kluwer, 1995) (loose-leaf revision 233), ch. 10, at p. 216 states:

In a world in which individuals frequently maintain assets in different jurisdictions, the convenience of using multiple wills has long been recognized. The testator simply prepares an original will for each jurisdiction in which he or she has assets. The principal advantage is that each will can be submitted to the proper court or put into effect without any dependence on the other will(s). Where there are assets in several jurisdictions, there is no need to limit oneself to two wills. But in each case, care should be taken to ensure that the will satisfies the formalities of execution of the relevant jurisdiction. Likewise, it is necessary to ensure that one will does not accidentally deal with assets that are also dealt with under another will and thereby create a situation of conflict, presumably resulting in the provisions of the later-dated will having priority with respect to the disposition of such assets.

10      There is no evidence that the deceased prepared two wills to address jurisdictional issues. A more likely motivation for the two wills is found in the following paragraph from the Canadian Estate Planning Guide:

Multiple wills are also used in some provinces as a means of reducing probate tax. Simply put, the basic strategy is to sequester assets that do not require probate in one will, while dealing with the remaining assets that do require probate in a second will. Of course, only the second will is probated, thereby saving probate tax on the assets covered by the primary will. . . .

11      The estate planning strategy of preparing two wills but only applying for probate of one of them was permitted in two Ontario cases, Granovsky Estate v. Ontario, 1998 CanLII 14912, 156 DLR (4th) 557, which I will refer to later, and also in Kaptyn v. Kaptyn (2010), 2010 ONSC 4293.

12      Authority for permitting two wills can be found in Astor, In the Goods of, [1876] P.D. 150, at p. 152:

. . . The question of incorporation in the probate of separate documents has frequently been a subject of consideration, and, I may say, a troublesome matter both to myself and my predecessors, in carrying out the jurisdiction I have now to exercise. I endeavoured to lay down the principles which should guide me in these cases In the Goods of Lord Howden (4), in which I held that where an English will ratifies and confirms a foreign will, it is right that the latter should be incorporated in the probate. In the present case, however, the testator has carefully used the clearest and strongest language to indicate his intention of keeping the English property separate from the American, and for that purpose has made the English will, which does not purport to ratify or confirm the American will, but merely expresses his desire that, if the two cannot be kept totally distinct, the English will shall be treated as a codicil to the American one. I have come to the conclusion that his wishes need not be disappointed, and that there is no reason why I should insist on the incorporation of the American will in the English probate.

13      The Astor case was referred to by the Ontario Court in each of Granovsky Estate and Kaptyn, and I am satisfied that it remains good law in the absence of any rule or legislation to the contrary