Wills Variation ( S 60 WESA) Is Discretionary

Kish v Sobchak 2016 BCC65 discussed how the claim of wills variation is discretionary top the trial judge and how the appeal court should deal with such.

The entire jurisdiction of the trial judge under this statute is discretionary in character. The relief which may be granted under it is completely dependent on his opinion, first, as to whether adequate provision for proper maintenance and support has been provided for the spouse and children under the will, and second, if adequate provision is not thought to be made, as to what provision should be made.

 

. This being so, that Court has the power and the duty to review the circumstances and reach its own conclusion as to the discretion properly to be exercised.

 

According to my definition, an issue falls within a judge’s discretion if, being governed by no rule of law, its resolution depends on the individual judge’s assessment (within such boundaries as have been laid down) of what it is fair and just to do in the particular case. He has no discretion in making his findings of fact. He has no discretion in his rulings on the law. But when, having made any necessary finding of fact and necessary ruling of law, he has to choose between different courses of action, orders, penalties or remedies he then exercises a discretion. It is only when he reaches the stage of asking himself what is the fair and just thing to do or order in the instant case that embarks on the exercise of a discretion.

The standard of review applicable in Canada to the exercise of judicial discretion is found in Friends of the Oldman River Society v. Canada (Minister of Transport) [1992] 1 S.C.R. 3. There La Forest J. wrote for the majority:

Stone J.A. cited Polylok Corp. v. Montreal Fast Print (1975) Ltd., [1984] 1 F.C. 713 (C.A.), which in turn approved of the following statement of Viscount Simon L.C. in Charles Osenton & Co. v. Johnston, [1942] A.C. 130, at p. 138:

The law as to the reversal by a court of appeal of an order made by the judge below in the exercise of his discretion is well-established, and any difficulty that arises is due only to the application of well-settled principles in an individual case. The appellate tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the judge. In other words, appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion, had it attached to them, in a different way. But if the appellate tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight, or no sufficient weight, has been given to relevant considerations such as those urged before us by the appellant, then the reversal of the order on appeal may be justified.

That was essentially the standard adopted by this Court in Harelkin v. University of Regina, [1979] 2 S.C.R. 561, where Beetz J. said, at p. 588:

Second, in declining to evaluate, difficult as it may have been, whether or not the failure to render natural justice could be cured in the appeal, the learned trial judge refused to take into consideration a major element for the determination of the case, thereby failing to exercise his discretion on relevant grounds and giving no choice to the Court of Appeal but to intervene. [At 76-7; emphasis by underlining added.]

This standard was affirmed and supplemented more recently in Penner v. Niagara (Regional Police Services Board) 2013 SCC 19, where the Court stated:

A discretionary decision of a lower court will be reversible where that court misdirected itself or came to a decision that is so clearly wrong that it amounts to an injustice: Elsom v. Elsom, [1989] 1 S.C.R. 1367, at p. 1375. Reversing a lower court’s discretionary decision is also appropriate where the lower court gives no or insufficient weight to relevant considerations: Friends of the Oldman River Society v. Canada 

        Well before Tataryn was decided (but after Swain v. Dennison), summary trial procedures had of course been introduced in British Columbia and elsewhere. It was clear, certainly in this province, that summary trials were not limited strictly to cases in which there were no conflicts in the evidence. In Orangeville Raceway Ltd. v. Wood Gundy Inc. [1995] 6 B.C.L.R (3d) 391 (C.A.), which was not a WVA case, this court discussed the standard of review on appeals from summary trial judgments. At para. 44, the Court considered whether it was entitled to set aside the judgment below and substitute its own views for those reached by the chambers judge “simply because he did not have the advantage of observing the witnesses as their testimony was tested by cross-examination”. Mr. Justice Goldie for the Court answered this question in the negative, adopting the comments of Mr. Justice Taylor in an earlier case as follows:

So far as findings of fact are concerned, the onus on the appellant in an appeal against a summary disposition of issues made without oral testimony under R. 18A, cannot be merely to persuade the appeal court to a different view of the evidence. The appellant must show that the chambers judge reached a conclusion which cannot reasonably be supported. That is a heavier burden than merely to establish that the appeal court would have made different findings, or have drawn different inferences. [At para. 45; emphasis added.]

 

It has been said that an appellate court is in as good a position to draw inferences from proven facts as the trial judge. But this states only half the equation. The appellate court may be in as good a position but the burden is still on the appellant to demonstrate error, that is to say, that the position reached below after a summary trial cannot reasonably be supported.

 

 

S. 151 WESA- Leave To Bring Action On Behalf of Estate

Mischke v. Mischke Estate 2021 BCSC 1404 dealt with a S. 151 WESA application for leave by a beneficiary of their mother’s estate to commence an action on behalf of the estate against the executor and another sibling for alleged breach of trust for missing funds while the executor and the sibling handled a power of attorney for the deceased.

The Court refused the application on the basis that no arguable case had been presneted and reviewed the criteria for a S. 151 application.

The Law- S. 151 WESA

A beneficiary under a will who is of the view that litigation should be brought on behalf of an estate in a situation where the executor is unwilling to do so may seek leave of the court to commence proceedings under s. 151 of the WESA.

The relevant portions of this provision read as follows:

151 (0.1) In this section, “specified person” means a beneficiary, an intestate successor or a person who may commence a proceeding claiming the benefit of Division 6 [Variation of Wills] of Part 4 [Wills].

151 (1) Despite section 136 [effect of representation grant], a specified person may, with leave of the court, commence proceedings in the name of the specified person and on behalf of the estate of the deceased person

(a) to recover property or to enforce a right, duty, or obligation owed to the deceased person that could be recovered or enforced by the personal representative, or
(b) to obtain damages for breach of a right, duty or obligation owed to the deceased person.

151(3) The court may grant leave under this section if

(a) the court determines the specified person seeking leave
(i) has made reasonable efforts to cause the personal representative to commence or defend the proceeding,
(ii) has given notice of the application for leave to
(A) the personal representative,
(B) any other specified persons, and
(C) any additional person the court directs that notice is to be given, and
(iii) is acting in good faith, and

(b) it appears to the court that it is necessary or expedient for the protection of the estate or the interests of a specified person for the proceeding to be brought or defended.

 

In Malecek v. Leiren, 2021 BCSC 1052 at para. 40, Mr. Justice Giaschi conveniently set out the five conditions that must be satisfied by an applicant in order to obtain leave to bring a s. 151 WESA beneficiary action:

  1. the applicant must be a “specified person” within the meaning of the section;
  2. reasonable efforts must have been made to have the executor commence the proceedings;
  3. notice must have been given to the required persons;
  4. the applicant must be acting in good faith; and,
  5. the court must be satisfied it is necessary or expedient for the proceedings to be brought.

Efforts to Have the Executor Bring the Proposed Proceeding

In situations where proposed beneficiary proceedings are to be brought against executors, it is not self-evident what would constitute “reasonable efforts” to cause executors to start such actions against themselves. This issue was canvassed at some length in Fry v. Fry, 2018 BCSC 1018 at paras. 49 to 58. The s. 151 WESA applicant in that case had essentially argued that when an executor is intended to be a defendant in the proposed proceeding and is therefore in an inherent conflict of interest, it would be nonsensical to require the applicant to first try to persuade the executor to commence such litigation. However, based on the wording of s. 151 and case law that has interpreted a similar provision in corporate legislation, Mr. Justice Milman concluded that the applicant must still give the executor reasonable notice of the request together with details of the nature of the claim that the applicant wishes the executor to pursue. At para. 57, he wrote:

In summary, I conclude that in a case such as this where the personal representative is an intended defendant, the applicant must, before commencing an action in the name or on behalf of the estate or seeking leave to do so:

(a) inform the personal representative of the specific allegations being made; and
(b) request that the personal representative take, or allow others to take, specific remedial action to address them.

While the precise form that such a notice and request for action requires will vary and is dependent upon the context, failure to make a reasonable effort to meet this requirement will be fatal to the application (Fry v. Fry, 2018 BCSC 1018, at para. 58).

The Applicant’s Good Faith

The s. 151 WESA applicant has the burden to demonstrate that the proposed proceeding is being brought in good faith. Evidence of the applicant’s motivation must be presented, as good faith cannot be presumed. Once again, Fry v. Fry, 2018 BCSC 1018, is instructive:

The requirement in s. 151(3)(a)(ii) that the applicant be acting in good faith was explained by Pearlman J. in the context of an application for leave to commence a derivative action in Luft v. Ball, 2013 BCSC 574, as follows at para. 46:

The applicant bears the onus of establishing that it is acting in good faith in bringing derivative proceedings. Good faith is not presumed; the applicant must adduce evidence to establish good faith: Creative Realty Corp. v. 333 Terminal Holdings Ltd., 2011 BCSC 638 at para. 19. The test of good faith is whether the action is brought primarily for the purpose of pursuing the claim on the company’s behalf. The factors to be considered include the applicant’s belief in the merits of the proposed claim, existing disputes between the parties, and alleged ulterior motives: Bennett v. Rudek, 2008 BCSC 1278 at para. 46. As Adair J. observed in Lost Lake Properties Ltd. [Lost Lake Properties Ltd. v. Sunshine Ridge Properties Ltd., 2009 BCSC 938] at para. 56, ultimately good faith is a question of fact to be determined on all of the evidence and the particular circumstances of the case.

The fact that the applicant may be motivated by self-interest will not disqualify that person from obtaining leave under s. 151 of the WESA. To the contrary, in light of the wording of s. 151(3)(b), good faith can be shown with evidence that the applicant is genuinely pursuing the proposed litigation for the benefit of the estate or out of the person’s own self-interest (Jiang v. Piccolo, 2020 BCSC 1584 at para. 69).

As with the “reasonable efforts to have the executor act” criterion, however, should the applicant fail to establish that the proposed proceeding is bona fide, leave to commence it will not be granted regardless of whether it may otherwise be meritorious.

Necessity or Expediency of the Proposed Proceeding

Section 151(3)(b) of the WESA provides that leave to bring a beneficiary proceeding can only be granted if it appears to the Court that it is “necessary or expedient for the protection of the estate or the interests of a specified person…”. Guidance on how to apply this provision was set out by Madam Justice Gray in Bunn v. Bunn Estate, 2016 BCSC 2146 at paras. 50-51:

A proceeding may be “necessary” under s. 151 of WESA if the personal representative is unwilling or unable to proceed. It may be “expedient” if it is in the best interests of the estate.

In this case, the applicant is a beneficiary of the Estate and seeks the order under s. 151 of WESA on the basis that the claim, if successful, will increase the value of the Estate. In such a case, in my view, to satisfy the court that it should exercise its discretion to grant leave to commence litigation on behalf of the estate, the applicant must show not only that there is an arguable case, but also that the potential relief in the action is sufficient to justify the inconvenience to the estate of being involved in the action, and that proceeding is overall in the best interests of the estate. In my view, that must involve a consideration of the costs of proceeding, including the potential of a costs award against the estate if it fails. Further, in my view, in determining whether the proposed lawsuit appears to be in the best interests of the estate, the court can consider the strength of the proposed claim based on a limited weighing of the evidence.

In other words, when considering whether leave should be granted on a s. 151 WESA application, it is permissible and expected for the Court to assess the evidentiary material tendered by the parties by performing a “limited weighing” of this evidence.

However, the Court cannot decide the merits of the case or deal with issues of credibility (Hoggan v. Silvey, 2021 BCSC 971, at para. 24). The assessment relates in particular to three interrelated questions: (1) is there an arguable case; (2) does the potential relief/recovery justify the time and expense of the proposed action; and (3) is the proceeding in the overall best interest of the estate (Malecek v. Leiren, 2021 BCSC 1052 at para. 44).

Dismissal of a Court Action For Delay

Dismissal of a court action for inordinate delay ( want of prosecution) requires four criteria:

1) Has there been an inordinate delay;
2) Is the inordinate delay inexcusable;
3) Has the delay caused or is likely to cause serious prejudice to the defendant; and
4) On balance does justice require a dismissal of the action?

Rule 22-7(7) provides that the court may order that a proceeding be dismissed if it appears that there is want of prosecution in the proceeding.

The BC Court of Appeal in Wiegert v. Rogers, 2019 BCCA 334 set out the relevant considerations in respect of applications for want of prosecution as follows:

1. On an application to dismiss for want of prosecution, it must be shown that there has been inordinate delay, that the inordinate delay is inexcusable, and that the delay has caused, or is likely to cause, serious prejudice to the defendant. In addition, the final and decisive question, which encompasses the other three, is whether, on balance, justice requires a dismissal of the action: Azeri v. Esmati Seifabad, 2009 BCCA 133 at para. 9; 0690860 Manitoba Ltd. v. Country West Construction Ltd., 2009 BCCA 535 at paras. 27–28.

Inordinate delay is delay that is immoderate, uncontrolled, excessive and out of proportion to the matters in question: Azeri at para. 8; Sahyoun v. Ho, 2015 BCSC 392 at para. 17.

2. In Sun Wave Forest Products Ltd. v. Xu, 2018 BCCA 63 at para. 25, the concept is relative: some cases are naturally susceptible of fast carriage or call for more expeditious prosecution than others. Although there is no universal rule as to when time starts to run, the date of commencement of the action is typically identified as the point from which delay is measured. The delay should be analysed holistically, not in a piece-meal fashion, and the extent to which it may be excusable is highly fact-dependent: Ed Bulley Ventures Ltd. v. The Pantry Hospitality Corporation, 2014 BCCA 52 at para. 38; 0690860 at para. 29.

3. Once a defendant establishes that delay is inordinate and inexcusable, a rebuttable presumption of prejudice arises: Busse v. Chertkow, 1999 BCCA 313 at para. 18.

The concern is with the prejudice that a defendant will suffer in mounting and presenting a defence if the matter goes to trial: 0690860 at para. 27.

Relevant matters could include failing memories, unavailable witnesses and the loss or destruction of physical evidence.

4. whether, on balance, justice requires dismissal of the action — again, the determination is highly fact-dependent.

Relevant matters could include the length of and reasons for the delay, the stage of the litigation, the context in which the delay occurred and the role of counsel in causing the delay (although negligence on the part of a plaintiff’s lawyer may not always amount to an excuse): International Capital Corporation v. Robinson Twigg & Ketilson, 2010 SKCA 48 at para. 45; 0690860 at para. 29.

Executors Denied Fees and Ordered to Repay Unauthorized Expenses

In Re Zaradic Estate 2021 BCSC 1037 the executors were awarded nil remuneration and ordered to pay back unauthorized expenses of approximately $10,000 to the estate.

The writer was counsel for the sole beneficiary of the estate and oppose the claim for both remuneration and expenses related to defending and rectifying a breach of trust and the unauthorized expense of taking the ashes of the deceased back to Croatia as it was not authorized by the will.

The will had a rather unusual clause stating that “ my trustees may claim remuneration for acting as trustees in the amount of 10% of the net value of the residue of my estate to be shared equally between them, in lieu of any executors or trustees fees.”

The executors claimed 10% of the gross value of the estate being approximately $110,000 in fees, but were awarded nil.

The beneficiary successfully argued that the executors conduct was so egregious that they should be denied fees.

Essentially they relied upon an assessed value of the property for the previous year, and attempted to sell the property to their daughter for that price and even advanced the sum of $13,000 of estate monies to ensure that the daughter had enough money to complete the purchase of the deceased home.

The beneficiary filed a certificate of pending litigation to stop that sale, and the property was sold 3 months later for approximately 50% more than the aborted sale.
The legal fees incurred to remedy the in completed sale were a proximally $4500 and you to the breach of trust, the registrar ordered that those monies be paid back to the estate.

Remuneration

An executor is entitled to remuneration to a maximum of 5% of the gross aggregate value of the estate, including capital and income, of all the assets of the estate at the date of the passing, unless the Will provides otherwise. In the present case, the Will allowed for remuneration up to 10% of the net value of the residue of the estate.

Sections 88-90 of the Trustee Act, R.S.B.C. 1996, c. 464 provides:

Setting remuneration of trustees and guardians

88(1) A trustee under a deed, settlement or will, an executor or administrator, a guardian appointed by any court, a testamentary guardian, or any other trustee, however the trust is created, is entitled to, and it is lawful for the Supreme Court, or a registrar of that court if so directed by the court, to allow him or her a fair and reasonable allowance, not exceeding 5% on the gross aggregate value, including capital and income, of all the assets of the estate by way of remuneration for his or her care, pains and trouble and his or her time spent in and about the trusteeship, executorship, guardianship or administration of the estate and effects vested in him or her under any will or grant of administration, and in administering, disposing of and arranging and settling the same, and generally in arranging and settling the affairs of the estate as the court, or a registrar of the court if so directed by the court thinks proper.

(2) The court or a registrar of the court if so directed by the court, may make an order under subsection (1) from time to time, and the amount of remuneration must be allowed to an executor, trustee, guardian or administrator, in passing his or her accounts, in addition to any other allowances for expenses actually incurred to which the trustee, executor, guardian or administrator may by law be entitled.

(3) A person entitled to an allowance under subsection (1) may apply annually to the Supreme Court for a care and management fee and the court may allow a fee not exceeding 0.4% of the average market value of the assets.

Application for remuneration

89 The court may, on application to it for the purpose, settle or direct the registrar to settle the amount of the compensation, although the estate is not before the court in an action.
Application

90 Nothing in section 88 or 89 applies in any case in which the allowance is set by the instrument creating the trust.

The criteria to be considered in determining the appropriate amount of remuneration are set out in a number of cases, the leading of which is Re Toronto General Trust Corporation and Central Ontario R.W. Co., [1905] O.J. No. 536 [Toronto General Trust]. At p. 354, the court lists the criteria as: the magnitude of the trust; the care and responsibility involved; the time occupied in administering the trust; the skill and ability displayed; and finally, the success achieved in the final result.

Remuneration does not need to be fixed as a percentage of the gross aggregate value of the estate, it may be calculated as a lump sum, provided it does not exceed 5% of the total value of the estate as provided in the Trustee Act, or in this case, 10% of the net value of the residue of the estate pursuant to paragraph 5 of the Will. See Turley Estate (Re), [1955] B.C.J. No. 34 (B.C.S.C.).

An executor can also claim a fee for annual care and management of the estate, in addition to the remuneration allowance under s. 88(1) of the Trustee Act. Also see s. 88(3) of the Trustee Act. The fee allowed must not exceed 0.4% of the average market value of the estate assets. The personal representative can apply annually for a care and management fee.

The executors argued that under section 90 of the Trustee act that the court had no jurisdiction to not allow the 10% as provided by the will, but the court found that section 90 did not apply as that was simply a ceiling that could be claimed, and not an entitlement as a matter of right that is contemplated by section 90 of the Trustee act.

The executors incurred legal fees of approximately $25,000 to defend the court claim brought by the beneficiary to set aside the conveyance to the daughter, and for legal fees incurred respect to the passing of accounts.

The court found that the general rule is that executors are awarded their costs of passing their accounts on a special card cost basis, but in the present case the conduct of the executors was a significant breach of trust, and awarded only the sum of $7000 in legal fees that related to the actual passing of accounts, as opposed to defending the court action.

Renewal of a Notice of Claim

Gill v Basic 20212 BCSC 875 dealt with the renewal of a Notice of Claim without notice to the defendants.

In Gill the Notice of Claim had expired 8 months prior through inadvertence and the defendant had not been served as they could not be located.

The court renewed the Notice of Claim for a further 3 months finding there was no prejudice to the defendants but there would be substantial prejudice to the plaintiffs if they could nor proceed with their claim.

Rule 3-2(1) requires the plaintiff to serve the original NOCC on the named defendant(s) within 12 months of filing. This 12-month period can be extended if the defendants have not been served with the NOCC in the requisite period of time. In such case, the plaintiff must bring an application to renew the NOCC. The NOCC can be renewed for a period of not more than 12 months at a time.

In Fast Fuel Services Ltd. v. Michelin North America (Canada) Inc., 2008 BCCA 216 [Fast Fuel] at para. 9, the Court set out the factors to consider in such applications. These are:

1) Whether the application to renew was made promptly;
2) Whether the defendant had notice of the claim before the notice of civil claim expired;
3) Whether the defendant was prejudiced;
4) Whether the failure to effect service was attributable to the defendant; and
5) Whether the plaintiff, as opposed to the plaintiff’s solicitors, was at fault.

The promptness of the application and the prejudice to the parties are measured as of the date of the discovery of the error: Fast Fuel at para. 17.

In determining whether to grant a renewal, courts should primarily be concerned with: (1) the rights of the litigants, and not with the conduct and failures of their solicitors; and (2) ensuring that the outcome would not create a substantial injustice to either the plaintiff or the defendant: Sutherland v. McLeod, 2004 BCCA 653 at paras. 28-29; see also Stuart v. Patterson, 2010 BCSC 1236 at para. 13.

The plaintiff has a high duty of disclosure, and a failure to provide full and frank disclosure may result in the setting aside of the order made: Politeknik Metal San ve Tic A.S. v. AAE Holdings Ltd., 2015 BCCA 318.

Disposing of Human Remains

I was contacted about a matter related to the disposition of human remains as a result of an estranged spouse refusing to release the body to be disposed of in accordance to a certain religious rite.

I advised that the answer was in section 5 of the Cremation, Internment and Funeral Services act RSBC that governs the disposition of human remains and the control of same.

Control of disposition of human remains or cremated remains:

5 (1)Subject to this section and section 8 (3) (b) (i) [requirement for authorization before funeral services or disposition], the right of a person to control the disposition of the human remains or cremated remains vests in, and devolves on, the following persons in order of priority:

(a)the personal representative named in the will of the deceased;
(b)the spouse of the deceased;
(c)an adult child of the deceased;
(d)an adult grandchild of the deceased;
(e)if the deceased was a minor, a person who was a guardian who had care and control of the deceased at the date of death;
(f)a parent of the deceased;
(g)an adult sibling of the deceased;
(h)an adult nephew or niece of the deceased;
(i)an adult next of kin of the deceased, determined on the basis provided by section 23 (5) of the Wills, Estates and Succession Act;
(j)the minister under the Employment and Assistance Act, or if the Public Guardian and Trustee is administering the estate of the deceased under the Wills, Estates and Succession Act, the Public Guardian and Trustee;

(k)an adult person having a personal or kinship relationship with the deceased, other than those referred to in paragraphs (b) to (d) and (f) to (i).

(2)If the person at the top of the order of priority set out in subsection (1) is unavailable or unwilling to give instructions, the right to give instructions passes to the person who is next in priority.

(3)If, under subsection (1), the right to control the disposition of human remains or cremated remains passes to persons of equal rank, the order of priority

(a)is determined in accordance with an agreement between or among them, or
(b)in the absence of an agreement referred to in paragraph (a), begins with the eldest of the persons and descends in order of age.
(4)A person claiming that he or she should be given the sole right to control the disposition of the human remains or cremated remains may apply to the Supreme Court for an order regarding that right.

(5)When hearing an application under subsection (4), the Supreme Court must have regard to the rights of all persons having an interest and, without limitation, give consideration to

(a)the feelings of those related to, or associated with, the deceased, giving particular regard to the spouse of the deceased,
(b)the rules, practice and beliefs respecting disposition of human remains and cremated remains followed or held by people of the religious faith of the deceased,
(c)any reasonable directions given by the deceased respecting the disposition of his or her human remains or cremated remains, and
(d)whether the dispute that is the subject of the application involves family hostility or a capricious change of mind respecting the disposition of the human remains or cremated remains.

(6)Despite subsections (1) to (3), if the Supreme Court makes an order in favour of a person who has applied to it under subsection (4), that person is deemed to be at the top of the order of priority set out in subsection (1).

In Kartsonas v Kartsonas 2010 BCCA 336 the appeal court dismissed an appeal from an order granting the testator’s children the sole control of the disposition of their father’s remains. The children unlike the opposing testator’s niece , wanted a religious burial in accordance with Greek Orthodox religion.

The niece opposed to the application on the basis that the testator had been estranged from his children and had trusted the burial arrangements to her, and she argued that he was an atheist and therefore would not have wanted a religious funeral.

The appeal court held that the decision was discretionary as the judge consider the evidence before him, and concluded that the rights of all persons having an interest fell, on balance, in favor of the wishes of the deceased family members who wanted a religious funeral.

Section 5(1 ) Cremation, Internment and Funeral Services act sets out the order of priority of persons to control the disposition of the remains of a deceased person.

The first priority is given to the personal representative named in the will of the deceased.

The next following priorities are given to the spouse of the deceased and the adult children of the deceased.

S 5(4) of the act authorizes an application to be made by a person claiming that he or she should be given the sole right to control the disposition of the remains of a deceased person.

S. 5(6) provides that if such an applicant is successful, then he or she is deemed to be at the top of the order of priority.

While clause C of section 5 (5) provides that reasonable directions given by the deceased person are to be taken into account on an application under section 5(4), it is not determinative, and is only one factor to be taken into account by the court

The appeal court held that the trial judge properly exercised his discretion, having regard to the provisions of section 5(5) and he rightly concluded that the rights of all persons having an interest fell on balance in favor of the wishes of the deceased family members who wanted a religious funeral.

Vexatious Litigants

Universe Emotions v. Forslund, 2021 BCSC 812 is an excellent example of the courts shutting down the continued court filings of a vexatious litigant without leave of the court.

The high emotions often on display in family and estate litigation can on occasion send some litigants into a frenzy of court applications or court actions.

Section 18 of the Supreme Court Act provides that:

18 If, on application by any person, the court is satisfied that a person has habitually, persistently and without reasonable grounds, instituted vexatious legal proceedings in the Supreme Court or in the Provincial Court against the same or different persons, the court may, after hearing that person or giving him or her an opportunity to be heard, order that a legal proceeding must not, without leave of the court, be instituted by that person in any court.

In Rose v. Canada (Royal Canadian Mounted Police), 2009 BCSC 1750 at para. 27, Justice Macaulay, citing Brown at paras. 47 and 48, describes s. 18 as requiring two elements to be established:

  1. there must be proceedings that are vexatious in the sense of being annoying, irritating, distressing, or harassing, and brought without reasonable grounds. Second, there must be a knowing and deliberate repetition or continuation of vexatious conduct.

2. The second element is objective. The litigant need not have appreciated that the conduct was vexatious, so long as a reasonable person in the same position would have: Brown at para. 48; Rose at para. 30.

Section 18 mandates a consideration of the entirety of the person’s litigation history, with the ultimate question being whether the litigant has “taken himself over the line”: Lindsay v. Canada (Attorney General), 2005 BCCA 594 at para. 26.

As illustrated in Carten v. Carten, 2015 BCCA 201 at para. 32, our Court of Appeal has endorsed the list of non-exhaustive factors originally articulated by Henry J. in Re Lang Michner and Fabian (1987), 37 D.L.R. (4th) 685 (Ont. H.C.J.), for consideration. Those factors are as follows:

a) the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding;
b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;
c) vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;
d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;
e) in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action;
f) the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious; and
g) the respondent’s conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.

h)  the practice of filing vast amounts of materials to no apparent purpose, as recognized by this Court in Holkhold v. Gerbrandt, 2017 BCSC 1249 at paras. 43–46.

Section 18 also entitles the court take litigation conduct into consideration: Semenoff Estate v. Semenoff, 2017 BCCA 17.

In Semenoff Estate, the strategy noted was that of making of grave allegations without any proof in support of them (para. 33).

In Dawson v. Dawson, 2014 BCCA 44, the Court of Appeal took into account the litigant’s improper conduct toward and harassment of the other party’s counsel in relation to the proceedings (paras. 23–26).

[ Conduct of a litigant before the Court of Appeal may be considered: Hokhold at para. 38–42; De Silva v. Fraser Health Authority, 2013 BCSC 659 at paras. 48–50; as may conduct before administrative tribunals: Bajwa v. British Columbia Veterinary Medical Association, 2012 BCSC 878 at paras. 207 and 211; AWM Rafique v. AWM-Alliance Real Estate Group Ltd., 2019 BCSC 247 at para. 48.

An order under s. 18 imposes a limit on the generally unrestricted right of access to the courts and, as such, is never lightly made. That said, where warranted, the order not only protects the legitimate rights and interests of the applicants, but safeguards the public right of access by reducing court time spent on matters lacking merit: S.(M.) v. S.(P.I.) (1998), 60 B.C.L.R. (3d) 232 (C.A.) at para. 13.

As observed by Justice Southin in Household Trust Co. v. Golden Horse Farms Inc., 1992 CanLII 420 (B.C.C.A.), there is a duty to make such an order where appropriate:
In my opinion, the Supreme Court of British Columbia has an inherent jurisdiction and a corresponding duty to exercise that jurisdiction to protect [an applicant] who seeks relief in that Court from proceedings by [an opposing party] who is vexatiously abusing the process of the court. That it is a jurisdiction to be exercised with great caution, I have no doubt. But not to exercise it where there is no other way to bring reason into proceedings is, in effect, to deprive the [applicant] of justice according to law. The court if it fails to act becomes but a

Hand Alterations to 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.

Polyamorous Triad Registered as Child’s Parents

British Columbia Birth Registration No. 2018-xx-xx5815  2021 BCSC 767 ordered the three members of a polyamorous “triad”  to be registered as the three parents of a new born baby. The three petitioners commenced living in a committed polyamorous relationship in 2017.

 

In the fall of 2018 the biological parents had a child and by reason of the provisions of the Family Law act, they are the only legal parents registered on the child’s birth registration.

The three of them however have been equally involved in the child’s caregiving , love and nurturing and they have gone on trips together as a family to visit all of the three petitioner’s families.

 

The court awarded the third party to the triad be registered on the birth registration as a legal parent.

 

S.26 Family law act stipulates that if a child is born through sexual intercourse then the child’s parents are the birth mother and the child’s presumed biological father.

 

S. 30 allows for three legal parents if there is a written agreement as to such. This would probably more likely happen in assisted reproduction circumstances

 

S. 31 Family Law act sets out the circumstances in which the court may make a parentage declaration, but the law requires there to be a dispute or uncertainty before exercising that statutory jurisdiction. Re Family Law Act 2016 BCSC22 at paras. 42-43.

 

There was no uncertainty or dispute about parentage in the petition.

PARENS PATRIAE JURISDICTION

 

The court’s parens patriae jurisdiction may be used to bridge a legislative gap. A.A. v B.B. 2007 ONCA 2 at para. 27, and can do so from changing social conditions.

Here the judge found that there was a gap in the Family Law act with regard to children conceived through sex who have two or more parentn .

 

TO remedy the gap pursuant to S 1923) of the FLA, exercised the courts parens patria and declared the three petitioners as the child’s legal parents.

 

PARENTAGE DECLARATIONS

 

 In the said AA v BB decision, A.A., B.B. and C.C. sought to have A.A.’s motherhood recognized to give her all the rights and obligations of a custodial parent. Legal recognition of her relationship with her son would also determine other kindred relationships. In their very helpful factums, the M.D.R. Intervenors and the Children’s Lawyer summarize the importance of a declaration of parentage from the point of view of the parent and the child:

• the declaration of parentage is a lifelong immutable declaration of status;

• it allows the parent to fully participate in the child’s life;

• the declared parent has to consent to any future adoption;

• the declaration determines lineage;

• the declaration ensures that the child will inherit on intestacy;

• the declared parent may obtain an OHIP card, a social insurance number, airline tickets and passports for the child;

• the child of a Canadian citizen is a Canadian citizen, even if born outside of Canada (Citizenship Act, R.S.C. 1985, c. C-29, s. 3(1)(b));

• the declared parent may register the child in school; and

• the declared parent may assert her rights under various laws such as the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A., s. 20(1)5.

      Perhaps one of the greatest fears faced by lesbian mothers is the death of the birth mother. Without a declaration of parentage or some other order, the surviving partner would be unable to make decisions for their minor child, such as critical decisions about health care: see M.D.R. at para. 220. As the M.D.R. Intervenors say: “A declaration of parentage provides practical and symbolic recognition of the parent-child relationship.” …

 

Typical Signs of Dementia

Typical Signs of Dementia

1. Short Term Memory Loss:

Everyone nervously laughs when they walk into a room and can’t remember the reason for doing so, but short-term memory loss is a far different matter and is a telltale indication of possible dementia.

Short-term memory loss is typically the first symptom that others pick up on and typically relates to items such as:

• Repeatedly asking the same question
• repeatedly telling the same story or joke
• seemingly having a long-term memory, but subject to verification.

 

2. Depression

• Many seniors suffer from depression and the difficulty with a demented person is that they may not realize they are depressed. Signs of depression can be loss of interest in activities, hobbies, and other people, trouble concentrating, isolation and general apathy.

 

3. Anxiety

Anxiety and general agitation can be caused by a number of different medical conditions, but anyone who is suffering from dementia is experiencing a profound loss of their ability to understand and function properly, and thus it can be frightening and anxiety provoking. Changes in residences, environment, caregiver arrangements, and other related matters can cause confusion and anxiety.

 

4. Difficulty Finding Words or Communicating

• People with the most common types of dementia, such as Alzheimer’s disease and vascular dementia often have aphasia, which can cause difficulty in finding words, and remembering the names of people they know well.

5. Reasoning and Problem Solving

• The accumulated effect of the decline in communication, learning, remembering, and problem solving may occur either quickly or very slowly over time depending on which area of the brain is affected.

6. Difficulty Performing Common Tasks

• having dementia can make many everyday tasks increasingly problematic. This can range from everything from choosing your clothing and dressing oneself to using a coffee machine and everything in between. After having performed many of these tasks innumerable times, it suddenly becomes problematic, and many people begin to hide their problems at this point.

7. Coordination and Motor Impairment

• similarly, many common tasks such as buttoning a button, removing the lid, or even chewing and swallowing can become increasingly difficult

 

8. Confusion and Disorientation

 

• In the earlier stages, the confusion and disorientation may be quite mild, but will typically become more severe over time, so that it can become difficult and recalling recent events, making decisions or understanding what others have stated.

 

9. Personality Changes

It is not uncommon for passive people to become more violent or other such notable significant personality changes.

 

10. Inappropriate Behavior

It is not uncommon for demented people to act or talk inappropriately, such as saying hurtful things to loved ones .

11 Paranoia

It is not uncommon for demented people to become suspicious of those around them, and accuse them of theft of items such as a saucer or cup, or alleging infidelity or other improper behavior.

12. Spatial Problems

• Getting lost while driving is often an indication of a confused mind. The degree of the demented is probably worse if one becomes lost in their own neighborhood