Category: Uncategorized

Chattel or Fixture?

Executors occasionally when selling estate assets run into the “age-old” issue of whether the asset a chattel or a fixture to the land.

The legal test for determining whether an item is a fixture or chattel is set out in the oft followed 1902 decision of Stack v. T. Eaton Co., [1902] 4 O.L.R. 335 at 338, which was followed by our Court of Appeal in La Salle Recreations Ltd. v. Canadian Camdex Investments Ltd., (1969), 4 D.L.R.(3d) 549 (BC CA) [La Salle] at para. 16:

A study of these and other authorities has led me to the conclusion that the principles to be applied are stated accurately by Meredith, C.J., speaking for a Divisional Court in Stack v. T. Eaton Co., [1902] 4 O.L.R. 335 at p. 338 as follows:

I take it to be settled law

(1)That articles not otherwise attached to the land than by their own weight are not to be considered as part of the land, unless the circumstances are such as shew that they were intended to be part of the land.

(2)That articles affixed to the land even slightly are to be considered part of the land unless the circumstances are such as to shew that they were intended to continue chattels.

(3)That the circumstances necessary to be shewn to alter the primâ facie character of the articles are circumstances which shew the degree of annexation and object of such annexation, which are patent to all to see.

(4)That the intention of the person affixing the article to the soil is material only so far as it can be presumed from the degree and object of the annexation.

Haggert v. Town of Brampton (1897), 28 S.C.R. 174, was a dispute between mortgagor and mortgagee where the mortgage charged [p. 179] “‘… all the real estate of them the mortgagors, including all the machinery there was or might thereafter be annexed to the freehold, and which should be known in law as part of the freehold’”. Delivering the judgment of the Supreme Court of Canada King, J., after referring to certain authorities, commented on the object of annexation as follows at p. 182:

In passing upon the object of the annexation, the purposes to which the premises are applied may be regarded; and if the object of setting up the articles is to enhance the value of the premises or improve its usefulness for the purposes for which it is used, and if they are affixed to the freehold even in a slight way, but such as is appropriate to the use of the articles, and showing an intention not of occasional but of permanent affixing, then, both as to the degree of annexation and as to the object of it, it may very well be concluded that the articles are become part of the realty, at least in questions as between mortgagor and mortgagee.

The court in La Salle went on to analyze whether, regardless of the slight degree of annexation of the carpets in question, the goods were affixed to the building for the better use of the goods or for the better use of the building as a building. I quote paras. 23 and 24 of La Salle:

[23] Turning to the object of annexation, the question is whether the goods were affixed to the building, though slightly, for the better use of the goods as goods, or for the better use of the building as a hotel building. Counsel for the respondent pointed out quite correctly, that the question is not whether carpeting is useful or necessary to a hotel, but whether the annexation of the carpets was for the better use and enjoyment of the carpets as such or for the better use of the building as a hotel building. The factors in this case, in addition to others already mentioned, bearing on this question appear to me to be:

1. The unfinished plywood flooring was entirely unsuitable and could not be expected to be used as a floor in a hotel with the character of the Villa Motor Hotel.
2. The under matting and carpeting, if left resting on the plywood by their own weight, would not provide proper floors in such a hotel for reasons of both appearance and utility.
3. The annexation was reasonably required for the completion of the floors as such, having regard to the character and intended use of the areas involved.
4. The evidence shows that in comparable hotels carpeting is quite commonly replaced at intervals of three to five years.
5. It is also established that a ready market exists for used carpeting after its removal.
[24] Weighing all these circumstances, I am of the opinion that the object of the annexation was the better and more effectual use of the building as a hotel and not the better use of the goods as goods. It follows that in my opinion, the carpeting and accessories were annexed to the land in such a manner and under such circumstances as to constitute fixtures within the meaning of s. 12 of the Act.

Royal Bank of Canada v. Maple Ridge Farmers Market Ltd., 1995 CanLII 896 (BC SC) [RBC] at para. 12, in which Mr. Justice Maczko articulated six rules to aid in the application of La Salle:

1) Any item which is unattached to the property, except by its own weight, and can be removed without damage or alterations to the fixtures or land that will need repair, is a chattel.
…
2) Any item which is plugged in and can be removed without any damage or alteration is a chattel.
…
3) Any item which is attached even minimally (i.e. it cannot simply be unplugged) is a fixture.
…
4) If a piece of equipment is attached to a structure, a part of which could be removed but which would be useless without the attached part, then the entire piece of equipment is a fixture. In other words, the item will be a fixture if it losses its essential character because it is of no use unless attached to a permanent and substantial improvement to the premises of which it formed part. The converse is also true. If an item can be detached without damage or alteration, and if the item retains its essential character without the attached part, then it will be a chattel.
…
5) Where an item is determined to be a fixture, it may nevertheless be removed if it can be shown that it is a tenant’s fixture. A tenant’s fixture may be removed from the premises during the currency of the tenancy provided that the tenant leaves the premises in exactly the same condition as he or she received them.
6) In very exceptional circumstances not covered by these rules the court should have resort to the purpose test. For example, a mobile home may be resting on the land by its own weight but it may be clearly established that it was intended to be a fixture. These circumstances should only arise rarely and in relation to very large or expensive items.

When Did Spouses Separate

Sometimes it is necessary in estate litigation to determine when spouses ceased to be in a spousal/marriage like relationship.

The case of CC v SPR 2022 BCSC 1817 reviewed the law relating to the date when parties have separated.

Spouses can separate even if they continue to inhabit the same dwelling. The seminal case of Rushton v. Rushton (1968), 2 D.L.R. (3d) 25, 1968 CanLII 606 (B.C.S.C.) articulated this principle as follows (at 27):

The words “separate and apart” are disjunctive. They mean, in my view, that there must be a withdrawal from the matrimonial obligation with the intent of destroying the matrimonial consortium, as well as physical separation. The two conditions must be met. I hold that they are met here. The mere fact that the parties are under one roof does not mean that they are not living separate and apart within the meaning of the Act. There can be, and I hold that here there has been, a physical separation within the one suite of rooms.
In Nearing v. Sauer, 2015 BCSC 58 [Nearing], the court further clarified that a disagreement between the parties as to their separation does not preclude a judicial finding of separation. Instead, where there is no meeting of the minds on the intention to separate, courts will generally examine whether one party intended to live separate and apart and took “action consistent with that intention”: at para. 54. The court explained that, in practice:

[56] … when the parties dispute the date of separation, the court’s analysis focuses on the generally accepted characteristics of marriage including the intention to remain married, having sexual involvement, carrying on activities in public, sharing financial resources and sharing significant family events … The court will also consider a range of other factors, including a clear statement by one of the parties of his or her desire to terminate the relationship. Sexual involvement, or lack thereof, is not conclusive …
Building on Nearing, the court in H.S.S. v. S.H.D., 2016 BCSC 1300, rev’d on other grounds 2018 BCCA 199 [H.S.S.], reframed the approach to dates of separation as follows:
[40] … The legal framework for determining that spouses have lived separate and apart requires that the Court find, first, an intention of one spouse to repudiate or end the marital relationship and, second, action consistent with that intention. The parties disagree on whether that action must include an unambiguous verbal expression of his or her settled intention.
…
[42] … The Court’s task is to assess objectively, on the totality of the evidence, whether one spouse held a settled intention to separate and communicated that intention through his or her conduct to the other spouse. An express statement is only one of the factors for consideration in what is necessarily a contextual analysis.
The framework articulated in H.S.S. largely mirrors the conclusions of the court in Charen v. Charen, [2018] B.C.J. No. 3152:
[45] In S.A.H. v. I.B.L., 2018 BCSC 544 at paras. 49-54, I reviewed the various authorities respecting the determination of the date of separation. Based on my reading of the authorities, I concluded at para. 55 that this was a fact driven exercise which could be aided by answering the following questions:
1. Did at least one spouse have the intention to separate?
2. Was the intention to separate communicated to the other spouse?
3. Was the intention to separate acted upon? In other words, using generally accepted characteristics of marriage, did one or both spouses take action that is consistent with the separation, such as:
a. changing how they behaved with each other in public; and
b. changing how they behaved with each other in private.
The authorities caution that while the parties’ subjective intentions are relevant, they are not necessarily determinative: O.C. v. K.C., 2016 BCSC 72 at para. 18.

In Bartch at para. 94, the court helpfully summarized a non-exhaustive list of factors to be considered in determining spousal separation, referencing Coupar v. Roh, 2014 BCSC 1392:
• the lack of changes to distinguish the relationship before moving into separate residences and after moving into separate residences: para. 73;
• regular interaction between the parties including occasional dining out or attending events together: para. 74;
• continuing to perform domestic services, cooking, cleaning and laundry: para. 83;
• continuing to attend social functions together: para. 84;
• making gifts to one another: para. 85;
• taking vacations together: para. 86;
• neither party becoming involved in another relationship: para. 87;
• continuing to share the common use of assets: para. 88; and
• whether one party told the other party of the intention to permanently end the relationship: para. 90.

Anonymization and Publication Ban Orders

Anonymization orders and publication bans are exceptional orders and that several competing interests must be balanced by the judge hearing such an application.

These competing interests were considered at length in the leading case of Sherman Estate v. Donovan, 2021 SCC 25. Sherman Estate

In the Supreme Court of Canada decision of Sherman Estate, the court considered whether a sealing order should be granted with respect to a probate file on grounds of privacy.

The Reasons for judgement stated:

[1) This Court has been resolute in recognizing that the open court principle is protected by the constitutionally entrenched right of freedom of expression and, as such, it represents a central feature of a liberal democracy. As a general rule, the public can attend hearings and consult court files and the press — the eyes and ears of the public — is left free to inquire and comment on the workings of the courts, all of which helps make the justice system fair and accountable.

[2] Accordingly, there is a strong presumption in favour of open courts. It is understood that this allows for public scrutiny which can be the source of inconvenience and even embarrassment to those who feel that their engagement in the justice system brings intrusion into their private lives. But this discomfort is not, as a general matter, enough to overturn the strong presumption that the public can attend hearings and that court files can be consulted and reported upon by the free press.

[3] Notwithstanding this presumption, exceptional circumstances do arise where competing interests justify a restriction on the open court principle. …

[7] With respect to limitations on court openness, as stated at para. 38:

[38] The test for discretionary limits on presumptive court openness has been expressed as a two step inquiry involving the necessity and proportionality of the proposed order (Sierra Club, at para. 53). Upon examination, however, this test rests upon three core prerequisites that a person seeking such a limit must show. Recasting the test around these three prerequisites, without altering its essence, helps to clarify the burden on an applicant seeking an exception to the open court principle.

In order to succeed, the person asking a court to exercise discretion in a way that limits the open court presumption must establish that:

(1) court openness poses a serious risk to an important public interest;
(2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and,
(3) as a matter of proportionality, the benefits of the order outweigh its negative effects.

Only where all three of these prerequisites have been met can a discretionary limit on openness — for example, a sealing order, a publication ban, an order excluding the public from a hearing, or a redaction order — properly be ordered. This test applies to all discretionary limits on court openness, subject only to valid legislative enactments …

[8] As the court noted at para. 31, privacy can in some circumstances ground an exception to the openness principle. However, some degree of privacy loss resulting in inconvenience and even upset or embarrassment is inherent in any court proceeding open to the public. The question of when a privacy interest is sufficient to give rise to an exception to court openness is discussed at para. 33:

[33] Personal information disseminated in open court can be more than a source of discomfort and may result in an affront to a person’s dignity. … Dignity in this sense is a related but narrower concern than privacy generally; it transcends the interests of the individual and, like other important public interests, is a matter that concerns the society at large. A court can make an exception to the open court principle, notwithstanding the strong presumption in its favour, if the interest in protecting core aspects of individuals’ personal lives that bear on their dignity is at serious risk by reason of the dissemination of sufficiently sensitive information. The question is not whether the information is “personal” to the individual concerned, but whether, because of its highly sensitive character, its dissemination would occasion an affront to their dignity that society as a whole has a stake in protecting.

[63] Specifically, in order to preserve the integrity of the open court principle, an important public interest concerned with the protection of dignity should be understood to be seriously at risk only in limited cases. Nothing here displaces the principle that covertness in court proceedings must be exceptional. Neither the sensibilities of individuals nor the fact that openness is disadvantageous, embarrassing or distressing to certain individuals will generally on their own warrant interference with court openness … These principles do not preclude recognizing the public character of a privacy interest as important when it is related to the protection of dignity. They merely require that a serious risk be shown to exist in respect of this interest in order to justify, exceptionally, a limit on openness, as is the case with any important public interest under Sierra Club. As Professors Sylvette Guillemard and Séverine Menétrey explain, [translation] “[t]he confidentiality of the proceedings may be justified, in particular, in order to protect the parties’ privacy . . . . However, the jurisprudence indicates that embarrassment or shame is not a sufficient reason to order that proceedings be held in camera or to impose a publication ban” (Comprendre la procédure civile québécoise (2nd ed. 2017), at p. 57).
[11] At paras. 73-76, Justice Kasirer concluded that:
[73] I am accordingly of the view that protecting individuals from the threat to their dignity that arises when information revealing core aspects of their private lives is disseminated through open court proceedings is an important public interest for the purposes of the test.
[74] Focusing on the underlying value of privacy in protecting individual dignity from the exposure of private information in open court overcomes the criticisms that privacy will always be at risk in open court proceedings and is theoretically complex. Openness brings intrusions on personal privacy in virtually all cases, but dignity as a public interest in protecting an individual’s core sensibility is more rarely in play. Specifically, and consistent with the cautious approach to the recognition of important public interests, this privacy interest, while determined in reference to the broader factual setting, will be at serious risk only where the sensitivity of the information strikes at the subject’s more intimate self.

[75] If the interest is ultimately about safeguarding a person’s dignity, that interest will be undermined when the information reveals something sensitive about them as an individual, as opposed to generic information that reveals little if anything about who they are as a person. Therefore the information that will be revealed by court openness must consist of intimate or personal details about an individual …

[76] The test for discretionary limits on court openness imposes on the applicant the burden to show that the important public interest is at serious risk. Recognizing that privacy, understood in reference to dignity, is only at serious risk where the information in the court file is sufficiently sensitive erects a threshold consistent with the presumption of openness. This threshold is fact specific. …

[12] The question of whether a serious risk to a privacy interest, sufficiently sensitive to strike at an individual’s biographical core, is made out is a case specific matter to be determined in the full factual context of the case: Sherman Estate at para. 79.
Issue

Standing in Partition – Possessory Interest Required

Pallot v Douglas 2017 BCCA 254 dismissed an appeal and held that the appellant did not have standing to apply for partition of a leasehold interest in trust property owned by the Convention of Baptist Churches of British Columbia as the applicant did not have the right to a possessory interest in the lands.

To have standing under the Partition of Property Act a petitioner must have a possessory interest in land.

A possessory interest is:
The present right to control property, including the right to exclude others, by a person who is not necessarily the owner … A present or future right to the exclusive use and possession of property.
Black’s Law Dictionary, 8th ed, sub verbo “possessory interest”.

The possessory interest requirement has been characterized as requiring the petition to have an immediate right to possession of the land:

Although the statutory language in the Ontario Partition Act, R.S.O. 1990, c. P.4, differs, it has been held in Ontario that only persons entitled to immediate possession of an estate in property may make application for partition and sale: Di Michele v. Di Michele, 2014 ONCA 261 at paras. 75 80; Morrison v. Morrison (1917), 39 O.L.R. 163 at 168, 171 72, 34 D.L.R. 677 (Ont. C.A.); and Ferrier v. Civiero (2001), 147 O.A.C. 196 at paras. 6 and 8, 42 R.P.R. (3d) 12 (C.A.)

One of the essential features of a trust is that one or more parties hold title to property and manage it for the benefit of one or more parties who have a right to enjoy the property. The beneficiaries under the trust enjoy the property subject to the terms of the trust.

Professor Waters describes the principle as follows:

The trust is, perhaps, better described by isolating its essential features. The hallmarks, the essential characteristics of the common law trust, are heavily reflective of a particular legal history. The foremost of these is the fiduciary relationship which exists between trustee and beneficiary. One party holds the title to property, and manages it, for the benefit of another who has exclusive enjoyment of the property. As we have seen, it is possible to have a variation on this basic framework, for the trustee may himself be a beneficiary. In that case he will have a share in the enjoyment….

Donovan W.M. Waters, Mark Gillen & Lionel Smith, Waters’ Law of Trusts in Canada, 4th ed. (Toronto: Thomson Reuters, 2012) at 9.

There are both personal and propriety aspects to a beneficiary’s rights under a trust. The proprietary aspect concerns a beneficiary’s rights to pursue trust property as against, for example, a buyer with actual or constructive notice of the trust. With respect to the personal aspect of a beneficiary’s right, Professor Oosterhoff says this:

If we consider first the personal aspect of the beneficiary’s right, it will be apparent that, since the management and control of the trust property is vested in the trustee, the beneficiary only has a personal right against the trustee that the latter perform the trusts that he is bound to perform. The beneficiary can never “go around” the trustee and assert a claim to the trust property directly. On the contrary, the beneficiary’s claim must always be against the trustee….

…only the trustee, and not the beneficiary, has the right and the duty to make claims against third parties who may have interfered with or damaged the trust property….
A.H. Oosterhoff, Robert Chambers & Mitchell McInnes, Oosterhoff on Trusts: Text, Commentary and Materials, 8th ed. (Toronto: Carswell, 2014) at 38.

The interest of the beneficiary under a trust is the right to claim that the trust be performed in accordance with its terms. It is not an immediate right to possession of the trust property.

This position was clearly shown in relation to a beneficiary’s equitable interest in Taylor v. Grange (1879), 13 Ch. D. 223, aff’d (1880), 15 Ch. D. 165 (C.A.). In Taylor, Fry J. held there was no jurisdiction to order partition at the request of a beneficiary with an equitable estate in the trust property, which was held under a trust for management of real property created by a will. Mr. Justice Fry reasoned at 227:

… For if I were to decree partition I should be putting an end to the active trusts which the testator has directed to be carried on during the lives of his daughters. The effect would be to stop the business of working the quarries and to divide the property in a manner inconsistent with the exercise of the powers given to the trustees.
No doubt an equitable owner may obtain a decree for partition if he be entitled to call for a legal estate, which would have entitled him to partition at common Law. But that is not this case, and I should be doing wrong here to make a decree for partition, the result of which, as no conveyances could be at present executed, would be to cause the trusts of the will to be administered separately as to the different persons entitled.

Fiduciary Obligations of Attorney Increase If Donor Incompetent

In Zeligs v Janes 2015 BCSC 525 the court examined the breach of fiduciary duty of two powers of attorney for a mentally incompetent donor who both personally financially profited with the use of the power of attorney by taking two mortgages out on jointly owned property with the donor, selling the property and keeping the net funds for themselves.

The fiduciary obligations of an attorney become elevated once the donor of the power becomes incapable.

This is described by the Ontario Court of Appeal as follows (Richardson Estate v. Mew, 2009 ONCA 403):

48. In Banton [Banton v. Banton (1998), 164 D.L.R. (4th) 176 (Ont. Sup. Ct.)], Cullity J. held that while an attorney acting under a continuing power of attorney is always a fiduciary, the scope of the attorney’s fiduciary duties depends on whether the donor of the power is incapable at the time of the transaction. If the donor is mentally incapable, the attorney’s position approaches that of a trustee. …

49. As a fiduciary, Ms. Ferguson was obliged to act only for the benefit of Mr. Richardson, putting her own interests aside: see Ermineskin Indian Band and Nation v. Canada, [2009] 1 S.C.R. 222, at para. 125.

In British Columbia (Public Guardian and Trustee of) v. Elgi, 2004 B.C.J. No. 796, 28 B.C.L.R. (4th) 375 (S.C.) aff’d [2005] B.C.J. No. 2741, 262 D.L.R. (4th) 208 (C.A.), Garson J. described the prohibition against using a power for the attorney’s profit, benefit or advantage, at para. 82, in the following way:

It is the attorney’s duty to use the power only for the benefit of the donor and not for the attorney’s own profit, benefit or advantage. The attorney can only use the power for his or her own benefit when it is done with the full knowledge and consent of the donor. I am not aware of any authority that detracts from this principle in circumstances where the benefit is conferred on family members.
…

BC Estate Lawyer-Marriage Like Relationships

Trevor Todd and Jackson Todd have been practicing law in the area of contested estates for over sixty combined years, including the enormous range in what are now considered to be marriage like relationships.

Mother 1 v Solus Trust et al 2021 BCCA 461 reviewed the law on marriage like relationships and concluded that Mother 1 was not a spouse within the meaning of WESA.

Mother 1 was not married to the deceased and thus had to prove on a civil standard that she lived with him in marriage like relationship for at least 2 years.

The trial judge instructed himself on the definition of a marriage like relationship and described it as an “elastic” concept and one that engages a multi faceted analysis .

He enumerated various factors for consideration, citing the often-referred to case of Molodowich v. Penttinen, [1980] O.J. No. 1904, 1980 CanLII 1537 (Dist. Ct.). He noted that the list of factors delineated in Molodowich “cover virtually every aspect of life a couple could engage in together”

Relying on Weber v. Leclerc, 2015 BCCA 492, he cautioned himself against taking a “checklist approach” to the issue before him. Instead, it was his obligation to consider the matter “holistically” and to examine all relevant factors in deciding whether there was a marriage like relationship of at least two years between Mother 1 and the deceased.

The judge specifically noted that a legal capacity to marry is not a prerequisite to finding a marriage like relationship . Nor is financial dependence .
The parties do not have to co reside .

Their subjective intentions are considered; however, one party’s denial of an intention to enter into or remain in a marriage like relationship is not fatal to the analysis. Instead, the credibility of that denial will be tested against objective indicators and may not be believed if “all of the surrounding circumstances strongly imply the contrary” (at paras. 140–42, citing Dey v. Blackett, 2018 BCSC 244 at para. 235 and other cases).

The determination of a marriage like relationship (or not) is a question of mixed fact and law that requires a broad approach- ( Weber v Leclerc)

After the judge rendered his verdict, this Court released its decision in Robledano v. Queano, 2019 BCCA 150, in which it held that the requisite two years of a marriage like relationship need not immediately precede the intestate’s death:

[40] Paragraph 2(1)(b) of the statute uses the past perfect tense (“had lived together”) rather than the past continuous tense (“were living together”). The ordinary grammatical meaning of paragraph 2(1)(b) is that in order for a person who was not married to the deceased to be their spouse, the two must have lived together in a marriage like relationship for two years, but not necessarily for the two years immediately preceding the deceased’s death. In contrast to paragraph 2(1)(b), paragraph 2(1)(a) uses the past continuous tense (“were married”) rather than the past perfect tense (“had been married”). The statute is professionally drafted and the use of these different tenses should be presumed to be deliberate.

However, a WESA claimant and the intestate must remain spouses at the time of the death in order to advance a claim: Robledano at para. 43.
If the parties ceased to be spouses before the intestate’s death because their marriage like relationship was “terminated” by one of them, there will be no legal entitlement to advance a claim against the estate as a spouse (s. 2(2)(b)).

According to Robledano, in deciding whether a party has terminated the marriage like relationship, a judge must:

[55] … consider the expressed and implicit intentions of each spouse, as well as the objective evidence concerning the subsistence of the relationship. The determination is a “judgment call” for the trial judge – the application of a broad legal standard to the factual circumstances of an individual case. It is a question of mixed fact and law. Where a trial judge has correctly identified the standard, and has not made any palpable and overriding error in applying it, deference to the trial judge’s decision is required: Housen v. Nikolaisen, 2002 SCC 33.

The intention of the parties is a factor that must be considered” in deciding whether a relationship was marriage like (at para. 141). Evidence of “mutual intent” to be in a relationship of an indeterminate or lengthy duration is likely to carry significant weight in the analysis (at paras. 141–42). However a finding of mutual intent is not a prerequisite to finding that a marriage like relationship existed at law. It was explained this way in Weber:

[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”.

Mental Capacity to Make a Will

Jung Estate v Jung Estate 2022 BCSC 1298 reviewed the law on mental ( testamentary) capacity to make a will and found the will invalid.

The most frequently quoted test for testamentary capacity is the English decision of Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 (Eng. Q.B.) at 567, which remains relevant today.

To prove that a will-maker had testamentary capacity, the proponent of the will must lead evidence that establishes that the will-maker:

a) understood the nature of the act of making a will and its effects;
b) understood the extent of the property of which he or she is disposing;
c) was able to comprehend and appreciate the claims to which he or she ought to give effect; and
d) had no disorder of the mind or insane delusion that influenced his or her making of the will.

Laszlo v Lawton 2013 BCSC 305 at para. 188; Halliday v haklliday Estate 2019 BCCA 554 at para. 26.

This test was restated in modern times in Schwartz v. Schwartz (1970), 10 D.L.R. (3d) 15 at 32 (Ont. C.A.) ,aff’d [1972] S.C.R. 150 [Schwartz] as the will-maker must be sufficiently clear in his or her understanding and memory to know, on their own: the nature and extent of their property; the persons who are the natural objects of their bounty; the testamentary provisions they are making; and they must be capable of appreciating those factors in relation to each other and forming an orderly desire as to the disposition of their property: Laszlo at para. 188.

While will-makers are not expected to know the composition of their estate assets and their respective values in an exact manner “with the metronomic precision of an accountant”, they must have an appreciation of the general nature of their assets and an understanding of their extent. An appreciation of the value of their assets, expressed either in terms of dollars or quantitatively, will suffice: Laszlo at paras. 242 – 249; Henderson v. Myler, 2021 BCSC 1649 at para. 107.

Testamentary capacity is neither a medical concept nor a diagnosis, but rather is a legal construct. While medical evidence may be relevant it is not conclusive in determining the existence of testamentary capacity at the critical times: Laszlo at para. 198; Halliday at para. 29. Whether a will-maker possessed testamentary capacity at the necessary times is a question of fact, to be determined from all of the circumstances: Laszlo at para. 197. A critical and meaningful analysis is required to determine testamentary capacity: Halliday at para. 29. The authorities establish that in assessing testamentary capacity, the evidence of the drafting solicitor, who took instructions and prepared the will, is often given considerable weight, particularly where that person is an experienced wills and estates lawyer: Benekritis v. Gilbert Estate, [1998] B.C.J. No. 171at paras. 41 – 43.

Testamentary capacity requires a “disposing mind and memory” which is described as “one able to comprehend, of its own initiative and volition, the essential elements of will-making, property, objects, just claims to consideration, revocation of existing disposition, and the like …”: Laszlo at para. 194, quoting from Leger v. Poirier, [1944] S.C.R. 152 at 161 [Leger]. Merely being able to provide rational responses is not sufficient or conclusive of capacity; rather, “there must be a power to hold the essential field of the mind in some degree of appreciation as a whole”: Leger at 162.

Bull Estate v. Bull, 2015 BCSC 136 at para. 114 [Bull] held that the test for testamentary capacity is not “overly onerous” and that the presence of cognitive deterioration may not preclude testamentary capacity. Testamentary capacity may be present even if the will-maker is incapable of managing other aspects of his or her life: Halliday at para. 28. However, a disposing mind and memory is “one able to comprehend, of its own initiative and volition, the essential elements of will making, property, objects, just claims to consideration, revoking dispositions and the like”: Moore v. Drummond, 2012 BCSC 1702 at para. 34, citing Leger at 161; Bull at para. 115.

A will-maker must have testamentary capacity when they give instructions for their will, and when they review and execute the will. However, as mental capacity can fluctuate, the case law permits a variation of the degree required at these two key times; for example, if a will-maker is competent to give instructions, but not competent at the time the will is executed, it may nonetheless be valid so long as at the time of execution the will-maker was capable of comprehending she was executing a will drawn in accordance with her prior instructions: Laszlo at para. 189.

Notice of Claim Struck for Tedious Length ( Prolixity)

Action4 Canada v BC Attorney General 2022 BCSC 1507 involved a 391 page Notice of Claim that was struck in it’s entirety for prolixity.

The notice of claim was mostly covid anti vaccination “propaganda”.

The Oxford English Dictionary defines “prolix” as writing that is “tediously lengthy”. At 391 pages, the NOCC is clearly prolix.

Prolixity can warrant striking a claim pursuant to R. 9-5(1), which reads:

Scandalous, frivolous or vexatious matters

(1) At any stage of a proceeding, the court may order to be struck out or amended the whole or any part of a pleading, petition or other document on the ground that

(a) it discloses no reasonable claim or defence, as the case may be,

(b) it is unnecessary, scandalous, frivolous or vexatious,

(d) it is otherwise an abuse of the process of the court,

and the court may pronounce judgment or order the proceeding to be stayed or dismissed and may order the costs of the application to be paid as special costs.

[34] The defendants submit the NOCC’s prolixity renders it scandalous within the meaning of subrule 9-5(1)(b). The defendants also submit that prolixity falls under subrule 9-5(1)(c) and constitutes a further basis to strike:

a) Pleadings are embarrassing where they are prolix, contain argument, or fail to state the real issue in an intelligible way: Sahyoun v. Ho, 2015 BCSC 392 at para. 62 [Sahyoun].

b) Regardless of the subrule, the law is clear that prolixity can be a basis for striking where the pleadings are prolix and confusing or they render it impossible for the opposing party to know the case they must meet: The Owners, Strata Plan LMS3259 v. Sze Hang Holding Inc., 2009 BCSC 473 at para. 36.

c) In certain cases, the pleadings are so overwhelmed with difficulties that it will not be possible to categorize them into specific subparagraphs of R. 9-5(1): see, for instance, Sahyoun at para. 64.

The defendants submit that, more important than the length of the NOCC is the unlimited scope of the document. It is not a piece of legal drafting that complies with the Rules, or basic tenets, of pleading. It is not a document that can be properly answered in a response to civil claim. The defendants submit that those problems arise, in part, because there are multiple allegations against the defendants individually and jointly.

It would be extremely difficult, if not impossible, for any individual defendant to determine whether it is required to respond to any particular allegation. Were the action to proceed in its current form, individual defendants would not be in a position to know whether they were tasked with a burden of disproving or countering the myriad allegations. They would not know what case they were required to meet.

In Mercantile Office Systems Private Limited v. Worldwide Warranty Life Services Inc., 2021 BCCA 362 [Mercantile] wherein Voith J.A. wrote, in relation to the requirements of pleadings:

” Nevertheless, none of a notice of claim, a response to civil claim, and a counterclaim is a story. Each pleading contemplates and requires a reasonably disciplined exercise that is governed, in many instances in mandatory terms, by the Rules and the relevant authorities. Each requires the drafting party to “concisely” set out the “material facts” that give rise to the claim or that relate to the matters raised by the claim. None of these pleadings are permitted to contain evidence or argument.”

The Mercantile claim was only 5 pages and the counter claim 12 pages.

The NOCC also breached other tenets of pleading. Among other problems: it pleads evidence, includes non-justiciable claims and alleges criminal conduct by the defendants.

These deficiencies fall largely within the scope of R. 9-5(1)(a), in that they disclose no reasonable claim.

…

The Power of Attorney Act

Sazarynick v Skwardchuk 2021 BCSC 443 reviewed how much of the common law re Power of Attorney cases was codified and strengthened in the modern BC Power of Attorney Act of 2008.

The fiduciary obligations that an ad hoc fiduciary attorney would owe in equity have largely been codified in the modern version of the Power of Attorney Act:

For example, s. 19(1) of the PAA now mandates that an attorney must “act honestly and in good faith” and “exercise the care, diligence and skill of a reasonably prudent person”.

Moreover, s. 19(1)(d) requires that an attorney “keep prescribed records and produce the prescribed records for inspection and copying at the request of the adult.”

An attorney is required to act in the “adult’s best interest’s” when managing and making decisions about the adult’s financial affairs: PAA, s. 19(2).

Finally, pursuant to s. 19(4) of the PAA, an attorney must keep their own property separate from the donor’s property.

In a similar vein, the Power of Attorney Regulation, B.C. Reg. 20/2011 (“Regulation”) imposes further obligations on attorneys.

Section 2(1) mandates that an attorney acting under an enduring power “must make a reasonable effort to determine the adult’s property and liabilities as of the date on which the attorney first exercises authority on the adult’s behalf” and “maintain a list of that property and those liabilities.”

Further record keeping obligations are imposed under s. 2(2) of the Regulation, which provides as follows:

(2) An attorney acting under an enduring power of attorney must keep the following records in relation to the period for which the attorney is acting:
(a) a current list of the adult’s property and liabilities, including an estimate of their value if it is reasonable to do so;
(b) accounts and other records respecting the exercise of the attorney’s authority under the enduring power of attorney;
(c) all invoices, bank statements and other records necessary to create full accounts respecting the receipt or disbursement, on behalf of the adult, of capital or income.

In short, the Regulation imposes fairly robust record keeping obligations on those acting under an enduring power of attorney.

The equitable obligations of a fiduciary at common law were well-established by 2008 and it is unnecessary to grapple with the modern statutory regime that has largely codified the common law, or the law of Manitoba, which was neither plead or argued.

The standard of care for an attorney, which has now been codified under s. 19(1) of PAA, was well-established in the case law by 2008.

For example, in Andreasen v. Daniels-Ferrie, 2001 BCSC 1503 at para. 27, the requisite standard of care for a fiduciary acting under a power of attorney was described as follows:
even where the attorney acts gratuitously he or she has a duty to account, to exercise reasonable care as would a typically prudent person managing his or her own affairs, and not act contrary to the interests of the donor.

In sum, the requisite standard of care was already well-established in the case law by 2008.

Multiple Actions Heard At The Same Time

Li v Liang 2021 BCSC 1856 dealt with the legal procedural issue of whether two family cases involving the same parties should be tried together .

The court reviewed the seven criteria discussed in Merritt v Imasco Enterprises Inc (1992) BCJ 160 and Beazley v ICBC 2004 BCSC 1094 and held that the two claims did not have common claims or disputes that would require them to be either consolidated or tried at the same time. The two actions were not so interwoven as to make separate trials undesirable. There would also be prejudice to the plaintiff that would outweigh any potential benefit.

These applications are common in multi motor vehicle claims for example but I opine could be used in estate litigation situation such as the law as set out in Johnston v Johnston that claims involving both the validity of the will and the wills variation claims should not be heard together as the validity of the will should firstly be determined .

For example It would make procedural sense to have the wills variation claim tried right after the validity claim if the will is found to be valid as it is the same parties and the same evidence. I am not aware if this has been done to date.

THE LAW ( Rule 22-5(8)

The application seeks to have a civil action consolidated with or tried at the same time as a family law case. It must be considered under Rule 22-5(8) of the Supreme Court Rules.

That rule applies to proceedings, which include a Supreme Court civil action and any other suit, cause or matter.

It provides:

(8) Proceedings may be consolidated at any time by order of the court or may be ordered to be tried at the same time or on the same day.

The matters the court is to consider on an application pursuant to Rule 22-5(8) are set out in cases that considered the previous rule (Rule 5(8)),
which was identical to the present rule. In Merritt v. lmasco Enterprises Inc.,[1992] B.C.J. No. 160

“ I accept that the foundation of an application under R. 5(8) is, indeed, disclosed by the pleadings. The examination of the pleadings will answer the first
question to be addressed: do common claims, disputes and relationships exist between the parties?

But the next question which one must ask is: are they “so interwoven as to make separate trials at different times before different judges
undesirable and fraught with problems and economic expense”? Webster v.Webster (1979), 12 B.C.L.R. 172 at 182, 10 R.F.L. (2d0 148, 101 D.L.R. (3d) 248(C.A.).

That second question cannot, in my respectful view, be determined solely by reference to the pleadings. Reference must also be made to matters disclosed
outside the pleadings:

(1) Will the order sought create a saving in pre-trial procedures, (in particular, pre-trial conferences)?

(2) Will there be a real reduction in the number of trial days taken up by trials being heard at the same time?

(3) What is the potential for a party to be seriously inconvenienced bybeing required to attend a trial in which that party may have only amarginal interest?

(4) Will there be a real saving in experts’ time and witness fees?

In Beazley v. Insurance Corp. of British Columbia, 2004 BCSC 1091, at paras. 12-13, Madam Justice Kirkpatrick, then a Judge of the Supreme Court
of British Columbia, added the following three factors to the four factors set out Merritt

(5) Is one of the actions at a more advanced stage than the other? . .

.
(6) Will the order result in a delay of the trial of one of the actions and, if so, does any prejudice which a party may suffer as a result of that delay
outweigh the potential benefits which a combined trial might otherwise have?

(7) Is there a substantial risk that separate trials will result in inconsistent
findings on identical issues?

In both Merritt (at para. 19) and Beaziey (at para. 12) the Court indicated that the factors listed above are not intended to be an exhaustivelist, but are to be regarded as some matters to be considered before making an order under the rule. The order should make sense in the overall circumstances of the litigation.