Spouse: Two Year Marriage-Like Relationship

Spouse: Two Year Marriage-Like Relationship

Robledano v Queano 2019 BCCA 150 clarified the law with respect to the definition of spouse after two years living together in a marriage like relationship by stating that there was no necessity for the two years living together need be immediately preceding the deceased’s death.

The appeal court rejected the argument that an unmarried person can only be a spouse of a deceased person if they were living together at the time of death, and for at least two years immediately preceding.

The court referred to the definition of spouse under WESA:

2(1) unless subsection 2 applies, to persons or espouses of each other for the purposes of this act if they were both alive immediately before relevant time and:

a) they were married to each other, or

b) They had lived with each other in a marriage like relationship for at least two years.

(2) to person B been spouses of each other for the purposes of this act if:

A) In the case of a marriage, an event occurs that causes an interest in family property, as defined in part five of the family law act to arise, or

B) in the case of a marriage like relationship, one or both persons terminate the relationship.

To amplify the court’s reasoning as to the meaning of paragraph 2(1) (B) of WESA, the court examined the history of the British Columbia Law Institute, commenced in 2003, known as the Succession Law Reform Project. That project culminated in June 2006, entitled Wills, Estates and Succession: a Modern Legal Framework which was the draft of WESA.

The draft provision for which subsection two derived was in the following terms:

1.(2) for the purposes of this act, to persons or espouses of each other at a relevant time if, immediately before the relevant time, they

a) were married to each other, or have lived and cohabited with each other at anytime for a period of at least two years in a marriage like relationship.

The court seized on the word anytime and stated that there was no reason to believe that any change in the substance of this provision was intended when the draft attached to the institutes report was transformed into a bill.

The court also interpreted the words “had lived together” to be in the past perfect tense rather than the continuous tense  “were living together”. The statue was professionally drafted and the use of the different tenses should be presumed to be deliberate.

Removal of a Judge for Bias

Siemens v Howard 2016 BCSC 2700 discusses the law for removal of a Judge as a result of alleged bias.

In the Siemens decision the trial began but could not be completed within the time available, and a date was set for the continuation. In the interim, the plaintiff brought an application seeking disqualification and removal of the trial judge on the basis of reasonable apprehension of bias, and sought an order that the matter be remitted for a new trial.

The plaintiff’s complaint was that the trial judge worked for seven or eight months in the same firm as plaintiff’s counsel, even though the judge disclosed this fact prior to the trial commencing.

The judge and the lawyer  were not friends, and at best were fleeting workmates.

The application was dismissed as the plaintiff failed to demonstrate, by cogent evidence, serious grounds required to rebut the strong presumption of impartiality by judges.

De Cotiis v De Cotiis 2004 BCSC 17 stated that counsel should not be hesitant in arguing that such an apprehension exists, and to do so is not in any way disrespectful of the judge, but is instead helping to determine whether or not there is a reason for recusal. On the other hand, if there is no reasonable basis for any apprehension of bias, a client’s preference the judge not sit is not of any moment.

The court went on to state that it is the duty of the judge to hear cases that come before him or her, and a party should not be able to unilaterally choose not to have a matter heard by a particular judge simply because that party would prefer that another judge hear the case. If one party, without sound reason, is unable to unilaterally determine that a particular judge will not hear a case, it also tends to bring the administration of justice into disrepute.

A number of decisions have cautioned in the past, that judges must not yield to every angry objection or disgruntled  litigant. Judges have the duty to hear cases that come before them, and the important rights of the other litigants in the action are not to be sacrificed merely to assuage  the anxieties of unhappy parties.  Lesiczka v Shaota 2007 BCSC 479 at para. 23 and GWL Properties LTD v WR Grace of Canada Limited(1992 74 BCLR283 (BCCA)

With respect to the legal test, the Supreme Court of Canada in Roberts v R. 2003 SCC 45 held that the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question, obtaining thereon the required information. In the words of the Court of Appeal, that test is” what would it informed person, viewing the matter, realistically, and practically, and having thought the matter through, conclude. What he or she think that it is more likely than not that the trial judge, whether consciously or unconsciously, would not decide fairly.

This objective test is to ensure not only the reality, but the appearance of a fair adjudicative process. The issue of bias is thus inextricably linked to the need for impartiality. Impartiality in the absence of the bias have developed is both legal and ethical requirements. Judges are required and expected to approach every case with impartiality and an open mind.

Because there is a strong presumption of judicial impartiality that is not easily displaced, the test for a reasonable apprehension of bias requires a real likelihood or probability of bias , and that a judge’s individual comments during a trial not be seen in isolation.

Allegations of perceived judicial bias will generally not succeed unless the impugned conduct, taken in context, truly demonstrates a sound basis for perceiving that a particular determination has been made on the basis of prejudice or generalizations. One overriding principle that arises from these cases is that the impugned comments or other conduct must not be looked at in isolation. Rather, it must be considered in the context of the circumstances, and in light of the whole proceeding

The reasonable person must be informed person, with knowledge of all the relevant circumstances, including the traditions of integrity and impartiality that form a part of the background, and apprised also of the fact that impartiality is one of the duties that judges swear to uphold- R v S (1997) 3 SCR 484 at para.111.

Appealing a Finding of Fact

Court Rewrites Man's Will to Include Daughters

I recently listened to oral argument in the Court of Appeal where the appellant’s counsel raised many significant arguments to the effect that the learned trial judge erred in the decision, only to have the Appeal Court state-that was a finding of fact.

The Court of Appeal on several occasions reminded the appellant counsel that findings of fact by the trial judge are very difficult to successfully appeal given the deference afforded lower court judges who have the opportunity to assess evidence, including cross examination, and determine the credibility of each witness.

In Parton v Parton 2018 BCCA 273 the appellant appealed the decision respecting the value of his business, arguing that the court declined to impose a minority discount on the valuation.

The appeal court confirm that the standard of review for findings of fact is highly deferential, causing an appellate court to interfere with the trial judge’s finding of facts only if there is an obvious and material error saving the Supreme Court of Canada decision Housen v Nikolaisen 2002 SCR 33.

The Supreme Court of Canada emphasize that appellant, in turn, the invention is only justified if the judge has made a manifest error, has ignored conclusive or relevant evidence, has misunderstood the evidence, or has drawn erroneous conclusions.

Toneguzzo Norvell v. Burnaby general Hopsitakl (1994) 1 SCR 114.

S. 52 WESA- The Presumption of Undue Influence

Trudeau v Turpin Estate 2019 BCSC 150 is a recent decision dismissing a claim for undue influence and discussing in particular section 52 WESA and the presumption of undue influence that it sets out.

Section 52 of the Wills, Estates and Succession act WESA provides as follows:
52. In a proceeding, if a person claims that a will or any provision of that resulted from another person

a) Being in a position where the potential for dependents or domination of the will maker was present, and
b) using that position to unduly influence the will maker to make the will or the provision of it that is challenged,

and establishes that the other person was in a position where the potential for the dependents or domination of the will maker was present, the party seeking to defend the will or the provision of it that is challenged or to uphold the gift has the onus of establishing that the person is in the position where the potential for dependents or domination of the will maker was present did not exercise undue influence over the will maker with respect to the will or the provision of it that is challenged.

 

Undue influence is influence which over bears the will of the person influence, so that what he or she does is not his or her own act Longmuir v Holland 2000 BCCA 538 at 71.

 

Rebutting the Presumption of Undue Influence

 

In Stewart v McLean 2010 BCSC 64 the court summarized the legal approach to the question of whether the presumption of undue influence has been rebutted, at paragraph 97:

• To rebut the presumption of undue influence, the defendant must show that the donor gave the gift as a result of her own full, free and informed thought
• a defendant could establish by showing:
a) no actual influence was used in the particular transaction or the lack of opportunity to influence the donor;
b) the donor had independent legal advice or the opportunity to obtain independent advice;
c) the donor had the ability to resist any such influence
d) the donor knew and appreciated what she was doing
e) undue delay in prosecuting the claim, acquiescence or confirmation by the deceased
f) another factor may be the magnitude of the benefit or disadvantage

The statements of law were confirmed by the BC Court of Appeal in Cowpar-Smith v Morgan 2016 BCCA 200 at paragraphs 49 – 53.

In the Trudeau v tTurpin Estate decision, the court found that the plaintiff failed to establish that the defendant was in a position where the potential for dependents or domination of the will maker was present.

The court found that the evidence was overwhelming that the defendant did not exercise undue influence over the will maker.

In particular the court relied upon journal entries and various notes written by the deceased about her testamentary intentions. The court found them “illuminating”.

The evidence called by the defence was typical of undue influence defence testimony-and usually persuasive to the court, to demonstrate that throughout her adult life, the deceased was a stern, strong-willed, no-nonsense and domineering woman. She had strong points of view and unrelenting opinions and philosophies and was not easily dissuaded from them. She was well able to stand up for herself, defend her beliefs, and was quite prepared to assert her views. Anyone who defied her suffered her wrath.

S. 52 WESA: Presumption of Undue Influence Claims

S. 52 WESA: The Presumption of Undue Influence

Trudeau v Turpin Estate 2019 BCSC 150 is a recent decision dismissing a claim for undue influence and discussing in particular section 52 WESA and the presumption of undue influence that it sets out.

Section 52 of the Wills, Estates and Succession act WESA provides as follows:

52. In a proceeding, if a person claims that a will or any provision of that resulted from another person

a) Being in a position where the potential for dependents or domination of the will maker was present, and
b) using that position to unduly influence the will maker to make the will or the provision of it that is challenged, and establishes that the other person was in a position where the potential for the dependents or domination of the will maker was present, the party seeking to defend the will or the provision of it that is challenged or to uphold the gift has the onus of establishing that the person is in the position where the potential for dependents or domination of the will maker was present did not exercise undue influence over the will maker with respect to the will or the provision of it that is challenged.

Undue influence is influence which over bears the will of the person influence, so that what he or she does is not his or her own act Longmuir v Holland 2000 BCCA 538 at 71.

Rebutting the Presumption of Undue Influence

In Stewart v McLean 2010 BCSC 64 the court summarized the legal approach to the question of whether the presumption of undue influence has been rebutted, at paragraph 97:

• To rebut the presumption of undue influence, the defendant must show that the donor gave the gift as a result of her own full, free and informed thought
• a defendant could establish by showing:

a) no actual influence was used in the particular transaction or the lack of opportunity to influence the donor;
b) the donor had independent legal advice or the opportunity to obtain independent advice;
c) the donor had the ability to resist any such influence
d) the donor knew and appreciated what she was doing
e) undue delay in prosecuting the claim, acquiescence or confirmation by the deceased
f) another factor may be the magnitude of the benefit or disadvantage

The statements of law were confirmed by the BC Court of Appeal in Cowpar-Smith v Morgan 2016 BCCA 200 at paragraphs 49–53.

In the Trudeau v tTurpin Estate decision, the court found that the plaintiff failed to establish that the defendant was in a position where the potential for dependents or domination of the will maker was present.

The court found that the evidence was overwhelming that the defendant did not exercise undue influence over the will maker.

In particular the court relied upon journal entries and various notes written by the deceased about her testamentary intentions. The court found them “illuminating”.

The evidence called by the defence was typical of undue influence defence testimony-and usually persuasive to the court, to demonstrate that throughout her adult life, the deceased was a stern, strong-willed, no-nonsense and domineering woman. She had strong points of view and unrelenting opinions and philosophies and was not easily dissuaded from them. She was well able to stand up for herself, defend her beliefs, and was quite prepared to assert her views. Anyone who defied her suffered her wrath.

Wills Drafting: The Myth of the “Simple Will”

Wills Drafting- The Myth of the “Simple Will” _ Disinherited

It must be stressed that any document that has consequences as permanent and far-reaching as a Will can never be “simple.”

Even a straightforward Will can be fraught with drafting problems and potential liability.

A Will speaks from death and cannot be altered after death. Thus Wills can be viewed as potential
“time bombs” of liability. Although sections 58 and 59 of the Wills, Estates and Succession Act now allow an opportunity to correct errors, to confirm what the testator really meant, to fill in the gaps, or to modify the ambiguous, a small drafting error can create an ambiguity that may take years to resolve in the Courts.

A Will is a very personal document, quite literally, a testator’s last word about how his or her
estate is to be disposed of. The only constraints on the testator’s wishes are public policy and the law. If neitheris contravened, the testator can make almost any type of Will.

Duties of the Wills-Drafter

The Wills practitioner has several important duties, including the following.

1. Spending sufficient time to properly canvass with the client his or her instructions, and then understanding those instructions precisely after giving appropriate advice with respect to same

2. Translating the instructions into testamentary provisions that are valid and clearly express the testator’s intentions

3. Gathering all the information required to properly prepare the Will and to give effect to the testator’s wishes

4. Taking into account other documents to which the testator is a party, such as those dealing with assets that pass outside of the estate, and applying legal principles that may affect the provisions of the Will

Simply put, it is the Wills practitioner’s duty to ask the right questions and draft the Will properly in accordance with the client’s instructions.

Fees

1. Fees should be based on the practitioner’s actual time and not the supposed “going rate.”

2. The practitioner should explain to the client the amount of time it properly takes to prepare a Will, the amount of expertise required for same, the risk of liability, and the value of the assets that are being dealt. That will help persuade the client that the cost may be higher than he or she wishes to pay, but that it is still good value in the “big picture” of things. It should be stressed that the Will is dealing with the client’s lifetime accumulated assets.

3. If the client is unwilling to pay, then it is open to the practitioner to refuse to do the work.

4. If the practitioner accepts the work, he or she accepts the responsibility of doing it properly and promptly.

Getting the Necessary Information From The Client

Clients frequently attend at the Will- drafter’s office with firm instructions about how they want to dispose of their estates. It is the Will-drafter’s duty to properly examine and scrutinize such instructions because many of them may be neither practical nor advantageous to the interest of the estate or to the beneficiaries. The Will-drafter must educate the client and explain to him or her the nature and consequences of the proposed testamentary provisions.

It is not uncommon for the client’s initial instructions to be flawed. Clients often have firm opinions as to what they want to achieve with their Will that are often simply not practical, or even possible, and would almost certainly end in litigation. It is the job of the drafting practitioner to provide proper objective counsel in this regard.

To get the correct information, the practitioner must ask the right questions. The Will practitioner can simply never have too much information to give proper advice.

The bottom line is there is a duty on the Will-drafter to carry out the client’s instructions as closely as possible, but there is an equally important duty to make sure that clients understand they should not necessarily do what they want to do, and if they insist after proper advice, they must accept and approve the consequences.

Probing the Client’s Mind

I would be remiss in any discussion regarding the taking of Will instructions, especially from the elderly and frail, not to start with a wise quote from Chalmers v. Uzelac 2004 BCCA 533.

1. Every solicitor who, as part of his or her practice draws Wills, should read, mark and inwardly digest at least once each year the judgment of Sir John Alexander Boyd, C. in Murphy v. Lamphier (1914), 31 O.L.R. 287, the Canadian locus classicus on a solicitor’s duty in taking instructions, especially at pages 318-321.

2. That duty is owed not only to those who might, or ought to be, objects of the testator’s bounty but also to the testator, for only the solicitor can be the testator’s voice from the grave; the solicitor discharges that duty by making proper inquiries of the testator at the time of the making of the will and by taking and preserving proper notes of the responses and of any observations relevant both to capacity and to knowledge and approval of the contents of the will. The reason for the latter obligation ought to be obvious but, lest it is not, I state it: How can a judge put confidence in the testimony of a solicitor who says, years (here 9) after taking instructions, but keeping no notes of those instructions, that the testator said this or that as the reason for changing an earlier will?

In Murphy v. Lamphier, as cited in the Chalmers case, the duty of a lawyer taking Will instructions was discussed as follows.

It is an error to suppose that, because a person can understand a question put to him and give a rational answer, he is of sound mind and capable of making a Will: the competency of the mind must be judged by the nature of the act to be done, and from a consideration of all the circumstances of the case.

The grand criterion by which to judge, whether the mind is injured or destroyed, is to ascertain the state of the memory. Memory affords all the materials on which to exercise judgment and to arrive at a conclusion or resolution.

In the case of a person enfeebled by old age or with faculties impaired by disease, and particularly in the case of one labouring under both disabilities, a solicitor called in to prepare a Will does not discharge his duty by simply taking down and giving expression to the words of the client, without being satisfied by all available means that testable capacity exists and is being freely and intelligently exercised in the disposition of the property; and, in dealing with a person needing protection and advice, it is important for the solicitor to find out if there be a former Will, and its nature, with a view of getting at the reasons for any variations or changes therefrom, if such changes be contemplated.

The notes of haste, stealth, and contrivance attached to this transaction, and were not removed by the evidence.

The duty was similarly described by Kroft J. in Friesen v. Friesen Estate (1985) 33 Man.R. (2d) (Q.B.) at para 77, as follows.

6. The duty upon a solicitor taking instructions for a Will is always a heavy one. When the client is weak and ill, and particularly when the solicitor knows that he is revoking an existing Will, the responsibility will be particularly onerous.

7. A solicitor cannot discharge his duty by asking perfunctory questions, getting apparently rational answers, and then simply recording in legal form the words expressed by the client. He must first satisfy himself by a personal inquiry that true testamentary capacity exists, that the instructions are freely given, and that the effect of the Will is understood.

Sample Organizational Chart for a Will

One tried-and-true technique of Will-drafting is to break the Will down into its basic components, to demystify the task at hand. Here is a sample of how most Wills can be broken down.

Part One: Initial Matters

(A) Revocation of prior Wills

(B) Appointment of executor and trustee

(C) Appointment of alternate executor and trustee

(D) Appointment of guardian, if applicable

Part Two: Disposition of Estate

(A) Vest property in trustee

(B) Payment of debts, testamentary expenses

(C) Disposition to beneficiaries

(a) Specific bequests
(b) Legacies
(c) Residue
(d) Alternative gift(s) of residue

Part Three: Administration of Estate

Powers of Executor/Trustee
(1) Power of sale or conversion

(2)  Trust for minors

(3)  Payment for minors

(4)  Investment powers

(5)  Power of distribution in specie

(6)  Power to carry on business and other powers that may be necessary or appropriate

Part Four: Closing Matters

Miscellaneous provisions, for example

(1) Charging clause
(2) Funeral wishes

Remember that the client must “know and approve the contents” of the Will. So that can be achieved, 5. the goal should be to draft a Will the client may read and understand for him or herself. The use of a logical arrangement of paragraphs and clauses such as displayed in the above-noted organizational chart will assist the client in that endeavour. The use of headings and definitions and the numbering of paragraphs and clauses will also assist in that regard. Bearing 6. in mind the aging population, using a reasonably large font is advisable.

It should be noted that words used in a Will are given their ordinary meaning by the Courts. Also, a judge should consider only the Will and the facts and circumstances known to the client at the time the Will was made to determine the client’s testamentary wishes.

Style of Drafting: 20 Dos and Don’ts

1. Strive for simplicity without sacrificing precision.

2. Be brief without sacrificing comprehensiveness.

3. Be consistent in the use of tense and the use of terms. All of the clauses to be used must then be looked at together to ensure a uniform drafting style throughout. The Will created must not look like a patchwork quilt of style and language as this could lead to interpretation problems and possible negligence claims.

4. Use modern plain language rather than verbose and archaic expressions. For many years now, there has been a movement toward the use of plain language to replace legalese and bureaucratic writing. Plain language is straightforward prose, carefully written with the needs of its primary readers in mind. Strive to make your average sentence length shorter and to simplify your sentence structure.

5. Eliminate redundant words and phrases. Will-draftspersons have the tendency to use couplets and triplets when one word carries the intended meaning. For example the words “nominate, constitute, and appoint” could be condensed to simply “appoint.” The words “give, devise, and bequeath” could be shortened to simply “give.”

6. Strive to not use foreign words in Wills unless you are referring to foreign places or persons. For example, do not use Latin phrases such as “bona fide” when the English “good faith” conveys the same meaning. Similarly, do not use expressions such as “cy-pres” or “en ventre sa mere,” when they can be replaced with “as near as possible” and “in its mother’s womb.”

7. Do not use the word “issue” that ordinarily means all of a person’s lineal descendants, but instead use the words “child,” “children,” “grandchild,” and/or “grandchildren,” as appropriate. Similarly, do not use the words “per stirpes” or “per capita” but instead describe the method of distribution.

I once litigated the following clause from a Will that used the word “issue.”

To divide the residue of my estate between my daughters Mary and Joan who survive me in equal shares per capita but if any child of mine predeceases me leaving issue him or her surviving, the issue of that deceased child surviving me shall take (and if more than one in equal shares per stripes as tenants in common) the share which his or her or their parent would have taken if living.

The deceased had a son who had predeceased him by 10 years leaving two children. At the time the deceased executed his Will, he had only the two daughters Mary and Joan. The Will was poorly drafted in that it used both the words “any child of mine” as well as the words “leaving issue him or her surviving.” I argued that the issue of the deceased son, namely the deceased son’s children and grandchildren, should share equally in the estate with Mary and Joan.

Leaving aside the poor draftsmanship that resulted in the litigation, I have never yet met a client who wishes to provide for all of his or her lineal descendants. Clients usually wish to provide only for their children, but if a child has predeceased, leaving children of his or her own, then for those children, that is the grandchildren of the client, in the place of the deceased child.

8. Do not do a codicil to revise an existing Will, as it is too easy to make a mistake. Disregard the client’s concerns about costs in this regard. If the client wants to make a change to a Will, then draw a new Will.

9. When providing for the distribution of the estate residue, try to use percentages or shares rather than specific amounts. Then add the percentages or shares several times to ensure they add up to 100 per cent. In Sarkin v. Sarkin Estate, 36 E.T.R.139, the draftsperson did use shares, but the shares added up to only 55 per cent of the residue. As a result, the remaining 45 per cent went by way of a partial intestacy.

10. Do not use precatory words such as “wish” or “request,” as they are not binding on the executor.

11. Be precise in your description of assets to avoid ambiguities.

12. Check carefully for inconsistent clauses.

13. Check to see that no intestacy or partial intestacy has been created. I once litigated a homemade Will where the testatrix included a specific clause stating she did not wish her brother to ever share in her estate by reason of bad past behaviour. She executed the Will without having included a residual beneficiary clause and thus created a partial intestacy. The effect was that her next-of-kin, namely, her brother, inherited.

14. Sufficiently identify each beneficiary and record his or her contact information. Charities can be a particular problem, as it is necessary to understand the structure of the charity and to ascertain which part of the charity the testator wishes to benefit, as well as to ensure the charity’s name is stated correctly. If possible, the charity should be contacted to ensure accuracy. Leaving a bequest to “charitable and educational institutions” will undoubtedly lead to much litigation among various charities and education institutions.

15. Be consistent in the words you use.

16. Try not to include a gift of a specific parcel of property to a beneficiary as there is a good likelihood the testator will not own the property at the time of his or her death. A better way to accomplish such an intention is to use a clause such as “to transfer to Mary, if she survives me, whatever house and property I own at the time of my death,” or such similar-type wording.

17. Only attempt to do the type of Wills with which you are completely experienced and are totally comfortable doing.

18. Review the Will clause by clause very carefully with the client. It should never be a cursory review. It may be helpful to paraphrase each clause to the client in simple terms, as many clients will not really understand what most of the clauses mean. It is suggested that where possible and practical, email, fax, or mail a copy of the Will to the client to review prior to seeing him or her in your office. That will give the client time to consider and reflect on the Will and to make any changes he or she considers appropriate. That is preferable to the client attending at your office and requesting changes to be made on the spot, as such changes are often rushed.

19. Use technology but beware that it sometimes does strange things, like leave out paragraphs and make other such unexplained mistakes.

20. Do not rely solely on a checklist- type Will instruction sheet. Make real notes, including observations confirming you probed the Will- maker’s mind to check for mental capacity and noted his or her statements as to next-of-kin and the value of assets. On completing a Wills file, avoid using a form reporting letter that has clauses that do not relate to the particular instructions.

Conclusion

I again stress there is no such thing as a simple Will. While a Wills practice can be enjoyable and rewarding, the draftsperson can never let his or her guard down for one instant regarding the myriad potential problems that can arise in this type of practice.

The client needs firm advice and guidance throughout the taking of instructions and again during the review of the Will at the time of execution.

 

This article was originally published by The Scrivener Volume 27 Number 4 Winter 2018.

Simultaneous Deaths and Survivorship

Simultaneous Deaths and Survivorship | Disinherited Estate Litigation

The law relating to simultaneous deaths and survivorship is set out in section 5 WESA.

If two or more persons die at the same time or in circumstances that make it uncertain which of them survive the other or others, unless a contrary intention appears in an instrument, rights to property must be determined as if each had survived the other or others.

S 5(1) states that if two or more persons hold property as joint tenants, or hold a joint account, and both of them all die at the same time or in circumstances that make it uncertain which of them survive the other or others, unless a contrary intention appears in an instrument, for the purpose of determining rights to property, each person is deemed to have held the property or account as tenants in common with the other or with each other or others.

Under previous legislation the younger person was to have been presumed to outlive the older, and thus the younger persons estate would inherit everything.

The new provision in WESA is designed to ensure the default joint tenant’s perish in a common disaster, their respective estate should benefit from their shares in the jointly held property rather than the estate of only the youngest of the joint tenants.

This is also what is meant by rights to property will be determined as if each deceased person survive the other or others.

It is also a requirement of section 10 WESA that there is a mandatory five-day survival rule in order to inherit.

S 10 (1) WESA states that a person who does not survive a deceased person by five days, or longer period provided in an instrument, is conclusively deemed to have died before the deceased person for all purposes affecting the estate of the deceased person or property of which the deceased person was competent to give by will to another.

(2) if two or more persons hold property as joint tenants, or hold a joint account,

a) in the case of two persons, it cannot be established that one of them survive the other by five days,

1) one half of the property passes as if the person survive the other person by five days, and

2) one half of the property passes as if the other person referred to in subparagraph one had survived the first person referred to in subparagraph 1 x 5 days,

b) in the case of more than two persons, cannot be established that at least one of them survive the other by five days, the property must be divided into as many equal shares as there are joint tenants or persons holding the joint account, and the shares must be distributed respectively to those persons who would have been entitled to a share in the event that each of the person said survived.

Under the Interpretation act, to calculate five days one excludes the first day and includes the last day.

Extending the Counter Claim Deadline

Extending the Counter Claim Deadline | Disinherited Vancouver

Syukur v Yeh 2018 BCSC 1826 deals with the time dead lines to file a counterclaim and the rules of court relating to the exercising of the court’s discretion to extend the time for filing.

Pursuant to rule 3-4(1) the counterclaim should have been filed within 21 days of service of the notice of claim.

The application in this case was for an extension of time pursuant to rule 22-4(2)

The considerations to guide the court in the exercise of its discretion are set out in Raven v A&W Ranching LTD 2014 BC SC 1359 at paragraph 31:

1) What was the length of the delay between receiving the notice of civil claim and proposing the draft counterclaim/

2) what were the reasons for the delay-if it was an oversight the court is more likely to grant the extension of time;

3) with the counterclaim be time barred but for section 22 of the limitation act? The basic limitation period of two years running from the time the cause of action was discoverable, however pursuant to section 24 of the limitation act the basic limitation period may be extended by an acknowledgment of liability in respect of the claim.

4) The connection between the proposed counterclaim and the plaintiffs claim

5) will there be prejudice to the defendants, such as preventing them from making full answer and defense to the claim brought against them?

6) Will there be prejudice to the plaintiff?

The court found that the counterclaim simply sought to form relies the claim made by the plaintiff for rectification or variation of the will. The proposed counterclaim did not give rise to factual issues that were not already addressed in the pleadings and on the evidence.

The defendant’s counsel conceded that there was of it nothing different that he would have done differently had the counterclaim been advanced earlier.

The court granted the extension of time finding that while there had been inordinate delay, in the absence of actual prejudice to the defendants, the plaintiff should not be prevented by counsel’s oversight from obtaining whatever relief they may be entitled to on the merits of the litigation. While a limitation defense will be lost, it is only a partial defense. The court should not have its hands tied to the determination of a remedy. To refuse the application would not be in the interests of justice.

S.58 WESA Refused to Cure Defective Will

Poulk Estate 2018 BCSC 1321 is a good review of the law relating to section 58 of WESA and after a review of the facts and law, found that the said curative provisions of section 58 could not be applied.

The deceased was admitted to hospital where he underwent surgery for bowel obstruction where it was discovered he had bowel cancer and he died days later.

The deceased had only one child, the applicant daughter and he was not married at the time of his death.

The deceased had distanced himself from his daughter after separating from her mother when she was less than one year old.

The daughter had attempted to re establish contact with the deceased when she was 16 years old but the relationship did not develop, and at the time of his death the deceased and his daughter had little contact with each other.

A will was drafted following the surgery and it purported to leave the deceased’s estate to his four siblings in equal shares. The will was not drafted by the deceased and it was not signed by him prior to his death.

The daughter sought an order under section 58 WESA seeking determination of whether the will represented the intention of the deceased.

The will was a fill in the blanks form that was not completed by the deceased.

It was not disputed that the will did not meet the requirements of validity as set out in section 37 of WESA.

The will was not completed by the deceased and it was inferred that it was completed by his sister, the will was not signed by the deceased, and there was nothing on the face of the will to indicate the deceased knew and approved of the contents of the will.

Absence of any objective evidence that the deceased knew and approved the contents of the will was particularly concerning is the will was drafted by one of the beneficiaries and was not consistent with previously expressed intentions of the deceased.

The deceased long time friend opposed the deceased was told by him that he was going to will everything to his daughter.

Notes of the social worker in the hospital were troubling to the court, as they suggested that it was the family of the deceased who are focused on preparing the will, rather than the deceased himself, and that the deceased wanted some time to think. Even if there was sufficient evidence to establish the deceased knew and approved the contents of the will, it was far from clear that the will was fixed and final as to the expression of the deceased testamentary intention. It was clear that the deceased might not have appreciated the severity of his illness or imminence of his death.

The will departed from the requirements for validity in section 37 of WESA to a significant degree, and the evidence fell far short of establishing that the will was final and authentic.

On the balance of probabilities, the court found that the will did not represent a deliberate and final expression of the deceased testamentary intentions, and refused to invoke the provisions of section 58 WESA “to cure“ any deficiency.

The court followed the leading case in British Columbia Re Young 2015 BCSC 182 at paragraph 17:

“S 58 is a curative provision. It confers a discretion on the court to relieve against the consequences of noncompliance with testamentary formalities in the record, document or writing or marking on a will or document”. And prescribed circumstances, section 58 permits the court to address and cure issues of formal invalidity in such documents. It cannot, however, be used to uphold the will that is invalid for substandard reasons such as testamentary incapacity or undue influence.

The court also referred to Re Lane estate 2015 BCSC were the court summarized the principles from the Manitoba decision George v Daily that has largely been followed in British Columbia in decision such as Re Young.

1) The standard of proof on an application under the curative provision is proof on a balance of probabilities
2) the greater the departure from the requirements of formal validity, the harder it may be for the court to be satisfied that the document represents the deceased testamentary intention;
3) the requirements for formal validity of a will serve several purposes or functions, including an evidentiary function by providing the court with reliable and permanent evidence of testamentary intention and the terms of the will; and a cautionary function by impressing upon the testator the solemnity, finality, and importance of his actions in making his last will and testament the evidentiary and cautionary functions are particularly relevant to the determination of whether or not our writing or document embodies the testamentary intentions of the deceased not every expression made by a person, whether orally in writing, concerning the disposition of  his or her property on death embodies his or her testamentary intentions

The court held at paragraph 65:

The term “testamentary intention” means much more than a person’s expression of how he would like his or her property to be disposed of after death. The essential quality of the terms that there must be a deliberate or fixed and final expression of intention as to the disposal of his or her property on death Bennett v Molinary v Winfrey (1961) SCR 91

S.151 WESA: Leave to Commence a Court Action on Behalf of the Executor

S.151 WESA: Leave to Commence a Court Action on Behalf of Executor

Re Gordon Estate 2018 BCSC 487 is a decision that granted leave under section 151 of WESA for the residual beneficiary, the University of British Columbia, to commence an action in the name and on behalf of the executor of the estate of the deceased.

The University of British Columbia was the sole residual beneficiary under the deceased will, however prior to her death, the deceased transferred the majority of her assets to her gardener which totaled almost $2 million.

There was very little in the way of assets left in the estate for the residual beneficiary.

The petition and supporting materials filed by the University of British Columbia showed that the deceased was basically blind due to macular degeneration and was cognitively deficient.

the deceased’s long time lawyer refused to change her will and prepare a transfer of her home on the basis that she was confused, and believed amongst other things that she owned two houses when in fact she only owned one.

The court granted relief pursuant to section 151 of WESA are to allow the University of British Columbia to bring action in the place of the executor, to set aside the transfer of assets done prior to her death so as to bring them into her estate, so that the University could inherit them.

Section 151 of WESA states as follows:

151 (1) despite section 136, a beneficiary or an intestate successor may, with leave of the court, commence proceedings in the name and on behalf of the personal representative of the deceased person

a) to recover property were to enforce a right, duty or obligation owed to the deceased person that could be recovered or enforced by the personal representative, or
b) the court may grant leave under this section if:
a) the court determines the beneficiary or intestate successor seeking leave
1) has made reasonable efforts to cause the personal representative to commence or defend the proceeding,
2) has given notice of the application for leave to
a) the personal representative
b) any other beneficiaries or intestate successors and c) is acting in good faith, and
3) it appears to the court that it is necessary or expedient for the protection of the estate or the interests of the beneficiary or an intestate successor for the proceeding to be broader defended

4) on application by a beneficiary, and intestate successor or personal representative, the court may authorize a person to control the conduct of a proceeding under this section or may give other directions for the conduct of the proceeding.

The court considered the decision Bunn v Bunn 2016 BCSC 2146 were the court refused an application by a beneficiary, the daughter of the deceased, seeking leave to bring an action in the name and on behalf of the executor against the applicant’s brother and one of his companies. The proposed action would’ve challenge certain inter vivos transactions as having been the conduct of undue influence, or alternatively based on the doctrine of non-test factum.

In the Bunn decision, the court held that the terms necessary and expedient or disjunctive, such that the applicant need only establish that the proposed action is either necessary or expedient. A proposed proceeding will be considered necessary if the personal representative is unwilling or unable to proceed. It may be expedient if it’s in the best interest of the estate.

The court gave great weight to the lawyer who declined to act for the deceased because of her ongoing lack of capacity, and that he had a long-standing relationship with her. The lawyer who actually prepared the transfer of assets, did not provide an affidavit himself, and his handwritten notes of his one and only conversation with the deceased sis not elucidate his practice in interviewing persons in the deceased situation. There was no description of the specific questions he asked of the specific answers the deceased gave to support his apparent conclusion that the deceased was able to” tell me about her assets”.