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”.

S.46 WESA: Priorities of Distribution When Gifts Fail

S.46 WESA: Priorities of Distribution When Gifts Fail | Disinherited

Terezakis Estate 2018 BCSC 805 discusses section 46 of WESA relating to an interpretation of the residue of a will that dealt with its interpretation with respect to two of five children who had predeceased the will maker.

The two children who had predeceased the will maker also left children.

The residue clause of the will was confusing as to whether it was the intention of the will maker to leave the share of any child who might have predeceased the testator to the children of the predeceased children ie to the grandchildren of the deceased.

The court applied the armchair rule of construction that requires the court to put itself in the position of the testator at the time when the will was made and to construe the language from the vantage point in order to determine the actual or subjective intent of the testator –Re Burke (1960) O.R. 26 (C.A.).

The court noted that the will information sheet reflected that the testator presumed wishes to ensure that her grandchildren receive a share of the residue of her estate in the event that any of her children predeceased her. This was the expressed intention of the testator at the time the will was drafted, and the court applying the rule armchair rule, stated that it was the best evidence upon which the will should be interpreted by the court.

The court referred to both sections 42 and 46 of WESA.

Section 42 WESA states:

42. This section is subject to a contrary intention appearing in a will.

42(4)  gifts of property to a class of persons that:

a) is described as a will makers issue or descendants, or by a similar word and
b) b) encompasses more than one generation of beneficiaries, must be distributed as if it were part of an intestate estate to be distributed to descendants.

The court was also mindful of the presumption that a testator does not intend to create an intestacy- Milwarde-Yates v Sipila 2009 BCSC 277 at para. 49.

S.46 WESA states:

1) if gifts in a will cannot take effect for any reason, including, because of beneficiary dies before the will maker, the property that is subject of the gifts must, subject to a contrary intention appearing in the will, be distributed to the following priorities:

a) to the alternative beneficiary of the gifts, if any, named are described by the will maker, whether the gifts fail for a reason specifically contemplated by the will maker, or for any other reason;

b) if the beneficiary was the brother, sister, or a descendent of the will maker, to their descendants, determined that the date of the will maker’s death, in accordance with section 42(4) WESA (that refers to the particular words in a will);

S 46(2) states:

2) if gifts cannot take effect because of beneficiary dies before the will maker, subsection(1) applies whether the beneficiary’s death occurs before or after the will is made.

The court accordingly ordered that the distribution of the estate be made equally among her children and grandchildren, being the grandchildren of the predeceased children.

Admissible Extrinsic Evidence In S. 58 WESA Applications

Admissible Extrinsic Evidence in S. 58 WESA Applications | Disinherited

Admissible extrinsic evidence in S 58 WESA applications to “ cure” defective wills was discussed in Re Mace Estate 2018 BCSC 1284.

In short, the ordinary rules of admissibility apply.

Ordinarily, evidence must be relevant to a live issue and not be subject to exclusion under any other rule of law or policy to be admissible.

Relevance must therefore be assessed on a case-by-case basis , as set out in Regina v White 2011 SCC 13:

“In order for evidence to satisfy the standard of relevance, it must have some tendency is a matter of logic and human experience to make the proposition for which it is advanced, more likely than that proposition would be in the absence of that evidence”.

Under section 58 WESA inquiries to determine, on a balance of probabilities, whether a noncompliant document embodies the deceased testamentary intentions at whatever time is material. The task is inherently challenging because the person best able to speak to these intentions, namely the deceased is not available to testify.

In addition, by their nature, the source of documents being assessed will likely not have been created with legal assistance. Given this context, and subject to the ordinary rules of evidence, the court will benefit from learning as much as possible about all that could illuminate the deceased state of mind, understanding and intention regarding the document.

Accordingly, extrinsic evidence of testamentary intent is admissible on the inquiry –Langseth estate v Gardiner (19990) 75 DLR (4th) 25 at 33 ( Man. CA)

The case authorities discuss that the extrinsic evidence may include events that occurred before, when and after the document was created – the key issue in an application under section 58 is whether, on the balance of probabilities, the item placed before the court, the record or document or writing or marking on a will or document, was intended to have testamentary effect: that is, does it represent the deliberate or fixed and final expression of intention of the material time as to the to the disposal of the will maker’s property on death? The role of the court on an application under section 58 is not to determine the validity of the instrument per se, or the validity of the gifts contained within it, but determine whether the instrument represents the deceased testamentary intention- Re Smith Estate 2016 BCSC 350.

The BC Court of Appeal decision in Re Hadley Estate 2017 BCCA 311 confirm that section 58 of WESA does not require a basic level of compliance with the formalities of making a will. The consideration of the court is whether the document represents the testamentary intentions of its maker. The material time for determining these intentions will in many cases be the time at which the will was made. However, a document may acquire a testamentary character by subsequent and sufficient manifestation of the will maker’s intention.

In addition to the language of the document, extrinsic evidence of testamentary intent is admissible on the inquiry, such as the circumstances surrounding its creation and direct statements of the deceased. Such evidence benefits. The court, since the person who made the document will no longer be available to testify, and often the document will not have been made with the assistance of counsel.

The most common situation in which an application fails is where the court is simply not satisfied that the propounded document or record contains the will maker’s final thoughts are intentions with respect to the will or its alteration, revocation or revival, but is just a draft are some preliminary notes that are subject to change. As one court as put it, the curative provisions allow the court to overlook the formal requirements of the act, but not to speculate on the testamentary intentions of the deceased – Re Archer Estate 2005 SKQB 118 at para. 9

S. 58 WESA Refused to Cure Unsigned Will

S. 58 WESA Refused to Cure Unsigned Will | Disinherited Vancouver

In Poulk Estate 2018 BCSC 1321 the court declined to “cure” and last unsigned will and testament under the provisions of section 58 WESA.

The case does not stand for the proposition that under WESA and unsigned will cannot be cured under section 58. It really comes down to the specific fact pattern of each case.

It was not disputed that the will did not meet the requirements of a validly executed will as set out in section 37 WESA that provides as follows:

1) to be valid, a will must be

a) in writing,
b) signed at its end by the will maker, or the signature then must be acknowledged by the will maker as his or hers, in the presence of two or more witnesses present at the same time, and
c) signed by two or more of the witnesses in the presence of the will maker.

Subsection 2, provides that a will that does not comply with section 37(1) is invalid unless the court orders it to be effective as a will under section 58.

Before granting an order that a document is fully effective as a will pursuant to section 58 (3) WESA, the court must be satisfied that the document represents the testamentary intention of the deceased.

The leading case in British Columbia is the Estate of Young 2015 BCSC 182 at paragraph 17:

“ Section 58 of the WESA is a curative provision. It confers a discretion on the court to relieve against the consequences of noncompliance with testamentary formalities and a record, document or writing or marking on a will or document “. In 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 a will that is invalid for substantive reasons, such as testamentary incapacity or undue influence “

In Re Lane Estate 2015BCSC 2162 the court summarize the applicable principles of the Manitoba decision largely followed by the British Columbia courts, namely George v Daily (1997) MJ No. 51 (C.A.)

a) The standard of proof on an application under the curative provision is proof on the balance of probabilities;
b) 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;
c) the requirements for formal validity of a will serve several purposes, or functions, including:
1) an evidentiary function by providing the court with reliable and permanent evidence of testamentary intention in the terms of the will, and
2) a cautionary function by impressing upon the testator. The Solomon T, finality, and importance of his or her actions in making his or her last will and testament
d) the evidentiary and cautionary functions are particularly relevant to the determination of whether or not a writing or document embodies the testamentary intentions of the deceased.
e) 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
f) 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 Bennet, Moliinary v Winfrey (1961) SCR 91

The court continued at paragraph 33 that:

“ The factors relevant to the determination of whether a document that does not comply with testamentary formalities embodies the deceased testamentary intention or context specific. They may include the presence of the deceased signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests, and the title of the document.

In the Poulk decision, the purported will was a fill in the blanks form that was not completed by the deceased. In all likelihood the document was completed by a beneficiary of the will.

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.

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

The deceased was in hospital, and died seven hours after the will was prepared.

The court further stated that 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 a fixed and final expression of the deceased testamentary intention.

The court found that the hospital records of the deceased indicated that he may not of appreciated the severity of his illness or the imminence of his death.

The will departed from the requirements for a valid will under section 37 of WESA to a significant degree. While it was in writing, it did not bear the signature or indeed any handwriting of the deceased or the signatures of two witnesses.

The affidavit material fell short of compelling the court to find reliable evidence that the will was both final and authentic.

Accordingly, the court declined to exercise its curative remedies under section 58 WESA

Wills Variation – Interim Distribution Ordered

Court Ordered Interim Distribution in Wills Variation Claims

There is both court authority and statutory authority allowing the court to exercise its discretion to release a part of the testator’s estate as an interim distribution in a wills variation action.

Section 66 WESA allows the court the power to release a part of the testator’s estate from the effect of a variation order.

In Hecht v Hecht (1990) 39 ETR 165 BCSC , the court held that a legacy under a will can be paid notwithstanding a pending claim for variation when the risk of the variation order will encroach upon the funds needed to satisfy the legacy is remote.

At paragraph 42, the factors to be considered by the court when deciding whether to exercise its discretion to release part of an estate from the effect of a variation order include:

A. The amount of the benefits sought to be distributed as compared to the value of the estate
B. the claimant the beneficiaries on the testator
C. the need of the beneficiaries for money;
D. the consent of the residuary beneficiary to the proposed distribution

Davis v. Burns 2016 BCSC 1982, also allowed an interim distribution to a beneficiary under a wills variation action, where the court specifically exercised its inherent jurisdiction to do so. The court ordered that more than 50% of his potential residual share, despite the objection of another residuary beneficiary, citing lack of prejudice, since the distribution only amounted to 10% of the total value of $2,500,000.

The court followed the criteria previously set out in Hecht.

In Davis, the court held that, having regard to the plaintiff’s financial need in the amount of the benefits to be distributed from the estate, the distribution to the plaintiff would not prejudice the estate or the executor’s duties.

S.58 WESA Does Not Apply to Wills With “Pour Over” Revocable Trusts

S.58 WESA Does Not Apply to Wills With "Pour Over" Revocable Trusts

Re Quinn Estate 2018 BCSC 365 held that the curative provisions of section 58 WESA did not apply to a will, with a ”pour over” clause that created revocable and amendable trusts.

Mr. Quinn was a well know when general manager in the National Hockey League, including with the Vancouver Canucks.

In 1996, he executed a will in respect to his Canadian assets situated in Canada. At the time of his death in 2014 his Canadian assets consisted primarily of shares in the capital of several private corporations. Subject to the resolution of a particular liability, the value of the estate was either $750,000 or near nil.

The will was prepared by a US attorney and was executed in British Columbia.

Under clause 6 of the will, the residue of the testator’s Canadian estate was to ”pour over” into a revocable amendable inter vivos family trust to be added to principal and thereafter, but to be held, administered and distributed under the terms of such agreement.

The trust was settled in 1996, prior to the execution of the will. The testator executed the trust declaration, contemporaneously with the execution of his will.

Under the trust, the settlers, namely the deceased and his wife, were the first beneficiaries. Following the death of the surviving settlor, the beneficiaries were their two daughters.

The petitioner sought the court’s determination as to whether the pour over clause was invalid, and if so, whether it was cured by recent legislation, namely section 58 WESA.

The court held that the clause was invalid and was not saved by the curative provisions of section 58 WESA.

A “pour over” clause is generally viewed as a dispositive provision directing that all or part of the estate should be added to the corpus of existing trusts, the terms of which were not reiterated in the will itself.

Trusts are not a legal person, and is only a relationship.

Accordingly, a devise or bequest to trusts is not like a devise or bequest to an individual. The “pour over” trust doctrine is not a probate doctrine, but rather concerns the construction of wills. It is based upon the doctrine of independent significance. Under that doctrine, if a fact or an entity exists which has significance independent of the will extrinsic evidence is admissible to identify the fact or entity.

Properly established trusts are such a fact of independent significance. The disadvantage of the “pour over” trust is similar to that which attends the doctrine of incorporation by reference, namely that a reference to a trust which is revocable or which may be replaced with another is not acceptable, since the trust is not then have independent significance in the testator is purporting to reserve the right to make a future under tested codicil to the will.

The court held that subject to the possible application of section 58 of WESA, the pour over clause of the will was invalid.

The court then discussed the policy reasons behind section 58 and held that it is to enable the court to step in where a person has taken real steps to make a will, but the formalities of fallen short. Section 58 does not exist to enable the court to bless structures that circumvent the formalities altogether, which is what a “poor over” clause to an amendable trust does.

The family trust in question by providing its own amendment or revocation by the testator and his wife, created a mechanism to avoid the execution strictures of section 37 WESA. Such provisions for revocation or amendment also do not reflect the requisite deliberate or fixed and final intention “ for testamentary dispositions. The clause was not saved by section 58 WESA given that the testator made the will requiring the of opinion of the court, the parties were each entitled to their costs from the estate. On the full indemnity basis. ”

In Waters Law of Trusts in Canada , the learned author describes a trust as follows:
“ a trust is the relationship which arises whenever a person called the trustee is compelled in equity to hold property, whether real or personal, and whether by legal or equitable title, for the benefit of some persons of whom he may be one, and who are turned beneficiaries, or for some object permitted by law, in such a way that the real benefit of the property, cruise, not to the trustees, but to the beneficiaries or other objects of the trust“

In Kellogg Estate 2013 BCSC 2292 the court held that a pour over clause to a revocable, amendable inter vivos trust to be invalid.

The court stated at paragraph 70 “the gift cannot “pour over” to be held by the trustee of the trust on the terms which existed at the time the will was executed, because that trustee is not obliged to follow the terms set out in the amendment to the trust. The gift cannot “pour over” to be held by the trustee on the basis of the amendment to the trust because the effect would be to permit the trustee to have effectively amended his will, without complying with the Wills act”

The definition of will in section 1 of WESA contemplates a testamentary disposition. This solemn duty of making one’s will, as reflected in section 37 (1) of WESA and its requirement for proper execution .

WEAS’s purpose and requiring particular formalities for the proper execution of a will is to ensure certainty as to the deceased final wishes and to avoid controversy, and possible litigation. The possible use of a revocable, amendable inter vivos trust as the recipient of a testamentary gift, bequest, or devise creates the uncertainty that the legislation sought to avoid.

A person could not one day execute his or her will, fully observant execution strictures of sections 37 of WESA, leaving the residue to of his or her estate to a revocable amendable inter vivos trust, which he or she can then revoke or amend the following day without regard to any execution strictures.

Section 58 of Wesson must be read in context of sections 37 and 59 of WESA.

Section 58 WESA is not an independent provision. From its language, even though the making, revocation, alteration or revival of the will does not comply with this act, section 58 is tethered to section 37 WESA.

The court stated that the policy reason behind section 58 is to enable the courts to step in where a person has taken real steps to make a will, but the formalities have fallen short. It does not exist to enable the court to blessed structures that circumvent the formalities altogether, which is what a “pour over” clause to an amenable trust does. If the policy behind S. 58 were to do away with testamentary formalities, then WESA would not contain testamentary formalities. Rather, what section 58 reflects is a policy to ensure that a document that reflects the deliberate, fixed and final intention of the deceased person is not set aside on the basis of failure to comply with the formality.

The court referred to Re Hadley Estate 2017 BCCA 311 that reviewed the purpose of section 58 WESA and stated at paragraph 34 “ section 58 of WESA is remedial in nature, it confers a broad discretion on the court to order that a record or document or writing or marking on a will or document be fully effective, despite noncompliance with the statutory requirements. Although section 58 cannot be used to uphold the will that is substantially invalid, it permits the court to cure issues of formal invalidity in prescribed circumstances.

For an order to be granted under section 58 WESA, the court must be satisfied that a document represents the testamentary intentions of the deceased person. However, unlike the curative provisions in some province, section 58 does not require a minimum level of execution or other formality for a testamentary document to be found fully effective. Regardless of its form, if the court grants an order under section 58 the document may be admitted to probate.

It is the amendable nature of trusts themself, not the actual amendments made to it, that renders is ineligible to be saved under section 58. In order for the gift to the trust in the Quinn case to be curable, under section 58 it would be necessary for the terms of the trust to represent the deliberate or fixed and final intentions of the deceased. By its very nature, the trust could never express the fixed and final intention of the deceased because it contemplated its own amendment. The trust was a vehicle that enabled the deceased to change his testamentary dispositions at any time. It was the very opposite of the fixed and final statement of the deceased’s intentions with respect to the disposition of his assets on his death.