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.

S. 52 WESA and Rebutting the Presumption of Undue Influence

S. 52 WESA and Rebutting the Presumption of Undue Influence In Wills

Ali v Walters Estate 2018 BCSC 1032 reviews the law relating to rebutting the presumption of undue influence in regard to a will as dealt with in S.52 of WESA that creates such a presumption and specifies who bears the burden of proof.

S 52 WESA states that 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 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 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.

In Ali , the court found that the presumption was unnecessary to address because ample evidence made clear that Ali did not exercise do undue influence, and had the presumption applied, she had rebutted it.

The court followed Leung v Chan 2013 BCSC 976:

“ in order to invalidate a will on the grounds of undue influence, the asserting party must prove that the influence exerted against the will- maker mounted to coercion, such that the will did not reflect the true intentions of free will- maker and was not the product of the will- makers own act. The undue influence must constitute coercion, which could not be resisted by the will maker and which destroyed his or her free agency. It is well-established on the authorities that if the will- maker remains able to act freely, the exercise of significant advice or persuasion on the will- maker, or an attempt to appeal to the will- maker, or the mere desire of the will- maker to gratify the wishes of another, will not amount to undue influence.

In Woods v Woods 2013 BCSC 1030 aat para.37 stated that undue influence is not equivalent to coercion. To amount to undue influence, something more is required that causes the testator to express something that they do not really mean, or that does not express their own mind or free will. Sometimes this same concept is expressed as requiring that the donor acted of their own free will and informed thought in the transaction “ Geffen v Goodman (1991) 2 SCR 353 at 378-379.

In Stewart v. McLean 2010 BCSC 64 the court summarized the factors that assist in determining whether the donor or gave the gift is a result of their own free full and informed thought:

To rebut the presumption of undue influence, the defendant must show that the donor gave the gift is a result of her own full, free and informed thought. A defendant could establish this 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 advice or the opportunity to obtain independent advice;
c) the donor had the ability to resist any such influence ( Calbick v Wayne 2009 BCSC 1222 at 64);
d) the donor knew and appreciated what he or she was doing Vout v Hay (1995) 2 SCR 876 AT para. 29; or
e) undue delay in prosecuting the claim, acquiescence or confirmation by the deceased.

Another relevant factor may be the magnitude of the benefit or disadvantage.

The Court of Appeal in Cowper-Smith v. Morgan 2016 BCCA 200 adopted the following, referring to the Stewart decision:

Factors to be considered in determining whether the donor acted of her own full, free and informed thought in entering the transaction include:

a) the lack of actual influence or opportunity to influence the donor;
b) the receipt of or opportunity to obtain independent legal advice;
c) the donor’s ability to resist any such influence
d) the donors knowledge and appreciation about what she was doing