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

Wills Variation: Adopted Out Children Have No Claim

Do Adopted Out Children Have Claim to Birth Family Inheritance?

In British Columbia a child who has been adopted out to another family has no claim on his or her pre-adoption family in the event of an intestacy or under the wills variation provisions of section 60 WESA.

And adoption has been held by various courts to mean “for all purposes”.

This was recently confirmed in Atrill Estate 2018 BCSC 350 where the court held that under the intestate succession provisions of WESA a child who was adopted out by the deceased is not a descendent entitled to share in the estate of a deceased’s pre-adoption parent.

In Atrill the testator left the residue of his estate to his wife, but made no alternative. In the event his wife predeceased in which she did. The deceased having fathered a daughter in one son, who also predeceased the testator, and whom the testator deliberately left out of his will.

The son fathered three children, one of whom had been adopted by another family. The testator’s daughter claimed to be entitled to the entirety of the residue of the estate.

Under section 86 of the Trustee Act, the court found that the case involved a partial intestacy governed by part three of WESA and ruled the intention of the testator to exclude his son from a share of the estate did not prevail over the statutory will found in the WESA intestate succession provisions.

Accordingly, the daughter of the deceased was entitled to one half of the residue the estate and the two children fathered by the deceased son, wherein each entitled to one half for the remainder.

However, based on judicial authority, the third child put out for adoption was not entitled to share on the intestacy.

With respect to the adopted out child, the court followed the decision Boer v Mikaloff 2017 BCSC 21 that held that a child who had been adopted out has no claim on his or her pre-adoption family in the event of an intestacy.

The court held that under section 37) of the Adoption Act provides that when an  adoption order is made the child becomes the child of the adoptive parent, and the adoptive parent becomes the parent of the child.

The BC Court of Appeal in Clayton v Markolefas 2002 BCCA 435 addressed whether an adopted child was “issue”of her birth father, enabling her to be entitled to a portion of her birth father’s intestate estate, and the court considered in detail section 37 of the Adoption At as it then read.

The court summarize that “ the thrust of these provisions is to move the child from one family to another family and make it a child of the new family and no longer child of the old family”.

Section 3(2) (A) of WESA serves to confirm that an adopted child is not within the family relationships of his or her birth parents for the purposes of WESA.

This section provides that an adopted child is not entitled to the estate of his or her own pre-adoption parent except through the will of the pre-adoption parent.

In other words, an adopted child relative to a pre-adoption parent will maker is in the same position as a nonfamily member.

The only exception is found in section 3(3) of WESA, which provides that the adoption of a child by the spouse of a pre-adoption parent does not terminate the relationship of parent and child between the child and the pre-adoption parent for the purposes of succession.

Will Variation (S 60 WESA) and the Second Spouse

Wills Variation (S 60 WESA) and the Second Spouse

In Unger v Unger Estate 2017 BCSC 1946 the court considered the legal and moral claims of a long time second spouse against the estate of her late husband who did not provide for her in his will.

The plaintiff Mr. Unger aged 80 was married to the deceased for 32 years. It was a second marriage for both.

The surviving spouse moved into the home of the deceased after the death of her first husband. At the request of the plaintiff the deceased made no claim against her first husband’s estate. She entered the second marriage with Mr. Unger was no assets and did not work outside of the home.

The deceased purchased the matrimonial home in 1981. It was originally held in joint tenancy, but was severed in 1993 after the plaintiff and the deceased briefly separated for a few months. It remained in tenancy in common until his death.

The plaintiff suffered physical and emotional abuse at the hands of the deceased, and at one point the deceased was convicted of assault and placed on probation. During their retirement years the couple lived in the matrimonial home and both of them provided services to maintain and enhance the property

After 2010 the plaintiff suffered a series of health issues including mini strokes.

In 2013 the deceased due to his suffering from dementia was placed in an assisted care facility, and the plaintiff visited him daily and was present when he passed away that same year.

The defendants were the deceased four adult children from his first marriage.

His will left $20,000 each to his two daughters and the residue to be divided amongst all four children.

No provision was made for the plaintiff and the reasons stated in the will was that the deceased had transferred title to her of 50% of the matrimonial home during his lifetime.

The defendants had been financially independent of their father for many years, although one of the daughters was very ill, and lived on minimal government assistance. Another daughter earned a low hourly rate and lived with her husband in a trailer.

The value of the estate, including the matrimonial home was $609,000, not including a $100,000 account of the deceased held jointly with his second daughter.

The court varied the will in favor of the surviving widow, holding that the deceased purported rationale for excluding the plaintiff from the will was not valid.

The court found that the legal and moral obligations owed to the plaintiff or high was from a legal obligation and she was his partner for 34 years, and remained with him despite his abusive conduct towards her. She looked after him to the best of her abilities and remained by his side until his death. As such, she was also owed a moral obligation as well as a legal obligation by the deceased to be provided for.

The court awarded her 30% of the residue of the estate, with the remaining 70% to be equally distributed amongst his four children. She also kept her one half of the house that her late husband transferred to her.

The Law


Legal obligation

The court relied heavily on the applicable family law legislation, the Family Law act that came into force in March 18, 2013.

Under section 81(b) of that act, each spouse is entitled to an undivided half interest in all family property, which includes all property owned by at least one spouse as well as beneficial interests of at least one spouse.

However, excluded from the family properties amongst other things, any property acquired by a spouse before the relationship began, and any property derived from such property or disposition of such property S 85 (1)

The evidence was that the plaintiff did not provide any initial consideration in exchange for being put on title to the matrimonial home previously owned solely by the husband. The evidence supported that Mr. Unger intended to transfer the property to the plaintiff as a gift.

The court held that the transfer of the one half interest in the matrimonial home to the plaintiff was a gift, and satisfied the deceased’s legal obligations to her.

Moral obligation

The court referred to the decision JR v. JDM 2016 BCSC 2265 in setting out the factors to consider in assessing the moral claim in a second marriage

1) the length of the marriage;

2) when and how the testator’s assets were acquired;

3) the contribution of the second spouse;

4) how family assets would be divided under the applicable family legislation upon marriage breakdown;

5) competing obligations with the children from the first marriage;

6) financial circumstances of the spouse;

7) the size of the estate; and

8) the magnitude of assets passing to the spouse outside of the estate, in consequence of other pre death transactions undertaken by the testator

The moral obligation of a testator in the second marriage was considered in the decision Suagestad v Saugestad 2006 BCSC 1839, where the court gave a more limited moral claim of a second wife for the bulk of the testator’s estate was acquired during a first marriage

The decision

The court found that the deceased fail to discharge his legal and moral obligation owed to his wife when he provided with nothing under his will.

The plaintiff was allowed to keep her own one half of the matrimonial home, and was awarded 30% of the residue the estate, with the remaining 70% to be equally divided between the four children.

Unsent Text Message Valid Will In Australia

Unsent Text Message Valid Will In Australia

A court in Australia in Nichol v Nichol (2017) QSC 220 determined that a non-sent text message on a mobile phone from the deceased Mark Nichol, leaving everything to his brother and nephew was valid as his last will. The will, excluded Mark’s wife and estranged son.

The phone was found near his body after he committed suicide with the unsent message on his phone reading:

“Dave Nic and Jack keep all that I have house and superannuation, put my ashes in the back garden with Trish Julie will take her stuff only she’s okay gone back to her ex AGAIN , I’m beaten. A bit of cash behind the TV and a bit in the bank cash card pin (_)
MRN 1901162Q

My Will”

The evidence accepted by the court concluded that the name Dave Nic was an abbreviation for his brother’s name and that Jack was his nephew. Trish was Mark’s deceased first wife and Julie one of the parties to the court action was Mark’s wife . The initials and numbers were Mark’s initials and date of birth.

This decision under somewhat similar legislation in Australia that allows defective wills to be ”cured” may well be followed and applied in British Columbia if the necessary requirements of sections 58 and 59 WESA are met.

The application to prove the unsent draft text message as a valid will was opposed by the deceased wife, but the court found that the unsent text message, ending with the words “my will” showed that the man intended it to act as his will.

Expert evidence was presented following a forensic examination of the deceased’s mobile phone and the report confirmed:

1) the text message had not been sent;
2) that its content indicated that it was created on October 10, 2016;
3) that the unsent text message was likely to be saved by someone pressing the back arrow in the message editing views;
4) when the draft message is open for editing, a paperclip symbol is visible, which when pressed, enables the attachment of a picture or other to the message.
5) The report confirmed that there was no other document on the mobile phone that might be relevant to the deceased’s testamentary intention in the days immediately prior to and including October 10, 2016

The Australian court followed a decision Lindsay v . McGrath (2016) 2 Qd R 160 at 55 , a decision of the Queensland Court of Appeal that adopted three conditions for the execution requirements of the will to be dispensed with, namely:

1) Was there a document;

2) did that document purport to embody the testamentary intentions of the relevant deceased;

3) did the evidence satisfy the court that, either, at the time of the subject document being brought into being, or at some later time, the relevant deceased, by some act or words, demonstrated that it was his or her then intention that the subject document should, without more on her or his part operate as his or her will?

The court enumerated several facts that the court found stated the deceased testamentary intentions:

1) The text message says at the bottom that was “my will “

2) the message identifies the house and superannuation which are his principal assets, about which he also says” keep all that I have”

3) he refers to “Julie will take her stuff only she’s okay gone back to her ex AGAIN, I’m beaten “

4) he identifies that he has cash in the bank and provides the pin number

5) he identified where he wanted his ashes placed

The court held that the informal nature of the text did not exclude from being sufficient to represent the deceased’s testamentary intentions. The court referred to another decision in Australia where the deceased had written “my will” on a DVD, had discussed his intentions to suicide of the DVD and then was at pains to define what property he owned. Although very informal, the court accepted that the document purported to dispose of that property after his death, and made a declaration under the Australian legislation section 18 of the Succession act ( Mellino v WIlkins (2013) QSC 74.

The court further held that the suicide of the proposed testator does not raise a presumption against testamentary capacity Re Estate of Hodges (1988) 14 NSWLR 698 at 707 and Melino v Wilkins (2013) QS

Unsigned and Undated Will Valid (S.58 WESA)

Unsigned and Undated Will Valid (S.58 WESA)

An unsigned will was found to be valid under section 58 WESA as representing the deceased persons fixed and final testamentary intentions that varied an earlier will in the decision Skopyk Estate 2017 BCSC 2335.

The application to cure the will, under the provisions of section 58 of the Wills Estates and Succession act was unopposed, and the order was granted.

The deceased had made a prior 1995 will that was found to be validly varied by the subsequent unsigned will that was not dated, but was in handwriting reasonably similar to the handwriting in a letter entered into evidence, that was signed by the deceased. That letter was found in a drawer in the deceased’s apartment next to the 1995 will.

The unsigned and undated document referred to the will dated November 16, 1995 and purported to change the distribution of the residue of the estate.

Legal Principles

The court referred to S 37(1) of WESA that stated that in order for a will to be valid, it must be in writing, and signed at its end by the will maker, or the signature the end 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 signed by two or more witnesses in the presence of the will maker.

S 37(2) further provides that if the will does not comply with section 1, then it is invalid unless the court orders it to be effective as a will under section 58, known as the curing deficiency provision of WESA.

S. 58 WESA authorizes the court to order the document that is not comply with the requirements of section 37 be fully effective as though it had been made in compliance with those requirements.
To make such an order, the court must be satisfied that the document represents the testamentary intentions of the deceased.

The court followed the Court of Appeal decision in Re Hadley estate 2017 BCCA 311 that held that the document must be a deliberate or fixed and final expression of intention as to the disposal of property upon death.

Re-Lane estate 2015 BCSC 2162 held that extrinsic evidence of testamentary intent is admissible on the inquiry as to whether a noncompliant document and bodies a deceased intent. The extrinsic evidence of events might include events that occurred before, when and after the document was created.
The court found a number of relevant details that supported a finding that the unsigned and undated document represented such an expression of intention:

  • It was pinned to a bulletin board in the apartment of the deceased where it could easily be found
  • the distribution was rational and a previous beneficiary had died
  • the document directed a division of the residue in certain specific shares with language that mirrored the language of the 1995 will
  • although it was not signed or witnessed the word witness was written near the bottom
  • although the document was not dated there was a reference at the top of the deceased will dated November 16, 1995, and it also corrected a typographical error in the 1995 will
  • the handwriting was reasonably similar to handwriting in a letter entered into evidence
  • the day before heart surgery the deceased said that he had been working on his will, and that his wishes were different from that of the 1995 will