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.

BC Lawyer- Varying a Will- Will Variation and Second Marriages

Wills Variation (S 60 WESA) and the Second Spouse

Trevor todd and Jackson Todd have practiced in contested estates for over sixty combined years, including varying wills relating to second marriages.

 

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

S.43 WESA and Executor Witness

Charging Clause & S.43 WESA

Re Le Gallais Estate 2017 BCSC 1699 dealt with the charging clause in a will that provided that if the lawyer who prepared and witnessed the will should act as the executrix and attend to the legal work of the estate, then she would be entitled to a fee for  the usual and proper charge for such legal work.

A legal issue arose as to whether the charging clause in favour of the lawyer was valid due to the fact that the lawyer witnessed the will.

The court held that under the circumstances, the charging clause was not void by reason of her having witnessed the will and would take effect.

The charging clause stated:

If the said Constance Dora Isherwood should act as Executrix of this my will and should also attend to the legal work of my estate, she shall be entitled to the usual and proper charge for such legal work.

The court found that the deceased was an experienced business woman who would have no one that legal work was required to finalize her estate after her passing.

The deceased and the lawyer knew each other professionally before and after the execution of the will.

The court invoked section 43 ( 4) WESA that a gift to the lawyer was intended S. 43 ( 4) WESA states:

On application, the court may declare that the gift to a person referred to in subsection 1 ( a witness to the will) is not void. It is to take effect, if the court is satisfied that the will maker intended to make the gift to the person, even though the person or his or her spouse was a witness to the will.

Unsent Draft Text Message Valid Will – Australia

Executor Remuneration and Passing of Accounts

A court in Australia has accepted an unsent, draft text message on a dead man’s mobile phone as an official will.

The 55-year-old man had composed a text message addressed to his brother, in which he gave “all that I have” to his brother and nephew.

The message was found in the drafts folder on the man’s phone after he took his own life last year.

Brisbane Supreme Court ruled that the wording of the text indicated that the man intended it to act as his will.

In the message, the man gave details of how to access his bank account and where he had hidden money in his house.

“Put my ashes in the back garden,” he wrote. “A bit of cash behind TV and a bit in the bank.”

According to ABC News, the man’s wife applied to manage his assets and argued that the text mess
age was not valid as a will because it was never sent.

Typically, for a will to be valid in Queensland, it must be written and signed by two witnesses.

Justice Susan Brown said the wording of the text message, which ended with the words “my will”, showed that the man intended it to act as his will.

“The reference to his house and superannuation and his specification that the applicant was to take her own things indicates he was aware of the nature and extent of his estate, which was relatively small,” she said.

She said the “informal nature” of the message did not stop it representing the man’s intentions, especially as it was “created on or about the time that the deceased was contemplating death, such that he even indicated where he wanted his ashes to be placed”.

Validity of Wills

In 2006, the law in Queensland was changed to allow less formal types of documents to be considered as a will.

Another unusual will accepted in Queensland includes a DVD marked with “my will”, in 2013.

S.58 and 59 WESA Application Ordered to Trial

S.58 and 59 WESA Application Ordered to Trial

Estate of Palmer 2017 BCSC 1430 dealt with  an application to cure defects in a will under sections 58 and 59 of WESA, but was ordered to trial rather than having been dealt with summarily by affidavits.

Ms. Palmer executed a short will on August 18, 1988. By that document, she appointed Montreal Trust and her cousin, Emily Takats, as her executors and trustees. She also named Ms. Takats as the sole residual beneficiary of her estate. Ms. Takats died well before Ms. Palmer.

[5] Following her death, a copy of Pauline Palmer’s 1998 will was discovered bearing various handwritten alterations and initials. Some of the changes are in black ink and some in blue ink. The changes include:

• updating Ms. Palmer’s address;
• deleting Montreal Trust and Emily Takats as executors and trustees and substituting in their place “Alan Homeniuk (sic), 10 English Way, St. Albert, Alberta”; and
• deleting the name Emily Takats as a residual beneficiary.

[6] The operative words of the will containing the handwritten changes now read as follows:

• “I nominate, constitute and appoint Alan Homeniuk of 10 English way, St. Albert, Alberta, and my cousin [name deleted], presently of [city deleted] to be the executors and trustees of this my Will”;
• “To deliver the rest and residue of my estate unto my said cousin [name deleted] for his [changed from “her”] own use and benefit absolutely.”

WESA and the Determination of Testamentary Intentions

[27] The recent case of Estate of Young, 2015 BCSC 182, describes the legal framework applicable to s. 58 of WESA and the curing of “deficiencies” related to the making or alteration of a will. The history and intent of the legislation, including the case law in other jurisdictions addressing similar provisions, is set out in paras. 16–33 of that decision and will not be repeated here. The law is summarized in paras. 34–37 of the decision and can be paraphrased as follows:

• the courts’ curative power with respect to non-compliant testamentary documents is inevitably and intensely fact-sensitive;
• the first threshold issue is whether the document in question is authentic;
• the second, and core, issue is whether the non-compliant document represents the deceased’s testamentary intentions;
• a testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death. Rather, the document must record a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death;
• the burden of proof that a non-compliant document embodies the deceased’s testamentary intentions is the balance of probabilities;
• factors relevant to establishing the existence of a fixed and final testamentary intention may include the presence of the deceased’s signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests and the title of the document; and
• generally speaking, the further a document departs from the formal validity requirements of the legislation, the harder it may be for the court to find that it embodies the deceased’s testamentary intention.

[28] Both s. 58 and 59 of WESA provide for an “application” to court to determine whether a certain document represents the testamentary intentions of a deceased person and/or rectification is warranted because the will fails to implement the deceased’s intent.

[29] Rules 2-1(2)(b) and (2.1) of the Supreme Court Civil Rules provide for the initiation of proceedings in estate matters or in respect of any application authorized by statute to be made to the court. It is possible that the manner in which the present application has been brought does not properly comply with those rules but, in any event, there is no doubt that a chambers hearing is ultimately contemplated thereby triggering the application of Rule 22-1, including the following sub-rules:

Evidence on an application

(4) On a chambers proceeding, evidence must be given by affidavit, but the court may
(a) order the attendance for cross-examination of the person who swore or affirmed the affidavit, either before the court or before another person as the court directs,
(b) order the examination of a party or witness, either before the court or before another person as the court directs,
(c) give directions required for the discovery, inspection or production of a document or copy of that document,
(d) order an inquiry, assessment or accounting under Rule 18-1, and
(e) receive other forms of evidence.
…

Power of the court

(7) Without limiting subrule (4), on the hearing of a chambers proceeding, the court may
(a) grant or refuse the relief claimed in whole or in part, or dispose of any question arising on the chambers proceeding,
(b) adjourn the chambers proceeding from time to time, either to a particular date or generally, and when the chambers proceeding is adjourned generally a party of record may set it down on 3 days’ notice for further hearing,
(c) obtain the assistance of one or more experts, in which case Rule 11-5 applies, and
(d) order a trial of the chambers proceeding, either generally or on an issue, and order pleadings to be filed and, in that event, give directions for the conduct of the trial and of pre-trial proceedings and for the disposition of the chambers proceeding.

[30] I have attempted to explain above why the affidavit evidence tendered on this application respecting certain matters is insufficient to do justice to the testamentary intentions of Ms. Palmer. In my view, oral evidence from the three affiants is desirable including cross-examination of those affiants on certain aspects of their testimony. As well, evidence must be adduced respecting Ms. Palmer’s physical and mental health and, in particular, her testamentary capacity at the time the changes to her will were made.

[31] Furthermore, three of the potential beneficiaries under WESA have not been included in the proceedings to date. It appears that Ms. Perret has no interest in actively participating in the present proceeding, however the court is not satisfied that any meaningful effort has been invested by any of the parties in tracing and notifying each of Bradley Palmer, Grant Palmer and Dolores Palmer. Their legal interests are at stake in this proceeding and they cannot simply be ignored.

[32] Rule 22-1(7)(d) permits the court to order a trial of any chambers proceeding and to give directions respecting the filing of pleadings and the further conduct of the matter. The legal test for converting a chambers proceeding into a trial was recently reviewed by the Court of Appeal in British Columbia (Milk Marketing Board) v. Saputo Products Canada G.P., 2017 BCCA 247. It is akin to the test applicable for summary judgment under Rule 9-6, i.e., whether a bona fide triable issue arises on the evidence before the court which warrants determination at a trial. The threshold is relatively low in that regard.

Decision and Orders Made

[33] In my view, there is a bona fide triable issue between the parties whether the handwritten amendments to Ms. Palmer’s will record a fixed and final expression of intention to make Mr. Homeniuk the sole beneficiary of her estate, an issue which cannot be satisfactorily resolved based solely on the affidavit evidence adduced to date. Accordingly, I make the following orders:
1. the within chambers proceeding will proceed to a trial;

Unwitnessed Will Valid: S.58 WESA

Unwitnessed Will Valid: S.58 WESA

Re Riguidel Estate 2017 BCSC 1667 found a signed but unwitnessed will to be valid by invoking the curative provisions of Section 58 WESA.

The Facts:

The people present when the deceased signed the handwritten and typed documents were the deceased, Ms. Leonard and Mr. Kapinus. The deceased was present when Ms. Leonard and Mr. Kapinus signed their names as witnesses to the deceased’s signature.

[28] Mr. Kapinus also states that he was unaware that two witnesses were required. He used the same language as Ms. Leonard did in her Affidavit, where he swore:

16. The Deceased appeared confident about signing the Will. He did not hesitate. I asked him if the Will was exactly what he wanted and he advised me that it was.

17. At no time did I observe anyone pressuring the Deceased to change his Will or to make any specific gift.

18. The Deceased and I discussed the Will and it was clear that it reflected his final wishes. The Will is consistent with my prior discussions with the Deceased.

19. I have no reason to believe that the Will is not an accurate reflection of the Deceased’s final wishes. I observed no evidence that the Deceased was forced or compelled to distribute his estate in the manner set out in the Will. The Deceased appeared to be thinking clearly at the time. He was not confused and he understood what he was doing.

[29] The most compelling evidence is that of Donna Malley, the deceased’s daughter. She states that when she learned of her father’s cancer diagnosis in January 2016. She travelled to Kamloops in order to be with him, arriving on or about February 11, 2016. She swears to the following:

3. I have learned that prior to my arrival on February 11, 2016, my father signed a document to vary his will (the “Codicil”), a true copy of which is attached hereto as Exhibit “A”.
(Exhibit A is the typewritten document prepared by Mr. Kapinus).

[30] Ms. Malley also swears the following:

4. On or about February 13, 2016, I had a conversation with my father, at which time he advised me that it was important to him that my sister, Debi, was to obtain the house that he owned after he died, as she had done so much for him.

5. Debi and her husband, Vince, lived with my parents for many years and contributed to the construction and upkeep of the house.

6. It is my understanding and belief that after my mother died, my father realized that he did not have enough money to pay his mortgage. In or about early November 2015, I was present during a conversation between my sister Debi Riguidel, Vince Kapinus, and my father in which Debi and Vince told my dad not to worry that they would pay his mortgage and bills and ensure that he would always be taken care of financially.

[31] In her Affidavit, Ms. Malley sets out her understanding as to why her sister and Mr. Kapinus were to receive the house, and describing their relationship as a “trusting and loyal friendship”, and that it is “his way of saying that he will always take care of them in the same way that they did for him”. She further swears:

11. I believe that my father intended to provide Debi and Vince with his house in part because both my sister, Kimberly, and I have houses of our own and we did not live with my parents as adults.

12. I am confident that the February 11, 2016, Codicil prepared by my father and attached hereto as Exhibit “A” is a true and accurate reflection of my father’s wishes.

The Law

[34] In Young Estate (Re), 2015 BCSC 182, Madam Justice Dickson, as she then was, described some of the factors that should be present when seeking a non-compliant document to represent the deceased’s person’s intention under the curative provisions of s. 58(3) of WESA. In determining the deceased’s final testamentary intentions, Madam Justice Dickson wrote:

[36] The burden of proof that a non-compliant document embodies the deceased’s testamentary intentions is a balance of probabilities. A wide range of factors may be relevant to establishing their existence in a particular case. Although context specific, these factors may include the presence of the deceased’s signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests and the title of the document: Sawatzky at para. 21; Kuszak at para. 7; Martineau at para. 21.

[37] While imperfect or even non-compliance with formal testamentary requirements may be overcome by application of a sufficiently broad curative provision, the further a document departs from the formal requirements the harder it may be for the court to find it embodies the deceased’s testamentary intention: George at para. 81.

[35] The curative provisions of s. 58(3) of the WESA are fact sensitive.

[36] Extrinsic evidence is permitted in order to determine whether the non-compliant document is the deceased’s final expression, as to his or her testamentary intentions pursuant to s. 58(3) of WESA: Litke Estate (Re), 2017 BCSC 1079 at para. 39.

[37] It comes down to this – whether the document presented was prepared by the deceased and that its contents represent a “deliberate or fixed and final testamentary intention at the material time for the disposition of the estate: Litke Estate (Re) at para. 42.

Discussion

[38] I am satisfied, on the evidence, that the documents dated February 7, 2016, copies of which are in Appendix 1 to these reasons, are the deliberate expressions of the deceased’s wishes as to the disposition of his property upon his death.

[39] I also find that the handwritten document signed by the deceased and the witnesses, Ms. Leonard and Mr. Kapinus, in the deceased’s presence was to record and confirm that the typewritten document set out the terms of the handwritten document, which reflected the deceased’s intentions before the deceased signed the typewritten document.

[40] It is clear from all of the evidence that the deceased recognized a moral, if not a legal obligation, to his daughter and son-in-law for their contributions to his estate.

[41] I determine that the typewritten document dated February 7, 2016 represents and embodies the deceased’s testamentary intentions sufficient to alter his Will as to the disposition of the assets of his estate and is effective as part of the Will

Section 58-59 WESA Rectification Application Referred to Trial

Section 58-59 WESA Rectification Application Referred to Trial

Estate of Palmer 2017 BCSC 1430 dealt with an application by affidavits pursuant to Sections 58 and 59 WESA to cure deficiencies in a will left by a deceased who hand wrote certain changes to a typed and properly witnessed prior will.

The  Judge referred the matter to the trial list under a rule 22-1-(7) (d) finding that there was a triable issue, particularly concerning her competence.

WESA and the Determination of Testamentary Intentions

[27]         The recent case of Estate of Young, 2015 BCSC 182, describes the legal framework applicable to s. 58 of WESA and the curing of “deficiencies” related to the making or alteration of a will.  The history and intent of the legislation, including the case law in other jurisdictions addressing similar provisions, is set out in paras. 16–33 of that decision and will not be repeated here.  The law is summarized in paras. 34–37 of the decision and can be paraphrased as follows:

  • the courts’ curative power with respect to non-compliant testamentary documents is inevitably and intensely fact-sensitive;
  • the first threshold issue is whether the document in question is authentic;
  • the second, and core, issue is whether the non-compliant document represents the deceased’s testamentary intentions;
  • a testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death.  Rather, the document must record a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death;
  • the burden of proof that a non-compliant document embodies the deceased’s testamentary intentions is the balance of probabilities;
  • factors relevant to establishing the existence of a fixed and final testamentary intention may include the presence of the deceased’s signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests and the title of the document; and
  • generally speaking, the further a document departs from the formal validity requirements of the legislation, the harder it may be for the court to find that it embodies the deceased’s testamentary intention.

[28]         Both s. 58 and 59 of WESA provide for an “application” to court to determine whether a certain document represents the testamentary intentions of a deceased person and/or rectification is warranted because the will fails to implement the deceased’s intent.
[29]         Rules 2-1(2)(b) and (2.1) of the Supreme Court Civil Rules provide for the initiation of proceedings in estate matters or in respect of any application authorized by statute to be made to the court.  It is possible that the manner in which the present application has been brought does not properly comply with those rules but, in any event, there is no doubt that a chambers hearing is ultimately contemplated thereby triggering the application of Rule 22-1, including the following sub-rules:

Evidence on an application

(4)        On a chambers proceeding, evidence must be given by affidavit, but the court may
(a)        order the attendance for cross-examination of the person who swore or affirmed the affidavit, either before the court or before another person as the court directs,
(b)        order the examination of a party or witness, either before the court or before another person as the court directs,
(c)        give directions required for the discovery, inspection or production of a document or copy of that document,
(d)        order an inquiry, assessment or accounting under Rule 18-1, and
(e)        receive other forms of evidence.
…

Power of the court

(7)        Without limiting subrule (4), on the hearing of a chambers proceeding, the court may
(a)        grant or refuse the relief claimed in whole or in part, or dispose of any question arising on the chambers proceeding,
(b)        adjourn the chambers proceeding from time to time, either to a particular date or generally, and when the chambers proceeding is adjourned generally a party of record may set it down on 3 days’ notice for further hearing,
(c)        obtain the assistance of one or more experts, in which case Rule 11-5 applies, and
(d)        order a trial of the chambers proceeding, either generally or on an issue, and order pleadings to be filed and, in that event, give directions for the conduct of the trial and of pre-trial proceedings and for the disposition of the chambers proceeding.

Special Costs In S 58 WESA Application

Special Costs in S 58 WESA Application | Disinherited

Re: Hadley Estate 2017 BCCA 311 the BC Appeal court upheld the principle of costs in estate litigation where the litigation is necessary due to the conduct of the deceased, then each party will normally be entitled to have their legal fees paid for from the estate as special costs. In Hadley the document in question was found not to be a will but it was reasonable for the parties to ask the court for a determination as to whether or not the document was a will:

What costs order should be made on the appeal?

[47] In estate litigation, courts commonly award special costs payable out of the estate to all parties. This practice is based on the principle that where an estate issue must be litigated to remove any doubts, all interested parties must be joined and all are entitled to be heard. In such circumstances, they should not be out of pocket if, in the result, the litigation does not conclude in their favour. The central question as to costs is whether the contested issue arises from the conduct of the deceased or the conduct of another. In the case of the former, an award of special costs from the estate will usually be made: Milwarde-Yates v. Sipila, 2009 BCSC 277 at paras. 81–82.

[48] The judge awarded special costs payable out of the estate to all parties. Her costs award has not been challenged and, in my view, the same costs award is appropriate on appeal. All parties to the appeal were drawn into the litigation because Ms. Hadley wrote the 2014 Will and provided it to Ms. McDermott for safe-keeping. The appeal concerned its validity and legal implications and, while ultimately unsuccessful, was not brought unreasonably