This Paper Was Presented at trial lawyers Conference on June 9,2023
Estate Litigation is Family Law Less One Witness
Estate litigation encompasses many different proceedings, ranging from wills variation, to lack of capacity and undue influence, passing of accounts, marriage-like relationships, removal of executors, and many other types of claims where the nature of the evidence that must be adduced in such proceedings varies widely.
What makes estate litigation different from many other types of civil litigation is the obvious fact that the person who knew or ought to have known what happened to his or her assets is dead and very often the people who stand to benefit from the estate are not talking.
The question then becomes how does one gather the material evidence to commence litigation and proceed to trial.
The following is an unapologetic plaintiff’s counsel’s views on the topic.
What Is Material Evidence?
This topic arose after my reading of the reasons for judgment In re Bennett estate 2023 BCSC 559. It was a lost will case where the plaintiff was attempting to rely upon the presumption of revocation, but that presumption was disallowed as a result of not providing material facts to the court that would prove that the deceased have the will in his or her possession at the time of death.
One of the first points I wish to emphasize is that each particular cause of action in estate litigation has its own material facts that must be proved in order to succeed.
Having the knowledge of the relevant law is imperative.
I can only assume that the plaintiff in the Bennett case did know the law, but was unable to come up with evidence to show that the deceased had the will in his or her possession.
Material means “important”, relevant , having influence or effect and going to the merits of the claim. It is the quality of evidence which tends to influence the trier of fact because of its logical connection with the issue.
Evidence which has an effect of influence or bearing on the question in issue is material. It is evidence that must necessarily enter into consideration of the controversy and which by itself or in connection with other evidence is determinative of the case.
Suffice to say, if a material fact is not proved at court, that party will likely lose the trial.
A Bit About Evidence
The basic rule of evidence which forms the starting point is that all evidence relevant to a fact in issue is admissible unless there is a legal reason for excluding it.
1. Is the evidence relevant? The evidence must be logically probative of the fact for which it is tendered, i.e., the evidence must increase or decrease the probability of the truth of the fact;
2. Is the evidence material? The evidence must address a fact in issue in the case, i.e. the fact must have legal significance arising from the pleadings or the credibility of the witness;
3. Does the evidence fall under any legal rule that excludes it? Not that applicable to estate litigation since hearsay is usually admissible under the best evidence rule. ( see Pasko v Pasko 2002 BCSC 435 and R. v. Smith (1992) 75 CCC3d 257)
There are four general types of evidence:
1. Real evidence- tangible things
2. Demonstrative evidence, often a model of what likely happened at a given time and place;
3. Documentary- letters, emails
4. Testimonial- witness testimony.
I presented a paper for TLABC in July 2020, on using demonstrative evidence which I recommend as additional reading on this topic.
Tools Under the Rules
After having practiced estate litigation for 50 years I have a few observations to offer with respect to how to utilize the tools available in order to obtain the necessary evidence. In no particular order or importance I wish to discuss several of the tools that I think have been underutilized to a large extent by many estate litigation practitioners.
1. Social Media Searches
Though not a rule, all I can say is it is unbelievable what information individuals post on social media. I won a trial based on Face Book pages that were totally contrary to the defence.
I like to start here when I am fact blind and don’t know what the case is about, or who is involved. Probably many of you have interesting cases that involved social media.
We had a case a few years ago where we investigated the defendants B&B and found the defendant and her husband also ran a brothel on the side complete with spicy video ads played out well at mediation.
2. Searches and Surveillance
Land title, probate registry, motor vehicle, occasional private detective for back ground, civil registry for matrimonial actions that may indicate a severance of a joint tenancy by conduct, will search with director of vital statistics
Section 108 of WESA and Rule 25 – 11 re citations are two powerful tools when dealing with a reluctant executor who refuses to proceed with probate for any number of reasons.
Under section 108 of WESA If the executor does not apply for a grant of probate then anyone interested in the estate may require the executor to accept to renounce probate, or explain to the court why the administration of the deceased’s estate should not be granted to the executor or to another person who is willing to act as the personal representative.
The new form prescribed under P32 is much more detailed in the information required.
A. Citation to Apply for Probate
(1) If a testamentary document is or may be in existence, a person interested in the estate may serve by personal service on each person named as an executor in the testamentary document a citation in Form P32 in respect of the testamentary document to require the served person to apply for a grant of probate in relation to that testamentary document.
The person cited has 14 days after personal service to respond and deliver to the citing party:
a) A copy of the grant;
b) A copy of the filed submission for the grant;
c) A copy of the documents filed in support of the grant if not yet issued;
d) If no steps have been taken towards probate , the disputant must file an Answer under Form 33.
Under S.25-11 (5) a persons cited is deemed to have renounced executorship if
a) The person refuses to comply with providing the information and documents or file an Answer;
Once the citor has refused to comply or file an Answer the citor or another person interested in the estate may apply for :
-a grant of probate or administration;
-Order under S.58 to cure deficiencies; that the will be proved in solemn form;
A citation under Subrule 1 must be served on each alternate executor
A citation must include addresses for service, a statement of the citor providing the ground for knowledge or the belief as to the existence of the testamentary document and information available to the citor that will allow the testamentary document to be identified.
A person who is cited under subrule 1 to apply for a grant of probate is deemed to have renounced executorship in relation to that testamentary document if:
-failure to provide an Answer or
Obtain a grant of probate within 6 month after the date that the citation was served
The court may, on its own motion or on application, give directions concerning the procedure to be followed in any matter under this Part and, without limiting this, may give directions respecting any of the following:
(a)the issues to be decided;
(b)who the parties will be, including directions for the addition or substitution of a party;
(c)how evidence may or must be presented;
(d)summary disposition of any or all issues in the matter;
(e)the trial of any or all of the issues in the matter;
(g)examinations for discovery and discovery of documents;
(h)service or delivery of a notice, process, order or document on any person;
(i)dispensing with service or delivery;
(j)representation of any person or interest.
4. Notices to Admit
Notices to admit are a powerful rule under Rule 7-7(14) that are seemingly under utilized in trying to obtain admissions of facts and authenticity of documents.
Civil Rule 7-7(2) states that the opposing party is deemed to have permitted for the purposes of the action only, the truth of a fact or the authenticity of the document, unless within 14 days after service of the notice to admit, the party receiving the notice specifically denies the truth of the fact, or sets out in detail the reasons why the party cannot make the admission, or states that the refusal to admit the fact that the authenticity of the document is made on the grounds of privilege or relevancy.
Rule 7-7(4) provides that the court may order a party who unreasonably refuses to admit a fact pay the costs associated with the proof of those facts which the party unreasonably refuse to admit.
(See Ceperkovic v MacDonald 2016 BCSC 939 for a thorough review of Notices to Admit.)
5. The Discovery Process
I don’t purport to know a lot about examinations for discovery, but I do recommend Lyle Harris’s book discovery practice in British Columbia as a reference resource.
Understanding what documents need to be produced, which should have privilege attached to them, what documents are relevant and compellable but are not being produced, discovery of electronically stored documents, the discovery of video surveillance, the use of large document cases and the all-important obtaining discovery of documents from non-parties.
There is a lot of law relating to the scope and nature of the discovery process as well as various procedural issues that is both in the Harris practice book, as well as on a regular basis in the Verdict.
This is an area of law that I think all litigators could better hone their skills by being familiar with the various issues raised in the discovery practice book.
Starting with Rule 7-(1) requires a party to list all documents in the party’s possession or control that could, if available, be used by any party of record at trial to prove or disprove a material fact.
The scope of Rule 5-(3) (f) suggests that the court will accommodate in appropriate cases and grant an order expanding the discovery, either generally or with respect to particular documents or classes of documents.
In an application following a demand for additional documents under Rule 7 -1(11) the court may order a party to prepare an amended list of documents listing documents, and that party’s possession, power or control relating to any and all matters in question in the action.
Rule 7-1 (18) provides If a document is in the possession or control of a person who is not a party of record, the court, on an application under Rule 8-1 brought on notice to the person and the parties of record, may make an order for one or both of the following:
(a) production, inspection and copying of the document;
(b) preparation of a certified copy that may be used instead of the original
Don’t proceed to discovery until you have the Lists of Documents and copies thereof of all the parties well in advance of the appointment.
Rule 7-1 (18): Unless the court otherwise orders, a person being examined for discovery
(a) must answer any question within his or her knowledge or means of knowledge regarding any matter, not privileged, relating to a matter in question in the action, and
(b) is compellable to give the names and addresses of all persons who reasonably might be expected to have knowledge relating to any matter in question in the action.
6. Third Party Records
A significant amount of estate litigation involves “detective” work from time to time. I have canvassed close neighbourhoods for witnesses and it has on occasion paid off.
Fortunately our society is somewhat obsessed with keeping records of almost every nature and this particularly suits estate litigators in many situations.
I cannot give you an exhaustive list of common records that you may obtain or attempt to obtain in EL, but a sampling are:
I try and obtain the clinical records of the GP of plaintiff for as long back as you can get -I try for 7 years . the long time period allows for a greater understanding of the effect of various diseases such as diabetes, high blood pressure, mini strokes and the like.
Same with hospitals, MSP printout, and other treating practitioners, especially specialists reports. Try to get as many records as possible from all medical sources, particularly when dealing with a capacity or undue influence case, or the cause of death if necessary. The coroner report is often helpful in the cause and timing of a death .
B. Legal The drafting lawyer’s will is only compellable when the validity of the will is in dispute. The executor can waive this privilege and sometimes it is waived but most often it is not. There is no entitlement to production of the lawyer/notary file if it is a wills variation action only. ( S. 60 WESA)
(In cases such as testamentary capacity or undue influence it is often surprising how little material evidence there is in the drafting lawyer or notaries file.)
I have a claim where a charge of manslaughter was been laid against a joint tenant. I will be obtaining the police investigation file as evidence that the wrongful act severed the joint tenancy and the interest of the deceased should now go to the daughter of the deceased and not the accused.
D. Employment Records- One aspect of these types of records is the number of insurance /pension claims that arise by reason of designated beneficiaries, separation agreements, court orders and marriage like relationships where two years cohabitation can create legal issues in this area;
E. Financial records
There are inevitable accounting issues in EL and it is often necessary to accumulate financial records from far and wide
7. Notice to Produce
If you are concerned about having documents or physical objects not produced at trial by the opposing party, under Rule 12-5(8), you may serve a notice in Form 43 at least two days before trial, and a party of record may require any other party of record to bring to the trial any document listed by the party in a list of documents and any physical object and the other party’s possession or control that the party serving the notice contemplates tendering at the trial as an exhibit, but the notice must identify the object.
The notice to produce has declined in usage over the years, but it can be an effective tool in ensuring that the evidence that you seek is produced at the trial.
8. Inspecting Exhibits
Rule 12-5 (10) states that unless the court otherwise orders or the parties of record otherwise agree, no plan, photograph or object may be received in evidence at the trial of an action unless at least seven days before the start of the trial, the parties of record having been given an opportunity to inspect it.
9. Adverse Inference For Failure to Call Expected Evidence
Although the opportunity doesn’t arise that often, be aware of the potency of a successful adverse inference argument.
656621 BC Ltd v David Moerman Painting 2022 BCSC 1683 discussed the adverse inference discretionary rule of evidence that permits the Court to draw an adverse inference against a party by reason of his or her failure to call a witness who could be expected to give material evidence in their favour at trial: Singh v. Reddy, 2019 BCCA 79 at para. 1 [Singh]; Thomasson v. Moeller, 2016 BCCA 14 at para. 35
Sarzynick v Skwarchuk 2021 BCSC 443 held that the defendant who was found to have strategically refused to disclose and produce financial documents could be held to an adverse inference that he had in fact siphoned off monies from his parent’s assets over several years as alleged by the plaintiffs.
The court stated that strategic non disclosure is a risky strategy which typically attracts adverse consequences to the non disclosing party
The court followed the BCCA case of Weintz v Weintz 2014 BCCA 118 in that regard.
10. Notice of Intention to Call Adverse Party as a Witness
This is a rather aggressive trial tactic that I have only used twice. It is used where you want the ability to cross examine an adverse party at trial but there is no guarantee that the said party will testify.
A Form 45 together with conduct money must be served at least 7 days before the required attendance at trial. Usually the party’s counsel will then agree to call the witness in direct.
Rule 12-5 (26) states “ If, in accordance with subrule (21) or (22), a party calls as a witness a person referred to in subrule (20) (a) or (b), the following apply:
(a)the party calling the witness is entitled to cross-examine the witness generally on one or more issues;
(b)the adverse party must not cross-examine the witness except to obtain an explanation of matters brought out in the examination-in-chief;
(c)other parties may cross-examine the witness generally on one or more issues, as the court may direct;
(d)the party calling the witness must not re-examine the witness except in relation to new matters brought out in cross-examination.
11. Pre- Trial Examination of Witness
Rule 7-5(1) allows the court to order that a person who is not a party of record to an action may have material evidence relating to a matter in question in the action, order that the person be examined on oath and order that the examining party pay reasonable lawyers costs of the person relating to the application and the examination.
The rule does not specifically apply to experts retained unless the party seeking the examination is unable to obtain facts and opinions on the same subject by other means.
In the affidavit in support of an application, the materials must set out that the matter in question in the action to which the applicant believes that the evidence of the proposed witness may be material, and that the proposed witnesses refused or neglected or neglect by the applicant to give her responsive statement, either orally or in writing, relating to the witnesses knowledge of the matters in question, or has given conflicting statements.
12. Preserving Testimony
It is a simple fact that many of the witnesses and parties in estate litigation are elderly and/or severely ill and may have future claims. Where so consideration should be given where appropriate to obtain an order under Rule 7-8 (17) where:
a) Circumstances exist that entitle the person to receive an estate or interest in property on the happening of a future event’
b) The right or claim to that estate or interest cannot be brought to trial or hearing by the person before the happening of the event,
The person may apply by petition or by requesition Form 31 for an order to preserve , by examination under this rule, any testimony that may be material for establishing the right of claim.
In the same regard, the videotaping of eldering or ill parties and witnesses evidence should be recorded in direct and then allow for cross examination. Most counsel will agree to these arrangements but if not, the rules provide for it.
13. Trial Management and Case Planning Conferences
Most counsel seem to believe that these conferences before a Judge are often simply a waste of time and a necessary step to get a trial underway.
For the most part I have tried to utilize any conference before judge into a frank discussion of various needs, usually related to obtaining evidence of material facts and have done better than I believe I would have in open Chambers. There is a certain frankness in a well conducted case planning conference.
Rule 5 governing case planning conferences involve counsel bringing forward proposals re :
– Discovery of documents
– – examinations for discovery
– -dispute resolution procedures
– -expert witnesses
– -witness lists
– – trial procedure and times estimates
Under rule 12-2 (1) unless the court otherwise orders, a trial management conference must take place at least 28 days and not more than 120 days before the scheduled trial date, at a time and place to be fixed by a registrar.
The use of Interrogatories has declined in recent years since the introduction of Rule 7-3 that now requires the opposing parties’ consent or a court order to answer interrogatories. Prior to this rule the process was somewhat abused with lengthy interrogatories that took hours to answer.
However there may be circumstances where a court order is necessary to find out certain information prior to the examination for discoveries.
The parties may agree to serve and answer Interrogatories rather than conducting discoveries and instead go directly to a mediation with the basic knowledge disclosed under oath.
It is trite that there is no property in a witness.
As stated in Schober v Walker 2004 BCCA 205, “So far as witnesses of fact are concerned, the law is as plain as can be. There is no property in a witness. The reason is because the court has a right to every man’s evidence. Its primary duty is to ascertain the truth. Neither one side nor the other can debar the court from ascertaining the truth either by seeing a witness beforehand or by purchasing his evidence or by making communication to him. In no way can one side prohibit the other side from seeing a witness of fact, from getting the facts from him and from calling him to give evidence or from issuing him with a subpoena.”
Under Rule 7-4, unless the court orders otherwise , each party of record must within the time set out in a case management conference , or before the earlier of the trial management conference and the date that is 28 days before the scheduled trial date, file and serve on every party of record a list of the witnesses the party may call at trial with each witness’s full name and address.
Consider contacting each witness and attempting to discuss his or her evidence prior to trial.
15. Take Advantage of Presumptions in Law and Reverse Onus of Proof
A. Presumption of Resulting Trust
“Equity presumes a bargain”
Where a transfer of land is gratuitous, the presumption of resulting trust may displace the presumption of indefeasible title, see Fuller v. Harper, 2010 BCCA 421 at para. 43.
See the leading case Pecore v Pecore 2007 SCC 17
B. The Presumption of Revocation- re lost wills as discussed in the Bennet estate case I mentioned at the beginning of my paper.
C. The Presumption of Undue Influence ( Domination and Dependence)
Geffen v Goodman Estate  2 S.C.R. 353:
a) “The equitable doctrine of undue influence was developed, as was pointed out by Lindley L.J. in Allcard v. Skinner (1887), 36 Ch. D. 145, not to save people from the consequences of their own folly but to save them from being victimized by other people (at pp. 182-83). In the context of gifts and other transactions, equity will intervene and set aside such arrangements if procured by undue influence.”
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.
D. The Reverse Onus of Proof In Breach of Trust/ Fiduciary Duty
Fiduciaries are held to an irregularly high standard of behavior in civil law due to the nature of their duties. It is the peculiarly unequal position of the parties that results in the reversal of onus onto the fiduciary in relationships.
Typically the reverse onus works as follows: in asserting a breach of fiduciary duty claim, the plaintiff need only establish a prima facie inference of the fiduciary obligations and the breach.
The fiduciary concept then imposes a reverse onus that shifts the burden of proof onto the fiduciaries to disprove the beneficiaries’ allegations.
(See Lee Estate v. Royal Pacific Realty Corp., (2003) BCSC 911)
16. Rule-25-12 Subpeona for Testamantary Document or Grant
A person may apply for a subpoena to be issued to require a person to deliver to the
registry, one or more of a testamentary document, an authorization to obtain estate information, an authorization to obtain receiving information, an estate grant, for a grant, resealed for a grant and a certified or notarial copy of such a document.
Failure of a Subpoened Person to File Document
Failure of the subpoenaed person to file the required it document will allow the court, by its warrant in form P36 directed to a peace officer, may cause the server person to be apprehended and promptly brought before the court and to be tainted custody released on terms the court may order and the court may order the suit person to pay the costs arising from his or her failure to file the document
16. “Suspcious Circumstances” in Lack of Mental Capacity and Undue Influence Cases
Under common law an individual is deeded to be competent unless circumstances are raised that cast doubt on the competency and free will of the testatator.
A testator is presumed to be competent but the existence of “suspicious circumstances” can shift the onus of proof on the pro pounder of the will to prove capacity
These circumstances can be loosely described as “Suspicious Circumstances”
A short list of the innumerable circumstances which might be “suspicious circumstances ” is as follows:
(a) where a gift is made to a person with whom the testator had a close relationship but which was not known or recognized by the testator’s family;
(b) where a gift is made to a person who is in a position to influence the testator, such as a care-giver, or the worst example, the party preparing the will;
(c) where an apparently unwarranted, undeserving, or unpopular gift is made to a beneficiary who, in the minds of the those left behind, should not receive the gift;
(d) where a gift is made to a beneficiary to whom the testator has had no close relationship, such as a charity;
(e) where the division of assets among the children of the testator is substantially unequal, or a certain child or children are harshly treated;
(f) where the will substantially deviates from previous wills;
(g) where a gift is made to a person standing in a fiduciary relationship;
(h) where the beneficiary accompanies the testator on each trip to your office during the process to complete the will;
(i) where you receive the testator’s instructions from someone other than the testator;
(j) Where there has been a recent serious illness or hospitalization;
(k) where there is any question at all about testamentary capacity;
(l) where there are indications of substantial medications that are potentially mind altering, being used;
(m) where there is a hasty or unwise marriage or common-law relationship;
(n) where there is evidence of depression;
(o) where there is a language/cultural disability or illiteracy;
p) the recently widowed elderly man and the younger woman love interest
17. Miscellaneous Evidence
1. Video evidence is often plentiful and realistic. It can be actually video of a scene or a compilation of numerous photos played in sequence.
Rule7-8 allows the court to order video depositions in order to facilitate evidence being available for trial.
In Machander v Frader 2020 BCSC 1496 , the will drafter videotaped receiving instructions and the execution of a will which was shown at trial. The court commented that the videotape largely removed any suspicious circumstances alleged by the plaintiff and found the deceased to be confident in the will valid.
With the advent of digital wills during Covid it may be more and more likely that the hard drives of certain computers will be analyzed.
2. Timelines are almost a necessity in estate litigation to show significant events relevant to the issues at trial. Many judges now order the production of a time line at the Trial management conference. Dramatic /important incidences should be reflected in the time line.
3. Photographs ( personal letters, cards) of loving relationships are important, but blow them up to at least 8 x 10, and consider having them streamed together to present a life ending with a significant decline that can be related to medical records and expert evidence;
4. Get transcripts of telephone conversations. It is not illegal in Canada for a person to secretly record a private conversation to which that person is a party It is however a criminal act to secretly record when a third person records a conversation when that third person is not a party to the conversation. ( see Silver Hill homes the Borowski 2019 BC CA 227
5. Along the lines of demonstrative evidence get medical scans and x-rays, particularly of the brain, photos of the Alzheimer brain etc. and show it in court though your expert;
6. Phone and text messages, phone bills, visa bills
EL demands that from time to time it is necessary to retain experts for the purpose of trial.
The most common experts employed are:
1. Geriatric Psychiatrists in capacity and undue influence cases;
2. Occupational therapists re cost of future care;
3. Actuaries to value a life estate;
4. Appraisers and realtors;
5. Money Managers;
8. Digital recovery Experts
We have reviewed most of the Supreme Court Rules that enable counsel to obtain evidence without the initial assistance of the Court. There have been a few other tips about obtaining the necessary evidence to prove the material facts necessary for you to prove your case at trial.
BC Supreme Court Rules are perhaps not as encompassing as many American jurisdictions but the 20 or so Rules that are referred to herein should be able to allow most determined counsel to obtain the evidence that they need ( if it exists) by utilizing the various Rules that are provided, but perhaps under used.
One has to keep up with the technology and above all, use your imagination.