Severance of Joint Tenancy By Conduct

 

The Tessier v Tessier 2001 SKQB 399 reminds one that even the simple fact of parties signing an agreement to sell the jointly owned property and pay the proceeds into separate accounts can by their conduct sever the joint tenancy into a tenancy in common.

 

The deceased and husband were joint tenants of a farm property on which they resided until retirement. In 1996 they decided to sell the property to the husband’s nephew and his wife and an agreement for sale was executed in the presence of parties’ lawyer .

The  Agreement set out a schedule of payments which were to be made equally to deceased and husband, who maintained separate bank accounts.

The  Deceased died in 1999 and by her will left residue of estate to be divided among her siblings in equal shares , and the Will made no specific reference to the land.

 

The Executors of the estate brought proceedings contending that the sale had severed the joint tenancy so that one-half balance owing under agreement for sale was an asset of estate.

 

The Court held  Joint tenancy had been severed.

Two distinguishing features of joint tenancy are the   right of survivorship and the four unities of title, interest, possession and time.

The  Onus of establishing that a joint tenancy has been severed is on person so contending.

A Sale or lease by all of joint owners does not itself result in severance because this arrangement is compatible with continuation of joint ownership in relation to proceeds of sale .

However,  the deceased and husband had agreed that one-half of purchase price would be paid to each of them and the proceeds were maintained by them in separate bank accounts .

These facts were sufficient indicia of destruction of unities of interest and possession, both by agreement and course of conduct.

Will Upheld- No Suspicious Circumstances

No suspicious circumstances

Validity of a Will and Suspicious Circumstances

Maddess v Racz 2009 BCCA 539 is a testamentary capacity case where the trial judge and the court of appeal both uphold the validity of a will and find no suspicious circumstances that would rebutt the presumption of testamentary capacity.

The deceased mother had one son, now also deceased, and two daughters, one of whom died prior to matter proceeding to trial.

The mothers’ will left her rest in apartment building, worth over $5 million, to her with the under of $8 million estate evenly divided between children.

The daughter was sole heir of the deceased son and she brought an  application for an order pronouncing her mother’s will in solemn form.

The trial judge granted the order and  concluded that the will was valid, and that there was nothing that amounted to suspicious circumstances.

The trial judge found that the concerns about the mother’s English skills and business understanding did not affect her testamentary capacity.

The defendant’s estate appealed and the appeal was dismissed .

The trial judge applied the correct legal test  and the Trial judge’s conclusion that the presumption of validity applied was fully supported by the evidence.

 

  • “The propounder of a will has the burden of proving that the testator knew and approved the contents of his or her will. In doing so, the propounder is aided by a rebuttable presumption that once it is established that the will was read by the testator, or the contents otherwise brought to his or her attention, and that he or she appeared to understand it, the testator will be presumed to know and approve of the will.

 

  • This presumption can be rebutted by adducing or pointing to some evidence which, if accepted, would tend to negative the knowledge and approval. This is known as the suspicious circumstances doctrine. If the presumption is rebutted, the propoundeer of the will is required to prove the will on a balance of probabilities. See Vout v. Hay, [1995] 2 S.C.R. 876 (S.C.C.) at para. 27:

Where suspicious circumstances are present, then the presumption is spent and the .propounder of the will reassumes the legal burden of proving knowledge and approval. In addition, if the suspicious circumstances relate to mental capacity, the propounder of the will reassumes the legal burden of establishing testamentary capacity. Both of these issues must be proved in accordance with the civil standard. There is nothing mysterious about the role of suspicious circumstances in this respect. The presumption simply casts an evidentiary burden on those attacking the will. This burden can be satisfied by adducing or pointing to some evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity. In this event, the legal burden reverts to the propounder.

  • The Appellant relies heavily on this passage from Vout. So did the trial judge. The trial judge clearly and carefully set out the applicable law. The test is “adducing or pointing to some evidence, which if accepted, would tend to negative the knowledge and approval”. The important aspect of the test is not “some evidence”, it is “some evidence… that would tend to negative the knowledge and approval.” The trial judge found that none of the evidence met the requirement of negating “knowledge and approval”. For example, the trial judge found that the fact that Rosalie Racz did not speak very good English did not, in and of itself, tend to show that she did not have the required knowledge. The fact she was not sophisticated in business, again, does not tend to show that she did not know the effect of her clear instructions to Mr. Mazzei.”

– See more at: http://www.disinherited.com/blog/appeal-court-upholds-wills-validity-and-finds-no-suspicious-circumstances#sthash.uLnHyBzm.dpuf

Mental Capacity – No Suspicious Circumstances Found

No one above suspicionTestamentary  ( Mental) Capacity and Suspicious Circumstances

Machander v Drader 2012 BCSC 1496 is a court case where testamentary capacity was found to exist and suspicious circumstances were not made out.

The deceased executed a will in 2003 in which he named his wife as the executrix and left her the bulk of his estate.

The testator and the wife subsequently separated and a decree nisi of divorce was granted.

The testator subsequently entered into a common-law marriage like relationship with the alleged executrix of a subsequent will.

The testator became seriously ill with liver failure due to years of alcoholism, which manifested itself as a neuropsychiatric abnormality for which he was hospitalised.

While hospitalised, the testator executed a new will which named the common-law spouse as the sole beneficiary and executrix of his will.

The testator died three days later prior to the final decree absolute of divorce, and left his estate of approximately $160,000 cash.

The court case was essentially between the two former partners in which the wife argued that the 2003 will was valid on the basis of suspicious circumstances with respect to the execution of the death and will.

The court allowed the proof of the deathbed will, finding that the circumstances surrounding the preparation of the of the will did not raise the spectre of suspicious circumstances absent allegations of coercion or fraud.

The attending lawyer testified that the testator. Lucid, comprehending questions, and leave clear instructions.

The court found that given the 18th month duration of the testator’s relationship with his new wife, and the uncontradicted evidence with respect to future planning, that was the intention of the deceased to benefit the executrix.

Particularly as the will was simple and the estate was small and uncomplicated, the test for testamentary capacity was fulfilled in the case, and suspicious circumstances were not paid out.

 

LEGAL  DISCUSSION

 

The propounder of a will has the burden of proving that the testator knew and approved the contents of his or her will. In doing so, the propounder is aided by a rebuttable presumption.

38     Once it is established that the will was read by the testator, or the contents otherwise brought to his or her attention, and that he or she appeared to understand it, the testator will be presumed to know and approve of the will: see for example Vout v. Hay, [1995] 2 S.C.R. 876 at para. 26, 125 D.L.R. (4th) 431, in the context of a testamentary gift; Barkwill v. Parchomchuk, 2011 BCCA 207 at para 15; Maddess v. Estate of Johanne Gidney, 2009 BCCA 539 at para. 29; and York v. York, 2011 BCCA 316 at para. 36, 335 D.L.R. (4[th]) 292.

In Vout v. Hay, Sopinka J. at para. 27 referred to the doctrine:

“Where suspicious circumstances are present, then the presumption is spent and the propounder of the will reassumes the legal burden of proving knowledge and approval. In addition, if the suspicious circumstances relate to mental capacity, the propounder of the will reassumes the legal burden of establishing testamentary capacity. Both of these issues must be proved in accordance with the civil standard. There is nothing mysterious about the role of suspicious circumstances in this respect. The presumption simply casts an evidentiary burden on those attacking the will. This burden can be satisfied by adducing or pointing to some evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity. In this event, the legal burden reverts to the propounder.”

43     As noted by Garson J.A. in York, the testamentary capacity test is set out in the leading English case: Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 at 565, which was adopted by Wilson J.A. in Re: Rogers (1963), 39 D.L.R. (2d) 141 (C.A.) at 148-49, 42 W.W.R. 200:

“It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties — that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”

48     I find the decision of Bennett J.A. in Maddess instructive in this regard:

[30] This presumption can be rebutted by adducing or pointing to some evidence which, if accepted, would tend to negative the knowledge and approval. This is known as the suspicious circumstances doctrine. If the presumption is rebutted, the propoundeer of the will is required to prove the will on a balance of probabilities. See Vout v. Hay, [1995] 2 S.C.R. 876 at para. 27:

Where suspicious circumstances are present, then the presumption is spent and the propounder of the will reassumes the legal burden of proving knowledge and approval. In addition, if the suspicious circumstances relate to mental capacity, the propounder of the will reassumes the legal burden of establishing testamentary capacity. Both of these issues must be proved in accordance with the civil standard. There is nothing mysterious about the role of suspicious circumstances in this respect. The presumption simply casts an evidentiary burden on those attacking the will. This burden can be satisfied by adducing or pointing to some evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity. In this event, the legal burden reverts to the propounder.

Doctors Speak a Different Language

Doctors Speak a Different Language

I had the benefit of recently hearing prominent geriatric psychiatrist Dr. Donnelly.

She discussed various aspects of testing for mental capacity and in particular when dealing with the legal profession in seeking a medical opinion about same.

Mental capacity is  a legal test – did the person have sufficient mental capacity when he or she signed the will or the transfer of land etc.?

To her credit Dr. Donnelly instructed the attending lawyers that they should specify in detail exactly what they want the doctor  to tell them and in response to specific questions pose the physician.

For example, she mentioned that most lawyers do not even instruct the doctor  as to the legal test for mental capacity, when most doctors, especially family physicians, really have no training or experience in understanding the legal concept, and very little training if any in testing for capacity.

If possible, it is highly preferable that the testing for mental capacity be performed by a geriatric psychiatrist in the case of the elderly, or a psychiatrist in the case of non-geriatrics

I will share aspects of her presentation upon my receipt of them in the future.

I pointed out to her and the audience that the problem is even worse than she described, in that lawyers and doctors do not even use the same words to have the same meaning.

I pointed out for example that the word acute, to a medical doctor means a sudden onset while two lawyers in the general public it means severe.

Similarly alert means awake in medical terms but to others is generally considered to be much more almost to the point of being smart

Lucid to a doctor means that the patient is oriented times three, (he or she knows who they are, where they are, and the date),  whereas to the general public the word lucid again usually means much more.

I also pointed out that lawyers deal with the concept of the test in civil proceedings being on the balance of probabilities, “is it more likely than not.”?

Doctors do not understand this concept unless they are instructed by the lawyers, as to the appropriate legal test to apply when providing their medical opinion.

Dr. Donnelly agreed that doctors are typically trained and think  as scientists who use the scientific method.

They do not  understand the legal concept of causation, or  the thin skull rule in tort law, or any other legal concepts, without the lawyer explaining the  concept to the doctor.

In my almost 40 years of experience with dealing with the medical profession I can categorically state that there is often tension.

That tension can often be broken by the lawyer phoning  the doctor, making it clear that the doctor will be paid for his or her time, and asking to speak with the doctor, in person if possible, in a quiet setting after hours.

The lawyer should then review the file and the opinion sought, in person before it is written, and educate the doctor in the legal concepts and test to be applied when considering the preparation of the medical opinion.

– See more at: http://www.disinherited.com/blog/doctors-speak-different-language#sthash.6NwDhiis.dpuf

Delusions Towards Next of Kin

Re Fawson Estate 74 ETR (3d) 86 is an interesting Nova Scotia case to do with mental delusions that voided the deceased’s last will on the basis that she lacked testamentary capacity as her delusions towards her siblings , her next of kin, affected her reasoning.

The deceased had no children or spouse and executed her will disinheriting two of her brothers, being her next of kin.

One of the brother sought to have her will proved in solemn form and declared invalid on the basis that the testatrix lacked testamentary capacity when she executed her will.

The evidence was that the testatrix was generally speaking not obviously on or bizarre and in fact functioned in most respects with little impairment and continued to carry out the responsibilities of her job.

However when it came to her mother and her brothers, the testatrix had irrational beliefs which affected her interaction with her brothers which ultimately affected the dispositions in her will.

 

Basically the deceased refused to accept that their mother had dementia despite  the of overwhelming evidence that she did, which resulted  in very disruptive behavior  on the part of the deceased daughter and an intense hatred of her brothers  for opposing her,

 

These irrational beliefs resulted in the testatrix leaving nothing to her brothers in the will.

 

After a lengthy discussion about the burden of proof for testamentary capacity, suspicious circumstances, and delusions themselves, the court came to the conclusion that the deceased did in fact lacked testamentary capacity when it came to her brothers, being her next of kin, and thus the will was declared invalid.

Delusion

 

207        In Theobald on Wills (16th ed., London, Sweet & Maxwell, 2001), the authors set out the test for testamentary capacity in para. 3-02:

 

3-In order to have testamentary capacity a testator must understand:

 

(i) the effect of his wishes being carried out at his death, though it is not necessary that he should view his will with the eye of a lawyer and comprehend its provisions in their legal form;

 

(ii) the extent of the property of which he is disposing; and

 

(iii) the nature of the claims on him. The testator must have “a memory to recall the several persons who may be fitting objects of the testator’s bounty, and an understanding to comprehend their relationship to himself and their claims upon him” so that he can decide whether or not to give each of them any part of his property by his will.

 

208        The authors then consider the effect of delusions on testamentary capacity saying in the following paragraph:

 

3-03A delusion in the mind of a testator deprives him of testamentary capacity if the delusion influences, or is capable of influencing, the provisions of his will. But a delusion does not have this effect if it cannot have had any influence upon him in making his will.

 

A testator suffers from a delusion if he holds a belief on any subject which no rational person could hold, and which cannot be permanently eradicated from his mind by reasoning with him.

 

. . .

 

In practice it may be difficult to distinguish between grave misjudgment and delusion, particularly in relation to a testator’s assessment of the character of a possible beneficiary under his will….

 

A will is not invalid merely because in making it the testator is moved by capricious, frivolous, mean or even bad motives. If he has testamentary capacity he ‘may disinherit …his children, and leave his property to strangers to gratify his spite, or to charities to gratify his pride.

 

209        In Royal Trust Corp. of Canada v. Saunders[2006 CarswellOnt 3478(Ont. S.C.J.)], 2006 CanLII 19424, Blishen, J. said at para. 62:

 

[62] In order to affect testamentary capacity, a delusion must:

 

1. be one of ‘insanity’; and

 

2. be in relation to the testator’s property or expected beneficiaries.

 

and

 

199        In Keddy Estate, Re, 2002 CarswellNS 451(N.S. Prob. Ct.), Hall, J. referred to the burden of proof and suspicious circumstances at para. 25 as follows:

 

25 The profounder of a will has the burden of proving on a balance of probabilities, among other things, that the testator had the mental competence or capacity to make a will. Once due execution of the will is established, the profounder has the benefit of a rebuttal presumption that the testator had the capacity to make a will. Where ‘suspicious circumstances’ are present, however, the presumption may not be relied upon. The question then becomes, what constitutes suspicious circumstances and how do they affect proof of the mental capacity of the testator.

 

200        He then quoted the above passages from Vout v. Hay. That passage was also quoted by Murphy, J. in Willis Estate, Re, 2009 NSSC 231(N.S. S.C.). He said in para. 10:

 

[10]The Supreme Court noted, at para. 25 in Vout, that the suspicious circumstances which will rebut the presumption in favour of a will’s validity may relate to various issues. The Court identified (1) circumstances surrounding the preparation of the will, (2) circumstances tending to call into question the capacity of the testator, or (3) circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud.

 

It is the second category which is in issue here.

 

201        Murphy, J. continued in para. 16:

 

[16]To resolve the issues raised in this case, the Court must therefore determine:

 

(a) whether suspicious circumstances are present so that the initial presumption of the Second Will’s validity ceases to operate;

 

(b) if suspicious circumstances surrounding the preparation of that will are established, whether the Respondents as proponents of the Second Will have met their civil burden to establish execution;

 

(c) if the Respondents establish that Jams Willis executed the Second Will but circumstances raise a suspicion that the testator’s free will was overborne by coercion, whether the Applicant who attacks the Second Will satisfies the burden to establish undue influence.

Court Ordered Medical Examinations

Jurisdiction of Court to Order Proposed Patient to Be Medically Examined

Temoin v Temoin 2011 BCSC 1727 concerned the mental incompetency of an 87-year-old wealthy businessman and a court order sought to have him medically examined.

The businessman’s daughter commenced and incompetence proceeding stemming from her discontent with changes made by her father to his will and estate plan.

She obtained the medical opinion of a geriatric psychiatrist who diagnosed her father with a mild uncomplicated dementia.

He considered the businessman to be incompetent.

It is a requirement for an application of committee-ship under the Patient’s Property Act that there be two medical examinations and medical opinions before the court

The petitioner brought an application that her father attended two medical examinations on certain terms and conditions.

As such, she had not filed the requisite two medical affidavits attesting to her father’s incapacity to manage himself or his affairs.

The court dismissed the application but held that it did have the inherent  jurisdiction to make the order sought, but this was not a case where that jurisdiction should be exercised.

The court noted that it had been well settled law for many years that the court cannot order a medical examination under the Patient’s Property act unless two medical affidavits, stating that the proposed patient is incapable of managing himself for his affairs, because of mental infirmity, have been produced.

The court does have inherent jurisdiction, however but it can only be exercised where legislation has not “occupied the field”, and where the exercise would not conflict with the governing statute.

The court noted that there had been a legislative gap in that one medical affidavit had been produced, but there was also in addition lay evidence attesting to the proposed patient’s memory and cognitive problems.

The court was of the opinion however that the evidence was lacking and in particular, there was little evidence that he was incapable of managing his affairs, or that anyone was taking financial advantage of him.