“Adopted Out” Child Cannot Contest Biological Parent’s Estate Under Wills Variation

"Adopted Out" Child Cannot Contest Biological Parent's Estate Under Wills Variation

Boer v Mikaloff Estate 2017 BCSC 21 confirmed that an “adopted out” child cannot contest the will of the biological parent’s estate under S.60 WESA (the wills variation provision) when it answered the following posed question negatively:

Does a child who is adopted by other parents after birth, but who is named as a beneficiary under his birth mother’s will, have standing to seek relief under section 60 of the Wills, Estate and Succession Act, S.B.C. 2009, c. 13?

4      For the reasons that follow, the answer to the question is no. The plaintiff’s claim will be dismissed.

RELEVANT STATUTORY PROVISIONS

6      The relevant statutory provisions are ss. 37(1) and (5) of the Adoption Act, R.S.B.C. 1996, c. 5, the definition of “enactment” in s. 1 of the Interpretation Act, R.S.B.C. 1996, c. 238 and s. 3 and s. 60 of WESA.

7      Subsections 37(1) and (5) of the Adoption Act read:

37 (1) When an adoption order is made,

(a) the child becomes the child of the adoptive parent,

(b) the adoptive parent becomes the parent of the child, and

(c) the parents cease to have any parental rights or obligations with respect to the child, except a parent who remains under subsection (2) a parent jointly with the adoptive parent.

. . .

(5) The family relationships of one person to another are to be determined in accordance with this section, unless this or another enactment specifically otherwise provides or distinguishes between persons related by birth and persons related by adoption.

8      Section 1 of the Interpretation Act defines “enactment”:

In this Act, or in an enactment: . . .

“enactment” means an Act or a regulation or a portion of an Act or regulation;

9      Sections 3 and 60 of WESA read:

3 (0.1) In this section, “pre-adoption parent” means a person who, before the adoption of a child, was the child’s parent.

(1) Subject to this section, if the relationship of parent and child arising from the adoption of a child must be established at any generation in order to determine succession under this Act, the relationship is to be determined in accordance with the Adoption Act respecting the effect of adoption.

(2) Subject to subsection (3), if a child is adopted,

(a) the child is not entitled to the estate of his or her pre-adoption parent except through the will of the pre-adoption parent, and

(b) a pre-adoption parent of the child is not entitled to the estate of the child except through the will of the child.

(3) 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 purposes of succession under this Act.

ANALYSIS

17      Section 60 of WESA requires a will-maker to make adequate provision for the proper maintenance and support for the will-maker’s spouse and children that is adequate, just and equitable in the circumstances.

18      A “will-maker” is defined as “a person who makes a will”: s.1 of WESA.

19      A “spouse” is specifically defined for the purposes of WESA: ss. 1 and 2.

20      WESA does not define “child” or “children”.

21      Subsection 37(1) 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”. Section 1 of the Adoption Act defines a “child” as “an unmarried person under 19 years of age”.

22      Our 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. The Court considered in detail, s. 37 of the Adoption Act as it then read. For the purpose of the case at bar, the changes to s. 37 of the Adoption Act at the time of Clayton and now are not significant.

23      Justice Esson (as he then was), stated:

[6] . . . — It will be seen that s. 37(1) [Adoption Act] retains the concept that upon the making of the adoption order the child becomes the child of the adoptive parent and the adoptive parent becomes the parent of that child. It goes on to provide, subject to an exception which has no application here, that the birth parents cease to have any parental rights or obligations with respect to the child.

[7] Section 37(1)(c) is, in my view, all-important in relation to the present issue. Because the birth parents cease to have any parental rights or obligations, it must follow that the child ceases to have any rights against the birth parents other than those defined in s. 37(6), i.e., rights which vested in the child before the date of the adoption order. The existence of s. 37(6) is inconsistent with a legislative intention to allow other rights of the child against the birth parent to survive the adoption order.

[8] Section 37(6) [should read 37(5)] of the new Act, which provides that the family relationships of one person to another are to be determined in accordance with s.37, also has a clear bearing on the present issue. The question whether a person is “issue” of another person is a matter of family relationships. The clear effect of s.37(1) is that the adoptive child becomes the child of the adoptive parent. From that it follows that all parental obligations fall upon the adoptive parents. It can therefore be said of the present provisions, as Seaton J.A. said of s. 11 of the former Act:

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 a child of the old family.

Executor Can Waive Solicitor Client Privilege

Executor Can Waive Solicitor Client Privilege

Haas Estate v Jane Doe 2017 BCSC 12 confirmed that an executor( personal representative ) of an estate can waive any solicitor client privilege that existed prior to the deceased’s passing.

Mr. Haas died on February 15, 2016, leaving a will naming his only child, the plaintiff, Brigitte Marga Anne Stapleton, as his executor and sole beneficiary of his estate. 

2      Approximately four months before he died, Mr. Haas purchased an insurance contract for a premium of $100,000 and named the plaintiff as the beneficiary. However, approximately two months before his death, Mr. Haas changed the beneficiary designation on the insurance policy to a party or parties unknown  ( thus Jane Doe as a defendant). Around the same time, he consulted with a solicitor, Ms. Kirsten Okimaw, with regard to estate planning matters. No new will was prepared.

The application was whether the plaintiff was entitled to a copy of the solicitor’s file. The solicitor has thus far refused to turn over the file based upon advice she has received from a practise advisor with the Law Society of British Columbia that the file is or may be protected by solicitor-client privilege 

s. 142(1) of the Wills, Estates and Succession Act, which states :

142(1) A personal representative has the same authority over the estate in respect of which the personal representative is appointed as the deceased person would have if living, subject to

(a) a contrary intention appearing in the will of the deceased person, and

(b) this or any other enactment. 

15      The “wills exception” cases are those where the solicitor who took instructions and drafted the will was required to give evidence regarding communications and instructions between solicitor and client where the execution, contents or validity of the will were in issue, despite there being no waiver of privilege. The plaintiff refers to authorities where the wills exception has been expanded to include analogous transactions such as the creation of a trust (Geffen v. Goodman Estate, [1991] 2 S.C.R. 353), and production of an estate planning file where the deceased had transferred two pieces of property prior to his death (Kreeft v. Kreeft Estate, September 18, 2006, Kelowna Registry No. S64537). Courts have drawn a distinction between those cases where production of a solicitor’s file is sought to aid in the determination of the validity or interpretation of the will on one hand and an attempt to attack or vary the will where the intentions are clear and manifest on the face of the will on the other. 

24      One case which addressed the question directly was Hicks Estate v. Hicks, [1987] O.J. No. 1426. The parties to the action were relatives of the deceased, and at issue in the claim was whether certain transfers of property were valid. The plaintiff was the personal representative of the deceased who brought an application for production of the files of the deceased’s former solicitors. Stortini D.C.J. stated the issue succinctly at para. 12:

The privilege can be waived or lost by the client. In our case the client is dead. Who, therefore, is the repository of the privilege?

25      He then went on to answer his own question as follows at para. 15:

15. It is clear, therefore, that the privilege reposes in the personal representative of the deceased client who in this case is the plaintiff, the administrator of the estate of Mildred Hicks. The plaintiff can waive the privilege and call for disclosure of any material that the client, if living, would have been entitled to from the two solicitors.

26      A British Columbia case that addressed the rights of a personal representative to waive privilege is Romans Estate v. Tassone, 2009 BCSC 194, which involved the estate of an elderly man who shortly before his death transferred two assets to a friend and named his much younger caregiver as the executor and sole beneficiary in his will. The executor commenced an action against the deceased’s friend to set aside the conveyances and an applied for production of the conveyancing solicitor’s files. The named executor had not been granted probate as at the date of the application and her entitlement to probate was in dispute. The deceased’s former solicitor asserted privilege over the conveyance files. Savage J. held that the solicitor had properly refused to disclose the files and that it was appropriate that the executor prove her authority by producing letters of probate first. At para. 40, Savage J. held the following:

40. The authorities in my view make several matters clear: (1) an action can be commenced without obtaining probate, as an executor’s authority is based on the will, (2) before proceeding with an action already commenced, the parties to an action may require that the Plaintiff prove their authority by producing letters probate, (3) the court may require that a Plaintiff prove their authority, by producing letters probate, of its own motion, when appropriate and (4) the court may order a stay of proceedings any time after the commencement of an action where it is in the interests of justice to do so, pending the issuance of letters probate.

27      While the question does not appear to have been a matter of dispute, Savage J. at para. 41, confirmed that the solicitor-client privilege vests in the personal representative

Gifts to Witnesses: S. 43 WESA

Gifts to Witnesses: S. 43 WESA

Witnesses of a will and declares that such gifts are void, unless the court is satisfied that the will maker intended to make the gift to the person even S. 43 of  WESA governs the issue of gifts to though the beneficiary or his or her spouse was a witness to the will.

43 (1) Unless a court otherwise declares under subsection (4), a gift in a will is void if it is to

(a) a witness to the will-maker’s signature or to the spouse of that witness,
(b) a person signing the will by the will-maker’s direction, or the spouse of the person signing, or
(c) a person claiming under a person, other than the will-maker, referred to in paragraph (a) or (b).
(2) For the purposes of subsection (1), the relevant time for determining whether one person is the spouse of another is the time when the will was made.
(3) If a gift is void under subsection (1), the remainder of the will is not affected.
(4) On application, the court may declare that a gift to a person referred to in subsection (1) is not void and 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.
(5) Extrinsic evidence is admissible for the purposes of establishing the will-maker’s intention under subsection (4).

An express gift to an adult child would not be invalidated if their parent is a witness. It is only a witness or spouse of a witness whose gift gets invalidated.

It is likely that a statement of such intention in the will itself would provide adequate evidence of that intention to satisfy a court to declare the gift valid.

Mutual Wills Create Constructive Trusts

Mutual Wills Create Constructive Trusts

Mutual wills as opposed to mirror wills, are not very common, but when they exist and  breached, that breach creates a trust that can be used to trace the assets into the hands of third parties.

Mutual wills are not a good idea for estate planning purposes and should be avoided except in unique circumstances.

In order for the breach of trust to occur, there must firstly be a contract between the parties not to change their wills and to provide for the other as per the terms of the mutual wills.

The mutual wills  are usually and should be accompanied by a written contract where  the parties essentially contract with the other not to ever change the terms of the mutual wills that they are signing.

The overwhelming number of parties who do will providing for each other do NOT do mutual wills but instead do mirror wills.

What may occur after the death of the first party to the contract,  the survivor as time goes on may  change his or her will to benefit other parties that the estate of the first to die.

If the mutual will is properly executed and the breach of trust is proven to have occurred, the  courts may award a constructive trust over the assets that should have formed part of the estate, and order that they are held in trust for the beneficiaries of the estate of first to diet

The authorities have consistently supported the proposition that a person cannot avoid a mutual will agreement by making dispositions of a testamentary nature.

Most authorities go further and support the proposition that a person cannot make any disposition intended to defeat the agreement, whether testamentary or not.

Barns v Barns [2003] HCA 9, at paras. 163-4;  Flocas v Carlson [2015] VSC 221, at para. 192; Healey v Brown, [2002] EWHC 1405 (Ch), at paras. 13-14; Russo & Ors v Russo & Anor [2009] VSC 491, at para. 32; Youdan, T. G. “The Mutual Wills Doctrine” (1979) 29 U.T.L.J. 390, at 410-414; Oosterhoff, supra, at 140-142, 152-3; Croucher, supra, at 405

In the Australian case of Bigg v Queensland Trustees Ltd, [1990] 2 Qd R 11 as well as a number of Canadian cases that were decided before it,  state that where a person has acted to his or her detriment in reliance on an agreement to make irrevocable mutual wills, the court will enforce the agreement against the first to die in the same way as the traditional doctrine enforces the agreement against the survivor.

In Bigg v Queensland, the plaintiff, Mr. Bigg, and his wife, Mrs. Bigg, executed irrevocable mutual wills, which left their estates to each other, and on the death of the survivor, all of the assets divided equally between their four children (each had two from a previous marriage).

Mrs. Bigg died first, after having secretly made several new wills, which essentially left Mr. Bigg with just a life estate. Not knowing that Mrs. Bigg had revoked the mutual will, and still believing that he would be the sole beneficiary of her estate, Mr. Bigg transferred some of his investments into Mrs. Bigg’s name (for tax reasons).

After Mrs. Bigg’s death, Mr. Bigg sued the estate, claiming that the executor held all of the estate assets in trust for Mr. Bigg, and damages for breach of contract in the alternative.

In his judgment, McPherson J. (Supreme Court of Brisbane) questioned the reasoning in Stone v. Hoskins, and ultimately held that equity could not allow Mrs. Bigg to secretly change her will, while permitting Mr. Bigg to continue acting to his prejudice on the assumption that their agreement was still in place. On that basis, the court declared that the defendant executor held Mrs. Bigg’s net estate in trust for Mr. Bigg.

Joint Venture Agreement

Joint Venture Agreement

Leontowicz Estate v Bakus 2016 BCSC 601 dealt with the validity of a trust relating to mining stakes where it was argued that the deceased had entered into a Joint Venture Agreement that must be based on whether or not there is a binding contract between the venturers.

The court reviewed the evidence and documents and concluded that the deceased in creating the trust did not intend to create a Joint Venture Agreement and discussed the law relating to same :

76      I reject the defendant’s proposition that the Deceased, Bakus and Dahl intended the Trust Declarations as joint venture agreements. A trust declaration may form part of a joint venture agreement, but it must itself constitute a valid trust and satisfy all the essential elements summarized earlier in these Reasons.
77      The invalid Trust Declarations in this case purported to create bare trusts. They do not declare or contain the terms necessary to constitute an enforceable joint venture. The actions Bakus undertook both with respect to the Deceased’s mineral claims and to his own did not represent performance of the terms of a joint venture agreement. The Trust Declarations did not authorize them and there is no joint venture agreement to be found that does so, either in writing or clearly inferable from the parties’ conduct, or from the surrounding circumstances.
78      The subject matter of the venture remains at best ill-defined and vague. In other words, if there was a form of contract, it would be void for uncertainty of essential terms. There is no expressed right of mutual control or management of the enterprise. There is no provision for a right of accounting or reimbursement for extraordinary contributions made to the venture of the kind Bakus said he had made and for which he should be compensated. The purported assets of the alleged joint venture are at best uncertain.

What is a Joint Venture Agreement?

[31] … Although its existence depends on the facts and circumstances of each particular case, and while no definite rules have been promulgated that apply generally to all situations … the following factors must be present [for a valid joint venture]:
(a) A contribution by the parties of money, property, effort, knowledge, skill or other asset to a common undertaking;
(b) A joint property interest in the subject matter of the venture;
(c) A right of mutual control or management of the enterprise;
(d) Expectation of profit, or the presence of “adventure”, as it is sometimes called;
(e) A right to participate in the profits;
(f) Most usually, limitation of the objective to a single undertaking or ad hoc enterprise.
75      To be valid, the joint venture agreement must have at its foundation a binding contract among the partners or joint venturers which contains all the essential terms of the agreement between the parties: Blue Line Hockey Acquisition Co., Inc. v. Orca Bay Hockey Limited Partnership, 2009 BCCA 34[Blue Line] at para. 10; see also, Palmar Properties Inc. v. JEL Investments Ltd., at paras. 37-41. In Blue Line, the parties’ intention to form a joint venture agreement was found in the express terms of the joint venture agreement and the trust declaration, which the defendants did not dispute were validly executed.

S. 52 WESA: Undue Influence Presumption re Dependence

S. 52 WESA: Undue Influence Presumption re Dependence

Positions of dependence or domination are frequently involved in estate litigation and typically relate to caregiving or predator type behavior that ultimately takes advantage of  feeble mind.

Elder Estate v Bradshaw 2015 BCSC 1266 involved a contested court action re  the validity of the deceased’s will as a result of allegations of lack of mental capacity and undue influence.

The deceased left his entire estate to a 26 year younger housekeeper who gradually became his caregiver. The will was challenged by his three nephews who were his next of kin on an intestacy.

The decision is a good source of law relating to both the legal framework for proving the validity of a will in solemn form, as well as a review of undue influence, both with respect to a bequest left in the will and monies advanced to a joint bank account.

The court examined the evidence of several witnesses and concluded that there was no undue influence on the part of the caregiver with either the will or the joint bank account.

The deceased was elderly, had no next of kin and was almost reclusive. The relationship between the parties was over several years and the witnesses testified that their relationship was not suspicious in any manner. The evidence supported the caregiver’s position that she was his main source of emotional and physical support for many years, and he stated that he did not know what he would do without her.

It is somewhat surprising that the court does not adopt  s. 52 WESA in its reasons for judgment relating to the issue of the shifting onus of proof re undue influence other than to say that the legal framework to prove the will in solemn form is still the law relating to the shifting burden of proof, despite the wording of s.  52.

It is almost impossible to separate the two issues of lack of mental capacity and undue influence as they are invariably intertwined in the facts. Probably the only undue influence case that might occur without there being lack of mental capacity is the situation of a cult were on person controls the minds of many.

 

THE  LAW

[10]         In Leung v. Chang, 2013 BCSC 976, Dardi J. summarized the pertinent authorities and legal framework for analyzing a proof in solemn form claim where issues of testamentary capacity and undue influence are raised:

Legal Framework of Proving a Will Valid In Solemn Form

[25]      The Supreme Court of Canada in Vout v. Hay, [1995] 2 S.C.R. 876 clarified the principles with respect to the burden of proof in litigation regarding contested wills. The Court articulated the considerations which govern the interrelation of the doctrine of suspicious circumstances and the issues of testamentary capacity, knowledge and approval, undue influence and fraud.

[26]      In an action for proof of will in solemn form, the party propounding the will must prove on a balance of probabilities that the will was executed in compliance with the statutory formalities, that the will-maker knew and approved of the contents of the will and that the will-maker had testamentary capacity: Vout at paras. 19-20.

[27]      In order to make a valid will, the will-maker must have a “baseline level of mental acuity” or a “disposing mind and memory”, sufficient to appreciate and comprehend the nature and effect of the essential elements of the testamentary act. This encompasses an appreciation of the claims of the persons who are the natural objects of her estate and the extent of her property of which she is disposing: Laszlo v. Lawton, 2013 BCSC 305 at para. 185; Banks v. Goodfellow (1870), L.R. 5 Q.B. 549; Leger v. Poirier, [1944] S.C.R. 152 at 161. The assessment of whether a will-maker possesses testamentary capacity is a highly individualized inquiry and is a question of fact to be determined in all the circumstances: James v. Field, 2001 BCCA 267 at para. 51; Laszlo at para. 197.

[28]      In certain circumstances, the propounder of the will, in discharging the burden of proof, is aided by a rebuttable presumption of validity. If the will was duly executed in accordance with the requisite statutory formalities after being read over to or by a testator who appeared to understand it, it is presumed the testator possessed the requisite testamentary capacity and knew and approved of its contents: Vout at para. 26.

[29]      This presumption may be rebutted by evidence of “well-grounded suspicions”, referred to in the jurisprudence as “suspicious circumstances”, relating to one or more of the following circumstances:

(i)         surrounding the preparation of the will;

(ii)        tending to call into question the capacity of the will-maker; or

(iii)       tending to show that the free will of the will-maker was overborne by acts of coercion or fraud: Vout at para. 25.

[30]      If suspicious circumstances are established, then the presumption is spent and the legal burden of proof reverts to the propounder of the will. The propounder of the will then reassumes the legal burden of proving knowledge and approval, as well as proving testamentary capacity, if the suspicious circumstances reflect on the mental capacity of the will-maker to make a will: Woodward v. Grant, 2007 BCSC 1192 at para. 108. In order to discharge the burden, the propounder of the will is required to dispel the suspicious circumstances that have been raised: Ostrander v. Black (1996), 12 E.T.R. (2d) 219 at para. 30 (Gen. Div.).

[31]      In Vout, the Court affirmed that if a court determines that suspicious circumstances exist, the applicable standard of proof is a balance of probabilities. However, the evidence must be scrutinized in accordance with the gravity of the suspicion raised in any particular case.

[32]      In order to rebut the presumption of validity, those attacking the will must meet the threshold of demonstrating that there is some evidence “which, if accepted, would tend to negative knowledge and approval or testamentary capacity”: Vout at para. 27; Maddess v. Racz, 2009 BCCA 539 at para. 31. The court in Scott v. Cousins (2001), 37 E.T.R. (2d) 113 (Ont. S.C.J.) describes the requisite evidence as that which “excites the suspicion of the court”. A “general miasma of suspicion that something unsavoury may have occurred” is insufficient to rebut the presumption of validity; the evidence must raise a “specific and focused suspicion”: Clark v. Nash (1989), 61 D.L.R. (4th) 409 at 425 (B.C.C.A.).

[33]      The court in Laszlo provides the following instructive observations regarding the doctrine of suspicious circumstances at para. 207:

Suspicious circumstances have been found to exist in a wide array of situations and are not necessarily sinister in nature. There is no checklist of circumstantial factors that will invariably fit the classification. Commonly occurring themes include where a beneficiary is instrumental in the preparation of the will (especially where the beneficiary stands in a fiduciary position to the testator), or where the will favours “someone who has not previously been the object of [the testator’s] bounty and does not fall within the class of persons testators usually remember in their wills, that is to say their next of kin.

Undue Influence

[34]      When undue influence or fraud is alleged, the party opposing probate always bears the legal burden of proving on a balance of probabilities the affirmative defence of undue influence: Vout at para. 28. It is important to appreciate that in these circumstances, the doctrine of suspicious circumstances and the shifting of the burden of proof has no application.

[35]      In order to invalidate a will on the grounds of undue influence, the asserting party must prove that the influence exerted against the will-maker amounted to coercion, such that the will did not reflect the true intentions of a free will-maker and was not the product of the will-maker’s own act. The undue influence must constitute coercion which could not be resisted by the will-maker and which destroyed his or her free agency. It is well-established on the authorities that if the will-maker remains able to act freely, the exercise of significant advice or persuasion on the will-maker or an attempt to appeal to the will-maker or the mere desire of the will-maker to gratify the wishes of another, will not amount to undue influence: Maddess v. Racz, 2008 BCSC 1550 at para. 324 aff’d 2009 BCCA 539; Freeman v. Freeman (1889), 19 O.R. 141 at 155 (C.A.); Scott at para. 112.

[11]         I adopt this summary as accurate and applicable in respect of the issues regarding the validity of the 2011 Will in the present case. Paragraphs 34-35 of the quoted passage are no longer applicable to wills to which s. 52 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [WESA] applies, that is, where the will-maker died after March 31, 2014.

Defective Will “Cured” S. 58 WESA

Defective Will "Cured" S. 58 WESA

S. 58 of WESA (Wills, Succession and Estates act) once again came to play to cure an otherwise  defective will in Re Smith Estate 2016 BCSC 350.

Once again the leading case in BC to date of re Young estate 2015 BCSC 182 was followed.

The facts:

The deceased and her husband lived together in a common law relationship for about 35 years until they married in 2012 .

The  applicant was the deceased’s granddaughter who as a child was very close to the deceased and lived with her for period of time.

The applicant remained very involved with the deceased as an adult.

The deceased advised that she had  drafted three documents and signed them having  asked the applicant if she would be the executor of her will and she agreed.

After the death of the deceased, the applicant searched for any testamentary documents in all places she thought they might reasonably be found including  funeral box .

The applicant found a clipped and stapled together copy of a 2008 document, an original 2011 document, and an original “funeral arrangements” document. ( three in total)

The  applicant brought applications for determinations that two handwritten records represented the  testamentary intentions of deceased, and were fully effective as though they had been made as or part of her will; and for orders and declarations setting out results of these determinations as well as orders dispensing with service of notice of application on particular beneficiaries, and her special costs .

The Court granted the orders.

The law:

17      Turning to the applicable law, WESA came into force on March 31, 2014. Among other things, section 58 permits the court to allow a document to be fully effective as though it had been made as a will, where the court determines the document represents a deceased’s testamentary intentions. Before WESA, documents that failed to strictly comply with the formal requirements of the Wills Act, R.S.B.C. 1996, c. 489 regarding the making, signing, and witnessing of a will were invalid.

18      Section 58 was first considered in Young Estate, Re, 2015 BCSC 182 (B.C. S.C.). Madam Justice Dickson observed the provision is curative, providing the court with a discretion in prescribed circumstances to relieve against the consequences of non-compliance with testamentary formalities. It cannot however be used to uphold a will that is invalid for substantial reasons such as testamentary incapacity or undue influence. Her decision relied upon the principles set out in George v. Daily (1997), 143 D.L.R. (4th) 273 (Man. C.A.) which dealt with similar provisions in the Manitoba Wills Act.

19      At paragraph 35, Dickson J. described the approach to an application under s. 58 of WESA as follows:

… (t) he key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death. A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a will, by its nature, is revocable until the death of its maker. Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.

20      She concluded the factors relevant to determining whether a document embodies the deceased’s testamentary intention are context-specific and 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.

Discussion and analysis:

21      During the hearing the applicant quite properly raised an issue about the validity of the gift to her set out in the 2011 document suggesting it may be construed as creating an unenforceable gift-over. I agree entirely with her further submission, however, that it is not the role of the court on an application pursuant to s. 58 to determine the validity of the instrument per se including the validity of the gifts it sets out. To the extent this approach may have been taken in Beck Estate, Re, 2015 BCSC 676 (B.C. S.C.), I decline, respectfully, to follow that decision.

22      Turning to the application of s. 58 to the facts of this case, the applicant recognizes the handwriting in the documents as that of the deceased. In any event, it is clear to me the handwriting matches known samples of her handwriting. Accordingly, I find the documents are authentic.

23      In this case, the factors relevant to determining whether each of the documents records a deliberate or fixed and final expression of the deceased’s intention regarding disposal of her property on death include:

  • The presence of her signature indicating her approval of the content of each document.
  • The titles she gave to each of the documents.
  • The content of the documents:

The first sets out and distributes a long list of clearly identified personal items to many specific beneficiaries on the event of her death and,

The second, includes a specific distribution of her real property, again, on the event of her death.

  • Both documents are expressed in language that conveys an air of finality.
  • The deceased met with Mr. Smith to discuss her will and presented him with both of these documents along with a third regarding funeral arrangements. She advised him she had drafted them herself and signed the first two. Her husband was also present for that meeting.
  • She subsequently met with the applicant and expressly asked her if she would agree to be her executor which she did. She advised the applicant that all of the necessary documents would be found in a funeral box she had prepared.
  • After the death of the deceased, the applicant then found a copy of the 2008 document, the original 2011 document and the funeral arrangements document in that funeral box. No other documents setting out a testamentary intention were ever located despite a diligent search.

24      After weighing all of these factors, I find on the balance of probabilities that the 2008 and 2011 documents represent the deliberate and final expressions of the deceased’s testamentary intentions. I therefore grant the orders sought by the applicant.

25      Pursuant to Rule 25-14(8)(i), I grant a further order dispensing with the requirement to serve the beneficiaries of the gifts set out in the 2008 document with notice of the application. I am satisfied that most of these gifts have already been distributed. As described in the document, they appear to involve personal items with little monetary value, and the beneficiaries would not have an entitlement upon an intestacy.

26      The applicant shall have special costs.