Tag: destroyed will

Garnett Estate v Garnett Estate 2013 BCSC 1731 is an interesting case where pre WESA, a lawyers questionnaire re will instructions was determined by the court to be a valid will and admitted into probate.

In this case the executrix brought an action to prove the will of the deceased in solemn form.

The deceased was in palliative care and it became apparent that she would not survive long enough to meet with a lawyer to complete a new will. She then had two witnesses sign the lawyers questionnaire left by the lawyer, which the deceased signed in the witnesses presence.

The will questionnaire did not have a residue clause, and in fact the two witnesses to the will were beneficiaries so they could not inherit under that document.

Nevertheless the court determined that the testamentary intention of the deceased was to make “a fixed and final expression as to the disposal of her property on death “( Das Estate 2012 NSSC 441 at para 18).

The court found that despite the unconventional form of the 2008 document and its original generation as a lawyers questionnaire which would ordinarily have led to the finalization of a more sophisticated document, the court found in the circumstances of the deceased demonstrated her obvious intention that the document constituted testamentary disposition.

Proof of a will in solemn form

[35] I quote from Gillis v. Ardies, 2009 BCSC 215 at paras. 19-20 per Parrett J.:

[19] In today’s process, proof in solemn form requires the executor (or the will’s proponents) to meet the evidentiary burden of proving the will before the court. In such a hearing the executor must satisfy the court by adducing evidence –

that the will in question was duly executed;
that the testator had the capacity to appreciate and understand its contents; and
that he had the ability to sign the will.
[20] In the present case, proving the will in solemn form is required to address the issue of whether or not portions of the writing are invalid, and to determine what, in fact, constitutes the will.

[36] I find the above a helpful summary of the steps I must take to deal with the application to prove Ms. Garnett’s will in solemn form.

Chang Estate v Chang 2013 BCSC 976 is a well considered judgement of Justice Dardi, who had extensive experience in estate litigation prior to her elevation to the Bench.

The testatrix,a widow, died in 2007 at age 98. She and her late husband had four children, and their only daughter the plaintiff, was the youngest. Their three sons were the defendants.

In 1998 the deceased and her husband purchased a house and put one son on title as a joint tenant with his parents. The testatrix and her husband never did live in that property, and that particular son collected the rent and prayed paid the property taxes and expenses , until 2004 when the testatrix paid two thirds of the property taxes and utilities.

In 1997 that sons, son sued his grand mother and grandfather over a dispute that had arisen regarding the property.

The matter went to trial in July 1999 and was dismissed.

The testatrix found those events very distressing and in January 1998 she and her husband severed the joint tenancy , leaving that son with a one third interest as a tenant in common.

The testatrix executed her will in July 2000, and her husband executed a reciprocal will at the same time.

The plaintiff was appointed the executrix, and the son with the one third interest in the property was given a $10 bequest, with the remainder of the estate being divided 30% to the plaintiff, 30% to one brother and 40% to the other brother.

The will explain the reasons for the minimal bequest to the one son, saying the testatrix and her husband had provided much assistance to him and had given him one third of the Surrey property, from which he had collected all of the rents for his own use.

The will also said that he and his family house have caused us much grief, heartache, and unhappiness and shame.

The plaintiff applied to prove the will and codicil dated July 2005 in solemn form.

The son challenged the validity of the will and codicil on the grounds that the testatrix lacked testamentary capacity and that the will was a product of coercion and or undue influence.

The court held that the testatrix had proved on the balance of probabilities that the will was executed in compliance with the statutory formalities, that the testatrix knew and approved of the contents of the will, and that she had testamentary capacity.

The professionals who prepared the will gave evidence, and it was proven that both documents were executed after having been read to the testatrix, who appeared to understand the contents.

The law presume the testatrix knew and approved of the will and possess the requisite testamentary capacity.

The evidence of the testatrix physician and those who prepared the documents and attended upon execution also established attempted testamentary capacity.

No suspicious circumstances arose in the facts established by the evidence, nor was there any evidence of undue influence by the plaintiff or anyone else.

Legal Framework

[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), 12E.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.

Rule 21 (27) provides for the administration of an estate by an attorney.:

“ If a person entitled to administration resides outside British Columbia, administration by attorney, or administration with the will annexed, may be granted to the person or the person’s attorney acting under a power of attorney”.

The attorney need not be a resident of British Columbia, and such a grant generally will not be made to an attorney residing in the same jurisdiction as the donor.

In re Edmundson Estate 1963, 44 WWR 119 (BCSC) , the court commented at page 123 that the case law:

“suggests that if the principal and the attorney are both resident in the same place, the court would prefer the principle be appointed rather than the attorney. In other words, the provision for the appointment of an attorney is an additional right given to the person otherwise entitled to the administration to have an attorney appointed if the residence of the person otherwise entitled out of the jurisdiction makes it difficult for that person to perform his or her duties.”

The grant is limited for the use and benefit of the person who appoints the attorney and until that person applies for administration in British Columbia.

Administration by an attorney might be used when the person entitled to the administration has one or more of the following criteria:

A. Has language difficulties that may prevent him or her effectively handling the estate in British Columbia;

B. May be difficult to contact for the purpose of providing instructions are executing documents;

C. May have difficulty dealing with assets in this jurisdiction ie running an active business.

If there are several persons entitled to the grant, all residents of the jurisdiction, the grant may be made to the attorney of one, but subject to the consent of the others. Such an attorney is not merely the agent of the principal, but is responsible for the due administration of the assets and is liable to be called to account by the persons interested in the estate.

Several years ago disinherited.com had an estate where the deceased had substantial assets that needed protection, while it took in excess of two years to locate his very distant next of kin in the far-off Ukraine. He had died intestate and no person came forward to be appointed administrator of the estate.

In these situations where there is a delay in the appointment of a general administrator and it is necessary for the protection of the estate that someone be empowered to protect the assets, then the court may well appoint an administrator ad colligenda bona.

This type of grant and is typically made when situations arise where either there is no one to be appointed administrator, or they cannot be located, or they have refused to accept a grant of administration.

The grant may even be made to a creditor or to a friend of the deceased, as the main purpose is to protect the assets until a proper administrator can be found and appointed.

The grant is usually limited to a particular purpose and time until the jungle until the general grant is made. It is for the administration only, the will is not proved her annexed, and bonding is generally required.

In Re Shalapay 3 BCLR 3d 217 the Court held that an Administratrix is entitled to reasonable remuneration for services performed as administratrix and as solicitor.

There is no statutory authority for the appointment of an administrator ad colligenda bona. However, the scope of the appointment is similar in nature to that of an administrator pendente lite. If the estate is large, a percentage fee as contemplated by s. 90 of the Trustee Act would be ridiculous. On the other hand, if the estate were small, a percentage fee might be insufficient.

An administratrix ad colligenda bona should be entitled to reasonable remuneration rather than a percentage of the estate for her work as administratrix and to her reasonable fees as solicitor. Her accounts as solicitor would be subject to review under the Legal Profession Act.

Executors frequently appoint more than one person as his or her personal representative, and on occasion not all parties who are entitled to apply for probate actually do. However at the same time they do not renounce their executor ship and reserve the right to apply at a later date.

If that executor does apply for probate at a later date, the new grant is called a double probate, that runs concurrently with the earlier grant, assuming one or more of the first executors to probate is still living.

The applicant for the double probate includes only the un- administered estate in his or her affidavit. The affidavit must also give particulars of the early grant of probate, and show that the power to him or her to apply was in fact reserved in the earlier grant.

The same notice of intention to apply for probate pursuant to section 112 of the Estate Administration act must be sent to all interested parties again, along with the appropriate supporting materials.

While textbook authors have stated that in theory one executor may apply for a grant of probate without notifying the other executors, in practice it is doubtful that a court would make such an order without notice, as it is important that the executors who are not appointed, reserve their right to apply at a later date, and that the right is specifically stated in the initial grant of probate.

Re Whitehead Estate 2010 BCSC 348, the deceased was a founding member of a credit union and a retired bank manager. After his death, a “trued up” copy of will dated December 21, 1979 was found, but the original of that will was never located.

Under the will his sister was to receive $356,000, whereas on an intestacy, the sisters estate would receive 120,000. The sister had survived her brother, but subsequently died leaving two daughters.

The deceased was a meticulous record keeper who wrote letters to friends prior to his death that said she was getting her affairs in order, and did not want to leave loose ends for executors.

The deceased met with her financial advisors three times in the last month of her life. The financial advisor said that the deceased had plans to establish funds for various charities so as to reduce gifts to individuals and had placed $400,000 aside and guaranteed investment certificates.

The deceased solicitor had died and the original will was not found amongst his files.

The proposed administrator of the deceased estate made an application for a declaration that the deceased died intestate rated

The application was allowed.

No evidence was called to establish that the copy of will was properly executed in the first place, or was in fact a true copy of will.

There was no presumption that the will was destroyed, as there was no evidence that the deceased ever had possession of the original will.

20 The test for proving a lost will requires proof of the due execution of the will; particulars tracing possession of the will to the date of death, and afterwards if the will was lost after death; rebuttal of the presumption that the will was destroyed by the testator with the intention of revoking it; and proof of the contents of the lost will: Sorkos v. Cowderoy, [2006] O.J. No. 3652(Ont. C.A.).

21 Similarly, in O’Donovan v. O’Donovan, [2009] O.J. No. 5020(Ont. S.C.J.) the court noted that:

As previously stated, the original wills have not been located. Sheila found signed copies in the residence. Proving a lost will can be accomplished; that is proof as to its contents, due execution and testator’s capacity: see Oosterhoff on Wills and Succession, 5th edition, Carswell 2001 at p. 355. Professor Oosterhoff adds the propounder of the will “… must usually also overcome the presumption of destruction “animo revocandi” … if the will was last known to be in the deceased’s possession”: see, also, Lefebvre v. Major, [1930] S.C.R. 252(S.C.C.); and Sorkos v. Cowderoy (2006), E.T.R. (3d) 108 (Ont. C.A.). This concept follows the English authorities: see Sugden v. Lord St. Leonards(1876), 1 P.D. 154(C.A.).

There is no issue arising in this case as to the deceased’s testamentary capacity.

22 The applicant referred to Goudge, Re, [1978] N.B.J. No. 337(N.B. Prob. Ct.). In that case one of the issues was whether or not there was a properly executed will. The solicitor who had drawn the will testified that he was one of the witnesses to the execution of the will by the testatrix. He also said the second witness was present at the time the will was executed. On that evidence the will was proven to be a copy of a properly executed will.

23 The applicant says that kind of evidence is missing in this case. Not only has the solicitor who drew the will died, but also there is no one available who can identify the witnesses to the will whose names appear in the “trued up” copy. While the will has all of the appearances of a copy of a properly executed will, the applicant says that it cannot be presumed to be properly executed by appearance only and requires evidence from someone who can swear that it is a true copy of will and that it was properly executed.

24 In Goudge’s Estate, supra., and other cases such as Green Estate, Re, 2001 ABQB 835(Alta. Q.B.), and Flaman Estate, Re, [1997] S.J. No. 442(Sask. Q.B.) evidence was presented by a witness who was able to testify to the proper execution of the will and that it was a true copy of the original.

25 In Flaman, the court held that the two main requirements to admit a copy of will to probate are that there be proof of execution of the original and proof of the contents. The court held that there was no proof of execution of the will and it was not admitted to probate. Instead, a direction was given that proper proof of execution was required. The court referred to Williams on Wills, 5th ed., Vol. 1 (London, Butterworths, 1980) at p. 96 where it was stated:

… Where a testamentary document has been lost or destroyed in such a way as not to effect a revocation probate may be granted of the contents thereof upon proof of such contents and due execution and attestation of the instrument. Where the person setting up an alleged will cannot produce any copy or draft or any written evidence of its contents, he must prove all these matters so as to remove all reasonable (but not all possible) doubt on these points

. . . . .

9 As well, R.B. Rowe, E. Heward & G.F. Dawe, eds, Tristam and Coote’s Probate Practice, 25th ed. (London: Butterworths, 1978) sets out at p. 561 what an affidavit should show if, as in this case, no copy or draft of the will is available. First of all, “[i]f the original will was not forthcoming at the death of the testator, the full circumstances in which it was last known to be in existence but failed to be forthcoming at the death.” Secondly, “[d]ue execution of the original will, which should, whenever possible, be proved by one of the attesting witnesses.” Thirdly, the affidavit must also show “[w]ho are the persons prejudiced by the admission of the document sought to be established … and whether they are all sui juris.” Is there anyone who would take a greater interest under an intestacy or under an earlier will? Fourthly, the affidavit should “depose to the contents of the will as set out in a reconstruction, which should be in the form of a separate document exhibited to the affidavit.”

10 T.G. Feeney in The Canadian Law of Wills, states at p. 99 that:

… [P]robate may be granted of the contents of the lost will, after proof of due execution, on such secondary evidence as a copy or a draft or solicitor’s notes or any other written evidence; and indeed, if it is sufficiently clear, even oral testimony may be probated.

And the 35 C.E.D. (West. 3rd), Vol. 35, states at p. 155-162, s. 179 that:

S. 179 Should the presumption be rebutted, the lost will may be admitted to probate upon proof of due execution, and evidence of its contents may be adduced by way of a copy or a draft, solicitor’s notes or other writings, or even by oral testimony.

[Emphasis added]

26 In this case, there is no evidence to identify the witnesses to the execution of the will nor is there any evidence to show that the will is a true copy of the original will. While the copy presented has all of the characteristics of a legitimate copy of an original will, on the authorities it cannot be presumed that the original was properly executed or that the copy presented is a true copy. The authorities require proof of both.

27 It may be that the necessary proof can be presented through means other than a witness to the execution of the will. For example, proof of the usual practice followed by a solicitor or legal assistant that a will was only “trued up” once it had been properly executed and compared to the original may be sufficient to show that it is in fact a true copy. But some evidence is necessary to establish the necessary facts and here there is none. There is no witness available or even identified to say that the will was properly executed nor is there anyone to attest to any other evidence to establish that the copy of will is a true copy as that term is understood in law. Even if the standard of proof is lower than a balance of probabilities there is an absolute absence of any evidence whatsoever in this case.

28 The applicant is therefore entitled to succeed on the ground that there is no evidence upon which the court can conclude that the will of the deceased was properly executed or that it is a true copy of the original will.

29 If that conclusion is incorrect and the will is in fact properly executed and a true copy of the original, the next issue is whether the original will can be traced to the possession of the deceased. If it can be traced to her possession then on a finding that the original has been lost, the presumption arises that it has been destroyed with the intention of revoking the will. Feeney in The Canadian Law of Wills, 3rd edition, vol. 1 at pp. 134-135 states:

The same presumption, that of destruction animo revocandi, that arises when a destroyed or mutilated will is found among the testator’s papers on his death, arises also when it is shown that the testator’s will was last traced to his possession but cannot be found on his death. The presumption is well recognized in Canadian case law, but the fullest inquiries for the lost will must be shown to have been made for a court to apply the presumption in the first place. The presumption is often rebutted either by the circumstances tending to show a contrary conclusion or by declarations made by the testator showing that he regarded the lost will as valid and subsisting. However, strong evidence is usually needed to rebut the presumption.

30 The beneficiaries under the will submit that there is no evidence to suggest that the deceased was in possession of the will. No one has said that the original will was ever known to be in her possession nor is there any reference in the affidavit material to a comment of the deceased that she had at any time had the original of her will in her possession. The deceased named her solicitor as the sole executor of her estate without any alternates and it is likely that the original at least initially remained in his possession. The beneficiaries also say that if the deceased was in possession of her original will, there was no need for her to keep a copy in a briefcase containing other important papers. See Haider v. Kalugin, 2008 BCSC 930(B.C. S.C. [In Chambers]), at para. 22.

31 On the evidence presented in this case, I am not able to find that the deceased ever had possession of the original will and therefore the presumption that the will has been destroyed with the intention that it be revoked does not apply.

Conclusion

32 On the evidence the applicant is entitled to a declaration that the deceased died intestate as there is no evidence that the copy of will presented in evidence was ever properly executed by the deceased or that it is in fact a true copy of will.

Re Hoedl Estate 2012 ONSC 6857 involves the issue of whether the drafting solicitors notes are admissible at a hearing to interpret a will meaning.

The executor of the deceased estate was also the solicitor who drafted the will.

The executor initially advised of one proposed distribution of the residue, and then subsequently advised of the second proposal after checking his notes made at the time of drafting the will.

The executor brought a court application for interpretation of the will in order to resolve the confusion created by the two conflicting proposed distributions of the residue.

One of the residual beneficiaries brought a motion for an order that the lawyer’s notes made at the time of the drafting of the will should not be admitted at the hearing.

That motion was dismissed and the notes were admissible at the hearing.

The court found that the wills meaning was clear and that his words were supported by the contemporaneous notes. The notes would not have been admissible to contradict clear words of the will.

However here if the will was ambiguous and could be read in two ways, and the notes would be admissible as extrinsic evidence to clarify the testator’s intention.

12 In Robinson Estate v. Robinson, 2011 ONCA 493(Ont. C.A.) (CanLII), the court reaffirmed the general principal that extrinsic evidence of a testator’s intention is not admissible in the face of an unambiguous will. However, Juriansz, J.A., speaking for the court, said the following, at para. 24:

Of course, it is always possible that the testator’s expression of her testamentary intentions may be imperfect. When a will takes effect and is being interpreted, the testator is no longer available to clarify her intentions. Extrinsic evidence is admissible to aid the construction of the will. The trend in Canadian jurisprudence is that extrinsic evidence of the testator’s circumstances and those surrounding the making of the will may be considered, even if the language of the will appears clear and unambiguous on first reading. Indeed, it may be that the existence of an ambiguity is only apparent in the light of the surrounding circumstances.