BC Vancouver lawyer Trevor Todd has 50 years experience in understanding and getting justice for disinherited parties from dysfunctional families.
This video is about dysfunctional families. Chances are, if you’re watching this video or you have read the article called Dysfunctional Families on our website, then you’ll know a lot about this topic. However, many people that come in our office actually are absolutely amazed how accurate this article is. They ask me, “How did you know my family so well?” Well, we don’t. But we do have a lot of clients who have been from dysfunctional families and they end up in our office as a result of it. Often, they’re victims.
There’s any number of reasons for dysfunctional families and it can be as varied as alcohol and drug abuse to physical violence to sometimes sexual assault to absentee parents to any number of reasons, strict family upbringings like religious fundamentalism. There’s another one. Any number of reasons can find yourself disinherited and in our office. I’m sure that we understand where you’re coming from and that we understand that often you are victims of such abuse. In fact, I’ve read that over one out of three people expect to be disinherited by their parents. I think that’s actually on the low side.
Leniuk Estate 2016 BCSC 159 held that a trustee for a child appointed under a will has priority over a guardian appointed under the Family Law act to hold funds in trust for a child’s behalf.
An application to have a guardian appointed trustee who was different from the will appointed trustee Part 8 of the Family Lawact was dismissed.
The Public Guardians position that the will appointed trustee is paramount and that Part 8 of the Family Law act was upheld by the court.
The will authorized the appointed trustee to make any payments for the beneficiary under 19 to the guardian of such person.
The Court stated inter alia:
Directions of the Court are sought because it is submitted that the executors and trustees are persons “having a duty to deliver property to a child” as defined in s. 175 Infants Act either because there is an existing duty to deliver the property to a child or because they would be under a duty to deliver property to a child if the child were an adult. (ss. 175 (a)(b)).
[12] That however is not determinative given Part 8 of the FLA does not, in my view, apply in this situation. I say this for a number of reasons.
[13] Section 176 provides that a guardian, simply because they are a guardian, is not a trustee of a child’s property. As a result someone else can be trustee of the child’s property. Hence, a trust instrument, such as a will, that states a guardian is to receive a child’s property and is empowered to grant a discharge is not contrary to the section. Indeed s. 176 by its very wording recognizes this as it provides “by reason only of being a guardian”. (Emphasis added)
[14] In my opinion the FLA provisions were not intended to, nor do they, override trust instruments. For public policy reasons, the Legislature saw fit to provide that the FLA address the situation where there is property to which a child is entitled but the child only has a guardian and there is no existing trustee. In circumstances where the property exceeds the prescribed amount in the small property exception the child’s guardian is not deemed to be the child’s trustee simply because they are a guardian. An application to the Court is required in order to determine who the appropriate trustee should be. Section 179 provides the factors the Court should consider when appointing a child’s trustee. Similar to other provisions in the FLA, the best interests of the child are paramount. An example of a situation when this might occur would be if a child received property from a relative who died intestate.
[15] Given the significant repercussions if the FLA provisions were intended to override existing trusts, in my opinion the legislature would have addressed that explicitly. Since the FLA provisions when dealing with “small property” were clearly addressing issues of proportionality I cannot accept that it was intended that existing trusts would have to apply to appoint a guardian a trustee in order to deliver property to a child. The potential number of applications would undoubtedly be significant and the cost substantial. In addition it would result in an inappropriate layering of trustee on top of trustee. Finally, it would be contrary to the express terms of the trust representing the wishes, in this case, of the testator.
[17] Part 8 also recognizes in s. 175 that a trust instrument includes a will and that trustees are authorized under such an instrument to receive or hold property in trust for a child. In other words, such a trustee is included in the definition of trustee just as is a trustee appointed under the FLA.
[18] In addition Part 8 acknowledges a trust instrument’s priority over the provisions of the FLA. For example, s. 178(6) of the FLAdealing with the delivery of small property provides:
178 …
(6) Nothing in this section
(a) affects the duty of a trustee to deal with trust property in accordance with the terms of the trust, …
…
[19] Section 179, the appointment of a trustee by the Supreme Court provision, also contains an exception in s. 179(1)(b) which provides:
179 (1) Subject to subsection (2), the Supreme Court on application may appoint one or more persons as trustees over
…
(b) all property to which the child is entitled at the time the order is made and to which the child becomes entitled while the order is in effect, except property
(i) identified in the order, or
(ii) over which a trustee already has authority. (Emphasis added)
[20] Finally, s. 179(4) states:
179 …
(4) Except as provided for in an order made under this section, The Trustee Act applies to the trustee and the trust.
[21] To assert that children’s property advanced to a guardian by anyone is caught by these sections extends the FLA provisions beyond their purpose and the problem they were intended to address. The purpose of these sections is to ensure that there is a trustee to protect the interests of the child, whether that is the guardian as trustee or another person does not matter. The point is to have someone responsible for the infant’s funds and to address the fact, that often for various practical reasons, it is desirable for the guardians to have the funds. Where there is no trustee and where the property exceeds a certain value, the guardian can be appointed as trustee.
[22] This is not a situation where there is uncertainty over who is the infant’s trustee. It is the trust instrument (the Will) that establishes the trust and names the trustees. It is the terms of that instrument that govern the trust. As long as the trustees comply with the terms of the trust they are protected. In accepting a receipt from the guardian they would be acting in accordance with the terms of the will and the trust and as a result that would be a valid discharge.
[23] The trustees are in this instance attempting to delegate their duties as trustees to a third party. In effect they are seeking an order that amounts to a variation of the Will.
[24] As a result, where the trust instrument addresses the issue of advancing funds, whether income or capital, to a guardian and addresses the obtaining of a valid receipt there is no need for a court application.
Trevor Todd and Jackson Todd have over 6o years experience in litigating wills variation claims
The British Columbia Court over turned and varied a will where his four daughters had been left with nothing.
William Werbenuk died more than two years ago with just enough money in the bank to pay for his funeral. The 86-year-old widower’s will gave all assets to his only son, Randall, and left his four daughters with nothing.
This week, a B.C. Supreme Court judge overturned the Pentiction, B.C., man’s will, saying his estate should be distributed to all of the man’s children based on “contemporary moral standards” – a move that has sparked much debate about a judge’s right to change a person’s will after they die.
Justice Randall Wong, ordered the estate, including Mr. Werbenuk’s Saskatchewan farmland and a valuable and extensive violin collection, be split according to need among Mr. Werbenuk’s son and four daughters, three of whom testified having endured years of abuse at the hands of their father.
The daughters have a “valid moral claim to share in the family wealth,” Judge Wong ruled.
According to the ruling, Mr. Werbenuk physically and emotionally abused his daughters. As punishment, their father regularly forced them to wash his feet, the women testified – a detail that helped lead Judge Wong to decide that the father was a “hard and rigid man who ruled his family, and especially the women, with an iron fist.”
Some criticized Judge Wong’s decision as a threat to “testamentary autonomy,” or, in other words, a person’s right to give their assets to whomever they want – a long running and divisive debate among B.C.’s litigators and defenders.
“There are lots of people in the bar in B.C., myself included, who think people should be allowed to give their stuff to whoever they want it to be given to,” said Bruce Hallsor, partner at Crease Harmon LLP in Victoria a d the immediate past president of the Canadian Bar Association’s national section on wills and trust.
“This gentleman, in this particular case, seems to be of unfortunate temperament and old-fashioned. The day before he died, he could have given everything he owns to his son.”
In British Columbia, a parent has a moral obligation to provide for their children after death under the Wills Variation Act, said Trevor Todd, a lawyer who exclusively defends disinherited people. It’s also the only province in which a non-dependent adult child can challenge his or her deceased parent’s will.
In most other provinces, only dependents and spouses can appeal a will before a judge through a similar wills variation act, he said.
The Wills Variation Act has helped many adult children who feel they have been unjustly denied their parents’ wealth after death, said Mr. Todd.
“I see lots of cases like that, where the children are damaged goods,” he said. “What a lot of these cases are is the last kick at you from the grave, the last insult.”
Judges are often sensitive to that and they do need to make judgments on individual cases because they’re all so different, he said.
A parent may explain why children were disinherited, but that’s only one side of the story, said Mr. Todd.
“Sometimes you’ll see wills where a father will be disinheriting his daughter, saying ‘She hasn’t called me in 30 years,’ When you tell the daughter dad says he hasn’t seen her, that they’re estranged, she might say ‘God damn right we are, he molested me,” Mr. Todd said.
Randall Werbenuk’s lawyer, Charles Albas, said his client is “devastated” by the judge’s ruling. He felt he was following his father’s wishes and that his estranged sisters were exaggerating.
Judge Wong empathized with the harsh life the daughters had been subjected to and Randall Werbenuk has to accept that, Mr. Albas said.
“[My client] is of the opinion that the judge was unduly hard on him. He basically did what his dad told him and he had a reasonable expectation that in doing that, he would be rewarded [in the will],” he said.
Randall Werbenuk will now receive 20% of his father’s assets.
Disinherited Daughter. Like Cinderella, the little girl named Margaret worked to earn her room and board. She washed and swept and did what she was told.
By the time she was five years old, her mother already passed her from home to home.
Now she slept behind a curtain in a dank basement and tried to be obedient. When she wasn’t she was whipped by a switch.
The woman she had been dumped with collected her baby bonus cheques, plus $20 a month from Margaret’s mother – and her mother was no more generous in death than she had been in life.
She disinherited her daughter she had given birth to and abandoned. Margaret Austin was left just $100 in her mother’s will.
The rest of her substantial estate went to two daughters she had later adopted and raised.
After a lifetime of quietly struggling to move beyond a childhood of abuse and neglected, Austin had enough.
She decided to fight back. She contested the will.
“This wasn’t about money,” said Austin, now 66. “This was about my relationship with my mother.”
Trevor Todd, the Vancouver lawyer and estate expert who represented Austin in her case, said, “People always say it’s not about the money. Well, actually, it is. If someone is left out, they feel really unloved.”
Money and love are difficult threads to untangle.
“Inheritance is a big deal,” said Todd. “A lot of parents just want to get one last kick from the grave. People are victimized and they are hurt.”
It is very old fashioned thinking that court costs come out of the estate , win or lose, as costs are now an important factor in settlement considerations.
The decision Deuschmann Estate v Fallis 2011 BCSC 1009 at paragraph 95 sets out the general principles of costs in estate litigation as pronounced by the BC Court of Appeal in Re Collett Estate 2005 BCCA 291.
The relevant principles as they relate to costs in estate proceedings are set out in Collett Estate, Re, 2005 BCCA 291 (B.C. C.A.) by Smith J.A. who, for the court, said:
[7] The general principles that guide the exercise of the discretion to award costs in proceedings in the Supreme Court involving executors and trustees are set out in Turner v. Andrews (1999), 23 C.C.P.B. 84, 30 E.T.R. (2d) 126 (B.C.S.C.), aff’d 85 B.C.L.R. (3d) 53, 2001 BCCA 76. That case concerned an application by a plaintiff for an order that his reasonable legal costs be paid prospectively out of the trust fund in issue in his representative action against the trustees of his pension fund. In dismissing the application, Allan J. summarized the relevant principles as follows:
[8] Section 86 of the Trustee Act, R.S.B.C. 1996, c. 464, reflects the historic statutory authority which permits a trustee to seek the opinion, advice or direction of the Court on a question respecting the management or administration of trust property. In such circumstances, the Court may order the costs of the parties to be paid out of the estate. That principle was expanded in Re Buckton, [1907] Ch. 406 (Eng. Ch. Div.) which held that, in litigation against a trustee, the legal fees of a plaintiff beneficiary may be paid out of the trust fund on an indemnity basis where the issue concerns the interpretation of the trustee’s powers.
Buckton considered the beneficiary’s entitlement to costs in three classes of cases:
(1) An application made by trustees of a will or settlement, asking the Court to construe the trust instrument for their guidance; to ascertain the interests of the beneficiaries; or to answer a question which arises in the administration of the trusts. In such instances, the costs of all parties, which are necessarily incurred for the benefit of the estate, should be taxed as between solicitor and client and paid out of the estate.
(2) An application made by the beneficiaries as a result of difficulty of construction or administration of the trust which would have justified an application by the trustees. Again the application is necessary for the administration of the trust and the costs of all parties, which are necessarily incurred for the benefit of the estate, are paid out of the estate.
(3) An application made by the beneficiaries who make claims adverse to other beneficiaries. Such litigation is adversarial in nature and, subject to the Court’s discretion, the unsuccessful party bears the costs of those whom he or she brings to Court.
[9] The Court stated at p. 415:
It is often difficult to discriminate between cases of the second and third classes, but when once convinced that I am determining rights between adverse litigants I apply the rule which ought, I think, to be rigidly enforced in adverse litigation, and order the unsuccessful party to pay the costs.
96 The facts of this case bear the greatest similarities to the third category of action. Thus, I am satisfied that it is the plaintiffs in this case, rather than the estate, who should bear the costs of this action.
97 Furthermore, an order of special costs against the plaintiffs is warranted. In Starko Estate v. Harbour Cove Investment Corp., 2009 BCSC 1473 (B.C. S.C.), District Registrar Sainty set out how special costs in estate litigation differ from special costs in other types of litigation:
In general executors are entitled to full indemnification for their legal costs, provided such executor has not pursued unnecessary or wasteful litigation. …
Re Fenotti Estate 2014 BCSC 1533 reviewed the law and held that a murderer of the deceased, his mother, son may not inherit from her as a result of public policy that prevents a wrong doer from benefiting from his or her own crime.
The personal representative of the deceased’s estate applied to the court for various directions, including whether a surviving son who murdered his mother can inherit from her estate on an intestacy.
The Court held a clear NO.
THE LAW
“As to the first question, the petitioner referred me to the decision of Mr. Justice LoVecchio of the Alberta Court of Queen’s Bench in Re Bowlen (Estate), 2001 ABQB 1014, 207 D.L.R. (4th) 175. In that case, a woman had murdered her parents. Both parents left wills under which the daughter would receive bequests. The personal representative of the estates of the parents applied for advice and directions as to who was entitled to receive the interest that the culpable daughter would have received from the estates.
[10] In obiter dicta at para. 17 of his reasons, Mr. Justice LoVecchio, relying on earlier decisions in Cleaver v. Mutual Reserve Fund Life Association, [1892] 1 Q.B. 147, 56 J.P. 180 (C.A.), and Garbe v. Alberta (Public Trustee), [1999] 5 W.W.R. 696, 64 Alta. L.R. (3d) 103 (Surr. Ct.), held:
[17] The rule of public policy which excludes the criminal has also been applied to exclude all claiming under the criminal, unless they have alternative or independent rights. In order to take under these independent or alternative rights, the person exercising the right must have clean hands. [Footnote omitted.]
[11] His statement as to the existence of a rule of public policy preventing a criminal from benefitting from his or her crime is supported by a line of authority in this province, to which LoVecchio J. did not refer.
[12] In In re Medaini Estate, [1927] 2 W.W.R. 38, 38 B.C.R. 319 (S.C.), Mr. Justice Murphy heard an application, brought by the administrator de bonis non of the estate of Mary P. Medaini, for directions as to whether, in the case of an intestacy, a murderer is entitled to share in the distribution of the estate of the murdered person.
[13] Murphy J. held, at 39:
The English Courts have decided that a murderer can take nothing under the will of his victim. The decisions are based upon public policy. I can see no reason why the principle is not applicable to cases of intestacy. The reason assigned in some American decisions for refusing to deprive a murderer of benefits accruing to him under the intestacy of his victim is that to do so would be to contravene the express provisions of the Statutes of Distribution. This reason would be equally valid in the case of a will which also depends upon a statute for its validity. The Wills Act, R.S.B.C., 1924, ch. 274, declares that the will speaks from the death of the testator. The English decisions binding on me have overridden this provision in the case of a murderer. There is nothing which makes the Statutes of Distribution more sacrosanct than the Wills Act. If public policy is a good ground for overriding the latter, it is equally so for acting likewise in regard to the former. I, therefore, hold the murderer takes nothing under the intestacy.
[14] In Baumann v. Nordstrom (1959), 30 W.W.R. 385,[1959] B.C.J. No. 42 (S.C.), Mr. Justice Wilson, as he then was, considered a case where a man was killed by a fire which destroyed his dwelling. He left no will. His widow, an inmate of the provincial mental hospital, had set the fire that killed him. Acting through her committee, she attempted to claim her statutory share of his estate. Her claim was opposed by a daughter of the man from a previous marriage.
[15] At 386, Wilson J. adverted to two propositions that were accepted by both counsel before him:
1. That if her crime, whether murder or arson, killed her husband she cannot inherit and the rule is the same on an intestacy as it would be if the property had been willed to her. See In re Sigsworth; Bedford v. Bedford [1935] 1 Ch 89, 104 LJ Ch 46.
2. That if at the time she set the fire she was insane within the meaning of the M’Naghten rules there was no crime and she may inherit. See In re Pitts; Cox v. Kilsby [1931] 1 Ch 546, 100 LJ Ch 284; and In re Houghton [1915] 2 Ch 173, 84 LJ Ch 726.
[16] Wilson J. held, at 396, that the defendant wife, when she set the fire, “did not then appreciate the nature and quality of her act or know that it was wrong.” Accordingly, she was entitled to inherit.
[17] A majority of the British Columbia Court of Appeal, in reasons for judgment reported at 34 W.W.R. 556 and 27 D.L.R. (2d) 634, did not find it necessary to review the finding as to the defendant’s insanity, but allowed the appeal of the matter on the ground that the trial judge was without jurisdiction to determine by way of originating summons, or other civil proceeding, whether or not a person had committed a crime.
[18] In reasons for judgment reported at [1962] S.C.R. 147 and 37 W.W.R. 16, the Supreme Court of Canada allowed the appeal and dismissed the cross appeal, thereby restoring the decision of the trial judge. Mr. Justice Ritchie, for the majority on the issue, stated at 156 that:
The rule of public policy which precludes a person from benefiting from his or her own crime is an integral part of our system of law, and although some doubts have been raised as to whether this rule overrides the statute law as to the distribution of the estate of an intestate (see In re Houghton, Houghton, v. Houghton [[1915] 2 Ch. 173 at 176]), the better view appears to me to be that it applies to such cases (see In re Pitts, Cox v. Kilsby [[1931] 1 Ch. 546 at 550], Whitelaw v. Wilson [(1934), 62 C.C.C. 172 at 177], and Re Estate of Maud Mason [[1917] 1 W.W.R. 329, 31 D.L.R. 305]). As Fry L.J. in Cleaver v. Mutual Reserve Fund Life Association [[1892] 1 Q.B. 147, 61 L.J.Q.B. 128]… at p. 156 said:
It appears to me that no system of jurisprudence can with reason include amongst the rights which it enforces rights directly resulting to the person asserting them from the crime of that person.
The issue of when the marriage-like relationship terminates in a common-law spousal relationship has recently been before this court in Markin v. Gysel, supra, and S. (W.A.) v. T. (D.W.) (2003), 40 R.F.L. (5th) 389, 2003 BCSC 865 (B.C. S.C.).
33 S. (W.A.) v. T. (D.W.) dealt with the breakdown of a long-term common-law relationship of approximately 20 years, in which both parties contributed financially and domestically, at least initially. The relationship was “fragile and uncertain” long before the couple separated, with Mr. T. developing serious drug and alcohol abuse problems at an early stage in the relationship. In relation to Ms. S.’s claim for spousal support, Groberman J. held that the court had no jurisdiction to grant such relief, because the application was brought seven weeks more than one year after the parties ceased to live together. Groberman J. also found that the parties had ceased to live in a marriage-like relationship long before the defendant physically moved out of their shared house. He stated at ¶21-23:
I reject the argument that the parties lived together after December 26, 2000. On that date, Ms. S. became aware that Mr. T. was having, and intended to continue to have, a romantic relationship with Ms. C. Ms. S. had clearly told him that he could not continue to live with her in those circumstances, and Mr. T. left. While Ms. S. may have had some hope that her relationship with Mr. T. could be resurrected, I find that there was no objective basis on which she could possibly have concluded that they were still living together.
In particular, I find that long before December 26, 2000, Mr. T. and Ms. S. ceased to have a marriage-like relationship. Aside from the pooling of financial resources, they had little to do with one another, and had very limited social interaction. They had had no intimate relations for over five years, and had not presented themselves as a couple to others for some time. Indeed, it is questionable whether the two were living together even before December 26, 2000, or were rather living separate and apart under the same roof.
34 S. (W.A.) v. T. (D.W.) was followed in Markin v. Gysel, supra. That case involved a four-year common-law relationship in which the parties had one child. After the man moved from the parties’ home, he voluntarily paid the woman $1,000 per month, plus expenses in relation to the home. With respect to when the parties ceased to live in a marriage-like relationship, Joyce J. held that the parties separated before the defendant actually moved out of the home. Although the parties continued to eat meals together and share the same bed for a time, the defendant had made clear his intentions that he did not want the relationship to continue, sexual relations terminated shortly thereafter, and he subsequently moved into a spare room before finally leaving the home.
35 Another relevant case is Thompson v. Floyd, 86 B.C.L.R. (3d) 56, 2001 BCCA 78 (B.C. C.A.). That case involved a common-law relationship that extended over a number of years. For health reasons, the plaintiff left the parties’ home and moved in with her family, although she continued regular communication and visits with the defendant. Despite the fact that the parties were physically separated, McEachern C.J.B.C. held that the trial judge had not erred in concluding that the marriage-like relationship continued, at least until the last time the couple had sexual relations. He noted that it was significant that neither party made a direct statement that they regarded the relationship to be over until the parties began discussing the sale of their home, a few months before the action was commenced (at ¶32).
36 Thus, it is clear from the cases that the point at which the parties ceased living in the same residence is not necessarily determinative of the date their marriage-like relationship terminated (see also Hughes v. Boyd, 2006 BCSC 1669 (B.C. S.C.) at ¶4, agreeing that the key issue is when the “marriage-like” quality of the relationship terminated, not simply when the parties ceased to live under the same roof). The key factors in determining when a couple have ceased living in a marriage-like relationship include the absence of sexual relations, a clear statement by one of the parties of his or her desire to terminate the relationship, physical separation of the parties into different rooms of the same house or different residences, or the couple no longer presenting themselves to the outside world as a couple. Additionally, the method in which the spouse filed income tax returns may be a relevant consideration (seeOswell, supra, at ¶7), and provides objective evidence of whether a person considered himself or herself to be involved in a marriage-like relationship.
37 In this case, Mr. Baker took clear action to terminate the marriage-like relationship on August 14, 2003. He moved his furniture out of the House and ceased to reside there. The parties ceased to have an intimate relationship at that time. He made clear that he did not want the relationship to continue. After this date, he was away most of the time. By October of 2003, Mr. Baker was making clear attempts to remove Ms. Eisener from title to the House. The plaintiff could not reasonably have believed that the relationship would continue after that point. Further, she identified herself as being single on her 2002 income tax return. Additionally, her behaviour in public and toward Ms. Rollin and Ms. Cousson contradicts her testimony that the parties remained in a marriage-like relationship until December 2004.
Plaintiff’s often allege that a purported trust is a sham trust that the courts should ignore.
The following is the criteria that the courts utilize when dealing with such an assertion as was discussed in
M. Dhaliwal Holdings Inc. v. Pacific Blue Farms Ltd. , 2014 BCSC 1482
Sham Trusts
45 The petitioner argues that, should a trust be found in this case, the Registrar should have gone on to find that the trust was a sham, quoting the test for a “sham” transaction given by Lord Diplock in Snook v. London and West Riding Investments Ltd., [1967] 2 Q.B. 786 at 802:
…. it means acts done or documents executed by the parties to the “sham” which are intended by them to give to third parties or to the court the appearance of creating between the parties legal rights and obligations different from the actual rights and obligations (if any) which the parties intend to create. But one thing, I think, is clear in legal principle, morality and the authorities … that for acts or documents to be a “sham”, with whatever legal consequences follow from this, all the parties thereto must have a common intention that the acts or documents are not to create the legal rights and obligations which they give the appearance of creating.
[205] As can be seen from the above statement, the essence of a sham transaction arises from the intention of all parties to the instrument. As stated in Waters at 146, this concept is different than the requirement of certainty of intention and is more concerned with the intention of the settlor to perpetrate an “illegality” or “illusory trust”, as a result of which the trust is void.
[206] This principle from Snook has been applied in Canada generally: Minister of National Revenue v. Cameron, [1974] S.C.R. 1062 at 1068; Trident Foreshore Lands Ltd. v. Brown, 2004 BCSC 1365at para. 39.
[207] In addition, the principle has been applied in Canada in respect of alleged “sham trusts”, often in cases involving bankruptcies and fraudulent transactions affecting creditors. In Hirji v. Scavetta (1993), 15 O.R. (3d) 371, [1993] O.J. No. 2546 (Gen. Div.) at para. 32, the court found that a transfer in trust was designed to avoid creditors. In Biggar (Re), 2005 BCSC 1657, the court, after reviewing other examples of “sham trust” (para. 23), concluded that the bankrupt had dealt with the subject property as his alone and had never intended to divest any beneficial interest in the shares.
[208] In Forsyth (Re), 2010 BCSC 1720, and following Biggar and Hirji, the court found a declaration of trust to be void as an attempt by a bankrupt to shield his assets from his creditors. At para. 24, the court accepted that post “trust” conduct was relevant to a consideration and determination of the true intention of the settlor.
The criteria generally speaking for a marriage- like relationship are as follows, as recently laid out in McFarlane v. Goodburn Estate 2014 BCSC 1449:
The question of whether a couple is to be regarded as having had a marriage-like relationship can be answered having regard to objective and subjective criteria.
The nature of the objective test and its limitations were described by Justice Cory in M. v. H. [1999] 2 S.C.R. 3, at para. 59:
Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), sets out the generally accepted characteristics of a conjugal relationship. They include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple. However, it was recognized that these elements may be present in varying degrees and not all are necessary for the relationship to be found to be conjugal. … In order to come within the definition, neither opposite-sex couples nor same-sex couples are required to fit precisely the traditional marital model to demonstrate that the relationship is “conjugal”.
22 In my view, there were sufficient objective indicators in this case for the couple to be regarded as spouses. They shared the plaintiff’s home and they shared her bed. The plaintiff provided care and support to Mr. Goodburn to the degree and in the manner of someone who was more than simply a friend. In their interactions with members of her family, and in their other social interactions, they would have appeared to function as a unit.
23 The subjective test, based on the court’s assessment of the parties’ degree of mutual commitment, is as stated by Justice Lambert in Gostlin v. Kergin (1986), [1986] 5 W.W.R. 1, 3 B.C.L.R. (2d) 264 (C.A.). Referencing the support obligations set out in s. 57 of the Family Relations Act, R.S.B.C. 1979, c. 121, he stated:
So I would ask whether the unmarried couple’s relationship was like the relationship of the married couple in that the unmarried couple have shown that they have voluntarily embraced the permanent support obligations of s. 57. If each partner had been asked, at any time during the relevant period of more than two years, whether, if their partner were to be suddenly disable for life, would they consider themselves committed to life-long financial and moral support of that partner, and the answer of both of them would have been “Yes”, then they are living together as husband and wife. If the answer would have been “No”, then they may be living together, but not as husband and wife.
24 As with any civil case, this aspect of the plaintiff’s claim need only be proven on a balance of probabilities. In my view, the reasonable conclusion to be drawn from the facts of this case is that the answer to that question would have been “Yes”.
Hall v Hall 2011 BCCA 354, the appeal of a sons wills variation claim was dismissed and the reasons for his disinheritance, namely estrangement, were upheld as being rational and true, and the son failed to prove that the reasons for his disinheritance were false or unwarranted.
The testator’s will stated the following reaons for the son’s disinheritance:
“I have left nothing to my other son, Roy Anthony Hall, who has for a great number of years been estranged to me. For reasons that I do not understand, my son has not wanted anything to do with myself or my family. It has been many years since I have seen him and on the last occasion that I did see him he did not wish to talk to me. My son does not come and visit me nor telephone me nor communicate with me. My said son, Roy Anthony Hall, has an excellent brain, has money and is most capable of looking after himself. He is a top electronics man in his field and I am not worried about his being able to look after himself financially speaking. My son, Paul Stuart Hall, and his wife and children are very close to me and they are the only family that I have besides my common-law husband, Neil Douglas William. Accordingly, because of all the joy, love and friendship that I have received from Paul, his wife and family and because of Roy’s deliberate action of refusing to have anything to do with me, I have decided to leave my entire estate, as modest as it is, to Paul and then on to his family for their full use and benefit.”
The Court stated:
[43] Jean gave three reasons for disinheriting Tony. The first was his lengthy estrangement from her. The second was her view that he was capable of being financially independent. The third was the comparative love and support she had received from Paul and his family, whom she viewed as her “only family”. To succeed in his challenge to her will, Tony must establish these reasons were false or unwarranted: Bell v. Roy Estate (1993), 75 B.C.L.R. (2d) 213 (C.A.) at para. 36. In considering that proposition, it is not necessary to find the reasons were justifiable. It is enough if they were factually valid, and rational in the sense of having a logical connection to the act of disinheritance: Kelly v. Baker (1996), 82 B.C.A.C.150 at para. 58.
Trevor Todd and Jackson Todd have over 6o years experience in litigating wills variation claims
