Injunctions When Contesting a Will or Estate

Injunctions

It is  common in estate litigation for one party  to obtain a court order enjoining the other party to either do something, or alternatively be restrained from not doing something.

Typically the injunction may involve the freezing of bank accounts and stock portfolios and other types of investments pending the trial or determination of the matter.

If the injunction is for the time between the application and the trial, then it is an interim injunction.

One party often attempts to obtain an injunction against the other without serving notice on the other.

This is called an ex parte application.

 

Setting Aside an Interim Order

In British Columbia (Public Trustee of) v. Batiuk, [1996] B.C.J. No. 1646, 14 E.T.R. (2d) 5 (S.C.) [Batiuk], Vickers J.,  described the well-settled rule that an ex parte application requires the full and frank disclosure of relevant facts.

In the absence of such disclosure, an order may be voided.  Citing the decisions in Gulf Islands Navigation Ltd. v. Seafarers’ International Union of North America (Canadian District) et al. (1959), 18 D.L.R. (2d) 625, 28 W.W.R. (N.S.) 517 (B.C.C.A.); and Canadian Pacific Railway v. United Transportation Union, Local 144 et al. (1970), 14 D.L.R. (3d) 497 (S.C.), the Court held:  “non-disclosure of relevant material on an ex parte application, even if inadvertent, is sufficient ground for setting aside or dissolving the order” (at para. 11).

The Batiuk Court also held that if an order is to be made ex parte, the applicant must satisfy the court that the matter is urgent:  “If it later transpires that it was not a matter of urgency but that impression was left with the court, the order will be set aside:  John Doe v. Canadian Broadcasting Corp. (1993), 86 B.C.L.R. (2d) 202 [C.A.]”.

 

Tests on an Application for an Injunction

Te test  to be applied on the application for an ex parte injunction and on an application to set aside that injunction on the merits is that established in Attorney General of British Columbia v. Wale et al., [1987] 2 C.N.L.R. 36 (B.C.C.A.).  In that case, at 49 and 50, McLachlin J.A. held:

The traditional test for the granting of an interim injunction in British Columbia is two-pronged.

1. First, the applicant must satisfy the court that there is a fair question to be tried as to the existence of the right which he alleges and a breach thereof, actual or reasonably apprehended.

2. Second, he must establish that the balance of convenience favours the granting of an injunction.

 

The first step in determining where the balance of convenience lies is to examine the adequacy of damages as a remedy for the respective parties. In most cases, an interlocutory injunction should not be granted unless there is doubt whether damages would be an adequate remedy in the event the applicant succeeds at trial. In other words, it must be shown that the applicant may suffer irreparable harm in the sense that “the remedy by damages is not such a compensation as will in effect, though not in specie, place the parties in the position in which they formerly stood”: … If damages will be an adequate remedy, and if it appears that the alleged offender can pay them, the court is generally not justified in giving one party his remedy to the detriment of the other before the issues have been tried.

Witnesses Testify at Trial By Video Conference

video

Witnesses may testify in court proceedings by video conference.

disinherited.com recently had clients living in Australia who had an estate dispute here in British Columbia.

When it came time for the opposing counsel to ask the plaintiff’s pretrial questions under oath, such as in a deposition or examination for discovery, we agreed between counsel that we would do it by Skype and thus save literally thousands of dollars in travel expenses and the like.

It is simply a new way of thinking and using technology to greater benefit access to justice.

The recent decision of Slaughter v Sluys 2010 BCSC 1576, although not an estate litigation case, is a good example of such use of technology.

The plaintiff applied to have seven lay witnesses and four expert witnesses testify at trial by videoconference.

The application was opposed on the basis that it offends the principles of fundamental justice.

The plaintiff gave evidence that the videoconference testimony would save approximately $50,000 in expenses, and would markedly reduce the inconvenience experienced by the witnesses in traveling and testifying at the trial.

The court referenced section 73 (2) of the Evidence Act which provides that the court may allow a witness to testify by video conference unless the court is satisfied that receiving the evidence that way would be contrary to the fundamental principles of justice.

The criteria for the court to consider if one party objects are as follows:

A. The location and personal circumstances of the witness;

B. The costs that would be incurred if the witness had to be physically present;

C. The nature of the evidence the witness is  expected to give;

D. Any other circumstance the court considers appropriate

The court allowed four expert witnesses and two lay people to testify by video conference.

The court refused the others to testify by video on the basis that their evidence would likely be very contentious, and that none of them had provided the court with any indication that they would be personally inconvenienced or suffer hardship as a result of testifying.

The court stated that the new Rules of Court enacted in 2010 have a renewed emphasis on the just, speedy and inexpensive determination of a proceeding on its merits, which involves the consideration of proportionality.

The court acknowledged the great advances in the quality of communication via videoconferencing and found that it to be an acceptable and satisfactory method of receiving evidence from a witness, which is not inhibited the Court’s  assessment of credibility or the findings of facts.

disinherited.com applauds this decision and hopes that many other such decisions  from our courts will embrace  technology to allow greater and cheaper public access to our courts.

Six Year Limitation For Debt

Six Year Limitation For Debt Starts With the Acknowledgement Six Year limitationof the Debt

In Gabriel Estate v Ward 2011 Carswell BC 1042, the court dealt with the issue as to when the statutory limitation of 6 years for the collection of a debt commenced to run. The plaintiffs B and R were the executors of the deceased’s estate. The plaintiff G was the former husband of the deceased. All of the plaintiffs claimed that the former husband and the deceased loaned the defendant W sums of money in 1991 and 1994, and that the deceased loaned the defendant further monies in 1999. W paid part of the loans in 2000 and 2001. W claimed that the obligation to pay the other monies was statute barred as a result of being outside of the six-year limitation. The plaintiff brought an action for repayment of the loan and the action was allowed. The court held that the time ran under the six-year limitation starting when the debtor properly acknowledged the debt. Despite prior vague statements. W’s proper acknowledgment was only found in a 2007 e-mail setting out amounts owing. The plaintiffs were allowed to collect on all but one loan that was made, as the remaining loans were within the limitation. In the experience of disinherited.com, executors of estates are often faced with rather vague documents that seem to evidence loans made to various individuals, who invariably tend to forget to repay the funds after death.

The Importance of Credibility

The truth is out thereThe Importance of Credibility

Credibility is simply that quality in a witness which renders his or her evidence worthy of belief.

One of the most important jobs that I judge has is which witness’s testimony is to believed, and which testimony is to be discounted.

When there is conflicting testimony, as there almost always is in estate litigation, the judge must assess each witnesses credibility in order to make findings of fact.

Some of the general guidelines that the courts follow with respect and credibility are as follows:

1 The Supreme Court of Canada in Goodman Estate the Geffen 2 SCR 353 (1991) held that findings of fact made at trial based on credibility of witnesses are not to be reversed on appeal unless the trial judge made some palpable and overriding error which affected his assessment of the facts. Even where a finding of fact is not contingent upon credibility, the appellate court should maintain a non-interventionist approach to a review of trial court findings. In all cases, appellate review should be limited to those instances where a manifest error has been made;

2. In FH v MCDougall 2008 SCC 53 the Supreme Court of Canada further stated that “provided the judge has not ignored the evidence, finding the evidence of one party credible may well be conclusive of the results because that evidence is inconsistent with that of the other party. In such cases, leaving one party will mean explicitly or implicitly that the other party was not believed on the important issue in the case.” ;

3. Faryna v Chorny (1952) 2 DLR 354 is perhaps the most frequently cited case of the subject of credibility assessment. At 357 it was stated that:

“the credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth.

The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions.

In short, the real test of the truth the story of a witness in such a case must be its harmony with the preponderance of the probabilities which are practical and informed person would readily recognize as reasonable in that place and in those conditions.”

4. in Unique Tool and Gauge Inc v Impact Tool (2002) OJ 681 at para 21 it stated:

” the witnesses ability and opportunity to observe;

his appearance and manner while testifying;

his power of recollection;

any interest, bias or prejudice you may have;

any inconsistencies in his testimony and, the reasonableness of his testimony when considered in the light of its harmony with the preponderance of the probabilities that the evidence was credible, believable and reliable.

5. In R v RWB (1993) BCSC 192 held that another very important factor in assessing credibility is the parties interests.

Whether a witness has a motive to lie is one factor which may be considered in assessing the credibility of witness, but it is not the only factor to be considered. It is essential that the credibility and reliability of the complainants evidence be tested in the light of all of the other evidence presented.

BC Power of Attorney Act Sets Out the Duties and Powers

BC Power of Attorney Act Sets Out the Duties and Powers

The provisions of the BC Power of Attorney act effective September 1, 2011, are a big improvement over the previous legislation, particularly in that the duties and powers of the attorney are clearly set out in sections 19 and 20 of the act.

S. 19- The duties of the attorney that must be carried out are:

A. Act honestly and in good faith;
B. Exercise the care diligence and skill of a reasonably prudent person;
C. Act within the authority given in the enduring power of attorney and under any enactment;
D keep prescribed records and produce the records for inspection and copying at the request of the adult

S 20. Powers of the Attorney

The attorney must also do the following;

A. Give priority when managing the adult financial affairs to meeting the personal care and health care needs of the adult;
B. unless otherwise specified in the power of attorney, and the handles property only in accordance with the trustee act;
C. Encourage the adult involvement in decision-making;
D. Not dispose of property that the attorney knows is a specific testamentary gift of the adults will;
E. Use reasonable efforts to keep the adult personal effects that the disposal of the adult

The attorney must keep the adult the property separate from his or her own unless the property is jointly owned by the adult and the attorney.

An Attorney may make a gift or loan, or charitable gift, from the adults property if the enduring power of attorney permits the attorney to do so, but the total value of all gifts loans and charitable gifts made by an attorney in a year must not be more than the lesser of

a) 10% of the adult taxable income for the previous year ;
b) and $5000.

An attorney may not will make her change her will for the adult form of the attorney is acting, but may change a beneficiary designation made by the adult, if the court authorizes the change, or create a new beneficiary designation, if the designation is made in an instrument that is renewing replacing, or converting a similar instrument made by the adult, or a new instrument made by the adult, while capable, and the newly designated beneficiary is the adult estate.

disinherited.com is optimistic that these clear guidelines will assist in reducing the amount of financial abuse that has historically taken place through the mis-use of a Power of Attorney.