Who Can Bring a Partition Action

partition action

In order to be able to bring any  court action the claimant must have standing. Pallot v Douglas 2017 BCCA 254 is a court of appeal case setting out who has the standing to bring a partition action under the Partition of Property act. It held that a claimant who has the use of a leasehold property pursuant to a trust does NOT have standing to bring an action for partition.

Standing under the Partition of Property Act

[16]         Section 4(1) of the PPA sets out the persons who have standing to bring a partition application, as follows:

4 (1) Any person who, if this Act had not been passed, might have maintained a proceeding for partition may maintain such a proceeding against any one or more of the interested parties without serving the other or others, and a defendant in the proceeding may not object for want of parties.

[17]         This provision codifies the test for standing set out in Morrow v. Eakin, [1953] 2 D.L.R. 593 at 594‑595, 8 W.W.R. (N.S.) 548 (B.C.S.C.), which applied this Court’s decision in Evans v. Evans, [1951] 2 D.L.R. 221, 1 W.W.R. (N.S.) 280 (B.C.C.A.). The test requires looking at the civil law of England as the same existed on November 19, 1858, which was made applicable in this province by the English Law Act, R.S.B.C. 1948, c. 111, subject to modification by provincial legislation.

[18]         A more recent and detailed statement by this Court is that in Jillings v. Blewett Estate, [1993] 101 D.L.R. (4th) 604, 79 B.C.L.R. (2d) 217 (C.A.), which summarizes the principles thus:

10        To continue with the origins of our present Act I quote from Halsbury’s, The Laws of England (1st edition 1912) Volume 21 at 834‑5 (footnote);

Prior to the passing of the Partition Act, 1868 (31 & 32 Vict. c. 40), partition was a matter of right, and the court had no discretion to refuse partition or to order sale in lieu thereof (Warner v. Baynes (1750), Amb. 589; Parker v. Gerard (1754), Amb. 236). This state of the law produced numerous inconveniences and absurdities. In Turner v. Morgan (1803), 8 Ves. 143, Lord Eldon, L.C., decreed partition of a single house, and Mr. Romilly in argument cited a case of a house at Cockermouth which was partitioned by actually building a wall up the middle. This state of the law led to the passing of the Partition Acts, 1868 (31 & 32 Vict. c. 40) and 1876 (39 & 40 Vict. c. 17), under which the court has wide powers to order a sale in lieu of partition where the nature of the property or the interest of the parties makes that more convenient.

[Emphasis added.]

11        Turning to the law in the Province of British Columbia, I take this summary from the reasons for judgment of Mr. Justice Bird in Evans v. Evans (1951), 1 W.W.R. (N.S.) 280 at 286‑7:

The civil law of England as the same existed on November 19, 1858, subject to modification by provincial legislation, was made applicable in this province by the English Law Act, RSBC, 1948, ch. 111.

Therefore the law relating to partition in British Columbia remained as it was in England prior to the enactment of 31 & 32 Vict., ch. 40, until 1880, when the provincial legislature introduced in this province legislation substantially in the terms of 31 & 32 Vict., ch. 40, the substantial change effected in the law by that legislation being to give the court jurisdiction to order sale in lieu of partition “in an action for partition where, if this Act had not been passed, a decree for partition might have been made: Partition Act, 1880, ch. 21, sec. 4. (emphasis added)

12        Section 4 of the statute of 1880 is now Section 7 of the Partition of Property Act, R.S.B.C. 1979, c. 311 and with amendments to the 1880 statute of no consequence for present purposes gives the court jurisdiction to order sale in place of partition.

7. In a proceeding for partition where, if this Act had not been passed, a judgment for partition might have been given, then if it appears to the court that by reason of the nature of the property to which the proceeding relates, or of the number of parties interested or presumptively interested in it, or of the absence or disability of some of those parties, or of any other circumstance, a sale of the property and a distribution of the proceeds would be more beneficial for the parties interested than a division of the property between or among them, the court may, if it thinks fit, on the request of any of the parties interested and notwithstanding the dissent or disability of any others of them, direct a sale of the property accordingly, and may give all necessary or proper consequential directions. (emphasis added)

13        The words I have emphasized – if this Act had not been passed – are significant because as Mr. Justice Bird pointed out “the law relating to partition in British Columbia remained as it was in England prior to the enactment of 31 & 32 Vict. ch. 40” in 1868. I repeat then what was said in Dogg v. Cattell (cited above):

But in Courts of Equity as well as in those of Common Law the existence of a joint tenancy or a tenancy in common is essential to the jurisdiction.

[Emphasis added in original.]

[19]         As noted in Jillings, the provisions of the PPA dealing with those against whose interests partition may be compelled do not inform the provisions dealing with entitlement to seek partition, i.e., standing:

14        The appellants placed reliance on particular words used in Section 2 to give them standing to obtain an order for partition and in lieu thereof an order for sale. I have underlined the particular words in the section:

 2. All joint tenants, tenants in common, copartners, mortgagees or other creditors having liens on, and all parties interested in, to, or out of, any land may be compelled to make or suffer partition or sale of the land, or any part of it as provided in this Act, and the partition may be had whether the estate is legal or equitable or equitable only; except that in respect of special timber licences no partition shall be made of a single licence, and any odd licences not possible to assign by partition to any of the parties interested shall be ordered to be sold.

15        The appellants submit that they come within the intent of “all parties interested in …. any land”. However section 2 does not describe the parties entitled to partition. As the heading indicates – Parties may be compelled to make partition or sale – the section describes those against whom an order may be made including creditors.

[Emphasis added.]

[20]         A recent summary as to who was entitled to bring a petition for partition under English law in 1858 is found in the British Columbia Law Institute consultation paper Consultation Paper on the Partition of Property Act (June 2011) at 5‑6:

In order to determine who is eligible to seek partition, therefore, the English law pre-dating the English Partition Act, 1868 [31 & 32 Vict., c. 40] needs to be examined. Specifically, it is the law of England as it existed on 19 November, 1858 that needs to be examined, as the Law and Equity Act [R.S.B.C. 1996, c. 253, s. 2] makes English law as it existed on that date applicable in British Columbia except to the extent it has been altered by laws of the province or is inapplicable to local circumstances. As of that date, the classes of persons eligible to seek partition were coparcenary tenants and those co-owners to whom the statutes of 1539 and 1540 had extended the remedy. As coparcenary tenancy no longer exists, the persons eligible to seek partition or sale in lieu of partition in British Columbia are those described in the 1539 and 1540 statutes, namely:

(a) joint tenants of the fee simple or a profit à prendre;

(b) tenants in common of the fee simple or a profit à prendre;

(c) joint tenants or tenants in common of a life estate;

(d) co-owners of a leasehold estate (co‑lessees).

There is another requirement: anyone seeking partition or sale must have an immediate right to possession of the land. Thus owners of a future interest, such as joint tenants of a remainder following a life estate, cannot claim these remedies.

[Emphasis added, footnotes omitted.]

[21]         The persons entitled to seek partition (s. 4(1) PPA) are a distinct class from those against whom partition may be compelled (s. 2 PPA). Up to this point, the persons with standing under the PPA have been restricted to joint tenants, tenants in common, or co‑owners of a legal estate.

B. Possession

[22]         It is not disputed that to have standing under the PPA a petitioner must have a possessory interest in land. A possessory interest is:

The present right to control property, including the right to exclude others, by a person who is not necessarily the owner … A present or future right to the exclusive use and possession of property.

Black’s Law Dictionary, 8th ed, sub verbo “possessory interest”.

The possessory interest requirement has been characterized as requiring the petition to have an immediate right to possession of the land: Morrow at 595, Consultation Paper at 6.

[23]         Although the statutory language in the Ontario Partition Act, R.S.O. 1990, c. P.4, differs, it has been held in Ontario that only persons entitled to immediate possession of an estate in property may make application for partition and sale: Di Michele v. Di Michele, 2014 ONCA 261 at paras. 75‑80; Morrison v. Morrison (1917), 39 O.L.R. 163 at 168, 171‑72, 34 D.L.R. 677 (Ont. C.A.); and Ferrier v. Civiero (2001), 147 O.A.C. 196 at paras. 6 and 8, 42 R.P.R. (3d) 12 (C.A.).

[24]         The judge below determined that Mr. Pallot’s beneficial interest is an interest in land for the purposes of the PPA. Thus the crux of the issue as to whether Mr. Pallot has standing to seek partition is the question of whether that interest includes an immediate right to possession.

Undue Influence: Shifts in Burden of Proof Means More Plaintiffs Win

Undue influence is nearly always done in secrecy. It’s behind closed doors. There’s never many witnesses. It’s the things that are said like, I’m going to put you in a care home if you don’t leave anything to me. There are no witnesses but it scares the hell out of the vulnerable person. They lose their freedom of thought and gradually, they lose their independency and they become very dependent on that caregiver and make their will accordingly.

It seems to me rather that one speaks of influence, one is really referring to the ability of one person to nominate the will of another whether it’s through manipulation or coercion or outright or subtle abuse of authority. Basically, they conclude with to dominate the will of another simply means to exercise a persuasive influence over him or her. You see, it’s not coercion now. It’s just persuasive influence. That’s a huge change.

Proving coercion is almost impossible. You have to have literally a gun to the head and witnesses witnessing that. But in these positions of domination and vulnerability, it’s just persuasive influence. The ability to exercise such influence may arise from the relationship of trust and confidence that may arise from other relationships as well. The point is that there is nothing per reprehensible about persons in a relationship of trust and confidence exerting influence, even undue influence over their beneficiaries. It depends on their motivation and objective to which they seek to achieve. And again, that’s an evidentiary matter but with the presumption, it’s a huge factor and a leg up. I predict there’s going to be more undue influence claims and that more plaintiffs are finally going to win.

Using DNA in Vancouver Estate Litigation for Proof of Paternity

DNA in British Columbia estate litigation is widely used and it is readily accepted by the courts as proof of paternity in particular. The first time I used DNA was in approximately 1991 when somebody committed suicide off a ferry. Their body was never found. A child from the Northwest Territories of Canada came forward and said that he was her father. She had no proof whatsoever of this. She had a photograph of him in which he looked somewhat like him but other than that, the marriage certificate and birth registration made no mention of this child.

We obtained DNA from the deceased siblings across the country and it concluded that 99.99 percent that she was his child. He died without a will. She inherited his entire estate. It is common to use DNA in estate litigation as many, many people find out late in life that who they thought was the father was in fact not their father. I recently had this happen of the 55 year-old man who found out that his father was not in fact his father and another man who had lived with the family was. It was quite a shock, needless to say. Court orders can be obtained to force people to grant DNA. It is a discretionary remedy but such an order can be obtained if it is necessary. I’ve done so in several occasions.

Partition of Property Orders in Joint Tenancy Agreements

Partition of Property Orders

Whether property be owned as tenants in common, or as joint tenants, if the parties cannot agree on the sale of the property, the BC Court has the power to do so under the provisions of the Partition of Property Act RSBC. This blog sets out the type of partition and sale court order that should be sought.

The jurisdiction to order the partition or sale of land owned by co-tenants is found in the Partition of Property Act, R.S.B.C. 1996, c. 347

In an Ontario case  Mammome  Estate  v  Mammome 2017 ONSC 3403   there was initially a court order made  for partition and Sale that was subsequently amended by a second  court order that provided for  greater certainty due to the failure of one party to co operate with the named realtor by such things as refusing to allow a for sale sign and refusing to sign a listing agreement.

First Order

THIS APPLICATION made by the Applicants for an order directing the properties municipally known as 7912 Kipling Avenue and 7918 Kipling Avenue, Vaughan, Ontario (the “Properties”) be sold, for an order directing an accounting of the income and expenses of the Properties, and for an order directing that the Respondent Density Garden Enterprises Inc. be wound up, and this CROSS-APPLICATION made by the Respondents for an order for specific performance directing that the Applicants’ one-half direct and indirect interests in the Properties be sold to the Respondent, Emilio Mammone, . . . .

1. THIS COURT ORDERS THAT the following lands and premises be listed for sale, marketed and sold: 

2. THIS COURT ORDERS THAT the sale of the Properties shall be conducted in accordance with the following:

(a) The Parties shall retain a real estate agent selected by the Applicants, to assist with the listing for sale, marketing and sale of the Properties, and who shall act on the instructions of the Applicants;

(b) The Parties shall retain Frank Sgro, real estate solicitor, to assist with the completion of the legal work necessary to facilitate and effect the sale of the Properties; and

(c) The Parties will accept offers to purchase either of the Properties if such offers are recommended for acceptance by the real estate agent identified in subparagraph (a) above, and will otherwise take all reasonable steps to co-operate with the real estate agent to effect the sale of the Properties.

3. THIS COURT ORDERS THAT the net proceeds of the sales of the Properties shall be paid as follows:

(a) in respect of 7912 Kipling,

(i) 50% thereof to the Estate of Frank Mammone, and

(ii) 50% thereof to the Respondent Emilio Mammone,

4. THIS COURT ORDERS that the Cross-Application of the Respondents is dismissed.

5. THIS COURT ORDERS that the Respondents shall provide an accounting to the Applicants with respect to all rental and other revenues generated by the Properties, and all taxes and expenses paid . . . . The accounting agreed to by the Parties shall include an assessment of the services performed by Emilio Mammone for the purpose of calculating its value. . . .

7. . . . . subject to the accounting hereafter referred to;

(b) in respect of 7918 Kipling,

(i) 50% thereof to the Estate of Frank Mammone, as a shareholder of 50% of the shares of the Respondent, Density Garden Enterprises Inc. and,

(ii) 50% thereof to the Respondent Emilio Mammone, as a shareholder of 50% of the shares of the Respondent, Density Garden Enterprises Inc.

subject to the accounting hereafter referred to.

The Applicants brought their application to sell the properties and to remove Emilio as a participant in the sale process.

C. Discussion and Analysis

22      It undoubtedly saves considerable legal expense if the parties to a Partition Act proceeding will co-operate to sell the property, but in the immediate case, the parties will not co-operate and more expensive direct court intervention is required. There is little doubt that Justice Dow’s Order is not working and that the Order needs to be revised to bring closure to this family dispute in a way that is fair to both sides.

23      There is no dispute that the court has the jurisdiction to vary Justice Dow’s Order and both parties sought the court to exercise the jurisdiction in their favour and in a way that would disfavour the other.

24      Court supervision in a Partition Act application is typically done by referring the sale to a Master, but, in my opinion, that is not necessary in the immediate case and all that is required is to delete paragraph 2 from Justice Dow’s Order and to substitute the following:

Amended Order 

2. THIS COURT ORDERS THAT the sale of the Properties shall be conducted in accordance with the following:

(a) The Applicants shall retain and sign a standard listing agreement with a term of 45 days with Alfredo DiGenova, to assist with the listing for sale, marketing and sale of the Properties, and who shall act on the instructions of the Applicants;

(b) The Parties shall retain Frank Sgro, real estate solicitor, to assist with the completion of the legal work necessary to facilitate and effect the sale of the Properties;

(c) The acceptance of any offer is subject to court approval and if the Applicants receive an offer within the listing period, they may bring a motion for court approval of the sale;

(d) The Respondent Emilio Mammone may submit offers but shall not have a right of first refusal;

(e) If no offer is received within the period of the listing, the Applicants may apply for an order extending the time for the listing of the properties or for any other order that is just;

(f) If the court approves the acceptance of the offer, and the Respondents refuse to sign the transfer to the purchaser, the court shall make a Vesting Order pursuant to s. 100 of the Courts of Justice Act;

(g) The real estate commission, conveyancing lawyer’s fees shall be paid out of the proceeds of sale; and

(h) If Emilio has not paid the costs awards of the Partition Act proceedings made against him, those costs shall be deducted from his share of the proceeds of sale.

Release of Claims and Different Claim

Release of Claims and Different Claim

Bykerk v Kappalka Estate 2017 BCSC 655 discussed a previous Release of Claims signed by the parties to a second court action under the Wills Variation act (Section 60 WESA) and found that the Release was not binding to prevent the latter claim. The court found that there was no res judicata or issue estoppel  present.

A father had sued a daughter and her spouse for the alleged removal of chattels from his farm. The daughter and her spouse counter claimed for unpaid wages.

After the  father died, the daughter brought an action against  her father’s estate and its sole beneficiary for relief for father’s failure to made adequate provision for daughter in will. The estate and beneficiary brought an application for  an order dismissing action based on the signed release of  the prior action, but the application for dismissal was dismissed and the Wills Variation claim was allowed to proceed.

The Court reason that the potential claim under the wills variation claim could not have arisen against estate until father died leaving a will, so release was not bar to a claim under section 60 of WESA.

For the same reason, the doctrines of issue estoppel and cause of action estoppel did not bar claim under S. 60 WESA, nor could the  consent dismissal order for the prior action  bar the subsequent  action.

The signed Release of Claims  was a contract that was  not ambiguous.

That first action was resolved by a Release of Claims that stated in part:

KNOW ALL MEN BY THESE PRESENTS that in consideration of the total payment by or on behalf of BERNARD KAPALKA and BERNIES LTD. (collectively the “Releasees”), of the sum of $125,344.89 plus 50% of accrued interest plus the sum of $25,000.00 as a contribution to costs and disbursements and the interest of Bernard Kapalka in 2950 Sallenback Road and other good and valuable consideration, the receipt of which is hereby acknowledged, BERNADINE BYKERK and WILLIAM BYKERK (the “Releasors”), DOE_ [sic] HEREBY REMISE, RELEASE AND FOREVER DISCHARGE the Releasees, their heirs, executors, administrators, successors and assigns of and from any and all manner of actions, causes of action, suits, debts, contracts, claims, demands and damages of any nature or kind whatsoever, which as against the Releasees, their heirs, executors, administrators, successors and assigns the Releasors and their heirs, executors, administrators and assigns now have or at any time hereafter can, shall or may have for or by reason of or arising out of or relating to the issues which are the subject of an action brought by the Releasees in the Supreme Court, Vernon Registry, Action No. 43038 (the “Action”) and a Counterclaim by the Releasors in the same action.




Hearsay Evidence In Vancouver Estate Disputes

Hearsay Evidence In Vancouver Estate Disputes

Hearsay evidence is very common in Vancouver estate disputes and generally speaking is allowed by the courts subject to a few principled rules so long as it is not relied upon for “the truth of its contents”.

Hearsay evidence was discussed in Horton v Bruce 2017 BCSC 712 which adopted the principled approach set out at para. 30 in Harshenin v. Khadikin, 2015 BCSC 1213 (B.C. S.C.), citing R. v. P. (R.) (1990), 58 C.C.C. (3d) 334 (Ont. H.C.).

Justice Dardi stated that, on the “principled approach” to hearsay exception, hearsay evidence is presumably inadmissible when relied upon for the truth of its contents, however, if the statement is not proffered for its truth but rather offered pursuant to a well-established exception such as the deceased person’s state of mind, the hearsay evidence is then admissible.

4 rules of hearsay evidence in Vancouver estate disputes:

[33] The onus is on the party tendering the hearsay evidence to establish the necessity and reliability on a balance of probabilities. The court in this case must assess both the threshold reliability of the statement at issue and the statement’s ultimate reliability having regard to the entirety of the evidence…

[34] In this case, because the declarant is deceased, necessity is clearly established. That leaves for determination the issue of the reliability of the various statements attributed to the Deceased.

[35] A court is required to assess the reliability of a statement sought to be adduced by way of hearsay evidence by examining the circumstances under which that statement was made. A circumstantial guarantee of trustworthiness is established if the statement was made in circumstances which “substantially negate” the possibility that the declarant was untruthful or mistaken…

[36] As a preliminary threshold issue, the court must first find on a balance of probabilities that the statement was made by the Deceased before it goes on to determine the treatment and weight of such evidence: Creutz v. Estate of Kristian Winther, 2007 BCSC 1463 at para. 99. In essence, this assessment turns on the credibility of the various witnesses…


Pleading the Tort of Conspiracy

Pleading the Tort of Conspiracy

It occasionally occurs in estate litigation that parties conspire with others to defeat the claims of a party that give rise to a court  pleading of the tort of conspiracy.

For example, I recently had a situation where the executor attempted to sell the property to a third party for about 2/3 of the fair market price and in effect cheat the beneficiary of the rightful amount of the sale.

It was clear that the executor conspired with the phony purchaser to buy the property and then resell it at it’s fair market value then spit the substantial ill gained  “profit”.

Norkum v Fletcher 2017 BCSC 382 involved the requirements of pleading the tort of conspiracy. the plaintiff sought leave of the court to amend his claim that:

The plaintiff  alleged he was deceived by Ms. Fletcher throughout their relationship. He alleged he was induced by Ms. Fletcher to believe that their relationship was exclusive; and that he intended, and understood Ms. Fletcher to have intended, that they would make a life together as a couple.  He further  alleged that he was led to believe by Ms. Fletcher that the two of them would ultimately occupy Lot 9 together, and  that he provided her with expensive gifts, loans, and other forms of support; and, that he caused MAN to hire her as a human resources manager, paying her a salary, in respect of which he seeks to add MAN as a plaintiff.

18      As a matter of general pleading, R. 3-1(2)(a) clearly states that a notice of civil claim must “set out a concise statement of the material facts giving rise to the claim”.

19      Further, the requirements at common law for the particularization of all material facts said to underlie a claim for conspiracy are as summarized by Saunders J.A. in Watson v. Bank of America Corporation, 2015 BCCA 362[Watson]:

[125] The elements of [the] tort of conspiracy to injure identified in LaFarge [Ltd. v. B.C. Lightweight Aggregate, [1983] 1 S.C.R. 452]; Can-Dive Services Ltd. v. Pacific Coast Energy Corp. (1993), 96 B.C.L.R. (2d) 156, 26 C.P.C. (3d) 395 (C.A.); and Harris v. GlaxoSmithKline Inc., 2010 ONCA 872, 106 O.R. (3d) 661, are:

(i) an agreement or concerted action between two or more persons;

(ii) with the predominant purpose of causing injury to the plaintiff; and

(iii) overt acts committed that cause damage to the plaintiff.

[126] The standard for pleading a conspiracy is well-recognized as strict. In Can-Dive, Chief Justice McEachern adopted the meticulous judgment of Mr. Justice Esson in Thompson v. Coquitlam (District) (1979), 15 B.C.L.R. 59 at 63 (C.A.):

It is well settled that the gist of the tort of conspiracy is not the conspiratorial agreement alone, but that agreement plus the overt acts causing damage.

[127] Chief Justice McEachern added:

[8] Esson J. also cited Bullen, Leake & Jacob’s Precedents of Pleadings, 12th ed. (1975), p. 341. The current edition of Bullen, Leake & Jacob’s Precedents of Pleadings, 13th ed. (1990), states at p. 221-22:

The statement of claim should describe who the several parties to the conspiracy are and their relationship with each other. It should allege the conspiracy between the defendants giving the best particulars it can of the dates when or dates between which the unlawful conspiracy was entered into or continued, and the intent to injure . . . It should state precisely the objects and means of the alleged conspiracy to injure and the overt acts which are alleged to have been done by each of the alleged conspirators in pursuance of the conspiracy, and lastly, the injury and damage occasioned to the plaintiff . . .

[Emphasis added.]

20      Saunders J.A. went on to state:

[132] I agree with the defendants that the import of Can-Dive, based as it is in Thompson and Bullen, Leake & Jacob, extends beyond a stay to the requirements for pleading conspiracy to injure. I also agree that Can-Dive does more than describe an aspirational standard, it addresses the requirements of a valid pleading of conspiracy to injure. The standard, at the end, is the one stated by Chief Justice McEachern: “pleadings alleging conspiracy must be as specific as possible”.

Suspicious Circumstances

Suspicious Circumstances

Arauju v Neto 2001 BCSC 935 is an undue influence lack of capacity case that discusses suspicious circumstances.

The court found that due to suspicious circumstances the will maker was not allowed to rely upon the presumption that he was mentally capable when the will was executed.

Ordinarily where the propounder of a will shows that it was duly executed with the requisite formalities and after having been read over to a testator who appeared to understand it, it is presumed that the testator knew and approved of the contents and had the necessary testamentary capacity or disposing mind and memory.

[122] However, I do not think that the plaintiff is entitled to that presumption. Because of the evidence of suspicious circumstances, the plaintiff has the burden of establishing on the evidence that Mr. De Araujo knew and approved of the contents and had testamentary capacity with respect to both of the 1995 and 1996 wills.

[123] The suspicious circumstances in the case of the 1995 will include:

1.the poor health of the aged testator;

2. the removal of the testator from a home where he had lived for a lengthy period;

3. the fact that the testator was taken almost directly from his place of residence to a lawyer to give instructions;

4. the lengthy period of separation from Carlos;

5. the person directly benefiting from the will; the dramatic change from the previous will;

6. the fact that the testator had a substantial amount of cash on him;

7.and significantly the fact that his proposed beneficiary (a person from whom he was estranged for over five years) gave the relevant instructions to the lawyer.

Section 58 WESA: Journal Not a Will

Section 58 WESA: Journal Not a Will

Re Hadley Estate 2016 BCSC 765 held that an unwitnessed  journal entry written by the deceased in her daily entry and stated to be  ” my last will”  will, was not in fact her last valid will under the curative provisions of section 58 WESA.

This decision was upheld on appeal- see Hadley Estate 2017 BCCA 311.

The administrator of her estate brought an application under section 58 of  the wills estates succession act, WESA  for determination. If the September 2014 journal entry was a will or  was a 2008 will the last valid will .

After reviewing several factors both pro con, the court found that the following rambling  journal entry was not a valid will:

[p. 1]
Sept. 1, 2014 Monday Tonight @ 8.30 pm I believe I had a something [?] to me. I am confused now. 9 pm. At 6 pm I went to English Bay & watched the sunset – talked to the life guard – at 8 pm I walked home – used my walker. I pushed my walker along Davie St to the Cardero Mini park in front of our our [sic] building – Seacrest Apt. Sat on my walker – At 8 pm I went inside “Seacrest – parked my walker inside the locker room & went up the stairs to my suite [ . . . ] Suddenly I had huge flashes in both my eyes – Zig Zag flashes like a up & down like a chart. – I could not could not see – the flashes were very bright – very strong – I tried to see I had no-one to phone Ginger phoned me – All was well – My niece lives in Windsor Ontario Mrs. Virginia Maziak-[phone no. omitted] I am somewhat dizzy now I had a terrible experience / frightening experience / flashes now. I ate a chocolate bar – [ ? ] glass peach cider – walked up & down my suite – scary. I hoped this would help me [ ? ]. [Suite no. ] Bullies me every day.
[p. 2]
September 1, 2014.. Monday.
This is my last Will.
Because of the daily harassment by [individuals at Seacrest]. I have been unable to [?] my personal needs – thus I put off seeing a lawyer to sue them & Seacrest Company Shareholders & to change my will. As of this time in my life I leave all my estate (my money in bonds & my apartment #205 Seacrest Apts. Ltd. Company – self owned to the following people who were kind to me (1) My niece Virginia Maziak who live lives in Windsor Ontario @ [address omitted]. Virginia (Ginger) was continually kind to me. (2) Bruce Macdonald — [phone no. omitted] Because he contributed so much to save the Hollow Tree in Stanley Park and was kind to me. (3) Daniel Pierce [phone no. omitted] a young Film Producer who worked so hard and was kind to me. It is not common knowledge that I am an orphan as a child. I have no heirs. My husband John Donald Hadley died and so did my only child – Karen Margaret Hadley. I struggled all my life to work and save some money to be independent. I have no debts. I have some bills to pay now – Seacrest Co. Apartment 1947 must pay for repairs, windows, ceiling walls, etc.
[p. 3]
Continued Eleanor Lena Hadley (Sanchuk) born Sept. 15, 1921
I hope to see Mr. David Ebby in person to write this will. I just had a scare – that prompted me to hastily [?] write this will. Many people have helped me. However [illegible] for personal reasons they are not included in my will.
Also, I do have some old penny stocks that faded away and in my box (deposit) Royal Bank corner of West Georgia & Burrard Streets where my previous will is.
I live in Seacrest Apts. ltd at the present time. Since 1997 I have been bullied & harassed & denied my entitlements by [individuals named]. They should be sued for destroying 17 years of my life. So that I am living in fear to this day. I could not sell my suite because [individual named] in 1997 put an a unhealthy dryer vent for the whole building (Seacrest) under my kitchen windows
11.20A.M. EH
[p. 4]
My will Continued:
Re: If Mr. David Ebby is willing I would like him to sue all the Seacrest Shareholders named in this will for criminally destroying my life since 1997 when [individual named] unlawfully all the Seacrest Co 20 Shareholders Basic Rate a/os [?] 1947 Original Agreement – I have the original Memorandum. Because of ill health due to daily harassment by those named in my will I was and am presently too ill physically to go to court. I tried this [?] in the Small Court. At that time Judge Gee Gee said – that I was in the wrong Court. I do not have the original Court Trial documents (only the edited document which omits my complaints entirely. Why Judge Gee did this is a puzzle to me. Also my lawyer [individual and firm named] failed to present my case. Because of the daily harassment by [individuals named] to this day I was & am unable to bring my case to trial again. These 3 people / shareholders / Seacrest have also used the computer to [illegible] my name and [illegible] a fake document.


The curative provisions of section 58 conferred discretion on the court to relieve against the consequences of noncompliance  with the  testamentary formalities  in a “record, document or writing or marking on a will or document”.
In prescribed the circumstances, section 58 permits the court to address and your issues of formal invalidity  in such documents .
The leading case In British Columbia is Estate of young  2015 BC SC 182 .
Young followed the law  of Manitoba in their leading case of George v.  Daily (  1997)  143 DLR (4th) 273  ( Man. CA), which stated :
51      Because of the similarity between s. 58 and the curative provision in Manitoba’s Wills Act, C.C.S.M., c. W-150, in Young, Dickson J. (as she then was) reviewed a number of Manitoba authorities, including the leading case of George v. Daily (1997), 143 D.L.R. (4th) 273 (Man. C.A.). She then wrote by way of summary (at paras. 34-37) [underlining added]:
[34] As is apparent from the foregoing, a determination of whether to exercise the court’s curative power with respect to a non-compliant document is inevitably and intensely fact-sensitive. Two principal issues for consideration emerge from the post-1995 Manitoba authorities. The first [is] an obvious threshold issue: is the document authentic? The second, and core, issue is whether the non-compliant document represents the deceased’s testamentary intentions, as that concept was explained in George.
[35] In George the court confirmed that testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death. The 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.
[36] The burden of proof that a non-compliant document embodies the deceased’s testamentary intentions is a balance of probabilities. A wide range of factors may be relevant to establishing their existence in a particular case. Although context specific, these factors 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: [citations omitted].
[37] While imperfect or even non-compliance with formal testamentary requirements may be overcome by application of a sufficiently broad curative provision, the further a document departs from the formal requirements the harder it may be for the court to find it embodies the deceased’s testamentary intention: George at para. 81.
52      Extrinsic evidence is admissible when considering whether a document is a valid will and whether the deceased had testamentary intent: see Yaremkewich Estate (Re), 2015 BCSC 1124, at paras. 31-32. Watchuk J. observed further (after reviewing Young and George), at para. 37:

Adverse Possession

Adverse Possession

Mowaqtt v BC Attorney general 2016 BCCA 113 dealt with a long established principle of  adverse possession  relating to  squatters long time  use of  property that had escheated to the crown .  A claim of squatters to  legal entitlement to a parcel of property  occasionally occurs in estate disputes  in this blog from the BC Court of Appeal  explains this long-established  legal principle .

The appeal was  from an order dismissing the appellant’s claim, based on the doctrine of adverse possession, for recognition of title to land long possessed by them and others.

The claim derived from occupancy of land on Kootenay Lake by squatters no later than 1909.

The absolute legal title to this land escheated to the Crown by dissolution of the corporate titleholder in 1930.

The trial  judge found that the appellants had not proved continuous possession of the land for the years 1916 to 1920. This gap, he said, broke the continuity required for a successful claim.

The BC Court of Appeal  allowed the appeal :

The claim depended upon limitations provisions that derive from 1833 English limitations legislation, received into British Columbia law November 19, 1858, contemporaneously with proclamation of the Colony of British Columbia. The claim depended on a web of circumstantial evidence that should be tested on the basis of “its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions”.

The issues are resolved as follows:

1) The appellants did not lack standing to bring the claim. Whatever claim prior possessors of the land had was passed to the appellants.

2) It was not necessary for the appellants to establish that the squatters’ use of the property was inconsistent with the use of the land intended by the owner of the absolute title. The requirement to prove inconsistent use does not apply in British Columbia.

3) Evidence not considered, or not fully considered in the context of other evidence, demonstrated that the gap in likely possession was shorter than found by the judge. Applying an approach consistent with the Land Title Inquiry Act and the nature of proof available, and considering the shortened gap, the nature of the property and the circumstances known of persons associated with the property, it is more likely than not that the adverse possession of the land by squatters had the degree of continuity between 1916 and 1920 required for the claim. As years subsequent to 1923 were not addressed by the judge, the petition is remitted to the Supreme Court of British Columbia for final determination.

The Doctrine of  Adverse Possession

[5] Adverse possession is an ancient doctrine rooted in the common law’s recognition of a possessory estate in fee simple and attenuated by the application of statutes of limitation. Recognition of an estate based on possession creates conflict between the rights of the possessor (sometimes called the squatter) and the superior right of the true or “paper” owner who has a right to evict the person in possession.

[6] Since 1833 in England, by the Real Property Limitation Act, 1833 (3 & 4 Will 4, c. 27), received in British Columbia on November 19, 1858 through what is now s. 2 of the Law and Equity Act, R.S.B.C. 1996, c. 253, the doctrine of adverse possession has required the true owner to sue to recover possession of land within a limitation period. Once the applicable limitation period has expired, the true owner’s cause of action in trespass and ejectment may be barred or extinguished, in consequence of which the true owner’s title may be extinguished and a person in possession will be entitled to have that title recognized. As L. Smith J. observed in Re: Land Title Inquiry Act and Canadian Pacific Railway Company, 2002 BCSC 1041:

[47] … where a party has had the intention to possess property and has in fact possessed it for the period of time stipulated in the limitation statute, effectively excluding the true owner, the true owner will be barred from bringing an action to recover the land. …

[7] As a true owner’s title is ultimately defeated by failing to pursue his cause of action against a squatter within the limitation period, the doctrine of adverse possession recognizes that the true owner must be in a position to assert his or her rights against someone. Accordingly, various preconditions and limitations to a claim to adverse possession have developed. In Principles of Property Law, 6th ed. (Toronto: Carswell, 2014), Bruce Ziff explains the necessary elements for adverse possession at 142:

… To succeed, the acts of possession must be open and notorious, adverse, exclusive, peaceful (not by force), actual (generally), and continuous. If any one of these elements is missing, at any stage during the statutory period, no rights against the paper owner can be successfully asserted. …

In general, … the adverse use must be such as to put the paper owner on notice that a cause of action has arisen. After all, the doctrine is based on the failure to bring suit within the limitation period, and therefore time should not run unless it is fair to hold a delay against the owner. Hence, the occupation must be open and notorious, and not clandestine. The adverse possessor must send out a clarion call to the owner, who, if listening, should realize that something is awry. Usually this means that the squatter must use the land in the way that an owner might.

[8] The doctrine of adverse possession does not require that the adverse possessor be the same person, provided adverse possession is continuous. Possession by different squatters can be “tacked” on one after the other, provided there is always someone for the true owner to sue. Anger & Honsberger, Law of Real Property, loose-leaf (consolidated December 2015), 3rd ed. by Anne W. La Forest (Toronto: Canada Law Book, 2006) at §28:50 states:

Once adverse possession has commenced, thus causing a right of action to accrue in some person with a superior right to possession, the time will continue to run against that person so long as there is continually some person in adverse possession who may be sued. Thus, either successors by transfer or by devolution to the title of the original adverse possessor, or a subsequent adverse possessor who is acting independently to dispossess the original adverse possessor or those claiming under them, may add together, or tack, all the prior periods of time together to extinguish the superior claim. However, if the original adverse possessor or those claiming title under them should abandon possession before the superior right of possession is extinguished, and there should be a gap before a subsequent adverse possessor acquires possession, no tacking is possible. During the period when no one was in adverse possession, the person with the superior right to possession would have no person to sue. Accordingly, time ceases to run against that person and, when the subsequent adverse possession occurs, time starts running an