Wills Variation Act Not Affected By WESA

The original plan for WESA was to restrict the right of an independent adult child to bring a claim against his or her parents estate on the basis that he or she will was not adequately provided for.

A great deal of discussion took place in or about 2006-2007 and disinherited.com lead the fight against this proposed restriction to the rights of disinherited adults to bring a claim under the wills variation act.

I am pleased to report that the act was substantially left in its entirety with only very minor changes such as a plaintiff must commence a court action under the act within 180 days of the grant of probate, rather than six months.


Here is the current  statement of the new section 60 which  is almost identical to the former section 2 of the wills variation act , except for the removal of the words “in its discretion ” ( the Courts),  which really should have no substantial effect on the judicial interpretation of of section.

There are several in depth articles on the Wills Variation act, all dated November 13,2013 that the reader should visit for the details of the act.

Included is the written submission to the Attorney general back in late 2006


In a nutshell only spouses, both legal and common law, as well as natural and adopted children have the right to contest a will under the Wills Variation act, even if the step child was raised by the deceased, but not adopted.



Maintenance from estate

60 Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order.that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.


Mistakes In Wills and How To Fix Them



Mistakes in willsMistakes in wills are frequently made and then subsequently not discovered until typically many years later after the passing of the will maker.

The usual types of mistakes  break into two areas- that the will was not properly executed in accordance with established principles ,or the will itself does not make sense, is ambiguous,  and needs to be constructed and  interpreted.

Section 59 of WESA provides a new section allowing the court to rectify a will  if the court determines that the will fails to carry out the will maker’s intentions because of:

1)  an error arising from an accidental slip or omission;

2)  a misunderstanding of the will maker’s instructions;

3)  A failure to carry out the will maker’s instructions.

The court further allows for extrinsic evidence, that is evidence relating to the circumstances under which the will instructions were given and the will executed ,including evidence of the will maker’s intent, in order to prove the  existence of the circumstance described in section 1 aforesaid .


For further reading on the construction or interpretation of wills, also see blogs on this site dated September 8,2011

December 9,2011

June 1, 2012

April 20,2013 and

June 2, 2013.


The general guidelines of case law with respect to interpretation and construction of wills  is as follows:

The goal in interpreting a will is to give effect to the testamentary intentions of the testatrix for the distribution of her estate:  Rondel v. Robinson Estate, 2011 ONCA 493, 337 D.L.R. (4th) 193, at para. 23.

[17]         The Ontario Superior Court of Justice in Re Kaptyn Estate, 2010 ONSC 4293, 102 O.R. (3d) 1, (“Kaptyn Estate”) helpfully summarized many of the principles relating to the interpretation and construction of wills:

a)              The court will seek to determine the actual intention of the testator, as opposed to an objective intent presumed by law (para. 31).

b)              Other cases interpreting words in other wills are of little assistance since the task is to interpret this testator’s subjective intentions (para. 32).

c)               There is a distinction between interpretation and construction of a will.  Interpretation seeks to determine the testator’s subjective intentions from the words used in light of the surrounding circumstances.  Rules of construction are a default process turned to by the courts when the testator’s actual intentions cannot be ascertained (para 34).

d)              The starting position of the court is the “armchair rule”, where the court puts itself in the place of the testator at the time when he made his will.  This allows consideration of some extrinsic evidence of the surrounding circumstances known to the testator as might bear on his intentions (para. 35).

e)              The authorities distinguish between admissible and inadmissible extrinsic evidence in interpreting a will (paras. 35-38):

i.                 “indirect extrinsic evidence” of the surrounding circumstances known to the testator at the time he made the will is generally admissible.  This includes evidence of such things such as the testator’s occupation and property and financial situation; his relationships with family and friends; and natural objects of his grant;

ii.                “direct extrinsic evidence” of the testator’s intentions is generally inadmissible.  This is so as to preserve the will itself as the primary evidence, and to avoid the situation of an “oral will” displacing the written form.  However, there is an exception where there is an “equivocation”, namely, where the will describes two or more persons or things equally well.  In that situation, the law will allow evidence of the testator’s intention.  Examples of inadmissible direct evidence are such things as notes or statements of the testator as to his intention, or instructions he gave his lawyer in preparing the will;

f)                the court will interpret the will viewed as a whole (para. 138);

g)              the court will prefer an interpretation that leads to a testacy, not an intestacy (para. 139); and,

h)              the court will not hesitate to correct obvious mistakes, including deleting or inserting words, where to do so accords with the testator’s intentions, or where not to do so would lead to an absurd result (para 140).


[18]         The proper approach of the court is to consider the language of the will in light of the surrounding circumstances together, rather than one first and then the other: Abram Estate v. Shankoff, 2007 BCSC 1368 at para. 77.


Interest Is Claimable on Lump Sum Wills Variation Awards

Interest on wva

While it is much more common for courts to award a percentage of the residue of an estate to a wills variation claimant, it does on occasion occur where the court will order a lump sum award which may include interest..


That is a case in Sawchuk v Mackenzie 2000 BCCA 10, where the Court of Appeal increased the $500,000 lump sum award ordered by the trial judge to the sum of $1 million. The issue then became whether or not the plaintiff was entitled to interest on the award of $1 million and the court agreed. The rationale for their award of interest was that a lump sum under the wills variation act is a pecuniary legacy as opposed to a pecuniary judgment, and as such is subject to the general law that interest starts to run on a pecuniary gift one year after the testator’s death, at the rate set by the Canada interest act. The court had the following to say with respect to the issue of interest:Interest Is Claimable On Lump Sum Wills Variation Awards:

The issue remaining is whether the provision made by the Court attracts interest. It is conceded that a pecuniary legacy attracts interest: see Crerar v. Crerar Estate (1998), 24 E.T.R. (2d) 1 (B.C. C.A.) per Southin J.A. at p. 16. The formal order under appeal varies the will by deleting the amount of $10,000 from the bequest to the appellant and substituting the amount of $500,000. The effect of that order is that the provision for the appellant is made through a variation of the will and the will then speaks as varied. The form of the gift as a pecuniary legacy is unchanged; the variation is solely in the amount. The further variation that I would order does not affect the form of the bequest.
19 Mr. Carphin contended that the formal order is erroneous and the provision should have been made outside the will, presumably in the form of an order that the estate be charged with payment of the provision awarded to the appellant separately from the legacy of $10,000 under the will. The conceptual issue is: Does the court make provision for a claimant under the Wills Variation Act by varying the terms of the will or by making provision outside the will?

20 In my view, section 2 as worded is capable of both interpretations. Surprisingly, counsel were unable to direct the Court to any authorities in which this question has been addressed although it was acknowledged that orders made under the Act often direct variation of the will in the same manner as the formal order under appeal. The title of the statute is the Wills Variation Act, although it was formerly the Testator’s Family Maintenance Act and the name change occurred during a general statutory revision, likely without any consideration of the point at issue here. “Provision” is a general term without a precise technical legal meaning. In my opinion “provision out of the testator’s estate” is sufficiently wide to include variation of the terms of the will to give effect to the object of the Act as well as an order for payment or disposition of estate property apart from the will. Section 8 of the Interpretation Act, R.S.B.C. 1996, c. 238 directs that the Act is to be construed as being remedial and “given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.” Variation of the terms of a will in a proper case appears to me to be an appropriate means of giving effect to the objects of the Act and in my opinion the wording of s. 2 permits that interpretation. In this case the trial judge has given effect to his order through a variation of the terms of the legacy to the appellant and I think it was appropriate to do so. In my view, the trial judge erred only in the amount he substituted in the legacy and the clause of the formal order should stand with the amount of $1 million rather than $500,000.
21 The disposition remains a pecuniary legacy under the will, although varied in amount and attracts interest under the rule applicable to pecuniary legacies. So characterized I do not think that it is a “pecuniary judgment” within s. 1 of the Court Order Interest Act, R.S.B.C. 1996, c. 79. I agree with the conclusion to that effect in Morgan v. Morgan (1984), 16 E.T.R. 288 (B.C. S.C.), following an earlier unreported decision in the same court.

22 Wepruk (Guardian ad litem of) v. McMillan Estate (1993), 87 B.C.L.R. (2d) 194 (B.C. C.A.) is distinguishable. Wepruk (Guardian ad litem of) involved a pecuniary award to a common law spouse from an intestate estate under s. 86 of the Estate Administration Act, R.S.B.C. 1979, c. 114, for the support and maintenance of the spouse. It did not involve variation of a will and took the form of a pecuniary judgment against the estate. The Court concluded that the award was a pecuniary judgment within the meaning of the Court Order Interest Act but no interest was payable as the award was for a future pecuniary loss excluded by s. 2(a) of the Act.

23 Here there is no pecuniary judgment against the estate independently of the will. The provision takes the form of a variation of the will and the provision is effective through the will. Accordingly, in my opinion it is not a pecuniary judgment and the Court Order Interest Act has no application. Interest is payable under the general law applicable to pecuniary legacies, at the rate set by the Interest Act (Canada), R.S.C. 1985, c. I-15. I would amend the order of the trial judge to delete reference therein to the Court Order Interest Act. The order should direct that interest be paid after one year from the date of the testatrix’s death: see Hecht v. Hecht Estate (1991), 62 B.C.L.R. (2d) 145 (B.C. C.A.).
24 I would allow the appeal and increase the legacy to the appellant to $1 million.
Appeal allowed.

Wills Variation- “Estranged” Son vs Neighbour

Fight over money

In Moore v. Drummond 2013 BCSC 1762 the  Court in a wills variation claim divided the estate 50/50 between an alleged estranged disinherited son and a long time neighbour.




The reasoning for the disinheritance of the son and bequest to the neighbour was explained as:  :

7. My reasons for providing for my neighbours, CASEY MOORE and CLARA MOORE are because they have been a lot of help to me and have become my good friends over many years.

8. I have not given any part of my estate to my son, Bruce Drummond, because he does not visit me and he does not need anything from me. Bruce is retired and I believe he made good money as a logger.

[5] In my previous reasons, I found the statement about Bruce not visiting to be incorrect in that he did visit from time to time. However, Dee had previously expressed hostility to him in speaking to others. In his evidence at the resumed trial, Bruce confirmed that, throughout his life, his mother was bitter about the fact that her pregnancy with him had forced her into an unhappy marriage. She frequently referred to him as a “bastard.” As a child, Bruce was raised primarily by his grandmother and great-grandmother and did not live full-time with his parents until age 12.

[6] Bruce is now 77. He retired as a contract logger in 2007 and has pension income totalling about $20,000 a year. He lives in Quesnel, where he has owned a mobile home for 27 years. The home has an assessed value of $43,500 and sits on a pad that is rented for $220 a month. He has no significant savings or investments.

[7] Bruce testified that after his mother moved to Smithers in the 1960s, he generally visited once a year and provided small amounts of financial assistance from time to time. However, during the last two years of her life, she asked him not to visit because she was self-conscious about her condition. He last saw her in the spring of 2009, although they remained in telephone contact until February 2010.

[8] Although Dee stated in her will that she believed Bruce had made good money as a logger, he testified that they never specifically discussed his income. He said he made average wages for a logger, working 8 or 9 months a year.

[9] Bruce also testified that he did not learn of the new will until after Dee’s death and that he was surprised and shocked.

[10] Section 2 of the Wills Variation Act provides that if, in the court’s opinion, a will fails to make adequate provision for the proper maintenance and support of the testator’s spouse or children, the court may vary the will to make the provision it considers adequate, just and equitable in the circumstances. In the leading case of Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807, 116 D.L.R. (4th) 193 [Tataryn], the Supreme Court of Canada said the purpose of that section is to enforce the testator’s legal and moral obligations, but that a testator’s freedom to dispose of his or her property should be interfered with only in so far as the statute requires. At para. 17, the Court said:

[17] … The Act did not remove the right of the legal owner of property to dispose of it upon death. Rather, it limited that right. The absolute testamentary autonomy of the 19th century was required to yield to the interests of spouses and children to the extent, and only to the extent, that this was necessary to provide the latter with what was “adequate, just and equitable in the circumstances.” And if that testamentary autonomy must yield to what is “adequate, just and equitable”, then the ultimate question is, what is “adequate, just and equitable” in the circumstances judged by contemporary standards. Once that is established, it cannot be cut down on the ground that the testator did not want to provide what is “adequate, just and equitable”.

[11] There is no suggestion that Dee owed any legal obligation to her adult son. The question is one of moral obligation. The Court in Tataryn said at para. 28 that such obligations are based on “society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards.” While such obligations clearly exist in relation to spouses and dependent children, the Court also added at para. 31:
[31] … While the moral claim of independent adult children may be more tenuous, a large body of case law exists suggesting that, if the size of the estate permits and in the absence of circumstances which negate the existence of such an obligation, some provision for such children should be made.


[12] In McBride v. McBride Estate, 2010 BCSC 443 [McBride], at paras. 129-135, Ballance J. identified a number of factors for consideration in determining the existence or strength of a testator’s moral duty. The ones possibly relevant to this case are:

· Contributions by the claimant to the accumulation of a testator’s assets or the provision of other types of contribution or care;

· Conduct of the testator that created a bona fide expectation of a benefit;

· The role played by the testator in any estrangement or breakdown of the relationship between the testator and the claimant; and,

· Whether the testator’s reasons purporting to explain a disinheritance are valid and rational.

[13] Although there is as some evidence of financial contributions by Bruce over the years, these appear to have been modest and infrequent. All the evidence about Dee’s personality indicates that she was fiercely independent and unlikely to either ask for or accept any significant financial support.

[14] Bruce was aware of Dee’s previous will, in which he was the sole beneficiary. While that could be said to have created an expectation of benefit, it cannot in itself, be the determining factor. Testamentary autonomy, which Tataryn says must still be protected, includes the right to change a will.

[15] The significant issues in this case are the nature of the mother-son relationship and the stated reasons for disinheritance.

[16] Although this was not a case of complete estrangement, it is clear that the relationship between Dee and Bruce had always been a distant one, with a strong undertone of hostility and resentment. That hostility and resentment arose entirely with Dee (although Bruce may have responded in kind). She held him responsible for matters over which he had no control — the circumstances and consequences of his birth. In McBride, Ballance J. said at para 132:

[132] In the early development of the caselaw, a long period of separation, abandonment or estrangement between a child and testator was frequently, though not invariably, taken to militate against finding a moral duty to an adult child. The modern judicial trend indicates that the court will enquire into the role played by the testator in the estrangement or relationship breakdown, and where it is seen to be largely the fault of or at the insistence of a testator, it will likely not negate a testator’s moral duty, and may even enhance it. The weight of the authorities also indicates that the court may discern a moral duty as a means of rectifying the testator’s childhood neglect of the children: Gray v. Gray Estate, 2002 BCCA 94, 98 B.C.L.R. (3d) 389, Doucette v. Clarke, 2007 BCSC 1021, 35 E.T.R. (3d) 98 [Doucette]; Tomlyn v. Kennedy, 2008 BCSC 331, 38 E.T.R. (3d) 289; Wilson v. Watson, 2006 BCSC 53, 21 E.T.R. (3d) 285; P.S.G. v G.G. Estate, 2005 BCSC 1855; Ryan.

[17] As to the testator’s stated reasons for disinheritance, the Court of Appeal said in Kelly v. Baker (1996), 15 E.T.R. (2d) 219, [1996] B.C.J. No. 3050 (C.A.), that the testator’s moral obligation can be negated by “valid and rational” reasons:
[58] … The law does not require that the reason expressed by the testator in her will, or elsewhere, for disinheriting the appellant be justifiable. It is sufficient if there were valid and rational reasons at the time of her death – valid in the sense of being based on fact; rational in the sense that there is a logical connection between the reasons and the act of disinheritance.

[18] In McBride, Ballance J. pointed out that this approach may be difficult to reconcile with the objective test based on society’s reasonable expectations mandated by Tataryn. However, she said at para. 142:

[142] … I would respectfully observe that there appears to be a growing trend in the authorities decided in the aftermath of Kelly to favour rejection of objectively insufficient reasons on the pretence that they are simply not rational.

[19] However one interprets the test to be applied, I am bound to find on the basis of the authorities that the reasons stated in the will were insufficient to displace the moral obligation. The statement that Bruce never visited was factually incorrect. The statement that he did not need anything from her was based on an assumption unsupported by any specific knowledge. Dee knew nothing about Bruce’s income, other than the fact he had worked as a logger, and knew nothing about his financial circumstances in retirement. Bruce testified that they never discussed these matters and I find that, given her attitude toward him, Dee was unlikely to have been interested.

[20] Tataryn and other case law makes clear that “society’s reasonable expectations” require a testator to consider adult independent children. Although a testator may in some circumstances reasonably exclude such a child based on the child’s financial circumstances and absence of need, the reasonable expectation is that a prudent testator would only do so on the basis of actual knowledge rather than speculation.

[21] For these reasons, I find that Dee’s will failed to meet her moral obligations and therefore fell short of the “adequate provision” required by s. 2(1) of the Act.

[22] The will should be varied in a way that “achieves the justice the testator failed to achieve,” while interfering with testamentary freedom “only in so far as the statute requires” (Tataryn, at para. 33). That requires the court to weigh the competing claims. The Supreme Court of Canada in Tataryn said at para. 32:

[32] How are conflicting claims to be balanced against each other? Where the estate permits, all should be met. Where priorities must be considered, it seems to me that claims which would have been recognized during the testator’s life — i.e., claims based upon not only moral obligation but legal obligations — should generally take precedence over moral claims. As between moral claims, some may be stronger than others. It falls to the court to weigh the strength of each claim and assign to each its proper priority… Any moral duty should be assessed in the light of the deceased’s legitimate concerns which, where the assets of the estate permit, may go beyond providing for the surviving spouse and children.

[23] Like Bruce’s claim, that of Mr. and Mrs. Moore is a purely moral one. Dee clearly felt gratitude for their day to day assistance and friendship. Her relationship with them, although not based on any family connection, was closer than her relationship with her son. This was partly her choice, but was also a simple product of physical proximity.

[24] Counsel for Bruce suggests that the will be varied to give him the real property, which now accounts for about 85 per cent of the estate. In my view, that would vary the will beyond what the statute requires and would give insufficient weight to testamentary freedom. Balancing the competing claims and the competing interests protected by the Act, I find that the estate should be divided equally, with one half going to Bruce and the other to Mr. and Mrs. Moore. In the circumstances, the parties will each bear their own cost

Will in Contemplation of Marriage

Will in Contemplation of Marriage

Prior to the WESA legislation in BC prior to  March 31, 2014 a marriage revoked an existing  will unless the  will was made in contemplation of marriage.

The BC Appeal court in MacLean Estate v. Christiansen, 2010 BCCA 374dealt with the matter.

The BCCA examined a will using the word spouse, but not actually saying the will was made in contemplation of the marriage. The trial judge found that the marriage was revoked but the appeal court reversed that decision and held that the will was valid.

[1] The principal issue in this appeal is whether the will of Gordon William MacLean was revoked by his subsequent marriage to Karen Christiansen. The appellant trustee and executor, a solicitor, prepared the will with the knowledge that Mr. MacLean intended to marry Ms. Christiansen. Through inadvertence, he failed to include as a term of the will the customary declaration contemplated by s. 15(a) of the Wills Act, R.S.B.C. 1996, c. 489, that the will was made in contemplation of the marriage. Absent such a declaration, a will is revoked pursuant to s. 14(1 )(a) of the Wills Act.

[25] After a comprehensive analysis of the origin and purpose of the Saskatchewan equivalent to s. 15 of the Wills Act, the English Wills Act, 1837 (U.K.) 7 Will. 4 & 1 Vic, c. 26, and An Act to amend the Wills Act of Ontario, S.0.1897, c. 20, the court considered whether the statute required a “formal declaration” or statement of intention. After considering the modern approach to statutory interpretation described by Ruth Sullivan in Dreidger on the Construction of Statutes, 3d. ed. (Markham, Ont: Butterworths Canada Ltd., 1994) and the ordinary dictionary meaning of the word “declaration”, the court held at para. 26:

[26] Thus, on a plain reading of the section and giving the word its ordinary meaning, a declaration need not be a formal statement. In my opinion, the ordinary meaning of the word is that there be a written statement in the will referable to a subsequent marriage.

[26] The court then addressed the question whether the will as a whole, and not merely some gift in it, must be made in contemplation of the particular marriage to be celebrated, adopting Re Coleman, [1975] 1 All E.R. 675 at 680. The court concluded that the whole will, not “some substantial part of it”, must be made in contemplation of the marriage.

[27] I respectfully adopt those interpretations.

[28] The question then in the case at bar is, whether the words in the will “my spouse

KAREN CHRISTIANSEN, and the creation, by words, of a spousal trust in favour of Ms. Christiansen and the appointment of “Karen” as the trustee of the spousal trust fund amount to sufficient declaration that the will is made in contemplation of the subsequent marriage.

[29] The respondent submits that in accordance with the holding of the chambers judge, the words do not amount to sufficient declaration, absent which the Court may not consider extrinsic evidence.

[30] With respect, that position does not accord with established authority. Again, the law on this point was usefully summarized in Ratzlaffat paras. 35-36:

[35] I adopt the position of Lord Cairns in Charter v. Charter, as did Idington J. in Marks v. Marks, that the court has a right to ascertain all the facts which were known to the testator at the time he made the will and thus to place itself in the testator’s position in order to ascertain the meaning and application of the language he uses. A probate judge is entitled to take into account the surrounding circumstances which existed at the time of the execution of the will in order to determine the proper construction of the will. The extrinsic evidence can include utterances and non-testamentary writings as well as direct evidence.

[36] That position is consistent with the approach in Re Foss. The testator, Foss, made his will in 1956 some eight days before his marriage. He stated in his own handwriting on a printed will form “I give devise and bequeath all my personal belongings money, shares in companys, insurance policys and property to my wife (Mrs. P. Foss)”. The will was duly executed. It was common knowledge that Mr. Foss was to be married in a few days. He died in 1972 leaving a widow and three infant children. Helsham J. considered whether extrinsic evidence would be admissible in these terms:

Whilst it is correct to say that the fact that a marriage was contemplated must appear by some expression in the will itself, it is also correct to say that whether the will contains such an expression must depend upon the construction of the will. If the will clearly contains such an expression, then there is no problem. If it does not, but there are some words which may or may not amount to such expression, then the will must be construed so as to find its true meaning. In order to ascertain the meaning of the words used by a testator it is permissible to construe the document in the light of the surrounding circumstances. This is the law in relation to ambiguities of language used in a testamentary document, and applies no less to the aspect of whether a testator has expressed the fact that his marriage was contemplated as to any other. For limited purposes the Probate Court has always been a court of construction, one purpose being to ascertain whether a will should be admitted to Probate: In the Estate ofFawcett (Dec’cf.) (3). This is such a case.

He concluded:
The problem arises in relation to evidence. When it is necessary to decide whether a will has not been revoked by a subsequent marriage, because it is expressed to be made in contemplation of a marriage, is it permissible to admit evidence of the circumstances that existed at the time the will was made – to read what the testator said in his will bearing in mind the situation that pertained at the time, or is the court confined the terms of the will itself in order to ascertain whether it is expressed to be made in contemplation of marriage?

There can be no dispute that evidence is admissible as to the marital state of the deceased and any interested party at the date the will was made, and of the subsequent marriage of the deceased.

That brings up the matter for decision. But can the court consider any other facts, as for example, that the deceased was engaged to be married, whether or not he was living with a person whom he describes in his will as his wife and whom he subsequently married, what time elapsed between will and marriage, and so on? On this matter of evidence views has differed.

After referring to Charter v. Charter, supra, he continued:
In my opinion where a question arises as to whether an expression used by a testator in a will is sufficient to prevent revocation, by subsequent marriage, of that will by reason of the operation of s. 15(2) of the Wills, Probate and Administration Act, then extrinsic evidence of surrounding circumstances, in addition to the fact and date of marriage, will be admissible in order to answer the question.

This approach is also consistent with what this Court stated in Haidl v. Sacher.

[Footnotes omitted.]

[31] The court concluded, at para. 41:

[41] Thus, evidence of the surrounding circumstances is admissible to construe the relevant clause in the will for the purpose of deciding whether it should be admitted to probate. The “surrounding circumstances” are admissible.

[32] Similarly, in Layer v. Burns Philp Trustee Co. Ltd. and others (1986), 6 N.S.W.L.R. 60 (C.A.), Mahoney J.A. held at 65:
Where it is clear that a word or term used has, amongst its accepted or dictionary meanings, a number of different meanings, extrinsic evidence is admissible to assist the court in determining which of such meanings the word or term bears in the particular case.

[33] The Shorter Oxford English Dictionary, 6th ed. (Toronto: Oxford University Press, 2007), notes the origin of the word “spouse” from the Latin sponsus bridegroom, sponsa bride, and defines “spouse” as a “married person; a person’s lawfully married husband or wife”.

[34] Similarly, in Taylor v. Rossu, 1998 ABCA 193,161 D.L.R. (4th) 266 at para. 92, the court held that “The ordinary meaning of the word “spouse” is a person who is joined in lawful marriage to another person.”

[35] On that basis, there is arguably no ambiguity and the term used in the will can be said to refer to Mr. MacLean’s wife whom he was yet to marry, Ms. Christiansen.

[36] By contrast, the chambers judge found no ambiguity because, at the time in

Mr. MacLean and Ms. Christiansen were living in a “common law” (or “spouse-like”) relationship. There is authority to support that conclusion. For instance, in Ferguson v. Armbrust, 2000 SKQB 219, 187 D.L.R. (4th) 367 at para. 41, the court found that “‘spouse’ may reasonably be interpreted as being limited to legally married spouses or as including both legally married spouses and common law spouses as the context requires”.

[37] If one accepts that the word “spouse” may refer to either a legally married person or a person living in a marriage-like relationship, then the use of the word in the circumstances at bar was ambiguous. Extrinsic evidence is thus admissible to determine the meaning in this case.

[38] The circumstances of the making of the will in this case were summarized in the appellant’s factum:
(a) The Will was made after joint tax and estate planning with Ms. Christiansen.
(b) Both Mr. MacLean and Ms. Christiansen were sophisticated financial professionals.
(c) The Will was executed after the wedding date and arrangements had been set.
(d) The solicitor preparing the Will knew of the wedding; was invited to and attended the wedding reception and advised Mr. MacLean and Ms. Christiansen on honeymoon travel arrangements to Italy.
(e) [The Will] was prepared at a time when Mr. MacLean and Ms. Christiansen were living in a stable, long-term, common-law relationship.
(f) The Will provides for benefits to Ms. Christiansen under a spousal trust.
(g) The Will speaks of Ms. Christiansen as his spouse.
(h) The Will addresses and balances the needs of Ms. Christiansen and of Mr. MacLean’s children.
(i) As their wedding date approached in May 2007, Mr. MacLean told Ms. Christiansen that he intended to have a Will and Power of Attorney in place before they were legally married.

[39] When one examines the terms of the will and the circumstances in which it was prepared, there can be no doubt that Mr. MacLean intended that the will would survive his marriage to Ms. Christiansen and provide for her for the remainder of her life. On her death, the one-half of the residue of the spousal trust then remaining would form part of the residue for the benefit of the testator’s children. This was obviously a carefully constructed estate plan. The extrinsic evidence overwhelmingly supports the construction that “spouse” meant Mr. MacLean’s legal spouse, to whom he was, at the date of making the will, not married but was clearly contemplating marrying.

[40] Further, the whole will was drafted in a manner in which it cannot be said that only the gift to Ms. Christiansen was contemplated. The spousal trust and the children’s fund planned as an integral part of a whole. In my opinion, the whole will was, when one examines the extrinsic evidence, expressed to be made in contemplation of the impending marriage to Ms. Christiansen.

[41] As the Supreme Court of Canada stated in Marks v. Marks (1908), 40 S.C.R. 210 at 212:

In other words, it is claimed that there cannot be any one who can answer to that description “my wife” except the one person who may in law be decided to be such.

I do not think the law so binds us.

Unless it does, I do not see why we should pervert the most obvious intention of this testator. I think we are bound to read his language in light of all the circumstances that surrounded, and were known to him when he used it and give effect to the intention it discloses when so read.

[42] This construction of the will further satisfies the legal presumption against an interpretation of a will that would create an intestacy. Thus, in Re Harrison; Turner v. Hellard (1885), 30 Ch. D. 390 at 393-394 (C.A.), Lord Esher, for the Court, held:

… when a testator has executed a will in solemn form you must assume that he did not intend to make it a solemn farce – that he did not intend to die intestate when he has gone through the form of making a will. You ought, if possible, to read the will so as to lead to a testacy, not an intestacy. This is a golden rule.

[43] It follows that I would find that the references to “spouse” in the will and the extrinsic evidence establish that Mr. MacLean’s will was made in contemplation of his marriage to Ms. Christiansen. I would therefore order that the will be admitted to probate.

Ryan Fights For the Warhol of Farrah Fawcett (worth maybe 12 million)

Ryan O’Neal testifies about disputed Warhol portrait of Farrah Fawcett

Love is never having to say your sorry, and that she gave me the $12 million dollar painting that I talk to each day so I own it and not the claimant University, says Ryan O’Neill..

Ryan O’Neal told a jury that an Andy Warhol portrait of Farrah Fawcett that hangs in his home is one of his deepest connections to his long-time partner and that he does not believe he should have to hand it over to the actress’s alma mater.

The University of Texas at Austin is suing O’Neal to try to gain possession of the portrait. Fawcett left all her artwork to the school and it claims O’Neal improperly took it from her condo days after her death.

The Oscar-nominated actor took the stand for the second time in the trial to assert his ownership of the portrait and why it’s important for him to keep it.

“I talk to it,” O’Neal said. “I talk to her. It’s her presence. Her presence in my life. In her son’s life.”

The actor’s portion of the trial is drawing to a close, with jurors hearing for the past several days from some of Fawcett’s closest friends. Each has said Fawcett told them that one of the Warhol portraits belonged to her and the other one was owned by O’Neal. They also recounted the same origin story for the artwork: Fawcett told them that O’Neal arranged for two portraits to be made, and both actors picked them up from Warhol’s New York studio at the same time.

One of Fawcett’s former caretakers, Maribel Avila, testified on Tuesday that the “Charlie’s Angels” star told her that one of the Warhol portraits of her belonged to O’Neal.

Avila was allowed to testify about Fawcett’s words despite coming forward with her story just days before opening statements began on Nov. 25. Avila saw a story in the New York Post about the case and contacted O’Neal’s attorneys.

O’Neal told the same story about the portrait’s origins on Wednesday, adding that his daughter Tatum O’Neal accompanied him to the photo shoot with Warhol.

The actor does not deny that he took one of the portraits from Fawcett’s condominium in the days after her death, but said he was given permission by her estate’s trustee. The artwork was kept in both his home and Fawcett’s homes over the years.

He said he considers the portrait a family heirloom and he plans to leave it to his son with Fawcett, Redmond. Both treasure the portrait for its connection to Fawcett, O’Neal said.

“We lost her,” he said. “It would seem a crime to lose it too.”

Redmond O’Neal is expected to testify on Thursday.

Jurors will also hear from Karen McManus, a contemporary art appraisal expert who told the panel Wednesday that she estimates that O’Neal’s portrait is worth $800,000 (U.S.) to $1-million. An expert for the university testified last week that the portrait was worth up to $12-million.

Where There Is a Cult, There Is Undue Influence

Undue influence and cults

Undue Influence and Cults

In recent years there have been a rash of news stories about people who have escaped from various cults, sects, communes or other extremely private organizations ,such as Scientology.

Today’s news brings the story of a Marxist commune in South London that is being investigated for slavery and other such related charges. It is the family of Sian Davies who is pursuing the matter since Sian more or less dropped out of society in the mid-1970s when she joined the Marxist commune.

The family understood that she had disappeared, until the police informed them that she had died in 1997 after apparently falling from a window in the groups house in South London.

The family is apparently pursuing the matter on the basis that Ms. Davies was psychologically controlled through political indoctrination.

The Marxist commune is typical of a large number of groups that have sprung up in our society, throughout the world, that are somewhat similar in the way that they originate, their power structure, and their governance.

Some cults exercise extraordinary control over their members lives and use thought reform process, diet and intimidation to influence and control its members..

Another common denominator is that the leader of the cult your commune is often depicted as having supernatural powers that causes members of the group to subject themselves to the leaders everywhere and desire and profit.

Many of us remember the commune in Oregon in the late 1970s, where the “ Bagwan” leader had approximately 66 Rolls Royces that he drove around in, while the members of the cult worked extremely hard for very little, and had sexual relations with their leader when he requested.

The purpose of this article is to state that in legal terms, members of the cult who were under the extreme influence of a leader, to the extent that the leader has mind control over his or her subjects, is classic undue influence.

The Doctrine of Ademption By Conversion



The doctrine of ademption by conversion — a rule of the law of wills whereby a specific bequest “adeems”, or fails, if at the testator’s death the specified property is not found among his or her assets — either because the testator has parted with it, or because the property has “ceased to conform to the description of it in the will”, or because the property has been wholly or partially destroyed. (J. MacKenzie, ed., Feeney’s Canadian Law of Wills (4th ed., loose-leaf, 2000) at §15.2.)

The doctrine applies as a matter of law, irrespective of the testator’s intentions in the matter, although his or her intentions are clearly relevant to the anterior question of whether the gift in question is a “specific” legacy (and therefore subject to ademption), or a general one (not subject to ademption). The doctrine is also subject to the qualification that even if the gift in question is a specific legacy, it may be saved in some circumstances if the property has changed “in name or form only”, and still forms part of the testator’s property at the date of death.

Being a specific legacy, the gift will be adeemed by conversion if the property has “ceased to exist as part of the testator’s property in his lifetime” (Jarman, at 1065) or has ceased to conform to the description in the will (Feeney, at §15.2).

Whether it was intended for the gift to be adeemed is not relevant: the doctrine applies “irrespective of the testator’s intentions.” (Hurzin v. Neumeyer Estate (1990) 69 D.L.R. (4th) 18 (B.C.C.A.), at 22; Jarman, at 1065

Ademption will not occur where the specific property in question has been changed “in name or form only” so that it “exists as substantially the same thing, although in a different shape.” (Halsbury, supra, vol. 50 at para. 394, citing Oakes v. Oakes (1852) 9 Hare 666 at 672, approved in In re Slater [1907] 1 Ch. 665 at 672 (C.A.).) Whether the change is one in name or form only is a question of fact: In re Jameson [1908] 2 Ch. Ill at 115; Feeney, at §15.27.

Predictably, a body of case-law has developed involving situations in which someone other than the testator has caused the change to occur — e.g., where corporate shares have been forcibly exchanged on an amalgamation or statutory re­organization (see In re Jameson, supra, In re Slater, supra, In re Faris [1911] 1 I.R. 165, In re Leeming [1912] 1 Ch. 828, Re Humphreys (1915) 60 Sol. Jo. 105, In re Kuypers [1925] Ch. 244, and Re Ogilvy (1966) 58 D.L.R. (2d) 385 (Ont. H.C.),

In most of these cases the gift was saved on the basis that the Court found that the change was one in form only.

Legacies – General or Specific


Re Wood Estate 2004 BCCA 556, contains a good discussion on the differences between general and specific bequests, aka legacies.

There are generally two classes of legacies — specific and general.

Halsbury’s Laws of England (4th ed. 1998) describes the categories as follows:

A specific legacy must be of some thing or of some interest, legal or equitable, forming part of the testator’s estate; it must be a part as distinguished from the whole of his personal property or from the whole of the general residue of his personal estate; it must be identified by a sufficient description, and separated in favour of the particular legatee from the general mass of the testator’s personal estate. . . .

A general legacy may or may not be part of the testator’s property: it has no reference to the actual state of his property, and is a gift of something which, if the testator leaves sufficient assets, must be raised by his executors out of his general personal estate. Whether or not a particular thing forms part of the testator’s personal estate is a pure question of fact; so long as it is the testator’s at his death it is capable of being specifically bequeathed. Whether or not it has been separated from the general personal estate depends upon the true construction of the will. In the case of real estate a devise, whether of a specific property or by way of residue, is specific. [Vol. 17, paras. 1228-9; emphasis added.]
J.B. Clark and J.G.R. Martyn, the authors of Theobald on Wills (15th ed., 1993), explain the distinction in a similar way:
A general legacy is a legacy, not of any particular thing, but of something which is to be provided out of the testator’s general estate, for instance: “I give £100 to X”; or, “I give £1,000 3 per cent. War Loan to X.” The executors’ obligation is to provide the property given for the legatee and it is irrelevant whether it formed part of the testator’s assets at his death. On the other hand, a specific legacy is a gift of a severed or distinguished part of the testator’s property, thus showing an intention that the property shall pass to the legatee in specie. For instance: “I give my dwellinghouse, Blackacre, to X”; or “I give my silver teaspoons to X.” The severance must be done by the testator, not by some analysis in a court of equity. . . . A specific legacy does not abate until after the general legacies are exhausted, but it is liable to ademption by the testator in his lifetime. The court leans against holding legacies to be specific. [at 243-44; emphasis added.]

Accordingly, a gift of “my grandfather’s gold watch” or of “the shares of XYZ Ltd. now standing in my name” is a specific one, but a gift of “a gold watch” or of “$10,000 worth of shares of XYZ Ltd” is likely to be a general one which must be paid out of the testator’s personal estate if he or she does not own a gold watch or such shares at the date of death. (R. Jennings, ed., Jarman on Wills (8th ed., 1951), at 1037-38.)
[12] Although the third category, demonstrative legacies, was traditionally seen as a sub-category of general legacies (see Jarman, at 1043-44), more modern texts treat these as a kind of hybrid. As Clark and Martyn note, a demonstrative legacy

is by its nature a general legacy, usually pecuniary, directed to be satisfied primarily (but not solely) out of a specified fund or a specified part of the testator’s property. The authors give as an example a gift of “£100 to be raised out of the sale of my Surrey properties.” {Theobald, at 24 4-4 5.) A gift of this kind will not be adeemed even if the proceeds of the Surrey properties cease to exist or to be identifiable prior to the testator’s death. Feeney also notes that such legacies are:

. . . in the nature of a pecuniary and general legacy, except that the will indicates a particular fund out of which it is to be primarily paid. However, if the will shows that the legacy is to be paid out of a particular fund, and that fund only, it is then a specific legacy and is subject to ademption. [§15.8; emphasis added.]
[13] In the case at bar, of course, the gift was of “any cash or any stocks and bonds” held in the RBC account. It is not possible to say that a given amount was to be paid “primarily but not solely” out of the account. Arguably as well, the phrases “any cash” and “any stocks and bonds”, which {counsel agreed) may in this context be equated with “all cash and all stocks and bonds held at the date of my death”, indicate that the gift referred specifically to whatever was being held in the RBC account at the time of the testator’s death — again, not to something to be paid or transferred out of the account. (See Jarman, at 1053.) In my view, then, the gift in clause 3(a) (v) could not be said to be a demonstrative one. Rather, it was a specific legacy — a gift in specie of the actual contents of the account, identifiable not by sum or numbers of shares but only by the broker’s name (RBC) and account number mentioned in the will. Without these “identifiers”, one could not say how much cash or which stocks and bonds Mr. Wood intended to bequeath to his children.
[14] Being a specific legacy, the gift will be adeemed by conversion if the property has “ceased to exist as part of the testator’s property in his lifetime” (Jarman, at 1065) or has ceased to conform to the description in the will (Feeney, at §15.2). Applying this principle to the case at bar, it is clear that in transferring his cash, stocks and bonds from RBC account number 861-16199-1-0 in Vancouver to a different account at Midland in Nanaimo, Mr. Wood caused the subject-matter of the gift to cease to conform to the description of it in the will. Whether he intended for the gift to be adeemed is not relevant: the doctrine applies “irrespective of the testator’s intentions.” (Hurzln v. Neumeyer Estate (1990) 69 D.L.R. (4th) 18 (B.C.C.A.), at 22; Jarman, at 1065.) On this point, I agree with counsel for the appellant that to the extent the Chambers judge below may have considered evidence of the testator’s family situation and other “surrounding circumstances” to decide whether Mr. Wood intended the gift to fail, he was in error.

[15] As noted earlier, however, ademption will not occur where the specific property in question has been changed “in name or form only” so that it “exists as substantially the same thing, although in a different shape.” (Halsbury, supra, vol. 50 at para. 394, citing Oakes v. Oakes (1852) 9 Hare 666 at 672, approved in In re Slater [1907] 1 Ch. 665 at 672 (C.A.).) Whether the change is one in name or form only is a question of fact: In re Jameson [1908] 2 Ch. Ill at 115; Feeney, at §15.27.

BC Court Rules Sperm Freezer at UBC Was Like a “Warehouse Rental”

Sperm donor


Lam vs the University of British Columbia 2013BCSC 2094, involved a class-action suit brought by hundreds of sperm donors that had stored their sperm with the defendant University, and their sperm was damaged as a result of the sperm freezer malfunctioning.

At issue was whether the complicated contract signed by each donor prevented that donor from bringing court action against the University due to an exclusion clause of liability.

The court underwent a very detailed analysis and concluded that the sperm was property, and that it was analogous to goods being stored in a warehouse, and the law has been clear for many years that the warehouseman cannot escape liability by inserting such a clause in the contract.

Each sperm donor is seeking damages of between 20 and $100,000 each.

The court examined similar cases from various jurisdictions around the world and stated in part:

35. “The question as to whether sperm is property has been considered by a number of courts. In Yearworth, the Court of Appeal (Civil Division) considered a case with some similarity to the present action. The claimants were cancer patients who, before undergoing chemotherapy, provided sperm samples to the defendant hospital. The sperm were frozen and stored in liquid nitrogen but the samples thawed when the liquid nitrogen levels fell too low. The court rejected the hospital’s argument that the common law does not recognize a substance generated by the body as capable of being owned. It concluded the claimants owned the sperm and stated at para. 45:

In this jurisdiction developments in medical science now require a reanalysis of the common law’s treatment of and approach to the issue of ownership of parts or products of a living human body, whether for present purposes (viz. an action in negligence) or otherwise.

[36] In Yearworth, the court also concluded there was a gratuitous bailment of the sperm by the claimants, and that the hospital was liable to the claimants under the law of bailment.

[37] In Bazley, the Supreme Court of Queensland was asked to determine whether sperm stored by a hospital was property. The sperm was placed in storage when Mr. Bazley was diagnosed with cancer. After his death his wife sought an order preserving the sperm so that she could use it. The hospital took the position under national ethical guidelines that it was required to destroy the sperm as Mr. Bazely had not completed an instruction form transferring the right to use the sperm to his wife. Ms. Bazely argued that the sperm was property which was part of Mr. Bazley’s estate and that it passed to her under his will.

[38] After reviewing the relevant common law authority, including Yearworth and Palmer on Bailment, 3rd ed. (2009), the court concluded at para. 33:

The conclusion, both in law and in common sense, must be that the straws of sperm currently stored with the respondent are property, the ownership of which vested in the deceased while alive and in his personal representatives after his death. The relationship between the respondent and the deceased was one of bailor and bailee for reward because, so long as the fee was paid, and the contact maintained, the respondent agreed to store the straws.

[39] Two Canadian cases have considered whether sperm or frozen embryos are property. In C.C. v. A.W., 2005 ABQB 290, the court considered whether the respondent who had gifted sperm to the claimant for her to use for the conception of children could prevent her use of the embryos. The court found the respondent’s gift was unqualified and concluded at para. 21 that the fertilized embryos were the claimant’s property:

The remaining fertilized embryos remain her property. They are chattels that can be used as she sees fit. Mr. A.W. is not in a position to control or direct their use in any fashion. They shall be returned to Ms. C.C.. Conversely, as they are not Mr. A.W.’s property and he has no legal interest in them, he is not responsible for paying for their storage. That responsibility lies with Ms. C.C. who owns the embryos.

[40] In J.C.M. v. A.N.A., 2012 BCSC 584, Russell J. relied on the decision in C.C. for the proposition that stored sperm is property. She found the reasoning in Yearworthto be persuasive and stated at para. 58:

Further support for this position is found in the Yearworth case. This decision provided a much more detailed basis for a finding of sperm as property. As is acknowledged in that case, typically the common law did not allow for human beings, living or deceased, or their body parts and products to be considered property. This was, no doubt, for good reason. However, I agree with the court of appeal’s finding that medical science has advanced to a point where the common law requires rethinking of this point.

[41] These cases did not consider whether the term “property”, as used in legislation, could include sperm. They were concerned with whether the common law now regards stored sperm or embryos as property. That distinction is of no consequence to the analysis I must make in this case. Courts in a variety of jurisdictions have come to the conclusion that stored sperm is property. I agree with the conclusion arrived at in these cases. The frozen sperm at issue in this case is the property of the class members. The sperm was ejaculated, frozen and stored for the purpose of using it for conception. Applying the current state of the law of property to the definition in the WRAleads to a conclusion that frozen sperm is “goods”.

[42] The next step in the analysis is to ask if the purpose of the provisions in the WRA justifies the application of those provisions to the new definition of property. One of the purposes of the WRA was to codify the common law of bailment. Under the common law, a bailee is required to exercise the same care and diligence with respect to the bailed goods as a careful and vigilant person would exercise over his own similar goods in like circumstances. Sections 2(4) and 13 of the WRA effectively accomplish that. There is no reason why these provisions should not be applied to property that can be stored for reward which was not contemplated at the time the legislation was enacted. The purpose of requiring bailees to exercise adequate care and diligence applies equally to all kinds of property that can be stored for reward.

[43] The other step in the Cote analysis is to ask if the legislative provision in question is sufficiently general to permit its application to things unknown at the time of enactment. As I have already noted, the definition of goods is broad and inclusive. In other words, the provision is sufficiently general to apply to things unknown at the time of passage. There is no reason not to apply the provisions of the WRAto goods which fall within the current understanding of “all property other than things in action, money and land.”

[44] A textual analysis also requires consideration of the enactment as a whole. UBC argues that if “goods” includes sperm, an explicit or implicit conflict is created with other provisions in the WRA and the WLA. As I set out below, I conclude it is not necessary to consider provisions of the WLA when interpreting the provisions in the WRA. Moreover, there is no explicit or implicit conflict with other provisions in the WRAif “goods” includes sperm.

[45] The thrust of UBC’s argument is that the conflict arises because it is an offence to sell sperm. Pursuant to s. 7(1) of the Assisted Human Reproduction Act, it is an offence to “purchase or advertise for the purchase of sperm or ova from a donor or person acting on behalf of a donor.” If a warehouser could issue a negotiable receipt or a transferrable nonnegotiable receipt for frozen sperm, UBC argues this would mean that the sperm could be sold or transferred. This would be contrary to the Assisted Human Reproduction Actand public policy. I reject this submission.

[46] The focus by UBC on the ability of a warehouser of sperm to issue a negotiable receipt is misplaced. It is not an issue in this case because the Agreement does not purport to be negotiable. It is a nonnegotiable receipt. More importantly, the possibility of a warehouser issuing a negotiable receipt for the storage of sperm does not create the kind of conflict that requires “goods” to be interpreted not to include sperm. There is no requirement for a warehouser to issue negotiable receipts – the WRA provides for the issuance of nonnegotiable receipts. It also permits the inclusion of terms in a receipt so long as those terms are not contrary to provisions in the WRA: s. 2(4)(a). Further, if a receipt purports to be negotiable but another statute makes it an offence to sell the property in question, this would not create an irreconcilable conflict. It would only mean that the holder of the receipt would have to comply with other statutory provisions.

[47] The fact that a nonnegotiable receipt can be transferred similarly does not create a conflict or an absurdity. Rather, the holder of such a receipt could be subject to other laws or regulations. A warehouser who issues a receipt for a special class of goods would likely be aware of the existence of other statutory provisions, just as the Andrology Lab would be knowledgeable about laws relating to the transfer and use of sperm. It is for this reason that the Agreement contained specific provisions regarding delivery and use of the sperm.

[48] By analogy, the fact that it is an offence to transfer firearms except in accordance with law would not result in the conclusion that firearms are not “goods” or that the WRA does not apply to the storage of firearms. Rather, any sale or transfer of firearms would have to be made in accordance with other legislative provisions including the Criminal Code and the Firearms Act.

[49] The fact that sperm cannot be purchased does not prevent it from falling within the definition of “goods” in the WRA. It simply reflects the fact that sperm, like other classes of property, is subject to control or regulation by other statutory provisions. If sperm is property that can be stored and for which a receipt can be issued, then it falls within the definition of “goods” in the WRA.

[50] In summary, on a grammatical or textual analysis, the frozen sperm specimens covered by the Agreement fall within the definition of goods in the WRA. The definition is clear and unequivocal; “goods” is meant to include “all property” with three exceptions. Those exceptions do not apply to sperm and the inclusion of sperm in the definition is not inconsistent with other provisions in the WRA.