30 Year Commonlaw Spouse Awarded $150,000 More Than His Half of the Assets

Griese v Syvret 2013 BCSC 1601 is a wills very action trial involving a couple that lived in a commonlaw relationship for 30 years before the death of the commonlaw spouse in 2010 at age 84.

Her major asset was the matrimonial home which they both purchased by contributing an equal amount, that was registered as tenants in common at her death. Her surviving spouse obtained his one half interest in the property worth $727,000, however the wife left her entire estate but for a dining room suite, to a child that she had never adopted, but had raised since the age of six years as her own. The child had been abandoned in an orphanage due to a birth defect. At the time of the trial, the young man was earning $60,000 a year and his wife was earning 30,000.

The issue before the court was what if anything more ought the surviving spouse receive from the deceased in recognition of her legal and moral obligations to him.

The court took some guidance from the statutory scheme of distribution as set out in the estate administration act, had the deceased died intestate.

After careful analysis, the legal discussion of the which follows hereafter, the court awarded the husband a lump sum of $150,000.

In Tataryn (at p. 821) McLachlin J. (as she then was), writing for the Court explained that together these societal norms provide a guide to what is “adequate, just and equitable” in the circumstances of the case.

[61] Also in Tataryn the Supreme Court of Canada recognized the importance of protecting testamentary autonomy, where (at pp. 823-4) McLachlin J. stated:

I add this. In many cases, there will be a number of ways of dividing the assets which are adequate, just and equitable. In other words, there will be a wide range of options, any of which might be considered appropriate in the circumstances. Provided that the testator has chosen an option within this range, the will should not be disturbed. Only where the testator has chosen an option which falls below his or her obligations as defined by reference to legal and moral norms, should the court make an order which achieves the justice the testator failed to achieve. In the absence of other evidence a will should be seen as reflecting the means chosen by the testator to meet his legitimate concerns and provide for an ordered administration and distribution of his estate in the best interests of the persons and institutions closest to him. It is the exercise by the testator of his freedom to dispose of his property and is to be interfered with not lightly but only in so far as the statute requires.

[62] The approach in Tataryn was carefully summarized and grounded in principles of family law by Martinson J. in Steernberg v. Steernberg, 2006 BCSC 1672 as follows (unattributed paragraphs refer to Tataryn):

[59] The language of the WVA confers a broad discretion on the Court, which allows judges to craft results that are just in the specific circumstances of the case and which are adequate, just and equitable in light of contemporary standards, values and expectations (at ¶15). The WVA addresses two main interests – the “adequate, just and equitable provision for the spouses and children of testators” and testamentary autonomy; testamentary autonomy must yield to what is “adequate, just and equitable.” (at ¶16-17).

[60] In looking at current societal norms, two sorts of norms are available and both must be addressed (at ¶28); together they provide a guide as to what is adequate, just and equitable in the circumstances. They are legal obligations and moral obligations.

[61] Legal obligations are “the obligations which the law would impose on a person during his or her life were the question of provision for the claimant to arise” (at ¶28). The legal obligations may be found in the Divorce Act, R.S.C. 1985, c. 3 (2d Supp.), family property legislation, and the law of unjust enrichment (at ¶30). When, as in this case, the parties are not separated or divorced at the time of death the law nonetheless imposes uncrystallized legal obligations that a testator owes to his or her spouse (at ¶28).

[62] Second, the Court should consider the testator’s moral obligations to his or her spouse and children, in light of “society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards” (at ¶28). With respect to the moral obligation to a spouse, the Court concluded that most people would agree that although the law may not require a supporting spouse to make provision for a dependent spouse after death, a strong moral obligation to do so exists if the size of the estate permits. The moral obligation is broader than the legal obligation and is assessed at the date of death.

[63] The moral duty is customized to each specific claimant. The test in determining whether a testator spouse has breached his or her moral duty is whether, as a just husband or wife he or she properly considered the situation of his or her spouse and an appropriate standard of living for that person: Holland v. Holland (1995), 9 E.T.R. (2nd) 119 (B.C.S.C.).

[64] The moral claim of independent adult children is more tenuous than the moral claim of spouses. But if the size of the estate permits, and in the absence of circumstances negating the existence of such an obligation, some provision for adult independent children should be made (at ¶31).

[65] Circumstances that will negate the moral obligation of the testator are “valid and rational” reasons for disinheritance. To constitute “valid and rational” reasons for disinheritance, the reason must be based on true facts and the reason must be logically connected to the act of disinheritance: Bell v. Roy Estate (1993), 75 B.C.L.R. (2d) 213 (B.C.C.A.); Clucas v. Clucas Estate (1999), 25 E.T.R. (2d) 175 (B.C.S.C.); Comeau v. Mawer Estate (1999), 25 E.T.R. (2d) 276 (B.C.S.C.); and Kelly v. Baker (1996), 15 E.T.R. (2d) 219 (B.C.C.A.).

[66] As between moral claims, some may be stronger than others. The Court must weigh the strength of each claim and assign to each its proper priority. In doing so, the Court should take into account the important changes resulting from the death of the testator. There is no longer any need to provide for the person who died and reasonable expectations following upon death may not be the same as in the event of a separation during lifetime. A will may provide a framework for the protection of the beneficiaries and future generations and the carrying out of legitimate social purposes. Any moral duty should be assessed in light of the person who dies’ legitimate concerns which, where the assets of the estate permit, may go beyond providing for the surviving spouse and children: Tataryn at ¶32.

[67] The test of what is “adequate and proper maintenance and support” as referred to in s. 2 of the WVAis an objective test. The fact that the testator was of the view that he or she adequately and properly provided for the disinherited beneficiary is not relevant if an objective analysis indicates that the testator was not acting in accordance with society’s reasonable expectations of what a judicious parent would do in the circumstances by reference to contemporary community standards: Tataryn; Walker v. McDermott, [1930] S.C.R. 44; Price v. Lypchuk Estate (1987), 11 B.C.L.R. (2d) 371 (C.A.); Clucas, above; and Dalziel v. Bradford et al.(1985), 62 B.C.L.R. 215 (B.C.S.C.).

[68] When possible, all claims should be met. However, if an estate is not large enough to accommodate both the testator’s legal and moral duties, then the legal duties should take priority (at ¶38).

[69] In many cases there will be a number of ways of dividing the assets which are adequate, just and equitable. In other words, there will be a wide range of options, any of which might be considered appropriate in the circumstances. Provided that the testator has chosen an option within this range, the will should not be disturbed. Only where the testator has chosen an option which falls below his or her obligations as defined by reference to legal and moral norms, should the Court make an order which achieves the justice the testator failed to achieve. In the absence of other evidence a will should be seen as reflecting the means chosen by the testator to meet his legitimate concerns and provide for an ordered administration and distribution of his estate in the best interests of the persons and institutions closest to him. It is the exercise by the testator of his freedom to dispose of his property and is to be interfered with not lightly but only in so far as the statute requires (at ¶33).

[63] About fifteen years after Tataryn the British Columbia Court of Appeal decided Picketts v. Hall (Estate), 2009 BCCA 329. In Picketts, Mr. Justice Low, writing for the Court, addressed the issue of the legal and moral duty owed by a testator to a common law spouse, and whether different considerations apply to a common law spouse than to a married spouse in an application to vary a will.

[64] The facts in Pickettswere that Mr. Hall and Ms. Picketts had lived together for 21 years as though they were a married couple. On Mr. Hall’s death, Ms. Picketts was 75 years of age. He left two adult sons, and an estate worth $18,000,000.

[65] Under his will, Mr. Hall left Ms. Picketts the condominium they had been living in, and $2,000 per month for her life. The Court of Appeal awarded Ms. Picketts $5,500,000, an amount close to one-third of the value of the estate, which was the amount she would have received under the provisions of the EAA.

[66] Low J.A. dealt with Mr. Hall’s moral obligation to Ms. Picketts and the application of the EAA, as follows:

[54] Although McLachlin J. in Tataryn did not discuss the Estate Administration Act, R.S.B.C. 1996, c. 122, or its applicable predecessor, under the topic of legal obligations, I think that statute bears mentioning at this point. The provisions in the statute as to intestacy succession create a default succession in law if a person should die without a will. Section 85 states that, on an intestacy in which there is a surviving spouse and a surviving child or surviving children, the spouse is entitled to the first $65,000 of the estate and half of the residue if there is one child surviving, and one-third of the estate if there is more than one child surviving.

[55] In the unlikely event that Mr. Hall had died intestate, Ms. Picketts would have received one-third of the entire estate. This is because the definition of “common law spouse” in the Estate Administration Act was amended by the Definition of Spouse Amendment Act, S.B.C. 1999, c. 29, to mean, inter alia, “a person who has lived and cohabited with another person in a marriage-like relationship, including a marriage-like relationship between two persons of the same gender, for a period of at least 2 years immediately before the other person’s death”. This is essentially the same definition as the definition of “spouse” in the Wills Variation Act. The two definitions became law on the same date.

[56] Although the intestacy provisions of the Estate Administration Act do not directly affect the legal considerations under Tataryn, it is significant that the Legislature chose to amend both statutes at the same time. This can be seen as a dovetailing of the two statutes to reflect the social norms of the day and, to repeat the quote from Tataryn at p. 822, to “reflect a clear and unequivocal social expectation, expressed through society’s elected representatives…”

[67] In Rose v. Bloomfield, 2010 BCSC 315, it was argued unsuccessfully before Mr. Justice Cohen (in light of the above comments of Low J.A. with regard to the distribution scheme of EAA) that the provisions of the EAA with regards to intestacy ought not to be taken into consideration when assessing whether a testator’s provision for a spouse is “adequate, just and equitable”. Cohen J. concluded:

[49] It is not known whether the decision in Hecht v. Hecht Estate was cited to Low J.A. Regardless, I do not agree with the defendants’ interpretation of Low J.A.’s reasons. In my opinion, His Lordship clearly adopted the distribution scheme legislated under the EAA as a means by which to assess whether a testator’s provision for a spouse is “adequate, just and equitable”. Accordingly, I am satisfied that in the case at bar it is open for me to take guidance from the scheme of distribution set out in the EAA when determining whether the Will made adequate provision for the plaintiff, and in my consideration of an appropriate discretionary distribution of the deceased’s estate.

[68] In the present case, I take some guidance from the scheme of distribution set out in the EAA. Had Ms. Jacques died intestate, the defendant would not be entitled to a share of her estate under the EAA. He would not qualify as “issue” and by virtue of s. 83 of the EAA, the plaintiff as the deceased’s spouse would receive her entire estate. Pursuant to s. 85 of the EAA, in the event that the defendant had been adopted and the net value of the deceased’s estate exceeded $65,000, the plaintiff as spouse would receive the first $65,000 and the balance would be split in half between the plaintiff and the defendant.

[69] I also note that had the deceased not made the defendant a beneficiary of her estate, he would not be entitled to bring a claim pursuant to the WVA to challenge the Will. This is because the defendant is neither a natural nor an adopted child. An expanded definition of child is not permitted, for example to include foster children:Peri v. McCutcheon,2011 BCCA 401.

[70] Also of note are the comments of Low J.A. in Pickettsregarding competing claims to an estate as between adult independent children and a loyal spouse:

[60] Cases decided by this court since Tataryn are of limited assistance because the present case is unusual on its facts. I will, however, refer to one case.

[61] In Bridger v. Bridger Estate, 2006 BCCA 230, the testator’s estate was valued at about $311,000 and the trial judge varied the will that favoured three daughters from a first marriage over the testator’s second wife of 38 years. In writing for the majority to dismiss the appeal, Mackenzie J. A. said this:

[20] … Tataryn recognizes that there is no clear legal standard to judge moral claims and the test is more nebulous where the surviving spouse is not strictly speaking a dependent spouse and the children are all financially independent adults. While, as McLachlin J. observes in Tataryn, there may be a number of options for dividing assets by a testator which are adequate, just and equitable, I do not think they include a disposition that entirely prefers the moral claims of adult independent children to those of a loyal spouse who provided care for the testator over years of debilitating decline…

[62] It seems to me that it is also not a viable option for the court to approve a disposition that substantially prefers the moral claims of adult independent children to those of a long-term, caring and dedicated spouse.

[Emphasis added in Picketts]

[71] In deciding whether or not the deceased’s Will made adequate provision for the plaintiff, her long-term spouse, I find certain aspects of the evidence to be of particular note, namely:

o Apart from the Aldergrove property and the likelihood that the plaintiff provided some additional financial support to Ms. Jacques after she retired and he continued to work, fundamentally they kept their financial affairs separate;

o In purchasing their only residence together after about seven years of cohabitation, they purchased it as tenants in common as opposed to joint tenants;

o They both contributed approximately equally to the purchase of the Aldergrove property from their separate financial resources;

o Neither Ms. Jacques nor the plaintiff made provision for the other in their wills (with the exception of Ms. Jacques leaving the plaintiff the dining room set and her half interest in the Aldergrove property as an alternate beneficiary, if the bequest to the defendant failed);

o The deceased raised the defendant as her son from within six months of his birth and persevered in doing so after her husband died;

o The deceased had a close relationship with the plaintiff as her common law husband of 30 years as of the time of her death, and he provided considerable care and comfort to her in the last months of her life;

o The deceased also had a very close relationship with the defendant who was essentially her only child in all ways except that he was not adopted by her;

o The plaintiff contributed approximately $80,811 in terms of maintenance and repairs to the Aldergrove property; the deceased contributed an unrecorded amount likely to be less than $10,000;

o As the plaintiff has received payment for his half interest in the Aldergrove property he has already reaped the benefit of half of any such expenditures;

o The plaintiff is not in particular financial need at this time, and given his age is in generally good health and enjoying life; and

o The defendant is not in financial need as he is an adult person of independent means.

[72] In the present case when I analyze the legal and moral obligations of the testatrix to the plaintiff in the context of Tatarynand the jurisprudence that follows, I find that she did not make adequate provision for her common law spouse of 30 years. I assess her “uncrystallized” legal obligation to the plaintiff at the time of her death to have been modest spousal support. I note that his retirement income was approximately twice the amount of hers, so in practical terms, had the parties separated, the plaintiff likely would have been required to pay her a very modest amount of spousal support. Their “family assets” under the Family Relations Act, R.S.B.C. 1996, c. 128 would have been divided much as occurred upon her death.

What Happens to Your Data After You Die?

Reprinted From Forbes Magazine.

When you die, you’ll leave behind a digital presence – dead data, or a graveyard in the cloud.

The only things certain in life are death and data. Data After You Die?

Every year, Facebook cheerfully suggests I reconnect with some friends on their birthdays. I’d certainly like to, but there’s a glaring complication: these particular friends are dead.

The grieving process being one of the most human of them all, it naturally dredges up all kinds of complex, contemplative thoughts. Loss transcends other divisions, real or imagined, because whether we want to think about death or not, it is something that affects us all.

Earlier this year, Cisco published its Visual Networking Index – estimating that by 2015, annual global IP traffic will pass the zettabyte threshold. Much of this represents the activities and movements of real, living people. Short of a global catastrophe, these imprints will remain online long after these people are dead.

Move up http://i.forbesimg.com Move down.

Historically, an executor of a will is entrusted to sort and delegate items of interest. With so many of our possessions and details of our personal lives now finding their home in the digital realm, ownership, moral, and sociological questions are raised: who does your digital life belong to, who should have access to it, and where does society go from here?

No matter how unpalatable, the subject of death is something businesses will have to wake up to and tackle head on, according to William Beresford, co-founder of data specialist Beyond Analysis.

“When you register for Facebook, how inclined are you to fill in a contact email for someone when you die?” he asks.

There are mechanisms in place for removing a dead user’s profile, but in Facebook’s case you will need to provide a birth and death certificate, and prove that you are the lawful representative of the deceased. Hardly a pleasant or high priority task.

“It’s a complex idea, and it’s not the sort of thing you think about when you’re living your digital life,” Beresford says. “There are interesting challenges: how do I filter my personal digital existence? I went online in ’92, hopefully when I die there will be 50 or 60 years worth of digital history. It’s a potential minefield.

“We’re going to have to find a way to consolidate our digital existence, which currently is completely fragmented. There’s going to have to be some way where you can collect that information in one place, or know that’s where you can access it – who does it come down to, and who would you rather have it?”

The dead have historically not had much of a right to privacy. But bridging the gulf between our digital and physical lives could change this, at least according to Gavin Llewellyn, partner at law firm Davenport Lyons.

“Increasingly, we are seeing companies encroaching on people’s rights of privacy,” Llewellyn says. “Google has imposed a contractual term into its Gmail service to enable it to scan emails in order to produce targeted advertising. It is doubtful that many users were aware of this when Google’s T&Cs were altered.

“While the letter of the law may be on Google’s side, privacy rights are a fundamental human right and should not be able to be waived without users being made aware of what is happening to their information,” Llewellyn says. “Greater notice should arguably be given of an intention to invade people’s privacy rights, and it shouldn’t matter whether those people are live or dead.”

Duncan White, co-founder of data exchange platform Handshake, believes the way data is treated in 2013 is illogical and almost criminal.

“Data brokerages take your data, sell it, and make money from it,” White says. “That’s crazy. It’s like saying I’ll take your car, sell it, profit from it – it’s theft, for want of a better word. People are taking assets that are rightfully yours and are making money out of it.”

Data is valuable, but the businesses that control it play a numbers game to retain their own value. For example, companies like Facebook and Twitter count on the sheer scale of the data they generate to appease the markets. “To suddenly take away half of their users would slash market value,” White says. “In essence, if for whatever reason people aren’t active, their data is useless, but they’re aggregating it all and monetizing it apropos.”

White compares the amount of dead data floating around the web to the man-made islands of trash that pollute our oceans.

“There must be vast tracts of unclaimed data just floating around, taking up exabytes and exabytes, that nobody is actually doing anything with,” White says. “Data is very cheap to collect, and the whole move to big data is around volume and collecting data from everywhere… The way big data is going, so much is generated it becomes value-less, and floats off into the sea.”

If data is going to waste now, then what are some possible applications for the future?

Former CTO of British Telecom and independent analyst Peter Cochrane is optimistic about the potential for dead-people’s data to provide us with valuable insights after they have left this world. ”Some are arguing because we don’t write letters anymore, we won’t know as much about people as we did in the past. I think we’ll know even more,” Cochrane says.

“Compare Stephen Hawking and Isaac Newton. Newton wrote lots of interesting letters and people wrote interesting letters to him,” Cochrane says. “Some of those survived and they form the basis of our understanding of him and his life. But if we look at Stephen Hawking, we’re going to have a legacy of all his emails, electronic copies of all the scientific papers he wrote, his Facebook account, and any other social media he had – so in actual fact we’ll have a much wider and deeper understanding of the man and his legacy.”

Cochrane asks me to stop and count how many transmitters I have around me. There are a lot.

“For me it’s over 18,” Cochrane says, going on to list not just his mobile phone, laptop or iPad, but his car, his car keys, Wi-Fi hubs, and the controllers for every electronic device in his home.

“There’s just a huge amount of stuff now that leaves a ‘slime trail’ of digital presence,” Cochrane says. “Wherever we go, we leave a slime trail. We inadvertently log on to Wi-Fi, Bluetooth, 3G, 4G, and this leaves an indelible record of where we’ve gone. What we do is recorded and saved. And so there is a huge amount of data about us.”

All of this data we leave behind – this ‘slime trail’ – brings up many more questions: why are Peter and I talking? Will we ever meet, and if so, where? Why? Who do we both know?

“That’s very interesting commercial information,” he says. And with the emergence of technologies like Google Glass and Microsoft’s Mylifebits, the world is progressing to a point where your entire day can be summed up and searchable in minutes. ”A digital slime trail is being established. We’re all leaving a vast database of who we were, what we did, how we contributed to society, what diseases we suffered – all of those things. And that is going to be mined in the future. No doubt about it.

Cochrane believes sci-fi intrigues such as talking to the dead, using advanced combinations of artificial intelligence and data gathering, could well be possible.

He cites discussions he had a “long time ago”, speaking with leading scientists about capturing their lectures, their work, and how it could be feasible for a virtual presence of the deceased to answer questions, based on what they knew, how they think, and in line with their life experiences. “That seems to me a fairly reasonable and tenable endpoint,” Cochrane says. “All the components for this exist, this is no scientific hypothesis, this is an engineering challenge.”

“I lost both my parents in fairly tragic situations, and my wife in an even worse situation. I often ponder what I’d do if I’d got them actually embedded in a machine – would I choose to talk to them? When you lose somebody, especially a parent or your wife, you tend on occasions to talk to them. They’re still with you. They never get older. Sometimes, you will talk to them. I just wonder where that will go. I can imagine it being incredibly comforting and upsetting at the same time. The technology to do this – the price will tumble, the availability will rocket, and you will be able to do this not just for the ‘special’ people in society, but for everybody, if you so wish. People will have a choice. I’m expecting this in my children’s lifetime.”

Visions of intelligent, post-death communication may be strikingly lofty. But developments in the modern world which we now take for granted would have seemed unimaginable just fifty years ago. In the nearer term, collating data on health could provide benefits to humanity as a whole.

Technologies like IBM Watson can cope with a vastly larger number of variables than people, and potentially make better judgment calls than humans in the case of medical analysis. Companies like 23AndMeare already focusing on genetic analysis, while Google-backed Calico made headlinesby taking on the ageing process itself. Just as organ donation can help further research now, so too will charting your life and, ultimately, your deathA lot of the information about the people who’ve died early will be gathered, and an analysis will be done to figure out if there was a common strand,” Cochrane says. “Why did they die early? What was it?”

“I can just imagine, in my children’s lifetime, there being a huge industry heading in this direction,” Cochrane says.

The unprecedented rise and rise of our digital lives, combined with our increasing reliance on the connected world, pose questions society will have to answer together. As our on- and offline presences converge, it is arguable we’re living in a transitional phase. Finding ourselves at the foot of a steep learning curve, there are debates to be had about just how we want our digital shadows to be used, who they are owned by, and what purposes they can serve, whether we are around to have that input or not.

Taking Instructions and Testamentary Capacity

Taking Instructions

Will makers must always conduct an assessment of mental capacity when taking will instructions.

In 1992 I was Plaintiff’s counsel in the decision Mikita v. Lick. The action involved a 10 day trial, in which I succeeded in setting aside a will and transfer, prepared by a notary, whereby an elderly gentleman bequeathed his entire estate to his housekeeper. My client incurred legal fees and/or disbursements approximating $80,000. I then sued the notary for recovery of all of those fees and disbursements. Adrian Chaster, on behalf of your Society did an excellent job in settling the case for $40,000. Were I to bring the action today, I would not have settled for that amount.

The trial Judge made the following comments about the notary in his Reasons for Judgment:

“No notes of this meeting were made by the Notary. He says he advised the deceased of the contents and the meaning of the documents and “he appeared to me” to understand. No background was gone into as to prior wills, size of the estate and those things a lawyer would be bound to look to or which, I would suggest, an ordinary cautious and prudent person would look to when faced with the circumstances here. It is argued that he is not a lawyer and his actions should not be judged by legal standards. That may be so but we are not judging his actions here, we are looking at the deceased’s competence and his evidence, because of the lack of any in-depth enquiry, is not helpful in that area one way or the other. No attempt was made to assess his capacity. We knew the deceased was not well but he did not ‘probe minds’. No wills check list was used. The reasons given was that these things were not done in the case of a “simple will” which he maintains this was. He says that if he has any concerns regarding capacity in such cases he would always turn the person over to a lawyer but the fact remains that he had the documents all drawn up ready for signature before he ever had the deceased into his office. In the witness box he almost apologetically said that he trusted and relied on M. With respect he relied on a weak reed in this instance – she also had done only a most superficial examination. When it was suggested that, in effect, he ‘rubber-stamped’ the provided documents after a most perfunctory inquiry he said little.

I am satisfied that his interview with the deceased was as cursory as was hers and he ignored the obvious and did not question the suspicious. The deceased may have appeared to know what was going on but I am satisfied, and future events proved, that he did not. When the documents were completed the bill was prepared by M and she filled out a cheque for the deceased to sign which he did. That signature alone is enough to give one pause to consider the capacity of the signer.”

Three tings may be obvious to you so far from this introduction, namely:

That legal fees are recoverable by the executor for solicitor negligence in the preparation of a will where it is subsequently found that the testator lacked sufficient capacity ;

That the notary failed to conduct an in-depth enquiry, take notes, follow a will checklist, etc., because this was a case of a “simple will”;

That it was argued that the notary’s action should not be judged on the same basis as that of a lawyer;

I urged each and every one of you to never consider the preparation of any will to be that of a “simple will”. In my view there is no such thing as a “simple will”. Each and every will is potentially fraught with problems and potential liability.

With respect to liability for notaries, I am sure you are all aware of the decisions of Flandro v. Mitha 1993 D.L.R. (4th) 222, and Crowe v. Bollong (unreported) March 19th, 1998 BCSC.

The Flandro case held that a notary owed a Plaintiff a duty of care equal to that owed by a solicitor.

In the Crow v. Bollong case, a notary was successfully sued for professional negligence in drawing up a will which failed to provide for a discretionary trust for a handicapped daughter, that he ought to have known might lose her entitlement to G.A.I.N. by reason of this negligence. The Court specifically found that the notary had no authority to draw a will that included trust provisions.

I draw your attention to Section 18(b) of the Notaries Act which states, inter alia, as follows:

(b) draw and supervise the execution of wills

(i) by which the testator directs the testator’s estate to be distributed immediately on death,

(ii) that provide that if the beneficiaries named in the will predecease the testator, there is a gift over to alternative beneficiaries vesting immediately on the death of the testator, or

(iii) that provide for the assets of the deceased to vest in the beneficiary or beneficiaries as members of a class not later than the date when the beneficiary or beneficiaries or the youngest of the class attains majority;


I do not purport to be an expert on the taking of instructions from a testator.

However, I do attach hereto to my paper the Law Society of British Columbia Practice Checklists Manual for Will Procedures and the Testator Interview. You will see that it is substantial in detail and I urge you to follow the gist of the Checklist on each and every meeting with your clients where applicable.

The taking of instructions in order to determine whether a client has sufficient mental capacity to properly give you instructions, is a matter of considerable difficulty and extreme importance. I suspect that the potential liability and the importance of determining mental capacity on the part of many solicitors and notaries, is not clearly appreciated or understood.

In determining mental capacity, what is first and foremost to the lawyer should be the probing of the testator’s mind by asking detailed and insightful questions, such as many of those provided in the aforesaid Checklist.

The following is a review of case law where the Courts have reviewed the conduct of solicitors in preparing wills, as they may relate to the issue of mental capacity, and where the courts have approved or suggested :

(a) It is essential to probe the mind with regard to the testator’s assets, beneficiaries and background. The ability of a testator to recall his assets and his appropriate beneficiaries is a very important test of both capacity and memory;

(b) If you have any doubt at all as to the mental capacity of the testator, then it is important to obtain a medical opinion as to same. I go so far as to say that notaries may not in fact have the statutory authority to prepare a will for a testator where capacity is suspect, by reason of the powers set out in Section 18 of your Act. I submit to you that in all of those circumstances the matter should be referred to a lawyer rather than attempting to handle the matter yourself. When obtaining a medical opinion it is very important to carefully advise the doctor as to what the test for mental capacity in fact is, as many doctors do not properly understand same. If at all possible, the doctor should attend at the execution of the will and be one of the witnesses. Request the doctor to make a detail note to the chart regarding his or her observations of capacity. Try and have the doctor conduct his medical examination as to capacity at or very close to the time that the will instructions are given.

(c) Always take instructions in the absence of potential beneficiaries or executors;

(d) Question the testator as to whether or not he or she has made recent sizeable inter vivos gifts to any person;

(e) Make detailed notes of all of your more important questions and the client’s answers, including a specific comment on the capacity of the client;

(f) Be very aware of potential suspicious circumstances;

(g) Record detailed reasons why any person who would be an appropriate object of the the testator’s bounty is being omitted from the will, and if so, consider the preparation of a detailed memorandum to the will in conjunction with your notes;

(h) If at all possible, previous wills should be reviewed in an attempt to ascertain whether or not there have been substantial changes and why ;

(i) Determine as a whole whether the will is reasonable given the testator’s circumstances? If not, consider why this is so;

(j) Try and keep the wording of the will as simple as possible, particularly when your client is seriously ill, elderly, illiterate or has a language or mental disability; ( ie avoid words such as issue or per stirpes , and instead use words like child)

(k) Keep detailed notes and file contents preserved indefinitely.

In 1996 I had occasion to conduct perhaps the world’s shortest cross-examination of a lawyer who prepared a will. He has 25 years experience, and advertises weekly that he is an experienced estate lawyer. I showed the lawyer the Law Society Checklist which I previously referred to, and asked the lawyer if in fact he did one single item on that entire list. He stated that he did not and I then sat down. The effect was dramatic to the trial judge.

That lawyer failed to even meet the testator, took instructions from the sole beneficiary, and simply gave that beneficiary the will to be signed with a letter (incorrectly) stating how to have the document executed. I am sure that no one here today would ever do such a thing.


The Supreme Court of Canada stated in Central and Eastern Trust Company v. Rafuse [1986] 31 D.L.R. (4th) 481 at 523 that :

“A solicitor is required to bring reasonable care, skill and knowledge to his performance of the professional service which he has undertaken”.

The requisite standard of care has been variously referred to as that of the reasonably competent solicitor, the ordinary competent solicitor and the ordinary prudent solicitor.

In Jacobsen Ford-Mercury Sales Ltd. v. Sivertz 1980 W.W.R. 141, it was stated:

” A lawyer is obliged to act as a “prudent solicitor” and must “bring to the exercise of his profession a reasonable amount of knowledge, skill and care in connection with the business of his client”. There is no liability for mere errors in judgment because a solicitor does not undertake not to make mistakes but only not to make any negligent mistakes. The determination is said to be a question of degree, and there is a borderline between negligence and no negligence: see Linden Canadian Tort Law 1977 pp. 108 – 109.”

I again remind you that notaries are under the same standard of care as that of lawyers.


Each and every one of has undoubtedly made a somewhat snap decision upon meeting a client for the first time, that we have no reason whatsoever to question that client’s mental capacity. The client appears to be dressed appropriately, and to act appropriately, and to be able to converse extremely well, at least on a superficial level.

In my submission it is a very serious mistake to prepare wills for clients, and make the assumption that your client has sufficient mental capacity to properly instruct you. I in fact urge you to approach the situation from the exact opposite mind set , and almost assume that your clients lack mental capacity until you are satisfied, after probing their minds sufficiently, that they do in fact have sufficient mental capacity.

I strongly recommend to each and every one of you when you are taking will instructions, that you bear in mind that some day you may be asked under oath in open Court just what exactly were your observations about the deceased’s capacity at the time you took your will instructions.

Banks v. Goodfellow 1870 LR 5 QB 549, is the legal chestnut relating to the test for mental capacity. The case finds there must be 4 criteria, namely:

(i) the testator understands that he is making a will and that a will disposes of property upon his death;

(ii) the testator must know the assets he disposes of, that is, he understands the nature and extent of his property;

(iii) the testator understands and appreciates the claims to which he ought to give effect, that is, those who have an appropriate claim upon his bounty;

(iv) the testator must be free of delusions which may affect his decision.

In Leger v. Poirier 1944 3 D.L.R. 1 (SCC) Justice Rand, speaking for the Supreme Court of Canada, said that a “disposing mind and memory” is:

“capable to comprehend, of its own initiative and volition, the essential elements of will making, property, objects, just claims to consideration, revocation of existing disposition, and the like”.

The time honoured phrase is that a person must be of “sound mind, memory and understanding” in order to be able to make a will. When a will is contested on the grounds of mental incapacity, the executors must prove that the testator had a sound disposing mind. This means that they must show that the testator was not only able to understand what he was doing, but that he was able to comprehend and recollect what property he had and remember the persons that he might be expected to benefit. He must understand as well, the extent to what he is giving to each beneficiary and the nature of the claims of others to whom he is excluding.

The relevant time for having capacity to make a will is when instructions are given. If a person has capacity then, he may make a good will later, so long as he knows he is executing a will for which he has previously given instructions and is physically capable of showing his assent thereto. Parker v. Fellgate (1883) 8 P.D. 171

However the Courts will not require such a high degree of proof that it would make it almost impossible to prove testamentary capacity. In Laramee v. Ferron 1909 43 SCR 391, at page 409, it was stated:

“We must be careful not to substitute suspicion for proof. We must not by an extensive doing so render it impossible for old people to make wills of their little worldly goods. The eye may grow dim, the ear may lose its acute sense, and even the tongue may falter at names and objects it attempts to described, yet the testamentary capacity be ample.

To deprive lightly the aged thus afflicted of the right to make a will, would often be to rob them of their last protection against cruelty or wrong on the part of those surrounding them and of their only means of attracting towards them such help, comforts and tenderness as old age needs.”

It should also be stressed that even “somewhat crazy” people may also still have testamentary capacity. The Supreme Court of Canada in O’Neil v. Royal Trust and McClure 1946 SCR 622, stated that the testatrix had sufficient capacity, even though she heard voices from beyond the grave, and smelled gas in her room and thought that her food was being poisoned, on the basis that her hallucinations did not influence her motives in making the will.


There is a clear duty imposed on lawyers and notaries when taking instructions, to be satisfied that the testator has testamentary capacity, that the testator has knowledge of and approves the provisions contained in the will, and that there is no apparent coercion or undue influence being exercised on the testator. This duty is enhanced where the testator is frail, elderly or the instructions are taken from someone other than the testator.

There are innumerable decisions where the Courts have been very critical of certain lawyers in the preparation of a will and the taking of instructions.

One of the better known decisions is Re: Worrell 1971 OR 184, where the Judge stated at pages 188 and 189:

“I consider it necessary in this action to comment on the conduct of the solicitor who drew the Will that is at issue. The solicitor impressed me as an honest, conscientious person, and yet on his own evidence he acted as set out hereunder:

(a) he prepared a will for a testator for whom he had never acted and whom he never saw and knew the testator concerned was 82 years of age and confined to a home for the aged,

(b) he drew the will without any knowledge of the size of the testator’s estate or the nature of its assets.

(c) he drew the will leaving a substantial portion of the estate to the person who consulted him,

(d) he drew the will with changes from the original letter of instructions signed by the testator without any consultation with the testator,

(e) he handed the will to the beneficiary who had consulted him, to take out and have executed,

(g) he kept no docket entries or other records dealing with the matters in issue.

It seems incredible that a competent solicitor, the head of a respected law firm, would act in this manner. It seems even more incredible that he gave no indication in the witness-box which would indicate that he realized he had acted improperly.”

I also refer you to the decision of Johnson v. Pelkey 17 E.T.R. (2d) 242, as a case that might be cited as being a decision for ” what a lawyer should not do”. Mr. Johnson was the lawyer who took instructions, and applied to court to prove the will in solemn form. The following quote is one a few paragraphs made by the Judge in criticizing Mr. Johnson’s conduct, namely:

” Mr. Johnson believes Mr. Pelkey was not wearing glasses when he came to execute the will on October 23, 1992. He did not ask Mr. Pelkey about his health or who his doctor was. He did not ask about medications. He asked no questions specifically intended to determine mental capacity, memory or even orientation to time and place. He asked no questions to determine if Mr. Pelkey had testamentary capacity. He testified that he assumed Mr. Pelkey knew what his assets were. He did not ask Mr. Pelkey if any of his children had died, or if any of them were under a disability. He assumed that Mr. Pelkey’s beneficiaries continued to be the children listed in the Affidavit of Administrator sworn by Mr. Pelkey after Nellie Pelkey’s death, although that list did not include Bernard Pelkey’s name. He did not ask about the financial situation of any of the beneficiaries. He asked no questions about Mr. Pelkey’s income. He didn’t ask if Mr. Pelkey wanted any of the gifts in the will to go to the grandchildren if any of Mr. Pelkey’s children predeceased him. He referred to the various parcels of land by their legal descriptions but he didn’t ask Mr. Pelkey if he understood which parcel of land was which. He assumed that Mr. Pelkey knew. He didn’t ask Mr. Pelkey about the value of his assets. He didn’t ask him how much money was in his bank account, he assumed it was around $100,000. He does not recall explaining what an executor was and he did not discuss executor’s fees.

Lastly, in Danchuk v. Calderwood Mr. Justice Harvey criticized the solicitor who took instructions of the will, in many paragraphs, one of which is as follows:

“In this perspective, I understand the law to be that a solicitor does not discharge her duty in the particular circumstances here by simply taking down and giving expression to the words of the client with the inquiry being limited to asking the testator if he understands the words. Further, I understand it to be an error to suppose because a person says he understands a question put to him and gives a rational answer he is of sound mind and capable of making a will. Again, in this perspective, there must be consideration of all the circumstances and, particularly, his state of memory.”


In addition to testamentary capacity, the propounder of a will must establish “that the testator knew and approved of the contents thereof.” With regard to this requirement, the Supreme Court of Canada in Lidstone, supra, noted at p. 456-7:

When it has been established that a will has been duly executed by a testator having testamentary capacity, and also established that it was read by, or read over to, the testator before execution, there arises ordinarily, in the absence of suspicious circumstances, a strong presumption that he knew and approved of its contents, but there is no inflexible rule on the subject. If, however, there are circumstances which arouse the suspicions of the Court — as, for example, if the will was prepared by a person who takes a benefit under it – the party propounding the will must remove the suspicion by proving that the testator knew and approved of the contents of the document, and it is only when this has been done that the onus of proving fraud or undue influence is thrown on the opponents of the will.

(my emphasis)

Mr. Justice Lambert referred to that passage and explained the meaning of the term “suspicious circumstances” in Clark v. Nash (1989), 61 D.L.R. (4th) 409 at 425 (B.C.C.A.):

It is important to recognize that the “suspicious circumstances” referred to in that passage, and in other authorities, are not circumstances that create a general miasma of suspicion that something unsavory may have occurred, but rather circumstances which create a specific and focused suspicion that the testator may not have known and approved of the contents of the will.

The doctrine of suspicious circumstances may arise in circumstances in which the background concerning the making of the will gives rise or should give rise to some suspicion. The doctrine is intended to ensure that there is no doubt that the making of the will was the free and voluntary act of the testator. In dealing with the will, the Supreme Court of Canada in Vout v. Hay 1995 125 D.L.R. (4th) stated that when dealing with the doctrine of suspicious circumstances and the onus of proof, the party alleging undue influence must prove it, and the question becomes which is more persuasive: the evidence calling into question the validity of the will (the suspicious circumstances) or the evidence supporting it.

It is crucial that a will practitioner look for and identify factors which might appear to be suspicious and to ensure that there is ample evidence to override those circumstances as having had an effect on the testator, prior to the execution of the will. Again there should be a detailed record made of the practitioner’s observations, and the notes preserved.

A short list of the innumerable circumstances in which might be suspicious is as follows:

  • where a gift is made to a person with whom the testator had a close relationship but which was not known or recognized by the testator’s family;
  • where a gift is made to a person who is in a position to influence the testator, such as a care-giver, or the worst example, the party preparing the will;
  • where an apparently unwarranted, undeserving, or unpopular gift is made to a beneficiary who, in the minds of the those left behind, should not receive the gift;
  • where a gift is made to a beneficiary to whom the testator has had no close relationship, such as a charity;
  • where the division of assets among the children of the testator is substantially unequal, or a certain child or children are harshly treated;
  • where the will substantially deviates from previous wills;
  • where a gift is made to a person standing in a fiduciary relationship;
  • where the beneficiary accompanies the testator on each trip to your office during the process to complete the will;
  • where you receive the testator’s instructions from someone other than the testator;
  • Where there has been a recent serious illness or hospitalization;
  • where there is any question at all about testamentary capacity;
  • where there are indications of substantial medications that are potentially mind altering, being used;
  • where there is a hasty or unwise marriage or common-law relationship;
  • where there is evidence of depression;
  • where there is a language/cultural disability or illiteracy;

if you have been asked to prepare a will for someone by which you are to inherit, then you should ensure that the testator receives independent legal advice, and preferably take no part whatsoever in the preparation of the will.

In circumstances where the testator has a will and substantial changes are being made, it would be prudent to enquire of the testator as to the provisions of the previous will and the reasons for the changes.

Similarly if a child or children are being disinherited, you should consider preparing a detailed memorandum pursuant to the provisions of the Wills Variation Act, and enclosing a copy of that signed memorandum with the original will. You should try and insure the accuracy of the information, so that the testator is not subsequently viewed by the court as being vindictive, as opposed to objective.


As I previously stated, I am of the view that notaries should not attempt to undertake the preparation of wills where they have any concerns whatsoever about the testator’s capacity, and instead should refer the matter to a lawyer. Having said that, if you wish to proceed, and you have any concerns about the testator’s capacity or the circumstances are such that you believe that others may challenge capacity at the time the will is attempted to be probated, then you should refer the matter to a qualified doctor for the purposes of obtaining a medical certificate as to whether or not the client has sufficient mental capacity to prepare a will. That medical advice should be as current as possible to the actual time that the will instructions are given.

It should also be pointed out that many doctors do not actually understand what the true legal test for mental capacity is, and thus you should in your request of the doctor, set forth the 4 criteria as previously stated in Banks v. Goodfellow.

Medical evidence is not required to prove capacity, nor is it necessarily conclusive when it is given. Generally speaking, a testator is presumed to have sufficient mental capacity to execute a will, unless there are suspicious circumstances present, which then reverses the onus of proof on those who propound the will.

There have been a number of Court cases where the evidence given by eye witnesses who had an opportunity to observe the client and who knew the client, have been accepted over the expert medical testimony to the contrary.

In the recent decision of Rossander v. Rossander, Mr. Rossander attempted to argue that Mrs. Rossander lacked sufficient mental capacity to execute a will and divorce settlement agreement made between themselves. The medical evidence of Dr. Sloan, was that she was absolutely unable independently to manage her finances at the crucial time, and was absolutely unable to understand in any detail the significance of the legal document or power of attorney or any matter to do with transfer of property, and was further probably unable to form the consistent intention required for testamentary capacity, etc.

Nevertheless, the Court accepted the evidence of the handling lawyer, together with other lay witnesses, over the expert medical testimony.

I personally find the decision troubling, but it is not the only decision where lay evidence has taken precedence over expert medical testimony.


There are essentially 2 areas of liability which I wish to focus on in this part of my paper, namely:

the liability for legal fees and other consequential damages arising out of the negligence:

In the Supreme Court of Canada Goodman Estate v. Geffen 42 E.T.R. 97, the Court awarded the appellant its full reimbursement for their actual and reasonable costs, including legal fees incurred in defending the respondent’s law suit. The Court stated that it has long been held that trustees are entitled to be indemnified for all costs, including legal costs, which they have reasonably incurred. Reasonable expenses include the cost of an action, reasonably defended.

It is the writer’s experience that the cost of an estate litigation trial can be very expensive, frequently taking 2 weeks or more, and often involving many experts such as doctors. The cost for legal fees alone can be a substantial claim for damages, if there has been solicitor’s negligence in causal link to the damages. Pursuant to the aforesaid decision of Geffen, and other decisions, the executor would be able to sue the negligent lawyer or notary, for full reimbursement of actual and reasonable costs including legal fees.

the liability owed to “disappointed beneficiaries”.

In 1978, Justice Atkins, in Wittingham v. Crease and Company 3 E.T.R. 97, found the lawyer negligent in having a spouse of a beneficiary witness the will. This in turn caused that bequest to fail, and the solicitor was liable in damages for negligence to the “disappointed beneficiary”, in an amount being the difference between what the beneficiary received on an intestacy and what the beneficiary would have received after a successful application under the Wills Variation Act.

The following year, our Court of Appeal followed Wittingham (supra), and in Tracy v. Atkins 16 B.C.L.R. 223, found that despite the fact that the Defendant’s solicitors did not represent the Plaintiff, a lawyer could be liable to an opposing party if he or she placed themselves in a “sufficient relationship of proximity”, that he or she incurred a duty of care towards the Plaintiffs.

Thus, the B.C. Courts in the late 70’s began to allow recovery on the basis of the principle. The principle of that case is that if a person seeks information from a person possessing a special skill and trust, that person to exercise due care and if that person knew or ought to have known that reliance was being placed on his or her skill and judgment, he or she owes a duty of care to the first person. Further, absent express disclaimer of responsibility, the first person can recover damages for financial loss caused by the negligent misrepresentation, where spoken or written, of the second person.

Again in 1979, the British Court of Appeal in Ross v. Caunters, followed Wittingham and found liability against a lawyer to disappointed beneficiaries, where the lawyers had drafted a will, forwarded the will to the testator for execution, but failed to properly ensure that a beneficiary did not witness the will. A beneficiary in fact did witness the will and was successful in a claim against the lawyer for damages for the loss of the benefits under the will.

Probably the current high watermark of solicitor’s liability to disappointed beneficiaries is the House of Lords decision of White v. Jones (1995) 1 All E.R. 691.

In that case a testator had a law firm prepare a will where he disinherited 2 daughters. He subsequently reconciled with his daughters and wrote a letter on July 17th to his lawyers requesting that they prepare a new will with a specific gift to each of the 2 daughters. The law firm never did prepare the will prior to the testator’s death on September 14th. The 2 daughters brought an action for negligence and recovered their loss from the lawyers.

The majority of the House of Lords held that Hedley Byrne cannot properly give rise to a tortious liability. There is no duty of care other than to the client, and Hedley Byrne ought not to apply in cases of pure economic loss, and there is no “loss in not receiving a gift”. In the result, the House of Lords fashioned a new basis for a remedy based on a concept of “transferred loss”, that is since the deceased cannot take action against the solicitor for breach of the retainer, the right to do so was treated as transferred to the beneficiary.

It would appear that this White v. Jones approach gives rise to the argument that liability to the beneficiary is necessarily limited by the terms of the contract of retainer of the solicitor.

The following excerpt from the decision pretty well sums up this area of law, namely:

“The very purpose of the employment of the solicitor is to carry out the client’s wish to confer a particular testamentary benefit on the intended beneficiary. There is no other purpose. If the solicitor negligently fails to achieve that purpose, justice requires that there should be some remedy available”.

The recent British Columbia decision of Smolinski v. Mitchell, 10 B.C.L.R. (3rd) 366, also involved an action against a lawyer where there was delay in carrying out the client’s instructions to prepare a will.

The testator in fact intended to leave a bequest to the solicitor, and the solicitor therefore advised the testator he would have to get independent legal advice and complete the execution of the will elsewhere. The lawyer drafted the will, delivered it to the testator, and left it to the testator to arrange to get independent legal advice. The testator however died before the will was ever executed, and the residue was distributed on an intestacy.

The Court absolved the lawyer from any liability on the basis that the lawyer here had a duty to ensure that the testator obtained independent legal advice. The delay, and possibly the non-execution of the will occurred because of the Defendant’s advice that the testator obtain independent advice and execute the will before an independent lawyer. In the unusual circumstances, there was no duty of care owed by the Defendant to the Plaintiff to see to the expeditious execution of the will. It could not be said that the Defendant failed to take reasonable care to ensure that the testator met with and received advice from an independent lawyer.

I have heard of a California decision where liability was found against a solicitor who took four days to draft a will for a patient who was very ill and in the hospital. The patient died before the will was executed and the disappointed beneficiaries succeeded against the lawyer. I have no reason to believe that this case would also succeed in British Columbia, although it would depend on the degree of illness of the patient, as to whether four days was a reasonable period of time.

In Hickson v. Wilhelm (September 26, 1997)(Sask. Reg. No. 554), the Plaintiff was an employee of the testator, and the Defendant were lawyers retained by the testator. The testator retained the lawyers to incorporate a farming operation and some of the testator’s assets included farm land were transferred to the corporation, although the testator retained bare legal title to the land. He later drafted a will by a lawyer who was a member of the law firm that incorporated the farm. The testator left the land to the Plaintiff and after his death, the land bequest failed because the corporation owned the land despite the fact that it remained registered in the testator’s name. The land was sold and the proceeds were distributed to the residual beneficiaries of the will.

The Court found that the Defendant solicitor who had prepared the will was negligent in that he did not meet “the requirement for due diligence in this case with the result that the role and involvement of the corporation and the ownership of the farm assets was not identified in the bequest of land to the Plaintiff as expressed in the will were ineffectual and failed”.

The Court found that the facts warranted a conclusion that the testator bore a degree of responsibility for the instructions which he gave the lawyer, and attributed a 25% liability to the testator, and 75% to the lawyers. The liability aspect is under appeal.

I think it is somewhat unlikely that disappointed beneficiaries would bring a claim against a solicitor or a notary with respect to the issue of mental capacity, but it is certainly possible, and I wish you to be aware of the existence of these types of claims. I can foresee circumstances where the wills practitioner may be instructed to prepare a will, then take an inordinate period of time to have same executed, during which time the testator suffers a stroke, head injury, mental illness, etc., which renders the testator mentally incapable of executing the will. However, since the relevant time for mental capacity is the time that instructions are taken, it is probably less likely to occur than in situations where the testator dies in the interim.


I am mindful of the advice given by Stuart Cameron of P.L.I. Claims, the insurers for lawyers in the Province of British Columbia, to follow the 3 a’s, that is:

  • ask;
  • advise;
  • act.

I am sure that many of the cases and practice notes that I have set out in this paper will be somewhat alarming and even disturbing to many of you with respect to your potential for liability.

However, I stress that if you use a checklist when interviewing your client, both to limit the possibility of missing an important question and to record not only your client’s instructions, but your observations concerning important issues such as capacity and others, then you will go a long ways to limiting any potential liability against yourself. Always be aware that you need to probe your client’s mind in order to really try and get at whether or not your client has sufficient mental capacity to properly give you will instructions. For difficult will instructions situations, consider taking another colleague or even your legal assistant with you at the time you take your instructions. This is particularly important where you are taking instructions at the testator’s home or at a hospital, or nursing home.

Lastly, always confirm and record your instructions and advice.

What Is a Testamentary Document?

Testamentary documentIt is often difficult to determine if a document is testamentary or not when it purportedly takes effect upon death.

Shortly before writing this article, I settled a Wills Variation action on the eve of trial where the deceased had deliberately used an estate planning procedure so as to deliberately disinherit four of her five children from the biggest asset, namely the shares in a company that owned a commercial building. The child that was left the significant share of the deceased estate was realistically unemployable and not very capable. The deceased therefore had wanted to retain as much control as possible of her estate until her demise. Accordingly, the handling solicitor prepared a will, and a year later, just prior to her death, prepared an option to purchase the shares of the company in favor of the incapable son, that became exercisable upon her death and for up to two years thereafter. The assets that remained in her estate were also substantially depleted by the payment of the capital gains taxes due and owing on the deemed disposition of her shares. The four disinherited children argued that the option, because it could only be exercised upon her death, was therefore a testamentary document, and because it had not been duly executed in accordance with the provisions of the Wills Act, was therefore void. Essentially the entire Wills Variation action came down to whether or not the option to purchase was or was not a testamentary document. If it was not testamentary, then the shares passed outside of the estate, and could not be attacked by the claimants.

An inter vivos gift occurs when the donor intends the transfer of the interest to be immediate and irrevocable. The gift is perfected during the lifetime of the donor, and there is said to be a “present passing interest”, even when the donee’s right to actual enjoyment is postponed.

A will is the most common form of a testamentary document. The essential elements of a valid will are:

1)It is intended to have a disposing effect;

2)It is intended not to take effect until after death and to be entirely dependent on death for its operation;

3)It is intended to be revocable;

4) It is executed in accordance with the wills legislation of the relevant jurisdiction.

Many documents in fact have a” testamentary look” because the intended gift may be revocable by the donor and enjoyment of the gift has been postponed until the death of the donor. The fact that a document looks testamentary does not necessary make it so. In many situations the donor is able to enjoy the benefits of the subject matter during his or her life and is still able to avoid the formal requirements of the Wills Act. If the transaction is not testamentary, then the property will not be included as part of the estate, and will not be subject to attack by creditors and Wills Variation claimants.

For example, in Re Walmsley Estate, 2001 SKQB 105, a purported last will was found to not be a testamentary document because the testator’s “will” stated that the executor could divide up the estate as he saw fit. The Court held that the document did not manifest a true testamentary intention , and the Court did not have the power to render a document testamentary in nature when it is otherwise not so.

It is therefore of the utmost importance to the drafting solicitor, when preparing documents that are to carry out a transaction outside of the estate, to ensure that the document is not testamentary, as there is always the likelihood that some potential creditor or claimant will question the validity of the instrument by attempting to show that it is in fact a testamentary document.

Again, the fact that a document describes itself as testamentary and is executed in accordance with the Wills Act, does not necessary make it testamentary. As a general rule, the entire document will be rejected from probate if all of its dispositions are operative before death. There have been situations on the other hand, where a part of a document is found to be testamentary because it has no operation at all until death, and it may be severed and admitted to probate.

Problems typically arise where deeds and similar transfers are prepared, and the grantor retains control over the deed and does not intend that it shall have effect until his or her death. If that is the situation, then the deed is really a will, because it is dependent upon his or her death for its “vigor and effect”, and unless it is executed with the appropriate formalities, it cannot take effect as one.

The problem is illustrated by the case of Carson v. Wilson (1961) O.R. 113, (C.A.).

The deceased Wilson owned certain parcels of land and executed deeds and lodged them with his solicitor with instructions to hold them and not deliver them until after his death. It was always understood that Wilson could demand to documents back at anytime. Wilson managed the properties until his death. The court held that the transactions were ineffective to transfer title as there was no delivery of the documents, and in any event, they were not intended to take effect until his death. The court found that the transfers were testamentary in nature, and since they did not comply with the formalities of the wills act, they failed. It was also found by the court that they could not take effect as inter vivos trusts, because Wilson retained complete control over the properties while he lived, and he did not intend to create an inter vivos trust.

Generally speaking, the law appears to be reasonably well settled that if that the time of its execution, the document is legally effective to pass some immediate interest in the property, no matter how slight, the transaction will not be classified as testamentary. Stated another way, if the document is intended to have, and does have the effect of transferring the property, or of setting up the trust”in praesenti” ( the present), though to be performed after the settlor’s death, it is not testamentary.

Accordingly, in the case that I referred to in the first paragraph of this article, I found a Supreme Court of Canada case to the effect that an option to purchase created an interest as soon as it was executed that could be enforced by the courts. I therefore argued that even though the option could not be exercised until the death of the testator, it’s still created an immediate interest in the property, in favor of the donee, that was not dependent upon the death of the testator for its “vigor and effect”.


A) Wonnacott v Loewen (1990) 37 E. T.R. 244, B.C.C.A.

This is the leading decision in British Columbia on what constitutes a testamentary document.

In Wonnacott, the defendant moved in with the deceased in March 1988 and the two planned to marry when the defendant’s divorce was granted. The deceased wished to give the defendant some financial security, regardless of the outcome of the litigation with her husband, so they consulted a solicitor. Certain documents were prepared and executed, including a transfer of estate in fee simple of the deceased’s residence to the defendant, to be used in the event of the deceased’s death. The terms governing the use of those documents were contained in an “escrow agreement” which gave the defendant an immediate right to live in the residence. It also provided that the deceased could take the transfer back in specified circumstances, in which case he was required to pay the defendant $60,000. The defendant’s divorce was delayed and she was not free to marry before the deceased died in August 1988. She obtained the transfer and had it registered, thereby obtaining title to the residence. The deceased’s executor brought an action to set aside the conveyance on the ground that the agreements were testamentary and invalid because of failure to comply with the Wills Act. The action was dismissed and the executor appealed.

The Court dismissed the appeal and held that whatever the form of a duly executed instrument, if the person making it intends that it not take effect until after his death, and it is dependent on his death for its “vigour and effect”, it is testamentary. However, if the document creates a gift in praesenti, albeit to be performed after the donor’s death, it is not dependent on his death for its “vigour and effect”. The documents here, examined in isolation, appeared to be testamentary, but it was clear that they had life and vigour from the beginning. The documents conferred an interest on the defendant that had real value no matter what happened. They gave her an immediate interest in the property and they were not testamentary.

The court examined the decision of Cock v. Cooke (1866), L.R. 1 P.p. & D. 241 at 243, that held that:

“It is undoubted law that whatever may be the form of a duly executed instrument, if the person executing it intends that it shall not take effect until after his death, and it is dependent upon his death for its vigour and effect, it is testamentary.”

The court then adopted the reasoning of an Alberta Court of Appeal case, Corlet v. Isle of Man Bank Ltd., [1937] 2 W.W.R. 209, 4 I.L.R. 246, [1937] 3 D.L.R. 163 (Alta. C.A.), which states at p.p. 211:

“The fallacy in the argument based upon the “oft quoted words” of Sir J.P.p. Wilde in Cock v. Cooke (1866) L.R. 1 P.p. 241, 36 L.J.P.p. 5, lies in a misunderstanding of what the words “vigour and effect” are applicable to. They are clearly applicable not to the result to be obtained by, or to the performance of, the terms of the instrument, but to the instrument itself. The question is whether the instrument has “vigour and effect”, and does effect, or is “consummate on execution” to effect, a gift or to create a trust. If the document is “consummate” to create a trust in praesenti, though to be performed after the death of donor, it is not dependent upon his death for its vigour and effect.”

The court went on to also adopt another Alberta Court of Appeal case, Anderson (Costello) v. Patton, [1948] 1 W.W.R. 461, [1948] 2 D.L.R. 202 (Alta. C.A.), which stated at p.p. 463:

“The question of whether a document evidencing a voluntary settlement, either by way of gift, in the sense of transferring the property in question, or by way of the creation of a trust, is or is not testamentary, depends upon the intention of the settlor.

If the document is not intended to have any operation until the settlor’s death it is testamentary.

If the document is intended to have and does have the effect of transferring the property or of setting up a trust thereof in praesenti, though to be performed after the settlor’s death, it is not testamentary.

The reservation of a power of revocation is not inconsistent with the creation of a valid trust and does not have the effect of making the document creating it testamentary.”

An important aspect of the Wonnacott decision is that the court did not examine the subject document in isolation, but instead looked at the larger picture as to what was intended by the donor . The court accepted that in determining whether a transaction amounts to a testamentary disposition, the court is not limited to an examination of the document of transfer itself, and may look at extrinsic evidence relating to the creation of the document. The Court of Appeal adopted the rule set out in Riddell v. Johnston, 66 O.L.R. 554, [1931] 2 D.L.R. 479 (H.C.) that [at p. 482, D.L.R.]:

“In determining what was the real transaction and its nature and effect, the other documents which were made concurrently with the conveyance and which set forth important parts of the bargain which were not embodied in the conveyance itself, and which expressed the intention of the parties should not and cannot be disregarded. ”

B) National Trust Co. v Robertshaw (1986) 5 W.W.R. 695

This case involved the issue as to whether or not a previous designation of a beneficiary in an R.R.S.P. was a testamentary disposition which had been revoked by a subsequent will.

In 1967 the deceased, Robertshaw., designated his wife the beneficiary of a R.R.S.P. (R.R.S.P. No. 1). In 1972 Robertshaw and his wife were divorced. In July 1985 Robertshaw transferred funds from three other R.R.S.P.s into R.R.S.P. No. 1. In August 1985 Robertshaw with her executed a will revoking all former testamentary dispositions and leaving his estate to his three children. The will made no mention of any R.R.S.P. The executors of the will took the position that the 1967 designation of a beneficiary in R.R.S.P. No. 1 was a testamentary disposition which had been revoked by the will. They applied pursuant to R. 18A for a declaration that they were beneficially entitled to receive the proceeds of the R.R.S.P.

Judge Boyd held that while any instrument which is entirely dependent for its vigor and effect upon death must be held to be testamentary,the full “vigor and effect” of the designation of the beneficiary contained in the R.R.S.P. was not entirely dependent on the death of the annuitant as the annuitant may well have affected an inter vires transfer of a contingent interest.

Justice Boyd quoted the following passage from Professor Feeney in Canadian Law of Wills:

“As Professor T. G. Feeney has pointed out in the Canadian Law of Wills, 2nd ed. (1982), vol. 1 (Probate), there is no clear dividing line between a revocable trust inter vivos and a testamentary disposition. Rather, a Canadian court will likely base its decision on the degree of control retained by the settlor. As the learned author states at pp. 11-12:

A court will scrutinize each transaction very carefully, asking itself such questions as the following: Does the settlor retain a life interest or the right to the income from the property until his death? Does he have the right to revoke the trust or withdraw from the scheme? (And what is the effect of revocation? Does he get the property back for himself?) Does he have the right to change the beneficiaries? Does he control the investments that are to be made? Does he have the right to encroach on the capital of the fund?

Clearly the retention of a life interest means nothing by itself, but taken together with such indicia of control over the corpus or capital as the right to revoke, particularly if revocation means getting back complete control of the property, the right to change the beneficiaries, the right to control the investments, or some combination of these and especially the right to encroach on the corpus or capital, is very apt to result in a court declaring the transaction testamentary and void for want of due execution. Control is a question of degree, and exactly when a Canadian court will consider that the settlor retains too much control is difficult to say.”

C) Albert v Albert (1982) 13 E.T.R. 149

In this case the court examined an estate that consisted of two term deposits that were held jointly between the deceased and his two daughters which he alone managed and he alone received the interest. An application was brought regarding entitlement two term deposits after his death.

The Court held that although the deceased had exercised sole management of the term deposits before his death, in the absence of evidence to the contrary they constituted a present gift of a joint interest, not a testamentary gift or a donatio mortis causa. The fact that one of the deposits did not contain the words “or survivor” had no effect upon this daughter’s survivorship rights.

The Court went on to state the law re joint interests as follows:

” In my opinion, a correct statement of the law is as follows: Unless the evidence supports a contrary conclusion, in the typical case of a joint account being established by one of the parties, or of money being deposited by one party as an investment with a financial institution in the names of that party and another party jointly with a right of survivorship, there is a present gift of a joint interest, not a testamentary gift or a donatio mortis causa.

As Ferguson J.A. said in Re Reid (1921), 59 O.L.R. 595, 64 D.L.R. 598 at 608 (C.A.):

If there was a present gift of a joint interest, it seems clear that it was neither a testamentary gift nor a donatio mortis causa, because it is an essential of both that no title vests until the death of the donor: White & Tudor’s L.C. 8th ed., p. 425. The title in right of survivorship was an incident of the joint ownership, an accretion to a title already vested — the donee’s absolute title to the fund arose by operation of law, and not, I think, by reason of two separate gifts, i.e., first, a gift of the joint interest, and, second, a gift of a complete and absolute ownership effective only and on and after the death of the donor.”

D) Hutton v Lapka Estate (1991) 44 E.T.R. 231

The decision of our Court of Appeal in Hutton v Lapka illustrates just how far our courts will go to seemingly try and find that a document is not testamentary in nature if it has even a small immediate effect, and is thus not totally dependant on death for its “vigour and effect”.

The case dealt in part with an action brought by the administrator of the deceased estate on a $295,000 interest-free promissory note signed by a third party in favor of the testator before his death. The note was given as security for a loan for a land purchase and was to be forgiven in the event that the testator died. The trial Judge held that the forgiveness provision of the promissory note was ineffective because it was a testamentary disposition which failed because it was not properly executed pursuant to the Wills Act.

The Court of Appeal allowed the appeal on the basis that the promissory note was not a testamentary disposition, but instead was a contract which had immediate effect . The trial judge was found to have erred in considering the forgiveness clause in isolation from the provisions of the note as a whole, and in holding that separate consideration was needed for the forgiveness clause. The Court followed its previous decision of Wonnacott.

E) Hecht v Hecht ( 1993) 7 W.W.R. 295

Here our Court of Appeal dealt with a Wills Variation action that dealt with inter alia an estate planning scheme devised by Mr. Hecht immediately prior to his death whereby he gifted $9 million through the use of promissory notes. No demand could be made on the promissory notes until 60 days after the testator’s death.

The trial judge found that the promissory notes were inter vivos gifts, and the Court of Appeal did not disturb that finding . The trusts were properly constituted and had “vigor and effect” from the time they were settled and funded, which was before the testator’s death. The fact that they were funded by promissory notes that were not payable until 60 days after the death of the deceased did not alter this.

F) Corlet v Isle of Man Bank Ltd. (1937) 3 D.L.R. 163 ( Alberta Court of Appeal)

The Alberta Court of Appeal upheld a lawyer’s scheme to avoid succession duties as a valid injury vivos transfer, even though the trust was totally revocable by the settlor. The scheme involved the transfer of three life insurance policies are on the life of the settlor to a bank as trustee for the named beneficiaries. In lieu of a will, a the trust document provided the disposition of the proceeds of the policies among those named beneficiaries on the settlor’ s death.

The Court held that the beneficiaries obtained in immediate interest, namely the future interest or right to obtain the proceeds of the policies on the settlor’s death, was vested in immediately on the execution of the trust. Because the settlor had a right to revoke the trust during his or her lifetime, the Court held that the gift had vested. Death was not the event that gave rise to the beneficiaries’ interest in or right to the property, it was the execution of the trust. For a transaction to be testamentary, the death must be more than incidental to the enjoyment of the property : it must be the event that gives rise to the right to so that it can be said that there was no right of any extent vested in the beneficiaries before death.

Professor. Feeney in his book Canadian Law of Wills states

“It should be observed that in the Corlet case, the property involved life insurance policies, rather than an existing fund of money, and that my revocation, the settlor could not get the return of the property for himself, which would have been the case of the property were an existing fund . This is an important distinction and, among other matters, casts some doubt on the non testamentary validity of a revocable trust of an existing fund payable only on the settlor’s death and entirely under his or her control during his or her lifetime.

By analogy, and in the absence of applicable legislation, non testamentary designations of beneficiaries under various insurance and retirement benefits scheme may depend, in part, on whether the person making the designation is entitled to receive or to recover any personal benefit if he or she revokes the designation during his or her lifetime.”


A) Carson v Wilson (1961) O.R. 113 (C.A.)

The deceased Wilson owned certain parcels of land and executed deeds and lodged them with his solicitor with instructions to hold them and not deliver them until after his death. It was always understood that Wilson could demand to documents back at anytime. Wilson managed the properties until his death. The court held that the transactions were ineffective to transfer title as there was no delivery of the documents, and in any event, they were not intended to take effect until his death. The court found that the transfers were testamentary in nature, and since they did not comply with the formalities of the wills act, they failed. It was also found by the court that the could not take effect as inter vivos trusts, because Wilson retained complete control over the properties while he lived, and he did not intend to create an inter vivos trust.

B) Re Bottcher Estate ( 1990) 45 E.T.R. 19

In 1980 the testatrix purchased an R.R.S.P. from a trust company, designating her son as beneficiary. The application form was accepted by the trust company over the signature of its agent, although the testatrix’s signature did not appear. The R.R.S.P. was transferred to another trust company in 1984 and the transfer documents recorded that the son had contributed to it. In 1987 the testatrix made her will, which contained a general revocation clause, revoking all former wills and testamentary dispositions.

The administrator applied to the court under s. 88 of the Trustee Act for inter alia directions with respect to the entitlement to the R.R.S.P.,

The court held that the designation was testamentary in nature, but was not affected by the general revocation clause in the will. While s. 46(3) of the Law and Equity Act provides that a designation of a beneficiary may be revoked, it does not indicate a manner of revocation. The legislature has specifically permitted beneficiaries to be designated without complying with the formalities of the Wills Act, not only as regards R.R.S.P.s, but also insurance policies and employee benefit plans. Specific provisions are made for revocation in the case of insurance policies and employee benefit plans. To conclude that only designations under an R.R.S.P. would be caught up by a general revocation clause in a will would be incongruous and defeat the apparent legislative intent. Accordingly, something more than a general revocation clause in a will is required to revoke a designation validly made other than by will. Moreover, it has been held that a general revocation clause in a will does not in every instance revoke previous dispositions made by will or outside a will, at least if the court is satisfied that there was no intention to revoke a particular gift or legacy.

C) Reference Re Pfrimmer estate (1936) 44 Man.R. 96

Pursuant to a plan to avoid probate costs and succession duties with respect to his estate, the deceased executed transfers, duly registered, of his properties to himself, his wife, his son, and his son-in-law, as joint tenants. At the same time an agreement, entitled “Declaration of Trust” , was executed by all four.

The Court held that the conveyances and the writings were intended by the deceased to take the place of a testamentary disposition under The Manitoba Wills Act, in order to avoid probate expense and succession duties, and not to create an irrevocable trust by a binding transfer of the properties. The court cited to following passage:

” The law is clear that, to give validity to a declaration of trust of property, it is necessary that the donor or grantor should have absolutely parted with his interest in the property, and have effectually put such interest beyond his own reach. See Warriner v. Rogers (1873) L.R. 16 Eq. 340, 42 L.J. Ch. 581; Richards v. Delbridge (1874) L.R. 18 Eq. 11, 43 L.J. Ch. 459; In re Shield; Pethybridge v. Burrow (1885) 53 L.T. 5. Whatever may be the form of an instrument, if the person executing it intends that it shall not take effect until after his death, and it is dependent upon his death for its vigour and effect, it is not a trust: In re Cassidy (1832) 4 Hagg. Ecc. 360, 162 E.R. 1477; Cock v. Cooke (1866) L.R. 1 P. 241, 36 L.J.P. 5; Sproule v. Murray (1919) 45 O.L.R. 326. Thus, in Malin v. Keighley (1794) 2 Ves. Jun. 333, 30 E.R. 659, the Master of the Rolls said:

I will lay down the rule as broad as this; whenever any person gives property, and points out the object, the property, and the way it shall go, that does create a trust, unless he shows clearly, that his desire expressed is to be controlled by the party; and that he shall have an option to defeat it.

Hence it is the rule that an instrument even though in the form of a deed which is not to become operative until the maker’s death is testamentary in its character, and its operation depends upon its execution complying with The Manitoba Wills Act: Habergham v. Vincent (1793) 2 Ves Jr. 204, 30 E.R. 595; Shinbane v. Minuk, 36 Man. R. 530, [1927] 2 W.W.R. 121; Hill v. Hill (1905) 8 O.L.R. 710; Towers v. Hogan (1889) 23 L.R. Ir. 53.”

D) MacInnes v MacInnes (1935) S.C.R. 200

This Supreme Court of Canada case involved an insured who was a member of a fund established by his employers in the nature of insurance or provision for the future of such employees who joined. If a participating employee died, an amount was payable to his beneficiary as designated by him, and he might change the beneficiary or revoke the designation. In an instrument called the “Employee’s Acceptance”, the insured directed the trustees of the fund upon his withdrawal therefrom to pay to him the amount to which he was entitled, upon his death to pay such amount to his wife, or otherwise as he might have last designated by writing lodged with the trustees, or by will. The document was witnessed by one witness only, and the Court held that the document was testamentary in nature and was thus ineffective to allow the named beneficiary to take. The insured’s share in the fund became part of his estate as the right of the beneficiary was dependant upon the death of the participating employee for its “vigour and effect”.


The issue as to whether or not a document is testamentary in nature is an interesting yet somewhat confusing area of the law. The general principle of law is that if at the time of its execution, the document is legally effective to pass some immediate interest in the property, no matter how slight, then the transaction will not be classified as testamentary. In many of the cases the courts have taken a very liberal approach to find that an immediate interest in the property has been created that is not dependent on death for its “vigor and effect”. Nevertheless, estate solicitors should be well aware of the possible pitfalls in the drafting of documents that are not intended to be testamentary in nature, but by reason of estate planning procedures, could very well be deemed to be such by a subsequent Court, if proper care is not applied.

The Use of Discretionary Trusts in Estate Planning


I always fell asleep during my law school trusts class. I could never have imagined then what an important role trusts would come to play in my day-to-day career as a Wills and Estates lawyer. I suspect that there are many other lawyers, notaries and estate planners who have sometimes been mystified about this area of law.

Over the years the use of trusts has grown dramatically to the point that they are now a major cornerstone of estate planning and commercial law. The purpose of this article is to attempt to explain some basic trust principles, with an emphasis on the use of discretionary trusts in estate planning.


Trusts have been with us for hundreds of years and they are playing an increasingly greater role in estate planning. Trusts are most commonly used to distribute property to family members and others under either a will or an inter vivos agreement. The trust developed through the interaction of England’s two parallel legal systems, being the common law and equity. Its origin lies in the concept of the “use”, which was simply a transfer of property by A to B, who was bound by conscience to hold the property for the use of C. While the common law did not recognize C’s rights under such a transfer, the courts of equity would intervene to enforce the moral obligations associated with the use. Thus, the trust was developed by the courts of equity to overcome the inflexibility and harshness of the common law.

Essentially, a trust is an equitable obligation binding one person (the trustee) to deal with property over which he or she has control (the trust property) for the benefit of one or more other persons (the beneficiary or beneficiaries). The trust arises when the owner of the trust property (the settlor, in the case of an inter vivos trust, or the testator, in the case of a trust created by a will) transfers the property to the trustee on specified terms (the trusts), which the trustee accepts. The trustee may also be a beneficiary and any one of the beneficiaries may enforce the obligation. In law, a trust is not a separate legal entity (as a corporation is), except for specific purposes such as income tax. Rather, it is a relationship where one party holds and administers property for the benefit of others.


The most important characteristic of a trust is that it is a fiduciary relationship (i.e. a relationship based on confidence or trust). The fiduciary relationship exists between the trustee, who holds title to and administers the trust property, and the beneficiaries, for whose benefit the trust property is held. As a fiduciary, the trustee is subject to onerous obligations, including the obligation to act only in the best interests of the beneficiaries.

Another distinguishing characteristic of a trust is the dual nature of the ownership of the trust property as between the trustee and the beneficiaries. That is, while the trustee has the legal ownership of the property (i.e. the title and legal control), the beneficiaries are entitled to the beneficial ownership of the property (i.e. the rights to use and enjoyment).


Three criteria–commonly called “the three certainties”– must be met in order to establish a valid trust. These are:

1. Certainty of intention: It must be clear that the settlor intended that the property transferred to the trustee be held in trust, as a binding obligation. The language used by the alleged settlor must be imperative and not merely an expression of wishes.

2. Certainty of subject-matter: This “certainty” has two aspects. First, it must be possible to identify clearly the property which is to be subject to the trust. Secondly, it must also be possible to define clearly the interests in the trust property to which the beneficiaries are entitled.

3. Certainty of objects: The objects of the trust–that is, the beneficiaries or the purposes for which the trust property is held–must be clearly identified. The word “objects” is a neutral word since a trust may be created either to benefit individuals or to further a particular purpose (e.g. to support cancer research). In each case, however, the objects of the trust must be defined clearly enough that the trust can be carried out.

All three certainties must be present or the trust will fail.


Estate planning is the process whereby an individual identifies and implements steps to achieve the following:

1. the individual’s personal and family objectives for the control and enjoyment of his or her property during his or her lifetime; and

2. the orderly succession to the individual’s property following his or her death.

Estate planning steps may be implemented to take effect either during the individual’s lifetime or following his or her death. In either case, a primary concern will be to achieve the individual’s objectives with as much certainty as possible. Put another way, the goal will be to ensure that the estate plan will be as free as possible from the interference of others, including the courts. While each family and individual is different, in order to achieve estate planning certainty, the estate plan will often involve the use of trusts.

One reason why trusts are used so frequently in estate planning is that they enable an owner of property to give the benefits of the property to others, without having to relinquish ownership or control of the property.

Another reason for the increased use of trusts in estate planning is that there are generally few compliance or reporting requirements, which allows a significant degree of estate planning privacy.


In appropriate circumstances, the discretionary trust may be a particularly effective estate-planning tool. In his text, The Law of Trusts in Canada, Professor Donovan Waters defines a discretionary trust as follows:

A discretionary trust arises when property is vested in trustees and a class of beneficiaries or named persons appear as the trust objects, but the trustees have complete discretion as to the payment of the income, or the capital, or both. The trust may obligate them to distribute all the trust property among the class, but give them a discretion as to whom they make payments within the class, and as to how much they pay to each.

The essence of a discretionary trust is that the trustee cannot be compelled to pay anything to a beneficiary–that any payment of either income or capital, is completely within the discretion of the trustee. Thus, the beneficiary will have no determinable or vested interest in the assets of the trust.

A discretionary trust may be established during the lifetime of the settlor, or alternatively, through a testamentary disposition made under a will.


The flexibility of the discretionary trust as an estate-planning tool is illustrated in the following estate planning situations.

1. Supplementing Government Disability Benefits

A common use of discretionary trusts in estate planning is to provide additional benefits to a disabled person who is receiving government benefits (e.g. a guaranteed annual income) without disentitling the person to the government benefits. Careful planning is often required to avoid the reduction or cancellation of such benefits. In British Columbia, for example, if a disabled person receives an outright inheritance, the amount inherited is deducted dollar-for-dollar from the amount of the government benefits.

Since a discretionary trust gives the trustee an absolute discretion as to whether or not to pay any income or capital to the beneficiary, it can be successfully argued that the beneficiary does not have an equitable interest in the trust. Accordingly, there are certain payments that can be made for a disabled person that will not disentitle him or her to government benefits. Such payments may include medical costs, certain caregiver costs, home repairs and renovations, educational costs and the like. It may also be possible for the trust to purchase capital assets such as a house or vehicle for the use of the beneficiary, without the beneficiary losing entitlement to benefits.

2. Avoiding Wills Variation Challenges

For many British Columbia residents, estate planning must involve a careful consideration of the potential impact of the Wills Variation Act. However, since the Act contains no anti-avoidance provisions, an individual is free to arrange his or her affairs so as to avoid its provisions.

For example, an individual may concerned about a substance-addicted or spendthrift child or spouse challenging his or her will. The individual might use a discretionary trust to provide adequately for the addicted or spendthrift beneficiary, so that any challenge brought by that beneficiary under the Wills Variation Act might fail. The trustee, in his or her discretion, could provide for the beneficiary so that he or she is adequately maintained, but not able to have access to the capital and spend it unwisely.

Furthermore, the Wills Variation Act applies only to those assets that form part of a testator’s estate. If an inter vivos trust is established by a settlor prior to his or her death, and assets are transferred by the settlor to the trustee before the settlor’s death, those assets will not form part of the settlor’s estate. Since the assets are not part of the estate, those assets will not be subject to claims under the Wills Variation Act.

3. Protecting Assets

Almost every individual who undertakes to plan his or her estate will seek a plan that protects his or her assets from the claims of general creditors. In appropriate situations, a discretionary trust may be used to achieve that objective.

If an individual establishes a trust primarily for the purpose of protecting his or her assets from the claims of his or her creditors, and if the individual voluntarily transfers of assets to the trust without consideration, then the trust may be voidable under the Fraudulent Conveyances Act.

On the other hand, if the primary reason for creating the trust is estate planning, then achieving protection against the claims of creditors is simply an ancillary benefit flowing from the creation of the trust. Since the primary purpose for its creation is not to avoid creditors, then the trust should be valid and enforceable. The principal goal is to remove assets from the individual’s estate, before creditor problems arise, so that the assets cannot be attacked by creditors that the individual may subsquently acquire. If placed in a discretionary trust, the assets may be used for the benefit of the individual’s family but may also be protected from the individual’s creditors.

4. Avoiding Claims of Spouses Under the Family Relations Act

With careful drafting, a discretionary trust can be a valuable estate planning tool to enable an individual to enjoy the beneficial use of and interest in property while at the same time protecting the property from claims of his or her spouse under the Family Relations Act.

Consider, for example, an individual who is embarking on a second marriage and wishes to shelter certain property from potential claims of his or her intended spouse under the Family Relations Act. The individual could transfer the property to an irrevocable inter vivos trust under which the individual and his or her children from a previous marriage would constitute the class of beneficiaries. The trust could provide for a discretionary distribution of income and capital during the individual’s lifetime and for an equal distribution of the remaining trust property to the children on the individual’s death. The existence of the trust should effectively prevent the trust property from any subsequent claim by the new spouse under the Family Relations Act.


The discretionary trust is a powerful and flexible legal tool that can be used for estate planning in many different situations and .for many different purposes. Discretionary trusts are increasingly being used to address unique needs and to achieve specific goals that require a flexible vehicle to suit personal estate planning objectives.

Dealing with Lost Wills

Dealing with Lost Wills - Disinherited

An update to this article is that since the introduction of WESA on April 1, 2014, I anticipate that the courts will be more willing to allow copies of wills as proof of the testator’s intention to more easily admissible into probate.

Many estate practitioners will face the situation where the original will cannot be located following the death of the testator.  There are many variations on the fact patterns surrounding such lost wills and any number of reasons the original will cannot be located.

At common law, where a validly executed will is shown to have last been in the custody of the testator, and that will has not been located despite every effort, then, in the absence of evidence to the contrary, a presumption of revocation by the testator arises.  In other words, the law presumes the testator has destroyed the will with the intention of revoking it. This presumption also applies to the copies i.e. any executed copies are deemed to have been revoked as well.

In this paper we will examine this presumption of law and review some of the cases where evidence to the contrary has been offered to rebut the presumption. Most of the cases focus on whether or not the presumption has been rebutted on the facts of the particular case.

The Presumption of Revocation – Leading Cases

1. Sugden V. Lord St. Leonards (1876) 1 P.D. 154 (C.A.).

In this leading case, Lord St. Leonard’s will could not be found following his death.  His daughter, however, had read the will so many times that she was able to reproduce almost all of its provisions verbatim.  In this case, the court was satisfied with the honesty of the witness and her ability to recall.   Further, they were convinced the daughter had accurately related the testator’s intentions.  The court thus admitted into probate the daughter’s memorandum of the contents of her father’s will.

In terms of the legal presumption the court further held it would consider if there other explanations for inability to locate the will, that is explanations other than the intentional destruction by the testator.

The court further held that a testator’s declarations as to the contents of the will were admissible to prove those contents.  The court held the declarations were admissible whether they be made before or after the will was signed and whether the declarations be oral or written.

As to the strength of the presumption of revocation, the court said this would depend on the character of the custody the testator had over his will.

In this case, the court found Lord St. Leonard was a person who regarded his will as of the utmost importance.  They found that since there was no evidence that he deposited the will with others for safekeeping, he likely would have kept it in his possession. The court concluded that it was “obvious that the will may have been inadvertently burned when the testator’s personal effects were destroyed after his death”.

The court opined “it seems utterly impossible that, under the circumstances, such a man as Lord St. Leonard’s would voluntarily destroyed his will, whether for the purpose of revoking it or making another, or for any other purpose  that could be considered”.

  1. Lefebvre v. Major(1930) S.C.R. 253

The Supreme Court of Canada followed Sugden v. St. Leonard sin admitting into probate a copy of a will.  In this case, the deceased’s banker had sent him his will, however, upon his death, it could not be located. A few weeks before his death, the deceased had told a close friend “his papers were fixed up so that everything went to his sister after his death.”

As in the Sugden case, the court found that the deceased regarded his will of the utmost importance.  The court held that the testator was simple man who was affectionate to his sister and that he would not have intentionally destroyed his will.  Again, as in Sugden, the court speculated the will had been “inadvertently burned” with the rest of his personal effects.

3. A different approach was taken in another leading Canadian case Sigurdson v. Sigurdson (1935) 4 D.L.R. 529.

Sigurdson had taken his original will home from his lawyer’s office. All of his family read the will and it was put in a small locked metal box which Sigurdson kept.   He also kept an unlocked wooden box in which he had other personal papers.  From time to time, Sigurdson would move papers from one box to the other. Just prior to his death he told a son by his first marriage that he did not have a will because everything would divided up “according to law”.

In the subsequent litigation, the court found Sigurdson to be a person who knew exactly what papers he had in his metal box.  The trial judge concluded that he revoked his will so as to allow his wife and his children from both marriages to share by operation of law.  The Supreme Court of Canada upheld the trial decision which applied the presumption of revocation and refused to admit into probate a copy of the will.

In the Supreme Court decision, Davis J. stated that “it needs to be clear and convincing evidence to establish what is alleged to be a lost will. The person propounding such a will has a burden of proof that persists throughout the whole trial to satisfy the court at the conclusion that he will is in fact lost and that it was not destroyed by the testator with the intention of putting it to an end.”

For other decisions where the court has found the presumption was not rebutted see:  Re Wagenhoffer 22 E.T.R. 60 ( Sask. C.A.), Re Wellwood (1982) 19 Alta.L.R. (2d) 268,Kennedy v. Peikoff (1966) 56 W.W.R. 381 ,Re Singh (1912) 1 W.W.R. 472, and Re Perry (1925),56 O.L.R.278)

Review of Cases where the Courts find the Presumption to be Rebutted

A review of the “lost will” cases could lead one to conclude that the courts are very open to finding the presumption has been rebutted.  In spite of the legal presumption, the courts seem to be very reluctant to find that a testator has deliberately revoked a will by destroying it.

There are many cases where, based on evidence which is relatively weak, the courts permit a copy of a will or other sufficient evidence of the will to be admitted into probate.

1.  A leading British Columbia case is Unwin v. Unwin (1914) 6 W.W.R. 1186.

Mr. Unwin had prepared a will leaving everything to his wife.  He placed the will in an envelope and gave it to his wife to put in a drawer with his other papers.  After his death the will could not be located.

Mrs. Unwin testified that she and the deceased had a harmonious marriage and that the deceased never expressed any intention to revoke the will. The court found that Mr. Unwin had no motive to make another will. The Court believed the testimony of the wife and admitted a copy of the will into probate.

The court held that it was entitled to consider the relationship between the deceased and his wife, also his words and actions subsequent to the execution of the will, and any circumstances which may tend to support or rebut the presumption of revocation.

In rebutting the presumption the court relied on Sugden v. St. Leonard’s where Chief Justice Cockburn stated “The presumption will be more or less strong according to the character of the custody which the testator kept over the will”.

2.Both Unwin and Unwin  and Sugden v. St. Leonard’s were followed in Brown v. Woolley  (1959) 29 W.W.R. 425.  In this case a B.C court admitted into probate a carbon copy of the executed after the original was lost. The court based its finding on the uncorroborated evidence of an interested party who the court, nevertheless, found to be a reliable witness.

In all three cases the court found the presumption of revocation to be rebutted based on evidence by “by trustworthy witnesses” as to the deceased’s declarations made shortly before death as to the dispositions made in his will.

3.  Holst Estate v. Holst39 E.T.R. (2d) 218.  This is a recent B.C. case that typifies the kind evidence required to rebut the presumption of revocation.

In 1988 the deceased and his son were the owners, as tenants in common, of a parcel of land. The father had given the son’s share to him as a gift.  Six years later the father wrote a will dividing his estate equally amongst his children. He later realized that, in effect, he had already given this one son an inheritance equal to the shares of the estate left to his other children.  The father thus executed a codicil to revoke this one son as a beneficiary under his will. After his death this codicil could not be found.

The court found that the presumption had been rebutted because:

a)     eight months before his death the deceased had told his lawyer that he had executed such a codicil;

b)     evidence showed that the codicil could have been lost;

c)      it was not the deceased’s character to have intentionally destroyed his codicil;

d)     evidence did not support the contention that the codicil was intentionally destroyed by the deceased;

e)     the deceased had numerous documents throughout the house that were not organized;


1. Dementia

A testator must have sufficient mental capacity to be able to revoke a will. Doubtless many seniors “squirrel away” their wills, and then forget where they have put them.  Thus a will lost by a testator who ultimately becomes incapable, creates a legal dilemma.  Often it  is not clear when the will was lost in relation to the deceased’s loss of legal capacity.  Did the person intend to revoke the will?  Did that person have legal capacity at that time?

In re Broome (1961) 35 W.W.R. 590, the Manitoba Court of Appeal held that the burden of showing that the will was destroyed before the onset of insanity lies on the party asserting revocation.

This case was followed in the British Columbia of Eaton v. Heyman (1946) 63 B.C. R. 62

2. Suspicious Circumstances

The presumption of revocation may be rebutted if it can be shown that a person who stands to benefit from the loss of the will has fraudulently destroyed it.

In Re Weeks,(1972) 3 O.R. 422, the court refused to make an inference of fraudulent destruction in spite of what the judge characterized as “very suspicious circumstances”. Instead the judge applied the presumption of revocation and declared an intestacy.

In this case, the evidence showed that the deceased’s wife had been badgering him to amend his will and leave a larger share to her. She alone had access to the locked drawer where the will was kept.  She stood to inherit much more if the will were not found and he died intestate.  Nevertheless the court applied the presumption of revocation and found the will was presumed to have been destroyed by the deceased and thus revoked.

In Re Perry [1925] 1 D.L.R. 930 (C.A.), the court refused to allow a copy of a lost will into probate and declared an intestacy.

Justice Middleton  stated  “… when a testator has possession of his testamentary instrument, and it is not forthcoming at the time of his death, the presumption is that he destroyed it. The presumption is against fraudulent abstraction either before or after death, but circumstances which render the abstraction possible must be taken into account in weighing the evidence.”.

3. Accidental Loss or Destruction

In Allan v. Morrison, [1900] A.C. 604 the Privy Council upheld the decision of the New Zealand Court of Appeal who, in rendering their appeal judgment, had said as follows:

“The hypothesis of accidental loss or destruction is unreasonable. There is a presumption against the hypothesis of fraudulent abstraction. There is a reasonable possibility that the deceased destroyed the will himself. In order to find for the will we must be morally satisfied that it was not destroyed by the testator animo revocandi.”(with an intention to revoke)

Requirement for Proof of the Contents and the Will’s Execution

Even once the presumption of revocation is rebutted, probate will still only be granted if there is sufficient proof of both the contents of the lost will and its due execution.

The contents of the will may be established on secondary evidence such as the solicitor’s notes, or a copy, or any other such written evidence.   For example, in re Dreger 13 E.T.R. 212 a carbon copy of the will was admitted into probate.

Secondary evidence of the contents of a will may include:

1)     the solicitor’s notes, or a typed copy or carbon copy;

2)     oral testimony of someone having direct knowledge of the contents, such as the solicitor who prepared the will;

3)     pre-testamentary or post-testamentary statements of the testator, whether written or oral;

In weighing such evidence, the court will carefully scrutinize the evidence of anyone who stands to benefit from the contents proposed.

The Presumption applies only if the will was in the Possession of the Testator.

In Re Flaman Estate (1997) 18 E.T.R. 305, the court confirmed that the presumption to intentionally revoke a will is only established when the will is last traced to the possession of the testator. In this case the deceased was in a nursing home and thus  the will’s possession could not be last traced to him.


In summary, the caselaw currently provides that where a missing will was last known to be in the possession of the testator before his death, the presumption is that the testator destroyed the will with the intention of revoking it.

This presumption may be rebutted by the following evidence:

1)     words or actions of the testator either before or after the execution of the will; or

2)     a codicil that refers to the will; or

3)     evidence of the character of the testator and his treatment towards the beneficiaries during his life; or

4)     statements made by the testator about the provisions made to beneficiaries.

Even if the existence of will is proven and the presumption rebutted, two further matters must still be established–the contents of the will and its proper execution.  Only once these elements are proven will the court admit a copy of the will, or other sufficient evidence, in place of the original will.

Like many other areas of estate law, the law purports to be clear, however its application is at times apparently inconsistent. It seems the courts are reluctant to declare an intestacy, and will often go to some lengths to find sufficient evidence to rebut the presumption of revocation.

Forfeiture Clauses in Wills


Bellinger v. Fayers, Nuytten  2003  BCSC  563 discussed inter alia forfeiture clauses in wills

On June 11, 2002, Justice Hood handed down Reasons for Judgment, subsequent to the trial reasons,  in the case of Bellinger v. Fayers, Nuytten.

In this case I represented the plaintiff, Roy Bellinger who together with his cousin, Phil Nuyten contested Roy’s mother’s will.  In particular, the cousins contested the distribution under the will which left Roy a $40,000.00 gift and Phil a gift of an agreement for sale valued at $15,580.00.  The residue (there was little of that) was to be shared equally by Roy, Phil and Roy’s sister, Beverly, the daughter of the deceased.

Phil and Roy’s complaint was with a purported inter vivos transfer of the deceased’s home to Roy’s  sister Beverly.  The plaintiffs alleged that the home should form part of the estate assets. In particular they made a number of claims arising from common law.  Briefly these claims were the following:

  • The will violated a previous oral agreement that the estate be split equally among the three of them
  • The will was the result of undue influence exercised by Beverly over her mother.
  • Beverly wrongfully directed her mother’s assets to herself before her mother’s death.
  • The deceased’s house had been transferred to Beverly prior to death, under a sham agreement of sale, possibly forged by Beverly

In addition, Roy brought a statutory claim.  He contested the will on the ground that it did not adequately provide for him as required by the Wills Variation Act, R.S.B.C. 1996, c. 490.

After nine days of trial, Justice Hood dismissed both the common law and statutory claims brought by the plaintiffs.

With regard to Roy’s claim under the Wills Variation Act, Justice Hood found that $40,000 was more than adequate, just and equitable in the circumstances.  As a result he did not increase that provision under the will.


Following the reasons for judgment at trial, Beverly’s counsel raised the forfeiture clause contained in the will.  He claimed that both plaintiffs had forfeited their inheritances under the will by reason of that provision!  Counsel maintained the forfeited gifts should fall into the residue of the estate to be distributed exclusively to Beverly!

The Forfeiture Clause

The deceased’s will contained the following forfeiture provision:

7.        IT IS MY FURTHER DESIRE, because of an expressed intention of one of the legatees to contest the terms of this my Will, that should any person do so then he or she shall forfeit any legacy he or she may be otherwise entitled to.

At trial, only fleeting reference had been made to this provision when I asked   Roy during his direct examination if he thought he was the person referred to in that clause.

Given that the clause was not pleaded in the action, nor had there been any submissions as to its effect at trial, I had the opportunity to fully consider this clause for the first time after the initial judgment.

Perhaps, like many of you, I had assumed that such a clause was archaic and would no longer be upheld by our courts.  Like many estate practitioners I expected that the courts would find such a clause to be void as against public policy. This is not entirely correct.  I was surprised to learn that these clauses, when properly drafted, remain a possible option in estate planning.

There is very little case law dealing with this area of estate law.  The few reported cases are old and perhaps do not reflect modern public policy concerns.

In terrorem clauses

Forfeiture clauses were permitted at common law, however their scope was limited by the ecclesiastical courts who developed the in terrorem rule.  Initially, this in terrorem rule applied only to gifts of personal property.  The courts of equity later expanded it to include both real property and chattels.

In general terms, the in terrorem rule provided that the courts could find a forfeiture clause void

  • if a gift was conditional, and
  • if those conditions were in the nature of a threat and
  • if there was no gift over to an alternate beneficiary in the event the condition was not met.

According to Feeney’s Canadian Law of Wills, Fourth edition, if, and only if, there is the required gift over, a conditional gift may be valid.  With a gift over, such a clause will be valid unless the forfeiture condition:

  • is in total restraint of marriage; or
  • prevents a beneficiary from instituting any litigation, whatever concerning the testator’s estate is void

According to Feeney, even if otherwise valid, the conditions must contain the qualifications mentioned (ie. permit some marriages, or permit some litigation).  Otherwise they are prohibited as contrary to public policy.  Feeney explains at


“But a condition in partial restraint of marriage is good, as is a condition against disputing a will that does not preclude all litigation.  These qualified conditions are not contrary to public policy.

In these two cases, however, if the gift is one of personalty, or a mixed fund representing both realty and personalty, (but not, it seems, in the case of the devise of land), unless there is a gift over, the court will consider the condition as being in terrorem and void, although normally the condition will not be void if there is a gift over.  The reason for the rule is that the court considers an expressed gift over to someone else sufficient prime facie evidence that they gift was not in terrorem; the presence of the gift over tending to show that the condition was inserted not simply to coerce the original donee but also to fix a possible benefit to another.”

Modern Law

There is little modern Canadian case law considering forfeiture clauses.  This is perhaps because such clauses are relatively rare.  In any event, I could find only one previous BC decision to assist me.

Justice Hood’s ruling on the forfeiture clause

In response, to Beverly’s claim that the forfeiture should occur, we brought on a motion seeking a declaration that clause 7 was void.  We maintained it should thus have no effect on the gifts to the two male beneficiaries.  Our application was granted in reasons delivered April 14, 2003.

In this second set of reasons, Justice Hood found Clause 7 had very likely been included because Roy had told his mother he intended to contest the terms of her will.  Specifically Roy had told her he would contest her transfer of the house to his sister Beverly.

Justice Hood reviewed the excerpt from Feeney quoted above.  He then discussed the gift over required to validate a forfeiture condition.  He stated as follows:

“The gift must be accompanied by an effective gift over which vests in the recipient on the condition being breached.  If there is no gift over, then the condition will be treated as merely in terrorem, that is a mere threat, and will be found to be void.  And nothing short of a positive direction of a gift over, of vesting in another, even in the case where the forfeited legacy falls in the Residue, will suffice.  There must be an express disposition made of what is to be forfeited.  See for example Theobald on Wills, 15th ed. (London:  Sweet and Maxwell, 1993) at p. 656, Wheeler v. Bingham, [1746] 26 E.R. 1010 at p. 1012 and Lloyd v. Branton (1817), 36 E.R. 42 particularly at p. 46.  Thus the application of the general rule that a failed gift falls into Residue is insufficient for the purpose of the rule.”

Justice Hood also quoted extensively from the decision of  Kent v. McKay (1982), 139 D.L.R. (3d) 318 (B.C.S.C.), where  Lander J.  considered the following condition:

“if any person who may be entitled to any benefit under this my Will shall institute or cause to be commenced any litigation in connection to any of the provisions of this my Will other than for any necessary judicial interpretation thereof or for the direction of the Court in the course of administration all benefits to which such person would have been entitled shall thereupon cease  [the] said benefits so revoked shall fall into and form part of the Residue of my estate to be distributed as directed in this my Will”

In that case, Justice Lander had found that the clause was valid because of the gift over that was made to the residue of the estate.   He however went on to find that such a clause could not effectively apply to a statutory claim made under the Wills Variation Act.

In the Bellinger case, Justice Hood distinguished the clause in Kent v. McKay because it had provided specifically for a gift over to the residue of the estate.  In Bellinger, there was no specific gift over.  Instead the failed gift would fall into the residue by operation of law.  In the view of Justice Hood this was insufficient to remove the clause from the application of the in terrorem rule.

Public Policy and Statutory Claims under the Wills Variation Act.

In his reasons Justice Hood also addressed the application of the in terrorem rule to statutory claims.  In this portion of his analysis he was able rely specifically on the reasoning of Justice Lander in  Kent v. McKay (supra).

In Kent v. McKay Justice Lander had found the forfeiture clause void in so far as it purported to limit claims the Wills Variation Act.  He found the condition contrary to public policy because it attempted to penalize the legatee for bringing a successful action provided by statute

In reaching this decison Justice Lander relied on the Australian case Re Gaynor,(1960) V.R. 640 (S.C.), He then found as follows:

“It cannot be denied with respect that the intent of the Legislature in creating the Wills Variation Act, is to ensure adequate maintenance and support for specified individuals.  It is a matter of public policy that support and maintenance be provided for those defined individuals and it would be contrary to such policy to allow a Testator to circumvent the provisions of the Wills Variation Act by the creation of such as para. 9.”

Thus, following this rationale, Justice Hood concluded that clause 7 was invalid for two reasons, namely:

1) Clause 7 is invalid at Common Law, and cannot be enforced by the Court, because of the lack of a provision for a gift over of the benefits in the event of their being forfeited as a result of a breach of the Clause;

2) that the Clause is void as well with regards to Roy’s Wills Variation Act claim in that it is against public policy.


The Bellinger decision thus stands for the following propositions :

1)         A will provision providing for forfeiture if the will is contested, is ineffective in so far as it relates to a claim under the Wills Variation Act.   It is void as contrary to public policy as it attempts to prohibit valid statutory claims.

2)         A properly drafted forfeiture clause, may be effective in so far as it relates to a beneficiary’s claim brought at common law, provided there is a gift over.

3)          A properly drafted forfeiture clause, is legal and enforceable in so far as it relates to common law claims, but not the Wills Variation Act.

Thus, if a legatee makes a successful statutory claim under the Wills Variation Act, he or she should not lose the gift.  It would be contrary to public policy to penalize the legatee for bringing a successful action provided by statute.

See Harrison v. Harrison (1904) 7 O.L.R. 297.

The Cy-Pres Doctrine

Those of us living in Vancouver know Children’s Hospital–surely that goes without saying. Check a little closer, however, and you may be surprised to learn that no such legal entity exists.

In estate law it is relatively common to discover that a charitable institution, named in a given will, does not actually exist. There may be various underlying reasons–the charity may have been misdescribed, the charity may have ceased to exist or the charity may never have legally existed. Such an unpleasant discovery will be particularly common in cases where the person who drafted the will failed to confirm the correct legal name of the charitable institution. Other cases arise where a charitable institution changes its name or merges with another institution.

In estate law, as a general rule, where a beneficiary under a will predeceases the testator, the gift usually lapses. Where the testator leaves a specific bequest, for example $10,000, and the beneficiary predeceases the testator, then this gift will lapse and become part of the residue of the estate. Where, however, the gift is part of the residue of the estate then such a lapsed gift will pass on an intestacy ( to the next of kin). It will thus be as if the testator had died intestate with respect to that property.

Most of the cases involving the cy-pres doctrine involve gifts of the residue of the estate. This is because the testator usually believes the charity will always exist and thus does not provide for any gift over to an alternative beneficiary. As a result, most cy-pres cases involve actions between the next-of-kin who argue there is an intestacy and the charity who seeks to uphold the gift and applies to the court for relief under the cy-pres doctrine.

Unless a general charitable intention is found to exist, a charitable gift will lapse in the following circumstances:

a) If the intended recipient of the gift cannot be identified with reasonable certainty;
b) If the gift is to a charity which has never existed; or
c) Where the court concludes that the gift was for the purpose of a charity but those purposes are no longer capable of being effected.

Where, however, the court finds a general charitable intention, then it may approve or design a scheme “cy-pres”. This cy-pres doctrine allows the court to apply the gift to some other charitable purpose “as nearly as possible” to resemble the original trusts of the gift. Under such a scheme, the court will direct to whom and in what proportions the gift shall be distributed.

Halsbury’s Laws of England, 3rd ed., Vol.4, p.317 , para.645 expresses the doctrine as follows:

“Where a clear charitable intention is expressed, it will not be permitted to fail because the mode, if specified, cannot be executed, but the law will substitute another mode cy-pres, that is, as near as possible to the mode specified by the donor.”

Generally speaking, our courts will make every effort to save a charitable bequest and prevent an intestacy of the intended gift.

The cy-pres doctrine is said to reside in the court’s inherent jurisdiction to compose a scheme to make charitable trusts operative. This doctrine is ancient and can be traced back to Roman law. Under Roman law, donations for public purposes, when not made to a legal purpose were nevertheless sustained and applied cy-pres to other similar purposes.


The cy-pres doctrine is usually invoked before the court in proceedings commenced by a petition brought by the executor/trustee under of the Rules of Court. Pursuant to Rule 10 the petitioner requests the court to interpret the will and to give directions.

Before issuing such a petition, it is essential the petitioner conduct a thorough investigation and serve every interested party who may possibly be affected by the proceedings. The court must be satisfied that the proceedings name all of the parties who may possibly be entitled to share in the estate should the charitable bequest fail. The provincial Attorney General must also be served in his or her capacity as the protector of charities.


The leading case of Pemsel v. Special Commissioners of Income Tax (1891) All E.R. Rep.28 ( U.K.H.L.) held that “charity in its legal sense comprises four principal divisions: trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community, not falling under any of the preceding heads.”


In Re Smith, (1953) 3 D.L.R. 510, the British Columbia Court of Appeal dealt with a bequest of the testator’s entire residuary estate to the “Vancouver Humane Society”. It was common ground that no such society or institution had ever existed in Vancouver or elsewhere up to and including the date of the will or for that matter at any time during the testator’s lifetime.

The litigation, however, involved two institutions that were concerned with the protection and care of animals in the city of Vancouver. These two institutions applied to court, each claiming to be the intended beneficiary. At the hearing they sought to introduce evidence of the testator’s four previous wills. The trial judge refused to allow this extrinsic evidence and ultimately held that the gift failed for uncertainty and there was thus an intestacy of the residue of the estate.

An appeal of this decision was allowed. The appeal court found that the testatrix had intended to give the residue of her estate to a charitable organization in Vancouver concerned with the relief of suffering of pets and animals. The appeal court found that a gift for the benefit of animals was indeed charitable.

In the appellate decision the court ruled admissible the evidence of the testatrix “four prior wills. These wills included various bequests to the Toronto Humane Society and the Vancouver Humane Society in equal shares. The court found these four wills clearly evidenced the testatrix” intention to benefit a society engaged, in Vancouver, in the work of prevention of cruelty to animals. Thus applying the cy-pres doctrine, the court awarded the bequest to the British Columbia Society for the Prevention of Cruelty to Animals, Vancouver Branch.


It is always a matter of interpretation of the individual will whether or not the testator has demonstrated a general charitable intention

Generally speaking, the courts have little difficulty in finding the testator had a general charitable intent. Thus the courts are often willing to apply the cy-pres doctrine to prevent the lapse of bequests to charities.

Such a willingness was demonstrated by the British Columbia Court of Appeal in Re Buchanan Estate 20 E.T.R. (2d) 100. In this case, the testator left his estate to the Loyal Protestant Home for Children, New Westminster British Columbia.

There had never been a legal entity by that name however an association had operated a home with that name. Nine cousins of the deceased, who stood to inherit on intestacy, argued that this gift had lapsed because there was no such legal entity.

Both the trial court and the appellate court found that the testator’s intention was clearly charitable. Although the home had ceased to exist, the association that once operated the home had continued to carry on work for the benefit of children. The court found that the purpose of the gift was not to benefit the specific home, but rather was to alleviate the condition of orphaned and underprivileged children in general. Thus, the courts ruled, the intended gift did not lapse.


In the Law of Trusts in Canada, 2nd ed. at page 613, author Donovan Waters writes “the courts will make every effort to discover which beneficiary was intended by the deceased and to not allow misdescription, either imperfect or inaccurate, to defeat the deceased’s intent. This is especially so when the gift is to a charitable institution. If the description is sufficient to identify the intended beneficiary with reasonable certainty, that person should be the recipient. It is not necessary to apply the cy-pres doctrine if the intended beneficiary is discoverable.”

According to Professor Waters, there is thus a general rule that the courts will be unwilling to hold a gift void for uncertainty and will use every endeavor to ascertain who is meant to benefit by the will.

A good example of this is found in re Robson Estate, 2006 B.C.S.C. 673. In this case the deceased left the residue of her estate to the First Presbyterian Church in the City of White Rock. There was another Presbyterian church in White Rock, however it had not been in existence at the time the deceased had made her will.

The court held that it would look to surrounding circumstances in a case where there existed no organization with a name identical to that institution named to the will. The court ruled the judge should try to place himself or herself in the position of the deceased at the time that the will was made, focusing on the circumstances that existed which might reasonably have influenced the deceased.

In this case, evidence showed that the deceased regularly attended St. John’s Presbyterian Church in White Rock. Further it showed that she had made formal affirmation of her membership at that church. Accordingly the court awarded the bequest to St. John’s.

In re Conroy Estate (1973) 4 W.W.R. 537, the deceased’s will contained a provision which read “all the rest of my residue I bequeath to the Cancer Fund of B.C.”

There was no such fund. There were, however, two organizations in British Columbia that administered cancer funds. In these circumstances, the court held that the cy-pres doctrine applied and divided the residue equally between these two organizations. The court held that it had jurisdiction to make such a direction subject to the approval of the Attorney General as the chief law officer of the Crown.

In this decision, the court quoted 4 Hals. (3rd) at p.282, para. 585 as follows:
“Where it is impossible to determine which of several charities the testator meant to benefit, the legacy may be applied cy- pres by dividing the funds between them in equal shares or otherwise.”


In Canada Trust Company v. Psenickova (1992) B.C.J.No.555 the court declined to apply the cy-pres doctrine. In this case, the Deceased’s will left a gift of 1/6 of the residue to the Czechoslovakian Senior Citizens Home, Vancouver, British Columbia.

Although there had been talk amongst the local Czechoslovakian community of constructing such a home, no such establishment had ever actually existed.

The court adopted the reasoning of Montreal Trust Co. v. Matthews (1979) 11 B.C.L.R. 276 at 283 and stated “where a testator selects a particular charity and takes care to identify the charity, it is very difficult for the court to construe a general charitable intent.”

The court stated that for a general charitable intent to be effective, there must be in existence some object reasonably like in nature to that specified by the testator in his will, an object which could carry out his or her intention in a general way. A vague proposal is not enough to satisfy this requirement.

In this case, the court held that the testator had no general charitable intent and the gift to the Czechoslovakian Senior Citizens Home thus lapsed and the gift passed on an intestacy to his next of kin.


A review of the law makes it clear that it is essential, when drafting a will, to contact each charity named to confirm its correct legal name. Careful attention to such details will go a long way in preventing a possible lapse of an intended gift.

From a review of the case law it appears that, insofar as possible, the courts are disposed to infer a general charitable intention to prevent the lapse of a charitable gift. This ancient doctrine of cy-pres has existed for over 2000 years. It has undoubtedly been applied in countless cases to prevent the lapsing of charitable bequests.

Common Law Marriage or Mere Housemates?

His and HersThere is currently a good deal of litigation arising in estate disputes as to claims that lovers were spouses and not mere housemates.

Historically the law did not recognize the claim of a common-law spouse against the estate of their deceased partner.  Indeed these relationships were not even recognized as  legally enforceable in some jurisdictions.  To this day, cohabitation still remains a criminal offence in parts of the United States.

Nevertheless more and more people seem to be cohabiting whether in heterosexual or same-sex unions.  Certainly there seems to be less social stigma to the notion of unmarried couples living together.  As well, many long term same-sex couples are now coming “out of the closet”.  What is more, even the nature of traditional marriages has changed–many married partners living far more independently of each other than would have been considered “normal” 20 or 30 years ago.

Previously, depending on whether or not they had been legally married, there were significant differences between the rights of surviving partners to claim against the estate of their deceased spouse if not legally married they might have no rights at all.

Recent statutory changes have reduced these differences in British Columbia.  In British Columbia statutes governing the passing of estate property, our legislature has significantly expanded of the definition of “spouse”.  These new definitions include, in certain circumstances, common law spouses.

The relevant statutes include the Estate Administration Act (governing intestacies) the Family Compensation Act (creating a right of recovery for wrongful death) and the Wills Variation Act (creating a claim against the estate where the will has not made adequate provision for a spouse or child).

As we will see in this paper, these broadened definitions of spouse vary from statute to statute however all of them include both same-sex and heterosexual persons cohabiting in a “marriage- like relationship”.  Depending on the statute in question, there are differing requirements for the length and duration of that cohabitation.

This paper will deal with the rights of a common law spouse under three statutes, namely the Estate Administration Act, the Wills Variation Act, and the Family Compensation Act.

This paper will focus on the criteria considered to determine whether or not a party has proven that he or she is a “spouse” within the meaning of the statute in other words whether or not he or she has legal standing to bring an action under the actin question.

Wills Variation Act

This act provides for claims against an estate where the deceased dies leaving a will but that will does not make adequate provision for the deceased’s spouse or children.   In such a case, the Wills Variation Act permits the child or spouse to contest the provisions of the will and seek to have their inheritance increased.  For the purposes of the Wills Variation Act, spouse is defined as follows:

“spouse”  means a person who

(a) is married to another person, or

(b) is living and cohabiting with another person in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, and has lived and cohabited in that relationship for a period of at least 2 years.

It is noteworthy that to prove one is a spouse within the wording of this definition, the cohabitation need not be continuing up until the time of the death.

The Estate Administration Act

The Estate Administration Act governs the passing of the deceased’s estate when the deceased dies intestate, i.e. without leaving a will.

For the purposes of this Act, the definition of “spouse” includes a “common law spouse” and a common law spouse is defined as follows:

“common law spouse” means either

(a) a person who is united to another person by a marriage that, although not a legal marriage, is valid by common law, or

(b) a person who has lived and cohabited with another person in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, for a period of at least 2 years immediately before the other person’s death;

Thus for this Act,  the period of two-year cohabitation must take place immediately before the other person’s death.   In other words, if the common law spouses had separated prior to the death, then the survivor would not be entitled to claim a share on an intestacy no matter how long they had previously cohabited.

Assuming for the moment that the spouse can bring himself or herself within this definition, he or she will have the same rights as a legally married spouse. Under the terms of the current Act a spouse is entitled to the first $65,000 of the estate, plus a life interest in the matrimonial home and its contents as well as a share of the residue (1/2 or 1/3 depending on the number of surviving children).

Where there are no surviving children, then the surviving spouse will inherit the entire estate.  If there is more than one surviving spouse then the spousal share will be divided between them as the court may determine is just.

The Family Compensation Act

This statute permits the spouse and children of a deceased person to bring an action for damages against any party who is responsible for the wrongful death of the deceased.

Under the provisions of the Family Compensation Act

“spouse” means a person who

(a) was married to the deceased at the time of death, or

(b) lived and cohabited with the deceased in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, for a period of at least 2 years ending no earlier than one year before the death;

Thus the common law relationship must have been of at least two years duration and must have ended no earlier than one year before the death.

What Is a “Marriage- Like Relationship” in Law?

In order to bring a spousal claim under any of the three statutes, the claimant must prove that he or she lived in a “marriage like” relationship with the deceased.

The question of whether or not a couple has been living together in a marriage like relationship is a matter of evidence. McEvoy v. Ford Motor Company (1988) B.C.J. 1757.

What this means, on a practical basis, is that it will be very important to canvass not only the documents but the surviving friends, neighbours, relatives, co-workers and other witnesses to see what important evidence they can bring to the table.

Many of the relevant cases deciding whether a “marriage like” relationship existed involve the alleged spouse in a dispute with the beneficiaries of any will (and in the case of an intestacy, with the next-of-kin).

In our socially fluid society there are a myriad of relationships which may or may not qualify as common-law relationships.  Estate disputes require the court to closely examine the nature of relationships of the couple cohabiting.

For example, a particularly curious case in our office involved a man who had lived with a legally married couple for over 50 years. The woman apparently had sexual relations on a regular basis with one or other man.  She had two children and although they were raised believing the husband was their father, it appeared that each man had fathered one of them.  After the death of the woman, we argued that our client, the unmarried man, was also a spouse.  The case was settled the case on that basis.

Another interesting example involved a successful businesswoman and rancher who died suddenly in a highway collision.  Shortly after her death, her “ranch hand” suddenly announced that he had actually been her common law husband.  As such, he wanted a good part of her large estate and brought a claim under the Wills Variation Act.

Our interviews with the Deceased’s family, friends and employees soon cast grave doubt on the claim “although the couple had briefly been lovers, it seemed that had long ended.  Instead this ranch hand had been intimidating his employer and physically abusing her animals whom she dearly loved.  The Deceased was a woman who lived alone many miles from town.  She undoubtedly knew that she could be in great danger if she fired her ranchhand” he was a keen hunter with many guns and was an alcoholic and drinking buddy of many of her male neighbours.

The mystery of why this relationship continued was finally solved when we discovered her cousin, a man’s man humourously known in their large family as “The Enforcer”.  The Deceased and her cousin had agreed that he would soon move up to her ranch to escort ranchhand man off the property and take over helping her with the ranch.  She died days before his planned arrival.

As noted above, the key to these cases is often finding the necessary evidence to establish the true state of affairs.  Needless to say, this case quickly settled.

Turning to the law, the oft cited decision of Gostlin v. Kergin (1986) 3 B.C.L.R. (2d) 264, (B.C.C.A.) is the starting point for determining whether or not a “marriage like relationship” can be proven.  In that case the court was considering maintenance provisions for common law spouses under the Family Relations Act which contains a similar spouse incorporating the test of a “marriage like relationship”.

In determining whether or not a “marriage like relationship” existed, the court set out two discreet elements to be considered.

a)      the subjective element – whether the couple saw themselves as life partners; and

b)      the objective component – the couple’s interaction and interdependency.

Delivering the judgment of the court, Lambert J.A. said, at pp. 267-268

“I would ask whether the unmarried couple’s relationship was like the relationship of the married couple in that the unmarried couple have shown that they have voluntarily embraced the permanent support obligations of s. 57.  If each partner had been asked, at any time during the relevant period of more than two years, whether, if their partner were to be suddenly disabled for life, would they consider themselves committed to life-long financial and moral support of that partner, and the answer of both of them would have been “Yes”, then they are living together as husband and wife.  If the answer would have been “No”, then they may be living together, but not as husband and wife.”

This quotation appears to focus on the subjective element i.e. whether or not the couple considered themselves to have taken on the obligations of husband and wife.

Where the subjective intention appears elusive, the courts may examine a number of objective factors.  In Takacs v. Gallo (1998) B.C.J. 600 (BCCA) the court listed a number of relevant factors to assess this objective component.  For example:

  • Did the parties hold themselves to the public as committed to one another?
  • Did the parties live under the same roof?
  • Did the parties have sexual relations?
  • Did the parties eat their meals together?
  • Did the party share resources, financial or otherwise?
  • Did the parties declare each other as dependents?
  • Did they refer to each other in a manner consistent with a marriage like relationship?

Cohabitation does not necessarily imply a “Marriage Like” Relationship

Harris v Willie Estate  2001 BCSC 143 is noteworthy because the court clearly states  that the mere fact of cohabitation does not prove a “marriage like relationship”

In this case, the Parrett, J. noted that the court should be very slow to impose on parties commitments which, by their conduct, they have clearly not intended to make.   Here he found that the couple

  • had maintained significant elements of independence,
  • did not commit to a common principal residence,
  • did not recognize or portray themselves as a family unit; and
  • the man did not allow the woman full access to his financial resources.

In these circumstances Parrett, J. found that the relationship was not “marriage- like” and thus dismissed the claim.

Similarly Janus v. Lachocki Estate 2001 BCSC 1702 involved a claim under the Wills Variation Act.  Here the claimant maintained that she had lived with the deceased in a common-law relationship for the last four years of his life.

In dismissing the claim the court considered that the parties:

  • had maintained separate residences,
  • did not generally refer to themselves as being married,
  • were not generally regarded within their communities as being in a marriage like relationship,
  • did not share their property or mingle their finances; and
  • did not become economically dependent on one another.

The court held that while the parties had an affectionate and sexual relationship, they had not reached a level of commitment where they could be said to have committed themselves to lifelong financial and moral support of each other.  On this basis the claim was dismissed.

Relationship of Permanence

Possibly the high water mark to date for successful common-law spouse claims is the case of Marszalek Estate 2007 BCSC 324.  In this case the court found that the plaintiff was a common law spouse however it nevertheless dismissed her claim for damages for wrongful death because she had not proved causation of the injuries suffered by the deceased.

In its judgment, the court noted the following feature:

1)      the couple had separate bedrooms

2)      they maintained separate bank accounts

3)      the plaintiff did not want to marry the Deceased, although he wished to marry her

4)      the deceased had referred to her, in an examination for discovery, as “his landlady and friend, but not lover”

5)      they had separate ownership of property

6)      they did not refer to each other as spouses on various government forms

Nevertheless the court ruled the couple had been common-law spouses for the purpose of the statute.  The court found that although their relationship was somewhat unconventional, their actions spoke louder than their words and by all of their actions this couple was committed to a relationship of permanence.

The court followed the test in Gostlin and found that if each of them had been asked at any time during the two years preceding the husband’s death, whether, if the other were to be simply disabled for life, they would consider themselves committed to lifelong financial and moral support of the other, both of them would have answered “yes”.


In future there will undoubtedly be many novel relationships advanced as “common-law relationships”.  The fact patterns may vary from group relationships to long term same-sex relationships to secretive “housekeeping” relationships.  Presumably many long term relationships, hidden because of religious, family, or social pressures, will be brought into the open.

Should this trend continue, most courts will likely avoid rigid approaches and instead take the flexible approach demonstrated in the Marszalek case.  Nevertheless it remains clear that mere cohabitation, without more, will not be enough to convert the relationship into a common law marriage.

Vancouver Estate Estate Disputes -How to Win an Undue Influence Case

How to Win an Undue Influence Case

Vancouver lawyer Trevor Todd has 50 years experience in understanding and getting justice for parties disinherited from  unscrupulous people who take advantage of victims by exercising undue influence, usually behind closed doors and out of sight.


In my experience in estate litigation, probably the most difficult issue to win at trial is that of undue influence. A review of case law makes clear the majority of such allegations are dismissed at trial due to insufficient proof. Frequently the court simply finds the testator had sufficient mental capacity and therefore allows the will to be propounded.

The loss of an undue influence case at trial can have devastating effects on both the client and the lawyer. This is especially true for the lawyer handling such a case on a contingency fee basis. An undue influence trial usually requires many days of examinations for discovery. Such a trial often takes a minimum of two weeks. Disbursements can be substantial including fees for medical expert witnesses and private investigators..

Such influence is most often exerted in private aware from other friends, family members of potential beneficiaries. There are rarely eyewitnesses who observe blatant undue influence being exerted. It sometimes seems therefore, the only way to prove such a case is with a written confession from the person who exerted the influence.

It is a real challenge for counsel to successfully convince the court to set aside the will or inter vivos gift, on the basis of undue influence.


In this paper I will examine briefly the case law surrounding undue influence and then set out twenty practice tips that will hopefully assist a plaintiff’s counsel in winning his or her undue influence trial.


Undue influence is an equitable doctrine. It is a category of constructive fraud. A very fine line separates legitimate influence from undue influence. These cases are understandably very much fact driven. Success in such cases usually requires a meticulous examination of the facts, particularly those that appear suspicious.

The following oft cited passage sets out the test for undue influence at law:

A-It is settled law that undue influence sufficient to invalidate a will extends a considerable distance beyond an exercise of significant influence – or persuasion – on a testator. It is also clear that the possibility of its existence is not excluded by a finding of knowledge and approval.
To be undue influence in the eye of the law there must be – to sum it up in a word – coercion. It must not be a case in which a person has been induced by [strong relationships] to come to a conclusion that he or she will make a will in a particular person’s favour, because if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another, though you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal. It is only when the will of the person who becomes a testator is coerced into doing that which he or she does not desire to do, that it is undue influence. (Wingrove v. Wingrove (1885), 11 P.D. 81 (Eng. Prob. Ct.), at page 82.)

This passage is cited with approval in Williams and Mortimer, Executors, Administrators and Probate, (17th edition, 1993), at page 184. The authors continue as follows;

A-Thus undue influence is not bad influence but coercion. Persuasion and advice do not amount to undue influence so long as the free volition of the testator to accept or reject them is not invaded. Appeals to the affections or ties of kindred, to the sentiment of gratitude for past services, or pity for future destitution or the like may fairly be pressed on the testator. The testator may be led but not driven and his will must be the offspring of his own volition, not the record of someone else’s. There is no undue influence unless the testator if he could speak his wishes would say Athis is not my wish but I must do it.@

Two Kinds of Undue Influence : Actual and Presumed

1) Actual :

In cases of actual undue influence, the recipient must be shown to have coerced the transferor to make will or inter vivos gift. The conduct must be such that the court finds that the transfer or disposition was not the true will or free intention of the victim. Proof may be shown indirectly by circumstantial evidence, and sometimes by direct evidence such as threats, lies, and promises that the recipient had no intention to keep.

2) Presumed: Here a relationship of trust and confidence between the transferor and transferee raises a rebuttable presumption that the transfer was made by undue influence. Once the relationship of trust and confidence is shown, the onus of proof shifts to the transferee to prove that the transferor made the transferor after full, free, and informed thought. The policy of preserving public confidence in relationships of trust and confidence allows otherwise valid transfers to be voided. Generally speaking, the courts will be more inclined to interfere to set aside a substantial gift or transfer, as opposed to gifts of a minor nature.

Any presumption of undue influence is rebuttable by showing that the transfer was made after full, free and informed thought. This is often done by showing that the transfer or obtained proper independent advice.

N.B. This doctrine of presumed undue influence does not apply to testamentary dispositions

Differing Burdens Of Proof— Wills versus Inter vivos Gifts or Transfers
A key point is the distinction made between gifts or transfers inter vivos as opposed to those made by will. As noted above, in the case of special “trust” relationships where a transfer is made during life, a presumption of undue influence will arise. Where the gift or transfer is made by will however, no such presumption arises and the plaintiff has the daunting task of proving actual undue influence.

In the recent case of Araujo v. Neto, 2001 BCSC 935, Justice Sigurdson does an exhaustive review of the case law.

Justice Sigurdson initially deals with the issue of onus of proof. He states:

A-The onus for proving undue influence for inter vivos gifts differs depending on the nature of the relationship between the parties. In the absence of a fiduciary or special relationship, the onus rests on the party alleging undue influence to prove it. However undue influence is presumed to apply to certain relationships or in certain circumstances and the onus shifts to the recipient of the gift to rebut it.@

The Judge continues as follows:

Feeney in The Canadian Law of Wills, 3rd ed., Vol. 1 (Vancouver: Butterworths, 1987) draws a distinction between the burden of proof when alleging undue influence in the making of a will and in the case of an inter vivos gift made to a person in a special relationship, at page 42:

In the case of gifts inter vivos to persons standing in a fiduciary relationship, or some other relationship whereby the donee was in a position to overbear the donor, such persons must show that they did not influence the donor in making the gift. There is, so to speak, a presumption of undue influence. There is no such presumption in the case of wills. A person in a position to overbear a testator may exercise persuasion to obtain a will or legacy in his favour and it will stand in the absence of positive proof of undue influence by those who assert it.

Undue Influence In Gifts or Transfers

Lord Justice Cotton in Allcard v. Skinner (1887), 36 Ch. D. 145 (Eng. C.A.), at 171 spoke of undue influence in connection with two classes of voluntary gifts:

“First, where the Court has been satisfied that the gift was the result of influence expressly used by the donee for that purpose; second, where the relations between the donor and donee have at or shortly before the execution of the gift been such as to raise a presumption that the donee had influence over the donor. In such a case the Court sets aside the voluntary gift, unless it is proved that in fact the gift was the spontaneous act of the donor acting under circumstances which enabled him to exercise an independent will and which justifies the Court in holding that the gift was the result of a free exercise of the donor’s will.”

At page 181 Lord Justice Lindley said:

“The second group consists of cases in which the position of the donor to the donee has been such that it has been the duty of the donee to advise the donor, or even to manage his property for him. In such cases the Court throws upon the donee the burden of proving that he has not abused his position, and of proving that the gift made to him has not been brought about by any undue influence on his part. In this class of cases it has been considered necessary to show that the donor had independent advice, and was removed from the influence of the donee when the gift to him was made.

This remains an accurate statement of the law, although the courts have taken a more flexible approach to the second class of case and it is not always necessary to show that the donor had independent advice in order to rebut the presumption of undue influence.”

In Goodman Estate v. Geffen (1991), 81 D.L.R. (4th) 211 (S.C.C.) at 221 Wilson_J. asked:

A-What are the factors that go to establishing a presumption of undue influence? This question has been the focus of much debate in recent years. Equity has recognized that transactions between persons standing in certain relationships with one another will be presumed to be relationships of influence until the contrary is shown.

She noted that these included the relationship between trustee and beneficiary, doctor and patient, solicitor and client, parent and child, guardian and ward and future husband and fiance.

Wilson J. in Geffen then said at pages 221 and 227:

“Beginning, however, with Zamet v. Hyman, [1961] 3 All E.R. 933, it came to be accepted that the relationships in which undue influence will be presumed are not confined to fixed categories and that each case must be considered on its own facts. Since then it has been generally agreed that the existence of some Aspecial@ relationship must be shown in order to support the presumption although what constitutes such a Aspecial@ relationship is a matter of some doubt.

It seems to me rather that when one speaks of Ainfluence@ one is really referring to the ability of one person to dominate the will of another, whether through manipulation, coercion, or outright but subtle abuse of power. … To dominate the will of another simply means to exercise a persuasive influence over him or her. The ability to exercise such influence may arise from a relationship of trust or confidence but it may arise from other relationships as well.

What then must a plaintiff establish in order to trigger a presumption of undue influence? In my view, the inquiry should begin with an examination of the relationship between the parties. The first question to be addressed in all cases is whether the potential for domination inheres in the nature of the relationship itself.”

In Ogilvie v. Ogilvie Estate (1998), 49 B.C.L.R. (3d) 277 (B.C. C.A.) at 295, the Court of Appeal, in the context of discussing the various judgments in Geffen, stated that:

A-[t]he task to be undertaken by the court is to determine whether there existed in the relationship between donor and donee the potential for influence.@ In that case, the trial judge had stated the following at para. 41 of her reasons (reported at (1996), 26 B.C.L.R. (3d) 262 (B.C. S.C.):

A-In my opinion, the case before me is a classic case of the second category of undue influence, not the first. I agree that the Plaintiffs fall short of proving any unfair or improper conduct on the part of the Defendants. The rule of evidence applicable to the doctrine of undue influence doesn’t require the Plaintiffs to do so. They only have to show the Aspecial relationship of influence@ between the Grahams and Hugh Ogilvie in the sense that they managed his affairs or gave him advice and, therefore, had a duty to ensure he received independent advice before making substantial gifts in their favour. Then the burden shifts to the Grahams to show that Hugh Ogilvie had independent advice, or was free of their influence when making the subject gifts.

The Court of Appeal in Ogilvie, supra, concluded that the trial judge undertook the correct scrutiny of the relationship between the donor and the donee and the questioned transactions, and upheld her decision that a special relationship existed and that the presumption of undue influence had not been rebutted by the defendants.

Undue Influence In Wills

The decision of Scott vs Cousins 37 E.T.R. (2d) 113 summarizes the leading Canadian case on undue influence re wills, namely Vout v. Hay (1995), 7 E.T.R. (2d) 209 (S.C.C.)

A-The principles that I believe are established by the decision of the Supreme Court, and that are relevant here, can be stated as follows:

1. The person propounding the will has the legal burden of proof with respect to due execution, knowledge and approval and testamentary capacity.

2. A person opposing probate has the legal burden of proving undue influence.

3. The standard of proof on each of the above issues is the civil standard of proof on a balance of probabilities.

4. In attempting to discharge the burden of proof of knowledge and approval and testamentary capacity, the propounder of the will is aided by a rebuttable presumption.

Upon proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity. (at page 227)

5. This presumption A-simply casts an evidential burden on those attacking the will.@ (ibid.)

6. The evidential burden can be satisfied by introducing evidence of suspicious circumstances – namely, Aevidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity. In this event, the legal burden reverts to the propounder.@ (ibid.)

7. The existence of suspicious circumstances does not impose a higher standard of proof on the propounder of the will than the civil standard of proof on a balance of probabilities. However, the extent of the proof required is proportionate to the gravity of the suspicion.

8. A well-grounded suspicion of undue influence will not, per se, discharge the burden of proving undue influence on those challenging the will:

It has been authoritatively established that suspicious circumstances, even though they may raise a suspicion concerning the presence of fraud or undue influence, do no more than rebut the presumption to which I have referred. This requires the propounder of the will to prove knowledge and approval and testamentary capacity. The burden of proof with respect and fraud and undue influence remains with those attacking the will. (ibid.)@

Suspicious Circumstances

Suspicious circumstances or are simply circumstances that arouse the suspicion of the court. In the leading case, Barry v. Butlin (1838) 2 Moo. P.C. 480, it was held that the court ought not to pronounce in favor of the will unless the suspicion is removed. That role has been extended to include all cases in which a will is prepared under circumstances which raise a well grounded suspicion that it does not express the mind of the testator. ( Clark v. Nash (1989) 34 E.T.R. 174 (B.C.C.A.)

Undue influence can be established on the balance of probabilities through circumstantial evidence. In Scott v. Cousins, 37 E.T.R. (2d) 113, the Court describes circumstantial evidence that may be considered in undue influence cases:

In determining whether undue influence has been established by circumstantial evidence, courts have traditionally looked to such matters as the willingness or disposition of the person alleged to have exercised it, whether an opportunity to do so existed and the vulnerability of the testator or testatrix. … The testatrix does not have to be threatened or terrorized: effective domination of her will by that of another is sufficient. … This, I believe, is a consideration of no little importance in the present case as well as in the increasing number of those involving wills made by persons of advanced age. Other matters that have been regarded as relevant, within limits, are the absence of moral claims of the beneficiaries under the will or of other reasons why the deceased should have chosen to benefit them. The fact that the will departs radically from the dispositive pattern of previous wills has also been regarded as having some probative force.

Examples of suspicious circumstances may include:

1) an elderly testator;

2) a testator who is unwilling to provide the solicitor with full information relating to the assets, liabilities, medical history, or family condition and circumstances;

3) a testator who has suffered significant ill health, particularly if the condition, disease, or medication could affect the mental stability or general mental outlook of the testator;

4) a disposition of the estate which seems unusual in the context of the circumstances as known to the testator.

5) a beneficiary who has been particularly involved in “assisting” the testator in the preparation of the will;

6) dispositions in the will drastically different from the terms of the former will;

7) circumstances where the testator appears dependent upon another, for example allowing the other person to speak on his or her behalf;

8) a testator with questionable testamentary capacity;

9) a testator who has had numerous wills prepared in a short period of time;

10) a testator who has recently contracted a hasty or unwise marriage;
11) a testator with a language, learning , intellectual or cultural disability;

12) a testator who has recently changed living circumstances, particularly one who moves in with the alleged perpetrator;

13) a will that makes no gifts to those seemingly appropriate;

14) a will prepared on instructions provided by the questionable beneficiary.

15) cases where the long lost beneficiary seems to arrive “out of the nowhere”

16) a testator suffering from depression/loneliness.

The existence of any one or more of these factors does not necessarily mean that the will is vulnerable to attack. However the presence of any one or more of these factors is probably the best avenue for plaintiff=s counsel to attack the will. Successful counsel will be vigilant as to these and other suspicious circumstances.

Practice Tips On How To Win An Undue Influence Case

1) Before undertaking such a case, particularly on a contingency fee basis, counsel should consider being retained initially only to gather facts. This will assist both client and counsel in determining whether there is a good likelihood of success.

This may not be required if probable lack of testamentary capacity is apparent from the outset. The obvious difficulty with most undue influence cases is the absence of witnesses. Most often there are only two people involved. One is now dead and the other is not talking. Accordingly there are usually immense problems in determining the facts upon which to allege undue influence.

I simply stress that counsel should be very selective in deciding whether or not to accept such cases. Certainly the size of the estate should be considered when making this decision.

2) File a probate caveat right away, but do not commence the court action until you have sufficient proof to justify your allegations of undue influence. The defense may quickly move for a summary trial. The court may award costs or higher costs against your client if you cannot prove the allegations.

3) Consider retaining an experienced private investigator to assist in determining the facts. Undue influence cases demand a meticulous examination of the facts. The private investigator should take signed statements from any witnesses who have material evidence. I consider it necessary to interview almost every person who knew the deceased at the relevant times. Try to obtain a background report on the defendant. It may be surprising how often there may be evidence of prior undue influence allegations. Interview the witnesses to the will or transfer.

4) Get as many records as possible concerning the deceased. This would include all medical records from every doctor and medical institution for at least 10 years prior to death, together with all long-term care records, social work records, nursing home records, care facilities, work or school records (if appropriate), and the like. It would also include the lawyer=s notes, and perhaps the lawyer=s notes of previous wills. The majority of undue influence cases involve senior citizens and there is often an issue of testamentary capacity. I stress however that undue influence can occur in non senior situations such as for example, a young person joining a cult.

5) Marshall the suspicious circumstances and present them in the form of a compelling argument to prove the case (usually through circumstantial evidence). Look to stress situations showing a pattern of the defendant making the deceased more dependant ( ie isolating and limiting access)

6) Try to determine the names and addresses of the witnesses that the alleged perpetrator relies upon, and try to interview them. I have found that if the defendant appears to be flaky, (which is often the case ),then the old adage often applies Abirds of a feather flock together@ often applies. Having this information will assist you in your cross examination.

7) Recognize and benefit from the lack of sophistication of most perpetrators of undue influence. Usually perpetrators are unsophisticated in their methods. While undue influence is a form of civil fraud, the defendants are usually not particularly intelligent, skilled, or savvy.

8) Try to avoid a summary trial unless you have an overwhelming case. I have succeeded at trial, particularly through cross-examination, on cases which may well have been lost on a summary trial. On a summary trial the judge never has the opportunity to assess the credibility of the witnesses. As mentioned above, often these characters can be quite “flakey” and may contrast well with presentable and sympathetic plaintiffs.

9) In setting aside inter vivos gifts, take advantage of the presumption of undue influence where there is a special relationship situation. There often is a Ahousekeeping@ situation present.

10) Obtain expert opinion(s) from those such as geriatric psychiatrists(s) who never met the deceased. Have them review all of the records and tender an opinion on both testamentary capacity and the relative vulnerability of deceased to any undue influence.

11) Get on the case Take these steps as soon as possible. The family may come to see you prior to the death. Even where you cannot assist them to diminish any inappropriate influence, start to build your case as pro-actively as possible. This can involve everything from letters to doctors, banks and the Public Guardian, to obtaining an injunction or committeeship order.

12) Use demonstrative evidence such as home videos, photographs, handwriting samples and the like to try to demonstrate a “before and after” situation where there is evidence of medical or psychological decline.

13) Cross examine the handling lawyer or notary. Try and get an order to discover him or her for discovery. Even the most careful and senior lawyers may fall short in their duties. It can be highly effective to use the Law Society checklist to cross examine the lawyer. I refer you to Danchuk v. Calderwood 15 E.T.R.(2d) 193 where the Judge comments on the solicitor=s handling of the will:

A_In keeping with what I understand to be the law applicable to the duty of a solicitor, in the circumstances here, I accept the submission of counsel for the defendants that she failed with respect to that duty.

In my view, in the particular circumstances here, at the outset:

(A) she should have regarded the circumstances as suspicious having regard to the deceased’s advanced age and considerable seniority to that of the plaintiff as well as his apparent dependency upon her, including allowing her to speak for him;

(B) she should have undertaken an inquiry, including interviewing the plaintiff and the deceased separately with regard to the age difference and as to the independence of the deceased in giving instructions;

(C) the inquiry should have confirmed whether the deceased had a prior existing will and, if such a will existed, what were the reasons for any variations or changes there from prompting the disposition being put forward;

(D) the inquiry should have encompassed why and for what reasons the deceased had given a power of attorney to his daughter in late 1992 and, more importantly, why upon revocation of that power of attorney a new power of attorney was to be given by the deceased to the plaintiff; and,

(E) collateral to (D), supra, the inquiry should have included some investigation of the health of the deceased.

In this perspective, I understand the law to be that a solicitor does not discharge her duty in the particular circumstances here by simply taking down and giving expression to the words of the client with the inquiry being limited to asking the testator if he understands the words. Further, I understand it to be an error to suppose because a person says he understands a question put to him and gives a rational answer he is of sound mind and capable of making a will. Again, in this perspective, there must be consideration of all of the circumstances and, particularly, his state of memory.

If the solicitor had made such inquiry and had been made aware of the circumstances in a fuller sense, including the medical assessment of the ongoing progression and state of senile dementia, I am satisfied the said will would not have been prepared by her at that time. A

14) Obtain medical opinions treating physicians as to both testamentary capacity and whether the deceased may well have been more susceptible to undue influence given his or her medical condition.

15) Be bold and confident in the presentation of your case The defense will always be skeptical and the court may be as well.

16) Be prepared to prove the relative inequality of the parties. The court should be made to understand any power differential. Age, infirmity and loneliness will likely render any person more vulnerable to inappropriate influences and this should be clearly demonstrated for the court.

17) Be prepared to prove the substantial unfairness of the will or bargain.

18) Prepare a chronology of relevant medical or factual events germane to your case.

19) Think hard and often as to how you will present your case.

20) Prepare and use a written opening at trial.


Undue influence case have always been difficult to prove for a variety of reasons, and probably will remain that way for some time yet into the future. I hope this paper’s outline of the law of undue influence, together with the twenty practice tips will bring success to plaintiff’s counsel in the future.