Court Costs In Estate Litigation

Court costsIt is very old fashioned thinking that court costs come out of the estate , win or lose, as costs are now an important factor in settlement considerations.


The decision Deuschmann Estate v Fallis  2011 BCSC 1009 at paragraph 95 sets out the general principles of costs in estate litigation as pronounced by the BC Court of Appeal in Re Collett Estate 2005 BCCA 291.


The relevant principles as they relate to costs in estate proceedings are set out in Collett Estate, Re, 2005 BCCA 291 (B.C. C.A.) by Smith J.A. who, for the court, said:

[7] The general principles that guide the exercise of the discretion to award costs in proceedings in the Supreme Court involving executors and trustees are set out in Turner v. Andrews (1999), 23 C.C.P.B. 84, 30 E.T.R. (2d) 126 (B.C.S.C.), aff’d 85 B.C.L.R. (3d) 53, 2001 BCCA 76. That case concerned an application by a plaintiff for an order that his reasonable legal costs be paid prospectively out of the trust fund in issue in his representative action against the trustees of his pension fund. In dismissing the application, Allan J. summarized the relevant principles as follows:
[8] Section 86 of the Trustee Act, R.S.B.C. 1996, c. 464, reflects the historic statutory authority which permits a trustee to seek the opinion, advice or direction of the Court on a question respecting the management or administration of trust property. In such circumstances, the Court may order the costs of the parties to be paid out of the estate. That principle was expanded in Re Buckton, [1907] Ch. 406 (Eng. Ch. Div.) which held that, in litigation against a trustee, the legal fees of a plaintiff beneficiary may be paid out of the trust fund on an indemnity basis where the issue concerns the interpretation of the trustee’s powers.
Buckton considered the beneficiary’s entitlement to costs in three classes of cases:
(1) An application made by trustees of a will or settlement, asking the Court to construe the trust instrument for their guidance; to ascertain the interests of the beneficiaries; or to answer a question which arises in the administration of the trusts. In such instances, the costs of all parties, which are necessarily incurred for the benefit of the estate, should be taxed as between solicitor and client and paid out of the estate.
(2) An application made by the beneficiaries as a result of difficulty of construction or administration of the trust which would have justified an application by the trustees. Again the application is necessary for the administration of the trust and the costs of all parties, which are necessarily incurred for the benefit of the estate, are paid out of the estate.
(3) An application made by the beneficiaries who make claims adverse to other beneficiaries. Such litigation is adversarial in nature and, subject to the Court’s discretion, the unsuccessful party bears the costs of those whom he or she brings to Court.
[9] The Court stated at p. 415:
It is often difficult to discriminate between cases of the second and third classes, but when once convinced that I am determining rights between adverse litigants I apply the rule which ought, I think, to be rigidly enforced in adverse litigation, and order the unsuccessful party to pay the costs.
96      The facts of this case bear the greatest similarities to the third category of action. Thus, I am satisfied that it is the plaintiffs in this case, rather than the estate, who should bear the costs of this action.
97      Furthermore, an order of special costs against the plaintiffs is warranted. In Starko Estate v. Harbour Cove Investment Corp., 2009 BCSC 1473 (B.C. S.C.), District Registrar Sainty set out how special costs in estate litigation differ from special costs in other types of litigation:
[76] I should also note that, to some extent, special costs in estate litigation differ somewhat from other types of litigation where special costs ordered paid are by one party to another for conduct that is scandalous, outrageous, misbehaviour or “deserving of reproof or rebuke”: see Garcia v. Crestbrook Forest Industries Ltd. (1994), 9 B.C.L.R. (3d) 242 (B.C.C.A.) and Leung v. Leung (1993), 77 B.C.L.R. (2d) 314.).
In general executors are entitled to full indemnification for their legal costs, provided such executor has not pursued unnecessary or wasteful litigation. …

Son May Not Inherit For Murdering Mother

murder mom

Re Fenotti Estate 2014 BCSC 1533 reviewed the law and held that a murderer of the deceased, his mother, son may not inherit from her as a result of public policy that prevents a wrong doer from benefiting from his or her own crime.

The personal representative of the deceased’s estate applied to the court for various directions, including whether a surviving son who  murdered his mother can inherit from her estate on an intestacy.

The Court held a clear NO.




“As to the first question, the petitioner referred me to the decision of Mr. Justice LoVecchio of the Alberta Court of Queen’s Bench in Re Bowlen (Estate), 2001 ABQB 1014, 207 D.L.R. (4th) 175. In that case, a woman had murdered her parents. Both parents left wills under which the daughter would receive bequests. The personal representative of the estates of the parents applied for advice and directions as to who was entitled to receive the interest that the culpable daughter would have received from the estates.

[10]         In obiter dicta at para. 17 of his reasons, Mr. Justice LoVecchio, relying on earlier decisions in Cleaver v. Mutual Reserve Fund Life Association, [1892] 1 Q.B. 147, 56 J.P. 180 (C.A.), and Garbe v. Alberta (Public Trustee), [1999] 5 W.W.R. 696, 64 Alta. L.R. (3d) 103 (Surr. Ct.), held:

[17]      The rule of public policy which excludes the criminal has also been applied to exclude all claiming under the criminal, unless they have alternative or independent rights. In order to take under these independent or alternative rights, the person exercising the right must have clean hands. [Footnote omitted.]

[11]         His statement as to the existence of a rule of public policy preventing a criminal from benefitting from his or her crime is supported by a line of authority in this province, to which LoVecchio J. did not refer.

[12]         In In re Medaini Estate, [1927] 2 W.W.R. 38, 38 B.C.R. 319 (S.C.), Mr. Justice Murphy heard an application, brought by the administrator de bonis non of the estate of Mary P. Medaini, for directions as to whether, in the case of an intestacy, a murderer is entitled to share in the distribution of the estate of the murdered person.

[13]         Murphy J. held, at 39:

The English Courts have decided that a murderer can take nothing under the will of his victim. The decisions are based upon public policy. I can see no reason why the principle is not applicable to cases of intestacy. The reason assigned in some American decisions for refusing to deprive a murderer of benefits accruing to him under the intestacy of his victim is that to do so would be to contravene the express provisions of the Statutes of Distribution. This reason would be equally valid in the case of a will which also depends upon a statute for its validity. The Wills Act, R.S.B.C., 1924, ch. 274, declares that the will speaks from the death of the testator. The English decisions binding on me have overridden this provision in the case of a murderer. There is nothing which makes the Statutes of Distribution more sacrosanct than the Wills Act. If public policy is a good ground for overriding the latter, it is equally so for acting likewise in regard to the former. I, therefore, hold the murderer takes nothing under the intestacy.

[14]         In Baumann v. Nordstrom (1959), 30 W.W.R. 385,[1959] B.C.J. No. 42 (S.C.), Mr. Justice Wilson, as he then was, considered a case where a man was killed by a fire which destroyed his dwelling. He left no will. His widow, an inmate of the provincial mental hospital, had set the fire that killed him. Acting through her committee, she attempted to claim her statutory share of his estate. Her claim was opposed by a daughter of the man from a previous marriage.

[15]         At 386, Wilson J. adverted to two propositions that were accepted by both counsel before him:

1.         That if her crime, whether murder or arson, killed her husband she cannot inherit and the rule is the same on an intestacy as it would be if the property had been willed to her. See In re Sigsworth; Bedford v. Bedford [1935] 1 Ch 89, 104 LJ Ch 46.

2.         That if at the time she set the fire she was insane within the meaning of the M’Naghten rules there was no crime and she may inherit. See In re Pitts; Cox v. Kilsby [1931] 1 Ch 546, 100 LJ Ch 284; and In re Houghton [1915] 2 Ch 173, 84 LJ Ch 726.

[16]         Wilson J. held, at 396, that the defendant wife, when she set the fire, “did not then appreciate the nature and quality of her act or know that it was wrong.” Accordingly, she was entitled to inherit.

[17]         A majority of the British Columbia Court of Appeal, in reasons for judgment reported at 34 W.W.R. 556 and 27 D.L.R. (2d) 634, did not find it necessary to review the finding as to the defendant’s insanity, but allowed the appeal of the matter on the ground that the trial judge was without jurisdiction to determine by way of originating summons, or other civil proceeding, whether or not a person had committed a crime.

[18]         In reasons for judgment reported at [1962] S.C.R. 147 and 37 W.W.R. 16, the Supreme Court of Canada allowed the appeal and dismissed the cross appeal, thereby restoring the decision of the trial judge. Mr. Justice Ritchie, for the majority on the issue, stated at 156 that:

The rule of public policy which precludes a person from benefiting from his or her own crime is an integral part of our system of law, and although some doubts have been raised as to whether this rule overrides the statute law as to the distribution of the estate of an intestate (see In re Houghton, Houghton, v. Houghton [[1915] 2 Ch. 173 at 176]), the better view appears to me to be that it applies to such cases (see In re Pitts, Cox v. Kilsby [[1931] 1 Ch. 546 at 550], Whitelaw v. Wilson [(1934), 62 C.C.C. 172 at 177], and Re Estate of Maud Mason [[1917] 1 W.W.R. 329, 31 D.L.R. 305]). As Fry L.J. in Cleaver v. Mutual Reserve Fund Life Association [[1892] 1 Q.B. 147, 61 L.J.Q.B. 128]… at p. 156 said:

It appears to me that no system of jurisprudence can with reason include amongst the rights which it enforces rights directly resulting to the person asserting them from the crime of that person.

Purported Trust is a “Sham” Trust

sham trusts

Plaintiff’s often allege that a purported trust is a sham trust that the courts should ignore.

The following is the criteria that the courts utilize when dealing with such an assertion as was discussed in

M. Dhaliwal Holdings Inc. v. Pacific Blue Farms Ltd. , 2014 BCSC 1482

Sham Trusts

45      The petitioner argues that, should a trust be found in this case, the Registrar should have gone on to find that the trust was a sham, quoting the test for a “sham” transaction given by Lord Diplock in Snook v. London and West Riding Investments Ltd., [1967] 2 Q.B. 786 at 802:
…. it means acts done or documents executed by the parties to the “sham” which are intended by them to give to third parties or to the court the appearance of creating between the parties legal rights and obligations different from the actual rights and obligations (if any) which the parties intend to create. But one thing, I think, is clear in legal principle, morality and the authorities … that for acts or documents to be a “sham”, with whatever legal consequences follow from this, all the parties thereto must have a common intention that the acts or documents are not to create the legal rights and obligations which they give the appearance of creating.
46      The above passage was quoted from TLC The Land Conservancy of British Columbia (Re), 2014 BCSC 97 at para. 204, where Fitzpatrick J. went on to say:
[205] As can be seen from the above statement, the essence of a sham transaction arises from the intention of all parties to the instrument. As stated in Waters at 146, this concept is different than the requirement of certainty of intention and is more concerned with the intention of the settlor to perpetrate an “illegality” or “illusory trust”, as a result of which the trust is void.
[206] This principle from Snook has been applied in Canada generally: Minister of National Revenue v. Cameron, [1974] S.C.R. 1062 at 1068; Trident Foreshore Lands Ltd. v. Brown, 2004 BCSC 1365at para. 39.
[207] In addition, the principle has been applied in Canada in respect of alleged “sham trusts”, often in cases involving bankruptcies and fraudulent transactions affecting creditors. In Hirji v. Scavetta (1993), 15 O.R. (3d) 371, [1993] O.J. No. 2546 (Gen. Div.) at para. 32, the court found that a transfer in trust was designed to avoid creditors. In Biggar (Re), 2005 BCSC 1657, the court, after reviewing other examples of “sham trust” (para. 23), concluded that the bankrupt had dealt with the subject property as his alone and had never intended to divest any beneficial interest in the shares.
[208] In Forsyth (Re), 2010 BCSC 1720, and following Biggar and Hirji, the court found a declaration of trust to be void as an attempt by a bankrupt to shield his assets from his creditors. At para. 24, the court accepted that post “trust” conduct was relevant to a consideration and determination of the true intention of the settlor.

How to Sever a Joint Tenancy With a Co Owner

Partitioned TedA prospective client called yesterday inquiring whether three siblings who had joint tenancy with a fourth sibling, can force a sale so as to buy out the troublemaking fourth sibling.

I answered yes,  as the Partition of Property act allows for a severance of the co owned  joint tenancy, subject to the court’s discretion, in some  situations such as economic oppression.

More information on the Partition of Property act can be found in the blog dated January 3, 2014, The Partition Act Allows Courts to Order Co-Owned Property to be Sold.

Three further detailed articles on severance of joint tenancies can be found in my blogs.  Severance of Joint Tenancies (Part 1), Severance of Joint Tenancies (Part 2) and Severance of Joint Tenancies by a Course of Dealing.

To sever the joint tenancy and convert it into a tenancy in common where there is no right of survivorship, the co owner can simply file a transfer from oneself to oneself for the sole purpose of severing the joint tenancy.

The Formalities of a Valid Marriage

valid marriageThe Formalities of a Valid Marriage


 45 If the parties to a marriage, solemnized in good faith and intended to be in compliance with the legislation, are not under a legal disqualification to contract such marriage and have lived together and cohabited as a married couple after such solemnization, such marriage shall be deemed a valid marriage, although the person who solemnized the marriage was not authorized to solemnize marriage, and despite the absence of or any irregularity or insufficiency in the publication of banns or the issue of the licence.[FN1] Where neither party has the requisite good faith, no defect will be overlooked and the marriage will be regarded as invalid.[FN2]


§46 The mere irregularity of failing to wait for the expiration of the time set for the issuing of the licence before getting married will not make the marriage a nullity.[FN3] If a marriage does not formally comply with the legal requirements, the party who wishes to prove the validity of the marriage has the burden to prove the marriage was valid on a balance of probabilities.[FN4]


§47 Being under age at the time of obtaining a licence does not invalidate the subsequent marriage, unless the provincial statute expressly states that the marriage is void.[FN5]


§48 The validity of a marriage and its formal requirements are determined according to the law where the marriage took place.[FN6] If a marriage has been entered into in a country by the law of which no formalities are required other than an agreement to marry followed by cohabitation, such marriage will be regarded as formally valid in Ontario.[FN7]


§49 Whether a religious ceremony is required depends entirely upon the law of the place where the marriage is celebrated; a marriage valid under such law cannot be questioned on the ground that it violates religious principles binding on one or both parties to the marriage.[FN8] On the other hand, a religious marriage is treated as void if it does not receive recognition under the law of the place where the marriage is celebrated.[FN9]


§50 If a marriage has taken place in another country and all that is known is that it was publicly solemnized by a minister or other person who usually solemnizes marriages in that country, and that the parties ever after were treated and reputed there as man and wife, the court should, in the absence of express proof of some law of that country rendering such a marriage illegal, presume the marriage to have been duly contracted according to the law of the country in which it took place.[FN10] In respect of the formal validity of the marriage, that is, the validity of the ceremony, once the ceremony and subsequent cohabitation have been proven, the law will presume that everything necessary to the validity of the ceremony occurred or was performed.[FN11] Retroactive legislation of foreign countries validating informal marriages contracted within the foreign jurisdiction is recognized as binding.[FN12] Consent must be considered as part of the form of marriage, and the forms of entering into a contract of marriage are to be regulated by the lex loci contractus.[FN13]


FN1. Marriage Act, R.S.A. 2000, c. M-5, s. 23(1); Marriage Act, R.S.B.C. 1996, c. 282, s. 11 [am. 2002, c. 74, s. 45; 2011, c. 25, s. 403]; Marriage Act, R.S.M. 1987, c. M50, C.C.S.M., c. M50, s. 29 [am. 2008, c. 42, s. 62(5)]; Marriage Act, R.S.O. 1990, c. M.3, s. 31 [am. 2005, c. 5, s. 39(5)]; Marriage Act, S.S. 1995, c. M-4.1, s. 21; Luu v. Ma (1999), 1999 CarswellOnt 493 (Ont. Gen. Div.) (parties married in Vietnam; if marriage not valid according to Vietnamese law, marriage validated pursuant to Marriage Act, s. 31; parties intending to marry, living together as husband and wife and having child together); Upadyhaha v. Sehgal (2000), 2000 CarswellOnt 3306 (Ont. S.C.J.) (saving provision not operating to create valid marriage as parties not living together or cohabiting as man and wife after ceremony); McKenzie v. Singh (1972), 1972 CarswellBC 163 (B.C. S.C.) (marriage for immigration purposes; marriage not entered into in good faith); Alspector v. Alspector (1957), 1957 CarswellOnt 39 (Ont. C.A.) (lack of marriage licence not invalidating marriage); Czuba v. Hassan (1977), 1977 CarswellOnt 172 (Ont. H.C.) (parties intending compliance); Alspector v. Alspector (1957), 1957 CarswellOnt 38 (Ont. H.C.); affirmed (1957), 1957 CarswellOnt 39 (Ont. C.A.) (position under Act being unclear when only one party acting in good faith); Friedman v. Smookler (1963), 1963 CarswellOnt 48 (Ont. H.C.); Birinyi v. Lindstrom (2009), 2009 CarswellBC 180 (B.C. S.C.).


FN2. McKenzie v. Singh (1972), 1972 CarswellBC 163 (B.C. S.C.).


FN3. Penner v. Penner (1947), 1947 CarswellBC 5 (B.C. S.C.).


FN4. Chhokar v. Bains (2012), 2012 CarswellOnt 15208 (Ont. S.C.J.).


FN5. Hobson v. Gray (1958), 1958 CarswellAlta 27 (Alta. T.D.); but see Ross (MacQueen) v. MacQueen (1948), 1948 CarswellAlta 6 (Alta. T.D.).


FN6. Cao v. Le (2007), 2007 CarswellBC 737 (B.C. S.C.) (parties having no ceremony to mark marriage but marriage registered in appropriate government office in Vietnam; numerous people in Vietnam satisfied that parties validly married under Vietnamese law; accordingly, parties’ relationship meeting requirements of marriage under Vietnamese law; parties therefore spouses for purposes of Canadian legislation in question).


FN7. Forbes v. Forbes (1912), 1912 CarswellOnt 25 (Ont. H.C.).


FN8. Despatie v. Tremblay (1921), 1921 CarswellQue 59 (Quebec P.C.) (Quebec law).


FN9. De Wilton, Re, [1900] 2 Ch. 481; but see Alspector v. Alspector (1957), 1957 CarswellOnt 38 (Ont. H.C.); affirmed (1957), 1957 CarswellOnt 39 (Ont. C.A.) (parties not obtaining licence; marriage performed according to rites of Jewish faith held valid).


FN10. Doe d. Breakey v. Breakey (1846), 2 U.C.Q.B. 349 (U.C. Q.B.) at 355; Robb v. Robb (1891), 20 O.R. 591 (Ont. H.C.) at 597 (well known principle of law and morality asserting, where doubt existing as to legality of marriage, that courts of justice are bound to decide in favour of marriage); Sottomayer v. De Barros (1877), 3 P.D. 1 (Eng. C.A.); McColm v. McColm (1969), 1969 CarswellOnt 222 (Ont. H.C.) (Scottish marriage irregular in form but valid under Scottish law); see also Harris v. Cooper (1871), 1871 CarswellOnt 177 (Ont. Q.B.) (marriage of slaves).

FN11. Clark v. R. (1921), 1921 CarswellNB 3 (S.C.C.); Tero, Re (1949), 1949 CarswellBC 61 (B.C. C.A.); Forbes v. Forbes (1912), 1912 CarswellOnt 25 (Ont. H.C.).


FN12. Starkowski v. Attorney-General (1953), [1954] A.C. 155 (U.K. H.L.) (prior religious marriage validated by retroactive legislation before celebration of subsequent marriage).

FN13. Hunt v. Hunt (1958), 14 D.L.R. (2d) 243 (Ont. H.C.).



Seniors-Avoid Joint Bank Accounts

Seniors avoid joint accountsI have seen many seniors financially abused by setting up a joint bank account with a child/caregiver/neighbour/friend  who takes advantage to the point where I advise seniors to avoid their use.

I recently came across a Maclean’s magazine article dated April 4, 2011 entitled “Signing Away Your Savings”, and went on into some details as to how joint bank accounts have recently blossomed in use, and are more and more being used to defraud seniors.

The joint turviror gets the funds irresepctive of what the will says, subject to claims such as resulting trusts.

Investment dealers and bankers generate much of the ongoing problems as easy Business /estate planning.

Inexperienced bank tellers for example make it dangerously easy for their senior clients to add others as joint owners to their bank accounts, wihtout really testing the mental faculties and why and what is going on firstly, and in detail..

In fact many financial advisors go so far as to encourage JTROS, so as to “avoid probate fees and even worse legal fees to probate the estate.

The accounts that I am talking about in this article are those called joint accounts with a right of survivorship  ( JTROS)

Based on the wording of the actual bank form,if one of the account holder dies, the other automatically obtains ownership of the account irrespective of whether the deceased’s will said otherwise.

Not surprisingly in the rougue” surviving joint bank older often keeps such financial details to him or herself and to the exclusion of other siblings for years.

In general I think it is just not a good idea for seniors to mix their personal funds with a personal funds of strangers, relatives or even children.

A limited form of power of attorney specifically spelling out your intentions and limiting the attorney to certain duties and limits of expenditures I think is a far safer estate planning tool than the overused and now frequently litigated joint bank account with right of survivorship

The Partition Act -Courts Order Co-Owned Property Sold

Partition of property actWhether property be owned as tenants in common, or as joint tenants, if the parties cannot agree on the sale of the property, the BC Court has the power to do so under the provisions of the Partition of Property Act RSBC.

The jurisdiction to order the partition or sale of land owned by co-tenants is found in the Partition of Property Act, R.S.B.C. 1996, c. 347 It is clear that physical partition is impossible, so a sale is the only method for the division of the parties’ interests.
The relevant provisions of the Act are set out below:

2.(1) All joint tenants, tenants in common, coparceners, mortgagees or other creditors who have liens on, and all parties interested in any land may be compelled to partition or sell the land, or a part of it as provided in this Act.

(2) Subsection (1) applies whether the estate is legal or equitable or equitable only.

In a proceeding for partition where, if this Act had not been passed, an order for partition might have been made, and if the party or parties interested, individually or collectively, to the extent of 1/2 or upwards in the property involved request the court to direct a sale of the property and a distribution of the proceeds instead of a division of the property, the court must, unless it sees good reason to the contrary, order a sale of the property and may give directions.

In a proceeding for partition where, if this Act had not been passed, an order for partition might have been made, and if it appears to the court that because of the nature of the property involved, or of the number of parties interested or presumptively interested in it, or of the absence or disability of some of those parties, or of any other circumstance, a sale of the property and a distribution of the proceeds would be more beneficial for the interested parties than a division of the property, the court may

on the request of any of the interested parties and despite the dissent or disability of any other interested parry, order a sale of the property, and give directions.

8.(1) In a proceeding for partition where, if this Act had not been passed, an order for partition might have been made, then if any party interested in the property involved requests the court to order a sale of the property and a distribution of the proceeds instead of a division of the property, the court may order a sale of the property and give directions.

The court may not make an order under subsection (1) if the other parties interested in the property, or some of them, undertake to purchase the share of a party requesting a sale.
If an undertaking is given, the court may order a valuation of the share of the party requesting a sale in the manner the court thinks fit, and may give directions.

Section 2 provides the authority to order partition or sale on application of a tenant in common. Section 6 provides that where parties entitled collectively to one-half or more of the property request a sale, the court must order a sale unless it sees good reason to the contrary. Section 7 provides for a situation not coming within s. 6 where a party or parties requests a sale.

It is only s. 8 of the Act that provides for the valuation of property and the purchase by one or more of the parties of the interest of the party requesting a sale upon the giving of an undertaking. In my view, Tina is not entitled to rely on s. 8 for two reasons. Firstly, she is the party who by commencing the action requested the sale and it is the other parties who would have the ability to purchase her interest (see Hunfeld v. Molendijk. 2012 BCSC 797 (B.C. S.C.) at paras. 55 — 56). Secondly, and in any event, Tina has not provided the necessary undertaking under s. 8. She merely asks for an opportunity to buy the Property if she can obtain financing.

1961 SCC Case Holds an Unregistered Transfer of Land Severs a Joint Tenancy

Sever JT SCC stonehouse.

1961 CarswellBC 159, 37 W.W.R. 62, [1962] S.C.R. 103, 31 D.L.R. (2d) 118

Stonehouse v. British Columbia (Attorney General)

Stonehouse (Plaintiff) Appellant v. Attorney-General of British Columbia (Defendant) Respondent

Supreme Court of Canada

Judgment: December 15, 1961

Family Law — Family property on marriage breakdown — Assets which may be excluded from property to be divided — Division of property in joint tenancy

Real Property — Joint Tenancy — Conveyance by Joint Tenant of Interest Operates as Severance — Unregistered Transfer of land — Result Unaffected by Land Registry Act, B.C., S. 35 — No Duty on Registrar to Inquire Whether Transferor Dead or Alive.

The execution by a joint tenant of a transfer of his interest in land destroys the unity of title without which a joint tenancy cannot exist at common law. This result obtains under the Land Registry Act, RSBC, 1948, ch. 171, even though said transfer is unregistered, by virtue of the opening exception to sec. 35 of said Act, “Except as against the person making the same ….” Davidson v. Davidson, [1946] S.C.R. 115, at 119, which affirmed [1945] 2 W.W.R. 576, 62 B.C.R. 161, 9 Abr Con (2nd) 284, quoted and applied. Wright v. Gibbons (1949) 78 Comm LR 313, distinguished, on the ground that the section of the Tasmania Real Property Act under consideration therein contained no such exception.

An alienation of his interest by a joint tenan as a severance of the joint tenancy. Williams v. Hensman (861) 1 J & H 546, at 557, 30 LJ Ch 878, 70 ER 862, quoted. There is nothing in said Act which changes the effect of the common law in this regard.

In view of this result from the execution by a joint tenant of an unregistered transfer, the registrar is under no obligation, on the presentation of said transfer for registration, to inquire whether the joint tenant who executed said transfer is dead or alive.

Appeal from the judgment of the British Columbia Court of Appeal, (1960-61) 33 W.W.R. 625, 1960 Can Abr 1492, which allowed an appeal from the judgment of Manson. J., (1960-61) 33 W.W.R. 66, dismissed.

The judgment of the court was delivered by Ritchie, J.:

1 This is an appeal from a judgment of the Court of Appeal of British Columbia, (1960-61) 33 W.W.R. 625, reversing and setting aside the judgment of the trial judge, (1960-61) 33 W.W.R. 66, by which the appellant had been awarded damages against the Attorney-General of British Columbia under the provisions of sec. 223 (1) of the Land Registry Act, RSBC, 1948, ch. 171, which read as follows:

223. (1) … any person sustaining loss or damages caused solely as a result of any omission, mistake, or misfeasance of the Registrar, or any of his officers or clerks, in the execution of their respective duties under this Act, may bring and maintain an action in the Supreme Court against the Attorney-General as nominal defendant for the purpose of recovering the amount of the loss or damages and costs from the Assurance Fund.

2 On March 23, 1956, at which time the appellant and his wife were the registered owners of 3384 Southeast Drive in Vancouver as joint tenants, Mrs. Stonehouse, without telling her husband what she was doing, conveyed “all her interest in and to” this property to Mrs. Shirley Munk, her daughter by a former marriage. From the time of its execution until after his wife’s death on March 1, 1959, the appellant was unaware of the existence of this deed which remained unregistered until March 2, 1959, when Mrs. Munk made application for its registration at the office of the registrar of titles at Vancouver.

3 It is contended on behalf of the appellant that by reason of the provisions of sec. 35 of the Land Registry Act the unregistered deed from Mrs. Stonehouse to her daughter had no effect on the appellant’s interest as a joint tenant and that when this three-year-old deed was presented for registration the registrar should have been alerted to the possibility of the grantor having died since its execution and the whole title having thus become vested in the appellant as the surviving joint tenant. It is the failure of the registrar to make inquiry before he registered this deed as to whether the grantor was dead or alive that is now claimed to constitute “an omission or mistake” which was the sole cause of the appellant sustaining damage and which accordingly entitled him to bring and maintain the present action against the attorney-general in accordance with the provisions of sec. 223 (1).

4 When, as in this case, application is made for registration of a transfer of land, the title to which is registered, the registrar is placed under the duty described in sec. 156 of the Land Registry Act as follows:

156. … the Registrar, upon being satisfied that the conveyance or transfer produced has transferred to and vested in the applicant a good safe-holding and marketable title, shall, upon production of the former certificate or duplicate certificate of title, register the title claimed by the applicant in the register.

5 When Mrs. Munk applied for registration there was in force and uncancelled a certificate of indefeasible title which certified that the appellant and his wife were absolutely entitled to the property in question as “joint tenants” subject only to an outstanding judgment which Mrs. Stonehouse had registered against her husband’s one-half interest and by virtue of the provisions of sec. 38 (1) such a certificate is

… conclusive evidence … as against Her Majesty and all persons whomsoever, that the person named in the certificate is seised of an estate in fee-simple in the land therein described ….

6 Sheppard, J.A. has said of this section in the course of his decision in the court of appeal that (p. 632):

As the certificate is conclusive of the owner being seised as against all persons, … it would be conclusive against the Registrar.

7 Counsel for the appellant, however, contends that this section must be read in conjunction with sec. 156, and that once it is accepted that the unregistered deed did not sever the joint tenancy, it follows that the registrar could not be satisfied that a three-year-old deed from one joint tenant had “transferred to and vested in the applicant a good safeholding and marketable title” to an undivided one-half interest in the property until he had also satisfied himself, by inquiry if necessary, that the grantor of that deed was still alive. I do not, however, find it necessary to decide this question because I have formed the opinion that the joint tenancy in question was severed at the time of the execution and delivery of the deed to Mrs. Munk.

8 As has been indicated, the contention advanced on behalf of the appellant in this latter regard is based on the provisions of sec. 35 of the Land Registry Act, the relevant portions of which read as follows:

35. Except as against the person making the same, no instrument … executed and taking effect after the thirtieth day of June, 1905, purported to transfer, charge, deal with, or affect land or any estate or interest therein, shall become operative to pass any estate or interest, either at law or in equity, in the land … until the instrument is registered in compliance with the provisions of this Act …. [The italics are mine.]

9 In finding that the joint tenancy had not been severed by the execution of the unregistered deed and that the jus accrescendi operated in favour of the appellant immediately on his wife’s death so as to vest the whole title in him to the exclusion of Mrs. Munk, the learned trial judge relied, in great measure, as did the appellant’s counsel before this court, on the case of Wright v. Gibbons (1949) 78 Comm LR 313. This is a decision of the High Court of Australia which held that under the Real Property Act of Tasmania the registration of a document evidencing mutual transfers of their interests inter se between two out of three registered joint tenants had the effect of severing the joint tenancy. This case is cited as authority for the proposition that a registered estate as joint tenants can only be severed by some dealing which results in an alteration of the register book, but the decision is of necessity based on the provisions of the Real Property Act of Tasmania of which Riche, J. says at 78 Comm LR 326:

The scheme of transfer and registration is the only method by which any alienation or disposition of a share or interest in land may be made.

10 This observation clearly indicates that the statute under consideration in that case did not include the exception which is made a part of the British Columbia scheme of transfer and registration by the opening words of sec. 35 and in the absence of some evidence that those words were considered by the High Court of Australia, Wright v. Gibbons, supra, cannot be considered as an authority bearing in any way directly on the present case.

11 In Davidson v. Davidson, [1946] S.C.R. 115, which affirmed [1945] 2 W.W.R. 576, 62 B.C.R. 161, Estey, J. had occasion to consider the opening words of sec. 35, and speaking on behalf of this court at p. 119 he said:

These words, ‘except as against the person making the same,’ expressly make operative an unregistered instrument against the party making the same. Therefore, the transfer executed by the respondent was operative to transfer to the Minto Trading and Development Company Limited whatever estate, either at law or in equity, he was in possession of.

12 It is, therefore, apparent that the deed here in question operated as an alienation of the interest of Mrs. Stonehouse, and the very fact of her interest being transferred to a stranger of itself destroyed the unity of title without which a joint tenancy cannot exist at common law.

13 The effect at common law of a conveyance by one joint tenant to a stranger in title is accurately stated in Cheshire’s “Modern Real Property,” 8th ed., at p. 308, in the following terms:

… it has long been the law that one joint tenant can alienate his share to a stranger. The effect of such alienation is to convert the joint tenancy into a tenancy in common, since the alienee and the remaining tenant or tenants hold by virtue of different titles and not under that one common title which is essential to the existence of a joint tenancy.

14 The following passage from the decision of Vice-Chancellor Sir Page Wood in Williams v. Hensman (1861) 1 J & H 546, at 557, 30 LJ Ch 878, 70 ER 862, is to the same effect. He there says:

A joint-tenancy may be severed in three ways: In the first place, an act of any one of the persons interested operating upon his own share may create a severance as to that share. The right of each joint-tenant is a right by survivorship only in the event of no severance having taken place of the share which is claimed under the jus accrescendi.

15 There is nothing in the Land Registry Act which changes the effect of the common law in this regard as between the two joint tenants in the present case, and it follows that because the unregistered deed was operative against the share of Mrs. Stonehouse it had the effect of severing the joint tenancy. As Davey, J.A. has said in the course of his decision in the court of appeal (p. 629):

It is the binding effect upon himself of an owner’s dealings with his own property that effects a severance of the joint tenancy.

16 Under the provisions of sec. 35 an unregistered deed could not be operative “to pass any estate or interest either at law or in equity” other than that of the grantor, but the effect of Mrs. Munk’s deed was not “to pass” any such estate or interest of Mr. Stonehouse but rather to change its character from that of a joint tenancy to that of a tenancy in common and thus to extinguish his right to claim title by survivorship which is an incident of the former but not of the latter type of interest. The right of survivorship under a joint tenancy is that, on the death of one joint tenant, his interest in the land passes to the other joint tenant or tenants (Megarry and Wade, The Law of Real Property, 2nd ed., p. 390). But, on the execution and delivery of the transfer by Mrs. Stonehouse, she divested herself of her entire interest in the land in question. At the time of her death, therefore, there was no interest in the land remaining in her which could pass to her husband by right of survivorship.

17 The “omission or mistake” within the meaning of sec. 223 attributed to the registrar by the learned trial judge was that he “omitted to make inquiry as to whether the deed was delivered in the lifetime of the grantor and as to whether she was dead or alive.” The learned trial judge’s finding that there was no delivery of the deed during the lifetime of the grantor was properly set aside by the court of appeal and was not relied on by the appellant’s counsel in this court, and in my opinion, having regard to the state of the register and to the fact that the unregistered deed was operative to sever the joint tenancy at common law the registrar was under no obligation to inquire as to whether Mrs. Stonehouse was dead or alive at the time of the application for the registration of Mrs. Munk’s deed. As there is no suggestion of any other omission, mistake or misfeasance on the part of the registrar, the appellant’s claim must fail.

18 I would accordingly dismiss this appeal with costs.


Seniors Beware of Care For Life Agreements

Senioirs beware care for life

Seniors often fall victim to the best of intentioned Care For Life Agreements with a child, that often turn disastrous.

I was recently retained by a senior who advanced over $400,000.00 to his only son and his wife. He did so on the understanding they would purchase a home in which they all would live and the couple would care for the senior for the rest of his life. The house was purchased in the couple’s name. The senior lived downstairs in the home until four years later when his son met an untimely death. Title to the house was then transferred to the widow as surviving joint tenant whereupon she immediately evicted her father-in-law. The end result is the senior is now penniless and the widow has pocketed the monies and departed. In only four short years, my client went from having control of his life and finances to being a destitute and broken person.

This devastating fact pattern is unfortunately happening all too frequently. Unquestionably many lawyers and estate practitioners will be consulted with respect to these types of failed agreements in the coming years. As our population continues to age, more of these informal kinds of family arrangements will certainly be made. The typical scenario will involve a senior transferring property in exchange for a promise of lifetime care. Most often the property will be the family home which is transferred outright or into joint tenancy with the caregiver. Such arrangements typically will be made between a parent and one of their adult children or with another relative or trusted friend. Caregiver kids range form those that have never left home to the black sheep who returns after a long absence to take care of elderly parent and winds up with the house.

Often these arrangements are entered with the best of intentions, however the parties are naïve as to the careful thought and discussion required. Such agreements are usually oral and accordingly vague. They are likely done without any legal advice and the formalization of such agreements is usually almost non-existent.

From the senior’s perspective, the care agreement is perceived to be a simple solution to allow him or her to stay in the home until death. Many seniors may fear finishing their days, isolated, in a nursing home or other institution. From their perspective transferring the property to the caregiver, in return for continued care, may seem an ideal solution. They often look upon their prospective caregiver through “rose coloured glasses” and naively look forward to a harmonious life surrounded by loving family or friends who are grateful for the substantial financial benefit bestowed upon them.

There is often an incentive for both sides to enter such an arrangement. Many seniors of modest means purchased homes years ago. Those homes have now greatly appreciated in value. Potential caregivers are often relative newcomers to the real estate market and in the absence of some financial assistance likely could not afford to buy such a home.

Thus the demographics of our aging population, the high cost of real estate and the increasingly uncertain economic conditions, will combine to ensure the future proliferation of such arrangements. Just as certainly, there will be a boom in related litigation when such arrangements fail.

These informal agreements unfortunately leave disastrous legal problems for the parties when they fail. The results may be especially serious for the senior. The outcome is often the outright loss of the home leaving the senior extremely vulnerable. On the other hand, after many years service, the caregiver may become embroiled in litigation with rival siblings who suspect undue influence on the parent.

There are many legal pitfalls to informal care for life agreements. Invariably there is little consideration by the parties of the innumerable hypothetical questions that should be asked before concluding such an arrangement. A myriad of potential problems may thwart the success of such arrangements. They include control issues, unforeseen longevity or early death, incompatibility, depression, hospitalization, divorce or financial ruin of the caregiver.

A review of case law indicates that most care for life arrangements fail because of the breakdown of the relationship between the parties. The individual expectations are rarely discussed in advance, let alone reduced to writing. Such breakdowns may result in the senior being evicted from his or her former home. In effect they may lose their home and their financial security without receiving the emotional security of the promised long term care. Needless to say, such a loss will render a senior financially, psychologically and emotionally insecure.

A carefully drafted care agreement prepared by a lawyer will usually provide better protection to both seniors and caregivers. It is however, a simple fact that many people will continue to make informal arrangements on their own. There are a number of motives for avoiding the use of lawyers, ranging from false sense of economy to a preference to follow “a wish and a prayer” that things will work out. Indeed some seniors are even reluctant to mention the care agreement when providing legal instructions to transfer the property to a child or friend.

From a practice point of view, a lawyer or notary should always make detailed enquiries to determine the reasons a substantial asset is being transferred for little or no consideration. If the underlying facts indicate that a “care for life arrangement” exists, then written advice is essential urging the client to protect himself or herself properly documenting the agreement in writing. A detailed written agreement may also help minimize future family conflict. It can assist in explaining the arrangement to other family members who might otherwise challenge the land transfer after the senior’s death. At the very least, where the home or other real property is to be transferred to the caregiver, the legal adviser should urge the senior to register a life interest against the title.


Almost invariably the informality of care for life arrangements will create difficulties for courts charged with interpreting the actual terms of the agreement. A review of current case law indicates the challenge to courts faced with litigation involving such arrangements. It seems the courts are pulled between handling such matters as contract cases or treating such transfers as gifts. In the case of contracts they must apply the legal principles of contract law. In the case of gifts they may apply equitable principles such as undue influence, unconscionable transactions, or resulting trusts. The problem for those wishing to review the law is compounded by difficulty in finding the appropriate index titles. For eg. case law in this area may be reported under several different headings such as “undue influence”. It is likely not referenced to litigation involving “care for life” agreements.

While such agreements may appear to be contracts, the courts often presume that family members are relying on mutual trust and affection and do not intend to create legal relations in their arrangements. Thus, the most recent cases tend to treat such informal care agreements as gifts, rather than contracts.

While there are usually only fleeting discussions as to the terms of the care arrangement, the transfer of the property from the senior to the caregiver, will certainly create legal relations between them. Subsequent litigation usually involves the question of who owns what interest in the subject property.

If the courts conclude the care agreement amounted to a contract they are then expected to interpret the contract and determine any damages payable for breach of that contract. The law relating to contract will be involved, including:

(a) The intention of the parties to legally contract. Was there a meeting of the minds and the necessary intent to make a binding contract?

(b) Consideration. If there is a contract, then the promise to care will generally be found as the consideration for the transfer of the property;

(c) Terms of the Contract. An oral agreement to provide care for life will invariably raise many issues of the express and implied terms based on the reasonable expectations

(d) Uncertainty. In the decision of Folia v Trelinski, 1996 New Westminster Supreme Court Registry No. 19961104, a promise to care for a parent for life was found to be enforceable. It was held not to be uncertain.

In that case, a mother transferred her home to her daughter and son-in-law. In exchange they promised to care for her and to allow her continue to live in the home the transaction set aside. The relationship broke down very quickly.

The mother left the house and ultimately sued to have the transaction set aside. The caregivers asked the mother to vacate the home during the ongoing litigation.

The Courts enforced the agreement and stated that the mother had not been permanently evicted, and was only evicted for the duration of the litigation. Therefore, the act of asking the mother to leave the home, did not repudiate the contract. The mother was only allowed damages for the time period out of the home, as under the care agreement, the children were to provide care. In his reasons for judgment, the judge stated living together for the parties, particularly after the litigation, will be difficult, but not impossible.

Surely neither party was satisfied with that outcome


e) Breach of Contract

If an important term of the contract is not performed, the aggrieved party can sue for damages or, if the term of the contract is sufficiently important, then to treat the contract at an end.
Rescission of the contract is another remedy, where the Courts may order compensation so as to put the parties back to the position that they were in before entering the agreement.

The problem from the senior=s perspective, is that contract law can often be applied by the Courts in a somewhat harsh manner, just as it was in the Folia case aforesaid. Contract law is far more rigid in its application and remedies than legal remedies that flow from the Courts of Equity. As seen in the Folia v Trelinski case, the Courts gave a contract law remedy of damages only. The Court=s view that it is the parties that make their own bargain, and unless it is unconscionable, then the Courts may well enforce what may be a poor bargain between the senior and the care giver.

As previously stated, most courts tend to view the transfer by the senior as a gift. In Peter v Beblow 1993 1 S.C.R., the Court defined a gift as Athe intentional giving to another without expectation of remuneration

Probably the most common allegation made in this type of litigation is that of undue influence. This was the situation in Hicks v Hicks, (1997) B.C.J. No. 296, in which I was counsel . My client was a son of the senior and he successfully had a transfer of land set aside after his mother=s life, in favour of his

The amount of influence must amount to coercion. It is often difficult to prove, as there are rarely any witnesses to the influence that was exerted. The Court will investigate any suspicious circumstances

Another equitable remedy available to the Courts is to find that there is a resulting trust, which is an implied trust that is created when a person transfers legal title to another , (usually for little or no consideration), but intends to retain the beneficial interest. The Courts of equity presume a bargain, and in such a situation, the Courts will often presume that the property is held in trust by the recipient for the transferor or his or her estate. This presumption can be rebutted by evidence showing that the transfer was intended to be a gift.


As stated above, it is my view that these types of arrangements will continue to proliferate in the future, and will undoubtedly lead to an increase in litigation in this area. The B.C Law Institute ( formerly the Law reform Commission) is currently undertaking a project to investigate these agreements and determine what if anything should be done about them. For example, the State of Alabama has a statute that states A any conveyance of realty wherein a material part of the consideration is the agreement of the grantee ( the caregiver) to support the grantor( the senior) during life is void at the option of the grantor (senior).

It is important for seniors in particular to know that disastrous legal problems can occur, often to their detriment, when they enter into these types of care for life agreements with family or friends, and the arrangement does not work out. Seniors need to be educated about these pitfalls and encouraged to reduce the contract to writing, preferably with legal assistance. Practitioners, need to be educated to ask the right questions of the seniors when transfers of homes are occurring to family or friends for little or no consideration. If the practitioner fails to take adequate steps to protect the rights of the seniors in those situations, then the professional may be met in the future with an allegation of professional negligence.

Thanks and acknowledgment to Professor Margaret Hall, of the University of British Columbia, for her extensive work involving the Law Institute’s project on Legal issues affecting seniors and providing me with her consultation paper and background materials, which I made use of in the preparation of this paper.

The ultimate in elder abuse can even occur as a result of an incentive on the part of an abusive caregiver to hasten the death of the senior.

Delusions and Testamentary Capacity

Delusions are often overlooked as a cause for lack of mental capacity.

I was recently retained by a sister of a deceased person who advised that in her opinion, she had been disinherited from her late brother’s will as a result of his cocaine abuse. She asserted that he may have been delusional about her at the time he made his last will. My client was a nurse who had cared for her brother in previous years when he had been alcoholic and had suffered a stroke. They had been close. She gave me many examples of the deceased’s increasingly paranoid behavior prior to his death. This somewhat bizarre behavior had been noted in medical files.

My client explained that the pivotal event occurred when the deceased had asked her to call the police if she had not heard from him by a certain time. When she had not, she called the police. They attended and took the deceased to hospital. He was diagnosed as being in a cocaine induced psychosis. The police seized his guns. The deceased blamed the sister for the seizure and increasingly came to blame his sister for meddling in his life and causing virtually all his myriad of problems. His behavior was verified by many independent witnesses.

The deceased drew a new will disinheriting his sister and siblings, and left his estate to charity. His prior will left his estate to his sister and siblings.

The lawyer who drew the will noted that the deceased was angry at his sister for meddling in his affairs. He thought the deceased had testamentary capacity.

The case was complicated by the fact that the deceased was murdered. Maybe he was not paranoid after all?

Most legal challenges relating to capacity to make a will involve a testator suffering from senile dementia. These cases typically involve aged testators whose mental functioning may be so reduced by dementia, that they lack sufficient capacity to prepare a will. Most practitioners are aware of dementia related concerns and take appropriate steps to assess the mental status of the testator.

Far less frequently challenged however, are wills made by delusional testators. These involve cases where it is alleged that the testator suffered from a delusion that affected his or her decision concerning the will, to the extent that the testator was not legally capable of preparing a will.

The purpose of this article is to examine the law relating to testamentary capacity and delusions.


It is trite law to state that a person must be of “sound mind, memory and understanding” to be able to make a valid will. The testator must understand the nature and quality of the act of preparing a will.

In a leading Canadian case 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”.


A leading English case of Banks v. Goodfellow 1870 LR 5 QB 549, sets out four criteria for the test of mental capacity to make a will.

(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.

These four criteria, read together , have consistently been adopted by Canadian courts as the standard test for testamentary capacity.


delusion is a belief in a state of facts which no rational person would believe. Delusions are beliefs that are not backed up by reality. They may remain despite obvious evidence to the contrary, and the fact that nobody else believes them to be true. The delusions are often accompanied by hallucinations and/or feelings of paranoia, which act to strengthen confidence in the delusion. Delusions are distinct from culturally or religiously based beliefs that may be seen to be untrue by outsiders.

Delusions are a common symptom of several mood and personality related mental illnesses. These may include schizophrenia, shared psychotic disorder, major depressive disorder, and bipolar disorder. They are also the major feature of delusional disorder. Delusions are also often common amongst substance abusers of amphetamines, cocaine, and hallucinogens.

Delusional disorders are a form of psychosis in which a person has paranoid delusions, often long-lasting, with no obvious physical or medical basis for the delusion. Delusional disorders are relatively uncommon. They affect roughly 1 in 3333 people and most commonly start between the ages of 40 and 55 years of age. Delusions are suffered slightly more commonly by women than by men. The delusions may be somewhat permanent or transitory.

What is a Psychosis?

A psychosis is a mental disorder that is characterized by extreme impairment of a person’s ability to think clearly, respond emotionally, communicate effectively, understand reality, and behave appropriately. Psychotic symptoms interfere with a person’s daily functioning and can be quite debilitating.

People with paranoid delusions are often very suspicious about receiving any treatment. They typically do not believe that there is anything wrong with them and the suggestion that they get medical help, may only serve to exacerbate their paranoid delusions and thus make things worse.

Categories of Delusional Disorders

Individuals with delusional disorder suffer from long-term, complex delusions that typically fallen to one of six categories: persecutory, grandiose, jealousy, erotomanic, somatic, or mixed.

A brief explanation of the six categories is as follows:

1) Persecutory:

Individuals with persecutory delusional disorder are plagued by feelings of paranoia and an irrational yet unshakable belief that someone is plotting against them, or up to harm them. Paranoid delusions are beliefs of a suspicious nature, where the person believes something is not right with them, another person or persons, or the world in general, which poses serious problems for them.

2) Erotomanic :

Individuals with this disorder believe that another person, often a stranger, is in love with them. The object of their affection is typically of a higher social status, sometimes a celebrity. This type of delusional disorder often leads to stalking or other potentially dangerous behavior. Many of us have read about the long-time fixation of the Saskatchewan farmer and his obsessive love for Anne Murray.

3) Somatic :

Somatic delusions involve the belief that something is physically wrong with the individual. The delusion may involve a medical condition or illness or perceived deformity. This condition differs from hypochondria in that the deformity or illness is perceived as a fixed condition and not temporary.

4) Grandiose :

Individuals with grandiose delusional disorder have an overinflated sense of self-worth. Their delusion center on their own importance, such as believing that they have done or created something of extreme value. They often believe that they have a special mission in life.

5) Jealous :

Jealous delusions are unjustified and irrational beliefs that an individual spouse or significant other has been unfaithful.

6) Mixed :

Mixed delusions are those characterized by two or more of the aforesaid five categorizations.


A person may suffer from a delusion or delusions that might outwardly make them appear to be insane, and yet they may still be capable of making a will.

An insane person may still have testamentary capacity if he or she holds irrational beliefs that have no relation to his or her property or to the persons that might be expected to benefit. A delusion that affects testamentary capacity must be one of insanity, as opposed to capricious whims or idiosyncrasies.

It is often a difficult task for the court to decide whether the testator was merely eccentric in not adequately providing for those attacking the will, or alternatively, he was actually suffering from delusions that were the cause of the failure to provide for the disappointed beneficiary.

As stated in the case of Banks v. Goodfellow, ibid, “the existence of the delusion, compatible with the retention of the general power and faculties of the mind, will not be sufficient to overthrow a will, unless it were such as was calculated to influence the testator in making it.”

In fact the testator in that case had spent some time in an insane asylum and remained subject to certain fixed delusions that he was molested by evil spirits. The English Court of Appeal upheld his will because of the absence of any reasonable connection between the delusions and the dispositions made by the testator. His will was in fact rational in the sense that he left his assets to his nearest relative.

The courts have consistently found that, in order for a delusion to affect testamentary capacity, the delusion must have such a hold on the testator’s mind that it governs the making of the will.

Lucid Intervals

A further complication is the fact an individual may suffer general insanity and incapacity to make a will, but may experience lucid intervals. If the testator was in fact lucid for such an interval, then the Courts may determine that he or she had sufficient capacity to properly give instructions and execute a will.

An additional difficulty for the practitioner is the fact that people with delusions are often very firm in their beliefs and can appear totally rational and competent. They are often very good at concealing that they are in fact under an insane delusion.

The decision of Skinner v Farquharson 1902 32 S.C.R. 58 case held that the capacity required of a testator is that he should be able rationally to consider the claims of all those who are related to him and who according to the ordinary feelings of mankind are supposed to have some claim to his consideration when dealing with his property as it is to be disposed of after his death. It is not sufficient that the will upon the face of it should be what might be considered a rational will. The Court found that it is necessary to go below the surface and consider whether the testator was in such a state of mind that he could rationally take into consideration not merely the amount and nature of his property but the interest of those who by personal relationship or otherwise had claims upon him.

The Skinner decision went on to say at page 69 that “it is not the law that anyone who entertains wrongheaded notions, capricious whims, or absurd idiosyncrasies, cannot make a will. The existence of an insane delusion did not necessarily mean an absence of testamentary capacity. There must be evidence that the delusion, if it existed, controlled the testator’s mind and prompted him to execute the will in question.”

Justice Sedgewick stated at page 66 that an insane delusion is defined to be” a belief of things as realities which exist only in the imagination of the patient, and the incapacity of the mind to struggle against the delusion constitutes an unsound frame of mind.”

Justice Sedgewick also dealt with lucid intervals , and defined same at page 67 as: “… by the term `lucid interval’, it was said by Lord Thurston in A.G. v. Parnther (1793), 3 Bro. C.C. 409, 29 E.R. 962, is not meant `merely a cooler moment, an abandonment of pain or violence or of a higher state of torture, a mind relieved from excessive pressure but an interval in which the mind having thrown off the disease had recovered its general habit.’ In Waring v. Waring (1848), 6 Moo. P.C. 341, 354, 13 E.R. 715, it is said that `a lucid interval is not the mere absence of the subject of the delusion from the mind. By a lucid interval is not meant a concealment of delusions, but their total absence, their non existence in all circumstances and a recovery from the disease and a subsequent relapse.”

In Montreal Trust Co. v. McKay (1957) 21 W.W.R. 611 (Alta. T.D.) at page 613, the trial judge stated as follows:

“The testator may be capable of transacting business even of an intricate nature, but may be incapable of making a will if he has psychotic delusions towards the persons whom we should ordinarily consider as having a claim on his bounty at the time of the making of the will, and this is so even if he appeared to make a reasonable provision for these persons. Such factors are important in deciding if he was suffering from delusions. But if in fact it is proven that he had delusions directed towards those persons to whom he should normally be giving consideration, the testamentary capacity may not be there irrespective of what he actually provided in the will.”

A review of the case law relating to delusions and capacity makes it clear that before the court will set aside a will on the ground that the testator was subject to insane delusions, it must be sure that such delusions influenced the dispositions made by him by his will.

It is not always easy however to predict whether or not a court will find that the delusions influenced the dispositions made by the testator in the will, so as to find a lack of capacity.

For example, in the decision Momberg v. Jones 32 W.L.R. 513, the testatrix was dying of uremic poisoning, the result of the disease for which he suffered.the testatrix entertained the entirely unfounded belief that her husband had poisoned her. The court nevertheless found that the testator had testamentary capacity.

On the other hand, the following are three examples of cases where the courts found the delusions were such as to make a finding of lack of testamentary capacity:

a) Ouderkirk v Ouderkirk ( 1936) S.C.R. 619:

In this case the testator labored under the permanent delusion that his wife who was 70 years of age, was entertaining men for immoral purposes. He left his wife the sum of 5 dollars a year, and stated that he wanted to provide a home for her.

The Supreme Court of Canada held that the testator was suffering under delusions, and that the delusions were undoubtedly of the nature calculated to affect the disposition of his property. Since the delusions were of such a nature, the condition of testamentary power failed.

b) Reference Re Grant Estate (1944) 1 W.W.R. 71

The Manitoba Court of Appeal held the testator who believed he was hounded by the devil was mentally incompetent because he had been influenced to dispose of his property in a way that he would not have done if he had been of sound mind. The court followed the Ouderkirk decision.

c) Re Cadman 28 Man.R. (2d) 130

In this case a testatrix named her niece as sole beneficiary in a 1977 will. A close relationship had existed between the testatrix in the niece until 1981. The testatrix suffered a stroke, and formed the impression thereafter that her niece was attempting to “clean her out “. In a 1982 will she testatrix named different beneficiaries in a 1982 will. The niece was successful in setting aside this 1982 will.

The evidence disclosed that the testatrix suffered from delusions as to her niece’s intentions, to the extent that the testatrix was incapable of making sound decisions of the time of making her 1982 will. The court held that no rational motive existed for the testatrix to change her beneficiary.

An interesting recent case is Flurry, executor of Fuller v Fuller, and the Philadelphia Church of God. Stanley Fuller died in July 2000, his will distributed $1,000 to his three adult children and gave the rest, approximately $1 million, to his church. His three children alleged he was delusional when he made his will.


Mr. Fuller was a very religious fellow. He forbade the installation of running water, electric power, or telephone in the family home. Mr. Fuller’s word was the law on the homestead. At all material times Mr. Fuller was a devout and devoted member of the church and its predecessor the Worldwide Church of God. By all accounts Mr. Fuller was a deeply religious person. He accepted his church’s doctrine and lived by its precepts.

In 1995 he sold his property and netted approximately $1.8 million. He gave each of his three children a gift of $200,000. He told them to spend the money wisely.

He tithed $260,000 to his Church. He had a history of tithing.

In 1995 Mr. Fuller made Rosemary a joint owner of his bank accounts and investment certificates. He sought and heeded her advice concerning the investments he should make. The trial Judge found that in 1995, at least, he trusted her completely.

In 1996, Mr. Fuller told Rosemary that he did not want his money to be locked into inflexible and non-liquid investments. He said that he wanted to have his money readily available because according Church doctrine he might have to retreat with his money to a ‘place of safety’ on only two weeks notice. Rosemary was not keen on this idea, and said so to her father. She pointed out that the investments she recommended would return higher interest than the more liquid investments he wanted to use. Mr. Fuller replied that he was not concerned about the lower interest rate.

During this conversation she questioned the bona fides of the Church. She suggested that the head of the church was not the good man Mr. Fuller believed him to be; that the Church was after his money; and that he might come to a tragic end such as the poor unfortunates at Jonestown, where hundreds of Jim Jones’ followers died by poison. Rosemary testified that as soon as those words were out of her mouth, her father took an expression of deep anger and she knew that she had gone too far in her questioning his faith in his Church. From that point on relations between her and her father cooled and became strained.

In the fall of 1996 Mr. Fuller implied that Rosemary had stolen $3500 while he was away. This hurt her. She came to understand he subsequently found the money, but he never apologized.

In November 1996,Rosemary asked to borrow $55,000 at a better interest rate than he was earning, and he refused the loan.

In March 1997 he instructed a lawyer to prepare a new will leaving each child $1000 and the residue to the Church. He gave her four reasons for his wishes:

a) He felt Rosemary had railroaded (Ms. Ongman’s words) him into making the 1993 will;

b) The $200,000 he had given to the children in 1995 was their inheritance;

c) He wanted the children to have only another $1,000 each from his estate; and

d) He wanted his church to have the balance of his estate when he died.

The lawyer wanted a medical certificate as to his competency. This was provided by the family physician who stated that Mr. Fuller passed two mental state examinations and was competent to sign a new will. The will was executed.

A geriatric specialist saw the deceased for the first time in September 1998. He found that he had an atypical dementia in that his social function was largely preserved, but that he had profound and disabling delusions. He interpolated back to say that the deceased did not have capacity when he signed the March 1997 will. A neurologist, a psychiatrist and a psychologist all agreed with the geriatric physician. They found he was severely paranoid and delusional due to Alzheimers disease.

The Judge put weight on a neighbours evidence that he cut his children out of his will as they were out to rob him. There were other examples of paranoid ideation towards his children.


The Judge found that the will was invalid due to delusions caused by a disease that poisoned his affections for his children.

The only discussion of the law centered on the Judges statement that “the authorities are clear that only delusions that bear directly on and influence the testator’s deliberations may bottom an attack on testamentary capacity. “

The Judge went to say that if he is wrong, then under the Wills Variation Act, he would later the will to provide 50% to the Church and %50% equally to the three children.

I am of the opinion that the case is important in that it recognizes that the frequently held opinions of demented persons that their loved ones are out to rob them, or such paranoid ideation, is in fact delusional, and thus no testamentary capacity.


In Re Barter Estate, (1939) 2 D.L.R. 201, the New Brunswick Court of Appeal dealt with a will that was attacked on the grounds that the deceased had been suffering from insane delusions with respect to his daughter for some time prior to making his will. It was alleged that these delusions affected him in the making of bequests to his daughter.

The Probate Court Judge found that, with one exception, the alleged delusions appeared to be transitory. He upheld the will, holding that the burden of proof was on the party setting up the insane delusions. He ruled that those opposing the will had not satisfied that burden.

The appeal was allowed, and a finding was made that the Probate Court Judge was in error as to the burden of proof. Once the delusions affecting his daughter had been proved to exist, it was for the proponents of the will to remove them.

The Court stated “the burden of proof in the sense of the burden of “going forward” in a case of this kind is upon the party alleging insane delusions but when evidence of such delusions has been given, even though not conclusive or not preponderant, a jury, if there is one, must be directed that if their minds are left in doubt they must find against the validity of the will. The same rule must govern a Judge sitting as a jury. In the present case it was for the proponents of the will to adduce preponderating evidence that the delusions or insane ideas could not reasonably be conceived to have had anything to do with the deceased’s power of considering the claims of his relations upon him and the manner in which he should dispose of his property.”

In another Supreme Court of Canada decision, O’Neil v. Royal Trust Co. [1946] S.C.R. 622 (S.C.C.) the testatrix was subject to hallucinations and delusions which “at times” disturbed her but “were never very fixed at any time”. The testator smelled either gas or dusting powder in her room and she was tasting poison in her food. It was conceded that she was generally rational, that she had a good memory and that she was conversant with her husband’s estate and with the contents of the two first wills.

At page 632 Justice Estey made the following comments:

“The decision of Banks v. Goodfellow makes it clear that these early authorities go too far. That while the burden of proof always rests upon the parties supporting the will, and that the existence of proved hallucinations and delusions often presents a “difficult and delicate investigation”, it remains a question of fact to be determined as in civil cases by a balance of probabilities. In the determination of this fact the contents of the will and all the surrounding circumstances must be considered by the jury or the Court called upon to arrive at a decision. If satisfied that at the relevant time the testator was not impelled or directed by hallucinations or delusions and was in possession of testamentary capacity, the will is valid.”


I venture to say that most practitioners are not attuned to the need to be on guard for delusional clients. The delusional client may be extremely difficult to detect while taking instructions as the client will not necessarily appear psychotic or strange. The client may present as rational and sane, but hold very firm opinions that could in fact be delusional. The client will most likely be guarded or even refuse to be closely questioned about his or her firm beliefs.

Being more aware of this fascinating area of potential concern will assist the practitioner in dealing with such a client.