Assessing Mental Capacity: MMSE Mental Capacity Tests

Accessing Mental Capacity: MMSE Mental Capacity Tests

MMSE mental capacity tests, also known as Mini Folstein tests are frequently used by the medical profession as a screening test in assessing mental capacity.

Lawyers frequently attempt to tender the results of the MMSE results as evidence of lack of mental capacity.

The courts have determined that such tests are simply a screening test and are not determinative of capacity – they are merely an indicator that tells a doctor as to whether a full capacity test should be made.

This is particularly the case when the test is administered on a simple occasion as it is well-known that such scores can rise or fall over a period of time.
See Lazlo v Lawton 2013 BCSC 305.

Courts can therefore reach a conclusion regarding mental capacity that conflicts with the medical diagnosis or the outcome of on MMSE or other medical test.

In Lowery v . Falconer 2008 BCSC 516 the family doctor examined the testator shortly before she signed the will and concluded that she was competent. Several months later, the doctor performed, thenE and confirmed that she was capable of managing her own financial and legal affairs.

Despite these medical findings, the court concluded that the testator lacked capacity, and set aside the will.

In Shkuratoff v Shkuratoff 2007 BCSC 1061 the court expressed apprehension about reliance on the score results of the MMSE in the absence of a robust explanation of the role that it plays in making the legal determination of testamentary capacity.

The court looked to the circumstances surrounding the assessment to determine the reliability and wait to be attached to the medical evidence.

In British Columbia Public Guardian and Trustee v Egli 2003 BCSC 1716 the court reviewed the admissibility of expert evidence to support a finding of incompetence. In the course of that review, the court noted that courts of sometimes allowed expert evidence, but have been very careful about the weight to be attached to that evidence. She cited Lynch v . Lynch estate (1993) 138 AR 41 (QB) where the court allowed counsel to lead psychiatric evidence about whether the individual was suffering from Alzheimer’s disease at a particular point in time.

However, the court diminished the weight which could be attached to this evidence, noting that the circumstances of the assessments were not apparent from the record, the reasons for the doctor’s conclusions were unclear, and his qualifications were unknown. Further, the judge noted that the doctor was not cross-examined on his assessment.

In Egli , the court further commented that the opinion sought to be admitted for the purpose of proving the truth of the opinions are not straightforward or mechanical observation. The opinions are psychiatric in nature. They are steeped in the expert skills of a geriatric mental health worker. They are not of kin to observation, such as blue toes. The opinions about Mr. Egli’s global assessment of functioning, his scores in the various mini mental status exams, and the diagnoses of his cognitive functioning. Our subjective opinions, requiring review of information, interviews, and deliberation of the author of the opinions. The court had not heard any evidence concerning the qualifications of the individuals who made the diagnoses and cannot therefore assess the degree of reliability that should be ascribed to the opinions.

It is also to be noted that a mental capacity assessment must be done by a doctor, and the nurses not qualified. Cooper v . Cooper 2000 BCSC 1650 at paragraph 4

Dysfunctional Families: The Predator Spouse

Dysfunctional Families - Disinherited

A disturbing and increasing trend in dysfunctional families is the advent of the predator spouse who takes advantage of elderly victims and assumes control of usually financial affairs and marries the victim in short order.

Even if the family had been reasonably functional prior to this event, the interference of the predator spouse upon an elderly loved one can wreak severe consequences for both the victim and his or her family.

Every estate litigator has likely had experience with the predator spouse.

Typically they are much younger women, often a caregiver, who single out an elderly and vulnerable man who is typically recently widowed , and does so for the purpose of personal profit and exploitation.

Family members are usually cut off, excluded from the life of their loved one and not informed of the marriage ceremony.

The goal of the predator spouse is to enter into a legal form of marriage, while making the victim increasingly excluded from family members and totally dependent upon the predator. The overwhelming control exerted by the predator spouse is often backed up with the terrifying threat of putting the elderly spouse in a care facility .

In my experience the elderly widower is often cognitively impaired, significantly depressed and unable to care for himself. The predator spouse is often skilled at befriending such victims and often has a history of prior marriages for the same exploitive purpose.

The children are often beside themselves as they see both their family connection totally disrupted, as well as their possible inheritance going to an intervening stranger.

The relationship usually begins as either a hired caregiver or as someone who quickly befriends the elderly person and gains his trust through companionship and assistance. Many such men find the younger female predator to be sexually irresistible and cannot avoid the “temptation”.

The marriage ceremony often occurs in secret within several weeks of the start of the insidious relationship.

One of the major difficulties with such marriage ceremonies is that they are often very difficult in law to set aside, primarily on the basis of lack of mental capacity.

The courts generally speaking have had difficulty in defining exactly the test for capacity to marry, but seem to have adopted a standard that it is to be treated as quite low on the basis that marriage is a “simple contract.“ The judicial reasoning in my opinion could not be more incorrect given the complexity of current matrimonial laws, particularly as they relate to the division of property and assets, and the consequent  difficulty of divorce in present day.

Such judicial reasoning continues however that marriage is a “simple contract” requiring very little cognitive reasoning to understand the consequences of same.

Cases of the Predator Spouse

There has been at least one judicial decision where the court recognized the effect that a marriage has on one’s property and children and a higher standard of capacity to marry was applied.

That decision was in Alberta case of Barrett Estate v. Dexter 2000 ABQB 530. In that decision, the deceased had been tested for mental capacity prior to his death, and was found to have significantly impaired cognitive function and judgment. A geriatric physician opined that a person must understand the nature of the marriage contract, the state of previous marriages, one’s children and how they might be affected.

Probably my most egregious case was a widower who began to frequent the services of a prostitute who “specialized in seniors”. Within a short while the prostitute moved in with the elderly man, changed the locks and telephone number and cut him off from his three children. They married shortly thereafter, she arranged for him to change his will to provide for her exclusively, and  within three months of their marriage, she physically beat him to death, and was convicted of his murder.

Another successful challenge to a predator marriage was in Juzumas v Baron 2012 ONSC 7220 where the marriage was set aside on the basis that the contract of marriage was unconscionable due to the inequality of bargaining power, and undue influence.

The court stated as follows:

8     In his text, The Law of Contracts, John McCamus addresses the “cluster of doctrines” that apply “where a stronger party takes advantage of a weaker party in the course of inducing the weaker party’s consent to an agreement.” John D. McCamus, The Law of Contracts, 2nd ed. (Toronto: Irwin Law, 2012), at p. 378. The cluster of doctrines includes undue influence and unconscionability. If any one of these doctrines applies, the weaker party has the option of rescinding the agreement.

9      McCamus describes the equitable doctrine of undue influence as providing a “basis for setting aside a gift or a transaction where the transfer of value has been induced by an ‘unconscientious use by one person of power possessed by him [or her] over another.'” McCamus, at p. 402; see also Morrison v. Coast Finance Ltd. (1965), 55 D.L.R. (2d) 710 (B.C. C.A.), at p. 713; and Knupp v. Bell (1968), 67 D.L.R. (2d) 256 (Sask. C.A.), at p. 259. He addresses the distinction between the two categories of undue influence: actual and presumptive undue influence. As an example of actual undue influence, McCamus refers to Craig v. Middleton, [1970] 2 All E.R. 390 (Eng. Ch. Div.), in which a caregiver threatened an elderly dependent with abandonment: McCamus, at p. 403-404. The onus is on a plaintiff to establish actual undue influence.

10      A presumption of undue influence arises from the nature of a recognized relationship (e.g., solicitor and client, doctor and patient etc.). The presumption can also arise from the particular circumstances of the case, where one party has the ability or potential to “dominate the will of another, whether through manipulation, coercion, or outright but subtle abuse of power.” Goodman Estate v. Geffen, [1991] 2 S.C.R. 353 (S.C.C.), at p. 377.

11      Such a presumption is rebuttable by evidence that the transaction was an exercise of independent free will: Geffen, at p. 379; and Bank of Montreal v. Duguid (2000), 47 O.R. (3d) 737 (Ont. C.A.), at para. 24-25. Evidence of free will may be demonstrated by evidence of independent legal advice, or at least an opportunity for the individual

Suspicious Circumstances

Suspicious Circumstances

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

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

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

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

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

1.the poor health of the aged testator;

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

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

4. the lengthy period of separation from Carlos;

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

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

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

Dementia disease

Dementia disease

An epidemic of dementia disease is predicted to occur within the next 15-20 years.

The most common types of dementia disease such as Alzheimers, frontotemporal dementia, vascular dementia, and Lewy Bodies are expected to dramatically increase by %50  over the next 15 -20 years as our population ages. Dementia is often present in various estate disputes such as lack of mental capacity when signing a will or power of attorney.

The implications of a dementia are substantial for the patient and extremely far-reaching, not only for the patient, but also for the family.
Family members often assume the role of caregivers or guardians, which can be a complete role reversal from previous years.
It is important to remember that patients with dementia usually do not fully understand their diagnosis, prognosis, and treatment options. The family members must be trained regarding the patient’s safe housing and  care.
Because of the lack of personal insight, the demented person may not fully understand that certain activities will no longer be safe for them to do, such as driving or using power tools.
Behavioral problems such as agitation or aggression are often common in patients with dementia, and  can  cause burnout amongst family members who are burdened with their care.

Alzheimers is perhaps the most well known type of dementia but several types of dementia exist.

By definition a dementia constitutes impairment of at least one dominant domain of cognitive function ( such as abstract thought, executive functioning, language, or visual/spatial skills) that results in daily activity  impairment. The diagnosis of dementia requires the exclusion of other cognitive impairments such as delirium and depression.

Many seniors are affected by depression and the cognitive effects of depression can vary in scope and severity and may ultimately result in dementia, but its effects can often be reversed. Dementia and depression often frequently co -concur in seniors.

There is both cortical and sub cortical dementia. Cortical dementias are typically progressive and degenerative and ten to be associated with impaired language skills ( aphasia), perception, reasoning, problem solving, and recall.

By contrast sub cortical dementias  may be  progressive, static or reversible and are associated with cognitive slowing, emotionality, such as apathy or depression, and deficits in attention, arousal, and processing speed.


Alzheimer disease is the most common type of dementia that affects approximately 1/3 of persons aged 85 years or older in the United States.
One of its telltale characteristics a short term memory loss, coupled with impaired judgment, confused or vague speech, and poor insight.
The aspect of poor insight commonly causes patients to think there is not much  wrong with their memory or health as their social skills are often preserved with patients often being described as “pleasantly confused”.
As the disease progresses, however the patient often exhibits changes in personality, agitated behavior or both.
The typical disease course from symptom onset to death is 6 to 9 years.

Dementia with Lewy Bodies

The disease typically occurs between the ages of 50 and 60 years and is slightly more common in men.
The disease presents with a cognitive profile marked by prominent impairment of attention, Visuospatial functioning and executive function.
The patient typically is more demented in his or her attention spatial ability rather than the prominent short-term memory loss of Alzheimer’s disease.
Visual hallucinations may also occur.

Frontotemporal Dementia

This is the third most common form of dementia, whose onset most commonly occurs between ages 50 and 60 years, but can be 15 years earlier or 15 years later.
The most striking feature that brings the patient to clinical attention is a notable personality change with poor insight.
The behavior is typically impaired social conduct, poor impulse control, sexually inappropriate comments or behaviors, in violation of interpersonal space.
Depending on where the disease occurs in the frontal lobes, the behavior can also manifest itself as passivity, poor personal hygiene and mimicking behaviors.
This type of dementia rapidly progresses over a 5 to 10 year course.

Vascular Dementia Disease

After Alzheimer’s, vascular dementia is the second most common type of dementia, accounting for 10 to 50% of all cases of dementia among adults 65 years or older. It is often referred to as cognitive impairment caused by strokes or mini strokes.
Impairment in vascular dementia ranges in its severity and type depending on the degree of tissue damage to the small blood vessels.
Hypertension and diabetes are significant risk factors that can lead to vascular dementia.

Dementia Due to Parkinson Disease

 Patients with Parkinson disease can develop slowly progressing dementia that usually occurs in the latter stages of the disease, typically about 10 years after its onset.
For patients with dementia due to Parkinson disease, the incidence of dementia it will increase with the greater physical impairment, and the dementia is more pronounced when rigidity is the most prominent  symptom and less pronounced when tremor is the most prominent symptom.
The cognitive profile is notable for predominant executive dysfunction as well as impairment in them in attention and memory.
Approximately 1/3 of Parkinson patients will develop this dementia, which will increase to almost 50% after 15 years from the initial onset of Parkinson disease.

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