Wrongful Death Claims and The Family Compensation Act

Tegemann v. Pasemko 2007 BCSC 1062 is a good case example of the principles for compensation under the Family Compensation act of British Columbia.

In this particular case the deceased was a 50-year-old mother, who is survived by her husband aged 49 at the time of the accident, and two young children aged six and three at the same time.

The plaintiff based his claim under the following sections of the Family Compensation act:

Action for death by wrongful act, neglect or default

2 If the death of a person is caused by wrongful act, neglect or default, and
the act, neglect or default is such as would, if death had not resulted, have
entitled the party injured to maintain an action and recover damages for it, any
person, partnership or corporation which would have been liable if death had
not resulted is liable in an action for damages, despite the death of the person
injured, and although the death has been caused under circumstances that
amount in law to an indictable offence.

Procedures for bringing action

3 (1) The action must be for the benefit of the spouse, parent or child of the
person whose death has been caused, and must be brought by and in the
name of the personal representative of the deceased.

The court or jury may give damages proportioned to the injury resulting from the death to the parties respectively for whose benefit the action has been brought.
The amount recovered, after deducting any costs not recovered from the defendant, must be divided among the parties in shares as the court or jury by their judgment or verdict directs.

In assessing damages any money paid or payable on the death of the deceased under any contract of assurance or insurance must not be taken into account.
In an action brought under this Act, damages may also be awarded for any of the following expenses if the expenses have been incurred by any of the parties for whom and for whose benefit the action is brought:

any medical or hospital expenses which would have been recoverable as damages by the person injured if death had not ensued;
reasonable expenses of the funeral and the disposal of the remains of the deceased person.

It is most noteworthy that the action may only be brought for the benefit of the spouse parent or child of the person whose death has been caused, and that it must be brought in the name of the personal representative of the deceased.


There are a number of heads of damages that can be claimed such as:

Loss of care, guidance and affection;
Loss of inheritance;
Loss of dependency;
Loss of household and childcare services;
Special damages.
Loss of financial support (usually the largest monetary claim)
loss of future earnings

Many of the heads of damages such as financial loss, are calculated with the assistance of actuaries and/or economists based on financial analysis of past income tax returns etc.

Needless to say it can be very complex to determine.




Once a judge reaches the various numbers of the heads of damages the judge often then takes into account the various contingencies of life such as the husband’s statistical chances for divorce and/or remarriage that should be deducted from such an award.

In this particular case the court deducted 20% of his calculation for loss of dependency, based on the reasonable expectation that the husband will remarry.

Capacity To Make a Will

Capacity To Make a Will


A person making a Will must understand:


The nature of the act of making a Will:

a. That he will die;

b. That the Will will come into operation on his death, but not before; and

c. That he can change or revoke the Will at any time.


2. The effects of the Will:


a. Who the executor is, and possibly why he or she is being chosen as

b. Who gets what under the Will;

c. Whether a beneficiary’s gift is absolute, or whether it is limited or
conditional in some way (for example a life interest, or a legacy
contingent on attaining a particular age);

d. Whether he has already made a Will and, if so, how and why the new one
differs from the old one.


The extent of the property being disposed of:

a. The extent of the property being disposed of;

b. The fact that any jointly owned property might automatically pass to the
other joint owner, regardless of anything the will says;

c. Whether there’are benefits payable on his death which would be
unaffected by the terms of the will: for example, the proceeds of an
insurance policy, or pension rights;

d. Whether he has any debts, and how they are to be paid


A person making a Will should be able to comprehend and appreciate the claims
to which he ought to give effect. Why are some beneficiaries preferred and others
possibly excluded? For example:

a. Some may be better provided for than others;

b. Some may be more deserving than others because they have been kind to
the testator;

c. Some may have upset, offended or disregarded him;

d. Some may be in greater need than others because of, say, their age or state
of health.

e. It is essential that no delusions should influence the testator and bring
about a disposal of his property which would not have been made if he
was not mentally disordered.


5. The testator should not be regarded as lacking testamentary capacity merely because he makes a will which would not be made by a person of ordinary prudence.

Do NOT Put Your Kids On Title Of Your Home

No Children OMonopolyn the Title Of Your Home

After witnessing parents putting their children on title to their home as joint tenants for over 40 years, I have emphatically concluded that in almost every instance is a bad idea.

While it sounds so simple that the parents simply add a child as a joint tenant to their title, this type of simple do-it-yourself estate planning remedy is typically very misunderstood and often abused.

The parent is often under the illusion that doing so is a cost-effective and simple remedy of avoiding probate fees, and given that probate fees are only 1.4% of the value of an estate over $25,000, it is a high price to pay in terms of risk given the minimal reward.

More worrisome to the estate litigator is the tendency of parents to see their children through rose-colored glasses.

They seem to want to believe that if they put the house in joint tenancy with one child, that the child will do the right thing and share the proceeds equally with siblings.

In my experience this rarely happens.

The other siblings will in such circumstances attack the gratuitous transfer of the title between the parent and a sibling, on the basis that it was not a true gift, and that the child owns the house in trust for the estate.(see Pecore v Pecore SCC 17) .

One of the biggest risks in areas such as Vancouver where there has been dramatic increases in property values, is that at the time of the transfer there is a deemed tax disposition and a loss of the principal residence exemption on the portion of the property subsequently held by the child. The child could find themselves owing a significant capital gains tax after the passing of the parent who share will remain his or her principal residence and be tax-free.

Other downside risks is that each owner on title has a right to possession of the property and this can result in stress and possible litigation such as a forced sale of the property under the partition act.

Another major concern these days is that the child spouse could have a strong claim for an interest in the property on separation or divorce if it was used for a family purpose.

Summary the child could be attacked by creditors or bankruptcy or encumber their at half of the property and thus put the parents household at risk.

My advice would be to have any practitioner who upon being requested to put children on title to delve very deeply into the family history and motivations of the client. It is necessary to point out the risk such as the possible loss of control, wrists of potential income tax consequences, please note that the probate fees saving is minimal, and that there are a number of risks that far outweigh any such simplistic estate planning tool.

Partition and Sale Rejected-Hardship

Forced Sale of Jointly Owned Property

Forced Sale of Jointly Owned Property

In Mowat v Dudas 2012 BCSC 454, the court exercised its discretion to refuse an order for a forced-sale of the Cypress Gardens condo development of 177 units owned by 135 different owners.

Each was a co-owner of the entire stratified complex. Some owners wanted the property sold , while others vigorously opposed same.

The court basically examined each of the numerous respondents circumstances and declared that each case must be examined separately to determine whether good reason existed to refuse the sale.

The court found that a sale would force many vulnerable people out of their homes, including young children, single parents, the elderly, the infirm, and people a very limited financial means. Many could simply not afford a comparable property nearby and would be forced to move far away.

Joint ownership of property whether it be in joint tenancy, tenants-in-common, or as a strata owner in a complex, is becoming increasingly common and more complex as time goes on.

It was only just over 40 years ago that we began to see strata lot ownership, which in itself has developed into a very complex area of law.

The following extract is a very good summary of the legal notions of serious hardship and the court’s discretion under the partition of property act of British Columbia

Discretion Under the Partition of Property Act

[141] All the parties to this petition agree that the Court has a discretion not to order a sale under the Partition of Property Act. The use of the word “may” in ss. 2, 7 and 8 has been held to create such a discretion: Evans v. Evans, [1951] 2 D.L.R. 221 (B.C.C.A.).

[142] Section 6 describes circumstances in which the Court “shall” order a sale, but with the limitation “unless it sees good reason to the contrary.” As set out above, s. 6 has no application in the present case, as it has not been shown that the owners of a 1/2 or upwards interest are in support of the petition.

[143] Counsel have referred me to a number of trial decisions in which the nature of the discretion not to order a sale has been considered, including Hayes v. Schimpf, 2004 BCSC 1408; Machin v. Rathbone, 2006 BCSC 252; Zackariuk Estate v. Chepsiuk, 2005 BCSC 919; Dunford v. Sale, 2007 BCSC 1422; Zimmerman v. Vega, 2011 BCSC 757; Richardson v. McGuinness, [1996] B.C.J. No. 2636 (S.C.); Riser v. Rawlings, 2008 BCSC 1050; and Jabs Construction Ltd. v. Callahan (1991), 61 B.C.L.R. (2d) 383 (S.C.). The most useful statements of principle, however, are found in the following decisions of our Court of Appeal.

[144] A useful starting point is Harmeling v. Harmeling (1978), 90 D.L.R. (3d) 208 (B.C.C.A.), a decision of our Court of Appeal sitting in a five-justice division. There the Court rejected any approach that would limit the discretion to cases where there was a want of good faith, or vexatious intent or conduct or malice in taking the proceedings. Rather, as Seaton J.A. wrote for the majority at p. 212:

In my view we should not limit the discretion in that manner. I think that we ought to accept without qualification the general statement that there is a prima facie right of a joint tenant to partition or sale and that the Court will compel such partition or sale unless justice requires that such an order should not be made.

[145] The nature of the discretion was further clarified in Bradwell v. Scott, 2000 BCCA 576. There, the section under consideration was s. 6, but the Court opined that the exercise of discretion under that section would not be significantly different from the discretion under the other sections of the Partition of Property Act. The Court held at paras. 43-45 that the exercise of discretion would depend on the particular facts of each case:

It does not appear from my reading of either the majority or minority reasons for judgment in Harmeling that the section then equivalent to our present s. 6 was under consideration. Rather, the section considered by both judges who wrote in Harmeling, as indicated above, was s. 3 (now s. 2), and in particular the words “may be compelled.” We are bound by the majority opinion that those words confer a discretion to refuse an order where “justice requires that such an order should not be made.”

This case, however, turns on the interpretation of s. 6, and the meaning to be given to the words “unless it sees good reason to the contrary.” Having said that, I am unable to see any real difference between the discretion conferred by this language and that described by Mr. Justice Seaton as arising under s. 3 (now s. 2).

To the extent that “serious hardship” was said in Dobell [Dobell v. Oman, [1998] B.C.J. No. 504, (6 March 1998), Vancouver Registry, A972782 (B.C.S.C.)] to be the test for “good reason to the contrary” I would respectfully disagree. Serious hardship to a respondent may be a proper ground for refusing an order for sale, as might lack of “good faith, vexatiousness or maliciousness” on the part of the petitioner. But these are not the exclusive measure of “good reason.” I agree with Mr. Justice Seaton that we should not limit the discretion by creating a general rule that might serve to justify refusal in any given case. The facts and circumstances of each case must be examined to determine whether a good reason, of whatever sort, exists for refusing the order.

[Emphasis added.]

[146] At paras. 34-35, the Court also addressed the question of onus or burden of proof:

In para. 9 of the chambers judge’s reasons (quoted above at para. 13) he said that it was not possible to determine who was at fault for the various confrontations and altercations which occurred between the parties. The Scotts contend that in leaving this issue unresolved, the chambers judge effectively placed upon them the onus of proving that the Bradwells were not entitled to equitable relief. They say this is an error because as the parties seeking equitable relief, it was for the Bradwells to establish their entitlement to same. As they failed to establish their entitlement, it is the Bradwells who should bear the risk of non-persuasion.

This argument is closely related to the Scotts’ jurisdictional argument, dealt with above, and in my respectful view it must fail for essentially the same reasons. There is no requirement under s. 6, either as a condition precedent to jurisdiction, or otherwise, for the petitioner to prove that he comes to court with “clean hands”, and is otherwise entitled to equitable relief. The section says the court must order sale of the property “…unless it sees good reason to the contrary”. This language is neutral in terms of onus. It is for the court to assess the evidence and to determine whether justice requires that such an order be denied. In practical terms, it would be for those opposing the application to put before the court evidence tending to establish a good reason for refusing it. In any event, I can see nothing in the statute or in the cases decided under it, to support the Scotts’ submission.

[Emphasis added.]

Serious Hardship

[147] As set out in Bradwell, serious hardship is one circumstance that may provide a proper ground for refusing an order for sale, although it is not the exclusive measure of when that discretion may be exercised.

[148] Phillips v. Phillips (1980), 24 B.C.L.R. 194 (C.A.) is an example of the kind of serious hardship that may justify the exercise of discretion to refuse partition or sale. The property in that case was jointly owned by a husband and wife. After separation, the wife continued to live in the property with the children, but the husband applied for partition and sale to raise money to pay off his loans. The trial judge found that the husband’s application was not vexatious, and granted the order. The Court of Appeal allowed the wife’s appeal and set aside the order for partition and sale on the basis that if the order were allowed to stand, the wife and children would be left without a home and would have to relocate. Although Phillips was a case involving a husband and wife, the Court of Appeal applied the general principles relating to partition and sale as set out in Harmeling.

[149] Similarly, in Bergen v. Bergen (1969), 68 W.W.R. 196 (B.C.S.C.), Seaton J. refused partition or sale because he held that the plaintiff husband’s conduct was economically oppressive. The premises were of a relatively low value, and if the property was sold, the wife would not have been able to provide adequate accommodation for herself and her children.

[150] In the present case, there is evidence that many of the respondents would suffer hardship if there were an order for sale of the Land.

Mental Health Withdraws Support For Psychiatrists DSM-5

 Mental healthMental Health and The Controversial DSM5

Psychiatrists like to put labels on mental disorders and use the DSM for such use.The new DSM-5 seems to be causing controversy within the mental health business.Considering that not long ago, the DSM classified such things as homosexuality as a mental disorder, it if not surprising that not all mental health workers agree on the content of various issues discussed in the DSM, now edition 5.The following article is reprinted from Christopher Lane’s blog on the issue, and is of interest to estate litigation due to such issues as mental capacity, personality disorders and the like.

The National Mental Health Withdraws Support for DSM-5

The latest development is a humiliating blow to the APA.

Published on May 4, 2013 by Christopher Lane, Ph.D. in Side Effects

Just two weeks before DSM-5 is due to appear, the National Institute of Mental Health, the world’s largest funding agency for research into mental health, has indicated that it is withdrawing support for the manual.

In a humiliating blow to the American Psychiatric Association, Thomas R. Insel, M.D., Director of the National Mental Health, made clear the agency would no longer fund research projects that rely exclusively on DSM criteria. Henceforth, the National Mental Health, which had thrown its weight and funding behind earlier editions of the manual, would be “re-orienting its research away from DSM categories.” “The weakness” of the manual, he explained in a sharply worded statement, “is its lack of validity.” “Unlike our definitions of ischemic heart disease, lymphoma, or AIDS, the DSM diagnoses are based on a consensus about clusters of clinical symptoms, not any objective laboratory measure.”

That consensus is now clearly missing. Whether it ever really existed remains in doubt. As one consultant for DSM-III conceded to the New Yorker magazine about the amount of horsetrading that drove that supposedly “evidenced-based” edition from 1980: “There was very little systematic research, and much of the research that existed was really a hodgepodge—scattered, inconsistent, ambiguous.”

According to Insel, too much of that problem remains. As he cautioned of a manual whose precision and reliability has been overstated for decades, “While DSM has been described as a ‘Bible’ for the field, it is, at best, a dictionary, creating a set of labels and defining each.” And not even a particularly good dictionary, apparently. Of the decision to steer research in mental health away from the manual and its parameters, Insel states: “Patients with mental disorders deserve better.”

Yet what the NIMH is offering as a solution the DSM’s fumbles and errors is not without major problems of its own, including because of the agency’s single-minded focus on biological psychiatry as the represented solution to all such ambiguities and confusions. Among the consequences of that emphasis, interest in symptoms will be radically curtailed: “symptom-based diagnosis, once common in other areas of medicine, has been largely replaced in the past half century as we have understood that symptoms alone rarely indicate the best choice of treatment.”

The agency’s year-and-a-half old attempt to devise an alternative to theDSM, its Research Domain Criteria (RDoC), stems from an effort, writes Insel, “to transform diagnosis by incorporating genetics, imaging,cognitive science, and other levels of information to lay the foundation for a new classification system. Through a series of workshops over the past 18 months,” he continues, “we have tried to define several major categories for a new nosology. This approach began with several assumptions:

A diagnostic approach based on the biology as well as the symptoms must not be constrained by the current DSM categories;
Mental disorders are biological disorders involving brain circuits that implicate specific domains of cognition, emotion, or behavior;
Each level of analysis needs to be understood across a dimension of function;
Mapping the cognitive, circuit, and genetic aspects of mental disorders will yield new and better targets for treatment.”
These assumptions spring from assertions and tautologies that have driven American psychiatry since at least the 1970s. The insistence that “mental disorders” be viewed and studied entirely as “biological disorders” shunts aside the APA’s supposed agnosticism on that front; but it also echoes Robert Spitzer’s effort (dating here from June 1976) to push through a similar proviso for DSM-III: “A mental (psychiatric) disorder is a medical disorder” (qtd. in Shyness 63). Even today, little in that assertion is self-evident.

True, the NIMH is leaving some room for discussion of environmental and psychological factors. “Self-reports” will also apparently be a “unit of analysis,” though interest in the thoughts and testament of patients seems characteristically small. The agency’s overwhelming focus is to remain on the brain as the alleged seat and cause of psychiatric suffering.

Given the broadly inconclusive research on such formidably complex elements, that prospect is dismaying to many and “potentially game-changing” to others. For others still, the NIMH’s “seismic” decision represents an unmistakable “kill shot to DSM-5,” and not a moment too soon. The manual’s authority won’t end overnight, but, given the implications of the NIMH’s decision, it also can’t and won’t stay as it has.

Nevertheless, the alternatives, at least those that the NIMH is presenting, may turn out to be equally problematic and unworkable. As Gary Greenberg noted recently in the New Yorker, “doctors in most medical specialties have only gotten better at sorting our suffering according to its biochemical causes … [but] psychiatrists still cannot meet this demand. A detailed understanding of the brain, with its hundred billion neurons and trillions of synapses, remains elusive, leaving psychiatry dependent on outward manifestations for its taxonomy of mental illnesses.”

Joint Property Owners Force Sale With Partition of Property Act

Joint Property Owners Can Force Sale With The Partition of Property Act

The Partition of Property Act

Joint owners of property whether as joint tenants or tenants in common can force a sale of the property using the Partition of Property act.

It is common for parties to purchase properties together and register the property jointly, whether it be joint tenancy with a right of survivorship, or tenants in common with no right of survivorship. It is a fact of life that for innumerable reasons one or more parties may wish to sell the property in the future and realize their equity out of the property. This decision is often met with resistance from the remaining owners who may lack the means or the will to buy out the departing owner.

Borg v Morris 2012 BCSC 554 was such a factual scenario. One co owner opposed the property sale and could not afford to buy out the other owner . He opposed the sale on the basis that it was his home, there were remaining outstanding financial issues between them, and a forced sale would involve a large mortgage prepayment penalty. Nevertheless the court ordered a sale and noted their financial issues could be adjudicated later. The court discussed the competing equities of one owner losing his home and the other owner realizing his equity in the same home. The court found that the competing hardships were more or less equal and thus there was no good reason not to order the sale of the home, subject to an accounting. The statutory jurisdiction to order a sale of the property is found in s. 6 of the Partition of Property Act, R.S.B.C. 1996, c. 347 (the “Act”):

6. In a proceeding for partition where, if this partition of property Act had not been passed, an order for partition of property Act 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 Zimmerman v. Vega, 2011 BCSC 757, as to the correct approach under s. 6 of the Act. Mr. Justice Shabbits in that case quotes extensively from Ryser v. Rawlings, 2008 BCSC 1050 at para. 22. I would note in particular, paras. 27-29 in Ryser to the effect that the Court must order a sale of the property if requested to do so by a co-owner and that the Court’s discretion to order otherwise is a narrow one and one which is suggested would involve significant hardship.

[24] Mr. Morris’ counsel has also referred me to Sahlin v. The Nature Trust of British Columbia, Inc., 2011 BCCA 157. Mr. Justice Frankel in that case at para. 24 described the discretion to refuse a sale as broad and unfettered and that it gives the Court the ability, having regard to the particular facts and circumstances, to refuse to order a sale where a sale would not do justice between the parties.

[25] A point of disagreement between the parties concerned the onus of proving any “good reason to the contrary.” In Zimmerman at para. 25, the Court adopted a quote from Dunford v. Sale, 2007 BCSC 1422, to the effect that the onus is on the respondent in that respect. That conclusion is contradicted somewhat by the Court of Appeal in Sahlin at para. 23. It does not appear that the Court in Zimmerman had the benefit of considering this decision, since the reasons of the Court of Appeal were issued between the date of the hearing and the issuance of reasons. In any event, although the Court of Appeal stated that there is no legal onus on the respondent in this respect, the Court did adopt language from the earlier case of Bradwell v. Scott, 2000 BCCA 576, in stating:

This language is neutral in terms of onus. It is for the court to assess the evidence and to determine whether justice requires that such an order be denied. In practical terms, it would be for those opposing the application to put before the court evidence tending to establish a good reason for refusing it.


Further reading on partition actions

Courts Must Scrutinize Claims Against Estates

Court Ordered Minority Interest: Partition of Property

Partition and Sale of Property Refused

Mental Capacity Required to Live Apart from Spouse is Low

Fuhr (Litigation Guardian of) v. Tingey 2013 BCSC 711 dealt with the issues of whether a claimant had sufficient mental capacity to instruct counsel in divorce proceedings. the claimant died before trial, and while the issue then became moor, the Court provided reason for judgment so that the matter of costs could be dealt with.In this case, the court was faced with conflicting evidence of capacity and thus the summary trial based on affidavits could not be resolved, and the matter would have been referred to the trial list. In Wolfman-Stotland v. Stotland 2011 BCCA 175, the issue was whether Mrs. Stotland had the capacity necessary to form the intention to live separate and apart to support the application for a s. 57 declaration. Mrs. Stotland suffered from mild to moderate cognitive impairment and was not capable of managing her financial affairs. She was examined by a doctor, who concluded that she likely had the capacity to instruct counsel on the matter of her divorce.

[32] The Court of Appeal stated:

[23] In A.B. v. C.D., the husband, who opposed the granting of a s. 57 declaration, conceded that his wife had general capacity to manage her affairs and to instruct counsel. The husband sought a medical examination under then Rule 30(1) to establish that his wife suffered from a delusional disorder that informed her intention to live separate and apart. The chambers judge, in reasons indexed as 2008 BCSC 1155, concluded that since the wife had the capacity to conduct her own affairs and to instruct counsel, her adverse mental condition, if it existed, had no bearing on the issues to be determined in the divorce proceeding.

[24] On appeal, this Court upheld the chambers judge and adopted the comments in Professor Robertson’s text, Mental Disability and the Law in Canada, 2d ed. (Toronto: Carswell, 1994) referred to by the chambers judge at paras. 23-24 of his reasons:

[23] The capacity to form the intention to live separate and apart is discussed in Professor Gerald B. Robertson’s Mental Disability and the Law in Canada, 2nd ed., (Toronto: Carswell, 1994) at 272:

Where it is the mentally ill spouse who is alleged to have formed the intention to live separate and apart, the court must be satisfied that that spouse possessed the necessary mental capacity to form that intention. This is probably similar to capacity to marry, and involves an ability to appreciate the nature and consequences of abandoning the martial relationship.

[24] Professor Robertson went on to discuss the capacity to marry at pp. 253-254:

In order to enter into a valid marriage, each party must be capable, at the date of the marriage, of understanding the nature of the contract of marriage and the duties and responsibilities which it creates…. The test does not, of course, require the parties to be capable of understanding all the consequences of marriage; as one English judge aptly noted, few (if any) could satisfy such a test. …the common law test is probably only concerned with the legal consequences and responsibilities which form an essential part of the concept of marriage. Thus, if the parties are capable of understanding that the relationship is legally monogamous, indeterminable except by death or divorce, and involves mutual support and cohabitation, capacity is present. The reported cases indicate that the test is not a particularly demanding one. As was said in the leading English decision, “the contract of marriage is a very simple one, which does not require a high degree of intelligence to comprehend”.

… Capacity to marry may exist despite incapacity in other legal matters. This necessarily follows from the fact that the requirements of legal capacity vary significantly as between different areas of law, and must be applied specifically to the particular act or transaction which is in issue. Thus, for example, a person may lack testamentary capacity yet have capacity to marry. Similarly, a person may be capable of marrying despite having been declared mentally incompetent and having had a property guardian or guardian of the person appointed.

[25] This Court ultimately concluded:

[36] In summary, disordered or delusional thinking which may contribute to an individual’s intention to live separate and apart, does not diminish that individual’s capacity to form that intention, provided it does not reach the level of incapacity that interferes with the ability to manage his or her own affairs and instruct counsel. In this case, there is no probative value to the evidence the husband seeks to obtain by his R. 30(1) application as the wife admittedly has the higher level of capacity to manage her own affairs. As a result, the wife’s mental condition, even if she was found to be suffering from delusional disorder, cannot be an issue in the proceeding.

[26] A useful discussion of the hierarchy of levels of capacity is found in Calvert at paras. 54-56:

[54] Separation is the simplest act, requiring the lowest level of understanding. A person has to know with whom he or she does or does not want to live. Divorce, while still simple, requires a bit more understanding. It requires the desire to remain separate and to be no longer married to one’s spouse. It is the undoing of the contract of marriage.

[55] The contract of marriage has been described as the essence of simplicity, not requiring a high degree of intelligence to comprehend: Park, supra, at p. 1427. If marriage is simple, divorce must be equally simple. The American courts have recognized that the mental capacity required for divorce is the same as required for entering into marriage: re: Kutchins, 136 A. 3d 45 (Ill., 1985).

[56] There is a distinction between the decisions a person makes regarding personal matters such as where or with whom to live and decisions regarding financial matters. Financial matters require a higher level of understanding. The capacity to instruct counsel involves the ability to understand financial and legal issues. This puts it significantly higher on the competency hierarchy. It has been said that the highest level of capacity is that required to make a will: Park, supra, at p. 1426. (I note that Mr. Birnbaum felt that, in August 1994, he would have taken instructions for a will but for Dr. Hogan’s concern about her ability to instruct counsel.) While Mrs. Calvert may have lacked the ability to instruct counsel, that did not mean that she could not make the basic personal decision to separate and divorce.

[27] As the authorities make clear, the capacity to form the intention to live separate and apart has been accepted as equivalent to the capacity to enter into a marriage. As the Court stated in Calvert, the intention to separate requires the lowest level of understanding. The requisite capacity is not high, and is lower in the hierarchy than the capacity to manage one’s affairs.

Testator Must Know General Value of Assets to Have Mental Capacity

Value of AssetsMental Capacity and Knowing the Value of  Testators Assets

Part of the criteria in proving mental capacity of a testator involves showing that the testator understood the nature and the extent of the property being disposed of by the will. The question that is often to be determined is just how much knowledge does a testator require in terms of certainty versus approximation when it comes to knowing the value of his or her assets to be disposed of by will him him him the short answer is that testators are not required to be accountants nor have an accountant’s knowledge and understanding of their estate. What is required is that they appreciate the general nature of the value of estate assets and have an approximate knowledge of their value or the approximate value in terms of either dollars or quantitatively such as “a lot of money” or ” a small fortune”, will suffice. In Laszlo v Lawton 2013 BCSC 305, this is discussed in detail:243] In Russell v. Fraser (1980), 118 D.L.R. (3d) 733, the B.C. Court of Appeal considered the extent of understanding of the estate residue required of a testatrix in the context of evaluating whether she knew and approved of the contents of her will. There, the testatrix gave will instructions to the manager of her credit union, who was instrumental in its preparation, directing that legacies totalling $76,000 be left to several beneficiaries. Upon realizing that substantial assets remained in her estate, the manager asked how she wished to dispose of the residue. The testatrix declined the manager’s suggestions to enlarge the gifts to certain family members or provide the legatees with proportions of the estate rather than fixed sums. The manager then suggested, “partly facetiously”, that the residue be left to him. After some discussion, the testatrix agreed. There was no evidence that she was aware of the value of the residue, which was approximately $130,000.

[244] The court held that it was not enough that the testatrix was aware of the balance in her bank accounts; she must also be aware of the approximate value or magnitude of the residue of her estate at the time she executed her will. This principle has been extended to apply to all property – not just property falling into the residue – dealt with under a will: Johnson v. Pelkey (1997), 36 B.C.L.R. (3d) 40 at para. 114 (S.C.). It has also been relied upon as a correct exposition of the Banks requirement that the testator understand the extent of the property being disposed of by the will in considering the larger issue of testamentary capacity: Woodward v. Grant, 2007 BCSC 1192 at para. 119.

[245] In Moore, the testatrix knew that her property consisted of her house and two bank accounts, but was unable to accurately recall the current balances of those accounts. She told her solicitor that one of them had $25,000, when in fact one held about $3,500 and the other about $45,000. Her less than exact understanding of the value of her accounts was considered adequate.

[246] In Coleman, the testatrix told a doctor shortly after signing her will that she purchased her house 60 years earlier for $2,900 and would be willing to sell it for $10,000. The assessed value of the house at the time was $180,000. In concluding that the testatrix lacked capacity, Warner J. held, at para. 80, that her statement to the doctor “was directly relevant to an understanding of whether the testator had a basic understanding of the extent of her assets, one of the three Banks factors.”

[247] Although appreciation of the approximate value of one’s estate is important, a testator is not required to know its exact makeup. In Palahnuk v. Palahnuk Estate, [2006] O.J. No. 5304 at para. 82 (Sup. Ct. J.), the testatrix was able to recall what real property she owned and could describe it. She also knew that she owned investments being managed by the Public Guardian. Although she did not know the specific investments in her portfolio and the amount of revenue they generated, the testatrix was aware that her total estate had a value of $1.2 million and appreciated that was “a lot of money”. The court held that her degree of knowledge was sufficient, remarking, at para. 82:

No more is required under the law. Testators are not required to be accountants nor to have an accountant’s knowledge and understanding of their estate. If such a meticulously demanding standard were required … many testators would be unable to meet it.

[248] In Kaye et al. v. Chapman et al., 2000 BCSC 1195, the real properties and investment funds of a wealthy testator were managed by professional third parties. The testator told the lawyer drafting his will that his financial worth was about $3 million which the lawyer recorded in his file as “+/- $2.5”. In rejecting the argument that the testator did not appreciate the magnitude of his estate, the court found, at para. 68, it was sufficient that he understood he was a “millionaire and a wealthy man” and that he was conferring on the residual beneficiary a “substantial fortune”: see also Pike v. Stone (1999), 179 Nfld & P.E.I.R. 218, where the testator’s understanding that the estate had “substantial value” was sufficient.

[249] The principles to be taken from the authorities are that testators are not expected to know the exact composition of their estate assets and their value with the metronomic precision of an accountant. An appreciation of the general nature of the value of estate assets and an understanding of their extent, meaning their approximate value or the approximate value of the estate at large, expressed either in terms of dollars or quantitatively (eg. “a lot of money” or “a substantial fortune”), will suffice.

[250] The test in Banks also requires that the testator comprehend on his own and in a general way the persons who would ordinarily have a claim on or are the natural objects of his estate. In evaluating this branch of Banks, the approach usually taken by the case law has been to assume that family members and individuals with a close personal relationship to the testatrix are entitled to her consideration. In Banks itself, the court upheld the will in part because it was made in favour of the testator’s niece who lived with him and was “the object of his affection and regard” (at 571).

The Doctrine of “Suspicious Circumstances” In Mental Capacity Cases

Justice Ballance’s reasons for judgement in Laszlo v Lawton 2013 BCSC 305 contain a concise summary of this area of the law:

200] In Vout v. Hay, [1995] 2 S.C.R. 876 [Vouf\, the Supreme Court of Canada laid to rest the thread of confusion that had emerged in earlier decisions concerning the burden of proof and the interrelationship between the doctrine of suspicious circumstances and the issues of testamentary capacity, knowledge and approval, undue influence and fraud.

[201] Vout affirmed that the legal burden of proving due execution of the will and both testamentary capacity and that the testator knew and approved of the contents of the will is with the party propounding the impugned will. Put succinctly, the party seeking to uphold the will must prove that it was duly executed and is the product of a free and capable testator.

[202] In discharging its burden of proof, the propounder is aided by a rebuttable presumption. It is presumed that the testator possessed the requisite knowledge and approval and testamentary capacity where the will was duly executed in accordance with the statutory formalities after having been read by or to the testator, who appeared to understand it. Vout clarified that this presumption may be rebutted by evidence of well-grounded suspicions, known as “suspicious circumstances”, relating to one or more of the following circumstances: (1) surrounding the preparation of the will; (2) tending to call into question the capacity of the testator; or (3) tending to show that the free will of the testator was overborne by acts of coercion or fraud (para. 25).

[203] The presumption places an evidentiary burden on the party challenging the will to adduce or point to “some evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity”: Vout at para. 27.

[204] Where suspicious circumstances arise, the presumption is said to have been spent, meaning it does not apply and has no further role to play, and the propounder reassumes the legal burden of establishing both approval and capacity. Proving testamentary capacity as well as knowledge and approval of the will provisions, necessarily entails dispelling the suspicious circumstances that have been raised: see generally, Ostranderv. Black (1996), 12 E.T.R. (2d) 219 at 235 (Gen. Div.).

[205] The usual civil standard of proof, namely proof on a balance of probabilities, applies. That said, as a practical matter the extent of the proof required will be proportionate to the gravity of the suspicion, which will vary with the circumstances peculiar to each case: Vout at para. 24.

[206] A “general miasma of suspicion that something unsavoury may have occurred” will not be enough: Clark v. Nash (1989), 61 D.L.R. (4th), 409 at 425 (B.C.CA). In Maddess v. Racz, 2009 BCCA 39 at para. 31, the B.C. Court of Appeal reminded that merely ‘some evidence” was not sufficient and emphasized the stipulation in Voutthat in order to elevate general suspicion to the threshold of suspicious circumstances, the evidence, if accepted, must tend to negative knowledge and approval or testamentary capacity.

[207] Suspicious circumstances have been found to exist in a wide array of situations and are not necessarily sinister in nature. There is no checklist of circumstantial factors that will invariably fit the classification. Commonly occurring themes include where a beneficiary is instrumental in the preparation of the will (especially where the beneficiary stands in a fiduciary position to the testator), or where the will favours “someone who has not previously been the object of [the testator’s] bounty and does not fall within the class of persons testators usually remember in their wills, that is to say their next of kin”: Longmuir v. Holland, 2000 BCCA 53, at para. 69 [Longmuir]; Heron Estate v. Lennox, 2000 BCSC 1553 at para. 67 [Heron Estate]. In Moore, N. Smith J. found the fact that the testatrix’s doctor had described her as no longer capable of managing her affairs and as suffering dementia around the time she made her will constituted a suspicious circumstance sufficient to rebut the presumption.

Almost Everything You Need To Know About Testamentary ( Mental) Capacity

Mental capacity 2Testamentary  ( Mental) Capacity

The decision Laszlo v Lawton et al 2013 BCSC 305 is a series of stellar reasons for Judgement by Madam Justice Ballance, including a thorough review of the law of testamentary capacity.

The deceased died in 2008 at age 84 years, which was three years after the death of her husband. In her last will, made in 2000, she left her estate worth more than $1 million primarily to the British Columbia Society for children with Disabilities and the Penticton United Church. Prior to that she had not shown any previous interest or affiliation with either beneficiary, and the will reflecting such a radical shift in her testamentary intention from 1967 and 1986 wills, which benefited her husband’s family unit, was cause for the court to take serious look at the issue of her mental capacity. The court held that the will of 2000 was in fact invalid, as the defendants had failed to prove that she had testamentary capacity when she gave instructions for the preparation of that will, or when she executed. With respect to testamentary capacity, the court stated that timing is key. The first relevant time that the testator must have testamentary capacity is when they give the will instructions, and the second time is when the will was executed. In recognition of the fact that a faltering mental capacity is prone to fluctuate, the authorities permit variation of the degree of capacity required is pivotal times. As the diminishment of mental capacity, particularly in the elderly, will frequently emerge and worsen over time, evidence of symptoms exhibited by the testatrix both before and after the making of a will, may support an inference relevant to the determination of the presence or absence of testamentary capacity at the material time. The court restated the law that the test for testamentary to pass it is not a medical concept her diagnosis, it is a legal construct. Lay witnesses who haveknown the deceased for many years often figure prominently in such analysis. Here the will was a radical departure from the deceased previous wills and the court found that on the face of that the will was not rational as it pertained to the two largest residuary gifts. She had no connection with either charity. There is no evidence that she had had a falling out with her family. Furthermore there was abundant evidence that at the time the deceased gave her will instructions to the notary, and when she executed her will, she was suffering from a constellation of ongoing symptoms, including delusions, paranoia, auditory and visual hallucinations, confusion, compromised short term memory, disorganized thought, zero insight, and impaired judgment. Her symptoms were suggestive of not insignificant mental compromise which were attributable to Alzheimer’s disease. The court concluded that considering the evidence as a whole, the plaintiffs qualified as the only persons who might ordinarily be expected to benefit in any substantial way under the 2000 will. The court was not satisfied that in the will making process, the deceased was capable of turning her mind to the plaintiffs in comprehending on her own initiative and volition their natural claims upon her estate .

The Law of Testamentary Capacity

[185] In order to make a valid will, a testator must have a baseline level of mental acuity sufficient to appreciate judicially delineated components of the nature and effect of the testamentary act, referred to as testamentary capacity.

[186] The law of testamentary capacity is heavily rooted in jurisprudence dating back to the middle of the 19th century. In Harwoodv. Ba/cer(1840), 13 E.R. 117 at 120, a case decided in 1840, Lord Erskine provided one of the earliest articulations of the concept which is of continuing influence today:

But their Lordships are of opinion, that in order to constitute a sound disposing mind, a Testator must not only be able to understand that he is by his Will giving the whole of his property to one object of his regard; but that he must also have capacity to comprehend the extent of his property, and the nature of excluding from all participation in that property; and that the protection of the law is in no cases more needed, than it is in those where the mind has been too much enfeebled to comprehend more objects than one, and most especially when that one object may be so forced upon the attention of the invalid, as to shut out all others that might require consideration; and, therefore, the question which their Lordships propose to decide in this case, is not whether Mr. Baker knew when he was giving all his property to his wife, and excluding all his other relations from any share in it, but whether he was at that time capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property.

[187] Another 19thcentury authority, Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 [Banks], has proved even more enduring. Recognized as the leading authority on the subject of testamentary capacity – a proposition supported by its ubiquity in the case law – the decision contains the classic statement by Chief Justice Cockbum, at 565, setting out the essential requirements for establishing the validity of a will:

It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties -that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.

[188] One hundred years after Banks, Laskin J.A. (dissenting on other grounds) provided a modern restatement of the test in Re Schwartz (1970), 10 D.L.R. (3d) 15 at 32 (Ont. C.A.):

The testator must be sufficiently clear in his understanding and memory to know, on his own, and in a general way (1) the nature and extent of his property, (2) the persons who are the natural objects of his bounty and (3) the testamentary provisions he is making; and he must, moreover, be capable of (4) appreciating these factors in relation to each other, and (5) forming an orderly desire as to the disposition of his property …

[189] Timing is key. In general, the first relevant time that testators must have testamentary capacity is when they give will instructions; the second is when the will is executed. In recognition of the fact that faltering mental capacity is prone to fluctuate, the authorities permit variation of the degree of capacity required at these pivotal times. For example, the will of a testator who is competent to give instructions, but has lost capacity when the will is executed, may be valid so long as, at the time of execution, the testator was capable of comprehending that she was executing a will drawn in accordance with her previous instructions: Parker v. Felgate (1883), 8 P.D. 171; Brownhill Estate (1986), 72 N.S.R. (2d) 181 (Co. Ct).

[190] The diminishment of mental capacity, particularly in the elderly, will frequently emerge and worsen over time. In light of that, evidence of symptoms exhibited by a testatrix both before and after the making of the will may support an inference relevant to the determination of the presence or absence of testamentary capacity at the material time: see generally, Smith v. Tebbett (1867), L.R. 1 P. & D. 354 at 398; Kri v. Patterson, [1989] O.J. No. 1817 (Surr. Ct.); Fawson Estate (Re), 2012 NSSC 55; Moore v. Drummond, 2012 BCSC 170 at para. 47 [Moore]; Coleman v. Coleman, 2008 NSSC 396 [Coleman].

[191] To lack testamentary capacity does not mean that the testator must be in a perpetual state of substandard competence. Seemingly rational persons may be without it, while seemingly compromised persons may possess it. A testatrix’s cognitive and psychological state is amorphous and seldom static. It may change and fluctuate slightly or wildly, such that at times she is not of sound mind, while at other times she is perfectly lucid. Accordingly, a will made by a compromised testatrix executed during a lucid interval may still be valid.

[192] Implicit and explicit in the jurisprudence is an acknowledgement of the complexity and subtleties of diminished cognitive functioning and the way in which we perceive, present to and interact with the world around us. For example, although it is recognized that dementia can impair a testator’s mental powers such that he is not capable of making a will, a diagnosis of dementia, standing alone, does not automatically correspond to testamentary incapacity: Royal Trust Corp. of Canada v. Ritchie, 2007 SKCA 64 at para. 13; Otto v. Kapacila Estate, 2010 SKCA 85 at para. 36 [Otto]; Moore at para. 36. Similarly, a person who is judicially declared incapable of managing his or her affairs pursuant to adult guardianship legislation or suffers a chronic psychotic illness such as schizophrenia may still have the capacity to make a valid will: Otto at para. 36; Royal Trust Co. v. Rampone, [1974] B.C.J. No. 612 (S.C.); Moore at para. 36; Hoffman v. Heinrichs, 2012 MBQB 133.

[193] The standard of mental capacity required to make a valid will does not exclude eccentric, frivolous, capricious, absurd or unfair wills: Skinner v. Farquharson (1901-1902), 32 S.C.R. 58 at 59 [Skinner]; Beal v. Henri (1950), [1951] 1 D.L.R. 260 at 265 (Ont. C.A.).

[194] It is well-settled that a testator’s ability to provide rational responses to questions or follow a learned pattern or habit is not conclusive of capacity. The reasons of Mr. Justice Rand writing for the majority of the Supreme Court of Canada in the important decision of Leger et al v. Poirier, [1944] S.C.R. 152 at 161, remain instructive of the point:

But there is no doubt whatever that we may have testamentary incapacity accompanied by a deceptive ability to answer questions of ordinary and usual matters: that is, the mind may be incapable of carrying apprehension beyond a limited range of familiar and suggested topics. A “disposing mind and memory” is one able to comprehend, of its own initiative and volition, the essential elements of will-making, property, objects, just claims to consideration, revocation of existing dispositions, and the like…

[195] His Lordship, at 161-62, surveyed a number of authorities in support of that proposition:

Marsh v. Tyrrell and Harding:

It is a great but not an uncommon error to suppose that because a person can understand a question put to him, and can give a rational answer to such question, he is of perfect, sound mind, and is capable of making a will for any purpose whatever; whereas the rule of law, and it is the rule of common sense, is far otherwise: the competency of the mind must be judged of by the nature of the act to be done, and from a consideration of all the circumstances of the case.

Quoting from the Marquess of Winchester’s Case, Sir John Nicholl adds:

By the law it is not sufficient that the testator be of memory, when he makes his will, to answer familiar and usual questions, but he ought to have a disposing memory so as to be able to make a disposition of his estate with understanding and reason.

[196] Following his review, his Lordship concluded, at 162:

Merely to be able to make rational responses is not enough, nor to repeat, a tutored formula of simple terms. There must be a power to hold the essential field of the mind in some degree of appreciation as a whole, and this I am satisfied was not present here.

[197] The issue of whether a testator has the requisite capacity to make a will is a question of fact to be determined in all of the circumstances: Knox v. Trudeau 2001, 38 E.T.R. (2d) 67 (Ont. Sup. Ct. J.). The assessment is a highly individualized and fact-specific inquiry. As most cases are unique on their facts, appellate courts will not overturn a finding as to capacity unless the trial judge has made a palpable and overriding error: James v. Field, 2001 BCCA 267 at para. 71 [James].

[198] Testamentary capacity is not a medical concept or diagnosis; it is a legal construct. Accordingly, scientific or medical evidence – while important and relevant – is neither essential nor conclusive in determining its presence or absence. Indeed, the evidence of lay witnesses often figures prominently in the analysis. Where both categories of evidence are adduced, it is open to the court to accord greater weight to the lay evidence than to the medical evidence, or reject the medical evidence altogether: Baker Estate v. Myhre (1995), 28 Alta. L.R. (3d) 428 at para. 39 (Q.B.); O’Neil v. Brown Estate, [1946] S.C.R. 622 [0’Neil\\ Spence v. Price (1945), [1946] 2 D.L.R. 592 at 595-96 (Ont. C.A.); James at para. 77; Miliwat v. Gagne, 2009 BCSC 1447, affd 2010 BCCA 323 [Miliwat].

[199] Courts may therefore reach a conclusion regarding capacity that conflicts with a medical diagnosis or the outcome of an MMSE or other medical test. In Lowery v. Falconer, 2008 BCSC 516, the family doctor examined the testatrix shortly before she signed the will and concluded that she was competent. Several months later, the doctor performed an MMSE and confirmed that she was capable of managing her own financial and legal affairs. Despite these medical findings, the court concluded that the testatrix lacked capacity and set aside the will. In Shkuratoffv. Shkuratoff, 2007 BCSC 1061 at para. 49, the court expressed apprehension about reliance on the score results of the MMSE in the absence of a robust explanation of the role that