Converting a Petition to an Action

Converting a Petition to an Action

Certain claims such as proving a will in solemn form must be brought by petition, and if the matter is to proceed, the petition must be converted to an action by way of a court order.

In Kerfoot v Richter 2018 BCCA 238 the executor of an estate brought a petition to prove the will of the deceased in solemn form. The beneficiaries in the will were the deceased’s three adult children, one of whom received only a small portion of the estate. The appellant disputed the validity of the will and applied to have the proceedings converted from a petition to an action. The appellant contended that the deceased lacked testamentary capacity of the will was procured as a result of undue influence by her two siblings, the respondents.

Her application was dismissed by the chambers judge but the Court of Appeal allowed the appeal and ordered that the petition be converted to an action.

The appeal court stated that the test to be applied on an application to convert a proceeding brought by petition to an action is whether on relevant facts and applicable law, there is a bona fide triable issue. The materials before the chambers judge were sufficient to establish a triable issue.

In making the order to convert the petition into an action, the trial judge will continue to have full discretion to give directions concerning the out procedure to be followed in accordance with Supreme Court rules 22 –1-(7) (d) and 25-14 (8).

Rule 25-14(8) provides a similar discretion to the court to give directions about the procedure in estate matters, and provides:

8. Without limiting any other power of the court under this or any other part of the Supreme Court civil rules, the court may, on its own motion or on application, give directions concerning the procedure to be followed in any matter under this part, and without limiting this, they give directions respecting any of the following:

a) The issues to be decided;
b) who the parties will be, including directions for the addition or substitution of a party
c) how evidence may or must be presented;
d) summary disposition of any or all issues in the matter
e) the trial or any or all of the issues in the matter
f) pleadings;
g) examinations for discovery and discovery of documents, service or delivery of a notice, process, order or document on any person
h) dispensing with service or delivery
i) representation of any person or interest.

The court applied the test in Robertson v. Dhillon 2015 BCCA 469, where the appeal court confirmed that the test is akin to the test to be applied for summary judgment, that is whether on the relevant facts and applicable law, there is a bona fide triable issue.

Where there are disputed facts in the pleadings, the party who seeks either summary judgment or dismissal bears the evidentiary burden of showing that there is no genuine issue to be tried, and that is proven through evidence. McLean v. Law Society British Columbia 2016 BC CA 368, at paragraphs 36 – 39.

In considering evidence, the court must not way it, but is limited to assessing whether it establishes a triable issue. The court referred to Skye Bridge investments LTD v. Metro motors LTD 2006 BC CA 500:12. If sufficient material facts of being pleaded to support every element of a cause of action, but one or more of those pleated material facts are contested, then the judge ruling on a rule 18 (6)  application is not to weigh the evidence to determine the issue of fact for the purpose of the application. The judges function is limited to a determination as to whether a bona fide triable issue arises on the material before the court in the context of the applicable law. If a judge ruling on a rule 18 (6) application must assess and weigh the evidence to arrive at a summary judgment, the plane and obvious are beyond doubt test is not be met.

While a judge is not to weigh evidence, he or she may draw inferences that are strongly supported by undisputed facts. Importantly, a party seeking to establish there is a triable issue cannot rely on mere allegations, but must establish the existence of material issues , Canada v Lameman 2008 SCC 14 at paragraph 11. It is this latter requirement that precludes a matter from being referred to trial on the basis of mere assertions.

Interpreting the Ambiguous Will

Interpreting the Ambiguous Will - Disinherited

The increasing occurrence of laymen doing their own will, combined with the curative effects of sections 58 and 59 of WESA, will invariably be leading towards an increase in court applications to interpret the meaning of an ambiguous will or portion thereof.

There is a substantial body of law relating to the interpretation of unclear wills that was largely effected by wills that had been prepared by notaries or lawyers.

The advent of such cases as Re Young Estate 2015 BCSC 182 where the court found that three documents with different dates over a period of three years stapled together, were allowed to be collectively read as the last valid will of the deceased.

In the Australian decision Nicol v Nichol 2017 QSC 220, a five line cryptic unsent text message on the phone of the deceased who had committed suicide was found to be a valid will. The message was extremely informal and somewhat vague but did refer to it as being “my will”.

There have been examples of diary entries and unsigned and undated documents purporting to be a will that have been submitted to the court, under the curative provisions of WESA, some of which have succeeded to be found to be reliable and permanent evidence of the deceased testamentary intention, while others have not.

Suffice to say however, that the wills that have been found to be valid and admitted into probate are generally speaking very vague and often in need of interpretation.

General principles of will interpretation

In Killam v Killam 2017 BCSC 175 at paragraph 60 the courts noted that the starting point for any analysis is the actual language of the will. The court will then look to the surrounding circumstances existing at the time the testator made the will.

The BC Court of Appeal has referred to two different approaches to the interpretation of wills, one being the four corners approach and the other the armchair approach.

The four corners approach to the interpretation of wills means that the intention of the testator is to be taken from within the four corners of the document itself, at least in the first instance, and the surrounding circumstances are not to be considered unless the intention of the testator cannot be ascertained from the language of the will alone.

The armchair approach on the other hand, requires the court at the outset to place itself in the position of the testator at the time he or she wrote the will and to consider the surrounding circumstances and context in order to ascertain the subjective intentions of the testator.

The armchair approach was used by the Court of Appeal in Smith v . Smith estate 2010 BCCA 106 were at paragraph 30. The court stated the guiding principles that to interpret a will, the court must first look to its language. Only if the court cannot ascertain the intention of the testator should it look beyond the will itself, in which case the armchair rule applies. This principle was adopted from Feeney: The Canadian law of wills.

Accordingly, the armchair approach is to be used only if the intention of the testator cannot be ascertained from the will itself

A number of decisions have expanded the armchair rule in British Columbia, such as in Thiemer Estate v Schlapapner 2012 BCSC 629 , where at paragraph 45. It was stated in construing a will, the objective of the court is to ascertain the intention of the testator as expressed in his or her will, when it is read as a whole. In light of any properly admissible extrinsic evidence.

It is a cardinal principle of interpretation that the testator’s intension is to be gathered from the will as a whole and not solely from those provisions which have given rise to the controversy (Perin v Morgan (1943) A.C. 399 at 406 (H.L.)

Accordingly, BC courts have endorsed both approaches in different cases

The Killam decision seems to clarify that the armchair approach does not come into play unless the testator’s intention cannot be ascertained from the language of the will alone. In Killam, however, the court concluded that some combination of the two approaches be used stating that no matter which approach is favored, the starting point for any analysis, it is the language of the will itself.

Assessing summary of the principles to be applied in interpreting the will were followed in Vopicka v Volpicka Estate 2017 BCSC 2197, where the court quoted a summary of the principles to be applied as set out in the Ontario Court of Appeal decision of Dice v. Dice 2012 ONCA 468 at paragraphs 36 – 38:

36. “The golden rule in interpreting wills is to give effect to the testator’s intention as ascertained from the language that was used. Underlying this approach is an attempt to ascertain the testator’s intention, having regard to the will as a whole;

37. Where the testator’s intention cannot be ascertained from the plain meaning of the language that was used, the court may consider the surrounding circumstances known to the testator when he or she made his will – the so-called “armchair rule”;

38. Under the “armchair rule”, the court sits in the place of the testator, assumes the same knowledge the testator had of the extent of his assets, the size and makeup of his family, and his relationship to its members, as far as these things can be ascertained from the evidence presented.”


Natural and ordinary meaning

The Killam decision followed British Columbia Official Administrator v. Joseph (1999) BCJ 2340 that reiterated the concept both that every word is to be given its natural and ordinary meaning, and that if technical words are used, they are to be construed in their technical sense unless it is evident that the testator intended otherwise.

A body of case law has developed for common words such as the meaning of “monies” and for technical words such as “issue”.

The court will in its interpretation of the will look to the ordinary meaning of words as per a reputable dictionary .

For example in Re Ali Estate 2014 BCSC 340 the court was asked to interpret the words “ my interest in the company”.

The court referred to two Canadian dictionaries which defined interest as:

1) A financial stake;

2) a legal concern, title or right;

3) Something which a person has in a thing when that person has advantages, duties, liabilities, losses or rights connected to it, whether ascertained or potential, present or future.”

The Joseph decision for example provided a succinct description of the technical words “per capita” and “per stirpes” at paragraph 10.

Re Stark (1969) 2 O.R. 881 quoted Halsbury, 3rd edition at paragraph 1499 that:

“A word ought not to be disregarded if it can be given some meaning which is not contrary to the intention of the testator plainly expresses in other parts of the will and it is not to be assumed that the testator has used additional words without some additional purpose or without any purpose whatsoever.”


Precatory words

It is important for will makers to be aware that words that are not mandatory, and are merely an indication of a wish, request , desire, expectation and the like are referred to in law as precatory language which is not legally binding upon the executor/trustee.

For example, in the Killam decision. The deceased stated “ it is my desire, however, I do not direct, that said share shall be used for the health, support and maintenance of—, for as long as he should live or as long as said funds are available for such purpose.
The court was asked in that decision whether a trust had been created. The court approached the matter on the basis of construction- did the deceased intend to create a trust or not?.

The court in Killam found that the words, “desire and not direct”, were precatory and not mandatory in nature, but looked at the remainder of the will, where in three instances, the words “ I direct “ are used, and the instruction is clearly mandatory. By using the wording I do not direct, the court concluded that the testator’s intention was that the provision not be mandatory in nature.

Accordingly, the court in the Killam decision concluded that the words” it is my desire, however, I do not direct” only created a moral and not a legal duty on the executor to use the funds for the health, support and maintenance of the beneficiary.



There is a great deal of judicial authorities compiled over many years relating to the proper interpretation of an ambiguous will. The court will do its best to determine the intention of the will maker when interpreting uncertain language used in the will. The courts will do its best to make sense of the will and will interpret it in a way that renders certain phrases or words meaningful and not redundant or unnecessary.

It is likely that there will be an increase in court applications to determine ambiguous wills that have been prepared by laypeople who have informally prepared their will in documents ranging from scrap notes, diary entries, suicide notes, fill in the blank forms, unsent text messages and just about any other document that the court finds to conclusively, and permanently indicate to be gthe last testamentary wishes of a deceased will maker.

Ponzi Schemes

Ponzi Schemes

Two recent British Columbia decisions Kriegman v Dill 2018 BCCA 86 and Boale Wood & Co Ltd v Whitmore 2017 BCSC 1917 have dealt with various legal aspects arising out of Ponzi schemes.

The growth of international commerce has given rise to cross-border fraud schemes that are increasingly coming before the courts.

The Boale case involved a notary, who was instrumental in setting up a $100 million Ponzi scheme where most of the participants lost considerable sums of money.

In Boale Wood and CO Ltd v Whitmore 2017 BCSC 1917, the court adopted the United States Securities and Exchange Commission definition of a Ponzi scheme as:

“an investment fraud that involves the payment of purported returns to existing investors from funds contributed by new investors. Ponzi scheme organizers often solicit new investors by promising to invest funds in opportunities claim to generate high returns with little or no risk. In many Ponzi schemes, the fraudsters focus on attracting new money to make promised payments to earlier stage investors and to use for personal expenses, instead of engaging in any legitimate investment activity.”

The Ponzi scheme typically is a fraudulent investment in which money contributed by later investors generates artificially high dividends for the original investors, whose example attract even larger investments. Money from the new investors is used directly to repay, or pay interest to old investors, usually without any operation or revenue producing activity other than the continual raising of new funds.

Most Ponzi schemes come to court after the scheme has collapsed and the creditors seek recovery under bankruptcy legislation or provincial legislation dealing with fraudulent conveyances or preferences. The Kriegman v. Dill decision involved a bankruptcy, while the Boale Wood decision involved the Fraudulent Conveyance act and the Fraudulent Preference act , and adopted the reasoning of Titan investments Limited Partnership, 2005 A.B.Q.B 637 that a Ponzi scheme is insolvent from its commencement.

There is a large body of case law in the United States concerning Ponzi schemes, where U.S. Bankruptcy Court’s have exercised their equitable jurisdiction to bring together all of the entities, whether insolvent or not, that have participated in gathering funds from investors, consolidate those funds into one pool, and apply equitable subordination to permit all creditors to share the monies equitably. The goal is to distribute the wrongly obtained gains to all creditors of the scheme. The lucky early investors are obliged to share with the unlucky later investors in the scheme.

In Canada, there are no specific prohibitions in the securities legislation of the provinces and in the criminal code that address such Ponzi schemes specifically. Such scheme however, typically contravene the Securities act such as in British Columbia for example, that provides in section 57 that a person must not, directly or indirectly, engaging or participate in conduct relating to securities or exchange contracts of the person knows, or reasonably should know, that the conduct results in our contributes to a misleading appearance of trading activity in, or an artificial price for a security or exchange contract, or perpetrates a fraud on any person.

The criminal code of Canada also contains a general fraud offense at section 380.