We have all seen movies, television shows, and cartoons that depict anxiety ridden prospective beneficiaries typically gathered in a dark paneled lawyer’s office for the so-called “reading of the will”, usually by the lawyer.
In 38 years of practice, disinherited.com has done this once, and only by inadvertence when a throng of people descended upon the office and demanded to have the will read.
One of the persons was in fact the executor and he did in fact authorize the will to be read in the presence of the possible beneficiaries.
There were no fistfights, death threats, or any other memorable behavior that I recall. It was matter of fact.
The scenario makes for good theatre,but in reality it simply does not occur.
Typically what does occur is that the executor very quietly locates the original will.
In British Columbia a will searches is required before probate can be granted, and that may or may not determine the location of the last will and testament, as the registration process is voluntary and not always complied with.
In British Columbia the executor must provide a copy of the will to all parties named in the will, as well as any person or persons who might be entitled to share in the estate on an intestacy.
This only occurs if the executor moves to probate the will through the Supreme Court registry, and that typically only occurs if there are assets over $25,000 solely in the name of the deceased, that require a grant of probate in order to be transferred into the names of the named beneficiaries.
There does seem to be a large sense of entitlement on the public as a whole to feel entitled to know what is in a person’s will, or to receive a copy of the will almost before rigor mortis sets in on the deceased.
It could be that the movies and cartoons that depict the readings of the will contribute to this sense of entitlement, and such people are often disappointed to learn that they are not is entitled uner the law, as they think.
It may be slightly off the mark for an estate litigation blog to write about the passing of Steven Covey, but it remains that his thought provoking ideas about how one ought to approach work ,and life in general, to become a highly effective person, are something we can all benefit from.
This may especially be the case for those going through the stress of estate litigation.
A summary of the 7 principles are as follows, which of course trivialize what Covey put into three books, but it is simply a tribute of his great work:
The following was copied from Wikpedia:
Independence or Self-Mastery
The First Three Habits surround moving from dinosaurs to independence day (i.e., self mastery):
Habit 1: Be Proactive
Take initiative in life by realizing that your decisions (and how they align with life’s principles) are the primary determining factor for effectiveness in your life. Take responsibility for your choices and the consequences that follow.
Habit 2: Begin with the End in Mind
Self-discover and clarify your deeply important character values and life goals. Envision the ideal characteristics for each of your various roles and relationships in life. Create a mission statement.
Habit 3: Put First Things First
Prioritise, plan, and execute your week’s tasks based on importance rather than urgency. Evaluate whether your efforts exemplify your desired character values, propel you toward goals, and enrich the roles and relationships that were elaborated in Habit 2.
Interdependence
The next three have to do with Interdependence (i.e., working with others):
Habit 4: Think Win-Win
Genuinely strive for mutually beneficial solutions or agreements in your relationships. Value and respect people by understanding a “win” for all is ultimately a better long-term resolution than if only one person in the situation had gotten his way.
Habit 5: Seek First to Understand, Then to be Understood
Use empathic listening to be genuinely influenced by a person, which compels them to reciprocate the listening and take an open mind to being influenced by you. This creates an atmosphere of caring, respect, and positive problem solving.
Habit 6: Synergize
Combine the strengths of people through positive teamwork, so as to achieve goals no one person could have done alone. Get the best performance out of a group of people through encouraging meaningful contribution, and modeling inspirational and supportive leadership.
Self Renewal
The Last habit relates to self-rejuvenation:
Habit 7: Sharpen the Saw
Balance and renew your resources, energy, and health to create a sustainable, long-term, effective lifestyle. It primarily emphasizes on exercise for physical renewal, prayer (meditation, yoga, etc.) and good reading for mental renewal. It also mentions service to the society for spiritual renewal.
The United Nations Development Fund for Women estimates that at least one of every three women globally will be beaten, raped or otherwise abused during her lifetime. In most cases, the abuser is a member of her own family.
Today’s purpose is not to set out the incredible statistics with respect to incidents of global domestic violence, but instead to present the psychological disorder known as “Battered Person Syndrome” that has been recognized by the Supreme Court of Canada in the decision of R.v. Oavallee (1990) SC R 852.
When Battered Person Syndrome (BPS) manifests as PTSD, it consists of the following symptoms:
(a) re-experiencing the battering as if it were reoccurring even when it is not,
(b) attempts to avoid the psychological impact of battering by avoiding activities, people, and emotions,
(c) hyperarousal or hypervigilance,
(d) disrupted interpersonal relationships,
(e) body image distortion or other somatic concerns, and
Additionally, repeated cycles of violence and reconciliation can result in the following beliefs and attitudes:[6]
The abused believes that the violence was his or her fault.
The abused has an inability to place the responsibility for the violence elsewhere.
The abused fears for his/her life and/or the lives of his/her children (if present).
The abused has an irrational belief that the abuser is omnipresent and omniscient.
The repetition of the violence despite the abuser’s attempts to “make nice” results in the abused partner feeling at fault for not preventing a repeat cycle of violence. However, since the victim is not at fault and the violence is internally driven by the abuser’s need to control, this self-blame results in feelings of helplessness rather than empowerment. The feeling of being both responsible for and helpless to stop the violence leads in turn to depression and passivity. This learned depression and passivity makes it difficult for the abused partner to marshal the resources and support system needed to leave.[7]
It must be stated that most of the absued people in the world are woman, but not exclusively.
R. V. Lavallee involved a battered woman and attempts to explain the syndrome to the “ordinary man”.
In R. v. Lavallee, [1990] 1 S.C.R. 852 [Lavallee], the SCC recognized “battered woman syndrome”, and stated at para. 43 that:
If it strains credulity to imagine what the “ordinary man” would do in the position of a battered spouse, it is probably because men do not typically find themselves in that situation. Some women do, however. The definition of what is reasonable must be adapted to circumstances which are, by and large, foreign to the world inhabited by the hypothetical “reasonable man”.
According to the expert testimony presented in Lavallee, many battered people are incapable of leaving abusive relationships because of an “affective” or “traumatic” bond that they develop with their abusive spouses.
This bond is based on a power imbalance, in which the less powerful person (i.e. the battered woman for example) becomes extremely dependent upon the more powerful person (i.e. her abusive spouse).
The battered person’s dependency on his or her abuser manifests itself in a vicious cycle:
First, he or she develops low self-esteem as a result of being abused. Then, after abusing him or her, the abuser will beg for forgiveness and promise to love the victim more if he or she forgives the abuser.
This effectively boosts the battered person’s self-esteem and causes him or her to feel needed and loved again.
Consequently, the “affective bond” is strengthened, he will eventually abuse her again, and the cycle will repeat itself.
As a result this dependency cycle, the battered person is ultimately rendered helpless and trapped in the relationship with his or her abuser. Lavallee, paras. 59-60
disinherited.com believes that it is very important for judges for judges, lawyers, the please, the medical profession, and the public at large, to understand this powerful battered persons dependency that too many is often on the face of it inexplicable for all perons, especially those in posiotn so trust and authority, to udnerstand the devestating efects of this synddrome and the sometimes seemingly inexplicable acts that are carried out by the parties.
Estate litigators often see the after effects of such realtrionships, and it is important for them to understand what went on in the relationship while the abused person was still alive.
Clothes drying on a washing line stretched across a field in the Summer.
25 TIPS FOR DRAFTING BETTER WILLS and MINIMIZING LIABILITY
1. Take your time. Be cautious. Seriously consider charging your actual time on a Wills file. If your client objects, then educate the client about the amount of time needed to prepare a Will so as to ensure that the client’s lifetime accumulated wealth will pass to his or her chosen heirs.
2. When the Will is ready for execution, read it through a number of different times, each time assuming a different scenario involving contingencies relevant to the Will.
3. Do not be a dabbler. If you do not routinely draw Wills, then consider not doing them at all. Be very careful about using precendents, especially if you are “cutting and pasting” to create one.
4. Use a checklist when taking instructions. The three Law Society Practice Checklist Manuals are an excellent start, and can be modified to suit you .
5. Get all the necessary information about your client’s personal circumstances , including special situations such as a disabled child. It is essential to obtain complete information about the client’s estate, including details about the nature in value of each asset, its location, and how it is registered.
6. Review copies of earlier Wills, insurance policies, separation agreements, marriage contracts, or any other documents that may affect the client’s estate.
7. Take the necessary time to satisfy your responsibility to ensure that the client understands what the Will says, what it means, and that the client approves its contents. It is essential to go through the Will clause by clause with the client. The lawyer should attend upon the client to make sure that the Will is properly executed. If this is not possible, the lawyer has a duty to make sure that when the original of the Will is sent out for signature, it is accompanied with a very clear letter of instructions on how to execute the Will. You have a further obligation to subsequently ensure that the Will is in fact executed and is put in safekeeping.
8. It is essential to keep very careful notes of Will’s instructions and all communications with Will’s clients. If there is a mistake or an ambiguity and the drafting, it may be these notes that will determine the construction that the court will put on the Will. Notes are especially crucial if there are any unusual circumstances surrounding the Will. A few examples of this might include elderly or infirm testators, blindness or deafness, poor language skills, deathbed Wills, or testators whose Wills might be subject to challenge all the basis of undue influence or lack of capacity.
9. Utilize good legal assistants, but do not place too much reliance on them. Ultimately you cannot delegate your own responsibility to ensure that the Wills are prepared correctly.
10. Always file a Wills Notice with the Division of Vital Statistics. Although it is not mandatory, you should do so, particularly in light of the development of liability in favour of disappointed beneficiaries.
11. Maintain a Wills index with the name and address of the testator, the filing number of the Will file, the name of the executor, the date of execution of the Will, and the Will’s location.
12. Deliver a final letter to the client confirming the location of the Will, the date that it was signed, and reminding the client to review the Will from time to time. It is also essential to make the client aware that marriage revokes the Will and that divorce may affect the validity of some of the provisions of the Will.
13. Probe the testator’s mind by asking detailed questions about assets and the like, with no prompting or help from others, to ensure that there is sufficient mental capacity to prepare a Will. If there is any doubt, a medical opinion should be obtained, after firstly explaining the legal test for capacity to the doctor, as it is a legal test, not a medical one.
14. Always take instructions in the absence of potential beneficiaries or executors.
15. Record detailed reasons why any person who would be an appropriate object of the testator’s bounty is being omitted from the Will, and then consider the preparation of a detailed memorandum to the Will in conjunction with your notes.
16. Try not do codicils. It is too easy to make a mistake. Never do more than one codicil to a will- instead, prepare a new will.
17. Do not use the words issue, per stirpes, per capita, and instead use words like child/children and grandchild/grandchildren.
18. If a charity is a beneficiary in a Will, then it is imperative to do two things:
(i) understand the structure of the charity, and obtain the testator’s instructions on which part of the charity her or she wishes to benefit; and
(ii) ensure that the name of the charity is correct. The easiest way of understanding the structure of the charity and finding out its proper name is to telephone the charitable organization and explain your inquiry relates to a gift made by Will, and to speak with a person authorized to give you the information. See also each year’s Canadian Donor=s Guide for assistance.
19. Only sign one original, and make it clear that a copy is, in fact, a copy.
20. Use detailed memorandums to explain why certain beneficiaries are not being provided for, such as in a Wills Variation situation. Set out the reasons in detail, and try to ensure that the reasons set out are factually accurate, and not merely vindictive and mean spirited.
21. Do not under any circumstances attempt to prepare a Will that is over your head or that you should not be preparing due to restrictions on your practice, i.e., Notaries doing Wills with discretionary trust provisions. If in doubt, refer it out should be your motto.
22. Try to use percentages, rather than specific amounts, and check to see it all adds up to %100..
23. Ensure that the executors have sufficient powers to carry out their job. For example, if the testator has a business, then include powers to operate the business, such as the power to order inventory. Otherwise the trustee may only be able to operate the business much like a receiver, unless appointed special powers by the court, on application.
24. Do not include an RRSP designation clause, or revocation of an RRSP clause in a Will.
25. Stress to clients that proper will preparation is the corner stone of basic estate planning, that should be taken seriously, and treated accordingly, considering that a person’s life time accumulated assets, together with family, are at stake.
One of the greatest hurdles that plaintiffs estate litigators face is gathering evidence to prove to a court what one strongly suspects occurred prior to the death of the deceased.
The deceased is obviously not in a position to testify, and other witnesses to any estate skulduggery are not willing.
One of the greatest resources for background information is that of records such as those kept by hospitals, government, telephone companies, Internet providers, professionals and the like.
One other obvious great source of information is demonstrative evidence such as photographs, videos, notes, cards,letters, and increasingly e-mails and other social media such as Facebook or Twitter.
As the amount of estate litigation increases, it is taking on some aspects of family law, but without the usual urgency that matrimonial law often seems to bring.
It would seem that it is probably more common than uncommon, to see e-mail exchanges, texts, and another forms of social media introduced into court evidence, either at trial or by affidavits.
Chat room conversations can be particularly devastating in matrimonial proceedings, and as I am fond of saying, estate litigation is very similar to matrimonial litigation except that there is one less witness.
My point is that there are now hundreds of millions of people that have left a long digital trail that may come back be very useful to one side or the other in damaging evidence many years later.
It is no secret that a huge percentage of these hundreds of millions of people will have or have posted what in retrospect might be recalled “regrettable”, if not downright humiliating photographs, chats, e-mails and the like.
Dumb by the hundreds of millions.
All of that evidence will be readily available in all types of litigation, including estate litigation, into the far future.
After having done estate litigation cases for almost 40 years, and exclusively for the last almost 20 years, I am continually amazed at the number of disinherited adult children assert that they were sexually abused by a parent, usually a stepfather, adopted father, and surprisingly natural father’s during their preteen adolescents and typically up to as late as he ages 15 and 16 or older.
This week I met with two sisters who were sexually abused by their father for many years, including full sexual intercourse, and each kept it a secret from the other until after their father died and they learned they had basically been disinherited.
It was particularly upsetting to also meet with one of the daughters two daughters who were also sexually abused by their grandfather when they were young girls.
They also did not tell anyone.
No one did talk and this is the norm, not the exception in my experience.
The problem is then compounded after the death of the offending parent by disbelief, disgust, and degradation by the unbelieving beneficiaries who allege that
the story is being made up and is completely untrue.
I recently offered that the two daughters and the two grandchildren both undergo lie detecting (polygraph) testing and that they be bound by the truth or falsity of
their evidence as per the skilled operator.
I do not know the opposing lawyers position to that proposition yet.
Sexual abuse victims typically have no power whatsoever and are often threatened with every frightening thought that a young child could imagine, but typically relate to abandonment ( back to the orphanage) or physical threats.
There is typically less physical evidence, and there are typically fewer corroborative witnesses.
The type of injury typically leads many of the victims to lead a continuing life of re-victimize themselves typically by placing themselves in vulnerable positions
allowing themselves to be exploited.
Many females are in rotating violent relationships and many male abusers become abusers themselves, and the vicious cycle continues.
The victims typically have a great loss of self-esteem and self-worth, often to the point where they do not consider themselves worthy to even contest the
offending parents estate so as to keep the secrets bottled.
The victims also typically have long-term psychological issues that typically involve alcohol and drug abuse to cover their hurts.
The victims often have poor self insight but as you might well imagine also have difficulty with sexual relationships, ranging from rampant promiscuity, to the sex
industry, to lack of trust in intimate relationships.
The effects of sexual abuse are far more harmful and detrimental to the victims health and welfare than most members of society realize, including the perpetrators of the abuse.
Novel and interesting estate disputes frequently make the news, especially when the fight is over family fortunes.
The Gore-Tex water proof founder recently died leaving an estate that has $3 billion in annual sales.
The following was taken from the Globe and Mail, May 24.12 Business section:
“F. Scott Fitzgerald Observed! that the rich are different, but that does not mean an heiress can adopt her 65-year-dld ex-husband to increase her family’s claim to a billion dollar inheritance.
Delaware’s Supreme Court ruled onTuesday that the un- „ conventional adoption did not*” entitle the man to inherit a share of the Gore-Tex fortune? aterproof, fabric tortune. ‘
Heirs to the founders of WX. Gore & Associates Inc. of Newark, DeL, have fought for years over how to divide their stake in the privately held company, which has $3-billion (U.S.) in annual revenue.
Their battle landed in court over the question of how the ■ late Wilbert L. Gore, who founded the company in his basement in 1958* and his late wn%, Vieve, intended to divide their fortune.
At the centre of the dispute was the adoption nearly a decade ago by Susan Gore, one of Wilberfs five children, of her ex-husband, Jan Otto*
According to the court’s opinion, Susan Gore and her son Nathan Otto began considering the adoption to even out the potential distribution from a family trust,
But because Susan Gore and Jan Otto had three children, while each of her four siblings had four, Susan’s children stood to inherit fewer shares.
She decided to adopt her ex-husband , who initially assured her he wanted to be her sone merely to benefit their children.
Gore went to a Wyoming court and secretly adopted her 65 year old ex in 2003
A year later, Jan Otto had a ;change of heart and decided to – ~ Keep the potential distribution from the trust for himself, according to the court ruling.
While Susan was considering whether to “un-adopt” her ex-husband in 2005, according to the opinion, her mother Vieve Gore died, releasing the trust assets and setting in motion the legal wrangling that led to the court’s ruling.
“The fact that Susan kept this adoption secret until Vieve died further evidences that Susan and the Otto grandchildren knew that they were acting to thwart Vieve’s intentions,” Chief Justice Myron Steele wrote in the 27-page opinion.
In brief, equity is the conscience of our common law system.
It is a series of rules and remedies developed by the English Courts of Chancery (aka Courts of Equity) which historically grew up parallel to the English Courts of Law.
Even after the merger of the two court systems, both legal and equitable rules and remedies continue to exist. Modern courts are said to have two jurisdictions, i.e. legal and equitable, and our courts are now responsible for administering both sets of rules and remedies.
Historical Perspective of Equity
Following the Norman Conquest in 1066, our common law was developed based on precedents established in the King’s courts (the Courts of Law) set up by William the Conquerer. Nevertheless, access to justice remained limited. An aspiring litigant had few options as only a few, narrowly framed legal actions could be brought . For example, for centuries there was no action for tort. Even for the successful litigant, legal remedies were basically limited to financial awards and judgments were difficult to enforce With decisions based on past precedents, the system was relatively fixed and inflexible.
As a result, many meritorious claims fell through the cracks and disappointed parties began to petition the monarch (usually a King) for relief. As the numbers grew, the King began to refer these petitions to the Chancellor –the cleric who was historically the keeper of the King’s conscience.
In time the Chancellor delegated these petitions to his vice-Chancellors, Roman Catholic clergy who became the first judges of equity. By the fifteenth century this system had developed into an independent court system known as the Courts of Equity or the Courts of Chancery.
Canon law played an important role in the development of equity because of the influence of the clergy whose perspective was rooted in canon law and the ecclesiastical courts. They were largely trained on the continent and thus they borrowed ideas from the continental civil law and transplanted them into the Courts of Equity. Trusts are one example of this borrowing and another example is the remedy of an order for specific performance.
The chief focus of the Courts of Equity was not legal technicalities but rather matters of individual conscience. Above all, its judges were concerned with the laudable task of saving souls from eternal perdition. Equity was concerned with the person and would grant orders that would bind individuals. If a defendant disobeyed the court’s direction, in an effort to save his soul, the court would likely imprison him for contempt of court — a particularly effective incentive to enforce judgments of the court.
The Courts of Equity were concerned to see that individuals kept their promises and that justice was done between the parties. As a result, the equitable principles developed by the courts have a distinctive ethical quality. For example, defences such as unfair delay or sharp practice could be used to defeat an equitable claim (but not a legal claim).
The rules and remedies of equity were developed to alleviate the hardships wrought by decisions of the relative inflexibilty of the common law. The Courts of Equity developed the maxim “equity follows the law”. This meant that their decisions would not directly contradict the common law courts. Instead if they felt the legal result was unconscionable , they would exercise their discretion to circumvent the law by granting equitable relief . Even today, if there is an adequate remedy at common law, the courts will refuse to grant a remedy in equity.
A key distinction between the legal remedies and equitable remedies remains the discretionary nature of equitable remedies. In equity, the paramount consideration is seeking justice in the circumstances of the particular case.
Eventually the English courts of law and equity were merged into one joint system by the English Judicature Act of 1875. Since then, law and equity courts have been merged by similar statutes in most common law jurisdictions. Nonetheless modern day courts continue to consider and apply both different sets of rules and remedies.
The previous blog re the Merchant Law Group is an excellent example of how the common law approach is different from that of equity, and that under the rules of equity, the law firm was denied the equitable right of quantum meruit, a reasonable fee for services delivered, by reason of it coming to court with “unclean hands”.
Chudy v. Merchant Law Group, 2008 BCCA 484 illustrates the interplay of legal and equitable principles, and the role of equity in the doctrine of “unclean hands”.
By way of background, Mr. Chudy was seriously injured, while a passenger, in a motor vehicle crash. The Chudys signed a contingency fee agreement with Shaw PLC (Personal Law Corporation), a company through which Mr. Shaw practised law. The agreement provided Shaw PLC was entitled to 30% of any damage award made.
A short time later, Shaw PLC stopped operation. Nevertheless Mr. Shaw continued to practise as a sole practitioner until becoming an associate with the Merchant Law Firm. Mr. Shaw took the Chudy file with him however, no new contract was signed with the Chudys. Days later, Mr. Shaw filed for bankruptcy. Mr. Shaw transferred his Shaw PLC shares to his Trustee in Bankruptcy, declaring their value as nil.
Following his bankruptcy, the B.C. Law Society refused to renew Mr. Shaw’s license and directed him to work only under the supervision of a practising lawyer.
Some months later Mr. Shaw, acting upsupervised, negotiated a binding settlement for the Chudys. Only later did the Merchant Group finally present a new contingency agreement to the Chudys i.e. once the Chudys were already entitled to their settlement monies.
In a dispute over legal fees, the trial judge ruled that at the time of the MVA action settlement, the only signed contract was the original Shaw LPC agreement. The judge however refused to enforce that contract ruling that Mr. Shaw’s subsequent inability to practise law had been a fundamental breach of that contract. In other words, the court found this was a breach of a condition which went to the very root of the contract and made the contract unenforceable.
The judge ruled the subsequent Merchant agreement was also unenforceable. Because the court action had already been settled when this new contract was signed, the Merchant Group gave nothing of value in return for the Chudys’ promise to gratuitously pay over 30% of their damage award. There was no consideration passing from the Merchant group and thus no enforceable agreement.
The judge also found that Mr. Shaw had misrepresented to the Chudys that they were legally obligated to sign the Merchant Agreement when they were not. He ruled that Mr. Shaw and the Merchant Group were in a conflict of interest with the Chudys and owed them a fiduciary duty (an equitable duty) to advise them that they had no obligation to sign the later fee agreement.
The Merchant Group and Mr. Shaw, having failed in their legal claims to enforce the fee contracts, sought to rely on the equitable doctrine of quantum meruit.
This doctrine is founded on the belief that no one should receive an unfair benefit. Thus, where one person knowingly receives a valuable benefit from another, even in the absence of an enforceable contract, the court may imply a promise to pay a reasonable amount for the labor and materials provided. Where the court recognizes that obligation, it makes a monetary award known as a quantum meruit award.
In this case the trial judge, in his discretion, refused to grant a quantum meruit award. He founded his decision on the equitable of principle of “clean hands” following the equitable maxim “He who seeks equity, must do equity”. The judge laid out several concerns with the lawyers’ conduct.
The Chudys were not properly informed of the limitations on Mr. Shaw’s professional status—they said if they had known of the restrictions they would have sought another lawyer.
Before the hearing, Mr. Shaw told the Chudys he had special permission from the Law Society to take them to mediation—that was untrue.
Mr. Shaw, contravened his professional restrictions by taking the lead in negotiations without the required supervising lawyer attending the mediation.
The court had found misrepresentation and breach of fiduciary duty as noted above.
Permitting recovery by the Merchant Group would sanction the “duplicitous actions” of Mr. Shaw and the Merchant Group in obtaining the value of Shaw PLC free of the claims of the Shaw bankruptcy creditors.
Notably this trial decision was upheld by the Court of Appeal in a split decision—one of the three appeal justices would have referred it back for a new trial.
The horrendous death tolls in recent years from tsunamis, natural disasters, and murder unfortunately raise interesting legal questions.
The bodies of many of the victims remain missing and may never be recovered.
Public officials have simply presumed these people to be dead.
It is one thing, however, to estimate the numbers for the purposes of reporting to the public.
It is quite another to fulfil the legal steps required to obtain a declaration that a particular individual should be officially considered dead.
People sometimes go missing for many years, sometimes forever. Such disappearances inevitably raise a variety of legal questions.
These can involve everything from the preservation of assets, the administration of the estate, the right to any insurance proceeds, the entitlement of the
missing person to share in estate of a third party, to many other such questions.
When faced with a situation involving a missing person, the estate lawyer must determine which remedies may be available. Is there is sufficient evidence to
obtain, without further delay, a declaration of presumption of death order? Alternatively, is it possible and necessary to have a curator appointed to administer
the missing person’s affairs, until a future date when a presumption of death may be obtained?
In British Columbia the relevant legal remedies are contained in two provincial statutes.
Firstly the Estates of Missing Persons Act discussed yesteday,which provides, inter alia, for the appointment of an interim curator.
Secondly the Survivorship and Presumption of Death Act which authorizes applications for a declaration of presumption of death. This statute also provides for
a presumption of survivorship where two or more person die in circumstances making the order of death uncertain. Specifically it provides that for all purposes
affecting property, their deaths are presumed to have occurred in the order of their seniority, i.e. the younger person is deemed to have survived the older
person.
PLEASE NOTE THAT THE SURVIVORSHIP AND PRESUMPTION OF DEATH ACT WILL LIKLEY BE REPEALED IN MID 2012.
THE COMMON LAW RULES
a) THE PRESUMPTION OF DEATH
The common law underlies all statutes. Thus it is helpful to firstly consider the common law, as it applied prior to the enactment of these statutes. At common
law, the courts would presume a missing person to be missing only if all the following circumstances were proven:
a) the person had been absent for at least seven years;
b) during those seven years the person had not contacted the persons he or she would normally contact;
c) all reasonable enquiries had been made as to the person’s whereabouts; and
d) all these reasonable enquiries were to no avail.
In the case of Re Phene’s Trusts (1869) L.R. 5 Ch. 139 the headnote succinctly summarizes the law as follows:
“If a person has not been heard of for seven years, there is a presumption of law that he is dead; but at what time within that period he died is not a matter of presumption, but of evidence, and the onus of proving that the death took place at any particular time within the seven years lies upon the person who claims a right to the establishment of which that fact is essential.”
In order for the presumption of death to arise, there must be anunexplained absence. The presumption will not arise if the circumstances are such as to
account for the absence. However even in circumstances where the original absence was capable of explanation, that may change. Thus an unexpectedly
prolonged absence together with no contact with family or friends may be sufficient to satisfy the absence requirement.
Where it is shown, however, that the lack of contact by the missing person was characteristic, then the presumption of death will not arise.
The degree of reasonable enquiries required to support an application will vary with the circumstances of the absence. Generally the court will require that
inquiries have been made to all the persons who might normally have heard from or of the missing persons. In addition the court will usually require that
enquiries be made of police departments, phone records, bank records, and by advertising in the locale where the person was last known to be.
The presumption of death is limited. It is not retrospective and there is no legal presumption as to any particular date, within the seven year period, that the
person died. Any precise date of death must be established by the evidence.
Once the presumption is established, then the missing person will likely be declared dead unless there is evidence to rebut the presumption. Evidence likely to
rebut the presumption usually centers around possible motives for the missing person to deliberately disappear. This may involve explanations such as
criminal activity, financial or family problems. If there is an alternative explanation for the absence, this will generally prevent the presumption from arising.
To raise the presumption, the onus of proof rests with the person who will benefit from the declaration of death. (Re Lewe’s Trusts (1871) 6 Ch. App. 356.)
Proof of presumed death requires proof only on the balance of probabilities.
Re Johannisse and Gray(1985) 33 A.C.W.S. (2d) 231 determined brain death to constitute death, for legal purposes.
THE INFERENCE OF DEATH
At common law, the presumption of death could only apply if a person were missing for at least seven years.
Apart from this presumption of death however, it has long been possible for the courts to infer death from reasonable evidence. In order to persuade a court to draw such an inference, it is necessary to provide evidence from which the court would reasonably conclude that:
a) there could be no other reasonable explanation for the absence; and
b) no apparent motive for the disappearance.
Such fact situations are usually linked to an act of peril at the time of the disappearance. Examples could include disappearing while climbing Mount Everest or
disappearing during a natural disaster such as the tsunami.
THE TIME OF DEATH
At common law, it is sometimes important for succession purposes to determine whether the missing person survived to a particular relevant date.
The courts could declare that a person had died by a specified date, however the actual date of death had to be established by the evidence. It was most often
inferred from circumstantial evidence.
If death is to be presumed, the court will determine the date to have occurred at some time during the seven year period after the disappearance. Courts have
stated that it is more likely that the missing persons died shortly after the disappearance than later, but there is no such presumption in law. It is a matter of
satisfying the court based on the evidence adduced
It is likely, however, that when a person disappears in circumstances of peril, the court will conclude the death occurred shortly after the peril.
The onus of proving death generally remains on the person who claims a right for which proof of death is necessary. Similarly the onus of proving the date of
death remains on the person who claims a right for which proof of the date death is necessary.
In order for a death is to be presumed, the person bearing the onus of proof must raise a prima facie case, whereupon the burden to rebut the presumption
shifts to the person or persons who would deny the death has occurred.
THE SURVIVORSHIP AND PRESUMPTION OF DEATH ACT.
Importantly, The Survivorship and Presumption of Death Act, s. 3 replaces the common law requirement of a seven year absence. In its place s. 3 provides that
any unexplained absence may be sufficient to justify an order of presumed death. The court may grant an order of presumed death where a review the evidence
satisfies the court on a number of grounds that the person should be presumed dead.
Section 3 reads, in part, as follows:
“3 (1) If, on the application of an interested person under the Rules of Court, the court is satisfied that
(a) a person has been absent and not heard of or from by the applicant, or to the knowledge of the applicant by any other person, since a day named,
(b) the applicant has no reason to believe that the person is living, and
(c) reasonable grounds exist for supposing that the person is dead,
the court may make an order declaring that the person is presumed to be dead for all purposes, or for those purposes only as are specified in the order.
(2) An order made under subsection (1) must state the date on which the person is presumed to have died.
(3) Any interested person may, with leave of the court, apply to the court for an order to vary, amend, confirm or revoke an order made under subsection (1).
(4) An order, or a certified copy of an order, declaring that a person is presumed to be dead for all purposes or for the purposes specified in the order, is proof of death in all matters requiring proof of death for those purposes.
(5) The registrar of the court must forward to the chief executive officer under the Vital Statistics Act an order made under subsection (1) or (3) within 30 days of the entry of the order.”
Section 3 thus permits a court to make an order that a person shall be presumed dead for all purposes, or only for those purposes that are specified in the
order. This allows the court to satisfy immediate needs without prejudicing the interests of other parties.
The presumption may be rebutted by contrary evidence.
Further, Section 2 of the Act reads as follows:
“2 (1) Except as provided in subsections (2), (3) and (4), if 2 or more persons die at the same time or in circumstances that make it uncertain which of them survived the other or others, those deaths are, for all purposes affecting the title to property, presumed to have occurred in the order of seniority, and accordingly the younger is deemed to have survived the older.
(2) This section is subject to section 72 of the Insurance Act.
(3) Subject to a contrary intention appearing by the instrument, if
(a) an instrument contains a provision for the disposition of property operative in any one or more of the following cases, namely, if a person designated in the instrument
(i) dies before another person,
(ii) dies at the same time as another person, or
(iii) dies in circumstances that make it uncertain which of them survived the other, and
(b) the designated person dies at the same time as the other person or in circumstances that make it uncertain which of them survived the other,
then, for the purpose of that disposition, the case for which the instrument provides is deemed to have occurred.
(4) Subject to a contrary intention appearing by the will, if
(a) a will contains a provision for a substitute personal representative operative in any one or more of the following cases, namely, if an executor designated in the will
(i) dies before the testator,
(ii) dies at the same time as the testator, or
(iii) dies in circumstances that make it uncertain which of them survived the other, and
(b) the designated executor dies at the same time as the testator or in circumstances that make it uncertain which of them survived the other,
then, for the purpose of probate, the case for which the will provides is deemed to have occurred.
(5) If a contract of accident insurance or of sickness insurance, or both, provides for the payment of money on the death by accident of the person insured and the person insured and a beneficiary perish in the same disaster, it is presumed, in the absence of evidence to the contrary, that the beneficiary died first.
The exception stated in Section 72 of the Insurance Act reads as follows:
“Simultaneous deaths
72.Unless a contract or a declaration otherwise provides, if the person whose life is insured and a beneficiary die at the same time or in circumstances rendering it uncertain which of them survive the other, the insurance money is payable in accordance with section 52 (1) as if the beneficiary had predeceased the person whose life is insured.”
If not rebutted, the effect of the presumption is that the younger person would inherit from the older under the latter’s will or on an intestacy.
An interesting illustration of the operation of these presumptions is found in the case of Leach v. Egar and Public Trustee 1990 38 E.T.R. 65. In that case a
divorced mother and her children were lost at sea and presumed dead. The trial judge ruled that the father and former husband was entitled to indirectly inherit
his estranged wife’s estate.
The court applied s.2 of the Survivorship and Presumption of Death Act and determined that the mother died first and then the children. Because the mother
died intestate, her estate passed to the children who were deemed to have survived her. Because the children also died intestate, their estates passed to their
surviving father. In this decision the B.C Court of Appeal upheld the trial court’s decision saying that it was not contrary to public policy to permit this inheritance.
