Children Born After Death of the Testator

Children Born After Death of the Testator

I recalled learning “en ventre sa mere” in law school and recently had occasion to advise as to whether a great grandchild born after the death of the grandfather testator, would inherit as part of the class of great grandchildren, as the child is a fetus and will be born about 3 months after the death of the grandfather.

When a will states that an estate shall vest to “all great grandchildren or grandchildren living or alive at the time of the death of the testator”, that estate has been held to vest in a share of any fetus alive in the abdomen of the testator’s daughter, daughter-in-law or sister-in-law as the will may provide who is born alive and under WESA survives five days or more.

The common law has developed the concept of “ en ventre sa mere” as far back as 1795.

In Doe v Clarke 126 ER 617 (1765) the court considered a situation where the will left an equal inheritance to such child or children and should be living at the time of my decease, and held that a child that was born seven months after the death of the testator, and thus was en ventre sa mere, comes clearly within the description of children living at the time of my decease.

En ventre sa mere is known as a long-standing legal principle of fundamental importance, as was noted in the leading case Montréal Tramways Company v Leveille 1933 SCR 456 SCC ,that noted that the concept dated back to Roman times, and remains entrenched in civil law codes around the world to this day. It was acknowledged the principle of general application in the common law of England at least by 1748.

A more recent case in 1937 In re Sloan estate (1937) 3 WWR 455 stated that in construing a will by a parent, credit him or her with those feelings which we commonly believe should be the attribute of a parent, and endeavor to construe the will as if he or she were a just and fond parent. ( I submit grandparent would also apply)

The court followed Villar v Gilbey (1907 ) AC 139 stated the following principles re will construction and children born after death:

1) Words referring to children or issue born before, or living at or, as I think we must add, surviving a particular point of time or event will not in their ordinary or natural meaning include a child en ventre sa mere at the relevant date;

2) the ordinary or natural meaning of the words may be departed from, and a fictional construction applied to them so as to include therein en ventre sa mere at the relevant date and subsequently born alive if, but only if, such fictional construction will secure to such child, a benefit to which it would have been entitled if it had actually been born at the relevant date;

3) the only reason and the only justification for applying such a fictional construction is that, where a person makes a gift to a class of children or issue described as unborn before or living at or surviving a particular point of time or event, a child en ventre sa mere must necessarily be within the reason and motive of the gift.

S.58 WESA: “Whiteout” of Beneficiary Valid

S.58 WESA: "Whiteout" of Beneficiary Valid

Re Levesque Estate 2019 BCSC 927 dealt with a dispute where a portion of the deceased’s will was obscured with “whiteout”, resulting in the legal question of whether the words that were obscured by “whiteout” are deleted from the will, or still form part of the will.

After reviewing the facts and the law, the court concluded that the whiteout, referred to as the alteration, was a deliberate or fixed and final expression of the deceased’s intention to remove Mrs. Nixon, her granddaughter, from the will.

Giving effect to the deceased expressed intention, the court therefore found it appropriate to order that the alteration be made effective pursuant to section 58(3) WESA.

These cases are very fact dependent and the court, carefully reviewed the history of the interactions between the deceased and her immediate family, and in particular in Levesque and the granddaughter contesting the will, and the history of possession of the original will.

Alterations to a will are discussed in section 54.WESA.

Essentially, it requires that an alteration made after the will was executed must be signed of the wills maker whose signature must be witnessed by two witnesses, and each other’s presence and in the presence of the maker. These requirements may be avoided:

a) under section 54(4) (a) if the alteration is not substantial;
b) under section 54 (3) (a) if the alteration has made a word or provision illegible; or
c) under section 54(3) (b) if the alteration is made effective by an order pursuant to section 58.

The alteration in this case dealing with the white out of the beneficiary is substantial and accordingly S54 did not apply.

The courts followed a line of cases stating that to make a word or provision illegible, the words or provision in question must be impossible to read by ordinary inspection of the document, without chemical or other analysis. Re Springay Estate 1991 BCJ 984.

The court then recited the provisions of section 58 of WESA that allows a court to in effect cure deficiencies in a will, and followed the decision of Estate of Young, 2015 BC SC 182 which was approved by the Court of Appeal.

George v Daily (1997) 143 (4th) 273 was again followed by the BC courts at paragraph 35 “ in George the court confirmed that testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death. The key question is whether the document records a deliberate or fixed and final expression of intention as to this disposal of the deceased property on death. A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a will, by its nature, is revocable until the death of its maker. Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.

The burden of proof for the noncompliant document embodies the deceased testamentary intentions is a balance of probabilities. A wide range of factors may be relevant to establish in their existence in the particular case.

The court in Levesque found that the deceased, carefully dabbed whiteout over a provision in question, and did so undoubtedly with the considered in deliberate act on her part. She was applying the whiteout to the original will. It was not a casual act. The only reasonable inferences that are intention was to remove the provision from the will.

Converting a Petition to an Action

Converting a Petition to an Action | Disinherited Vancouver

Re Berkenbos Estate 2018 BCSC 1661 involved in application to revoke the issuance of a grant of probate and for an order that the revocation application be converted from a petition into an action.

The court granted both orders. The deceased and her husband were married in 1989 after living together for 10 years and they were not divorced prior to her death in 2015.

One of the triable issues was whether the parties had separated before death and thus were no longer considered to be spouses under WESA. The evidence was contradictory and constituted a bona fide triable issue.

From 2000 onwards the deceased and her husband had an unconventional marriage is the deceased suffered from alcohol and drug dependency and the husband struggles mental health issues.

The deceased will named the husband is sole executor and sole beneficiary and a grant of probate had been issued.

This blog will deal with the issue and law relating to an application to convert a petition into an action.

Having to do such is in my opinion a quirk of the Supreme Court rules for which I see no purpose other than having to undergo such applications for the various types of causes of action that require the commencement of proceedings by way of a petition. Proving a will and solemn form is one example as is revocation of a grant of probate.

The test as to whether the courts should convert a petition into an action is akin to the test to be applied for summary judgment: whether on the relevant facts and applicable law, there is a bona fide triable issue.

In Kerfoot v Richter 2018 BCCA 238 the Court of Appeal confirmed that where there are disputed facts in an originating application, the chambers judge must not weigh the evidence to determine issues of fact.

The Court of Appeal in Kerfoot v Richter relied on its earlier decision in British Columbia Milk Marketing Board v Saputo Products Canada 2017 BCCA 247 where the court held that proceedings brought by petition should be referred to the trial list where there are disputes of fact or law, unless the party requesting the trial is bound to lose

The party who seeks summary judgment in the context of disputed facts bears the evidentiary burden of establishing there is no genuine issue to be tried –McLean v Law Society of British Columbia 2016 BCCA 368 at paragraphs 36 – 39

In considering evidence, however the court must not weigh it but is limited to assessing whether it establishes a triable issue.

The court explained in a previous appeal decision Skybridge Investments LTD v Metro Motors LTD 2006 BCCA 500:

1) 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 purposes of the application. The judge’s 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 the judge ruling on a rule 18(6) application must assess to weigh the evidence to arrive at a summary judgment, the plain and obvious or beyond doubt test is not being met.

S.58 WESA Refused to Cure Defective Will

Poulk Estate 2018 BCSC 1321 is a good review of the law relating to section 58 of WESA and after a review of the facts and law, found that the said curative provisions of section 58 could not be applied.

The deceased was admitted to hospital where he underwent surgery for bowel obstruction where it was discovered he had bowel cancer and he died days later.

The deceased had only one child, the applicant daughter and he was not married at the time of his death.

The deceased had distanced himself from his daughter after separating from her mother when she was less than one year old.

The daughter had attempted to re establish contact with the deceased when she was 16 years old but the relationship did not develop, and at the time of his death the deceased and his daughter had little contact with each other.

A will was drafted following the surgery and it purported to leave the deceased’s estate to his four siblings in equal shares. The will was not drafted by the deceased and it was not signed by him prior to his death.

The daughter sought an order under section 58 WESA seeking determination of whether the will represented the intention of the deceased.

The will was a fill in the blanks form that was not completed by the deceased.

It was not disputed that the will did not meet the requirements of validity as set out in section 37 of WESA.

The will was not completed by the deceased and it was inferred that it was completed by his sister, the will was not signed by the deceased, and there was nothing on the face of the will to indicate the deceased knew and approved of the contents of the will.

Absence of any objective evidence that the deceased knew and approved the contents of the will was particularly concerning is the will was drafted by one of the beneficiaries and was not consistent with previously expressed intentions of the deceased.

The deceased long time friend opposed the deceased was told by him that he was going to will everything to his daughter.

Notes of the social worker in the hospital were troubling to the court, as they suggested that it was the family of the deceased who are focused on preparing the will, rather than the deceased himself, and that the deceased wanted some time to think. Even if there was sufficient evidence to establish the deceased knew and approved the contents of the will, it was far from clear that the will was fixed and final as to the expression of the deceased testamentary intention. It was clear that the deceased might not have appreciated the severity of his illness or imminence of his death.

The will departed from the requirements for validity in section 37 of WESA to a significant degree, and the evidence fell far short of establishing that the will was final and authentic.

On the balance of probabilities, the court found that the will did not represent a deliberate and final expression of the deceased testamentary intentions, and refused to invoke the provisions of section 58 WESA “to cure“ any deficiency.

The court followed the leading case in British Columbia Re Young 2015 BCSC 182 at paragraph 17:

“S 58 is a curative provision. It confers a discretion on the court to relieve against the consequences of noncompliance with testamentary formalities in the record, document or writing or marking on a will or document”. And prescribed circumstances, section 58 permits the court to address and cure issues of formal invalidity in such documents. It cannot, however, be used to uphold the will that is invalid for substandard reasons such as testamentary incapacity or undue influence.

The court also referred to Re Lane estate 2015 BCSC were the court summarized the principles from the Manitoba decision George v Daily that has largely been followed in British Columbia in decision such as Re Young.

1) The standard of proof on an application under the curative provision is proof on a balance of probabilities
2) the greater the departure from the requirements of formal validity, the harder it may be for the court to be satisfied that the document represents the deceased testamentary intention;
3) the requirements for formal validity of a will serve several purposes or functions, including an evidentiary function by providing the court with reliable and permanent evidence of testamentary intention and the terms of the will; and a cautionary function by impressing upon the testator the solemnity, finality, and importance of his actions in making his last will and testament the evidentiary and cautionary functions are particularly relevant to the determination of whether or not our writing or document embodies the testamentary intentions of the deceased not every expression made by a person, whether orally in writing, concerning the disposition of  his or her property on death embodies his or her testamentary intentions

The court held at paragraph 65:

The term “testamentary intention” means much more than a person’s expression of how he would like his or her property to be disposed of after death. The essential quality of the terms that there must be a deliberate or fixed and final expression of intention as to the disposal of his or her property on death Bennett v Molinary v Winfrey (1961) SCR 91

Spousal or Child Support After Death

Spousal or Child Support After Death

Bouchard v Bouchard 2018 BCSC 1728 dismissed an application for lump sum child maintenance for monies held in the estate of the deceased to died intestate, but reviewed the law relating to continuing obligations to pay spousal or child maintenance after death and the impact of the recently newish Family Law act allowing for same.

The deceased had been awarded approximately $1.9 million in a serious motor vehicle accident but became drug addicted and spent much of the estate.

Arrears of child maintenance in the amount of $300 per month had accumulated, and the mother on behalf of the infant children of the deceased, brought a court application that monies held in trust by the personal injury lawyers be paid to her as a lump sum child maintenance.

The court declined for largely procedural reasons including the children likely or the soul intestate heirs and their rights needed to be protected.

The court noted that any award for child support would only be a debt as against the deceased’s estate, and establishing a debt against the estate of the deceased person does not entitle a litigant to a court order for the amount of the debt. Debts against an estate must still be considered in terms of priority by the executor or estate administrator, as the case may be. This is one of the reasons why administration of the deceased’s estate is critical.

In the past, under the common law, of payor’s child support obligation ended upon death, Milne v MacDonald Estate 1986 CanLii 931 (BCCA) that unless the parties reached an agreement or there was a court order specifying that the payors support obligations would continue beyond his or her death. If there is such an agreement or court order in existence at the time of death, his obligations could continue as a liability of the estate Crain v Crain 1996 Carswell BC 1174 (BCSC) at paragraphs 11 – 15

The common law has now been changed by the Family Law act that where a payor has a duty to pay support under an agreement or order dies and the agreement or order is silent about whether that duty continues after the payor’s death and is a debt of his or her estate, Section 171 (3) of the FLA now allows the recipient of that support to apply for an order that the duty to pay support continues despite the death of the payor and is a debt of the estate, based on the factors in sections 171 (1)

This recent change in the FLA was allowed in Kumagai v Campbell Estate 2016BC SC 1161 where the act for a court stated that section 171 (3) FLA must be interpreted in a manner consistent with the legislature’s intention to provide a mechanism for the ongoing payment of support upon the death of the payee or spouse.
As a result, the claimant was not precluded by the wording of section 1713) from applying for an order that the deceased spousal support obligation continues despite his death and becomes a debt of his estate.

The court specifically found that the legislative intent of these provisions was to provide a mechanism for the ongoing payment of spousal and child support upon the death of the payee or spouse based on the factors listed in section 171 (1) . The legislature has clearly and expressly change the common-law principles with respect to support under the FLA

The factors set out in section 171 ( 1) entitle support obligations after death in FLA are:

171 (1) before making an order under section 170 (g) for an order after death that a duty to pay child support or spousal support continues after death, the court must consider it all of the following factors:

a) That the person receiving child support or spousal support has a significant need for support that is likely to continue past the death of the person paying child support or spousal support;
b) that the estate of the person paying child support or spousal support is sufficient to meet the needs referred to in paragraph a after taking into account all claims on the estate, including those of creditors and beneficiary;
c) that no other practical means exist to meet the need referred to in paragraph a

2. If an agreement, or an order under section 170g) is made in the person having a duty to pay child support or spousal support dies, the person’s personal representative may make an application, and the court may make an order, to:

a) Set aside or replace with an order made under this part all or part of the agreement, or
b) change, suspend or terminate the order.

3. If a person having a duty to pay child support or spousal support under an agreement or order dies and the agreement or order is silent respecting whether the duty continues after the death of the person and is a debt of his or her estate,

a) The person receiving support may make an application under section 149 relating to children or 165 relating to spouses and
b) if, on consideration of the factors set out in subsection 1 of this section, an order is made, the duty to pay child support or spousal support continues despite the death of the person and as a debt of his or her estate for the period fixed by the court.

Probate Fees and Capital Gains Taxes

Probate Fees and Capital Gains Taxes | Disinherited Vancouver

Re the Estate of Wilma Bouma 2018 BCSC 1466 involved in application brought by the administrator of the estate of the deceased for an order pursuant to section 2(4) of the Probate Fee act to increase the declared value as of death from $211,300-$315,000.

The deceased had use the notice of assessment issued in 2016 that set the value of the property at $211,300, while a subsequent appraisal indicated that the value of the property as of death was in fact $315,000.

The court found that the notice of assessment while issued in 2016, really reflected the relevant time of value for the assessment as of July 1, 2015, and not 2016.

The court ordered that the value of the property as of the date of death was $315,000 and directed that the probate registry process the supplemental affidavit of assets and liabilities based on the larger amount.

The court stated as an aside that the real reason for the application was to not only reflect the true value as of the property as of the date of death, but that the purpose of same was to in effect reduce the amount of capital gains taxes that would be payable on the property.

The effect of the increased value substantially reduce the amount of capital gains taxes payable on the approximate difference of $100,000, while the additional probate fee would only be 1.4% of the additional value namely $1451.

Security For Costs Applications

Security For Costs Applications

Parmar v. Timothy Hunstsman Law Corp. 2018 BCSC 1151 involved a successful application by the defendant that the plaintiff post security for costs for the court action brought by the plaintiff, who lived in Illinois and had no assets in the province of British Columbia.

The defendant prepared a bill of costs, allowing for a five-day trial, full day examinations for discovery, instructing experts, mediation and significant disbursements totaling $35,000.

The court ordered that the plaintiff post security for costs in the amount of $20,000 within 60 days of the court order, or if not paid, the action would be dismissed.

The plaintiff had brought court action against the defendant law firm alleging breach of contract and professional negligence.

The legal principles relating to the jurisdiction of the court to order security for costs by a non-corporate plaintiff arises from the inherent jurisdiction of the court. The order is a discretionary on that must be exercised judicially and in all interests of the parties–Sheill v Coach House Motel Ltd (1982) 37 BCLR 254 ( CA) at 264.

Security for cost applications are typically brought where there are concerns that the plaintiff will not satisfy a costs award made against it because the plaintiff resides outside the jurisdiction and has no assets within it. Those circumstances on their own are not determinative.

The law is clear that poverty should not be a bar to access the court. Access to the court should not be hampered by financial issues, except in special or egregious circumstances–Han v Cho 2008 BCSC 1229 at para 14.

The onus is on the applicant. In a situation where the plaintiff is a corporation, if the defendant can show that it will not likely be able to cover costs if the claimant fails, security is generally granted.

However, security for costs where the plaintiff is an individual requires a different balancing giving the access to justice concerns. The overall balancing is the risk that a successful defendant will be unable to recover costs of security is not granted against the risk that a legitimate claim could be stifled by an order. If the latter is in play, it will override the concerns of the defendant will not recover costs of successful.

The threshold issue is whether the applicant has established, on a prima face the basis that it will be unable to recover costs in the event of success- Equstek Solutions Inc v Jack 2013 BCSC 2135 at para 26-27.

The factors that courts hearing such applications have considered in the exercise of its discretion were listed in I. J. v J.A.M.- BCSC 270 at para 14:

1) the merits of the plaintiff’s claim;
2) whether the plaintiff is bankrupt or insolvent
3) whether the plaintiff has demonstrated an intention not to comply with previous orders relating to costs payable;
4) whether there is a risk the plaintiff is not findable;
5) whether there is evidence suggesting that a false description of residence or a false name has been given to the court or use generally.

The courts often cautiously approach the issue of the merits of the case in applications for security for costs, and typically should avoid going into detail in the success or failure appears obvious.-Wang v BC Medical Association 2011 BCSC 1659.

The courts in this decision did however rely heavily on the fact that the plaintiff’s state of residence is a non-reciprocating jurisdiction and that the plaintiff had no assets in British Columbia.

The plaintiff’s lawyer conceded that the plaintiff had the means to pay security for costs without impeding his ability to pursue the claim.

Revocation of a Grant of Probate

Revocation of a Grant of Probate

The leading case in British Columbia on the revocation of a grant of probate is Desbiens v Smith Estate 2010 BCCA 394 .

That decision was decided on the basis of improper service of the application for the grant of probate under what was then section 112 of the Estate Administration act.

That statute was incorporated into the provisions of WESA and Desbiens v Smith Estate was followed in Al- Sabah Estate 2016 BCSC 1781.

The term revocation, setting aside, as well as recalling are all used interchangeably with respect to an order by the court to in effect cancel the grant of probate and make an order accordingly.

Such applications typically arise as a result of a necessary party not being served with the application materials and then subsequently learning of the grant of probate, and then seeking a remedy to set it aside so as to typically contest the estate.

Another fairly common situation that arises is where the executor fails to serve a common-law spouse of the deceased on typically the basis that the executor believes that it was not a true marriage like relationship that should give rise to the spouse being served with materials.

This in fact occurred in Shaw v Reinharrt 2004 BCSC 588, where the plaintiff in a wills variation action alleged that she had been the deceased common-law spouse as of the date of death. She brought court action 10 months after the grant of probate to the deceased’s sons, which was at that time approximately four months too late. The spouse argued that she had not been provided notice under the Estate Administration act, and the court instead granted the plaintiff leave to move the grant of probate to be recalled.

Similarly, in Somodi v Szabados 2007 BCSC 857 the plaintiff was a common-law husband of the deceased, and the executor under the will was the deceased son, but failed to acknowledge the plaintiff as the deceased common-law spouse, instead contending that the relationship was simply one of landlord and tenant.

The executor did not provide the plaintiff with notice of his application for probate, the plaintiff commenced action under the wills variation act more than two years after the grant of probate.

The court held in favor of the plaintiff stating that where the status of a common-law spouse is at issue, notice of the application for probate must be given and failure to do so, precludes reliance on the limitation period, which is currently 180 days after the grant of probate. The court granted the plaintiff leave to commence a claim and to seek to have the grant of letters probate set aside.

Probate is strictly speaking, the proof of the deceased’s will. In granting probate, ecclesiastical authorities, and later the common-law courts, certified the document proffered as the deceased last will was what it purported to be.

A grant of probate, however, has always had ancillary purposes as well. A court granting probate examines not only the authenticity of the will, but also its validity, both in terms of formalities of execution and capacity of the testator, and the legal capacity of the person appointed as executor, to act as such.

Courts have jurisdiction to revoke grants of probate where evidence discloses that the grant ought not to of issued.

There are numerous grounds in which probate can be revoked– for example, where subsequent wills of the deceased are discovered; where it has been found that the will is otherwise invalid; where has been determined that the testator is not in fact dead; where do sure that the executors under a legal disability ( minority or mental infirmity); and were probate has been obtained by fraud.

In short, where it is shown that a condition precedent to the grant of probate was not fulfilled , the court has jurisdiction to revoke the grant.

As far back as 1670 in Ravensroft v Ravenscroft 1 Lev 305, the court stated that the jurisdiction of the probate court to revoke a grant of administration is quite broad, though it ought to be exercised sparingly.

Reopening a Trial

The law relating to the reopening of a trial and the reconsideration of a previous court order is well settled.

The court has a wide discretion, which should be exercised judicially, with caution and sparingly.

The leading case in British Columbia to reopen the trial is Clayton v British  Securities LTD (19434) 49 BCLR 28 ( BCCA). At paragraph 66 – 67:

“ My view has always been that the trial judge might resume the hearing of an action apart from rules until entry of judgment, but as it was vigorously combated I have given careful consideration. The point as far as I know, has not being squarely decided, at least by any case binding on us. It is I think a salutary rule to leave unfettered discretion to the trial judge. He of course would discourage unwanted attempts to bring forward any new evidence available at trial to disturb the basis of a judgment delivered or to permit a litigant. After discovering the effect of a judgment to re-establish a broken down case with the aid of further proof. If the power is not exercised sparingly, and with the greatest care fraud and abuse of the courts processes would result. Without that power and justice might occur.

Hearing new evidence is a departure from its usual procedure, and it is fitting that departures and ordinary practice should be limited by rules to prevent abuse.– A vested right to a judgment is then obtained subject to a right to appeal and should not be lightly jeopardized . Before the gate is closed by entry a trial judge is in a better position to exercise discretion apart from rules, then an appellate court. The trial judge knows the factors in the case that influenced his or her decision and can more readily determine the weight that should be given to new evidence offered.


In deciding whether or not to reopen a case, the governing considerations are:

1) first, what a miscarriage of justice probably occur without a rehearing;
2) would a rehearing probably produce a change of result.


The second arm as to whether the rehearing would produce a change of result was examined in Vance v Vance 34 BCLR 209 at page 211, where the court stated the onus is upon the applicant to satisfy the court on the balance of probabilities, the miscarriage of justice would probably occur without the rehearing and that the evidence of argument that he now wishes to present would probably change the result of the trial. That is not to say that at this stage the applicant must satisfy me that a change in the result would be inevitable.

Some of the instances where the discretion has been exercised reopen the trial prior to the entry of a formal order are:

1) the discovery of material evidence not reasonably discoverable at the time of trial;
2) the occurrence of subsequent developments materially different from presume findings relating to future events, including the assessment of prospective damages in light of events after judgment; Lankenau v Dutton (1988) 27 BCLR (2d) 234 affirmed (1991) 55 BCLR (2d) 218 (BCCA)
3) tests performed after judgment, that newly reveal another type of damage caused by the tort;
4) evidence that could have been presented at the hearing or trial that would lead to an injustice;
5) the reasons for judgment rely on an impossible factual conclusion;
6) the terms of the order were uncertain may have patently conflicted with C’s or soon legislation;
7) there is a perceived conflict of interest of a parties lawyer at trial;
8) by oversight counsel neglected to lead evidence that may be material to the outcome MS v R(DD) (1996) 26 BCLT (3d) 231 (BCCA)

The BC Gas utility v . Alpha Manufacturing was most recently followed in Hambleton v Hambleton 2018 BCSC 999, where the court reconsidered a previous order on the basis that there was sufficient new evidence or argument, which, if available at the time of the initial order, would have likely changed the result. The case dealt with new evidence before the court that justified a reconsideration of his previous order as a result of a mental capacity hearing conducted by a person at the patient’s family doctor, but not the doctor herself.

Document Disclosure and Production

Document Disclosure and Production | Disinherited Vancouver Litigation

McLeod v Balakrishnan 2018 BCSC 908 reviews the law relating to document disclosure and production  in litigation.

The case dealt with two applications, namely that the defendant provide a comprehensive list of documents, as well as an order that she produce documents requested of her at her examination for discovery. The action involved a claim under the former wills variation act, and the estate was valued in excess of $19 million.

The plaintiff was the deceased’s son , who claims he was not adequately provided by the deceased.

The deceased set up to trusts that were valued in excess of $135 million that were not included in the valuation of the estate.

The principles considered on applications for document disclosure were summarized in Marsh Canada Limited v BFL Canada Insurance Services, Inc. 2014 BC SC 1171, beginning at paragraph 65:

“The rules provided two-tier process for document disclosure:

  1. Disclosure under rule 7-1(11)-(14) requires all documents that are or have been in the party’s possession or control, and that could, if available, be used by any party of record at trial to prove or disprove the material fact.
  1. Disclosure under 7-1 (11)-(14) requires documents that relate to any or all matters in question in the action. Thus, any document that is identified as relating to a matter in question in the action, which normally would be evidence upon an issue, but also which contains information which may, not which must, either directly or indirectly, enable the party, either to advance his own case, or to damage the case of his adversary. Kaladjian v Jose 2012 BCSC 357 at paras.44-45.
  1. By applying the proportionality principle embodied in rule1-3(2) an attempt is made to balance the burden of producing the documents in terms of time, cost and effort against the materiality and probative value. Proportionality does not only relate to monetary quantification, but also relates to the importance of the issue in question – Isman v City of New Westminster 2011 BCSC 125 at para. 14.


The following principles also apply:

  1. Full and complete disclosure between or among litigants prior to trial is essential to the truth seeking function of the litigation process and the proper administration of justice Nikolic v Olson 2011 BCSC 1066 at para. 14;
  2. It is the pleadings that determine relevance- Burgess v Buell Distribution Corportion 2012 BCSC 1494 at paras. 16-17;
  3. The interests of justice may require production of relevant documents, notwithstanding the high interest of a party and keeping it confidential- A.M. v Ryan (1997) 1 SCR 157 at para. 37;
  4. A party asserting that a document is privilege bears the onus of establishing the privilege- Hamalainen v Sippola (1991) 62 BCLR (2d) 254 CA at para. 19;
  5. The removal of the ” train of inquiry” test of relevance will generally require a party to provide some evidence to support an application for additional documents where demand is made under rule7-1(11) or Rule 7-1 (18);


The principles that apply in respect of the balance between disclosure and confidentiality were summarized in Altec Design Group Ltd v Motion Works Inc (1992) BCJ 2451 ( SC):

  1. The necessity for complete disclosure litigation cases supersedes the fact that a party may lose a competitive advantage when disclosure is made Forestral Automation Ltd v RMS Industrial Controls Inc (1977) 4 BCLR 219;
  2. In maintaining a balance between disclosure and confidentiality, the governing principle is to lean in favor of openness and disclosure- Deveron-Hercules Inc v. gill 21 CPC ( 2d) 455;
  3. The party viewing the confidential material shall give an undertaking to the court and the opposite party, the terms of which may vary from case to case- GEAC Canada Ltd v Prologic Computer Corp. 24 CPC (3d) 566;
  4. The party who is documents are being disclosed to be examined by an expert is entitled to have a representative present during the examination;
  5. An order preventing counsel from showing relevant documents to his client should only be granted in exceptional circumstances;
  6. The onus is on the party requesting the restriction to establish a legitimate reason for that restriction;
  7. Matters that do not require technical expertise, the parties may be required to produce the documents to a third party for the examination report to the court;
  8. In instances in which the probative value of the documents is not sufficiently great to outweigh the real and very considerable adverse effect of disclosing the trade secret, disclosure ought not to be ordered- Webster v Mastercraft Development Corp. (1991) 55 BCLR (2d) 121

Generally speaking, the court ordered production of several of the financial and estate documents to be produced, while also denying many other requests on the basis that they were unduly intrusive or not relevant.