Leung v Leung 2013 BCSC 976 sets out a concise legal framework of the burden of proof when contesting wills.
In an action for proof of will in solemn form, the party propounding the will must prove on a balance of probabilities that the will was executed in compliance with the statutory formalities, that the will maker knew and approved of the contents of the will, and that the will maker had testamentary capacity Vout v hay (1995) 2 SCR 876 at paras 19-20;
In order to make a valid will, the will maker must have a baseline level of mental acuity or a disposing mind and memory, sufficient to appreciate and comprehend the nature and effect of the essential elements of the testamentary act. This encompasses an appreciation of the claims of the persons who are the natural objects of her or his estate and the extent of his or her property of which he or she is disposing. Lazlo v Lawton 2013 BCSC 305 at para. 185. The assessment of whether a will maker possesses testamentary capacity is a highly individualized inquiry and is a question of fact to be determined in all the circumstances James v Field 2001 BCCA 267 at para.51;
In certain circumstances, the propounder of the will, in discharging the burden of proof, is aided by a rebuttable presumption of validity. If the will was duly executed in accordance with the requisite statutory formalities after being read over to, or by a testator who appeared to understand it, it is presumed the testator possess the requisite testamentary capacity and knew and approved of its contents Vout at para. 26;
This presumption may be rebutted by evidence of well grounded suspicions, referred to in jurisprudence is suspicious circumstances, relating to one or more of the following circumstances
Surrounding the preparation of the will;
Tending to call in to question the capacity of the will maker; or
Tending to show that the free will of the will maker was overborne by acts of coercion or fraud
If suspicious circumstances are established, then the presumption is spent and the legal burden of proof reverts to the propounder of the will. The propounder of the will, then reassumes the legal burden of proving knowledge and approval, as well as proving testamentary capacity, if the suspicious circumstances reflect on the mental capacity of the will maker to make a will. Woodward v Grant 2007 BCSC 1192 at para.108. In order to discharge the burden, the propounder of the will is required to dispel the suspicious circumstances that have been raised. Ostrander v Black (1996) 12 ETR 219 at para. 20
In Vout the court affirmed that if the court determines that suspicious circumstances exist, the applicable standard of proof is a balance of probabilities. However, the evidence must be scrutinized in accordance with the gravity of the suspicion raised in any particular case. In order to rebut the presumption of validity, those attacking the will must meet the threshold of demonstrating that there is some evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity Maddess v Racz 2009 BCCA 539 at para.31. The court in Scott v Cousins (2001) 37 ETR 113 describes the requisite evidence as that which excites that the suspicion of the court. The evidence must raise a specific and focus suspicion Clark v Nash (1989) 61 DLR 409 at 425 (BCCA)
The court in Laszlo provided the following instructive observations regarding the doctrine of suspicious circumstances at paragraph 207:
“Suspicious circumstances have been found to exist in a wide array of situations and are not necessarily sinister in nature. There is no checklist of circumstantial factors that will invariably fit. The classification. Commonly occurring themes include were beneficiaries instrumental in the preparation of the will(especially where the beneficiary stands in a fiduciary position to the testator), or where the will favor someone who is not previously been the object of the testator’s bounty and does not fall within the class of persons tested is usually remember in their wills, that is to say their next of kin”
A good place to start when understanding the law of undue influence are situation and things that might appear to be “suspicious”.
The doctrine of suspicious circumstances may arise in circumstances in which the background concerning the making of a will gives rise or should give rise to some suspicion.
The doctrine is intended to ensure that there is no doubt that the making of the will was the free and voluntary act of the testator.
A seemingly in exhaustive list of the innumerable circumstances which might be suspicious includes the following:
(a) where a gift is made to a person with whom the testator had a close relationship but which was not known or recognized by the testator’s family;
(b) where a gift is made to a person who is in a position to influence the testator, such as a caregiver or, the worst example, the party preparing the will;
(c) where an apparently unwarranted, undeserving or unpopular gift is made to a beneficiary who, in the minds of the those left behind, should not receive the gift;
(d) where a gift is made to a beneficiary to whom the testator has had no close relationship, such as a charity;
(e) where the division of assets among the children of the testator is substantially unequal, or a certain child or children are harshly treated;
(f) where the will substantially deviates from previous wills;
(g) where a gift is made to a person standing in a fiduciary relationship;
(h) where the beneficiary accompanies the testator on each trip to the will-drafter’s office during the process to complete the will;
(i) where the will-drafter receives the testator’s instructions from someone other than the testator;
(j) where the testator has had a recent serious illness or hospitalization;
(k) where there is any question about the testator’s testamentary capacity;
(l) where there are indications that the testator abuses alcohol or uses medications that are potentially mind-altering;
(m) where there testator has entered into a hasty or unwise marriage or common-law relationship;
(n) where there is evidence that the testator is depressed;
(o) where there is a language/cultural disability or illiteracy on the testator’s part;
(p) where the situation fits the “recent widower and the young woman to inherit everything” scenario.
How to Identify Undue Influence
1. Explore whether will-maker is in a relationship of dependency, domination or special confidence or trust.
Sample questions to consider:
• Do you live alone? With family? A caregiver? A friend? • Has anything changed in your living arrangements recently? • Are you able to go wherever and whenever you wish? • Does anyone help you more than others? Who arranged/suggested this meeting? • Does anyone help you make decisions? Who does your banking? • Has anyone asked you for money? A gift?
2. Explore whether will-maker is a victim of abuse or neglect in other contexts.
Sample questions to consider (note need for tact, discretion and awareness for client’s physical safety; refer to community resources if and when appropriate): • Has anyone ever hurt you? Has anyone taken anything that was yours without asking? • Has anyone scolded or threatened you? Are you alone a lot? • Has anyone ever failed to help you take care of yourself when you needed help? • Are there people you like to see? Have you seen these people or done things recently with them? • Has anyone ever threatened to take you out of your home and put you in a care facility?
3. Obtain relevant information from third parties when possible and if the will-maker consents.
4. Obtain medical assessment if mental capacity is also in question, but remember that mental capacity to make a will is ultimately a legal test.
5. Compile list of events or circumstances indicating undue influence.
Red Flags to Watch For
This list is not necessarily complete or definitive. It is an aid to practitioners to identify potential undue influence and provide an “index of suspicion” so that they will be alerted to carry out the necessary inquiries before preparing a will for execution.
(a) Will-maker invests significant trust and confidence in a person who is a beneficiary or is connected to a beneficiary (e.g. lawyer, doctor, clergy, financial advisor, accountant, formal or informal caregiver, new “suitor” or partner).
(b) Isolation of will-maker resulting in dependence on another for physical, emotional, financial or other needs.
(c) Physical, psychological and behavioural characteristics of will-maker.
• Dependence on beneficiary for sight, hearing, mobility, speech, illness, illiteracy. • Signs of neglect/self-neglect (emaciation, inappropriate clothing, bruising, untreated injuries). • In state of shock after stressful situation (e.g. bad news, death of close person).
(d) Non-specific factors (e.g. loneliness, sexual bargaining, end-of-life issues).
(e) Cultural influences/conditioned responses (e.g. subservience to traditional authority in extended family; yielding to pressure for fear of revealing family conflicts leading to loss of face in community).
(f) Impaired mental function from a psychiatric condition or a non-psychiatric cause (e.g. trauma or stroke).
• Sudden onset of confusion. • Short term memory problems, disorientation, difficulty with finances. • Signs of depression (e.g. irritable, agitated, difficulty making decisions, sad face, bowed head, general lethargy). • Delusions. • Extreme sense of well-being, continuous speech, inability to concentrate, poor judgment. • Apprehensive or appearance of being worried, distressed, overwhelmed. • Client is intoxicated/signs of substance abuse. • Down’s syndrome, autism or other developmental disorder. • Inability to answer open-ended questions.
(g) Circumstances related to making of the will and/or the terms.
• Unusual gifts; sudden change for no apparent reason; frequent changes. • Marked change in instructions from prior wills. • 3rd party initiates instructions which also benefit 3rd party; beneficiary speaks for will-maker; beneficiary offers to pay for new will; will-maker relies exclusively/unusually on notes to give instructions. • Spouses: joint retainer but one spouse provides instructions while other remains silent. • Recent death of a family member and other family appear to influence changing existing will.
(h) Characteristics of influencer in will-maker’s family or circle of acquaintance.
• Overly helpful. • Insists on being present during interview with practitioner. • Contacts practitioner persistently after instructions are taken. • Person is known to practitioner to have history of abuse, including violence. • Practitioner observes negative and/or controlling attitude to will-maker. • Practitioner is aware that influencer is in difficult financial circumstances and/or engages in substance abuse.
(i) Practitioner’s “gut feeling”.
• Body language of will-maker indicates fear, anxiety, insecurity, embarrassment, etc. • “Influencer” is off-putting or difficult to deal with at appointment. • “Influencer” is rude to staff in office or on telephone, or is overly solicitous.
It’s important that will drafters be aware of and watch for any suspicious circumstances that might exist when taking will instructions.
Preparing a will in the presence of suspicious circumstances simply increases the risk that the wills draftsperson might end up testifying about the validity of the will in subsequent years.
The litigation issue is usually an allegation of lack of testamentary capacity when the will instructions were given and when the will was acknowledged (signed?) , both being requirements of a valid will.
The Doctrine of “Suspicious Circumstances”
In addition to testamentary capacity, the propounder of a will must establish “that the testator knew and approved of the contents thereof.” With regard to this requirement, the Supreme Court of Canada in Lidstone, 1931 SCR 695
“When it has been established that a will has been duly executed by a testator having testamentary capacity, and also established that it was read by, or read over to, the testator before execution, there arises ordinarily, in the absence of suspicious circumstances, a strong presumption that he knew and approved of its contents, but there is no inflexible rule on the subject. If, however, there are circumstances which arouse the suspicions of the Court — as, for example, if the will was prepared by a person who takes a benefit under it – the party propounding the will must remove the suspicion by proving that the testator knew and approved of the contents of the document, and it is only when this has been done that the onus of proving fraud or undue influence is thrown on the opponents of the will.”
The doctrine of suspicious circumstances may arise in circumstances in which the background concerning the making of the will gives rise or should give rise to some suspicion.
The doctrine is intended to ensure that there is no doubt that the making of the will was the free and voluntary act of the testator.
In dealing with the will, the Supreme Court of Canada in Vout v. Hay 1995 125 D.L.R. (4th) stated that when dealing with the doctrine of suspicious circumstances and the onus of proof, the party alleging undue influence must prove it, and the question becomes which is more persuasive: the evidence calling into question the validity of the will (the suspicious circumstances) or the evidence supporting it.
It is crucial that a will practitioner look for and identify factors which might appear to be suspicious and to ensure that there is ample evidence to override those circumstances as having had an effect on the testator, prior to the execution of the will. Again there should be a detailed record made of the practitioner’s observations after “probing the mind of the potential will maker” , and the notes preserved.
A seemingly in-exhaustive short list of the innumerable circumstances which might be suspicious is as follows:
(a) where a gift is made to a person with whom the testator had a close relationship but which was not known or recognized by the testator’s family;
(b) where a gift is made to a person who is in a position to influence the testator, such as a care-giver, or the worst example, the party preparing the will;
(c) where an apparently unwarranted, undeserving, or unpopular gift is made to a beneficiary who, in the minds of the those left behind, should not receive the gift;
(d) where a gift is made to a beneficiary to whom the testator has had no close relationship, such as a charity;
(e) where the division of assets among the children of the testator is substantially unequal, or a certain child or children are harshly treated;
(f) where the will substantially deviates from previous wills . Always review previous wills prior to taking instructions and having a new will executed.;
(g) where a gift is made to a person standing in a fiduciary relationship;
(h) where the beneficiary accompanies the testator on each trip to your office during the process to complete the will;
(i) where you receive the testator’s instructions from someone other than the testator;
(j) where there has been a recent serious illness or hospitalization;
(k) where there is any question at all about testamentary capacity;
(l) where there are indications of alcohol abuse or medications that are potentially mind altering, being used;
(m) where there is a hasty or unwise marriage or common-law relationship;
(n) where there is evidence of depression;
(o) where there is a language/cultural disability or illiteracy;
(p) if you have been asked to prepare a will for someone by which you are to inherit, then you should ensure that the testator receives independent legal advice, and preferably take no part whatsoever in the preparation of the will.
(q) The recent widower and the young woman to inherit everything scenario
In circumstances where the testator has a will and substantial changes are being made, it would be prudent for the wills drafter to enquire of the testator as to the provisions of the previous will and the reasons for the changes.
Similarly if a child or children are being disinherited, the wills drafter should consider preparing a detailed memorandum pursuant to the provisions of the Wills Variation Act, ( now S 60 WESA) and enclosing a copy of that signed memorandum with the original will. The memorandum’s facts must be accurate so that the testator is not subsequently viewed by the court as being vindictive, as opposed to objective.
Laszlo v Lawton 2013 BCSC 305
The law relating to testamentary capacity and suspicious circumstances was canvassed in Laszlo v Lawton 2013 BCSC 305.
The court recognized that faltering mental capacity is prone to fluctuate and the court authorities permit variation of the degree of capacity required at these pivotal times.
To lack of testamentary capacity does not mean that the testator must be in a perpetual state of substandard competence. Seemingly rational persons may be without mental capacity while seemingly compromised persons may possess it. It may change in fluctuate slightly or wildly so that at times a person may be of sound mind, while at other times may not be.
The Courts recognize that dementia can impair a testator’s mental powers, such that he or she is not capable of making a will, however, a diagnosis of dementia, standing alone, does not automatically correspond to testamentary incapacity.
Similarly, a person who is judicially declared incapable of managing his or her affairs pursuant to adult guardianship legislation or suffers a chronic psychotic illness such as schizophrenia may still have the capacity to make a valid will.
The issue of whether a testator has the requisite capacity to make a will is a question of fact to be determined in all of the circumstances. Testamentary capacity, however, is not a medical concept her diagnosis- it is a legal construct.
Medical evidence, while important and relevant, is neither essential nor conclusive in determining the presence or absence of testamentary capacity.
Lay witnesses who have known the testator for many years can be very significant witnesses, and it is open to the court to accord greater weight to lay evidence than to medical evidence, or reject the medical evidence altogether.
The leading decision of Vout v Hay (1995) 2 SCR 876 , affirmed that the legal burden of proving due execution of the will and both testamentary capacity and that the testator knew and approved of the contents of the will is with the party propounding the impugned a will.
There is a rebuttable presumption that the testator does it stop the requisite knowledge and approval and testamentary capacity were the will was duly executed.
The Vout decision clarified that the presumption may be rebutted by evidence of well grounded suspicions, known as “suspicious circumstances” relating to one or more of the following circumstances:
1) surrounding the preparation of the will;
2) tending to call in to question the capacity of the testator;
3) tending to show that the free will of the testator was overborne by acts of coercion or fraud.
This presumption, places and evidentiary burden on the party challenging the will to induce or point to some evidence which accepted, would tend to negative knowledge and approval or testamentary capacity Vout at para. 27.
The usual civil standard of proof, namely proof on a balance of probabilities generally applies to dispelling the suspicious circumstances that have been raised. As a practical matter, the extent of proof required will be proportionate to the gravity of the suspicion, which will vary with the circumstances peculiar to each case.
The courts are clear that a general miasma of suspicion that something is unsavory may have occurred will not be sufficient. Clark v. Nash (1989) 61 DLR (4th) 409 BCCA
Suspicious circumstances exist in a wide array of situations and are not necessarily sinister in their nature. Very often a close observation and questioning of the testator will reveal one or more of a non-exhaustive list of circumstances which might give rise to being labeled suspicious circumstances and thus reversing the onus of proof in a testamentary capacity case.
Accordingly, will drafters should spend extra time questioning such a testator, and confirming records and ownership documentation in determining whether the suspicious circumstances are sufficient to question whether the proposed testator has sufficient mental capacity.
The duty of a lawyer/solicitor in taking will instructions when suspicious circumstances are present was discussed in Shroff v Schroff 2017 MBQB 51.
Suspicious circumstances have been found to exist in a wide array of situations and are not necessarily sinister in nature. There is no checklist of circumstantial factors that will invariably fit the classification.
Commonly occurring themes include where a beneficiary is instrumental in the preparation of the will (especially where the beneficiary stands in a fiduciary position to the testator), or where the will favours “someone who has not previously been the object of [the testator’s] bounty and does not fall within the class of persons testators usually remember in their wills, that is to say their next of kin”: Longmuir v. Holland, 2000 BCCA 53, at para. 69 [Longmuir]; Heron Estate v. Lennox, 2000 BCSC 1553 at para. 67 [Heron Estate]. In Moore, N. Smith J. found the fact that the testatrix’s doctor had described her as no longer capable of managing her affairs and as suffering dementia around the time she made her will constituted a suspicious circumstance.
The suspicious circumstances may be raised by
(1) circumstances surrounding the preparation of the will,
(2) circumstances tending to call into question the capacity of the testator, or
(3) circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud.
Duty of the Solicitor When taking Will Instructions When Suspicious Circumstances Present:
A solicitor is usually called in to prepare a will because he is a skilled professional man. He has duties to perform which vary with the situation and condition of the testator. In the case of a person greatly enfeebled by old age or with faculties impaired by disease, and particularly in the case of one labouring under both disabilities, the solicitor does not discharge his duty by simply taking down and giving legal expression to the words of the client, without being satisfied by all available means that testable capacity exists and is being freely and intelligently exercised in the disposition of the property. The solicitor is brought in for the very purpose of ascertaining the mind and will of the testator touching his worldly substance and his comprehension of its extent and character and of those who may be considered proper and natural objects of his bounty. The Court reprobates the conduct of a solicitor who needlessly draws a will without getting personal instructions from the testator, and, for one reason, that the business of the solicitor is to see that the will represents the intelligent act of a free and competent person.
 Guided by these principles, Hunter, J., concluded that the solicitor (at para. 93):
… did not go far enough, given the suspicious circumstances … to substantiate testamentary capacity. Further inquiries needed to be made to ascertain Ms. Peter’s capacity. Perhaps those inquiries were made, but if so, they were not documented and [the solicitor] has a very limited recollection of their conversations. If a solicitor has good reason to be concerned about testamentary capacity – and such seemed clearly to be the case here – then a systematic assessment of the testator’s capacity should take place, and if doubts remain then there should be an assessment by a physician or a psychologist.
 In Cousins Estate, Re, another will case where suspicious circumstances existed, Cullity, J., observed (at para. 70):
The obligations of solicitors when taking instructions for wills have been repeatedly emphasised in cases of this nature. At the very least, the solicitor must make a serious attempt to determine whether the testator or testatrix has capacity and, if there is any possible doubt – or other reason to suspect that the will may be challenged – a memorandum, or note, of the solicitor’s observations and conclusions should be retained in the file: see, for example, Maw v. Dickey (1974), 6 O.R.(2d) 146 (Ont. Surr. Ct.), at pages 158-59; Eady v. Waring [(1974), 2 O.R.(2d) 627 (Ont. C.A.)] …, at page 635; Murphy v. Lamphier … at pages 318-21. Some of the authorities go further and state that the solicitor should not allow a will to be executed unless, after diligent questioning, testing or probing he or she is satisfied that the testator has testamentary capacity. This, I think, may be a counsel of perfection and impose too heavy a responsibility. In my experience, careful solicitors who are in doubt on the question of capacity, will not play God – or even judge – and will supervise the execution of the will while taking, and retaining, comprehensive notes of their observations on the question.
Berger was advised to challenge her father’s will not on grounds of “undue influence” but under a section of the B.C. Wills Variation Act that says a “judicious parent” bears a responsibility to provide for biological sons and daughters even if they’re adults.
Vancouver lawyer Trevor Todd who wasn’t involved in this case but writes and lectures on estate issues, says coercion is difficult for family members to prove. If they fail, they’ll usually be stuck with the costs.
Nevertheless, he’s seen a big increase in “undue influence” allegations.
‘I have to warn [elderly men], sometimes that if they lose their wife, they’re just a sitting duck,’ says Todd. “They’re going to be besieged by a lot of well-intentioned women and a whole lot of other women who really are looking for financial gain. They come out of the woodwork and they throw a little bit of sex at the old guy and the next thing you know he’s off his rocker.”
Todd says he’s also heard accusations of health-care professionals taking gifts and bequests from elderly patients. He dealt with one recently in which a woman made a “substantial gift” to her doctor’s wife.
“Her own children reported it to the B.C. Medical Association and that doctor was hauled up on the carpet and he gave it all back,” says Todd. “He gave it back so fast it made your head spin.”
Todd tells his clients to be alert to the early signs of gold-digger syndrome.
“It’s all done on the quiet,” he says. “It’s done by people who have a grand design. They change the locks, the dad’s never available to answer the phone, they estrange people, they speak for them all the time. They deny access to medical [treatment].
They give them lots of medications. They threaten to put them in a home and tell [the elderly person] if it wasn’t for them they’d already be in a home. I could write a book on how to do it. But how to prove it? There are never any witnesses.”
He says some clients use private investigators. He advises others to keep records, to write letters to doctors and other health officials and to document visits, phone calls and financial transactions.
A review of case law makes clear the majority of such allegations are dismissed at trial due to insufficient proof. Frequently the court simply finds the testator had sufficient mental capacity and therefore allows the will to be propounded.
The loss of an undue influence case at trial can have devastating effects on both the client and the lawyer. This is especially true for the lawyer handling such a case on a contingency fee basis. An undue influence trial usually requires many days of examinations for discovery. Such a trial often takes a minimum of two weeks. Disbursements can be substantial including fees for medical expert witnesses and private investigators..
Such influence is most often exerted in private aware from other friends, family members of potential beneficiaries. There are rarely eyewitnesses who observe blatant undue influence being exerted. It sometimes seems therefore, the only way to prove such a case is with a written confession from the person who exerted the influence.
It is a real challenge for counsel to successfully convince the court to set aside the will or inter vivos gift, on the basis of undue influence.
In this paper I will examine briefly the case law surrounding undue influence and then set out twenty practice tips that will hopefully assist a plaintiff’s counsel in winning his or her undue influence trial.
What is Undue Influence?
Undue influence is an equitable doctrine. It is a category of constructive fraud. A very fine line separates legitimate influence from undue influence. These cases are understandably very much fact driven. Success in such cases usually requires a meticulous examination of the facts, particularly those that appear suspicious.
The following oft cited passage sets out the test for undue influence at law:
A-It is settled law that undue influence sufficient to invalidate a will extends a considerable distance beyond an exercise of significant influence – or persuasion – on a testator. It is also clear that the possibility of its existence is not excluded by a finding of knowledge and approval. To be undue influence in the eye of the law there must be – to sum it up in a word – coercion. It must not be a case in which a person has been induced by [strong relationships] to come to a conclusion that he or she will make a will in a particular person’s favour, because if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another, though you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal. It is only when the will of the person who becomes a testator is coerced into doing that which he or she does not desire to do, that it is undue influence. (Wingrove v. Wingrove (1885), 11 P.D. 81 (Eng. Prob. Ct.), at page 82.)
This passage is cited with approval in Williams and Mortimer, Executors, Administrators and Probate, (17th edition, 1993), at page 184. The authors continue as follows;
A-Thus undue influence is not bad influence but coercion. Persuasion and advice do not amount to undue influence so long as the free volition of the testator to accept or reject them is not invaded. Appeals to the affections or ties of kindred, to the sentiment of gratitude for past services, or pity for future destitution or the like may fairly be pressed on the testator. The testator may be led but not driven and his will must be the offspring of his own volition, not the record of someone else’s. There is no undue influence unless the testator if he could speak his wishes would say Athis is not my wish but I must do it.
2 Kinds of Undue Influence: Actual and Presumed
1) Actual: In cases of actual undue influence, the recipient must be shown to have coerced the transferor to make will or inter vivos gift. The conduct must be such that the court finds that the transfer or disposition was not the true will or free intention of the victim. Proof may be shown indirectly by circumstantial evidence, and sometimes by direct evidence such as threats, lies, and promises that the recipient had no intention to keep.
2) Presumed: Here a relationship of trust and confidence between the transferor and transferee raises a rebuttable presumption that the transfer was made by undue influence. Once the relationship of trust and confidence is shown, the onus of proof shifts to the transferee to prove that the transferor made the transferor after full, free, and informed thought. The policy of preserving public confidence in relationships of trust and confidence allows otherwise valid transfers to be voided. Generally speaking, the courts will be more inclined to interfere to set aside a substantial gift or transfer, as opposed to gifts of a minor nature.
Any presumption of undue influence is rebuttable by showing that the transfer was made after full, free and informed thought. This is often done by showing that the transfer or obtained proper independent advice.
N.B. This doctrine of presumed undue influence does not apply to testamentary dispositions
Differing Burdens Of Proof– Wills versus Inter vivos Gifts or Transfers
A key point is the distinction made between gifts or transfers inter vivos as opposed to those made by will. As noted above, in the case of special “trust” relationships where a transfer is made during life, a presumption of undue influence will arise. Where the gift or transfer is made by will however, no such presumption arises and the plaintiff has the daunting task of proving actual undue influence.
Justice Sigurdson initially deals with the issue of onus of proof. He states:
A-The onus for proving undue influence for inter vivos gifts differs depending on the nature of the relationship between the parties. In the absence of a fiduciary or special relationship, the onus rests on the party alleging undue influence to prove it. However undue influence is presumed to apply to certain relationships or in certain circumstances and the onus shifts to the recipient of the gift to rebut it.
The Judge continues as follows:
Feeney in The Canadian Law of Wills, 3rd ed., Vol. 1 (Vancouver: Butterworths, 1987) draws a distinction between the burden of proof when alleging undue influence in the making of a will and in the case of an inter vivos gift made to a person in a special relationship, at page 42:
In the case of gifts inter vivos to persons standing in a fiduciary relationship, or some other relationship whereby the donee was in a position to overbear the donor, such persons must show that they did not influence the donor in making the gift. There is, so to speak, a presumption of undue influence. There is no such presumption in the case of wills. A person in a position to overbear a testator may exercise persuasion to obtain a will or legacy in his favour and it will stand in the absence of positive proof of undue influence by those who assert it.
Undue Influence in Gifts or Transfers
Lord Justice Cotton in Allcard v. Skinner (1887), 36 Ch. D. 145 (Eng. C.A.), at 171 spoke of undue influence in connection with two classes of voluntary gifts:
“First, where the Court has been satisfied that the gift was the result of influence expressly used by the donee for that purpose; second, where the relations between the donor and donee have at or shortly before the execution of the gift been such as to raise a presumption that the donee had influence over the donor. In such a case the Court sets aside the voluntary gift, unless it is proved that in fact the gift was the spontaneous act of the donor acting under circumstances which enabled him to exercise an independent will and which justifies the Court in holding that the gift was the result of a free exercise of the donor’s will.”
At page 181 Lord Justice Lindley said:
“The second group consists of cases in which the position of the donor to the donee has been such that it has been the duty of the donee to advise the donor, or even to manage his property for him. In such cases the Court throws upon the donee the burden of proving that he has not abused his position, and of proving that the gift made to him has not been brought about by any undue influence on his part. In this class of cases it has been considered necessary to show that the donor had independent advice, and was removed from the influence of the donee when the gift to him was made.
This remains an accurate statement of the law, although the courts have taken a more flexible approach to the second class of case and it is not always necessary to show that the donor had independent advice in order to rebut the presumption of undue influence.”
In Goodman Estate v. Geffen (1991), 81 D.L.R. (4th) 211 (S.C.C.) at 221 Wilson J. asked:
What are the factors that go to establishing a presumption of undue influence? This question has been the focus of much debate in recent years. Equity has recognized that transactions between persons standing in certain relationships with one another will be presumed to be relationships of influence until the contrary is shown.
She noted that these included the relationship between trustee and beneficiary, doctor and patient, solicitor and client, parent and child, guardian and ward and future husband and fiance.
Wilson J. in Geffen then said at pages 221 and 227:
“Beginning, however, with Zamet v. Hyman,  3 All E.R. 933, it came to be accepted that the relationships in which undue influence will be presumed are not confined to fixed categories and that each case must be considered on its own facts. Since then it has been generally agreed that the existence of some Aspecial@ relationship must be shown in order to support the presumption although what constitutes such a Aspecial@ relationship is a matter of some doubt.
It seems to me rather that when one speaks of Ainfluence@ one is really referring to the ability of one person to dominate the will of another, whether through manipulation, coercion, or outright but subtle abuse of power. … To dominate the will of another simply means to exercise a persuasive influence over him or her. The ability to exercise such influence may arise from a relationship of trust or confidence but it may arise from other relationships as well.
What then must a plaintiff establish in order to trigger a presumption of undue influence? In my view, the inquiry should begin with an examination of the relationship between the parties. The first question to be addressed in all cases is whether the potential for domination inheres in the nature of the relationship itself.”
In Ogilvie v. Ogilvie Estate (1998), 49 B.C.L.R. (3d) 277 (B.C. C.A.) at 295, the Court of Appeal, in the context of discussing the various judgments in Geffen, stated that:
The task to be undertaken by the court is to determine whether there existed in the relationship between donor and donee the potential for influence.@ In that case, the trial judge had stated the following at para. 41 of her reasons (reported at (1996), 26 B.C.L.R. (3d) 262 (B.C. S.C.):
A-In my opinion, the case before me is a classic case of the second category of undue influence, not the first. I agree that the Plaintiffs fall short of proving any unfair or improper conduct on the part of the Defendants. The rule of evidence applicable to the doctrine of undue influence doesn’t require the Plaintiffs to do so. They only have to show the Aspecial relationship of influence@ between the Grahams and Hugh Ogilvie in the sense that they managed his affairs or gave him advice and, therefore, had a duty to ensure he received independent advice before making substantial gifts in their favour. Then the burden shifts to the Grahams to show that Hugh Ogilvie had independent advice, or was free of their influence when making the subject gifts.
The Court of Appeal in Ogilvie, supra, concluded that the trial judge undertook the correct scrutiny of the relationship between the donor and the donee and the questioned transactions, and upheld her decision that a special relationship existed and that the presumption of undue influence had not been rebutted by the defendants.
Undue Influence in Wills
The decision of Scott vs Cousins 37 E.T.R. (2d) 113 summarizes the leading Canadian case on undue influence re wills, namely Vout v. Hay (1995), 7 E.T.R. (2d) 209 (S.C.C.)
A-The principles that I believe are established by the decision of the Supreme Court, and that are relevant here, can be stated as follows:
1. The person propounding the will has the legal burden of proof with respect to due execution, knowledge and approval and testamentary capacity.
2. A person opposing probate has the legal burden of proving undue influence.
3. The standard of proof on each of the above issues is the civil standard of proof on a balance of probabilities.
4. In attempting to discharge the burden of proof of knowledge and approval and testamentary capacity, the propounder of the will is aided by a rebuttable presumption.
Upon proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity. (at page 227)
5. This presumption simply casts an evidential burden on those attacking the will
6. The evidential burden can be satisfied by introducing evidence of suspicious circumstances – namely, Evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity. In this event, the legal burden reverts to the propounder
7. The existence of suspicious circumstances does not impose a higher standard of proof on the propounder of the will than the civil standard of proof on a balance of probabilities. However, the extent of the proof required is proportionate to the gravity of the suspicion.
8. A well-grounded suspicion of undue influence will not, per se, discharge the burden of proving undue influence on those challenging the will:
It has been authoritatively established that suspicious circumstances, even though they may raise a suspicion concerning the presence of fraud or undue influence, do no more than rebut the presumption to which I have referred. This requires the propounder of the will to prove knowledge and approval and testamentary capacity. The burden of proof with respect and fraud and undue influence remains with those attacking the will. (ibid.)
Suspicious circumstances or are simply circumstances that arouse the suspicion of the court. In the leading case, Barry v. Butlin (1838) 2 Moo. P.C. 480, it was held that the court ought not to pronounce in favor of the will unless the suspicion is removed. That role has been extended to include all cases in which a will is prepared under circumstances which raise a well grounded suspicion that it does not express the mind of the testator. ( Clark v. Nash (1989) 34 E.T.R. 174 (B.C.C.A.)
Undue influence can be established on the balance of probabilities through circumstantial evidence. In Scott v. Cousins, 37 E.T.R. (2d) 113, the Court describes circumstantial evidence that may be considered in undue influence cases:
In determining whether undue influence has been established by circumstantial evidence, courts have traditionally looked to such matters as the willingness or disposition of the person alleged to have exercised it, whether an opportunity to do so existed and the vulnerability of the testator or testatrix. … The testatrix does not have to be threatened or terrorized: effective domination of her will by that of another is sufficient. … This, I believe, is a consideration of no little importance in the present case as well as in the increasing number of those involving wills made by persons of advanced age. Other matters that have been regarded as relevant, within limits, are the absence of moral claims of the beneficiaries under the will or of other reasons why the deceased should have chosen to benefit them. The fact that the will departs radically from the dispositive pattern of previous wills has also been regarded as having some probative force.
Examples of suspicious circumstances may include:
1) an elderly testator;
2) a testator who is unwilling to provide the solicitor with full information relating to the assets, liabilities, medical history, or family condition and circumstances;
3) a testator who has suffered significant ill health, particularly if the condition, disease, or medication could affect the mental stability or general mental outlook of the testator;
4) a disposition of the estate which seems unusual in the context of the circumstances as known to the testator.
5) a beneficiary who has been particularly involved in “assisting” the testator in the preparation of the will;
6) dispositions in the will drastically different from the terms of the former will;
7) circumstances where the testator appears dependent upon another, for example allowing the other person to speak on his or her behalf;
8) a testator with questionable testamentary capacity;
9) a testator who has had numerous wills prepared in a short period of time;
10) a testator who has recently contracted a hasty or unwise marriage; 11) a testator with a language, learning , intellectual or cultural disability;
12) a testator who has recently changed living circumstances, particularly one who moves in with the alleged perpetrator;
13) a will that makes no gifts to those seemingly appropriate;
14) a will prepared on instructions provided by the questionable beneficiary.
15) cases where the long lost beneficiary seems to arrive “out of the nowhere”
16) a testator suffering from depression/loneliness.
The existence of any one or more of these factors does not necessarily mean that the will is vulnerable to attack. However the presence of any one or more of these factors is probably the best avenue for plaintiff=s counsel to attack the will. Successful counsel will be vigilant as to these and other suspicious circumstances.
Practice tips on how to win an undue influence case
1) Before undertaking such a case, particularly on a contingency fee basis, counsel should consider being retained initially only to gather facts. This will assist both client and counsel in determining whether there is a good likelihood of success.
This may not be required if probable lack of testamentary capacity is apparent from the outset. The obvious difficulty with most undue influence cases is the absence of witnesses. Most often there are only two people involved. One is now dead and the other is not talking. Accordingly there are usually immense problems in determining the facts upon which to allege undue influence.
I simply stress that counsel should be very selective in deciding whether or not to accept such cases. Certainly the size of the estate should be considered when making this decision.
2) File a probate caveat right away, but do not commence the court action until you have sufficient proof to justify your allegations of undue influence. The defense may quickly move for a summary trial. The court may award costs or higher costs against your client if you cannot prove the allegations.
3) Consider retaining an experienced private investigator to assist in determining the facts. Undue influence cases demand a meticulous examination of the facts. The private investigator should take signed statements from any witnesses who have material evidence. I consider it necessary to interview almost every person who knew the deceased at the relevant times. Try to obtain a background report on the defendant. It may be surprising how often there may be evidence of prior undue influence allegations. Interview the witnesses to the will or transfer.
4) Get as many records as possible concerning the deceased. This would include all medical records from every doctor and medical institution for at least 10 years prior to death, together with all long-term care records, social work records, nursing home records, care facilities, work or school records (if appropriate), and the like. It would also include the lawyer=s notes, and perhaps the lawyer=s notes of previous wills. The majority of undue influence cases involve senior citizens and there is often an issue of testamentary capacity. I stress however that undue influence can occur in non senior situations such as for example, a young person joining a cult.
5) Marshall the suspicious circumstances and present them in the form of a compelling argument to prove the case (usually through circumstantial evidence). Look to stress situations showing a pattern of the defendant making the deceased more dependant ( ie isolating and limiting access)
6) Try to determine the names and addresses of the witnesses that the alleged perpetrator relies upon, and try to interview them. I have found that if the defendant appears to be flaky, (which is often the case ),then the old adage often applies Abirds of a feather flock together@ often applies. Having this information will assist you in your cross examination.
7) Recognize and benefit from the lack of sophistication of most perpetrators of undue influence. Usually perpetrators are unsophisticated in their methods. While undue influence is a form of civil fraud, the defendants are usually not particularly intelligent, skilled, or savvy.
8) Try to avoid a summary trial unless you have an overwhelming case. I have succeeded at trial, particularly through cross-examination, on cases which may well have been lost on a summary trial. On a summary trial the judge never has the opportunity to assess the credibility of the witnesses. As mentioned above, often these characters can be quite “flakey” and may contrast well with presentable and sympathetic plaintiffs.
9) In setting aside inter vivos gifts, take advantage of the presumption of undue influence where there is a special relationship situation. There often is a house keeping situation present.
10) Obtain expert opinion(s) from those such as geriatric psychiatrists(s) who never met the deceased. Have them review all of the records and tender an opinion on both testamentary capacity and the relative vulnerability of deceased to any undue influence.
11) Get on the case and take these steps as soon as possible. The family may come to see you prior to the death. Even where you cannot assist them to diminish any inappropriate influence, start to build your case as pro-actively as possible. This can involve everything from letters to doctors, banks and the Public Guardian, to obtaining an injunction or committeeship order.
12) Use demonstrative evidence such as home videos, photographs, handwriting samples and the like to try to demonstrate a “before and after” situation where there is evidence of medical or psychological decline.
13) Cross examine the handling lawyer or notary. Try and get an order to discover him or her for discovery. Even the most careful and senior lawyers may fall short in their duties. It can be highly effective to use the Law Society checklist to cross examine the lawyer. I refer you to Danchuk v. Calderwood 15 E.T.R.(2d) 193 where the Judge comments on the solicitors handling of the will:
In keeping with what I understand to be the law applicable to the duty of a solicitor, in the circumstances here, I accept the submission of counsel for the defendants that she failed with respect to that duty.
In my view, in the particular circumstances here, at the outset:
(A) she should have regarded the circumstances as suspicious having regard to the deceased’s advanced age and considerable seniority to that of the plaintiff as well as his apparent dependency upon her, including allowing her to speak for him;
(B) she should have undertaken an inquiry, including interviewing the plaintiff and the deceased separately with regard to the age difference and as to the independence of the deceased in giving instructions;
(C) the inquiry should have confirmed whether the deceased had a prior existing will and, if such a will existed, what were the reasons for any variations or changes there from prompting the disposition being put forward;
(D) the inquiry should have encompassed why and for what reasons the deceased had given a power of attorney to his daughter in late 1992 and, more importantly, why upon revocation of that power of attorney a new power of attorney was to be given by the deceased to the plaintiff; and,
(E) collateral to (D), supra, the inquiry should have included some investigation of the health of the deceased.
In this perspective, I understand the law to be that a solicitor does not discharge her duty in the particular circumstances here by simply taking down and giving expression to the words of the client with the inquiry being limited to asking the testator if he understands the words. Further, I understand it to be an error to suppose because a person says he understands a question put to him and gives a rational answer he is of sound mind and capable of making a will. Again, in this perspective, there must be consideration of all of the circumstances and, particularly, his state of memory.
If the solicitor had made such inquiry and had been made aware of the circumstances in a fuller sense, including the medical assessment of the ongoing progression and state of senile dementia, I am satisfied the said will would not have been prepared by her at that time.
14) Obtain medical opinions of treating physicians as to both testamentary capacity and whether the deceased may well have been more susceptible to undue influence given his or her medical condition.
15) Be bold and confident in the presentation of your case. The defense will always be skeptical and the court may be as well.
16) Be prepared to prove the relative inequality of the parties. The court should be made to understand any power differential. Age, infirmity and loneliness will likely render any person more vulnerable to inappropriate influences and this should be clearly demonstrated for the court.
17) Be prepared to prove the substantial unfairness of the will or bargain.
18) Prepare a chronology of relevant medical or factual events germane to your case.
19) Think hard and often as to how you will present your case.
20) Prepare and use a written opening at trial.
Undue influence case have always been difficult to prove for a variety of reasons, and probably will remain that way for some time yet into the future. I hope this paper’s outline of the law of undue influence, together with the twenty practice tips will bring success to plaintiff’s counsel in the future.
S 60 of WESA allows the court to exercise its discretion re the claims of spouses and children against the assets of a deceased’s estate, on the basis that they were not adequately provided for in the estate.
The right to bring a Wills Variation claim is limited to common law or married spouses,and natural or adopted children, but no one else including step children, or if the child’s DNA does not match that of the deceased.
The Wills Variation criteria have been accumulated over almost 90 years of litigation and can be summed up from the two following cases, as to what the court wants to know in deciding a Wills Variation action:
In Clucas v. Clucas Estate, 25 E.T.R. (2d) 175,  B.C.J. No. 436 (S.C.). Satanove, J. at para  says as follows:
Examples of circumstances which bring forth a moralduty on the part of a testator to recognize in his Will the claims of adult children are:
1) a disability on the part of an adult child;
2) an assured expectation on the part of an adult child,
3) or an implied expectation on the part of an adult child, arising from the abundance of the estate or from the adult child’s treatment during the testator’s life time;
4) the present financial circumstances of the child;
5) the probable future difficulties of the child;
6) the size of the estate and other legitimate claims.
These principles were expanded upon in McBride v Voth, 2010 BCSC 443, in which Trevor Todd was winning plaintiff’s counsel.:
“A number of years ago, this Court identified circumstances that might support or negate a testator’s moral duty to recognize the claim of an adult child in the decision of Clucas v. Clucas Estate, 25 E.T.R. (2d) 175,  B.C.J. No. 436 (S.C.). I would supplement that helpful summary with the following overview of six of the considerations that inform the existence and the strength of a testator’s moral duty to independent children. Although many of these factors were developed before Tataryn, for the most part they maintain relevance for the post-Tataryn court.
1. Contribution and expectation
 Contributions by the claimant to the accumulation of a testator’s assets with little in exchange, or providing other types of contribution or care to a testator will generally serve to strengthen the moral obligation, other things being equal. The contribution may also found a legal claim in unjust enrichment or quantum meruit: Tataryn; Re Sleno 78 D.L.R. (3d) 155,  B.C.J. No. 140 (S.C.); Lee v. King Estate,  B.C.J. No. 893 (S.C.); Harris v. Harris,  B.C.J. No. 1417 (S.C.); Ryan v. Delahaye Estate, 2003 BCSC 1081 (CanLII), 2003 BCSC 1081, 2 E.T.R. (3d) 107 [Ryan]. Contributions made by a first spouse who predeceased the testator may support a moral obligation to the adult claimant children of that first marriage: Saugestad v. Saugestad, 2008 BCCA 38 (CanLII), 2008 BCCA 38, 77 B.C.L.R. (4th) 170; Waldman v. Blumes, 2009 BCSC 1012 (CanLII), 2009 BCSC 1012, 51 E.T.R. (3d) 253.
 A moral duty may arise where the testator’s conduct has created a bona fide expectation on the part of the plaintiff to receive a benefit which does not come about on death: Marsh v. Marsh Estate 19 E.T.R. (2d) 184,  B.C.J. No. 1286 (S.C.); More v. More Estate, 2002 BCSC 920 (CanLII), 2002 BCSC 920, 46 E.T.R. (2d) 96.
2. Misconduct/Poor character
 Section 6(b) of the Act empowers the court to refuse variation to a person whose character or conduct, in the opinion of the court, disentitles him or her to relief. Such misconduct is measured as at the date of death, not subsequently, and must be directed at the testator. Generally speaking, the conduct must be relatively severe in order to justify disinheritance: Gieni v. Richardson Estate,  B.C.J. No. 1227 (S.C.); Sammon v. Stabbler, 2000 BCSC 1048 (CanLII), 2000 BCSC 1048, 77 B.C.L.R. (3d) 283. A child who is a disappointment overall (Sawchuk v. MacKenzie Estate, 2000 BCCA 10 (CanLII), 2000 BCCA 10), is an “incompetent weakling” (Re Bailey Estate, reflex,  1 W.W.R. 99, 1971 CarswellBC 195 (S.C.)), or is unsuccessful in multiple business ventures and has a difficult time “fighting the battle of life” (Re Radcliffe, 2 B.C.L.R. 220,  B.C.J. No. 1036 (S.C.)) was not considered to be sufficiently defective.
 In the earlydevelopment of the caselaw,a long period of separation, abandonment or estrangement between a child and testator was frequently, though not invariably, taken to militate against finding a moral duty to an adult child. The modern judicial trend indicates that the court will enquire into the role played by the testator in the estrangement or relationship breakdown, and where it is seen to be largely the fault of or at the insistence of a testator, it will likely not negate a testator’s moral duty, and may even enhance it. The weight of the authorities also indicates that the court may discern a moral duty as a means of rectifying the testator’s childhood neglect of the children: Gray v. Gray Estate, 2002 BCCA 94 (CanLII), 2002 BCCA 94, 98 B.C.L.R. (3d) 389, Doucette v. Clarke, 2007 BCSC 1021 (CanLII), 2007 BCSC 1021, 35 E.T.R. (3d) 98 [Doucette];Tomlyn v. Kennedy, 2008 BCSC 331 (CanLII), 2008 BCSC 331, 38 E.T.R. (3d) 289; Wilson v. Watson, 2006 BCSC 53 (CanLII), 2006 BCSC 53, 21 E.T.R. (3d) 285; P.S.G. v G.G. Estate, 2005 BCSC 1855 (CanLII), 2005 BCSC 1855; Ryan.
4. Gifts and benefits made by the testator during lifetime
 Depending on the circumstances, a testator’s moral duty may be diminished or negated entirely where he or she has made inter vivos gifts to the claimant, or the claimant has received assets on the testator’s death outside the framework of the will. This includes benefits conferred by way of an inter vivos trust, outright gift and assets passing on death by operation of law such as joint tenancies, and by way of specific beneficiary designation of insurance proceeds, RRSPs, pension benefits, RIFs, and the like. On the same reasoning, if a testator has made pre-deathgifts to individuals other than the plaintiff, or has arranged his or her affairs to facilitate a passing of assets to such individuals outside the provisions of the will, the moral duty owed to the plaintiff may be intensified. See generally: Ryan; Higgins v. Wojciechowski Estate,  B.C.J. No. 1398 (S.C.); Inch v. Battie, 2007 BCSC 1249 (CanLII), 2007 BCSC 1249, 36 E.T.R (3d) 79 [Inch].
5. Unequal treatment of children
 That an independent child has not been given the same provision under a will as the testator’s other child or children will not, of itself, necessarily establish a moral claim: ReLukie et al and Helgason et al., 72 D.L.R. (3d) 395,  B.C.J. No. 1393 (C.A.); Price. On the other hand, in Vielbig v. Waterland Estate1995 CanLII 2544 (BC CA), (1995), 1 B.C.L.R. (3d) 76, 6 E.T.R. (2d) 1 (C.A.), the Court of Appeal held that equal treatment among independent adult children is prima facie fair from a moral duty standpoint. In Ryan, the court held that in the absence of relevant reasons for an unequal distribution, there is a reasonable expectation that adult children will share equally, even though no legal obligation requiring equal distribution exists. (para. 67). The emerging rule of thumb to the effect that equal apportionment among children prima facie discharges a testator’s moral duty was applied in Inch. There, the court held that an equal distribution was prima facie fair, despite the fact that one child received significant assets by way of inter vivos transfers. The proposition was recently revisited by the Court of Appeal in Doucette. In that case, the Court of Appeal appeared to have no difficulty with the disinheritance of one of the preferred beneficiaries by allocating her nothing out of the estate in light of the generous gifts that she had received outside the will via jointly held assets.
6. Testator’s reasons for disinheritance/Subordinate benefit
 The approach to be taken by the court in relation to a testator’s reasons for disinheriting or providing a modest benefit only to a child starts with consideration of the Court of Appeal decision in Bell v. RoyEstate 1993 CanLII 1262 (BC CA), (1993), 75 B.C.L.R. (2d) 213, 48 E.T.R. 209 (C.A.) [Bell]. In Bell, the testator left a will under which she bequeathed a small gift to one adult son, nothing to her adult daughter, and left the lion’s share of her estate to her other adult son. Contemporaneously with making her will, the testator wrote a separate letter purporting to explain the unequal treatment of her children, and in particular the disinheritance of her daughter. The trial judge concluded that the reasons offered by the testator for disinheriting her daughter were accurate and sufficient to support the will. Accordingly, variation of the will was refused. The Court of Appeal’s dismissal of the daughter’s appeal came before the Supreme Court of Canada issued its decision in Tataryn.
The original plan for WESA was to restrict the right of an independent adult child to bring a claim against his or her parents estate on the basis that he or she will was not adequately provided for.
A great deal of discussion took place in or about 2006-2007 and disinherited.com lead the fight against this proposed restriction to the rights of disinherited adults to bring a claim under the wills variation act.
I am pleased to report that the act was substantially left in its entirety with only very minor changes such as a plaintiff must commence a court action under the act within 180 days of the grant of probate, rather than six months.
Here is the current statement of the new section 60 which is almost identical to the former section 2 of the wills variation act , except for the removal of the words “in its discretion ” ( the Courts), which really should have no substantial effect on the judicial interpretation of of section.
There are several in depth articles on the Wills Variation act, all dated November 13,2013 that the reader should visit for the details of the act.
Included is the written submission to the Attorney general back in late 2006
In a nutshell only spouses, both legal and common law, as well as natural and adopted children have the right to contest a will under the Wills Variation act, even if the step child was raised by the deceased, but not adopted.
SECTION 60 WESA
Maintenance from estate
60 Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order.that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.
Mistakes in wills are frequently made and then subsequently not discovered until typically many years later after the passing of the will maker.
The usual types of mistakes break into two areas- that the will was not properly executed in accordance with established principles ,or the will itself does not make sense, is ambiguous, and needs to be constructed and interpreted.
Section 59 of WESA provides a new section allowing the court to rectify a will if the court determines that the will fails to carry out the will maker’s intentions because of:
1) an error arising from an accidental slip or omission;
2) a misunderstanding of the will maker’s instructions;
3) A failure to carry out the will maker’s instructions.
The court further allows for extrinsic evidence, that is evidence relating to the circumstances under which the will instructions were given and the will executed ,including evidence of the will maker’s intent, in order to prove the existence of the circumstance described in section 1 aforesaid .
For further reading on the construction or interpretation of wills, also see blogs on this site dated September 8,2011
June 1, 2012
April 20,2013 and
June 2, 2013.
The general guidelines of case law with respect to interpretation and construction of wills is as follows:
The goal in interpreting a will is to give effect to the testamentary intentions of the testatrix for the distribution of her estate: Rondel v. Robinson Estate, 2011 ONCA 493, 337 D.L.R. (4th) 193, at para. 23.
 The Ontario Superior Court of Justice in Re Kaptyn Estate, 2010 ONSC 4293, 102 O.R. (3d) 1, (“Kaptyn Estate”) helpfully summarized many of the principles relating to the interpretation and construction of wills:
a) The court will seek to determine the actual intention of the testator, as opposed to an objective intent presumed by law (para. 31).
b) Other cases interpreting words in other wills are of little assistance since the task is to interpret this testator’s subjective intentions (para. 32).
c) There is a distinction between interpretation and construction of a will. Interpretation seeks to determine the testator’s subjective intentions from the words used in light of the surrounding circumstances. Rules of construction are a default process turned to by the courts when the testator’s actual intentions cannot be ascertained (para 34).
d) The starting position of the court is the “armchair rule”, where the court puts itself in the place of the testator at the time when he made his will. This allows consideration of some extrinsic evidence of the surrounding circumstances known to the testator as might bear on his intentions (para. 35).
e) The authorities distinguish between admissible and inadmissible extrinsic evidence in interpreting a will (paras. 35-38):
i. “indirect extrinsic evidence” of the surrounding circumstances known to the testator at the time he made the will is generally admissible. This includes evidence of such things such as the testator’s occupation and property and financial situation; his relationships with family and friends; and natural objects of his grant;
ii. “direct extrinsic evidence” of the testator’s intentions is generally inadmissible. This is so as to preserve the will itself as the primary evidence, and to avoid the situation of an “oral will” displacing the written form. However, there is an exception where there is an “equivocation”, namely, where the will describes two or more persons or things equally well. In that situation, the law will allow evidence of the testator’s intention. Examples of inadmissible direct evidence are such things as notes or statements of the testator as to his intention, or instructions he gave his lawyer in preparing the will;
f) the court will interpret the will viewed as a whole (para. 138);
g) the court will prefer an interpretation that leads to a testacy, not an intestacy (para. 139); and,
h) the court will not hesitate to correct obvious mistakes, including deleting or inserting words, where to do so accords with the testator’s intentions, or where not to do so would lead to an absurd result (para 140).
 The proper approach of the court is to consider the language of the will in light of the surrounding circumstances together, rather than one first and then the other: Abram Estate v. Shankoff, 2007 BCSC 1368 at para. 77.
While it is much more common for courts to award a percentage of the residue of an estate to a wills variation claimant, it does on occasion occur where the court will order a lump sum award which may include interest..
That is a case in Sawchuk v Mackenzie 2000 BCCA 10, where the Court of Appeal increased the $500,000 lump sum award ordered by the trial judge to the sum of $1 million. The issue then became whether or not the plaintiff was entitled to interest on the award of $1 million and the court agreed. The rationale for their award of interest was that a lump sum under the wills variation act is a pecuniary legacy as opposed to a pecuniary judgment, and as such is subject to the general law that interest starts to run on a pecuniary gift one year after the testator’s death, at the rate set by the Canada interest act. The court had the following to say with respect to the issue of interest:Interest Is Claimable On Lump Sum Wills Variation Awards:
The issue remaining is whether the provision made by the Court attracts interest. It is conceded that a pecuniary legacy attracts interest: see Crerar v. Crerar Estate (1998), 24 E.T.R. (2d) 1 (B.C. C.A.) per Southin J.A. at p. 16. The formal order under appeal varies the will by deleting the amount of $10,000 from the bequest to the appellant and substituting the amount of $500,000. The effect of that order is that the provision for the appellant is made through a variation of the will and the will then speaks as varied. The form of the gift as a pecuniary legacy is unchanged; the variation is solely in the amount. The further variation that I would order does not affect the form of the bequest. 19 Mr. Carphin contended that the formal order is erroneous and the provision should have been made outside the will, presumably in the form of an order that the estate be charged with payment of the provision awarded to the appellant separately from the legacy of $10,000 under the will. The conceptual issue is: Does the court make provision for a claimant under the Wills Variation Act by varying the terms of the will or by making provision outside the will?
20 In my view, section 2 as worded is capable of both interpretations. Surprisingly, counsel were unable to direct the Court to any authorities in which this question has been addressed although it was acknowledged that orders made under the Act often direct variation of the will in the same manner as the formal order under appeal. The title of the statute is the Wills Variation Act, although it was formerly the Testator’s Family Maintenance Act and the name change occurred during a general statutory revision, likely without any consideration of the point at issue here. “Provision” is a general term without a precise technical legal meaning. In my opinion “provision out of the testator’s estate” is sufficiently wide to include variation of the terms of the will to give effect to the object of the Act as well as an order for payment or disposition of estate property apart from the will. Section 8 of the Interpretation Act, R.S.B.C. 1996, c. 238 directs that the Act is to be construed as being remedial and “given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.” Variation of the terms of a will in a proper case appears to me to be an appropriate means of giving effect to the objects of the Act and in my opinion the wording of s. 2 permits that interpretation. In this case the trial judge has given effect to his order through a variation of the terms of the legacy to the appellant and I think it was appropriate to do so. In my view, the trial judge erred only in the amount he substituted in the legacy and the clause of the formal order should stand with the amount of $1 million rather than $500,000. 21 The disposition remains a pecuniary legacy under the will, although varied in amount and attracts interest under the rule applicable to pecuniary legacies. So characterized I do not think that it is a “pecuniary judgment” within s. 1 of the Court Order Interest Act, R.S.B.C. 1996, c. 79. I agree with the conclusion to that effect in Morgan v. Morgan (1984), 16 E.T.R. 288 (B.C. S.C.), following an earlier unreported decision in the same court.
22 Wepruk (Guardian ad litem of) v. McMillan Estate (1993), 87 B.C.L.R. (2d) 194 (B.C. C.A.) is distinguishable. Wepruk (Guardian ad litem of) involved a pecuniary award to a common law spouse from an intestate estate under s. 86 of the Estate Administration Act, R.S.B.C. 1979, c. 114, for the support and maintenance of the spouse. It did not involve variation of a will and took the form of a pecuniary judgment against the estate. The Court concluded that the award was a pecuniary judgment within the meaning of the Court Order Interest Act but no interest was payable as the award was for a future pecuniary loss excluded by s. 2(a) of the Act.
23 Here there is no pecuniary judgment against the estate independently of the will. The provision takes the form of a variation of the will and the provision is effective through the will. Accordingly, in my opinion it is not a pecuniary judgment and the Court Order Interest Act has no application. Interest is payable under the general law applicable to pecuniary legacies, at the rate set by the Interest Act (Canada), R.S.C. 1985, c. I-15. I would amend the order of the trial judge to delete reference therein to the Court Order Interest Act. The order should direct that interest be paid after one year from the date of the testatrix’s death: see Hecht v. Hecht Estate (1991), 62 B.C.L.R. (2d) 145 (B.C. C.A.). 24 I would allow the appeal and increase the legacy to the appellant to $1 million. Appeal allowed.