The Estate of Gertrud Eberwein 2012 BCSC 250 is an excellent example of a wealthy person dying with a poorly drafted will that needs interpretation and construction by the court.
The deceased died in 2010 at age 85 years.
She did not have any children or spouse and left an estate of $10 million.
Her will was to be distributed amongst family and friends scattered throughout the world as well as various charities, one of which was no longer in existence.
There were various issues of interpretation as many clauses in the will were either poorly drafted, vague, or the beneficiary could not be located or ceased to exist.
I will deal with how the court dealt with the charitable bequest issue in a subsequent blog.
The case gives a helpful summary of the various rules of interpretation and construction of wills relating to poorly drafted wills:
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).
[18] 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.
What do you do when a formerly beloved relative dies, bequeathing to you a piece of swampland polluted by atomic waste? Must you accept this “gift”?
The legal answer is clearly “No” so long as you disclaim the gift in a timely fashion before receiving any benefit or otherwise dealing with the property.
There may be many reasons an intended beneficiary decides not to accept a gift. Our law permits an intended beneficiary to simply disclaim the gift. The purported gift is then deemed to be void ab initio (from the beginning). It becomes as if the gift had never been given.
There are rare exceptions to this right of disclaimer, largely limited to situations such as where a trustee has agreed to accept a conveyance of property.
In this article we will review some situations where beneficiaries have disclaimed inheritances and the resulting legal consequences.
Requirements of Legal Disclaimer
The legal requirements for disclaiming a gift are minimal. A disclaimer may be effected by contract, by deed, by writing or even informally through conduct.
The intended recipient of the gift need only renounce the interest, in effect, by saying “I will not be the owner of it“. The key is doing so before dealing with the property in any way.
The decision of Re Moss, (1977) 77 D.L.R. (3d) 314, is a good illustration of disclaimer by an informal act.
This case involved an elderly man chewing tobacco on the lawn of his local Kingdom Hall. As a result of this impropriety, the Jehovah’s Witnesses excommunicated him and a short time later he died –without having changed his will leaving everything to his church.
The church elders considered this gift and soon voted to disclaim the inheritance on the basis that it would be improper for them to accept such a gift from an excommunicated member.
When challenged in court, the court upheld the disclaimer, concluding the actions of the church elders were sufficient to disclaim the gift. Nothing more was required.
In doing so, the court cited Townson vs. Ticknell (1819) 3 B & Ald. 31, as the authority for the proposition that an estate cannot be forced upon a person. Further it is not necessary to go to trouble or expense to demonstrate that a gift is not accepted.
Note however the crucial question of timing. A disclaimer may be made only before the beneficiary has derived any benefit from the assets. Once a benefit has been taken, then the disclaimer can no longer be made. A. R. Mellows, The Law of Succession, p. 508.
All or Nothing
Where there is a single undivided gift, the law requires the donee to either take the gift entirely or disclaim it entirely: the donee cannot take only part of the gift and disclaim the rest.
This principle is illustrated in the following cases:
1. Guthrie v. Walrond (1883), L.R. 22 Ch.D 573. “Here the intended gift was all my estate and effects in the island of Mauritius”. The court held that the donee must take all or nothing and could not pick and choose.
2. Green V. Britten ( 1873) 42 L.J. Ch. 187. This involved a gift of 6 leasehold villas together with an ornamental park. The court held that this was one entire gift and the recipient could not take the villas alone and leave the park.
Retroactive to the Date of Death
Once made, a disclaimer will be retroactive to the date of death of the deceased. A beneficiary who disclaims a gift is refusing to acquire the property of another. Thus the effect of the disclaimer is that the property is never acquired. Re Metcalfe (1972) 3 O.R. 598.
What Becomes of the Disclaimed Gift?
Disclaimed gifts, unless there is a gift over, will fall into the residue of the estate. Where a gift of the residue is disclaimed, in the absence of a gift over then an intestacy results. If no contrary intention appears in the will, the disclaimed residue will pass on an intestacy. Re Stuart (1964) 47 W.W.R. 500(check Cite)
In Re Backhouse (1931) W.N. 168 (Ch.), a specific legacy, once disclaimed, became part of the residue of the estate.
Where an intestacy occurs, the next of kin are to be determined, prima facie, as of the date of the testator’s death unless there is sufficient indication in the will to some other effect: McEachern v. Mittlestadt (1963) 46 W.W.R. 359.
Disclaimer Not a Fraudulent Conveyance
In Mulek v. Sembaliuk ( 1985) 2 W.W.R. 385, a couple married and had four children. Ten years later the husband’s father died leaving him an inheritance. Following the death, the parties commenced divorce proceedings. The husband ran up significant arrears of maintenance and alimony.
The husband disclaimed his interest in his father’s estate which prevented his wife and children from attaching these funds to satisfy the maintenance claim.
At trial the wife was granted an order setting aside the husband`s disclaimer on the basis that it was a fraudulent conveyance.
The Court of Appeal granted the husband’s appeal, holding that a disclaimer does not convey property, rather it avoids the gift being conveyed in the first place. The husband had no obligation to accept the bequest, in spite of his obligation to support his dependants. The husband did not convey property by disclaiming his interest thus this disclaimer could not be categorized as a fraudulent conveyance.
In the Bank of Nova Scotia v. Chan, 68 C. B. R. ( N.S.) 118, five will beneficiaries were named as co defendants in an action brought by a judgment creditor of one beneficiary who disclaimed his interest. The creditor alleged that the debtor defendant, by disclaiming his interest, had conveyed this interest with the intent to defeat or defraud creditors.
Once more the court held that a disclaimer of a beneficiary`s entitlement under a will is not a conveyance and therefore not covered by the Fraudulent Conveyances Act.
The court went on to say that should it be found that the defendant had received some form of kickback for giving up his interest, then that would be an assignment of interest rather than a proper disclaimer. Such an assignment might very well be a fraudulent conveyance.
Acceleration
A disclaimer may result in the acceleration of subsequent interests, thus permitting future heirs to take immediately.
Blacks Law dictionary, revised 4th edition, 1968 defines acceleration as “the shortening of the time from vesting in possession of an expectant interest– hastening of the enjoyment of an estate which was otherwise postponed to a later period“
The recent decision Clarke v. Di Bella 2010 BCSC 505 is a good example of such an acceleration which effectively wound up a lengthy trust.
Mrs. Bushby died in July 2007, leaving a will and an estate valued at $600,000. Her will created a trust with a life interest for her only niece with the residue divided equally among those of the daughter`s nieces/nephews alive at the time of her death. The will also provided that if any of those nieces/nephews predeceased the this niece, and they themselves had children, then their children would receive their parent’s share.
The niece was middle aged and had 3 nieces/nephews who, at the time of the hearing, were 28, 26 and 23 years of age. None had any children of their own.
The niece and her 3 nieces/nephews brought an action jointly, in which the daughter sought to renounce her interest in the trust and to have the property vest immediately and absolutely in her nieces/nephews equally.
The application was opposed by the Public Guardian who took the position that the acceleration would improperly extinguish the contingent interests of unborn beneficiaries of the will.
The court set out four clear principles relating to acceleration:
a) acceleration is presumed unless there is an indication to the contrary;
b) in assessing whether there is any intention to the contrary, the court must look at both the instrument and the surrounding circumstances;
c) the instrument must be examined in its entirety, and clauses must not be examined in isolation; and
d) the intentions must be viewed, as nearly as is possible, from the perspective of the testator, applying an objective standard.
The court held that while it is clear that the testatrix intended to provide for her daughter, there is nothing to suggest that the daughter could not disclaim that benefit and provide immediately for the ultimate beneficiaries upon her death.
The court held that the aunt was free to disclaim her entitlement thus accelerating her nieces/nephews’ interests in the estate. Each niece/nephew thus inherited one third of the estate upon attaining the age of 25 years (the age stipulated by the testatrix).
Conclusion
Beneficiaries cannot be forced to accept gifts. Beneficiaries have the right to refuse to accept gifts and may choose to do so for a wide variety of reasons.
The Clarke V. DiBella decision is an excellent example of the court permitting the a beneficiary to disclaim her interest, in order to accelerate the passing of an absolute interest to her own children.
Re Lang 2011 BCSC 972 involved a court application for an interpretation of the commonly used words “grandchildren” and “great grandchildren” that were used in the testator’s will.
The testator divided the residue of her estate to her grandchildren and great-grandchildren. At the time of her death there were two grandchildren and one great
grandchild through her two adopted children.
The testator also had 10 grandchildren and 17 great-grandchildren through her two stepchildren.
The executor brought a petition for an interpretation of the testator’s will in regards to whether grandchildren and great-grandchildren included step relatives.
The court ordered that the words grandchildren and great-grandchildren in the testator’s will were interpreted as meaning legal descendents only, as that was
consistent with the most natural and ordinary meaning of the testator’s words.
There was no convincing reason to justify a departure from the legal presumption in favor of legal descendents.
There was minimal information about the testator’s relationship with her step grandchildren and step great grandchildren.
The testator’s handwritten notes listing legal descendents me contemporaneously with the execution of her will, was most significant during those notes were
in harmony with the natural language of the will.
Nothing in the solicitors notes suggested that the testator intended to include her 27 other grandchildren and great grandchildren as residual beneficiaries.
The testator’s feeling of love and affection for her step relatives was not inconsistent with her leaving residue to only her legal descendents.
The court made the following comments:
Finch J. as he then was, said at para. 7 of Widdess Estate v. Cunningham, [1984] B.C.J. No. 3052 (S.C.):
In construing the language of a will the court looks to the meaning which the words used would have had for the Testator. The court places itself, so far as is possible, in the position of the Testator when he made the will, and construes it in light of the facts and circumstances then known to him. The Testator’s intention is to be gathered from a construction of the will, as a whole, and not solely from words used in that part of the will said to be unclear or ambiguous. And, the will is taken to speak as of the date immediately before the Testator’s death.
See also, In the Matter of the Estate of Robert Selkirk Wood, 2010 BCSC 792, para. 12.
[15] Surrounding circumstances cannot, however, add to or contradict the plain meaning of the will: Hickey Estate v. Greig et al (1987), 27 E.T.R. 17 [Hickey], at 22.
[16] The will is the primary evidence of the testator’s intent. The court will not give effect to other evidenced intent in a way that overrides what the testator has expressed in the probated will: Jensen Estate (Re) (1990), 37 ETR 137, at 140.
[17] The judge’s duty is to decide what a particular testator intended in their individual circumstances. They should not to colour their interpretation of that intent based on what another court has found another testator, in other circumstances, intended by words they used: Hickey, page 23. It is noteworthy here though, that the court in Hickey thought interpreting the will in a way that would see the provision benefiting 8 grandchildren instead of 7 was not an addition to or variation of the will. In the case at bar, one of the two possible interpretations sees 3 residual beneficiaries, the other interpretation 30.
[18] A judge can consider the testator’s “intimacy” with the potential beneficiaries: Re Lupton (1964), 44 D.L.R., (2d) 535, para. 40.
It is very common in estate litigation for the party attacking a will to want production of the drafting lawyer’s will file relating to the taking of instructions, preparation of, and execution of the deceased’s last will.
As a general statement of law, any communications between a lawyer and his or her client(s) are “privileged” and cannot be disclosed, even after death by the personal representative of the deceased.
There is a significant exception to that general rule in estate litigation that relates to the question of the actual validity of a will.
The law relating to solicitor/client privilege was reviewed in Fawcett Estate v Fawcett Estate (1998) BCJ 629, which stated inter alia:
14a a) Once the lawyer client relationship arises, the privilege becomes permanent, unless the client waives it (Descoteaux v. Mierzwmski, [1982] 1 S.C.R.
860) and a solicitor’s duty to claim the privilege / applies to former or deceased clients, subject to the exception that on death, the deceased’s instructions
concerning a will, which were privileged during his or her lifetime may be disclosed.
14b b) By extension, the exception for wills cases permits posthumous disclosure of the settlors’
instructions concerning the creation of an inter vivos trust containing life and remainder interests
(Geffen v. Goodman Estate [1991] 2 S.C,R, 353
14c c) Legal professional privilege, or solicitor/client privilege, can be waived and that privilege
belongs to the client, so the client is the party who can waive the privilege. Until the client waives the
privilege, the lawyer owes a duty to assert it on the client’s behalf (Bell v. Smith, [1968] S.C.R. 664
(Ont).
14d d) With respect to waiver of privilege, although the privilege continues after the client’s death, an executor may waive it on behalf of a deceased client (Goodman v. Geffen, [1991] 5 W.W.R. 389 at 409-414 (S.C.C.).
14e e) the prerequisites of a valid waiver are that the client must know of the privilege and the right to
claim it, and intend to relinquish it, and appreciate the consequences of doing so.
14f f) Where the purpose for seeking disclosure of the confidential communications between lawyer and client was for the purpose of attempting to defeat the testator’s true intentions, as opposed to determining the true intentions of the testator, then the application (for production of the solicitor’s file) will be dismissed (Gordon v. Gilroy, [1994] B.C.J. No. 1927 (B.C.S.C.).
disinherited.com added the emphasis to 14f and points out that it is this line of case law, following the Gordon v Gilroy case, that prevents a lawyer from successfully getting a court order for the production of the drafting lawyer’s file in a wills variation action, where the claimant is not attacking the actual validity of the will,and is simply looking for reasoning in the lawyers file that might assist the claimant in defeating the testator’s intentions by varying the will in his or her favour.
The courts have stated that the testator’s intention re the will is obvious and is as stated in the will itself.
It is only where there is a claim attacking the validity of the will, such as for lack of capacity or undue influence, that the courts will order production of the drafting lawyers file. Otherwise, the file is provileged and non compellable.
Undue Influence General Principles, When clients approach disinherited.com with respect to suspicions that undue influence was exerted upon the deceased, I am mindful of two conflicting principles:
1. in my in my experience, “where there is smoke there is fire”, so their suspicions are probably well-founded;
2. An allegation of undue influence is tantamount to that of fraud, and if unsuccessful in the litigation, the failed litigant is typically punished with special costs
which are normally the full legal fees of the opposing party.
For more information on undue influence please refer to the website article entitled “How to Win an Undue Influence Case“.
General Principles of Undue Influence
In Longmuir v. Holland, 2000 BCCA 538 at para. 71, 192 D.L.R. (4th) 62, Southin J.A. defined undue influence as “influence which overbears the will of the person influenced so that in truth what she does is not…her own act”.
In the leading case of Allcard v. Skinner (1887), 36 Ch. D. 145 at 171, 56 L.J. Ch. 1052 [Allcard] (C.A.), Cotton L.J. discussed the two classes of transactions which may be set aside on grounds of undue influence:
“First, where the Court has been satisfied that the gift was the result of influence expressly used by the donee for the 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.”
The second class of undue influence does not depend on proof of reprehensible conduct. It affects those who may have acted in the sincere belief of their honesty. Under this class, equity will intervene as a matter of public policy to prevent the influence existing from certain relationships from being abused: Ogilvie v. Ogilvie Estate (1998), 49 B.C.L.R. (3d) 277 at para. 14, 106 B.C.A.C. 55 (C.A.), citing Allcard.
[100] In Geffen v. Goodman Estate, [1991] 2 S.C.R. 353, [1991] S.C.J. No. 53 at paras. 42-45, Wilson J. discussed the presumption of undue influence in the following passages:
42 ” 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. This test embraces those relationships which equity has already recognized as giving rise to the presumption, such as solicitor and client, parent and child, and guardian and ward, as well as other relationships of dependency which defy easy categorization.
43 Having established the requisite type of relationship to support the presumption, the next phase of the inquiry involves an examination of the nature of the transaction. …
44 … in situations where consideration is not an issue, e.g., gifts and bequests, it seems to me quite inappropriate to put a plaintiff to the proof of undue disadvantage or benefit in the result. In these situations the concern of the court is that such acts of beneficence not be tainted. It is enough, therefore, to establish the presence of a dominant relationship.
45 Once the plaintiff has established that the circumstances are such as to trigger the application of the presumption, i.e., that apart from the details of the particular impugned transaction the nature of the relationship between the plaintiff and defendant was such that the potential for influence existed, the onus moves to the defendant to rebut it. As Lord Evershed M.R. stated in Zamet v. Hyman, supra, at p. 938, the plaintiff must be shown to have entered into the transaction as a result of his own “full, free and informed thought”. Substantively, this may entail a showing that no actual influence was deployed in the particular transaction, that the plaintiff had independent advice, and so on. Additionally, I agree with those authors who suggest that the magnitude of the disadvantage or benefit is cogent evidence going to the issue of whether influence was exercised.
Accordingly, once a relationship with the potential for domination has been established, the next phase of the inquiry is to examine the nature of the transaction.
Where a gratuitous transfer is concerned, the onus moves to the defendant to rebut the presumption on the balance of probabilities: Stone v. Campbell, 2008 BCSC 1518 at para. 44, 44 E.T.R. (3d) 146.”
Re Brookes estate 2011 BCSC 1606 involves a hand written half page BC will, in which the testator appointed his brother as executor and provided:
” I leave my property ( address stated) to my brother executor with power of attorney. Also my accounts at Royal Bank of Canada merit, BC”
The will then listed the names and addresses of the five respondents adding:
“I would all the people named above to share equally in my estate”
The testator’s estate consisted of his house and bank accounts totaling approximately $275,000.
The petitioners brother claimed that he had been left the house and bank accounts-in effect everything for his own use.
The court found that the assets were instead left to the brother as executor, with him and the five respondents to share equally in the entire estate.
Some of the important rules of wills interpretation utilized by the court are as follows:
1. The court’s task in construction of a will is to give effect to the intention of the testator, which is normally accomplished by giving “fair and literal meaning to the actual language of the will.” Re Browne, [1934] SCR 324 at p. 328, Easter v. Bush (1999), 26 E.T.R. (2d) 184 at para. 35. The fundamental principle , as stated in Re Browne at p. 330, is:
Effect must be given to the testator’s intention ascertainable from the expressed language of the instrument. . So far as possible, the will itself must speak. . If, after careful consideration of the language used, in the particular passage immediately under examination and consistently with the context of the document, the intention remains doubtful, then resort may be had to certain rules which have been generally adopted.
2. The court should make every effort to reconcile two apparently conflicting provisions of a will, rather than absolutely ignoring one or the other: Re Estate of Douglas Carson Smith, 2008 BCSC 1189 at para. 34.
Where there is an obvious ambiguity or omission, the court may ignore, add or substitute words, but only to a very limited degree and only when the intention is plain and clear: Milwarde-Yates v. Sipila, 2009 BCSC 277 at para. 48. Further words cannot be read in “[u]nless one can be reasonably certain from the context of the will itself what are the words which have been omitted”: Laws et al v. Rabbitt et al, 2006 BCSC 1519 at para. 56, citing Re Follett Estate, [1955] 1 W.L.R. 429 (Eng. C.A.).
3. Extrinsic evidence may be used to resolve ambiguity. A frequently quoted description of that process comes from Re Burke (1959), 20 D.L.R. (2d) 396 (Ont.C.A.) at 398, which was approved by the British Columbia Court of Appeal in Davis Estate v. Thomas (1990), 40 E.T.R. 107 and Smith v. Smith Estate, 2010 BCCA 106:
“Each Judge must endeavour to place himself in the position of the testator at the time when the last will and testament was made. He should concentrate his thoughts on the circumstances which then existed and which might reasonably be expected to influence the testator in the disposition of his property. He must give due weight to those circumstances in so far as they bear on the intention of the testator. He should then study the whole contents of the will and, after full consideration of all the provisions and language used therein, try to find what intention was in the mind of the testator. When an opinion has been formed as to that intention, the Court should strive to give effect to it and should do so unless there is some rule or principle of law that prohibits it from doing so. ”
Kayne v Wright et al 2012 BCSC 119 is an excellent example of “mutual wills” which on occasion arise in estate litigation disputes.
The general principle in law is that a will is always revocable.
Most married couples execute what are commonly known as mirror wills, as the wills are virtually identical but for the change of names between the testators.
In a mutual will situation however there must be evidence of an agreement not to revoke one’s will that must be clear and unequivocal.
If the court finds that there was a binding agreement between the parties, and one of the parties subsequently revokes that will and executes another, then the beneficiaries of the revoked will have a claim in law for constructive trust against the offending testator’s estate and its beneficiaries.
In this case, the husband agreed to give his wife a life interest in a condominium, make provisions in his will giving her a life interest in another property he might own at his death, and transferring to her his registered retirement income funds.
In exchange, the female party agreed to use the condominium for maintenance and support during her lifetime and to make a will which provided for in your revocable gift of the remainder of her estate to the males estate after gift of $30,000 was paid to each of her children.
The court referred to each of their wills/codicil and noted for example that the male parties’ will contained the following words:
“and it is understood that this paragraph of my will shall be your revocable, this life estate being granted to my wife in consideration of the term in her will providing for the remainder of her estate, after gift of $30,000 paid to each of her children, to fall into my estate.
The wife had similar wording in her will.
The husband subsequently died and the wife shortly thereafter changed her will on two occasions prior to her death, and change the beneficiaries from her late husband’s estate, to her own new beneficiaries.
THE LAW AND ANALYSIS
[ The doctrine of mutual wills and the obligations flowing from them was discussed by Mr. Justice Cullity in Edell v. Sitzer (2001), 55 O.R. (3d) 198 (Ont. Sup. Ct. J.). He stated at paras. 57-58:
[57] ” The doctrine of mutual wills has traditionally been applied in cases where individuals have made separate wills pursuant to an agreement with respect to their terms. Most commonly, they have agreed that each will obtain a benefit under the other’s will and that other specified individuals will receive the property of each of them on the death of the survivor. In some cases of this sort, the benefit obtained by the survivor under the other’s will has been a life interest; in other cases, it has taken the form of an outright gift. Where the requirements for the application of the doctrine are satisfied, the survivor will not be permitted to defeat the agreement by revoking his or her will after the death of the other. This result is achieved by the imposition of a constructive trust on the survivor’s estate for the benefit of those who were intended to benefit under the agreement. ( emphasis added)
[58] The most fundamental prerequisite for an application of the doctrine is that there be an agreement between the individuals who made the wills. It has been repeatedly insisted in the cases that: (a) the agreement must satisfy the requirements for a binding contract and not be “just some loose understanding or sense of moral obligation” (Re Goodchild (Deceased), [1996] 1 All E.R. 670 (Ch. D.), at p. 681)[;] … [b] It must be proven by clear and satisfactory evidence; and (c) it must include an agreement not to revoke the wills.”
There are many court cases that define undue influence, and most state something to the effect that the influence must overbear the will of the person influenced so that in truth what she or he does is not his or her own act.
In the decision Canada Trust Company v Ringrose 20009 B. C. J. 2530 The Court held that the presumption of undue influence is triggered once a relationship with the potential for domination has been established and can apply where a parent transfers property to an adult child.
It is not the case that a gratuitous transfer from a parent to an adult child automatically creates a presumption of undue influence.
The decision Calmusky v Karaloff 1947 S. C.R. 110, the court held that the presumption of undue influence does not automatically arise upon a transfer of valuable property from an elderly parent to a child in circumstances where the parent is in good health and has possession of all his or her faculties.
However the courts have held that the presumption of undue influence does apply if the relationship between elderly parent and child is characterized by dependency.
Thus in the case of an old and sick parent, a child may easily assume relationship of dominance over that parent.
Some case law has identified such relationships as being ones of dependency.
The leading case in this area is the Supreme Court of Canada case of Geffen versus Goodman Estate from 1991.
Wills Variation Claim Won By 91 Year Old Surviving Spouse
Mars v Bain Estate 2011 BCSC 1714 involves a claim brought by a 91-year-old female spouse who had lived in a marriage like relationship with the deceased for the last nine years of his life. She brought a court case contesting the will in BC.
The deceased died at age 84 years leaving an estate valued at approximately $1.5 million, and a 62-year-old son who was vocationally and economically vulnerable. He had no income and no property and had been dependent on the estate for his living expenses for at least eight months.
The plaintiff had almost no assets but did have adequate pension income after the death of the plaintiff.
The deceased’s will left the plaintiff a life estate in the home that they shared plus an additional $50,000.
Other than $50,000 in bequests, the rest of his $1.4 million estate went to the 62-year-old son.
The court varied the will and gave the plaintiff an additional $150,000 and otherwise left the will unchanged.
The court noted that the deceased and the plaintiff did not engage in a sharing of assets or significant economic contributions to the estate other than sharing the home previously owned by the deceased.
The court adopted some of the criteria as stated in the Court of Appeal decision Picketts vs Hall 2009 BCCA 329 with respect to some of the helpful factors in assessing the moral obligations of the testator towards the spouse:
1) the absence of a legal obligation to the testator’s children;
2) the length of the marital relationship;
3) the agreement of the spouse to give up a career depriving him or her of the opportunity to accumulate in the estate of his or her own;
4) the necessity of the spouse to dip into his or her savings to supplement living expenses the testator had agreed to provide;
5) the lengthy period of loving and effective care provided by this post to the testator during his or her decline;
6) the size and liquidity of the estate.
While disinherited.com cannot categorically state that the decision is incorrect in any way, it is our opinion that the award is slightly on the lower side, undoubtedly due to the advanced age of the plaintiff and the lack of evidence as to her need.
Disinherited Homosexual Children and the Wills Variation act
I came across the decision Patterson v. Lauritsen (1984) 6 WWR 329, and was pleasantly surprised to learn that as” far back” as 1984, the BCSC varied a will to provide an equal share to a disinherited gay son on the basis that homosexuality was not a factor which would justify a judicious parent wisely disinheriting a child.
The plaintiff, aged 43, one of four children, was excluded from the will of the testatrix, his mother, which divided her estate equally among the remaining three children.
Those three children, the defendants, were all well advanced in their adult lives and were in better financial circumstances than the plaintiff.
The plaintiff was a homosexual and an alcoholic and had been unemployed since 1970, living on welfare and the contributions of his male partner.
The plaintiff often fought with the testatrix but they had enjoyed a loving relationship.
The testatrix had informed her solicitor that she was excluding the plaintiff from her will because he was living with a homosexual and was a drug addict.
The plaintiff brought an action for relief under s. 2 of the Wills Variation Act.
The Court granted judgement for the plaintiff on the basis:
The testatrix failed to provide that provision for the plaintiff’s proper maintenance and support which a judicious parent, seeking to discharge his parental duty, would have made.
The testatrix’s suspicions of drug addiction were unfounded.
The fact of homosexuality in today’s society was not a factor which would justify a judicious parent, acting wisely, disinheriting a child. In all the circumstances, one quarter of the estate was an adequate, just and equitable provision for the plaintiff.
Binding Agreement Not to Revoke Will
