Re: Hadley Estate 2017 BCCA 311 the BC Appeal court upheld the principle of costs in estate litigation where the litigation is necessary due to the conduct of the deceased, then each party will normally be entitled to have their legal fees paid for from the estate as special costs. In Hadley the document in question was found not to be a will but it was reasonable for the parties to ask the court for a determination as to whether or not the document was a will:
What costs order should be made on the appeal?
[47] In estate litigation, courts commonly award special costs payable out of the estate to all parties. This practice is based on the principle that where an estate issue must be litigated to remove any doubts, all interested parties must be joined and all are entitled to be heard. In such circumstances, they should not be out of pocket if, in the result, the litigation does not conclude in their favour. The central question as to costs is whether the contested issue arises from the conduct of the deceased or the conduct of another. In the case of the former, an award of special costs from the estate will usually be made: Milwarde-Yates v. Sipila, 2009 BCSC 277 at paras. 81–82.
[48] The judge awarded special costs payable out of the estate to all parties. Her costs award has not been challenged and, in my view, the same costs award is appropriate on appeal. All parties to the appeal were drawn into the litigation because Ms. Hadley wrote the 2014 Will and provided it to Ms. McDermott for safe-keeping. The appeal concerned its validity and legal implications and, while ultimately unsuccessful, was not brought unreasonably
Re Hadley Estate 2017 BCCA 311 was upheld by the Court of appeal in finding that a rambling journal was not a will that could be “cured” by S 58 WESA.
This was the first appeal court decision on Section 58 WESA.
Section 58 of the WESA
[33] British Columbia was a “strict compliance” jurisdiction prior to passage of the WESA. Under s. 4 of the Wills Act, R.S.B.C. 1996, c. 489, testators were obliged to comply strictly with execution and attestation formalities for creating a will for it to be valid. The same was true for revoking, altering or reviving a will: Wills Act, ss. 14, 17, 18. These formal requirements sometimes led to a will-maker’s testamentary intentions being defeated for no good reason. As a result, the British Columbia Law Institute recommended the introduction of a dispensing power to relieve against the consequences of non-compliance with testamentary formalities as part of a general reform of wills and estate administration law: BCLI, Wills, Estates and Succession: A Modern Legal Framework (BCLI Report No. 45, June 2006) at xiv.
[34] Section 58 of the WESA is the legislative response to the BCLI recommendation. Remedial in nature, it confers a broad discretion on the court to order that a “record or document or writing or marking on a will or document” be fully effective, despite non-compliance with the statutory requirements. Although s. 58 cannot be used to uphold a will that is substantively invalid, it permits the court to cure issues of formal invalidity in prescribed circumstances:
Court order curing deficiencies
58 (1) In this section, “record” includes data that
(a) is recorded or stored electronically,
(b) can be read by a person, and
(c) is capable of reproduction in a visible form.
(2) On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents
(a) the testamentary intentions of a deceased person,
(b) the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or
(c) the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.
(3) Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made
(a) as the will or part of the will of the deceased person,
(b) as a revocation, alteration or revival of a will of the deceased person, or
(c) as the testamentary intention of the deceased person.
…
[35] For an order to be granted under s. 58 of the WESA, the court must be satisfied that a document represents the testamentary intentions of the deceased person. However, unlike the curative provisions in some provinces, s. 58 does not require a minimum level of execution or other formality for a testamentary document to be found fully effective. Regardless of its form, if the court grants an order under s. 58(3), the document may be admitted to probate.
[36] As discussed in Estate of Young, s. 58 is very similar to Manitoba’s curative provision and thus the leading appellate authority on its meaning is George v. Daily. George and several other Manitoba authorities are reviewed in Estate of Young, which review need not be repeated. Their import is summarized at paras. 34–37:
[34] As is apparent from the foregoing, a determination of whether to exercise the court’s curative power with respect to a non-compliant document is inevitably and intensely fact-sensitive. Two principal issues for consideration emerge from the post-1995 Manitoba authorities. The first in an obvious threshold issue: is the document authentic? The second, and core, issue is whether the non-compliant document represents the deceased’s testamentary intentions, as that concept was explained in George.
[35] In George the court confirmed that testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death. The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death. A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a will, by its nature, is revocable until the death of its maker. Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.
[36] The burden of proof that a non-compliant document embodies the deceased’s testamentary intentions is a balance of probabilities. A wide range of factors may be relevant to establishing their existence in a particular case. Although context specific, these factors may include the presence of the deceased’s signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests and the title of the document: Sawatzky at para. 21; Kuszak at para. 7; Martineau at para. 21.
[37] While imperfect or even non-compliance with formal testamentary requirements may be overcome by application of a sufficiently broad curative provision, the further a document departs from the formal requirements the harder it may be for the court to find it embodies the deceased’s testamentary intention: George at para. 81.
The Material Time
[37] In many cases, as here, the material time for determining testamentary intentions on a s. 58 application is the time when the document in question was created. However, as noted in Estate of Young, depending on the circumstances, the material time may vary on this key issue. For example, after creating a document, a will-maker may, by words or actions, manifest a fixed and final intention that it expresses how his or her property is to be disposed of on death and thus that it operates as a will. In other words, a document may acquire a testamentary character by subsequent and sufficient manifestation of the will-maker’s intention: Bennett et al. v. Toronto General Trusts Corporation, [1958] S.C.R. 392 at 397. Nevertheless, in most cases, the focus of inquiry will be the will-maker’s intention when the document was prepared and executed: see, for example, Sweeney Cunningham Estate v. Sweeney, 2013 NSSC 299 at para. 29; Komonen v. Fong, 2011 NSSC 315 at para. 23.
The Scope of Admissible Extrinsic Evidence
[38] The WESA does not indicate what evidence is admissible on a s. 58 inquiry. Accordingly, the ordinary rules of admissibility apply.
[39] Ordinarily, evidence must be relevant to a live issue and not be subject to exclusion under any other rule of law or policy to be admissible: Sidney N. Lederman, Alan W. Bryant and Michelle K. Fuerst, The Law of Evidence in Canada 4th ed. (Markham: LexisNexis Canada Inc., 2014) at §2.40. Relevance must, therefore, be assessed on a case-by-case basis. Mr. Justice Rothstein affirmed the meaning of “relevance” in R. v. White, 2011 SCC 13:
36 … In order for evidence to satisfy the standard of relevance, it must have “some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would be in the absence of that evidence” [citations omitted].
37 … to say that an item of evidence is not relevant; that it is not probative of a live issue; or that it is “equally explained by” or “equally consistent with” either determination of a live issue are three ways of saying the same thing.
[40] Sitting as a court of probate, the court’s task on a s. 58 inquiry is to determine, on a balance of probabilities, whether a non-compliant document embodies the deceased’s testamentary intentions at whatever time is material. The task is inherently challenging because the person best able to speak to these intentions – the deceased – is not available to testify. In addition, by their nature, the sorts of documents being assessed will likely not have been created with legal assistance. Given this context and subject to the ordinary rules of evidence, the court will benefit from learning as much as possible about all that could illuminate the deceased’s state of mind, understanding and intention regarding the document. Accordingly, extrinsic evidence of testamentary intent is admissible on the inquiry: Langseth Estate v. Gardiner (1990), 75 D.L.R. (4th) 25 at 33 (Man. C.A.); Yaremkewich Estate (Re) at para. 32; George. As is apparent from the case authorities, this may well include extrinsic evidence of events that occurred before, when and after the document was created: see, for example, Bennett; George; Estate of Young; Re MacLennan Estate (1986), 22 E.T.R. 22 at 33 (Ont. Surr. Ct.); Caule v. Brophy (1993), 50 E.T.R. 122 at paras. 37–44 (Nfld. S.C.).
The Judge’s Treatment of the Evidence
[41] The judge conducted her s. 58 inquiry in a thorough, careful, transparent manner. She considered the words and form of the 2014 Will in detail, together with the large and varied body of extrinsic evidence of events that occurred before, when and after it was made. The focus of her analysis was Ms. Hadley’s intention when she wrote the 2014 Will, which was the material time for s. 58 purposes. On balance, she concluded that it did not represent a deliberate and final expression of Ms. Hadley’s testamentary intentions, which conclusion, though not inevitable, was reasonably available on the evidence as a whole.
[42] In her reasons, the judge listed or had previously noted virtually all of the factors characterized by the appellants as genuinely probative of the central issue. However, after balancing those factors with others to contrary effect, she simply was not persuaded by their arguments or the validity of their position. I see no error in the manner in which she reached this conclusion or in her interpretation of the evidence and its overall import.
[43] Contrary to the appellants’ submission, the evidence the judge relied upon to support her conclusion was relevant to Ms. Hadley’s testamentary intentions when the 2014 Will was written. While not necessarily dispositive, each item of impugned evidence tended to increase the likelihood that the 2014 Will did not express her final intentions for the disposal of her property on death. For example, although she was not obliged to leave bequests to her nieces, she had previously done so in the 2008 Will and an explanation for the change and some form of express revocation might reasonably have been expected, but both were absent: see McNeil v. Snidor Estate, 2008 MBQB 187 at paras. 21, 23. As a matter of logic and human experience, their absence tended to make it more likely that the 2014 Will did not express Ms. Hadley’s final intentions than it would have been if there was evidence of either or both.
The introduction of the Wills Estates and Succession act (WESA) on March 31,2014 made a few significant changes to the law relating to the revocation of wills.
Probably the most significant change was that marriage after the execution of a will no longer revokes a will. This largely unknown fact had created much hardship in estate law over a long period of time.
The other significant change is the insertion of section 58 WESA known as the curative provision for otherwise defective wills.
Section 55 of WESA provides as follows:
55 (1) A will or part of a will is revoked only in one or more of the following circumstances:
by another will made by the will-maker in accordance with this Act;
by a written declaration of the will-maker that revokes all or part of a will made in accordance with section 37 ;
by the will-maker, or a person in the presence of the will-maker and by the will-maker’s direction, burning, tearing or destroying all or part of the will in some manner with the intention of revoking all or part of it;
by any other act of the will-maker, or another person in the presence of the will-maker and by the will-maker’s direction, if the court determines under section 58 that
(i) the consequence of the act of the will-maker or the other person is apparent on the face of the will, and
(ii) the act was done with the intent of the will-maker to revoke the will in whole or in part.
(2) A will is not revoked in whole or in part by presuming an intention to revoke it because of a change in circumstances.
VOLUNTARY REVOCATION
It should be stated at the outset that section 58 WESA which is discussed later in this paper may well alter the common law stated hereafter quite dramatically if it is applied in the same sweeping effect that the courts have used that section to cure defective wills. To date there have been no reported cases on how the courts will apply section 58 WESA to remedy defective revocations, but I anticipate that the effects will be dramatic.
Voluntary Revocation can be accomplished by any of the following:
by executing a subsequent will or codicil that typically contains a revocation clause of the previous will;
a written declaration declaring an intention to revoke a will and duly executed in the same prescribed manner as a will;
by burning, tearing or otherwise destroying the will by the testator or by someone in the presence and by the direction of the testator
The execution of a subsequent will or codicil is by far the most common method of revoking a will.
In fact, when a testamentary document is valid and contains a revocation clause , there is a very heavy onus on anyone attacking the will attempting to argue that the revocation clause was not intended to be operative. McCarthy v Fawcett ( 1945) 1 W.W.R. 70 ( B.C.C.A)
Drawing a line through the signature and adding the words I hereby revoke this will was held to be of no legal effect in Bell v. Matthewman ( 1920) 49 O.L.R 364.
A letter properly attested by two witnesses and addressed to the bank manager who held the original will on deposit stating “ will you please destroy the will already made out was held to have effectively revoked the will in Re Spracklan ( 1938) 2 All E.R. 730.
With respect to the destruction of a will, there must be both the act of destruction as well as the intention to destroy the will and any symbolic destruction will not suffice. Partial tearing of the will which leaves the words legible does not necessarily show an intention to revoke. There must be such an injury with intent to revoke that it destroys the entirety of the will to have an effective revocation. Re Shafner ( 1956) 2 D.L.R. ( 2d) 593 ( N.S.C.A.)
The Common Law Presumption of Destruction
Very often in estate disputes the original or a will cannot be found and an attempt is made to probate a copy, giving rise to the legal issue as to whether the will had been destroyed or simply lost.
If an original duly executed will that was in the possession of the testator is not propounded upon death and the executor fails to prove that the original was not merely lost and not destroyed, then there is a common law presumption that is rebuttable by sufficient evidence that the will was destroyed by the testator, that the testator destroyed the will for the purpose of revoking it. Sigurdson v Sigurdson (1935) 4 DLR 529 ( S.C.C.) and Kumar v Kumari ( 1993) BCJ No. 108.
The evidence necessary to rebut the presumption of revocation need not be such as to amount to a positive certainty , but only such as to produce moral conviction. Re Matt estate ( 1954) 11 WWR ( NS) 28 ( Man.C.A).
The Sigurdson case ibid stated that the evidence to rebut the presumption of revocation must be clear and convincing to satisfy the court that the will had in fact been lost and not destroyed by the testator with an intention of revoking the will.
Various Factors of Consideration by the Court Whether the Presumption Applies
Haider v Kalugin 2008 BCSC 930 enumerated some of the factors the court will consider in deciding whether the presumption of revocation applies, and if so, whether it has been rebutted:
whether the testator continued to have good relations with the named beneficiaries in the copy of the will up to the date of death;
whether the terms of the will were reasonable
the nature and character of the deceased in taking care of personal effects- ie orderly vs hoarding;
statements made by the testator to either confirm or contradict the terms of the will copy;
whether the deceased understood the consequences of having a will and the effects of an intestacy;
were personal papers stored carefully or haphazardly;
The presumption of revocation does not apply where the original will cannot be traced to the possession of the testator. Brimicombe v Brimicombe Estate (2001) NSJ No. 157 (N.S.C.A). For example if the original was stored at the drafting lawyers office and the will was lost while there, the presumption would not apply.
SECTION 58 WESA
Section 58 of WESA, reads as follows:
58 (1) In this section, record includes data that
(a) is recorded or stored electronically,
(b) can be read by a person, and
(c) is capable of reproduction in a visible form.
(2) On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents
(a) the testamentary intentions of a deceased person,
(b) the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or
(c) the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.
(3) Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made
(a) as the will or part of the will of the deceased person,
(b) as a revocation, alteration or revival of a will of the deceased person, or
(c) as the testamentary intention of the deceased person.
(4) If an alteration to a will makes a word or provision illegible and the court is satisfied that the alteration was not made in accordance with this Act, the court may reinstate the original word or provision if there is evidence to establish what the original word or provision was.
Section 58 WESA is a dramatic change to the law of revocation given that even if the document attempting to revoke a will is defective, if the court finds that the intention of the testator was to revoke the will, then under Section 58 (3) the court can cure the defect so as to give legal effect to the intention of the testator.
The “curative†provisions of Section 58 was illustrated in Horton v Bruce 2017 BCSC 712 where the court remedied only the revocation clause and not the distributive clauses of a subsequent draft will that had been signed by the testator but not witnessed by two witnesses in the presence of each other. The legal effect of the imposition of Section 58 (3) was to cause the deceased to die intestate.
Horton v. Bruce relied upon a Supreme Court of Canada decision Bell Express Vu Limited Partnership v Rex 2002 SCC 42 for the authority to interpret Section 58 to give the courts the power to cure only a part of a document or a writing deemed to be a will, and not the entire document.
CONCLUSION
The effects of WESA will be dramatic upon the law of revocation of wills. Section 55 WESA abolished the revocation of a will by any marriage that takes place after March 31, 2014.
The effect of Section 58 WESA has yet to be recognized but the application of that section in the Horton v Bruce decision leads me to believe that Section 58 will be liberally applied to remedy any defective revocation if the court concludes that it was the intention of a testator to revoke a will but failed to do so in a manner that the common law previously demanded.
Section 58 WESA was once again successfully used in Re Litke Estate 2017 BCSC 1079 to find a hand written unwitnessed signed “will-like” document to be a valid will.
Such documents are now routinely found valid by the courts if certain criteria are met. The application in Re Litke was not even opposed.
STATUTE, CASELAW AND DISCUSSION
17 Part 4 of the WESA provides:
Part 4 — Wills
Division 1 — Making a Will
Who can make a will
36 (1) A person who is 16 years of age or older and who is mentally capable of doing so may make a will.
(2) A will made by a person under 16 years of age is not valid.
How to make a valid will
37 (1) To be valid, a will must be
(a) in writing,
(b) signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and
(c) signed by 2 or more of the witnesses in the presence of the will-maker.
(2) A will that does not comply with subsection (1) is invalid unless
(a) the court orders it to be effective as a will under section 58 [court order curing deficiencies],
(b) it is a will recognized as valid under section 80 [validity of wills made in accordance with other laws], or
(c) it is valid under another provision of this Act.
18 Section 58 of Part 4 provides:
58 (1) In this section, “record” includes data that
(a) is recorded or stored electronically,
(b) can be read by a person, and
(c) is capable of reproduction in a visible form.
(2) On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents
(a) the testamentary intentions of a deceased person,
(b) the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or
(c) the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.
(3) Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made
(a) as the will or part of the will of the deceased person,
(b) as a revocation, alteration or revival of a will of the deceased person, or
(c) as the testamentary intention of the deceased person.
(4) If an alteration to a will makes a word or provision illegible and the court is satisfied that the alteration was not made in accordance with this Act, the court may reinstate the original word or provision if there is evidence to establish what the original word or provision was.
Case Review
19 The decision of Dixon J. in Estate of Young, 2015 BCSC 182 [Young], was the first case to consider the WESA, which came into force in British Columbia on March 31, 2014, apparently modelled after similar legislation in Manitoba.
20 At para 16, Dickson J. noted that the enactment of c. 13 represented “a significant change in wills and estate administration law in the province”, with s. 58 “one of the WESA’s most far-reaching remedial provisions.” She noted that “It marks a departure from the traditional principles of formalism that previously governed the creation, alteration and revocation of wills in British Columbia.”
21 At para. 17, Dickson J. noted:
[17] Section 58 of the WESA is a curative provision. It confers a discretion on the court to relieve against the consequences of non-compliance with testamentary formalities in the “record, document or writing or marking on a will or document”. In prescribed circumstances, s. 58 permits the court to address and cure issues of formal invalidity in such documents. It cannot, however, be used to uphold a will that is invalid for substandard reasons such as testamentary incapacity or undue influence.
22 At para. 24, Justice Dickson referred to George v. Daily (1997), 143 D.L.R. (4th) 273 (Man. C.A.). As noted by Dickson J. at para. 26, Philp J.A. at paras. 62 and 65 of the Manitoba decision, stated the following on “the limits placed on the court’s curative powers”:
Not every expression made by a person, whether made orally or in writing, respecting the disposition of his/her property on death embodies his/her testamentary intentions . . .
The term “testamentary intention” means much more than a person’s expression of how he would like his/her property to be disposed of after death. The essential quality of the term is that there must be a deliberate or fixed and final expression of intention as to the disposal of his/her property on death [citations omitted].
23 At para. 35 of Young, Dickson J noted:
[35] . . . A deliberate or fixed and final intention is not the equivalent of an irrevocable attention, given that a will, by its nature, is revocable until the death of its maker. Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.
24 At para. 27, Dickson J. noted the following:
[27] In Kuszak v. Smoley, [1986] M.J. No. 670 (Q.B.), a partially-printed and partially-handwritten document signed by the deceased but not witnessed was found to reflect the deceased’s testamentary intentions. The court relied on several factors in making this determination, including:
(1) the document was in the deceased handwriting;
(2) the document was signed by the deceased in four places;
(3) the date was in four places;
(4) the printed portion identified the document as a will and was properly filled out; and
(5) there was nothing before the Court refuting the conclusion that the document embodied the deceased’s intentions.
In these circumstances, the handwritten document was validated pursuant to s. 23 of the WA.
25 After a further review of cases at paras. 28 to 33, Justice Dickson came to the following conclusion at paras. 34 to 37:
[34] As is apparent from the foregoing, a determination of whether to exercise the court’s curative power with respect to a non-compliant document is inevitably and intensely fact-sensitive. Two principal issues for consideration emerge from the post-1995 Manitoba authorities. The first in an obvious threshold issue: is the document authentic? The second, and core, issue is whether the non-compliant document represents the deceased’s testamentary intentions, as that concept was explained in George.
[35] In George the court confirmed that testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death. The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death. A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a will, by its nature, is revocable until the death of its maker. Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.
[36] The burden of proof that a non-compliant document embodies the deceased’s testamentary intentions is a balance of probabilities. A wide range of factors may be relevant to establishing their existence in a particular case. Although context specific, these factors may include the presence of the deceased’s signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests and the title of the document: Sawatzky at para. 21; Kuszak at para. 7; Martineau at para. 21.
[37] While imperfect or even non-compliance with formal testamentary requirements may be overcome by application of a sufficiently broad curative provision, the further a document departs from the formal requirements the harder it may be for the court to find it embodies the deceased’s testamentary intention: George at para. 81.
27 In Yaremkewich, the deceased left documents that failed to comply with the formal execution requirements of the WESA. She purported to appoint her niece, the applicant, as one of the executors. The other executor renounced her co-executorship. The estate property, listed in a Statement of Assets, Liabilities, and Distribution provided by the applicant, included her “principal residence, various banking and investment accounts, her motor vehicle, and some insurance benefits. The only liabilities of the estate [were] relatively small fees, many of which [had] already been paid. . . . [T]he value of the estate [was] approximately $545,000.” [Para. 3.]
28 As in this case, the application was not opposed in Yaremkewich.
29 In Yaremkewich, the deceased had been diagnosed with cancer. Her health continued to decline in the months preceding her death. She took multiple medications (as noted at para. 7) including “hydromorphone (a form of morphine) and Ativan”. As in this case, the evidence did not indicate her medical condition or whether medications seriously affected her mental abilities at the time she drafted the will. In the case at bar, there is no evidence the deceased was ill at the time or taking medications that could have affected her mentation at the time she signed the will-like document.
30 The deceased executed a pre-printed will template form titled “Last Will and Testament”. The document purported to revoke all her former wills, codicils and testimony dispositions, although Watchuk J. noted there was no evidence of any prior will to revoke.
31 The deceased had appointed two persons as executors; one of them who had stepped aside.
32 As noted at para 13, “The original of the pre-printed will was kept in an unsealed envelope first opened on July 7, 2014 after [the deceased’s] death”. The words, “Will of [the deceased]”, were written in what her executor, who the court found seemed to have a strong relationship with the deceased, believed was the deceased’s handwriting.
33 The “Will” appointed executors, set out burial arrangements, and directed payment of certain taxes and expenses to be paid out of the estate. As in this case, it provided “a number of gifts, that included money bequests”. It provided for “a five-way division of the proceeds of [the deceased]’s house” and included with the document was a 12-page, stapled, handwritten list of bequests, organized by beneficiary and type of gift for the 19 beneficiaries which included nieces, nephews, stepsons, extended family and friends. [Para. 15.]
34 A third document entitled “Charitable Bequests” was a one-page, handwritten list of charitable bequests that purported to distribute the “remaining money from [the] estate”. Justice Watchuk noted the list appears to have been stapled to the personal bequests list but, at some point, became loose in the envelope containing the Will template.
35 Justice Watchuk noted many of the gifts were of a highly personal nature.
36 Although “[t]he Will was signed by two witnesses” (para. 19), Justice Watchuk noted that both the purported witnesses recalled the Will they signed was a blank template with no attached pages setting up bequests. They further believed that the deceased had not signed the Will before they signed and they “[did] not specifically recollect” whether she signed the Will the same time as them.
37 Justice Watchuk found it impossible to determine exactly when the deceased executed the Will. She concluded it was likely that the deceased had completed all the various documents referred to at the same time and shortly after the witnesses signed the Will.
38 Justice Watchuk was satisfied the Will did not conform with the formalities of the WESA as the deceased had not signed or acknowledged her signature in the presence of at least two witnesses, present at the same time and signed in the presence of the will maker. It was accordingly clear the form was not validly witnessed as required by the WESA.
The general rule that extrinsic evidence is not admissible in construing a will (the function of a court of construction) does not apply to the probate court whose duty is to determine whether a document is a valid will. Extrinsic evidence is admissible on the question of testamentary intent, and the Court is not limited to the evidence that an inspection of the document provides.
40 Justice Watchuk found (at para. 56) “that the two bequests lists enclosed in the envelope [that contained the Will template] also represented the testamentary intention of the deceased and [were] therefore part of the Will”, noting that “[e]ach of the documents in substance contemplate[d] gifts on her death and in that sense were testamentary in nature.” At para. 57, Watchuk J. found it “obvious that [the deceased had] spent a great deal of time considering which gifts to give to each beneficiary . . . [and] that this represented her carefully-considered testamentary intentions”. Her observations with respect to the charitable bequests were of a similar nature. She found one of the documents found the made provision for care of the deceased’s dog after her death was not a testamentary intention as it did not contain funeral instructions for her for disposition of her property and death. As such that document, she concluded, did not have testamentary status and was now within the curative power of s. 58. She found, however, that the Will, the personal bequest list and the charitable bequest list included in the envelope containing the Will were fully effective as the deceased’s Will pursuant to s. 58 of the WESA.
41 It is apparent from the cases that the analysis that s. 58 engages is heavily fact-based. The circumstances in which a will-like document could be prepared are infinite.
42 As I read the section and the cases, the basic questions are whether the document presented is a valid document prepared by the deceased and that its contents represent a deliberate or fixed and final testamentary intention at the material time for the disposition of the estate.
Bach Estate 2017 BCSC 548 cured a gift to witness to will to be valid when prior to WESA on March 31, 2014 it would have been invalid.
One of the witnesses to the will was the husband of the deceased and a beneficiary under her will.
The Court followed the reasoning of previous decisions made under S 58 WESA to cure defective wills and allowed extrinsic evidence to be introduced to show the true testamentary intention of the testator.
Validity
(2) A person may witness a will even though he or she may receive a gift under it, but the gift may be void under section 43 [gifts to witnesses].
(3) A will is not invalid only because a witness was, at the time the will was signed by the will-maker, or afterwards became, legally incapable of proving the will, unless the witness was not 19 years of age or older at the time the will was signed by the will-maker.
47 The document signed by Mr. Bach on September 9 meets the requirements of ss. 37(1) and 40 and is therefore a valid will under the WESA. This act revoked all prior wills created by Mr. Bach: s.55 WESA.
48 The difficulty arises from s. 43(1):
43(1) WESA states:
Unless a court otherwise declares under subsection (4), a gift in a will is void if it is to
(a) a witness to the will-maker’s signature or to the spouse of that witness,
(b) a person signing the will by the will-maker’s direction, or the spouse of the person signing, or
(c) a person claiming under a person, other than the will-maker, referred to in paragraph (a) or (b).
49 One of the witnesses to this will was Mr. Thibodeau, the husband of the beneficiary under the will.
50 Prior to 2014, the law was clear: the court had no discretion to allow for such gifts: see Estate of Jason M. Bird, 2002 BCSC 1584. This rule operated as a safeguard against fraud and undue influence, however, the rigid application often defeat the genuine intention of the testator. Under the rule, the gift to Ms. Thibodeau would have failed.
51 However, on March 31, 2014, WESA came into force. Under this new legislation, gifts made in these circumstances are still presumptively void however, the court now has the discretion to declare them valid under s. 43(4):
(4) On application, the court may declare that a gift to a person referred to in subsection (1) is not void and is to take effect, if the court is satisfied that the will-maker intended to make the gift to the person even though the person or his or her spouse was a witness to the will.
52 I am not aware of any case in British Columbia in which this provision has been applied. I find however, that recent jurisprudence under s. 58 of the WESA (concerning court-ordered curing of formally deficient wills) that relates to testamentary intent instructive.
[29] WESA, which came into effect on March 31, 2014, contains a new provision in s. 58 that even if a document fails to comply with the formalities of the statute, a court may nonetheless order that the document is fully effective as if it had complied with the statute.
The provision reads as follows:
Court order curing deficiencies
58(1) In this section, “record” includes data that
(a) is recorded or stored electronically,
(b) can be read by a person, and
(c) is capable of reproduction in a visible form.
(2) On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents
(a) the testamentary intentions of a deceased person,
(b) the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or
(c) the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.
(3) Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made
(a) as the will or part of the will of the deceased person,
(b) as a revocation, alteration or revival of a will of the deceased person, or
(c) as the testamentary intention of the deceased person.
(4) If an alteration to a will makes a word or provision illegible and the court is satisfied that the alteration was not made in accordance with this Act, the court may reinstate the original word or provision if there is evidence to establish what the original word or provision was.
[30] Accordingly, s. 58(3)(a) empowers the court to order that a document or other record is fully effective as the will of a deceased person if the court is satisfied that the document represents the testamentary intentions of that deceased person.
[Emphasis added.]
54 The same inquiry is relevant under s. 43(4). Watchuk J. continued:
Evidence
[31] As a preliminary matter, the statements that Ms. Yaremkewich made to the various affiants and the other evidence of her intention in the affidavits are admissible evidence in this case.
[32] The approach to evidence under Manitoba’s Wills Act, R.S.M. 1988, c. W-150 was summarized by Philp, J.A. in Langseth Estate v. Gardiner (1990), 75 D.L.R. (4th) 25 at 33 (Man. C.A.)
The general rule that extrinsic evidence is not admissible in construing a will (the function of a court of construction) does not apply to the probate court whose duty is to determine whether a document is a valid will. Extrinsic evidence is admissible on the question of testamentary intent, and the Court is not limited to the evidence that an inspection of the document provides.
Testamentary Intent
[33] The s. 58 curative provision was well summarized in Estate of Young, 2015 BCSC 182 [Young]. This provision is one of WESA‘s “most far-reaching remedial provisions”, and it represents a marked departure from the traditional, formalistic approach to the creation of wills (at para. 16). It confers the court with a broad discretion to treat a testamentary record as valid even if it does not comply with the formalities of the statute. However, this provision can only be used to cure errors concerning formalities, and cannot cure substantive errors such as testamentary incapacity or undue influence (at para. 17).
[34] To apply s. 58, the applicant must prove on the balance of probabilities that the record at issue is authentic and that it represents the testamentary intentions of the will-maker: Young at paras. 19, 36; and Bunn Estate (Re) (1992) 100 Sask. R. 231 at 237 (C.A.) [Bunn Estate]. This analysis asks whether the court is satisfied that the document records the will-maker’s deliberate or fixed and final expression of intention as to the disposal of her property upon death. This was summarized in Young as follows:
[34] As is apparent from the foregoing, a determination of whether to exercise the court’s curative power with respect to a non-compliant document is inevitably and intensely fact-sensitive. Two principal issues for consideration emerge from the post-1995 Manitoba authorities. The first in an obvious threshold issue: is the document authentic? The second, and core, issue is whether the non-compliant document represents the deceased’s testamentary intentions, as that concept was explained in George.
[35] In George the court confirmed that testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death. The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death. A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a will, by its nature, is revocable until the death of its maker. Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.
[Emphasis added.]
55 The question, then, is whether the gift expresses the testamentary intentions of Mr. Bach, despite the fact that the will was witnessed by the spouse of Sharon Thibodeau. Extrinsic evidence is admissible.
56 Here, there is the evidence from Ms. Veres: she deposed that when she visited Mr. Bach in August, 2014, he made no mention of intending to change his will. He was frustrated in his efforts to sell the house and said to her in this regard: “you would just have to deal with selling the house yourself”.
57 I note that if a person chooses to exclude a relative from her or his will, it is human not to mention it. The statement he apparently made, however, implies that he was not intending to change his will.
58 But the evidence to the contrary is overwhelming. First, Ms. Thibodeau deposed that on July 17, 2014 the deceased told her that he intended to change his will.
59 Her affidavit goes on:
We were sitting in Terry’s house, and Terry started a conversation with me and said he was going to change his Will, and that he wanted to leave everything to me, including his house. He said that I had always been there for him, and I had been so good to him all his life. He said that he did not know what he would have done without me. Terry said, “why should Jamie have my house?”, and that he had worked hard for it.
Terry stated that Jamie [Veres] has a farm and all that land, she doesn’t need it. He further stated that Jamie had always told him that she did not want the house.
Terry told me he was going to call Jamie and let her let her know that he was going to change his Will. I have no knowledge as to whether Terry told Jamie that he intended to change his Will or not; I never questioned him about that at any time.
60 Furthermore, as outlined above, Mr. Bach advised his friend Wendy Boyes that he was leaving all of his estate to his sister Sharon. He told her that on August 9, 2014. On September 2, 2014 he told his sister, Diane Vanderburg, that he wished to leave all of his estate to Ms. Thibodeau.
61 Dr. Willms’ evidence in this regard is significant as well. She deposed that a document expressing Mr. Bach’s intention to leave his estate to his sister was signed. She said that it was read aloud to him and that he stated that he agreed with the contents of the document and that he understood that the document was intended to indicate his wishes for the estate.
62 Finally, there is the evidence of the last 24 hours of Mr. Bach’s life. The deceased had asked Ms. Thibodeau and her husband to take him to a notary for the purpose of making a new will and making other final arrangements. That included signing a power of attorney appointing Ms. Thibodeau as his attorney.
63 On all the evidence, I am satisfied that the document executed on September 9, 2014 amounts to a will and represents Mr. Bach’s testamentary intent. The gift is not void.
Rodgers v Rodgers Estate 2017 BCSC 518 dealt with an application for a renewal court proceedings in a wills variation claim under S 61 WESA that states in 61 ( B) that the proceeding must be served on the executor of the will no later than 30 days after the expiry of the 180 days after the representation grant ( probate) has been issued.
The plaintiff also claimed other relief that was improperly pleaded and 30 days was granted to the plaintiff to bring on an application to amend the pleadings.
The Court in Rodgers stated with respect to the renewal of an action to effect service under s 61 WESA:
22 The court has no jurisdiction to hear the wills variation action if it is not commenced within 180 days from the date the representation grant is issued in British Columbia. The court does have discretion to grant leave to extend the time for service under s. 61(1)(b).
The deadline for service is no later than 30 days after the expiry of the 180 day period referred to in s. 61(1)(a).
23 Counsel for the executor equates the extension of the time for service of a wills variation notice of civil claim to an application for a renewal of a writ. This comparison makes logical sense to me given that, in both scenarios the notice of civil claim or writ expires if it is not served within the proscribed time period.
24 When hearing an application for renewal of a writ the authorities rely on the test set out in Bearhead v. Moorhouse, (1977) 3 B.C.L.R. 81 (B.C.S.C.) aff’d (1978) 5 B.C.L.R. 380 (CA) (B.C.C.A.):
1. Was the application brought promptly?
2. Did the defendant have notice of the claim from sources other than the writ?
3. Has the defendant suffered prejudice?
4. Was the failure to serve the writ attributable to actions of the defendant? and
5. Was the plaintiff or solicitor at fault?
25 In Seeliger v. Eagle Ridge Hospital, 2007 BCCA 582, the British Columbia Court of Appeal said that it is inappropriate to have an in-depth review of the merits of the case on a renewal application but that the plaintiff is required to demonstrate that the pleadings disclose a cause of action.
If a defendant can make out a case that the action has no hope of success and is bound to fail, then the interest of justice support refusing application on those grounds.
The burden is on the defendant to prove that it is plain and obvious that the action has no merit and is bound to fail.
The Court granted an additional 30 days to serve the court process on the executor.
Witnesses of a will and declares that such gifts are void, unless the court is satisfied that the will maker intended to make the gift to the person even S. 43 of WESA governs the issue of gifts to though the beneficiary or his or her spouse was a witness to the will.
43 (1) Unless a court otherwise declares under subsection (4), a gift in a will is void if it is to
(a) a witness to the will-maker’s signature or to the spouse of that witness,
(b) a person signing the will by the will-maker’s direction, or the spouse of the person signing, or
(c) a person claiming under a person, other than the will-maker, referred to in paragraph (a) or (b).
(2) For the purposes of subsection (1), the relevant time for determining whether one person is the spouse of another is the time when the will was made.
(3) If a gift is void under subsection (1), the remainder of the will is not affected.
(4) On application, the court may declare that a gift to a person referred to in subsection (1) is not void and is to take effect, if the court is satisfied that the will-maker intended to make the gift to the person even though the person or his or her spouse was a witness to the will.
(5) Extrinsic evidence is admissible for the purposes of establishing the will-maker’s intention under subsection (4).
An express gift to an adult child would not be invalidated if their parent is a witness. It is only a witness or spouse of a witness whose gift gets invalidated.
It is likely that a statement of such intention in the will itself would provide adequate evidence of that intention to satisfy a court to declare the gift valid.
S 10 of WESA provides for when a person does not survive a deceased person by five (5) days or longer when provided for in an instrument( ie a will) is conclusively deemed to have died before the deceased persona for all purposes and thus will not inherit.
Todoruk v BC Land Title and Survey Authority 2016 BCSC 2241 when a married couple of 67 years died when one died on January 12 and the other died on January 17.
The issue before the court was the interpretation of the words ” survive by five days.”
[2] The calculation of time is addressed in the Interpretation Act, R.S.B.C. 1996 c. 238 [Acf. Sections 25(1), (4) and (5) say as follows:
(1) This section applies to an enactment and to a deed, conveyance or other legal instrument unless specifically provided otherwise in the deed, conveyance or other legal instrument.
(4) In the calculation of time expressed as clear days, weeks, months or years, or as “at least” or “not less than” a number of days, weeks, months or years, the first and last days must be excluded.
(5) In the calculation of time not referred to in subsection (4), the first day must be excluded and the last day included.
IF the court found that the second spouse survived the first spouse to die then her share passed to the husband. If it was found that she did not survive the husband by five days then her estate would be considered as tenants in common with his estate.
The court held that the second to die did in fact survive the first to die by five days, and that s 10 WESA does not state clear days
Therefor the first and last days are included and amount to five days.
The reasoning followed a previous case interpreting survive by thirty days Re Day Estate 1982 BCJ 1288 which also said that part days are not to be counted.
In my four decades of experience most wills variation claims bring with them an individual or even sibling collective story of abuse, neglect, and other dysfunctions that result in a disinheritance to top it all off.
It is settled law that the wills variation act ( now s. 60 WESA) was not intended to award damages for abuse, neglect or other bad behavior on the part of the deceased.
The evidence of such is admissible in evidence and the judge has a broad discretion to make an appropriate award. A sympathetic judge can increase the award of the wills variation while at the same time stating damages cannot be awarded for bad behavior. (It is called doing indirectly what one cannot do directly and occurs all the time in legal judgements but that is a secret)
The case of Persall v Stromberg 2015 BCSC 1826 reviewed the law re mistreated disinherited adult children.
77 Further, even if proven, the law would not support an award to the plaintiffs in their circumstances. If a judge does find a link between a deceased parent’s neglect or mistreatment of a disinherited child and the child’s lack of progress in life and their current diminished financial circumstances, it may make an award if a judicious parent, after objective reflection, would recognize a moral obligation to make amends for neglect or mistreatment through the provisions of their will: Doucette v. Doucette Estate, 2009 BCCA 393 (B.C. C.A.) [Doucette].
78 Generally, where an adult child complains of an unhappy relationship with or neglect of the parent, the summary of the cases between p. 19-50 and 19-51 of the Practice Manual, indicate a range of responses determined by the circumstances in the case. In Gray v. Gray Estate, 2002 BCCA 94 (B.C. C.A.) [Gray], the court found that the will-maker’s neglect of a child may be relevant in determining whether a moral duty is owed to the child.
79 In Brauer v. Hilton, [1979] B.C.J. No. 2128 (B.C. C.A.), the Court of Appeal held that testator’s treatment of the children while in the home was not a proper basis for exercising the discretion granted to the court by the statute.
80 In Gray, the will-maker’s neglect was financial and emotional. The appellant, the disinherited child, testified at para. 11:
I did not go out of my way to establish a relationship with the Deceased because I could not see that he was interested in one. He had shown no interest in me while I was a child. When we finally did establish contact, he tried to take advantage of me financially. I feel the Deceased made no effort to have a relationship with me, to provide for me, to act as a father should act towards his child.
81 Further in Gray at para. 17, Justice Donald stated:
[17] I cannot accept that a child so neglected for his first 18 years and then treated shabbily during a brief reconciliation can be said to forfeit the moral claim to a share in his father’s estate by abandoning any further effort to establish a relationship. The fault in this sad story lies with the father and, in my opinion, the onus to seek further reconciliation was on his shoulders. The testator gave the appellant virtually nothing in an emotional or material way; the will was his last opportunity to do right by his son.
82 In Doucette at para. 71, Madam Justice Ryan noted:
[71] It is common ground that the Wills Variation Act is not intended as a means of awarding compensation for family abuse, but as recognized in Sawchuk v. MacKenzie Estate, 2000 BCCA 10, 72 B.C.L.R. (3d) 333 at para. 16, where a parent has treated a child unfairly, a judicious parent, after objective reflection, would recognize a moral obligation to make amends for it through the provisions of his or her will. In my view that is all that the trial judge was doing in this case.
83 In Scott-Polson v. Lupkoski Estate, 2013 BCSC 247 (B.C. S.C.), aff’d 2013 BCCA 428 (B.C. C.A.), Justice Sewell of this court concluded that a child’s allegation of sexual and verbal abuse by a stepparent is not a proper ground to vary the parent’s will. At paras. 85 – 86, he explained:
[85] I have also concluded that the abuse testified to by the plaintiffs is not a proper ground to vary the Will. This is made clear in the decision of Boyd J. of this court in W.G. Estate v. T.G., [1998] B.C.J. No. 2369 at para. 79 as follows:
79 I have made no special additional awards to any of the children on the basis of any moral obligations. By virtue of the testator’s difficult personality, all of the testator’s children experienced relatively dysfunctional childhoods. The first family essentially complain they were financially, if not emotionally deprived and abandoned, following their parents’ divorce. S.G. maintains that he was both physically and sexually abused. While his evidence was extremely disturbing I make no finding concerning his credibility. Even assuming the truth of his allegations, the result remains unaffected. A wills variation action is not a vehicle to redress any past wrongs nor to notionally award damages to an aggrieved claimant who suffered ill treatment at the hands of the testator (Brauer v. Hilton, (1979) 15 B.C.L.R. 116 (B.C.C.A.)
[86] The WVA should not be used as a vehicle to award damages for past bad behaviour on the part of the testator, although it is of course quite legitimate to take the circumstances of a child or spouse into account and in so doing consider whether those circumstances arose as a result of some behaviour of the testator that might give rise to a moral claim. In this case I can find no sufficient evidence of a link between Rosemary’s treatment of her children and any adverse circumstances in which they find themselves.
Adeceased husband’s frozen sperm at a fertility centre was declared to be personal property under WESA and previous case law and thus could be inherited by the widow on an intestacy.
The court in KLW v Genesis Fertility Centre 2016 BCSC 1621 ordered to release of the frozen sperm to the widow as the sole beneficiary despite the deceased not having signed the required consent under the Assisted Human Reproduction Act and it’s Regulations to create an embryo.
There was evidence that the wife and the deceased had spoken to a number of professionals of their plan to conceive a child even if he died.
The court held that the reproductive material which includes sperm, ovum and other cell or human g3ene or any part of them is a product under WESA that can pass to beneficiaries.
The fertility centre did not oppose the application and required a court order to release the sperm without the proper consent of the deceased.
The court held to deny the wife the use of the reproductive material would be both unfair and an affront to her dignity.
Is the Reproductive Material Property?
[59] In particular contexts, courts in various jurisdictions have held that human sperm or ovums stored for reproductive purposes are property: C.C. v. A. 1/1/., 2005 ABQB 219; J.C.M. v. A.N.A.,2012 BCSC 584; Lam v. University of British Columbia,2015 BCCA 2; Yearworth v. North Bristol A/HS Trust, [2009] EWCA Civ 37; Kate Jane Bazley v. Wesley Monash IVF Pty. Ltd., [2010] QSC 118 (Queensland SCTD); Jocelyn Edwards: Re the Estate of the late Mark Edwards, [2011] NSWSC 478.
[60] In C.C. v. A.W., the parties disputed access to twins born to C.C. through a donation of sperm from A.W. Each party also claimed the four fertilized embryos that remained in a Toronto clinic. A.W. refused to consent to the release of the remaining embryos to C.C. for her use in another attempt to become pregnant.
[61] At paras. 20 and 21, the court found that A.W. had provided his sperm as an unqualified gift to C.C. to assist her to conceive children. The remaining fertilized embryos remained C.C.’s property. They were chattels she could use as she saw fit.
[62] In J.C.M. v. A.M.A., the parties, during the course of their spousal relationship, each gave birth to one child using artificial insemination from sperm provided by a single donor. When the parties separated, they entered into a separation agreement that divided all joint property of their relationship. Through inadvertence, the separation agreement did not divide the 13 remaining sperm straws stored at Genesis. Madam Justice Russell concluded that the remaining sperm straws should be treated as property for the purpose of dividing them upon the dissolution of the parties’ spousal relationship. In reaching that conclusion, Russell J. relied primarily upon C.C. and the decision of the England and Wales Court of Appeal in Yearworth v. North Bristol NHS Trust, [2009] EWCA Civ 37.
[63] In Yearworth, the Court held that stored sperm was property for the purposes of an action for negligent damage to property. The appellants were all diagnosed with cancer. They received treatment at a hospital operated by North Bristol NHS Trust and accepted advice that before undergoing chemotherapy, they could produce semen samples that the respondent would store for their future use. Before any of the appellants attempted to use the sperm, the hospital’s freezing system failed and the sperm perished.
[64] The Court of Appeal began its analysis at para. 28:
28. A decision whether something is capable of being owned cannot be reached in a vacuum. It must be reached in context; and in this section of our judgment the context is whether an action in tort may be brought for loss of the sperm consequent upon breach of the Trust’s duty to take reasonable care of it. The concept of ownership is no more than a convenient global description of different collections of rights held by persons over physical and other things. In his classic essay on “Ownership” (Oxford Essays in Jurisprudence, OUP, 1961, Chapter V) Professor Honore identified 11 standard incidents of ownership but stressed that not all of them had to be present for ownership to arise. He suggested that the second incident was “the right to use” and he added, at p.116, that:
“The right (liberty) to use at one’s discretion has rightly been recognised as a cardinal feature of ownership and the fact that… certain limitations on use also fall within the standard incidents of ownership does not detract from its importance…”
We have no doubt that, in deciding whether sperm is capable of being owned for the purpose which we have identified, part of our enquiry must be into the existence or otherwise of a nexus between the incident of ownership most strongly demonstrated by the facts of the case (surely here, the right, albeit limited, of the men to use the sperm) and the nature of the damage consequent upon the breach of the duty of care (here, their inability to use it notwithstanding that this was the specific purpose for which it was generated).
[65] In Yearworth, the Court recognized that historically, the common law did not allow any property interest in the human body, or body parts, living or dead. The Australian High Court in Doodeward v. Spence, (1908) 6 C.L.R. 406 created an exception to this rule when it recognized the right of ownership in a two-headed fetus preserved for commercial display as a curiosity. For the majority, Chief Justice Griffith held:
[W]hen a person has by the lawful exercise of work or skills so dealt with a human body or part of the body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it …
[66] The Court in Yearworth held at para. 45(a) that developments in medical science “now require a re-analysis of the common law’s treatment of and approach to the issue of ownership of parts or products of a living human body, whether for present purposes (viz. an action for negligence) or otherwise.”
[67] At para. 45 (d), the Court stated that it was not content to see the common law in this area founded upon the principle in Doodeward, “which was devised as an exception to a principle, itself of exceptional character, relating to the ownership of the human corpse. Such ancestry does not commend it as a solid foundation.”
[68] At para. 45(f), the Court held that for the purposes of their negligence claims, the appellants had ownership of the sperm which they had generated and ejaculated for the sole purpose of its later use for their benefit. Although their rights to use the sperm were limited by legislation, no person other than the appellants had any right in relation to the sperm.
[69] In Yearworth, at para. 45(b), the Court of Appeal emphasized the claim concerned products of a living human body intended for use by the persons whose bodies had generated them. The Court was not asked to consider whether there was any significant difference between such claims and claims in respect of donated products intended for use by others brought by the donors or by the donees of such products.
[70] In J.C.M., Russell J., referring to Yearworth, commented at para. 63 that the need for the common law to keep up with medical science is compelling. At para. 69, she found that in the context of the dispute before her, the sperm was the property of the parties. Madam Justice Russell observed that the sperm had been treated as property by everyone involved in the transaction, including the donor, Genesis and the parties.
[71] Equally, in the case at bar, [A.B.], Genesis and the petitioner all treated the Reproductive Material as property.
[72] In Lam v. University of British Columbia, the Court of Appeal upheld the trial judge’s finding that frozen human sperm is property for the purposes of the Warehouse Receipt Act, R.S.B.C. 1996, c. 481 (“WRA”). The facts of Lam are similar to Yearworth. The respondent, Mr. Lam, was the representative plaintiff in a class proceeding against the University of British Columbia. Members of the class had cancer. Before undergoing radiation treatment, they stored their frozen sperm in the appellant’s freezer. As the result of a power failure, the stored sperm was damaged or destroyed.
[73] In Lam, Chiasson J.A., at para. 51, considered the Court in Yearworth had taken the correct approach to the development of the common law in holding that developments in medical science required a re-examination of the issue of ownership of parts or products of a living human body. However, in concurring reasons for judgment, Bennett J.A., writing for herself and Frankel J.A., emphasized at para. 110 that in Yearworth, the Court was determining whether human sperm was property in a very narrow context, and was not determining whether sperm in other contexts, such as probate or matrimonial law, could be considered property.
[74] At paras. 113 and 114, Bennett J.A. stated:
[113] The nature and scope of property interests that a person can have in human sperm need not be decided on the facts of this case. This case, unlike for example, J.C.M. v. A.N.A.,2012 BCSC 584, does not deal with competing property interests in human sperm. This case considers whether Mr. Lam, a cancer patient, has ownership of the sperm he produced, such that he can contract for its storage to enable his personal use of the sperm at a later date. If so, the sperm is property, as something must be property if it is capable of being owned. There may also exist things that are property that cannot be owned, but that is not something that needs to be decided in the context of this case.
[114] Not all of Professor Honore’s 11 incidents of ownership need to be present for ownership to arise (Yearworth at para. 28). Ownership of body parts must be contextual, and often limited by legislation because of public policy reasons. No one would argue that if a cancer patient cut her hair and stored it for the purpose of later making a wig after treatment that she did not “own” her hair in that context. On the other hand, legislation prevents the selling of sperm and organs such as kidneys, but does not prevent their donation. The prohibition on sale does not necessarily mean the legislation is inconsistent with ownership. It has provided limits to ownership in some contexts.
[75] In concluding that each of the sperm donors had sufficient ownership of their stored sperm for it to be “property” and thus “goods” within the meaning of the WRA, Bennett J.A. applied the same analytical framework as the Court had adopted in Yearworth. The donors had ejaculated the sperm; contracted to store the sperm for their own future use; paid a fee for storage; and could consent to the sperm being tested. Further, they could terminate the storage agreement; could consent to the release of the sperm to their physician to be used by their spouse; and could exclude all others from using the sperm. Although legislation or the storage agreement precluded the donors from disposing of the sperm by leaving it to someone in their will or from selling the sperm, they nonetheless had sufficient rights in relation to their own sperm for it to be defined as property.
[76] In Bazley v. Wesley Monash IVF Pty. Ltd., the applicant’s husband was diagnosed with liver cancer. Before his death, he provided a semen sample before undergoing chemotherapy. The respondent continued to store the semen samples following Mr. Bazley’s death. When the applicant requested that the respondent continue to store the sperm, a spokesperson for the respondent informed her that in the absence of specific reproductive and assisted technology legislation in Queensland, the respondent operated under national guidelines for the use of assisted reproductive technology. The guidelines provided that clinics must not store or use gametes from deceased persons unless there was a clearly expressed written directive from the donor consenting to the use of the gametes. Mr. Bazley had died without providing such a direction. The respondent informed the applicant that in the absence of such a directive, it was prevented by the guidelines from continuing to store Mr. Bazley’s sperm or using it to procure a pregnancy.
