WESA: Forcing the Executor to Act & Rule 25-11

WESA: Forcing the Executor to Act & Rule 25-11

Forcing Executor to Act. Rule 25-11 of WESA permits ‘a person interested in the estate’ to use a Citation to compel the named executor to apply for probate or be deemed to have renounced.

This is an important tool in the arsenal of estate litigators when dealing with parties who for often unknown reasons refuse to proceed with the task of taking control of the deceased’s assets and affairs, getting the will probated, the debts paid, and the assets distributed to the beneficiaries.

Rule 25-1 (4) provides that an executor renounces executorship upon two circumstances:

  1. in the circumstances set out under paragraph 25 – 11 (5) where the executor is deem to have renounced executorship following a citation to apply for probate;
  2. when a Notice of Renunciation in Form 17 from the executor is filed in the relevant application or proceeding. There is now a prescribed notice of renunciation.

Since Rule 25-11 permits ” a person interested in the estate” to issue a Citation, so it is certainly arguable that the citation process will be available to not just named executors, beneficiaries, and creditors, but also to intestate heirs and potential wills variation claimants.

The Citation is issued in Form P32  of the WESA Rules.

The Citation  must clearly  identify the citor, the deceased, and the document which is to be probated as the will, as well as the citor1 s grounds for believing that the document exists.

The citation must be personally served and is not filed with the court registry  to commence the Citation process .

If the cited executor does apply for the grant, it is still open to the citor to apply under s. 158 of the WESA to remove or pass over the executor under appropriate circumstances.

The executor served with the Citation  must, within 14 days after being served  provide a copy of the grant of probate  by ordinary mail, or if no probate has yet been granted,  then serve the Citor as follows:

  1.  if they have submitted the probate documents to the registry, then provide by ordinary mail copies of the documents ;
  2. file an answer and form 33 stating that the cited person  will either apply for a grant of probate or refuses to apply for a grant of probate .

Under rule 25 – 11 (5)  a person who is cited to apply for a grant of probate  is deemed to have renounced executorship  to that document unless the grant of probate is obtained within six months after the date in which the citation was served, or within any longer. The court on application by the cited party may allow, or has filed an answer stating that   the executor refuses to apply for a grant of probate in respect of the testamentary document.

The standard 21 day notice of the application for probate will use up a significant portion of that six month period .

Any issue concerning the validity of the will or another impediment such as a notice of dispute, then the time period would be impossible to meet.

It is likely that in such scenarios that a court applications to extend the time period would be  necessary.

Section 58 WESA: Journal Not a Will

Section 58 WESA: Journal Not a Will

Re Hadley Estate 2016 BCSC 765 held that an unwitnessed  journal entry written by the deceased in her daily entry and stated to be  ” my last will”  will, was not in fact her last valid will under the curative provisions of section 58 WESA.

This decision was upheld on appeal- see Hadley Estate 2017 BCCA 311.

The administrator of her estate brought an application under section 58 of  the wills estates succession act, WESA  for determination. If the September 2014 journal entry was a will or  was a 2008 will the last valid will .

After reviewing several factors both pro con, the court found that the following rambling  journal entry was not a valid will:

[p. 1]
Sept. 1, 2014 Monday Tonight @ 8.30 pm I believe I had a something [?] to me. I am confused now. 9 pm. At 6 pm I went to English Bay & watched the sunset – talked to the life guard – at 8 pm I walked home – used my walker. I pushed my walker along Davie St to the Cardero Mini park in front of our our [sic] building – Seacrest Apt. Sat on my walker – At 8 pm I went inside “Seacrest – parked my walker inside the locker room & went up the stairs to my suite [ . . . ] Suddenly I had huge flashes in both my eyes – Zig Zag flashes like a up & down like a chart. – I could not could not see – the flashes were very bright – very strong – I tried to see I had no-one to phone Ginger phoned me – All was well – My niece lives in Windsor Ontario Mrs. Virginia Maziak-[phone no. omitted] I am somewhat dizzy now I had a terrible experience / frightening experience / flashes now. I ate a chocolate bar – [ ? ] glass peach cider – walked up & down my suite – scary. I hoped this would help me [ ? ]. [Suite no. ] Bullies me every day.
[p. 2]
Continued
September 1, 2014.. Monday.
This is my last Will.
Because of the daily harassment by [individuals at Seacrest]. I have been unable to [?] my personal needs – thus I put off seeing a lawyer to sue them & Seacrest Company Shareholders & to change my will. As of this time in my life I leave all my estate (my money in bonds & my apartment #205 Seacrest Apts. Ltd. Company – self owned to the following people who were kind to me (1) My niece Virginia Maziak who live lives in Windsor Ontario @ [address omitted]. Virginia (Ginger) was continually kind to me. (2) Bruce Macdonald — [phone no. omitted] Because he contributed so much to save the Hollow Tree in Stanley Park and was kind to me. (3) Daniel Pierce [phone no. omitted] a young Film Producer who worked so hard and was kind to me. It is not common knowledge that I am an orphan as a child. I have no heirs. My husband John Donald Hadley died and so did my only child – Karen Margaret Hadley. I struggled all my life to work and save some money to be independent. I have no debts. I have some bills to pay now – Seacrest Co. Apartment 1947 must pay for repairs, windows, ceiling walls, etc.
[p. 3]
Continued Eleanor Lena Hadley (Sanchuk) born Sept. 15, 1921
I hope to see Mr. David Ebby in person to write this will. I just had a scare – that prompted me to hastily [?] write this will. Many people have helped me. However [illegible] for personal reasons they are not included in my will.
Also, I do have some old penny stocks that faded away and in my box (deposit) Royal Bank corner of West Georgia & Burrard Streets where my previous will is.
I live in Seacrest Apts. ltd at the present time. Since 1997 I have been bullied & harassed & denied my entitlements by [individuals named]. They should be sued for destroying 17 years of my life. So that I am living in fear to this day. I could not sell my suite because [individual named] in 1997 put an a unhealthy dryer vent for the whole building (Seacrest) under my kitchen windows
11.20A.M. EH
[p. 4]
My will Continued:
Re: If Mr. David Ebby is willing I would like him to sue all the Seacrest Shareholders named in this will for criminally destroying my life since 1997 when [individual named] unlawfully all the Seacrest Co 20 Shareholders Basic Rate a/os [?] 1947 Original Agreement – I have the original Memorandum. Because of ill health due to daily harassment by those named in my will I was and am presently too ill physically to go to court. I tried this [?] in the Small Court. At that time Judge Gee Gee said – that I was in the wrong Court. I do not have the original Court Trial documents (only the edited document which omits my complaints entirely. Why Judge Gee did this is a puzzle to me. Also my lawyer [individual and firm named] failed to present my case. Because of the daily harassment by [individuals named] to this day I was & am unable to bring my case to trial again. These 3 people / shareholders / Seacrest have also used the computer to [illegible] my name and [illegible] a fake document.

THE  LAW

The curative provisions of section 58 conferred discretion on the court to relieve against the consequences of noncompliance  with the  testamentary formalities  in a “record, document or writing or marking on a will or document”.
In prescribed the circumstances, section 58 permits the court to address and your issues of formal invalidity  in such documents .
The leading case In British Columbia is Estate of young  2015 BC SC 182 .
Young followed the law  of Manitoba in their leading case of George v.  Daily (  1997)  143 DLR (4th) 273  ( Man. CA), which stated :
51      Because of the similarity between s. 58 and the curative provision in Manitoba’s Wills Act, C.C.S.M., c. W-150, in Young, Dickson J. (as she then was) reviewed a number of Manitoba authorities, including the leading case of George v. Daily (1997), 143 D.L.R. (4th) 273 (Man. C.A.). She then wrote by way of summary (at paras. 34-37) [underlining added]:
[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 [is] 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: [citations omitted].
[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.
52      Extrinsic evidence is admissible when considering whether a document is a valid will and whether the deceased had testamentary intent: see Yaremkewich Estate (Re), 2015 BCSC 1124, at paras. 31-32. Watchuk J. observed further (after reviewing Young and George), at para. 37:

Section 46 WESA and Lapsed Gifts

Section 46 WESA deals with the lapsed gifts in wills often caused by poor will drafting ,  failure by the parties to properly consider what the future may bring , or the beneficiary predeceasing, any of which results in   disappointed beneficiaries not receiving the intended gift.

Instead of  wording the will’s bequest of  “any real property that I own at the time of my death” , many will- drafters instead incorrectly state a particular address of a particular property, owned at the time of the will making,  but long sold before death.

The gift of real property  in that situation has lapsed simply because it ceased to exist.

Almost by definition, a lapsed gift results when a substantial change in circumstances occurs between the execution of the will and death, so that the gift has either failed or ceased to exist.

The lapsed gift often results from both poor drafting together with the simple fact that many people do not realistically ponder their aging and succession and just resort to avoidance.

Very often the beneficiary predeceases  the will- maker at which time the “anti-lapse rule of S 46 of WESA (Wills, Estates and Succession Act) ”  establishes a default scheme for determining alternative beneficiaries of a lapsed gift.

The Default Scheme of Section 46 WESA (Replacing  and altering the previous S. 29 Wills Act)

Section 46 applies to all gifts of any nature, whether specific in nature or residual but only if there is no contrary  intention stated in the will.

If the will- maker has named an alternate beneficiary for a gift that has lapsed, then in that event the alternate beneficiary has the first priority to inherit the gift, no mater what the reason for the failure of the gift.

If there was no alternative beneficiary of the gift , and the named beneficiary is  either a sibling, or as descendant of the will- maker, then the named beneficiary’s descendants will be entitled to the failed gift.

If there was no descendant of the will- maker , then the gift will go to the residual beneficiaries in  proportion to their named interests in the will.

When gifts cannot take effect

46 (I) If a gift in a will cannot take effect for any reason, including because a beneficiary dies before the will-maker, the property that is the subject of the gift must, subject to a contrary intention appearing in the will, be distributed according to the following priorities:

(a) to the alternative beneficiary of the gift, if any, named or described by the will-maker, whether the gift fails for a reason specifically contemplated by the will-maker or for any other reason;

(b) if the beneficiary was the brother, sister or a descendant of the will-maker, to their descendants, determined at the date of the will-maker’s death, in accordance with section 42(4) [meaning of particular words in a will];

(c)  to the surviving residuary beneficiaries, if any, named in the will, in proportion to their interests.

(2) If a gift cannot take effect because a beneficiary dies before the will-maker, subsection (I) applies whether the beneficiary’s death occurs before or after the will is made

Wills Variation: Elderly Common Law Spouse

Wills Variation: Elderly Common Law Spouse

Mars v Blais 2011 BCSC 1714 involved a 91 year old widow who brought a wills variation action ( now S. 60 WESA) against the estate of her late common law partner of 9 years. The wills variation  action was prior to WESA but would likely have been decided the same after WESA came into effect.

They value of the estate was approximately $1.5 million.

The deceased left a will, leaving the plaintiff a life estate in the matrimonial home, plus $50,000. He left the residue of the estate to his 62-year-old son who had no income and owned no property.

The 91-year-old plaintiff was economically independent with their own pension income plus rental from the property, and the judge found that she would not need to use her own capital in order to live.

All of the assets of the deceased’s estate were accumulated by the deceased prior to meeting the plaintiff. They lived a modest lifestyle and did not share or intermingle their assets.

The court awarded the plaintiff the sum of $200,000 and the life estate in the matrimonial home on the same terms of the will, which provided for the estate to pay for the upkeep and taxes of the  home and property, which was in need of substantial repair.

Discussion

[61]           There are two interests protected by the WVA. The first is to ensure adequate, just and equitable provision for the testator’s spouse and children and the second is to honour his testamentary autonomy (Tataryn v. Tataryn 1994 51 (SCC), [1994] 2 S.C.R. 807; Hall v. Korejwo, 2011 BCCA 355 , 2011 BCCA 355 at para. 35).

[62]           The first consideration is the testator’s legal obligations to a spouse and children and the second is the moral obligations to spouses and children with legal obligations taking precedence over moral obligations. (Hall at para. 35).

[63]           In determining the legal obligation the first consideration is the testator’s legal obligations to support his spouse or children (Picketts v. Hall (Estate), 2009 BCCA 329 , 2009 BCCA 329 at para. 50). “The legal aspect of [the plaintiff’s] claim under the [WVA] is limited to the claim she would have had for spousal support” (Picketts at para. 58).

[64]           None of the assets in the estate came into being through any joint effort involving Ms. Mars. There was no evidence tendered about Ms. Mars’ life expectancy or evidence of her ongoing financial needs for support. The general statement made by her that she does not need more money to meet her needs satisfies me that she is able to live comfortably, on her current income, at the level they shared before Mr. Bain’s death.

[65]           In view of the incomes of the parties throughout their time together and the modest life style enjoyed by them, Mr. Bain’s Will was more than adequate to meet his legal obligations to provide spousal support for Ms. Mars as contemplated by Low J.A. in Picketts.

[66]           The assessment of Mr. Bain’s support obligations is the same whether based on the compensatory or non-compensatory approach. (Morgan v. Pengelly Estate 2011 BCSC 1114 , 2011 BCSC 1114 at para 205).

[67]           The second question is whether Mr. Bain’s Will has satisfied his moral obligations to family members that could reasonably be expected of a judicious person in like circumstances. Claims based on legal obligations will generally take precedence over those based on moral duties, and what is adequate, just and equitable in the circumstances is judged by contemporary standards. See Hall at para. 35.

[68]           Any variation of Mr. Bain’s will should be limited to the extent required to achieve the objectives of the WVA. (Tataryn at 823-4;Crerar v. Crerar 1998 5375 (BC CA), (1998) 61, B.C.L.R. (3rd) 55.

[69]           The Estate Administration Act, R.S.B.C. 1996, c. 122, provides some indication of contemporary standards but does not directly affect the considerations that govern the applications under the WVA (Hall at paras. 44 and 46).

[70]           In analyzing Mr. Bain’s moral obligation I am informed by the comments by McLachlan J. in Tataryn at 822-23 in assessing a testator’s moral obligation:

For further guidance in determining what is “adequate, just and equitable”, the court should next turn to the testator’s moral duties toward spouse and children.  It is to the determination of these moral duties that the concerns about uncertainty are usually addressed.  There being no clear legal standard by which to judge moral duties, these obligations are admittedly more susceptible of being viewed differently by different people.  Nevertheless, the uncertainty, even in this area, may not be so great as has been sometimes thought.  For example, most people would agree that although the law may not require a supporting spouse to make provision for a dependent spouse after his death, a strong moral obligation to do so exists if the size of the estate permits.  Similarly, most people would agree that an adult dependent child is entitled to such consideration as the size of the estate and the testator’s other obligations may allow.  While the moral claim of independent adult children may be more tenuous, a large body of case law exists suggesting that, if the size of the estate permits and in the absence of circumstances which negate the existence of such an obligation, some provision for such children should be made: Brauer v. Hilton 1979 746 (BC CA), (1979), 15 B.C.L.R. 116 (C.A.);  Cowan v. Cowan Estate (1988), 30 E.T.R. 216 (B.C.S.C.), aff’d (1990), 37 E.T.R. 308 (B.C.C.A.); Nulty v. Nulty Estate 1989 244 (BC CA), (1989), 41 B.C.L.R. (2d) 343 (C.A.).  See also Price v. Lypchuk Estate, supra, and Bell v. Roy Estate1993 1262 (BC CA), (1993), 75 B.C.L.R. (2d) 213 (C.A.) for cases where the moral duty was seen to be negated.

[71]           In Bridger v. Bridger Estate, 2006 BCCA 230 , 2006 BCCA 230 McKenzie J.A. discussed the tension between competing moral claims:

[20]      … Tataryn recognizes that there is no clear legal standard to judge moral claims and the test is more nebulous where the surviving spouse is not strictly speaking a dependent spouse and the children are all financially independent adults. While, as McLachlin J. observes in Tataryn, there may be a number of options for dividing assets by a testator which are adequate, just and equitable, I do not think they include a disposition that entirely prefers the moral claims of adult independent children to those of a loyal spouse who provided care for the testator over years of debilitating decline.

[72]           Low J.A. in Picketts described several helpful factors in assessing the moral obligations of a testator. He examined:

        the absence of a legal obligation to the testator’s sons;

        the length of the marital relationship – in this case nine years;

        the agreement of the spouse to give up a career depriving her of the opportunity to accumulate in the estate of her own;

        the necessity of the spouse to dip into her savings to supplement living expenses the testator had agreed to provide;

        the lengthy period of loving and effective care provided by the spouse to the testator during his decline;

        a promise made by the testator to take care of the spouse as though she were his wife; and

        the size and liquidity of the estate.

[73]           In this case, there appears to be a moral obligation owed by Mr. Bain to his son. Daniel Bain is 62 years of age and appears to be vocationally and economically vulnerable. He has no income and no property (except for the Scottish property) and has been dependent on the estate for his living expenses for at least eight months. He is not looking for work but he seems to have little demonstrated ability to find or keep work. There was little or no evidence to explain Daniel’s circumstances and I am left to reach a conclusion without an abundance of information.

[74]           In the present case the parties began cohabitating quite late in life and remained together for nine years. They did not engage in a sharing of assets or significant economic contributions to the estate other than sharing the Odlum Street house. Both of Mr. Bain’s properties and his savings were acquired before they joined their households. It appeared to me that Ms. Mars did not have an expectation of sharing Mr. Bain’s properties.

[75]           Ms. Mars argued that Mr. Bain’s efforts to contact his lawyer about changes to his will and their plans to marry demonstrated an intention to share assets or make a different provision for the distribution of his estate after death. The evidence of what he intended is too speculative to be a factor in the assessment of his moral obligation.

[76]           Ms. Mars is economically self-sufficient with income from her own pension and the veteran’s pension provided by Mr. Bain. With her right to receive income from the Odlum Street house coupled with the $50,000 bequest she will not likely need to use her own funds to provide for her support.

[77]           Ms. Mars and Mr. Bain enjoyed a very modest but fulfilling relationship during their nine years together. Ms. Mars did provide care and support for Mr. Bain during his decline and until his death. Unlike Ms. Pickett’s role, the evidence of Ms. Mars’ care of Mr. Bain was quite limited.

[78]           The size of Mr. Bain’s estate is considerable. The liquidity in the estate is less certain; the evidence suggested that there could be significant capital gains taxes to be paid by the estate triggered by Mr. Bain’s death.

[79]           Ms. Mars has expressed a deep desire to continue to reside in the Odlum Street house. While counsel suggested that, in light of her age, she may not be able to remain in the house, there was no evidence that she is, or will be, incapable of living there.

[80]           Low J.A. commented that the spouse in Picketts was entitled to administer her own financial affairs and was entitled to a measure of testamentary autonomy of her own so that she could pass her own estate to whomever she wished (para. 65). I take Mr. Justice Low’s comment to suggest that the analysis of a moral obligation ought not to be influenced by the fact that the assets received after a variation of the will may not be used by the beneficiary before her death. The fact that Ms. Mars may give away or bequeath all of her assets to another person should not affect her entitlement to receive that which Mr. Bain was morally obliged to give her under the Will.

[81]           Mr. Bain left the bulk of the capital of his estate to Daniel. Daniel is, in my view, in serious need of support, although he professed an ability to support himself, the evidence suggests otherwise. The fact he has been using estate funds to support himself is one indication of his current need.

Executor Cannot Use Estate Funds To Defend Personally

Executor Cannot Use Estate Funds To Defend Personally

In a Wills variation claim (now section 60, WESA) an executor cannot use estate funds to defend him or herself if a beneficiary, and may  use reasonable estate  funds to defend the claim but only in the capacity of executor and not beneficiary.

In a wills variation claim the executor cannot use estate funds to defend his personal interests.

The executor may have his reasonable legal fees paid in his role as executor but should have separate counsel in most cases and the fees should be kept to a minimum–typically for advising on estate developments, liabilities and assets.

Generally, the executor is required to play a neutral role in litigation, and as a result of having to play a neutral role, the executor is generally entitled to special costs from estate.

But when the executor is also a beneficiary the costs must be separated.

If one counsel acts for the executor in both the capacity of executor and personal beneficiary, then the legal fees must be apportioned between the two separate roles, with the estate paying only for the role of executor. Wilcox v Wilcox 2002 BCCA 574.

Steernberg v. Steernberg Estate (2007), 33 E.T.R. (3d) 78, 74 B.C.L.R. (4th) 126, 40 R.F.L. (6th) 106, 2007 BCSC 953, 2007 CarswellBC 1533, Martinson J. (B.C. S.C.); additional reasons to (2006), 2006 CarswellBC 2751, 32 R.F.L. (6th) 62, 28 E.T.R. (3d) 1, 2006 BCSC 1672, [2006] B.C.J. No. 2925, D. Martinson J. (B.C.S.C.)  is one of my favourite cases, primarily for the reason in the headnote.

Prior to this case, it was not uncommon for defendants to routinely use estate funds in the hope of depriving a plaintiff of sufficient resources to continue the fight.

Steernberg levels the playing field by making each party pay for their own legal costs as the litigation proceeds, save for the executor, who must remain neutral in the litigation.

Here are the facts of Steernberg:

The Wife, husband’s son, husband’s three daughters and husband’s brother-in-law were beneficiaries under husband’s will.

The Plaintiff wife challenged husband’s will–husband’s son was the executor of the will.

An offer to settle made under R. 37 of Rules of Court, 1990 was signed by son as executor and the other four beneficiaries, but not on behalf of son in his personal capacity as beneficiary.

Legal fees for defendant’ litigation counsel of $148,250.62 and legal fees of counsel for executor of $72,895.24 were deducted before net values of estate were calculated.

Shortly after the trial ended and before reasons for judgment were issued, the estate paid defendants’ litigation counsel’s invoice of $60,700.

None of these payments were made or recorded with the wife’s consent and no funds from estate were made available to the wife before, during or after trial for her legal fees.

During the trial, the wife raised the concern that the defendants took substantial sums of money out of estate for legal fees to defend action before the trial started.

The parties agreed that the issue would be decided after the court gave its decision on whether will should be varied.

It was inappropriate to withdraw funds from estate at start of litigation, or throughout the course of litigation to fund defence of Wills Variation Act claim in the absence of a court order or unanimous agreement of beneficiaries

In a Wills Variation Act (S. 60 WESA) claim the validity of will itself was not being challenged and there was no need for the executor to “defend” will

The son was not entitled, in his neutral role as executor, to make a R. 37 offer and he did not join in the offer in his personal capacity as a beneficiary.

It was not an offer made on behalf of all persons beneficially interested in the assets of the estate and hence would not be binding on the estate.

The losing beneficiaries must pay the wife’s costs personally, not out of the estate.

It was directed that the executor pass his accounts before a registrar and that the registrar inquire into and make recommendations with respect to the net value of the estate after taking into account appropriate legal fees and income that ought to have been earned on the funds had they remained invested.

Long Delayed Court Action Justified

Long Delayed Court Action Justified

An application for dismissal of the court action for want of prosecution was dismissed when the court found that the reasons for the 13 year delay of the court action was justified.

The law relating to dismissal for want of prosecution was recently summarized in Eastman v. Eastman Estate 2016 BC SC 209.

FACTS:

In 2003 a widow commenced court action to vary her late husband’s will on the basis that she was not adequately provided for.

The widow and the three children of the deceased subsequently entered into a temporary standstill agreement and never filed a statement of defense to the court action, and no further steps whatever taken in the proceedings.

The widow continued to live in the matrimonial home for the remaining 13 years until she died at age 90.

After her death her estate  issued a notice of intention to proceed with the court action under the wills variation, and the defendants applied to strike out the claim  for want of prosecution.

The court dismissed the application and found that the widow was justified in allowing the court action to sit idle for 13 years .

THE  LAW

36      However, the wording of Rule 22-7 does not prevent a party in default from bringing an application to dismiss for want of prosecution. The court’s focus is on the length of the delay, the reason for it, and any resulting prejudice. Ultimately, dismissing an action for want of prosecution involves an exercise of discretion to be exercised in the interests of justice. It is not an order that is made lightly.

37      The considerations on an application for dismissal for want of prosecution are well-settled, having been established in a number of cases. They are derived from the reasons for judgment of Lord Justice Salmon in Allen v. Sir Alfred McAlpine & Sons Ltd., [1968] 2 Q.B. 229 (Eng. C.A.), at pp. 268-269. The parties agree that those considerations were summarized in March v. Tam, 2002 BCSC 1125 (B.C. S.C. [In Chambers]):

… The defendants must establish that there has been inordinate delay and that this delay is inexcusable. If those two factors are established a rebuttable presumption of prejudice arises and the onus shifts to the plaintiff to prove on a balance of probabilities that the defendants have not suffered prejudice or that on balance justice demands that the action not be dismissed. [para. 25]

[Emphasis in original]

38      As a result, in this case, I will consider:

(a) the length of the delay and whether it was inordinate;

(b) any reasons for the delay either offered in evidence or inferred from the evidence, including whether the delay was intentional and tactical or whether it was the product of dilatoriness, negligence, impecuniosity, illness or some other relevant cause, the ultimate consideration being whether the delay is excusable in the circumstances;

(c) whether the delay has caused serious prejudice to the defendants in presenting a defence and, if there is such prejudice, whether it creates a substantial risk that a fair trial is not possible at the earliest date by which the action could be readied for trial after its reactivation by the plaintiff; and

(d) whether, on balance, justice requires dismissal of the action.

39      In this case, the delay in proceeding with the action has been almost thirteen years which, all parties agree, is inordinate. Such a delay cannot meet the object of the Rules which is to secure the just, speedy and inexpensive determination of every proceeding in its merits (Rule 1-3).

40      I also accept, on the evidence, that the defendants have suffered not just rebuttable prejudice but actual prejudice. Buela is now deceased and no steps were taken by the Executors to secure any evidence from her while she was still competent or before her death. Carole says that while the estate has kept records for estate purposes, they have not secured financial and other documentation pre-dating Donald’s death for litigation purposes. Further, some of Buela’s and Donald’s friends are now deceased.

41      The real argument between these parties is whether the delay was justified.

42      For the reasons which follow, I have concluded that Buela had justification for her delay.

43      First, when the standstill agreement was entered into, it was at the defendants’ request and it was the defendants who were to take the next step. The defendants were seeking an indulgence from Buela. Because of their conflict of interest as Executors, and as personal defendants to the Wills Variation Act claim, they would have been required to renounce their executorship or forego any interest in the residue of the Estate following Buela’s death. As a result of the standstill agreement they were not required to defend the action or to elect.

44      Although the standstill agreement was intended to be temporary, at any time either party could have ended it by delivering notice. Neither did.

45      Second, although Carole, on behalf of the Executors says that she believed that a resolution had been reached with Buela, the Executors never formally sought a release of the CPL or a dismissal of the action. Throughout, they were aware that the CPL remained on title and the action remained extant. No release and dismissal of the action was ever finalized.

46      Third, both Carole and Darlene acknowledge that Buela and Donald’s family valued their ongoing relationship. Darlene says that Buela did not want to upset that relationship by aggressively pursuing her Wills Variation Act claim. I accept that the delay in this case is not through inadvertence or due to negligence on the part of solicitors, however, unlike the situation in Irving v. Irving (1982), 38 B.C.L.R. 318 (B.C. C.A.), where the delay was deliberate in the hope that the law might change in the future, this is not a case in which Buela sought some tactical legal advantage by laying in the weeds. Rather, she sought family peace and, according to Darlene’s affidavit, left the litigation for after her death.

47      All parties benefited from the standstill agreement. Buela maintained family peace and all parties benefitted from the continuation of the relationship they had established during the 18 years Donald and Buela were married. Further, the Executors were not required to elect to remain as Executors or forego any interest they had in the residue of the Estate after Buela’s death. The Estate which was not large, would have been depleted by legal fees to the detriment of all parties.

48      Fourth, while Carole says that the Executors acted on their understanding that there had been agreement, exhausting the estate’s liquid assets to have Buela remain in the Home to the potential detriment of their interest as residual beneficiaries, in my view that issue is best assessed when considering their obligations under the Will in the context of Buela’s claim to a variation of it. It may ultimately be determined that the Executors did no more than was required of them under the Will.

49      Finally, I am satisfied that the steps taken by the Executors in furtherance of what they believed to be was an agreement with Buela, can be taken into account by the court when assessing the merits of Buela’s Wills Variation Act claim. The court will be able to assess whether, in light of all the circumstances and the benefits she received over the years since Donald’s death, Buela is entitled to anything further from the Estate.

S. 52 WESA: Undue Influence Presumption re Dependence

S. 52 WESA: Undue Influence Presumption re Dependence

Positions of dependence or domination are frequently involved in estate litigation and typically relate to caregiving or predator type behavior that ultimately takes advantage of  feeble mind.

Elder Estate v Bradshaw 2015 BCSC 1266 involved a contested court action re  the validity of the deceased’s will as a result of allegations of lack of mental capacity and undue influence.

The deceased left his entire estate to a 26 year younger housekeeper who gradually became his caregiver. The will was challenged by his three nephews who were his next of kin on an intestacy.

The decision is a good source of law relating to both the legal framework for proving the validity of a will in solemn form, as well as a review of undue influence, both with respect to a bequest left in the will and monies advanced to a joint bank account.

The court examined the evidence of several witnesses and concluded that there was no undue influence on the part of the caregiver with either the will or the joint bank account.

The deceased was elderly, had no next of kin and was almost reclusive. The relationship between the parties was over several years and the witnesses testified that their relationship was not suspicious in any manner. The evidence supported the caregiver’s position that she was his main source of emotional and physical support for many years, and he stated that he did not know what he would do without her.

It is somewhat surprising that the court does not adopt  s. 52 WESA in its reasons for judgment relating to the issue of the shifting onus of proof re undue influence other than to say that the legal framework to prove the will in solemn form is still the law relating to the shifting burden of proof, despite the wording of s.  52.

It is almost impossible to separate the two issues of lack of mental capacity and undue influence as they are invariably intertwined in the facts. Probably the only undue influence case that might occur without there being lack of mental capacity is the situation of a cult were on person controls the minds of many.

 

THE  LAW

[10]         In Leung v. Chang, 2013 BCSC 976, Dardi J. summarized the pertinent authorities and legal framework for analyzing a proof in solemn form claim where issues of testamentary capacity and undue influence are raised:

Legal Framework of Proving a Will Valid In Solemn Form

[25]      The Supreme Court of Canada in Vout v. Hay, [1995] 2 S.C.R. 876 clarified the principles with respect to the burden of proof in litigation regarding contested wills. The Court articulated the considerations which govern the interrelation of the doctrine of suspicious circumstances and the issues of testamentary capacity, knowledge and approval, undue influence and fraud.

[26]      In an action for proof of will in solemn form, the party propounding the will must prove on a balance of probabilities that the will was executed in compliance with the statutory formalities, that the will-maker knew and approved of the contents of the will and that the will-maker had testamentary capacity: Vout at paras. 19-20.

[27]      In order to make a valid will, the will-maker must have a “baseline level of mental acuity” or a “disposing mind and memory”, sufficient to appreciate and comprehend the nature and effect of the essential elements of the testamentary act. This encompasses an appreciation of the claims of the persons who are the natural objects of her estate and the extent of her property of which she is disposing: Laszlo v. Lawton, 2013 BCSC 305 at para. 185; Banks v. Goodfellow (1870), L.R. 5 Q.B. 549; Leger v. Poirier, [1944] S.C.R. 152 at 161. The assessment of whether a will-maker possesses testamentary capacity is a highly individualized inquiry and is a question of fact to be determined in all the circumstances: James v. Field, 2001 BCCA 267 at para. 51; Laszlo at para. 197.

[28]      In certain circumstances, the propounder of the will, in discharging the burden of proof, is aided by a rebuttable presumption of validity. If the will was duly executed in accordance with the requisite statutory formalities after being read over to or by a testator who appeared to understand it, it is presumed the testator possessed the requisite testamentary capacity and knew and approved of its contents: Vout at para. 26.

[29]      This presumption may be rebutted by evidence of “well-grounded suspicions”, referred to in the jurisprudence as “suspicious circumstances”, relating to one or more of the following circumstances:

(i)         surrounding the preparation of the will;

(ii)        tending to call into question the capacity of the will-maker; or

(iii)       tending to show that the free will of the will-maker was overborne by acts of coercion or fraud: Vout at para. 25.

[30]      If suspicious circumstances are established, then the presumption is spent and the legal burden of proof reverts to the propounder of the will. The propounder of the will then reassumes the legal burden of proving knowledge and approval, as well as proving testamentary capacity, if the suspicious circumstances reflect on the mental capacity of the will-maker to make a will: Woodward v. Grant, 2007 BCSC 1192 at para. 108. In order to discharge the burden, the propounder of the will is required to dispel the suspicious circumstances that have been raised: Ostrander v. Black (1996), 12 E.T.R. (2d) 219 at para. 30 (Gen. Div.).

[31]      In Vout, the Court affirmed that if a court determines that suspicious circumstances exist, the applicable standard of proof is a balance of probabilities. However, the evidence must be scrutinized in accordance with the gravity of the suspicion raised in any particular case.

[32]      In order to rebut the presumption of validity, those attacking the will must meet the threshold of demonstrating that there is some evidence “which, if accepted, would tend to negative knowledge and approval or testamentary capacity”: Vout at para. 27; Maddess v. Racz, 2009 BCCA 539 at para. 31. The court in Scott v. Cousins (2001), 37 E.T.R. (2d) 113 (Ont. S.C.J.) describes the requisite evidence as that which “excites the suspicion of the court”. A “general miasma of suspicion that something unsavoury may have occurred” is insufficient to rebut the presumption of validity; the evidence must raise a “specific and focused suspicion”: Clark v. Nash (1989), 61 D.L.R. (4th) 409 at 425 (B.C.C.A.).

[33]      The court in Laszlo provides the following instructive observations regarding the doctrine of suspicious circumstances at para. 207:

Suspicious circumstances have been found to exist in a wide array of situations and are not necessarily sinister in nature. There is no checklist of circumstantial factors that will invariably fit the classification. Commonly occurring themes include where a beneficiary is instrumental in the preparation of the will (especially where the beneficiary stands in a fiduciary position to the testator), or where the will favours “someone who has not previously been the object of [the testator’s] bounty and does not fall within the class of persons testators usually remember in their wills, that is to say their next of kin.

Undue Influence

[34]      When undue influence or fraud is alleged, the party opposing probate always bears the legal burden of proving on a balance of probabilities the affirmative defence of undue influence: Vout at para. 28. It is important to appreciate that in these circumstances, the doctrine of suspicious circumstances and the shifting of the burden of proof has no application.

[35]      In order to invalidate a will on the grounds of undue influence, the asserting party must prove that the influence exerted against the will-maker amounted to coercion, such that the will did not reflect the true intentions of a free will-maker and was not the product of the will-maker’s own act. The undue influence must constitute coercion which could not be resisted by the will-maker and which destroyed his or her free agency. It is well-established on the authorities that if the will-maker remains able to act freely, the exercise of significant advice or persuasion on the will-maker or an attempt to appeal to the will-maker or the mere desire of the will-maker to gratify the wishes of another, will not amount to undue influence: Maddess v. Racz, 2008 BCSC 1550 at para. 324 aff’d 2009 BCCA 539; Freeman v. Freeman (1889), 19 O.R. 141 at 155 (C.A.); Scott at para. 112.

[11]         I adopt this summary as accurate and applicable in respect of the issues regarding the validity of the 2011 Will in the present case. Paragraphs 34-35 of the quoted passage are no longer applicable to wills to which s. 52 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [WESA] applies, that is, where the will-maker died after March 31, 2014.

WESA Probate Delivery Rules

WESA Probate Delivery Rules

Re Davies estate 2014 BCSC 1233 deals with the WESA probate rules relating to the 21 day notice and proof of delivery of that notice.

This blog will be of note to anyone applying for a grant of probate or administration as to the requirements to be met before a grant will issue.

[6]             Rule 25-2(1), (2) and (3) and Rule 25-4(2) of the Supreme Court Civil Rules provide as follows:

(1)        Subject to this rule, unless the court otherwise orders, a person intending to apply for an estate grant or for the resealing of a foreign grant in relation to the estate of a deceased must, at least 21 days before submitting for filing the materials required for that application under this Part, deliver the following to the persons referred to in subrule (2):

(a)        a notice that complies with subrule (3);

(b)        whichever of the following, if any, that applies to the intended application:

(i)         if the intended applicant intends to apply for a grant of probate or a grant of administration with will annexed, a copy of the will in relation to which the application is to be made;

(ii)        if the intended applicant intends to apply for the resealing of a foreign grant or for an ancillary grant of probate or an ancillary grant of administration with will annexed, a copy of the foreign grant and, if a copy of the will in relation to which the foreign grant was issued is not attached to the foreign grant, a copy of the will;

(iii)       if the intended applicant intends to apply for an ancillary grant of administration without will annexed, a copy of the foreign grant.

[en. B.C. Reg. 149/2013, s. 8; am. B.C. Reg. 44/2014, Sch. 1, s. 3 (a).]

(2)        The documents referred to in subrule (1) must be delivered to the following persons:

(a)        if the deceased left a will, each of the following who is not a person by whom or on whose behalf the documents referred to in subrule (1) are to be delivered (a person by whom or on whose behalf the documents referred to in subrule (1) are to be delivered is, in this subrule, called an “intended applicant”):

(i) each person

(A)       who is named in the will as executor or alternate executor,

(B)       whose right to make an application for an estate grant in relation to the deceased is prior to or equal to the intended applicant’s right to make that application, and

(C)       who is alive at the time of the deceased’s death;

(ii)        each beneficiary under the will who is not referred to in subparagraph (i) of this paragraph;

(iii)       each person who, under Division 1 of Part 3 of the Wills, Estates and Succession Act, would have been an intestate successor if the deceased did not leave a will and who is not referred to in subparagraph (i) or (ii) of this paragraph;

(b)        if the deceased did not leave a will,

(i)         each person who, under Division 1 of Part 3 of the Wills, Estates and Succession Act, is an intestate successor of the deceased, and

(ii)        each creditor of the deceased whose claim exceeds $10,000 and who is not referred to in subparagraph (i) of this paragraph;

(c)        if the deceased was a Nisga’a citizen, the Nisga’a Lisims government;

(d)        if the deceased was a member of a treaty first nation, the treaty first nation;

(e)        any other person who, by court order under subrule (14) (a), is to receive notice;

(f)         any person not referred to in paragraph (a), (b), (c), (d) or (e) of this subrule who has served a citation on the intended applicant in relation to the deceased.

[en. B.C. Reg. 149/2013, s. 8.]

(3)        A notice under subrule (1) must be in Form P1, must be signed by the intended applicant or the intended applicant’s lawyer and must contain the following:

(a)        the name, last residential address and date of death of the deceased;

(b)        subject to subrule (4), the name and mailing address of the intended applicant and an address for service for the intended applicant, which address for service must be an accessible address that complies with Rule 4-1 (1);

(c)        if the intended applicant is an individual, the city and country in which the intended applicant ordinarily lives;

(d)        the estate grant or resealing for which the intended applicant intends to apply;

(e)        the registry of the court where the submission for estate grant or submission for resealing will be filed;

(f)         the following statements in relation to each person to whom the notice is delivered:

(i)         that the person has a right to oppose,

(A)       in the case of a notice provided in relation to an application for an estate grant, the issuance to the intended applicant of either or both of an authorization to obtain estate information and an estate grant, or

(B)       in the case of a notice provided in relation to an application for a resealing of a foreign grant, either or both of the issuance of an authorization to obtain resealing information and the resealing of the foreign grant;

(ii)        that the person may or may not be entitled to claim against the estate for relief, including a claim under

(A)       the Family Law Act, or

(B)       Division 6 of Part 4 of the Wills, Estates and Succession Act;

(iii)       that, if the person chooses to take a step referred to in subparagraph (i) or (ii) of this paragraph, the person must do so within the time limited by any relevant rule of court or other enactment;

(iv)       that the person may consult with that person’s own lawyer concerning the person’s interest in, or rights against, the estate;

(v)        in the case of an application for a grant of administration, that the person may apply for an order requiring the intended applicant to provide security unless the intended applicant is the Public Guardian and Trustee;

(g)        the following statements:

(i)         that an estate grant may issue or a foreign grant may be resealed, as the case may be, without further notice, on any date that is at least 21 days after the date on which the notice is delivered, or on any earlier date ordered by the court;

(ii)        if an authorization to obtain estate information issues to the intended applicant, the intended applicant may apply for an estate grant without further notice, and if an authorization to obtain resealing information issues to the intended applicant, the intended applicant may apply for the resealing of the foreign grant without further notice;

(iii)       that if an estate grant issues to the intended applicant as a result of the application, the intended applicant must provide, if there is a will, to the beneficiaries or, if there is no will, to intestate successors of the deceased, an accounting as to how the estate was administered and how the estate assets were distributed, and

(iv)       that if a foreign grant is resealed as a result of the application, the intended applicant must provide, if there is a will, to the beneficiaries or, if there is no will, to intestate successors of the deceased, an accounting as to how the estate comprising the assets to which the resealed grant applies was administered and how those assets were distributed.

[en. B.C. Reg. 149/2013, s. 8; am. B.C. Reg. 44/2014, Sch. 1, s. 3 (b).]

25-4(2) The registrar must not issue an authorization to obtain estate information under subrule (1) (a) of this rule or an estate grant under subrule (1) (b) unless the registrar is satisfied that

(a)        notice of the application has been delivered in accordance with Rule 25-2,

(b)        the application materials comply with Rule 25-3,

(c)        without limiting paragraph (b), if the application is for a grant of probate or a grant of administration with will annexed and is supported by an affidavit in Form P3, it was appropriate for that form of affidavit to be filed in support of the application,

(d)        if the application is for an ancillary grant of probate or administration,

(i)         the information in the foreign grant respecting the name of the deceased and the other names by which the deceased was known exactly matches the information in the submission for estate grant respecting those names, and

(ii)        each of the persons to whom the foreign grant was issued is an applicant in the submission for estate grant, and the names of the applicants in the submission for estate grant exactly match the names of the persons to whom the foreign grant was issued,

(e)        if the document to be issued is an authorization to obtain estate information, the only document that remains to be filed is the affidavit of assets and liabilities for estate grant and the applicant requires the authorization to obtain estate information to facilitate the applicant’s ability to determine the assets in the estate and the liabilities applicable to them,

(f)         if the document to be issued is an estate grant, all fees payable in relation to the application, including all probate fees, have been paid,

(g)        there is no notice of dispute in effect in relation to the estate, and

(h)        there is no reason to require a hearing in relation to the application.

[en. B.C. Reg. 149/2013, s. 8.]

[7]             Rule 25-2(1) clearly provides that at least 21 days before submitting materials for filing, the applicant must deliver certain things to certain persons.

[8]             The first thing which must be delivered is a notice which complies with subrule (3). Reference to subrule (3) reveals that such notice must be in Form 1, must be signed by the intended applicant or his or her lawyer, and must contain all of the enumerated information referred to in subrule (3)(a)-(g) inclusive. Form 1 in its entirety is mandatory; the other material to be delivered varies with the type of application and is detailed in subrule (1)(b).

[9]             Rule 25-2(2) details who is to receive the notice detailed in subrule (1) in both will and non-will situations as well as situations in which the deceased was a Nisga’a citizen or a member of a treaty first nation or when a person has served a citation.

[10]         Rule 25-4(2), again in mandatory fashion, states that the registrar must not issue an authorization for information under Rule 25-4(1)(a) or an estate grant under Rule 25-4(1)(b) unless he or she is satisfied, among other things, that notice of the application has been delivered in accordance with Rule 25-2.

[11]         Form P9 is the form which provides the registrar with evidence as to who received notice of the application and of what that notice consisted. Nowhere in the standard Form P9 is there specific reference to when notice was delivered, however, that does not reduce the duty on the registrar to be satisfied that proper 21 day notice has been provided.

[12]         The absence of express evidence of the date of delivery is not fatal in itself. The Form P9 may well be silent in its body as to the date of delivery but may have been sworn 21 or more days before the application was submitted. In such case, as long as the list of enumerated persons correctly identifies the persons entitled to notice, the registrar may properly infer adequate notice and process the application for the estate grant. In situations where that Form P9 is sworn less than 21 days before the filing of the application the inference is not available and sufficient evidence as to the date of delivery must be provided in order that the registrar may be satisfied as to observance of and compliance with Rule 25-2. Where such evidence satisfies the registrar that proper 21 day notice was given before the application was filed, the matter may be processed based on the original application date; where the evidence fails to establish that 21 day notice was given before the application was filed the original application cannot be remediated and must be resubmitted following a proper 21 day notice period, established by proper evidence.

[13]         In this particular file, and as indicated at the outset of these reasons, the application was filed a mere four days after the swearing of the Form P9 and contained no evidence as to the date of delivery. In such circumstances additional evidence must be provided in order to establish the date of delivery and thus the provision of the required 21 day notice. Until such evidence is provided the application for probate cannot be considered further or processed.

S. 60 WESA (Wills Variation) Explained

S. 60 WESA (Wills Variation) Explained

I was counsel for the plaintiffs in both the WESA case Brown v Pearce Estate 2014 BCSC 1402 which relied upon the law as set out in detail in McBride v Voth estate 2010 BCSC 443 in which I was also counsel, and both cases explain the law of wills variation now S 60 WESA, very well.

S. 60 applications to vary a will of the deceased for being inadequate and unfair can only be brought by a spouse, by same sex and common law and married, and a child of the deceased, natural or adopted but not a step child.

 

THE   LAW:

The WVA was repealed in March 31, 2014 and replaced by the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”).  The transition provisions of WESA (s. 185) provide that Part 6 [estate administration, including variation of the will] “apply in respect of deaths occurring on or after the date on which those Parts come into force”.  Hence it is the WVA which applies to this claim.  In any event, the relevant provisions in the WVA and WESA are the same.

[132]     In McBride v. McBride Estate, 2010 BCSC 443, Madam Justice Ballance provided a very comprehensive and erudite analysis of the law pertaining to wills variation which I recite and adopt in its entirety:

Legal Framework

119      The heart of the Act is found in s. 2.  It provides that if, in the court’s opinion, a will fails to make adequate provision for the proper maintenance and support of the testator’s spouse or children, the court is empowered, in its discretion, to vary the will to make provision that it considers adequate, just and equitable in the circumstances.

120      The Supreme Court of Canada’s decision in Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807 [Tataryn], continues to be the seminal case and the governing authority in British Columbia on wills variation.  To fully appreciate the importance of Tataryn, it is useful to understand the jurisprudential context in which it was decided.  While I do not propose to summarize the pre-Tataryn case law (and it is, I think, crucial to approach the jurisprudence based on whether it came before or after Tataryn), the Supreme Court of Canada decision of Walker v. McDermott, [1931] S.C.R. 94 [Walker] warrants particular mention.

121      The central issue for the Court in Walker was whether the adult independent daughter had to demonstrate financial need of support in order to obtain judicial variation of her father’s will.  The majority of the Court turned away from a financial needs-based approach.  In his often-quoted passage, Duff J., speaking for the majority, endorsed a broad interpretation of the scope of “proper maintenance and support”, one which encompasses the notion that a testator shoulders a moral obligation as a spouse and parent (at p. 96):

What constitutes “proper maintenance and support” is a question to be determined with reference to a variety of circumstances.  It cannot be limited to the bare necessities of existence.  For the purpose of arriving at a conclusion, the court on whom devolves the responsibility of giving effect to the statute, would naturally proceed from the point of view of the judicious father of a family seeking to discharge both his marital and his parental duty; and would of course (looking at the matter from that point of view) consider the situation of the child, wife or husband, and the standard of living to which, having regard to this and the other circumstances, reference ought to be had.  If the court comes to the decision that adequate provision has not been made, then the court must consider what provision would be not only adequate, but just and equitable also; and in exercising its judgment upon this, the pecuniary magnitude of the estate, and the situation of others having claims upon the testator, must be taken into account.

122      Judicial reception of Walker was divided.  Over time, two competing lines of authority emerged: those maintaining that demonstration of a claimant’s economic need was a prerequisite to relief, and those that were true to the Walker analysis.

123      The Tataryn Court was cognizant of the lack of judicial uniformity in the approach to the statute and of the expressed criticism that the law was in disarray and promoted unpredictable trial outcomes based on the “length of the Chancellor’s foot”.  (See Leopold Amighetti, The Law of Dependents Relief in British Columbia (Toronto: Carswell, 1991), at p. 56.)  Tataryn did not introduce the moral obligation consideration into the analysis of whether provision consistent with the Act had been made.  The Tataryn Court simply affirmed its earlier decision in Walker and laid to rest any lingering legitimacy of a needs-based model.

124      In Tataryn, McLachlin J. (now the C.J.C.), writing for the Court, went some distance to clarify the moral duty concept and the interplay between it and a judicious testator’s spousal and parental legal duties in light of contemporary standards.  Her articulation of the relevant considerations and the principles underpinning the Act has been reiterated in virtually every case decided thereafter.  Her Ladyship powerfully summarized the application of the Act by observing that “the search is for contemporary justice” (p. 815).

125      McLachlin J. identified the two fundamental interests protected by the Act.  The main statutory objective is the adequate, just, and equitable provision for a testator’s spouse and children.  The other protected interest is the testator’s testamentary autonomy.  Of necessity, testamentary freedom is subordinate to the main objective of the Act.  This is because a testator is only permitted to be unconstrained in his or her testamentary dispositions so long as adequate provision has been made to the narrow class protected by the Act.  The conceptual essence of the Act is to permit judicial interference of testamentary freedom where a testator’s spouse or child has not been left adequate provision.  Testamentary freedom must therefore yield to the extent required to achieve adequate, just and equitable provision for the applicant spouse and/or children.  In that sense and to that degree only, testamentary autonomy will be curtailed by the application of the Act.

126      The Tataryn Court held that the determination of whether adequate provision has been made and, if not, the provision to be substituted by the court to achieve an adequate, just and equitable distribution are “two sides of the same coin” (p. 814).

127      The basic approach formulated in Tataryn to address the adequacy of the testamentary provision can be summarized as follows:

In the pre-Tataryn benchmark case of Price v. Lypchuk (1987), 11 B.C.L.R. (2d) 371, 26 E.T.R. 259 (C.A.) [Price], the Court of Appeal clarified that because societal circumstances change, the judicious spouse/parent of the Walker decision must be assessed in accordance with a contemporary view of marital and parental obligations, and of testamentary autonomy.  McLachlin J. affirmed that proposition.  The question of whether a testator has acted as a judicious parent or spouse in relation to the provision under the will is measured by an objective standard, assessed in light of current societal legal norms and current societal moral norms.

Legal Norms

Legal norms are the obligations that would be imposed upon the testator during his or her life if the question of provision for the claimant spouse or child were to arise.  In the words of McLachlin J., a testator’s legal responsibilities while alive “reflect a clear and unequivocal social expectation, expressed through society’s elected representatives and the judicial doctrine of its courts” (p. 821).  Pursuant to Tataryn, a testator’s legal obligations, had he or she not died, arising under the Family Relations Act, the Divorce Act, and the law of constructive trust are relevant factors in the assessment of the testator’s legal obligations for the purposes of the Act.  McLachlin J. acknowledged that a testator’s legal obligations may extend to dependent children and left open the prospect that an independent adult child might have a legal claim against a parent based on unjust enrichment (p. 822).  While McLachlin J. recognized that the legal obligations that contemporary society imposes on living testators vis-à-vis their spouses and children are not necessarily parallel to those on death, she regarded them to be an important indication of the nature of the legal duty in death (p. 822).

Moral Norms

McLachlin J. indicated that a testator’s moral duties are found in “society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards” (p. 821).  She acknowledged that because there is no clear legal standard to assess moral duties, obligations falling under that rubric are more susceptible to being differently interpreted by different individuals (p. 822).

The position under the Act of a testator’s self-sufficient adult child has been controversial since the inception of the statute.  In directing her mind to the moral claims of such children, McLachlin J. noted that while they may be more tenuous than that of a spouse or dependent child, the jurisprudence suggests that where the size of the estate permits, some provision for such children should be made, unless there are circumstances that would negate such an obligation (p. 822).

Tataryn recognized that there is no single way for a testator to divide the estate in order to discharge the legal and moral duties.  In this regard, McLachlin J. reminded that it is only where the testator has chosen an option which falls below his or her obligation defined by reference to the contemporary sense of legal and moral norms, that a court will make an order “which achieves the justice the testator failed to achieve” (p. 824).

Balancing the Claims

Tataryn held that all legal and moral claims should be satisfied where the magnitude of the estate permits.  If that is not possible, the court must prioritize the competing claims.  Claims that would have been recognized as legal obligations during a testator’s lifetime should “generally take precedence” over moral claims (p. 823).  The court must also weigh the competing moral claims and rank them according to their strength.  Where the estate assets permit, as part of the assessment of a testator’s moral duty the court must take into account the testator’s legitimate testamentary concerns for the protection of beneficiaries and future generations and the carrying out of social purposes which may go beyond providing for the surviving spouse and children (p. 823).

128      In Tataryn, the Court clarified that because they are “two sides of the same coin”, the factors taken into account to determine whether a testator has made adequate provision are also relevant to the determination of what would constitute adequate, just and equitable provision in the particular circumstances.  A number of years ago, this Court identified circumstances that might support or negate a testator’s moral duty to recognize the claim of an adult child in the decision of Clucas v. Clucas Estate, 25 E.T.R. (2d) 175, [1999] B.C.J. No. 436 (S.C.).  I would supplement that helpful summary with the following overview of six of the considerations that inform the existence and the strength of a testator’s moral duty to independent children.  Although many of these factors were developed before Tataryn, for the most part they maintain relevance for the post-Tataryn court.

1. Contribution and expectation

129      Contributions by the claimant to the accumulation of a testator’s assets with little in exchange, or providing other types of contribution or care to a testator will generally serve to strengthen the moral obligation, other things being equal.  The contribution may also found a legal claim in unjust enrichment or quantum meruit: Tataryn; Re Sleno 78 D.L.R. (3d) 155, [1977] B.C.J. No. 140 (S.C.); Lee v. King Estate, [1975] B.C.J. No. 893 (S.C.); Harris v. Harris, [1980] B.C.J. No. 1417 (S.C.); Ryan v. Delahaye Estate, 2003 BCSC 1081, 2 E.T.R. (3d) 107 [Ryan].  Contributions made by a first spouse who predeceased the testator may support a moral obligation to the adult claimant children of that first marriage: Saugestad v. Saugestad, 2008 BCCA 38, 77 B.C.L.R. (4th) 170; Waldman v. Blumes, 2009 BCSC 1012, 51 E.T.R. (3d) 253.

130      A moral duty may arise where the testator’s conduct has created a bona fide expectation on the part of the plaintiff to receive a benefit which does not come about on death: Marsh v. Marsh Estate 19 E.T.R. (2d) 184, [1997] B.C.J. No. 1286 (S.C.); More v. More Estate, 2002 BCSC 920, 46 E.T.R. (2d) 96.

2. Misconduct/Poor character

131      Section 6(b) of the Act empowers the court to refuse variation to a person whose character or conduct, in the opinion of the court, disentitles him or her to relief.  Such misconduct is measured as at the date of death, not subsequently, and must be directed at the testator.  Generally speaking, the conduct must be relatively severe in order to justify disinheritance: Gieni v. Richardson Estate, [1995] B.C.J. No. 1227 (S.C.); Sammon v. Stabbler, 2000 BCSC 1048, 77 B.C.L.R. (3d) 283.  A child who is a disappointment overall (Sawchuk v. MacKenzie Estate, 2000 BCCA 10), is an “incompetent weakling” (Re Bailey Estate, [1972] 1 W.W.R. 99, 1971 CarswellBC 195 (S.C.)), or is unsuccessful in multiple business ventures and has a difficult time “fighting the battle of life” (Re Radcliffe, 2 B.C.L.R. 220, [1977] B.C.J. No. 1036 (S.C.)) was not considered to be sufficiently defective.

3. Estrangement/Neglect

132      In the early development of the caselaw, a long period of separation, abandonment or estrangement between a child and testator was frequently, though not invariably, taken to militate against finding a moral duty to an adult child.  The modern judicial trend indicates that the court will enquire into the role played by the testator in the estrangement or relationship breakdown, and where it is seen to be largely the fault of or at the insistence of a testator, it will likely not negate a testator’s moral duty, and may even enhance it.  The weight of the authorities also indicates that the court may discern a moral duty as a means of rectifying the testator’s childhood neglect of the children: Gray v. Gray Estate, 2002 BCCA 94, 98 B.C.L.R. (3d) 389, Doucette v. Clarke, 2007 BCSC 1021, 35 E.T.R. (3d) 98 [Doucette]; Tomlyn v. Kennedy, 2008 BCSC 331, 38 E.T.R. (3d) 289; Wilson v. Watson, 2006 BCSC 53, 21 E.T.R. (3d) 285; P.S.G. v G.G. Estate, 2005 BCSC 1855; Ryan.

4. Gifts and benefits made by the testator during lifetime

133      Depending on the circumstances, a testator’s moral duty may be diminished or negated entirely where he or she has made inter vivos gifts to the claimant, or the claimant has received assets on the testator’s death outside the framework of the will.  This includes benefits conferred by way of an inter vivos trust, outright gift and assets passing on death by operation of law such as joint tenancies, and by way of specific beneficiary designation of insurance proceeds, RRSPs, pension benefits, RIFs, and the like.  On the same reasoning, if a testator has made pre-death gifts to individuals other than the plaintiff, or has arranged his or her affairs to facilitate a passing of assets to such individuals outside the provisions of the will, the moral duty owed to the plaintiff may be intensified.  See generally: Ryan; Higgins v. Wojciechowski Estate, [1992] B.C.J. No. 1398 (S.C.); Inch v. Battie, 2007 BCSC 1249, 36 E.T.R (3d) 79 [Inch].

5. Unequal treatment of children

134      That an independent child has not been given the same provision under a will as the testator’s other child or children will not, of itself, necessarily establish a moral claim: Re Lukie et al and Helgason et al., 72 D.L.R. (3d) 395, [1976] B.C.J. No. 1393 (C.A.); Price.  On the other hand, in Vielbig v. Waterland Estate (1995), 1 B.C.L.R. (3d) 76, 6 E.T.R. (2d) 1 (C.A.), the Court of Appeal held that equal treatment among independent adult children is prima facie fair from a moral duty standpoint.  In Ryan, the court held that in the absence of relevant reasons for an unequal distribution, there is a reasonable expectation that adult children will share equally, even though no legal obligation requiring equal distribution exists. (para. 67).  The emerging rule of thumb to the effect that equal apportionment among children prima facie discharges a testator’s moral duty was applied in Inch.  There, the court held that an equal distribution was prima facie fair, despite the fact that one child received significant assets by way of inter vivos transfers.  The proposition was recently revisited by the Court of Appeal in Doucette.  In that case, the Court of Appeal appeared to have no difficulty with the disinheritance of one of the preferred beneficiaries by allocating her nothing out of the estate in light of the generous gifts that she had received outside the will via jointly held assets.

6. Testator’s reasons for disinheritance/Subordinate benefit

135      The approach to be taken by the court in relation to a testator’s reasons for disinheriting or providing a modest benefit only to a child starts with consideration of the Court of Appeal decision in Bell v. Roy Estate (1993), 75 B.C.L.R. (2d) 213, 48 E.T.R. 209 (C.A.) [Bell].  In Bell, the testator left a will under which she bequeathed a small gift to one adult son, nothing to her adult daughter, and left the lion’s share of her estate to her other adult son.  Contemporaneously with making her will, the testator wrote a separate letter purporting to explain the unequal treatment of her children, and in particular the disinheritance of her daughter.  The trial judge concluded that the reasons offered by the testator for disinheriting her daughter were accurate and sufficient to support the will. Accordingly, variation of the will was refused.  The Court of Appeal’s dismissal of the daughter’s appeal came before the Supreme Court of Canada issued its decision in Tataryn.

136      In his analysis in Bell, Goldie J.A., for the Court, placed heavy reliance on the post-Walker legislative amendments to the Act enacted in 1971 (now s. 5), which permit the court to accept evidence of the testator’s ascertainable reasons for making or not making the dispositions in the will relative to his or her spouse and children.  That section stipulates that where such evidence is in the form of a written statement signed by the testator as in Bell, the court, in weighing the statement, must have regard to all of the circumstances which may reasonably support an inference about the accuracy or otherwise of it.

137      In addressing those statutory amendments, Goldie J.A. stated, at para. 38:

38        … the weight to be given evidence of the testator’s reasons is affected by its accuracy and not by morally acceptable or unacceptable content.  I do not say the legislature swept away any objectively determined moral duty.  I do say, however, that the actual intentions of the testator are to be given an effect which is largely denied by reliance upon the notionally objective reasonable testator.

138      In Bell, the Court of Appeal held that where financial need is not a factor, if the court finds that the testator’s reasons purporting to explain a disinheritance are valid and rational, the testator’s moral duty in respect of that child is negated.  The Court held that the burden then shifts to the plaintiff to show that the reasons acted upon by his or her parent were false or unwarranted.

139      Goldie J.A. acknowledged that this approach placed greater emphasis on a testator’s intentions and “less on those which might be imputed to her by reference to the reasonable testator” (para. 36).  He endorsed giving effect to a testator’s subjective rationale which would be “largely denied” by employing an objective reasonable testator standard.

140      The Court of Appeal reaffirmed the Bell model after Tataryn was decided at the Supreme Court level.  In Kelly v. Baker (1996), 82 B.C.A.C. 150, 15 E.T.R. (2d) 219 (C.A.) [Kelly], the Court of Appeal applied the Bell analysis and concluded that the testator had valid and rational reasons for disinheriting the claimant.  As to the content of the reasons, Kelly stated that the testator’s reasons for disinheriting a child need not be justifiable. The Court observed that the law merely requires that the reasons are valid, meaning based on fact, and rational in the sense that there is a logical connection between them and the act of disinheritance (para. 58).

141      One cannot quarrel with the outcomes in Bell and Kelly in light of their particular facts.  The thorny issue is that the model of inquiry endorsed by Bell and followed in Kelly effectively precludes an assessment of whether the testator’s reasons are objectively justifiable from the standpoint of the contemporary judicious parent of Tataryn.  In Tataryn, McLachlin J. made passing mention of Bell as an example of a case where a testator’s moral duty was seen to be negated.  Notably, she did not say nor delve into whether the proposition espoused by Goldie J.A. to negate that moral duty was sound.  If the decisions of Bell and Kelly mean that the applicable test is whether a testator has valid (i.e. factually true) and rational (i.e. logically connected to the disinheritance) reasons for disinheriting a child, even where the reasons are unworthy of an objectively judicious parent based on contemporary standards, then they are difficult to reconcile with the fundamental precepts of Tataryn and the search for contemporary justice in the circumstances.

142      For the most part, the apparent incompatibility between Bell and Kelly on the one hand, and Tataryn on the other, has not been squarely confronted by this Court (an exception is found in Hammond v. Hammond (1995), 7 B.C.L.R. (3d) 25, 7 E.T.R. (2d) 280 (S.C.)).  I would respectfully observe that there appears to be a growing trend in the authorities decided in the aftermath of Kelly to favour rejection of objectively insufficient reasons on the pretence that they are simply not rational.

[133]     The Court of Appeal also recently discussed the law pertaining to wills variation litigation in Hall v. Hall Estate, 2011 BCCA 354 as follows:

37        An application under s. 2 is thus a two-stage process.  First, the court must determine whether adequate provision has been made for the proper maintenance and support of the applicant.  If not, at the second stage the court must consider what provision for the applicant would be adequate, just and equitable.

38        The Supreme Court of Canada set out the principles that guide this analysis in Tataryn v. Tataryn, [1994] 2 S.C.R. 807.  McLachlin J., writing for the Court, observed that s. 2 gives the court broad discretion in advancing two interests protected by the Act.  The first is ensuring adequate, just and equitable provision for a testator’s spouse and children.  The second is testamentary autonomy.  If the second must yield to the first, the ultimate question is “what is adequate, just and equitable in the circumstances judged by contemporary standards”.  In answering that question, the court will be guided by two sets of norms. The first are the testator’s legal obligations to his or her family.  The second are the moral obligations to family members that arise from reasonable expectations of what a judicious person would do in the circumstances.  Claims based on legal obligations will generally take precedence over those based solely on moral duties.  The testator’s “legitimate concerns” should be recognized in assessing the extent of any moral obligations.  Finally, there will be a wide range of appropriate options in judging whether the testator’s dispositions meet the requirements of the Act, and one’s freedom to dispose of one’s estate should be treated with deference as long as the options chosen fall within that range.

39        With specific reference to the claims of adult independent children, the Court stated a testator will not generally have a legal duty to an adult independent child unless the child contributed to the estate.  As to moral obligations toward adult children, these are tenuous, but may justify entitlement if the size of the estate is adequate and the circumstances do not negate such an obligation.

[134]     In the same case, the Court of Appeal made other observations as to the law which are also relevant to the present dispute, namely:

  • succeed in challenging the will, the plaintiff must establish that the testator’s reasons (for disinheritance or for only a very modest bequest), and insofar as those reasons can be ascertained, were false or unwarranted … “it is not necessary to find the reasons were justifiable.  It is enough if they were factually valid, and rational in the sense of having a logical connection to the act of disinheritance” (para. 43);
  •  the relevant date to determine whether a testator made adequate provision for the proper maintenance and support of the plaintiff under the first step in the two-step analysis is the date of the testator’s death (para. 46);
  • because “family histories and dynamics are critical” to the assessment of testamentary provisions made, or not made, for adult independent children, and because such histories and dynamics “vary widely and are often unique”, each case must be decided on its own facts and other cases dealing with such assessments will not usually be helpful (para. 44).

S. 132 WESA: Special Administrator

S. 132 WESA - Special Administrator
S. 132 WESA (Wills, Estates, Succession Act) allows the Court to appoint as administrator of an estate any person the court considers appropriate if, because of special circumstances ,the court considers it appropriate to do so. The appointment can be conditional or unconditional and made for general, special or limited purposes.
This is of potential great use to the many fractured families embroiled in estate litigation where there are accusations that the executor is being unfair and the estate is dragging on due to infighting.
In Re Godby Estate 2015 BCSC 1809 the court considered appointing  an experienced estate lawyer in the place of a trust company but chose the trust company largely as the majority of the beneficiaries wanted the trust company who had already started work on the administration and had a contract for the sale of the major asset.
The trust company was appointed special administrator pursuant to S 132 WESA unconditionally and generally.

The Law:

45      By their opposing applications, the parties effectively seek the same result: appointment of a special administrator under s. 132 of WESA. As noted earlier in these reasons, the initial grant of administration to Solus is or may be flawed in that Barbara’s and Brenda’s opposition to Solus was not or may not have been considered. Simply setting aside the ex parte order of Harris J. and reinstating the order appointing Solus does not take this apparent oversight into account.
46      The appointment sought is within the discretion of the court. The discretion must be exercised with a view to placing the administration of the estate in the hands of the entity that is likely best to convert it to the advantage of those with claims to the estate, per Earl of Warwick v. Greville (1809), 1 Phill. Ecc. 132, 161 E.R. 934 (Eng. P.D.A.).
47      The fact that the majority of the beneficiaries in this case support the appointment of Solus is a significant factor for me to consider, per Williams v. Wilkins (1812), 2 Phill. Ecc. 100, 161 E.R. 1090 (Eng. K.B.). The majority beneficiaries are entitled to about 80% of the estate and have a significant interest in its administration.
48      Friction between a beneficiary and a trustee, in the absence of misconduct or breach of trust on the part of the trustee, is not sufficient to merit the removal of a trustee: Conroy v. Stokes, [1952] 4 D.L.R. 124 (B.C. C.A.).