Tag: Wills Issues

Dealing with Lost Wills

An update to this article is that since the introduction of WESA on April 1, 2014, I anticipate that the courts will be more willing to allow copies of wills as proof of the testator’s intention to more easily admissible into probate.

Many estate practitioners will face the situation where the original will cannot be located following the death of the testator. There are many variations on the fact patterns surrounding such lost wills and any number of reasons the original will cannot be located.

At common law, where a validly executed will is shown to have last been in the custody of the testator, and that will has not been located despite every effort, then, in the absence of evidence to the contrary, a presumption of revocation by the testator arises. In other words, the law presumes the testator has destroyed the will with the intention of revoking it. This presumption also applies to the copies i.e. any executed copies are deemed to have been revoked as well.

In this paper we will examine this presumption of law and review some of the cases where evidence to the contrary has been offered to rebut the presumption. Most of the cases focus on whether or not the presumption has been rebutted on the facts of the particular case.

The Presumption of Revocation – Leading Cases

1. Sugden V. Lord St. Leonards (1876) 1 P.D. 154 (C.A.).

In this leading case, Lord St. Leonard’s will could not be found following his death. His daughter, however, had read the will so many times that she was able to reproduce almost all of its provisions verbatim. In this case, the court was satisfied with the honesty of the witness and her ability to recall. Further, they were convinced the daughter had accurately related the testator’s intentions. The court thus admitted into probate the daughter’s memorandum of the contents of her father’s will.

In terms of the legal presumption the court further held it would consider if there other explanations for inability to locate the will, that is explanations other than the intentional destruction by the testator.

The court further held that a testator’s declarations as to the contents of the will were admissible to prove those contents. The court held the declarations were admissible whether they be made before or after the will was signed and whether the declarations be oral or written.

As to the strength of the presumption of revocation, the court said this would depend on the character of the custody the testator had over his will.

In this case, the court found Lord St. Leonard was a person who regarded his will as of the utmost importance. They found that since there was no evidence that he deposited the will with others for safekeeping, he likely would have kept it in his possession. The court concluded that it was “obvious that the will may have been inadvertently burned when the testator’s personal effects were destroyed after his death”.

The court opined “it seems utterly impossible that, under the circumstances, such a man as Lord St. Leonard’s would voluntarily destroyed his will, whether for the purpose of revoking it or making another, or for any other purpose that could be considered”.

Lefebvre v. Major(1930) S.C.R. 253

The Supreme Court of Canada followed Sugden v. St. Leonard sin admitting into probate a copy of a will. In this case, the deceased’s banker had sent him his will, however, upon his death, it could not be located. A few weeks before his death, the deceased had told a close friend “his papers were fixed up so that everything went to his sister after his death.”

As in the Sugden case, the court found that the deceased regarded his will of the utmost importance. The court held that the testator was simple man who was affectionate to his sister and that he would not have intentionally destroyed his will. Again, as in Sugden, the court speculated the will had been “inadvertently burned” with the rest of his personal effects.

3. A different approach was taken in another leading Canadian case Sigurdson v. Sigurdson (1935) 4 D.L.R. 529.

Sigurdson had taken his original will home from his lawyer’s office. All of his family read the will and it was put in a small locked metal box which Sigurdson kept. He also kept an unlocked wooden box in which he had other personal papers. From time to time, Sigurdson would move papers from one box to the other. Just prior to his death he told a son by his first marriage that he did not have a will because everything would divided up “according to law”.

In the subsequent litigation, the court found Sigurdson to be a person who knew exactly what papers he had in his metal box. The trial judge concluded that he revoked his will so as to allow his wife and his children from both marriages to share by operation of law. The Supreme Court of Canada upheld the trial decision which applied the presumption of revocation and refused to admit into probate a copy of the will.

In the Supreme Court decision, Davis J. stated that “it needs to be clear and convincing evidence to establish what is alleged to be a lost will. The person propounding such a will has a burden of proof that persists throughout the whole trial to satisfy the court at the conclusion that he will is in fact lost and that it was not destroyed by the testator with the intention of putting it to an end.”

For other decisions where the court has found the presumption was not rebutted see: Re Wagenhoffer 22 E.T.R. 60 ( Sask. C.A.), Re Wellwood (1982) 19 Alta.L.R. (2d) 268,Kennedy v. Peikoff (1966) 56 W.W.R. 381 ,Re Singh (1912) 1 W.W.R. 472, and Re Perry (1925),56 O.L.R.278)

Review of Cases where the Courts find the Presumption to be Rebutted

A review of the “lost will” cases could lead one to conclude that the courts are very open to finding the presumption has been rebutted. In spite of the legal presumption, the courts seem to be very reluctant to find that a testator has deliberately revoked a will by destroying it.

There are many cases where, based on evidence which is relatively weak, the courts permit a copy of a will or other sufficient evidence of the will to be admitted into probate.

1. A leading British Columbia case is Unwin v. Unwin (1914) 6 W.W.R. 1186.

Mr. Unwin had prepared a will leaving everything to his wife. He placed the will in an envelope and gave it to his wife to put in a drawer with his other papers. After his death the will could not be located.

Mrs. Unwin testified that she and the deceased had a harmonious marriage and that the deceased never expressed any intention to revoke the will. The court found that Mr. Unwin had no motive to make another will. The Court believed the testimony of the wife and admitted a copy of the will into probate.

The court held that it was entitled to consider the relationship between the deceased and his wife, also his words and actions subsequent to the execution of the will, and any circumstances which may tend to support or rebut the presumption of revocation.

In rebutting the presumption the court relied on Sugden v. St. Leonard’s where Chief Justice Cockburn stated “The presumption will be more or less strong according to the character of the custody which the testator kept over the will”.

2.Both Unwin and Unwin and Sugden v. St. Leonard’s were followed in Brown v. Woolley (1959) 29 W.W.R. 425. In this case a B.C court admitted into probate a carbon copy of the executed after the original was lost. The court based its finding on the uncorroborated evidence of an interested party who the court, nevertheless, found to be a reliable witness.

In all three cases the court found the presumption of revocation to be rebutted based on evidence by “by trustworthy witnesses” as to the deceased’s declarations made shortly before death as to the dispositions made in his will.

3. Holst Estate v. Holst39 E.T.R. (2d) 218. This is a recent B.C. case that typifies the kind evidence required to rebut the presumption of revocation.

In 1988 the deceased and his son were the owners, as tenants in common, of a parcel of land. The father had given the son’s share to him as a gift. Six years later the father wrote a will dividing his estate equally amongst his children. He later realized that, in effect, he had already given this one son an inheritance equal to the shares of the estate left to his other children. The father thus executed a codicil to revoke this one son as a beneficiary under his will. After his death this codicil could not be found.

The court found that the presumption had been rebutted because:

a) eight months before his death the deceased had told his lawyer that he had executed such a codicil;

b) evidence showed that the codicil could have been lost;

c) it was not the deceased’s character to have intentionally destroyed his codicil;

d) evidence did not support the contention that the codicil was intentionally destroyed by the deceased;

e) the deceased had numerous documents throughout the house that were not organized;

1. Dementia

A testator must have sufficient mental capacity to be able to revoke a will. Doubtless many seniors “squirrel away” their wills, and then forget where they have put them. Thus a will lost by a testator who ultimately becomes incapable, creates a legal dilemma. Often it is not clear when the will was lost in relation to the deceased’s loss of legal capacity. Did the person intend to revoke the will? Did that person have legal capacity at that time?

In re Broome (1961) 35 W.W.R. 590, the Manitoba Court of Appeal held that the burden of showing that the will was destroyed before the onset of insanity lies on the party asserting revocation.

This case was followed in the British Columbia of Eaton v. Heyman (1946) 63 B.C. R. 62

2. Suspicious Circumstances

The presumption of revocation may be rebutted if it can be shown that a person who stands to benefit from the loss of the will has fraudulently destroyed it.

In Re Weeks,(1972) 3 O.R. 422, the court refused to make an inference of fraudulent destruction in spite of what the judge characterized as “very suspicious circumstances”. Instead the judge applied the presumption of revocation and declared an intestacy.

In this case, the evidence showed that the deceased’s wife had been badgering him to amend his will and leave a larger share to her. She alone had access to the locked drawer where the will was kept. She stood to inherit much more if the will were not found and he died intestate. Nevertheless the court applied the presumption of revocation and found the will was presumed to have been destroyed by the deceased and thus revoked.

In Re Perry [1925] 1 D.L.R. 930 (C.A.), the court refused to allow a copy of a lost will into probate and declared an intestacy.

Justice Middleton stated “… when a testator has possession of his testamentary instrument, and it is not forthcoming at the time of his death, the presumption is that he destroyed it. The presumption is against fraudulent abstraction either before or after death, but circumstances which render the abstraction possible must be taken into account in weighing the evidence.”.

3. Accidental Loss or Destruction

In Allan v. Morrison, [1900] A.C. 604 the Privy Council upheld the decision of the New Zealand Court of Appeal who, in rendering their appeal judgment, had said as follows:

“The hypothesis of accidental loss or destruction is unreasonable. There is a presumption against the hypothesis of fraudulent abstraction. There is a reasonable possibility that the deceased destroyed the will himself. In order to find for the will we must be morally satisfied that it was not destroyed by the testator animo revocandi.”(with an intention to revoke)

Requirement for Proof of the Contents and the Will’s Execution

Even once the presumption of revocation is rebutted, probate will still only be granted if there is sufficient proof of both the contents of the lost will and its due execution.

The contents of the will may be established on secondary evidence such as the solicitor’s notes, or a copy, or any other such written evidence. For example, in re Dreger 13 E.T.R. 212 a carbon copy of the will was admitted into probate.

Secondary evidence of the contents of a will may include:

1) the solicitor’s notes, or a typed copy or carbon copy;

2) oral testimony of someone having direct knowledge of the contents, such as the solicitor who prepared the will;

3) pre-testamentary or post-testamentary statements of the testator, whether written or oral;

In weighing such evidence, the court will carefully scrutinize the evidence of anyone who stands to benefit from the contents proposed.

The Presumption applies only if the will was in the Possession of the Testator.

In Re Flaman Estate (1997) 18 E.T.R. 305, the court confirmed that the presumption to intentionally revoke a will is only established when the will is last traced to the possession of the testator. In this case the deceased was in a nursing home and thus the will’s possession could not be last traced to him.

Conclusion

In summary, the caselaw currently provides that where a missing will was last known to be in the possession of the testator before his death, the presumption is that the testator destroyed the will with the intention of revoking it.

This presumption may be rebutted by the following evidence:

1) words or actions of the testator either before or after the execution of the will; or

2) a codicil that refers to the will; or

3) evidence of the character of the testator and his treatment towards the beneficiaries during his life; or

4) statements made by the testator about the provisions made to beneficiaries.

Even if the existence of will is proven and the presumption rebutted, two further matters must still be established–the contents of the will and its proper execution. Only once these elements are proven will the court admit a copy of the will, or other sufficient evidence, in place of the original will.

Like many other areas of estate law, the law purports to be clear, however its application is at times apparently inconsistent. It seems the courts are reluctant to declare an intestacy, and will often go to some lengths to find sufficient evidence to rebut the presumption of revocation.

Forfeiture Clauses in Wills

Bellinger v. Fayers, Nuytten 2003 BCSC 563 discussed inter alia forfeiture clauses in wills

On June 11, 2002, Justice Hood handed down Reasons for Judgment, subsequent to the trial reasons, in the case of Bellinger v. Fayers, Nuytten.

In this case I represented the plaintiff, Roy Bellinger who together with his cousin, Phil Nuyten contested Roy’s mother’s will. In particular, the cousins contested the distribution under the will which left Roy a $40,000.00 gift and Phil a gift of an agreement for sale valued at $15,580.00. The residue (there was little of that) was to be shared equally by Roy, Phil and Roy’s sister, Beverly, the daughter of the deceased.

Phil and Roy’s complaint was with a purported inter vivos transfer of the deceased’s home to Roy’s sister Beverly. The plaintiffs alleged that the home should form part of the estate assets. In particular they made a number of claims arising from common law. Briefly these claims were the following:

The will violated a previous oral agreement that the estate be split equally among the three of them
The will was the result of undue influence exercised by Beverly over her mother.
Beverly wrongfully directed her mother’s assets to herself before her mother’s death.
The deceased’s house had been transferred to Beverly prior to death, under a sham agreement of sale, possibly forged by Beverly

In addition, Roy brought a statutory claim. He contested the will on the ground that it did not adequately provide for him as required by the Wills Variation Act, R.S.B.C. 1996, c. 490.

After nine days of trial, Justice Hood dismissed both the common law and statutory claims brought by the plaintiffs.

With regard to Roy’s claim under the Wills Variation Act, Justice Hood found that $40,000 was more than adequate, just and equitable in the circumstances. As a result he did not increase that provision under the will.

Surprise

Following the reasons for judgment at trial, Beverly’s counsel raised the forfeiture clause contained in the will. He claimed that both plaintiffs had forfeited their inheritances under the will by reason of that provision! Counsel maintained the forfeited gifts should fall into the residue of the estate to be distributed exclusively to Beverly!

The Forfeiture Clause

The deceased’s will contained the following forfeiture provision:

7. IT IS MY FURTHER DESIRE, because of an expressed intention of one of the legatees to contest the terms of this my Will, that should any person do so then he or she shall forfeit any legacy he or she may be otherwise entitled to.

At trial, only fleeting reference had been made to this provision when I asked Roy during his direct examination if he thought he was the person referred to in that clause.

Given that the clause was not pleaded in the action, nor had there been any submissions as to its effect at trial, I had the opportunity to fully consider this clause for the first time after the initial judgment.

Perhaps, like many of you, I had assumed that such a clause was archaic and would no longer be upheld by our courts. Like many estate practitioners I expected that the courts would find such a clause to be void as against public policy. This is not entirely correct. I was surprised to learn that these clauses, when properly drafted, remain a possible option in estate planning.

There is very little case law dealing with this area of estate law. The few reported cases are old and perhaps do not reflect modern public policy concerns.

In terrorem clauses

Forfeiture clauses were permitted at common law, however their scope was limited by the ecclesiastical courts who developed the in terrorem rule. Initially, this in terrorem rule applied only to gifts of personal property. The courts of equity later expanded it to include both real property and chattels.

In general terms, the in terrorem rule provided that the courts could find a forfeiture clause void

if a gift was conditional, and
if those conditions were in the nature of a threat and
if there was no gift over to an alternate beneficiary in the event the condition was not met.

According to Feeney’s Canadian Law of Wills, Fourth edition, if, and only if, there is the required gift over, a conditional gift may be valid. With a gift over, such a clause will be valid unless the forfeiture condition:

is in total restraint of marriage; or
prevents a beneficiary from instituting any litigation, whatever concerning the testator’s estate is void

According to Feeney, even if otherwise valid, the conditions must contain the qualifications mentioned (ie. permit some marriages, or permit some litigation). Otherwise they are prohibited as contrary to public policy. Feeney explains at

16.61:

“But a condition in partial restraint of marriage is good, as is a condition against disputing a will that does not preclude all litigation. These qualified conditions are not contrary to public policy.

In these two cases, however, if the gift is one of personalty, or a mixed fund representing both realty and personalty, (but not, it seems, in the case of the devise of land), unless there is a gift over, the court will consider the condition as being in terrorem and void, although normally the condition will not be void if there is a gift over. The reason for the rule is that the court considers an expressed gift over to someone else sufficient prime facie evidence that they gift was not in terrorem; the presence of the gift over tending to show that the condition was inserted not simply to coerce the original donee but also to fix a possible benefit to another.”

Modern Law

There is little modern Canadian case law considering forfeiture clauses. This is perhaps because such clauses are relatively rare. In any event, I could find only one previous BC decision to assist me.

Justice Hood’s ruling on the forfeiture clause

In response, to Beverly’s claim that the forfeiture should occur, we brought on a motion seeking a declaration that clause 7 was void. We maintained it should thus have no effect on the gifts to the two male beneficiaries. Our application was granted in reasons delivered April 14, 2003.

In this second set of reasons, Justice Hood found Clause 7 had very likely been included because Roy had told his mother he intended to contest the terms of her will. Specifically Roy had told her he would contest her transfer of the house to his sister Beverly.

Justice Hood reviewed the excerpt from Feeney quoted above. He then discussed the gift over required to validate a forfeiture condition. He stated as follows:

“The gift must be accompanied by an effective gift over which vests in the recipient on the condition being breached. If there is no gift over, then the condition will be treated as merely in terrorem, that is a mere threat, and will be found to be void. And nothing short of a positive direction of a gift over, of vesting in another, even in the case where the forfeited legacy falls in the Residue, will suffice. There must be an express disposition made of what is to be forfeited. See for example Theobald on Wills, 15th ed. (London: Sweet and Maxwell, 1993) at p. 656, Wheeler v. Bingham, [1746] 26 E.R. 1010 at p. 1012 and Lloyd v. Branton (1817), 36 E.R. 42 particularly at p. 46. Thus the application of the general rule that a failed gift falls into Residue is insufficient for the purpose of the rule.”

Justice Hood also quoted extensively from the decision of Kent v. McKay (1982), 139 D.L.R. (3d) 318 (B.C.S.C.), where Lander J. considered the following condition:

“if any person who may be entitled to any benefit under this my Will shall institute or cause to be commenced any litigation in connection to any of the provisions of this my Will other than for any necessary judicial interpretation thereof or for the direction of the Court in the course of administration all benefits to which such person would have been entitled shall thereupon cease [the] said benefits so revoked shall fall into and form part of the Residue of my estate to be distributed as directed in this my Will”

In that case, Justice Lander had found that the clause was valid because of the gift over that was made to the residue of the estate. He however went on to find that such a clause could not effectively apply to a statutory claim made under the Wills Variation Act.

In the Bellinger case, Justice Hood distinguished the clause in Kent v. McKay because it had provided specifically for a gift over to the residue of the estate. In Bellinger, there was no specific gift over. Instead the failed gift would fall into the residue by operation of law. In the view of Justice Hood this was insufficient to remove the clause from the application of the in terrorem rule.

Public Policy and Statutory Claims under the Wills Variation Act.

In his reasons Justice Hood also addressed the application of the in terrorem rule to statutory claims. In this portion of his analysis he was able rely specifically on the reasoning of Justice Lander in Kent v. McKay (supra).

In Kent v. McKay Justice Lander had found the forfeiture clause void in so far as it purported to limit claims the Wills Variation Act. He found the condition contrary to public policy because it attempted to penalize the legatee for bringing a successful action provided by statute

In reaching this decison Justice Lander relied on the Australian case Re Gaynor,(1960) V.R. 640 (S.C.), He then found as follows:

“It cannot be denied with respect that the intent of the Legislature in creating the Wills Variation Act, is to ensure adequate maintenance and support for specified individuals. It is a matter of public policy that support and maintenance be provided for those defined individuals and it would be contrary to such policy to allow a Testator to circumvent the provisions of the Wills Variation Act by the creation of such as para. 9.”

Thus, following this rationale, Justice Hood concluded that clause 7 was invalid for two reasons, namely:

1) Clause 7 is invalid at Common Law, and cannot be enforced by the Court, because of the lack of a provision for a gift over of the benefits in the event of their being forfeited as a result of a breach of the Clause;

2) that the Clause is void as well with regards to Roy’s Wills Variation Act claim in that it is against public policy.

Conclusion

The Bellinger decision thus stands for the following propositions :

1) A will provision providing for forfeiture if the will is contested, is ineffective in so far as it relates to a claim under the Wills Variation Act. It is void as contrary to public policy as it attempts to prohibit valid statutory claims.

2) A properly drafted forfeiture clause, may be effective in so far as it relates to a beneficiary’s claim brought at common law, provided there is a gift over.

3) A properly drafted forfeiture clause, is legal and enforceable in so far as it relates to common law claims, but not the Wills Variation Act.

Thus, if a legatee makes a successful statutory claim under the Wills Variation Act, he or she should not lose the gift. It would be contrary to public policy to penalize the legatee for bringing a successful action provided by statute.

See Harrison v. Harrison (1904) 7 O.L.R. 297.

Estate Planning Suspicious Circumstances Undue Influence wills Wills Issues wills variation Wills Variation Acts Wills Variation Claims Wills Void

The Cy-Pres Doctrine

Those of us living in Vancouver know Children’s Hospital–surely that goes without saying. Check a little closer, however, and you may be surprised to learn that no such legal entity exists.

In estate law it is relatively common to discover that a charitable institution, named in a given will, does not actually exist. There may be various underlying reasons–the charity may have been misdescribed, the charity may have ceased to exist or the charity may never have legally existed. Such an unpleasant discovery will be particularly common in cases where the person who drafted the will failed to confirm the correct legal name of the charitable institution. Other cases arise where a charitable institution changes its name or merges with another institution.

In estate law, as a general rule, where a beneficiary under a will predeceases the testator, the gift usually lapses. Where the testator leaves a specific bequest, for example $10,000, and the beneficiary predeceases the testator, then this gift will lapse and become part of the residue of the estate. Where, however, the gift is part of the residue of the estate then such a lapsed gift will pass on an intestacy ( to the next of kin). It will thus be as if the testator had died intestate with respect to that property.

Most of the cases involving the cy-pres doctrine involve gifts of the residue of the estate. This is because the testator usually believes the charity will always exist and thus does not provide for any gift over to an alternative beneficiary. As a result, most cy-pres cases involve actions between the next-of-kin who argue there is an intestacy and the charity who seeks to uphold the gift and applies to the court for relief under the cy-pres doctrine.

Unless a general charitable intention is found to exist, a charitable gift will lapse in the following circumstances:

a) If the intended recipient of the gift cannot be identified with reasonable certainty;
b) If the gift is to a charity which has never existed; or
c) Where the court concludes that the gift was for the purpose of a charity but those purposes are no longer capable of being effected.

Where, however, the court finds a general charitable intention, then it may approve or design a scheme “cy-pres”. This cy-pres doctrine allows the court to apply the gift to some other charitable purpose “as nearly as possible” to resemble the original trusts of the gift. Under such a scheme, the court will direct to whom and in what proportions the gift shall be distributed.

Halsbury’s Laws of England, 3rd ed., Vol.4, p.317 , para.645 expresses the doctrine as follows:

“Where a clear charitable intention is expressed, it will not be permitted to fail because the mode, if specified, cannot be executed, but the law will substitute another mode cy-pres, that is, as near as possible to the mode specified by the donor.”

Generally speaking, our courts will make every effort to save a charitable bequest and prevent an intestacy of the intended gift.

The cy-pres doctrine is said to reside in the court’s inherent jurisdiction to compose a scheme to make charitable trusts operative. This doctrine is ancient and can be traced back to Roman law. Under Roman law, donations for public purposes, when not made to a legal purpose were nevertheless sustained and applied cy-pres to other similar purposes.

PROCEDURE

The cy-pres doctrine is usually invoked before the court in proceedings commenced by a petition brought by the executor/trustee under of the Rules of Court. Pursuant to Rule 10 the petitioner requests the court to interpret the will and to give directions.

Before issuing such a petition, it is essential the petitioner conduct a thorough investigation and serve every interested party who may possibly be affected by the proceedings. The court must be satisfied that the proceedings name all of the parties who may possibly be entitled to share in the estate should the charitable bequest fail. The provincial Attorney General must also be served in his or her capacity as the protector of charities.

WHAT IS A CHARITY?

The leading case of Pemsel v. Special Commissioners of Income Tax (1891) All E.R. Rep.28 ( U.K.H.L.) held that “charity in its legal sense comprises four principal divisions: trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community, not falling under any of the preceding heads.”

ADMISSABILITY OF EXTRINSIC EVIDENCE

In Re Smith, (1953) 3 D.L.R. 510, the British Columbia Court of Appeal dealt with a bequest of the testator’s entire residuary estate to the “Vancouver Humane Society”. It was common ground that no such society or institution had ever existed in Vancouver or elsewhere up to and including the date of the will or for that matter at any time during the testator’s lifetime.

The litigation, however, involved two institutions that were concerned with the protection and care of animals in the city of Vancouver. These two institutions applied to court, each claiming to be the intended beneficiary. At the hearing they sought to introduce evidence of the testator’s four previous wills. The trial judge refused to allow this extrinsic evidence and ultimately held that the gift failed for uncertainty and there was thus an intestacy of the residue of the estate.

An appeal of this decision was allowed. The appeal court found that the testatrix had intended to give the residue of her estate to a charitable organization in Vancouver concerned with the relief of suffering of pets and animals. The appeal court found that a gift for the benefit of animals was indeed charitable.

In the appellate decision the court ruled admissible the evidence of the testatrix “four prior wills. These wills included various bequests to the Toronto Humane Society and the Vancouver Humane Society in equal shares. The court found these four wills clearly evidenced the testatrix” intention to benefit a society engaged, in Vancouver, in the work of prevention of cruelty to animals. Thus applying the cy-pres doctrine, the court awarded the bequest to the British Columbia Society for the Prevention of Cruelty to Animals, Vancouver Branch.

GENERAL CHARITABLE INTENT

It is always a matter of interpretation of the individual will whether or not the testator has demonstrated a general charitable intention

Generally speaking, the courts have little difficulty in finding the testator had a general charitable intent. Thus the courts are often willing to apply the cy-pres doctrine to prevent the lapse of bequests to charities.

Such a willingness was demonstrated by the British Columbia Court of Appeal in Re Buchanan Estate 20 E.T.R. (2d) 100. In this case, the testator left his estate to the Loyal Protestant Home for Children, New Westminster British Columbia.

There had never been a legal entity by that name however an association had operated a home with that name. Nine cousins of the deceased, who stood to inherit on intestacy, argued that this gift had lapsed because there was no such legal entity.

Both the trial court and the appellate court found that the testator’s intention was clearly charitable. Although the home had ceased to exist, the association that once operated the home had continued to carry on work for the benefit of children. The court found that the purpose of the gift was not to benefit the specific home, but rather was to alleviate the condition of orphaned and underprivileged children in general. Thus, the courts ruled, the intended gift did not lapse.

MISDESCRIPTION

In the Law of Trusts in Canada, 2nd ed. at page 613, author Donovan Waters writes “the courts will make every effort to discover which beneficiary was intended by the deceased and to not allow misdescription, either imperfect or inaccurate, to defeat the deceased’s intent. This is especially so when the gift is to a charitable institution. If the description is sufficient to identify the intended beneficiary with reasonable certainty, that person should be the recipient. It is not necessary to apply the cy-pres doctrine if the intended beneficiary is discoverable.”

According to Professor Waters, there is thus a general rule that the courts will be unwilling to hold a gift void for uncertainty and will use every endeavor to ascertain who is meant to benefit by the will.

A good example of this is found in re Robson Estate, 2006 B.C.S.C. 673. In this case the deceased left the residue of her estate to the First Presbyterian Church in the City of White Rock. There was another Presbyterian church in White Rock, however it had not been in existence at the time the deceased had made her will.

The court held that it would look to surrounding circumstances in a case where there existed no organization with a name identical to that institution named to the will. The court ruled the judge should try to place himself or herself in the position of the deceased at the time that the will was made, focusing on the circumstances that existed which might reasonably have influenced the deceased.

In this case, evidence showed that the deceased regularly attended St. John’s Presbyterian Church in White Rock. Further it showed that she had made formal affirmation of her membership at that church. Accordingly the court awarded the bequest to St. John’s.

In re Conroy Estate (1973) 4 W.W.R. 537, the deceased’s will contained a provision which read “all the rest of my residue I bequeath to the Cancer Fund of B.C.”

There was no such fund. There were, however, two organizations in British Columbia that administered cancer funds. In these circumstances, the court held that the cy-pres doctrine applied and divided the residue equally between these two organizations. The court held that it had jurisdiction to make such a direction subject to the approval of the Attorney General as the chief law officer of the Crown.

In this decision, the court quoted 4 Hals. (3rd) at p.282, para. 585 as follows:
“Where it is impossible to determine which of several charities the testator meant to benefit, the legacy may be applied cy- pres by dividing the funds between them in equal shares or otherwise.”

NO GENERAL CHARITABLE INTENT FOUND

In Canada Trust Company v. Psenickova (1992) B.C.J.No.555 the court declined to apply the cy-pres doctrine. In this case, the Deceased’s will left a gift of 1/6 of the residue to the Czechoslovakian Senior Citizens Home, Vancouver, British Columbia.

Although there had been talk amongst the local Czechoslovakian community of constructing such a home, no such establishment had ever actually existed.

The court adopted the reasoning of Montreal Trust Co. v. Matthews (1979) 11 B.C.L.R. 276 at 283 and stated “where a testator selects a particular charity and takes care to identify the charity, it is very difficult for the court to construe a general charitable intent.”

The court stated that for a general charitable intent to be effective, there must be in existence some object reasonably like in nature to that specified by the testator in his will, an object which could carry out his or her intention in a general way. A vague proposal is not enough to satisfy this requirement.

In this case, the court held that the testator had no general charitable intent and the gift to the Czechoslovakian Senior Citizens Home thus lapsed and the gift passed on an intestacy to his next of kin.

CONCLUSION

A review of the law makes it clear that it is essential, when drafting a will, to contact each charity named to confirm its correct legal name. Careful attention to such details will go a long way in preventing a possible lapse of an intended gift.

From a review of the case law it appears that, insofar as possible, the courts are disposed to infer a general charitable intention to prevent the lapse of a charitable gift. This ancient doctrine of cy-pres has existed for over 2000 years. It has undoubtedly been applied in countless cases to prevent the lapsing of charitable bequests.

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Common Law Marriage or Mere Housemates?

There is currently a good deal of litigation arising in estate disputes as to claims that lovers were spouses and not mere housemates.

Historically the law did not recognize the claim of a common-law spouse against the estate of their deceased partner. Indeed these relationships were not even recognized as legally enforceable in some jurisdictions. To this day, cohabitation still remains a criminal offence in parts of the United States.

Nevertheless more and more people seem to be cohabiting whether in heterosexual or same-sex unions. Certainly there seems to be less social stigma to the notion of unmarried couples living together. As well, many long term same-sex couples are now coming “out of the closet”. What is more, even the nature of traditional marriages has changed–many married partners living far more independently of each other than would have been considered “normal” 20 or 30 years ago.

Previously, depending on whether or not they had been legally married, there were significant differences between the rights of surviving partners to claim against the estate of their deceased spouse if not legally married they might have no rights at all.

Recent statutory changes have reduced these differences in British Columbia. In British Columbia statutes governing the passing of estate property, our legislature has significantly expanded of the definition of “spouse”. These new definitions include, in certain circumstances, common law spouses.

The relevant statutes include the Estate Administration Act (governing intestacies) the Family Compensation Act (creating a right of recovery for wrongful death) and the Wills Variation Act (creating a claim against the estate where the will has not made adequate provision for a spouse or child).

As we will see in this paper, these broadened definitions of spouse vary from statute to statute however all of them include both same-sex and heterosexual persons cohabiting in a “marriage- like relationship”. Depending on the statute in question, there are differing requirements for the length and duration of that cohabitation.

This paper will deal with the rights of a common law spouse under three statutes, namely the Estate Administration Act, the Wills Variation Act, and the Family Compensation Act.

This paper will focus on the criteria considered to determine whether or not a party has proven that he or she is a “spouse” within the meaning of the statute in other words whether or not he or she has legal standing to bring an action under the actin question.

Wills Variation Act

This act provides for claims against an estate where the deceased dies leaving a will but that will does not make adequate provision for the deceased’s spouse or children. In such a case, the Wills Variation Act permits the child or spouse to contest the provisions of the will and seek to have their inheritance increased. For the purposes of the Wills Variation Act, spouse is defined as follows:

“spouse” means a person who

(a) is married to another person, or

(b) is living and cohabiting with another person in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, and has lived and cohabited in that relationship for a period of at least 2 years.

It is noteworthy that to prove one is a spouse within the wording of this definition, the cohabitation need not be continuing up until the time of the death.

The Estate Administration Act

The Estate Administration Act governs the passing of the deceased’s estate when the deceased dies intestate, i.e. without leaving a will.

For the purposes of this Act, the definition of “spouse” includes a “common law spouse” and a common law spouse is defined as follows:

“common law spouse” means either

(a) a person who is united to another person by a marriage that, although not a legal marriage, is valid by common law, or

(b) a person who has lived and cohabited with another person in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, for a period of at least 2 years immediately before the other person’s death;

Thus for this Act, the period of two-year cohabitation must take place immediately before the other person’s death. In other words, if the common law spouses had separated prior to the death, then the survivor would not be entitled to claim a share on an intestacy no matter how long they had previously cohabited.

Assuming for the moment that the spouse can bring himself or herself within this definition, he or she will have the same rights as a legally married spouse. Under the terms of the current Act a spouse is entitled to the first $65,000 of the estate, plus a life interest in the matrimonial home and its contents as well as a share of the residue (1/2 or 1/3 depending on the number of surviving children).

Where there are no surviving children, then the surviving spouse will inherit the entire estate. If there is more than one surviving spouse then the spousal share will be divided between them as the court may determine is just.

The Family Compensation Act

This statute permits the spouse and children of a deceased person to bring an action for damages against any party who is responsible for the wrongful death of the deceased.

Under the provisions of the Family Compensation Act

“spouse” means a person who

(a) was married to the deceased at the time of death, or

(b) lived and cohabited with the deceased in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, for a period of at least 2 years ending no earlier than one year before the death;

Thus the common law relationship must have been of at least two years duration and must have ended no earlier than one year before the death.

What Is a “Marriage- Like Relationship” in Law?

In order to bring a spousal claim under any of the three statutes, the claimant must prove that he or she lived in a “marriage like” relationship with the deceased.

The question of whether or not a couple has been living together in a marriage like relationship is a matter of evidence. McEvoy v. Ford Motor Company (1988) B.C.J. 1757.

What this means, on a practical basis, is that it will be very important to canvass not only the documents but the surviving friends, neighbours, relatives, co-workers and other witnesses to see what important evidence they can bring to the table.

Many of the relevant cases deciding whether a “marriage like” relationship existed involve the alleged spouse in a dispute with the beneficiaries of any will (and in the case of an intestacy, with the next-of-kin).

In our socially fluid society there are a myriad of relationships which may or may not qualify as common-law relationships. Estate disputes require the court to closely examine the nature of relationships of the couple cohabiting.

For example, a particularly curious case in our office involved a man who had lived with a legally married couple for over 50 years. The woman apparently had sexual relations on a regular basis with one or other man. She had two children and although they were raised believing the husband was their father, it appeared that each man had fathered one of them. After the death of the woman, we argued that our client, the unmarried man, was also a spouse. The case was settled the case on that basis.

Another interesting example involved a successful businesswoman and rancher who died suddenly in a highway collision. Shortly after her death, her “ranch hand” suddenly announced that he had actually been her common law husband. As such, he wanted a good part of her large estate and brought a claim under the Wills Variation Act.

Our interviews with the Deceased’s family, friends and employees soon cast grave doubt on the claim “although the couple had briefly been lovers, it seemed that had long ended. Instead this ranch hand had been intimidating his employer and physically abusing her animals whom she dearly loved. The Deceased was a woman who lived alone many miles from town. She undoubtedly knew that she could be in great danger if she fired her ranchhand” he was a keen hunter with many guns and was an alcoholic and drinking buddy of many of her male neighbours.

The mystery of why this relationship continued was finally solved when we discovered her cousin, a man’s man humourously known in their large family as “The Enforcer”. The Deceased and her cousin had agreed that he would soon move up to her ranch to escort ranchhand man off the property and take over helping her with the ranch. She died days before his planned arrival.

As noted above, the key to these cases is often finding the necessary evidence to establish the true state of affairs. Needless to say, this case quickly settled.

Turning to the law, the oft cited decision of Gostlin v. Kergin (1986) 3 B.C.L.R. (2d) 264, (B.C.C.A.) is the starting point for determining whether or not a “marriage like relationship” can be proven. In that case the court was considering maintenance provisions for common law spouses under the Family Relations Act which contains a similar spouse incorporating the test of a “marriage like relationship”.

In determining whether or not a “marriage like relationship” existed, the court set out two discreet elements to be considered.

a) the subjective element – whether the couple saw themselves as life partners; and

b) the objective component – the couple’s interaction and interdependency.

Delivering the judgment of the court, Lambert J.A. said, at pp. 267-268

“I would ask whether the unmarried couple’s relationship was like the relationship of the married couple in that the unmarried couple have shown that they have voluntarily embraced the permanent support obligations of s. 57. If each partner had been asked, at any time during the relevant period of more than two years, whether, if their partner were to be suddenly disabled for life, would they consider themselves committed to life-long financial and moral support of that partner, and the answer of both of them would have been “Yes”, then they are living together as husband and wife. If the answer would have been “No”, then they may be living together, but not as husband and wife.”

This quotation appears to focus on the subjective element i.e. whether or not the couple considered themselves to have taken on the obligations of husband and wife.

Where the subjective intention appears elusive, the courts may examine a number of objective factors. In Takacs v. Gallo (1998) B.C.J. 600 (BCCA) the court listed a number of relevant factors to assess this objective component. For example:

Did the parties hold themselves to the public as committed to one another?
Did the parties live under the same roof?
Did the parties have sexual relations?
Did the parties eat their meals together?
Did the party share resources, financial or otherwise?
Did the parties declare each other as dependents?
Did they refer to each other in a manner consistent with a marriage like relationship?

Cohabitation does not necessarily imply a “Marriage Like” Relationship

Harris v Willie Estate 2001 BCSC 143 is noteworthy because the court clearly states that the mere fact of cohabitation does not prove a “marriage like relationship”

In this case, the Parrett, J. noted that the court should be very slow to impose on parties commitments which, by their conduct, they have clearly not intended to make. Here he found that the couple

had maintained significant elements of independence,
did not commit to a common principal residence,
did not recognize or portray themselves as a family unit; and
the man did not allow the woman full access to his financial resources.

In these circumstances Parrett, J. found that the relationship was not “marriage- like” and thus dismissed the claim.

Similarly Janus v. Lachocki Estate 2001 BCSC 1702 involved a claim under the Wills Variation Act. Here the claimant maintained that she had lived with the deceased in a common-law relationship for the last four years of his life.

In dismissing the claim the court considered that the parties:

had maintained separate residences,
did not generally refer to themselves as being married,
were not generally regarded within their communities as being in a marriage like relationship,
did not share their property or mingle their finances; and
did not become economically dependent on one another.

The court held that while the parties had an affectionate and sexual relationship, they had not reached a level of commitment where they could be said to have committed themselves to lifelong financial and moral support of each other. On this basis the claim was dismissed.

Relationship of Permanence

Possibly the high water mark to date for successful common-law spouse claims is the case of Marszalek Estate 2007 BCSC 324. In this case the court found that the plaintiff was a common law spouse however it nevertheless dismissed her claim for damages for wrongful death because she had not proved causation of the injuries suffered by the deceased.

In its judgment, the court noted the following feature:

1) the couple had separate bedrooms

2) they maintained separate bank accounts

3) the plaintiff did not want to marry the Deceased, although he wished to marry her

4) the deceased had referred to her, in an examination for discovery, as “his landlady and friend, but not lover”

5) they had separate ownership of property

6) they did not refer to each other as spouses on various government forms

Nevertheless the court ruled the couple had been common-law spouses for the purpose of the statute. The court found that although their relationship was somewhat unconventional, their actions spoke louder than their words and by all of their actions this couple was committed to a relationship of permanence.

The court followed the test in Gostlin and found that if each of them had been asked at any time during the two years preceding the husband’s death, whether, if the other were to be simply disabled for life, they would consider themselves committed to lifelong financial and moral support of the other, both of them would have answered “yes”.

Conclusion

In future there will undoubtedly be many novel relationships advanced as “common-law relationships”. The fact patterns may vary from group relationships to long term same-sex relationships to secretive “housekeeping” relationships. Presumably many long term relationships, hidden because of religious, family, or social pressures, will be brought into the open.

Should this trend continue, most courts will likely avoid rigid approaches and instead take the flexible approach demonstrated in the Marszalek case. Nevertheless it remains clear that mere cohabitation, without more, will not be enough to convert the relationship into a common law marriage.

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Vancouver Estate Estate Disputes -How to Win an Undue Influence Case

Vancouver lawyer Trevor Todd has 50 years experience in understanding and getting justice for parties disinherited from unscrupulous people who take advantage of victims by exercising undue influence, usually behind closed doors and out of sight.

In my experience in estate litigation, probably the most difficult issue to win at trial is that of undue influence. A review of case law makes clear the majority of such allegations are dismissed at trial due to insufficient proof. Frequently the court simply finds the testator had sufficient mental capacity and therefore allows the will to be propounded.

The loss of an undue influence case at trial can have devastating effects on both the client and the lawyer. This is especially true for the lawyer handling such a case on a contingency fee basis. An undue influence trial usually requires many days of examinations for discovery. Such a trial often takes a minimum of two weeks. Disbursements can be substantial including fees for medical expert witnesses and private investigators..

Such influence is most often exerted in private aware from other friends, family members of potential beneficiaries. There are rarely eyewitnesses who observe blatant undue influence being exerted. It sometimes seems therefore, the only way to prove such a case is with a written confession from the person who exerted the influence.

It is a real challenge for counsel to successfully convince the court to set aside the will or inter vivos gift, on the basis of undue influence.

Outline

In this paper I will examine briefly the case law surrounding undue influence and then set out twenty practice tips that will hopefully assist a plaintiff’s counsel in winning his or her undue influence trial.

WHAT IS UNDUE INFLUENCE?

Undue influence is an equitable doctrine. It is a category of constructive fraud. A very fine line separates legitimate influence from undue influence. These cases are understandably very much fact driven. Success in such cases usually requires a meticulous examination of the facts, particularly those that appear suspicious.

The following oft cited passage sets out the test for undue influence at law:

A-It is settled law that undue influence sufficient to invalidate a will extends a considerable distance beyond an exercise of significant influence – or persuasion – on a testator. It is also clear that the possibility of its existence is not excluded by a finding of knowledge and approval.
To be undue influence in the eye of the law there must be – to sum it up in a word – coercion. It must not be a case in which a person has been induced by [strong relationships] to come to a conclusion that he or she will make a will in a particular person’s favour, because if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another, though you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal. It is only when the will of the person who becomes a testator is coerced into doing that which he or she does not desire to do, that it is undue influence. (Wingrove v. Wingrove (1885), 11 P.D. 81 (Eng. Prob. Ct.), at page 82.)

This passage is cited with approval in Williams and Mortimer, Executors, Administrators and Probate, (17th edition, 1993), at page 184. The authors continue as follows;

A-Thus undue influence is not bad influence but coercion. Persuasion and advice do not amount to undue influence so long as the free volition of the testator to accept or reject them is not invaded. Appeals to the affections or ties of kindred, to the sentiment of gratitude for past services, or pity for future destitution or the like may fairly be pressed on the testator. The testator may be led but not driven and his will must be the offspring of his own volition, not the record of someone else’s. There is no undue influence unless the testator if he could speak his wishes would say Athis is not my wish but I must do it.@

Two Kinds of Undue Influence : Actual and Presumed

1) Actual :

In cases of actual undue influence, the recipient must be shown to have coerced the transferor to make will or inter vivos gift. The conduct must be such that the court finds that the transfer or disposition was not the true will or free intention of the victim. Proof may be shown indirectly by circumstantial evidence, and sometimes by direct evidence such as threats, lies, and promises that the recipient had no intention to keep.

2) Presumed: Here a relationship of trust and confidence between the transferor and transferee raises a rebuttable presumption that the transfer was made by undue influence. Once the relationship of trust and confidence is shown, the onus of proof shifts to the transferee to prove that the transferor made the transferor after full, free, and informed thought. The policy of preserving public confidence in relationships of trust and confidence allows otherwise valid transfers to be voided. Generally speaking, the courts will be more inclined to interfere to set aside a substantial gift or transfer, as opposed to gifts of a minor nature.

Any presumption of undue influence is rebuttable by showing that the transfer was made after full, free and informed thought. This is often done by showing that the transfer or obtained proper independent advice.

N.B. This doctrine of presumed undue influence does not apply to testamentary dispositions

Differing Burdens Of Proof— Wills versus Inter vivos Gifts or Transfers
A key point is the distinction made between gifts or transfers inter vivos as opposed to those made by will. As noted above, in the case of special “trust” relationships where a transfer is made during life, a presumption of undue influence will arise. Where the gift or transfer is made by will however, no such presumption arises and the plaintiff has the daunting task of proving actual undue influence.

In the recent case of Araujo v. Neto, 2001 BCSC 935, Justice Sigurdson does an exhaustive review of the case law.

Justice Sigurdson initially deals with the issue of onus of proof. He states:

A-The onus for proving undue influence for inter vivos gifts differs depending on the nature of the relationship between the parties. In the absence of a fiduciary or special relationship, the onus rests on the party alleging undue influence to prove it. However undue influence is presumed to apply to certain relationships or in certain circumstances and the onus shifts to the recipient of the gift to rebut it.@

The Judge continues as follows:

Feeney in The Canadian Law of Wills, 3rd ed., Vol. 1 (Vancouver: Butterworths, 1987) draws a distinction between the burden of proof when alleging undue influence in the making of a will and in the case of an inter vivos gift made to a person in a special relationship, at page 42:

In the case of gifts inter vivos to persons standing in a fiduciary relationship, or some other relationship whereby the donee was in a position to overbear the donor, such persons must show that they did not influence the donor in making the gift. There is, so to speak, a presumption of undue influence. There is no such presumption in the case of wills. A person in a position to overbear a testator may exercise persuasion to obtain a will or legacy in his favour and it will stand in the absence of positive proof of undue influence by those who assert it.

Undue Influence In Gifts or Transfers

Lord Justice Cotton in Allcard v. Skinner (1887), 36 Ch. D. 145 (Eng. C.A.), at 171 spoke of undue influence in connection with two classes of voluntary gifts:

“First, where the Court has been satisfied that the gift was the result of influence expressly used by the donee for that purpose; second, where the relations between the donor and donee have at or shortly before the execution of the gift been such as to raise a presumption that the donee had influence over the donor. In such a case the Court sets aside the voluntary gift, unless it is proved that in fact the gift was the spontaneous act of the donor acting under circumstances which enabled him to exercise an independent will and which justifies the Court in holding that the gift was the result of a free exercise of the donor’s will.”

At page 181 Lord Justice Lindley said:

“The second group consists of cases in which the position of the donor to the donee has been such that it has been the duty of the donee to advise the donor, or even to manage his property for him. In such cases the Court throws upon the donee the burden of proving that he has not abused his position, and of proving that the gift made to him has not been brought about by any undue influence on his part. In this class of cases it has been considered necessary to show that the donor had independent advice, and was removed from the influence of the donee when the gift to him was made.

This remains an accurate statement of the law, although the courts have taken a more flexible approach to the second class of case and it is not always necessary to show that the donor had independent advice in order to rebut the presumption of undue influence.”

In Goodman Estate v. Geffen (1991), 81 D.L.R. (4th) 211 (S.C.C.) at 221 Wilson_J. asked:

A-What are the factors that go to establishing a presumption of undue influence? This question has been the focus of much debate in recent years. Equity has recognized that transactions between persons standing in certain relationships with one another will be presumed to be relationships of influence until the contrary is shown.

She noted that these included the relationship between trustee and beneficiary, doctor and patient, solicitor and client, parent and child, guardian and ward and future husband and fiance.

Wilson J. in Geffen then said at pages 221 and 227:

“Beginning, however, with Zamet v. Hyman, [1961] 3 All E.R. 933, it came to be accepted that the relationships in which undue influence will be presumed are not confined to fixed categories and that each case must be considered on its own facts. Since then it has been generally agreed that the existence of some Aspecial@ relationship must be shown in order to support the presumption although what constitutes such a Aspecial@ relationship is a matter of some doubt.

It seems to me rather that when one speaks of Ainfluence@ one is really referring to the ability of one person to dominate the will of another, whether through manipulation, coercion, or outright but subtle abuse of power. … To dominate the will of another simply means to exercise a persuasive influence over him or her. The ability to exercise such influence may arise from a relationship of trust or confidence but it may arise from other relationships as well.

What then must a plaintiff establish in order to trigger a presumption of undue influence? In my view, the inquiry should begin with an examination of the relationship between the parties. The first question to be addressed in all cases is whether the potential for domination inheres in the nature of the relationship itself.”

In Ogilvie v. Ogilvie Estate (1998), 49 B.C.L.R. (3d) 277 (B.C. C.A.) at 295, the Court of Appeal, in the context of discussing the various judgments in Geffen, stated that:

A-[t]he task to be undertaken by the court is to determine whether there existed in the relationship between donor and donee the potential for influence.@ In that case, the trial judge had stated the following at para. 41 of her reasons (reported at (1996), 26 B.C.L.R. (3d) 262 (B.C. S.C.):

A-In my opinion, the case before me is a classic case of the second category of undue influence, not the first. I agree that the Plaintiffs fall short of proving any unfair or improper conduct on the part of the Defendants. The rule of evidence applicable to the doctrine of undue influence doesn’t require the Plaintiffs to do so. They only have to show the Aspecial relationship of influence@ between the Grahams and Hugh Ogilvie in the sense that they managed his affairs or gave him advice and, therefore, had a duty to ensure he received independent advice before making substantial gifts in their favour. Then the burden shifts to the Grahams to show that Hugh Ogilvie had independent advice, or was free of their influence when making the subject gifts.

The Court of Appeal in Ogilvie, supra, concluded that the trial judge undertook the correct scrutiny of the relationship between the donor and the donee and the questioned transactions, and upheld her decision that a special relationship existed and that the presumption of undue influence had not been rebutted by the defendants.

Undue Influence In Wills

The decision of Scott vs Cousins 37 E.T.R. (2d) 113 summarizes the leading Canadian case on undue influence re wills, namely Vout v. Hay (1995), 7 E.T.R. (2d) 209 (S.C.C.)

A-The principles that I believe are established by the decision of the Supreme Court, and that are relevant here, can be stated as follows:

1. The person propounding the will has the legal burden of proof with respect to due execution, knowledge and approval and testamentary capacity.

2. A person opposing probate has the legal burden of proving undue influence.

3. The standard of proof on each of the above issues is the civil standard of proof on a balance of probabilities.

4. In attempting to discharge the burden of proof of knowledge and approval and testamentary capacity, the propounder of the will is aided by a rebuttable presumption.

Upon proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity. (at page 227)

5. This presumption A-simply casts an evidential burden on those attacking the will.@ (ibid.)

6. The evidential burden can be satisfied by introducing evidence of suspicious circumstances – namely, Aevidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity. In this event, the legal burden reverts to the propounder.@ (ibid.)

7. The existence of suspicious circumstances does not impose a higher standard of proof on the propounder of the will than the civil standard of proof on a balance of probabilities. However, the extent of the proof required is proportionate to the gravity of the suspicion.

8. A well-grounded suspicion of undue influence will not, per se, discharge the burden of proving undue influence on those challenging the will:

It has been authoritatively established that suspicious circumstances, even though they may raise a suspicion concerning the presence of fraud or undue influence, do no more than rebut the presumption to which I have referred. This requires the propounder of the will to prove knowledge and approval and testamentary capacity. The burden of proof with respect and fraud and undue influence remains with those attacking the will. (ibid.)@

Suspicious Circumstances

Suspicious circumstances or are simply circumstances that arouse the suspicion of the court. In the leading case, Barry v. Butlin (1838) 2 Moo. P.C. 480, it was held that the court ought not to pronounce in favor of the will unless the suspicion is removed. That role has been extended to include all cases in which a will is prepared under circumstances which raise a well grounded suspicion that it does not express the mind of the testator. ( Clark v. Nash (1989) 34 E.T.R. 174 (B.C.C.A.)

Undue influence can be established on the balance of probabilities through circumstantial evidence. In Scott v. Cousins, 37 E.T.R. (2d) 113, the Court describes circumstantial evidence that may be considered in undue influence cases:

In determining whether undue influence has been established by circumstantial evidence, courts have traditionally looked to such matters as the willingness or disposition of the person alleged to have exercised it, whether an opportunity to do so existed and the vulnerability of the testator or testatrix. … The testatrix does not have to be threatened or terrorized: effective domination of her will by that of another is sufficient. … This, I believe, is a consideration of no little importance in the present case as well as in the increasing number of those involving wills made by persons of advanced age. Other matters that have been regarded as relevant, within limits, are the absence of moral claims of the beneficiaries under the will or of other reasons why the deceased should have chosen to benefit them. The fact that the will departs radically from the dispositive pattern of previous wills has also been regarded as having some probative force.

Examples of suspicious circumstances may include:

1) an elderly testator;

2) a testator who is unwilling to provide the solicitor with full information relating to the assets, liabilities, medical history, or family condition and circumstances;

3) a testator who has suffered significant ill health, particularly if the condition, disease, or medication could affect the mental stability or general mental outlook of the testator;

4) a disposition of the estate which seems unusual in the context of the circumstances as known to the testator.

5) a beneficiary who has been particularly involved in “assisting” the testator in the preparation of the will;

6) dispositions in the will drastically different from the terms of the former will;

7) circumstances where the testator appears dependent upon another, for example allowing the other person to speak on his or her behalf;

8) a testator with questionable testamentary capacity;

9) a testator who has had numerous wills prepared in a short period of time;

10) a testator who has recently contracted a hasty or unwise marriage;
11) a testator with a language, learning , intellectual or cultural disability;

12) a testator who has recently changed living circumstances, particularly one who moves in with the alleged perpetrator;

13) a will that makes no gifts to those seemingly appropriate;

14) a will prepared on instructions provided by the questionable beneficiary.

15) cases where the long lost beneficiary seems to arrive “out of the nowhere”

16) a testator suffering from depression/loneliness.

The existence of any one or more of these factors does not necessarily mean that the will is vulnerable to attack. However the presence of any one or more of these factors is probably the best avenue for plaintiff=s counsel to attack the will. Successful counsel will be vigilant as to these and other suspicious circumstances.

Practice Tips On How To Win An Undue Influence Case

1) Before undertaking such a case, particularly on a contingency fee basis, counsel should consider being retained initially only to gather facts. This will assist both client and counsel in determining whether there is a good likelihood of success.

This may not be required if probable lack of testamentary capacity is apparent from the outset. The obvious difficulty with most undue influence cases is the absence of witnesses. Most often there are only two people involved. One is now dead and the other is not talking. Accordingly there are usually immense problems in determining the facts upon which to allege undue influence.

I simply stress that counsel should be very selective in deciding whether or not to accept such cases. Certainly the size of the estate should be considered when making this decision.

2) File a probate caveat right away, but do not commence the court action until you have sufficient proof to justify your allegations of undue influence. The defense may quickly move for a summary trial. The court may award costs or higher costs against your client if you cannot prove the allegations.

3) Consider retaining an experienced private investigator to assist in determining the facts. Undue influence cases demand a meticulous examination of the facts. The private investigator should take signed statements from any witnesses who have material evidence. I consider it necessary to interview almost every person who knew the deceased at the relevant times. Try to obtain a background report on the defendant. It may be surprising how often there may be evidence of prior undue influence allegations. Interview the witnesses to the will or transfer.

4) Get as many records as possible concerning the deceased. This would include all medical records from every doctor and medical institution for at least 10 years prior to death, together with all long-term care records, social work records, nursing home records, care facilities, work or school records (if appropriate), and the like. It would also include the lawyer=s notes, and perhaps the lawyer=s notes of previous wills. The majority of undue influence cases involve senior citizens and there is often an issue of testamentary capacity. I stress however that undue influence can occur in non senior situations such as for example, a young person joining a cult.

5) Marshall the suspicious circumstances and present them in the form of a compelling argument to prove the case (usually through circumstantial evidence). Look to stress situations showing a pattern of the defendant making the deceased more dependant ( ie isolating and limiting access)

6) Try to determine the names and addresses of the witnesses that the alleged perpetrator relies upon, and try to interview them. I have found that if the defendant appears to be flaky, (which is often the case ),then the old adage often applies Abirds of a feather flock together@ often applies. Having this information will assist you in your cross examination.

7) Recognize and benefit from the lack of sophistication of most perpetrators of undue influence. Usually perpetrators are unsophisticated in their methods. While undue influence is a form of civil fraud, the defendants are usually not particularly intelligent, skilled, or savvy.

8) Try to avoid a summary trial unless you have an overwhelming case. I have succeeded at trial, particularly through cross-examination, on cases which may well have been lost on a summary trial. On a summary trial the judge never has the opportunity to assess the credibility of the witnesses. As mentioned above, often these characters can be quite “flakey” and may contrast well with presentable and sympathetic plaintiffs.

9) In setting aside inter vivos gifts, take advantage of the presumption of undue influence where there is a special relationship situation. There often is a Ahousekeeping@ situation present.

10) Obtain expert opinion(s) from those such as geriatric psychiatrists(s) who never met the deceased. Have them review all of the records and tender an opinion on both testamentary capacity and the relative vulnerability of deceased to any undue influence.

11) Get on the case Take these steps as soon as possible. The family may come to see you prior to the death. Even where you cannot assist them to diminish any inappropriate influence, start to build your case as pro-actively as possible. This can involve everything from letters to doctors, banks and the Public Guardian, to obtaining an injunction or committeeship order.

12) Use demonstrative evidence such as home videos, photographs, handwriting samples and the like to try to demonstrate a “before and after” situation where there is evidence of medical or psychological decline.

13) Cross examine the handling lawyer or notary. Try and get an order to discover him or her for discovery. Even the most careful and senior lawyers may fall short in their duties. It can be highly effective to use the Law Society checklist to cross examine the lawyer. I refer you to Danchuk v. Calderwood 15 E.T.R.(2d) 193 where the Judge comments on the solicitor=s handling of the will:

A_In keeping with what I understand to be the law applicable to the duty of a solicitor, in the circumstances here, I accept the submission of counsel for the defendants that she failed with respect to that duty.

In my view, in the particular circumstances here, at the outset:

(A) she should have regarded the circumstances as suspicious having regard to the deceased’s advanced age and considerable seniority to that of the plaintiff as well as his apparent dependency upon her, including allowing her to speak for him;

(B) she should have undertaken an inquiry, including interviewing the plaintiff and the deceased separately with regard to the age difference and as to the independence of the deceased in giving instructions;

(C) the inquiry should have confirmed whether the deceased had a prior existing will and, if such a will existed, what were the reasons for any variations or changes there from prompting the disposition being put forward;

(D) the inquiry should have encompassed why and for what reasons the deceased had given a power of attorney to his daughter in late 1992 and, more importantly, why upon revocation of that power of attorney a new power of attorney was to be given by the deceased to the plaintiff; and,

(E) collateral to (D), supra, the inquiry should have included some investigation of the health of the deceased.

In this perspective, I understand the law to be that a solicitor does not discharge her duty in the particular circumstances here by simply taking down and giving expression to the words of the client with the inquiry being limited to asking the testator if he understands the words. Further, I understand it to be an error to suppose because a person says he understands a question put to him and gives a rational answer he is of sound mind and capable of making a will. Again, in this perspective, there must be consideration of all of the circumstances and, particularly, his state of memory.

If the solicitor had made such inquiry and had been made aware of the circumstances in a fuller sense, including the medical assessment of the ongoing progression and state of senile dementia, I am satisfied the said will would not have been prepared by her at that time. A

14) Obtain medical opinions treating physicians as to both testamentary capacity and whether the deceased may well have been more susceptible to undue influence given his or her medical condition.

15) Be bold and confident in the presentation of your case The defense will always be skeptical and the court may be as well.

16) Be prepared to prove the relative inequality of the parties. The court should be made to understand any power differential. Age, infirmity and loneliness will likely render any person more vulnerable to inappropriate influences and this should be clearly demonstrated for the court.

17) Be prepared to prove the substantial unfairness of the will or bargain.

18) Prepare a chronology of relevant medical or factual events germane to your case.

19) Think hard and often as to how you will present your case.

20) Prepare and use a written opening at trial.

Conclusion

Undue influence case have always been difficult to prove for a variety of reasons, and probably will remain that way for some time yet into the future. I hope this paper’s outline of the law of undue influence, together with the twenty practice tips will bring success to plaintiff’s counsel in the future.

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Mr. Attorney: Shine The Light on Undue Influence

(This article was written in 2006 to the attorney general to encourage the introduction of a presumption of undue influence when large bequests are left to person in a position of dominance or dependence.

It was successful and resulted in Section 52 of WESA, of which there is a separate blog on this site.)

In the summer of 2006 the British Columbia Law Institute delivered to the Attorney General a sweeping report entitled Wills, Estates and Succession: A Modern Legal Framework. That report included many well-considered recommendations for changes to modernize this area of law.

One laudable change not advanced, however, involves allegations of undue influence in the drafting of a will. Committee members were equally divided on this question and therefore did not recommend a change. To its credit, the AG Ministry kept this issue alive and recently solicited input from the legal profession. Presumably they had concerns about the obvious potential for elder financial abuse under the current state of the law.

In this paper, we hope to illustrate the clear need for legislation to change the law in this area to protect vulnerable individuals.

Background

To give some context, let us first review fiduciary relationships.

Where one person is in a position of power, influence or dominance over another and a legal dispute arises between them, our law will apply certain legal presumptions. Where such a relationship of trust or confidence exists between the parties, the law generally considers the parties to be in a fiduciary relationship. For example fiduciary relationships include caregivers and clients/patients, lawyers and clients, doctors and patients, to name a few.

In an ongoing fiduciary relationship, where the vulnerable party gratuitously transfers away an interest in property to the dominant party i.e. the fiduciary, then a presumption of undue influence arises. In other words, in any court challenge to such an inter vivos transfer, the law presumes that the recipient used undue influence in order to cause the vulnerable person to gift the property over.

In any legal proceedings involving an inter vivos gift therefore, the onus of proof will be on the recipient of the property, i.e. the dominant party or fiduciary.

Thus the fiduciary/recipient must satisfy the court that the transfer did not come about as a result of undue influence. The fiduciary/recipient will be required to prove that the transfer was an act of the free will of the transferor and that the fiduciary did not unduly influence the vulnerable party into making this transfer.

No Presumption of Undue Influence arises for Gifts by Will under the Existing Law

Paradoxically, this presumption does not apply in the case of wills. In other words, if the gift is not made inter vivos, but rather is a gift after death by means of a will, then no presumption of undue influence will arise.

Feeney in The Canadian Law of Wills, 3rd ed., Vol. 1 sets out this legal distinction at page 42:

“In the case of gifts inter vivos to persons standing in a fiduciary relationship, or some other relationship whereby the donee was in a position to overbear the donor, such persons must show that they did not influence the donor in making the gift. There is, so to speak, a presumption of undue influence. There is no such presumption in the case of wills. A person in a position to overbear a testator may exercise persuasion to obtain a will or legacy in his favour and it will stand in the absence of positive proof of undue influence by those who assert it.”

This anomalous legal treatment has historical roots in the distinct jurisdictions of the courts of Law and Equity. We suggest this distinction has no merit in modern times.

Indeed this anomaly leaves society’s vulnerable people wide open to manipulation and abuse by predators. This is especially so with elderly people, particularly those in need of care.

For example, suppose an elderly woman lives alone. Her long estranged son, the black sheep of the family, offers to move in to help care for her. He moves back into the family home and soon thereafter she signs a homemade will leaving him most of her estate and excluding her other children. As a caregiver, this son is in a position of trust yet no presumption of undue influence will arise. If she made this same transfer, effective during her lifetime, the presumption of undue influence would arise.

As the law presently stands, the disappointed beneficiaries challenging the will must affirmatively prove that the gift in the will was brought about by means of undue influence. Clearly this is very suspicious but yet how can the other children to prove what actually happened?

Like most types of abuse and deceitful activity, undue influence almost always occurs behind closed doors. Because it generally takes place in secret, in most cases undue influence is impossible to prove, especially now that the principal witness is now dead. This is precisely the reason a presumption of law is so important in such cases.

Just how difficult is it to prove undue influence?

To appreciate the difficulty of proving undue influence, one only has to examine the facts of the leading Canadian case Vout v. Hay (1995), 7 E.T.R. (2d) 209 [1995] 2 S.C.R. 876

This case involved Mr. Hay, who was murdered at 81 years of age. He lived alone on his farm and, three years before his death, he had made his will. It left small cash legacies to his brother, nephews and nieces and a farm to one nephew. This same will, however, left another farm and the $320,000 residue to Ms. Vout aged 24. She had been paid to help the deceased with chores on the farm and was friendly with him although there was apparently no “romantic involvement”. She was initially a suspect in the murder however another man eventually confessed to the crime.

Notably, no lawyer was involved either in the preparation or execution of the will. In fact a legal secretary testified that Ms. Vout had phoned for the wills appointment and had given her the purported wills instructions by phone. The secretary then prepared the will and Ms. Vout attended with Mr. Hay and remained present throughout his one appointment. He executed the will before two legal secretaries.

The legal secretary also testified that she had read the will over to Mr. Hay who, hesitated at one point and looked at Ms. Vout. Ms. Vout responded “Yes, that is what we discussed. That is what you decided” and he nodded to continue. Ms. Vout later instructed the secretary not to send the account to the farm and she came in later to pay the account herself.

Although the legal secretary had no apparent motive to lie nor any reason to be mistaken, Ms. Vout denied having played any role in relation to the wills instruction or being present for its execution. She did, however, admit to paying for its preparation. The trial judge made no findings as to which version he accepted. Witnesses at the trial described the testator as being eccentric but alert, smart, independent, determined and not easily influenced.

The trial judge found no undue influence and admitted the will to probate. On appeal, the Court of Appeal held that the burden of disproving undue influence was on Ms. Vout because of the suspicious circumstances surrounding the will’s preparation and execution. They allowed the appeal

The Supreme Court of Canada reinstated the trial original judgment, ruling that even though there may be suspicious circumstances surrounding the making of the will, the burden of proof with respect to fraud and undue influence remains on those challenging the will.

From this decision, one can see just how difficult it is to establish undue influence, short of a full confession by the dominant party.

Major Financial Disincentives to Pursuing such Claims

Let us turn to the practical ramifications of this decision. Undue influence is an equitable doctrine which is a category of constructive fraud. Legitimate influence is separated from undue influence by a very fine line. Therefore, these cases turn on the peculiar circumstances in question. Any trial invariably involves a meticulous examination of the surrounding facts.

Pursuing such a claim is therefore very costly. It will involve many days of examinations for discovery and trial time. Even before reaching the courtroom, the disappointed beneficiaries must pay substantial expenses including fees for court reporters, medical expert reports and likely private investigators. They usually need expert help if there is any hope of piecing together what happened behind closed doors.

What is more, where disappointed beneficiaries fail to prove their undue influence claim, they are often severely penalized. The courts are increasingly awarding full indemnity for costs against parties who fail to prove such claims. Thus they must pay both their own costs and often special costs for the successful heirs. Special costs can easily be in excess of $150,000.

Needless to say, this is a huge disincentive to bringing such an action. In practical terms the stakes are simply too high for most disappointed beneficiaries to mount such a challenge.

Possible Beneficiaries of Undue Influence

As we have said, it is not simply grasping caregivers that stand to benefit from such wills.

In January 2008 the New York Times ran the most recent article in series about the lawyer for the late Brooke Astor. She died at 105 years and her lawyer has been charged criminally with helping Mrs. Astor’s son to exploit her financially during the last years of her life.

According to the Times this lawyer, in an arrangement with other lawyers who drew the wills, had previously received very large bequests from several very grateful rich clients. Under one will, for example, he received most of the $15 million estate. In another will, signed the day before he died, an 83 year old economist left Mr. Morrissey a Manhattan apartment and art collection. There were other examples given of the very large bequests left him by elderly clients.

We hate to contemplate this happening closer to home but the potential for abuse is certainly there. At present, B.C. lawyers are not required to disclose any inheritances from clients.

Protect Elders From Abuse

The present state of the law leaves vulnerable people, particularly elders, wide open to financial abuse in terms of their wills, particularly by their caregivers.

Anytime vulnerable people are being cared for by others, there is potential for abuse. We have seen this time and time again in the tales emerging about abuse in native residential school and other institutions. Undue influence is simply one more form of abuse of the more vulnerable. Such abuse, whether sexual or financial, never takes place openly.

One principal difference between child abuse and elder abuse, however, is that child victims may, sooner or later, disclose the abuse whereas elders often take their stories to the grave.

By the very nature of their disability, those in need of care are more likely to be isolated physically, socially and emotionally. Whether their caregiver is a family member or an unrelated person, they are sitting ducks for exploitation by anyone who pays attention to them. That exploitation can range from subtle manipulation, to coercion, to outright physical abuse.

In terms of elders in particular, they often have very little voice. Even should they complain, they may well not be believed. What is more, they will often put up with indignity to stay in their home, knowing that if they lose their caregiver they will likely be institutionalized. Not only will this mean losing their relative dignity and comfort. For many elders, institutionalization means death.

What would the Proposed Change Mean?

The value of changing the onus of proof in these cases is that it will shed light on bequests to those in a position of trust or influence. Clearly many of these bequests are bona fide however the potential for elder financial abuse is enormous as the law now stands.

Challenges by disappointed beneficiaries will usually arise only where there are suspicious circumstances, for example a homemade will, executed without legal advice, that contains a marked departure from the dispositions set out in previous wills.

Any presumption of undue influence is rebuttable by showing that the will was made after full, free and informed thought. This is most often done by showing that the testator obtained proper independent legal advice.

Changing the onus of proof will not mean that a testator cannot make provision for their caregiver or someone in a position of trust. Naturally a vulnerable testator should be able to change their will and make valid bequests. The greater scrutiny will simply help to ensure that he or she made truly wished to make that bequest and was not coerced into doing so.

It is fallacious to suggest that changing the presumption of undue influence will “open the floodgates of litigation”. As a practical matter smaller gifts to a fiduciary, whether in life or by will, are unlikely to be challenged.

Firstly there is nothing suspicious about a testator recognizing a fiduciary in a token way. It is only when a testator gives away significant gifts, without apparent justification, that suspicions become aroused.

Secondly, the high cost of litigation has a very strong dissuasive effect for most would be challengers. A court challenge will likely occur only where there are both suspicious circumstances and a sizeable amount at issue.

Similar reasoning applies with respect to gifts by will to a family member who is also in a position of trust, for example as a caregiver or as the holder of a power of attorney.

A change in the applicable presumption does not mean that a testator cannot make significant provision for that family member. It will mean simply is that where there is a challenge to the will, it will be incumbent on the beneficiary to offer evidence to rebut the presumption, for example by pointing to similar provisions under previous wills or pointing to the independent advice the testator received from a legal professional prior to executing the new will.

Changing the onus of proof thus will simply ensure that the dominant person or fiduciary, who most often has the greater knowledge of the circumstances, will now bear the burden of proof.

Conclusion

There is simply no valid policy reason to offer protection to vulnerable individuals in respect of inter vivos gifts and not in respect to their wills. The potential for financial abuse, especially elder abuse, is the same in both situations.

Our law ought to reflect that reality by changing the presumption of undue influence to ensure that any gift made represents the true will of the vulnerable donor, whether made inter vivos or after death.

If you agree with our position in this article, then we encourage you to write to the Attorney General and to let your Provincial MLA know of your concern.

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Revocation of Wills

Every will is revocable even a will, whose terms purport to make it irrevocable, is in fact revocable.

Generally speaking a will may be either be revoked by the operation of law or may be deliberately revoked by the testator .

Deliberate revocation requires a voluntary act by a testator which is done with a specific intention to revoke the will. Unless the testator has this specific intention to revoke the will, then even the physical destruction of a will, does not revoke that will.

Revocation may sometimes occur, inadvertently, by operation of law in circumstances involving a change in the marital status of the testator. In such cases involving marriage or divorce, our B.C. law may deem there to be a revocation of the entire or portion of a previous will.

In this article we will briefly sketch the law surrounding the revocation of wills. We will also examine the presumption of revocation which may arise where the original will cannot be found.

The Wills Act

In British Columbia the Wills Act sets forth the statutory law relating to wills revocation.

Sections 14 and 15 of the Wills Act in effect provide that a will, or part of a will, is revoked in the following circumstances:

(1) upon the subsequent marriage of the testator unless the will contains a declaration that the will is made in contemplation of that marriage;

(2)by another will made in accordance with the Wills Act. i.e. formally executed;

(3)by a written declaration of revocation made by the testator in accordance with the Wills Act, i.e. formally executed; and

(4)by the destruction of a will, in the presence of a testator who intends to destroy the will in order to revoke it. The destruction may be effected by the testator personally or effected by another person, at the testator’s direction and in his or her presence.

The Act, s. 16 further provides that where a marriage is effectively ended by divorce, by a judicial separation or by court order of annulment, then any gift or power of appointment given by will to a former spouse shall be deemed to be revoked. Similarly any testamentary appointment of the former spouse as executor or trustee will be deemed to be revoked. In either circumstances, the will shall take effect as if the spouse has predeceased the testator. The only exception to such deemed revocations are cases where a contrary intention specifically appears in the will.

REVOCATION OF A WILL BY MARRIAGE

As noted above, the testator’s marriage will automatically revoke any existing wills and codicils. This revocation occurs by operation of law, whether or not the testator wishes or intends such a revocation.

Unfortunately not all marriage partners will be aware of this deemed revocation and the law may occasionally be viewed as creating some hardship to the disappointed beneficiaries. The rationale for this rule however, is to ensure that any children and new spouse will benefit, i.e by creating an intestacy in the absence of a new will.

An exception to this general rule is made if, and only if, the will contains a specific declaration that it is made in contemplation of marriage to a specific person.

To fit within this exception, the will must make it clear that that the testator contemplated marriage to a specific person, not simply marriage in general. The best practice for the drafter of such a testament will be to name the intended spouse, describe him or her as fiance or fiancee and set forth the intention to make this will in contemplation of marriage to that named fiance(e).

By way of example, in Re Pluto (1969) 69 W.W.R. 765, the Supreme Court of British Columbia held that the testator’s will, leaving “all to my wife” and specifically naming her, was nevertheless revoked by his marriage to that woman the following day.

This is not a situation in which one wishes his or her client to be found. It can be avoided by including a clear indication that the testator intends to marry the fiance(e) named and is making this will in contemplation of that marriage.

REVOCATION BY A VOLUNTARY ACT

Pursuant to s. 14 of the Wills Act, a will may be revoked, in whole or in part, by the formal execution of a written declaration of revocation, whether this declaration stands alone or is found as part of a subsequent will or codicil. To be effective, however, the testator must intend to rescind the prior will, in whole or in part.

s. 14 requires both a written declaration expressing the testator’s intent to revoke the prior will and requires that such a declaration be properly executed in compliance with the Wills Act formalities. Most often the revocation will be included in a new will or codicil however that is not required so long as the declaration of revocation is properly executed in compliance with the Wills Act formalities .

Although the Wills Act specifically permits the partial revocation of a will, such a practice may be risky because codicils or partial revocations can sometimes unfortunately create unintended confusion. From a practice standpoint therefore, where a testator wishes to make changes to a previous will, we suggest the safest practice is usually to start again by drawing a new will revoking the previous will entirely and thus avoiding any confusion. We recommend that generally speaking codicils not be used.

Wills in Multiple Jurisdictions

Another practice concern can be multiple wills made in various jurisdictions. For example, one case we had involved a Canadian who made a Mexican will providing for the disposition of his Mexican real estate. Unfortunately that Mexican will contained a clause revoking all previous wills, including a B.C. will which had dealt with the rest of the Deceased’s assets. The Deceased clearly intended to amend his B.C. will and relayed such instructions to his lawyer however he died suddenly before he could do so. His untimely death created an intestacy with respect to most of his estate which was found in B.C. He left several very disappointed beneficiaries. Accordingly, if a testator has wills in multiple jurisdictions, then drafting care must be taken to not inadvertently revoke previous wills in the other jurisdictions.

REVOCATION BY DESTRUCTION

As noted above, a will, or part of a will may be revoked by the destruction of the will by the testator or by the testator’s direction and in his or her presence, with the testator’s intention of revocation.

Notably the Wills Act requires both that the testator intend a revocation by destruction and be actually present for that destruction, whether it be the testator or his or her agent who physically effects the destruction.

Partial destruction will not revoke the entire will unless those parts of the will left intact cannot stand on their own.

The destruction must not merely be symbolic but result in actual physical injury to the will such as cutting the will into bits which could not be pieced together or total incineration.

The intention to revoke, no matter how clear it may be, is not enough without a completed act of destruction of the will. Similarly, destruction without intention to revoke does not revoke the will.

In Re Krushel Estate (1990) 40 E.T.R. 129, torn bits were found in a bag of garbage after the deceased shot himself. The court held that the throwing away of a mutilated will did not amount to revocation because it was not proven that the mutilation was done at the request of the deceased.

This decision was followed by the Nova Scotia Court of Appeal in Re Theriault estate (1997) N.S.J.No.36, where a will stored at the lawyer’s office was destroyed by an accidental fire. Subsequently the testator gave some indication of treating the fire as a revocation after the fact.

The court however refused to find a revocation by destruction because there was no evidence of intention to revoke the will at the relevant time, i.e. before the destruction.

It is possible to only have a partial revocation of the contents of a will, i.e to revoke only particular gifts or appointments made under a will. In Re Witham (1938) 3 D.L.R. 142 the court admitted to probate a will that had been mutilated by scissors with certain clauses cut out. The court made this finding because one of the clauses had been pinned back to the will in another place.

Similarly in the British case of Re Nunn (1936) 1 All E.R. 555, some lines had been cut out of the will of a deceased seamstress. The remaining parts of the will had been neatly stitched back together. The evidence established that the testatrix had carefully retained the will in her exclusive possession until death. Thus although the court ruled the deceased seamstress had destroyed the missing lines with the intention of revoking them, the court found no intention to destroy the entire will. The court thus found a partial revocation.

OBLITERATIONS OR IMPERFECT ALTERATIONS

In some cases, a testator may purport to alter a will by crossing out and writing in some new provisions. Such attempted changes are generally not enforceable because the court will likely find this to be an attempted alteration rather than a properly executed revocation.

One twist on these facts arises where a testator succeeds in obliterating words so they become completely indecipherable. In this case, the court will not reinstate the deleted words but instead will grant probate to the will with a blank space left for the obliterated words. See Re Hebert (1927) 3 W.W.R. 24.

A complete obliteration can be an effective revocation even in the absence of evidence that the obliteration was effected by, or on behalf of, the testator and in his or her presence. In such a case there will be a presumption that the obliteration was made by the testator personally.

If the original words are still apparent, for example by holding the will up to the light, then any alteration will not be effective unless it is properly executed. In the case of Finch v. Combe (1894) P.191 at 198the obliterated portion became legible once held up to window and the court thus held that there was no revocation.

The court will not excise or erase scratches or blots that obliterate part of the will nor will they remove paper pasted over part of the will. Nevertheless the court may allow the assistance of experts to decipher the words.

LOST WILLS THE PRESUMPTION OF REVOCATION

Where a destroyed or mutilated will is found amongst the testator’s papers or wherever such a will might normally be expected to be found, the law will presume that the act of destruction was committed by the testator and that it was done with the intention to revoke the will.

Further, where a will or codicil is missing after death and that document was last known to be in the testator’s possession, then the will or codicil will be presumed to have been destroyed by the testator with the intention of revoking it. The strength of this presumption of revocation varies according to the security of the testator’s custody of the will. In other words, the presumption will be stronger where the will was kept by the testator in clearly secure circumstances.

In Sigurdson vs Sigurdson (1935) 4 D.L.R. 529 (S.C.C.) this principle was stated as follows:

“Where a will duly executed, traced to the testator’s possession and last seen there, is not forthcoming on his death, the presumption is that it was destroyed by himself. To rebut that there must be sufficient evidence that it was not destroyed by the testator animo revocandi” (i.e. with the intention to revoke it).

This presumption may be rebutted by evidence of non-revocation, such as evidence of an accidental destruction of the will- for example a residential house fire. It may also be rebutted by evidence tending to show that testator did not intend to revoke the will but rather continued to reaffirm the terms of the will and to evince good will to the named beneficiaries.

We had one recent case where an older woman, a compulsive hoarder, had made a will leaving her entire estate to her goddaughter who was in fact her surrogate daughter. After her death only a copy of the will could be found. Numerous affidavits from the deceased’s long term friends and minister attested to her very close relationship with the goddaughter, and her numerous reaffirmations of her intention to leave her estate to this goddaughter. Distant relatives argued for an intestacy however a copy of the will was successfully admitted to probate.

This presumption of destruction will not apply where it is shown that the original will was not in possession of the testator, but was rather in the possession of a solicitor. Re Quinlan (1985) 63 N.B.R. (2d) 429

If the testator executed the will while he or she was of sound mind, but subsequently became mentally incompetent, then there is no presumption that the destruction was carried out by the testator at a time when he or she was of sound mind.

Where a potential executor or heir seeks to establish the validity of a missing will or to seek probate of a copy of the will, then the applicant must establish:

1) The proper execution of the original will. (This is usually accomplished by the evidence of the attesting witnesses or the lawyer or notary who prepared the will and attended execution)

2) The terms of the original will. (This is usually accomplished with a copy of the will however some cases rely on the notes of the drafting solicitor and others on the evidence of a person who read the will before it was lost.)

3) That the presumption of revocation has been overcome and there is another explanation, for the loss or destruction of the will, other than destruction and revocation by the Deceased.

The standard of proof required is the civil standard, that is proof on the balance of probabilities.

CONDITIONAL REVOCATION

What happens when a will or codicil is revoked by a later will and that later will is ultimately found to be ineffective?

In such a case, for example where the new will is struck down for improper execution, lack of mental capacity, undue influence or the like, the court may breathe life back into the previous will. It may do so by applying the doctrine of conditional revocation and finding that the testator’s intention to revoke the first will was conditional on the new will being an effective substitution for it. The court will apply this doctrine to avoid an intestacy and admit the previous will into probate.

CONCLUSION

Hopefully this paper will give the reader some sense of the many pitfalls to be avoided in advising clients about making changes to their current wills and the need for new wills when they change their marital status. It is particularly important to advise testator’s to safeguard their original wills to avoid the presumption of revocation that arises when the original will cannot be located. The Law Society of British Columbia cautions lawyers not to keep their client’s original wills for safekeeping due to concern about potential liability should the original wills be lost. Many testators seem to believe that the document that they possess is only a copy of the original and they often write intended changes to be made on the original will. Lastly, although it is not mandatory, all practitioners who prepare wills should have them registered with the Director of Vital Statistics by filing a wills notice for each will or codicil that is executed.

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Wills Variation Act Now S 60 WESA

Wills Variation Act Not Changed Under WESA

The wills variation act was kept almost completely intact when it was rolled into S. 60 WESA.

The Wills Variation Act permits a spouse or child to contest a will where it does not make adequate provision for them. The class of claimants eligible to bring such a claim includes any spouse, common-law spouse, same-sex spouse and includes both the natural and adopted children of the deceased.

Today’s Society

The potential for inheritance conflicts has been growing, especially with the increasing number of “blended family” situations and second or even third families. In such cases there may be differing perceptions of any obligation to provide an inheritance for younger children, as opposed to older more established children.

The question of a child’s “entitlement” to share in a parent’s estate often provokes a lively discussion Thus it is common, in our experience, for people to criticize the Wills Variation Act because it permits mere “malcontents” to contest a will. It is said, these ingrates should instead be grateful for whatever their parents have given them.

Unfortunately such critics simply do not appreciate that many successful claims involve disempowered individuals who have been raised in dysfunctional families. Too often, the last act of abuse by an abusive parent is to disinherit their child. For example, we have had a couple of cases involving childhood incest victims who have been disinherited as adult women yet they will carry the scars of this devastating abuse all their lives. This is just one type of claim which would be eliminated if the legislation is passed.

Let us begin by reviewing three recent successful claims which would be eliminated by the proposed changes. Perhaps these examples will help to illustrate the dangers of “tinkering” with this legislation particularly in an increasingly diverse and multi-cultural society.

1. The cultural bias for males over females preferring sons over daughters in wills.

Many cultures including, for example, South Asians and Chinese, commonly favour sons over daughters both in life and in death. The decision of Prakash and Singh v. Singh et al 2006 BCSC 1545 involves such a case. Most of the mother’s estate went to her sons. They were left bequests of $260,000 each compared to the $ 10,000 left to each of three daughters.

Mr. Justice Rice, increased the daughters bequests to an almost equal share with the sons. In doing so he eloquently stated:

“In modern Canada, where the rights of the individual and equality are protected by law, the norm is for daughters to have the same expectations as sons when it comes to sharing in their parents estates. That the daughters in this case would have this expectation should not come as a surprise. They have lived most of their lives, and their children have lived all of their lives, in Canada.

A tradition of leaving the lion’s share to the sons may work agreeably in other societies with other value systems that legitimize it, but in our society, such a disparity has no legitimate context. It is bound to be unfair, and it runs afoul of the statute of this province.”

2. Disinheriting Gays and Lesbians

Peden, Smith et al 2006 BCSC 1713 involved a deceased who left three sons, two heterosexual sons and one gay son. The Deceased’s will provided that the two heterosexual sons would receive an outright inheritance whereas the gay son would receive only the income of a share to be held in trust during his lifetime. The capital of his share would be left to his two brothers after his death. The drafting lawyer gave evidence that the deceased had been greatly upset that his son was gay and actually had wanted to completely disinherit him. The court concluded that it was the son’s gay lifestyle which had thus caused the deceased to dispose of his estate as he did.

The court varied the will and converted the life estate to be an outright direct gift to the gay son. In so doing, the court observed “homosexuality is not a factor in today’s society justifying a judicious parent disinheriting or limiting benefits to his child.”

3. A Child Abandoned to a Life of Abuse and Deprivation by Her Mother

Austin v. Janzen Estate involved a plaintiff who was born illegitimate. Her mother, rather than putting the girl up for adoption, farmed her out to an abusive home. Over the years, the mother paid $ 20 per month to have her daughter raised by this abusive family. She visited occasionally until she had a new boyfriend. She continued to repeatedly reject this daughter. For example, their last contact was when the 14 year old daughter wrote to ask for money for badly needed dental treatment. The mother wrote back that she could not afford the money because she needed it to paint the nursery for the new baby she and her husband were about to adopt.

This mother effectively abandoned the plaintiff yet went on to be a loving and supportive mother to two adopted daughters. Not surprisingly these adopted daughters were well educated and enjoyed happy successful marriages and lives. On the other hand, the plaintiff left school when she was young and struggled through abusive marriages and many other traumatic events.

At age 60 the plaintiff learned her mother had died and leaving her very sizable estate to her two adopted daughters. To the plaintiff she left $100.

The Court varied the will to provide for an equal one third to each daughter.

Background – Testamentary Freedom at Common Law

Any discussion of the Wills Variation Act requires an understanding of the English common law underlying the legislation.

English common law provided that when a person died, that person could leave his or her property to whomsoever he or she wished.

This ability to dispose of one’s estate is known as “testamentary autonomy” or “testamentary freedom”. It is legal doctrine which was developed by the English courts during a time (1700-1900) when little property was actually disposed of by will.

During that time, few people actually had assets to leave in a will. Most wealth was made up of real property which was generally considered to be family property. Because it did not belong to the individual, it was not part of the estate to be disposed of by will upon death.

When the children of wealthy families married, their families often made marriage settlements which included conditions with respect to the ownership of the property and its passage upon death. Thus, property governed by a settlement was not part of an individual’s estate.

It was in this context that the English courts decided that a testator was free to decide the beneficiaries to inherit under his or her will.

Thus, the English law of succession left it to the discretion of testators to dispose of their estates as they saw fit. Even today at common law testators are not legally obliged to make provision for their spouse or children. There is no binding obligation to leave a set amount to their spouse or their children.

This English common law was inherited by all of the former English colonies, including Canada. It is noteworthy that this common law approach is in stark contrast to most of the rest of the world. The law of most civil law countries (all of Europe but for England, South America, Africa, Japan) requires that the majority of a person’s estate pass on death to their spouse and children.

In civil law countries which include most of the non-English speaking world, a fixed portion of a deceased’s estate (often 50% to 75%) passes automatically to the surviving spouse and children. The testator can only dispose freely of a smaller portion of his or her estate. The credo seems to be “you had them, you pay for them”.

In our common law world, this historic common law doctrine of testamentary freedom has been modified by statutes such as the Wills Variation Act which permit the spouse or children to make a claim against the estate in appropriate circumstances. Unless there is a successful statutory claim brought under the Wills Variation Act, however, the principle of testamentary freedom still prevails at common law.

We contend that our Canadian society should not be slaves to the historic concept of testamentary autonomy. The common law is always focused backwards and the usefulness of this out-dated concept is extremely questionable. Quite simply, the Wills Variation Act provides for equity to be done, where appropriate. Eliminating the claims by adult children would prevent the courts from doing equity in appropriate circumstances. It is for that reason we strongly suggest that eliminating appropriate Wills Variation Act claims would be a move backwards rather than forwards.

It is only assets that actually form part of the deceased’s estate which are subject to Wills Variation Act claims. Testators, who are truly determined to disinherit their children, may still use trusts and inter vivos transfers to circumvent the Act. Indeed the rich have historically utilized trusts to circumvent the Act and other statutory law. Many will continue to do so. It is not illegal to arrange one’s affairs to avoid the application of the Act altogether.

Claims Under the Wills Variation Act by Adult Children

In our practice, claims frequently involve the children of abusive and alcoholic parents, generally fathers. We hear a recurring theme a father coming home drunk after work, beating his wife and children, and generally terrorizing the family on an ongoing basis. Many of these children leave home at very early ages, and quite understandably bear a strong resentment against the abusive parent. Some become substance abusers themselves. At best, they remain emotionally damaged individuals.

Naturally such abusive parents generally have little insight as to the lifelong effects of their mistreatment. Thus the abuser, when preparing his or her will, will typically disinherit the children on the basis of estrangement. The handling lawyer or notary often just accepts this statement as the truth of the matter and makes little enquiry into the history of the estrangement.

Most of us had the remarkable fortune to be raised in happy, healthy families. Ask any experienced teacher, minister, police officer or doctor and they will attest to the great number of dysfunctional families. A visit to the Canadian Department of Justice Family Violence fact sheet indicates much more family violence than we would wish to believe. There is a large body of information available that attests to the unfortunate frequency of such dysfunctional families.

In our practice many of the estrangement cases involve a history of physically, emotionally and/or sexually abusive treatment by the parent or step-parent toward the child. Where the estrangement can be properly explained and put into perspective, then the adult child may well have a meritorious claim under the Wills Variation Act.

Two Real Life Examples From Our Practice

Example 1 involves a claim made by the three adult independent children relating to the death of their father, Mr. M, a victim of murder.

Mr. M had been married for almost 50 years when his first wife died. He had a good relationship with his three adult children and grandchildren. Living alone, however, he became very lonely and depressed and thus engaged Ms. R through an “escort service”.

Shortly after they met, Ms. R moved into the deceased’s residence. Mr. M was 71 and Ms. R was 41. Ms. R changed the residential phone number to her own unlisted number and soon completely isolated Mr. M from his children. Within two months they “married” (unbeknownst to Mr. M, his “bride” was still legally married to another man). On their tropical “honeymoon” he was treated at a medical clinic for a lacerated scrotum it appeared that he had been kicked. Shortly after the marriage Mr. M prepared a new will leaving his entire estate to R, and alternatively to her daughter, thus completely disinheriting his own three children.

Once back in Canada, the “bride” began to run her escort service out of their now joint home, publishing ads that she “specialized in seniors”. This so-called marriage ended abruptly a few weeks later when Ms. R beat Mr. M to death. In fact, she beat him so severely she broke every rib in his body. She was subsequently convicted of his murder and thus became disentitled to share in his estate. As a wrongdoer, she was prevented by law from benefiting from her own crime.

In these circumstances, however, Ms. R’s daughter arguably continued to have a valid claim as the alternate beneficiary under the will. This daughter had never met the deceased. At common law, however, testamentary freedom prevails and this daughter had done no wrong. Ms. R’s daughter was very arguably entitled to receive the entire estate as the named beneficiary under the will.

Fortunately however, an application under the Wills Variation Act led to the court rewriting the will to leave the estate instead to Mr. M’s three adult children.

Example 2 involves a 40 year old woman known as S. She had been adopted at age 7 by the Deceased and her husband, it seems more as a servant than as a child. She was made to work long hours at her “mother’s” puppy farm business. Each morning S rose at 4.30 am to feed and care for 100 animals before catching the school bus into town for school. The Deceased would routinely beat her for any perceived misbehaviour or insubordination. In extreme situations, she was denied food. The Deceased wore the pants in the family and her husband, rather a more kindly man, did not intervene on S’s behalf. Presumably, he too, was victimized by his wife.

S skipped school for the first time at age 16 (one Friday afternoon, in order to help her friend prepare for the friend’s mother’s release from hospital). S learned from her father that the deceased intended to beat her so she stayed away until Sunday, hoping her mother would cool down. When she phoned home her mother told she had already burned all of her possessions and would be putting her dog down. The mother said “You came into the house with nothing and you will leave with nothing”.

This Deceased not only disowned S, she obliged her husband and other family members to disown S as well. (Fortunately one kindly aunt, defied this order, however she too paid the price for disobedience.)

S was homeless and taken in by friends. With few options, she became pregnant and married a severely abusive man who continued to abuse her and the children for years. He beat her and starved her and the children while she was pregnant, gambling all their money away. Their third child, a son, was born severely disabled child. S finally summoned the courage to leave him raising her children on her own for 24 years. She continues to care for this adult son who cannot speak and is incontinent. He weighs only 40-45 pounds and is catastrophically injured in every sense of the word.

Nevertheless S managed to get a university education by attending classes while her son was at eligible for government care as a child. Once he became an adult however, this eligibility ended and she continues to care for him fulltime rather than putting him into an institution.

S was a very kind person who repaid her aunt’s kindness many times over. She also attempted to contact her adopted mother on several occasions, but was rebuffed at each turn.

The Deceased died leaving an estate of approximately $250,000. Her will provided S with a bequest of $5,000 on the basis that they had been estranged for 25 years.

We commenced a Wills Variation claim on her behalf however once the proper facts were brought to the attention of the executor and beneficiaries of the estate, the case was settled with S receiving one-half of the net estate.

Summary of Basic Principles – The Clucas Decision

Madam Justice Satanove, in Clucas v. Clucas Estate 29 E.T.R.(2d) 222, did an excellent summary of the basic principles of the Wills Variation Act.

8 Principles of the Wills Variation Act

The main object of the Act is to provide adequate, just and equitable provision for the testators surviving spouse and children.
The Wills Variation Act also protects the interest in testamentary freedom which is not to be interfered with lightly. In the absence of other evidence, a testator is presumed to know best how to meet his legitimate obligations and concerns.
The Act provides an objective standard by which to measure whether a testator has provided “adequate and proper maintenance and support” for his surviving spouse and children. Thus the court should examine the will keeping in mind society’s reasonable expectations of what a judicious parent would do in the circumstances.
In making a determination, the court must consider any legal obligations of the testator to the spouse and children, followed by the moral obligations to them.
Independent adult children have a more tenuous moral claim than any spouse or dependent adult children. If the size of the estate permits, however, parents should generally make some provision for adult independent children (unless there are circumstances which rule out such an obligation)
A testator may have a moral duty to adult children in a number of different circumstances including disability, legitimate expectation of inheritance, probable future difficulties of the child; the size of the estate and other legitimate claims.
This moral obligation by a testator may be negated by “valid and rational” reasons which justify disinheriting the child. In such a case, these reasons must be based on true facts and must be logically connected to the disinheritance
Although a needs/maintenance test is no longer the sole factor governing such claims, a consideration of needs is still relevant.

Conclusion

The purpose of this paper has been to demonstrate there are many circumstances in which the Wills Variation Act allows equity to be done for adult children. That ought not to change.

In effect the British Columbia Court of Appeal has specifically recognized dysfunctional families in their decision Gray v. Nantel 2002 BCCA 94. In permitting the claim of an estranged child, Mr. Justice Donald, spoke for the court:

“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”

For close to 90 years adult independent children have had the right for equity to be done, in appropriate circumstances, under the Wills Variation Act. The five actual cases discussed in this paper represent a small sampling of the legitimate claims brought under this Act by independent adult children.

If the current right to bring such actions is curtailed, it will particularly damaging to those already disempowered. It will eliminate the claims of the disempowered whether they be the daughters of Asian Canadian families, gays or victims of families abuse.

If you agree with our position in this article, then we encourage you to write to the Attorney General and to let your Provincial MLA know of your concern.

Estate Planning Suspicious Circumstances Undue Influence wills Wills Issues wills variation Wills Variation Acts Wills Variation Claims Wills Void

BC Estate Litigation: The BC Wills Variation Act: The Basics

The BC Wills Variation Act | Disinherited

Trevor Todd and Jackson Todd have over 60 years experience in handling wills variation disputes

Any discussion of the BC Wills Variation Act (now S.60 WESA) requires an understanding of the English common law which provides the background for this Act.

English common law, developed by the English judges over the centuries, provided that when a person died, that person could leave his or her property to whomsoever he or she wished.

This complete freedom to dispose of one’s estate is known as “testamentary autonomy ” or “testamentary freedom”. This legal doctrine was developed by the English courts during a time (1700-1900) when little property was actually disposed of by will.

During that time, few people actually had any property and most wealth was made up of real property which was usually considered to be family property. Because it did not belong to the individual, it was not part of the individual’s estate to be disposed of by will.

When the children of wealthy families married, their families often made marriage settlements which included conditions about the ownership of the property and how it would pass upon the death of various family members. Thus, property governed by a marriage settlement was not part of an individual’s estate.

It was in this context that the English courts decided that a testator (person making a will) was free to decide who should inherit under his or her will.

Thus, the English common law allowed testators to dispose of their estates as they saw fit. Even today at common law testators have no legal duty to leave anything to their spouse or their children. This common law approach, which was inherited by the former British Colonies including Canada, is in stark contrast to most of the non-English speaking world.

Outside of England, the rest of Europe and its former colonies have civil law systems. Under this system a fixed portion of a deceased’s estate (often 50% to 75%) passes automatically to the surviving spouse and children. The testator can only dispose freely of a smaller portion of his or her estate. The credo seems to be “you had them, you give them your property when you die”.

In our common law world, the doctrine of testamentary freedom has been modified by statutes, such as the B.C. Wills Variation Act, which permit the spouse or children to make a claim against the estate in appropriate circumstances. Nevertheless, testamentary freedom still prevails unless there is a successful statutory claim brought under the BC Wills Variation Act.

The British Columbia Wills Variation Act allows for equity to be done where a wills variation claim is made by a child or spouse who is disappointed with the provisions of the Deceased’s last will. The disappointed beneficiary may have been completely disinherited, given a minimal sum, or given a life interest rather than the entire property outright.

2. What property is subject to the British Columbia Wills Variation Act?

No matter where the Deceased lived prior to death, if he or she leaves behind any real property (land and buildings) located in B.C. this property will be subject to the terms of the BC Wills Variation Act,

Only where a Deceased was domiciled in B.C. at the time of death will his or her personal property (basically cash, securities and moveable assets) fall under the BC Wills Variation Act, . In basic terms “domiciled” means that the deceased lived in British Columbia and intended to make B.C. his or her permanent home.

Only those assets which actually form part of the Deceased’s estate are subject to the BC Wills Variation Act claims. Thus, for example a pension benefit payable to a third party beneficiary will likely not be part of the deceased’s estate nor will insurance proceeds payable to a particular beneficiary. Such excluded assets cannot be divided up by the court in action brought under the British Columbia Wills Variation Act they may be considered by the court in ultimately determining what is a fair share of the estate for the various parties if a BC Wills Variation Act claim is made.

As to assets held in joint tenancy, it will depend on the individual circumstances of the case whether they pass automatically to the surviving joint tenant or whether they form part of the estate. For example, if the other owner is the Deceased’s spouse, chances are good that they will take the property by right of survivorship so it will not fall into the Deceased’s estate. If the property is held with someone else, it will depend who paid for the property and the reason for which it is held in joint names-it may be held in trust for the estate or it may pass by right of survivorship.

3. Legislative Background

New Zealand was the first common law jurisdiction to seriously question the doctrine of testamentary freedom on the basis that the family had a right to be protected. In 1900 New Zealand passed the Testator’s Family Maintenance Act and in 1920, British Columbia followed suit.

Other Canadian provinces have similar legislation however in other common law provinces children have no claim unless they are infants or were otherwise dependent on the testator.

The major difference is that under the B.C. Wills Variation Act the testator’s children may bring a claim irrespective of their age or state of dependency.

Thus, in other provinces, a parent may disinherit an adult independent daughter on the basis of her gender alone or disinherit a gay son based on his sexual preference alone. There would be no remedy in either case unless the child was still a dependent.

In British Columbia, however, such wills would be open to challenge under the provisions of our Wills Variation Act as being unfair and in breach of our contemporary community standards.

4. Potential Claimants In British Columbia

Section 2 of the British Columbia Wills Variation Act permits a claim to be brought only by a spouse or child of the Deceased.

The Act defines spouse to include a same sex or common law spouse provided the couple had been cohabiting in a marriage-like relationship for at least 2 years prior to the Deceased’s death.

The case law interprets children to include adopted children but not step children. In the case of unacknowledged biological children DNA testing can be very helpful in some cases.

5. Interpretation of our Wills Variation Act

Section 2 is the heart of the British Columbia Wills Variation Act. It provides that where, in the court’s opinion, a will does not make adequate provision for the proper maintenance and support of the Deceased’s spouse or children, then the court has discretion to vary the will to make the provision that it believes to be adequate just and equitable in the circumstances.

The claimant does not need to prove financial need in order to be successful in a wills variation claim. Our courts have turned away from a financial needs-based approach since Walker v. McDermott [1931] SCC 94. In that decision the Supreme Court of Canada majority ruled that in deciding the question as to what is adequate provision, the court should proceed from the point of view of the quotes judicious father of a family seeking to discharge both his marital and his parental duty”.

This approach was upheld in the modern day decision of Tataryn v. Tataryn [1994] 2 SCR 807 where McLachlin J (now the Chief Justice of Canada) clarified the moral duty concept and observed that in applying the BC Wills Variation Act “the search is for contemporary justice” (p. 815)

Over the decades, our courts have gradually settled the proper considerations concerning s. 2 of the British Columbia Will Variation Act . The relevant principles were succinctly summarized by Satanove J. in Clucas v. Clucas BCSC A9732988.

Satanove J summarizes the test for adequate and proper maintenance and support under s. 2 of the B.C. Wills Variation Act, describing it as an objective analysis of whether the testator was “acting in accordance with society’s reasonable expectations of what a judicious parent would do in the circumstance by reference to contemporary community standards.”

More recently, in the case of McBride v. Voth 2010 BCSC 443, Ballance J. reviewed six of the considerations in forming the existence and the strength of the testator’s moral duty to his or her adult independent children.

a. Contribution and Expectation

Contributions made by the children to the Deceased’s estate or care for the Deceased will strengthen the moral obligation to provide for his or her independent children. Similarly any contribution made by their deceased mother or father, the first spouse of the deceased, may support a claim to a moral obligation.

A moral duty may also arise if the Deceased’s conduct created a bona fide expectation to receive a benefit

b . Misconduct/Poor Character

S. 6(b) of the BC Wills Variation Act allows the court to refuse variation to a person whose conduct or character, in the opinion of the court, disentitles him or her to relief. Generally speaking, however, such conduct must be relatively severe in order to justify disinheritance.

c. Estrangement Neglect

The court will usually enquire into the reasons for the estrangement and the role the testator played. If the estrangement is seen to be largely the fault of the testator it may actually enhance the testator’s moral duty as a means of rectifying the testator’s neglect of the children.

d. Gifts and Benefits made by the Testator outside of the will

The court will take into account other lifetime gifts or benefits a testator may have made to claimants. For example, insurance proceeds or pension benefits which call outside of the will may still be taken into account by the court in deciding whether or not the deceased’s moral duty has been fulfilled .

e. Unequal Treatment of Children

If there are no relevant reasons for an unequal distribution. then there is a reasonable expectation that adult children will share equally even though there is no legal obligation.

f. Testators Reasons for Disinheritance/Subordinate Benefit

Where the deceased provides reasons for the disinheritance, if those reasons are shown to be inaccurate then the court may vary the will under the provisions of the BC Wills Variation Act.

If however the reasons are accurate, nevertheless the court may decide those reasons are not enough to justify disinheriting a beneficiary. In deciding if the reasons are insufficient, the court will use the test of a hypothetical judicious parent using contemporary community standards. For example Peden, Smith et al 2006 BCSC 1713 involved a deceased who left three sons, two heterosexual sons and one gay son. He provided his two heterosexual sons with an outright inheritance however the gay son would receive only the income of the third share of the estate. In varying the will to convert that life estate to be an outright gift to the gay son, the court observed “homosexuality is not a factor in today’s society justifying a judicious parent disinheriting or limiting benefits to his child.”

Conclusion

The British Columbia Wills Variation Act is an important piece of legislation because it allows equity to be done for both spouses and adult independent children who have been wrongfully disinherited.

Whether the disinheritance arises because of family abuse, elder abuse or cultural norms favouring male heirs there are many circumstances in which the BC Wills Variation Act allows for equity to be done for the surviving family.

Disinheriting Adult Children

Disinheriting adult children is possible

As long as testamentary freedom exists, some parents will works towards disinheriting adult children. In British Columbia a determined parent can do so with expert estate planning. If a parent simply uses their will to disinherit a child, however, that parent runs the risk the child will bring a successful wills variance claim under the British Columbia Wills Variation Act .

In this paper we will examine the British Columbia Wills Variation Act and review some of the factors the courts consider relevant in deciding whether the wills variance claim should be dismissed and the disinheritance permitted to stand. .

The BC Wills Variation Act

The British Columbia Wills Variation Act permits the court, in appropriate cases, to rewrite a will to make provision for designated family members. Eligible wills variance claimants include the testator’s spouse and/or children– both biological and adopted. Common-law spouses are also potential claimants if they have cohabited with the Deceased for at least 2 years. Stepchildren are not included among the class of eligible family members.

The heart of the B.C. Wills Variation Act is found in s. 2 which sets out the statutory basis for a successful wills variance claim. This section 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 has the power, in its discretion, to allow the wills variance claim and vary the will. In such a case, the court is given the power to make the provision which the court considers adequate, just and equitable in the circumstance. These two tests have been described as two faces of the same coin.

What is adequate provisio?

The B.C. Wills Variation Act was examined by the Supreme Court of Canada in the 1930 case of Walker v. McDermott (1931) 1 D.L.R.662. In that case the court decided that a child did not have to demonstrate financial need as a prerequisite to a successful wills variance claim.

The court interpreted the British Columbia Wills Variation Act as creating a moral obligation for a parent to provide for adult independent children, and that “proper maintenance and support” is not limited to the bare necessities of existence. Note: Such a parental duty is accepted as the norm in most of the non English speaking world where testamentary freedom does not exist.

The B.C. Wills Variation Act was re-examined by the Supreme Court of Canada more recently in Tataryn v Tataryn Estate (1994) 2 S.C.R. 807. They identified two fundamental interests protected by our Act.

the objective of the adequate, just and equitable provision for surviving spouse and children set out in the British Columbia Wills Variation Act:; and
the testator’s testamentary freedom

Thus in British Columbia, a testator enjoys this testamentary freedom only so long as he or she makes adequate provision for the surviving spouse and children protected by the B.C. Wills Variation Act.

In Tataryn McLachlin J clarified the moral duty of a testator to make proper provision. She wrote that the question of whether a testator has acted judiciously as a parent or spouse should be measured by an objective standard taking into account both the prevailing societal legal and moral norms.

Legal obligations can involve, for example claims based on unjust enrichment or other claims based on a testator’s duty to provide for a spouse or infant children.

McLachlin J described the moral duties as found in “society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards” (p. 822 emphasis added).

If the estate is large enough then all claims should be satisfied. Otherwise the court must prioritize the various claims. Legal claims will take priority over moral claims – i.e. legal claims must be satisfied first.

The Chief Justice noted that although the moral claims of adult children may be more tenuous than that of the spouse or dependent child, 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 (Tataryn at p. 822 emphasis added).

In cases where several adult children bring wills variance claims, the court will weigh the strength of each claim. As Smith J (as she then was) said in Ryan v Delhaye Estate 2003 BCSC 1083 para [67] ” In the absence of express reasons for an unequal distribution, contemporary standards create a reasonable expectation of children sharing equally in a parent’s estate.”

Section 5 B.C. Wills Variation Act – Reasons for disinheriting adult children

In order to be given effect by a court, the testator’s reasons for disinheriting adult children must be valid and rational.

Section 5 of the British Columbia Wills Variation Act permits the court to accept evidence of the testator’s reasons for disinheritance and can take those reasons into account in determining if the will should be varied.

Cases of disinheriting adult children

Increasingly it seems disinheritances will not be permitted when they offend community standards however this development is relatively recent.

The older model of enquiry for examining disinheritances is found in Bell v. Roy Estate (1993) 75 BCLR (2d) 213.

In this case, the testator had disinherited her daughter stating that she had contacted her only sporadically over the years and had provided no comfort or support.

The daughter’s wills variance claim was dismissed. On appeal, the court held that the weight that should be given to the reasons for disinheritance should depend on their accuracy and not on whether the reasons were morally acceptable. The court also confirmed the plaintiff bore the burden of showing the enunciated reasons were false or unwarranted.

This approach was reiterated in Kelly v. Baker 15 E.T.R. (2d) 219 (B.C.C.A.). Applying the Bell analysis the court concluded that the testator had valid and rational reasons for disinheriting the claimant. They said the claimant had chosen to abandon the family and live a morally unacceptable life.

The Court of Appeal dismissed the appeal and again held that the testator’s reasons for disinheriting the 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.

In these older cases our Court of Appeal confined themselves to determining whether the decision to disinherit was based on “true facts”, as opposed to “inaccurate” facts, and “rational”, in the sense that there was a logical connection between the reason and the act of disinheritance.

This approach has been evolving more recently with our B.C. courts putting themselves in the place of a “judicious” parent and examining whether or not the reasons for disinheritance are justifiable.

Offending community standards

Madame Justice Ballance in McBride v Voth, 2010 BCSC 443 at p 142 observed that “there appears to be a growing trend in the authorities decided in the aftermath of Kelly to favour a rejection of objectively insufficient reasons to disinherit a claimant on the pretence that they are simply not rational. ”

The decision of Prakash and Singh v. Singh 2006 BCSC 1545 involves such a case. Most of the mother’s estate went to her sons and very little to her daughters. The sons received $260,000 each – the daughters, $10,000 each.

Mr. Justice Eric Rice, increased the daughters bequests to an almost equal share with the sons. In doing so he stated at Para [58]:

Peden v. Peden 2006 BCSC 1713 is a similar case involving a Deceased who had three sons–two “straight” and one “gay”. His will provided outright gifts of 2/3 of his estate to his two heterosexual sons, to the exclusion of his third son. The gay son was to receive income only on the third share with the residue passing after his death to the two heterosexual sons. Based on evidence from the drafting solicitor, the court concluded that it was the son’s sexual orientation which led his father to exclude him from sharing equally in his estate.

The court allowed a wills variance claim to provide an equal share to the third son. In so doing, the court observed “homosexuality is not a factor in today’s society justifying a judicious parent disinheriting or limiting benefits to his child.”

Objectively insufficient reasons for disinheriting adult children

There is an apparent incompatibility between the reasoning of the B.C. Court of Appeal in Bell and Baker supra and reasoning of the Supreme Court of Canada in Tataryn The B.C. appeal decisions seemed to exclude an objective examination the testator’s reasons to see if they were justifiable from the standpoint of the contemporary judicious parent referred to in Tataryn.

Many trial decisions skirt around this apparent conflict. Notably in the recent decision of LeVierge v Whieldon 2010 BCSC 1462, Sewell J reconciled the two lines of cases.

In this case, Mrs. Whieldon died 76 with an estate of about $1.225 million. Her will divided her estate equally between her two sons and disinherited her daughter. The court found the disinheritance was largely due to the daughter manipulating her father into transferring his home to her thereby excluding her brothers from inheriting any share.

The court held that the plaintiff had failed to establish that her mother did not have a valid reason to disinherit her and therefore refused to vary the will.

After referring to the Tataryn and Kelly decisions, Sewell J, said as follows:

[61] The above formulation of the task facing the Court must be understood in the context of the fundamental duty of the Court to satisfy itself that the actions of the testator are consistent with society’s reasonable expectations of what a judicious parent would do in the circumstances by reference to contemporary community standards. Thus, I consider that it is appropriate to intervene, even if the testator acted on true facts and there is a logical connection between the decision to disinherit and those facts, if the result of such disinheritance would be inconsistent with an objective standard of what a judicious parent would do in these circumstances. An illustration of this principle is Peden v. Peden 2006 BCSC 1713, in which this Court concluded that a judicious person applying contemporary community standards could not be said to be acting in accordance to his moral duty when he discriminated against one of his children on the basis of that child’s sexual orientation.

Factors to be considered in weighing the moral duty of disinheriting adult children

In Clucas v. Clucas Estate, 25 E.T.R. (2d) 175, [1999] B.C.J. No. 436 (S.C.). Satanove, J. at para [12] says as follows:

7. Examples of circumstances which bring forth a moral duty on the part of a testator to recognize in his Will the claims of adult children are: a disability on the part of an adult child; an assured expectation on the part of an adult child, or an implied expectation on the part of an adult child, arising from the abundance of the estate or from the adult child’s treatment during the testator’s life time; the present financial circumstances of the child; the probable future difficulties of the child; the size of the estate and other legitimate claims.

In McBride v. Voth, 2010 BCSC 443, Balance J. at paras [129-142] listed the following additional factors to be considered:

contributions by the claimant to the accumulation of assets by the Deceased
bona fide expectation by the claimant to receive a benefit on death.
misconduct or poor character disentitling the claimant to relief
estrangement- which may or may not negate the moral duty depending on what role the testator
played in the breakdown of the relationship
childhood neglect may give rise to a moral duty
lifetime gifts or benefits outside of the Will
unequal treatment of children

Conclusion

For any parent who is really determined to go through with disinheriting adult children in their last will, it is important the parent prepare a detailed, written memorandum setting out the reasons for disinheritance. That memorandum should accompany the will.

It is best to include examples to illustrate the reasons. For example instead of saying merely “he was abusive” a more effective memorandum would include illustrations such as “during the year before his father’s death, our son never once came to visit him” or “after Christmas 2005, my daughter returned all of our Christmas presents unopened” Such examples paint the picture for the court in a fashion that a mere general description never can.

As noted above, the reasons must be accurate and there must be a connection between the reasons and the disinheritance. Additionally however the courts will also scrutinize the reasons to ensure they do not offend objective contemporary community standards. This objective standard is now a legal criteria in examining any purported disinheritance in our province.

Tag: Wills Issues

The Presumption of Revocation – Leading Cases

Review of Cases where the Courts find the Presumption to be Rebutted

Requirement for Proof of the Contents and the Will’s Execution

Background

Just how difficult is it to prove undue influence?

Major Financial Disincentives to Pursuing such Claims

Possible Beneficiaries of Undue Influence

Protect Elders From Abuse

What would the Proposed Change Mean?

Conclusion

Today’s Society

1. The cultural bias for males over females preferring sons over daughters in wills.

2. Disinheriting Gays and Lesbians

3. A Child Abandoned to a Life of Abuse and Deprivation by Her Mother

Background – Testamentary Freedom at Common Law

Claims Under the Wills Variation Act by Adult Children

Two Real Life Examples From Our Practice

Summary of Basic Principles – The Clucas Decision

8 Principles of the Wills Variation Act

Conclusion

Any discussion of the BC Wills Variation Act (now S.60 WESA) requires an understanding of the English common law which provides the background for this Act.

2. What property is subject to the British Columbia Wills Variation Act?

3. Legislative Background

4. Potential Claimants In British Columbia

5. Interpretation of our Wills Variation Act

Conclusion

Further reading on the BC Wills Variation Act

Disinheriting adult children is possible

The BC Wills Variation Act

What is adequate provisio?

Section 5 B.C. Wills Variation Act – Reasons for disinheriting adult children

Cases of disinheriting adult children

Offending community standards

Objectively insufficient reasons for disinheriting adult children

Factors to be considered in weighing the moral duty of disinheriting adult children

Conclusion

Further reading on disinheriting adult children

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