Tag: Wills Variation Acts

Winning an Undue Influence Case

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.

2 Kinds of Undue Influence: Actual and Presumed

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

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

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

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

Differing Burdens Of Proof– Wills versus Inter vivos Gifts or Transfers

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

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:

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:

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

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

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

Undue Influence in Wills

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

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

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

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

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

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

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

5. This presumption simply casts an evidential burden on those attacking the will

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

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

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

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

Suspicious Circumstances

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

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

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

Examples of suspicious circumstances may include:

1) an elderly testator;

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

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

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

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

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

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

8) a testator with questionable testamentary capacity;

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

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

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

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

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

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

16) a testator suffering from depression/loneliness.

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

Practice tips on how to win an undue influence case

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

20) Prepare and use a written opening at trial.

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.

Mistakes In Wills and How To Fix Them

Mistakes in wills are frequently made and then subsequently not discovered until typically many years later after the passing of the will maker.

The usual types of mistakes break into two areas- that the will was not properly executed in accordance with established principles ,or the will itself does not make sense, is ambiguous, and needs to be constructed and interpreted.

Section 59 of WESA provides a new section allowing the court to rectify a will if the court determines that the will fails to carry out the will maker’s intentions because of:

1) an error arising from an accidental slip or omission;

2) a misunderstanding of the will maker’s instructions;

3) A failure to carry out the will maker’s instructions.

The court further allows for extrinsic evidence, that is evidence relating to the circumstances under which the will instructions were given and the will executed ,including evidence of the will maker’s intent, in order to prove the existence of the circumstance described in section 1 aforesaid .

For further reading on the construction or interpretation of wills, also see blogs on this site dated September 8,2011

December 9,2011

June 1, 2012

April 20,2013 and

June 2, 2013.

The general guidelines of case law with respect to interpretation and construction of wills is as follows:

The goal in interpreting a will is to give effect to the testamentary intentions of the testatrix for the distribution of her estate: Rondel v. Robinson Estate, 2011 ONCA 493, 337 D.L.R. (4th) 193, at para. 23.

[17] The Ontario Superior Court of Justice in Re Kaptyn Estate, 2010 ONSC 4293, 102 O.R. (3d) 1, (“Kaptyn Estate”) helpfully summarized many of the principles relating to the interpretation and construction of wills:

a) The court will seek to determine the actual intention of the testator, as opposed to an objective intent presumed by law (para. 31).

b) Other cases interpreting words in other wills are of little assistance since the task is to interpret this testator’s subjective intentions (para. 32).

c) There is a distinction between interpretation and construction of a will. Interpretation seeks to determine the testator’s subjective intentions from the words used in light of the surrounding circumstances. Rules of construction are a default process turned to by the courts when the testator’s actual intentions cannot be ascertained (para 34).

d) The starting position of the court is the “armchair rule”, where the court puts itself in the place of the testator at the time when he made his will. This allows consideration of some extrinsic evidence of the surrounding circumstances known to the testator as might bear on his intentions (para. 35).

e) The authorities distinguish between admissible and inadmissible extrinsic evidence in interpreting a will (paras. 35-38):

i. “indirect extrinsic evidence” of the surrounding circumstances known to the testator at the time he made the will is generally admissible. This includes evidence of such things such as the testator’s occupation and property and financial situation; his relationships with family and friends; and natural objects of his grant;

ii. “direct extrinsic evidence” of the testator’s intentions is generally inadmissible. This is so as to preserve the will itself as the primary evidence, and to avoid the situation of an “oral will” displacing the written form. However, there is an exception where there is an “equivocation”, namely, where the will describes two or more persons or things equally well. In that situation, the law will allow evidence of the testator’s intention. Examples of inadmissible direct evidence are such things as notes or statements of the testator as to his intention, or instructions he gave his lawyer in preparing the will;

f) the court will interpret the will viewed as a whole (para. 138);

g) the court will prefer an interpretation that leads to a testacy, not an intestacy (para. 139); and,

h) the court will not hesitate to correct obvious mistakes, including deleting or inserting words, where to do so accords with the testator’s intentions, or where not to do so would lead to an absurd result (para 140).

[18] The proper approach of the court is to consider the language of the will in light of the surrounding circumstances together, rather than one first and then the other: Abram Estate v. Shankoff, 2007 BCSC 1368 at para. 77.

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

Interest Is Claimable on Lump Sum Wills Variation Awards

While it is much more common for courts to award a percentage of the residue of an estate to a wills variation claimant, it does on occasion occur where the court will order a lump sum award which may include interest..

That is a case in Sawchuk v Mackenzie 2000 BCCA 10, where the Court of Appeal increased the $500,000 lump sum award ordered by the trial judge to the sum of $1 million. The issue then became whether or not the plaintiff was entitled to interest on the award of $1 million and the court agreed. The rationale for their award of interest was that a lump sum under the wills variation act is a pecuniary legacy as opposed to a pecuniary judgment, and as such is subject to the general law that interest starts to run on a pecuniary gift one year after the testator’s death, at the rate set by the Canada interest act. The court had the following to say with respect to the issue of interest:Interest Is Claimable On Lump Sum Wills Variation Awards:

The issue remaining is whether the provision made by the Court attracts interest. It is conceded that a pecuniary legacy attracts interest: see Crerar v. Crerar Estate (1998), 24 E.T.R. (2d) 1 (B.C. C.A.) per Southin J.A. at p. 16. The formal order under appeal varies the will by deleting the amount of $10,000 from the bequest to the appellant and substituting the amount of $500,000. The effect of that order is that the provision for the appellant is made through a variation of the will and the will then speaks as varied. The form of the gift as a pecuniary legacy is unchanged; the variation is solely in the amount. The further variation that I would order does not affect the form of the bequest.
19 Mr. Carphin contended that the formal order is erroneous and the provision should have been made outside the will, presumably in the form of an order that the estate be charged with payment of the provision awarded to the appellant separately from the legacy of $10,000 under the will. The conceptual issue is: Does the court make provision for a claimant under the Wills Variation Act by varying the terms of the will or by making provision outside the will?

20 In my view, section 2 as worded is capable of both interpretations. Surprisingly, counsel were unable to direct the Court to any authorities in which this question has been addressed although it was acknowledged that orders made under the Act often direct variation of the will in the same manner as the formal order under appeal. The title of the statute is the Wills Variation Act, although it was formerly the Testator’s Family Maintenance Act and the name change occurred during a general statutory revision, likely without any consideration of the point at issue here. “Provision” is a general term without a precise technical legal meaning. In my opinion “provision out of the testator’s estate” is sufficiently wide to include variation of the terms of the will to give effect to the object of the Act as well as an order for payment or disposition of estate property apart from the will. Section 8 of the Interpretation Act, R.S.B.C. 1996, c. 238 directs that the Act is to be construed as being remedial and “given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.” Variation of the terms of a will in a proper case appears to me to be an appropriate means of giving effect to the objects of the Act and in my opinion the wording of s. 2 permits that interpretation. In this case the trial judge has given effect to his order through a variation of the terms of the legacy to the appellant and I think it was appropriate to do so. In my view, the trial judge erred only in the amount he substituted in the legacy and the clause of the formal order should stand with the amount of $1 million rather than $500,000.
21 The disposition remains a pecuniary legacy under the will, although varied in amount and attracts interest under the rule applicable to pecuniary legacies. So characterized I do not think that it is a “pecuniary judgment” within s. 1 of the Court Order Interest Act, R.S.B.C. 1996, c. 79. I agree with the conclusion to that effect in Morgan v. Morgan (1984), 16 E.T.R. 288 (B.C. S.C.), following an earlier unreported decision in the same court.

22 Wepruk (Guardian ad litem of) v. McMillan Estate (1993), 87 B.C.L.R. (2d) 194 (B.C. C.A.) is distinguishable. Wepruk (Guardian ad litem of) involved a pecuniary award to a common law spouse from an intestate estate under s. 86 of the Estate Administration Act, R.S.B.C. 1979, c. 114, for the support and maintenance of the spouse. It did not involve variation of a will and took the form of a pecuniary judgment against the estate. The Court concluded that the award was a pecuniary judgment within the meaning of the Court Order Interest Act but no interest was payable as the award was for a future pecuniary loss excluded by s. 2(a) of the Act.

23 Here there is no pecuniary judgment against the estate independently of the will. The provision takes the form of a variation of the will and the provision is effective through the will. Accordingly, in my opinion it is not a pecuniary judgment and the Court Order Interest Act has no application. Interest is payable under the general law applicable to pecuniary legacies, at the rate set by the Interest Act (Canada), R.S.C. 1985, c. I-15. I would amend the order of the trial judge to delete reference therein to the Court Order Interest Act. The order should direct that interest be paid after one year from the date of the testatrix’s death: see Hecht v. Hecht Estate (1991), 62 B.C.L.R. (2d) 145 (B.C. C.A.).
24 I would allow the appeal and increase the legacy to the appellant to $1 million.
Appeal allowed.

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

Wills Variation- “Estranged” Son vs Neighbour

In Moore v. Drummond 2013 BCSC 1762 the Court in a wills variation claim divided the estate 50/50 between an alleged estranged disinherited son and a long time neighbour.

The reasoning for the disinheritance of the son and bequest to the neighbour was explained as: :

7. My reasons for providing for my neighbours, CASEY MOORE and CLARA MOORE are because they have been a lot of help to me and have become my good friends over many years.

8. I have not given any part of my estate to my son, Bruce Drummond, because he does not visit me and he does not need anything from me. Bruce is retired and I believe he made good money as a logger.

[5] In my previous reasons, I found the statement about Bruce not visiting to be incorrect in that he did visit from time to time. However, Dee had previously expressed hostility to him in speaking to others. In his evidence at the resumed trial, Bruce confirmed that, throughout his life, his mother was bitter about the fact that her pregnancy with him had forced her into an unhappy marriage. She frequently referred to him as a “bastard.” As a child, Bruce was raised primarily by his grandmother and great-grandmother and did not live full-time with his parents until age 12.

[6] Bruce is now 77. He retired as a contract logger in 2007 and has pension income totalling about $20,000 a year. He lives in Quesnel, where he has owned a mobile home for 27 years. The home has an assessed value of $43,500 and sits on a pad that is rented for $220 a month. He has no significant savings or investments.

[7] Bruce testified that after his mother moved to Smithers in the 1960s, he generally visited once a year and provided small amounts of financial assistance from time to time. However, during the last two years of her life, she asked him not to visit because she was self-conscious about her condition. He last saw her in the spring of 2009, although they remained in telephone contact until February 2010.

[8] Although Dee stated in her will that she believed Bruce had made good money as a logger, he testified that they never specifically discussed his income. He said he made average wages for a logger, working 8 or 9 months a year.

[9] Bruce also testified that he did not learn of the new will until after Dee’s death and that he was surprised and shocked.

[10] Section 2 of the Wills Variation Act 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 may vary the will to make the provision it considers adequate, just and equitable in the circumstances. In the leading case of Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807, 116 D.L.R. (4th) 193 [Tataryn], the Supreme Court of Canada said the purpose of that section is to enforce the testator’s legal and moral obligations, but that a testator’s freedom to dispose of his or her property should be interfered with only in so far as the statute requires. At para. 17, the Court said:

[17] … The Act did not remove the right of the legal owner of property to dispose of it upon death. Rather, it limited that right. The absolute testamentary autonomy of the 19th century was required to yield to the interests of spouses and children to the extent, and only to the extent, that this was necessary to provide the latter with what was “adequate, just and equitable in the circumstances.” And if that testamentary autonomy must yield to what is “adequate, just and equitable”, then the ultimate question is, what is “adequate, just and equitable” in the circumstances judged by contemporary standards. Once that is established, it cannot be cut down on the ground that the testator did not want to provide what is “adequate, just and equitable”.

[11] There is no suggestion that Dee owed any legal obligation to her adult son. The question is one of moral obligation. The Court in Tataryn said at para. 28 that such obligations are based on “society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards.” While such obligations clearly exist in relation to spouses and dependent children, the Court also added at para. 31:
[31] … While the moral claim of independent adult children may be more tenuous, a large body of case law exists suggesting that, if the size of the estate permits and in the absence of circumstances which negate the existence of such an obligation, some provision for such children should be made.

[12] In McBride v. McBride Estate, 2010 BCSC 443 [McBride], at paras. 129-135, Ballance J. identified a number of factors for consideration in determining the existence or strength of a testator’s moral duty. The ones possibly relevant to this case are:

· Contributions by the claimant to the accumulation of a testator’s assets or the provision of other types of contribution or care;

· Conduct of the testator that created a bona fide expectation of a benefit;

· The role played by the testator in any estrangement or breakdown of the relationship between the testator and the claimant; and,

· Whether the testator’s reasons purporting to explain a disinheritance are valid and rational.

[13] Although there is as some evidence of financial contributions by Bruce over the years, these appear to have been modest and infrequent. All the evidence about Dee’s personality indicates that she was fiercely independent and unlikely to either ask for or accept any significant financial support.

[14] Bruce was aware of Dee’s previous will, in which he was the sole beneficiary. While that could be said to have created an expectation of benefit, it cannot in itself, be the determining factor. Testamentary autonomy, which Tataryn says must still be protected, includes the right to change a will.

[15] The significant issues in this case are the nature of the mother-son relationship and the stated reasons for disinheritance.

[16] Although this was not a case of complete estrangement, it is clear that the relationship between Dee and Bruce had always been a distant one, with a strong undertone of hostility and resentment. That hostility and resentment arose entirely with Dee (although Bruce may have responded in kind). She held him responsible for matters over which he had no control — the circumstances and consequences of his birth. In McBride, Ballance J. said at para 132:

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

[17] As to the testator’s stated reasons for disinheritance, the Court of Appeal said in Kelly v. Baker (1996), 15 E.T.R. (2d) 219, [1996] B.C.J. No. 3050 (C.A.), that the testator’s moral obligation can be negated by “valid and rational” reasons:
[58] … The law does not require that the reason expressed by the testator in her will, or elsewhere, for disinheriting the appellant be justifiable. It is sufficient if there were valid and rational reasons at the time of her death – valid in the sense of being based on fact; rational in the sense that there is a logical connection between the reasons and the act of disinheritance.

[18] In McBride, Ballance J. pointed out that this approach may be difficult to reconcile with the objective test based on society’s reasonable expectations mandated by Tataryn. However, she said at para. 142:

[142] … I would respectfully observe that there appears to be a growing trend in the authorities decided in the aftermath of Kelly to favour rejection of objectively insufficient reasons on the pretence that they are simply not rational.

[19] However one interprets the test to be applied, I am bound to find on the basis of the authorities that the reasons stated in the will were insufficient to displace the moral obligation. The statement that Bruce never visited was factually incorrect. The statement that he did not need anything from her was based on an assumption unsupported by any specific knowledge. Dee knew nothing about Bruce’s income, other than the fact he had worked as a logger, and knew nothing about his financial circumstances in retirement. Bruce testified that they never discussed these matters and I find that, given her attitude toward him, Dee was unlikely to have been interested.

[20] Tataryn and other case law makes clear that “society’s reasonable expectations” require a testator to consider adult independent children. Although a testator may in some circumstances reasonably exclude such a child based on the child’s financial circumstances and absence of need, the reasonable expectation is that a prudent testator would only do so on the basis of actual knowledge rather than speculation.

[21] For these reasons, I find that Dee’s will failed to meet her moral obligations and therefore fell short of the “adequate provision” required by s. 2(1) of the Act.

[22] The will should be varied in a way that “achieves the justice the testator failed to achieve,” while interfering with testamentary freedom “only in so far as the statute requires” (Tataryn, at para. 33). That requires the court to weigh the competing claims. The Supreme Court of Canada in Tataryn said at para. 32:

[32] How are conflicting claims to be balanced against each other? Where the estate permits, all should be met. Where priorities must be considered, it seems to me that claims which would have been recognized during the testator’s life — i.e., claims based upon not only moral obligation but legal obligations — should generally take precedence over moral claims. As between moral claims, some may be stronger than others. It falls to the court to weigh the strength of each claim and assign to each its proper priority… Any moral duty should be assessed in the light of the deceased’s legitimate concerns which, where the assets of the estate permit, may go beyond providing for the surviving spouse and children.

[23] Like Bruce’s claim, that of Mr. and Mrs. Moore is a purely moral one. Dee clearly felt gratitude for their day to day assistance and friendship. Her relationship with them, although not based on any family connection, was closer than her relationship with her son. This was partly her choice, but was also a simple product of physical proximity.

[24] Counsel for Bruce suggests that the will be varied to give him the real property, which now accounts for about 85 per cent of the estate. In my view, that would vary the will beyond what the statute requires and would give insufficient weight to testamentary freedom. Balancing the competing claims and the competing interests protected by the Act, I find that the estate should be divided equally, with one half going to Bruce and the other to Mr. and Mrs. Moore. In the circumstances, the parties will each bear their own cost

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Will in Contemplation of Marriage

Prior to the WESA legislation in BC prior to March 31, 2014 a marriage revoked an existing will unless the will was made in contemplation of marriage.

The BC Appeal court in MacLean Estate v. Christiansen, 2010 BCCA 374dealt with the matter.

The BCCA examined a will using the word spouse, but not actually saying the will was made in contemplation of the marriage. The trial judge found that the marriage was revoked but the appeal court reversed that decision and held that the will was valid.

[1] The principal issue in this appeal is whether the will of Gordon William MacLean was revoked by his subsequent marriage to Karen Christiansen. The appellant trustee and executor, a solicitor, prepared the will with the knowledge that Mr. MacLean intended to marry Ms. Christiansen. Through inadvertence, he failed to include as a term of the will the customary declaration contemplated by s. 15(a) of the Wills Act, R.S.B.C. 1996, c. 489, that the will was made in contemplation of the marriage. Absent such a declaration, a will is revoked pursuant to s. 14(1 )(a) of the Wills Act.

[25] After a comprehensive analysis of the origin and purpose of the Saskatchewan equivalent to s. 15 of the Wills Act, the English Wills Act, 1837 (U.K.) 7 Will. 4 & 1 Vic, c. 26, and An Act to amend the Wills Act of Ontario, S.0.1897, c. 20, the court considered whether the statute required a “formal declaration” or statement of intention. After considering the modern approach to statutory interpretation described by Ruth Sullivan in Dreidger on the Construction of Statutes, 3d. ed. (Markham, Ont: Butterworths Canada Ltd., 1994) and the ordinary dictionary meaning of the word “declaration”, the court held at para. 26:

[26] Thus, on a plain reading of the section and giving the word its ordinary meaning, a declaration need not be a formal statement. In my opinion, the ordinary meaning of the word is that there be a written statement in the will referable to a subsequent marriage.

[26] The court then addressed the question whether the will as a whole, and not merely some gift in it, must be made in contemplation of the particular marriage to be celebrated, adopting Re Coleman, [1975] 1 All E.R. 675 at 680. The court concluded that the whole will, not “some substantial part of it”, must be made in contemplation of the marriage.

[27] I respectfully adopt those interpretations.

[28] The question then in the case at bar is, whether the words in the will “my spouse

KAREN CHRISTIANSEN, and the creation, by words, of a spousal trust in favour of Ms. Christiansen and the appointment of “Karen” as the trustee of the spousal trust fund amount to sufficient declaration that the will is made in contemplation of the subsequent marriage.

[29] The respondent submits that in accordance with the holding of the chambers judge, the words do not amount to sufficient declaration, absent which the Court may not consider extrinsic evidence.

[30] With respect, that position does not accord with established authority. Again, the law on this point was usefully summarized in Ratzlaffat paras. 35-36:

[35] I adopt the position of Lord Cairns in Charter v. Charter, as did Idington J. in Marks v. Marks, that the court has a right to ascertain all the facts which were known to the testator at the time he made the will and thus to place itself in the testator’s position in order to ascertain the meaning and application of the language he uses. A probate judge is entitled to take into account the surrounding circumstances which existed at the time of the execution of the will in order to determine the proper construction of the will. The extrinsic evidence can include utterances and non-testamentary writings as well as direct evidence.

[36] That position is consistent with the approach in Re Foss. The testator, Foss, made his will in 1956 some eight days before his marriage. He stated in his own handwriting on a printed will form “I give devise and bequeath all my personal belongings money, shares in companys, insurance policys and property to my wife (Mrs. P. Foss)”. The will was duly executed. It was common knowledge that Mr. Foss was to be married in a few days. He died in 1972 leaving a widow and three infant children. Helsham J. considered whether extrinsic evidence would be admissible in these terms:

Whilst it is correct to say that the fact that a marriage was contemplated must appear by some expression in the will itself, it is also correct to say that whether the will contains such an expression must depend upon the construction of the will. If the will clearly contains such an expression, then there is no problem. If it does not, but there are some words which may or may not amount to such expression, then the will must be construed so as to find its true meaning. In order to ascertain the meaning of the words used by a testator it is permissible to construe the document in the light of the surrounding circumstances. This is the law in relation to ambiguities of language used in a testamentary document, and applies no less to the aspect of whether a testator has expressed the fact that his marriage was contemplated as to any other. For limited purposes the Probate Court has always been a court of construction, one purpose being to ascertain whether a will should be admitted to Probate: In the Estate ofFawcett (Dec’cf.) (3). This is such a case.

He concluded:
The problem arises in relation to evidence. When it is necessary to decide whether a will has not been revoked by a subsequent marriage, because it is expressed to be made in contemplation of a marriage, is it permissible to admit evidence of the circumstances that existed at the time the will was made – to read what the testator said in his will bearing in mind the situation that pertained at the time, or is the court confined the terms of the will itself in order to ascertain whether it is expressed to be made in contemplation of marriage?

There can be no dispute that evidence is admissible as to the marital state of the deceased and any interested party at the date the will was made, and of the subsequent marriage of the deceased.

That brings up the matter for decision. But can the court consider any other facts, as for example, that the deceased was engaged to be married, whether or not he was living with a person whom he describes in his will as his wife and whom he subsequently married, what time elapsed between will and marriage, and so on? On this matter of evidence views has differed.

After referring to Charter v. Charter, supra, he continued:
In my opinion where a question arises as to whether an expression used by a testator in a will is sufficient to prevent revocation, by subsequent marriage, of that will by reason of the operation of s. 15(2) of the Wills, Probate and Administration Act, then extrinsic evidence of surrounding circumstances, in addition to the fact and date of marriage, will be admissible in order to answer the question.

This approach is also consistent with what this Court stated in Haidl v. Sacher.

[Footnotes omitted.]

[31] The court concluded, at para. 41:

[41] Thus, evidence of the surrounding circumstances is admissible to construe the relevant clause in the will for the purpose of deciding whether it should be admitted to probate. The “surrounding circumstances” are admissible.

[32] Similarly, in Layer v. Burns Philp Trustee Co. Ltd. and others (1986), 6 N.S.W.L.R. 60 (C.A.), Mahoney J.A. held at 65:
Where it is clear that a word or term used has, amongst its accepted or dictionary meanings, a number of different meanings, extrinsic evidence is admissible to assist the court in determining which of such meanings the word or term bears in the particular case.

[33] The Shorter Oxford English Dictionary, 6th ed. (Toronto: Oxford University Press, 2007), notes the origin of the word “spouse” from the Latin sponsus bridegroom, sponsa bride, and defines “spouse” as a “married person; a person’s lawfully married husband or wife”.

[34] Similarly, in Taylor v. Rossu, 1998 ABCA 193,161 D.L.R. (4th) 266 at para. 92, the court held that “The ordinary meaning of the word “spouse” is a person who is joined in lawful marriage to another person.”

[35] On that basis, there is arguably no ambiguity and the term used in the will can be said to refer to Mr. MacLean’s wife whom he was yet to marry, Ms. Christiansen.

[36] By contrast, the chambers judge found no ambiguity because, at the time in

Mr. MacLean and Ms. Christiansen were living in a “common law” (or “spouse-like”) relationship. There is authority to support that conclusion. For instance, in Ferguson v. Armbrust, 2000 SKQB 219, 187 D.L.R. (4th) 367 at para. 41, the court found that “‘spouse’ may reasonably be interpreted as being limited to legally married spouses or as including both legally married spouses and common law spouses as the context requires”.

[37] If one accepts that the word “spouse” may refer to either a legally married person or a person living in a marriage-like relationship, then the use of the word in the circumstances at bar was ambiguous. Extrinsic evidence is thus admissible to determine the meaning in this case.

[38] The circumstances of the making of the will in this case were summarized in the appellant’s factum:
(a) The Will was made after joint tax and estate planning with Ms. Christiansen.
(b) Both Mr. MacLean and Ms. Christiansen were sophisticated financial professionals.
(c) The Will was executed after the wedding date and arrangements had been set.
(d) The solicitor preparing the Will knew of the wedding; was invited to and attended the wedding reception and advised Mr. MacLean and Ms. Christiansen on honeymoon travel arrangements to Italy.
(e) [The Will] was prepared at a time when Mr. MacLean and Ms. Christiansen were living in a stable, long-term, common-law relationship.
(f) The Will provides for benefits to Ms. Christiansen under a spousal trust.
(g) The Will speaks of Ms. Christiansen as his spouse.
(h) The Will addresses and balances the needs of Ms. Christiansen and of Mr. MacLean’s children.
(i) As their wedding date approached in May 2007, Mr. MacLean told Ms. Christiansen that he intended to have a Will and Power of Attorney in place before they were legally married.

[39] When one examines the terms of the will and the circumstances in which it was prepared, there can be no doubt that Mr. MacLean intended that the will would survive his marriage to Ms. Christiansen and provide for her for the remainder of her life. On her death, the one-half of the residue of the spousal trust then remaining would form part of the residue for the benefit of the testator’s children. This was obviously a carefully constructed estate plan. The extrinsic evidence overwhelmingly supports the construction that “spouse” meant Mr. MacLean’s legal spouse, to whom he was, at the date of making the will, not married but was clearly contemplating marrying.

[40] Further, the whole will was drafted in a manner in which it cannot be said that only the gift to Ms. Christiansen was contemplated. The spousal trust and the children’s fund planned as an integral part of a whole. In my opinion, the whole will was, when one examines the extrinsic evidence, expressed to be made in contemplation of the impending marriage to Ms. Christiansen.

[41] As the Supreme Court of Canada stated in Marks v. Marks (1908), 40 S.C.R. 210 at 212:

In other words, it is claimed that there cannot be any one who can answer to that description “my wife” except the one person who may in law be decided to be such.

I do not think the law so binds us.

Unless it does, I do not see why we should pervert the most obvious intention of this testator. I think we are bound to read his language in light of all the circumstances that surrounded, and were known to him when he used it and give effect to the intention it discloses when so read.

[42] This construction of the will further satisfies the legal presumption against an interpretation of a will that would create an intestacy. Thus, in Re Harrison; Turner v. Hellard (1885), 30 Ch. D. 390 at 393-394 (C.A.), Lord Esher, for the Court, held:

… when a testator has executed a will in solemn form you must assume that he did not intend to make it a solemn farce – that he did not intend to die intestate when he has gone through the form of making a will. You ought, if possible, to read the will so as to lead to a testacy, not an intestacy. This is a golden rule.

[43] It follows that I would find that the references to “spouse” in the will and the extrinsic evidence establish that Mr. MacLean’s will was made in contemplation of his marriage to Ms. Christiansen. I would therefore order that the will be admitted to probate.

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Where There Is a Cult, There Is Undue Influence

Undue Influence and Cults

In recent years there have been a rash of news stories about people who have escaped from various cults, sects, communes or other extremely private organizations ,such as Scientology.

Today’s news brings the story of a Marxist commune in South London that is being investigated for slavery and other such related charges. It is the family of Sian Davies who is pursuing the matter since Sian more or less dropped out of society in the mid-1970s when she joined the Marxist commune.

The family understood that she had disappeared, until the police informed them that she had died in 1997 after apparently falling from a window in the groups house in South London.

The family is apparently pursuing the matter on the basis that Ms. Davies was psychologically controlled through political indoctrination.

The Marxist commune is typical of a large number of groups that have sprung up in our society, throughout the world, that are somewhat similar in the way that they originate, their power structure, and their governance.

Some cults exercise extraordinary control over their members lives and use thought reform process, diet and intimidation to influence and control its members..

Another common denominator is that the leader of the cult your commune is often depicted as having supernatural powers that causes members of the group to subject themselves to the leaders everywhere and desire and profit.

Many of us remember the commune in Oregon in the late 1970s, where the “ Bagwan” leader had approximately 66 Rolls Royces that he drove around in, while the members of the cult worked extremely hard for very little, and had sexual relations with their leader when he requested.

The purpose of this article is to state that in legal terms, members of the cult who were under the extreme influence of a leader, to the extent that the leader has mind control over his or her subjects, is classic undue influence.

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The Doctrine of Ademption By Conversion

The doctrine of ademption by conversion — a rule of the law of wills whereby a specific bequest “adeems”, or fails, if at the testator’s death the specified property is not found among his or her assets — either because the testator has parted with it, or because the property has “ceased to conform to the description of it in the will”, or because the property has been wholly or partially destroyed. (J. MacKenzie, ed., Feeney’s Canadian Law of Wills (4th ed., loose-leaf, 2000) at §15.2.)

The doctrine applies as a matter of law, irrespective of the testator’s intentions in the matter, although his or her intentions are clearly relevant to the anterior question of whether the gift in question is a “specific” legacy (and therefore subject to ademption), or a general one (not subject to ademption). The doctrine is also subject to the qualification that even if the gift in question is a specific legacy, it may be saved in some circumstances if the property has changed “in name or form only”, and still forms part of the testator’s property at the date of death.

Being a specific legacy, the gift will be adeemed by conversion if the property has “ceased to exist as part of the testator’s property in his lifetime” (Jarman, at 1065) or has ceased to conform to the description in the will (Feeney, at §15.2).

Whether it was intended for the gift to be adeemed is not relevant: the doctrine applies “irrespective of the testator’s intentions.” (Hurzin v. Neumeyer Estate (1990) 69 D.L.R. (4th) 18 (B.C.C.A.), at 22; Jarman, at 1065

Ademption will not occur where the specific property in question has been changed “in name or form only” so that it “exists as substantially the same thing, although in a different shape.” (Halsbury, supra, vol. 50 at para. 394, citing Oakes v. Oakes (1852) 9 Hare 666 at 672, approved in In re Slater [1907] 1 Ch. 665 at 672 (C.A.).) Whether the change is one in name or form only is a question of fact: In re Jameson [1908] 2 Ch. Ill at 115; Feeney, at §15.27.

Predictably, a body of case-law has developed involving situations in which someone other than the testator has caused the change to occur — e.g., where corporate shares have been forcibly exchanged on an amalgamation or statutory reorganization (see In re Jameson, supra, In re Slater, supra, In re Faris [1911] 1 I.R. 165, In re Leeming [1912] 1 Ch. 828, Re Humphreys (1915) 60 Sol. Jo. 105, In re Kuypers [1925] Ch. 244, and Re Ogilvy (1966) 58 D.L.R. (2d) 385 (Ont. H.C.),

In most of these cases the gift was saved on the basis that the Court found that the change was one in form only.

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Legacies – General or Specific

Re Wood Estate 2004 BCCA 556, contains a good discussion on the differences between general and specific bequests, aka legacies.

There are generally two classes of legacies — specific and general.

Halsbury’s Laws of England (4th ed. 1998) describes the categories as follows:

A specific legacy must be of some thing or of some interest, legal or equitable, forming part of the testator’s estate; it must be a part as distinguished from the whole of his personal property or from the whole of the general residue of his personal estate; it must be identified by a sufficient description, and separated in favour of the particular legatee from the general mass of the testator’s personal estate. . . .

A general legacy may or may not be part of the testator’s property: it has no reference to the actual state of his property, and is a gift of something which, if the testator leaves sufficient assets, must be raised by his executors out of his general personal estate. Whether or not a particular thing forms part of the testator’s personal estate is a pure question of fact; so long as it is the testator’s at his death it is capable of being specifically bequeathed. Whether or not it has been separated from the general personal estate depends upon the true construction of the will. In the case of real estate a devise, whether of a specific property or by way of residue, is specific. [Vol. 17, paras. 1228-9; emphasis added.]
J.B. Clark and J.G.R. Martyn, the authors of Theobald on Wills (15th ed., 1993), explain the distinction in a similar way:
A general legacy is a legacy, not of any particular thing, but of something which is to be provided out of the testator’s general estate, for instance: “I give £100 to X”; or, “I give £1,000 3 per cent. War Loan to X.” The executors’ obligation is to provide the property given for the legatee and it is irrelevant whether it formed part of the testator’s assets at his death. On the other hand, a specific legacy is a gift of a severed or distinguished part of the testator’s property, thus showing an intention that the property shall pass to the legatee in specie. For instance: “I give my dwellinghouse, Blackacre, to X”; or “I give my silver teaspoons to X.” The severance must be done by the testator, not by some analysis in a court of equity. . . . A specific legacy does not abate until after the general legacies are exhausted, but it is liable to ademption by the testator in his lifetime. The court leans against holding legacies to be specific. [at 243-44; emphasis added.]

Accordingly, a gift of “my grandfather’s gold watch” or of “the shares of XYZ Ltd. now standing in my name” is a specific one, but a gift of “a gold watch” or of “$10,000 worth of shares of XYZ Ltd” is likely to be a general one which must be paid out of the testator’s personal estate if he or she does not own a gold watch or such shares at the date of death. (R. Jennings, ed., Jarman on Wills (8th ed., 1951), at 1037-38.)
[12] Although the third category, demonstrative legacies, was traditionally seen as a sub-category of general legacies (see Jarman, at 1043-44), more modern texts treat these as a kind of hybrid. As Clark and Martyn note, a demonstrative legacy

is by its nature a general legacy, usually pecuniary, directed to be satisfied primarily (but not solely) out of a specified fund or a specified part of the testator’s property. The authors give as an example a gift of “£100 to be raised out of the sale of my Surrey properties.” {Theobald, at 24 4-4 5.) A gift of this kind will not be adeemed even if the proceeds of the Surrey properties cease to exist or to be identifiable prior to the testator’s death. Feeney also notes that such legacies are:

. . . in the nature of a pecuniary and general legacy, except that the will indicates a particular fund out of which it is to be primarily paid. However, if the will shows that the legacy is to be paid out of a particular fund, and that fund only, it is then a specific legacy and is subject to ademption. [§15.8; emphasis added.]
[13] In the case at bar, of course, the gift was of “any cash or any stocks and bonds” held in the RBC account. It is not possible to say that a given amount was to be paid “primarily but not solely” out of the account. Arguably as well, the phrases “any cash” and “any stocks and bonds”, which {counsel agreed) may in this context be equated with “all cash and all stocks and bonds held at the date of my death”, indicate that the gift referred specifically to whatever was being held in the RBC account at the time of the testator’s death — again, not to something to be paid or transferred out of the account. (See Jarman, at 1053.) In my view, then, the gift in clause 3(a) (v) could not be said to be a demonstrative one. Rather, it was a specific legacy — a gift in specie of the actual contents of the account, identifiable not by sum or numbers of shares but only by the broker’s name (RBC) and account number mentioned in the will. Without these “identifiers”, one could not say how much cash or which stocks and bonds Mr. Wood intended to bequeath to his children.
[14] Being a specific legacy, the gift will be adeemed by conversion if the property has “ceased to exist as part of the testator’s property in his lifetime” (Jarman, at 1065) or has ceased to conform to the description in the will (Feeney, at §15.2). Applying this principle to the case at bar, it is clear that in transferring his cash, stocks and bonds from RBC account number 861-16199-1-0 in Vancouver to a different account at Midland in Nanaimo, Mr. Wood caused the subject-matter of the gift to cease to conform to the description of it in the will. Whether he intended for the gift to be adeemed is not relevant: the doctrine applies “irrespective of the testator’s intentions.” (Hurzln v. Neumeyer Estate (1990) 69 D.L.R. (4th) 18 (B.C.C.A.), at 22; Jarman, at 1065.) On this point, I agree with counsel for the appellant that to the extent the Chambers judge below may have considered evidence of the testator’s family situation and other “surrounding circumstances” to decide whether Mr. Wood intended the gift to fail, he was in error.

[15] As noted earlier, however, ademption will not occur where the specific property in question has been changed “in name or form only” so that it “exists as substantially the same thing, although in a different shape.” (Halsbury, supra, vol. 50 at para. 394, citing Oakes v. Oakes (1852) 9 Hare 666 at 672, approved in In re Slater [1907] 1 Ch. 665 at 672 (C.A.).) Whether the change is one in name or form only is a question of fact: In re Jameson [1908] 2 Ch. Ill at 115; Feeney, at §15.27.

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

BC Court Rules Sperm Freezer at UBC Was Like a “Warehouse Rental”

Lam vs the University of British Columbia 2013BCSC 2094, involved a class-action suit brought by hundreds of sperm donors that had stored their sperm with the defendant University, and their sperm was damaged as a result of the sperm freezer malfunctioning.

At issue was whether the complicated contract signed by each donor prevented that donor from bringing court action against the University due to an exclusion clause of liability.

The court underwent a very detailed analysis and concluded that the sperm was property, and that it was analogous to goods being stored in a warehouse, and the law has been clear for many years that the warehouseman cannot escape liability by inserting such a clause in the contract.

Each sperm donor is seeking damages of between 20 and $100,000 each.

The court examined similar cases from various jurisdictions around the world and stated in part:

35. “The question as to whether sperm is property has been considered by a number of courts. In Yearworth, the Court of Appeal (Civil Division) considered a case with some similarity to the present action. The claimants were cancer patients who, before undergoing chemotherapy, provided sperm samples to the defendant hospital. The sperm were frozen and stored in liquid nitrogen but the samples thawed when the liquid nitrogen levels fell too low. The court rejected the hospital’s argument that the common law does not recognize a substance generated by the body as capable of being owned. It concluded the claimants owned the sperm and stated at para. 45:

In this jurisdiction developments in medical science now require a reanalysis of the common law’s treatment of and approach to the issue of ownership of parts or products of a living human body, whether for present purposes (viz. an action in negligence) or otherwise.

[36] In Yearworth, the court also concluded there was a gratuitous bailment of the sperm by the claimants, and that the hospital was liable to the claimants under the law of bailment.

[37] In Bazley, the Supreme Court of Queensland was asked to determine whether sperm stored by a hospital was property. The sperm was placed in storage when Mr. Bazley was diagnosed with cancer. After his death his wife sought an order preserving the sperm so that she could use it. The hospital took the position under national ethical guidelines that it was required to destroy the sperm as Mr. Bazely had not completed an instruction form transferring the right to use the sperm to his wife. Ms. Bazely argued that the sperm was property which was part of Mr. Bazley’s estate and that it passed to her under his will.

[38] After reviewing the relevant common law authority, including Yearworth and Palmer on Bailment, 3rd ed. (2009), the court concluded at para. 33:

The conclusion, both in law and in common sense, must be that the straws of sperm currently stored with the respondent are property, the ownership of which vested in the deceased while alive and in his personal representatives after his death. The relationship between the respondent and the deceased was one of bailor and bailee for reward because, so long as the fee was paid, and the contact maintained, the respondent agreed to store the straws.

[39] Two Canadian cases have considered whether sperm or frozen embryos are property. In C.C. v. A.W., 2005 ABQB 290, the court considered whether the respondent who had gifted sperm to the claimant for her to use for the conception of children could prevent her use of the embryos. The court found the respondent’s gift was unqualified and concluded at para. 21 that the fertilized embryos were the claimant’s property:

The remaining fertilized embryos remain her property. They are chattels that can be used as she sees fit. Mr. A.W. is not in a position to control or direct their use in any fashion. They shall be returned to Ms. C.C.. Conversely, as they are not Mr. A.W.’s property and he has no legal interest in them, he is not responsible for paying for their storage. That responsibility lies with Ms. C.C. who owns the embryos.

[40] In J.C.M. v. A.N.A., 2012 BCSC 584, Russell J. relied on the decision in C.C. for the proposition that stored sperm is property. She found the reasoning in Yearworthto be persuasive and stated at para. 58:

Further support for this position is found in the Yearworth case. This decision provided a much more detailed basis for a finding of sperm as property. As is acknowledged in that case, typically the common law did not allow for human beings, living or deceased, or their body parts and products to be considered property. This was, no doubt, for good reason. However, I agree with the court of appeal’s finding that medical science has advanced to a point where the common law requires rethinking of this point.

[41] These cases did not consider whether the term “property”, as used in legislation, could include sperm. They were concerned with whether the common law now regards stored sperm or embryos as property. That distinction is of no consequence to the analysis I must make in this case. Courts in a variety of jurisdictions have come to the conclusion that stored sperm is property. I agree with the conclusion arrived at in these cases. The frozen sperm at issue in this case is the property of the class members. The sperm was ejaculated, frozen and stored for the purpose of using it for conception. Applying the current state of the law of property to the definition in the WRAleads to a conclusion that frozen sperm is “goods”.

[42] The next step in the analysis is to ask if the purpose of the provisions in the WRA justifies the application of those provisions to the new definition of property. One of the purposes of the WRA was to codify the common law of bailment. Under the common law, a bailee is required to exercise the same care and diligence with respect to the bailed goods as a careful and vigilant person would exercise over his own similar goods in like circumstances. Sections 2(4) and 13 of the WRA effectively accomplish that. There is no reason why these provisions should not be applied to property that can be stored for reward which was not contemplated at the time the legislation was enacted. The purpose of requiring bailees to exercise adequate care and diligence applies equally to all kinds of property that can be stored for reward.

[43] The other step in the Cote analysis is to ask if the legislative provision in question is sufficiently general to permit its application to things unknown at the time of enactment. As I have already noted, the definition of goods is broad and inclusive. In other words, the provision is sufficiently general to apply to things unknown at the time of passage. There is no reason not to apply the provisions of the WRAto goods which fall within the current understanding of “all property other than things in action, money and land.”

[44] A textual analysis also requires consideration of the enactment as a whole. UBC argues that if “goods” includes sperm, an explicit or implicit conflict is created with other provisions in the WRA and the WLA. As I set out below, I conclude it is not necessary to consider provisions of the WLA when interpreting the provisions in the WRA. Moreover, there is no explicit or implicit conflict with other provisions in the WRAif “goods” includes sperm.

[45] The thrust of UBC’s argument is that the conflict arises because it is an offence to sell sperm. Pursuant to s. 7(1) of the Assisted Human Reproduction Act, it is an offence to “purchase or advertise for the purchase of sperm or ova from a donor or person acting on behalf of a donor.” If a warehouser could issue a negotiable receipt or a transferrable nonnegotiable receipt for frozen sperm, UBC argues this would mean that the sperm could be sold or transferred. This would be contrary to the Assisted Human Reproduction Actand public policy. I reject this submission.

[46] The focus by UBC on the ability of a warehouser of sperm to issue a negotiable receipt is misplaced. It is not an issue in this case because the Agreement does not purport to be negotiable. It is a nonnegotiable receipt. More importantly, the possibility of a warehouser issuing a negotiable receipt for the storage of sperm does not create the kind of conflict that requires “goods” to be interpreted not to include sperm. There is no requirement for a warehouser to issue negotiable receipts – the WRA provides for the issuance of nonnegotiable receipts. It also permits the inclusion of terms in a receipt so long as those terms are not contrary to provisions in the WRA: s. 2(4)(a). Further, if a receipt purports to be negotiable but another statute makes it an offence to sell the property in question, this would not create an irreconcilable conflict. It would only mean that the holder of the receipt would have to comply with other statutory provisions.

[47] The fact that a nonnegotiable receipt can be transferred similarly does not create a conflict or an absurdity. Rather, the holder of such a receipt could be subject to other laws or regulations. A warehouser who issues a receipt for a special class of goods would likely be aware of the existence of other statutory provisions, just as the Andrology Lab would be knowledgeable about laws relating to the transfer and use of sperm. It is for this reason that the Agreement contained specific provisions regarding delivery and use of the sperm.

[48] By analogy, the fact that it is an offence to transfer firearms except in accordance with law would not result in the conclusion that firearms are not “goods” or that the WRA does not apply to the storage of firearms. Rather, any sale or transfer of firearms would have to be made in accordance with other legislative provisions including the Criminal Code and the Firearms Act.

[49] The fact that sperm cannot be purchased does not prevent it from falling within the definition of “goods” in the WRA. It simply reflects the fact that sperm, like other classes of property, is subject to control or regulation by other statutory provisions. If sperm is property that can be stored and for which a receipt can be issued, then it falls within the definition of “goods” in the WRA.

[50] In summary, on a grammatical or textual analysis, the frozen sperm specimens covered by the Agreement fall within the definition of goods in the WRA. The definition is clear and unequivocal; “goods” is meant to include “all property” with three exceptions. Those exceptions do not apply to sperm and the inclusion of sperm in the definition is not inconsistent with other provisions in the WRA.

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

30 Year Commonlaw Spouse Awarded $150,000 More Than His Half of the Assets

Griese v Syvret 2013 BCSC 1601 is a wills very action trial involving a couple that lived in a commonlaw relationship for 30 years before the death of the commonlaw spouse in 2010 at age 84.

Her major asset was the matrimonial home which they both purchased by contributing an equal amount, that was registered as tenants in common at her death. Her surviving spouse obtained his one half interest in the property worth $727,000, however the wife left her entire estate but for a dining room suite, to a child that she had never adopted, but had raised since the age of six years as her own. The child had been abandoned in an orphanage due to a birth defect. At the time of the trial, the young man was earning $60,000 a year and his wife was earning 30,000.

The issue before the court was what if anything more ought the surviving spouse receive from the deceased in recognition of her legal and moral obligations to him.

The court took some guidance from the statutory scheme of distribution as set out in the estate administration act, had the deceased died intestate.

After careful analysis, the legal discussion of the which follows hereafter, the court awarded the husband a lump sum of $150,000.

In Tataryn (at p. 821) McLachlin J. (as she then was), writing for the Court explained that together these societal norms provide a guide to what is “adequate, just and equitable” in the circumstances of the case.

[61] Also in Tataryn the Supreme Court of Canada recognized the importance of protecting testamentary autonomy, where (at pp. 823-4) McLachlin J. stated:

I add this. In many cases, there will be a number of ways of dividing the assets which are adequate, just and equitable. In other words, there will be a wide range of options, any of which might be considered appropriate in the circumstances. Provided that the testator has chosen an option within this range, the will should not be disturbed. Only where the testator has chosen an option which falls below his or her obligations as defined by reference to legal and moral norms, should the court make an order which achieves the justice the testator failed to achieve. In the absence of other evidence a will should be seen as reflecting the means chosen by the testator to meet his legitimate concerns and provide for an ordered administration and distribution of his estate in the best interests of the persons and institutions closest to him. It is the exercise by the testator of his freedom to dispose of his property and is to be interfered with not lightly but only in so far as the statute requires.

[62] The approach in Tataryn was carefully summarized and grounded in principles of family law by Martinson J. in Steernberg v. Steernberg, 2006 BCSC 1672 as follows (unattributed paragraphs refer to Tataryn):

[59] The language of the WVA confers a broad discretion on the Court, which allows judges to craft results that are just in the specific circumstances of the case and which are adequate, just and equitable in light of contemporary standards, values and expectations (at ¶15). The WVA addresses two main interests – the “adequate, just and equitable provision for the spouses and children of testators” and testamentary autonomy; testamentary autonomy must yield to what is “adequate, just and equitable.” (at ¶16-17).

[60] In looking at current societal norms, two sorts of norms are available and both must be addressed (at ¶28); together they provide a guide as to what is adequate, just and equitable in the circumstances. They are legal obligations and moral obligations.

[61] Legal obligations are “the obligations which the law would impose on a person during his or her life were the question of provision for the claimant to arise” (at ¶28). The legal obligations may be found in the Divorce Act, R.S.C. 1985, c. 3 (2d Supp.), family property legislation, and the law of unjust enrichment (at ¶30). When, as in this case, the parties are not separated or divorced at the time of death the law nonetheless imposes uncrystallized legal obligations that a testator owes to his or her spouse (at ¶28).

[62] Second, the Court should consider the testator’s moral obligations to his or her spouse and children, in light of “society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards” (at ¶28). With respect to the moral obligation to a spouse, the Court concluded that most people would agree that although the law may not require a supporting spouse to make provision for a dependent spouse after death, a strong moral obligation to do so exists if the size of the estate permits. The moral obligation is broader than the legal obligation and is assessed at the date of death.

[63] The moral duty is customized to each specific claimant. The test in determining whether a testator spouse has breached his or her moral duty is whether, as a just husband or wife he or she properly considered the situation of his or her spouse and an appropriate standard of living for that person: Holland v. Holland (1995), 9 E.T.R. (2nd) 119 (B.C.S.C.).

[64] The moral claim of independent adult children is more tenuous than the moral claim of spouses. But if the size of the estate permits, and in the absence of circumstances negating the existence of such an obligation, some provision for adult independent children should be made (at ¶31).

[65] Circumstances that will negate the moral obligation of the testator are “valid and rational” reasons for disinheritance. To constitute “valid and rational” reasons for disinheritance, the reason must be based on true facts and the reason must be logically connected to the act of disinheritance: Bell v. Roy Estate (1993), 75 B.C.L.R. (2d) 213 (B.C.C.A.); Clucas v. Clucas Estate (1999), 25 E.T.R. (2d) 175 (B.C.S.C.); Comeau v. Mawer Estate (1999), 25 E.T.R. (2d) 276 (B.C.S.C.); and Kelly v. Baker (1996), 15 E.T.R. (2d) 219 (B.C.C.A.).

[66] As between moral claims, some may be stronger than others. The Court must weigh the strength of each claim and assign to each its proper priority. In doing so, the Court should take into account the important changes resulting from the death of the testator. There is no longer any need to provide for the person who died and reasonable expectations following upon death may not be the same as in the event of a separation during lifetime. A will may provide a framework for the protection of the beneficiaries and future generations and the carrying out of legitimate social purposes. Any moral duty should be assessed in light of the person who dies’ legitimate concerns which, where the assets of the estate permit, may go beyond providing for the surviving spouse and children: Tataryn at ¶32.

[67] The test of what is “adequate and proper maintenance and support” as referred to in s. 2 of the WVAis an objective test. The fact that the testator was of the view that he or she adequately and properly provided for the disinherited beneficiary is not relevant if an objective analysis indicates that the testator was not acting in accordance with society’s reasonable expectations of what a judicious parent would do in the circumstances by reference to contemporary community standards: Tataryn; Walker v. McDermott, [1930] S.C.R. 44; Price v. Lypchuk Estate (1987), 11 B.C.L.R. (2d) 371 (C.A.); Clucas, above; and Dalziel v. Bradford et al.(1985), 62 B.C.L.R. 215 (B.C.S.C.).

[68] When possible, all claims should be met. However, if an estate is not large enough to accommodate both the testator’s legal and moral duties, then the legal duties should take priority (at ¶38).

[69] In many cases there will be a number of ways of dividing the assets which are adequate, just and equitable. In other words, there will be a wide range of options, any of which might be considered appropriate in the circumstances. Provided that the testator has chosen an option within this range, the will should not be disturbed. Only where the testator has chosen an option which falls below his or her obligations as defined by reference to legal and moral norms, should the Court make an order which achieves the justice the testator failed to achieve. In the absence of other evidence a will should be seen as reflecting the means chosen by the testator to meet his legitimate concerns and provide for an ordered administration and distribution of his estate in the best interests of the persons and institutions closest to him. It is the exercise by the testator of his freedom to dispose of his property and is to be interfered with not lightly but only in so far as the statute requires (at ¶33).

[63] About fifteen years after Tataryn the British Columbia Court of Appeal decided Picketts v. Hall (Estate), 2009 BCCA 329. In Picketts, Mr. Justice Low, writing for the Court, addressed the issue of the legal and moral duty owed by a testator to a common law spouse, and whether different considerations apply to a common law spouse than to a married spouse in an application to vary a will.

[64] The facts in Pickettswere that Mr. Hall and Ms. Picketts had lived together for 21 years as though they were a married couple. On Mr. Hall’s death, Ms. Picketts was 75 years of age. He left two adult sons, and an estate worth $18,000,000.

[65] Under his will, Mr. Hall left Ms. Picketts the condominium they had been living in, and $2,000 per month for her life. The Court of Appeal awarded Ms. Picketts $5,500,000, an amount close to one-third of the value of the estate, which was the amount she would have received under the provisions of the EAA.

[66] Low J.A. dealt with Mr. Hall’s moral obligation to Ms. Picketts and the application of the EAA, as follows:

[54] Although McLachlin J. in Tataryn did not discuss the Estate Administration Act, R.S.B.C. 1996, c. 122, or its applicable predecessor, under the topic of legal obligations, I think that statute bears mentioning at this point. The provisions in the statute as to intestacy succession create a default succession in law if a person should die without a will. Section 85 states that, on an intestacy in which there is a surviving spouse and a surviving child or surviving children, the spouse is entitled to the first $65,000 of the estate and half of the residue if there is one child surviving, and one-third of the estate if there is more than one child surviving.

[55] In the unlikely event that Mr. Hall had died intestate, Ms. Picketts would have received one-third of the entire estate. This is because the definition of “common law spouse” in the Estate Administration Act was amended by the Definition of Spouse Amendment Act, S.B.C. 1999, c. 29, to mean, inter alia, “a person who has lived and cohabited with another person in a marriage-like relationship, including a marriage-like relationship between two persons of the same gender, for a period of at least 2 years immediately before the other person’s death”. This is essentially the same definition as the definition of “spouse” in the Wills Variation Act. The two definitions became law on the same date.

[56] Although the intestacy provisions of the Estate Administration Act do not directly affect the legal considerations under Tataryn, it is significant that the Legislature chose to amend both statutes at the same time. This can be seen as a dovetailing of the two statutes to reflect the social norms of the day and, to repeat the quote from Tataryn at p. 822, to “reflect a clear and unequivocal social expectation, expressed through society’s elected representatives…”

[67] In Rose v. Bloomfield, 2010 BCSC 315, it was argued unsuccessfully before Mr. Justice Cohen (in light of the above comments of Low J.A. with regard to the distribution scheme of EAA) that the provisions of the EAA with regards to intestacy ought not to be taken into consideration when assessing whether a testator’s provision for a spouse is “adequate, just and equitable”. Cohen J. concluded:

[49] It is not known whether the decision in Hecht v. Hecht Estate was cited to Low J.A. Regardless, I do not agree with the defendants’ interpretation of Low J.A.’s reasons. In my opinion, His Lordship clearly adopted the distribution scheme legislated under the EAA as a means by which to assess whether a testator’s provision for a spouse is “adequate, just and equitable”. Accordingly, I am satisfied that in the case at bar it is open for me to take guidance from the scheme of distribution set out in the EAA when determining whether the Will made adequate provision for the plaintiff, and in my consideration of an appropriate discretionary distribution of the deceased’s estate.

[68] In the present case, I take some guidance from the scheme of distribution set out in the EAA. Had Ms. Jacques died intestate, the defendant would not be entitled to a share of her estate under the EAA. He would not qualify as “issue” and by virtue of s. 83 of the EAA, the plaintiff as the deceased’s spouse would receive her entire estate. Pursuant to s. 85 of the EAA, in the event that the defendant had been adopted and the net value of the deceased’s estate exceeded $65,000, the plaintiff as spouse would receive the first $65,000 and the balance would be split in half between the plaintiff and the defendant.

[69] I also note that had the deceased not made the defendant a beneficiary of her estate, he would not be entitled to bring a claim pursuant to the WVA to challenge the Will. This is because the defendant is neither a natural nor an adopted child. An expanded definition of child is not permitted, for example to include foster children:Peri v. McCutcheon,2011 BCCA 401.

[70] Also of note are the comments of Low J.A. in Pickettsregarding competing claims to an estate as between adult independent children and a loyal spouse:

[60] Cases decided by this court since Tataryn are of limited assistance because the present case is unusual on its facts. I will, however, refer to one case.

[61] In Bridger v. Bridger Estate, 2006 BCCA 230, the testator’s estate was valued at about $311,000 and the trial judge varied the will that favoured three daughters from a first marriage over the testator’s second wife of 38 years. In writing for the majority to dismiss the appeal, Mackenzie J. A. said this:

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

[62] It seems to me that it is also not a viable option for the court to approve a disposition that substantially prefers the moral claims of adult independent children to those of a long-term, caring and dedicated spouse.

[Emphasis added in Picketts]

[71] In deciding whether or not the deceased’s Will made adequate provision for the plaintiff, her long-term spouse, I find certain aspects of the evidence to be of particular note, namely:

o Apart from the Aldergrove property and the likelihood that the plaintiff provided some additional financial support to Ms. Jacques after she retired and he continued to work, fundamentally they kept their financial affairs separate;

o In purchasing their only residence together after about seven years of cohabitation, they purchased it as tenants in common as opposed to joint tenants;

o They both contributed approximately equally to the purchase of the Aldergrove property from their separate financial resources;

o Neither Ms. Jacques nor the plaintiff made provision for the other in their wills (with the exception of Ms. Jacques leaving the plaintiff the dining room set and her half interest in the Aldergrove property as an alternate beneficiary, if the bequest to the defendant failed);

o The deceased raised the defendant as her son from within six months of his birth and persevered in doing so after her husband died;

o The deceased had a close relationship with the plaintiff as her common law husband of 30 years as of the time of her death, and he provided considerable care and comfort to her in the last months of her life;

o The deceased also had a very close relationship with the defendant who was essentially her only child in all ways except that he was not adopted by her;

o The plaintiff contributed approximately $80,811 in terms of maintenance and repairs to the Aldergrove property; the deceased contributed an unrecorded amount likely to be less than $10,000;

o As the plaintiff has received payment for his half interest in the Aldergrove property he has already reaped the benefit of half of any such expenditures;

o The plaintiff is not in particular financial need at this time, and given his age is in generally good health and enjoying life; and

o The defendant is not in financial need as he is an adult person of independent means.

[72] In the present case when I analyze the legal and moral obligations of the testatrix to the plaintiff in the context of Tatarynand the jurisprudence that follows, I find that she did not make adequate provision for her common law spouse of 30 years. I assess her “uncrystallized” legal obligation to the plaintiff at the time of her death to have been modest spousal support. I note that his retirement income was approximately twice the amount of hers, so in practical terms, had the parties separated, the plaintiff likely would have been required to pay her a very modest amount of spousal support. Their “family assets” under the Family Relations Act, R.S.B.C. 1996, c. 128 would have been divided much as occurred upon her death.

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

Tag: Wills Variation Acts

Winning an Undue Influence Case

Outline

What is Undue Influence?

2 Kinds of Undue Influence: Actual and Presumed

Differing Burdens Of Proof– Wills versus Inter vivos Gifts or Transfers

Undue Influence in Gifts or Transfers

Undue Influence in Wills

Suspicious Circumstances

Examples of suspicious circumstances may include:

Practice tips on how to win an undue influence case

Conclusion

Further reading on undue influence:

Mistakes In Wills and How To Fix Them

Interest Is Claimable on Lump Sum Wills Variation Awards

Wills Variation- “Estranged” Son vs Neighbour

Will in Contemplation of Marriage

Where There Is a Cult, There Is Undue Influence

Undue Influence and Cults

The Doctrine of Ademption By Conversion

Legacies – General or Specific

BC Court Rules Sperm Freezer at UBC Was Like a “Warehouse Rental”

30 Year Commonlaw Spouse Awarded $150,000 More Than His Half of the Assets

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