Heatherfield ( Litigation Guardian of) v Heatherfield Estate 2015 BCSC 505 is one of the few reported cases as to of what constitutes adequate provision for a minor, dependent child beyond the decision in Cameron (Public Trustee of) v. Cameron Estate (1991), 41 E.T.R. 30 (B.C.S.C.) [Cameron].
The deceased died suddenly at age 53 leaving to infant children, and a will leaving his entire estate of approximately $1.2 million to a former common-law partner.
The will obviously did not adequately provide for the two infant children, and as the introductory sentence stated, there has been very little judicial interpretation of just how much is required to satisfy the claims of a minor and dependent child, as opposed to the many decisions relating to the adequacy of an adult independent child that have been decided.
The court held that the deceased failed to fulfil the legal or moral obligations of the contemporary judicious parent by leaving the entirety of his substantial estate to his former spouse to whom he owed no legal or moral duty, on whom he was not relying, and with whom he did not have an agreement as to how she would subsequently provide for the children.
Only the children had the standing to bring the claim under the wills variation act, which the Public Guardian and trustee did on their behalf.
The mother strongly objected to the Public Guardian and Trustee being the continuing trustee for the children, and asked that she herself the appointed in that capacity.
Mdm. Justice Ballance varied the entire will to divided equally between the two minor children and allowed the mother to be the appropriate trustee.
[68] In the course of his reasons, the trial judge described Cameron as the first of its kind. While it is accurate to say that it was a test case, the issue of launching a will variation claim on behalf of minor children where the estate was bequeathed to the surviving parent, had been briefly canvassed in the earlier decision of Re Malat (B.C.S.C., Vancouver Registry No. X8945/75, Meredith J. 18 August 1975, Unreported) [Malat].
[69] In Malat, the Public Trustee applied under the now repealed Equal Guardianship of Infants Act to be appointed guardian of the deceased’s two minor daughters for the limited purpose of bringing an application under the predecessor legislation to the WVA. The application was dismissed on a technical ground. Although the court was not required to confront the variation issue on the merits, in dismissing the application, Meredith J. remarked unfavourably, in obiter dicta, about the prospect of such proceedings pitting the children against their mother, triggering unwanted legal costs and the risk of family discord. Commenting that the possible disruption might be more harmful to the children than any benefit they might receive from the estate, Meredith J. continued at p. 2:
I have not the slightest reason to suppose that Mrs. Malat would do other than the best for all her children during her lifetime, nor should I speculate that she will do other than make adequate provision for her children out of what may remain of her assets, including those inherited from her husband on her death.
Accordingly, as I am inclined to the view that the order sought would detract from rather than advance the interest of the two children, the order is refused.
[70] Although Malat does not appear to have been drawn to the attention of the trial judge in Cameron, he echoed many of the sentiments expressed by Meredith J.
[71] In the end, Mr. Cameron was awarded his costs against the Public Trustee. The Public Trustee sought leave to appeal the judgment with respect to costs only. Leave was granted on the condition that the Public Trustee undertake to pay the special costs “of the estate” no matter what the outcome of the appeal and, failing that, the application for leave would be dismissed. The leave application was abandoned.
ANALYSIS
[72] In my opinion, Cameron is neither binding nor persuasive authority in determining whether the Deceased adequately provided for his two minor children.
[73] In the first place, the facts in Cameron are readily distinguishable in a meaningful way from the case at hand. More crucially, Cameron was decided before Tataryn clarified and refined the analytical approach. In my respectful view, the teachings of Tataryn have affected the validity of Cameron insofar as it purports to be authoritative for the broad proposition that a variation claim brought by a minor child is doomed to fail where the surviving parent is the sole or primary beneficiary and has cared for that child, in factual situations of the kind present here.
[74] Only Zachary and Shanon, ages 12 and 9 respectively at the time of trial, have standing to bring a claim under the WVA with respect to the Will. That the Deceased owed them a legal duty is undisputed and is underscored by the fact that, at the time of his death, he was obligated by court order to pay child support and contribute toward their special and extraordinary expenses. Similarly, there can be no question but that he also owed his minor and financially dependent children a moral duty.
In an unreported decision, Brown v Terins et al, 20150505, Madam Justice Fisher refused an application brought by the plaintiffs in a wills variation action for access to the will drafters file so as to determine inter alia, the reasons for the disinheritance, so as to be able to determine if the reasons were rational and valid as they must be when reasons are stated.
No reasons were stated in the will for the disinheritance, and the plaintiff argued that under the exceptions to lawyer privilege is !) The exception to the general rule and wills cases and 20 waiver and fairness.
The judge followed precedent law stating that access to the will drafters file in a wills variation action is privileged and should not be made available to the plaintiff unless the executor waives the privilege.
disinherited.com personally agrees with the plaintiff in this application and feels that the will maker’s file should be disclosed in its entirety to all parties. That however is not the law.
The following quotes of law supporting the contention that the lawyer’s file is privileged as to the communications between the lawyer and the client as to any reasoning that might have been given with respect to a disinheritance under a wills variation claim.
It should be noted that should the validity of the will itself be in contention, such as for lack of capacity or claims of undue influence, then the lawyers will file is compellable to the plaintiff.
The Wills Exception
[8] The wills exception stems from the1851 decision in Russell v. Jackson, (1851), 9 Ha. 387, which reasoned that disclosure should be made in cases where the validity of a will is challenged in order to ascertain “the views and intentions of the parties, or the objects and purposes for which dispositions have been made”. The principle was extended to some extent in Geffen v. Goodman Estate, [1991] 2 SCR 353, to cases involving inter vivos trusts. It has also been extended in a case involving a committeeship under the Patients Property Act, RSBC 1996 c 349 in Re Palamarek, 2010 BCSC 1894.
[9] The rationale for this exception was discussed extensively in Geffen, and Madam Justice Wilson’s reasons for extending it there were stated at para. 65:
In my view, the considerations which support the admissibility of communications between solicitor and client in the wills context apply with equal force to the present case. The general policy which supports privileging such communications is not violated. The interests of the now deceased client are furthered in the sense that the purpose of allowing the evidence to be admitted is precisely to ascertain what her true intentions were. And the principle of extending the privilege to the heirs or successors in title of the deceased is promoted by focusing the inquiry on who those heirs or successors properly are. In summary, it is, in the words of Anderson Surr. Ct. J. In Re Ott, supra, “[i]n the interests of justice” to admit such evidence.
[10] This case was referred to at length by Master Joyce (as he then was) in Gordon v. Gilroy, [1994] BCJ No. 1927 (SC). In Gordon, the question was whether that rationale supported disclosure in a Wills Variation Act action. Master Joyce decided that it was not, for these reasons:
In this case the issue is not “what were the true intentions of the testator”. There is no issue that he intended to leave his entire estate to Ms. Gilroy and thereby to disinherit his children. The purpose for seeking disclosure of the confidential communications in this case is not for the purpose of determining the testator’s true intentions or even the reasons for them, which are fully stated in the will itself, but rather for the purpose of attempting to defeat those intentions. The plaintiffs seek disclosure of the confidential communications in an attempt to overturn the will and defeat Mr. McKay’s testamentary wishes.
I suspect that it would surprise and distress a client if told by the solicitor whom that person retained to give advice and to prepare a will concerning the disposition or lack of disposition to the client’s children that after his or her death the solicitor would be obliged to disclose the discussions which the Brown v. Terins Page 4
Disabled people, both mentally or physically or both, are often extremely short changed in their inheritance.
This blog involves a case Trevor Todd handled for a physically disabled married adult who was literally treated like a child by her entire extended family.
Dale was initially bequeathed a punitive monthly stipend of $1000.
We sued under the Wills Variation act and Dale was awarded the entire $700,000 as a lump sum payment.
I am reproducing the entire reasons for judgement as it was not reported as a decision.
The case is one of only a few reported cases involving a Wills Variation action brought by an adult independent child who is seriously physically handicapped, but mentally competent, who has not been adequately provided for by his or her deceased parent(s).
IN THE SUPREME COURT OF BRITISH COLUMBIA
Date: 20041214
Docket: L030198
Registry: Vancouver
Between:
Dail Ann Hesse
Plaintiff
And:
Howard Kenneth Da vies, as Executor of
the Estate of Gwynneth Eleanor Farley, Deceased,
Howard Kenneth Davies, Wendy Breaks, Bill Davies,
Pat Clifford, Keri Joint, Jim Farley, Lisa Farley, David Farley,
Rick Heard, Ted Heard, Judy Davis, Joan Gibsons, Carol Sieb,
Merle Gogal, Terry Roberts, Sharon Ward, Pauline Ward,
Jewel Middlemeass, Glenda Read Eleanor Kormos,
Greg Roberts and David Roberts
Defendants
Before: The Honourable Mr. Justice Fraser
Oral Reasons for Judgment
December 14,2004 Vancouver, B.C.
VANCOUVER SUPREM
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Hesse v. Davies et a/_______________________________________ Page 2
[1] THE COURT: This is an application by the plaintiff, Dail Ann Hesse, for a declaration that the Last Will and Testament of Gwynneth Eleanor Farley, her mother, dated the 6th of June, 2000, did not make adequate, just and equitable provision for her in all the circumstances.
[2] Because I am satisfied as to the proper result, I am going to give my Ruling today. Those present will appreciate that the virtue of pronouncing decisions promptly carries with it the disadvantage that the choice of words is sometimes less felicitous than if the matter is postponed and the Judgment handed down sometime later. So I will state that I do reserve the right to amend these Reasons should they be transcribed into written form. It is my practice when I do that to indicate any significant amendment by the use of square brackets, so that the Reasons as transcribed will clearly indicate on the face of the document what has been added.
[3] Mrs. Hesse is the only child of her mother. Her mother died on the 18th of October, 2002. Her Last Will and Testament is in evidence. It is what is sometimes refenred to as a “stationer’s Will,0 that is, a preprinted form with blanks to be filled in. The Will evidently was prepared by the plaintiff’s aunt, Thelma Davies, sometimes known as Terry Davies. It has the familiar inadequacies of a will prepared by amateurs.
[4] The estate is sizable, having a present value of almost $700,000 after payments from the estate in excess of $100,000. Having a will prepared by an amateur for an estate of this size is certainly an instance of penny wise and pound foolish.
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[5] The plaintiff is 46 years old. She has cerebral palsy, which leaves her with significant disabilities. She is unable to walk without the aid of crutches. Even with crutches, her balance is poor and it is often very painful to walk. She suffers from arthritic pain and other painful conditions such as palsy seizures. There have been other physical difficulties.
[6] The plaintiff is married to Bruce Hesse. They married about 10 years ago. When they married, Mrs. Hesse forfeited her disability pension because Mr. Hesse was an income earner. This seems to me an important indication that the marriage was based on love and loyalty as opposed to greed or expectations of money. Mr. Hesse is employed and earns approximately $42,000 per year, gross. He has disabilities of his own, although they are minor in comparison to those of Mrs. Hesse. Apart from some payments from the estate since the death of Mrs. Hesse’s mother, Mr. Hesse has been the sole support of himself and his wife.
[7J The scheme of the Will is that Mrs. Hesse is to be paid the monthly sum of $1,000 per month from the estate until she becomes 60 years old, at which time she will inherit the residue. The executor was given the power to pay off the mortgage against the townhouse that Mr. and Mrs. Hesse already owned, and he has done so. The balance due on the mortgage as at September of this year was approximately $105,000 and that mortgage has been cleared off. At the same time, the executor paid to Mrs. Hesse the arrears of the $1,000 per month payments, which at that time totalled approximately $23,000.
11:37:23 a.m. 12-19-2005 5/8Page 4
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Hesse v. Davies et al
[8] The evidence discloses that Mrs. Hesse has needs which are fairly substantial in terms of cost. In particular, Mrs. Hesse would like to buy a rancher style house with suitable handicap facilities. The estimated cost of such a house, which I take to be somewhat approximate, is $450,000. Then there are other matters, special devices to assist in her comfort living in the home, such as a reclining chair, an electric bed, a suitable vehicle for transportation and so forth. I see these needs as entirely reasonable.
[9] There are two alternate futures before Mrs. Hesse. One involves another 14 years in their two-story townhouse. The other involves at least the possibility of a house which is more suitably designed for her.
[10] Technically, I suppose, to describe these as “needs” could be seen as overstating the case. On the other hand, I am entirely satisfied that the .quality of life of a person with disabilities is enormously enhanced if that person has a proper home and proper aids for more comfortable living.
[11] Those who resist this application, principally Wendy Breaks and Pat Clifford, have told me that they do so on altruistic grounds. They say that their aunt had only the best interests of Mrs. Hesse in mind and that the design of the Will should be respected by me.
[12] It is difficult to know what to do with that contention. The Will itself does not explain why it was designed in that way. In fact, the only evidence as to the ultimate intentions of the testator is a handwritten note, which is Exhibit A to the affidavit of
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Hesse v. Davies et a/______________________________________ Page 5
Dail Hesse sworn on 19 November 2004, the key words of which are, “Everything is bequeathed to my daughter, Dail Ann Farley.”
[13] Along the road, some of those persons who were connected with Mrs. Hesse and her parents have convinced themselves that Bruce Hesse is an untrustworthy person who will take advantage of his wife and dissipate the estate, leaving Mrs. Hesse destitute later in life at the time when she will most need money to support herself in comfort.
[14] I am not satisfied on the evidence that these suspicions can be supported. It seems to me the track record of Mr. Hesse speaks louder than the fears of others. In marrying his wife, Mr. Hesse gave up whatever benefit he might have received from the disability pension that Mrs. Hesse was receiving before then, and he has been the sole support of Mrs. Hesse over 10 years of mam’age. In addition, there is evidence that he faithfully paid child support to his daughter from an earlier mam’age until that daughter became 19.
[15] There is a natural inclination on the part of a parent to protect a child. One interpretation of this Will is that its provisions were conceived as a means of protecting Mrs. Hesse from her own husband. If so, I find that this rationale is not supported by the history.
[16] The people who will be deprived potentially if I vary the Will as asked, that is, to order that the entire estate be given absolutely to Mrs. Hesse, are numerous cousins, approximately 22, who, if Mrs. Hesse dies before the age of 60, will share
11:38:07 a.m. 12-19-2005
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Hesse v. Davies et al
the residue of the estate. Under the provisions of the Will, the capital will remain intact, subject only to the payments of $1,000 per month.
[17] My view is that the moral claims of these cousins pales against the moral obligation that Mrs. Hesse’s mother had toward Mrs. Hesse. I can identify no reason why Mrs. Hesse should be kept out of an important sum of money which will enable her to live a more comfortable and more fulfilled life, given the opportunity that better circumstances will give her to use her energy and her physical abilities effectively.
[18] I do conclude that the testator failed her daughter in terms of the moral obligations she had towards her daughter.
[19] I am prepared to think — I am not going so far as to say that I hold — that Gwynneth Farley drew her Will with the best of intentions. It is impossible to know as between Thelma Davies and Gwynneth Farley which of them was the source of the concept or the design of the Will.
[20] Thus, I am satisfied that the order sought by Mrs. Hesse should be granted, and I do declare that the entire residue of the estate be awarded to Mrs. Hesse for her own use absolutely.
(DISCUSSION BETWEEN THE COURT AND COUNSEL RE COSTS AND APPROVAL AS TO FORM OF ORDER)
[21] THE COURT: Through counsel, Mrs. Hesse has waived her claim for costs against Ms. Breaks and Ms. Clifford, costs to which she at least had a prima facie claim to recover. \t seems to. me unnecessary to award costs of this application to
7/8
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the executor because It appears to me that he was obliged to respond to the application and did so, and I assume that he will be able to recover his proper costs in the course of passing accounts.
[22] MR. TODD: Yes, that’s my point. So, My Lord, Breaks and Clifford do not endorse the order, just by –
[23] THE COURT: No, the order may be entered without approval as to form by Ms. Breaks or Ms. Clifford.
Trevor Todd and Jackson Todd have over sixty combined years of legal experience in handling contested estates and in particular handling claims for adult independent children and wills variance proceedings.
If there was any doubt that no other Province in Canada except for British Columbia allows an adult independent child to contest a disinheritance by an adult child’s parents for their breach of a moral obligation to provide for that child, the Ontario court of Appeal has stated NO, at least for Ontario, and I believe the decision would be followed everywhere in Canada except for BC.
The recent decision of Verch v Weckwerth 2014 ONCA 338 has confirmed that there is no moral obligation on a parent to provide for an adult independent child on the basis of a breach of moral authority to do so in Ontario, which is totally contrary to the law in British Columbia.
The Court even referred to the leading case in British Columbia, the Supreme Court of Canada decision in Tataryn v Tataryn (1994) 2 SCR 807 and refused to consider it as persuasive authority “as the BC Wills Variation statute knows no such counterpart in Ontario.”
For a detailed review of the law in BC relating to Wills Variation, please visit other innumerable articles and blogs on this website, including, but not restricted to:
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.
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.
S 60 of WESA allows the court to exercise its discretion re the claims of spouses and children against the assets of a deceased’s estate, on the basis that they were not adequately provided for in the estate.
The right to bring a Wills Variation claim is limited to common law or married spouses,and natural or adopted children, but no one else including step children, or if the child’s DNA does not match that of the deceased.
The Wills Variation criteria have been accumulated over almost 90 years of litigation and can be summed up from the two following cases, as to what the court wants to know in deciding a Wills Variation action:
In Clucas v. Clucas Estate, 25 E.T.R. (2d) 175, [1999] B.C.J. No. 436 (S.C.). Satanove, J. at para [12] says as follows:
Examples of circumstances which bring forth a moralduty on the part of a testator to recognize in his
Will the claims of adult children are:
1) a disability on the part of an adult child;
2) an assured expectation on the part of an adult child,
3) or an implied expectation on the part of an adult child, arising
from the abundance of the estate or from the adult
child’s treatment during the testator’s life time;
4) the present financial circumstances of the child;
5) the probable future difficulties of the child;
6) the size of the estate and other legitimate claims.
These principles were expanded upon in McBride v Voth, 2010 BCSC 443, in which Trevor Todd was winning plaintiff’s counsel.:
“A number of years ago, this Court identified circumstances that might support or negate a testator’s moral duty to recognize the claim of an adult child in the decision of Clucas v. Clucas Estate, 25 E.T.R. (2d) 175, [1999] B.C.J. No. 436 (S.C.). I would supplement that helpful summary with the following overview of six of the considerations that inform the existence and the strength of a testator’s moral duty to independent children. Although many of these factors were developed before Tataryn, for the most part they maintain relevance for the post-Tataryn court.
1. Contribution and expectation
[129] Contributions by the claimant to the accumulation of a testator’s assets with little in exchange, or providing other types of contribution or care to a testator will generally serve to strengthen the moral obligation, other things being equal. The contribution may also found a legal claim in unjust enrichment or quantum meruit: Tataryn; Re Sleno 78 D.L.R. (3d) 155, [1977] B.C.J. No. 140 (S.C.); Lee v. King Estate, [1975] B.C.J. No. 893 (S.C.); Harris v. Harris, [1980] B.C.J. No. 1417 (S.C.); Ryan v. Delahaye Estate, 2003 BCSC 1081 (CanLII), 2003 BCSC 1081, 2 E.T.R. (3d) 107 [Ryan]. Contributions made by a first spouse who predeceased the testator may support a moral obligation to the adult claimant children of that first marriage: Saugestad v. Saugestad, 2008 BCCA 38 (CanLII), 2008 BCCA 38, 77 B.C.L.R. (4th) 170; Waldman v. Blumes, 2009 BCSC 1012 (CanLII), 2009 BCSC 1012, 51 E.T.R. (3d) 253.
[130] A moral duty may arise where the testator’s conduct has created a bona fide expectation on the part of the plaintiff to receive a benefit which does not come about on death: Marsh v. Marsh Estate 19 E.T.R. (2d) 184, [1997] B.C.J. No. 1286 (S.C.); More v. More Estate, 2002 BCSC 920 (CanLII), 2002 BCSC 920, 46 E.T.R. (2d) 96.
2. Misconduct/Poor character
[131] Section 6(b) of the Act empowers the court to refuse variation to a person whose character or conduct, in the opinion of the court, disentitles him or her to relief. Such misconduct is measured as at the date of death, not subsequently, and must be directed at the testator. Generally speaking, the conduct must be relatively severe in order to justify disinheritance: Gieni v. Richardson Estate, [1995] B.C.J. No. 1227 (S.C.); Sammon v. Stabbler, 2000 BCSC 1048 (CanLII), 2000 BCSC 1048, 77 B.C.L.R. (3d) 283. A child who is a disappointment overall (Sawchuk v. MacKenzie Estate, 2000 BCCA 10 (CanLII), 2000 BCCA 10), is an “incompetent weakling” (Re Bailey Estate, reflex, [1972] 1 W.W.R. 99, 1971 CarswellBC 195 (S.C.)), or is unsuccessful in multiple business ventures and has a difficult time “fighting the battle of life” (Re Radcliffe, 2 B.C.L.R. 220, [1977] B.C.J. No. 1036 (S.C.)) was not considered to be sufficiently defective.
3. Estrangement/Neglect
[132] In the earlydevelopment 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 (CanLII), 2002 BCCA 94, 98 B.C.L.R. (3d) 389, Doucette v. Clarke, 2007 BCSC 1021 (CanLII), 2007 BCSC 1021, 35 E.T.R. (3d) 98 [Doucette];Tomlyn v. Kennedy, 2008 BCSC 331 (CanLII), 2008 BCSC 331, 38 E.T.R. (3d) 289; Wilson v. Watson, 2006 BCSC 53 (CanLII), 2006 BCSC 53, 21 E.T.R. (3d) 285; P.S.G. v G.G. Estate, 2005 BCSC 1855 (CanLII), 2005 BCSC 1855; Ryan.
4. Gifts and benefits made by the testator during lifetime
[133] Depending on the circumstances, a testator’s moral duty may be diminished or negated entirely where he or she has made inter vivos gifts to the claimant, or the claimant has received assets on the testator’s death outside the framework of the will. This includes benefits conferred by way of an inter vivos trust, outright gift and assets passing on death by operation of law such as joint tenancies, and by way of specific beneficiary designation of insurance proceeds, RRSPs, pension benefits, RIFs, and the like. On the same reasoning, if a testator has made pre-deathgifts to individuals other than the plaintiff, or has arranged his or her affairs to facilitate a passing of assets to such individuals outside the provisions of the will, the moral duty owed to the plaintiff may be intensified. See generally: Ryan; Higgins v. Wojciechowski Estate, [1992] B.C.J. No. 1398 (S.C.); Inch v. Battie, 2007 BCSC 1249 (CanLII), 2007 BCSC 1249, 36 E.T.R (3d) 79 [Inch].
5. Unequal treatment of children
[134] That an independent child has not been given the same provision under a will as the testator’s other child or children will not, of itself, necessarily establish a moral claim: ReLukie et al and Helgason et al., 72 D.L.R. (3d) 395, [1976] B.C.J. No. 1393 (C.A.); Price. On the other hand, in Vielbig v. Waterland Estate1995 CanLII 2544 (BC CA), (1995), 1 B.C.L.R. (3d) 76, 6 E.T.R. (2d) 1 (C.A.), the Court of Appeal held that equal treatment among independent adult children is prima facie fair from a moral duty standpoint. In Ryan, the court held that in the absence of relevant reasons for an unequal distribution, there is a reasonable expectation that adult children will share equally, even though no legal obligation requiring equal distribution exists. (para. 67). The emerging rule of thumb to the effect that equal apportionment among children prima facie discharges a testator’s moral duty was applied in Inch. There, the court held that an equal distribution was prima facie fair, despite the fact that one child received significant assets by way of inter vivos transfers. The proposition was recently revisited by the Court of Appeal in Doucette. In that case, the Court of Appeal appeared to have no difficulty with the disinheritance of one of the preferred beneficiaries by allocating her nothing out of the estate in light of the generous gifts that she had received outside the will via jointly held assets.
6. Testator’s reasons for disinheritance/Subordinate benefit
[135] The approach to be taken by the court in relation to a testator’s reasons for disinheriting or providing a modest benefit only to a child starts with consideration of the Court of Appeal decision in Bell v. RoyEstate 1993 CanLII 1262 (BC CA), (1993), 75 B.C.L.R. (2d) 213, 48 E.T.R. 209 (C.A.) [Bell]. In Bell, the testator left a will under which she bequeathed a small gift to one adult son, nothing to her adult daughter, and left the lion’s share of her estate to her other adult son. Contemporaneously with making her will, the testator wrote a separate letter purporting to explain the unequal treatment of her children, and in particular the disinheritance of her daughter. The trial judge concluded that the reasons offered by the testator for disinheriting her daughter were accurate and sufficient to support the will. Accordingly, variation of the will was refused. The Court of Appeal’s dismissal of the daughter’s appeal came before the Supreme Court of Canada issued its decision in Tataryn.
The original plan for WESA was to restrict the right of an independent adult child to bring a claim against his or her parents estate on the basis that he or she will was not adequately provided for.
A great deal of discussion took place in or about 2006-2007 and disinherited.com lead the fight against this proposed restriction to the rights of disinherited adults to bring a claim under the wills variation act.
I am pleased to report that the act was substantially left in its entirety with only very minor changes such as a plaintiff must commence a court action under the act within 180 days of the grant of probate, rather than six months.
Here is the current statement of the new section 60 which is almost identical to the former section 2 of the wills variation act , except for the removal of the words “in its discretion ” ( the Courts), which really should have no substantial effect on the judicial interpretation of of section.
There are several in depth articles on the Wills Variation act, all dated November 13,2013 that the reader should visit for the details of the act.
Included is the written submission to the Attorney general back in late 2006
In a nutshell only spouses, both legal and common law, as well as natural and adopted children have the right to contest a will under the Wills Variation act, even if the step child was raised by the deceased, but not adopted.
SECTION 60 WESA
Maintenance from estate
60 Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order.that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.
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.
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.
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
