Gift to Witness to Will Cured By S 43 WESA

Gift to Witness to Will Cured By S 43 WESA

Bach Estate 2017 BCSC 548  cured a gift to witness to will to be valid   when prior to WESA  on March 31, 2014 it would  have been invalid.

One of the witnesses to the will was the husband of the deceased and a beneficiary under her will.

The Court followed the reasoning of previous decisions made under S 58 WESA to cure defective wills  and allowed extrinsic evidence to be introduced to show the true testamentary intention of the testator.


(2) A person may witness a will even though he or she may receive a gift under it, but the gift may be void under section 43 [gifts to witnesses].

(3) A will is not invalid only because a witness was, at the time the will was signed by the will-maker, or afterwards became, legally incapable of proving the will, unless the witness was not 19 years of age or older at the time the will was signed by the will-maker.

47      The document signed by Mr. Bach on September 9 meets the requirements of ss. 37(1) and 40 and is therefore a valid will under the WESA. This act revoked all prior wills created by Mr. Bach: s.55 WESA.

48      The difficulty arises from s. 43(1):

43(1)  WESA states:

Unless a court otherwise declares under subsection (4), a gift in a will is void if it is to

(a) a witness to the will-maker’s signature or to the spouse of that witness,

(b) a person signing the will by the will-maker’s direction, or the spouse of the person signing, or

(c) a person claiming under a person, other than the will-maker, referred to in paragraph (a) or (b).

49      One of the witnesses to this will was Mr. Thibodeau, the husband of the beneficiary under the will.

50      Prior to 2014, the law was clear: the court had no discretion to allow for such gifts: see Estate of Jason M. Bird, 2002 BCSC 1584. This rule operated as a safeguard against fraud and undue influence, however, the rigid application often defeat the genuine intention of the testator. Under the rule, the gift to Ms. Thibodeau would have failed.

51      However, on March 31, 2014, WESA came into force. Under this new legislation, gifts made in these circumstances are still presumptively void however, the court now has the discretion to declare them valid under s. 43(4):

(4) On application, the court may declare that a gift to a person referred to in subsection (1) is not void and is to take effect, if the court is satisfied that the will-maker intended to make the gift to the person even though the person or his or her spouse was a witness to the will.

52      I am not aware of any case in British Columbia in which this provision has been applied. I find however, that recent jurisprudence under s. 58 of the WESA (concerning court-ordered curing of formally deficient wills) that relates to testamentary intent instructive.

53      For example, in Yaremkewich Estate (Re), 2015 BCSC 1124, Watchuk J. considered s. 58 and the concept of testamentary intent. She stated:

[29] WESA, which came into effect on March 31, 2014, contains a new provision in s. 58 that even if a document fails to comply with the formalities of the statute, a court may nonetheless order that the document is fully effective as if it had complied with the statute.

The provision reads as follows:

Court order curing deficiencies

58(1) In this section, “record” includes data that

(a) is recorded or stored electronically,

(b) can be read by a person, and

(c) is capable of reproduction in a visible form.

(2) On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents

(a) the testamentary intentions of a deceased person,

(b) the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or

(c) the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.

(3) Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made

(a) as the will or part of the will of the deceased person,

(b) as a revocation, alteration or revival of a will of the deceased person, or

(c) as the testamentary intention of the deceased person.

(4) If an alteration to a will makes a word or provision illegible and the court is satisfied that the alteration was not made in accordance with this Act, the court may reinstate the original word or provision if there is evidence to establish what the original word or provision was.

[30] Accordingly, s. 58(3)(a) empowers the court to order that a document or other record is fully effective as the will of a deceased person if the court is satisfied that the document represents the testamentary intentions of that deceased person.

[Emphasis added.]

54      The same inquiry is relevant under s. 43(4). Watchuk J. continued:


[31] As a preliminary matter, the statements that Ms. Yaremkewich made to the various affiants and the other evidence of her intention in the affidavits are admissible evidence in this case.

[32] The approach to evidence under Manitoba’s Wills Act, R.S.M. 1988, c. W-150 was summarized by Philp, J.A. in Langseth Estate v. Gardiner (1990), 75 D.L.R. (4th) 25 at 33 (Man. C.A.)

The general rule that extrinsic evidence is not admissible in construing a will (the function of a court of construction) does not apply to the probate court whose duty is to determine whether a document is a valid will. Extrinsic evidence is admissible on the question of testamentary intent, and the Court is not limited to the evidence that an inspection of the document provides.

Testamentary Intent

[33] The s. 58 curative provision was well summarized in Estate of Young, 2015 BCSC 182 [Young]. This provision is one of WESA‘s “most far-reaching remedial provisions”, and it represents a marked departure from the traditional, formalistic approach to the creation of wills (at para. 16). It confers the court with a broad discretion to treat a testamentary record as valid even if it does not comply with the formalities of the statute. However, this provision can only be used to cure errors concerning formalities, and cannot cure substantive errors such as testamentary incapacity or undue influence (at para. 17).

[34] To apply s. 58, the applicant must prove on the balance of probabilities that the record at issue is authentic and that it represents the testamentary intentions of the will-maker: Young at paras. 19, 36; and Bunn Estate (Re) (1992) 100 Sask. R. 231 at 237 (C.A.) [Bunn Estate]. This analysis asks whether the court is satisfied that the document records the will-maker’s deliberate or fixed and final expression of intention as to the disposal of her property upon death. This was summarized in Young as follows:

[34] As is apparent from the foregoing, a determination of whether to exercise the court’s curative power with respect to a non-compliant document is inevitably and intensely fact-sensitive. Two principal issues for consideration emerge from the post-1995 Manitoba authorities. The first in an obvious threshold issue: is the document authentic? The second, and core, issue is whether the non-compliant document represents the deceased’s testamentary intentions, as that concept was explained in George.

[35] In George the court confirmed that testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death. The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death. A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a will, by its nature, is revocable until the death of its maker. Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.

[Emphasis added.]

55      The question, then, is whether the gift expresses the testamentary intentions of Mr. Bach, despite the fact that the will was witnessed by the spouse of Sharon Thibodeau. Extrinsic evidence is admissible.

56      Here, there is the evidence from Ms. Veres: she deposed that when she visited Mr. Bach in August, 2014, he made no mention of intending to change his will. He was frustrated in his efforts to sell the house and said to her in this regard: “you would just have to deal with selling the house yourself”.

57      I note that if a person chooses to exclude a relative from her or his will, it is human not to mention it. The statement he apparently made, however, implies that he was not intending to change his will.

58      But the evidence to the contrary is overwhelming. First, Ms. Thibodeau deposed that on July 17, 2014 the deceased told her that he intended to change his will.

59      Her affidavit goes on:

  1. We were sitting in Terry’s house, and Terry started a conversation with me and said he was going to change his Will, and that he wanted to leave everything to me, including his house. He said that I had always been there for him, and I had been so good to him all his life. He said that he did not know what he would have done without me. Terry said, “why should Jamie have my house?”, and that he had worked hard for it.
  2. Terry stated that Jamie [Veres] has a farm and all that land, she doesn’t need it. He further stated that Jamie had always told him that she did not want the house.
  3. Terry told me he was going to call Jamie and let her let her know that he was going to change his Will. I have no knowledge as to whether Terry told Jamie that he intended to change his Will or not; I never questioned him about that at any time.

60      Furthermore, as outlined above, Mr. Bach advised his friend Wendy Boyes that he was leaving all of his estate to his sister Sharon. He told her that on August 9, 2014. On September 2, 2014 he told his sister, Diane Vanderburg, that he wished to leave all of his estate to Ms. Thibodeau.

61      Dr. Willms’ evidence in this regard is significant as well. She deposed that a document expressing Mr. Bach’s intention to leave his estate to his sister was signed. She said that it was read aloud to him and that he stated that he agreed with the contents of the document and that he understood that the document was intended to indicate his wishes for the estate.

62      Finally, there is the evidence of the last 24 hours of Mr. Bach’s life. The deceased had asked Ms. Thibodeau and her husband to take him to a notary for the purpose of making a new will and making other final arrangements. That included signing a power of attorney appointing Ms. Thibodeau as his attorney.

63      On all the evidence, I am satisfied that the document executed on September 9, 2014 amounts to a will and represents Mr. Bach’s testamentary intent. The gift is not void.

64      The application is therefore allowed.

Renewal of Wills Variation Claim Not Served In Time

Renewal of Wills Variation Claim Not Served In Time

Rodgers v Rodgers Estate 2017 BCSC 518 dealt with an application for a  renewal  court proceedings in a wills variation claim under S 61 WESA that states in 61 ( B) that the proceeding must be served on the executor of the will no later than 30 days after the expiry of the 180 days after the representation grant ( probate) has been issued.

The plaintiff also claimed other relief that was improperly pleaded and 30 days was granted to the plaintiff to bring on an application to amend the pleadings.

The Court in Rodgers stated with respect to the renewal of an action to effect service under s 61 WESA:

22      The court has no jurisdiction to hear the wills variation action if it is not commenced within 180 days from the date the representation grant is issued in British Columbia. The court does have discretion to grant leave to extend the time for service under s. 61(1)(b).

The deadline for service is no later than 30 days after the expiry of the 180 day period referred to in s. 61(1)(a).

23      Counsel for the executor equates the extension of the time for service of a wills variation notice of civil claim to an application for a renewal of a writ. This comparison makes logical sense to me given that, in both scenarios the notice of civil claim or writ expires if it is not served within the proscribed time period. 

24      When hearing an application for renewal of a writ the authorities rely on the test set out in Bearhead v. Moorhouse, (1977) 3 B.C.L.R. 81 (B.C.S.C.) aff’d (1978) 5 B.C.L.R. 380 (CA) (B.C.C.A.):

1. Was the application brought promptly?

2. Did the defendant have notice of the claim from sources other than the writ?

3. Has the defendant suffered prejudice?

4. Was the failure to serve the writ attributable to actions of the defendant? and

5. Was the plaintiff or solicitor at fault?

25      In Seeliger v. Eagle Ridge Hospital, 2007 BCCA 582, the British Columbia Court of Appeal said that it is inappropriate to have an in-depth review of the merits of the case on a renewal application but that the plaintiff is required to demonstrate that the pleadings disclose a cause of action.

If a defendant can make out a case that the action has no hope of success and is bound to fail, then the interest of justice support refusing application on those grounds.

The burden is on the defendant to prove that it is plain and obvious that the action has no merit and is bound to fail.

The Court granted an additional 30 days to serve the court process on the executor.

Conflict of Law: “Ordinarily Resident”

Conflict of Law: "Ordinarily Resident"

Cresswell v Cresswell Estate 2017 BCSC 178 dealt with a conflict of law situation and held that the jurisdiction of the BC court should be denied for a wills variation action and held that it should properly be filed under Alberta court jurisdiction as the deceased was found to be “ordinarily resident ” there.

The plaintiff was the surviving spouse who after marrying the deceased in Alberta in 1994 lived together there until buying a house in BC in 2014 that was registered in joint tenancy and which went to the surviving plaintiff after her death.

The deceased returned to Alberta in 2015 for cancer treatments and to live with family and remained there until her death in late 2016.

Her will provided that it would be interpreted as per the laws of Alberta.

Her will left everything to her three children who were all Alberta residents.

The court interpreted the Court Jurisdiction and Proceedings Transfer act and held that the deceased had a settled intention to ordinarily reside in Alberta when she moved there in November 2015, and that at the time of her death she had no real or substantial connection to BC.

The Court determined that Alberta was the proper jurisdiction for the case having regard to the interests of the parties and the ends justice, and declined to exercise BC jurisdiction in favour of Alberta.

Section 10(b) of the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003 c. 28 states as follows:

10  Without limiting the right of the plaintiff to prove other circumstances that constitute a real and substantial connection between British Columbia and the facts on which a proceeding is based, a real and substantial connection between British Columbia and those facts is presumed to exist if the proceeding

(b)  concerns the administration of the estate of a deceased person in relation to

(i)  immovable property in British Columbia of the deceased person, or

(ii)  movable property anywhere of the deceased person if at the time of death he or she was ordinarily resident in British Columbia

Section 11(1) states:

11  (1) After considering the interests of the parties to a proceeding and the ends of justice, a court may decline to exercise its territorial competence in the proceeding on the ground that a court of another state is a more appropriate forum in which to hear the proceeding.

(2)  A court, in deciding the question of whether it or a court outside British Columbia is the more appropriate forum in which to hear a proceeding, must consider the circumstances relevant to the proceeding, including

(a)  the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum,

(b)  the law to be applied to issues in the proceeding,

(c)  the desirability of avoiding multiplicity of legal proceedings,

(d)  the desirability of avoiding conflicting decisions in different courts,

(e)  the enforcement of an eventual judgment, and

(f)  the fair and efficient working of the Canadian legal system as a whole.

The term “ordinarily resident” has been interpreted by the Court in Blazek v. Blazek, 2009 BCSC 1693, at paras. 31-35:

[31]      Section 3 of the Act provides that the court has territorial competence in a proceeding if the person is “ordinarily resident in British Columbia at the time of the commencement of the proceedings.” Although the evidence is somewhat conflicting, it appears that at the time this action was commenced in 2007, the defendant split his time between the Czech Republic and Kelowna, British Columbia. There is a dispute between the parties regarding whether the amount of time the defendant spent in British Columbia was more or less than 150 days.

[32]      The meaning of “ordinarily resident” has been considered by the courts on many occasions. The authority often referred to is Thomson v. Minister of National Revenue, [1946] S.C.R. 209, [1946] C.T.C. 51, where Mr. Justice Estey stated:

A reference to the dictionary and judicial comments upon the meaning of these terms indicates that one is “ordinarily resident” in the place where in the settled routine of his life he regularly, normally or customarily lives. One “sojourns” at a place where he unusually, casually or intermittently visits or stays. In the former the element of permanence; in the latter that of the temporary predominates. The difference cannot be stated in precise and definite terms, but each case must be determined after all of the relevant factors are taken into consideration, but the foregoing indicates in a general way the essential difference. It is not the length of the visit or stay that determines the question. …

It is well established that a person may have more than one residence…

[33]      I am satisfied that the defendant resided in both places in 2007. I agree with the plaintiff’s position that “ordinarily resident” should be given a broad and liberal interpretation, in accordance with the provisions of the Act regarding corporations ordinarily resident in the province; “ordinarily resident” does not require a counting of days in which a party may spend in this jurisdiction. One can be ordinarily resident in more than one jurisdiction.

[34]      I am satisfied that the defendant was ordinarily resident in British Columbia. He was served with the writ of summons and statement of claim in this action at the Kelowna address and he was a director and officer of a company which listed the Kelowna address as the defendant’s address at the time the action was commenced. Further, the defendant files his income tax in Canada and receives a pension in Canada.

[35]      On this test, the court has territorial competence to hear the matter.

[27]         I am satisfied that the deceased had a settled intention to ordinarily reside in Alberta when she moved there on November 14, 2015 and took up residence at her sister’s home. It is clear from the evidence that she intended to remain in Alberta to be around her family and although some of her comments that were transcribed by the plaintiff are inconsistent where she said, on November 19, 2015:  “[t]hat’s sad hopefully I will be back there in a few months”, referring to Westbank, and on January 14, 2016: “One last thing I love you please remember that”. Those comments must be taken in context to her impending death. It is clear that she was applying for Alberta medical coverage, she changed her mailing address on her Edmonton Royal Bank chequing account to that of her sister, she had a will drawn up in Edmonton to be governed by the laws in Alberta, and it is clear from the telephone messages that she wished to sell the home in Westbank. Her contacting a lawyer and attempting to commence divorce proceedings shows her intention to separate from the plaintiff as was the January 9, 2016 text:  “You said you were here for me and you are a liar. I want you out.”

[28]         I am satisfied, based on all the evidence, that at the time of her death, the deceased was ordinarily resident in Alberta.

[29]         I am also satisfied that at the time of her death she did not have any real and substantial connections to British Columbia (s. 10 of the Court Jurisdiction and Proceedings Transfer Act).

[30]         The defendants also say that this court should decline to exercise its territorial competence in accordance with s. 11 of the Court Jurisdiction and Proceedings Transfer Act.

[31]         Section 11(1) states:

11  (1) After considering the interests of the parties to a proceeding and the ends of justice, a court may decline to exercise its territorial competence in the proceeding on the ground that a court of another state is a more appropriate forum in which to hear the proceeding.

(2)  A court, in deciding the question of whether it or a court outside British Columbia is the more appropriate forum in which to hear a proceeding, must consider the circumstances relevant to the proceeding, including

(a)  the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum,

(b)  the law to be applied to issues in the proceeding,

(c)  the desirability of avoiding multiplicity of legal proceedings,

(d)  the desirability of avoiding conflicting decisions in different courts,

(e)  the enforcement of an eventual judgment, and

(f)  the fair and efficient working of the Canadian legal system as a whole.

[32]         Here, I am satisfied that the evidence is overwhelming, that all of the defendants and all the evidence concerning the execution of the will, and deceased’s assets, are in Alberta, as are the witnesses. I am satisfied after considering the interests of the parties to this proceeding and the ends of justice that this court should decline to exercise its territorial competence as Alberta is the more appropriate forum in which to hear these proceedings.

Vancouver Estate lawyer and Contesting Wills under Wills Variance: The Estranged Child

Wills Variance and the Estranged Child

Trevor Todd , a Vancouver estate litigation lawyer has contested wills under  wills variance proceedings for 50 years.


J.R.v J.D.M. 2016 BCSC 2265 discusses in great detail the law and related facts of the case in a wills variance case brought by the  estranged child of the deceased.

No explanation was left by the deceased for the disinheritance other than the notaries notes that he had not seen his daughter for over ten years.

The daughter’s evidence that she had been sexually and emotionally abused by her father, together with his lack of financial contribution to her education and general welfare was accepted by the court.
As is often the case in estrangement cases that I have dealt with, the child left home at an early age (  15) . When this occurs it is  my experience that  it is done for valid reasons.
Any attempt by her in subsequent years to make amends with her father was rejected by him. The court accepted her evidence that there had been nothing positive or healthy in her relationship with her father and that she reasonably believed that her father had no genuine interest in making amends are pursuing any reconciliation.
Generally speaking in my experience, when children leave home at an early age and deliberately have little or no contact with either or both parents, there is usually a valid reason that amounts to the  fault on behalf of the parents to have caused the estrangement.
The court somewhat recognize such behavior and are receptive to the notion that the failure of a parent to financially contribute to a child support during his or her minority is a factor in assessing his or her moral claim for a variation of a parents will when the child has been disinherited.
The court found that any telephone calls between the daughter and the father were distressing and demeaning to the daughter. She was not invited to his second wedding but did attend his funeral.
The court found as a fact that it was the father’s mistreatment of his daughter and his voluntary abdication of his parental obligations that cause the fracture of the father daughter relationship. As such, the onus for repairing the relationship and seeking any form of reconciliation with his daughter rested squarely with the father and his moral duty to her was enhanced as a result of his blameworthy conduct.


[98]        When faced with a long period of estrangement as in this case, the court will  inquire into the role played by the testator. If the estrangement is largely the fault of the testator, it will likely not negate a testator’s moral duty to an adult child. McBride, at para. 132; Gray v. Nantel, 2002 BCCA 94 at paras. 17-21. The Court’s summary at para. 132 of McBride is of particular relevance to this case:

“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.

[123]     The comments of Donald J.A. in Gray in addressing the moral claim of an adult child in a WVA claim are apposite in this case:

“I cannot accept that a child so neglected for his first 18 years and then treated shabbily during a brief reconciliation can be said to forfeit the moral claims to a share in his father’s estate by abandoning any further effort to establish a relationship. The fault in this sad story lies with the father and, in my opinion, the onus to seek further reconciliation was on his shoulders. The testator gave the appellant virtually nothing in an emotional or material way; the will was his last opportunity to do right by his son.”

Wills Variation: Disinherited Adult Children vs. Second Spouse

Wills Variation: Court Criteria Between Disinherited Adult Children and Second Spouses

R. (J.) v M. (JD) 2016 BCSC 2265 summarized the court criteria will consider when deciding the competing moral claim of a disinherited  adult independent child  and a second spouse who inherited  the entire estate.

The adult child had been disinherited and had been estranged from her deceased father due to the actions of the father throughout the plaintiff’s life, which included sexual and emotional abuse, as well as a lack of financial or emotional support in her formative years.
There was no explanation for the disinheritance of the adult child in the will or any memorandum to the will.
The second spouse of eight years marriage received assets worth $1 million outside of the will and a lifetime pension of $36,360 per year.
The second spouse was also the residual beneficiary of an estate worth $775,000.
The court varied the will to give the adult child, a bequest of $250,000.
The court set out the criteria to be considered when both considering the moral obligation owed to an adult child as well is the criteria to be considered when dealing with a second spouse.


[82]         Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807, is the governing authority in British Columbia on the WVA. McLachlin J., as she then was, writing for the Court, articulated the relevant considerations and principles that animate the application of the WVA. The fundamental approach is anchored in her observation that “[t]he search is for contemporary justice”: Tataryn, at 815. The courts must read the WVA “in light of modern values and expectations” and “are not necessarily bound by the views and awards made in earlier times”: Tataryn, at 814-815.

[83]         The Court in Tataryn stated that the determination of whether a will makes adequate provision and, if not, what provision would be adequate, just and equitable, are “two sides of the same coin”: Tataryn, at 814.

[84]         The primary statutory objective of the WVA is the adequate, just, and equitable provision for a testator’s spouse and children. As identified in Tataryn, the other protected interest is testamentary autonomy. However, testamentary freedom must yield to the extent required to achieve adequate, just, and equitable provision for the applicant spouse and/or children. In that sense and to that degree only, testamentary autonomy will be curtailed by the application of the WVA: McBride v. Voth, 2010 BCSC 443 at para. 125. The Court of Appeal in Chan v. Lee (Estate), 2004 BCCA 644 at para. 43 affirmed that courts should not approach the WVA as a means “to right all the perceived wrongs of the past” or “to improve upon the degree of fairness of a will” if the testator has met his obligations under the WVA.

[85]         In addressing the adequacy of the testamentary provision, Madam Justice McLachlin clarified that the question of whether a testator has acted as a judicious parent or spouse is measured by an objective standard, assessed in light of current societal legal norms and moral norms. As outlined in Tataryn, legal norms are the obligations that the law would impose upon the testator during his or her life if the question of provision for a claimant’s spouse or child were to arise. A testator’s moral duties are grounded in “society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards”: Tataryn, at 820-821.

[86]         The concept of adequate provision is a flexible notion which turns on the particular circumstances of the case: Dunsdon v. Dunsdon, 2012 BCSC 1274, at para. 131. Tataryn expressly acknowledged that moral duties are more susceptible to being viewed differently by different people because there is no clear legal standard by which to judge such duties: Tataryn, at 822. However, the analysis in Tataryn underscores that the court must apply an approach that accords with a contemporary view of marital and parental obligations.

[87]         The Court in Tataryn recognized that the foregoing assessment necessarily involved the balancing of competing claims, and held that where the size of the estate permits, all moral and legal claims should be satisfied. Where prioritization is necessary, generally, claims that would have been recognized as legal obligations during a testator’s lifetime take precedence over moral claims. The court must also weigh the competing moral claims and assign each its priority according to their relative strength: Tataryn, at 823. The Court recognized that such an analysis would produce a range of options for the distribution of assets which might be considered appropriate in the circumstances. The court should only make an order to vary a will where the testator’s chosen distribution falls outside of this range.

[88]         The jurisprudence also establishes that in determining whether the will-maker has fulfilled his or her obligations, the court may consider gifts made outside the will. If a will-maker has made inter vivos gifts to individuals other than the claimant or has arranged his affairs to facilitate a passing of assets to such individuals outside the framework of the will, the moral duty to a claimant may be intensified: Wong v. Soo, 2015 BCSC 1741. Conversely and depending on the circumstances, a will-maker’s moral duty may be diminished or negated entirely where he or she has made gifts to a claimant either before death or in consequence of it: Dundson at para. 185; Doucette at para. 84.

[89]         The legislated scheme of intestate succession does not serve as a guidepost in determining whether adequate provision has been made under the WVA: Wilson at para. 379; Hall v. Korejwo, 2011 BCCA 355 at para. 46.

[90]         In reference to the moral claim of independent adult children, the Court in Tataryn observed that while they “may be more tenuous” than that of a spouse or dependent child, some provision for adult independent children should be made if the size of the estate permits and in the absence of circumstances that would negate the existence of such an obligation: Tataryn, at 822-823.

[91]         In Dunsdon Madam Justice Ballance conveniently summarized the considerations that inform the existence and strength of a testator’s moral duty to independent children:


  • relationship between the testator and claimant, including abandonment, neglect and estrangement by one or the other;
  • size of the estate;
  • contributions by the claimant;
  • reasonably held expectations of the claimant;
  • standard of living of the testator and claimant;
  • gifts and benefits made by the testator outside the will;
  • testator’s reasons for disinheriting;
  • financial need and other personal circumstances, including disability, of the claimant;
  • misconduct or poor character of the claimant;
  • competing claimants and other beneficiaries:

(See Clucas v. Clucas Estate, [1999] B.C.J. No. 436; McBride v. McBride Estate, 2010 BCSC 443; Yee v. Yu, 2010 BCSC 1464; Wilson v. Lougheed, 2010 BCSC 1868)

[92]         In assessing the strength of the legal and moral obligations owed by a testator to a second spouse, the court will consider factors such as:

(a)            The length of the marriage;

(b)            When and how the testator’s assets were acquired;

(c)            The contribution of the second spouse;

(d)            How family assets would be divided under the applicable family legislation upon marriage breakdown;

(e)            Competing obligations with the children from the first marriage;

(f)              Financial circumstances of the spouse;

(g)            The size of the estate; and

(h)            The magnitude of assets passing to the spouse outside of the estate in consequence of other pre-death transactions undertaken by the testator.

[See Wong v. Soo, 2015 BCSC 1741 at paras. 73-82; Saugestad v. Saugestad, 2006 BCSC 1839, varied on different grounds 2008 BCCA 38; Mawdsley v. Meshen, 2010 BCSC 1099, affirmed 2012 BCCA 91; Ciarniello v. James 2016 BCSC 1699]

BC Wills Variation: Severance of Court Actions

Severance of Court Actions Upheld On Appeal

The Court of Appeal in Johnston v Johnston Estate 2017 BCCA 59 upheld the trial decision found at 2016 BCSC 1388 where an action seeking that a will was invalid, or alternatively if it was valid it should be varied under the wills variation provisions , should be severed into two court actions, with the validity of the will to be determined firstly.

The Appeal Court expanded upon the reasons of the trial judge in  ordering a severance of the two claims as follows:

A discretionary decision of a lower court will be reversible where that court misdirected itself or came to a decision that is so clearly wrong that it amounts to an injustice: Elsom v. Elsom, [1989] 1 S.C.R. 1367, at p. 1375. Reversing a lower court’s discretionary decision is also appropriate where the lower court gives no or insufficient weight to relevant considerations: Friends of the Oldman River Society v. Canada . . . [At para. 27.]

(See also: Rise & Shine Grocery & Gas Ltd. v. Novak, 2016 BCCA 483 at paras. 36 — 37.)

43      The standard of review for discretionary decisions is one of deference.

44      As noted by the PGT, in addition to the court’s jurisdiction under Rule 22-5, it may temporarily stay a proceeding pursuant to its inherent jurisdiction or under s. 8(2) of the Law and Equity Act, R.S.B.C. 1996, c. 253, or both: Zurich Indemnity Co. of Canada v. Western Delta Lands Inc. (1997), 38 B.C.L.R. (3d) 273, 95 B.C.A.C. 165 at para. 14 (C.A.), leave to appeal to S.C.C. refused [1997] S.C.C.A. No. 469. In exercising its discretion to grant or deny a stay, the court must weigh the potential benefits and prejudice at play and fairly balance the parties’ competing interests.

45      The court’s jurisdiction under Rule 22-5, s. 8(2) of the Law and Equity Act, and its inherent jurisdiction are exceptions to the principle stated in s. 10 of the Law and Equity Act as to the general avoidance of multiplicity of legal proceedings “as far as possible”.

46      I would endorse the judge’s non-exclusive summary of the key considerations relevant to an application to sever and the general principles governing severance:

[68] The key factors engaged in a general sense on an application to sever were canvassed in Schaper v. Sears Canada, 2000 BCSC 1575[Schaper] at para. 19:

1. . . . the party making the request must show that hearing the claims together would unduly complicate, delay the hearing, or otherwise be inconvenient. If a party applying does not meet this threshold, the court need not go further in any analysis and the application should be dismissed.

2. Have the actions of any party in the proceeding been unreasonable and have they contributed to the complication, the delay, or the inconvenience alleged by the party applying? If this found [sic], that would strengthen the argument to sever.

3. Are the issues between the plaintiff and defendant and the issues between the defendant and the third party sufficiently distinct so as to allow them to be tried separately? If so, that strengthens the argument to sever off third party proceeding.

4. Is the relief claimed by, or the potential obligation of, any party best determined by hearing the evidence of all parties at one hearing? If so, that weakens an application to sever.

5. Does the prejudice to the party applying, prejudice based on undue complication, delay or inconvenience, outweigh any benefit of matters being heard together, or outweigh any considerations related to the overall objective of the rules to ensure a just, speedy and inexpensive determination of every proceeding on its merits, including the avoidance of a multiplicity of proceedings for the benefits of litigants and having concern to congestion in the courts generally?

[69] Guidelines that focused attention more keenly on the efficacy of the trial process were helpfully laid out in O’Mara v. Son, Kim et al., 2007 BCSC 871[O’Mara] at para. 23:

1. whether the order sought will create a saving in pre-trial procedures;

2. whether there will be a real reduction in the number of trial days taken up by the trial being heard at the same trial;

3. whether a party may be seriously inconvenienced by being required to attend a trial in which the party may have a marginal interest;

4. whether there will be a real saving in expert’s time and witness fees;

5. whether one of the actions is at a more advanced stage than the other;

6. whether the order sought will result in delay of the trial of any one of the actions and, if so, whether any prejudice which a party might suffer as a result of that delay outweighs the potential benefits which a consolidated trial might otherwise have;

7. the possibility of inconsistent findings and common issues resulting from separate trials.

[70] Severance may well be appropriate where the determination of one issue will render another one moot: Lawrence v. ICBC, 2001 BCSC 1530[Lawrence].

[71] The judicial discretion to sever trials or hearings is to be exercised sparingly: Morrison Knudsen Co. v. British Columbia Hydro & Power Authority, 1972 CarswellBC 62, 24 D.L.R. (3d) 579 (S.C.); Lawrence at para. 43. The test for severance is not applied in a vacuum; it is to be considered against the backdrop of the nature of the particular case at hand: Wirtz v. Constantini, 137 D.L.R. (3d) 393, 1982 CarswellBC 588 (S.C.). Because the determination involves an individualized assessment of the unique case before the Court, there is no closed list of uniformly applied considerations that inform the exercise of the Court’s discretion.

47      The judge also identified specific principles relevant to the nature of the case before her. In particular, she recognized limitations on the powers of a committee and on the nature of claims that can properly be included in a counterclaim to a proof of will in solemn form proceeding. Citing Re: Langford and The Patients Property Act, 2000 BCSC 721, she said:

[77] There is no question but that as the executor named in the Impugned Wills, the PGT is entitled to bring the Proof of Will Action. On the surface, s. 24 of the PPA suggests that in its capacity as committee of Norman’s estate, the PGT would have the authority to defend against the other claims. However, in Re: Langford and The Patients Property Act, 2000 BCSC 721 [Re: Langford], the Court reasoned that the legislature could not have intended to invest a committee with all of the powers of an executor or administrator such as obtaining title to the deceased’s assets or winding up and distributing the estate of the deceased patient. It held that because s. 24 expressly contemplates that probate or administration will be taken out after a patient’s death, it is intended to be operative only in the intervening period. In the result, Re: Langford held that s. 24 simply authorizes a committee of a deceased patient to maintain the status quo of the deceased patient’s estate during the hiatus period pending the issuance of letters probate or administration.

And as to Clark v. Nash, [1986] B.C.J. No. 1655, 39 A.C.W.S. (2d) 375 (S.C.), aff’d [1987] B.C.J. No. 304, 3 A.C.W.S. (3d) 412 (C.A.), the judge reasoned:

[83] . . . there is case authority that has placed some limitation on the nature of claims that can properly be included in a counterclaim to a proof of will in solemn form proceeding. In Clark v. Nash, [1986] B.C.J. No. 1655 (S.C.) aff’d [1987] B.C.J. No. 304 (C.A.) [Clark], the Court held that the procedure and hearing involved in a proof of will in solemn form proceeding should be limited to the aspects of the will execution, testamentary capacity, want of knowledge and fraud. The Court reasoned that a counterclaim to vary a will that is alleged to be invalid is therefore premature, and hearing it at the same time or before the action involving the proof of the challenged will is neither just nor convenient

[84] Since its pronouncement, Clark has stood for the general proposition that it is improper to include a wills variation claim in an action for proof of will in solemn form on the footing that a valid will is a condition precedent to a variation proceeding. Although I believe that, on occasion, this Court has heard such claims together (presumably without being taken to Clark), Clark nonetheless strengthens the application to sever, at least vis-a-vis David’s claim to have the Impugned Wills varied.

“Adopted Out” Child Cannot Contest Biological Parent’s Estate Under Wills Variation

"Adopted Out" Child Cannot Contest Biological Parent's Estate Under Wills Variation

Boer v Mikaloff Estate 2017 BCSC 21 confirmed that an “adopted out” child cannot contest the will of the biological parent’s estate under S.60 WESA (the wills variation provision) when it answered the following posed question negatively:

Does a child who is adopted by other parents after birth, but who is named as a beneficiary under his birth mother’s will, have standing to seek relief under section 60 of the Wills, Estate and Succession Act, S.B.C. 2009, c. 13?

4      For the reasons that follow, the answer to the question is no. The plaintiff’s claim will be dismissed.


6      The relevant statutory provisions are ss. 37(1) and (5) of the Adoption Act, R.S.B.C. 1996, c. 5, the definition of “enactment” in s. 1 of the Interpretation Act, R.S.B.C. 1996, c. 238 and s. 3 and s. 60 of WESA.

7      Subsections 37(1) and (5) of the Adoption Act read:

37 (1) When an adoption order is made,

(a) the child becomes the child of the adoptive parent,

(b) the adoptive parent becomes the parent of the child, and

(c) the parents cease to have any parental rights or obligations with respect to the child, except a parent who remains under subsection (2) a parent jointly with the adoptive parent.

. . .

(5) The family relationships of one person to another are to be determined in accordance with this section, unless this or another enactment specifically otherwise provides or distinguishes between persons related by birth and persons related by adoption.

8      Section 1 of the Interpretation Act defines “enactment”:

In this Act, or in an enactment: . . .

“enactment” means an Act or a regulation or a portion of an Act or regulation;

9      Sections 3 and 60 of WESA read:

3 (0.1) In this section, “pre-adoption parent” means a person who, before the adoption of a child, was the child’s parent.

(1) Subject to this section, if the relationship of parent and child arising from the adoption of a child must be established at any generation in order to determine succession under this Act, the relationship is to be determined in accordance with the Adoption Act respecting the effect of adoption.

(2) Subject to subsection (3), if a child is adopted,

(a) the child is not entitled to the estate of his or her pre-adoption parent except through the will of the pre-adoption parent, and

(b) a pre-adoption parent of the child is not entitled to the estate of the child except through the will of the child.

(3) Adoption of a child by the spouse of a pre-adoption parent does not terminate the relationship of parent and child between the child and the pre-adoption parent for purposes of succession under this Act.


17      Section 60 of WESA requires a will-maker to make adequate provision for the proper maintenance and support for the will-maker’s spouse and children that is adequate, just and equitable in the circumstances.

18      A “will-maker” is defined as “a person who makes a will”: s.1 of WESA.

19      A “spouse” is specifically defined for the purposes of WESA: ss. 1 and 2.

20      WESA does not define “child” or “children”.

21      Subsection 37(1) of the Adoption Act provides that when an adoption order is made, “the child becomes the child of the adoptive parent” and “the adoptive parent becomes the parent of the child”. Section 1 of the Adoption Act defines a “child” as “an unmarried person under 19 years of age”.

22      Our Court of Appeal in Clayton v. Markolefas, 2002 BCCA 435, addressed whether an adopted child was “issue” of her birth father enabling her to be entitled to a portion of her birth father’s intestate estate. The Court considered in detail, s. 37 of the Adoption Act as it then read. For the purpose of the case at bar, the changes to s. 37 of the Adoption Act at the time of Clayton and now are not significant.

23      Justice Esson (as he then was), stated:

[6] . . . — It will be seen that s. 37(1) [Adoption Act] retains the concept that upon the making of the adoption order the child becomes the child of the adoptive parent and the adoptive parent becomes the parent of that child. It goes on to provide, subject to an exception which has no application here, that the birth parents cease to have any parental rights or obligations with respect to the child.

[7] Section 37(1)(c) is, in my view, all-important in relation to the present issue. Because the birth parents cease to have any parental rights or obligations, it must follow that the child ceases to have any rights against the birth parents other than those defined in s. 37(6), i.e., rights which vested in the child before the date of the adoption order. The existence of s. 37(6) is inconsistent with a legislative intention to allow other rights of the child against the birth parent to survive the adoption order.

[8] Section 37(6) [should read 37(5)] of the new Act, which provides that the family relationships of one person to another are to be determined in accordance with s.37, also has a clear bearing on the present issue. The question whether a person is “issue” of another person is a matter of family relationships. The clear effect of s.37(1) is that the adoptive child becomes the child of the adoptive parent. From that it follows that all parental obligations fall upon the adoptive parents. It can therefore be said of the present provisions, as Seaton J.A. said of s. 11 of the former Act:

The thrust of these provisions is to move the child from one family to another family and make it a child of the new family and no longer a child of the old family.

Executor Can Waive Solicitor Client Privilege

Executor Can Waive Solicitor Client Privilege

Haas Estate v Jane Doe 2017 BCSC 12 confirmed that an executor( personal representative ) of an estate can waive any solicitor client privilege that existed prior to the deceased’s passing.

Mr. Haas died on February 15, 2016, leaving a will naming his only child, the plaintiff, Brigitte Marga Anne Stapleton, as his executor and sole beneficiary of his estate. 

2      Approximately four months before he died, Mr. Haas purchased an insurance contract for a premium of $100,000 and named the plaintiff as the beneficiary. However, approximately two months before his death, Mr. Haas changed the beneficiary designation on the insurance policy to a party or parties unknown  ( thus Jane Doe as a defendant). Around the same time, he consulted with a solicitor, Ms. Kirsten Okimaw, with regard to estate planning matters. No new will was prepared.

The application was whether the plaintiff was entitled to a copy of the solicitor’s file. The solicitor has thus far refused to turn over the file based upon advice she has received from a practise advisor with the Law Society of British Columbia that the file is or may be protected by solicitor-client privilege 

s. 142(1) of the Wills, Estates and Succession Act, which states :

142(1) A personal representative has the same authority over the estate in respect of which the personal representative is appointed as the deceased person would have if living, subject to

(a) a contrary intention appearing in the will of the deceased person, and

(b) this or any other enactment. 

15      The “wills exception” cases are those where the solicitor who took instructions and drafted the will was required to give evidence regarding communications and instructions between solicitor and client where the execution, contents or validity of the will were in issue, despite there being no waiver of privilege. The plaintiff refers to authorities where the wills exception has been expanded to include analogous transactions such as the creation of a trust (Geffen v. Goodman Estate, [1991] 2 S.C.R. 353), and production of an estate planning file where the deceased had transferred two pieces of property prior to his death (Kreeft v. Kreeft Estate, September 18, 2006, Kelowna Registry No. S64537). Courts have drawn a distinction between those cases where production of a solicitor’s file is sought to aid in the determination of the validity or interpretation of the will on one hand and an attempt to attack or vary the will where the intentions are clear and manifest on the face of the will on the other. 

24      One case which addressed the question directly was Hicks Estate v. Hicks, [1987] O.J. No. 1426. The parties to the action were relatives of the deceased, and at issue in the claim was whether certain transfers of property were valid. The plaintiff was the personal representative of the deceased who brought an application for production of the files of the deceased’s former solicitors. Stortini D.C.J. stated the issue succinctly at para. 12:

The privilege can be waived or lost by the client. In our case the client is dead. Who, therefore, is the repository of the privilege?

25      He then went on to answer his own question as follows at para. 15:

15. It is clear, therefore, that the privilege reposes in the personal representative of the deceased client who in this case is the plaintiff, the administrator of the estate of Mildred Hicks. The plaintiff can waive the privilege and call for disclosure of any material that the client, if living, would have been entitled to from the two solicitors.

26      A British Columbia case that addressed the rights of a personal representative to waive privilege is Romans Estate v. Tassone, 2009 BCSC 194, which involved the estate of an elderly man who shortly before his death transferred two assets to a friend and named his much younger caregiver as the executor and sole beneficiary in his will. The executor commenced an action against the deceased’s friend to set aside the conveyances and an applied for production of the conveyancing solicitor’s files. The named executor had not been granted probate as at the date of the application and her entitlement to probate was in dispute. The deceased’s former solicitor asserted privilege over the conveyance files. Savage J. held that the solicitor had properly refused to disclose the files and that it was appropriate that the executor prove her authority by producing letters of probate first. At para. 40, Savage J. held the following:

40. The authorities in my view make several matters clear: (1) an action can be commenced without obtaining probate, as an executor’s authority is based on the will, (2) before proceeding with an action already commenced, the parties to an action may require that the Plaintiff prove their authority by producing letters probate, (3) the court may require that a Plaintiff prove their authority, by producing letters probate, of its own motion, when appropriate and (4) the court may order a stay of proceedings any time after the commencement of an action where it is in the interests of justice to do so, pending the issuance of letters probate.

27      While the question does not appear to have been a matter of dispute, Savage J. at para. 41, confirmed that the solicitor-client privilege vests in the personal representative

BC Wills Variation: Executor Added After Expiration of Limitation Date

Executor Added After Expiration of Wills Variation Limitation
 Under the provisions of section 60 WESA, an action under the wills variation provisions must be commenced within 180 days of the grant of probate or the action is statute barred.
In the 1987 decision Cowan v Cowan 17 BCLR ( 2d) 114, the plaintiff commenced an action (by an endorsed writ that existed then but no longer exists), under what was then known as the Wills Variation act, naming the defendant as a beneficiary but failing to name the executor as required by the rules of court.
The court ordered that the executor may be named as a party, despite the fact that the expiration of the limitation period under the wills variation act had expired, holding that the defect amounted only to an irregularity and not a nullity.
The court added the executor as a proper party to the action pursuant to what was then Rule 15(5) (A) (11) and section 4( (1) (A) of the Limitation act, which required that the new party be connected with the subject matter of the original action.
The court found that there was no prejudice to the executor, since he had in fact been served with the cause of action in his capacity as a beneficiary within the 180 day limitation, and the plaintiff had attempted to add the executor as a party in a timely fashion.
The court held that rule 8 (14) meant that all beneficiaries as well as the executor must be named as parties to the proceeding, and where such an individual as an executor is a party to an action in a representative capacity, that capacity should appear in the style of cause. If it is not, then the writ is a regular Raj Kour v Chan (1958) 27 WWR 191 AT 192.

The plaintiff must show that:

1) the person ought to of the named as a party, or b) the parties participation in the proceeding is necessary to ensure that all matters in the proceeding may be effectually adjudicated upon (Ent.. Realty v  Barnes Lake Cattle  Co. (1979) 13 BCLR 293 ( CA).
The court provided the following reasons for concluding that in these particular circumstances that the executor could be added as a party, despite the fact the   180 day limitation period ( then 6 months)  had expired:

20 (a) by R. 8(14) he must be a party;

21 (b) the Wills Variation Act claim was begun within the six-month period;

22 (c) the executor, while not named, was in fact served with the writ;

23 (d) it is clear from the endorsement that the claim is under the Wills Variation Act — not a personal claim against Mr. Cowan;

24 (e) there can be no prejudice to the defendant/beneficiary or executor in this case. There can be no more difficulty with old witnesses and poor memories than if the executor were named in the original writ;

25 (f) the purpose of limitation period under the Wills Variation Act is to enable the executor to distribute funds without fear of a claim being advanced after six months. In this case the beneficiary/executor was served with the writ within six months and there has been no prejudice in that regard;

26 (g) the position of executor, in a Wills Variation Act claim, is one of neutrality. He is to assist the court: Re McCarthy, [1919] N.Z.L.R. 807 (S.C.); Cookv. Webb, [1918] N.Z.L.R. 664. Thus his addition is not prejudicial;

27 (h) refusing to add the executor would not be in accordance with R. 2(1), which states that failure to comply with the rules (R. 8(14)) should be treated as an irregularity not a nullity.

Wills Variation and Long Marriages

Wills Variation and Long Marriages

Ciarniello v James 2016 BCSC 1699 is a good example on how the court treats the division of estate assets  at the end of  long marriages when the survivor brings a wills variation action on the basis that she was not adequately provided for in her late husband’s estate.

The parties were together 39 years and had two children of their 28 year old marriage. It was a second marriage for both.

The deceased husband also had three children from a previous marriage.

The testator died at age 80 years and held assets in his name of about $11.3 million dollars.

His surviving spouse was aged 62 and owned about $7.2 million of her own assets but was essentially “land rich and cash poor” and was draining her saving each month to get by.

There was  evidence as to the valuations of each parties assets.

His will left his estate equally to his five children, other than his half in the family home which he left to the plaintiff.

there was evidence that the deceased sought and relied upon an estate plan but the court found that the plan was outside what was reasonable for the  long time spouse.

The court varied the will by % 25 of the residue to the surviving spouse plus the deceased’s  %10 interest in a privately  owned company and the remaining %75 to  be divided equally amongst the five children.

The court reasoned that the plaintiff was entitled in a notional separation had it occurred immediately prior to the testator’s death, and concluded that the deceased did not make adequate provision for his surviving spouse, and thus the variance. The notional separation defines the minimum acceptable level of what is adequate, just and equitable.

Under the will, the plaintiff did not receive one half of the family property and the testator clearly did not discharge his legal duty to her.

The Court:

[73]         The legal entitlement of the spouse immediately before the death of the testator is the relevant time, that is, the time of the notional separation, to determine the extent of the testator’s legal duty.

[74]         As Dr. Ciarniello died on April 28, 2013, the Family Law Act, S.B.C. 2011, c. 25, should govern the analysis. Given the provision of the Divorce Act and the Family Law Act, I think that the plaintiff at a time just prior to the death of the testator would likely be entitled to an equal division of family property. While I doubt that a family law analysis would have resulted in an order for spousal support, given the condition of the testator at that time, the deceased’s legal obligation would be to provide 50% of the family property.

[75]         Assuming a notional separation of the parties immediately before death, I find the relevant values at that time for the net assets of the plaintiff were $7,194,980 and for Dr. Ciarniello’s holdings $11,342,597. I have accepted the valuations in the plaintiff’s chart I set out above. I have considered the minority interest in Nicoson at the mid-point between the two valuations.