What Makes It a Will?

Special costs unfair

Quinn Estate v Rydland 2019 BCCA 91 visited the old Chestnut Bennett v Toronto General Trusts to set out the bottom line of what makes a document a will.

Section 58 of WESA enables a court to give testamentary effect to documents that were intended to be testamentary. It does not enable a court to give testamentary effect to a document that the will maker never intended would be a will. It is clear on the evidence that the Trust was never intended by the Deceased to be a will, or a testamentary document of any kind.

69. The best evidence of whether a writing was intended to be a testamentary act is the document itself: Bennett v. Toronto General Trusts Corp., 9 D.L.R. (2d) 271 (MBCA) at 375, aff’d [1958] S.C.R. 392 [“Bennett’]. In that case the court of appeal gave significant weight to the fact that the letter in issue did not purport to be a will. Similarly, the Trust was and is a revocable, amendable inter vivos trust that reserved for the will maker the ability to change his testamentary dispositions at any time without complying with the formalities.

The facts in Bennett v Toronto General Trusts revolved around whether the following letter amounted to a halograph will or not.

The Court held that it did not- some of the case’s passages are :

There is no controversy, either in the reasons for judgment in the Courts below, or between the parties, that under the authorities, a holographic paper is not testamentary unless it contains a deliberate or fixed and final expression of intention as to the disposal of property upon death, and that it is incumbent upon the party setting up the paper as testamentary to show, by the contents of the paper itself or by extrinsic evidence, that the paper is of that character and nature: Whyte et al. v. Pollok2; Godman v. Godman3; Theakston v. Marson4.

6 Whether the letter of September 27, 1952, contains per se a deliberate or fixed and final expression of intention must be determined by the phrases immediately preceding and following the intermediate part of the letter where the wishes of Mrs. Gray are expressed; for, read as a whole, the letter has one single subject-matter, indicated as follows by Mrs. Gray: “I Promised to let you know how I would like my will to be made out.”

7 In the opening and closing phrases of the letter, Mrs. Gray conveys to Mr. Dysart sentiments of unreserved trust, reliance and dependence. Born, as admittedly shown by extrinsic evidence, out of an intimate relationship of many years between Mr. Dysart, on the one hand, and Mr. and Mrs. Gray and their children, on the other, these sentiments were those accompanying the mind of Mrs. Gray when, after expressing them, she wrote: “I will try to outline the way I would like to leave the little I have.” And having done so, she closed the letter by informing Mr. Dysart that she would be in Winnipeg in a few days and that she would call him.

8 I am unable to dismiss the view I formed that, read as a whole and according to its ordinary and natural sense, this letter amounts to nothing more than what is a preliminary to a will. While Mrs. Gray indicated to Mr. Dysart the legacies she then contemplated her will to contain, it is clear, in my view, that she did not want that letter to operate as a will. Indeed, by her letter, she is committing to future consultation with Mr. Dysart both the finality of her decisions, if not of her deliberations, and that of the form in which they should eventually be expressed in a regular will, the preparation of which is entrusted to Mr. Dysart himself. If this interpretation properly attends the document, the letter has not per se, and cannot acquire without more, a testamentary nature, and the proposition stated in Godman v. Godman, supra, at p. 271, “that a document which is in terms and instruction for a more formal document may be admitted to probate if it is clear that it contains a record of the deliberate and final expression of the testator’s wishes with regard to his property

Wills Drafting: The Myth of the “Simple Will”

Wills Drafting- The Myth of the “Simple Will” _ Disinherited

It must be stressed that any document that has consequences as permanent and far-reaching as a Will can never be “simple.”

Even a straightforward Will can be fraught with drafting problems and potential liability.

A Will speaks from death and cannot be altered after death. Thus Wills can be viewed as potential
“time bombs” of liability. Although sections 58 and 59 of the Wills, Estates and Succession Act now allow an opportunity to correct errors, to confirm what the testator really meant, to fill in the gaps, or to modify the ambiguous, a small drafting error can create an ambiguity that may take years to resolve in the Courts.

A Will is a very personal document, quite literally, a testator’s last word about how his or her
estate is to be disposed of. The only constraints on the testator’s wishes are public policy and the law. If neitheris contravened, the testator can make almost any type of Will.

Duties of the Wills-Drafter

The Wills practitioner has several important duties, including the following.

1. Spending sufficient time to properly canvass with the client his or her instructions, and then understanding those instructions precisely after giving appropriate advice with respect to same

2. Translating the instructions into testamentary provisions that are valid and clearly express the testator’s intentions

3. Gathering all the information required to properly prepare the Will and to give effect to the testator’s wishes

4. Taking into account other documents to which the testator is a party, such as those dealing with assets that pass outside of the estate, and applying legal principles that may affect the provisions of the Will

Simply put, it is the Wills practitioner’s duty to ask the right questions and draft the Will properly in accordance with the client’s instructions.

Fees

1. Fees should be based on the practitioner’s actual time and not the supposed “going rate.”

2. The practitioner should explain to the client the amount of time it properly takes to prepare a Will, the amount of expertise required for same, the risk of liability, and the value of the assets that are being dealt. That will help persuade the client that the cost may be higher than he or she wishes to pay, but that it is still good value in the “big picture” of things. It should be stressed that the Will is dealing with the client’s lifetime accumulated assets.

3. If the client is unwilling to pay, then it is open to the practitioner to refuse to do the work.

4. If the practitioner accepts the work, he or she accepts the responsibility of doing it properly and promptly.

Getting the Necessary Information From The Client

Clients frequently attend at the Will- drafter’s office with firm instructions about how they want to dispose of their estates. It is the Will-drafter’s duty to properly examine and scrutinize such instructions because many of them may be neither practical nor advantageous to the interest of the estate or to the beneficiaries. The Will-drafter must educate the client and explain to him or her the nature and consequences of the proposed testamentary provisions.

It is not uncommon for the client’s initial instructions to be flawed. Clients often have firm opinions as to what they want to achieve with their Will that are often simply not practical, or even possible, and would almost certainly end in litigation. It is the job of the drafting practitioner to provide proper objective counsel in this regard.

To get the correct information, the practitioner must ask the right questions. The Will practitioner can simply never have too much information to give proper advice.

The bottom line is there is a duty on the Will-drafter to carry out the client’s instructions as closely as possible, but there is an equally important duty to make sure that clients understand they should not necessarily do what they want to do, and if they insist after proper advice, they must accept and approve the consequences.

Probing the Client’s Mind

I would be remiss in any discussion regarding the taking of Will instructions, especially from the elderly and frail, not to start with a wise quote from Chalmers v. Uzelac 2004 BCCA 533.

1. Every solicitor who, as part of his or her practice draws Wills, should read, mark and inwardly digest at least once each year the judgment of Sir John Alexander Boyd, C. in Murphy v. Lamphier (1914), 31 O.L.R. 287, the Canadian locus classicus on a solicitor’s duty in taking instructions, especially at pages 318-321.

2. That duty is owed not only to those who might, or ought to be, objects of the testator’s bounty but also to the testator, for only the solicitor can be the testator’s voice from the grave; the solicitor discharges that duty by making proper inquiries of the testator at the time of the making of the will and by taking and preserving proper notes of the responses and of any observations relevant both to capacity and to knowledge and approval of the contents of the will. The reason for the latter obligation ought to be obvious but, lest it is not, I state it: How can a judge put confidence in the testimony of a solicitor who says, years (here 9) after taking instructions, but keeping no notes of those instructions, that the testator said this or that as the reason for changing an earlier will?

In Murphy v. Lamphier, as cited in the Chalmers case, the duty of a lawyer taking Will instructions was discussed as follows.

It is an error to suppose that, because a person can understand a question put to him and give a rational answer, he is of sound mind and capable of making a Will: the competency of the mind must be judged by the nature of the act to be done, and from a consideration of all the circumstances of the case.

The grand criterion by which to judge, whether the mind is injured or destroyed, is to ascertain the state of the memory. Memory affords all the materials on which to exercise judgment and to arrive at a conclusion or resolution.

In the case of a person enfeebled by old age or with faculties impaired by disease, and particularly in the case of one labouring under both disabilities, a solicitor called in to prepare a Will does not discharge his duty by simply taking down and giving expression to the words of the client, without being satisfied by all available means that testable capacity exists and is being freely and intelligently exercised in the disposition of the property; and, in dealing with a person needing protection and advice, it is important for the solicitor to find out if there be a former Will, and its nature, with a view of getting at the reasons for any variations or changes therefrom, if such changes be contemplated.

The notes of haste, stealth, and contrivance attached to this transaction, and were not removed by the evidence.

The duty was similarly described by Kroft J. in Friesen v. Friesen Estate (1985) 33 Man.R. (2d) (Q.B.) at para 77, as follows.

6. The duty upon a solicitor taking instructions for a Will is always a heavy one. When the client is weak and ill, and particularly when the solicitor knows that he is revoking an existing Will, the responsibility will be particularly onerous.

7. A solicitor cannot discharge his duty by asking perfunctory questions, getting apparently rational answers, and then simply recording in legal form the words expressed by the client. He must first satisfy himself by a personal inquiry that true testamentary capacity exists, that the instructions are freely given, and that the effect of the Will is understood.

Sample Organizational Chart for a Will

One tried-and-true technique of Will-drafting is to break the Will down into its basic components, to demystify the task at hand. Here is a sample of how most Wills can be broken down.

Part One: Initial Matters

(A) Revocation of prior Wills

(B) Appointment of executor and trustee

(C) Appointment of alternate executor and trustee

(D) Appointment of guardian, if applicable

Part Two: Disposition of Estate

(A) Vest property in trustee

(B) Payment of debts, testamentary expenses

(C) Disposition to beneficiaries

(a) Specific bequests
(b) Legacies
(c) Residue
(d) Alternative gift(s) of residue

Part Three: Administration of Estate

Powers of Executor/Trustee
(1) Power of sale or conversion

(2)  Trust for minors

(3)  Payment for minors

(4)  Investment powers

(5)  Power of distribution in specie

(6)  Power to carry on business and other powers that may be necessary or appropriate

Part Four: Closing Matters

Miscellaneous provisions, for example

(1) Charging clause
(2) Funeral wishes

Remember that the client must “know and approve the contents” of the Will. So that can be achieved, 5. the goal should be to draft a Will the client may read and understand for him or herself. The use of a logical arrangement of paragraphs and clauses such as displayed in the above-noted organizational chart will assist the client in that endeavour. The use of headings and definitions and the numbering of paragraphs and clauses will also assist in that regard. Bearing 6. in mind the aging population, using a reasonably large font is advisable.

It should be noted that words used in a Will are given their ordinary meaning by the Courts. Also, a judge should consider only the Will and the facts and circumstances known to the client at the time the Will was made to determine the client’s testamentary wishes.

Style of Drafting: 20 Dos and Don’ts

1. Strive for simplicity without sacrificing precision.

2. Be brief without sacrificing comprehensiveness.

3. Be consistent in the use of tense and the use of terms. All of the clauses to be used must then be looked at together to ensure a uniform drafting style throughout. The Will created must not look like a patchwork quilt of style and language as this could lead to interpretation problems and possible negligence claims.

4. Use modern plain language rather than verbose and archaic expressions. For many years now, there has been a movement toward the use of plain language to replace legalese and bureaucratic writing. Plain language is straightforward prose, carefully written with the needs of its primary readers in mind. Strive to make your average sentence length shorter and to simplify your sentence structure.

5. Eliminate redundant words and phrases. Will-draftspersons have the tendency to use couplets and triplets when one word carries the intended meaning. For example the words “nominate, constitute, and appoint” could be condensed to simply “appoint.” The words “give, devise, and bequeath” could be shortened to simply “give.”

6. Strive to not use foreign words in Wills unless you are referring to foreign places or persons. For example, do not use Latin phrases such as “bona fide” when the English “good faith” conveys the same meaning. Similarly, do not use expressions such as “cy-pres” or “en ventre sa mere,” when they can be replaced with “as near as possible” and “in its mother’s womb.”

7. Do not use the word “issue” that ordinarily means all of a person’s lineal descendants, but instead use the words “child,” “children,” “grandchild,” and/or “grandchildren,” as appropriate. Similarly, do not use the words “per stirpes” or “per capita” but instead describe the method of distribution.

I once litigated the following clause from a Will that used the word “issue.”

To divide the residue of my estate between my daughters Mary and Joan who survive me in equal shares per capita but if any child of mine predeceases me leaving issue him or her surviving, the issue of that deceased child surviving me shall take (and if more than one in equal shares per stripes as tenants in common) the share which his or her or their parent would have taken if living.

The deceased had a son who had predeceased him by 10 years leaving two children. At the time the deceased executed his Will, he had only the two daughters Mary and Joan. The Will was poorly drafted in that it used both the words “any child of mine” as well as the words “leaving issue him or her surviving.” I argued that the issue of the deceased son, namely the deceased son’s children and grandchildren, should share equally in the estate with Mary and Joan.

Leaving aside the poor draftsmanship that resulted in the litigation, I have never yet met a client who wishes to provide for all of his or her lineal descendants. Clients usually wish to provide only for their children, but if a child has predeceased, leaving children of his or her own, then for those children, that is the grandchildren of the client, in the place of the deceased child.

8. Do not do a codicil to revise an existing Will, as it is too easy to make a mistake. Disregard the client’s concerns about costs in this regard. If the client wants to make a change to a Will, then draw a new Will.

9. When providing for the distribution of the estate residue, try to use percentages or shares rather than specific amounts. Then add the percentages or shares several times to ensure they add up to 100 per cent. In Sarkin v. Sarkin Estate, 36 E.T.R.139, the draftsperson did use shares, but the shares added up to only 55 per cent of the residue. As a result, the remaining 45 per cent went by way of a partial intestacy.

10. Do not use precatory words such as “wish” or “request,” as they are not binding on the executor.

11. Be precise in your description of assets to avoid ambiguities.

12. Check carefully for inconsistent clauses.

13. Check to see that no intestacy or partial intestacy has been created. I once litigated a homemade Will where the testatrix included a specific clause stating she did not wish her brother to ever share in her estate by reason of bad past behaviour. She executed the Will without having included a residual beneficiary clause and thus created a partial intestacy. The effect was that her next-of-kin, namely, her brother, inherited.

14. Sufficiently identify each beneficiary and record his or her contact information. Charities can be a particular problem, as it is necessary to understand the structure of the charity and to ascertain which part of the charity the testator wishes to benefit, as well as to ensure the charity’s name is stated correctly. If possible, the charity should be contacted to ensure accuracy. Leaving a bequest to “charitable and educational institutions” will undoubtedly lead to much litigation among various charities and education institutions.

15. Be consistent in the words you use.

16. Try not to include a gift of a specific parcel of property to a beneficiary as there is a good likelihood the testator will not own the property at the time of his or her death. A better way to accomplish such an intention is to use a clause such as “to transfer to Mary, if she survives me, whatever house and property I own at the time of my death,” or such similar-type wording.

17. Only attempt to do the type of Wills with which you are completely experienced and are totally comfortable doing.

18. Review the Will clause by clause very carefully with the client. It should never be a cursory review. It may be helpful to paraphrase each clause to the client in simple terms, as many clients will not really understand what most of the clauses mean. It is suggested that where possible and practical, email, fax, or mail a copy of the Will to the client to review prior to seeing him or her in your office. That will give the client time to consider and reflect on the Will and to make any changes he or she considers appropriate. That is preferable to the client attending at your office and requesting changes to be made on the spot, as such changes are often rushed.

19. Use technology but beware that it sometimes does strange things, like leave out paragraphs and make other such unexplained mistakes.

20. Do not rely solely on a checklist- type Will instruction sheet. Make real notes, including observations confirming you probed the Will- maker’s mind to check for mental capacity and noted his or her statements as to next-of-kin and the value of assets. On completing a Wills file, avoid using a form reporting letter that has clauses that do not relate to the particular instructions.

Conclusion

I again stress there is no such thing as a simple Will. While a Wills practice can be enjoyable and rewarding, the draftsperson can never let his or her guard down for one instant regarding the myriad potential problems that can arise in this type of practice.

The client needs firm advice and guidance throughout the taking of instructions and again during the review of the Will at the time of execution.

 

This article was originally published by The Scrivener Volume 27 Number 4 Winter 2018.

Simultaneous Deaths and Survivorship

Simultaneous Deaths and Survivorship | Disinherited Estate Litigation

The law relating to simultaneous deaths and survivorship is set out in section 5 WESA.

If two or more persons die at the same time or in circumstances that make it uncertain which of them survive the other or others, unless a contrary intention appears in an instrument, rights to property must be determined as if each had survived the other or others.

S 5(1) states that if two or more persons hold property as joint tenants, or hold a joint account, and both of them all die at the same time or in circumstances that make it uncertain which of them survive the other or others, unless a contrary intention appears in an instrument, for the purpose of determining rights to property, each person is deemed to have held the property or account as tenants in common with the other or with each other or others.

Under previous legislation the younger person was to have been presumed to outlive the older, and thus the younger persons estate would inherit everything.

The new provision in WESA is designed to ensure the default joint tenant’s perish in a common disaster, their respective estate should benefit from their shares in the jointly held property rather than the estate of only the youngest of the joint tenants.

This is also what is meant by rights to property will be determined as if each deceased person survive the other or others.

It is also a requirement of section 10 WESA that there is a mandatory five-day survival rule in order to inherit.

S 10 (1) WESA states that a person who does not survive a deceased person by five days, or longer period provided in an instrument, is conclusively deemed to have died before the deceased person for all purposes affecting the estate of the deceased person or property of which the deceased person was competent to give by will to another.

(2) if two or more persons hold property as joint tenants, or hold a joint account,

a) in the case of two persons, it cannot be established that one of them survive the other by five days,

1) one half of the property passes as if the person survive the other person by five days, and

2) one half of the property passes as if the other person referred to in subparagraph one had survived the first person referred to in subparagraph 1 x 5 days,

b) in the case of more than two persons, cannot be established that at least one of them survive the other by five days, the property must be divided into as many equal shares as there are joint tenants or persons holding the joint account, and the shares must be distributed respectively to those persons who would have been entitled to a share in the event that each of the person said survived.

Under the Interpretation act, to calculate five days one excludes the first day and includes the last day.

S. 52 WESA and Rebutting the Presumption of Undue Influence

S. 52 WESA and Rebutting the Presumption of Undue Influence In Wills

Ali v Walters Estate 2018 BCSC 1032 reviews the law relating to rebutting the presumption of undue influence in regard to a will as dealt with in S.52 of WESA that creates such a presumption and specifies who bears the burden of proof.

S 52 WESA states that in a proceeding, if a person claims that a will or any provision of that resulted from another person:

a) being in a position where the potential for dependents or domination of the will maker was present, and

b) using that position to unduly influence the will maker to make the will or the provision of it that is challenged,

and establishes that the other person was in a position where the potential for dependents or domination of the will maker was present, the party seeking to defend the will or the provision of it that is challenged or to uphold the gift has the onus of establishing that the person in the position where the potential for dependents or domination of the will maker was present did not exercise undue influence over the will maker with respect to the will or the provision of it that is challenged.

In Ali , the court found that the presumption was unnecessary to address because ample evidence made clear that Ali did not exercise do undue influence, and had the presumption applied, she had rebutted it.

The court followed Leung v Chan 2013 BCSC 976:

“ in order to invalidate a will on the grounds of undue influence, the asserting party must prove that the influence exerted against the will- maker mounted to coercion, such that the will did not reflect the true intentions of free will- maker and was not the product of the will- makers own act. The undue influence must constitute coercion, which could not be resisted by the will maker and which destroyed his or her free agency. It is well-established on the authorities that if the will- maker remains able to act freely, the exercise of significant advice or persuasion on the will- maker, or an attempt to appeal to the will- maker, or the mere desire of the will- maker to gratify the wishes of another, will not amount to undue influence.

In Woods v Woods 2013 BCSC 1030 aat para.37 stated that undue influence is not equivalent to coercion. To amount to undue influence, something more is required that causes the testator to express something that they do not really mean, or that does not express their own mind or free will. Sometimes this same concept is expressed as requiring that the donor acted of their own free will and informed thought in the transaction “ Geffen v Goodman (1991) 2 SCR 353 at 378-379.

In Stewart v. McLean 2010 BCSC 64 the court summarized the factors that assist in determining whether the donor or gave the gift is a result of their own free full and informed thought:

To rebut the presumption of undue influence, the defendant must show that the donor gave the gift is a result of her own full, free and informed thought. A defendant could establish this by showing:

a) no actual influence was used in the particular transaction or the lack of opportunity to influence the donor;
b) the donor had independent advice or the opportunity to obtain independent advice;
c) the donor had the ability to resist any such influence ( Calbick v Wayne 2009 BCSC 1222 at 64);
d) the donor knew and appreciated what he or she was doing Vout v Hay (1995) 2 SCR 876 AT para. 29; or
e) undue delay in prosecuting the claim, acquiescence or confirmation by the deceased.

Another relevant factor may be the magnitude of the benefit or disadvantage.

The Court of Appeal in Cowper-Smith v. Morgan 2016 BCCA 200 adopted the following, referring to the Stewart decision:

Factors to be considered in determining whether the donor acted of her own full, free and informed thought in entering the transaction include:

a) the lack of actual influence or opportunity to influence the donor;
b) the receipt of or opportunity to obtain independent legal advice;
c) the donor’s ability to resist any such influence
d) the donors knowledge and appreciation about what she was doing

How to Defeat a Testamentary Gift: Beneficiary Fraud

How to Defeat a Testamentary Gift- Beneficiary Fraud - Disinherited

“Fraudulent beneficiaries”  has arisen in a claim that I am aware of currently before the courts, where it is alleged that the deceased was fooled to leave his entire estate to someone who he believed was his natural son from a long-ago relationship, but the son actually knew he was not the progeny of the deceased, yet played along with the deceased to allow him to believe that he was.

The estate has been challenged on the basis that the testamentary gift to the purported son should be invalidated as a result of the beneficiary perpetrating a fraud on the testator in obtaining the legacy by virtue of that fraud.

The facts are contentious yet there is a long established principle in law that “ where a legacy is given to a person under a particular character which he has falsely assumed for the purposes obtaining the bounty, and which alone is shown or is inferred to have deceived the testator, and to have been the motive of the bounty, the law on the ground of fraud does not permit the donee to avail himself of the legacy; but a false reason given for the legacy is not in itself sufficient to destroy it.”

Halsbury’s Laws of England , fourth edition, volume 17(2) at 326:

Kennell v Abbott (1799) 4 Ves.802, ER 416 is a leading case on the treatment of legacies obtained through fraud. In this decision, a woman died, leaving a legacy to my husband. The two were allegedly married but unknown to the woman, the man when she assumed was her husband was married to another woman. The master of the rules ruled that the husband was not entitled to his legacy by reason of the fraud that he had perpetrated.

How to defeat a testamentary gift:

In order to defeat a testamentary gift in these circumstances, the following must be shown:

1) A legacy given to a person of a character which the legatee does not fill and

2) There was a fraudulent assumption of that character, and

3) The testator must have been deceived by that fraud

 

Posner v Miller (1953) 1 All E.R. 1123

A testamentary gift to a purported son would only be invalid if there is proof of fraudulent and intentional misrepresentations that motivated the deceased to dispose of property in a manner contrary to his true intention. It is not sufficient to show innocent misrepresentation. Even if fraud is proven, the law requires proof that the false character was the sole motive for the bounty Kennell, Re Isaacs (1954) OR 942 C.A.

If there is evidence that the testator may have been motivated by other factors, then the gift is valid, despite the fraud. For example, the bequest to illegitimate children that the testator thinks are his own should stand, because it can be said that the love and affection must also have affected the testator’s intention to provide for the children and the fraud was not the sole motive or inducement for the legacy. Feeney, The Canadian Law of Wills at 3.18

The subsequent English case of Re Boddington: (1883) 22 Ch.D 597 at 112 applied the authority in the Kennell decision and held:

“where a legacy is given to a person under a particular character which she has falsely assume, and which alone can be presumed to be the motive of the bounty, the law will not permit him to avail himself of it, and therefore he cannot demand his legacy. In order, therefore, that the rule from Kennell may come into operation. There must be two things (1) there must be of the false assumption of the character of the legatee, and secondly, there must be evidence that the false character was the motive of the bounty, or a presumption or inference to that effect.

A misrepresentation can be made by silence in the following circumstances, as adopted by the Court of Appeal in Sidhu estate v. Bains (1996)  25 BCLR (3d) 41 BCCA at 101:

“A misrepresentation may be made by silence, when either the represented , or a third person in his presence, or to his knowledge, state something false, which indicates to the represented that the represented either as being, or will be, misled, unless the necessary correction be made. Silence under such circumstances is either a tacit adoption by the party of another’s misrepresentation as his own, or tacit confirmation of another’s error as truth“

Can You Prove Mental Incapacity for a Will?

Can You Prove Mental Incapacity for a Will?

Nykoryak v Anderson 2017 BCSC 1800 is a decision that in many respects is indicative of how difficult it is to succeed in having a will set aside on the basis of lack of mental capacity.

The court found that the testator who is aged 93, when he executed his last will had sufficient mental capacity to do so, despite some underlying cognitive issues. The evidence of his doctor and the lawyer who drafted the will was accepted by the court in proving that he had testamentary capacity.

The court held that the law is clear that the issue to be decided is not whether the deceased suffered from cognitive impairment when the will was executed, but rather, whether, despite the cognitive impairment, the deceased was able to:

1) Understand the nature and effect of a will understand the extent of what was being bequeathed under the will;

2) remember the persons who might be expected to benefit under the will

3) understand the nature of the claims that may be made by a person who is excluded by the will;

4) understand the extent of what was being bequeathed under the will

The lawyer who took instructions for the will had filed an affidavit at a summary trial, hearing, setting out his discussions with the testator. It was clear that the testator could not of had the discussion he had with the lawyer, if he did not meet the foregoing criteria.

In addition, the testator’s long time physician had provided an opinion in the form of an expert report that although the testator had some underlying cognitive issues at the time he executed his will, including some short-term memory loss and occasional confusion, he was nevertheless probably aware of what he was doing at the time.

 

The Law

The test for testamentary capacity was commented upon in Bull Estate v. Bull 2015 BCSC 136 at paragraphs 114 – 117:

114- the test for testamentary capacity is not overly onerous. Sufficient mental capacity to make a will may exist, despite the presence of cognitive deterioration, and the testator may have sufficient mental capacity even if his or her ability to manage other aspects of his/ her affairs is impaired.

115- simply having an imperfect or impaired memory does not in itself absent testamentary capacity unless it is so great as to leave no disposing memory. A disposing mind and memory is on able to comprehend of his own initiative and volition. The essential elements of the will making, property, objects, just claims to consideration, revoking of existing dispositions and the like. Moore v Drummond 2012 BCSC 1702 at 158

116- the testator should have an appreciation of the claims of the persons who are natural objects of his/her estate and the extent of his or her property of which he/ she is disposing Allart Estate v Allart 2014 BCSC 211 at para 30

117- Because testamentary capacity is a legal question, and not a medical question, a medical opinion, although valuable and relevant is not determinative of testamentary capacity Laszlo v. Lawton BCSC 305 at para 190

In the Ontario decision Birtzu v. McCron 2017 ONSC 1420 at para 40 the court stated:

40- the applicant notes that testamentary capacity is not the same thing is the capacity to manage one’s property and the capacity to confer a power of attorney. I agree. This does not mean the test is higher for testamentary capacity, rather, it is different. Should this point need illustration, none better can be found, then in the decision Palahnul v Palahahnuk Estate 2006 OJ 5304 were a will made by an 80-year-old testator had been found incapable of caring for her own person or her own property. The testator was cared for by a niece, under an agreement with the public Guardian and trustee, the court found:

Testator requirements for making a valid will:

The requirements for a testator to have a sound disposing mind in order to make a valid will include the following:

  • The testator must understand the nature and effect of a will
  • The testator must recollect the nature and extent of her property
  • The testator must understand the extent of what she is giving under the will
  • The testator must remember the person she might be expected to benefit under her will
  • The testator were applicable must understand the nature of the claims that may be made by a person she is excluding from the will.

Establishing a lack of testamentary capacity

Isolated memory or other cognitive deficits do not establish lack of testamentary capacity.

Such things as imperfect memory, inability to recollect names and even extreme imbecility, do not necessarily deprive a person of testamentary capacity. The real question is whether the testator’s mind and memory are sufficiently sound to enable him or her to appreciate the nature of the property was bequeathing, the manner of distributed and the objects of his or her bounty.

Care must be taken in reading the physicians clinical notes are in interpreting their diagnoses.

Diagnosing someone is having dementia does not necessarily mean the person is demented. Diagnosing someone is having Alzheimer’s dissolving the person lacks capacity, though it may foretell a loss of capacity. If the disease progresses, as expected. Delete from an initial diagnosis to a conclusion of legal incapacity is unwarranted and very dangerous reasoning.

Wills Variation: Adopted Out Children Have No Claim

Do Adopted Out Children Have Claim to Birth Family Inheritance?

In British Columbia a child who has been adopted out to another family has no claim on his or her pre-adoption family in the event of an intestacy or under the wills variation provisions of section 60 WESA.

And adoption has been held by various courts to mean “for all purposes”.

This was recently confirmed in Atrill Estate 2018 BCSC 350 where the court held that under the intestate succession provisions of WESA a child who was adopted out by the deceased is not a descendent entitled to share in the estate of a deceased’s pre-adoption parent.

In Atrill the testator left the residue of his estate to his wife, but made no alternative. In the event his wife predeceased in which she did. The deceased having fathered a daughter in one son, who also predeceased the testator, and whom the testator deliberately left out of his will.

The son fathered three children, one of whom had been adopted by another family. The testator’s daughter claimed to be entitled to the entirety of the residue of the estate.

Under section 86 of the Trustee Act, the court found that the case involved a partial intestacy governed by part three of WESA and ruled the intention of the testator to exclude his son from a share of the estate did not prevail over the statutory will found in the WESA intestate succession provisions.

Accordingly, the daughter of the deceased was entitled to one half of the residue the estate and the two children fathered by the deceased son, wherein each entitled to one half for the remainder.

However, based on judicial authority, the third child put out for adoption was not entitled to share on the intestacy.

With respect to the adopted out child, the court followed the decision Boer v Mikaloff 2017 BCSC 21 that held that a child who had been adopted out has no claim on his or her pre-adoption family in the event of an intestacy.

The court held that under section 37) 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.

The BC 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, and the court considered in detail section 37 of the Adoption At as it then read.

The court summarize that “ 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 child of the old family”.

Section 3(2) (A) of WESA serves to confirm that an adopted child is not within the family relationships of his or her birth parents for the purposes of WESA.

This section provides that an adopted child is not entitled to the estate of his or her own pre-adoption parent except through the will of the pre-adoption parent.

In other words, an adopted child relative to a pre-adoption parent will maker is in the same position as a nonfamily member.

The only exception is found in section 3(3) of WESA, which provides that the 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 the purposes of succession.

Interpreting the Ambiguous Will

Interpreting the Ambiguous Will - Disinherited

The increasing occurrence of laymen doing their own will, combined with the curative effects of sections 58 and 59 of WESA, will invariably be leading towards an increase in court applications to interpret the meaning of an ambiguous will or portion thereof.

There is a substantial body of law relating to the interpretation of unclear wills that was largely effected by wills that had been prepared by notaries or lawyers.

The advent of such cases as Re Young Estate 2015 BCSC 182 where the court found that three documents with different dates over a period of three years stapled together, were allowed to be collectively read as the last valid will of the deceased.

In the Australian decision Nicol v Nichol 2017 QSC 220, a five line cryptic unsent text message on the phone of the deceased who had committed suicide was found to be a valid will. The message was extremely informal and somewhat vague but did refer to it as being “my will”.

There have been examples of diary entries and unsigned and undated documents purporting to be a will that have been submitted to the court, under the curative provisions of WESA, some of which have succeeded to be found to be reliable and permanent evidence of the deceased testamentary intention, while others have not.

Suffice to say however, that the wills that have been found to be valid and admitted into probate are generally speaking very vague and often in need of interpretation.

General principles of will interpretation

In Killam v Killam 2017 BCSC 175 at paragraph 60 the courts noted that the starting point for any analysis is the actual language of the will. The court will then look to the surrounding circumstances existing at the time the testator made the will.

The BC Court of Appeal has referred to two different approaches to the interpretation of wills, one being the four corners approach and the other the armchair approach.

The four corners approach to the interpretation of wills means that the intention of the testator is to be taken from within the four corners of the document itself, at least in the first instance, and the surrounding circumstances are not to be considered unless the intention of the testator cannot be ascertained from the language of the will alone.

The armchair approach on the other hand, requires the court at the outset to place itself in the position of the testator at the time he or she wrote the will and to consider the surrounding circumstances and context in order to ascertain the subjective intentions of the testator.

The armchair approach was used by the Court of Appeal in Smith v . Smith estate 2010 BCCA 106 were at paragraph 30. The court stated the guiding principles that to interpret a will, the court must first look to its language. Only if the court cannot ascertain the intention of the testator should it look beyond the will itself, in which case the armchair rule applies. This principle was adopted from Feeney: The Canadian law of wills.

Accordingly, the armchair approach is to be used only if the intention of the testator cannot be ascertained from the will itself

A number of decisions have expanded the armchair rule in British Columbia, such as in Thiemer Estate v Schlapapner 2012 BCSC 629 , where at paragraph 45. It was stated in construing a will, the objective of the court is to ascertain the intention of the testator as expressed in his or her will, when it is read as a whole. In light of any properly admissible extrinsic evidence.

It is a cardinal principle of interpretation that the testator’s intension is to be gathered from the will as a whole and not solely from those provisions which have given rise to the controversy (Perin v Morgan (1943) A.C. 399 at 406 (H.L.)

Accordingly, BC courts have endorsed both approaches in different cases

The Killam decision seems to clarify that the armchair approach does not come into play unless the testator’s intention cannot be ascertained from the language of the will alone. In Killam, however, the court concluded that some combination of the two approaches be used stating that no matter which approach is favored, the starting point for any analysis, it is the language of the will itself.

Assessing summary of the principles to be applied in interpreting the will were followed in Vopicka v Volpicka Estate 2017 BCSC 2197, where the court quoted a summary of the principles to be applied as set out in the Ontario Court of Appeal decision of Dice v. Dice 2012 ONCA 468 at paragraphs 36 – 38:

36. “The golden rule in interpreting wills is to give effect to the testator’s intention as ascertained from the language that was used. Underlying this approach is an attempt to ascertain the testator’s intention, having regard to the will as a whole;

37. Where the testator’s intention cannot be ascertained from the plain meaning of the language that was used, the court may consider the surrounding circumstances known to the testator when he or she made his will – the so-called “armchair rule”;

38. Under the “armchair rule”, the court sits in the place of the testator, assumes the same knowledge the testator had of the extent of his assets, the size and makeup of his family, and his relationship to its members, as far as these things can be ascertained from the evidence presented.”

 

Natural and ordinary meaning

The Killam decision followed British Columbia Official Administrator v. Joseph (1999) BCJ 2340 that reiterated the concept both that every word is to be given its natural and ordinary meaning, and that if technical words are used, they are to be construed in their technical sense unless it is evident that the testator intended otherwise.

A body of case law has developed for common words such as the meaning of “monies” and for technical words such as “issue”.

The court will in its interpretation of the will look to the ordinary meaning of words as per a reputable dictionary .

For example in Re Ali Estate 2014 BCSC 340 the court was asked to interpret the words “ my interest in the company”.

The court referred to two Canadian dictionaries which defined interest as:

1) A financial stake;

2) a legal concern, title or right;

3) Something which a person has in a thing when that person has advantages, duties, liabilities, losses or rights connected to it, whether ascertained or potential, present or future.”

The Joseph decision for example provided a succinct description of the technical words “per capita” and “per stirpes” at paragraph 10.

Re Stark (1969) 2 O.R. 881 quoted Halsbury, 3rd edition at paragraph 1499 that:

“A word ought not to be disregarded if it can be given some meaning which is not contrary to the intention of the testator plainly expresses in other parts of the will and it is not to be assumed that the testator has used additional words without some additional purpose or without any purpose whatsoever.”

 

Precatory words

It is important for will makers to be aware that words that are not mandatory, and are merely an indication of a wish, request , desire, expectation and the like are referred to in law as precatory language which is not legally binding upon the executor/trustee.

For example, in the Killam decision. The deceased stated “ it is my desire, however, I do not direct, that said share shall be used for the health, support and maintenance of—, for as long as he should live or as long as said funds are available for such purpose.
The court was asked in that decision whether a trust had been created. The court approached the matter on the basis of construction- did the deceased intend to create a trust or not?.

The court in Killam found that the words, “desire and not direct”, were precatory and not mandatory in nature, but looked at the remainder of the will, where in three instances, the words “ I direct “ are used, and the instruction is clearly mandatory. By using the wording I do not direct, the court concluded that the testator’s intention was that the provision not be mandatory in nature.

Accordingly, the court in the Killam decision concluded that the words” it is my desire, however, I do not direct” only created a moral and not a legal duty on the executor to use the funds for the health, support and maintenance of the beneficiary.

 

Conclusion

There is a great deal of judicial authorities compiled over many years relating to the proper interpretation of an ambiguous will. The court will do its best to determine the intention of the will maker when interpreting uncertain language used in the will. The courts will do its best to make sense of the will and will interpret it in a way that renders certain phrases or words meaningful and not redundant or unnecessary.

It is likely that there will be an increase in court applications to determine ambiguous wills that have been prepared by laypeople who have informally prepared their will in documents ranging from scrap notes, diary entries, suicide notes, fill in the blank forms, unsent text messages and just about any other document that the court finds to conclusively, and permanently indicate to be gthe last testamentary wishes of a deceased will maker.

Unsent Draft Text Message Valid Will – Australia

Executor Remuneration and Passing of Accounts

A court in Australia has accepted an unsent, draft text message on a dead man’s mobile phone as an official will.

The 55-year-old man had composed a text message addressed to his brother, in which he gave “all that I have” to his brother and nephew.

The message was found in the drafts folder on the man’s phone after he took his own life last year.

Brisbane Supreme Court ruled that the wording of the text indicated that the man intended it to act as his will.

In the message, the man gave details of how to access his bank account and where he had hidden money in his house.

“Put my ashes in the back garden,” he wrote. “A bit of cash behind TV and a bit in the bank.”

According to ABC News, the man’s wife applied to manage his assets and argued that the text mess
age was not valid as a will because it was never sent.

Typically, for a will to be valid in Queensland, it must be written and signed by two witnesses.

Justice Susan Brown said the wording of the text message, which ended with the words “my will”, showed that the man intended it to act as his will.

“The reference to his house and superannuation and his specification that the applicant was to take her own things indicates he was aware of the nature and extent of his estate, which was relatively small,” she said.

She said the “informal nature” of the message did not stop it representing the man’s intentions, especially as it was “created on or about the time that the deceased was contemplating death, such that he even indicated where he wanted his ashes to be placed”.

Validity of Wills

In 2006, the law in Queensland was changed to allow less formal types of documents to be considered as a will.

Another unusual will accepted in Queensland includes a DVD marked with “my will”, in 2013.

S.58 and 59 WESA Application Ordered to Trial

S.58 and 59 WESA Application Ordered to Trial

Estate of Palmer 2017 BCSC 1430 dealt with  an application to cure defects in a will under sections 58 and 59 of WESA, but was ordered to trial rather than having been dealt with summarily by affidavits.

Ms. Palmer executed a short will on August 18, 1988. By that document, she appointed Montreal Trust and her cousin, Emily Takats, as her executors and trustees. She also named Ms. Takats as the sole residual beneficiary of her estate. Ms. Takats died well before Ms. Palmer.

[5] Following her death, a copy of Pauline Palmer’s 1998 will was discovered bearing various handwritten alterations and initials. Some of the changes are in black ink and some in blue ink. The changes include:

• updating Ms. Palmer’s address;
• deleting Montreal Trust and Emily Takats as executors and trustees and substituting in their place “Alan Homeniuk (sic), 10 English Way, St. Albert, Alberta”; and
• deleting the name Emily Takats as a residual beneficiary.

[6] The operative words of the will containing the handwritten changes now read as follows:

• “I nominate, constitute and appoint Alan Homeniuk of 10 English way, St. Albert, Alberta, and my cousin [name deleted], presently of [city deleted] to be the executors and trustees of this my Will”;
• “To deliver the rest and residue of my estate unto my said cousin [name deleted] for his [changed from “her”] own use and benefit absolutely.”

WESA and the Determination of Testamentary Intentions

[27] The recent case of Estate of Young, 2015 BCSC 182, describes the legal framework applicable to s. 58 of WESA and the curing of “deficiencies” related to the making or alteration of a will. The history and intent of the legislation, including the case law in other jurisdictions addressing similar provisions, is set out in paras. 16–33 of that decision and will not be repeated here. The law is summarized in paras. 34–37 of the decision and can be paraphrased as follows:

• the courts’ curative power with respect to non-compliant testamentary documents is inevitably and intensely fact-sensitive;
• the first threshold issue is whether the document in question is authentic;
• the second, and core, issue is whether the non-compliant document represents the deceased’s testamentary intentions;
• a testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death. Rather, the document must record a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death;
• the burden of proof that a non-compliant document embodies the deceased’s testamentary intentions is the balance of probabilities;
• factors relevant to establishing the existence of a fixed and final testamentary intention may include the presence of the deceased’s signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests and the title of the document; and
• generally speaking, the further a document departs from the formal validity requirements of the legislation, the harder it may be for the court to find that it embodies the deceased’s testamentary intention.

[28] Both s. 58 and 59 of WESA provide for an “application” to court to determine whether a certain document represents the testamentary intentions of a deceased person and/or rectification is warranted because the will fails to implement the deceased’s intent.

[29] Rules 2-1(2)(b) and (2.1) of the Supreme Court Civil Rules provide for the initiation of proceedings in estate matters or in respect of any application authorized by statute to be made to the court. It is possible that the manner in which the present application has been brought does not properly comply with those rules but, in any event, there is no doubt that a chambers hearing is ultimately contemplated thereby triggering the application of Rule 22-1, including the following sub-rules:

Evidence on an application

(4) On a chambers proceeding, evidence must be given by affidavit, but the court may
(a) order the attendance for cross-examination of the person who swore or affirmed the affidavit, either before the court or before another person as the court directs,
(b) order the examination of a party or witness, either before the court or before another person as the court directs,
(c) give directions required for the discovery, inspection or production of a document or copy of that document,
(d) order an inquiry, assessment or accounting under Rule 18-1, and
(e) receive other forms of evidence.
…

Power of the court

(7) Without limiting subrule (4), on the hearing of a chambers proceeding, the court may
(a) grant or refuse the relief claimed in whole or in part, or dispose of any question arising on the chambers proceeding,
(b) adjourn the chambers proceeding from time to time, either to a particular date or generally, and when the chambers proceeding is adjourned generally a party of record may set it down on 3 days’ notice for further hearing,
(c) obtain the assistance of one or more experts, in which case Rule 11-5 applies, and
(d) order a trial of the chambers proceeding, either generally or on an issue, and order pleadings to be filed and, in that event, give directions for the conduct of the trial and of pre-trial proceedings and for the disposition of the chambers proceeding.

[30] I have attempted to explain above why the affidavit evidence tendered on this application respecting certain matters is insufficient to do justice to the testamentary intentions of Ms. Palmer. In my view, oral evidence from the three affiants is desirable including cross-examination of those affiants on certain aspects of their testimony. As well, evidence must be adduced respecting Ms. Palmer’s physical and mental health and, in particular, her testamentary capacity at the time the changes to her will were made.

[31] Furthermore, three of the potential beneficiaries under WESA have not been included in the proceedings to date. It appears that Ms. Perret has no interest in actively participating in the present proceeding, however the court is not satisfied that any meaningful effort has been invested by any of the parties in tracing and notifying each of Bradley Palmer, Grant Palmer and Dolores Palmer. Their legal interests are at stake in this proceeding and they cannot simply be ignored.

[32] Rule 22-1(7)(d) permits the court to order a trial of any chambers proceeding and to give directions respecting the filing of pleadings and the further conduct of the matter. The legal test for converting a chambers proceeding into a trial was recently reviewed by the Court of Appeal in British Columbia (Milk Marketing Board) v. Saputo Products Canada G.P., 2017 BCCA 247. It is akin to the test applicable for summary judgment under Rule 9-6, i.e., whether a bona fide triable issue arises on the evidence before the court which warrants determination at a trial. The threshold is relatively low in that regard.

Decision and Orders Made

[33] In my view, there is a bona fide triable issue between the parties whether the handwritten amendments to Ms. Palmer’s will record a fixed and final expression of intention to make Mr. Homeniuk the sole beneficiary of her estate, an issue which cannot be satisfactorily resolved based solely on the affidavit evidence adduced to date. Accordingly, I make the following orders:
1. the within chambers proceeding will proceed to a trial;