Martinson v Anniko 2009 BCSC 14 is illustrative of where a marriage agreement is ultimately “fair”, it will be held to bar a spouse’s Wills Variation claim brought after the death of a spouse. The Court was also critical of the steps taken by the surviving spouse in secretly severing the joint tenancy home, that she would ahve inherited had she not severed
The Plaintiff stood to inherit the entire matrimonial home but severed joint tenancy and gifted other monies received from the Testator to her daughters. These were her unilateral decisions and the court found there was no inequity on the part of the Testator.
The Testator and the Plaintiff marriedfor the second time later in life.
During the period beginning immediately prior to their marriage and until the Testator’s death, the two signed four agreements regarding their respective property:
a pre-nuptial agreement in 1985 stipulating that the property each brought to the marriage would remain separate;
an amendment signed in 1986 stipulating that the 1985 agreement would have the force of law under s. 48 of the Family Relations Act (“FRA”), and would govern the ownership of respective assets in the event of divorce, death, or separation. The amendment also provided that the agreement as amended released both from any claim made by the other under either the Estate Administration Act (“EAA”) or the Wills Variation Act (“WVA”);
a second amendment to the original 1985 agreement signed in 1988 stating that the couple’s residence in Victoria, BC was purchased with the sole assets of the Testator and was held in joint tenancy as a matrimonial home. The amendment also stated that the Plaintiff held her interest in the home in trust for the Testator, who was the sole beneficial owner. Finally, it provided that if the Testator predeceased the Plaintiff, the Plaintiff would hold the entire property in trust and would sell the property and pay the proceeds of sale to the Testator’s family;
a third and final amendment to the original 1985 agreement made in 1995 that terminated the trust arrangement created in the second amendment and declared that the Plaintiff and the Testator held the matrimonial home as joint tenants.
The Testator made three Wills between 1996 and 2005, each providing something for the Plaintiff and her children from a prior marriage in recognition of s. 2 of the WVA.
The Testator’s final Will left nothing for the Plaintiff or her children from a prior marriage, but did provide a $50,000 bequest to the Plaintiff’s granddaughter.
The entire residue of the Testator’s estate went to his nephew, the Defendant.
The Testator noted in the Will that the Plaintiff would be provided with the matrimonial home, some jointly held investments, and would also receive some inter vivos gifts.
However, the Testator was unaware that the Plaintiff had already severed the joint tenancy on the matrimonial home and registered her half interest jointly in her and her children’s names. The Testator died and the Will, leaving the entire residue of his estate to his nephew.
The Plaintiff applied to vary the will but her claim was dismissed.
The Court held that the Testator fulfilled his legal and moral obligations to the Plaintiff.
Marital agreements have the force of law under Section 65 of the Family Relations Act
The act also allowed for the variation of marriage agreements where they were inequitable, but the court found no such inequity in the present case.
The successive Wills executed by the Testator between 1996 and 2005 made decreasing provision for the Plaintiff, with justifications citing the increase of value of the marital home, inter vivos gifts made by the Testator, and the growth in jointly-held investments.
Austin v Les 2006 BCSC 2100 is a wills variation case where disinherited.com was the plaintiff’s counsel representing a 62-year-old daughter of the deceased person who was essentially given away to be raised by others.
Marg Austin was born at a time when it was socially unacceptable for a mother to be unwed.
The deceased went on to marry and live happily ever after pretending that she did not have an out of wedlock child.
The deceased and her husband adopted two girls and ultimately the deceased left her two girls to share equally in her substantial estate.
She left her abandoned daughter Marg the sum of $100.
disinherited.com was successful in obtaining an equal one third of the estate for Marg.
disinherited.com was recently contacted by a 77-year-old man whose mother recently passed away at about age 92.
Her obituary read that she left three children and referred to the client as her brother.
The deceased had lived all her life under the façade that she did not have an out of wedlock child prior to her marriage.
When he was 15 he found out that his sister was in fact his mother.
The client has a birth certificate with the deceased’s name on it indicating that she is his mother, and this was acknowledged during her lifetime privately and amongst her three natural children, but the hurtful façade continued.
It reminded me that movie actor Jack Nicholson also learned that his sister was in fact his mother when he was a teenager.
Marg’s story was reported by the Vancouver Sun in a full page article on August 15,2009, section A10.
Modonese v Delac Estate 2011 BCSC 82 has a very interesting discussion on whether or not independent legal advice will rebut a presumption of undue influence where that presumption might exist.
The function of independent legal advice is to remove a taint that, if not removed, might invalidate a transaction.
The nature and circumstances will dictate what constitutes adequate independent legal advice for purposes of a given situation Cope v Hill , affmd ABCA 32 ,leave to appeal to SCC refused 2007 SCCA No.138.
The following exerpts are from Modonese:
[121] In Stewart, Punnett J. followed Coish v. Walsh, 2001 NFCA 41, 203 Nfld. & P.E.I.R. 226 [Coish], where Wells C.J.N, addressed the issue of whether independent advice rebuts the presumption of undue influence as follows:
[23] The trial judge also correctly set forth the law respecting the manner in which such a presumption may be rebutted. In particular, he identified, from the comments of Green J., in [Fowler Estate], factors to be taken into account in considering whether or not evidence of legal advice given to the granting party is sufficient to rebut the presumption. At paragraph 24 of [Fowler Estate], Green J. identified factors which may affect the character of legal advice to be as follows:
Whether the party benefiting from the transaction is also present at the time the advice is given and/or at the time the documents are executed.
Whether, though technically acting for the grantor, the lawyer was engaged by and took instructions from the person alleged to be exercising the influence.
In a situation where the proposed transaction involves the transfer of all or substantially all of a person’s assets, whether the lawyer was aware of that fact and discussed the financial implications with the grantor.
Whether the lawyer enquired as to whether the donor discussed the proposed transaction with other family members who might otherwise have benefited if the transaction did not take place.
Whether the solicitor discussed with the grantor other options whereby she could achieve her objective with less risk to her.
In Cope, Rooke J. provided the following summary of the law concerning independent legal advice where an allegation of undue influence is raised:
210 The case law identifies two types of independent legal advice:
advice as to understanding and voluntariness; and
advice as to the merits of a transaction.
The two types may overlap such that advice as to understanding the nature and consequences of a transaction may well constitute, at least in part, advice as to the merits of the transaction.
211 Focusing on the first type of independent legal advice, in Gold, a majority of the
Court, per Sopinka J., observed that independent legal advice addresses two primary
concerns, namely, that a person understands a transaction and that a person enters into
a transaction freely and voluntarily. Sopinka J. stated at para. 85:
Whether or not someone requires independent legal advice will depend on two principal concerns: whether they understand what is proposed to them and whether they are free to decide according to their own will. The first is a function of information and intellect, while the second will depend, among other things, on whether there is undue influence.
212 Focusing on the second type of independent legal advice, in Corbeil, Kerans J.A.
reasoned at paras. 12-14:
I distinguish attendance on execution from advice about the wisdom of entering into the agreement. The term “independent legal advice” has a very specific meaning in law. The duty of advising counsel has been summarized in Halsbury’s Laws of England (4th Ed.), vol. 18, para. 343, at p. 157:
“The duty of the independent adviser is not merely to satisfy himself that the donor understands the effect of and wishes to make the gift, but to protect the donor from himself as well as from the influence of the donee.A solicitor who is called upon to advise the donor must satisfy himself that the gift is one that is right and proper in all the circumstances of the case, and if he cannot so satisfy himself he should advise his client not to proceed.”
213 However, the adequacy of independent legal advice, or primacy of one type of independent legal advice over the other, is a situation-specific inguiry. In refusing to give effect to a contractual waiver of maintenance in Brosseau, the Court, in distinguishing between the two types of independent legal advice, stated at paras. 22-23:
The term “independent advice” is not one of precision. It may cover the situation in which a lawyer explains, independently, the nature and consequences of an agreement… It may extend, as it does in cases of undue influence, to the need to give informed advice…
We doubt that any hard and fast rule can be laid down and the peculiar circumstances of this case are not appropriate for the formulation of such a rule, in any event.
Mr. Frohlich stressed the comment in In re Coomber; Coomber v. Coomber, [1911] 1 Ch. [723], to the effect that independent advice does not mean independent approval. Again, we agree. While we stress this is not a case of presumed undue influence …, we agree with what is said in Wright v. Carter (1902), 87 L.T. 624, at 634 that fit! is not enough for an independent solicitor to be called in merely “to carry out the proposal which had been previously settled”.
Gertrud Eberwein ( Re Eberwein Estate 2012 BCSC 250) and her very deficient will, made a bequest to a non existent person.
Yesterday’s blog related to what happened to her bequest to a Charity that she had previously donated to, but no longer existed at the time of her death.
The Court reached the conclusion that the cy-pres doctrine could not apply as there was no general charitable intention to give, but instead the intention was to a specific charity that no longer existed, so the bequest lapsed and fell in the estate residue.
The issue today relates to a bequest made to a Martina Dieter, a person who does not exist.
The issue was whether the name “Martina Dieter” was a misnomer for another person intended by Ms. Eberwein.
LEGAL PRINCIPLES INVOLVED
The court can presume that a testator did not intend to make a gift to a non-existent person
The court may consider extrinsic evidence of Ms. Eberwein’s relationships at the time of the Will and other evidence which may shed light on what person she intended to benefit: Bemasconi v. Atkinson (1853), 10 Hare 345, 68 E.R. 959; In re Ofner, [1909]1Ch.60(C.A.).
The following passage from Charter v. Charter (1874) L.R. 7 H.L 364 at p. 377 is oft-cited:
The Court has a right to ascertain all the facts which were known to the testator at the time he made his will, and thus to place itself in the testator’s position, in order to ascertain the bearing and application of the language which he uses and in order to ascertain whether there exists any person or thing to which the whole description given in the will can be, reasonably and with sufficient certainty, applied.
Where there is more than one possible person to whom the intended gift might equally apply, the issue is one of “equivocation” in the will. This permits the court to consider not only indirect extrinsic evidence, but also direct declarations of testamentary intention: Re Murray Estate, 2007 BCSC 1035 at paras. 9-11.
The court then went into considerable detail in analyzing the deceased’s life, relatives, friends, diaries, notes, and other extrinsic evidence that might shed light
on who was the intended beneficiary known as Martina. By piecing various pieces of evidence together the court found that the deceased had a motive to give a bequest to the Martina who is helping out a friend known as Ms. Sweitzer and who the deceased knew was the daughter of one of her first cousins, and
concluded that that person was the intended beneficiary.
Generally speaking the courts do not like to create an intestacy and will often go to great lengths to find what the court believes to be the intended beneficiary where there is a misnomer in the will.
Our previous blog related to the wills interpretation issues related to the Eberwein Estate 2012 BCSC 250.
One of the issues involved in the interpretation of this will related to a charitable gift to an organization called Aid to Animals In Distress.
The deceased had previously given small donations to this charity in 1998, 2000 and 2001 respectively.
The charity operated a cat shelter and the evidence was clear that the deceased clearly loved cats.
The deceased left an estate of nearly $10 million, and as previously blogged, left no children or spouse.
The problem however is that the deceased died in 2010 and this particular charity ceased to exist in 2007, prior to the making of the will in February 2010, one month before the death of the testatrix.
The legal question involved was whether or not the bequests to this charity, a cat shelter, was evidence of the general charitable intention such that, through the application of the cy-pres doctrine, another charity in the same field could be benefited?
Or alternatively, if there was no general charitable intent, did the gift lapse and fall into the residue of the estate.
The general principles involved are that where it is impossible to carry out a gift, but it can be shown that the donor or at a general charitable intent, the court has inherent jurisdiction to make an order for a cy-pres scheme, that is the property be applied in a way as close as possible to that scheme set out by the testatrix.
The court reviewed case law in favor of the proposition that if a will maker showed an intention to make a gift to a particular institution, but that institution is no longer in existence at the time of the testator’s death, the gift will fail.
The court also reviewed case law where the will maker named one charity in a will as the beneficiary the residue of the estate, where the court was able to construe a general intention despite the wrong naming of the charity that never even existed
In this particular case however, the will maker made nine separate bequests to nine identified charities covering a range of subject matters of which the named aid to animals in distress was only one.
It was not a misnomer but was a real charity to which she had donated in the past.
The court accordingly concluded that the deceased did not have a general charitable intent with respect to that gift, and accordingly that gift lapsed and form part of the residue of the estate
The Estate of Gertrud Eberwein 2012 BCSC 250 is an excellent example of a wealthy person dying with a poorly drafted will that needs interpretation and construction by the court.
The deceased died in 2010 at age 85 years.
She did not have any children or spouse and left an estate of $10 million.
Her will was to be distributed amongst family and friends scattered throughout the world as well as various charities, one of which was no longer in existence.
There were various issues of interpretation as many clauses in the will were either poorly drafted, vague, or the beneficiary could not be located or ceased to exist.
I will deal with how the court dealt with the charitable bequest issue in a subsequent blog.
The case gives a helpful summary of the various rules of interpretation and construction of wills relating to poorly drafted wills:
The goal in interpreting a will is to give effect to the testamentary intentions of the testatrix for the distribution of her estate: Rondel v. Robinson Estate, 2011 ONCA 493, 337 D.L.R. (4th) 193, at para. 23.
The Ontario Superior Court of Justice in Re Kaptyn Estate, 2010 ONSC 4293, 102 O.R. (3d) 1, (“Kaptyn Estate”) helpfully summarized many of the principles relating to the interpretation and construction of wills:
a) The court will seek to determine the actual intention of the testator, as opposed to an objective intent presumed by law (para. 31).
b) Other cases interpreting words in other wills are of little assistance since the task is to interpret this testator’s subjective intentions (para. 32).
c) There is a distinction between interpretation and construction of a will. Interpretation seeks to determine the testator’s subjective intentions from the words used in light of the surrounding circumstances. Rules of construction are a default process turned to by the courts when the testator’s actual intentions cannot be ascertained (para 34).
d) The starting position of the court is the “armchair rule”, where the court puts itself in the place of the testator at the time when he made his will. This allows consideration of some extrinsic evidence of the surrounding circumstances known to the testator as might bear on his intentions (para. 35).
e) The authorities distinguish between admissible and inadmissible extrinsic evidence in interpreting a will (paras. 35-38):
i. “indirect extrinsic evidence” of the surrounding circumstances known to the testator at the time he made the will is generally admissible. This includes evidence of such things such as the testator’s occupation and property and financial situation; his relationships with family and friends; and natural objects of his grant;
ii. “direct extrinsic evidence” of the testator’s intentions is generally inadmissible. This is so as to preserve the will itself as the primary evidence, and to avoid the situation of an “oral will” displacing the written form. However, there is an exception where there is an “equivocation”, namely, where the will describes two or more persons or things equally well. In that situation, the law will allow evidence of the testator’s intention. Examples of inadmissible direct evidence are such things as notes or statements of the testator as to his intention, or instructions he gave his lawyer in preparing the will;
f) the court will interpret the will viewed as a whole (para. 138);
g) the court will prefer an interpretation that leads to a testacy, not an intestacy (para. 139); and,
h) the court will not hesitate to correct obvious mistakes, including deleting or inserting words, where to do so accords with the testator’s intentions, or where not to do so would lead to an absurd result (para 140).
[18] The proper approach of the court is to consider the language of the will in light of the surrounding circumstances together, rather than one first and then the other: Abram Estate v. Shankoff, 2007 BCSC 1368 at para. 77.
What do you do when a formerly beloved relative dies, bequeathing to you a piece of swampland polluted by atomic waste? Must you accept this “gift”?
The legal answer is clearly “No” so long as you disclaim the gift in a timely fashion before receiving any benefit or otherwise dealing with the property.
There may be many reasons an intended beneficiary decides not to accept a gift. Our law permits an intended beneficiary to simply disclaim the gift. The purported gift is then deemed to be void ab initio (from the beginning). It becomes as if the gift had never been given.
There are rare exceptions to this right of disclaimer, largely limited to situations such as where a trustee has agreed to accept a conveyance of property.
In this article we will review some situations where beneficiaries have disclaimed inheritances and the resulting legal consequences.
Requirements of Legal Disclaimer
The legal requirements for disclaiming a gift are minimal. A disclaimer may be effected by contract, by deed, by writing or even informally through conduct.
The intended recipient of the gift need only renounce the interest, in effect, by saying “I will not be the owner of it“. The key is doing so before dealing with the property in any way.
The decision of Re Moss, (1977) 77 D.L.R. (3d) 314, is a good illustration of disclaimer by an informal act.
This case involved an elderly man chewing tobacco on the lawn of his local Kingdom Hall. As a result of this impropriety, the Jehovah’s Witnesses excommunicated him and a short time later he died –without having changed his will leaving everything to his church.
The church elders considered this gift and soon voted to disclaim the inheritance on the basis that it would be improper for them to accept such a gift from an excommunicated member.
When challenged in court, the court upheld the disclaimer, concluding the actions of the church elders were sufficient to disclaim the gift. Nothing more was required.
In doing so, the court cited Townson vs. Ticknell (1819) 3 B & Ald. 31, as the authority for the proposition that an estate cannot be forced upon a person. Further it is not necessary to go to trouble or expense to demonstrate that a gift is not accepted.
Note however the crucial question of timing. A disclaimer may be made only before the beneficiary has derived any benefit from the assets. Once a benefit has been taken, then the disclaimer can no longer be made. A. R. Mellows, The Law of Succession, p. 508.
All or Nothing
Where there is a single undivided gift, the law requires the donee to either take the gift entirely or disclaim it entirely: the donee cannot take only part of the gift and disclaim the rest.
This principle is illustrated in the following cases:
1. Guthrie v. Walrond (1883), L.R. 22 Ch.D 573. “Here the intended gift was all my estate and effects in the island of Mauritius”. The court held that the donee must take all or nothing and could not pick and choose.
2. Green V. Britten ( 1873) 42 L.J. Ch. 187. This involved a gift of 6 leasehold villas together with an ornamental park. The court held that this was one entire gift and the recipient could not take the villas alone and leave the park.
Retroactive to the Date of Death
Once made, a disclaimer will be retroactive to the date of death of the deceased. A beneficiary who disclaims a gift is refusing to acquire the property of another. Thus the effect of the disclaimer is that the property is never acquired. Re Metcalfe (1972) 3 O.R. 598.
What Becomes of the Disclaimed Gift?
Disclaimed gifts, unless there is a gift over, will fall into the residue of the estate. Where a gift of the residue is disclaimed, in the absence of a gift over then an intestacy results. If no contrary intention appears in the will, the disclaimed residue will pass on an intestacy. Re Stuart (1964) 47 W.W.R. 500(check Cite)
In Re Backhouse (1931) W.N. 168 (Ch.), a specific legacy, once disclaimed, became part of the residue of the estate.
Where an intestacy occurs, the next of kin are to be determined, prima facie, as of the date of the testator’s death unless there is sufficient indication in the will to some other effect: McEachern v. Mittlestadt (1963) 46 W.W.R. 359.
Disclaimer Not a Fraudulent Conveyance
In Mulek v. Sembaliuk ( 1985) 2 W.W.R. 385, a couple married and had four children. Ten years later the husband’s father died leaving him an inheritance. Following the death, the parties commenced divorce proceedings. The husband ran up significant arrears of maintenance and alimony.
The husband disclaimed his interest in his father’s estate which prevented his wife and children from attaching these funds to satisfy the maintenance claim.
At trial the wife was granted an order setting aside the husband`s disclaimer on the basis that it was a fraudulent conveyance.
The Court of Appeal granted the husband’s appeal, holding that a disclaimer does not convey property, rather it avoids the gift being conveyed in the first place. The husband had no obligation to accept the bequest, in spite of his obligation to support his dependants. The husband did not convey property by disclaiming his interest thus this disclaimer could not be categorized as a fraudulent conveyance.
In the Bank of Nova Scotia v. Chan, 68 C. B. R. ( N.S.) 118, five will beneficiaries were named as co defendants in an action brought by a judgment creditor of one beneficiary who disclaimed his interest. The creditor alleged that the debtor defendant, by disclaiming his interest, had conveyed this interest with the intent to defeat or defraud creditors.
Once more the court held that a disclaimer of a beneficiary`s entitlement under a will is not a conveyance and therefore not covered by the Fraudulent Conveyances Act.
The court went on to say that should it be found that the defendant had received some form of kickback for giving up his interest, then that would be an assignment of interest rather than a proper disclaimer. Such an assignment might very well be a fraudulent conveyance.
Acceleration
A disclaimer may result in the acceleration of subsequent interests, thus permitting future heirs to take immediately.
Blacks Law dictionary, revised 4th edition, 1968 defines acceleration as “the shortening of the time from vesting in possession of an expectant interest– hastening of the enjoyment of an estate which was otherwise postponed to a later period“
The recent decision Clarke v. Di Bella 2010 BCSC 505 is a good example of such an acceleration which effectively wound up a lengthy trust.
Mrs. Bushby died in July 2007, leaving a will and an estate valued at $600,000. Her will created a trust with a life interest for her only niece with the residue divided equally among those of the daughter`s nieces/nephews alive at the time of her death. The will also provided that if any of those nieces/nephews predeceased the this niece, and they themselves had children, then their children would receive their parent’s share.
The niece was middle aged and had 3 nieces/nephews who, at the time of the hearing, were 28, 26 and 23 years of age. None had any children of their own.
The niece and her 3 nieces/nephews brought an action jointly, in which the daughter sought to renounce her interest in the trust and to have the property vest immediately and absolutely in her nieces/nephews equally.
The application was opposed by the Public Guardian who took the position that the acceleration would improperly extinguish the contingent interests of unborn beneficiaries of the will.
The court set out four clear principles relating to acceleration:
a) acceleration is presumed unless there is an indication to the contrary;
b) in assessing whether there is any intention to the contrary, the court must look at both the instrument and the surrounding circumstances;
c) the instrument must be examined in its entirety, and clauses must not be examined in isolation; and
d) the intentions must be viewed, as nearly as is possible, from the perspective of the testator, applying an objective standard.
The court held that while it is clear that the testatrix intended to provide for her daughter, there is nothing to suggest that the daughter could not disclaim that benefit and provide immediately for the ultimate beneficiaries upon her death.
The court held that the aunt was free to disclaim her entitlement thus accelerating her nieces/nephews’ interests in the estate. Each niece/nephew thus inherited one third of the estate upon attaining the age of 25 years (the age stipulated by the testatrix).
Conclusion
Beneficiaries cannot be forced to accept gifts. Beneficiaries have the right to refuse to accept gifts and may choose to do so for a wide variety of reasons.
The Clarke V. DiBella decision is an excellent example of the court permitting the a beneficiary to disclaim her interest, in order to accelerate the passing of an absolute interest to her own children.
Re Lang 2011 BCSC 972 involved a court application for an interpretation of the commonly used words “grandchildren” and “great grandchildren” that were used in the testator’s will.
The testator divided the residue of her estate to her grandchildren and great-grandchildren. At the time of her death there were two grandchildren and one great
grandchild through her two adopted children.
The testator also had 10 grandchildren and 17 great-grandchildren through her two stepchildren.
The executor brought a petition for an interpretation of the testator’s will in regards to whether grandchildren and great-grandchildren included step relatives.
The court ordered that the words grandchildren and great-grandchildren in the testator’s will were interpreted as meaning legal descendents only, as that was
consistent with the most natural and ordinary meaning of the testator’s words.
There was no convincing reason to justify a departure from the legal presumption in favor of legal descendents.
There was minimal information about the testator’s relationship with her step grandchildren and step great grandchildren.
The testator’s handwritten notes listing legal descendents me contemporaneously with the execution of her will, was most significant during those notes were
in harmony with the natural language of the will.
Nothing in the solicitors notes suggested that the testator intended to include her 27 other grandchildren and great grandchildren as residual beneficiaries.
The testator’s feeling of love and affection for her step relatives was not inconsistent with her leaving residue to only her legal descendents.
The court made the following comments:
Finch J. as he then was, said at para. 7 of Widdess Estate v. Cunningham, [1984] B.C.J. No. 3052 (S.C.):
In construing the language of a will the court looks to the meaning which the words used would have had for the Testator. The court places itself, so far as is possible, in the position of the Testator when he made the will, and construes it in light of the facts and circumstances then known to him. The Testator’s intention is to be gathered from a construction of the will, as a whole, and not solely from words used in that part of the will said to be unclear or ambiguous. And, the will is taken to speak as of the date immediately before the Testator’s death.
See also, In the Matter of the Estate of Robert Selkirk Wood, 2010 BCSC 792, para. 12.
[15] Surrounding circumstances cannot, however, add to or contradict the plain meaning of the will: Hickey Estate v. Greig et al (1987), 27 E.T.R. 17 [Hickey], at 22.
[16] The will is the primary evidence of the testator’s intent. The court will not give effect to other evidenced intent in a way that overrides what the testator has expressed in the probated will: Jensen Estate (Re) (1990), 37 ETR 137, at 140.
[17] The judge’s duty is to decide what a particular testator intended in their individual circumstances. They should not to colour their interpretation of that intent based on what another court has found another testator, in other circumstances, intended by words they used: Hickey, page 23. It is noteworthy here though, that the court in Hickey thought interpreting the will in a way that would see the provision benefiting 8 grandchildren instead of 7 was not an addition to or variation of the will. In the case at bar, one of the two possible interpretations sees 3 residual beneficiaries, the other interpretation 30.
[18] A judge can consider the testator’s “intimacy” with the potential beneficiaries: Re Lupton (1964), 44 D.L.R., (2d) 535, para. 40.
It is very common in estate litigation for the party attacking a will to want production of the drafting lawyer’s will file relating to the taking of instructions, preparation of, and execution of the deceased’s last will.
As a general statement of law, any communications between a lawyer and his or her client(s) are “privileged” and cannot be disclosed, even after death by the personal representative of the deceased.
There is a significant exception to that general rule in estate litigation that relates to the question of the actual validity of a will.
The law relating to solicitor/client privilege was reviewed in Fawcett Estate v Fawcett Estate (1998) BCJ 629, which stated inter alia:
14a a) Once the lawyer client relationship arises, the privilege becomes permanent, unless the client waives it (Descoteaux v. Mierzwmski, [1982] 1 S.C.R.
860) and a solicitor’s duty to claim the privilege / applies to former or deceased clients, subject to the exception that on death, the deceased’s instructions
concerning a will, which were privileged during his or her lifetime may be disclosed.
14b b) By extension, the exception for wills cases permits posthumous disclosure of the settlors’
instructions concerning the creation of an inter vivos trust containing life and remainder interests
(Geffen v. Goodman Estate [1991] 2 S.C,R, 353
14c c) Legal professional privilege, or solicitor/client privilege, can be waived and that privilege
belongs to the client, so the client is the party who can waive the privilege. Until the client waives the
privilege, the lawyer owes a duty to assert it on the client’s behalf (Bell v. Smith, [1968] S.C.R. 664
(Ont).
14d d) With respect to waiver of privilege, although the privilege continues after the client’s death, an executor may waive it on behalf of a deceased client (Goodman v. Geffen, [1991] 5 W.W.R. 389 at 409-414 (S.C.C.).
14e e) the prerequisites of a valid waiver are that the client must know of the privilege and the right to
claim it, and intend to relinquish it, and appreciate the consequences of doing so.
14f f) Where the purpose for seeking disclosure of the confidential communications between lawyer and client was for the purpose of attempting to defeat the testator’s true intentions, as opposed to determining the true intentions of the testator, then the application (for production of the solicitor’s file) will be dismissed (Gordon v. Gilroy, [1994] B.C.J. No. 1927 (B.C.S.C.).
disinherited.com added the emphasis to 14f and points out that it is this line of case law, following the Gordon v Gilroy case, that prevents a lawyer from successfully getting a court order for the production of the drafting lawyer’s file in a wills variation action, where the claimant is not attacking the actual validity of the will,and is simply looking for reasoning in the lawyers file that might assist the claimant in defeating the testator’s intentions by varying the will in his or her favour.
The courts have stated that the testator’s intention re the will is obvious and is as stated in the will itself.
It is only where there is a claim attacking the validity of the will, such as for lack of capacity or undue influence, that the courts will order production of the drafting lawyers file. Otherwise, the file is provileged and non compellable.
Undue Influence General Principles, When clients approach disinherited.com with respect to suspicions that undue influence was exerted upon the deceased, I am mindful of two conflicting principles:
1. in my in my experience, “where there is smoke there is fire”, so their suspicions are probably well-founded;
2. An allegation of undue influence is tantamount to that of fraud, and if unsuccessful in the litigation, the failed litigant is typically punished with special costs
which are normally the full legal fees of the opposing party.
For more information on undue influence please refer to the website article entitled “How to Win an Undue Influence Case“.
General Principles of Undue Influence
In Longmuir v. Holland, 2000 BCCA 538 at para. 71, 192 D.L.R. (4th) 62, Southin J.A. defined undue influence as “influence which overbears the will of the person influenced so that in truth what she does is not…her own act”.
In the leading case of Allcard v. Skinner (1887), 36 Ch. D. 145 at 171, 56 L.J. Ch. 1052 [Allcard] (C.A.), Cotton L.J. discussed the two classes of transactions which may be set aside on grounds of undue influence:
“First, where the Court has been satisfied that the gift was the result of influence expressly used by the donee for the purpose;
second, where the relations between the donor and donee have at or shortly before the execution of the gift been such as to raise a presumption that the donee had influence over the donor.”
The second class of undue influence does not depend on proof of reprehensible conduct. It affects those who may have acted in the sincere belief of their honesty. Under this class, equity will intervene as a matter of public policy to prevent the influence existing from certain relationships from being abused: Ogilvie v. Ogilvie Estate (1998), 49 B.C.L.R. (3d) 277 at para. 14, 106 B.C.A.C. 55 (C.A.), citing Allcard.
[100] In Geffen v. Goodman Estate, [1991] 2 S.C.R. 353, [1991] S.C.J. No. 53 at paras. 42-45, Wilson J. discussed the presumption of undue influence in the following passages:
42 ” What then must a plaintiff establish in order to trigger a presumption of undue influence? In my view, the inquiry should begin with an examination of the relationship between the parties. The first question to be addressed in all cases is whether the potential for domination inheres in the nature of the relationship itself. This test embraces those relationships which equity has already recognized as giving rise to the presumption, such as solicitor and client, parent and child, and guardian and ward, as well as other relationships of dependency which defy easy categorization.
43 Having established the requisite type of relationship to support the presumption, the next phase of the inquiry involves an examination of the nature of the transaction. …
44 … in situations where consideration is not an issue, e.g., gifts and bequests, it seems to me quite inappropriate to put a plaintiff to the proof of undue disadvantage or benefit in the result. In these situations the concern of the court is that such acts of beneficence not be tainted. It is enough, therefore, to establish the presence of a dominant relationship.
45 Once the plaintiff has established that the circumstances are such as to trigger the application of the presumption, i.e., that apart from the details of the particular impugned transaction the nature of the relationship between the plaintiff and defendant was such that the potential for influence existed, the onus moves to the defendant to rebut it. As Lord Evershed M.R. stated in Zamet v. Hyman, supra, at p. 938, the plaintiff must be shown to have entered into the transaction as a result of his own “full, free and informed thought”. Substantively, this may entail a showing that no actual influence was deployed in the particular transaction, that the plaintiff had independent advice, and so on. Additionally, I agree with those authors who suggest that the magnitude of the disadvantage or benefit is cogent evidence going to the issue of whether influence was exercised.
Accordingly, once a relationship with the potential for domination has been established, the next phase of the inquiry is to examine the nature of the transaction.
Where a gratuitous transfer is concerned, the onus moves to the defendant to rebut the presumption on the balance of probabilities: Stone v. Campbell, 2008 BCSC 1518 at para. 44, 44 E.T.R. (3d) 146.”
