Unwitnessed Will Valid: S.58 WESA

Unwitnessed Will Valid: S.58 WESA

Re Riguidel Estate 2017 BCSC 1667 found a signed but unwitnessed will to be valid by invoking the curative provisions of Section 58 WESA.

The Facts:

The people present when the deceased signed the handwritten and typed documents were the deceased, Ms. Leonard and Mr. Kapinus. The deceased was present when Ms. Leonard and Mr. Kapinus signed their names as witnesses to the deceased’s signature.

[28] Mr. Kapinus also states that he was unaware that two witnesses were required. He used the same language as Ms. Leonard did in her Affidavit, where he swore:

16. The Deceased appeared confident about signing the Will. He did not hesitate. I asked him if the Will was exactly what he wanted and he advised me that it was.

17. At no time did I observe anyone pressuring the Deceased to change his Will or to make any specific gift.

18. The Deceased and I discussed the Will and it was clear that it reflected his final wishes. The Will is consistent with my prior discussions with the Deceased.

19. I have no reason to believe that the Will is not an accurate reflection of the Deceased’s final wishes. I observed no evidence that the Deceased was forced or compelled to distribute his estate in the manner set out in the Will. The Deceased appeared to be thinking clearly at the time. He was not confused and he understood what he was doing.

[29] The most compelling evidence is that of Donna Malley, the deceased’s daughter. She states that when she learned of her father’s cancer diagnosis in January 2016. She travelled to Kamloops in order to be with him, arriving on or about February 11, 2016. She swears to the following:

3. I have learned that prior to my arrival on February 11, 2016, my father signed a document to vary his will (the “Codicil”), a true copy of which is attached hereto as Exhibit “A”.
(Exhibit A is the typewritten document prepared by Mr. Kapinus).

[30] Ms. Malley also swears the following:

4. On or about February 13, 2016, I had a conversation with my father, at which time he advised me that it was important to him that my sister, Debi, was to obtain the house that he owned after he died, as she had done so much for him.

5. Debi and her husband, Vince, lived with my parents for many years and contributed to the construction and upkeep of the house.

6. It is my understanding and belief that after my mother died, my father realized that he did not have enough money to pay his mortgage. In or about early November 2015, I was present during a conversation between my sister Debi Riguidel, Vince Kapinus, and my father in which Debi and Vince told my dad not to worry that they would pay his mortgage and bills and ensure that he would always be taken care of financially.

[31] In her Affidavit, Ms. Malley sets out her understanding as to why her sister and Mr. Kapinus were to receive the house, and describing their relationship as a “trusting and loyal friendship”, and that it is “his way of saying that he will always take care of them in the same way that they did for him”. She further swears:

11. I believe that my father intended to provide Debi and Vince with his house in part because both my sister, Kimberly, and I have houses of our own and we did not live with my parents as adults.

12. I am confident that the February 11, 2016, Codicil prepared by my father and attached hereto as Exhibit “A” is a true and accurate reflection of my father’s wishes.

The Law

[34] In Young Estate (Re), 2015 BCSC 182, Madam Justice Dickson, as she then was, described some of the factors that should be present when seeking a non-compliant document to represent the deceased’s person’s intention under the curative provisions of s. 58(3) of WESA. In determining the deceased’s final testamentary intentions, Madam Justice Dickson wrote:

[36] The burden of proof that a non-compliant document embodies the deceased’s testamentary intentions is a balance of probabilities. A wide range of factors may be relevant to establishing their existence in a particular case. Although context specific, these factors 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: Sawatzky at para. 21; Kuszak at para. 7; Martineau at para. 21.

[37] While imperfect or even non-compliance with formal testamentary requirements may be overcome by application of a sufficiently broad curative provision, the further a document departs from the formal requirements the harder it may be for the court to find it embodies the deceased’s testamentary intention: George at para. 81.

[35] The curative provisions of s. 58(3) of the WESA are fact sensitive.

[36] Extrinsic evidence is permitted in order to determine whether the non-compliant document is the deceased’s final expression, as to his or her testamentary intentions pursuant to s. 58(3) of WESA: Litke Estate (Re), 2017 BCSC 1079 at para. 39.

[37] It comes down to this – whether the document presented was prepared by the deceased and that its contents represent a “deliberate or fixed and final testamentary intention at the material time for the disposition of the estate: Litke Estate (Re) at para. 42.

Discussion

[38] I am satisfied, on the evidence, that the documents dated February 7, 2016, copies of which are in Appendix 1 to these reasons, are the deliberate expressions of the deceased’s wishes as to the disposition of his property upon his death.

[39] I also find that the handwritten document signed by the deceased and the witnesses, Ms. Leonard and Mr. Kapinus, in the deceased’s presence was to record and confirm that the typewritten document set out the terms of the handwritten document, which reflected the deceased’s intentions before the deceased signed the typewritten document.

[40] It is clear from all of the evidence that the deceased recognized a moral, if not a legal obligation, to his daughter and son-in-law for their contributions to his estate.

[41] I determine that the typewritten document dated February 7, 2016 represents and embodies the deceased’s testamentary intentions sufficient to alter his Will as to the disposition of the assets of his estate and is effective as part of the Will

Public Policy Protects Wills Variation Claims

Public Policy Protects Wills Variation Claims

If a will contains a penalty provision, known as a forfeiture clause, threatening to impose a penalty upon a beneficiary if a will is contested, then in that event,  wills variation claims are protected by public policy so that such a clause is not enforceable in wills variation actions.

Wills variation claims are now found at section 60 of WESA.

Bellinger v. Fayers, Nuytten  2003  BCSC  563 reviewed the law relating to forfeiture clauses including how they relate to wills variation claims.

The deceased’s will contained the following forfeiture provision: 

          “7.      IT IS MY FURTHER DESIRE, because of an expressed intention of one of the legatees to contest the terms of this my Will, that should any person do so then he or she shall forfeit any legacy he or she may be otherwise entitled to.”

Kent v. McKay (1982), 139 D.L.R. (3d) 318 (B.C.S.C. )

held the forfeiture clause void in so far as it purported to limit claims the Wills Variation Act.

He found the condition contrary to public policy because it attempted to penalize the legatee for bringing a successful action provided by statute

In reaching this decision Justice Lander relied on the Australian case Re Gaynor,(1960) V.R. 640 (S.C.), He then found as follows:

“It cannot be denied with respect that the intent of the Legislature in creating the Wills Variation Act, is to ensure adequate maintenance and support for specified individuals.  It is a matter of public policy that support and maintenance be provided for those defined individuals and it would be contrary to such policy to allow a Testator to circumvent the provisions of the Wills Variation Act by the creation of such as para. 9.”

Marriage Like Relationships

Marriage Like Relationships

Weber v Leclerc 2015 BCSC 6550 reviewed the law relating to what constitute a marriage like relationship in a matrimonial dispute where the female was against the institution of marriage and opposed such a finding of being in a marriage like relationship.

The parties did a considerable number of things together that would indicate that their relationship was marriage like, whether the female intended it to be or not:

The parties lived together from 2002 until at least 2011, or later (according to Mr. Weber). The following facts are not disputed:

  • Mr. Weber has two sons, and Ms. LeClerc has one. The children resided with them (although Mr. Weber shared parenting responsibility with his ex-wife), before they left home as adults.
  • The boys were about the same age. Mr. Weber and Ms. LeClerc raised their separate children together.
  • They had family portraits including themselves and all three boys that were displayed in their home.
  • They shared a bedroom and had sexual relations throughout that period and were monogamous.
  • They had a family dog and a boat.
  • The parties had contact with extended family, particularly Mr. Weber’s family. They visited that family and exchanged Christmas gifts and received presents from them.
  • The parties purchased property together and shared expenses. The title of the home in which they lived is in Ms. LeClerc’s name, although Mr. Weber made a contribution to its purchase and shared mortgage payments, until the mortgage was paid off in 2008.
  • The parties purchased other properties together and generated income from those properties according to Mr. Weber. This is not contradicted by Ms. LeClerc.
  • For the most part, the parties kept their finances separately. Ms. LeClerc assisted Mr. Weber by loaning him money from time to time. Mr. Weber repaid those loans.
  • The parties vacationed together, along with their sons. They collected memorabilia from those vacations and stored them with labels stating: “Weber LeClerc family”.
  • Mr. Weber and Ms. LeClerc shared meals together, although Mr. Weber was busy with his son’s hockey activities.
  • They both did the grocery shopping.
  • They spent their evenings together, although Mr. Weber would watch television and Ms. LeClerc would read in a separate room.
  • They went out together as a couple for dinner or to dinner parties with friends.
  • Mr. Weber and Ms. LeClerc did not discuss marriage, except perhaps on one occasion. Ms. LeClerc is opposed to marriage.
6      The parties disagree on how they spoke of each other, whether it was as a spouse or partner. Mr. Weber says he would introduce Ms. LeClerc as his wife, Ms. LeClerc disagrees.

 

THE  LAW

In Austin v. Goerz, 2007 BCCA 586, the court explained that no single factor is dispositive of the issue of whether the parties were spouses. For example, financial dependence was at one time considered to be an essential aspect of marriage of the marital relationship. That is no longer the case. At paragraph 55 the court states: “Today marriage is viewed as a partnership between equals and there is no principled reason why marital-equivalent relationships should be viewed differently.”

The court adopted the judgment of the Ryan-Froslie J. in Yakiwchuk v. Oaks, 2003 SKQB 124 at paragraph 58:

[58] It is understandable that the presence or absence of any particular factor cannot be determinative of whether a relationship is marriage-like. This is because equally there is no checklist of characteristics that will invariably be found in all marriages. In this regard I respectfully agree with the following from the judgment of Ryan-Froslie J. in Yakiwchuk v. Oaks, 2003 SKQB 124:[10] Spousal relationships are many and varied. Individuals in spousal relationships, whether they are married or not, structure their relationships differently. In some relationships there is a complete_blending of finances and property – in others, spouses keep their property and finances totally separate and in still others one spouse may totally control those aspects of the relationship with the other spouse having little or no knowledge or input. For some couples, sexual relations are very important – for others, that aspect may take a back seat to companionship. Some spouses do not share the same bed. There may be a variety of reasons for this such as health or personal choice. Some people are affectionate and demonstrative. They show their feelings for their “spouse” by holding hands, touching and kissing in public. Other individuals are not demonstrative and do not engage in public displays of affection. Some “spouses” do everything together – others do nothing together. Some “spouses” vacation together and some spend their holidays apart. Some “spouses” have children – others do not. It is this variation in the way human beings structure their relationships that make the determination of when a “spousal relationship” exists difficult to determine. With married couples, the relationship is easy to establish. The marriage ceremony is a public declaration of their commitment and intent. Relationships outside marriage are much more difficult to ascertain. Rarely is there any type of “public” declaration of intent. Often people.

[12] Madam Justice Dardi in J.J.G. v. K.M.A., 2009 BCSC 1056 provided a helpful summary of the authorities in paragraph 37:begin cohabiting with little forethought or planning. Their motivation is often nothing more than wanting to “be together”. Some individuals have chosen to enter relationships outside marriage because they did not want the legal obligations imposed by that status. Some individuals have simply given no thought as to how their relationship would operate. Often the date when the cohabitation actually began is blurred because people “ease into” situations, spending more and more time together. Agreements between people verifying when their relationship began and how it will operate often do not exist.

In summary, in undertaking an analysis of whether persons are living together as spouses, the court must examine the relationship as a whole and consider all the various objective criteria referred to in the authorities. The presence or absence of one particular factor will not be determinative. The court must recognize that each relationship is unique and, in applying a flexible approach within the context of the particular relationship, make a determination as to whether the parties intended to and were living in a marriage-like relationship.

Ms. LeClerc’s lack of belief in the institution of marriage is beside the point. As is pointed out in Yakiwchuk, people may choose not to be married for a variety of reasons: “[t]heir motivation is often nothing more than wanting to ‘be together”‘. This appears to have been the motivation here.

WESA: Forcing the Executor to Act & Rule 25-11

WESA: Forcing the Executor to Act & Rule 25-11

Forcing Executor to Act. Rule 25-11 of WESA permits ‘a person interested in the estate’ to use a Citation to compel the named executor to apply for probate or be deemed to have renounced.

This is an important tool in the arsenal of estate litigators when dealing with parties who for often unknown reasons refuse to proceed with the task of taking control of the deceased’s assets and affairs, getting the will probated, the debts paid, and the assets distributed to the beneficiaries.

Rule 25-1 (4) provides that an executor renounces executorship upon two circumstances:

  1. in the circumstances set out under paragraph 25 – 11 (5) where the executor is deem to have renounced executorship following a citation to apply for probate;
  2. when a Notice of Renunciation in Form 17 from the executor is filed in the relevant application or proceeding. There is now a prescribed notice of renunciation.

Since Rule 25-11 permits ” a person interested in the estate” to issue a Citation, so it is certainly arguable that the citation process will be available to not just named executors, beneficiaries, and creditors, but also to intestate heirs and potential wills variation claimants.

The Citation is issued in Form P32  of the WESA Rules.

The Citation  must clearly  identify the citor, the deceased, and the document which is to be probated as the will, as well as the citor1 s grounds for believing that the document exists.

The citation must be personally served and is not filed with the court registry  to commence the Citation process .

If the cited executor does apply for the grant, it is still open to the citor to apply under s. 158 of the WESA to remove or pass over the executor under appropriate circumstances.

The executor served with the Citation  must, within 14 days after being served  provide a copy of the grant of probate  by ordinary mail, or if no probate has yet been granted,  then serve the Citor as follows:

  1.  if they have submitted the probate documents to the registry, then provide by ordinary mail copies of the documents ;
  2. file an answer and form 33 stating that the cited person  will either apply for a grant of probate or refuses to apply for a grant of probate .

Under rule 25 – 11 (5)  a person who is cited to apply for a grant of probate  is deemed to have renounced executorship  to that document unless the grant of probate is obtained within six months after the date in which the citation was served, or within any longer. The court on application by the cited party may allow, or has filed an answer stating that   the executor refuses to apply for a grant of probate in respect of the testamentary document.

The standard 21 day notice of the application for probate will use up a significant portion of that six month period .

Any issue concerning the validity of the will or another impediment such as a notice of dispute, then the time period would be impossible to meet.

It is likely that in such scenarios that a court applications to extend the time period would be  necessary.

Section 46 WESA and Lapsed Gifts

Section 46 WESA deals with the lapsed gifts in wills often caused by poor will drafting ,  failure by the parties to properly consider what the future may bring , or the beneficiary predeceasing, any of which results in   disappointed beneficiaries not receiving the intended gift.

Instead of  wording the will’s bequest of  “any real property that I own at the time of my death” , many will- drafters instead incorrectly state a particular address of a particular property, owned at the time of the will making,  but long sold before death.

The gift of real property  in that situation has lapsed simply because it ceased to exist.

Almost by definition, a lapsed gift results when a substantial change in circumstances occurs between the execution of the will and death, so that the gift has either failed or ceased to exist.

The lapsed gift often results from both poor drafting together with the simple fact that many people do not realistically ponder their aging and succession and just resort to avoidance.

Very often the beneficiary predeceases  the will- maker at which time the “anti-lapse rule of S 46 of WESA (Wills, Estates and Succession Act) ”  establishes a default scheme for determining alternative beneficiaries of a lapsed gift.

The Default Scheme of Section 46 WESA (Replacing  and altering the previous S. 29 Wills Act)

Section 46 applies to all gifts of any nature, whether specific in nature or residual but only if there is no contrary  intention stated in the will.

If the will- maker has named an alternate beneficiary for a gift that has lapsed, then in that event the alternate beneficiary has the first priority to inherit the gift, no mater what the reason for the failure of the gift.

If there was no alternative beneficiary of the gift , and the named beneficiary is  either a sibling, or as descendant of the will- maker, then the named beneficiary’s descendants will be entitled to the failed gift.

If there was no descendant of the will- maker , then the gift will go to the residual beneficiaries in  proportion to their named interests in the will.

When gifts cannot take effect

46 (I) If a gift in a will cannot take effect for any reason, including because a beneficiary dies before the will-maker, the property that is the subject of the gift must, subject to a contrary intention appearing in the will, be distributed according to the following priorities:

(a) to the alternative beneficiary of the gift, if any, named or described by the will-maker, whether the gift fails for a reason specifically contemplated by the will-maker or for any other reason;

(b) if the beneficiary was the brother, sister or a descendant of the will-maker, to their descendants, determined at the date of the will-maker’s death, in accordance with section 42(4) [meaning of particular words in a will];

(c)  to the surviving residuary beneficiaries, if any, named in the will, in proportion to their interests.

(2) If a gift cannot take effect because a beneficiary dies before the will-maker, subsection (I) applies whether the beneficiary’s death occurs before or after the will is made

Wills Variation: Elderly Common Law Spouse

Wills Variation: Elderly Common Law Spouse

Mars v Blais 2011 BCSC 1714 involved a 91 year old widow who brought a wills variation action ( now S. 60 WESA) against the estate of her late common law partner of 9 years. The wills variation  action was prior to WESA but would likely have been decided the same after WESA came into effect.

They value of the estate was approximately $1.5 million.

The deceased left a will, leaving the plaintiff a life estate in the matrimonial home, plus $50,000. He left the residue of the estate to his 62-year-old son who had no income and owned no property.

The 91-year-old plaintiff was economically independent with their own pension income plus rental from the property, and the judge found that she would not need to use her own capital in order to live.

All of the assets of the deceased’s estate were accumulated by the deceased prior to meeting the plaintiff. They lived a modest lifestyle and did not share or intermingle their assets.

The court awarded the plaintiff the sum of $200,000 and the life estate in the matrimonial home on the same terms of the will, which provided for the estate to pay for the upkeep and taxes of the  home and property, which was in need of substantial repair.

Discussion

[61]           There are two interests protected by the WVA. The first is to ensure adequate, just and equitable provision for the testator’s spouse and children and the second is to honour his testamentary autonomy (Tataryn v. Tataryn 1994 51 (SCC), [1994] 2 S.C.R. 807; Hall v. Korejwo, 2011 BCCA 355 , 2011 BCCA 355 at para. 35).

[62]           The first consideration is the testator’s legal obligations to a spouse and children and the second is the moral obligations to spouses and children with legal obligations taking precedence over moral obligations. (Hall at para. 35).

[63]           In determining the legal obligation the first consideration is the testator’s legal obligations to support his spouse or children (Picketts v. Hall (Estate), 2009 BCCA 329 , 2009 BCCA 329 at para. 50). “The legal aspect of [the plaintiff’s] claim under the [WVA] is limited to the claim she would have had for spousal support” (Picketts at para. 58).

[64]           None of the assets in the estate came into being through any joint effort involving Ms. Mars. There was no evidence tendered about Ms. Mars’ life expectancy or evidence of her ongoing financial needs for support. The general statement made by her that she does not need more money to meet her needs satisfies me that she is able to live comfortably, on her current income, at the level they shared before Mr. Bain’s death.

[65]           In view of the incomes of the parties throughout their time together and the modest life style enjoyed by them, Mr. Bain’s Will was more than adequate to meet his legal obligations to provide spousal support for Ms. Mars as contemplated by Low J.A. in Picketts.

[66]           The assessment of Mr. Bain’s support obligations is the same whether based on the compensatory or non-compensatory approach. (Morgan v. Pengelly Estate 2011 BCSC 1114 , 2011 BCSC 1114 at para 205).

[67]           The second question is whether Mr. Bain’s Will has satisfied his moral obligations to family members that could reasonably be expected of a judicious person in like circumstances. Claims based on legal obligations will generally take precedence over those based on moral duties, and what is adequate, just and equitable in the circumstances is judged by contemporary standards. See Hall at para. 35.

[68]           Any variation of Mr. Bain’s will should be limited to the extent required to achieve the objectives of the WVA. (Tataryn at 823-4;Crerar v. Crerar 1998 5375 (BC CA), (1998) 61, B.C.L.R. (3rd) 55.

[69]           The Estate Administration Act, R.S.B.C. 1996, c. 122, provides some indication of contemporary standards but does not directly affect the considerations that govern the applications under the WVA (Hall at paras. 44 and 46).

[70]           In analyzing Mr. Bain’s moral obligation I am informed by the comments by McLachlan J. in Tataryn at 822-23 in assessing a testator’s moral obligation:

For further guidance in determining what is “adequate, just and equitable”, the court should next turn to the testator’s moral duties toward spouse and children.  It is to the determination of these moral duties that the concerns about uncertainty are usually addressed.  There being no clear legal standard by which to judge moral duties, these obligations are admittedly more susceptible of being viewed differently by different people.  Nevertheless, the uncertainty, even in this area, may not be so great as has been sometimes thought.  For example, most people would agree that although the law may not require a supporting spouse to make provision for a dependent spouse after his death, a strong moral obligation to do so exists if the size of the estate permits.  Similarly, most people would agree that an adult dependent child is entitled to such consideration as the size of the estate and the testator’s other obligations may allow.  While the moral claim of independent adult children may be more tenuous, a large body of case law exists suggesting that, if the size of the estate permits and in the absence of circumstances which negate the existence of such an obligation, some provision for such children should be made: Brauer v. Hilton 1979 746 (BC CA), (1979), 15 B.C.L.R. 116 (C.A.);  Cowan v. Cowan Estate (1988), 30 E.T.R. 216 (B.C.S.C.), aff’d (1990), 37 E.T.R. 308 (B.C.C.A.); Nulty v. Nulty Estate 1989 244 (BC CA), (1989), 41 B.C.L.R. (2d) 343 (C.A.).  See also Price v. Lypchuk Estate, supra, and Bell v. Roy Estate1993 1262 (BC CA), (1993), 75 B.C.L.R. (2d) 213 (C.A.) for cases where the moral duty was seen to be negated.

[71]           In Bridger v. Bridger Estate, 2006 BCCA 230 , 2006 BCCA 230 McKenzie J.A. discussed the tension between competing moral claims:

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

[72]           Low J.A. in Picketts described several helpful factors in assessing the moral obligations of a testator. He examined:

•        the absence of a legal obligation to the testator’s sons;

•        the length of the marital relationship – in this case nine years;

•        the agreement of the spouse to give up a career depriving her of the opportunity to accumulate in the estate of her own;

•        the necessity of the spouse to dip into her savings to supplement living expenses the testator had agreed to provide;

•        the lengthy period of loving and effective care provided by the spouse to the testator during his decline;

•        a promise made by the testator to take care of the spouse as though she were his wife; and

•        the size and liquidity of the estate.

[73]           In this case, there appears to be a moral obligation owed by Mr. Bain to his son. Daniel Bain is 62 years of age and appears to be vocationally and economically vulnerable. He has no income and no property (except for the Scottish property) and has been dependent on the estate for his living expenses for at least eight months. He is not looking for work but he seems to have little demonstrated ability to find or keep work. There was little or no evidence to explain Daniel’s circumstances and I am left to reach a conclusion without an abundance of information.

[74]           In the present case the parties began cohabitating quite late in life and remained together for nine years. They did not engage in a sharing of assets or significant economic contributions to the estate other than sharing the Odlum Street house. Both of Mr. Bain’s properties and his savings were acquired before they joined their households. It appeared to me that Ms. Mars did not have an expectation of sharing Mr. Bain’s properties.

[75]           Ms. Mars argued that Mr. Bain’s efforts to contact his lawyer about changes to his will and their plans to marry demonstrated an intention to share assets or make a different provision for the distribution of his estate after death. The evidence of what he intended is too speculative to be a factor in the assessment of his moral obligation.

[76]           Ms. Mars is economically self-sufficient with income from her own pension and the veteran’s pension provided by Mr. Bain. With her right to receive income from the Odlum Street house coupled with the $50,000 bequest she will not likely need to use her own funds to provide for her support.

[77]           Ms. Mars and Mr. Bain enjoyed a very modest but fulfilling relationship during their nine years together. Ms. Mars did provide care and support for Mr. Bain during his decline and until his death. Unlike Ms. Pickett’s role, the evidence of Ms. Mars’ care of Mr. Bain was quite limited.

[78]           The size of Mr. Bain’s estate is considerable. The liquidity in the estate is less certain; the evidence suggested that there could be significant capital gains taxes to be paid by the estate triggered by Mr. Bain’s death.

[79]           Ms. Mars has expressed a deep desire to continue to reside in the Odlum Street house. While counsel suggested that, in light of her age, she may not be able to remain in the house, there was no evidence that she is, or will be, incapable of living there.

[80]           Low J.A. commented that the spouse in Picketts was entitled to administer her own financial affairs and was entitled to a measure of testamentary autonomy of her own so that she could pass her own estate to whomever she wished (para. 65). I take Mr. Justice Low’s comment to suggest that the analysis of a moral obligation ought not to be influenced by the fact that the assets received after a variation of the will may not be used by the beneficiary before her death. The fact that Ms. Mars may give away or bequeath all of her assets to another person should not affect her entitlement to receive that which Mr. Bain was morally obliged to give her under the Will.

[81]           Mr. Bain left the bulk of the capital of his estate to Daniel. Daniel is, in my view, in serious need of support, although he professed an ability to support himself, the evidence suggests otherwise. The fact he has been using estate funds to support himself is one indication of his current need.

S. 52 WESA: Undue Influence Presumption re Dependence

S. 52 WESA: Undue Influence Presumption re Dependence

Positions of dependence or domination are frequently involved in estate litigation and typically relate to caregiving or predator type behavior that ultimately takes advantage of  feeble mind.

Elder Estate v Bradshaw 2015 BCSC 1266 involved a contested court action re  the validity of the deceased’s will as a result of allegations of lack of mental capacity and undue influence.

The deceased left his entire estate to a 26 year younger housekeeper who gradually became his caregiver. The will was challenged by his three nephews who were his next of kin on an intestacy.

The decision is a good source of law relating to both the legal framework for proving the validity of a will in solemn form, as well as a review of undue influence, both with respect to a bequest left in the will and monies advanced to a joint bank account.

The court examined the evidence of several witnesses and concluded that there was no undue influence on the part of the caregiver with either the will or the joint bank account.

The deceased was elderly, had no next of kin and was almost reclusive. The relationship between the parties was over several years and the witnesses testified that their relationship was not suspicious in any manner. The evidence supported the caregiver’s position that she was his main source of emotional and physical support for many years, and he stated that he did not know what he would do without her.

It is somewhat surprising that the court does not adopt  s. 52 WESA in its reasons for judgment relating to the issue of the shifting onus of proof re undue influence other than to say that the legal framework to prove the will in solemn form is still the law relating to the shifting burden of proof, despite the wording of s.  52.

It is almost impossible to separate the two issues of lack of mental capacity and undue influence as they are invariably intertwined in the facts. Probably the only undue influence case that might occur without there being lack of mental capacity is the situation of a cult were on person controls the minds of many.

 

THE  LAW

[10]         In Leung v. Chang, 2013 BCSC 976, Dardi J. summarized the pertinent authorities and legal framework for analyzing a proof in solemn form claim where issues of testamentary capacity and undue influence are raised:

Legal Framework of Proving a Will Valid In Solemn Form

[25]      The Supreme Court of Canada in Vout v. Hay, [1995] 2 S.C.R. 876 clarified the principles with respect to the burden of proof in litigation regarding contested wills. The Court articulated the considerations which govern the interrelation of the doctrine of suspicious circumstances and the issues of testamentary capacity, knowledge and approval, undue influence and fraud.

[26]      In an action for proof of will in solemn form, the party propounding the will must prove on a balance of probabilities that the will was executed in compliance with the statutory formalities, that the will-maker knew and approved of the contents of the will and that the will-maker had testamentary capacity: Vout at paras. 19-20.

[27]      In order to make a valid will, the will-maker must have a “baseline level of mental acuity” or a “disposing mind and memory”, sufficient to appreciate and comprehend the nature and effect of the essential elements of the testamentary act. This encompasses an appreciation of the claims of the persons who are the natural objects of her estate and the extent of her property of which she is disposing: Laszlo v. Lawton, 2013 BCSC 305 at para. 185; Banks v. Goodfellow (1870), L.R. 5 Q.B. 549; Leger v. Poirier, [1944] S.C.R. 152 at 161. The assessment of whether a will-maker possesses testamentary capacity is a highly individualized inquiry and is a question of fact to be determined in all the circumstances: James v. Field, 2001 BCCA 267 at para. 51; Laszlo at para. 197.

[28]      In certain circumstances, the propounder of the will, in discharging the burden of proof, is aided by a rebuttable presumption of validity. If the will was duly executed in accordance with the requisite statutory formalities after being read over to or by a testator who appeared to understand it, it is presumed the testator possessed the requisite testamentary capacity and knew and approved of its contents: Vout at para. 26.

[29]      This presumption may be rebutted by evidence of “well-grounded suspicions”, referred to in the jurisprudence as “suspicious circumstances”, relating to one or more of the following circumstances:

(i)         surrounding the preparation of the will;

(ii)        tending to call into question the capacity of the will-maker; or

(iii)       tending to show that the free will of the will-maker was overborne by acts of coercion or fraud: Vout at para. 25.

[30]      If suspicious circumstances are established, then the presumption is spent and the legal burden of proof reverts to the propounder of the will. The propounder of the will then reassumes the legal burden of proving knowledge and approval, as well as proving testamentary capacity, if the suspicious circumstances reflect on the mental capacity of the will-maker to make a will: Woodward v. Grant, 2007 BCSC 1192 at para. 108. In order to discharge the burden, the propounder of the will is required to dispel the suspicious circumstances that have been raised: Ostrander v. Black (1996), 12 E.T.R. (2d) 219 at para. 30 (Gen. Div.).

[31]      In Vout, the Court affirmed that if a court determines that suspicious circumstances exist, the applicable standard of proof is a balance of probabilities. However, the evidence must be scrutinized in accordance with the gravity of the suspicion raised in any particular case.

[32]      In order to rebut the presumption of validity, those attacking the will must meet the threshold of demonstrating that there is some evidence “which, if accepted, would tend to negative knowledge and approval or testamentary capacity”: Vout at para. 27; Maddess v. Racz, 2009 BCCA 539 at para. 31. The court in Scott v. Cousins (2001), 37 E.T.R. (2d) 113 (Ont. S.C.J.) describes the requisite evidence as that which “excites the suspicion of the court”. A “general miasma of suspicion that something unsavoury may have occurred” is insufficient to rebut the presumption of validity; the evidence must raise a “specific and focused suspicion”: Clark v. Nash (1989), 61 D.L.R. (4th) 409 at 425 (B.C.C.A.).

[33]      The court in Laszlo provides the following instructive observations regarding the doctrine of suspicious circumstances at para. 207:

Suspicious circumstances have been found to exist in a wide array of situations and are not necessarily sinister in nature. There is no checklist of circumstantial factors that will invariably fit the classification. Commonly occurring themes include where a beneficiary is instrumental in the preparation of the will (especially where the beneficiary stands in a fiduciary position to the testator), or where the will favours “someone who has not previously been the object of [the testator’s] bounty and does not fall within the class of persons testators usually remember in their wills, that is to say their next of kin.

Undue Influence

[34]      When undue influence or fraud is alleged, the party opposing probate always bears the legal burden of proving on a balance of probabilities the affirmative defence of undue influence: Vout at para. 28. It is important to appreciate that in these circumstances, the doctrine of suspicious circumstances and the shifting of the burden of proof has no application.

[35]      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 amounted to coercion, such that the will did not reflect the true intentions of a free will-maker and was not the product of the will-maker’s 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: Maddess v. Racz, 2008 BCSC 1550 at para. 324 aff’d 2009 BCCA 539; Freeman v. Freeman (1889), 19 O.R. 141 at 155 (C.A.); Scott at para. 112.

[11]         I adopt this summary as accurate and applicable in respect of the issues regarding the validity of the 2011 Will in the present case. Paragraphs 34-35 of the quoted passage are no longer applicable to wills to which s. 52 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [WESA] applies, that is, where the will-maker died after March 31, 2014.

S. 60 WESA (Wills Variation) Explained

S. 60 WESA (Wills Variation) Explained

I was counsel for the plaintiffs in both the WESA case Brown v Pearce Estate 2014 BCSC 1402 which relied upon the law as set out in detail in McBride v Voth estate 2010 BCSC 443 in which I was also counsel, and both cases explain the law of wills variation now S 60 WESA, very well.

S. 60 applications to vary a will of the deceased for being inadequate and unfair can only be brought by a spouse, by same sex and common law and married, and a child of the deceased, natural or adopted but not a step child.

 

THE   LAW:

The WVA was repealed in March 31, 2014 and replaced by the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”).  The transition provisions of WESA (s. 185) provide that Part 6 [estate administration, including variation of the will] “apply in respect of deaths occurring on or after the date on which those Parts come into force”.  Hence it is the WVA which applies to this claim.  In any event, the relevant provisions in the WVA and WESA are the same.

[132]     In McBride v. McBride Estate, 2010 BCSC 443, Madam Justice Ballance provided a very comprehensive and erudite analysis of the law pertaining to wills variation which I recite and adopt in its entirety:

Legal Framework

119      The heart of the Act is found in s. 2.  It provides that if, in the court’s opinion, a will fails to make adequate provision for the proper maintenance and support of the testator’s spouse or children, the court is empowered, in its discretion, to vary the will to make provision that it considers adequate, just and equitable in the circumstances.

120      The Supreme Court of Canada’s decision in Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807 [Tataryn], continues to be the seminal case and the governing authority in British Columbia on wills variation.  To fully appreciate the importance of Tataryn, it is useful to understand the jurisprudential context in which it was decided.  While I do not propose to summarize the pre-Tataryn case law (and it is, I think, crucial to approach the jurisprudence based on whether it came before or after Tataryn), the Supreme Court of Canada decision of Walker v. McDermott, [1931] S.C.R. 94 [Walker] warrants particular mention.

121      The central issue for the Court in Walker was whether the adult independent daughter had to demonstrate financial need of support in order to obtain judicial variation of her father’s will.  The majority of the Court turned away from a financial needs-based approach.  In his often-quoted passage, Duff J., speaking for the majority, endorsed a broad interpretation of the scope of “proper maintenance and support”, one which encompasses the notion that a testator shoulders a moral obligation as a spouse and parent (at p. 96):

What constitutes “proper maintenance and support” is a question to be determined with reference to a variety of circumstances.  It cannot be limited to the bare necessities of existence.  For the purpose of arriving at a conclusion, the court on whom devolves the responsibility of giving effect to the statute, would naturally proceed from the point of view of the judicious father of a family seeking to discharge both his marital and his parental duty; and would of course (looking at the matter from that point of view) consider the situation of the child, wife or husband, and the standard of living to which, having regard to this and the other circumstances, reference ought to be had.  If the court comes to the decision that adequate provision has not been made, then the court must consider what provision would be not only adequate, but just and equitable also; and in exercising its judgment upon this, the pecuniary magnitude of the estate, and the situation of others having claims upon the testator, must be taken into account.

122      Judicial reception of Walker was divided.  Over time, two competing lines of authority emerged: those maintaining that demonstration of a claimant’s economic need was a prerequisite to relief, and those that were true to the Walker analysis.

123      The Tataryn Court was cognizant of the lack of judicial uniformity in the approach to the statute and of the expressed criticism that the law was in disarray and promoted unpredictable trial outcomes based on the “length of the Chancellor’s foot”.  (See Leopold Amighetti, The Law of Dependents’ Relief in British Columbia (Toronto: Carswell, 1991), at p. 56.)  Tataryn did not introduce the moral obligation consideration into the analysis of whether provision consistent with the Act had been made.  The Tataryn Court simply affirmed its earlier decision in Walker and laid to rest any lingering legitimacy of a needs-based model.

124      In Tataryn, McLachlin J. (now the C.J.C.), writing for the Court, went some distance to clarify the moral duty concept and the interplay between it and a judicious testator’s spousal and parental legal duties in light of contemporary standards.  Her articulation of the relevant considerations and the principles underpinning the Act has been reiterated in virtually every case decided thereafter.  Her Ladyship powerfully summarized the application of the Act by observing that “the search is for contemporary justice” (p. 815).

125      McLachlin J. identified the two fundamental interests protected by the Act.  The main statutory objective is the adequate, just, and equitable provision for a testator’s spouse and children.  The other protected interest is the testator’s testamentary autonomy.  Of necessity, testamentary freedom is subordinate to the main objective of the Act.  This is because a testator is only permitted to be unconstrained in his or her testamentary dispositions so long as adequate provision has been made to the narrow class protected by the Act.  The conceptual essence of the Act is to permit judicial interference of testamentary freedom where a testator’s spouse or child has not been left adequate provision.  Testamentary freedom must therefore yield to the extent required to achieve adequate, just and equitable provision for the applicant spouse and/or children.  In that sense and to that degree only, testamentary autonomy will be curtailed by the application of the Act.

126      The Tataryn Court held that the determination of whether adequate provision has been made and, if not, the provision to be substituted by the court to achieve an adequate, just and equitable distribution are “two sides of the same coin” (p. 814).

127      The basic approach formulated in Tataryn to address the adequacy of the testamentary provision can be summarized as follows:

In the pre-Tataryn benchmark case of Price v. Lypchuk (1987), 11 B.C.L.R. (2d) 371, 26 E.T.R. 259 (C.A.) [Price], the Court of Appeal clarified that because societal circumstances change, the judicious spouse/parent of the Walker decision must be assessed in accordance with a contemporary view of marital and parental obligations, and of testamentary autonomy.  McLachlin J. affirmed that proposition.  The question of whether a testator has acted as a judicious parent or spouse in relation to the provision under the will is measured by an objective standard, assessed in light of current societal legal norms and current societal moral norms.

Legal Norms

Legal norms are the obligations that would be imposed upon the testator during his or her life if the question of provision for the claimant spouse or child were to arise.  In the words of McLachlin J., a testator’s legal responsibilities while alive “reflect a clear and unequivocal social expectation, expressed through society’s elected representatives and the judicial doctrine of its courts” (p. 821).  Pursuant to Tataryn, a testator’s legal obligations, had he or she not died, arising under the Family Relations Act, the Divorce Act, and the law of constructive trust are relevant factors in the assessment of the testator’s legal obligations for the purposes of the Act.  McLachlin J. acknowledged that a testator’s legal obligations may extend to dependent children and left open the prospect that an independent adult child might have a legal claim against a parent based on unjust enrichment (p. 822).  While McLachlin J. recognized that the legal obligations that contemporary society imposes on living testators vis-à-vis their spouses and children are not necessarily parallel to those on death, she regarded them to be an important indication of the nature of the legal duty in death (p. 822).

Moral Norms

McLachlin J. indicated that a testator’s moral duties are found in “society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards” (p. 821).  She acknowledged that because there is no clear legal standard to assess moral duties, obligations falling under that rubric are more susceptible to being differently interpreted by different individuals (p. 822).

The position under the Act of a testator’s self-sufficient adult child has been controversial since the inception of the statute.  In directing her mind to the moral claims of such children, McLachlin J. noted that while they may be more tenuous than that of a spouse or dependent child, the jurisprudence suggests that where the size of the estate permits, some provision for such children should be made, unless there are circumstances that would negate such an obligation (p. 822).

Tataryn recognized that there is no single way for a testator to divide the estate in order to discharge the legal and moral duties.  In this regard, McLachlin J. reminded that it is only where the testator has chosen an option which falls below his or her obligation defined by reference to the contemporary sense of legal and moral norms, that a court will make an order “which achieves the justice the testator failed to achieve” (p. 824).

Balancing the Claims

Tataryn held that all legal and moral claims should be satisfied where the magnitude of the estate permits.  If that is not possible, the court must prioritize the competing claims.  Claims that would have been recognized as legal obligations during a testator’s lifetime should “generally take precedence” over moral claims (p. 823).  The court must also weigh the competing moral claims and rank them according to their strength.  Where the estate assets permit, as part of the assessment of a testator’s moral duty the court must take into account the testator’s legitimate testamentary concerns for the protection of beneficiaries and future generations and the carrying out of social purposes which may go beyond providing for the surviving spouse and children (p. 823).

128      In Tataryn, the Court clarified that because they are “two sides of the same coin”, the factors taken into account to determine whether a testator has made adequate provision are also relevant to the determination of what would constitute adequate, just and equitable provision in the particular circumstances.  A number of years ago, this Court identified circumstances that might support or negate a testator’s moral duty to recognize the claim of an adult child in the decision of Clucas v. Clucas Estate, 25 E.T.R. (2d) 175, [1999] B.C.J. No. 436 (S.C.).  I would supplement that helpful summary with the following overview of six of the considerations that inform the existence and the strength of a testator’s moral duty to independent children.  Although many of these factors were developed before Tataryn, for the most part they maintain relevance for the post-Tataryn court.

1. Contribution and expectation

129      Contributions by the claimant to the accumulation of a testator’s assets with little in exchange, or providing other types of contribution or care to a testator will generally serve to strengthen the moral obligation, other things being equal.  The contribution may also found a legal claim in unjust enrichment or quantum meruit: Tataryn; Re Sleno 78 D.L.R. (3d) 155, [1977] B.C.J. No. 140 (S.C.); Lee v. King Estate, [1975] B.C.J. No. 893 (S.C.); Harris v. Harris, [1980] B.C.J. No. 1417 (S.C.); Ryan v. Delahaye Estate, 2003 BCSC 1081, 2 E.T.R. (3d) 107 [Ryan].  Contributions made by a first spouse who predeceased the testator may support a moral obligation to the adult claimant children of that first marriage: Saugestad v. Saugestad, 2008 BCCA 38, 77 B.C.L.R. (4th) 170; Waldman v. Blumes, 2009 BCSC 1012, 51 E.T.R. (3d) 253.

130      A moral duty may arise where the testator’s conduct has created a bona fide expectation on the part of the plaintiff to receive a benefit which does not come about on death: Marsh v. Marsh Estate 19 E.T.R. (2d) 184, [1997] B.C.J. No. 1286 (S.C.); More v. More Estate, 2002 BCSC 920, 46 E.T.R. (2d) 96.

2. Misconduct/Poor character

131      Section 6(b) of the Act empowers the court to refuse variation to a person whose character or conduct, in the opinion of the court, disentitles him or her to relief.  Such misconduct is measured as at the date of death, not subsequently, and must be directed at the testator.  Generally speaking, the conduct must be relatively severe in order to justify disinheritance: Gieni v. Richardson Estate, [1995] B.C.J. No. 1227 (S.C.); Sammon v. Stabbler, 2000 BCSC 1048, 77 B.C.L.R. (3d) 283.  A child who is a disappointment overall (Sawchuk v. MacKenzie Estate, 2000 BCCA 10), is an “incompetent weakling” (Re Bailey Estate, [1972] 1 W.W.R. 99, 1971 CarswellBC 195 (S.C.)), or is unsuccessful in multiple business ventures and has a difficult time “fighting the battle of life” (Re Radcliffe, 2 B.C.L.R. 220, [1977] B.C.J. No. 1036 (S.C.)) was not considered to be sufficiently defective.

3. Estrangement/Neglect

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

4. Gifts and benefits made by the testator during lifetime

133      Depending on the circumstances, a testator’s moral duty may be diminished or negated entirely where he or she has made inter vivos gifts to the claimant, or the claimant has received assets on the testator’s death outside the framework of the will.  This includes benefits conferred by way of an inter vivos trust, outright gift and assets passing on death by operation of law such as joint tenancies, and by way of specific beneficiary designation of insurance proceeds, RRSPs, pension benefits, RIFs, and the like.  On the same reasoning, if a testator has made pre-death gifts to individuals other than the plaintiff, or has arranged his or her affairs to facilitate a passing of assets to such individuals outside the provisions of the will, the moral duty owed to the plaintiff may be intensified.  See generally: Ryan; Higgins v. Wojciechowski Estate, [1992] B.C.J. No. 1398 (S.C.); Inch v. Battie, 2007 BCSC 1249, 36 E.T.R (3d) 79 [Inch].

5. Unequal treatment of children

134      That an independent child has not been given the same provision under a will as the testator’s other child or children will not, of itself, necessarily establish a moral claim: Re Lukie et al and Helgason et al., 72 D.L.R. (3d) 395, [1976] B.C.J. No. 1393 (C.A.); Price.  On the other hand, in Vielbig v. Waterland Estate (1995), 1 B.C.L.R. (3d) 76, 6 E.T.R. (2d) 1 (C.A.), the Court of Appeal held that equal treatment among independent adult children is prima facie fair from a moral duty standpoint.  In Ryan, the court held that in the absence of relevant reasons for an unequal distribution, there is a reasonable expectation that adult children will share equally, even though no legal obligation requiring equal distribution exists. (para. 67).  The emerging rule of thumb to the effect that equal apportionment among children prima facie discharges a testator’s moral duty was applied in Inch.  There, the court held that an equal distribution was prima facie fair, despite the fact that one child received significant assets by way of inter vivos transfers.  The proposition was recently revisited by the Court of Appeal in Doucette.  In that case, the Court of Appeal appeared to have no difficulty with the disinheritance of one of the preferred beneficiaries by allocating her nothing out of the estate in light of the generous gifts that she had received outside the will via jointly held assets.

6. Testator’s reasons for disinheritance/Subordinate benefit

135      The approach to be taken by the court in relation to a testator’s reasons for disinheriting or providing a modest benefit only to a child starts with consideration of the Court of Appeal decision in Bell v. Roy Estate (1993), 75 B.C.L.R. (2d) 213, 48 E.T.R. 209 (C.A.) [Bell].  In Bell, the testator left a will under which she bequeathed a small gift to one adult son, nothing to her adult daughter, and left the lion’s share of her estate to her other adult son.  Contemporaneously with making her will, the testator wrote a separate letter purporting to explain the unequal treatment of her children, and in particular the disinheritance of her daughter.  The trial judge concluded that the reasons offered by the testator for disinheriting her daughter were accurate and sufficient to support the will. Accordingly, variation of the will was refused.  The Court of Appeal’s dismissal of the daughter’s appeal came before the Supreme Court of Canada issued its decision in Tataryn.

136      In his analysis in Bell, Goldie J.A., for the Court, placed heavy reliance on the post-Walker legislative amendments to the Act enacted in 1971 (now s. 5), which permit the court to accept evidence of the testator’s ascertainable reasons for making or not making the dispositions in the will relative to his or her spouse and children.  That section stipulates that where such evidence is in the form of a written statement signed by the testator as in Bell, the court, in weighing the statement, must have regard to all of the circumstances which may reasonably support an inference about the accuracy or otherwise of it.

137      In addressing those statutory amendments, Goldie J.A. stated, at para. 38:

38        … the weight to be given evidence of the testator’s reasons is affected by its accuracy and not by morally acceptable or unacceptable content.  I do not say the legislature swept away any objectively determined moral duty.  I do say, however, that the actual intentions of the testator are to be given an effect which is largely denied by reliance upon the notionally objective reasonable testator.

138      In Bell, the Court of Appeal held that where financial need is not a factor, if the court finds that the testator’s reasons purporting to explain a disinheritance are valid and rational, the testator’s moral duty in respect of that child is negated.  The Court held that the burden then shifts to the plaintiff to show that the reasons acted upon by his or her parent were false or unwarranted.

139      Goldie J.A. acknowledged that this approach placed greater emphasis on a testator’s intentions and “less on those which might be imputed to her by reference to the reasonable testator” (para. 36).  He endorsed giving effect to a testator’s subjective rationale which would be “largely denied” by employing an objective reasonable testator standard.

140      The Court of Appeal reaffirmed the Bell model after Tataryn was decided at the Supreme Court level.  In Kelly v. Baker (1996), 82 B.C.A.C. 150, 15 E.T.R. (2d) 219 (C.A.) [Kelly], the Court of Appeal applied the Bell analysis and concluded that the testator had valid and rational reasons for disinheriting the claimant.  As to the content of the reasons, Kelly stated that the testator’s reasons for disinheriting a child need not be justifiable. The Court observed that the law merely requires that the reasons are valid, meaning based on fact, and rational in the sense that there is a logical connection between them and the act of disinheritance (para. 58).

141      One cannot quarrel with the outcomes in Bell and Kelly in light of their particular facts.  The thorny issue is that the model of inquiry endorsed by Bell and followed in Kelly effectively precludes an assessment of whether the testator’s reasons are objectively justifiable from the standpoint of the contemporary judicious parent of Tataryn.  In Tataryn, McLachlin J. made passing mention of Bell as an example of a case where a testator’s moral duty was seen to be negated.  Notably, she did not say nor delve into whether the proposition espoused by Goldie J.A. to negate that moral duty was sound.  If the decisions of Bell and Kelly mean that the applicable test is whether a testator has valid (i.e. factually true) and rational (i.e. logically connected to the disinheritance) reasons for disinheriting a child, even where the reasons are unworthy of an objectively judicious parent based on contemporary standards, then they are difficult to reconcile with the fundamental precepts of Tataryn and the search for contemporary justice in the circumstances.

142      For the most part, the apparent incompatibility between Bell and Kelly on the one hand, and Tataryn on the other, has not been squarely confronted by this Court (an exception is found in Hammond v. Hammond (1995), 7 B.C.L.R. (3d) 25, 7 E.T.R. (2d) 280 (S.C.)).  I would respectfully observe that there appears to be a growing trend in the authorities decided in the aftermath of Kelly to favour rejection of objectively insufficient reasons on the pretence that they are simply not rational.

[133]     The Court of Appeal also recently discussed the law pertaining to wills variation litigation in Hall v. Hall Estate, 2011 BCCA 354 as follows:

37        An application under s. 2 is thus a two-stage process.  First, the court must determine whether adequate provision has been made for the proper maintenance and support of the applicant.  If not, at the second stage the court must consider what provision for the applicant would be adequate, just and equitable.

38        The Supreme Court of Canada set out the principles that guide this analysis in Tataryn v. Tataryn, [1994] 2 S.C.R. 807.  McLachlin J., writing for the Court, observed that s. 2 gives the court broad discretion in advancing two interests protected by the Act.  The first is ensuring adequate, just and equitable provision for a testator’s spouse and children.  The second is testamentary autonomy.  If the second must yield to the first, the ultimate question is “what is adequate, just and equitable in the circumstances judged by contemporary standards”.  In answering that question, the court will be guided by two sets of norms. The first are the testator’s legal obligations to his or her family.  The second are the moral obligations to family members that arise from reasonable expectations of what a judicious person would do in the circumstances.  Claims based on legal obligations will generally take precedence over those based solely on moral duties.  The testator’s “legitimate concerns” should be recognized in assessing the extent of any moral obligations.  Finally, there will be a wide range of appropriate options in judging whether the testator’s dispositions meet the requirements of the Act, and one’s freedom to dispose of one’s estate should be treated with deference as long as the options chosen fall within that range.

39        With specific reference to the claims of adult independent children, the Court stated a testator will not generally have a legal duty to an adult independent child unless the child contributed to the estate.  As to moral obligations toward adult children, these are tenuous, but may justify entitlement if the size of the estate is adequate and the circumstances do not negate such an obligation.

[134]     In the same case, the Court of Appeal made other observations as to the law which are also relevant to the present dispute, namely:

  • succeed in challenging the will, the plaintiff must establish that the testator’s reasons (for disinheritance or for only a very modest bequest), and insofar as those reasons can be ascertained, were false or unwarranted … “it is not necessary to find the reasons were justifiable.  It is enough if they were factually valid, and rational in the sense of having a logical connection to the act of disinheritance” (para. 43);
  •  the relevant date to determine whether a testator made adequate provision for the proper maintenance and support of the plaintiff under the first step in the two-step analysis is the date of the testator’s death (para. 46);
  • because “family histories and dynamics are critical” to the assessment of testamentary provisions made, or not made, for adult independent children, and because such histories and dynamics “vary widely and are often unique”, each case must be decided on its own facts and other cases dealing with such assessments will not usually be helpful (para. 44).

Deceased Beneficiary May Claim Wills Variation (WESA)

 

A Wills Variation Action  ( S. 60 WESA) may Be commenced even after death of Disappointed Beneficiary by his or her personal representative as per Currie Estate v Bowen ( 1989) 35 BCLR (2d) 46.

In that case the husband died six weeks before his wife and his will made no provision for his wife.

The court held that the wife’s right of action under the wills variation act vested at the date of the husband’s death, and that the wife’s personal representative had the right to bring a wills variation action after her death.

They had been married 25 years and there were no children of the marriage. That husbands will made no provision for his wife and his estate was valued at $517,000`, and hers at $130,000.

The plaintiffs were the children of the wife from an early marriage, and the administrators of her estate.

The defendants were the husband’s executor and the children of the husband’s first marriage. The plaintiffs commenced an action under the wills variation act and the defendants applied to dismiss the action.

The court dismissed the application holding that the wills variation act gave the wife the right to claim and equitable share in her husband’s estate, a right which vested at the time of his death. Because the right to advance the claim was granted by statute, and was not founded in tort, and was broader than a claim for mere support or maintenance, the cause of action therefore survived death. Although the statute did not explicitly authorize the claim to be made by the personal representative of the deceased, that right was implied.

In Barker v. Westminster Trust Co., 57 B.C.R. 21, [1941] 3 W.W.R. 473, 614 [1941] 4 D.L.R. 514 (C.A.), the Court of Appeal wrestled with this issue in an inconclusive way. O’Halloran J.A. held that an action under the Testator’s Family Maintenance Act survived the death of the claimant. He said at p. 478:

In the language of Lord Mansfield, cited supra, the appellant’s cause of action is founded in a duty which the testatrix owed him.
That duty was imposed by the statute when it provided the Court should intervene on the application of a wife, husband or child who claimed to have been deprived of “proper maintenance” in the will of the testator. It must follow therefore that the appellant’s right to apply under the statute passes to his executors. That being so, and the maxim actio personalis moritur cum persona being excluded, the objections to the motion to add the executors of the appellant as parties must fail.
And he concluded by saying, at p. 495:
In the circumstances I see no grounds for depriving the husband of that share in the estate of his wife which the policy of our law has indicated to be adequate, just and equitable if she had not made a will.
He went on to rely on s. 13 of the statute to which reference has been made above. McDonald J.A. came to the opposite conclusion. His opinion is summarized at p. 496:
It seems however advisable to consider the question on broader lines as well. The long title of the Act shows that it is an Act to secure adequate and proper maintenance for the persons entitled to apply and under sec. 3 the Court is to give for that purpose what is “adequate, just, and equitable in the circumstances.”
The peculiar nature of these powers if fairly obvious; though the terms “just” and “equitable” are used they cannot be used in the technical sense, for no standard is provided, and “justice” and “equity” in the legal sense presuppose some standard. Obviously the statute uses these terms in a popular and looser sense; the Court is to apply moral or ethical standards. The Court is to be governed by the applicant’s needs and moral claims and not by anything resembling legal rights.
Sloan J.A. gave the third decision, and while he aligned himself with O’Halloran J.A. in the result, he found it unnecessary to come to a conclusion at this point.

Can Animals Inherit

Can animals inherit?

From the BBC News

While I have not actually researched the issue, I opine that animals  cannot inherit the funds in their own right, but instead can only do so by a trust.

Twenty  years ago I had a case where a single person with no net of kin died suddenly and left the use of her $1 million estate to her 4 cats and 2 dogs.

Cats can live 20 years.

After their death, the estate went to her business partners.

This is called an imperfect trust.

Presumably the law in India must be different to allow a money to inherit?

“Indian monkey set to inherit fortune from ostracised couple Shabista with Chunmun Shabista feeds Chunmun a diet of milk, fruit and home-cooked meals Continue reading the main story Related Stories India monkey ‘wedding ceremony’ held Indian villagers mourn dead monkey Thieving monkey hands out money An Indian couple who were ostracised after their families disapproved of their wedding have decided to leave all their property to their pet monkey. Brajesh Srivastava and wife Shabista told BBC Hindi they were “lonely for many years” before they bought Chunmun the monkey in 2005 for 500 rupees ($8). The couple, who have no children, say they have raised him like a son. Mr Srivastava is Hindu and his wife is Muslim, and inter-faith marriages are still controversial in parts of India. Mrs Srivastava says both their families shunned them after their marriage and that they were lonely until they bought Chunmun. “He was a baby then, less than a month old, and his mother had died after being electrocuted,” she says. She feeds Chunmun a diet of milk, fruit and home-cooked meals. His room has an air-conditioner to keep it cool in the summer and a heater to warm it in the winters. Brajesh Srivastava and wife Shabista The couple say they were “lonely for many years” until “Chunmun came into our lives” In 2010, the couple arranged a lavish wedding for Chunmun to a female monkey named Bitti Yadav. The two monkeys live together at the couple’s home, and have a party for their wedding anniversary every year. Mr Srivastava said his business has improved and the family has seen prosperity ever since they adopted Chunmun. The house in Raebareli town in the northern Indian state of Uttar Pradesh where the Srivastavas live is named Chunmun and the couple talk about the simian with the indulgence of fond parents. “For breakfast he has pomegranate and a glass of milk. At 10am, he has a home-cooked meal of lentils, bread, vegetables and chutney,” Mrs Srivastava says. She says Chunmun went through a phase where he would bite people. “A doctor we consulted said it was illegal to keep a wild animal as pet,” she says. “When we heard that we started crying and told him that Chunmun was like our son. He felt sorry for us and spoke to some officials on our behalf. He also levelled Chunmun’s teeth so that he won’t be able to bite people,” she says. Although some street performers train the simians to entertain people and earn a living through them, correspondents say not many Indians are known to keep monkeys as pets. In a rare case, a woman in the north-eastern state of Tripura was known to have adopted a monkey whom she used to breastfeed.”