Joint owners of property whether as joint tenants or tenants in common can force a sale of the property using the Partition of Property act.
It is common for parties to purchase properties together and register the property jointly, whether it be joint tenancy with a right of survivorship, or tenants in common with no right of survivorship. It is a fact of life that for innumerable reasons one or more parties may wish to sell the property in the future and realize their equity out of the property. This decision is often met with resistance from the remaining owners who may lack the means or the will to buy out the departing owner.
Borg v Morris 2012 BCSC 554 was such a factual scenario. One co owner opposed the property sale and could not afford to buy out the other owner . He opposed the sale on the basis that it was his home, there were remaining outstanding financial issues between them, and a forced sale would involve a large mortgage prepayment penalty. Nevertheless the court ordered a sale and noted their financial issues could be adjudicated later. The court discussed the competing equities of one owner losing his home and the other owner realizing his equity in the same home. The court found that the competing hardships were more or less equal and thus there was no good reason not to order the sale of the home, subject to an accounting. The statutory jurisdiction to order a sale of the property is found in s. 6 of the Partition of Property Act, R.S.B.C. 1996, c. 347 (the “Act”):
6. In a proceeding for partition where, if this partition of property Act had not been passed, an order for partition of property Act might have been made, and if the party or parties interested, individually or collectively, to the extent of 1/2 or upwards in the property involved request the court to direct a sale of the property and a distribution of the proceeds instead of a division of the property, the court must, unless it sees good reason to the contrary, order a sale of the property and may give directions Zimmerman v. Vega, 2011 BCSC 757, as to the correct approach under s. 6 of the Act. Mr. Justice Shabbits in that case quotes extensively from Ryser v. Rawlings, 2008 BCSC 1050 at para. 22. I would note in particular, paras. 27-29 in Ryser to the effect that the Court must order a sale of the property if requested to do so by a co-owner and that the Court’s discretion to order otherwise is a narrow one and one which is suggested would involve significant hardship.
[24] Mr. Morris’ counsel has also referred me to Sahlin v. The Nature Trust of British Columbia, Inc., 2011 BCCA 157. Mr. Justice Frankel in that case at para. 24 described the discretion to refuse a sale as broad and unfettered and that it gives the Court the ability, having regard to the particular facts and circumstances, to refuse to order a sale where a sale would not do justice between the parties.
[25] A point of disagreement between the parties concerned the onus of proving any “good reason to the contrary.” In Zimmerman at para. 25, the Court adopted a quote from Dunford v. Sale, 2007 BCSC 1422, to the effect that the onus is on the respondent in that respect. That conclusion is contradicted somewhat by the Court of Appeal in Sahlin at para. 23. It does not appear that the Court in Zimmerman had the benefit of considering this decision, since the reasons of the Court of Appeal were issued between the date of the hearing and the issuance of reasons. In any event, although the Court of Appeal stated that there is no legal onus on the respondent in this respect, the Court did adopt language from the earlier case of Bradwell v. Scott, 2000 BCCA 576, in stating:
This language is neutral in terms of onus. It is for the court to assess the evidence and to determine whether justice requires that such an order be denied. In practical terms, it would be for those opposing the application to put before the court evidence tending to establish a good reason for refusing it.
Fuhr (Litigation Guardian of) v. Tingey 2013 BCSC 711 dealt with the issues of whether a claimant had sufficient mental capacity to instruct counsel in divorce proceedings. the claimant died before trial, and while the issue then became moor, the Court provided reason for judgment so that the matter of costs could be dealt with.In this case, the court was faced with conflicting evidence of capacity and thus the summary trial based on affidavits could not be resolved, and the matter would have been referred to the trial list. In Wolfman-Stotland v. Stotland 2011 BCCA 175, the issue was whether Mrs. Stotland had the capacity necessary to form the intention to live separate and apart to support the application for a s. 57 declaration. Mrs. Stotland suffered from mild to moderate cognitive impairment and was not capable of managing her financial affairs. She was examined by a doctor, who concluded that she likely had the capacity to instruct counsel on the matter of her divorce.
[32] The Court of Appeal stated:
[23] In A.B. v. C.D., the husband, who opposed the granting of a s. 57 declaration, conceded that his wife had general capacity to manage her affairs and to instruct counsel. The husband sought a medical examination under then Rule 30(1) to establish that his wife suffered from a delusional disorder that informed her intention to live separate and apart. The chambers judge, in reasons indexed as 2008 BCSC 1155, concluded that since the wife had the capacity to conduct her own affairs and to instruct counsel, her adverse mental condition, if it existed, had no bearing on the issues to be determined in the divorce proceeding.
[24] On appeal, this Court upheld the chambers judge and adopted the comments in Professor Robertson’s text, Mental Disability and the Law in Canada, 2d ed. (Toronto: Carswell, 1994) referred to by the chambers judge at paras. 23-24 of his reasons:
[23] The capacity to form the intention to live separate and apart is discussed in Professor Gerald B. Robertson’s Mental Disability and the Law in Canada, 2nd ed., (Toronto: Carswell, 1994) at 272:
Where it is the mentally ill spouse who is alleged to have formed the intention to live separate and apart, the court must be satisfied that that spouse possessed the necessary mental capacity to form that intention. This is probably similar to capacity to marry, and involves an ability to appreciate the nature and consequences of abandoning the martial relationship.
[24] Professor Robertson went on to discuss the capacity to marry at pp. 253-254:
In order to enter into a valid marriage, each party must be capable, at the date of the marriage, of understanding the nature of the contract of marriage and the duties and responsibilities which it creates…. The test does not, of course, require the parties to be capable of understanding all the consequences of marriage; as one English judge aptly noted, few (if any) could satisfy such a test. …the common law test is probably only concerned with the legal consequences and responsibilities which form an essential part of the concept of marriage. Thus, if the parties are capable of understanding that the relationship is legally monogamous, indeterminable except by death or divorce, and involves mutual support and cohabitation, capacity is present. The reported cases indicate that the test is not a particularly demanding one. As was said in the leading English decision, “the contract of marriage is a very simple one, which does not require a high degree of intelligence to comprehend”.
… Capacity to marry may exist despite incapacity in other legal matters. This necessarily follows from the fact that the requirements of legal capacity vary significantly as between different areas of law, and must be applied specifically to the particular act or transaction which is in issue. Thus, for example, a person may lack testamentary capacity yet have capacity to marry. Similarly, a person may be capable of marrying despite having been declared mentally incompetent and having had a property guardian or guardian of the person appointed.
[25] This Court ultimately concluded:
[36] In summary, disordered or delusional thinking which may contribute to an individual’s intention to live separate and apart, does not diminish that individual’s capacity to form that intention, provided it does not reach the level of incapacity that interferes with the ability to manage his or her own affairs and instruct counsel. In this case, there is no probative value to the evidence the husband seeks to obtain by his R. 30(1) application as the wife admittedly has the higher level of capacity to manage her own affairs. As a result, the wife’s mental condition, even if she was found to be suffering from delusional disorder, cannot be an issue in the proceeding.
[26] A useful discussion of the hierarchy of levels of capacity is found in Calvert at paras. 54-56:
[54] Separation is the simplest act, requiring the lowest level of understanding. A person has to know with whom he or she does or does not want to live. Divorce, while still simple, requires a bit more understanding. It requires the desire to remain separate and to be no longer married to one’s spouse. It is the undoing of the contract of marriage.
[55] The contract of marriage has been described as the essence of simplicity, not requiring a high degree of intelligence to comprehend: Park, supra, at p. 1427. If marriage is simple, divorce must be equally simple. The American courts have recognized that the mental capacity required for divorce is the same as required for entering into marriage: re: Kutchins, 136 A. 3d 45 (Ill., 1985).
[56] There is a distinction between the decisions a person makes regarding personal matters such as where or with whom to live and decisions regarding financial matters. Financial matters require a higher level of understanding. The capacity to instruct counsel involves the ability to understand financial and legal issues. This puts it significantly higher on the competency hierarchy. It has been said that the highest level of capacity is that required to make a will: Park, supra, at p. 1426. (I note that Mr. Birnbaum felt that, in August 1994, he would have taken instructions for a will but for Dr. Hogan’s concern about her ability to instruct counsel.) While Mrs. Calvert may have lacked the ability to instruct counsel, that did not mean that she could not make the basic personal decision to separate and divorce.
[27] As the authorities make clear, the capacity to form the intention to live separate and apart has been accepted as equivalent to the capacity to enter into a marriage. As the Court stated in Calvert, the intention to separate requires the lowest level of understanding. The requisite capacity is not high, and is lower in the hierarchy than the capacity to manage one’s affairs.
Mental Capacity and Knowing the Value of Testators Assets
Part of the criteria in proving mental capacity of a testator involves showing that the testator understood the nature and the extent of the property being disposed of by the will. The question that is often to be determined is just how much knowledge does a testator require in terms of certainty versus approximation when it comes to knowing the value of his or her assets to be disposed of by will him him him the short answer is that testators are not required to be accountants nor have an accountant’s knowledge and understanding of their estate. What is required is that they appreciate the general nature of the value of estate assets and have an approximate knowledge of their value or the approximate value in terms of either dollars or quantitatively such as “a lot of money” or ” a small fortune”, will suffice. In Laszlo v Lawton 2013 BCSC 305, this is discussed in detail:243] In Russell v. Fraser (1980), 118 D.L.R. (3d) 733, the B.C. Court of Appeal considered the extent of understanding of the estate residue required of a testatrix in the context of evaluating whether she knew and approved of the contents of her will. There, the testatrix gave will instructions to the manager of her credit union, who was instrumental in its preparation, directing that legacies totalling $76,000 be left to several beneficiaries. Upon realizing that substantial assets remained in her estate, the manager asked how she wished to dispose of the residue. The testatrix declined the manager’s suggestions to enlarge the gifts to certain family members or provide the legatees with proportions of the estate rather than fixed sums. The manager then suggested, “partly facetiously”, that the residue be left to him. After some discussion, the testatrix agreed. There was no evidence that she was aware of the value of the residue, which was approximately $130,000.
[244] The court held that it was not enough that the testatrix was aware of the balance in her bank accounts; she must also be aware of the approximate value or magnitude of the residue of her estate at the time she executed her will. This principle has been extended to apply to all property – not just property falling into the residue – dealt with under a will: Johnson v. Pelkey (1997), 36 B.C.L.R. (3d) 40 at para. 114 (S.C.). It has also been relied upon as a correct exposition of the Banks requirement that the testator understand the extent of the property being disposed of by the will in considering the larger issue of testamentary capacity: Woodward v. Grant, 2007 BCSC 1192 at para. 119.
[245] In Moore, the testatrix knew that her property consisted of her house and two bank accounts, but was unable to accurately recall the current balances of those accounts. She told her solicitor that one of them had $25,000, when in fact one held about $3,500 and the other about $45,000. Her less than exact understanding of the value of her accounts was considered adequate.
[246] In Coleman, the testatrix told a doctor shortly after signing her will that she purchased her house 60 years earlier for $2,900 and would be willing to sell it for $10,000. The assessed value of the house at the time was $180,000. In concluding that the testatrix lacked capacity, Warner J. held, at para. 80, that her statement to the doctor “was directly relevant to an understanding of whether the testator had a basic understanding of the extent of her assets, one of the three Banks factors.”
[247] Although appreciation of the approximate value of one’s estate is important, a testator is not required to know its exact makeup. In Palahnuk v. Palahnuk Estate, [2006] O.J. No. 5304 at para. 82 (Sup. Ct. J.), the testatrix was able to recall what real property she owned and could describe it. She also knew that she owned investments being managed by the Public Guardian. Although she did not know the specific investments in her portfolio and the amount of revenue they generated, the testatrix was aware that her total estate had a value of $1.2 million and appreciated that was “a lot of money”. The court held that her degree of knowledge was sufficient, remarking, at para. 82:
No more is required under the law. Testators are not required to be accountants nor to have an accountant’s knowledge and understanding of their estate. If such a meticulously demanding standard were required … many testators would be unable to meet it.
[248] In Kaye et al. v. Chapman et al., 2000 BCSC 1195, the real properties and investment funds of a wealthy testator were managed by professional third parties. The testator told the lawyer drafting his will that his financial worth was about $3 million which the lawyer recorded in his file as “+/- $2.5”. In rejecting the argument that the testator did not appreciate the magnitude of his estate, the court found, at para. 68, it was sufficient that he understood he was a “millionaire and a wealthy man” and that he was conferring on the residual beneficiary a “substantial fortune”: see also Pike v. Stone (1999), 179 Nfld & P.E.I.R. 218, where the testator’s understanding that the estate had “substantial value” was sufficient.
[249] The principles to be taken from the authorities are that testators are not expected to know the exact composition of their estate assets and their value with the metronomic precision of an accountant. An appreciation of the general nature of the value of estate assets and an understanding of their extent, meaning their approximate value or the approximate value of the estate at large, expressed either in terms of dollars or quantitatively (eg. “a lot of money” or “a substantial fortune”), will suffice.
[250] The test in Banks also requires that the testator comprehend on his own and in a general way the persons who would ordinarily have a claim on or are the natural objects of his estate. In evaluating this branch of Banks, the approach usually taken by the case law has been to assume that family members and individuals with a close personal relationship to the testatrix are entitled to her consideration. In Banks itself, the court upheld the will in part because it was made in favour of the testator’s niece who lived with him and was “the object of his affection and regard” (at 571).
Justice Ballance’s reasons for judgement in Laszlo v Lawton 2013 BCSC 305 contain a concise summary of this area of the law:
200] In Vout v. Hay, [1995] 2 S.C.R. 876 [Vouf\, the Supreme Court of Canada laid to rest the thread of confusion that had emerged in earlier decisions concerning the burden of proof and the interrelationship between the doctrine of suspicious circumstances and the issues of testamentary capacity, knowledge and approval, undue influence and fraud.
[201] Vout affirmed that the legal burden of proving due execution of the will and both testamentary capacity and that the testator knew and approved of the contents of the will is with the party propounding the impugned will. Put succinctly, the party seeking to uphold the will must prove that it was duly executed and is the product of a free and capable testator.
[202] In discharging its burden of proof, the propounder is aided by a rebuttable presumption. It is presumed that the testator possessed the requisite knowledge and approval and testamentary capacity where the will was duly executed in accordance with the statutory formalities after having been read by or to the testator, who appeared to understand it. Vout clarified that this presumption may be rebutted by evidence of well-grounded suspicions, known as “suspicious circumstances”, relating to one or more of the following circumstances: (1) surrounding the preparation of the will; (2) tending to call into question the capacity of the testator; or (3) tending to show that the free will of the testator was overborne by acts of coercion or fraud (para. 25).
[203] The presumption places an evidentiary burden on the party challenging the will to adduce or point to “some evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity”: Vout at para. 27.
[204] Where suspicious circumstances arise, the presumption is said to have been spent, meaning it does not apply and has no further role to play, and the propounder reassumes the legal burden of establishing both approval and capacity. Proving testamentary capacity as well as knowledge and approval of the will provisions, necessarily entails dispelling the suspicious circumstances that have been raised: see generally, Ostranderv. Black (1996), 12 E.T.R. (2d) 219 at 235 (Gen. Div.).
[205] The usual civil standard of proof, namely proof on a balance of probabilities, applies. That said, as a practical matter the extent of the proof required will be proportionate to the gravity of the suspicion, which will vary with the circumstances peculiar to each case: Vout at para. 24.
[206] A “general miasma of suspicion that something unsavoury may have occurred” will not be enough: Clark v. Nash (1989), 61 D.L.R. (4th), 409 at 425 (B.C.CA). In Maddess v. Racz, 2009 BCCA 39 at para. 31, the B.C. Court of Appeal reminded that merely ‘some evidence” was not sufficient and emphasized the stipulation in Voutthat in order to elevate general suspicion to the threshold of suspicious circumstances, the evidence, if accepted, must tend to negative knowledge and approval or testamentary capacity.
[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”: Longmuir v. Holland, 2000 BCCA 53, at para. 69 [Longmuir]; Heron Estate v. Lennox, 2000 BCSC 1553 at para. 67 [Heron Estate]. In Moore, N. Smith J. found the fact that the testatrix’s doctor had described her as no longer capable of managing her affairs and as suffering dementia around the time she made her will constituted a suspicious circumstance sufficient to rebut the presumption.
The decision Laszlo v Lawton et al 2013 BCSC 305 is a series of stellar reasons for Judgement by Madam Justice Ballance, including a thorough review of the law of testamentary capacity.
The deceased died in 2008 at age 84 years, which was three years after the death of her husband. In her last will, made in 2000, she left her estate worth more than $1 million primarily to the British Columbia Society for children with Disabilities and the Penticton United Church. Prior to that she had not shown any previous interest or affiliation with either beneficiary, and the will reflecting such a radical shift in her testamentary intention from 1967 and 1986 wills, which benefited her husband’s family unit, was cause for the court to take serious look at the issue of her mental capacity. The court held that the will of 2000 was in fact invalid, as the defendants had failed to prove that she had testamentary capacity when she gave instructions for the preparation of that will, or when she executed. With respect to testamentary capacity, the court stated that timing is key. The first relevant time that the testator must have testamentary capacity is when they give the will instructions, and the second time is when the will was executed. In recognition of the fact that a faltering mental capacity is prone to fluctuate, the authorities permit variation of the degree of capacity required is pivotal times. As the diminishment of mental capacity, particularly in the elderly, will frequently emerge and worsen over time, evidence of symptoms exhibited by the testatrix both before and after the making of a will, may support an inference relevant to the determination of the presence or absence of testamentary capacity at the material time. The court restated the law that the test for testamentary to pass it is not a medical concept her diagnosis, it is a legal construct. Lay witnesses who haveknown the deceased for many years often figure prominently in such analysis. Here the will was a radical departure from the deceased previous wills and the court found that on the face of that the will was not rational as it pertained to the two largest residuary gifts. She had no connection with either charity. There is no evidence that she had had a falling out with her family. Furthermore there was abundant evidence that at the time the deceased gave her will instructions to the notary, and when she executed her will, she was suffering from a constellation of ongoing symptoms, including delusions, paranoia, auditory and visual hallucinations, confusion, compromised short term memory, disorganized thought, zero insight, and impaired judgment. Her symptoms were suggestive of not insignificant mental compromise which were attributable to Alzheimer’s disease. The court concluded that considering the evidence as a whole, the plaintiffs qualified as the only persons who might ordinarily be expected to benefit in any substantial way under the 2000 will. The court was not satisfied that in the will making process, the deceased was capable of turning her mind to the plaintiffs in comprehending on her own initiative and volition their natural claims upon her estate .
The Law of Testamentary Capacity
[185] In order to make a valid will, a testator must have a baseline level of mental acuity sufficient to appreciate judicially delineated components of the nature and effect of the testamentary act, referred to as testamentary capacity.
[186] The law of testamentary capacity is heavily rooted in jurisprudence dating back to the middle of the 19th century. In Harwoodv. Ba/cer(1840), 13 E.R. 117 at 120, a case decided in 1840, Lord Erskine provided one of the earliest articulations of the concept which is of continuing influence today:
But their Lordships are of opinion, that in order to constitute a sound disposing mind, a Testator must not only be able to understand that he is by his Will giving the whole of his property to one object of his regard; but that he must also have capacity to comprehend the extent of his property, and the nature of excluding from all participation in that property; and that the protection of the law is in no cases more needed, than it is in those where the mind has been too much enfeebled to comprehend more objects than one, and most especially when that one object may be so forced upon the attention of the invalid, as to shut out all others that might require consideration; and, therefore, the question which their Lordships propose to decide in this case, is not whether Mr. Baker knew when he was giving all his property to his wife, and excluding all his other relations from any share in it, but whether he was at that time capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property.
[187] Another 19thcentury authority, Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 [Banks], has proved even more enduring. Recognized as the leading authority on the subject of testamentary capacity – a proposition supported by its ubiquity in the case law – the decision contains the classic statement by Chief Justice Cockbum, at 565, setting out the essential requirements for establishing the validity of a will:
It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties -that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
[188] One hundred years after Banks, Laskin J.A. (dissenting on other grounds) provided a modern restatement of the test in Re Schwartz (1970), 10 D.L.R. (3d) 15 at 32 (Ont. C.A.):
The testator must be sufficiently clear in his understanding and memory to know, on his own, and in a general way (1) the nature and extent of his property, (2) the persons who are the natural objects of his bounty and (3) the testamentary provisions he is making; and he must, moreover, be capable of (4) appreciating these factors in relation to each other, and (5) forming an orderly desire as to the disposition of his property …
[189] Timing is key. In general, the first relevant time that testators must have testamentary capacity is when they give will instructions; the second is when the will is executed. In recognition of the fact that faltering mental capacity is prone to fluctuate, the authorities permit variation of the degree of capacity required at these pivotal times. For example, the will of a testator who is competent to give instructions, but has lost capacity when the will is executed, may be valid so long as, at the time of execution, the testator was capable of comprehending that she was executing a will drawn in accordance with her previous instructions: Parker v. Felgate (1883), 8 P.D. 171; Brownhill Estate (1986), 72 N.S.R. (2d) 181 (Co. Ct).
[190] The diminishment of mental capacity, particularly in the elderly, will frequently emerge and worsen over time. In light of that, evidence of symptoms exhibited by a testatrix both before and after the making of the will may support an inference relevant to the determination of the presence or absence of testamentary capacity at the material time: see generally, Smith v. Tebbett (1867), L.R. 1 P. & D. 354 at 398; Kri v. Patterson, [1989] O.J. No. 1817 (Surr. Ct.); Fawson Estate (Re), 2012 NSSC 55; Moore v. Drummond, 2012 BCSC 170 at para. 47 [Moore]; Coleman v. Coleman, 2008 NSSC 396 [Coleman].
[191] To lack testamentary capacity does not mean that the testator must be in a perpetual state of substandard competence. Seemingly rational persons may be without it, while seemingly compromised persons may possess it. A testatrix’s cognitive and psychological state is amorphous and seldom static. It may change and fluctuate slightly or wildly, such that at times she is not of sound mind, while at other times she is perfectly lucid. Accordingly, a will made by a compromised testatrix executed during a lucid interval may still be valid.
[192] Implicit and explicit in the jurisprudence is an acknowledgement of the complexity and subtleties of diminished cognitive functioning and the way in which we perceive, present to and interact with the world around us. For example, although it is recognized that dementia can impair a testator’s mental powers such that he is not capable of making a will, a diagnosis of dementia, standing alone, does not automatically correspond to testamentary incapacity: Royal Trust Corp. of Canada v. Ritchie, 2007 SKCA 64 at para. 13; Otto v. Kapacila Estate, 2010 SKCA 85 at para. 36 [Otto]; Moore at para. 36. Similarly, a person who is judicially declared incapable of managing his or her affairs pursuant to adult guardianship legislation or suffers a chronic psychotic illness such as schizophrenia may still have the capacity to make a valid will: Otto at para. 36; Royal Trust Co. v. Rampone, [1974] B.C.J. No. 612 (S.C.); Moore at para. 36; Hoffman v. Heinrichs, 2012 MBQB 133.
[193] The standard of mental capacity required to make a valid will does not exclude eccentric, frivolous, capricious, absurd or unfair wills: Skinner v. Farquharson (1901-1902), 32 S.C.R. 58 at 59 [Skinner]; Beal v. Henri (1950), [1951] 1 D.L.R. 260 at 265 (Ont. C.A.).
[194] It is well-settled that a testator’s ability to provide rational responses to questions or follow a learned pattern or habit is not conclusive of capacity. The reasons of Mr. Justice Rand writing for the majority of the Supreme Court of Canada in the important decision of Leger et al v. Poirier, [1944] S.C.R. 152 at 161, remain instructive of the point:
But there is no doubt whatever that we may have testamentary incapacity accompanied by a deceptive ability to answer questions of ordinary and usual matters: that is, the mind may be incapable of carrying apprehension beyond a limited range of familiar and suggested topics. A “disposing mind and memory” is one able to comprehend, of its own initiative and volition, the essential elements of will-making, property, objects, just claims to consideration, revocation of existing dispositions, and the like…
[195] His Lordship, at 161-62, surveyed a number of authorities in support of that proposition:
Marsh v. Tyrrell and Harding:
It is a great but not an uncommon error to suppose that because a person can understand a question put to him, and can give a rational answer to such question, he is of perfect, sound mind, and is capable of making a will for any purpose whatever; whereas the rule of law, and it is the rule of common sense, is far otherwise: the competency of the mind must be judged of by the nature of the act to be done, and from a consideration of all the circumstances of the case.
Quoting from the Marquess of Winchester’s Case, Sir John Nicholl adds:
By the law it is not sufficient that the testator be of memory, when he makes his will, to answer familiar and usual questions, but he ought to have a disposing memory so as to be able to make a disposition of his estate with understanding and reason.
[196] Following his review, his Lordship concluded, at 162:
Merely to be able to make rational responses is not enough, nor to repeat, a tutored formula of simple terms. There must be a power to hold the essential field of the mind in some degree of appreciation as a whole, and this I am satisfied was not present here.
[197] The issue of whether a testator has the requisite capacity to make a will is a question of fact to be determined in all of the circumstances: Knox v. Trudeau 2001, 38 E.T.R. (2d) 67 (Ont. Sup. Ct. J.). The assessment is a highly individualized and fact-specific inquiry. As most cases are unique on their facts, appellate courts will not overturn a finding as to capacity unless the trial judge has made a palpable and overriding error: James v. Field, 2001 BCCA 267 at para. 71 [James].
[198] Testamentary capacity is not a medical concept or diagnosis; it is a legal construct. Accordingly, scientific or medical evidence – while important and relevant – is neither essential nor conclusive in determining its presence or absence. Indeed, the evidence of lay witnesses often figures prominently in the analysis. Where both categories of evidence are adduced, it is open to the court to accord greater weight to the lay evidence than to the medical evidence, or reject the medical evidence altogether: Baker Estate v. Myhre (1995), 28 Alta. L.R. (3d) 428 at para. 39 (Q.B.); O’Neil v. Brown Estate, [1946] S.C.R. 622 [0’Neil\\ Spence v. Price (1945), [1946] 2 D.L.R. 592 at 595-96 (Ont. C.A.); James at para. 77; Miliwat v. Gagne, 2009 BCSC 1447, affd 2010 BCCA 323 [Miliwat].
[199] Courts may therefore reach a conclusion regarding capacity that conflicts with a medical diagnosis or the outcome of an MMSE or other medical test. In Lowery v. Falconer, 2008 BCSC 516, the family doctor examined the testatrix shortly before she signed the will and concluded that she was competent. Several months later, the doctor performed an MMSE and confirmed that she was capable of managing her own financial and legal affairs. Despite these medical findings, the court concluded that the testatrix lacked capacity and set aside the will. In Shkuratoffv. Shkuratoff, 2007 BCSC 1061 at para. 49, the court expressed apprehension about reliance on the score results of the MMSE in the absence of a robust explanation of the role that
Turner vTurner 2010 BCSC deals with a common thorny issue in estate litigation.
In 1996 the deceased parent put title to her home into joint tenancy with one of her two children.
The deceased died in 2007 leaving a will that left the sale proceeds of the house equally between both sons.
The house was her only asset, and if the joint tenancy was a “true” joint tenancy, then by right of survivorship, the house would only pass to the surviving joint owner.
The court grappled with the issue that the will ignored the JT transfer that had taken place a decade earlier.
The court held that the surviving joint owner held his property interest in trust for his late mother, and thus the house formed part of her estate, and was shared equally between the sons as per her will.
The court found that the deceased had not received proper legal advice when the JT was created
For example, it was not explained o her that a gift cannot be taken back, while a will can always be changed
Mr. Justice Verhoeven held that James Turner did indeed hold the house on a resulting trust for the estate. The law in British Columbia is that when a parent transfers assets gratuitously to an adult child, there is a presumption that the child holds the assets in trust for the parent and the parent’s estate. This is a presumption only, and may be rebutted if the child can show that the parent intended a gift.
Where the transfer is gratuitous, or made to a fiduciary, the law generally presumes that a resulting trust has been established. This is because equity presumes a bargain and not a gift. Pecore vPecore 2007 1 SCR 795
Where there is a resulting trust, the transfer is effective to convey legal title( ie your name shows as a registered owner), but the equitable, beneficial title remains with the transfer or: Niles v Lakes (1947) SCR 291
Maddess v Racz 2009 BCCA 539 is a testamentary capacity case where the trial judge and the court of appeal both uphold the validity of a will and find no suspicious circumstances that would rebutt the presumption of testamentary capacity.
The deceased mother had one son, now also deceased, and two daughters, one of whom died prior to matter proceeding to trial.
The mothers’ will left her rest in apartment building, worth over $5 million, to her with the under of $8 million estate evenly divided between children.
The daughter was sole heir of the deceased son and she brought an application for an order pronouncing her mother’s will in solemn form.
The trial judge granted the order and concluded that the will was valid, and that there was nothing that amounted to suspicious circumstances.
The trial judge found that the concerns about the mother’s English skills and business understanding did not affect her testamentary capacity.
The defendant’s estate appealed and the appeal was dismissed .
The trial judge applied the correct legal test and the Trial judge’s conclusion that the presumption of validity applied was fully supported by the evidence.
“The propounder of a will has the burden of proving that the testator knew and approved the contents of his or her will. In doing so, the propounder is aided by a rebuttable presumption that once it is established that the will was read by the testator, or the contents otherwise brought to his or her attention, and that he or she appeared to understand it, the testator will be presumed to know and approve of the will.
This presumption can be rebutted by adducing or pointing to some evidence which, if accepted, would tend to negative the knowledge and approval. This is known as the suspicious circumstances doctrine. If the presumption is rebutted, the propoundeer of the will is required to prove the will on a balance of probabilities. See Vout v. Hay, [1995] 2 S.C.R. 876 (S.C.C.) at para. 27:
Where suspicious circumstances are present, then the presumption is spent and the .propounder of the will reassumes the legal burden of proving knowledge and approval. In addition, if the suspicious circumstances relate to mental capacity, the propounder of the will reassumes the legal burden of establishing testamentary capacity. Both of these issues must be proved in accordance with the civil standard. There is nothing mysterious about the role of suspicious circumstances in this respect. The presumption simply casts an evidentiary burden on those attacking the will. This burden can be satisfied by adducing or pointing to some evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity. In this event, the legal burden reverts to the propounder.
The Appellant relies heavily on this passage from Vout. So did the trial judge. The trial judge clearly and carefully set out the applicable law. The test is “adducing or pointing to some evidence, which if accepted, would tend to negative the knowledge and approval”. The important aspect of the test is not “some evidence”, it is “some evidence… that would tend to negative the knowledge and approval.” The trial judge found that none of the evidence met the requirement of negating “knowledge and approval”. For example, the trial judge found that the fact that Rosalie Racz did not speak very good English did not, in and of itself, tend to show that she did not have the required knowledge. The fact she was not sophisticated in business, again, does not tend to show that she did not know the effect of her clear instructions to Mr. Mazzei.”
– See more at: http://www.disinherited.com/blog/appeal-court-upholds-wills-validity-and-finds-no-suspicious-circumstances#sthash.uLnHyBzm.dpuf
Testamentary ( Mental) Capacity and Suspicious Circumstances
Machander v Drader 2012 BCSC 1496 is a court case where testamentary capacity was found to exist and suspicious circumstances were not made out.
The deceased executed a will in 2003 in which he named his wife as the executrix and left her the bulk of his estate.
The testator and the wife subsequently separated and a decree nisi of divorce was granted.
The testator subsequently entered into a common-law marriage like relationship with the alleged executrix of a subsequent will.
The testator became seriously ill with liver failure due to years of alcoholism, which manifested itself as a neuropsychiatric abnormality for which he was hospitalised.
While hospitalised, the testator executed a new will which named the common-law spouse as the sole beneficiary and executrix of his will.
The testator died three days later prior to the final decree absolute of divorce, and left his estate of approximately $160,000 cash.
The court case was essentially between the two former partners in which the wife argued that the 2003 will was valid on the basis of suspicious circumstances with respect to the execution of the death and will.
The court allowed the proof of the deathbed will, finding that the circumstances surrounding the preparation of the of the will did not raise the spectre of suspicious circumstances absent allegations of coercion or fraud.
The attending lawyer testified that the testator. Lucid, comprehending questions, and leave clear instructions.
The court found that given the 18th month duration of the testator’s relationship with his new wife, and the uncontradicted evidence with respect to future planning, that was the intention of the deceased to benefit the executrix.
Particularly as the will was simple and the estate was small and uncomplicated, the test for testamentary capacity was fulfilled in the case, and suspicious circumstances were not paid out.
LEGAL DISCUSSION
The propounder of a will has the burden of proving that the testator knew and approved the contents of his or her will. In doing so, the propounder is aided by a rebuttable presumption.
38 Once it is established that the will was read by the testator, or the contents otherwise brought to his or her attention, and that he or she appeared to understand it, the testator will be presumed to know and approve of the will: see for example Vout v. Hay, [1995] 2 S.C.R. 876 at para. 26, 125 D.L.R. (4th) 431, in the context of a testamentary gift; Barkwill v. Parchomchuk, 2011 BCCA 207 at para 15; Maddess v. Estate of Johanne Gidney, 2009 BCCA 539 at para. 29; and York v. York, 2011 BCCA 316 at para. 36, 335 D.L.R. (4[th]) 292.
In Vout v. Hay, Sopinka J. at para. 27 referred to the doctrine:
“Where suspicious circumstances are present, then the presumption is spent and the propounder of the will reassumes the legal burden of proving knowledge and approval. In addition, if the suspicious circumstances relate to mental capacity, the propounder of the will reassumes the legal burden of establishing testamentary capacity. Both of these issues must be proved in accordance with the civil standard. There is nothing mysterious about the role of suspicious circumstances in this respect. The presumption simply casts an evidentiary burden on those attacking the will. This burden can be satisfied by adducing or pointing to some evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity. In this event, the legal burden reverts to the propounder.”
43 As noted by Garson J.A. in York, the testamentary capacity test is set out in the leading English case: Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 at 565, which was adopted by Wilson J.A. in Re: Rogers (1963), 39 D.L.R. (2d) 141 (C.A.) at 148-49, 42 W.W.R. 200:
“It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties — that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”
48 I find the decision of Bennett J.A. in Maddess instructive in this regard:
[30] This presumption can be rebutted by adducing or pointing to some evidence which, if accepted, would tend to negative the knowledge and approval. This is known as the suspicious circumstances doctrine. If the presumption is rebutted, the propoundeer of the will is required to prove the will on a balance of probabilities. See Vout v. Hay, [1995] 2 S.C.R. 876 at para. 27:
Where suspicious circumstances are present, then the presumption is spent and the propounder of the will reassumes the legal burden of proving knowledge and approval. In addition, if the suspicious circumstances relate to mental capacity, the propounder of the will reassumes the legal burden of establishing testamentary capacity. Both of these issues must be proved in accordance with the civil standard. There is nothing mysterious about the role of suspicious circumstances in this respect. The presumption simply casts an evidentiary burden on those attacking the will. This burden can be satisfied by adducing or pointing to some evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity. In this event, the legal burden reverts to the propounder.
Hsia v Yen-Zimmerman 2012 BCSC 1620 raised the allegation that the will of the deceased was invalid due to his lack of capacity caused by a delusion arising out of the murder of his daughter in 1972.
His will made in 1973 left everything to his surviving three daughters and did not provide for the two children of the murdered daughter.
The defendants unsuccessfully argued that the deceased lacked testamentary capacity at the time he signed the will by reason of suffering from insane delusion that in order to erase pain of the murder of his daughter, he had to abandon his relationship with her two children, to the extent of excluding them from his will.
The court dismissed this argument and admitted the will into probate finding that the deceased was a rational and functioning member of society in 1973, that there were no suspicious circumstances of the kind necessary to displace the presumption of testamentary capacity.
His reaction to his daughter’s death was not suggestive of an insane delusion or pathological denial of her death, but was simply an expression of his personal grief.
Moreover his relationship with the grandchildren did not cease abruptly, but instead diminished over time to the point where it was almost nonexistent, which may partly be by reason caused by her surviving husband remarrying very shortly after her death.
Moreover, the deceased surviving three children had a greater material needs then the two grandchildren did at that time.
The Courts comments re capacity are as follows:
” as the propounder of the will has the burden of proving testamentary capacity. The test for testamentary capacity has been variously expressed. A comprehensive and frequently cited explanation of what it entails is that of Laskin J.A. (as he then was) in Schwartz (Re), [1970] 2 O.R. 61 (C.A.) at p. 79, where he wrote:
…The testator must be sufficiently clear in his understanding and memory to know, on his own, and in a general way (1) the nature and extent of his property, (2) the persons who are the natural objects of his bounty and (3) the testamentary provisions he is making; and he must, moreover, be capable of (4) appreciating these factors in relation to each other, and (5) forming an orderly desire as to the disposition of his property…
[43] In proving testamentary capacity, the propounder has the benefit of a rebuttable presumption. Sopinka J. held at para. 26 of Vout v. Hay.
[26] .. .Although the propounder of the will has the legal burden with respect to… testamentary capacity, the propounder is aided by a rebuttable presumption. Upon proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity.
[44] I have concluded that the will of Mr. Yen was “duly executed with the requisite formalities” and inferred that he knew and approved of its contents. Subject to the question of “suspicious circumstances”, it is presumed that he had the necessary testamentary capacity.
[45] The presumption of testamentary capacity is a rebuttable, and as Rothstein J. pointed out in Pecore v. Pecore, 2007 SCC 17 at para. 22:
[22] … rebuttable presumption of law is a legal assumption that a court will make if insufficient evidence is adduced to displace the presumption. The presumption shifts the burden of persuasion to the opposing party who must rebut the presumption…
[46] To rebut this presumption the defendants must establish suspicious circumstances that tend to call into question the capacity of the testator. As Sopinka J. put it in Vout v. Hay at para. 27, the force of the presumption will be spent, or the burden it imposes will be met, by those attacking the will:
…adducing or pointing to some evidence which, if accepted, would tend to negative… testamentary capacity. In this event, the legal burden reverts to the propounder.
[47] Thus, the issue is whether there is some evidence which, if accepted, tends to call into question the capacity of Mr. Yen to make a will valid.
[48] The defendants have pleaded that:
The mother of these Defendants, who was the daughter of the Deceased, was murdered in August 1972. This caused mental pain and anguish to the deceased.
These Defendants say that the Deceased suffered from an insane delusion that in order to erase the pain and anguish from his mind of the murder of his daughter, he had to abandon his relationship with the children of his murdered daughter, which abandonment included their exclusion from his Will.
[49] The defendants correctly state that the first issue that arises in these circumstances is whether the evidence is such that it should “excite the suspicion of the court” to the degree necessary to spend the persuasive force of the presumption and cause the onus of proving capacity to revert to the plaintiff. The second issue is, assuming the presumption is rebutted, whether the evidence establishes on a balance of probabilities that the testator had the necessary capacity.
[50] The notion of an “insane delusion” was considered by Cockburn C.J. in Banks v. Goodfellow. It has remained a part of the law of testamentary capacity since. According to Feeney’s Canadian Law of Wills, 4th ed., “a delusion is a belief in a state of facts which no rational person would believe” (at para. 2.9). In Banton v. Banton (1998), 164 D.L.R. (4th) 176 (OntC.J.), Cullity J. adopted the following definition of “insane delusion” at para. 32:
[32] …”A delusion is insanity where one persistently believes supposed facts (which have no real existence except in his perverted imagination) against all evidence and probability and conducts himself however logically upon the assumption of their existence.”
[51] Not any insane delusion will be sufficient to support a finding of lack of testamentary capacity. The delusion must bear some rational connection to the bequests in the will.
This article is an update on a recent development of the law in this area subsequent to the author’s previous article entitled “Severance of Joint Tenancies”, and located on disinherited.com.
Joint tenancy is a method in which two or more persons may hold property together, with the unique feature that one of the owners dies, his or her interest automatically passes to the survivor(s) by right of survivorship.
Severance is the legal process of converting a joint tenancy arrangement into a tenancy in common. The latter method of ownership does not have the automatic right of survivorship that the joint tenancy has.
Accordingly there is an increasing trend in both estate and family litigation to carefully examine whether the joint tenants, often spouses, acted in a course of conduct that intimated that the interests of the joint owners were mutually treated as constituting a tenancy in common. The financial rewards of whether or not a parcel of real property devolves on death to a surviving joint tenant, or alternatively that the deceased’s one half portion of the property in a tenancy in common passes to his or her estate pursuant to a will are huge.
It may well be, if examined closely, that the parties have even unwittingly indicated at some point in time that the ownership of jointly held property should be treated as a tenancy in common rather than as a joint tenancy with right of survivorship (JTROS)
THE ONTARIO CASES
Hansenv Hansen Estate 2012 9 RFL (7th) 251,75 ETR (3d) 19, a decision of the Ontario Court of Appeal, is a decision which dictates close observance. As of the date of publication of this article it has not yet been applied or considered in British Columbia, and has only been subsequently distinguished in Ontario by the subsequent Su v Lam decision which follows.
The Ontario Court of Appeal followed the chestnut decision relating to the severance of joint tenancies, Williams v. Hensman (1861) 70 E.R. 862 for these three manners in which joint tenancies may be suffered namely;
1. Unilaterally, by acting on one’s own account, such as selling or encumbering one’s share;
2. by mutual agreement between the co-owners to sever the joint tenancy;
3. any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common (the course of dealing rule).
Mr. and Mrs. Hansen married for the second time in 1983. Both had children from previous relationships. In 2003 they purchased a property as joint tenants. Financial and marital troubles subsequently ensued with Mrs. Hansen moving out of the home in March 2010.
The husband retained a lawyer with respect to this marital breakdown and he was instructed to prepare a new will for him leaving everything to his daughters and nothing to his wife.
Mrs. Hansen also retained a lawyer who sent a letter to the husband’s lawyer indicating a desire to negotiate a separation agreement including a division of the property.
The parties began to close their joint bank accounts, and prepared financial statements for exchange in furtherance of their settlement negotiations, but before settlement could be finalized Mr. Hansen suddenly died.
Mrs. Hansen asserted a right of survivorship in the home and took the position that is a surviving joint tenant she was entitled to the entirety of the property.
The executors of the deceased’s will applied to the court for a declaration that the widow was entitled to only an undivided one half interest in the property by reason of the fact that the parties course of dealing had served to sever the joint tenancy.
Mrs. Hansen won at trial, but Court of Appeal overturned that decision, and pronounced that with respect to the application of the course of dealing just in Ontario:
1. severance by course of dealing does not require proof of an explicit intention to sever the joint tenancy – the mutual intention can be inferred from the course of dealing between the parties and does not require evidence of agreement;
2. severance by course of dealing does not require that each owner knew of the others position and that both treated their interest in the property as no longer being held jointly – this could be inferred from communications or conduct;
3. the determination is an inherently fact specific assessment;
4. the purpose of severance by course of dealing is to ensure that one owner does not unfairly obtain the benefit of the right of survivorship where the parties have shown a common intention to no longer treat their interests in the property as an indivisible unified whole.
The appeal court in fact stated that the trial judge erred in not appreciating the facts that the parties, amongst other things, prepared a new will, negotiated a division of their assets, and they opened separate bank accounts, acts that were sufficient conduct to sever the joint tenancy.
As stated by Chief Justice Winkler at paragraph 7:
” the court’s inquiry cannot be limited to matching fact patterns to those in prior cases. Rather, the court must look to the co-owners’ entire course of conduct – in other words the totality of the evidence – in order to determine if they intended that their interests were mutually treated as constituting a tenancy in common. The evidence may manifest itself in different ways. Each case is idiosyncratic and will turn on its own facts”.
Prior to Hansen, the Ontario law had been In Re Walters (1977) 16 O.R. (2d) 702, affirmed 17 OR (2d) 592, (Ont. CA), where the court held that a severance had been affected through the couples’ course of conduct where they had negotiated to buy each other’s interests in the matrimonial home in the course of their separation.
British Columbia Law
Hansen Estateis of notable surprise to British Columbia practitioners by reason of a 1993 BC Appeal Court decision Tompkins Estate v. Tompkins, Vancouver Registry CA 015039, which had contrarily held that in order to satisfy the “course of dealing” test, one party must detrimentally rely on the others representation that he or she no longer wants to hold the property jointly.
In other words, in British Columbia, the current law is that the party asserting that the joint tenancy has been severed, must prove not only that both parties treated their interests as separate, but also that they relied on the other parties representations or actions so that it would now be unjust for the other party to assert that joint tenancy.
The Ontario court in Hansen, held that such detrimental reliance was not necessary and the test could be satisfied simply by virtue of each party being aware of the other’s intentions and by both parties treating their interests in the property is no longer being held jointly.
By BC standards, the Ontario Court of Appeal found severance of the joint tenancy on rather marginal evidence of intention to mutually treat their matrimonial home as a tenancy in common.
The Ontario Court of Appeal however has traditionally been regarded as very persuasive throughout the Canadian courts, and it should not be a surprise if the BC Courts adopt the reasoning of Hansen in future, especially if given the right facts to do so.
The second Ontario decision of Su v Lam 2012 77 E.T.R. (3d) 278, (Ont. SCJ), applied Hansen and stated that the mutual intention of the parties as demonstrated by their conduct, must be assessed, and that the intention must be mutual.
On her death in 2004 the testator left her estate to her two grown children and appointed her estranged spouse as executor. In other legal proceedings, the plaintiff was found to be the testator’s common-law husband and that the testator had a legal obligation to provide support to him upon her death. Prior to the testator’s death she owned to real estate investments in joint tenancy with her estranged husband.
The common-law spouse argued that the joint tenancies between the deceased and her estranged husband had been severed prior to her death, and that the value of the properties constituted an undistributed residue of her estate.
The court found that there had not been any severance of the joint tenancies, as the testator had not acted on her own share with respect to the joint tenancies, nor had there been any mutual agreement existing between her and her estranged husband to sever the joint tenancies.
There is a high threshold that exists to show joint tenancies are severed through a course of conduct between the testator or her estranged husband and the mere fact that the testator and the estranged husband are separated is insufficient to establish severance.
When the parties liquidated their real estate holdings after their separation, neither the testator nor her estranged husband conducted their affairs in a way to suggest that in doing that the joint tendencies had been terminated. No evidence existed that the testator or the estranged husband had entered into negotiations the ownership following the test their separation. The fact that the testator maintain the properties without assistance from the estranged husband was not of its own, evidence of severance. Accordingly upon the testator’s death the properties became owned by the estranged husband by right of survivorship.
CONCLUSION
The continuing meld of estate, real property and family law principles all come to fore when examining whether or not the course of dealings of parties to a joint tenancy ownership have or have not resulted in a severance of a JTROS. It is reasonably common for parties, married or otherwise, to have disputes and perhaps enter into a course of dealings that might appear to treat jointly held properties as tenancies in common, that may subsequently be forgotten about and a reconciliation achieved only to have argued many years later in an estate litigation dispute, that the course of dealings many years prior had the effect of severing the joint tenancy of property now worth millions. Most spousal joint tenants simply do not appreciate the legal consequences that one or more of the following acts, may result in a severance of a JTROS property:
1. closing joint bank accounts and opening separate accounts;
2. preparing a new will disposing of the property, to the exclusion of the other,
3. the expression of an intention to negotiate a division of property, including the subject property;
4. one owner vacating the premises;
5. the intention expressed to litigate if a settlement cannot be reached;
6. the requirement of one party buying out the other’s interest as a condition to stay in the property;
7. the expressed intention to appraise the property for negotiation purposes.
