Yesterdays blog relating to the use of Manitoba case law in the case George v. Daily 1997 3 WWR 379 is continued in today’s blog which examines what is required in the nature of “testamentary intentions” for the court to remedy an otherwise imperfect will.
The document under consideration was a letter from and the accountant for the deceased to the lawyer for the deceased setting out the testator’s instructions for the preparation of a will, and whether the document accurately set out the “testamentary intentions” of the testator.
The deceased died without ever signing a will and the issue before the court was whether or not the letter from the accountant to the lawyer disclosed “testamentary intentions” that would qualify so as to allow the court to fully affect the document as a testator’s will under Manitoba section 23 of the Wills Act.
The court held that the document was not a document that disclosed testamentary intention and thus was not found to be a will.
The court started with the general proposition that not every expression made by a purpose, whether made orally or in writing, respecting the disposition of his or her property on death, actually embodies his or her testamentary intentions.
The court found that the term testamentary intention means much more than a person’s expression of how here she would like his or her property to be disposed upon death. The essential quality of the term is that therefore must be a deliberate or fixed and final expression of intention as to the disposal of his or her property on death
see Canada Permanent Trust CO. v Bowman ( 1962) SCR 711
Essentially the court concluded that whether it is the deceased own instrument or the notes or writing made by a third-party, the crucial question to be answered is whether the document expresses a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death.
The court also emphasized that another of the principles which of survive the enactment of Manitoban’s dispensation powers is that the court must be satisfied that the deceased knew and approved of the contents of the document which is presented for probate ( see Guardhouse v Blackburn ( 1866) LR1.
The court concluded that the requirement that the deceased must know and approve of the contents of the will which is presented for probate, as often being considered as a question of evidence rather than of substantial of law, but the rule takes on a heightened significance when the document is a third-party one.
Many of the comparable cases that the Manitoba courts have examined relate to holograph wills which until the present have not been legal in British Columbia.
In Bennett v Toronto General Trusts Corp ( 1958) SCR 392, the Court stated:
80.Thereis no controversy, either in the reasons for judgment in the Courts below, or between the parties, that under the authorities, a holographic paper is not testamentary unless it contains a deliberate or fixed and final expression of intention as to the disposal of property on death, and that it is incumbent upon the party setting up the paper as testamentary to show, by the contents of the paper itself or by extrinsic evidence, that the paper is of that character and nature. (The emphasis is in the original)
81 The same onus, in my view, is imposed upon the applicant when probate of a document is sought under s. 23 of the Act. The principle which guides the court is to endeavour to carry out the testator’s intentions: Re Eames Estate. Tritschler J. (as he then was) expressed the “guiding principle” in Re Kemp Estate (1954), 11 W.W.R. 624 (Man. Q.B.) (at p. 628) as: “to endeavour to carry out the testator’s intention if, without undue strain, a testamentary intention can be ascertained.” At the same time, one cannot ignore the admonition of Nicholson J. in Re Lobato Estate: “… the greater the departure from the requirements of formal validity …. the harder it may be for the court to reach the required state of satisfaction.”
Sections 58 and 59 of WESA are designed to allow the Courts the power of curing defects in wills and thus allow the will to become valid despite the technical defect, so as to give greater impact towards what the will maker intended.
These types of Court powers are called “Dispensation Powers” and estate practitioners in British Columbia will be primarily looking to other jurisdictions such as Manitoba and Australia, where the court have had such powers for several decades before B.C.
One of the leading cases to firstly examine is the Manitoba Court of Appeal case in George v. Daily ( 1997) 3 WWR 379where the court examines as to what constitutes a testamentary instrument.
The will maker advised his accountant that he wanted to change his will, and the accountant subsequently wrote a letter to the lawyer for the new will maker containing the testator’s instructions.
The lawyer subsequently advised the will maker to obtain a certificate from a medical doctor confirming the testator’s mental competence
The testator subsequently died two months later without ever having signed a will.
The accountant applied for judicial advice and direction, and the court found that the letter disclosing the testamentary intention and ordering that the will being fully effective as the testator’s will under the Manitoba wills act.
The testator son however appealed that ruling successfully, arguing that the evidence did not establish that the letter disclosed testamentary intention .
The first portion of George v. Daily struggled with what limits, if any, should be placed on the powers of the Court and its powers to correct improperly executed wills and other such deficiencies and stated:
” There must be some limitations to the application of the dispensation power granted under s. 23. Surely, by ignoring or overlooking the qualifying words which the Commission had recommended, the Legislature did not intend that a document which “was not seen, or read, or written, or in some way authenticated, or adopted” by the deceased (the words of Powell J. in Estate of Springfield), or a document whose very existence the deceased was not aware of, could be admitted to probate on an application under s. 23. The Legislature could not have intended that the gratuitous comments of an elderly person to someone who has befriended him, and,
unknown to the person, recorded later in a document, might be admitted to probate after his/her death as his/her will.
57 If that were so, the person might have a will without knowing of its existence. He/she would not know that his/her casual comments (or the inadvertent remark or the one made in jest, of which Dean Gulliver and Ms Tilson had written in their paper), which might not have survived the moment of their making, were written down later; and could be presented to the court after his/her death for probate pursuant to s. 23 as a document embodying his/her testamentary intentions. And even if the comments expressed his/her intention at the moment as to the disposition of property on death, he/she would be unaware that he/she would have to revoke his/her statement by a document in writing evidencing his/her animus revocandi in order to give effect to his/her true and enduring intention – that his/her property devolve on his/her children and grandchildren.
58 As discussed above, the purpose of remedial provisions is to overcome the hardship and injustice – the consequences of the triumph of form over intent – which have often followed the literal application of the formal requirements found in will statutes. The Commission wrote in its 1980 report that the purpose of the remedial provision it recommended was to ensure that:
… the finding of a formal or execution defect would not lead to automatic invalidation of the will. Rather the proponents of the document would be given the opportunity to establish that the defect is a harmless one. This would entail satisfying the court that, despite the defect, the document represents the intent of the testator and satisfies the purposes of “The Wills Act”.
59 The Commission did not recommend that the requirements and formalities of the Act be revoked, or that testamentary law be profoundly altered. And, in my view, the enactment of s. 23 did not do so. The section must be interpreted and applied in the context of all of the provisions of the Act and the jurisprudence which has developed over the centuries.
60 It remains a fundamental and universal proposition “that nothing can receive probate which was not intended to be a testamentary act by the testator“: per Lord Selborne L.C. in Whyte v. Pollok (1882). 7 App. Cas. 400 at p. 405. In Bailey’s The Law of Wills, (7th ed. 1973, Pitman Publishing) the principle is stated (at pp. 65-6): “No will is entitled to probate unless the testator executed it with the intention that it should take effect as his will.” (It is not necessary to review cases such as Milnes v. Foden (1890), 15 P. 105, in which instruments have been admitted to probate even though the deceased was unaware that he/she had performed a testamentary act. The principle remains the same: the intention that the instrument record the final (but revocable) wishes of the deceased as to the disposal of his/her property after death.)
61 Section 23 can be invoked to give effect to the testamentary intentions of a deceased in the face of imperfect compliance, even non-compliance, with the formalities of the Act. Section 23 cannot, however, make a will out of a document which was never intended by the deceased to have testamentary effect. In Re Balfour Estate (1990), 85 Sask. R. 183 (Q.B.), Gerein J. explained the principle:
Yet, it must be kept in mind that the section’s [s. 35.1 of the Saskatchewan Wills Act] purpose is to overcome non-compliance with formal requirements. It does not empower the Court to render a document testamentary in
nature when it is otherwise not so. In the instant case, the document does not manifest a true testamentary intention and therefore does not meet the threshold requirement of the section.
62 Not every expression made by a person, whether made orally or in writing, respecting the disposition of his/her property on death embodies his/her testamentary intentions. The law reports are filled with cases in which probate of holographic instruments has been refused because they did not show a present intention to dispose of property on death. Bennett v. Toronto General Trusts Corp., [1958] S.C.R. 392, was such a case.
63 In Bennett, the deceased’s letter to her lawyer, a holographic document, contained details of “how [she] would like [her] will to be made out.” Thereafter, until her death three and one-half years later, she met her lawyer on many occasions, both professionally and socially, but a formal will was never prepared. The court concluded that the letter was not written animo testandi; that it did not “record a deliberate or fixed and final expression of intention as to the disposal of property on death.” The court’s conclusion was supported by its findings that the deceased “did not want that letter to operate as a will;” and that “by her letter, she is committing to [her lawyer] both the finality of her decisions, if not of her deliberations, and that of the form in which they should eventually be expressed in a regular will, the preparation of which is entrusted to [her lawyer] himself.”
64 In my view, in a similar fact situation today, the result would be the same, notwithstanding the enactment of s. 23. While the deceased’s letter to her lawyer detailed the way in which the she would like her will to be made out, the letter did not embody her testamentary intentions. Section 23 cannot be invoked to overcome the absence of that essential requirement of a valid will.
65 The term “testamentary intention” means much more than a person’s expression of how he would like his/her property to be disposed of after death. The essential quality of the term is that there must be a deliberate or fixed and final expression of intention as to the disposal of his/her property on death: Bennett; Molinary v. Winfrey (1960), [1961] S.C.R. 91; and Canada Permanent Trust Co. v. Bowman, [1962] S.C.R. 711.
66 In my opinion, these are the principles which must be applied in the determination under s. 23 as to whether or not a document or writing embodies the testamentary intentions of the deceased. Whether it is the deceased’s own instrument or the notes or writing made by a third-party, the crucial question to be answered is whether the document expresses the animus testandi of the deceased – a deliberate or fixed and final expression of intention as to the disposal of his/her property on death.
67 At the very least, a third-party document would have to be one that had been made at the request of the deceased, or with his/her knowledge; and, in any event, with his/her awareness that the document recorded the deliberate and final expression of his/her wishes as to the disposition of his/her property on death. Another of the principles which have survived the enactment of s. 23 is that the court must be satisfied that the deceased knew and approved of the contents of the document which is presented for probate. Guardhouse v. Blackburn (1866), L.R. 1 P. & D. 109 (Prob.), which has not been overruled by the enactment of s. 23, is authority for that principle. Although this has been considered as a question of evidence rather than of substantive law, the rule takes on a heightened significance when the document is a third-party one.
1. If there is a spouse and no descendants all to the spouse (s.20);
2. If no spouse, all to descendants per stirpes but not to great-nieces or great-nephews;
a. Under s. 8.1 descendants can include assisted births conceived after death so long as the surviving parent, (not necessarily a spouse) has given notice to the personal representatives within 180 days from the date of death of an intention to use human reproductive material. The birth must occur within two years of the death and the child must live for at least 5 days. Note that the parent must comply with provisions of Part 3 of the Family Law Act4;
3. If there is no spouse of descendants than the estate would go to the parents. Depending on the situation it is possible to have more than two parents, see Part 32 of the Family Law Act;
4. If there are no parents than to the descendants of the parents per stirpes ( relatives inherit by their roots or stock;)
5. If no descendants of the parents than to the deceased’s grandparents and if no grandparents to the descendants of the grandparents per stirpes;
6. If no grandparents or descendants of grandparents to the deceased’s great-grandparents or the descendants of the great – grandparents per stirpes;
7. If no great-grandparents of descendants of the great – grandparents, the Estate will escheat to the crown under the Escheat Act.
Under the parentelic regime the line of descendants stops at the fifth degree5 ( section 23 (3)and is
counted upward from the deceased to the nearest common ancestor and then downward to the
Under s. 52 of the WESA Legislation , the onus of disproving undue influence has shifted to the person who has received the gift under the will where a position of domination and dependence exists between the will maker and the beneficiary.
Prior to the introduction of this section it was difficult if not impossible to successfully challenge the validity of the will on the grounds of undue influence. This was caused partly because the person challenging the will board the legal burden of proving the undue influence, which was usually difficult at best to do, and if one failed in one’s attempt to prove it, the court would punish the plaintiff for failing to in effect proof of fraud by awarding special costs.
Undue influence by its very nature is typically exerted in privacy, away from the will maker’s family members or friends, often under threat of being put into an old folks home and thus rarely ever independently witnessed.
Section 52 however creates a presumption of undue influence where certain types of relationships exist, which are typically those of the will maker being in a position of dependence or submission to another person, often a caregiver. Once that relationship of dependence on another person is established, the party defending the wills validity then has the burden to prove that he or she did not exercise undue influence over the will maker.
The shift in the burden of proof is of great benefit to plaintiffs counsel who often had lots of suspicion or even corroborating evidence, but the test of undue influence is one of coercion, not just influence, and thus it was very difficult to prove.
The fact that the burden of proof has now shifted with respect to the preparation of wills, will hopefully exert more pressure on the lawyers and notaries drafting wills to be moral alert than ever to identify what lawyers refer to ”red flags” to watch for.
In my accompanying paper that was submitted in 2006 to the BCL I I set out approximately 17 examples of
suspicious circumstances for the will maker to be on guard for.
Typically a few of the types of “red flags” that the will maker should be looking for are:
Will instructions that seemed totally out of character or unreasonable in light of the family circumstances;
Significant or poorly explained radical changes in the beneficiaries from a prior will;
Physical or mental health concerns that might lead to the will maker being more susceptible to undue influence;
Secrecy
Unexplained haste for the wills preparation and execution;
The too friendly friend or beneficiary that goes to great effort to explain how much he or she assists the will maker, (and thus deserves to be a beneficiary).
The list is long and varied, and the notary or lawyer should only take instructions from the will maker with no one else in the room, and should take detailed notes of the interview, including a review of all of the various red flag matters, and written notations as to the mental competency of the will maker. These notes should be preserved in case of subsequent litigation.
S. 52. Of WESA States:
In an action, if a person claims that a will or any provision of it resulted from another personbeing in a position where the potential for dependence or domination of the will-maker was present, and using that position to unduly influence the will-maker to make the will or the provision of it that is challenged and establishes that the other person was in a position where the potential for dependence or domination of the will-maker was present, the party seeking to defend the will or the provision of it that is challenged or to uphold the gift has the onus of establishing that the person in the position where the potential for dependence or domination of the will-maker was present did not exercise undue influence over the will-maker with respect to the will of the provision of it that is challenged.
The current state of the law as enunciated in Vout v. Hay ( 1995) 7 E.T.R. I2d) 2 S.C.R. 876, is that if the validity of a will is challenged on the ground of undue influence than the onus is upon the person alleging undue influence to prove that allegation.
There is a distinction to be borne in mind between producing sufficient evidence to satisfy the Court that a suspicion raised by the circumstances surrounding the execution of the will have been dispelled and producing the evidence necessary to establish an allegation of undue influence. The former task lies upon the proponents of the will, the latter is a burden assumed by those who are attacking the will and can only be discharged by proof of the existence of an influence acting upon the mind of the testator of the kind described by Viscount Haldane in Craig v. Lamoureux [[1920] A.C. 349], at 357 where he says:
Undue influence, in order to render a will void, must be an influence which can justly be described by a person looking at the matter judicially to have caused the execution of a paper pretending to express a testator’s mind, but which really does not express his mind, but something else which he did not really mean.
The language of s. 52 seems to reflect the Supreme Court of Canada’s discussion of dominate relationships found in the decision of Geffen v. Goodman Estate, (1991) 81 D.L.R.(4th) 211 ( S.C.C.).
In that decision, which was a case dealing with an inter vivos trust, the Court stated:
“What then is the nature of the relationship that must exist in order to give rise to a presumption of undue influence? Bearing in mind the decision in Morgan, its critics and the divergence in the jurisprudence which it spawned, it is my opinion that concepts such as “confidence” and “reliance” do not adequately capture the essence of relationships which may give rise to the presumption. I would respectfully agree with Lord Scarman that there are many confidential relationships that do not give rise to the presumption just as there are many non-confidential relationships that do. It seems to me rather that when one speaks of “influence” one is really referring to the ability of one person to dominate the will of another, whether through manipulation, coercion, or outright but subtle abuse of power. I disagree with the Court of Appeal’s decision in Goldswortby v. Brickell, supra, that it runs contrary to human experience to characterize relationships of trust or confidence as relationships of dominance. To dominate the will of another simply means to exercise a persuasive influence over him or her. The ability to exercise such influence may arise from a relationship of trust or confidence but it may arise from other relationships as well. The point is that there is nothing per se reprehensible about persons in a relationship of trust or confidence exerting influence, even undue influence, over their beneficiaries. It depends on their motivation and the objective they seek to achieve thereby.
S. 52 of WESA goes along ways to promoting success in allegations of undue influence in wills involving persons in a position of domination over the will maker. It is a rebuttable presumption that caregivers and others in such roles of domination should not fear if they are legitimate beneficiaries in every sense of the word.
New Estate Laws of British Columbia as of April 1, 2014 (WESA)
After over 30 years of planning, the estate laws of British Columbia have received a recent major overhaul in a new statute called the Wills, Estates and Succession Act (WESA). It replaced and combined together several previous estate statutes that stood alone.
The purpose of this paper is to mention eleven of the major highlights of the new legislation :
A SLIGHTLY DIFFERENT PERSPECTIVE AND OVERVIEW OF WESA
It took over 30 years for the British Columbia law reform bodies to overhaul the various statutes relating to wills and estates, resulting in the enactment of the Wills, Estates and Succession Act (WESA). However, after careful deliberation and review, it is my impression that much of the WESA is much to do about very little, or should have been done by Order in Council many years ago, and in some circumstances, was simply not necessary.
At the same time, however, some provisions of the WESA could greatly assist plaintiff`s counsel in supplementing the tools available to get even a hotly-contested estate finalized.
1. The Wills Variation Act
In its initial report in 2006, the British Columbia Law Institute recommended changes to the Wills Variation Act (WVA) on the basis that the estate laws of British Columbia should conform with that of the rest of Canada.
The report proposed that the right of an adult child to make a claim under the WVA should be available only when the child was a student or could not be self-supporting by reason of illness, mental or physical disability, or other special circumstances.
The report in essence removed the moral obligation of a parent to provide for an adult self-supporting child.
In my opinion this was the most significant and controversial recommendation in the report. After much debate, it was eventually withdrawn. The Trial Lawyers Association and I were instrumental in refuting this ill-considered proposed change to the WVA, which has been part of British Columbia culture for almost 100 years.
The WESA has made only minimal changes to the WVA, leaving the legislation largely untouched.
2. Undue Influence
In my opinion the most significant and beneficial change that the WESA has made for estate litigation is the vast improvement given to proving undue influence. Now, where the challenger to a will proves both the potential for dependence or domination, and the opportunity for use of that position to unduly influence a will-maker to make a will or any provision in it, the onus of proof shifts to the party benefiting, usually a caregiver, to defend the will or uphold the gift.
This is a tremendous benefit to the law relating to undue influence and wills, and brings the statute into line with the case law of the Supreme Court of Canada in the Geffen case, which provides for a similar shifting of the onus of proof for inter vivos gifts.
3. Marriage Issues
The antiquated law that marriage revokes a will unless made in contemplation of the marriage, has finally been repealed by the WESA. This change is long overdue, given that more and more couples are cohabitating and marrying later in life.
The definition of “spouse”, however, has become increasingly complicated, particularly as the definition of spouse under the WESA may conflict with the definition of spouse under the new Family Law Act. The merger of estate law and family law has become increasingly evident with the enactment of the Family Law Act and the WESA.
As was the case under the previous Wills Act, the WESA provides that if a will makes a gift to the will-maker’s spouse, and subsequent to the execution of the will the will-maker and the spouses divorce, the gift to that spouse in the will is revoked, subject to a contrary intention expressed in the will.
Section 56 of WESA goes further to state that subject to a contrary intention expressed in the will, a gift made in a will to someone who is or becomes the will-maker’s a spouse is revoked, if after the will is made and before the will maker’s death, the will-maker and the spouse cease to be spouses pursuant to sections 2 (2) of the WESA.
With respect to intestacy, it should be noted that under the WESA a separated spouse will no longer have any entitlement if his or her former spouse dies without a will.
I foresee much litigation over the term “spouse” as it applies, for example, to married spouses who reconcile or to common-law spouses who separate, and also as to how the definitions of “spouse” in the WESA and the Family Law Act may conflict.
4. Intestacy Rules Changed
The provision for a spouse under an intestacy has not been updated since 1983 and was long overdue for change. Under the WESA the spouse’s preferential share is now increased from $65,000 to $300,000 if all of the children of the deceased are also children of the spouse.
If the deceased had children who are not children of the spouse (i.e. step-children of the surviving spouse), then the surviving spouse’s preferential share is only increased to $150,000, with the remainder of the estate being divided one-half to the spouse and one-half among the deceased’s children.
The surviving spouse is no longer entitled to a life interest in the former matrimonial home but instead receives the right to purchase the family home for fair market value up to 180 days after the grant of administration. The court has some discretion to reduce the price or improve the terms of the purchase for the spouse if there is a significant financial hardship.
One of the most significant changes that the WESA has made to the intestacy rules is the change from distribution on the basis of consanguinity to a “parentelic” distribution scheme. Quite frankly I feel the entire change was unnecessary.
For many decades, under the Estate Administration Act and its predecessors, intestate estates have been distributed on the basis of lineal consanguinity, which subsists between persons of whom one is related in a direct line to the other, such as between son and father, grandfather, great-grandfather and so upwards in the direct ascending line, or alternatively between father and son, grandson, great-grandson and so downwards in the direct descending line.
Under this system, where the deceased leaves no spouse or descendants, the persons in the nearest degree of consanguinity share in the estate.
The drafters of the WESA considered this system to be unfair in certain circumstances, as it is possible for one side of a deceased person’s family to take the whole of the estate although there are also relatives on the other side.
Section 23 of the WESA implements what is known as a parentelic distribution scheme where the deceased dies with no spouse, descendant, parent or descendant of a parent surviving him or her. Under the parentelic system, the estate is to be divided between relatives of the deceased’s parents, starting first with the deceased’s grandparents and their descendants.
If there are persons on both parents’ sides, the estate is divided equally between the two sides (e.g. equally between a maternal grandmother and a paternal uncle). If there are no relatives at this level, than one looks to the grandparents of the parents and their descendants in the same fashion.
If there is still no relative at this next level, then the intestate estate will escheat to the Crown.
5. Survivorship
From a factual point of view it is relatively common that two or more persons die at the same time or in circumstances where it is uncertain which of them survived the other or others. Natural disasters are example of such situations.
The WESA repealed section 2 of the former Survivorship and Presumption of Death Act (now renamed Presumption of Death Act) and sets out new survivorship rules in Part 2, sections 5 to 11. The previous survivorship law had been in place for many decades and often conflicted with provisions of the Insurance Act relating to life insurance.
Generally speaking the previous law was that where two persons died in circumstances where it was uncertain which of them survived the other, it was presumed that the younger person survived the older person.
The WESA now provides that if two or more persons died in circumstances where it cannot be determined who died first, the survivorship rights are determined is if each person survived the other. Section 5 goes on to deal specifically with jointly owned assets. Where joint tenants die and it cannot be determined who died first, each joint owner is deemed to have held the property as tenants in common with the other.
Section 10 of the WESA imposes a general five-day survivorship rule, whereby a person who does not survive a deceased person for five days (or any longer period provided in an instrument) is deemed to have predeceased the deceased person for all purposes relating to the deceased person’s estate.
The five-day provision required to inherit applies even to the survivorship rules of joint tenants. If there are two or more joint owners who all died and it cannot be determined that any one of them survived the others by at least five clear days, the property is now divided into equal shares between the estates of the owners.
6. Courts Can Cure Formal Defects in Wills to Make Them Valid
S.58, the curative provision gives the court the power to grant relief in certain circumstances where the historically required testamentary formalities have not been met. The court is empowered to rectify an error in a valid will to allow it to be carried it out as per the will maker’s intentions. The clear intent of this provision is to allow the court to focus on what was the testator’s intent, rather than on technical deficiencies in the execution of the will.
There will likely be much litigation over this provision in the future, but other jurisdictions such as Manitoba, Saskatchewan and Australia have similar provisions and generally speaking, the courts there have taken into consideration the finality of the document and the authenticity and degree of connection of the recorded document with the deceased.
The record may even include a document that is recorded or stored electronically, and if the court is of the view that the document represents the deceased’s testamentary intentions or the intention to revoke alter or revive a will or testamentary disposition, then the court can make an order that the recorded document is fully effective as the will or part of the will, or revocation, alteration or revival.
Great latitude has seemingly being granted as to what type of document will be admitted as a will, and it would appear that a record can be any form of writing or marking on any medium, whether electronic, paper or otherwise such as e-mails, text messages or even scraps of paper. This is a non-exhaustive list, and the courts will consider any number of items in their totality to be the final record of the will maker.
7. Courts Can Rectify an Otherwise Invalid Will
Following upon section 58 of WESA, section 59 radically expands the courts’ powers to rectify an error in a valid will and allow it to carry out the will maker’s intentions.
It does not matter if the court is sitting as a court of construction or as a court of probate, as its previous power confining into deleting words from the will that the probate stage.
The primary purpose of section 59 is to have the court rectify the will if the court determines that the will fails to carry out the will maker’s intentions because of such things as a clerical error, a misunderstanding on the part of the lawyer who prepared the will or the will maker.
Rectification of Will
59 (I) On application for rectification of a will, the court, sitting as a court of construction or as a court of probate, may order that the will be rectified if the court determines that the will fails to carry out the will-maker’s intentions because of
(a) an error arising from an accidental slip or omission,
(b) a misunderstanding of the will-maker’s instructions, or
(c) a failure to carry out the will-maker’s instructions.
(2) Extrinsic evidence, including evidence of the will-maker’s intent, is admissible to prove the existence of a circumstance described in subsection (I).
(3) An application for rectification of a will must be made no later than 180 days from the date the representation grant is issued unless the court grants leave to make an application after that date.
(4) If the court grants leave to make an application for rectification of a will after 180 days from the date the representation grant is issued, a personal representative who distributes any part of the estate to which entitlement is subsequently affected by rectification is not liable if, in reasonable reliance on the will, the distribution is made
(a) after 180 days from the date the representation grant is issued, and
(b) before the notice of the application for rectification is delivered to the personal representative.
(5) Subsection (4) does not affect the right of any person to recover from a beneficiary any part of the estate distributed in the circumstances described in that subsection.
Also of great significance is the addition of a subsection allowing for the introduction of extrinsic evidence, including evidence of the will maker’s intent, to prove the existence of a circumstance described in section 1.
There is a 180 day limitation for rectification of a will from the date the representation grant is issued unless the court grants leave to make an application after that date
8. Removal of Executor
One of the most common complaints of estate litigants is the role, choice or behavior of the executor chosen by the deceased, and the Courts are reluctant to remove an executor without valid reasons.
The non co operative executor can now more easily be removed , and in fact be deemed to be removed, for non co-operation, and this is a very beneficial and long over due change.
S 25 of WESA allows for the removal of an executor or trustee where a Citation served on the executor is ignored or not complied with.
Under 25-11(2) the citation must also be personally served on each alternate executor in the event that the first executor fails to comply with the 14 day rule, or file an Answer.
Under Section 25-11 (5), a person cited is deemed to have renounced executorship if:
a) the person cited refuses to comply with providing the information or filing an Answer under 25-11 (4), is deemed to have renounced executorhip.
b) or obtain a grant of probate within 6 months of the date the citation was served.
5-11 (6) deals with the effect of failing to answer a Citation or refusing probate:
1) if the person fails to apply for probate , provide an Answer or fails to provide the information, he or she is deemed to have renounced the executorship.
In that event, the citor or another person interested in the estate may apply for:
1) a grant of probate or administration with will annexed;
2) an order under S 58 curing deficiencies in the testamentary document;
3) that the testamentary document be proved in solemn form;
4) if the testamentary document is in the possession of a third party, the issuance of a subpoena under Rule 25-12 to require the cited person to file the testamentary document
9. Powers of Subpoenas for Testamentary Documents Has Increased
Following upon the common problem of the noncompliant executor, Rule 25- 12 of WESA greatly expands the subpoena process in obtaining testamentary documents and grants.
Rule 25-12 (1) allows a person to apply for a subpoena to require a person to deliver to the registry a testamentary document and list of other estate related documents.
The subpoena is a document that can require a person to deliver up a document to the registry, including any one or more of the following:
-An estate grant
-a foreign grant
-resealed grant
-an authorization to obtain receiving information
-an authorization to obtain state information
-a testamentary document
The subpoena is filed in the court registry along with the supporting affidavit in form P35.
The court must be initially satisfied that the documents have been requested and have not been produced and are relevant.
The court in fact is empowered to order the arrest and imprisonment of a non-complying executor who has been served with such a subpoena and fail to comply with same. This is a very powerful new tool that has been added to the frustrated estate litigator who has had to deal with non-responsive personal representatives.
10. Priority of Ranking of Potential Administrators
This is a brand new provision to WESA.
The spouse has priority but may also nominate someone else , be it a child of the marriage or a financial institution, and that appointed party will have the same priority to be appointed the administrator.
The spouse does not require the consent of the children, nor does the person being appointed need consent.
One of the problems with the current Estate Administration Act was that it did not provide a list of persons entitled to apply for letters of administration in terms of who had first priority, and had no guidelines at all with respect to who might apply successfully to be appointed administrator with will annexed.
Sections 130 and 131 of the WESA address these issues.
Under s. 130, the following have priority in the following order:
(a) the spouse of the deceased person or a person nominated by the spouse;
(b) a child of the deceased person having the consent of a majority of the children of the deceased person;
(c) a person nominated by a child of the deceased person if that person has the consent of a majority of the deceased person’s children;
(d) a child of the deceased person not having the consent of a majority of the deceased person’s children;
(e) an intestate successor other than the spouse or child of the deceased person, having the consent of the intestate successors representing a majority in interest of the estate, including the intestate successor who applies for a grant of administration;
(f) an intestate successor other than the spouse or child of the deceased person, not having the consent of the intestate successors representing a majority in interest of the estate, including the intestate successor who applies for a grant of administration;
(g) any other person the court considers appropriate to appoint, including, without limitation, the Public Guardian and Trustee, subject to the Public Guardian and Trustee’s consent.
In the case of an administration with will annexed, the priority is as follows (s. 131):
(a) a beneficiary who applies having the consent of the beneficiaries representing a majority in interest of the estate, including the applicant;
(b) a beneficiary who applies not having the consent of the beneficiaries representing a majority in interest of the estate;
(c) any other person the court considers appropriate to appoint, including the Public Guardian and Trustee, subject to the Public Guardian and Trustee’s consent.
The court retains the ability to depart from these schemes in special circumstances (WESA, s. 132).
Special circumstances:
This section is similar to the current s 7 of the Estate administration Act which permits the Court to ignore the hierarchy and appoint an administrator form elsewhere. This is especially the case with insolvent estates or other special circumstances
132 (I) Despite sections 130 and 131, the court may appoint as administrator of an estate any person the court considers appropriate if, because of special circumstances, the court considers it appropriate to do so.
(2) The appointment of an administrator under subsection (I) may be
(a) conditional or unconditional, and
(b) made for general, special or limited purposes.
11. Notices of Dispute Replace Caveats
Prior to WESA, a disputant of an estate could file a caveat to prevent a grant of probate, which was good for six months, and which could be renewed as many times as necessary for a further six months at a time.
Rule 25-10 makes many significant changes to that of caveats, first and foremost by changing their name to Notices of Dispute.
The Notice of Dispute will still prevent the issue of an estate grant, unauthorized nation to obtain state information, and authorization to obtain receiving information, and the receiving of a foreign grant under Rule 10 (8).
It can however only be filed once S 10 (2)
The new Form 29 requires more information on the grounds that the notice is filed than previously necessary under a caveat.
It may be amended once with leave of the Court 10(4)
10(6) Allows for a Court to renew a Notice of Dispute for any time it considers appropriate on certain criteria, no prejudice being one of them.
Under S 10(10) the Court may remove a Notice of Dispute on the grounds of S 10(11), that the filing is not in the best interests of the estate.
Rule 10 (12) States that the N0tice to Dispute ceases in one year from the date of filing, subject to it having been renewed.
A great deal more information is now required to complete the Notice of Dispute than was required for a probate caveat.
Conclusion
At the time of the preparation of this paper, the WESA legislation has been in effect just over one month. Since it mostly applies to deaths that have occurred after March 31, 2014, many of its provisions have not yet been brought before the court due to the various transitional provisions provided. As stated previously, the legislation by and large was long overdue and for the most part is not earth shattering or even radical. It will however, I predict, result in many years of litigation relating particularly to the definitions of “spouse”, and the powers of the court to rectify and determine a document to be a valid will. Overall, it is generally quite favourable to my legal practice in acting for persons who have been disinherited.
Li v Ellison 2014 BCSC 501, is a Vancouver Wills Variation action where the deceased testator did not provide for his common law wife of eight years under his will, and the court varied the will under the Wills Variation act to award her the sum of $155,000, or 2/7 of the value of the estate, which ever was larger.
The deceased died at age 75 and left an estate valued between 480,000 and $600,000 to his two children and three grandchildren but very little to his common-law wife of eight years, namely a small pension .
When the plaintiff met the deceased in 2004, she was a relatively recent immigrant from China. While cohabiting with the deceased she obtained employment qualifications and currently earns about $37,000 per year. She has little in the way of savings, as she supported her family overseas. The deceased earned about$75,000 per year during the latter part of their cohabitation. There is some evidence that the parties intended to marry.
The deceased supported the plaintiff during the relationship. He suffered various health conditions in his later years and the plaintiff cared for him, although she did not leave her employment. The evidence shows they had a loving relationship and the deceased intended to make some provision for her after his death although the documentary and other evidence is unclear as to what that was. The deceased also had loving relationships with his immediate and extended family and it is clear that he intended to make provision for them as well.
Assets have passed outside of the estate, primarily to the deceased’s children and grandchildren, although the plaintiff has benefited from receiving a vehicle, a very small pension, the balance in an account, and has continued living in the condominium which was the matrimonial home. The defendants received approximately $409,000 outside of the estate. The net amount appropriate for distribution in the estate appears to be between approximately $480,000 and $600,000., which was taken into account by the court in reaching the conclusion that the deceased failed to make legal and moral provision for the plaintiff under his will.
The Wills Variation act was applied to vary the will in favour of the common law spouse of 8 years.
The court considered that the bulk of the assets in the estate was brought into the relationship by the deceased, and that the plaintiff was relatively young and not disadvantaged by the relationship. The care that she provided to the testator was taken into account in the award.
As recently reported, a husband and wife who died within 15 hours of each other after 70 years of marriage, would under the laws of WESA, not inherit from the other, as there is now a requirement that the beneficiary MUST survive the deceased for at least five days.
This is not all that radical a change in the practice of wills drafting , given that most will maker’s execute wills wherein there is a 30 day survival requirement .
From a factual point of view it is relatively common that parties die at the same time or in circumstances where it is uncertain which of them survive the other or others .Most disasters for example are such situations.
WESA repealed section 2 of the former Survivorship and Presumption of Death act ,and renamed it Presumption of Death act, and sets out new survivorship rules in part 2, sections 5– 11 of the WESA .
The previous statute had been the law for many decades and often conflicted with provisions of the insurance act.
Generally speaking the previous law was that where it was uncertain as to who survived the other, it was presumed that the younger person survived the older person(s)
Aside from the requirement that a beneficiary must now outlive the deceased by five days, a summary of the changes relating to survivorship and priority of beneficiaries is as follows:
(1) in common disaster, situations or in other circumstances where it is uncertain who survives the other or others, rights to property will be determined as if each deceased person is presumed to have survived the other or others;
(2) each person is permitted to opt out of the presumption by expressing a contrary intention in any document;
(3) if joint tenants die simultaneously, their joint tenancy will be converted to a tenancy in common so their respective estates will benefit from their shares of the jointly held property;
(4) if a person fails to survive another for at least five days, that person is deemed to have predeceased the other (except for any rights as personal representative);
(5) the five-day survival period is applicable to posthumous births, such that if a baby is conceived before an intestate’s death but is born and lives at least five days, that baby is considered to have been alive at the death of the intestate; and
(6) a person cannot opt out of the five-day survival period.
Damages totaling almost $500,000 were awarded this week to a 10-year-old child arising out of the wrongful death arising from the murder of her mother by her husband. The damages were awarded pursuant to the Family Compensation Act, R.S.B.C 1996, c. 126 [FCA].
For additional blogs on the Family Compensation act and wrongful death claims, please visit the blogs on this site dated:
The case is reported asPanghali v. Panghali, 2014 BCSC 647
The defendant was convicted of second-degree murder and sentenced to life imprisonment with no eligibility for parole for 15 years.
The issue at trial was the quantification of damages for wrongful death that would be due and payable to the dependent child of the victim, and the appropriate statute is the Family Compensation act.
In a nutshell it might be said that the damages for the wrongful death of the mother is really what is the value of the loss of mother to a young daughter, caused by the wrongful death of another?
Section 2 of the Family Compensation act states as follows:
2 If the death of a person is caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not resulted, have entitled the party injured to maintain an action and recover damages for it, any person, partnership or corporation which would have been liable if death had not resulted is liable in an action for damages, despite the death of the person injured, and although the death has been caused under circumstances that amount in law to an indictable offence.
Regrettably the damages for wrongful death under the Family Compensation Act are essentially limited to economic loss , with little or no provision allowable for the pain and suffering caused by loss of a loved one .
The purpose of the FCA to place claimants in the economic position they would have been in but for the death (Keizer v. Hanna and Buch, [1978] 2 S.C.R. 342 at 351).
Recoverable losses are restricted to pecuniary losses, including “the actual financial benefit of which the [the claimant] has been deprived and … financial benefit which might reasonably be expected to accrue in the future if death had not occurred”: Cox v. Takahashi (1977), 5 B.C.L.R. 162 at 164; see also Brown v. Finch (1997), 42 B.C.L.R. (3d) 116 (C.A.).
A summary of the damages calculation for the wrongful death in this case are as follows :
a) Past Loss of Dependency: $54,700
b) Future Loss of Dependency: $165,000
c) Past Loss of Household Assistance and Childcare: $129,000
d) Future Loss of Household Assistance and Childcare: $172,000
e) Loss of Guidance: $35,000
f) Public Guardian and Trustee fees of $58,600
g) Tax Gross-up to be resolved by counsel; failing agreement, liberty to apply is granted.
Revocation of a Will before Part 4 of the WESA came into force on April 1.14, is not revived by virtue of Part 4 coming into force (s. 186(3)).
This exception is of particular importance if the will-maker marries after making a will.
As the automatic revocation of a will by subsequent marriage of the will-maker is abolished under the WESA (s. 55(1)), the way in which the exception operates depends on the sequence in which the execution of the will, the marriage, the effective date of Part 4 of the WESA, and the date of death occur.
If a will is revoked because of the marriage of the will-maker before Part 4 is brought into force, the clear meaning of s. 186(3) is that its entry into force does not revive the will.
For a detailed overview of the law relating to the revocation of a will , please visit my blog dated November 19,2014.
There is a blog on the presumption that a lost will is revoked on the November 3, 2011 blog
and a further article on revocation of wills on March 12, 2014.
S. 25 WESA provides for the removal of an executor where a Citation
One of the most common complaints of estate litigants is the role, choice or behavior of the executor chosen by the deceased.
The Courts are reluctant to remove an executor without valid reasons. For further in depth discussion of removal of executors, trustees ( personal representatives), please also visit blog entries on this site dated :
S 25 WESA allows for the removal of an executor or trustee where the Citation served on the executor is ignored or not complied with.
Under 25-11(2) the citation must also be personally served on each alternate executor in the event that the first executor fails to comply with the 14 day rule, or file an Answer.
Under Section 25-11 (5) , a person cited is deemed to have renounced executorship if:
a) the person cited refuses to comply with providing the information or filing an Answer under 25-11 (4), is deemed to have renounced executorship.
2) or obtain a grant of probate within 6 months of the date the citation was served
5-11 (6) deals with the effect of failing to answer a Citation or refusing probate:
1) if the person fails to apply for probate , provide an Answer or fails to provide the information, he or she is deemed to have renounced the executorship.
In that event, the citor or another person interested in the estate may apply for:
1) a grant of probate or administration with will annexed;
2) an order under S 58 curing deficiencies in the testamentary document;
3) that the testamentary document be proved in solemn form;
4) if the testamentary document is in the possession of a third party, the issuance of a subpoena under Rule 25-12 to require the cited person to file the testamentary document
