Rambling Journal Upheld As NOT a Valid Will

Rambling Journal Upheld As NOT a Valid Will

Re Hadley Estate 2017 BCCA 311 was upheld by the Court of appeal in finding that a rambling journal was not a will that could be “cured” by S 58 WESA.

This was the first appeal court decision on Section 58 WESA.

Section 58 of the WESA

[33] British Columbia was a “strict compliance” jurisdiction prior to passage of the WESA. Under s. 4 of the Wills Act, R.S.B.C. 1996, c. 489, testators were obliged to comply strictly with execution and attestation formalities for creating a will for it to be valid. The same was true for revoking, altering or reviving a will: Wills Act, ss. 14, 17, 18. These formal requirements sometimes led to a will-maker’s testamentary intentions being defeated for no good reason. As a result, the British Columbia Law Institute recommended the introduction of a dispensing power to relieve against the consequences of non-compliance with testamentary formalities as part of a general reform of wills and estate administration law: BCLI, Wills, Estates and Succession: A Modern Legal Framework (BCLI Report No. 45, June 2006) at xiv.

[34] Section 58 of the WESA is the legislative response to the BCLI recommendation. Remedial in nature, it confers a broad discretion on the court to order that a “record or document or writing or marking on a will or document” be fully effective, despite non-compliance with the statutory requirements. Although s. 58 cannot be used to uphold a will that is substantively invalid, it permits the court to cure issues of formal invalidity in prescribed circumstances:

Court order curing deficiencies

58 (1) In this section, “record” includes data that

(a) is recorded or stored electronically,
(b) can be read by a person, and
(c) is capable of reproduction in a visible form.
(2) On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents
(a) the testamentary intentions of a deceased person,
(b) the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or
(c) the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.
(3) Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made
(a) as the will or part of the will of the deceased person,
(b) as a revocation, alteration or revival of a will of the deceased person, or
(c) as the testamentary intention of the deceased person.
…
[35] For an order to be granted under s. 58 of the WESA, the court must be satisfied that a document represents the testamentary intentions of the deceased person. However, unlike the curative provisions in some provinces, s. 58 does not require a minimum level of execution or other formality for a testamentary document to be found fully effective. Regardless of its form, if the court grants an order under s. 58(3), the document may be admitted to probate.

[36] As discussed in Estate of Young, s. 58 is very similar to Manitoba’s curative provision and thus the leading appellate authority on its meaning is George v. Daily. George and several other Manitoba authorities are reviewed in Estate of Young, which review need not be repeated. Their import is summarized at paras. 34–37:

[34] As is apparent from the foregoing, a determination of whether to exercise the court’s curative power with respect to a non-compliant document is inevitably and intensely fact-sensitive. Two principal issues for consideration emerge from the post-1995 Manitoba authorities. The first in an obvious threshold issue: is the document authentic? The second, and core, issue is whether the non-compliant document represents the deceased’s testamentary intentions, as that concept was explained in George.

[35] In George the court confirmed that testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death. The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death. A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a will, by its nature, is revocable until the death of its maker. Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.

[36] The burden of proof that a non-compliant document embodies the deceased’s testamentary intentions is a balance of probabilities. A wide range of factors may be relevant to establishing their existence in a particular case. Although context specific, these factors may include the presence of the deceased’s signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests and the title of the document: Sawatzky at para. 21; Kuszak at para. 7; Martineau at para. 21.

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

The Material Time

[37] In many cases, as here, the material time for determining testamentary intentions on a s. 58 application is the time when the document in question was created. However, as noted in Estate of Young, depending on the circumstances, the material time may vary on this key issue. For example, after creating a document, a will-maker may, by words or actions, manifest a fixed and final intention that it expresses how his or her property is to be disposed of on death and thus that it operates as a will. In other words, a document may acquire a testamentary character by subsequent and sufficient manifestation of the will-maker’s intention: Bennett et al. v. Toronto General Trusts Corporation, [1958] S.C.R. 392 at 397. Nevertheless, in most cases, the focus of inquiry will be the will-maker’s intention when the document was prepared and executed: see, for example, Sweeney Cunningham Estate v. Sweeney, 2013 NSSC 299 at para. 29; Komonen v. Fong, 2011 NSSC 315 at para. 23.

The Scope of Admissible Extrinsic Evidence

[38] The WESA does not indicate what evidence is admissible on a s. 58 inquiry. Accordingly, the ordinary rules of admissibility apply.

[39] Ordinarily, evidence must be relevant to a live issue and not be subject to exclusion under any other rule of law or policy to be admissible: Sidney N. Lederman, Alan W. Bryant and Michelle K. Fuerst, The Law of Evidence in Canada 4th ed. (Markham: LexisNexis Canada Inc., 2014) at §2.40. Relevance must, therefore, be assessed on a case-by-case basis. Mr. Justice Rothstein affirmed the meaning of “relevance” in R. v. White, 2011 SCC 13:

36 … In order for evidence to satisfy the standard of relevance, it must have “some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would be in the absence of that evidence” [citations omitted].

37 … to say that an item of evidence is not relevant; that it is not probative of a live issue; or that it is “equally explained by” or “equally consistent with” either determination of a live issue are three ways of saying the same thing.

[40] Sitting as a court of probate, the court’s task on a s. 58 inquiry is to determine, on a balance of probabilities, whether a non-compliant document embodies the deceased’s testamentary intentions at whatever time is material. The task is inherently challenging because the person best able to speak to these intentions – the deceased – is not available to testify. In addition, by their nature, the sorts of documents being assessed will likely not have been created with legal assistance. Given this context and subject to the ordinary rules of evidence, the court will benefit from learning as much as possible about all that could illuminate the deceased’s state of mind, understanding and intention regarding the document. Accordingly, extrinsic evidence of testamentary intent is admissible on the inquiry: Langseth Estate v. Gardiner (1990), 75 D.L.R. (4th) 25 at 33 (Man. C.A.); Yaremkewich Estate (Re) at para. 32; George. As is apparent from the case authorities, this may well include extrinsic evidence of events that occurred before, when and after the document was created: see, for example, Bennett; George; Estate of Young; Re MacLennan Estate (1986), 22 E.T.R. 22 at 33 (Ont. Surr. Ct.); Caule v. Brophy (1993), 50 E.T.R. 122 at paras. 37–44 (Nfld. S.C.).

The Judge’s Treatment of the Evidence

[41] The judge conducted her s. 58 inquiry in a thorough, careful, transparent manner. She considered the words and form of the 2014 Will in detail, together with the large and varied body of extrinsic evidence of events that occurred before, when and after it was made. The focus of her analysis was Ms. Hadley’s intention when she wrote the 2014 Will, which was the material time for s. 58 purposes. On balance, she concluded that it did not represent a deliberate and final expression of Ms. Hadley’s testamentary intentions, which conclusion, though not inevitable, was reasonably available on the evidence as a whole.

[42] In her reasons, the judge listed or had previously noted virtually all of the factors characterized by the appellants as genuinely probative of the central issue. However, after balancing those factors with others to contrary effect, she simply was not persuaded by their arguments or the validity of their position. I see no error in the manner in which she reached this conclusion or in her interpretation of the evidence and its overall import.

[43] Contrary to the appellants’ submission, the evidence the judge relied upon to support her conclusion was relevant to Ms. Hadley’s testamentary intentions when the 2014 Will was written. While not necessarily dispositive, each item of impugned evidence tended to increase the likelihood that the 2014 Will did not express her final intentions for the disposal of her property on death. For example, although she was not obliged to leave bequests to her nieces, she had previously done so in the 2008 Will and an explanation for the change and some form of express revocation might reasonably have been expected, but both were absent: see McNeil v. Snidor Estate, 2008 MBQB 187 at paras. 21, 23. As a matter of logic and human experience, their absence tended to make it more likely that the 2014 Will did not express Ms. Hadley’s final intentions than it would have been if there was evidence of either or both.

Revocation of Wills Post WESA

Revocation of Wills Post WESA - Disinherited

The introduction of the Wills Estates and Succession act (WESA) on March 31,2014 made a few  significant changes to the law relating to the revocation of wills.

Probably the most significant change was that marriage after the execution of a will no longer revokes a will. This largely unknown fact had created much hardship in estate law over a long period of time.

The other significant change is the insertion of section 58 WESA known as the curative provision for  otherwise defective wills.

Section 55 of WESA provides as follows:

55 (1) A will or part of a will is revoked only in one or more of the following circumstances:

  • by another will made by the will-maker in accordance with this Act;
  • by a written declaration of the will-maker that revokes all or part of a will made in accordance with section 37 ;
  • by the will-maker, or a person in the presence of the will-maker and by the will-maker’s direction, burning, tearing or destroying all or part of the will in some manner with the intention of revoking all or part of it;
  • by any other act of the will-maker, or another person in the presence of the will-maker and by the will-maker’s direction, if the court determines under section 58 that

(i)     the consequence of the act of the will-maker or the other person is apparent on the face of the will, and

(ii)     the act was done with the intent of the will-maker to revoke the will in whole or in part.

(2) A will is not revoked in whole or in part by presuming an intention to revoke it because of a change in circumstances.

VOLUNTARY REVOCATION

It should be stated at the outset that section 58 WESA which is discussed later in this paper may well alter the common law stated hereafter quite dramatically if it is applied in the same sweeping effect that the courts have used that section to cure defective wills. To date there have been no reported cases on how the courts will apply section 58 WESA to remedy defective revocations, but I anticipate that the effects will be dramatic.

Voluntary Revocation can be accomplished by any of the following:

  • by executing a subsequent will or codicil that typically contains a revocation clause of the previous will;
  • a written declaration declaring an intention to revoke a will and duly executed in the same prescribed manner as a will;
  • by burning, tearing or otherwise destroying the will by the testator or by someone in the presence and by the direction of the testator

The execution of a subsequent will or codicil is by far the most common method of revoking a will.

In fact, when a testamentary document is valid and contains a revocation clause , there is a very heavy onus on anyone attacking the will attempting to argue that the revocation clause was not intended to be operative. McCarthy v Fawcett ( 1945) 1 W.W.R. 70 ( B.C.C.A)

Drawing a line through the signature and adding the words  I hereby revoke this will was held to be of no legal effect in Bell v. Matthewman ( 1920) 49 O.L.R 364.

A letter properly attested by two witnesses and addressed to the bank manager who held the original will on deposit stating “ will you please destroy the will already made out was held to have effectively revoked the will in Re Spracklan ( 1938) 2 All E.R. 730.

With respect to the destruction of a will, there must be both the act of destruction as well as the intention to destroy the will and any symbolic destruction will not suffice. Partial tearing of the will which leaves the words legible does not necessarily show an intention to revoke. There must be such an injury with intent to revoke that it destroys the entirety of the will to have an effective revocation. Re Shafner ( 1956) 2 D.L.R. ( 2d) 593 ( N.S.C.A.)

The Common Law Presumption of Destruction

Very often in estate disputes the original or a will cannot be found and an attempt is made to probate a copy, giving rise to the legal issue as to whether the will had been destroyed or simply lost.

If an original duly executed will that was in the possession of the testator is not propounded upon death and the executor fails to prove that the original was not merely lost and not destroyed, then there is a common law presumption that is rebuttable by sufficient evidence that the will was destroyed by the testator, that the testator destroyed the will for the purpose of revoking it. Sigurdson v Sigurdson (1935) 4 DLR 529 ( S.C.C.)  and Kumar v Kumari ( 1993) BCJ No. 108.

The evidence necessary to rebut the presumption of revocation need not be such as to amount to a positive certainty , but only such as to produce moral conviction. Re Matt estate ( 1954) 11 WWR ( NS) 28 ( Man.C.A).

The Sigurdson case ibid stated that the evidence to rebut the presumption of revocation must be clear and convincing to satisfy the court that the will had in fact been lost and not destroyed by the testator with an intention of revoking the will.

Various Factors of Consideration by the Court Whether the Presumption Applies

Haider v Kalugin  2008 BCSC 930 enumerated some of the factors the court will consider in deciding whether the presumption of revocation applies, and if so, whether it has been rebutted:

  • whether the testator continued to have good relations with the named beneficiaries in the copy of the will up to the date of death;
  • whether the terms of the will were reasonable
  • the nature and character of the deceased in taking care of personal effects- ie orderly vs hoarding;
  • statements made by the testator to either confirm or contradict the terms of the will copy;
  • whether the deceased understood the consequences of having a will and the effects of an intestacy;
  • were personal papers stored carefully or haphazardly;

The presumption of revocation does not apply where the original will cannot be traced to the possession of the testator. Brimicombe v Brimicombe Estate  (2001) NSJ No. 157 (N.S.C.A). For example if the original was stored at the drafting lawyers office and the will was lost while there, the presumption would not apply.

SECTION 58  WESA

Section 58 of WESA, reads as follows:

58 (1) In this section, record includes data that

(a)   is recorded or stored electronically,

(b)   can be read by a person, and

(c)    is capable of reproduction in a visible form.

(2) On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents

(a)   the testamentary intentions of a deceased person,

(b)   the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or

(c)    the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.

(3) Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made

(a)   as the will or part of the will of the deceased person,

(b)   as a revocation, alteration or revival of a will of the deceased person, or

(c)    as the testamentary intention of the deceased person.

(4) If an alteration to a will makes a word or provision illegible and the court is satisfied that the alteration was not made in accordance with this Act, the court may reinstate the original word or provision if there is evidence to establish what the original word or provision was.

Section 58 WESA is a dramatic change to the law of revocation given that even if the document attempting to revoke a will is defective, if the court finds that the intention of the testator was to revoke the will, then under Section 58 (3) the court can cure the defect so as to give legal effect to the intention of the testator.

The “curative” provisions of Section 58 was illustrated in Horton v Bruce 2017 BCSC 712 where the court remedied only the revocation clause and not the distributive clauses of a subsequent  draft will that had been signed by the testator but not witnessed by two witnesses in the presence of each other. The legal effect of the imposition of Section 58 (3) was to cause the deceased to die intestate.

Horton v. Bruce relied upon  a Supreme Court of Canada decision Bell Express Vu Limited Partnership v Rex 2002 SCC 42 for the authority to interpret Section 58 to give the courts the power to cure only a part of a document or a writing deemed to be a will, and not the entire document.

CONCLUSION

The effects of WESA will be dramatic upon the law of revocation of wills. Section 55 WESA abolished the revocation of a will by any marriage that takes place after March 31, 2014.

The effect of Section 58 WESA has yet to be recognized but the application of that section in the Horton v Bruce decision leads me to believe that Section 58 will be liberally applied to remedy any defective revocation if the court concludes that it was the intention of a testator to revoke a will but failed to do so in a  manner that the common law previously demanded.

England Considers Allowing Texts and Voicemails to Be Wills

England Considers Allowing Texts and Voicemails to Be Wills

England is considering introducing radical reforms to it’s inheritance laws that would allow text messages and voice mails to be valid wills according to an article in today’s Telegraph.

“British people will be able to use voicemail and text messages to make their wills, under a radical overhaul of inheritance laws Law Commission has branded the current legacy system outdated and recommends it be revolutionized to keep up with the digital age.

Under present laws, which date back to 1839, wills need to be written and signed by the testator as well as two witnesses in order to be valid.

The commission suggests those rules are unclear and outdated

The plans drawn up by the Commission call for the law to be relaxed to allow notes, emails and voicemail messages to be used in place of a written will.

Under the proposals, new powers would allow county and high court judges to decide on the balance of probabilities whether a recording or note is an accurate summary of a person’s wishes.

Deathbed changes of heart could even be recorded and used to overrule an existing, valid will.

The consultation document says that there are strong arguments that it should apply not only to traditional written documents, but also where testators express their testamentary intentions in an electronic format, as well as in an audio or audio-visual recording.

But the Commission admits that the changes could add to family arguments as possible beneficiaries scour their relative’s communications for evidence that they had changed their mind.

The consultation adds: A person who is seriously ill in hospital may have more immediate access to a tablet or smartphone than to a pen and paper, and may be more able to speak than to write.

On the other hand, the potential recognition of electronic documents could provide a treasure trove for dissatisfied relatives.

“They may be tempted to sift through a huge number of texts, emails and other records in order to find one that could be put forward as a will on the basis of a dispensing power.

The powers already exist in Australia, Canada, South Africa, and several US states.

Law Commissioner Professor Nick Hopkins said: Even when it’s obvious what someone wanted, if they haven’t followed the strict rules, courts cannot act on it.

But experts urged caution amid concerns that older people could be pressured into last-minute changes of heart.

There are a number of ways to get a will drafted. One option is through a solicitor or use a will writing service.

The fee for using a solicitor will vary depending on the firm and the complexity of the will.

Caroline Abraham, charity director of Age UK said: Whilst we welcome this public consultation, any proposed changes must not create further barriers for people who wish to plan ahead, and ensure that older people are able to make their own decisions wherever possible, free from pressure and coercion.

Elizabeth Neale, partner in the private wealth team at law firm Bircham Dyson Bell, cautioned that weakening the current strict rules could have worrying implications for vulnerable people.

She added that there could be pressure on people to write something down or make a voicemail.

Professor Hopkins added: Any new law would protect vulnerable testators against possible undue influence, and certainly if there was any suggestion that that had been exercised, the court isn’t going to use the dispensing power. But this is a consultation, so if anyone has those concerns, they should let us know.

The proposals also suggest changing the law about mental capacity – to  make it easier to assess whether someone with dementia is able to make a will.

The current law dates from an 1870 case which provides when someone is making a will 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.

It suggests that the Mental Capacity Act, which is currently used to decide whether someone is capable of making a decision for themselves in other contexts, be used instead.”

Unwitnessed Will Valid

Can An Unwitnessed Will be Valid?

Section 58 WESA was once again successfully used in Re Litke Estate 2017 BCSC 1079 to find a hand written unwitnessed signed “will-like” document to be a valid will.

Such documents are now routinely found valid by the courts if certain criteria are met. The application in Re Litke was not even opposed.

STATUTE, CASELAW AND DISCUSSION

17      Part 4 of the WESA provides:

Part 4 — Wills

Division 1 — Making a Will

Who can make a will

36 (1) A person who is 16 years of age or older and who is mentally capable of doing so may make a will.

(2) A will made by a person under 16 years of age is not valid.

How to make a valid will

37 (1) To be valid, a will must be

(a) in writing,

(b) signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and

(c) signed by 2 or more of the witnesses in the presence of the will-maker.

(2) A will that does not comply with subsection (1) is invalid unless

(a) the court orders it to be effective as a will under section 58 [court order curing deficiencies],

(b) it is a will recognized as valid under section 80 [validity of wills made in accordance with other laws], or

(c) it is valid under another provision of this Act.

18      Section 58 of Part 4 provides:

58 (1) In this section, “record” includes data that

(a) is recorded or stored electronically,

(b) can be read by a person, and

(c) is capable of reproduction in a visible form.

(2) On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents

(a) the testamentary intentions of a deceased person,

(b) the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or

(c) the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.

(3) Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made

(a) as the will or part of the will of the deceased person,

(b) as a revocation, alteration or revival of a will of the deceased person, or

(c) as the testamentary intention of the deceased person.

(4) If an alteration to a will makes a word or provision illegible and the court is satisfied that the alteration was not made in accordance with this Act, the court may reinstate the original word or provision if there is evidence to establish what the original word or provision was.

Case Review

19      The decision of Dixon J. in Estate of Young, 2015 BCSC 182 [Young], was the first case to consider the WESA, which came into force in British Columbia on March 31, 2014, apparently modelled after similar legislation in Manitoba.

20      At para 16, Dickson J. noted that the enactment of c. 13 represented “a significant change in wills and estate administration law in the province”, with s. 58 “one of the WESA’s most far-reaching remedial provisions.” She noted that “It marks a departure from the traditional principles of formalism that previously governed the creation, alteration and revocation of wills in British Columbia.”

21      At para. 17, Dickson J. noted:

[17] Section 58 of the WESA is a curative provision. It confers a discretion on the court to relieve against the consequences of non-compliance with testamentary formalities in the “record, document or writing or marking on a will or document”. In prescribed circumstances, s. 58 permits the court to address and cure issues of formal invalidity in such documents. It cannot, however, be used to uphold a will that is invalid for substandard reasons such as testamentary incapacity or undue influence.

22      At para. 24, Justice Dickson referred to George v. Daily (1997), 143 D.L.R. (4th) 273 (Man. C.A.). As noted by Dickson J. at para. 26, Philp J.A. at paras. 62 and 65 of the Manitoba decision, stated the following on “the limits placed on the court’s curative powers”:

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 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 [citations omitted].

23      At para. 35 of Young, Dickson J noted:

[35] . . . A deliberate or fixed and final intention is not the equivalent of an irrevocable attention, given that a will, by its nature, is revocable until the death of its maker. Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.

24      At para. 27, Dickson J. noted the following:

[27] In Kuszak v. Smoley, [1986] M.J. No. 670 (Q.B.), a partially-printed and partially-handwritten document signed by the deceased but not witnessed was found to reflect the deceased’s testamentary intentions. The court relied on several factors in making this determination, including:

(1) the document was in the deceased handwriting;

(2) the document was signed by the deceased in four places;

(3) the date was in four places;

(4) the printed portion identified the document as a will and was properly filled out; and

(5) there was nothing before the Court refuting the conclusion that the document embodied the deceased’s intentions.

In these circumstances, the handwritten document was validated pursuant to s. 23 of the WA.

25      After a further review of cases at paras. 28 to 33, Justice Dickson came to the following conclusion at paras. 34 to 37:

[34] As is apparent from the foregoing, a determination of whether to exercise the court’s curative power with respect to a non-compliant document is inevitably and intensely fact-sensitive. Two principal issues for consideration emerge from the post-1995 Manitoba authorities. The first in an obvious threshold issue: is the document authentic? The second, and core, issue is whether the non-compliant document represents the deceased’s testamentary intentions, as that concept was explained in George.

[35] In George the court confirmed that testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death. The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death. A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a will, by its nature, is revocable until the death of its maker. Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.

[36] The burden of proof that a non-compliant document embodies the deceased’s testamentary intentions is a balance of probabilities. A wide range of factors may be relevant to establishing their existence in a particular case. Although context specific, these factors may include the presence of the deceased’s signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests and the title of the document: Sawatzky at para. 21; Kuszak at para. 7; Martineau at para. 21.

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

26      The facts in Yaremkewich Estate (Re), 2015 BCSC 1124 [Yaremkewich] are fairly similar to the case at bar.

27      In Yaremkewich, the deceased left documents that failed to comply with the formal execution requirements of the WESA. She purported to appoint her niece, the applicant, as one of the executors. The other executor renounced her co-executorship. The estate property, listed in a Statement of Assets, Liabilities, and Distribution provided by the applicant, included her “principal residence, various banking and investment accounts, her motor vehicle, and some insurance benefits. The only liabilities of the estate [were] relatively small fees, many of which [had] already been paid. . . . [T]he value of the estate [was] approximately $545,000.” [Para. 3.]

28      As in this case, the application was not opposed in Yaremkewich.

29      In Yaremkewich, the deceased had been diagnosed with cancer. Her health continued to decline in the months preceding her death. She took multiple medications (as noted at para. 7) including “hydromorphone (a form of morphine) and Ativan”. As in this case, the evidence did not indicate her medical condition or whether medications seriously affected her mental abilities at the time she drafted the will. In the case at bar, there is no evidence the deceased was ill at the time or taking medications that could have affected her mentation at the time she signed the will-like document.

30      The deceased executed a pre-printed will template form titled “Last Will and Testament”. The document purported to revoke all her former wills, codicils and testimony dispositions, although Watchuk J. noted there was no evidence of any prior will to revoke.

31      The deceased had appointed two persons as executors; one of them who had stepped aside.

32      As noted at para 13, “The original of the pre-printed will was kept in an unsealed envelope first opened on July 7, 2014 after [the deceased’s] death”. The words, “Will of [the deceased]”, were written in what her executor, who the court found seemed to have a strong relationship with the deceased, believed was the deceased’s handwriting.

33      The “Will” appointed executors, set out burial arrangements, and directed payment of certain taxes and expenses to be paid out of the estate. As in this case, it provided “a number of gifts, that included money bequests”. It provided for “a five-way division of the proceeds of [the deceased]’s house” and included with the document was a 12-page, stapled, handwritten list of bequests, organized by beneficiary and type of gift for the 19 beneficiaries which included nieces, nephews, stepsons, extended family and friends. [Para. 15.]

34      A third document entitled “Charitable Bequests” was a one-page, handwritten list of charitable bequests that purported to distribute the “remaining money from [the] estate”. Justice Watchuk noted the list appears to have been stapled to the personal bequests list but, at some point, became loose in the envelope containing the Will template.

35      Justice Watchuk noted many of the gifts were of a highly personal nature.

36      Although “[t]he Will was signed by two witnesses” (para. 19), Justice Watchuk noted that both the purported witnesses recalled the Will they signed was a blank template with no attached pages setting up bequests. They further believed that the deceased had not signed the Will before they signed and they “[did] not specifically recollect” whether she signed the Will the same time as them.

37      Justice Watchuk found it impossible to determine exactly when the deceased executed the Will. She concluded it was likely that the deceased had completed all the various documents referred to at the same time and shortly after the witnesses signed the Will.

38      Justice Watchuk was satisfied the Will did not conform with the formalities of the WESA as the deceased had not signed or acknowledged her signature in the presence of at least two witnesses, present at the same time and signed in the presence of the will maker. It was accordingly clear the form was not validly witnessed as required by the WESA.

39      On the question of what extrinsic evidence is admissible on the subject of testamentary intent, In Langseth Estate v. Gardiner, (1990), 75 D.L.R. (4th) 25 (Man. C.A.) at 33, Philp J.A. concluded that:

The general rule that extrinsic evidence is not admissible in construing a will (the function of a court of construction) does not apply to the probate court whose duty is to determine whether a document is a valid will. Extrinsic evidence is admissible on the question of testamentary intent, and the Court is not limited to the evidence that an inspection of the document provides.

40      Justice Watchuk found (at para. 56) “that the two bequests lists enclosed in the envelope [that contained the Will template] also represented the testamentary intention of the deceased and [were] therefore part of the Will”, noting that “[e]ach of the documents in substance contemplate[d] gifts on her death and in that sense were testamentary in nature.” At para. 57, Watchuk J. found it “obvious that [the deceased had] spent a great deal of time considering which gifts to give to each beneficiary . . . [and] that this represented her carefully-considered testamentary intentions”. Her observations with respect to the charitable bequests were of a similar nature. She found one of the documents found the made provision for care of the deceased’s dog after her death was not a testamentary intention as it did not contain funeral instructions for her for disposition of her property and death. As such that document, she concluded, did not have testamentary status and was now within the curative power of s. 58. She found, however, that the Will, the personal bequest list and the charitable bequest list included in the envelope containing the Will were fully effective as the deceased’s Will pursuant to s. 58 of the WESA.

41      It is apparent from the cases that the analysis that s. 58 engages is heavily fact-based. The circumstances in which a will-like document could be prepared are infinite.

42      As I read the section and the cases, the basic questions are whether the document presented is a valid document prepared by the deceased and that its contents represent a deliberate or fixed and final testamentary intention at the material time for the disposition of the estate.

Fraudulent Wills: Vancouver Sun Article

Fraudulent Wills

The Vancouver Sun published an article I wrote on the increased risk of fraudulent wills that may occur under WESA.

The B.C. inheritance-and-estate law brought in two years ago has increased the risk of forged and fraudulent wills, says a lawyer involved in the debate about its creation.

Trevor Todd, who runs staging-disinherited-staging.kinsta.cloud, said the situation is worrying given that in his 40-year practice he previously saw only one forged will — in the late-1970s. That case involved a nightclub doorman and his legal-secretary girlfriend taking advantage of the chronically drunk bar owner with a will that left everything to the bouncer. The club owner’s widow hired a handwriting expert and the case was settled out-of-court when the will was unveiled as a fake.

The old rules required that a will be in writing, signed by the testator and two witnesses, all in the presence of each other, and neither of whom nor their spouses could inherit as a beneficiary.
(The doorman used two bar flies as witnesses — the girlfriend having alerted him to the perils of signing the phoney document.)
Most forged-wills cases involve handwritten documents, known as holographs, putatively signed by the deceased with no witnesses.

Several decisions since the Wills, Estates and Succession Act (WESA) came into effect March 31, 2014, however, have allowed wills that previously would have been ruled invalid to be probated despite irregularities such as the lack of witnesses.

In one of the first post-WESA cases, (Re the Estate of Woolrich, V140043, unreported, Jan. 21, 2015), the B.C. Supreme Court found a suicide note to be a valid will.

In Re Smith Estate 2016 BCSC 350, the court granted probate to three clipped and stapled-together documents — two handwritten and the other an original funeral-arrangements brochure, all unsigned and unwitnessed.

In Re Yaremkewich Estate 2015 BCSC 1124, the witnesses signed a blank template that didn’t have attached the lists of bequests found with the will after death.

Also, they couldn’t recall if the deceased had signed the will template at the same time as they did. The judge still approved the will, including the lists of bequests. “To date the courts have not set any limit on what type of documentation is necessary to prove a will-maker’s true intentions with respect to his or her last will,” Todd said. “It is possible, for example, that an email message might be admitted to probate as a will. Such a thought immediately conjures up the prospect of an increase in faked wills.”

The previous legislation took a very strict approach to wills, Todd explained, so any deviation caused a will to be deemed wholly or partly invalid. For policy reasons, the government decided far greater court discretion was required to “cure” previously “defective” wills.

Passed in 2009, WESA included provisions that allowed probate as long as the intention of the testator was clear.

At the time, litigators including Todd, predicted more, not fewer lawsuits with the adoption of a significantly different conception of what could be considered a valid will.

With the public now increasingly preparing their own wills, Todd maintained, the self-help process has exacerbated the problem providing even greater opportunity for deathbed legerdemain.
“As the public increasingly prepare their own wills, all without the ‘screen’ of a lawyer testing for capacity and undue influence, it appears inevitable that there will be more forged or faked testamentary documents,” he said.

Combating a counterfeit will, he added, is difficult because bringing a charge of forgery is tantamount to alleging fraud, requires expensive handwriting experts and, if unproven, results in a heavy, special-costs award against the accuser. “Handwriting experts require 20 to 30 handwritten signatures of the deceased, preferably originals only, which they analyze through microscopes,” he said. “Their job is often complicated by the effect of tremors, arthritis or other related afflictions that a frail or elderly will-maker may have.”

And lawyer-prepared wills aren’t a palatable solution.

“There is a great price barrier as to what people will pay professionals to prepare wills, given the availability of will kits and such on the Internet,” Todd noted.

Gift to Witness to Will Cured By S 43 WESA

Gift to Witness to Will Cured By S 43 WESA

Bach Estate 2017 BCSC 548  cured a gift to witness to will to be valid   when prior to WESA  on March 31, 2014 it would  have been invalid.

One of the witnesses to the will was the husband of the deceased and a beneficiary under her will.

The Court followed the reasoning of previous decisions made under S 58 WESA to cure defective wills  and allowed extrinsic evidence to be introduced to show the true testamentary intention of the testator.

Validity

(2) A person may witness a will even though he or she may receive a gift under it, but the gift may be void under section 43 [gifts to witnesses].

(3) A will is not invalid only because a witness was, at the time the will was signed by the will-maker, or afterwards became, legally incapable of proving the will, unless the witness was not 19 years of age or older at the time the will was signed by the will-maker.

47      The document signed by Mr. Bach on September 9 meets the requirements of ss. 37(1) and 40 and is therefore a valid will under the WESA. This act revoked all prior wills created by Mr. Bach: s.55 WESA.

48      The difficulty arises from s. 43(1):

43(1)  WESA states:

Unless a court otherwise declares under subsection (4), a gift in a will is void if it is to

(a) a witness to the will-maker’s signature or to the spouse of that witness,

(b) a person signing the will by the will-maker’s direction, or the spouse of the person signing, or

(c) a person claiming under a person, other than the will-maker, referred to in paragraph (a) or (b).

49      One of the witnesses to this will was Mr. Thibodeau, the husband of the beneficiary under the will.

50      Prior to 2014, the law was clear: the court had no discretion to allow for such gifts: see Estate of Jason M. Bird, 2002 BCSC 1584. This rule operated as a safeguard against fraud and undue influence, however, the rigid application often defeat the genuine intention of the testator. Under the rule, the gift to Ms. Thibodeau would have failed.

51      However, on March 31, 2014, WESA came into force. Under this new legislation, gifts made in these circumstances are still presumptively void however, the court now has the discretion to declare them valid under s. 43(4):

(4) On application, the court may declare that a gift to a person referred to in subsection (1) is not void and is to take effect, if the court is satisfied that the will-maker intended to make the gift to the person even though the person or his or her spouse was a witness to the will.

52      I am not aware of any case in British Columbia in which this provision has been applied. I find however, that recent jurisprudence under s. 58 of the WESA (concerning court-ordered curing of formally deficient wills) that relates to testamentary intent instructive.

53      For example, in Yaremkewich Estate (Re), 2015 BCSC 1124, Watchuk J. considered s. 58 and the concept of testamentary intent. She stated:

[29] WESA, which came into effect on March 31, 2014, contains a new provision in s. 58 that even if a document fails to comply with the formalities of the statute, a court may nonetheless order that the document is fully effective as if it had complied with the statute.

The provision reads as follows:

Court order curing deficiencies

58(1) In this section, “record” includes data that

(a) is recorded or stored electronically,

(b) can be read by a person, and

(c) is capable of reproduction in a visible form.

(2) On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents

(a) the testamentary intentions of a deceased person,

(b) the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or

(c) the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.

(3) Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made

(a) as the will or part of the will of the deceased person,

(b) as a revocation, alteration or revival of a will of the deceased person, or

(c) as the testamentary intention of the deceased person.

(4) If an alteration to a will makes a word or provision illegible and the court is satisfied that the alteration was not made in accordance with this Act, the court may reinstate the original word or provision if there is evidence to establish what the original word or provision was.

[30] Accordingly, s. 58(3)(a) empowers the court to order that a document or other record is fully effective as the will of a deceased person if the court is satisfied that the document represents the testamentary intentions of that deceased person.

[Emphasis added.]

54      The same inquiry is relevant under s. 43(4). Watchuk J. continued:

Evidence

[31] As a preliminary matter, the statements that Ms. Yaremkewich made to the various affiants and the other evidence of her intention in the affidavits are admissible evidence in this case.

[32] The approach to evidence under Manitoba’s Wills Act, R.S.M. 1988, c. W-150 was summarized by Philp, J.A. in Langseth Estate v. Gardiner (1990), 75 D.L.R. (4th) 25 at 33 (Man. C.A.)

The general rule that extrinsic evidence is not admissible in construing a will (the function of a court of construction) does not apply to the probate court whose duty is to determine whether a document is a valid will. Extrinsic evidence is admissible on the question of testamentary intent, and the Court is not limited to the evidence that an inspection of the document provides.

Testamentary Intent

[33] The s. 58 curative provision was well summarized in Estate of Young, 2015 BCSC 182 [Young]. This provision is one of WESA‘s “most far-reaching remedial provisions”, and it represents a marked departure from the traditional, formalistic approach to the creation of wills (at para. 16). It confers the court with a broad discretion to treat a testamentary record as valid even if it does not comply with the formalities of the statute. However, this provision can only be used to cure errors concerning formalities, and cannot cure substantive errors such as testamentary incapacity or undue influence (at para. 17).

[34] To apply s. 58, the applicant must prove on the balance of probabilities that the record at issue is authentic and that it represents the testamentary intentions of the will-maker: Young at paras. 19, 36; and Bunn Estate (Re) (1992) 100 Sask. R. 231 at 237 (C.A.) [Bunn Estate]. This analysis asks whether the court is satisfied that the document records the will-maker’s deliberate or fixed and final expression of intention as to the disposal of her property upon death. This was summarized in Young as follows:

[34] As is apparent from the foregoing, a determination of whether to exercise the court’s curative power with respect to a non-compliant document is inevitably and intensely fact-sensitive. Two principal issues for consideration emerge from the post-1995 Manitoba authorities. The first in an obvious threshold issue: is the document authentic? The second, and core, issue is whether the non-compliant document represents the deceased’s testamentary intentions, as that concept was explained in George.

[35] In George the court confirmed that testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death. The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death. A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a will, by its nature, is revocable until the death of its maker. Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.

[Emphasis added.]

55      The question, then, is whether the gift expresses the testamentary intentions of Mr. Bach, despite the fact that the will was witnessed by the spouse of Sharon Thibodeau. Extrinsic evidence is admissible.

56      Here, there is the evidence from Ms. Veres: she deposed that when she visited Mr. Bach in August, 2014, he made no mention of intending to change his will. He was frustrated in his efforts to sell the house and said to her in this regard: “you would just have to deal with selling the house yourself”.

57      I note that if a person chooses to exclude a relative from her or his will, it is human not to mention it. The statement he apparently made, however, implies that he was not intending to change his will.

58      But the evidence to the contrary is overwhelming. First, Ms. Thibodeau deposed that on July 17, 2014 the deceased told her that he intended to change his will.

59      Her affidavit goes on:

  1. We were sitting in Terry’s house, and Terry started a conversation with me and said he was going to change his Will, and that he wanted to leave everything to me, including his house. He said that I had always been there for him, and I had been so good to him all his life. He said that he did not know what he would have done without me. Terry said, “why should Jamie have my house?”, and that he had worked hard for it.
  2. Terry stated that Jamie [Veres] has a farm and all that land, she doesn’t need it. He further stated that Jamie had always told him that she did not want the house.
  3. Terry told me he was going to call Jamie and let her let her know that he was going to change his Will. I have no knowledge as to whether Terry told Jamie that he intended to change his Will or not; I never questioned him about that at any time.

60      Furthermore, as outlined above, Mr. Bach advised his friend Wendy Boyes that he was leaving all of his estate to his sister Sharon. He told her that on August 9, 2014. On September 2, 2014 he told his sister, Diane Vanderburg, that he wished to leave all of his estate to Ms. Thibodeau.

61      Dr. Willms’ evidence in this regard is significant as well. She deposed that a document expressing Mr. Bach’s intention to leave his estate to his sister was signed. She said that it was read aloud to him and that he stated that he agreed with the contents of the document and that he understood that the document was intended to indicate his wishes for the estate.

62      Finally, there is the evidence of the last 24 hours of Mr. Bach’s life. The deceased had asked Ms. Thibodeau and her husband to take him to a notary for the purpose of making a new will and making other final arrangements. That included signing a power of attorney appointing Ms. Thibodeau as his attorney.

63      On all the evidence, I am satisfied that the document executed on September 9, 2014 amounts to a will and represents Mr. Bach’s testamentary intent. The gift is not void.

64      The application is therefore allowed.

Renewal of Wills Variation Claim Not Served In Time

Renewal of Wills Variation Claim Not Served In Time

Rodgers v Rodgers Estate 2017 BCSC 518 dealt with an application for a  renewal  court proceedings in a wills variation claim under S 61 WESA that states in 61 ( B) that the proceeding must be served on the executor of the will no later than 30 days after the expiry of the 180 days after the representation grant ( probate) has been issued.

The plaintiff also claimed other relief that was improperly pleaded and 30 days was granted to the plaintiff to bring on an application to amend the pleadings.

The Court in Rodgers stated with respect to the renewal of an action to effect service under s 61 WESA:

22      The court has no jurisdiction to hear the wills variation action if it is not commenced within 180 days from the date the representation grant is issued in British Columbia. The court does have discretion to grant leave to extend the time for service under s. 61(1)(b).

The deadline for service is no later than 30 days after the expiry of the 180 day period referred to in s. 61(1)(a).

23      Counsel for the executor equates the extension of the time for service of a wills variation notice of civil claim to an application for a renewal of a writ. This comparison makes logical sense to me given that, in both scenarios the notice of civil claim or writ expires if it is not served within the proscribed time period. 

24      When hearing an application for renewal of a writ the authorities rely on the test set out in Bearhead v. Moorhouse, (1977) 3 B.C.L.R. 81 (B.C.S.C.) aff’d (1978) 5 B.C.L.R. 380 (CA) (B.C.C.A.):

1. Was the application brought promptly?

2. Did the defendant have notice of the claim from sources other than the writ?

3. Has the defendant suffered prejudice?

4. Was the failure to serve the writ attributable to actions of the defendant? and

5. Was the plaintiff or solicitor at fault?

25      In Seeliger v. Eagle Ridge Hospital, 2007 BCCA 582, the British Columbia Court of Appeal said that it is inappropriate to have an in-depth review of the merits of the case on a renewal application but that the plaintiff is required to demonstrate that the pleadings disclose a cause of action.

If a defendant can make out a case that the action has no hope of success and is bound to fail, then the interest of justice support refusing application on those grounds.

The burden is on the defendant to prove that it is plain and obvious that the action has no merit and is bound to fail.

The Court granted an additional 30 days to serve the court process on the executor.

Anti-Ademption Under S 48 WESA

Anti-Ademption Under S 48 WESA

Forbes v Millard Estate 2017 BCSC 361 discusses and gives effect to S. 48 WESA , known as the anti-ademption provision, when property is disposed of by a nominee such as a power of attorney prior to death that under common law the bequest would have failed.

In McDougald Estate v. Gooderham (2005), 255 D.L.R. (4th) 435, 17 E.T.R. (3d) 36 (Ont. C.A.) [McDougald Estate], the Ontario Court of Appeal explained the concept of ademption: ” [1] Wills often contain bequests, which are directions that specific items of property are to be given to named recipients upon the testator’s death.  Sometimes the specified item cannot be found among the testator’s assets at the time of death.  This can happen because the item is lost, destroyed, sold or given away before the testator dies.  At common law, in such a situation, the bequest is held to have adeemed and the gift fails.  If there are proceeds from the disposition of the item of property, the proceeds fall into residue and are distributed accordingly.  The proceeds are not given to the named beneficiary.”

Section 48 WESA was enacted to deal with ademption and applies to a will, whenever it was executed, if the will maker dies on or after March 31, 2014 when WESA came into effect.

S. 48 WESA states:

48 (1) In this section, “proceeds” means the gross proceeds at the time of disposition, and includes

(a) non-monetary consideration, and

(b) in the case of a gift, the fair market value of the gift.

(2) If property that is the subject of a gift in a will is disposed of by a nominee, the beneficiary of the gift is entitled to receive from the will-maker’s estate an amount equivalent to the proceeds of the gift as if the will had contained a specific gift to the beneficiary of that amount.

(3) Subsection (2) does not apply if

(a) the disposition is made to carry out instructions given by the will-maker at a time when the will-maker was legally capable of giving instructions, or

(b) a contrary intention appears in the will.

THE FACTS:

The deceased executed a will in September 2000 where she left her daughter “any property which I may own and be using as a home at the date of my death”.
The deceased became mentally incompetent and five years later, her attorneys appointed under an enduring power of attorney sold her only property for $185,000″
The deceased died In February 2015.
Accordingly, the deceased did not own property at the time of her death, and that common-law such a bequest would have adeemed since it no longer existed.
The petitioner successfully argued that because the property was sold by a nominee, namely an attorney under a power of attorney, S 48 ( 2) of WESA applied and that her daughter  should accordingly  receive the sale proceeds of the property, just as if the will had contained a specific gift of the proceeds of the sale.
The court also relied on S.  186, of WESA stating that the transitional provisions of WESA contained in Section 4 applied to a will, whenever executed, if the will maker dies on or after the date of March 31, 2014 which was the case.
The court concluded that S 48 is not retrospective in its general nature and that it did not operate retrospectively in this particular case.
Moreover, even if section 48 is retrospective in nature it does not interfere with vested rights. There were no vested rights in this fact pattern because the respondent’s rights were only vested on the death of the deceased.
The deceased had expressed clear intentions in her will as to the reasons that she wished her daughter  to receive the bequest of the property, and it was only because she was incapable that the attorneys sold the property after she went into a rest home.
To fail to give effect to the anti-ademption provision in such circumstances would in the courts view inappropriately frustrate the deceased’s clear intentions.

Wills Variation: Disinherited Adult Children vs. Second Spouse

Wills Variation: Court Criteria Between Disinherited Adult Children and Second Spouses

R. (J.) v M. (JD) 2016 BCSC 2265 summarized the court criteria will consider when deciding the competing moral claim of a disinherited  adult independent child  and a second spouse who inherited  the entire estate.

The adult child had been disinherited and had been estranged from her deceased father due to the actions of the father throughout the plaintiff’s life, which included sexual and emotional abuse, as well as a lack of financial or emotional support in her formative years.
There was no explanation for the disinheritance of the adult child in the will or any memorandum to the will.
The second spouse of eight years marriage received assets worth $1 million outside of the will and a lifetime pension of $36,360 per year.
The second spouse was also the residual beneficiary of an estate worth $775,000.
The court varied the will to give the adult child, a bequest of $250,000.
The court set out the criteria to be considered when both considering the moral obligation owed to an adult child as well is the criteria to be considered when dealing with a second spouse.

THE  LAW

[82]         Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807, is the governing authority in British Columbia on the WVA. McLachlin J., as she then was, writing for the Court, articulated the relevant considerations and principles that animate the application of the WVA. The fundamental approach is anchored in her observation that “[t]he search is for contemporary justice”: Tataryn, at 815. The courts must read the WVA “in light of modern values and expectations” and “are not necessarily bound by the views and awards made in earlier times”: Tataryn, at 814-815.

[83]         The Court in Tataryn stated that the determination of whether a will makes adequate provision and, if not, what provision would be adequate, just and equitable, are “two sides of the same coin”: Tataryn, at 814.

[84]         The primary statutory objective of the WVA is the adequate, just, and equitable provision for a testator’s spouse and children. As identified in Tataryn, the other protected interest is testamentary autonomy. However, testamentary freedom must yield to the extent required to achieve adequate, just, and equitable provision for the applicant spouse and/or children. In that sense and to that degree only, testamentary autonomy will be curtailed by the application of the WVA: McBride v. Voth, 2010 BCSC 443 at para. 125. The Court of Appeal in Chan v. Lee (Estate), 2004 BCCA 644 at para. 43 affirmed that courts should not approach the WVA as a means “to right all the perceived wrongs of the past” or “to improve upon the degree of fairness of a will” if the testator has met his obligations under the WVA.

[85]         In addressing the adequacy of the testamentary provision, Madam Justice McLachlin clarified that the question of whether a testator has acted as a judicious parent or spouse is measured by an objective standard, assessed in light of current societal legal norms and moral norms. As outlined in Tataryn, legal norms are the obligations that the law would impose upon the testator during his or her life if the question of provision for a claimant’s spouse or child were to arise. A testator’s moral duties are grounded in “society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards”: Tataryn, at 820-821.

[86]         The concept of adequate provision is a flexible notion which turns on the particular circumstances of the case: Dunsdon v. Dunsdon, 2012 BCSC 1274, at para. 131. Tataryn expressly acknowledged that moral duties are more susceptible to being viewed differently by different people because there is no clear legal standard by which to judge such duties: Tataryn, at 822. However, the analysis in Tataryn underscores that the court must apply an approach that accords with a contemporary view of marital and parental obligations.

[87]         The Court in Tataryn recognized that the foregoing assessment necessarily involved the balancing of competing claims, and held that where the size of the estate permits, all moral and legal claims should be satisfied. Where prioritization is necessary, generally, claims that would have been recognized as legal obligations during a testator’s lifetime take precedence over moral claims. The court must also weigh the competing moral claims and assign each its priority according to their relative strength: Tataryn, at 823. The Court recognized that such an analysis would produce a range of options for the distribution of assets which might be considered appropriate in the circumstances. The court should only make an order to vary a will where the testator’s chosen distribution falls outside of this range.

[88]         The jurisprudence also establishes that in determining whether the will-maker has fulfilled his or her obligations, the court may consider gifts made outside the will. If a will-maker has made inter vivos gifts to individuals other than the claimant or has arranged his affairs to facilitate a passing of assets to such individuals outside the framework of the will, the moral duty to a claimant may be intensified: Wong v. Soo, 2015 BCSC 1741. Conversely and depending on the circumstances, a will-maker’s moral duty may be diminished or negated entirely where he or she has made gifts to a claimant either before death or in consequence of it: Dundson at para. 185; Doucette at para. 84.

[89]         The legislated scheme of intestate succession does not serve as a guidepost in determining whether adequate provision has been made under the WVA: Wilson at para. 379; Hall v. Korejwo, 2011 BCCA 355 at para. 46.

[90]         In reference to the moral claim of independent adult children, the Court in Tataryn observed that while they “may be more tenuous” than that of a spouse or dependent child, some provision for adult independent children should be made if the size of the estate permits and in the absence of circumstances that would negate the existence of such an obligation: Tataryn, at 822-823.

[91]         In Dunsdon Madam Justice Ballance conveniently summarized the considerations that inform the existence and strength of a testator’s moral duty to independent children:

[134]   

  • relationship between the testator and claimant, including abandonment, neglect and estrangement by one or the other;
  • size of the estate;
  • contributions by the claimant;
  • reasonably held expectations of the claimant;
  • standard of living of the testator and claimant;
  • gifts and benefits made by the testator outside the will;
  • testator’s reasons for disinheriting;
  • financial need and other personal circumstances, including disability, of the claimant;
  • misconduct or poor character of the claimant;
  • competing claimants and other beneficiaries:

(See Clucas v. Clucas Estate, [1999] B.C.J. No. 436; McBride v. McBride Estate, 2010 BCSC 443; Yee v. Yu, 2010 BCSC 1464; Wilson v. Lougheed, 2010 BCSC 1868)

[92]         In assessing the strength of the legal and moral obligations owed by a testator to a second spouse, the court will consider factors such as:

(a)            The length of the marriage;

(b)            When and how the testator’s assets were acquired;

(c)            The contribution of the second spouse;

(d)            How family assets would be divided under the applicable family legislation upon marriage breakdown;

(e)            Competing obligations with the children from the first marriage;

(f)              Financial circumstances of the spouse;

(g)            The size of the estate; and

(h)            The magnitude of assets passing to the spouse outside of the estate in consequence of other pre-death transactions undertaken by the testator.

[See Wong v. Soo, 2015 BCSC 1741 at paras. 73-82; Saugestad v. Saugestad, 2006 BCSC 1839, varied on different grounds 2008 BCCA 38; Mawdsley v. Meshen, 2010 BCSC 1099, affirmed 2012 BCCA 91; Ciarniello v. James 2016 BCSC 1699]

Gifts to Witnesses: S. 43 WESA

Gifts to Witnesses: S. 43 WESA

Witnesses of a will and declares that such gifts are void, unless the court is satisfied that the will maker intended to make the gift to the person even S. 43 of  WESA governs the issue of gifts to though the beneficiary or his or her spouse was a witness to the will.

43 (1) Unless a court otherwise declares under subsection (4), a gift in a will is void if it is to

(a) a witness to the will-maker’s signature or to the spouse of that witness,
(b) a person signing the will by the will-maker’s direction, or the spouse of the person signing, or
(c) a person claiming under a person, other than the will-maker, referred to in paragraph (a) or (b).
(2) For the purposes of subsection (1), the relevant time for determining whether one person is the spouse of another is the time when the will was made.
(3) If a gift is void under subsection (1), the remainder of the will is not affected.
(4) On application, the court may declare that a gift to a person referred to in subsection (1) is not void and is to take effect, if the court is satisfied that the will-maker intended to make the gift to the person even though the person or his or her spouse was a witness to the will.
(5) Extrinsic evidence is admissible for the purposes of establishing the will-maker’s intention under subsection (4).

An express gift to an adult child would not be invalidated if their parent is a witness. It is only a witness or spouse of a witness whose gift gets invalidated.

It is likely that a statement of such intention in the will itself would provide adequate evidence of that intention to satisfy a court to declare the gift valid.