WESA Probate Delivery Rules

WESA Probate Delivery Rules

Re Davies estate 2014 BCSC 1233 deals with the WESA probate rules relating to the 21 day notice and proof of delivery of that notice.

This blog will be of note to anyone applying for a grant of probate or administration as to the requirements to be met before a grant will issue.

[6]             Rule 25-2(1), (2) and (3) and Rule 25-4(2) of the Supreme Court Civil Rules provide as follows:

(1)        Subject to this rule, unless the court otherwise orders, a person intending to apply for an estate grant or for the resealing of a foreign grant in relation to the estate of a deceased must, at least 21 days before submitting for filing the materials required for that application under this Part, deliver the following to the persons referred to in subrule (2):

(a)        a notice that complies with subrule (3);

(b)        whichever of the following, if any, that applies to the intended application:

(i)         if the intended applicant intends to apply for a grant of probate or a grant of administration with will annexed, a copy of the will in relation to which the application is to be made;

(ii)        if the intended applicant intends to apply for the resealing of a foreign grant or for an ancillary grant of probate or an ancillary grant of administration with will annexed, a copy of the foreign grant and, if a copy of the will in relation to which the foreign grant was issued is not attached to the foreign grant, a copy of the will;

(iii)       if the intended applicant intends to apply for an ancillary grant of administration without will annexed, a copy of the foreign grant.

[en. B.C. Reg. 149/2013, s. 8; am. B.C. Reg. 44/2014, Sch. 1, s. 3 (a).]

(2)        The documents referred to in subrule (1) must be delivered to the following persons:

(a)        if the deceased left a will, each of the following who is not a person by whom or on whose behalf the documents referred to in subrule (1) are to be delivered (a person by whom or on whose behalf the documents referred to in subrule (1) are to be delivered is, in this subrule, called an “intended applicant”):

(i) each person

(A)       who is named in the will as executor or alternate executor,

(B)       whose right to make an application for an estate grant in relation to the deceased is prior to or equal to the intended applicant’s right to make that application, and

(C)       who is alive at the time of the deceased’s death;

(ii)        each beneficiary under the will who is not referred to in subparagraph (i) of this paragraph;

(iii)       each person who, under Division 1 of Part 3 of the Wills, Estates and Succession Act, would have been an intestate successor if the deceased did not leave a will and who is not referred to in subparagraph (i) or (ii) of this paragraph;

(b)        if the deceased did not leave a will,

(i)         each person who, under Division 1 of Part 3 of the Wills, Estates and Succession Act, is an intestate successor of the deceased, and

(ii)        each creditor of the deceased whose claim exceeds $10,000 and who is not referred to in subparagraph (i) of this paragraph;

(c)        if the deceased was a Nisga’a citizen, the Nisga’a Lisims government;

(d)        if the deceased was a member of a treaty first nation, the treaty first nation;

(e)        any other person who, by court order under subrule (14) (a), is to receive notice;

(f)         any person not referred to in paragraph (a), (b), (c), (d) or (e) of this subrule who has served a citation on the intended applicant in relation to the deceased.

[en. B.C. Reg. 149/2013, s. 8.]

(3)        A notice under subrule (1) must be in Form P1, must be signed by the intended applicant or the intended applicant’s lawyer and must contain the following:

(a)        the name, last residential address and date of death of the deceased;

(b)        subject to subrule (4), the name and mailing address of the intended applicant and an address for service for the intended applicant, which address for service must be an accessible address that complies with Rule 4-1 (1);

(c)        if the intended applicant is an individual, the city and country in which the intended applicant ordinarily lives;

(d)        the estate grant or resealing for which the intended applicant intends to apply;

(e)        the registry of the court where the submission for estate grant or submission for resealing will be filed;

(f)         the following statements in relation to each person to whom the notice is delivered:

(i)         that the person has a right to oppose,

(A)       in the case of a notice provided in relation to an application for an estate grant, the issuance to the intended applicant of either or both of an authorization to obtain estate information and an estate grant, or

(B)       in the case of a notice provided in relation to an application for a resealing of a foreign grant, either or both of the issuance of an authorization to obtain resealing information and the resealing of the foreign grant;

(ii)        that the person may or may not be entitled to claim against the estate for relief, including a claim under

(A)       the Family Law Act, or

(B)       Division 6 of Part 4 of the Wills, Estates and Succession Act;

(iii)       that, if the person chooses to take a step referred to in subparagraph (i) or (ii) of this paragraph, the person must do so within the time limited by any relevant rule of court or other enactment;

(iv)       that the person may consult with that person’s own lawyer concerning the person’s interest in, or rights against, the estate;

(v)        in the case of an application for a grant of administration, that the person may apply for an order requiring the intended applicant to provide security unless the intended applicant is the Public Guardian and Trustee;

(g)        the following statements:

(i)         that an estate grant may issue or a foreign grant may be resealed, as the case may be, without further notice, on any date that is at least 21 days after the date on which the notice is delivered, or on any earlier date ordered by the court;

(ii)        if an authorization to obtain estate information issues to the intended applicant, the intended applicant may apply for an estate grant without further notice, and if an authorization to obtain resealing information issues to the intended applicant, the intended applicant may apply for the resealing of the foreign grant without further notice;

(iii)       that if an estate grant issues to the intended applicant as a result of the application, the intended applicant must provide, if there is a will, to the beneficiaries or, if there is no will, to intestate successors of the deceased, an accounting as to how the estate was administered and how the estate assets were distributed, and

(iv)       that if a foreign grant is resealed as a result of the application, the intended applicant must provide, if there is a will, to the beneficiaries or, if there is no will, to intestate successors of the deceased, an accounting as to how the estate comprising the assets to which the resealed grant applies was administered and how those assets were distributed.

[en. B.C. Reg. 149/2013, s. 8; am. B.C. Reg. 44/2014, Sch. 1, s. 3 (b).]

25-4(2) The registrar must not issue an authorization to obtain estate information under subrule (1) (a) of this rule or an estate grant under subrule (1) (b) unless the registrar is satisfied that

(a)        notice of the application has been delivered in accordance with Rule 25-2,

(b)        the application materials comply with Rule 25-3,

(c)        without limiting paragraph (b), if the application is for a grant of probate or a grant of administration with will annexed and is supported by an affidavit in Form P3, it was appropriate for that form of affidavit to be filed in support of the application,

(d)        if the application is for an ancillary grant of probate or administration,

(i)         the information in the foreign grant respecting the name of the deceased and the other names by which the deceased was known exactly matches the information in the submission for estate grant respecting those names, and

(ii)        each of the persons to whom the foreign grant was issued is an applicant in the submission for estate grant, and the names of the applicants in the submission for estate grant exactly match the names of the persons to whom the foreign grant was issued,

(e)        if the document to be issued is an authorization to obtain estate information, the only document that remains to be filed is the affidavit of assets and liabilities for estate grant and the applicant requires the authorization to obtain estate information to facilitate the applicant’s ability to determine the assets in the estate and the liabilities applicable to them,

(f)         if the document to be issued is an estate grant, all fees payable in relation to the application, including all probate fees, have been paid,

(g)        there is no notice of dispute in effect in relation to the estate, and

(h)        there is no reason to require a hearing in relation to the application.

[en. B.C. Reg. 149/2013, s. 8.]

[7]             Rule 25-2(1) clearly provides that at least 21 days before submitting materials for filing, the applicant must deliver certain things to certain persons.

[8]             The first thing which must be delivered is a notice which complies with subrule (3). Reference to subrule (3) reveals that such notice must be in Form 1, must be signed by the intended applicant or his or her lawyer, and must contain all of the enumerated information referred to in subrule (3)(a)-(g) inclusive. Form 1 in its entirety is mandatory; the other material to be delivered varies with the type of application and is detailed in subrule (1)(b).

[9]             Rule 25-2(2) details who is to receive the notice detailed in subrule (1) in both will and non-will situations as well as situations in which the deceased was a Nisga’a citizen or a member of a treaty first nation or when a person has served a citation.

[10]         Rule 25-4(2), again in mandatory fashion, states that the registrar must not issue an authorization for information under Rule 25-4(1)(a) or an estate grant under Rule 25-4(1)(b) unless he or she is satisfied, among other things, that notice of the application has been delivered in accordance with Rule 25-2.

[11]         Form P9 is the form which provides the registrar with evidence as to who received notice of the application and of what that notice consisted. Nowhere in the standard Form P9 is there specific reference to when notice was delivered, however, that does not reduce the duty on the registrar to be satisfied that proper 21 day notice has been provided.

[12]         The absence of express evidence of the date of delivery is not fatal in itself. The Form P9 may well be silent in its body as to the date of delivery but may have been sworn 21 or more days before the application was submitted. In such case, as long as the list of enumerated persons correctly identifies the persons entitled to notice, the registrar may properly infer adequate notice and process the application for the estate grant. In situations where that Form P9 is sworn less than 21 days before the filing of the application the inference is not available and sufficient evidence as to the date of delivery must be provided in order that the registrar may be satisfied as to observance of and compliance with Rule 25-2. Where such evidence satisfies the registrar that proper 21 day notice was given before the application was filed, the matter may be processed based on the original application date; where the evidence fails to establish that 21 day notice was given before the application was filed the original application cannot be remediated and must be resubmitted following a proper 21 day notice period, established by proper evidence.

[13]         In this particular file, and as indicated at the outset of these reasons, the application was filed a mere four days after the swearing of the Form P9 and contained no evidence as to the date of delivery. In such circumstances additional evidence must be provided in order to establish the date of delivery and thus the provision of the required 21 day notice. Until such evidence is provided the application for probate cannot be considered further or processed.

S. 60 WESA (Wills Variation) Explained

S. 60 WESA (Wills Variation) Explained

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

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

 

THE   LAW:

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

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

Legal Framework

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

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

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

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

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

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

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

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

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

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

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

Legal Norms

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

Moral Norms

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

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

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

Balancing the Claims

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

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

1. Contribution and expectation

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

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

2. Misconduct/Poor character

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

3. Estrangement/Neglect

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

4. Gifts and benefits made by the testator during lifetime

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

5. Unequal treatment of children

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

6. Testator’s reasons for disinheritance/Subordinate benefit

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Children Defined Under S.60 WESA

Children Defined Under S.60 WESA

The decision of Sari v Sari 2015 BCSC 1865, while essentially an application for costs, reviews the law as to what the definition of a child or children is for the purposes of having the necessary standing to bring an action under S 60 WESA to vary the will of the deceased on the basis that it’s proposed distribution is unfair. Step children do not qualify- only natural or adopted children of the deceased do.

The case also discussed the rules relating to adoption and inheritances.

The definition of a child according to the law:

In the case of Hope v. The Raeder Estate (1994), 2 B.C.L.R. (3d) 58 (C.A.)., the BC Court of Appeal held that the word “children” in s. 2 of the WVA was restricted to natural or adopted children of the testator. The Hope case was followed in the Court of Appeal in Peri v. McCutcheon, 2011 BCCA 401, 22 B.C.L.R. (5th) 48, where the court held that the plaintiff was not a biological child nor adopted by the testator and had, therefore, no standing to pursue a claim under the WVA.

[23]         Ms. Peri was the biological child of the testator’s wife but was not the biological child of the testator. Ms. Peri was raised by a private foster family and she was told her own parents were unable to look after her. She left the first foster home at the age of 14 and attended another foster home or homes before residing at a private school in Washington State. The testator was the sole financial support for Ms. Peri as she matured.

[24]         Eventually Ms. Peri met the testator, who told her he was not her biological father but continued to provide financial support for her. At age 25 she signed a contract wherein in return for $25,000 she agreed not to make a claim against the estate of the testator or his wife and not to contact their family. When Ms. Peri brought a claim decades later, DNA established there was “zero” possibility she was the testator’s child. In the Peri reasons, the court discussed the earlier decision of the Supreme Court of Canada in Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807, as follows at para. 25:

In Hope, this Court distinguished Tataryn and, in so doing, referred to perceived difficulties in crafting a definition of “child” or “children” which would not create uncertainty. In the result, this Court concluded that the task of expanding the scope of who qualified as a child “was not open to us”.

[25]         The court found that changing the definition of child was a task for the legislature. In Peri it was argued that in immigration and birth registration filings, the testator had self-identified as the “father” of the then-infant Ms. Peri. Notwithstanding the testator’s presumptive status as Ms. Peri’s father, the DNA evidence ended any potential claim for paternity. Ms. Peri’s appeal was dismissed. The Peri decision was recently followed in this court in Griese v. Syvret, 2013 BCSC 1601, [2013] B.C.J. No. 1929, where at para. 69 the court stated:

69 I also note that had the deceased not made the defendant a beneficiary of her estate, he would not be entitled to bring a claim pursuant to the WVA to challenge the Will. This is because the defendant is neither a natural nor an adopted child. An expanded definition of child is not permitted, for example to include foster children: Peri v. McCutcheon, 2011 BCCA 401.

[26]         In the Peri decision the definition of adopted child is also set out at para. 22 as follows:

[22] An adopted child is entitled to claim under the Act because, under s. 37 of the Adoption Act, R.S.B.C. 1996, c. 5, when an adoption order is made:

(a)  the child becomes the child of the adoptive parent,

(b)  the adoptive parent becomes the parent of the child, and

(c)  the birth parents cease to have any parental rights or obligations with respect to the child …

S. 132 WESA: Special Administrator

S. 132 WESA - Special Administrator
S. 132 WESA (Wills, Estates, Succession Act) allows the Court to 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. The appointment can be conditional or unconditional and made for general, special or limited purposes.
This is of potential great use to the many fractured families embroiled in estate litigation where there are accusations that the executor is being unfair and the estate is dragging on due to infighting.
In Re Godby Estate 2015 BCSC 1809 the court considered appointing  an experienced estate lawyer in the place of a trust company but chose the trust company largely as the majority of the beneficiaries wanted the trust company who had already started work on the administration and had a contract for the sale of the major asset.
The trust company was appointed special administrator pursuant to S 132 WESA unconditionally and generally.

The Law:

45      By their opposing applications, the parties effectively seek the same result: appointment of a special administrator under s. 132 of WESA. As noted earlier in these reasons, the initial grant of administration to Solus is or may be flawed in that Barbara’s and Brenda’s opposition to Solus was not or may not have been considered. Simply setting aside the ex parte order of Harris J. and reinstating the order appointing Solus does not take this apparent oversight into account.
46      The appointment sought is within the discretion of the court. The discretion must be exercised with a view to placing the administration of the estate in the hands of the entity that is likely best to convert it to the advantage of those with claims to the estate, per Earl of Warwick v. Greville (1809), 1 Phill. Ecc. 132, 161 E.R. 934 (Eng. P.D.A.).
47      The fact that the majority of the beneficiaries in this case support the appointment of Solus is a significant factor for me to consider, per Williams v. Wilkins (1812), 2 Phill. Ecc. 100, 161 E.R. 1090 (Eng. K.B.). The majority beneficiaries are entitled to about 80% of the estate and have a significant interest in its administration.
48      Friction between a beneficiary and a trustee, in the absence of misconduct or breach of trust on the part of the trustee, is not sufficient to merit the removal of a trustee: Conroy v. Stokes, [1952] 4 D.L.R. 124 (B.C. C.A.).

Defective Will “Cured” S. 58 WESA

Defective Will "Cured" S. 58 WESA

S. 58 of WESA (Wills, Succession and Estates act) once again came to play to cure an otherwise  defective will in Re Smith Estate 2016 BCSC 350.

Once again the leading case in BC to date of re Young estate 2015 BCSC 182 was followed.

The facts:

The deceased and her husband lived together in a common law relationship for about 35 years until they married in 2012 .

The  applicant was the deceased’s granddaughter who as a child was very close to the deceased and lived with her for period of time.

The applicant remained very involved with the deceased as an adult.

The deceased advised that she had  drafted three documents and signed them having  asked the applicant if she would be the executor of her will and she agreed.

After the death of the deceased, the applicant searched for any testamentary documents in all places she thought they might reasonably be found including  funeral box .

The applicant found a clipped and stapled together copy of a 2008 document, an original 2011 document, and an original “funeral arrangements” document. ( three in total)

The  applicant brought applications for determinations that two handwritten records represented the  testamentary intentions of deceased, and were fully effective as though they had been made as or part of her will; and for orders and declarations setting out results of these determinations as well as orders dispensing with service of notice of application on particular beneficiaries, and her special costs .

The Court granted the orders.

The law:

17      Turning to the applicable law, WESA came into force on March 31, 2014. Among other things, section 58 permits the court to allow a document to be fully effective as though it had been made as a will, where the court determines the document represents a deceased’s testamentary intentions. Before WESA, documents that failed to strictly comply with the formal requirements of the Wills Act, R.S.B.C. 1996, c. 489 regarding the making, signing, and witnessing of a will were invalid.

18      Section 58 was first considered in Young Estate, Re, 2015 BCSC 182 (B.C. S.C.). Madam Justice Dickson observed the provision is curative, providing the court with a discretion in prescribed circumstances to relieve against the consequences of non-compliance with testamentary formalities. It cannot however be used to uphold a will that is invalid for substantial reasons such as testamentary incapacity or undue influence. Her decision relied upon the principles set out in George v. Daily (1997), 143 D.L.R. (4th) 273 (Man. C.A.) which dealt with similar provisions in the Manitoba Wills Act.

19      At paragraph 35, Dickson J. described the approach to an application under s. 58 of WESA as follows:

… (t) he 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.

20      She concluded the factors relevant to determining whether a document embodies the deceased’s testamentary intention are context-specific and 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.

Discussion and analysis:

21      During the hearing the applicant quite properly raised an issue about the validity of the gift to her set out in the 2011 document suggesting it may be construed as creating an unenforceable gift-over. I agree entirely with her further submission, however, that it is not the role of the court on an application pursuant to s. 58 to determine the validity of the instrument per se including the validity of the gifts it sets out. To the extent this approach may have been taken in Beck Estate, Re, 2015 BCSC 676 (B.C. S.C.), I decline, respectfully, to follow that decision.

22      Turning to the application of s. 58 to the facts of this case, the applicant recognizes the handwriting in the documents as that of the deceased. In any event, it is clear to me the handwriting matches known samples of her handwriting. Accordingly, I find the documents are authentic.

23      In this case, the factors relevant to determining whether each of the documents records a deliberate or fixed and final expression of the deceased’s intention regarding disposal of her property on death include:

  • The presence of her signature indicating her approval of the content of each document.
  • The titles she gave to each of the documents.
  • The content of the documents:

The first sets out and distributes a long list of clearly identified personal items to many specific beneficiaries on the event of her death and,

The second, includes a specific distribution of her real property, again, on the event of her death.

  • Both documents are expressed in language that conveys an air of finality.
  • The deceased met with Mr. Smith to discuss her will and presented him with both of these documents along with a third regarding funeral arrangements. She advised him she had drafted them herself and signed the first two. Her husband was also present for that meeting.
  • She subsequently met with the applicant and expressly asked her if she would agree to be her executor which she did. She advised the applicant that all of the necessary documents would be found in a funeral box she had prepared.
  • After the death of the deceased, the applicant then found a copy of the 2008 document, the original 2011 document and the funeral arrangements document in that funeral box. No other documents setting out a testamentary intention were ever located despite a diligent search.

24      After weighing all of these factors, I find on the balance of probabilities that the 2008 and 2011 documents represent the deliberate and final expressions of the deceased’s testamentary intentions. I therefore grant the orders sought by the applicant.

25      Pursuant to Rule 25-14(8)(i), I grant a further order dispensing with the requirement to serve the beneficiaries of the gifts set out in the 2008 document with notice of the application. I am satisfied that most of these gifts have already been distributed. As described in the document, they appear to involve personal items with little monetary value, and the beneficiaries would not have an entitlement upon an intestacy.

26      The applicant shall have special costs.

WESA Will Framework

WESA Will Framework

The statutory framework of WESA (Estates, Succession and Wills act) was set out in British Columbia v Sheaffer 2015 BCSC 1306 where the court held that an improperly executed will  prior to the enactment of WESA on March 31, 2014 could not be rectified by the “curative” provisions of S 58 WESA, and that only wills done after that date may qualify.

See previous blogs  for more information on the curative provisions of S 58 WESA where for example an unwitnessed  suicide note and  a collection of unwitnessed but signed letters in an envelope were found to be valid wills under s 58 WESA.

Facts:

The deceased died leaving no surviving spouse or children and in his last will signed in 1974  he bequeathed the residue of his estate to his spouse (who predeceased him in 1993), with gift over to her son ( the beneficiary).

The  Public Guardian and Trustee (PGT) asserted the 1974 will was the last subsisting last will and testament of deceased .

The Defendants, who were friends of deceased, asserted an unsigned document dated September 2011 should stand as deceased’s last will and testament.

The PGT brought application for an order to cancel all caveats filed by defendant in connection with deceased’s estate and that she be granted letters of administration with 1974 will annexed .

Decision:

The Court held  the PGT could apply for letters of administration with 1974 will annexed as the unsigned will was not a valid testamentary disposition.

The unsigned will did not comply with formal execution requirements of Wills Act in force at material time prior to WESA’s introduction on March 31,2014.

Since the  Wills, Estates and Succession Act (“WESA“) was not applicable, the court had no discretion to overlook failure to strictly comply with statutorily prescribed execution requirements .

Deceased died prior to statutorily-prescribed qualifying date imposed by s. 186 of WESA and accordingly the  1974 will constituted the subsisting last will and testament of deceased and the defendant was not a beneficiary of deceased’s estate.

Law:

Statutory Framework

22. On March 31, 2014, the WESA came into force in British Columbia. Its enactment heralded significant changes in the law with respect to of wills and estate administration in this province.

23. For the most part, the WESA applies to the estates of persons who have died on or after March 31, 2014, and to the wills of such persons, even though their wills may have been made prior to March 31, 2014. The effect of the transitional provisions is that s. 58 of the WESA is only engaged if the date of death of the will-maker is after March 31, 2014. While there are narrow exceptions to the date of the will-maker’s death as being the qualifying event for the application of the WESA, they do not apply to the case at hand.

24. Prior to the enactment of the WESA, long-standing principles of formalism governed the creation, alteration, and revocation of wills in British Columbia. These principles were codified in the Wills Act. The pertinent legislative provisions prescribing the requisite statutory formalities for due execution, are set out in s. 4 of the former Wills Act:

4 Subject to section 5, a will is not valid unless:

(a) at its end it is signed by the testator or signed in the testator’s name by some other person in the testator’s presence and by the testator’s direction,

(b) the testator makes or acknowledges the signature in the presence of 2 or more attesting witnesses present at the same time, and

(c) 2 or more of the attesting witnesses subscribe the will in the presence of the testator.

25. It was well-settled in British Columbia, prior to the enactment of the WESA, that it was necessary to strictly comply with the statutorily prescribed formalities for creating a will. The courts have no discretion in waiving those requirements. In Ellis v. Turner (1997), 43 B.C.L.R. (3d) 283 (B.C. C.A.), the Court of Appeal commented on these strict compliance provisions, at 285:

The Wills Act creates a scheme designed to insure that a document purporting to be a testamentary disposition is in fact the will of the testator. A strong indicia of authenticity is proof that the will was signed at its end in the presence of witnesses. This Court must interpret, apply and respect the law as passed by the legislature. To declare the will in this case to be valid would be to by-pass the clear provisions of the Wills Act and to create a discretion in this Court which is not found in the Act. This is something which we cannot do.

26. The formalities for execution have been incorporated into s. 37 of the WESA. However, the WESA has introduced a remedial provision in s. 58 that gives the court a broad authority to “cure” a purported will, an alteration to a will, or the revocation of a will that does not satisfy the signing and witnessing requirements prescribed by s. 37. Section 58 constitutes a key component of the modernization of the law of wills and succession in British Columbia because it empowers the court to uphold the will-maker’s true intentions even where the will, a gift under the will, or a purported alteration or revocation of the will is invalid pursuant to other provisions of the WESA.

27. The application of s. 58 extends to “a record, document or writing or marking on a will or document”. The pertinent provisions of the WESA provide 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.

186 (1) Subject to subsections (2) and (3) of this section and section 189, Part 4 [Wills] applies to a will, whenever executed, if the will-maker dies on or after the date on which Part 4 comes into force.

(2) Subsection (1) does not invalidate a will validly made before the date on which Part 4 comes into force.

(3) Subsection (1) does not revive a will validly revoked before the date on which Part 4 comes into force.

S. 151 WESA: Beneficiary Can Sue on Behalf of Estate

S. 151 WESA: Beneficiary Can Sue on Behalf of Estate

Werner v McLean Estate is one of the first decisions under WESA to allow an intestate successor beneficiary to commence a court action in the name and on behalf of the personal representative of the estate if certain preconditions (i.e., reasonable efforts, notice, and good faith) are met. This is a new provision to WESA.

The Court utilzed S. 151 to allow the intestate successor to commence action when the acrimony was such between the parties that it met the criteria to allow the court to conclude that it was necessary or expedient for the protection of the estate or the interests of a beneficiary or an intestate successor for the proceedings to be brought or defended.

This section as a practical matter will likely be used when a personal representative refuses to carry out his or her duty to as viewed by the beneficiaries or intestate successors.

The application alternatively sought to remove and replace the trustee.

The court in addition to granting the relief un S. 151 WESA also ordered that the estate assets not be disposed or  transferred pending resolution of the case.

The Law

[13] Section 151 of the Wills, Estates and Succession Act provides, in relevant part, as follows:

(1) Despite section 136 [effect of representation grant], a beneficiary or an intestate successor may, with leave of the court, commence proceedings in the name and on behalf of the personal representative of the deceased person

(a) to recover property or to enforce a right, duty or obligation owed to the deceased person that could be recovered or enforced by the personal representative, or

(b) to obtain damages for breach of a right, duty or obligation owed to the deceased person.

(3) The court may grant leave under this section if

(a) the court determines the beneficiary or intestate successor seeking leave

(i) representative to commence or defend the proceeding, has made reasonable efforts to cause the personal

(ii) has given notice of the application for leave to

(A) the personal representative,

(B) any other beneficiaries or intestate successors, and

(C) any additional person the court directs that notice is to be given, and

(iii) is acting in good faith, and

(a) it appears to the court that it is necessary or expedient for the protection of the estate or the interests of a beneficiary or an intestate successor for the proceeding to be brought or defended.

(3) On application by a beneficiary, an intestate successor or a personal representative, the court may authorize a person to control the conduct of a proceeding under this section or may give other directions for the conduct of the proceeding.

Accordingly, the court is empowered to grant leave to  an intestate successor to commence proceedings in the name and on behalf of the personal representative if certain preconditions (i.e., reasonable efforts, notice, and good faith) are met.

Will Witnesses No Longer Required

Will Witness No Longer Required

For my first 40 years of practice, and for time immemorial before , there were strict requirements for the execution of a will – a failure thereof could result in an invalid or partially invalid will.

That all changed under sections 58 and 59 of WESA, known as the “curative provisions” or the “ dispensation powers”.

Many recent decisions have allowed what would have been previously invalid wills to be admitted into probate as valid , despite the lack of any witnesses to the will, provided the court is satisfied it is the will makers signature and firm intention as to the disposal of his/her property after death. ( This is to be distinguished from other Province’s holographic wills which must be “ wholly written and signed by the will maker so typed and drug stores do not apply there but do in BC under WESA).

One of the interesting by products of the liberalization of the requirements for will execution is that many more people will do their own wills to save money and this will result in more estate litigation for various later discussed reasons.

The Law

The BC Courts have followed the reasoning of a Manitoba Court of Appeal case George v. Daily (1997) 143 DLR (4th) 273 which discussed at length the limits placed on a courts “curative powers” and held there must be a deliberate or fixed and final expression of intention as to the disposal of his/her property on death.

The chambers judge who had held that a letter written by the deceased’s accountant to the deceased’s solicitor containing proposed revisions to the deceased’s will should be admitted to probate was reversed. The accountant had prepared the letter after receiving instructions from the deceased to change his will to leave most of his estate to various charities rather than to his children. When the deceased later met with his solicitor and confirmed the alterations to the will contained in his accountant’s letter, the solicitor requested the deceased obtain a certificate from his doctor confirming that he had the capacity to execute the will. The deceased died two months later without having obtained the medical certificate. The solicitor had not spoken with the deceased in the interim, nor had he prepared a new will.

In George, the Court stated the following principles:

It is well established that imperfect compliance, even non-compliance, with the formal requirements of The Wills Act may be excused. However, it must be established that the document being propounded was intended by the deceased to have testamentary effect. The court must therefore be satisfied on a balance of probabilities that the writing embodies the testamentary intent of the testator or testatrix

(a) The standard of proof on an application under the curative provision is proof on a balance of probabilities (para. 20).

(b) The greater the departure from the requirements of formal validity, the harder it may be for the court to be satisfied that the document represents the deceased’s testamentary intention (para. 19).

(c) The requirements for formal validity of a will serve several purposes or functions, including:

  1. an evidentiary function by providing the court with reliable and permanent evidence of testamentary intention and the terms of the will; and
  2. a cautionary function by impressing upon the testator the solemnity, finality, and importance of his actions in making his “last will and testament” (at paras. 21-26).

(d) The evidentiary and cautionary functions are particularly relevant to the determination of whether or not a writing or document embodies the testamentary intentions of a deceased (para. 22).

(e) Not every expression made by a person, whether orally in writing, concerning the disposition of his or her property on death embodies his or her testamentary intentions (para. 62).

(f) The court held at para. 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.

The leading case on the curative powers of section 58 and 59 WESA in B.C. are those of Madam Justice Dickson ( since elevated to the Appeal Court) in Re Young Estate 2015 BCSC 182 which largely follows George v. Daily:

… 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.

Other Cases

In Beck Estate (Re), 2015 BCSC 676, Master Young (as she then was) considered a handwritten document in letter form, which the deceased dated and signed. The court found that the words “Codicil to my Last Will” and instructions that the document was to be read out by her lawyer suggested a deliberate or fixed and final expression of intention regarding the disposal of the deceased’s property upon her death. The deceased had also given the document to her executor for safekeeping one week before her death, and had told him that she thought the unwitnessed Codicil was valid.

Re Lane 2015 BCSC 2162 held that none of  seven handwritten notes made between April 14, 2012 and January 9, 2015 represented the intention of the deceased to alter her Last Will and Testament dated July 12, 1994 and could not be cured under s 58 of WESA, the “curative provisions”.

The case is helpful in determining the boundaries of the curative provision of s 568 in that the judge sets out the various reasons why the scrap notes could e testamentary and then the reason why they may not be testamentary, and concludes the latter.

In an uncontested application Re the Estate of David Woolrich, deceased Vancouver Registry V140043 ( unreported dated January 21,2015, ), a short 4 page hand printed suicide note of the deceased was approved as his last will and testament under the curative powers of S 58 WESA and George v. Daily was followed.

Affidavit materials filed made it clear that it was the deceased who wrote the note and that it was his final testamentary intention.

Homemade wills lead to litigation

The public is reluctant to pay a lawyer’s hourly rate to prepare what they invariably regard is a “simple” will. (Every lawyer  should know there is no such thing as a simple will)

Many lawyers have historically been prepared to prepare wills as a loss leader , but with increased overheads and consumer  sensitivity to price,  there is friction in the area of preparation of wills, powers of attorney, representation agreements and other estate planning documents  that, when combined with the information available on the Internet , will cause many in the public to cost  save by preparing their own wills and other estate documents .

As the public becomes more aware of the curative provisions of WESA, they will become increasingly encouraged  to prepare their own wills.

Most law firms that are economically viable in wills and estates now charge their hourly rate which  is often much higher than the client is prepared to pay.

The Curative provisions  of WESA were well-intentioned and generally are reasonable once the court is satisfied that the documents reflect the intentions of the deceased .

The problem essentially is that the legal test for mental capacity is a legal test, not medical, and the removal of the  lawyer  from the preparation of the will process  is simply an unintended  consequence  that will ultimately lead to more contested “homemade” wills  litigation, particularly in issues related to mental capacity, undue influence and wills interpretation .

Percentage Awards In Wills Variation Claims Favoured

Percentage Awards In Wills Variation Claims Favoured

The Courts prefer to use percentage awards in wills variation claims rather than specific sums. One of the major reason is the fluctuation in value of  some assets over time.

The recent dramatic rise in lower mainland property values has presented a mild dilemma to practitioners and courts in dealing with the valuation date of an asset for wills variation purposes.

Suffice to say, there is currently a conflict in the decisions of the court, whereby some courts have valued the asset as of the date of death for trial purposes, while other courts have valued the asset as of the date of trial in making awards under the wills variation act, now included in WESA.

Many times the court simply “side-steps” the issue by making an award on a  percentage basis, which has the effect in most instances of requiring the property be sold, and divided on the basis of the percentages awarded to each claimant/ beneficiary.

In many instances, the major asset of an estate is a former principal residence and if the property is to be sold so that the various claimants/beneficiaries can be satisfied, then it makes sense that the property is sold at fair market value, which has the effect of determining the value of the asset as of the date of trial. The BC Court of Appeal also agreed that percentages are the best way to express a wills variation award:

The BC Court of Appeal in Graham v. Chalmers, 2010 BCCA 13 dealt with the issue of valuation of the estate at the time of trial, and offered some commentary as to the difficulty of making variation orders in the face of potentially fluctuating estate values.  The court concluded that the best approach would be to express variation orders in terms of percentages of the estate.  Its relevant comments were as follows:

42 ​The trial judge varied the Will by providing a lump sum of $100,000 to each of the grandchildren and directing that the remainder of the estate of approximately $800,000 be divided equally between Janet Graham and Sandi Chalmers. The order was obviously premised on the increase in value of the estate between the date of Mrs. Graham’s death to the trial date. The variation of $100,000 to each of the grandchildren would otherwise not be logical in the context of the value of the estate at the testatrix’s death and the court’s finding that adequate provision had not been made for Janet Graham. Although there are practical reasons for expressing the division in this manner in this case (where the estate has been liquidated and is held in trust), there are pitfalls in doing so. There may be cases in which the estate is made up of unliquid assets the value of which may fluctuate between the date of death, the trial date, and distribution of the estate. In those cases, it is preferable to express the order in terms of percentages, except of course, in respect of specific bequests that are not disturbed by the variation. The potential difficulty that might arise is that the specific bequest directed by the variation order could, in extreme circumstances of a precipitous decline in the value of the residue, eliminate the intended gift to residual beneficiaries.

43     I therefore consider that the preferable expression of the variation in this case should be in percentages of the residue, which also accords with Mrs. Graham’s testamentary wishes.  [Emphasis added.]

I note that the Court of Appeal did not hold that it was an error by the trial judge to consider the value of the estate at the time of trial.  In any event, however, the higher court preferred to resolve the question of changed value by expressing its variation of the will in terms of percentages rather than fixed numbers.  

Tippett v. Tippett Estate, 2015 BCSC 291. is another recent example of a trial decision that allows a wills variation claims in the form of an order expressed in percentages ( see my blog on Tippett dated September 2,2015 entitled ” Spousal Wills Variation Claims”.

See also McBride v Voth 2010 BCSC 443 one of the leading cases in wills variation where Trevor Todd won the case and the only asset, the home, was ordered sold, the life interest to one child cancelled,  and the sale proceeds divided on a percentage basis amongst three siblings.

Wills Variation:Infants Win Entire Estate

Infants Win Entire EstateHeatherfield (Litigation Guardian) v Heatherfield 2015 BCSC 505 varies a will from his ex spouse to  entirely in favour of infant children under the Wills Variation act which is now incorporated into the provisions of WESA ( Wills Estate and Succession act).

 

Heatherfield is the clearest and strongest case yet setting out the legal obligations a parent owes to provide for his or her infant children. Prior decision were often far too low in my opinion given that the deceased owes a legal obligation to provide for the upbringing of his or her children. Heatherfield corrects the previous law by awarding the entire estate to the two children of the deceased instead of his previous spouse after he failed to changed his will and then died. A prior decision of Cameron Estate (1991) 41 ETR 30 was distinguished and not followed by Justice Ballance.

The estate was about $1.2 million. The two minors had trust funds of about $150,000.

The Public Guardian on behalf of the children as their litigation guardian sued the ex wife saying she should not inherit and instead the two children should receive the entire estate and the court agreed.

 

Legal Analysis

48      The essence of the WVA is embodied in s. 2. It provides that if, in the Court’s opinion, a will fails to make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court is empowered, in its discretion, to vary the will to make the provision it considers adequate, just and equitable in the circumstances.

49      Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807 (S.C.C.) [Tataryn], is the leading authority in British Columbia on wills variation. In Tataryn, the Supreme Court of Canada identified the two fundamental interests protected by the WVA. The main statutory objective is the adequate, just and equitable provision for a will-maker’s spouse and children; the other is the will-maker’s testamentary autonomy. The conceptual essence of the statute is to permit judicial interference with testamentary freedom where adequate provision has not been made in respect of a narrow protected class. Testamentary freedom is, therefore, subordinate to the main objective of the WVA and must yield, to the extent required, to achieve adequate, just and equitable provision for the applicant spouse and/or children. That said, the judicial approach is not to start with a “blank slate and write a will designed to right all the perceived wrongs of the past, nor interfere only to improve upon the degree of fairness of a will if the testator has met his obligations under the [WVA]”: Chan v. Lee, 2004 BCCA 644 (B.C. C.A.) at para. 43.

50      The concept of adequate provision is a flexible notion and is highly dependent upon the individual circumstances of the case. Whether adequate provision has been achieved is determined by evaluating whether a will-maker has acted as a judicious parent or spouse, as measured by an objective standard informed by current societal legal norms and moral norms. The considerations to be weighed in assessing whether a will-maker has made adequate provision are likewise relevant to the determination of what would constitute adequate, just and equitable provision in the particular circumstances. They are “two sides of the same coin”: Tataryn at 814.

51      Legal norms are said to be the obligations that would be imposed upon the will-maker during his or her life if the question of provision for the claimant spouse or child were to arise. Accordingly, a will-maker’s legal obligations that could have arisen in relation to support, division of matrimonial property and the law of constructive trust/unjust enrichment are relevant to the assessment. Tataryn left open the prospect that an independent adult child might have a legal claim against a parent based on unjust enrichment: Tataryn, at 822. In terms of the guidelines for societal moral norms, Tataryn proposed that they are “found in society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards”: at 821.

52      Tataryn held that all legal and moral claims should be satisfied where the magnitude of the estate permits. In cases where complete satisfaction of all claims is not possible, the competing claims are to be prioritized. Claims that would have been recognized as legal obligations during a will-maker’s lifetime should generally take precedence over moral claims: Tataryn, at 823. The court must also weigh the competing moral claims and rank them according to their strength. While claims of independent adult children may be more tenuous than those of a spouse or dependent child, where the size of the estate permits, some provision should be made for them unless the circumstances negate such an obligation: Tataryn, at 822-823.

53      The Court in Tataryn recognized that there is no single way for will-makers to divide their estates in order to discharge their legal and/or moral duties. It emphasized that it is only where a will-maker has chosen an option that falls below his or her obligation as defined by reference to the contemporary notion of legal and moral norms that a court will vary a will so as to achieve “the justice the testator failed to achieve”: at 823-824.