Many will makers write proposed changes on their will after its execution in the mistaken belief that these interlineations are legally binding, but they are not.
( The Wills Variation act is now contained within WESA, the Wills Estates and Succession act)
Heatherfeld v Heatherfield 2015 BCSC 505 follows Hancock v Hancock 2014 BCSC 2398 at para 07 and holds that interlinear nations are capable of being interpreted as indications of changes that the deceased recognized with respect to legal and moral obligations that were recognized since the execution of the will.
Both these cases hold that while interlineations are by no means determinative, they are relevant considerations of the overall analysis of the wills variation claim now made under the provisions of WESA.
As such interlineations get added to a list of the various criteria examined by the court in assessing the merits of a wills variation claim ( see McBride v Voth on this blog site for more details of the criteria)
Re Godby Estate 2015 BCSC 1809 Involves the court appointment of an estate administrator pursuant to s 132 WESA.
Estate property was under foreclosure and the majority of beneficiaries wanted Solus Trust to be appointed as court administrator of the estate.
132 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [WESA], which states:
Despite sections 130 and 131, the court may appoint as administrator of an estate any person the court considers appropriate if, because of special circumstances, the court considers it appropriate to do so
The appointment of an administrator under subsection (1) may be
(a) conditional or unconditional, and
(b) made for general, special or limited purposes.
45 By their opposing applications, the parties effectively seek the same result: appointment of a special administrator under s. 132 of WESA.
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.).
The Court appointed the special administrator for the following reasons:
“In light of the fact that the majority of the beneficiaries entitled to the vast majority of the estate continue to support Solus as administrator, and that Solus has an outstanding contract of purchase and sale on the deceased’s home at a price exceeding its appraised value and has commenced” other work to administer the estate, it is in the best interests of the beneficiaries that Solus be appointed the administrator of deceased’s estate. I make that order under s. 132 of WESA in the same form as previously granted. I also order that Barbara’s notice of dispute filed July 24, 2015 be removed.
Estate property was under foreclosure and the majority of beneficiaries wanted Solus Trust to be appointed as court administrator of the estate.
132 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [WESA], which states:
Despite sections 130 and 131, the court may appoint as administrator of an estate any person the court considers appropriate if, because of special circumstances, the court considers it appropriate to do so.
The appointment of an administrator under subsection (1) may be
(a) conditional or unconditional, and
(b) made for general, special or limited purposes.
45 By their opposing applications, the parties effectively seek the same result: appointment of a special administrator under s. 132 of WESA.
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.).
The Court appointed the special administrator for the following reasons:
“In light of the fact that the majority of the beneficiaries entitled to the vast majority of the estate continue to support Solus as administrator, and that Solus has an outstanding contract of purchase and sale on the deceased’s home at a price exceeding its appraised value and has commenced” other work to administer the estate, it is in the best interests of the beneficiaries that Solus be appointed the administrator of deceased’s estate. I make that order under s. 132 of WESA in the same form as previously granted. I also order that Barbara’s notice of dispute filed July 24, 2015 be removed.
In re Beck Estate 2015 BCSC 676 an unwitnessed codicil was found to be a valid will under the curative provisions of s 58 of WESA ( Wills, Estates and Succession act)
A week prior to the testator’s death she gave the executor his will and a signed but unwitnessed document entitled “codicil to my last will” (codicil) for safe keeping, telling executor she thought codicil was valid.
The Executor recognized her handwriting including signatures to be the testator’s handwriting.
The Executor brought an application for determination of whether handwritten alterations to the will and codicil represented the testator’s testamentary intentions and the application was granted.
The court held that the codicil represented the testator’s testamentary intentions .
The recognition by the executor of her handwriting and signatures as the testator’s, the fact that testator gave document to executor week before her death, use of wording “codicil to my last will” and “to be read out by my lawyer,” and reference to reading of will, all suggested document was deliberate or fixed and final expression of testator’s intention to dispose of property upon her death .
The Testator’s expression in the codicil as to how her daughter would use gift of property did not create trust, but was expression of wishes or recommendations and unenforceable, but the $10,000 gift to her grandson was a deliberate expression of the testator’s wish and testamentary intention, and that portion of the codicil was fully effective, as though made as part of the will . The statement in the codicil referencing the use of the residue did not vary the explicit residue clause in will.
15 Section 58 of the WESA has been considered in one British Columbia Supreme Court case, a decision of Madam Justice Dickson (Young Estate, Re, 2015 BCSC 182 (B.C. S.C.)). In Young, Madam Justice Dickson notes the absence of any British Columbia authority in interpreting this new section and she looks to other provinces’ legislation. She notes that s. 58 of the WESA is most like the curative provisions in s. 23 of Manitoba’s Wills Act, The Wills Act, C.C.S.M. c. W150.
16 After reviewing Manitoba’s authorities, Madam Justice Dickson concluded that the curative power is intensely fact-sensitive. The first threshold issue is whether the document is authentic. The core issue is whether the non-compliant document represents the deceased’s testamentary intention. That concept was explained in the Manitoba Court of Appeal decision George v. Daily (1997), 143 D.L.R. (4th) 273 (Man. C.A.). In that decision, Philp J.A. explained the limits placed on the court’s curative powers. At paragraphs 62 and 65 he stated:
62 Not every expression made by a person, whether made orally or in writing, respecting the disposition of his/her property on death embodies his/her testamentary intentions. …
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: …
17 Justice Dickson explained that the intention must be fixed and final at the material time, which will vary depending on the circumstances, but does not have to be irrevocable intention given that a Will is revocable until the death of the testator. She concluded, at paragraphs 36 and 37:
[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.
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.
It would appear that the deciding factor was likely the existing will which gave half the estate to her daughter.
The evidence available simply could not overcome the significant change in the distribution of the estate.
There was no correlation between the notes written on scraps of paper and the properly executed Will gifting property to the daughter.
There was no evidence to establish that the deceased had finally decided to effectively disinherit the daughter – she did not destroy or mark up her existing will, she did not reference the existing will in her notes, she was not estranged from the daughter, and she did not go to the lawyer to get a new will made even though she was advised to do so.
The Court is applying the 2 part test set out in Re Young 2015 BCSC 182 :
Is the document authentic?
Does it evidence the fixed and final testamentary intentions of the deceased?
Thankfully the Court is not simply “rubber stamping” applications to cure unwitnessed notes and convert them into a will.
” 29 Before granting an order that a document is fully effective as a will, or as an alteration to a will pursuant to s. 58(3) of WESA, the court must be satisfied that the document represents the testamentary intention of the deceased: Estate of Young, 2015 BCSC 182 at para. 19. As Dickson J. (as she then was) observed in Estate of Young at para. 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 a “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 substantive reasons such as testamentary incapacity or undue influence.
30 Section 58 of WESA was first considered by this Court in Estate of Young. Because s. 58 is most similar to s. 23 of the Manitoba Wills Act, C.C.S.M. c. W150, Madam Justice Dickson reviewed the Manitoba authorities, including the leading case of George v. Daily, [1997] M.J. No. 51 (C.A.). In George, the Manitoba Court of Appeal overturned the decision of 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. 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.
31 In George, the Court stated the following principles:
(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:
an evidentiary function by providing the court with reliable and permanent evidence of testamentary intention and the terms of the will; and
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.
[Emphasis added.]
32 In Estate of Young at para. 35, Madam Justice Dickson, after citing George, held that on an application under s. 58 of WESA:
… 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.
33 The factors relevant to the determination of whether a document that does not comply with testamentary formalities embodies the deceased’s testamentary intention are context specific. They 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: Estate of Young at para. 36.
34 In Estate of Young, the deceased left two documents on her dining table. The first was dated June 17, 2013, was signed on its first page by the deceased, and included a list of items of personal property for distribution to various beneficiaries. The deceased left an unsigned copy of this document with her neighbour, who she asked to assist with the distribution of the items listed.
35 The second document, dated October 15, 2013 referred to the earlier document and set out a plan for the distribution of items not described in the earlier list.
36 The court found that the June 17, 2013 document recorded a “deliberate expression of the deceased’s wishes as to the disposal of the listed property upon her death”. At paras. 38 to 40, Madam Justice Dickson took into account the following factors:
(a) the document contemplated distribution of the listed property to specific beneficiaries on the event of death and was expressed in language that conveyed an air of finality;
(b) the document was generally consistent with other provisions of the will;
(c) by signing the document the will-maker signalled her knowledge and approval of its contents;
(d) shortly before she died, Ms. Young left the signed document on her dining room table where it could be found by others; and
(e) Ms. Young provided a copy of the document to her neighbour when seeking her assistance to carry out her final wishes.
37 All of these factors satisfied the court that the document was both final and authentic.
38 Conversely, in finding that the October 15 document had no testamentary effect, the court noted that it was merely “an expression of Ms. Young’s non-binding wishes related to some of her earlier dispositions”. Further, the document was unsigned. Nor had the deceased provided a copy to her neighbour.
39 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.
44 The factors that might support a finding that the notes represent the testamentary intention of the deceased are:
(a) the deceased used the formal language of “I, Elda Lane leave … to my son” in several of the notes;
(b) some of the notes are signed at their end by the deceased;
(c) the deceased told the petitioner she wanted him to have her house after she died and that she had left a note to that effect;
(d) six of the notes contemplate a distribution of the estate by which the petitioner would receive all of the residue of the estate. The October 21, 2012 note identifies the property to be left to the petitioner as including the deceased’s principal assets, her house and the Scotiabank account.
45 I have excluded the April 14, 2012 note. That note, written on the back of a Safeway receipt, states that the deceased is leaving her house to her son, and that she is leaving her son “in charge of my bank account … with Scotia Bank.” In my view, the latter statement is as consistent with an expression of a wish by the deceased that the petitioner manage her finances as it is with an intention to make a bequest. I find that the April 14, 2012 document is not a deliberate or fixed and final statement of the deceased’s testamentary intention.
46 The factors that weigh against a finding that one or more of the notes represent the deceased’s testamentary intentions are as follows:
(a) each of the notes is written on the back of a receipt, grocery list, calendar, or other scrap paper, suggesting impermanence and informality rather than a fixed and final intention;
(b) none of the notes were witnessed. They all lack one of the fundamental hallmarks of formal validity;
(c) there is no express revocation of the deceased’s Will. This case is distinguishable from Estate of Young where the document admitted to probate was generally consistent with the deceased’s will;
(d) none of the documents bear a title. In Beck Estate, unlike this case, the deceased described the document in issue as a codicil to her last will. She left instructions for the document to be read out by her lawyer. She also left a copy with her executor. Here, there is no evidence that the deceased either showed or provided copies of her notes to anyone else;
(e) the deceased appears to have made the December 15, 2014 and January 9, 2015 notes at times when she thought she might shortly die. By suggesting that the gift was contingent upon her imminent death these notes may not represent an expression of the deceased’s fixed and final testamentary intention;
(f) some of the documents are in the form of personal notes addressed to the petitioner, a further departure from the formal requirements of a testamentary document.
47 In the particular circumstances of this case, I attach little weight to the deceased’s apparent belief that her notes were effective to change her Will. None of the notes explicitly state an intention to revoke her gift of one-half of the residue of the estate to Ms. Alsop.
Conclusion
48 After weighing all of these factors, I find on the balance of probabilities that the notes, whether considered individually or collectively, do not represent a deliberate and final expression of the deceased’s testamentary intentions. In making that determination, I give particular weight to the absence of any witnesses, the fact that all of the notes were made on scrap paper, the absence of any express revocation of the Will or the gift of one-half of the residue to Ms. Alsop, the lack of any evidence the deceased had any rational basis for disinheriting Ms. Alsop, and indeed the lack of any evidence that the deceased ever turned her mind to how the wishes she expressed in the notes would affect her earlier testamentary dispositions.
49 Accordingly, I find that the notes do not have testamentary status and may not be “cured” under s. 58 of WESA.
After 42 years of practicing law in the estate area I am well aware of the reluctance on the public 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, often through Internet “will kits “.
Probably most of the many hundreds of wills that I prepared earlier in my career had the clients express some shock at the mount of my bill for services rendered, and compared it to when they last had their wills prepared 30 years ago when they were $25 each .
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.
I limit my practice to estate litigation primarily contesting wills , and given the frugalness of the public to pay for estate planning , the inevitable increase in homemade wills will give rise to more litigation relating to those wills, primarily in the areas of mental capacity and undue influence .
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 .
In Re Yaremkewich 2015 BCSC 1124 , the deceased left three documents in one envelope that appeared to be testamentary in nature, but did not comply with formal execution requirements of the Wills Estates and Succession act (WESA), which were determined to be one valid will.
S 58(3) (A) of WESA empowered the court to order that the documents or other record was fully effective as the last will of the deceased person if the court is satisfied that the documents represented the testamentary intentions of that deceased person.
Here, the court was satisfied that the three documents did so, and that they should collectively be treated as a fully effective will pursuant to section 58 of WESA.
The Formal Requirements for a Valid Will
25 The formal requirements for a will are set out in s. 37 of WESA:
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.
26 On the evidence, I am satisfied that the Will does not comply with the formalities of WESA. The effect of sections 37(1)(b) and (c) is that Ms. Yaremkewich had to sign or acknowledge her signature in the presence at least two witnesses who were present at the same time and signed in the presence of the will-maker. In the circumstances, it is clear that the will form was not validly witnessed as required by WESA.
Therefore, Ms. Yaremkewich’s will was not validly witnessed in accordance with WESA, ss. 37(1)(b) and (c).
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.
Public Guardian and Trustee v Sheaffer 2015 BCSC 1306 discusses the WESA transition importance of March 31, 2014 in the WESA legislation known as the Wills, Estates and Succession act .
A lay person brought an action that an unsigned will dated prior to March 31, 2014, the enactment of WESA date , should be valid as per the rectification provisions of WESA.
Mdme. Justice Dardi disagreed and explained:
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.
Overview
28 The Deceased was admitted into Chilliwack General Hospital on September 19, 2011. He was subsequently transferred to Abbotsford Regional Hospital and Cancer Centre on September 20, 2011, where it was determined his condition was terminal. He returned to Chilliwack General Hospital and passed away there on September 21, 2011.
29 The PGT tendered an affidavit describing the preparation by a solicitor of the Unsigned Will for the Deceased in September 2011. The PGT also tendered the affidavits of a social worker at Chilliwack General Hospital and a social worker at Abbotsford Regional Hospital and Cancer Centre. At the hearing, Mr. Thurston relied on his own affidavits and that of Marilyn MacIver.
30 Given my conclusions, which are set out below, it not necessary for me to review this affidavit evidence other than to find that the evidence proves that the Deceased did not execute the Unsigned Will.
Discussion
31 The Deceased died in September 2011, prior to the statutorily-prescribed qualifying date of March 31, 2014 imposed by s. 186 of the WESA. Based on the pertinent transitional provisions, I conclude that the WESA has no application to this case. Given my conclusion that the WESA has no application, I need not engage in any analysis respecting whether the remedial provisions of s. 58 could “cure” the deficiencies in the Unsigned Will.
32 It is uncontroversial that the Deceased never executed the Unsigned Will. It follows that the Unsigned Will does not comply with the formal execution requirements of the Wills Act which were in force at the material time. In this case, because the WESA is not applicable, the court does not have the discretion to overlook the failure to strictly comply with the statutorily prescribed execution requirements. In all the circumstances, I conclude that the Unsigned Will is an invalid testamentary disposition.
33 It is this determination that grounds Mr. Thurston’s submissions on the constitutional issues.
34 Mr. Thurston’s submissions with respect to the breach of s. 15 of the Charter can be distilled to the core assertion that the effective start date of the WESA is arbitrary and fundamentally unfair.
35 In my view, it does not assist Mr. Thurston to challenge the transitional provisions of the WESA on the basis of an alleged breach of s. 15 of the Charter. The distinction between two groups of interested persons, one with access to the new curative dispensing provisions and the other without, occurs as a function of the date of death of the testator; it has no direct or indirect connection to the personal characteristics of the interested parties themselves. As such, the distinction is not of the kind that can be recognized as discrimination against the excluded group within the meaning of s. 15 of the Charter.
36 With regard to transitional provisions, the observations of Evans J.A. in Nishri v. R., 2001 FCA 115 (Fed. C.A.), are apposite. The Federal Court of Appeal in that case dismissed an s. 15 Charter challenge to the transitional provisions of the Unemployment Insurance Act that imposed a cut-off on the availability of a new and expanded scheme of parental leave benefits under the statute. Evans J. concluded as follows:
[42] Furthermore, this case concerns provisions that are transitional in nature. Especially in the context of complex statutory schemes, such as unemployment insurance, where the total cost of the programme is a relevant consideration in its design, Parliament should be given a degree of latitude in determining where to draw the line between benefit claims falling under the old and under the new rules, an exercise that is almost bound to seem arbitrary to those falling on the wrong side of the line.
[43] Thus, if Ms. Nishri’s baby had been born ten weeks later, or she had delayed her application for maternity leave, she would have been eligible for parental leave. However, this is not a basis for establishing a violation of the constitutional right to equality and freedom from discrimination. For a court to engage in constitutional tinkering with complex, interlocking statutory provisions in an attempt to cure an apparent arbitrariness in the operation of a justifiable cut-off in a benefits scheme is all too likely to create unforeseen anomalies of its own, even when the adverse effects of the impugned provision are not undifferentiated in their impact.
37 The transitional provisions of the WESA are clear and unequivocal. There is no discretion in the court to impose any remedial measures with respect to the apparent arbitrariness of the statutory “cut-off” date. There were sound policy and practical reasons for the enactment of these transitional provisions
Section 108 of WESA and Rule 25-11 re Citations are two of the powerful tools included in the WESA legislation that came into effect on April 1, 2014 when dealing with a reluctant executor who refuses to proceed with probate for any number of reasons ranging from emotional difficulties to fraudulent actions, and everything in between such as the power relationship between siblings.
Under section 108 of WESA, if the executor does not apply for a grant of probate then anyone interested in the estate may require the executor to accept or renounce probate, or explain to the court why the administration of the deceased’s estate should not be granted to the executor or to another person who is willing to act as the personal representative.
Probably more powerful is the use of Citations under Rule 25 – 11.
A citation is issued to compel a reluctant executor to apply for a grant of probate, and if the person cited fails to proceed with the probate, is then under rule 25 – 11 (5) deemed to have renounced as executor, and then the citor of the citation or another person interested in the estate, may then apply for a grant of probate in the place of the initial reluctant executor.
See s. 108 WESA:
Requirement to accept executorship or to explain
108 If an executor named in a will does not apply for a grant of probate of a will, any person interested in the estate may, in accordance with the Supreme Court Civil Rules, require the executor to
(a) accept or renounce probate of the will, or
(b) explain why administration of the deceased person’s estate should not be granted to the executor or to another person who is willing to act as personal representative.
Under the Supreme Court Rules:
Rule 25-11 — Citations
Citation to apply for probate
(l)If a testamentary document is or may be in existence, a person interested in the estate may serve by personal service on each person named as an executor in the testamentary document a citation in Form P32 in respect of the testamentary document to require the served person to apply for a grant of probate in relation to that testamentary document.
[
Alternate executors
(2)A citation under subrule (1) in relation to a grant of probate
must be served by personal service on each alternate executor if an event, including, without limitation, an event referred to in subrule (5), occurs that entitles the alternate executor to assume the office of executor, and
must not be served on an alternate executor until an event referred to in paragraph (a) occurs that entitles that alternate executor to assume the office of executor.
Citation to be supported
(3)A citation under subrule (1) in relation to a testamentary document must include
an address for service of the citor, which address for service must be an accessible address that complies with Rule 4-1 (1), and
a statement of the citor providing
(i) the grounds for the citor’s knowledge of or belief as to the existence of the testamentary document, and
(ii) information available to the citor that will allow the testamentary document to be identified.
Answer to citation
(4)A person who is cited by being served with a citation under subrule (1) must, within 14 days after being served with the citation,
if the cited person has been issued a grant of probate in respect of the testamentary document in relation to which the citation was issued, serve on the citor, by ordinary service, a copy of the estate grant, or
if the cited person has not yet been issued a grant of probate in respect of the testamentary document in relation to which the citation was issued, serve the citor as follows:
(i) if the cited person has filed a submission for estate grant under Rule 25-3 (2) in respect of the testamentary document, serve on the citor, by ordinary service, a copy of the filed submission for estate grant along with copies of the other documents filed under Rule 25-3 (2);
2
(ii) if subparagraph (i) does not apply but the cited person has delivered documents under Rule 25-2 (1) in relation to an application for a grant of probate that the cited person intends to pursue in respect of the testamentary document, serve on the citor, by ordinary service, a copy of those documents;
(iii) if the cited person has not taken any step under this Part in relation to the estate, serve on the citor, by ordinary service, an answer in Form P33 providing an address for service that is an accessible address that complies with Rule 4-1 (1) and stating that the cited person
(A) will apply for a grant of probate in respect of the testamentary document, or
(B) refuses to apply for a grant of probate in respect of the testamentary document.
Deemed renunciation of executorship
(5)A person who is cited under subrule (1) to apply for a grant of probate in relation to a testamentary document is deemed to have renounced executorship in relation to that testamentary document if
(a) he or she is a person referred to in subrule (4) (b) (i), (ii) or (iii) (A) and does not
(i) serve on the citor the document that, under that provision, he or she is required to serve, or
(ii) obtain a grant of probate within 6 months after the date on which the citation was served or within any longer period that the court on the application of the cited person may allow, or
(b) he or she is a person who serves on the citor an answer referred to in subrule (4) (b) (iii) (B).
]
Effect of failure to answer citation or give reason for refusing probate
(6)If each person who is cited under subrule (1) to apply for a grant of probate in relation to a testamentary document is deemed under subrule (5) to have
3
renounced executorship in relation to the testamentary document, the citor or another person interested in the estate may, without limiting any other right the citor or other person may have, apply for one or more of the following:
a grant of probate or a grant of administration with will annexed in relation to the testamentary document or another testamentary document;
an order under section 58 of the Wills, Estates and Succession Act curing any deficiencies in the testamentary document;
an order that the testamentary document is a will proved in solemn form;
if the testamentary document is in the possession of a cited person, the issuance of a subpoena under Rule 25-12 to require the cited person to file the testamentary document.Affidavit of deemed renunciation for grant of probate
(7)The citor may swear an affidavit of deemed renunciation in Form P34 if the person who has been served with a citation in respect of a testamentary document is deemed under subrule (5) to have renounced executorship in relation to the testamentary document.
Yaremkewich Estate Re 2015 BCSC 1124 is another in a series of largely uncontested applications to cure defects such as improperly witnessed wills under section 58 of WESA, that the court has allowed.
While the matter was uncontested, the Justice gave very detailed reasons for judgment for her legal reasoning in curing a defectively witnessed will under the curative provisions of section 58 of WESA, due to its relatively new introduction on March 31, 2014.
The British Columbia courts continue to follow the lead of the Manitoba courts and particular their Court of Appeal decision of George v. Daily ( 1997) 143 (4th) 273 ( Man.C.A), as well as our BC court decision Estate of Young, 2015BCSC 182, which I previously blogged and can be found by typing in the name of that case with its citation.
In this particular case the judge found as a fact that the two witnesses to the will testified they signed as witnesses to a blank will template, that had no attached pages setting out bequests as was found with the will after death. They could not recall if the deceased signed the will at the same time as them.
Prior to WESA, for hundreds of years that will would have been invalid in most of the common-law jurisdictions but for recent introductions of legislation to allow a judge to cure legal technicality and declare a will valid, where the intentions of the deceased are clear.
The judge followed section 58 (3) (a) which empowers the court to order that a document or other record is fully effective as the will of the deceased person if the court is satisfied that the document represents the testamentary intentions of that deceased person.
The types of evidence that are relevant to prove testamentary intent will vary from case to case. In this particular case, the deceased left detailed wording of the will and its 12 pages of attachments, all of which were found in an envelope entitled with the name of the deceased and declaring it to be her last will. She also gave a copy of the last will to an executor, without the attached 12 pages of specific bequests that the judge found was likely signed by the deceased on a date after the witnesses signed the blank template.
The Formal Requirements for a Valid Will
[25]The formal requirements for a will are set out in s. 37 of WESA:
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.
[26]On the evidence, I am satisfied that the Will does not comply with the formalities of WESA. The effect of sections 37(1)(b) and (c) is that Ms. Yaremkewich had to sign or acknowledge her signature in the presence at least two witnesses who were present at the same time and signed in the presence of the will-maker. In the circumstances, it is clear that the will form was not validly witnessed as required by WESA.
[27]These requirements are strict, and the court does not have the discretion to waive the witnessing requirements: Bolton v. Tartaglia, 2000 BCSC 576 at paras. 18–19, citing Ellis v. Turner (1997), 43 B.C.L.R. (3d) 283 (C.A.).
[28]Mr. and Mrs. Bespalko, the witnesses to the Will, provided uncontradicted evidence that when they signed the Will, it was still a blank template document and had not been signed by Mrs. Yaremkewich. Accordingly, I find that the contents of the executed will were added after the will template was signed by the witnesses. Although it is not clear whether Ms. Yaremkewich signed the form at that time, even if she had, she would not be signing at the end of the will since the will template was blank at that time. Therefore, Ms. Yaremkewich’s will was not validly witnessed in accordance with WESA, ss. 37(1)(b) and (c).
[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.
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.
[35]In several other provinces, the legislation that governs wills has a similar curative provision that allows the court to remedy formal defects if it is satisfied that the document represents that deceased’s testamentary intent. The leading case on Manitoba’s curative provision is George v. Daily (1997), 143 D.L.R. (4th) 273 (Man. C.A.). In that case, the deceased advised his accountant that he wanted to change his existing will. The accountant made notes and wrote to the deceased’s lawyer detailing the deceased’s instructions. The deceased met with the lawyer and confirmed his instructions. Based on the lawyer’s instructions, rather than writing a new will during that meeting, the deceased agreed to get a medical certificate proving his competency before he executed a new will. The testator died soon afterwards without having gotten the medical certificate or executed a new will.
[36]Ultimately, the Manitoba Court of Appeal in George held that the letter to the lawyer did not represent a fixed and final expression of his intention as to the disposal of his property upon his death (at 291, 294–295). There was no evidence that the deceased had seen the letter or affirmed its contents, and the court was not satisfied that the deceased intended for the plan to be completely fixed during the period when he was planning to get a medical certificate (at 293–294). In the circumstances, the Court of Appeal was satisfied that the letter was, at best, instructions for preparing his will, and it did not apply the curative provision (at 294–295).
[37]As illustrated by the George decision, one of the central concerns when determining the deceased’s testamentary intent is the finality of her decision. When the document only amounts to instructions to create a will, or the document is not completed, or there is some other circumstance that negates the finality of the document, then that document does not represent its creator’s testamentary intent. See for example Sawatzky v. Sawatzky Estate, 2009 MBQB 222, in which Simonsen J. held that an unsigned, typewritten document drafted by the deceased’s lawyer should not be treated as a valid will since there was evidence indicating that it was not intended to be the final draft of the will. The deceased in that case was a meticulous individual who did not likely believe that death was imminent. Given the large number of instructions previously given to his attorney and the large number of bequests in his previous holograph will, the court inferred there was a possibility that he had chosen not to sign the document immediately and give it more thought (at para. 31).
[38]However, because wills can be revoked in the will-maker’s lifetime, it is important to note that this analysis looks at whether the deceased had a deliberate or fixed intent at the time they created the document, not for evidence of an irrevocable intention. This was summarized in Young at para. 35:
…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.
[39]I find Ms. Yaremkewich’s Will to be similar to the wills at issue in Kuszak v. Smoley (1986), 46 Man. R. (2d) 14 (Q.B.) and McNeil v. Snidor Estate, 2008 MBQB 187. In both of these cases, the court applied the curative provision in Manitoba’s will legislation to treat standard-form will templates as valid wills even though the documents were not properly witnessed.
[40]In Kuszak, the deceased printed a blank will template and completed it entirely in his own handwriting, but did not obtain any witness signatures. Nonetheless, Glowacki J. found that the document represented the deceased’s testamentary intentions and ordered that the document was fully effective as a will. Glowacki. J. summarized the relevant circumstances that influenced his decision as follows:
6 In the present case, the testamentary document was signed by the deceased and therefore there has been some compliance. The lack of witnesses, although very important, does not prevent the court from admitting a testamentary document to probate if the court is satisfied that it embodies the testamentary intentions of the deceased.
7 The printed form was completed entirely by the deceased in his own handwriting and bears his signature in four places. The printed form identifies the document as a “will” and was completed properly by the deceased. The deceased was careful to deal with all of his estate and to appoint an executor. The date is inserted in four places. There is nothing before the court that suggests that the document does not embody the intent of the testator.
8 It is of concern to the court that the document in question does not bear the signature of any witnesses as this is one of the safeguards to ensure that the document is really the last will and testament of a testator. If the printed form of document had been completed by some other person, or had it been a typed document with the signature of a testator without any witnesses, it may be that the court would not be satisfied that it embodied the last will and testament of a testator. These are factors which must be considered in the circumstances of a particular case.
[41]In McNeil, the deceased’s will was a template will on which he added handwritten comments. The two witnesses signed separately. One witnesses stated that the will was blank when he signed, and the other stated that she could not recall how much handwriting was on the document when she signed it and she did not read the document. Following George and Kuszak, McCawley J. applied Manitoba’s curative provision and admitted the will to probate. Some details which McCawley J. found to be significant were:
·the document revoked prior wills and expressed specific intentions of who should and should not receive the proceeds of estate;
·the document appointed an executor and provided him instructions for managing the estate and funeral arrangements;
·the document was entitled “Will” on the first page;
·all blank spaces in the will except for two were filled in with the deceased’s handwriting;
·the deceased signed the second and third pages of the will;
·the deceased had obtained witness signatures, although he did not comply with the proper formalities for witnessing a will;
·there was no evidence that the will did not indicate the deceased’s testamentary intention or that he lacked capacity to make a will; and
·the will demonstrated a reasonable explanation for the differences between it and the previous wills (at paras. 21–23).
Social Media Postings Can Ruin YOUR Claim. Although a personal injury case, the decision Tambosso v Holmes 2015 BCSC 359, demonstrated that between a combination of video surveillance and 194 pages of Facebook entries, that the plaintiff’s claim was exaggerated and in total contradiction to the evidence that she provided to her care practitioners.
She received almost nominal damages from the nonbelieving trial judge, rather than the much larger award that she expected but for her lack of credibility.
The case referred to a 2010 Alberta court decision where a judge cautioned that such social media entries may contain “an overly positive perspective regarding one’s abilities and interests for a certain amount of puffery.”
The recent BC case did not appear to follow that suggested latitude in interpreting social media entries
Prospective clients in estate claims are equally vulnerable in family disputes due to social media postings often made in times of anger, estrangement, or misunderstanding.
There is that entire concept of once said, it is there forever that must be considered in estate/family matters. It simply is very difficult to overcome hurt, abuse, and hurtful remarks.
I had one estate claim where through Facebook I was able to show that the plaintiff had commenced numerous fraudulent claims in other jurisdictions. It undermined her entire credibility with respect to her claim due to her intended disinheritance by her parents.
The judge made the following comments in the Tombosso case about Facebook postings:
Facebook Postings
[170]Throughout her evidence, the plaintiff testified that as a result of the PTSD and stress suffered as a result of the aftermath of the 2008 accident, her life completely changed from that of a vibrant, outgoing, industrious, ambitious, physically active, progressive and healthy young woman to that of a housebound, depressed, lethargic, forgetful, unmotivated woman who is unable to concentrate, cannot work, has friends only on the internet and whose “life sucks”.
[171]One hundred and ninety-four pages of Facebook entries from her Facebook page posted between May 7, 2007and July, 2011 were entered in evidence following an order for production by Master Tokarek in August 2011. There are extensive status updates, photographs, and other posts to the plaintiff’s Facebook page that at face value appear to directly contradict her evidence regarding her alleged injuries, and her state of mind following the 2008 accident in particular. All of the posts were included in Ex. 1, Tab 1.
[172]It was submitted in argument that persons posting the events of their life on social media tend to post positive events and activities to portray themselves as “social” and avoid posting negative thoughts, events and news. There is no opinion evidence to support this submission, but I nonetheless approach the Facebook evidence with caution. However, even given potential frailties with this evidence I find there are numerous examples that buttress my findings on the plaintiff’s credibility.
[173]Examples of postings of the plaintiff on Facebook which conflict with the evidence of the plaintiff are many; I highlight some examples which are included in the Facebook pages found at Ex. 1, Tab 1:
a)The plaintiff testified that she loved her position as front desk manager at the Summit Lodge and Spa, was performing well and putting in extra hours, was intending to make a career out of work in the hospitality industry and expected to be able to manage the hotel or other hotels in the future. Her manager for most of her time at the Summit, Ms. Camilla Say, was not so complimentary, saying the plaintiff was “great initially at fulfilling her duties”, started to struggle towards the end of winter as the job was high stress and by the spring of 2008 she “was not enjoying the job” and “was moody, short tempered”. Ms. Say continued that there had been staff complaints, “she was gone at times” and as to whether the plaintiff was management material, Ms. Say’s response was “she was fairly young, not loving the hours, and therefore would say she is not management material”. Facebook postings by the plaintiff reflected the stress of the job, and included posts on February 5, 2008 that she “is feeling over worked and under…”, on February 9, 2008 that she “could duplicate herself so work would be easier…” and on May 16, 2008 that she “is wishing work didn’t interfere with life…” These Facebook postings reflect the evidence of Ms. Say, not the trial evidence of Ms. Tambosso.
Facebook postings indicated that the plaintiff quickly returned to join her friends in social events following the 2008 accident. On July 29, 2008 and August 6, 2008, mere weeks after the 2008 accident, Ms. Tambosso was tagged in photo albums entitled “Kerri’s Stagette” and “Kerri’s Stag Part 2” that depict her drinking with friends and river tubing near Penticton. Similarly, numerous posts from October 2008 indicate the plaintiff eagerly anticipated and attended a Halloween party, including her RSVP message to the event page which stated “Yeah Party! You guys have the best parties. I’ll be there . . . with bells on! xoxoxo Sarah”, posts back and forth with friends discussing the upcoming party, and two photo albums posted November 1, 2008 and November 4, 2008 both entitled “Halloween2008” by Adrienne Greenwood depicting the plaintiff dressed in costume at a party with friends. The plaintiff also posted a status update on November 1, 2008 the following day that she “is chillin’ on the home front after a crazy week”. This directly contradicts the plaintiff’s testimony that in the weeks following the 2008 accident “I went to a bad place in my brain”, “that time really sucked” and “I knew something was really wrong.” It also contradicts her evidence to Dr. Rasmussen that she forced herself to attend these events in order to combat feelings of discouragement and withdrawal, and that her enjoyment of these activities was “limited”. She also appears to have attended numerous other events during that time period, but as these are only evidenced by confirmed Facebook event RSVPs and status updates rather than photographs, I will not place as much weight on those events.
b)Postings by the plaintiff to her Facebook page continued through 2009 however indicated a much less active social life. The plaintiff acknowledged it was during a period when she was having a very difficult pregnancy which, from the plaintiff’s description, did interfere with her social life, and was also the time of the alleged assault by Mr. Dyer following which the police were involved and soon thereafter the engagement and close relationship between them ended. It strikes me as odd that the plaintiff’s social media activity during this time seems to directly correspond with her reported life circumstances and state of mind, ie. she was having a difficult time so she was less active on Facebook, but her Facebook activity did not appear to diminish immediately following the 2008 accident, despite her testimony that this was a very dark time in her life and the evidence that this was the triggering incident for the PTSD that was diagnosed by the various experts.
c)The plaintiff’s Facebook posts continued through 2010 and 2011with somewhat less frequency and enthusiasm than the 2008 posts, though it is natural that a person raising a small child would have to make adjustments to her social activities compared to the extent of her social life prior to her pregnancy. What is notable is that the plaintiff still continued to have relatively numerous posts from friends and photos of events she attended, and there was no notable change in the Facebook activity or posts immediately following the 2010 accident on September 3. I can only make conjectural conclusions from this evidence, so I will not place significant weight on the 2010 posts, but I nonetheless note the absence of a change to her social media behaviour following the 2010 accident.
[174]I conclude that based on this Facebook evidence, in particular the photos of continued attendance at social events and posts from friends, that the plaintiff had a very active social life following the 2008 and 2010 accidents. The social life portrayed by her Facebook profile is consistent with the social life of someone who went through three engagements, the birth of a child, and a marriage. It is completely inconsistent with the evidence the plaintiff gave at trial and to the experts that she was a “homebody” whose “life sucked” and “only had friends on the internet
In re Beck Estate 
Re Lane 
Public Guardian and Trustee v Sheaffer 
Section 108 of WESA and Rule 25-11 re Citations are two of the powerful tools included in the WESA legislation that came into effect on April 1, 2014 when dealing with a reluctant executor who refuses to proceed with probate for any number of reasons ranging from emotional difficulties to fraudulent actions, and everything in between such as the power relationship between siblings.
Yaremkewich Estate Re 