law 3870 - wills and estates - tru society of law · pdf file! 2!...

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Law 3870: Wills and Estates

Table of Contents

Introduction .................................................................................................................................................................. 3 What is a will: the fundamentals ................................................................................................................................... 5

What does “will: include? .............................................................................................................................................. 6 Testamentary character/ nature of the will .................................................................................................................. 6 Will substitutes .............................................................................................................................................................. 7 Joint interests: joint tenancy ......................................................................................................................................... 8

Legislation ................................................................................................................................................................ 9 Cases ........................................................................................................................................................................ 9

Moiny Estate (Re), 2001 BCCA 100 ............................................................................................................................................. 9 Wonnacott v. Loewen, 1990 ....................................................................................................................................................... 9

The Will-‐Maker -‐ Age, Capacity, Intent ........................................................................................................................ 10 Legislation: ............................................................................................................................................................. 14

Wills Estates & Succession Act, s. 36 ......................................................................................................................................... 14 Who can make a will ................................................................................................................................................................. 14

Cases: ..................................................................................................................................................................... 15 Legier v Poirier .......................................................................................................................................................................... 15 Sharp v Adam ............................................................................................................................................................................ 16 O’Neil v Royal Trust Co .............................................................................................................................................................. 16 Vout v Hay ................................................................................................................................................................................. 17 Ouderkirk v. Ouderkirk, [1936] S.C.R. 619 ................................................................................................................................ 17 James v. Field, 2001 BCCA 267 .................................................................................................................................................. 18 Brydon v. Malamas, 2008 BCSC 749 .......................................................................................................................................... 19

Technical Requirements -‐ Execution, witnesses, attestation & drugstore wills ............................................................ 21 Legislation: ............................................................................................................................................................. 26

Wills Estates & Succession Act, s. 37-‐40 ................................................................................................................................... 26 Indian Act, RSC 1985, c. I-‐5, ss. 45-‐46 ....................................................................................................................................... 26

Cases: ..................................................................................................................................................................... 26 Yen Estate v. Yen-‐Zimmerman, 2012 BCSC 1620 ...................................................................................................................... 26 Neilsen Estate (Re), 2012 SKQB 15 ............................................................................................................................................ 26 Ball v. Taylor (1999) 17 E.T.R. (2d) 208 (B.C.S.C.); CanLII 6580 ................................................................................................. 27 Jones v. British Columbia (Wills Act, Public Trustee), 1983 CanLII ............................................................................................ 27 Faulkner v. Faulkner, 60 SCR 386 (1920) ................................................................................................................................... 28 Murray v Haylow ....................................................................................................................................................................... 28 RE White .................................................................................................................................................................................... 28 RE Reva ...................................................................................................................................................................................... 28 Chesline v Hermiston ................................................................................................................................................................ 28 RE Gunstan ................................................................................................................................................................................ 28 Bennett v Gray .......................................................................................................................................................................... 28 RE Forest ................................................................................................................................................................................... 28 RE Clarke ................................................................................................................................................................................... 28

Testamentary Gifts, Lapse, Abatement, Ademption, Encumbered Gifts ....................................................................... 28 Legislation: ............................................................................................................................................................. 37

Wills Estates & Succession Act s 41 -‐ 52, 96 -‐ 100 .................................................................................................................... 37 Cases: ..................................................................................................................................................................... 37

RE Taylor ................................................................................................................................................................................... 37 Re Wudel (1982), 22 Alta. L.R. (2d) 394, 13 E.T.R. 25; CanLII 1216 ........................................................................................... 37 West Estate (Re), 1999 1200 (BC SC) ........................................................................................................................................ 38 Trebett v. Arlotti-‐Wood (2004), 35 BCLR (4th) 166 C.A. ........................................................................................................... 38 Milthorp v. Milthorp 2000 662. ................................................................................................................................................. 39

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Changes -‐ Alterations, Amendments, Revocation, Codicils & Mutual Wills .................................................................. 39 General principles ................................................................................................................................................... 39

WESA S. 54 -‐ 57 ............................................................................................................................................................ 40 Powers of appointment ............................................................................................................................................... 41

Tassone v. Pearson 2012 BCSC 1262 ......................................................................................................................................... 41 Revocation by act of T ................................................................................................................................................. 42

Re Davies ................................................................................................................................................................................... 42 Leonard v Leonard .................................................................................................................................................................... 42

By another ................................................................................................................................................................... 42 Alteration ..................................................................................................................................................................... 42

Re Douglas Estate ...................................................................................................................................................................... 43 Conditional revocation ................................................................................................................................................ 43 Dependent relative/conditional revocation ................................................................................................................ 43

Alma Gertrude Turner (Estate Of) ............................................................................................................................................. 43 MacDonell v Hudson ................................................................................................................................................................. 44

Mutual wills ................................................................................................................................................................. 44 University of Manitoba v Montreal Trust (Sanderson Estate) .................................................................................................. 44 Jung, Re Estate of Horace Lee ................................................................................................................................................... 45 Smith Estate .............................................................................................................................................................................. 47

Interpretation ............................................................................................................................................................. 47 Cases: ..................................................................................................................................................................... 53

Laws et al v. Rabbitt et al, 2006 BCSC 1519 .............................................................................................................................. 53 Murray Estate, 2007 BCSC 1035 ................................................................................................................................................ 53 Re Meier (Estate of), 2004 ABQB 352 ....................................................................................................................................... 53 Tottrup v. Patterson et al., [1970] S.C.R. 318 ............................................................................................................................ 53

Intestacy ..................................................................................................................................................................... 53 What is intestacy? ....................................................................................................................................................... 53

WESA, Part 3 ........................................................................................................................................................... 53 Definition of spouse ..................................................................................................................................................... 53

Indian Act Regime ................................................................................................................................................... 56 Summary (“Distribution of property on intestacy”, s. 48) ........................................................................................... 56

Young v Abercrombie ................................................................................................................................................................ 56 Kilby v Myers ............................................................................................................................................................................. 58 Thierman Estate v Thurman ...................................................................................................................................................... 58 Zeitler v Estate of Alfons Zeitler ................................................................................................................................................ 59

Challenging the Will: Undue Influence; Mental Capacity; Wills Estates & Succession Act (Wills Variation) .................. 59 Tribe v. Farrell, 2006 BCCA 38; 2003 BCSC 1758 ....................................................................................................................... 61 Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807 .......................................................................................................................... 63 Stanton v. Stanton Estate, 2008 BCCA 32 ................................................................................................................................. 64 Werbenuk v. Werbenuk Estate, 2010 BCSC 1678 ..................................................................................................................... 65

Legislation: ............................................................................................................................................................. 66 Wills Estates & Succession Act, Part 4, Div. 6 ............................................................................................................................ 66

Patients Property Act and the Adult Guardianship Act ................................................................................................ 66 Legislation: ............................................................................................................................................................. 72

Patients Property Act [RSBC 1996] c. 349 ................................................................................................................................. 72 Cases: ..................................................................................................................................................................... 72

Simons v. Simons, 2013 BCSC 650 ............................................................................................................................................. 72 Lindberg v. Lindberg, 2010 BCSC 1127 ...................................................................................................................................... 73 Elsie Jones (Re), 2009 BCSC 1723 .............................................................................................................................................. 74

Powers Of Attorney .................................................................................................................................................... 75 Legislation: ............................................................................................................................................................. 86

Power of Attorney Act [RSBC 1996] c. 370 ............................................................................................................................... 86

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Cases: ..................................................................................................................................................................... 86 Goodrich v. British Columbia (Registrar of Land Titles), 2004 BCCA 100 .................................................................................. 86 Egli v. Egli, 2005 BCCA 627 ........................................................................................................................................................ 86 Houston v. Houston, 2012 BCCA 300 ........................................................................................................................................ 86 Desharnais v. Toronto Dominion Bank, 2001 BCSC 1695 .......................................................................................................... 86

Medical / Health and other decisions .......................................................................................................................... 86 Legislation: ............................................................................................................................................................. 86

Representation Agreement Act [RSBC 1996] c. 405 ................................................................................................................. 86 Health Care (Consent) and Care Facility (Admission) Act RSBC 1996, c. 181 ........................................................................... 86

Cases: ..................................................................................................................................................................... 86 Bentley v. Maplewood Seniors Care Society 2014 BCSC 165 .................................................................................................... 86

Introduction “This is the stuff of life itself!” -‐ Hall

Origins • Origins of Canadian law in English common, law, church law, and equity

o Myths of time à going back to old law o Equity, fairness used by the King where the law was too strict o If common law and equity came into conflict; equity trumped o Now it is merged à but the two distinct areas of law remain interpreted by one court

• Statute significant today (in BC Wills, Estates and Succession Act) but old jurisprudence still relevant, still cited (forms basis for applicable principles)

• In some respects, legislation codifies principles originating in common law, church law, equity; parallel rules of equity also apply in this area of law

Personal property • Courts would decide the ability of a testator to bequeath personal property and land • Ecclesiastical courts exercised jurisdiction over testamentary disposition (disposition on death) of personal

property (final confession and testamentary disposition went together, hence jurisdiction) • Testator (person making the ”last testamentary disposition”) not free to dispose of if however he likes-‐rules

apply, requiring that certain “portions” to be made to any wife, or child alive on death (their “reasonable parts” which they could enforce against the executor, the person administering the will)

o Reasonable part à right to enforce it (suit) • Reasonable parts fall into disuse after reign of Charles I, but we see echo of this principle in modern wills

variation legislation in BC (which is not limited to personal property) o Responsibility to family vs. Freedom of the testator o IE in France they have certain portions, patrimony = obliged to provide for certain people o This has been incorporated slightly in Wills Variation Act (pre WESA, if family felt that it was unfair they

could ask the court to vary the will à make a reasonable portion) o Modern version of this is incorporated into WESA

Personal Property: the requirement of writing • As we shall see, “Formal” requirements are a significant factor in modern wills legislation • Originally, testamentary disposition of personal property could be oral (nuncupative), written

o In WESA were these requirements to high for will makers) a large part of the discussions o WESA makes some improvements for this but less than others wanted

• Statute of Frauds (1677) – restrict oral testaments; require three witnesses; must be made during testator’s last illness and in the person’s dwelling; no evidence re oral testament after six months

o Some of this applied under Will Variation ie. only so much time to challenge a will

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• Oral testaments (unless put in writing before death) could not revoke written testament • Did not apply to small estates (under a certain amount); mariners at sea and soldiers on service

Restrictions on married women’s ability to disposed of personal property and “intestacy” • Husband, with knowledge of contents, had to consent (and didn’t revoke it) unless property owned separately

by her (ie. not marital property), or in special circumstances where she is carrying out a power conferred on her, or appointing an executor/ trix to carry out her own duties as executrix

• Restrictions carried over into legislation until later 19th Century • Intestacy means where a person dies without having made a testament or will, or the will is invalid • Rule about how such personal property would be distributed developed by ecclesiastical courts; then codified in

legislation; still incorporated in modern legislation (as we shall see!) o WESA is a compilation of many different pieces of legislation

Succession to land • Land and personal property differences • Right to devise real property (permitted by ecclesiastical courts) abolished when King’s courts took over – this is

because testamentary disposition of land was considered conveyance but without livery of seisin – “uses” (enforced in equity) an attempt to get around this; when abolished, outcry leads to first Statute of Wills (now you can make a will disposing of real property, subject to rules of primogeniture – also, married women, infants, persons of unsound mind, lack capacity to make will; aliens persons convicted of a crime, persons with certain disabilities also unable to make wills)

• Primogeniture (the “heir-‐at-‐law” – oldest male and then hierarchy set out at p. 6) entrenched by 12th C – so long as this system endures, interferes with ability to freely (at choice of testator) dispose of land in a testament or will

• Primogeniture eventually done away with through legislation (although it lasts for a long time, going through some modifications)

Law in Canada • Legislation dealing with matters relating to wills and estates (with the exception of the Indian Act provisions

discussed infra) is provincial, meaning each province has its own legislation in this area • Nevertheless, modern law of succession in Canada generally uniform (with some points of distinction); common

origin in English law (general principles, and cases explicating them, apply) • The law of succession in Quebec is governed by the Civil Code of Quebec • In BC, the WESA, which consolidated fragmented legislation “in one”, came in force in 2014 • *Now no distinction between land and personal property

Indian Act • May surprise you to learn that specific provisions in the Indian Act regarding the will of an “Indian” to whom the

Act applies (persons registered as Indians or entitled to be registered and who are ordinarily resident on reserve or designated lands)

• Vests all jurisdiction over “matters and causes” testamentary in Minister of Aboriginal Affairs and Northern Development; appeal from Minister’s decision goes to Federal Court

• Non-‐status band members are treated as “Indians” for the purpose of managing/administering estates of “mentally incompetent Indians” and Indian children who are minors-‐ “living estates”);

o Living estate = estates managed by another person • “Living Estates Program's goal is to empower First Nation members to administer the living estates of Indian

minors and mentally incompetent Indians who are ordinarily residents on a reserve…Department “Administrator of last resort.” A departmental administrator will only be appointed as a last resort if no eligible non-‐departmental individual is willing and able to administer the estate.”

Additional matters – Powers of attorney, Guardianship, health directives (representation agreements), advance directives

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• Frequently considered together with wills and estates • Arise in same “advance planning” context; part of same practice area • Clients seeking advance about wills often seeking advice about these matters • Similar issues-‐ tend to involve older clients; money; family relationships; may raise issues of mental capacity and

undue influence; planning for death

Mental Capacity and undue influence • Issues of mental capacity and undue influence are frequently raised in the context of wills and estates, and the

related matters considered here (powers of attorney, guardianship and advance directives) • Cases often involve several of these issues, enmeshed with one another • See, eg, Houston v. Houston, 2012 BCCA 300 • case involves second (late-‐life) marriage, increasingly common scenario • “It appears that Dr. Houston Sr., who was a “gentle man” and not in robust health, was caught in the middle: he

wanted to protect his children’s interests as the Houstons had always planned to do in their wills, but he did not want to ‘cross’ his wife, who was his caretaker. She and her daughter began to take some steps in 2008 that were bound

Houston v Houston Facts involve the following:

• Wills (similar wills made by husband and wife-‐ estate to survivor, residue to children) • Relationship between joint tenancy and subsequent estate (here, issue involves severing tenancy to effect result

that condo will go into estate)-‐ is severance testamentary in nature (and what does that mean?) can it, therefore, be effected through a power of attorney?

• Wills variation action (dependent on severance) • Powers of attorney (involving questions of procedures around using powers of attorney to sever joint tenancy,

when power of attorney is revoked by second p of a, fiduciary duties of attorney) • Various lawyers are involved, contacted by different actors (who is the client?); action in negligence brought

against one of them by wife • Emotional family relationships

What is a will: the fundamentals • A will is what the law define it as (legal concept) • An instrument, which disposes of the testator’s property

o Used to be possible to make an oral one (myths of time) o But this was changed historically o Instrument must be in writing as per WESA o Disposing of the testator’s property (not just a normal disposal of property) o Who and what a testator is at law?

• Takes effect only on the testator’s death • Is revocable until the testator’s death

o So long as the testator is mentally capable of changing it (capacity) • Made animus testandi (with valid intention to make the document in question – next week we will explore this

in more detail) o Capacity has several distinct components in this o Free from undue influence and mind must be free from “insane delusions” o If we are talking about a different type of instrument (not self identified as a will) then this question of

what was intended make this more challenging to answer • Must satisfy formal requirements (formalities)

o WESA requirements

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What does “will: include? • All valid unrevoked testamentary instruments • If I make Will A, and subsequently make Will B, if Will B conflicts with Will A. Will B revokes Will A (If I am

capable (capacity issues) of making will B, of course!) But if Will B does not conflict with Will A together they may constitute my “will”

o They can coexist and work together (one single will) • My will may also include codiciles, or documents amending wills

What is in a will, contents • A will should dispose of property (note, debts of the estate must be paid prior to bequests being dispersed

according to the will) • A will may appoint a guardian • A power of appointment may be conferred by a will or exercised through it (ie. T’’s will says A to X for life, then X

can be disposed of b A as she likes – A might exercise this disposal in her will) o Not specifying what the future of the property is à basically makes fee simple in possession

• Appoints a personal representative (Executor) to administer the will – if no executor names, a person can apply or the court may appoint one if needed for the distribution of the estate (WESA provides for the public Guardian and Trustee to be appointed for this purpose)

o Only necessary for estates over a certain value • Will may include other “directions” but they do not form a binding part of the will (regarding burial, choice of

solicitor, eg) • Dispersal cannot take place until probation has happened

WESA requirements – “how to make a valid will” 37 (1) To be valid, a will must be (a) in writing, (b) signed at its end by the will-‐maker, or the signature at the end must be acknowledged by the will-‐maker as his or hers, in the presence of 2 or more witnesses present at the same time, and (c) signed by 2 or more of the witnesses in the presence of the will-‐maker. (2) A will that does not comply with subsection (1) is invalid unless (a) the court orders it to be effective as a will under section 58 [court order curing deficiencies], (b) it is a will recognized as valid under section 80 [validity of wills made in accordance with other laws], or (c) it is valid under another provision of this Act.

• Fundamental concern, which is to give effect to the intentions of the testator • Don’t want to make the formal requirements too onerous to neglect to give effect to fundamental intentions • If you made a will in England (which followed those rules) this will can be probated (proven to be valid) in a

court in British Columbia

Testamentary character/ nature of the will • Refers to its taking effect only on death, and being revocable up to point of death (so long as T remains capable

of revoking)-‐ until that point the will is “ambulatory” o It could be revoked à until death o There is case law around whether a will is ambulatory when someone loses the mental capacity to

create a will i.e. someone had advanced dementia o But still the will doesn’t take effect until death (not when capacity has been lost)

• Means that if I make a gift of Blackacre to X, with X taking possession on my death, the disposition is not testamentary (as the gift to X is vested in X, and is not revocable)

o Different because the interest is vested o Testamentary powers would happen if you have the ability to change o POA and dispose of estate while the person is alive but ends on death

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• A mistake often made! Care agreements, eg o Kind of arrangements that older ppl get into with family members o Many people get into these agreements without getting adequate legal advice o Concern to keep the family home out of the estate (no probate fees, can’t be used to settle debts)

• T therefore retains control over Blackacre up to the point of death (“Someday This Will All be Yours”)-‐ if he makes an inter vivos gift, he gives up that control

• T must have intended the will to execute his testamentary wishes (if I were to die in the next moment, this is the disposition I intend)

Effect of marriage and separation − Marriage does not revoke an earlier will (WESA)

o Big change in the Act − Divorce revokes gifts in a will-‐ now, so does separation (when one or both spouses terminate the relationship)

(WESA), although right to division of family property under Family Law Act survives o Go back to the principle that we should give intention to the testator’s wishes

What interest does a beneficiary have? • Remember, until death of T, T can change her will/ bequests, decide to sell Blackacre or give it away • All beneficiary has is spes sucessionis, or expectancy • This is not a vested interest – although your text notes that courts have on occasion treated it as such, where T is

no longer capable of changing her will (Weinstein v Weinstein) – this is not the correct approach

Will substitutes • As we saw in the Houston case, individuals may use other means and methods to transfer property in place of

testamentary dispositions in a will • Advising clients about a will very often involves a discussion of these will substitutes and their implications,

benefits and drawbacks, depending on the particularities of the situation • Fact that rules applying to wills do not apply to these substitutes often perceived as a major plus! No need for

probate, for example o There are benefits to avoid wills o But a testamentary disposition (doesn’t matter what it calls itself) à property will go to the estate

Gift inter vivos • Must be intention to give absolutely while living (animus donandi) • Gift to B on death of A may be considered a testamentary gift, and so subject to rules applying to wills (including

rules re undue influence, for example, power of attorney, and most significantly whether property enters estate and is therefore subject to probate and debts of the estate)

o Special rules around undue influence that are different between Gift intervivos and wills o POA rules are different, and whether the property is put into the estate

• “It is undoubted law that whatever may be the form of a duly executed instrument, if the person executing it intends that it shall not take effect until after his death and it is dependent on his death for its vigour and effect, it is testamentary” Cock v. Cooke (1866)

• Gift mortis causa is made in contemplation of donor’s death, and takes place immediately although donor can revoke while alive (meaning gift not absolute) and recovery from peril will revoke

o Strange old rule, not absolute, and it has to be immediate peril (if you don’t die the gift is revoked) • Remainder interest: T may convey Blackacre to himself for life (T has a life estate), remainder to A and B-‐ A and

B then have vested remainder interests (meaning T cannot revoke them!)

Intent determinative (as Cock v Cooke states) • So if X transfers “inter vivos gift” of Blackacre to Y, but continues to treat Blackacre entirely as his own property

with delivery only (if ever) upon death, “gift” may be treated as truly testamentary in nature • Trust may avoid this problem – X transfers Blackacre to W in trust for X for life, with remainder to X’s children

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• Creation of trust not testamentary, because X has given up control of Blackacre-‐ interests not arising on death of X (X and children on death of X)

• The power to revoke (if A happens, return to X) does not make the trust testamentary – title passed when the trust was created (even if it could be recalled); it does not pass on death of X

o Practical outcome (reality) but then the abstract interests

Joint interests: joint tenancy • Encountered this in Houston v Houston-‐ question was whether the person holding power of attorney was

entitled to sever the joint tenancy (which would have meant Blackacre passed to wife on T’s death, without passing into estate), thereby ensuring that T’s share of Blackacre did form part of T’s estate, to be dispersed according to his will (benefitting children)

o Right of survivorship wife gets it, and it does not go into the estate o If he seceded in severing it than Dr. H half of the property goes to the estate o The severance was successful o Favoured mode instead of will à especially when people don’t have a lot of assets

• It may be however, where the joint tenancy has been created for “convenience” only, that the court will look behind it to find a resulting trust-‐ what happens in that event?

o Legal interest for someone else (it’s a practical component in transferring) stops gaps in title o Brings up the presumption of advancement: There is one exception that we assume ppl aren’t giving

away things for nothing, fathers (now includes mothers) will give gratuitously to their children Joint interests: joint bank account with right of survivorship (resulting trust and the presumption of advancement)

• Joint bank accounts (with right of survivorship): bank holds legal title; A (the depositor) and B (non-‐depositor) have a legal right to demand withdrawl; the survivor has the legal right (vested on opening account and so not testamentary) to withdraw the remaining balance of the death of the other

• But what are the equitable interests created between A and B (the beneficial entitlement to the funds)? Whether B takes a beneficial interest during the life of A depends on A’s intention

• Equitable presumption of resulting of resulting trust-‐ presume that A does not intend to gratuitously to give money away, but intends to hold a resulting trust (retain beneficial interest)

• Exception-‐ presumption of advancement (presume that parents do intend to do this for their children); Pecore v Pecore altered the traditional rule by saying this presumption now applied to a gratuitous transfer to a minor child only (and not an adult) with no gender distinction

• So: a joint account is a will alternative, and donor can revoke it by withdrawing all funds (if non-‐donor account holder did this they would run foul of resulting trust) à with right of survivorship

o You have to know the implications of it o Bank holds the legal title. A is the depositor. B is put on as a joint account holder. AB have a legal right to

demand withdrawal. The survivor has the right to withdrawal the remaining balance on the death of the other. They vest immediately.

o What about the equitable interest? They are distributed otherwise. The depositor has the equitable interest à how does the resulting trust fit into this? Don’t intend to give the beneficial interest but just to hold it in trust.

o Presumption of advancement: parents do give things gratuitously to their children. But Pecore v Pecore says this isn’t the case because the modern use of this is to make things easier to manage elderly parents bills etc…, and it keeps the money out of the estate

o Presumption of advancement in this case is mostly for minor children not adults o It is useful to have a certain amount of money to cover the costs of death ie: solicitor fees, funeral

costs… • The resulting trust protects the depositer à many don’t know this

Life insurance and benefit plans • Also avoids the estate, thereby avoiding probate, going straight to the named beneficiary (or the beneficiary

could also be the estate, or a trustee-‐ if you have a minor child, for example)

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• Avoiding the estate, and probate, one may also avoid creditors • Benefit plans-‐ WESA, Part 5 • Question of whether beneficiary designation is testamentary in nature has arisen (re rules applying to undue

influence-‐ no, Turner Estate v Bezanson; re whether power of attorney can effect a change in designation-‐ yes, so he can’t do it, Desharnatis v Toronto Domision Bank)

o Is it a will in sheep’s clothing? o Appointment a beneficiary is a testamentary act; something a POA cannot do

Legislation Wills Estates & Succession Act, SBC 2009, c. 3, Part 4

Cases

Moiny Estate (Re), 2001 BCCA 100 FACTS: Man died without a proper will. He had no survivors but had a distant aunt, who he was survived by. He had written a will in a military document that had bequeathed his estate to his friend. But the document was not entirely clear. ISSUE: Did the deceased die testate or intestate and, if the former, which instrument is his last will? And what does will mean? Is the wording dispositive? RATIO: Look to the overall wishes of the testator (Golden Rule) ANALYSIS:

• A will is a disposition or declaration by which the person making it provides for the distribution or administration of property after his death

• No survivors who can claim under the Wills Variation Act • A surviving Aunt is entitled under the estate administration Act (If intestate) • Golden rule: read a will to lead to a testacy not intestacy

CONCLUSION: Appeal Dismissed.

Wonnacott v. Loewen, 1990 FACTS: L is in a divorce and moves in with W. W dies à they have created an escrow agreement to provide for her in case of his death, it was done in a way to not meddle with her divorce settlement. Ws son believes the agreements were testamentary dispositions and invalid because of failure to comply with the Wills Act. ISSUE: Whether an agreement was a testamentary disposition and thereby invalid because of its failure to comply with the Wills Act RSB 1979, c. 434 RATIO: When the situation surrounding agreements look like a will but the testator has clear intentions in the immediate future for the property to pass, it is not a will. ANALYSIS:

-‐ The escrow provision was machinery for carrying out the transfer for immediate joint tenancy -‐ To examine the transfer in isolation the document would be considered testamentary -‐ But within the context of the situation it makes Mr Wonnacott’s intentions clear and within instruments that

form a will -‐ She had the right to live there immediately -‐ He wasn’t going to revoke it because of the fee of $60,000 penalty if it was revoked -‐ Bespoke à tailored made to fit your own idiosyncrasies

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CONCLUSION: Appeal dismissed

The Will-‐Maker -‐ Age, Capacity, Intent Requirements derive from…

-‐ More general nature of a will as a transaction (so rules regarding capacity required to enter into binding transactions apply, in special way to wills)

-‐ Ultimately, all about the ability to form a true, free intent to make will in question; intent requires the capacity, or mental ability, to form that intent, free from undue influence and insane delusions

o Language can be a bit challenging here o Sometimes capacity is used in a broad sense or a narrow sense

-‐ Age ultimately a question of mental capacity-‐ the age at which one is understood to have the capacity to make a will

o Special aspects and rules that attach to it -‐ Exception: special rules about the armed forces

o Contained in the legislation -‐ Looking at mental capacity in an omnibus category:

o Confusing but a sub-‐category is “mental capacity” o Structure is similar to negligence (the breach is call negligence – small “n” negligence, but the broader

tort is “Negligence” o Any one of them, if established, will be fatal to the claim that they had the necessary capacity o In many cases all of these issues will be engaged (but not always à there is a relationship between them

all) § Cognitive capacity (simple ability to comprehend the nature of the effect of the will) § Undue Influence à different and distinct, but can be factually related § Insane Delusions à distinct sub category of mental capacity (specific rules are attached to this)

o We must understand these as individual topics (different rules apply) but they are inter-‐related Relationship of will making capacity to probate

-‐ In order to establish the validity of the will (the process known as probate), which will be necessary for the dispersal of assets according to the will, the will maker must have been capable of making that will with no impediment

-‐ If you are an administrator and you want the will to go to probate do you have to show that they indeed had the capacity to make one?

o No, it’s a presumption that a will-‐maker had the necessary capacity -‐ The will-‐maker is (generally) presumed to have been capable (which means this does not need to be

affirmatively established by the person seeking probate) if the will meets formal requirements, but his presumption can be challenged, or displaced through “suspicious circumstances” (discussed in more detail later)

o The relationship between undue influence has some importance significance o “Undue Influence floats around like a rogue” o Vout v Hay o WESA has done some interesting things with it

-‐ The onus is on the person “proving” the will (seeking to establish that the will is valid), and if the presumption is

displaced, he or she must establish that the will-‐maker was capable of making the will with no impediment Issues relevant to intent (person “proving” may need to prove/ disprove):

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-‐ Mental capacity (in this case, testamentary capacity, or the capacity to make a will) – the lack of which may be referred to as “general insanity”. Can come about through multiple sources (disability, dementia, NOT mere age) – refers to some cognitive state going to the ability to understand

o Cognitive ability to comprehend the nature of the transaction o General insanity doesn’t capture the nature of it

-‐ The underlying condition itself is not determinative – key question is the testator’s ability to understand and appreciate this task

o i.e. diagnosis of dementia does not mean that automatically they don’t have the capability to write a will -‐ “Insane delusions” a particular condition that may affect a particular bequests (one may, generally speaking, be

capable of making a will yet be affected by “insane delusions” that impair one’s ability to form true intent) o When something s divorced from practical reality i.e. my son is the illegitimate child of Gene Simmons o Special insane delusion on specific request à then that part of the will is tainted, but the rest may be

valid o The insane delusion has to effect the will (not just one that it out there)

-‐ Undue influence may also vitiate the person’s ability to exercise their free will o Important concept o Even if someone is mentally capable (have capacity and don’t have delusion) o They may be subject to the influence of another, that the decisions they make cannot be seen as made

freely on their own o Presumption:

§ Certain categories of relationship we presume that it influences another § Every gift given has happened as a result of influence § Lawyer/ Client, Doctor/ Patient, Adult/ Child, Adult / Adult Child à not automatic but a “special

tenderness” § Class A (relationships that give rise on presumption) § Class B relationships are ones that don’t automatically give rise but depending on the

circumstances of the case, they could § SCC looked at these relationships came up with a phrase (Geffen v Goodman Estate)

Relationships… § What would be a good way to displace the presumption?

• Independent legal advice, -‐ Mistake re contents or inability to know and appreciate the contents of a will (there one cannot be considered

to have truly intent the contents) Knowledge and approval

-‐ A person may be mentally capable of understanding the nature and effect of a will and its contents, yet under the circumstances not know or approve them

-‐ The example given in your text (Russell v Fraser) concerns a testatrix who made a will (as the suggestion of her bank manager) leaving the “residue” of her estate to him

-‐ Nobody (this includes the solicitor who prepared the will) discussed the magnitude of the residue with her, and there is no indication that she appreciated it (although had this been discussed and explained, there is no indication that she would have been incapable of understanding it)

-‐ Therefore, while the rest of the will was valid, this clause was excised-‐ T was not capable of disposing of her residue is she did not know what it was!

Mental capacity

-‐ The requirement of mental capacity means that a person must be mentally capable of understanding and appreciating the content, nature, and effects of a will – it is this relationship to the transaction in questions (making a will) that goes to the ability of a person to make a will, not his or her “insanity” per se

-‐ In this sense the requirement of sufficient mental capacity to make a will is like the requirement of sufficient mental capacity in other contexts – to sell land, enter a contract, get marries, separate or divorce

o Will is the highest! Marriage is the lowest (traditionally)

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o The hierarchy of capacity is a little old fashioned o Medical world does not like this it is “Decision-‐specific” capacity

-‐ The kind and quality (or “degree”) of mental capacity required to do these things, respectively, depends on how complex they are

-‐ Making a will traditionally required as among the most complex and, relatively, requires a high degree Mental capacity – assessment

-‐ Whether or not an individual possesses the required capacity is (often) not obvious – not established by disorder alone (and so one may have a diagnosis of dementia and yet be capable of making a will)

-‐ The lawyer the “front line” assessor – important to satisfy yourself that a person making a will is mentally competent to do so (and if she is not, it is your responsibility to so advise); important to engage, take careful notes

-‐ Medical evidence is persuasive, but not necessary, the question of capacity, “so far as evidence based on observation and experience is concerned, may be answered as well by laymen of good sense as by doctors” (Kournossoff Estate v Chapman 2000 BCSC 1195)

o Lawyers, notaries, ppl around the testator who knew them well -‐ Relevant date is date if instruction – may be different from execution/ signing ( so long as T knows this is his will,

and that he is executing it) o Important to engage the client, about what their estate is, what beneficiaries and why?, are there any

not included o If the client is brought by a family member that is bound to gain by a change o Assessment is important by a doctor o It helps if you have a good relationship with your client

-‐ Ask questions that relate to the will, family, relationships etc… What must be understood (requiring mental capacity to so understand) – Banks v Goodfellow “an understanding of the nature of the business [will-‐making] in which he is engaged, a recollection of the property he means to dispose of [need not be precise], the persons who are the object of his bounty [the extent of what he is giving to each beneficiary and the nature of the claims of others whom he is excluding], and the manner in which it is to be distributed between them. It is not necessary that he should view his will with the eye of a lawyer, and comprehend its provisions in legal form. It is sufficient if he has such a mind and a memory as will enable him to understand the elements of which is it composed, and the disposition of his property in its simple forms” Insane delusions distinguished – Banks v Goodfellow “It is essential… that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing, shall be able to understand and comprehend the claims to which he ought to give effect [mental capacity]: and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or present the exercise of his natural faculties-‐ that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”[insane delusion] “Human instincts and affections” may become perverted by mental disease but also “insane suspicion or aversion”-‐ insane delusion relevant only to extent that it affects a particular disposition I.E. my son only does nice things because he is motivated by getting my money. What happens when this has no bearing on reality, and it isn’t connected to any mental illness. Insane delusions

-‐ Belief in a state of facts which are not true – may be held despite fact that T is generally sane (has mental capacity to understand the nature and content of her will)

-‐ Only if the delusion affects the dispositions made in the will it invalidate the will, or a portion of it (the portion affected by the delusion); so in Banks v Goodfellow, T suffered from insane delusions about being persecuted by

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Featherstone Alexander and demons, but his will left his property to a niece who lived with him, and of whom he was evidently very fond – the will was therefore rational (Sounds, apparent reasons existed for it) and untainted by his peculiar delusions

“Suspicious circumstances” and the burden of proof

-‐ Remember, the onus of poving that the will is good and valid (and that therefore distribution according to the will can take place) is on the person “proving” the will (the executor, the person administering the will)

-‐ However, ordinarily (absent “suspicious circumstances”), remember the presumption that if the will complies with formal requirements the will maker was competent to make it (and the will can be probated without a trial)-‐ suspicious circumstances “spend” or displace that presumption

-‐ If a party raises a genuine issue about capacity, insane delusions, or undue influence [referred to in your text with general term “capacity” ], or if the circumstances suggest a lack of omnibus capacity or another problem such as lack of knowledge about the contents of the will, capacity must be proved at trial

-‐ Issue must be genuine-‐ and on an application that a will be proved “in solemn form” (at trial) the application judge can dismiss it for lack of a triable issue and give summary judgment (where there is ample evidence of capacity and no credible evidence of undue influence); or judge might grant the application because there is a triable issue

-‐ Suspicious circumstances do not “create a general miasma of suspicion that something unsavoury may have occurred, but [are] rather circumstances which create a specific and founded suspicion that the testator may not have known and approved of the contents of the will”

-‐ May be circumstances surrounding preparation of the will -‐ May be circumstances calling into question the capacity of T to make the will -‐ Or, may be circumstances suggesting that the free will of T to make the will was overborne (undue influence) -‐ Barry v Butlin-‐ suspicious circumstances = solicitor preparing the will a beneficiary under it (1/4 of estate);

residue to his friend Mr B, sole executor; son took nothing. If, as here, a party writes or prepares a will under which he takes a benefit” that is a circumstance that “ought generally to excite the suspicion of the Court”-‐ but that suspicion may be satisfied, as here, by evidence of capacity and lack of insane delusions or undue influence

Undue Influence has to be proved by the person asserting it.

-‐ Traditional rule that those attacking the will on the basis of undue influence must prove it (as opposed to propounder proving, but having benefit of a presumption of capacity in absence of suspicious circumstances)

-‐ Undue influence an equitable doctrine-‐ that the will of T (or a donor, in other circumstances) was overborne by another such that the decision in question was not, truly and freely, his own; factually, issues of mental capacity, undue influence, and knowledge are often intertwined (a factor relevant to one will be relevant to another)

-‐ Two species of undue influence-‐ “actual” and “presumed” (in relationships giving rise to a presumption of undue influence); two species of presumed (some relationships always give rise to a presumption; in others, the dynamics of the particular relationship give rise to the presumption)

• Always actual undue influence (never presumed, unlike gift inter vivos) • If the onus was on the executor to disprove undue influence, in a way it would create a presumed undue

influence… this is one of the problems and why the person arguing undue influence must affirmatively prove it

-‐ how does this related to “suspicious circumstances” and their general effect on the burden of proof? How does the traditional rule re undue influence interact with the doctrine of suspicious circumstances? Do suspicious circumstances work to require the propounder of the will to establish that the will was freely made without undue influence?

-‐ Undue influence does not put the onus onto the executor to disprove but because of the traditionally rule the person who charges undue influence has to prove it

Suspicious circumstance and the burden of proof: undue influence

-‐ No-‐ Vout v Hay says the traditional rule is “firmly entrenched” that undue influence must be raised and proved by the attacker, and there it remains; how does this relate to the presumption of undue influence?

-‐ Vout (the executor) does not need to disprove undue influence-‐ Hay must prove it

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-‐ The trial judge failed to deal properly with the effect of suspicious circumstances, but he did carefully consider the evidence and conclude that T was capable, and made the will he wanted to, without undue influence from V

-‐ Consider-‐ Banton v Banton, page 228 -‐ S. 52 WESA

Fraud and mistake

-‐ Fraud if T was induced to make the will through fraud, it is void (goes to true and free intent) -‐ Mistake – a provision is not valid if made by mistake (going to T’s knowledge and approval of the contents of a

will -‐ In the following categories of mistake:

o Where there is a patent mistake (T made an error about an existing fact and relied on that mistaken belief) on the face of the will, and

o Where a drafting error has occurred (court will exercise its jurisdiction to strike out words wrongly inserted

o Where the testator executed the wrong document (ie Husband/ wife signing each other’s wills) -‐ S. 59 WESA Rectification of will

o Gives the will life!

Legislation:

Wills Estates & Succession Act, s. 36 Who can make a will

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

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

*WESA lowered the age requirement

Exception (age) 38 (1) A member of the Canadian Forces while placed on active service under the National Defence Act (Canada), or a member of the naval, land or air force of any member of the British Commonwealth of Nations or any ally of Canada while on active service may, regardless of his or her age, make a gift of property by will in writing, signed by the will-‐maker at its end or by some other person in the presence of and by the direction of the will-‐maker. (2) If the will is signed by the will-‐maker, there is no need for a witness to be present to witness or to sign the will as a witness. (3) If the will is signed by another person, the signature of that other person must be witnessed by the signature of at least one person, who must sign the will in the presence of the will-‐maker and of that other person. WESA alters the traditional rule re the presumption of undue influence!

Introducing a statutory presumption of undue influence

Undue influence

52 In a proceeding, if a person claims that a will or any provision of it resulted from another person

(a) being in a position where the potential for dependence or domination of the will-‐maker was present, and

(b) using that position to unduly influence the will-‐maker to make the will or the provision of it that is challenged,

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and establishes that the other person was in a position where the potential for dependence or domination of the will-‐maker was present, the party seeking to defend the will or the provision of it that is challenged or to uphold the gift has the onus of establishing that the person in the position where the potential for dependence or domination of the will-‐maker was present did not exercise undue influence over the will-‐maker with respect to the will or the provision of it that is challenged.

Rectification of will

59 (1) On application for rectification of a will, the court, sitting as a court of construction or as a court of probate, may order that the will be rectified if the court determines that the will fails to carry out the will-‐maker's intentions because of

• (a) an error arising from an accidental slip or omission, • (b) a misunderstanding of the will-‐maker's instructions, or • (c) a failure to carry out the will-‐maker's instructions.

(2) Extrinsic evidence, including evidence of the will-‐maker's intent, is admissible to prove the existence of a circumstance described in subsection (1).

(3) An application for rectification of a will must be made no later than 180 days from the date the representation grant is issued unless the court grants leave to make an application after that date.

(4) If the court grants leave to make an application for rectification of a will after 180 days from the date the representation grant is issued, a personal representative who distributes any part of the estate to which entitlement is subsequently affected by rectification is not liable if, in reasonable reliance on the will, the distribution is made

• (a) after 180 days from the date the representation grant is issued, and • (b) before the notice of the application for rectification is delivered to the personal representative.

(5) Subsection (4) does not affect the right of any person to recover from a beneficiary any part of the estate distributed in the circumstances described in that subsection.

Cases:

Legier v Poirier FACTS: Hector moves in and keeps his mom under watch/confinement. Only access to her was through him. Testimony of the grandniece showed the diminished capacity of the WM, and the circumstances that led to will.

-‐ 1941 will made specific bequests and residue to the son -‐ 1939 will made specific bequests to son and others; residue to grand-‐daughter -‐ In 1935/ 36 T had conveyed land to son -‐ T’s grandchildren assert that the 1941 will is invalid because T was not competent, at the time, to make it

ISSUES: Whether or not she had capacity in the 1941 will? DECSIONS: She did not have capacity APPLICATION

-‐ Practice Point

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-‐ Explain Why (if the client wants to do something outside of the regular expectations of a will or has special distributions)

-‐ In the Will -‐ In a letter (ensure that the letter is signed by the client or it will be tossed. Make sure that clients know this) -‐ In a statutory Declaration -‐ In these circumstance, the onus of showing the document as the will of a free and capable person had not been

meet -‐ What matters is T’s ability to understand the essential elements of will making-‐ Mrs. P may have been able to

converse rationally, but “the competency of the mind must be judged of by the nature of the act to be done, and from a consideration of all the circumstances of the case.”

-‐ So T may have been able to provide the date and name the Prime Minister of Canada, but this is not sufficient evidence of her capability of understanding the subject in question-‐ her will, and the disposition of property set out in it

-‐ Re Davis (197)-‐ is T’s last will valid? Why/why not? What evidence does the court consider relevant to this question? What is the basis for the outcome in this case?

o Widow had a conditioned that changed her personality and changed her will to leave everything to a non-‐existent society

o It was dismissed as being invalid because she was found to not be competent o There are a lot of facts that are irrelevant to the will

Sharp v Adam ISSUE: Mental capacity/ability to understand or “insane delusions” affecting dispositions so as to alter dispositions that would be made in the absence of those delusions? *Insane delusions need not have a cognitive basis (sometimes they do, but it is not necessary), bizarre suspicious ANALYSIS:

-‐ The act that a testator excluded someone who they would normally not exclude is not an insane moment, as long as there are valid reasons for exclusion there is no issue

-‐ “The trial judge thought it likely that there was a temporary poisoning of the testator’s natural affection for his daughters, or a perversion of his sense of right”

-‐ “in our view, the 4th element in Banks v Goodfellow-‐ “poison his affections, pervert his sense of right or pervert the exercise of his natural faculties”, “no insane delusions”… is as much concerned with mood as with cognition”-‐ goes to qualitative distinction between insane delusions and general question of mental capacity (“general insanity”)

-‐ Note Kurtz and Nicholson-‐ solicitor took great care in establishing (general capacity), noting that son excluded, and taking great care to ensure that he discuss (valid) reasons for this exclusion with T

O’Neil v Royal Trust Co FACTS:

-‐ Final change to will made at a time when T confined to a sanitarium, having suffered what appears to be a nervous breakdown (she believed she could smell gas and feared her food was being poisoned, and experienced periodic hallucinations and delusions)

-‐ She was declared mentally incapable of managing her property -‐ However, the solicitor preparing this last will appears to have been careful, and questioned T about her property

and previous wills, and reasons for change; T’s psychiatrist also believed her capable of making a will • The evidence comes together • Lawyer went to great pains to show that she was capable

-‐ “The possession of [the delusions and hallucinations possessed by T] do not invalidate a will unless they have brought about the will or constituted an actual and impelling influence in the making thereof”; “it is [also]

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possible that a person may conduct herself in a very rational manner, even making a rational will, and still be motivated by insane delusions”-‐ the question is always whether, beneath the surface, the will is the true and free intent of T

ANALYSIS:

-‐ An opinion might be unkind, and not one most people would have (like disinheriting your family because you don’t like them) and not be an insane delusion

-‐ Therefore, the explanation provided for such an opinion is important (if I just don’t like someone, its my free and true intent to disinherit them)

-‐ Line not always obvious – hatred of ethnic group (Norwegians in this case) motivating T to cut her son out of her will (he married a Norwegian), an “insane delusion” such as to invalidate? (Dynna v Grant)

-‐ No: it was simply and “eccentricity of character” and not an “insane delusion”

Vout v Hay FACTS:

-‐ T’s new will appointed SV as executor and major beneficiary; giving her one of T’s farms as beneficiary (a nephew taking another farm), and several small specific $ bequests

-‐ SV a young lay, unrelated-‐ a friend -‐ Previous will (made 20 years prior) left everything equally to T’s brother and sister -‐ Will made in office of SVs parents lawyer-‐ she says she simply recommended lawyer, not involved in

instructions, although conflicting evidence that SV was present when will drawn, discussing contents with him (“what we agreed”)

-‐ The circumstances surrounding the execution of the will were sufficiently “suspicious” to require explanation, evidence establishing the T was mentally capable of making the dispositions in his will

-‐ Sufficiently suspicious that it required evidence ISSUE: Mental capacity? Suspicious circumstances? And undue influence?

Ouderkirk v. Ouderkirk, [1936] S.C.R. 619 FACTS:

-‐ Testator was under delusions as to the character and conduct of his wife -‐ Entertaining men for immoral purposes -‐ Appeal was allowed and the judgement of the Surrogate Court Judge restored à to not allow the will into

probate ISSUE: Whether these delusions “were of such a character that they could not reasonably be supposed to affect the disposition of his property.”

-‐ Are they insane? And do they affect the disposition? ANALYSIS:

-‐ Banks v Goodfellow o Comprehend and appreciate the claims to which he ought to give effect o No disorder of the mind shall poison the affections o Pervert the exercise of his natural faculties o If this is the case the testamentary powers fail

-‐ Skinner v Farquharson o Earlier will testator had provided for his wife and son o Then he accused his wife and son of an abominable crime (which was untrue) o Reduced the provision for the wife but overall the will was inconsistent with the belief that when it was

executed the testator was influenced by the insane delusion -‐ Ouderkirk

o Delusion were present on the date of making the will and they did affect the testator’s mind

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o There was evidence from outsiders that he “seemed” normal but this doesn’t outweigh the Dr. evidence of the insane delusions weeks before the preparation of the will

o Taking the photo off the wall o Not allowing her to be buried near him

CONCLUSION: The delusions did affect the disposition and the will was not submitted to probate.

James v. Field, 2001 BCCA 267 FACTS: Mr. Field married to Cynthia Field (Second wife). First wife divorced years before and had several children (grandchildren). Mr. Field had a stroke in 1990 and Cynthia and him changed his will in March. This dramatically changed the bequests to his children from his first marriage. Cynthia went on holiday to visit her sister in England and Mr. Field’s daughter moved in to take care of him. And during that time he made another will. ISSUE: Did Mr. Field have testamentary capacity at the time he made his will? Was the law in the trial not applied correctly?

-‐ Misdirected himself as to the proper test of testamentary capacity; -‐ Erred by failing to consider all of the circumstances calling into question the testator's capacity; -‐ Erred in that he failed to consider or to apply the proper tests for undue influence; -‐ Failed to consider or to give due regard to suspicious circumstances which should have been considered in

relation to the issue of undue influence; -‐ Erred in placing the onus of proving undue influence on the defendants; -‐ Erred in refusing to accept evidence that was relevant and admissible and which bore directly on the question of

undue influence; -‐ In the alternative, the learned trial judge erred in ordering the defendants to pay costs.

Dissenting Opinion Test for Capacity:

-‐ The following passage in Banks v. Goodfellow, supra, at 567, is frequently quoted as embodying the applicable test:

-‐ [The testator] ought to be capable of making his will with an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, of the persons who are the objects of his bounty, and the manner in which it is to be distributed between them. It is not necessary that he should view his will with the eye of a lawyer, and comprehend its provisions in their legal form. It is sufficient if he has such a mind and memory as will enable him to understand the elements of which it is composed, and the disposition of his property in its simple forms.

Undue Influence -‐ Craig v. Lamoureux (1919), [1920] A.C. 349 (P.C.) at 357, 50 D.L.R. 10, wherein he stated: -‐ Undue influence, in order to render a will void, must be an influence which can justly be described by a person

looking at the matter judicially to have caused the execution of a paper pretending to express a testator's mind, but which really does not express his mind, but something else which he did not really mean.

Suspicious circumstances may be raised by: 1. Circumstances surrounding the preparation of the will; 2. Circumstances tending to call into question the capacity of the testator; or 3. Circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud: Vout v. Hay, supra, at 439.

-‐ Trial Judge weighted the evidence of laypeople equally to the observations of experts in regards to testamentary capacity (Spence v Price) upholds this line of thought

-‐ Appellants argue that the trial judge: reduced the test of capacity to a largely mechanical exercise, didn’t properly weigh all the evidence, including evidence of suspicious circumstances, wrongly placed the burden of proof on them in relation to the issue of undue influence

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-‐ The judge cannot agree with any of these submissions -‐ Appeal must be dismissed

Judgement from: Justice Prouse and Finch

-‐ Trial judge erred in excluding relevant and potentially critical evidence directly relating to the issue of whether the testator had capacity

-‐ Order that the March 26th Will and the August 22nd will should be heard together in a new trial -‐ Issue was not hearing what Dr. Carroll’s opinion was of a “simple will”

Brydon v. Malamas, 2008 BCSC 749 “Liberal dashings of psychotic drama” FACTS: ISSUE: Challenge to the validity of the will made by Stella Sirgianidis, two bank account transfers an RRSP beneficiary designation They should be set aside because:

-‐ At the time she executed the transfers, beneficiary designation and the will, Stella Sirgianidis lacked the mental capacity required by law to transfer real or personal property, or to make a will; and

-‐ That Stella Sirgianidis executed the said documents as a result of undue influence exerted upon her by the defendant Mary Malamas, and not of her own free will.

ANALYSIS: Test for Capacity [47] In order to establish testamentary capacity, the proponents of a will (in this case the defendants) must prove that, at the time the testator made his or her will:

-‐ He or she signed the will, in compliance with the legislative requirements for lawful execution; the testator knew and approved of the contents of the will, before signing it; and

-‐ The testator had the testamentary capacity required by law to make a valid will.

See Vout v. Hay, [1995] 2 S.C.R. 876 at paragraph 20.In my opinion, the defendants must prove that Stella did possess testamentary capacity, to a much higher degree of probability within the civil standard, than a mere 51% probability.

Royal Trust Co. v. Ford [1971] S.C.R. 831; 20 D.L.R. (3d) 348,

The propounder of a will must prove by a preponderance of evidence that the testator was competent in every respect, and this includes negativing the existence of any insane delusions. On a consideration of all the evidence and in the light of dealing with an otherwise thoroughly competent testator, the trial judge rejected the contention that a delusion existed. He found that the testator really believed the son to be legitimate even though he expressed doubt. Although the 1933 will was largely in the son’s favour, a separation for 31 years prior to the 1958 will and the reception of bad reports about his son were sufficient reason for a sane testator to change his will. Furthermore, a legacy of $50,000 was inconsistent with a testator having a poisoned mind resulting in the complete rejection of his son, and consistent only with belief in his legitimacy or, at most, doubt. Whether the testator’s suspicions were reasonable or not, they were such as a sane man could hold.

Skinner v. Farquharson (1902) 32 S.C.R. 58,

...a lucid interval is not the mere absence of the subject of the delusion from the mind. By a lucid interval is not meant a concealment of delusions, but their total absence, their non-‐existence in all circumstances and a recovery from the disease and a subsequent relapse.

Undue influence Geffen v. Goodman Estate [1991] 2 S.C.R. 353. In order to establish undue influence, the person who alleges it must

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prove on the balance of probabilities that a testator (or donor) was influenced by another person to such a degree that the testator was coerced into doing what that other person wanted, against the will of the testator.

-‐ Potential for undue influence between the relationship of Mary and Stella -‐ But really just as probable the other way -‐ Undue influence has not been proved às needs to be to a percentage of 51%

CONCLUSION: Finding for plaintiff and restoration of the 1995 will. Class Notes:

-‐ PM (grand niece/ god-‐daughter of SS, grand daughter of SS’s sister Margaret), challenges validity of : o 2004 will made by SS (T) o validity of bank account transfer made (inter vivos) by SS o (inter-‐vivos) transfer of West 8th property

-‐ on the basis of: o lack of mental capacity required to make inter vivos transfers and lack of mental capacity required to

make a will o undue influence to make both transfers and will o M (SS’s sister) and J (M’s son) deny the above, and seek a declaration that the will is valid; if SS found to

lack mental capacity, her 1995 should govern distribution of estate. M, J, and J’s brother S are executors of 2004 will.

o Presumptions that the will was not made under undue influence can be displaced under “suspicious circumstances”

Wills

-‐ 1983 Will: PM main beneficiary (named bequests and 50% residue) -‐ 1995 Will: PM still main beneficiary (Still had 50% of residue), but named bequests to others, interest in Vine

Street property (specific bequest in 1983 will) not mentioned in will; title to Vine Street transferred inter vivos to PM before the 1995 will drawn (PM’s mother Margaret had owned property with SS)

-‐ 2004 Will: PM excluded, Mary now the main beneficiary (including all residue) -‐ Clearly dramatic differences in these wills and this should be a trigger that asks questions

Events of October 2004

-‐ SS’s psychiatric difficulties become pronounced; committed to hospital under Mental Health Act; Margaret passes away (SS and Margaret had been close)

-‐ SS’s sister M moves in with SS; evidence that M complaining that M controlling everything, making decisions for SS, making SS live in basement

-‐ Dr. B diagnoses SS with leukemia; SS refuses to come to hospital for treatment; refusing anti-‐psychotic medicine, seems to be having psychotic episode – SS is taken to hospital under MHA – “for reasons that are not clear,” SS released to M the next day (Oct. 9)

-‐ Oct 12, SS in company of M, goes to bank and transfers bank accounts into joint names with herself and M and J. Later that day, again committed to hospital under MHA to receive treatment for leukemia

-‐ Oct 12 (in hospital) S speaks to notary BG, transfer joint interest in her property at 2555 West 8th to sister M. Instructs BG to prepare a will. BG not aware of SS’s history of mental illness. BG returns to hospital on Oct. 19; Stella executes will, GB and wife sign as witnesses.

-‐ Oct 22: PM learns that SS in hospital; goes to see her – SS angry, says, “You’re selling the house!” (Referring to the Vine Street property transferred to PM in 1995)

-‐ October 30, 2004: SS passes away Mental capacity

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-‐ Will met formal requirements; appeared to know and prove contents of her will; law presumed she had required mental capacity unless suspicious circumstances “spends” the presumption, leaving onus on the proponents (M and J, as executors of the 2004 will) to prove testamentary capacity

-‐ Suspicious circumstances here? Yes – see page 19 – 21; how strong is the suspicion? How credible are PM’s assertions regarding the circumstances? Detailed investigation of the facts required

-‐ Court concludes PMs is credible; M and J, less so; strong suspicion around M and J’s account re SS’s feeling towards PM, suspicion M and J reckless about SS’s mental illness and about not informing PM about SS’s situation

-‐ Strength of suspicion/ suspicious circumstances – relationship to the burden of proof?

-‐ Detailed examination of all the stories Suspicious circumstance and the burden of proof?

-‐ PM having proved circumstance creating a very strong suspicion that SS did not possess testamentary capacity at the time of the transactions, M and J must prove that she did possess testamentary capacity to a much higher degree

-‐ The burden of proof remains the balance of probabilities, but the evidence must be scrutinized in accordance with the gravity of the suspicion (Vout v Hay)

-‐ FH v McDougall, “I think it is time to say, once and for all in Canada, that there is only one civil standard of proof at common law and that is proof on a balance of probabilities. Of course, context is all important and a judge should not be unmindful, where appropriate, of inherent probabilities or improbabilities or the seriousness of the allegations or consequences. However, these considerations do not change the standard of proof”

-‐ Miller v Turney “the presence of suspicious circumstances does not change the standard of proof, but they may serve to make a proposition inherently either more or less probable” [meaning that inherent improbability created by highly suspicious circumstanced must be over borne]

Conclusion re will

-‐ Insufficient mental capacity to make the 2004 will; dispositions tainted by “insane delusion” re PM’s supposed promise not to sell the Vine Street house; in any event, mental illness by that time indicated impaired mental capacity

-‐ Undue influence not established RE inter vivos gifts (transfer of West 8th property, bank accounts?)

-‐ Impugned transactions here testamentary in nature; the test for capacity, whether it be for an inter vivos gift or testamentary gift, is therefore the same (Banks v Goodfellow, which includes the concept of insane delusions) and suspicious circumstances is the same

o What a testator needs to understand about the will o Who the likely beneficiaries are o Make a sensible rationality based decision on the dispositions

-‐ Insane delusion re Vine Street house also taints these transaction -‐ Issue revisited in RE Elsie Jones

Technical Requirements -‐ Execution, witnesses, attestation & drugstore wills Formality as a requirement for validity

-‐ One requirement of a valid will is that the will-‐maker be capable of making the will -‐ Another requirement is that the will comply with certain formalities as set out in the legislation: a will must be in

writing, meet the signature requirements set out in the legislation, and be attested to by 2 witnesses

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-‐ Remember, formal compliance raises a presumption that the will-‐maker was competent (which can be displaced by suspicious circumstances) – so in the circumstance of the cases, we will see how these issues may be intertwined

-‐ WESA introduces a greater flexibility for the courts to find that a will is valid in circumstances where formal requirements have not been met, where the intention of T is clear (objective being to give effect to T’s intentions)

o S. 58 o Contentious issue when WESA was being drafted

-‐ Indian Act provisions have always been more flexible regarding formal requirements -‐ Formal requirement also relaxed for will made by member of the armed forced (“privileged wills”)

Statutory requirements 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 (!) is invalid unless Signature placements and witnesses Clarification of doubt about signature placements 39 (1) WESA section response to case law dealing with “foibles” of T who may not follow previous requirements that signature beat the end (consider reasons for such a requirement?) Witnesses to wills 40 (1) (2) (3)

-‐ Case law arising when ppl have done a “do-‐it yourself approach” -‐ Witness or witness spouse cannot take a gift -‐ WESA has changed this slightly so you can take a gift as a witness but the court will investigate it and it may be

struck due to S. 43 Indian Act Indians may make Wills 45 (1) Form of will (2) -‐ Mean that WESA requirements re formalities need not be followed, although doing so is in practical terms sensible (as evidence of intention) Division 3 of WESA deals with Nisga’a A treaty (provision dealing with wills and estates matters) Minister may declare will void 46 Holograph wills

-‐ Holograph wills are unattested wills entirely in T’s handwriting, bearing T’s signature – never provided for in legislation in BC (but are provided for in other jurisdictions)

-‐ Requirement of handwriting substitutes for attestation by witnesses as a guarantee of authority -‐ Example of holograph will discussed footnote 5, p. 202

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-‐ Woman leaves notes in her purse hanging on the back gate dated the day of her death by suicide: “whenever I wanted something it was no. I was no longer good. $20,000 for Anne Gase and $20,000 for Bianca Gase.” Whatever’s left over you can do as you please” Gase sisters her nieces in Germany (deceased believed her children had rejected her) – found valid (showing understanding f her property, her family, and providing reasons for her dispositions)

-‐ Some jurisdictions (Alberta eg) provide for holograph wills – holograph wills have their own requirements (discussed pp. 294 – 310), not anything goes. Decisions not to provide for HWs in WESA, as “dispensing power” (s.58) gives court broad ability to recognize unattested will as a testamentary document to give effect to T’s intent (discussed, infra)

-‐ Case law regarding sufficiency of holograph wills as showing intent may be relevant on more general question (outside of specific holograph context) of demonstrated intent despite formal inadequacy)

-‐ Intent – what needs to be shown

-‐ That document evinces T’s fixed and final intention to make a will (not a draft, not tentative) -‐ Bennet v Gray (p.295) – was the letter sent by Mrs. Gray to her solicitor, effectively a holograph will? -‐ SCC says no – why? “Read as a whole, and according to its ordinary and natural sense, this letter amounts to

nothing more than is preliminary to a will… It is clear she did not want the letter to operate as a will – she mentioned she will consult with S when in town, which she does, but cannot decide on executor; nor doe she settle on disposition of residue; some time later, she changes one of the gifts made in the letter – clearly, it is not “final”, and the letter is not, therefore testamentary in nature

-‐ See also Nielsen Estate: the document in question specifically identified as a “draft” and subject to possible further revisions

Court order curing deficiencies (give court the power to “dispense” with formal requirements in certain circumstances) S. 58 – Dispensing Power Prior to WESA

-‐ No holograph provision; no statutorily conferred dispensing power; prior to WESA, several BC cases confirmed that the courts had no common law authority to uphold a will that is no formally compliant (In no case was there any real doubt about validity of will, but formal inadequacy fatal)

-‐ Ellis v Turner (1997): document signed at the top and not the end; T did not sign in presence of two witnesses; nor did she expressly acknowledge signature as her own (As in an attestation clause)

-‐ Tommey v David (2003): one witness not present when T and other witness signed, affixing her signature later -‐ Bolton v Tartaglia (2000) both witnesses present when T signed, but one did not sign herself (merely fixing her

stamp) Signed by T or amanuensis

-‐ a mechanical hand that you are directing à your mind directing their hand -‐ What about where the T’s condition has deteriorated to the point htat s/he cannot sign the will – can someone

else (An amanuensis) sign on his or her behalf? -‐ Yes, so long as in from of two witnesses – s. 37 (1) To be valid, a will must be

o In writing o Signed at its end by the will-‐maker, or the signature at thee nd must be acknowledged by the will-‐maker

as his or hers, in the presence RE White

-‐ Rule applied from Wilson v Beddard 1841: “if a testator, in making his mark, is assisted by some other person and acquiesces or adopts it, it is just the same as if he had made it without any assistance”

-‐ Here: the testator signed, with assistance -‐ Let’s say he had been totally unable to sign, even with assistance: “in such a case it must be shown by the

proponent of the will that there was a direction by T or an acknowledgement – whether signature is by direction

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the direction is as much a part of the signature as the making of the signature and the direction must be given in the presence of the witnesses or the signature acknowledged in front of the witnesses

Faulkner v Faulkner

-‐ The will was executed by T making his mark with his solicitor guiding his hand, as he could not see -‐ Crucial here: the solicitor ”took great pains to makes sure that T fully understood the disposition he was making

of his property, reading over each paragraph slowly and carefully to him, and satisfying himself that T clearly understood them”

Attestation

-‐ To certify as correct, genuine, true, by signature or oath -‐ Witnesses to a will, by signing the will in accordance to the requirements of the legislation, are “attesting” to its

validity as the last will and testament of T -‐ Witnesses must sign in the presence of T after T has signed the will in their presence or acknowledged his

signature in their presence -‐ Presence does not actually require seeing the signature itself but, rather, the act of signing (presumption of

regularity, that things are done omnia praesumuntur rite essa acta due form, unless provide otherwise) – physically, a person must be in a position to see the signing and mentally conscious of the act being done

-‐ Attestation clause generally follows statement by T: eg. “IN TESTIMONY WHEREOF I have signed my name to this Last Will and Testament, written upon this and the preceding *** pages of paper, this *** of ***, ***”

-‐ Attestation clause eg: SIGNED< PUBLISHED AND DECLARED by the aid Testator, as and for his last Will and Testament, in the presence of us, both present at the same time, who at his request, in his presence and in the presence of each other have herunto subscribed out name as witnesses: [followed by signatures of witnesses on the left signature of T on the left]

Yen State v Yen Zimmerman

• Of two Ws signing will under attestation clause, one (T’s solicitor) known to be dead; his signature proven by Law Society; but identity of other W (Mrs. S) unknown and defendants argue there is no evidence that the Ws were present together and actually witnessed T sign the document-‐ therefore, they say, P (the executrix proving the will) has not proven due execution

• If she has not, there is no presumption that T was “capable” (they want to argue that their exclusion was the result of “insane delusions” resulting from the murder of their mother, T’s daughter)

• P says burden on the challenger to “cast doubt” on formal validity (common law presumption of validity-‐ omnia praesumuntur contra spoliatorem): “it is well settled that if a will on the face of it appears to be duly executed the presumption is that all acts have been done rightly” Re Laxer

• Does this statement from Vout v Hay change this presumption: “Upon proof that the will was duly executed with the requisite formalities… it will generally be presumed that T knew and approved of the contents and had the necessary testamentary capacity.”

• No-‐ reasons discussed paras. 27-‐35 • Here: the evidence supports the conclusion that T intended to make his final will (signing, in the presence of his

lawyer) a document drawn by his lawyer and called “Last Will and Testament”); no reason to doubt that Mrs. S, signing under the attestation clause, complies with it-‐ Re Laxer criteria satisfied, and nothing to rebut presumption

Acknowledgment where T’s signs out of the presence of Ws

• If T has signed his will out of the presence of the Ws, he must acknowledge the signature as his own in the presence of both Ws present at the same time

• Each W must then sign the will in the presence of T (although not necessarily in each others presence) • Re Gunstan: T did not sign her name in the presence of the Ws-‐ did she acknowledge it? • In such a circumstance, the Ws must see the signature or be in the position to see it (should they care to look)-‐

otherwise, it is not enough that T say “this is my will and I signed it” if Ws unable to see it • Here, there was a piece of blotting paper over the signature (Ws not in the position to see the signature)

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• Remember, current broad power of court to cure formal deficiencies Ball v Taylor

• T signed the will; then approached two co-‐workers (F and R) to sign the will as witnesses. F and R signed in front of each other, and in front of T

• T did not sign his will in the presence of the Ws F and R-‐ did he acknowledge his signature in their presence? T said, this is my will, and asked F and R to sign as witnesses. Neither can recall whether they saw the signature (they did not read the contents of the will), but an attestation clause above the signatures of F and R states that they did and “the court will not assume that a person has signed his or her name to the attestation knowing it to be untrue”

• “It is quite sufficient to say “That is my will,” the signature being there and seen at the time [which we presume in this case-‐ see above]”-‐ Hudson v Parker; if the signature is there and the Ws have an opportunity of seeing it, it does not matter that they did not actually see the signature on the will

Witnesses as beneficiaries

-‐ Gifts in a will to a person who witnesses that will (or to the spouse of the witness), while still considered void at the outset, ma now be saved through an application to court. The court, if it is satisfied the will-‐maker intended to make the gift even though the person was a witness, may declare the gift to be valid (2.43)

-‐ See, Jones v BC: witnesses are beneficiaries so gifts void (And pre WESA); also difficulty with language of disposition (cash) of residue

-‐ Two possible approaches: 1. impugned gift of residue blotted out as if it never existed (so, residue divided evenly between Vera and Cheryl) or 2. impugned gift applied (D, V, and C each get a third) and the Ds third “fails” and is then distributed as an intestacy (sounds like T has daughters in US he hasn’t seen for some time, and they would be entitled on intestacy). Second option applied.

-‐ See also, Estate of Jason M Bird (2002): will witnessed by a spouse of a named residual beneficiary (B). B pre-‐deceased T-‐ so what happens to her share? Does it pass to her children or as intestacy (as it would have done were she alive at time of T’s death-‐ see Jones)? Here, gift passed directly to B’s children on her death, and there is no prohibition on gifts witnessed y a parent of a beneficiary (judgment notes a different result would be unfair, and defeat clear intention of T), although B (as spouse of witness) would not herself have been able to take

-‐ Note reference to fairness Use of printed “drugstore” wills

-‐ Risk that people may not understand the signature requirements, and circumstances may not be such that the court will exercise the dispensing power conferred by s. 58

-‐ Where witnesses are beneficiaries, similarly, evidence of intention may not be sufficient to allow gift -‐ Individuals may not understand the substantive effect of the dispositions they are making (or not) in a drugstore

will -‐ Differences between holograph wills and these; however, in BC we don’t even have the rules that apply to

holograph wills -‐ Any of these are American – so terminology and rules are different -‐ Risk that people will not understand the signature requirements

The International Will

-‐ Section 83 makes the ‘Convention Providing a Uniform Law on the Form of an International Will’ domestic law in British Columbia

-‐ Form of an “International Will” set out in WESA schedule 2

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Legislation:

Wills Estates & Succession Act, s. 37-‐40

Indian Act, RSC 1985, c. I-‐5, ss. 45-‐46

Cases:

Yen Estate v. Yen-‐Zimmerman, 2012 BCSC 1620 FACTS:

-‐ Mr. Yen had four daughters. One, Lily, was murdered -‐ A year after her death he wrote a will that divided his estate between his three remaining daughters, with no

provisions for Lily’s children -‐ The plaintiffs have brought a suit that the will is invalid because: the formalities of the will do not meet the

requirements, the testator did not know or approve of the content, and that Mr. Yen did not have the testamentary capacity to make the will at the time.

ISSUE: Whether the will can be admitted for probate. ANALYSIS: Due Execution and knowledge and Approval of the Contents

-‐ There is no evidence except that the two witnesses, one is dead and the other know one knows who it is -‐ But there is no evidence to presume that it wasn’t signed under the proper procedures -‐ Due to evidence of a letter to his daughter and the information in the will itself it is clear that Mr. Yen knew and

approved of the contents in his will Testamentary capacity

-‐ Subject to the question of “suspicious circumstances” it is presumed that he had the necessary testamentary capacity

-‐ The evidence has to excite the suspicion of the court to the degree necessary to spend the persuasive force of the presumption and cause the onus of proving capacity to revert to the plaintiff

-‐ There is no evidence to suggest he was having delusions and there are other good reasons why he would leave the children out of the will: they were well provided for and his 3 other daughters were more in need of financial assistance

RATIO: There has to be substantial evidence to prove that there were suspicious circumstance that led to the question of testamentary capacity. If a testator chooses to not write someone in their will their wishes should be fulfilled. CONCLUSION: Will stands

Neilsen Estate (Re), 2012 SKQB 15 FACTS: Ms. Nielsen created a will in 2009. The draft was sent to her by her lawyer with instructions to come in to sign the real document. It was very clear that this was a draft. However, when she died two years later there was no signed will, but this draft was found amongst her stuff with directions that it was her will. ISSUE: Can the “draft will” be admitted to probate through the application of S. 37 of the Wills Act? ANALYSIS:

-‐ There are two lines of thoughts around s. 37 o To cure any defect in a testamentary document as long asit is clear the document expresses the

intention of the deceased o S. 37 cannot rectify a total failure to execute such a document

-‐ It was very clear that this was a draft and not the will itself -‐ Sask legislation requires at least some attempt at execution of a formal will and this does not hold up

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RATIO: If there is a small error to a will it can be rectified to allow it into probate, but when there is a substantial error the testator died intestate. CONCLUSION: Probate cannot be granted because of a number of reasons.

Ball v. Taylor (1999) 17 E.T.R. (2d) 208 (B.C.S.C.); CanLII 6580 FACTS: All handwriting in the will is of the executrix Ms. Ball. Nothing is in the handwriting on the testator besides his initials at the bottom of each page and his signature at the end. The testator signed the will in front of Ms. Ball and Mr. Ball but not in front of the witnesses on the will. The witnesses saw each other sign but did not see the testator sign the document. In this will his children were only receiving $100 each and Ms. Ball and a Ms. Jack were receiving larger portions. But after the execution of the will Mr. Beaudoin received advice from a notary that he should explain rationale for these sums as they might have question arising from them. ISSUE: Whether the witnessing of a will was in accordance with s.4 of the Wills Act ANALYSIS:

-‐ It’s clear the testator did not sign in front of the witnesses but the pivotal question is whether he acknowledged his signature in the presence of the witnesses

-‐ The will stands unless the defendants produce evidence that shows, even on the balance of probabilities that there was an irregularity

-‐ Because he said this is my will, it stands as sufficient RATIO: If the testator does not sign the document in front of the witnesses as long as they point to their signature and show that it is their will that will suffice. CONCLUSION: It was properly witnessed and is a valid will.

Jones v. British Columbia (Wills Act, Public Trustee), 1983 CanLII FACTS: Will made 10 days before the testator died had some errors in it. The witness was the main beneficiary. ISSUES:

1. Does the last-‐but-‐one clause of the will constitute a residuary disposition under which the items bequeathed to the witnesses will pass

2. If so, is the share of the witness Darlene Phillips under this clause to be divided between the other two named residuary legatees?

3. If the answer to either preceding question is “no”, so that the testator must be taken to have died intestate as to part of his estate, what efforts are to be made to locate his next of kin?

ANALYSIS

1. The phrase “all remaining cash after expenses” what does this mean à out of the estate or out of the actual cash money

a. This probably meant that out of all the property he owned and had not bequeathed it was to be sold and the money for expenses were to come out of that

2. One of the witnesses is a major beneficiary of the will a. The will should be applied so Darlene, Vera and Cheryl would be allocated one third each and effect

would then be given to S. 11 of the Wills Act, so that the one third allocated to Darlene passes as on intestacy

CONCLUSION: One third goes to Vera and Cheryl with the last third being intestate.

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Faulkner v. Faulkner, 60 SCR 386 (1920) FACTS: Solicitor prepared a will for the testator who was fully competent while giving instructions. When it was drawn and presented to be signed he was not in a condition to. 3 days later he gained the ability to sign it and made his mark. ISSUE: Did the testator have capacity to execute the will? CONCLUSION: The will stands.

Murray v Haylow RATIO: Will Act does not require the will to be “in words”, the will is simply to be in writing.

RE White RATIO: If the testator is incapable of signing the will and receives assistance in making his mark, it is still acceptable.

RE Reva RATIO: If a signature is not in the correct place on a will a court can look to evidence that shows the testator intended to make the will and it was merely a clerical error that the signature was in the incorrect place.

Chesline v Hermiston RATIO: If witnesses do not see a testator sign his will than their signatures are invalid.

RE Gunstan RATIO: A will is not a valid will until it is attested and there is no necessary implication that it already bears the testator’s signature.

Bennett v Gray RATIO: a letter to a Lawyer with regards to intention of items in a will cannot be a will replacement, even if in hologram format.

RE Forest RATIO:A will that is half handwriting and half print is not acceptable and will not be submitted into probate.

RE Clarke RATIO: If a signature is place in the middle of the text it implies that everything after was not signed by the testator, hence the placement of the signature is vital to submit the will to probate.

Testamentary Gifts, Lapse, Abatement, Ademption, Encumbered Gifts Common Law is like a jungly garden and Legislation is like a metal grid placed on top of it. Regardless, the jungle continues to grow around the grid.

-‐ we need to understand the relationship between them -‐ Presumption of undue influence à how it’s brought into the law’s of Wills because of WESA, before this did not

naturally arise -‐ We cannot say because no cases have been decided on WESA, the case law brings in the background that undue

influence can happen around a presumption -‐ Recourse to the cases in the common law, tells us a lot about it, and how the presumption can be displaced

Testamentary gifts: what can be given in a Will?

-‐ Anything owned by Testator à crucial concept is owned -‐ Does not include interests that end on death (such as joint interest or life estate); does include beneficial

interests o E.G. Joint tenancy on a house, the ownership vests in the survivor o The question that arises is, is something owned jointly or has a resulting trust been created so the

beneficial interest is created regardless of death

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o Discussion around joint accounts is around this distinction -‐ Does not include contingent interests personal to T (to T if she marries, and T dies never having married)-‐ but, to

T when J completes his book (gift to T contingent on a possibility that does not die with T) creates an interest that can be passed in a will; second interest is “contingent but continuing”

o Condition precedent and is personal o If the interest is based on someone else doing something ie. A gets it when J finishes his book. A dies,

but there interest is contingent but continuing à this interest can be passed on o Some contingent interests will die when the person does, but some will continue and can be passed on

-‐ Normal rule that a beneficiary’s interest pursuant to a will is “ambulatory” (moving about) only (not “owned” as a vested interest) until death of T-‐ but see Weinstein v Weinstein; Del Grande v Sebastian

o Until the testator dies they can conceivably change the will before they actually die o If it’s ambulatory it’s not an interest that can be passed on o To my friend Anne the interest in Blackacre that I will take pursuant to Margaret’s will. à Can’t say this

because Margaret can change her will whenever before death -‐ Weinstein v Weinstein

o Case where T has dementia that is quite severe so T is in a care facility o Whether a disposition that she made prior to entering the care facility be considered final à because

she does not have the mental capacity to make further dispositions after the fact o The beneficiaries interest was not ambulatory but an actual interest – this is an extraordinary departure

from the rules (no cases really follow this – but it is interesting) Property that can be gifted by will (WESA) 41 (1) A person may, by will, make a gift of property to which he or she is entitled at law or in equity at the time of his or her death, including property acquired before, on or after the date the will is made.

-‐ if you acquire more property after the will is made – it is still in the will in regards to residue -‐ This provision makes this very clear

(2) Unless a contrary intention appears in a will, when a will refers to property, the will, with respect to the property, is to be interpreted as if it had been made immediately before the death of the will-‐maker. Types of testamentary gift – What can be gifted in a will?

-‐ Devises-‐ gifts of real property -‐ Bequests-‐ gifts of personalty -‐ Legacies-‐ gifts of money or money equivalents

o Modern language is just gifts but it used to be this different terminology -‐ These distinctions currently of minor importance; language may be used in cases (or more general language of

gift) -‐ These types of gift may be classified into the following categories:

o Specific o General o Demonstrative o Residuary

-‐ These distinction do matter now -‐ Pecuniary is not it’s own category, it just means money

Specific and general gifts

-‐ A specific gift has been severed by T out of the general estate before her death, showing her intention that the thing in specie (in particular form) be provided to B; a specific gift must be a part as distinguished from the whole of T’s property or from the whole of the general residue of his estate; it must be identified by a sufficient description, and separated in favour of the particular B and from the general mass of T’s estate

o Taking out a particular thing à has to be very deliberate severance, this shows the intention

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-‐ a general gift is a gift, not of any particular thing, but of something which is to be provided out of T’s general estate; it has no reference to the actual state of T’s property and is a gift of something which, if T leaves sufficient assets, must be raised out of his general personal estate

o not described in the same particular sense o Leaving sufficient assets, must be provided out of the general estate o The root of this is giving effect to T’s intent

-‐ The question of whether a thing has been separated out from the general personal estate is a question of construction-‐ what kind of gift did T intend?

-‐ Real estate (Blackacre, eg) is generally a specific devise o There is only one property therefore it is a specific thing o You could have a more general description ie. “My property” o There isn’t a hard fast rule of this but it’s a general rule that it is specific – not something that can be

replaced -‐ Distinction matters because of relationship to rules of ademption and abatement

o If given a general gift of silverware (or value of), has to be provided for out of the general estate o The intent is that that the B had the value of the silver ware o Not that you specifically take this pair of candle sticks

Specific/General gifts: examples

-‐ General gift: I give $100 to X; $10,000 worth of XYZ shares to X; $500 in the Bank of Nova Scotia o Doesn’t matter where the $100 comes from o Not described in the particular of it’s existence during the T’s life

-‐ Specific gift: my Great Aunt F’s silver candlesticks to my niece X; I give Blackacre to X; $10, 000 worth of XYZ shares now standing in my name to X; $500 from my account #4378-‐18 in the Bank of Nova Scotia, Rideau and William Branch

o Pertains to the physical nature of the item o “now standing in my name”

Distinction discussed in Re Millar

-‐ “A gift of shares of a particular description-‐ if there is nothing on the face of the will to shew that T is referring to shares belonging to him-‐ is a general legacy, though he may in fact possess the shares in question”-‐ the reference is read as a reference to shares (general), and not to the specific shares

-‐ If T does not own assets disposed of in a general gift, gift is a direction to E to acquire the assets, if available, to give to B unless B wishes to have value instead

o If there is no ademption there is no failure -‐ Eg. T makes a gift of “a watch” to each of 20 grandchildren; executors must purchase a watch for each

grandchild out of estate; “there are many kinds of watches… the grandchild cannot complain so long as he gets a watch. The executors are given discretion and when it is exercised honestly it is final” (gift of “a watch” is a general gift, as opposed to a gift of “the silver watch my grandfather received on retirement”-‐ which is?)

o Equitable distribution on the discretion of the executor -‐ Duty may be satisfied by giving B the value of the watch-‐ outcome here (shares exist and can be valued, but not

purchased) Specific gifts, general gifts and ademption

-‐ A specific gift adeems (fails) when its subject matter is not in T’s estate on death (either because T has parted with it, because the property no longer conforms to the description of it in the will, or because the property has been wholly or partially destroyed)

o If it is converted or changed substantially from what is written in the will it will adeem and fail -‐ A general gift is not subject to ademption, but is payable out of general estate funds (as in Re Millar, B can

receive the value of the gift) o Why a general and specific gift is important, you can either take something or nothing

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-‐ A specific gift may be saved if the change is “in name and form only”: withdrawing the money from a named account (so no $ s left in it) will adeem the gift unless the money is redeposited in another account substantially unchanged (not placed in a joint account, eg)-‐ the key is that the specific thing itself remain, identifiable as such (because T’s intent was that the thing itself should go to B)

o If the change is superficial “name and form” o Margaret left money in the account to a friend. Withdrawed the money from one account to another.

The change is just to name and form, It has not substantially changed the item, therefore it remains a specific gift.

o You can always expressed things contrary to ademption -‐ Remember, T can always state clearly his or her intention that B either receive specific property or any property

replacing it (see, 544)-‐ prudent WESA, section 48 relevant here s. 48 of WESA provides that if a “nominee” (committee, attorney, or representative) disposes of the subject matter of the gift during the will-‐maker’s lifetime, the beneficiary is entitled to receive from the estate, an amount equivalent to the proceeds of the gift, unless there is a contrary intention in the will or the disposition was made in accordance with the will-‐maker’s instructions given at the time the will-‐maker had capacity.

-‐ Committee a person who manages someone’s estate if they are incapable -‐ Patients Property Act – more modern term is guardian -‐ Representation Agreement Act S.7 -‐ If property is disposed of by one of these people and it’s the subject of a specific gift

Demonstrative gifts – Sometimes seen as a hybrid between the two

-‐ A gift payable primarily, but not solely, out of a particular fund (not subject to ademption) o Not specific

-‐ ie $100 to be raised out of the sale of my Surrey properties; will not be adeemed if the Surrey properties not in T’s estate

o Come out of estate in terms of value -‐ Can we say that, unless there is something in the will/surrounding circumstances to suggest that T intended the

gift to fail if not paid out of specific account, that we should treat it as demonstrative? (a presumptive approach) why would this be rational? But-‐ don’t’ need to show that T intended gift to be subject to rule of ademption, merely that the intended gift to be specific (and rules re ademption follow)

o Not, the intent we care about is to make a specific or general, we don’t care about the intent to have the gift subject to the rules of ademption

o Intention to make a specific gift, now the rules follow sort of automatically -‐ Re Webster: if gift specific, it would have failed; son argues that it is demonstrative. The words “to be paid to

him out of my share in the business…” indicate intent that $3,000 to B be paid primarily out of the share (and not ONLY out of the share); see different outcome in Culbertson v Culberston (can you explain?)

o Father didn’t have a share in the business anymore; therefore is this specific or demonstrative o Those words show this intent $3000 to be paid out “primarily out of the share”, and therefore this

makes it more demonstrative o “ONLY” if that had been done then it would have been a specific gift and it would have failed, he

intended to create a demonstrative gift -‐ Chambers Judge found a demonstrative gift in Re Wood Estate [reasons at para. 8]; upheld on appeal? Why/why

not? Re Wood Estate

-‐ What is the significance of the information contained in para. 2? -‐ Contested gift-‐ the direction to pay cash or stocks and bonds held in a specific, named account (RBC in

Vancouver) to Bs in shares described -‐ 6 weeks after executing will, T asks broker to transfer RBC account to MW in Nanaimo (1997) -‐ 1998 statement shows $121,000 in MW account; at T’s death in 2000, $60,340 remains

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-‐ Widow argues that contested gift adeemed in 1997 with transfer from RBC to MW (why?); children argue that the gift was general or demonstrative

Outcome?

-‐ Para 13: gift specific; a gift in specie of the actual contents of the account, identifiable not by sums or numbers of shares but by the RBC account number in the will-‐ relate to intent to separate this item out from general estate (question of intent to subject this gift to rules of ademption not relevant)

-‐ Rules of ademption therefore apply-‐ what is the outcome here? -‐ Clearly, transferring contents of RBC account in Vancouver to MW account in Nanaimo caused the subject

matter to cease to conform to the description in the will o Items in the account are substantially changed o Also a reference for the reasons for it to take place

-‐ However-‐ is the change in name and form only? Does the gift exist as “substantially the same thing, although in a different shape”? To what extent does the “co-‐mingling” of the RBC assets with other assets in the MW accounts create substantial difference and trigger ademption?

Outcome

-‐ If there were evidence that a specific security (1,000 units of MCI held by T in RBC account eg) were still held in the MW account the units would have retained their in specie identity and that gift would be saved (proper construction of “all stocks and bonds” in named RBC account) -‐ no evidence of this however, and may be none of the securities from the RBC account existed in the MW account at time of Ts’ death-‐ except to the extent that any such particular securities can be identified (children given change) gift must fail

Residuary gifts

-‐ All of T’s property after demonstrative, general and specific gifts (including pecuniary gifts) have been satisfied (the “balance of my estate” “the rest of my estate” refer to the residue)

-‐ Residue includes all gifts which fail due to lapse (if B predeceases T) or for any other reason. -‐ If the gift of residue fails (problem last week re gift to witness), gift passes on intestacy

Abatement and the payment of debts -‐ Ts debts must be paid before B can take property -‐ If debts more than estate, creditors take according to their priority or preference, general creditors come last

and take pro rata share of what is left -‐ After creditors are paid, there may be insufficient funds to pay all gifts made in the will, and some will have to

abate o The gifts will have to be reduced

-‐ Abatement is the pro rata reduction of gifts where there are insufficient funds to pay debts and gifts in full Abatement, cont’d The common law order of abatement for testamentary gifts is:

1. residuary personality; a. Non-‐real property in the residue

2. residuary real property; a. Land

3. general legacies, including pecuniary legacies from residue; 4. demonstrative legacies; 5. specific bequests of personality; 6. specific devices of real property.

a. This is the most respected category in a way Means that the primary fund liable for debts is the residue; once the residue has been exhausted, the next category of gifts to abate are general legacies, etc

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Can be altered by T (Lindsay v Walbrook)-‐ intention must be positively stated WESA, Rules if assets are not sufficient 50 (1) This section is subject to a contrary intention appearing in a will. (2) If a will-‐maker's estate is not sufficient to satisfy all debts and gifts, the debts and gifts must be satisfied or reduced in accordance with this section. (3) Land charged by the will-‐maker with payment of debts or pecuniary gifts, or both, is primarily liable for the debts and gifts, despite a failure of the will-‐maker to expressly exonerate the personal property. (4) Land and personal property must be reduced together. (5) Subject to subsection (3), assets are reduced in the following order:

-‐ property specifically charged with a debt or left on trust to pay a debt; -‐ property distributed as an intestate estate and residue; -‐ general, demonstrative and pecuniary legacies; -‐ specific legacies; -‐ property over which the will-‐maker had a general power of appointment.

Evidence of (contrary) intention re priority Re Janzen (at 542)

-‐ there was sufficient evidence before him to justify his [the Chambers Judge] conclusion that the testator in this case intended that the general legacies in favour of the respondent (his three sons and a neighbour to whom the testator regarded himself as indebted on account of past services) be paid in preference to the general legacies in favour of the other legatees (his grandchildren whom he was prompted, by generosity alone, to benefit).

Lapse

-‐ A gift to a B who predeceases T fails; it does not pass to B’s estate -‐ A lapsed gift passes into the residue; if the gift which lapses is a share or interest in the residue, the gift passes

to those entitled on intestacy (Re Stuart)-‐ have we discussed this before? -‐ Effect of common law doctrine can be avoided by stating in the will an alternative beneficiary to take if first B

predeceases T; “anti-‐lapse” provision in WESA also alters operation of the rule -‐ There are ways to get around it – you have to explicitly make arrangements for it -‐ Or if we have anti-‐lapse legislation à provision in WESA

o Most provinces have this but they are not all identical -‐ If not the lasped gift will fall into the residue

When gifts cannot take effect [default distribution] 46 (1) If a gift in a will cannot take effect for any reason, including because a beneficiary dies before the will-‐maker, the property that is the subject of the gift must, subject to a contrary intention appearing in the will, be distributed according to the following priorities: (a) to the alternative beneficiary of the gift, if any, named or described by the will-‐maker, whether the gift fails for a reason specifically contemplated by the will-‐maker or for any other reason; (b) if the beneficiary was the brother, sister or a descendant of the will-‐maker, to their descendants, determined at the date of the will-‐maker's death, in accordance with section 42 (4) [meaning of particular words in a will]; (c) to the surviving residuary beneficiaries, if any, named in the will, in proportion to their interests. (2) If a gift cannot take effect because a beneficiary dies before the will-‐maker, subsection (1) applies whether the beneficiary's death occurs before or after the will is made. Residue of estate 44 If a will does not give or otherwise dispose of all of the will-‐maker's property, the property that is not the subject of a gift or otherwise disposed of in the will (a) must be distributed to the persons who would be entitled if that property were an intestate estate, and (b) if there is no person who would be entitled under paragraph (a), passes to the government and is subject to the Escheat Act.

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Anti-‐lapse provisions explained

-‐ S. 46(1)(b) says, in effect: except where a contrary intention appears in the Will, the doctrine of lapse (that a gift fails where B pre-‐deceases T) does not apply where B is a child, grandchild, or sibling of T and where B leaves decendants. In such cases, the gift is treated as being made directly to descendants who would have taken from the B’s estate if he or she had died intestate immediately after the testator or testatrix.

-‐ Reference in WESA is to “descendants”; some other Canadian legislation refers to a ``spouse or issue`` surviving T (but not B)

-‐ Re Wudel: example of a “ contrary intention” T`s daughter M predeceased T; T`s will gave a portion of residue equally to grandchildren,. If M`s children took their mother`s share under anti-‐lapse legislation, M`s children would take twice (as grandchildren and in place of M) Words of language show clear intent to ouster the legislative provision-‐ no mention of `spouse` as in the legislation (distribution among children of T`s son or daughter predeceasing T only); bequest of residue to grandchildren equally (indicates intention not to prefer children of M as through operation of legislation)

o Go to the default but if there is a contrary intention o T is setting up an alternative distribution scheme, but there is a clear intent to benefit grandchildren

equally à and this would be defeated if we applied the anti-‐lapse legislation “deemed” lapse (2) If a will-‐maker (a) makes a gift to a person who was or becomes the spouse of the will-‐maker, (b) appoints as executor or trustee a person who was or becomes the spouse of the will-‐maker, or (c) confers a general or special power of appointment on a person who was or becomes the spouse of the will-‐maker, and after the will is made and before the will-‐maker's death the will-‐maker and his or her spouse cease to be spouses under section 2 (2) [when a person is a spouse under this Act], the gift, appointment or power of appointment is revoked and the gift must be distributed as if the spouse had died before the will-‐maker.

-‐ if someone was a spouse the gift will lapse -‐ unless there is contrary intention -‐

Class gifts and the doctrine of lapse

-‐ Milthorp v Milthorp-‐ is the gift to a class, or to a collection of named individuals? -‐ Named beneficiaries are the children of testatrix (TC) and of her husband (HC); one child of husband (R) dies

without children prior to T (will provided that TC and HC took per stirpes, which means that if any of TC or HC predeceased T their children take the share which their parent would have taken had she survived T)

o Class gifts vs. personal gifts (group of named individuals) and how it relates to lapse -‐ So, why are TC arguing that the gift is to a collection of named individuals, and HC arguing that the gift is to a

class? o If a member of the class dies then it gets redistributed in the class o If it’s a personal gift then the gift to R lapses and goes to the residue

Rule re class gifts

-‐ Prima facie a class gift is a gift to a class of persons included or comprehended under some general description and bearing a certain relationship to T or another person. Thus, where a testator divides his residue into as many equal shares as he shall have children surviving him, or predeceasing him leaving issue, and gives a share to or in trust for each child, the gift is to a class (and share of the residue is as divided among the members of the class)-‐ so long as there are members of the class, the demise of one member will not cause the gift to lapse (his share will be dispersed to other members of the class)

-‐ Gifts to several persons designated by name or number or by reference are not class gifts, and are liable to lapse

-‐ Case law indicates that share of the residue bequeathed to named persons will not be considered a class gift; question whether will evinces intention to look “to the body as a whole” (Re Stuart Estate)-‐ no such clear

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intention can be found in this case (had T made the gift to “all of our children” it would have shown intention to make a class gift); the language of per stirpes is also taken to indicate an intention to gift named individuals (para 24)

Class gifts and section 46 (the default distribution set out in the anti-‐lapse provision) Section 46 (1) If a gift in a will cannot take effect for any reason, including because a beneficiary dies before the will-‐maker, the property that is the subject of the gift must, subject to a contrary intention appearing in the will, be distributed according to the following priorities: (a) to the alternative beneficiary of the gift, if any, named or described by the will-‐maker, whether the gift fails for a reason specifically contemplated by the will-‐maker or for any other reason; (b) if the beneficiary was the brother, sister or a descendant of the will-‐maker, to their descendants, determined at the date of the will-‐maker's death, in accordance with section 42 (4) [meaning of particular words in a will]; (c) to the surviving residuary beneficiaries, if any, named in the will, in proportion to their interests.

-‐ Gift to a class evinces YTs intention that the remaining members of the class be alternate beneficiaries -‐ Contrast, Estate of Stella West-‐ what happened in that case?

Survivorship

-‐ Lapse where two persons die at the same time and either or both have left their property to the other-‐ this situation invokes the law of survivorship

-‐ WESA, Div 2, Part 2-‐ introduces changes; Law used to presume that the younger person survived the older, which meant that (eg) the younger spouse’s heirs or beneficiaries may end up inheriting both the younger spouse’s estate and a portion of or even all of the older spouse’s estate.

-‐ S. 5 says that if 2 or more persons are killed in circumstances where it is not clear which survived the other, each is deemed (for the purposes of their wills) to have survived the other

-‐ For the purposes of jointly owned property in these circumstances, the property is deemed held in common o So it splits 50/ 50

-‐ S. 10 provides that, to get the benefits of survivorship, B must survive T by 5 days-‐ if not, B is deemed to have predeceased T (cannot be abbreviated, although can be lengthened)

Example

-‐ A (wife) and B (husband) die in car accident -‐ for the purpose of the A’s estate, A is deemed to have survived B; for the purpose of the B’s estate, B is deemed

to have survived A. A’s gifts to B will fail; B’s gifts to A will fail. The result is that their respective estates will be passed on in accordance with the intestacy rules or as provided for in their respective Wills (if A’s will provides for who will take if B predeceases A for example, and vice versa). Any assets the couple held as joint tenants would be deemed to be held instead as tenants in common upon the occurrence of such a common accident.

Vested and contingent gifts

-‐ Gifts may be vested or contingent -‐ Vested may mean “vested in possession” or “vested in interest”; vested in interest means an interest that stands

ready to fall into possession as soon as all preceding interests have ended naturally (remainder after life estate, eg)

-‐ An interest is vested if it is limited to a person who is in existence and ascertained and not subject to a condition precedent (ie not contingent); a vested gift is the gift of a vested interest

-‐ A gift may be absolute, or subject to conditions (a conditional gift); a condition may be precedent (meaning something must occur before the gift is effective or subsequent (meaning the interest is vested, but will be divested if the condition materialises-‐ eg. Blackacre to A, but if he ceases to use it as a farm, Blackacre reverts to my estate); a gift subject to a condition precedent is a contingent gift (and is not vested)

-‐ Question of whether a gift in a will passes a vested or a contingent interest, absolute (can leave it in my will) or subject to a condition subsequent (and therefore subject to divestment) is a question about T’s intention-‐

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purpose of rules of construction discussed in this section to discern intent in cases of ambiguity (and so rules of no application where clear, contrary intent can be shown)

Absolutely (indefeasibly) vested interests/interests subject to divestment

-‐ A to life, remainder to B absolutely (B’s interest indefeasibly vested, meaning if B predeceases A, B’s estate takes the interest)

-‐ A to life, remainder for B for life, remainder to C absolutely-‐ C’s interest is vested indefeasibly, but not B’s (if he does not survive A, he takes nothing-‐ his interest is vested subject to complete divestment)

-‐ Subject to partial divestment: interest vests on death of T, but may be partially defeated on a later event, eg. A for life; remainder to A’s children at age 21 (only X may be 21 on death of A, when other children reach 21 X’s interest will be partially divested)

Gift over Gift of property to a second recipient if a certain event occurs (giving the second recipient a contingent interest and the first recipient a vested interest subject to divestment on condition subsequent), such as the death of the first recipient without children "(T)he essential qualities of a gift over are, first, that it is a gift to arise upon a future contingency, and secondly, that it operates by way of defeasance or shifting of a prior gift which would be absolute were the contingency not to occur.“ (Jarman on Wills) Principles of vesting

-‐ Over-‐riding general principle is that, absent a clear contrary intention, the law presumes that T intended to create a vested (and no contingent) interest, and that T intended the gift to vest on his death or as soon thereafter as is consonant with the terms of the will; words are interpreted in a way consistent with this outcome

-‐ The presumptions discussed here are particular variations of this general principle -‐ Rationale discussed in Duffield v Duffield 688: if not, then the interest must vest somewhere (vest in the heir

subject to divestment on the condition happening, which then acts as a condition precedent for the second taker)

o This is not something we want to have happen o Is this a bit of a cumbersome arrangement o Wouldn’t it be easier to just say the gift is vested o If it can be vested in a way that that is the outcome – it should be read as such

Gifting over on death, generally

-‐ “X to A, and if A dies, to B”-‐ prima facie X vests in A absolutely if A survives T (meaning X forms part of A’s estate); if A dies before T, interest is absolutely vested in B

-‐ “to X for life, remainder to Y, but if Y dies to Z”-‐ prima facie Y takes a vested interest if she survives T but her interest is subject to defeasance if Y dies before X (interest will not form part of Y’s estate but Z will take vested interest); but if Y survives X that “cloud” is removed

-‐ Interpretation of “if A/Y dies” favours vesting -‐ “To A, but if she dies without issue to B”-‐gift to B contingent (condition precedent being A’s dying without issue)

Re Archer

-‐ To A, but if A dies without issue to B, and A does die without issue but if B predeceases A, the gift does not revert to A’s estate-‐ the gift to A is defeated by the condition subsequent (dying without issue)

-‐ O’Mahoney v Burdett: gift to A for life, after her death to B, if B dies without children, to C. Residue to D. A and C predecease T; B enters into possession but dies childless; the gift to C lapses, so enters the residue (to D)

-‐ Gift over on death under specified age: To X when she attains age 30, but if she dies before reaching that age to Y: X takes vested interest subject to being divested in favour of Y is X dies before becoming 30 (Re Barton).

gift over on death before receipt

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-‐ Gift over on condition that primary beneficiary die before receiving his share, interpreted as referring to death within the “executor’s year”

-‐ Re Stephens: life interest in estate to wife; 30% share to F provided she was alive at death of T; if beneficiary dies before distribution of the estate (interpreted as executor’s year), interest would revert to estate

-‐ T’s wife dies shortly after T; F dies shortly after that -‐ F’s interest vested on death of T-‐ rule from Browne v Moody (that apparently contingent gift that is merely

postponed by a prior interest vests on death of T)-‐ do terms of the will mean vesting subject to divesting if F dies before distribution of estate? Yes (so vesting not absolute, did not pass to F’s estate on her death), and F’s share reverts to T’s estate

-‐ Postponed means prior interest will, certainly end-‐ T’s wife will die; this is the “Convenience of Estate rule” discussed at 703 and in Re Taylor

Gifts to survivors

-‐ Gift made to group of persons; will provides that if one or more die before they become entitled to gift it will go to “survivors” the prima facie construction is that the gift vests at the time of distribution

-‐ Where the will refers to “survivors” does this mean surviving at he time the will was written, or on death of T? -‐ Re Krause: reference in will to the residue to be divided among my surviving siblings means those surviving at

the time of his death as opposed to when he wrote his will (if he meant that, he could have said “presently surviving”)

Legislation:

Wills Estates & Succession Act s 41 -‐ 52, 96 -‐ 100

Cases:

RE Taylor FACTS: In will left 3/5s income to sister in law as long as she remained unmarried. Upon marriage or death the estate should turned into cash and be divided equally among Norma and her sisters and brothers or to the children of any of them who are deceased. At death Norma has eight living brothers and sister, one brother Keith who was dead and left three children. One sister who had died and who’s only child died. And another sister who did leaving 9 children. ISSUES:

• Did shares in the residue of the testator’s estate vest upon the testator’s death under para 9 of the will? • If the answer is “no”, did shares in the residue of the testator’s estate vest upon the death of Norma Katherine

Macgregor under para 9 of the will? • Is the estate of the late Myrtle Rachel Window, who dies without issue after the death of the testator, entitled

to a share in the residue of the estate? • Are the children of the late Keith Irving Macgregor, who predeceased the testator entitled to a share in the

residue of the testator’s estate? • Is the share of the late Lyall William Macgregor in the residue of the testator’s estate payable to his estate or to

his children?

Re Wudel (1982), 22 Alta. L.R. (2d) 394, 13 E.T.R. 25; CanLII 1216 FACTS:

-‐ Maria Wudel à 4 sons, three daughters -‐ Marion Bronson à Anne, Lynda, Betty Donna -‐ Do the children of Marion get the amount allotted to “Daughters” under the will even though their mother

Marion predeceased her mother Maria? ISSUE: Is there a contrary intention in Wudel’s last will in regards to whether Marion Bronson falls under S. 35 of the Wills Act RSA

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ANALYSIS

-‐ In common law a gift fails if the done predeceases the testator but in many provinces there are statutory exceptions

-‐ Marion had died 16 years before the will was executed -‐ This does not constitute a contrary intention by the Will -‐ At the date of execution Maria knew that Marion had predeceased her, however, she did not know what would

happen between the date of her will and the date of her death -‐ She expressed a contrary intention to the Wills act this is shown by the 8 percent to the grandchildren

West Estate (Re), 1999 1200 (BC SC) FACTS: Stella West’s will named her daughter Darcella as executrix. D predeceased S so gov’t took over the administration. The will is equal shares to Darcella and Ken S’s children and $8000 trust for each grandchild. The Administrator believe the full estate should go to Ken minus the trust. D’s children, Debbie and Danny, submit they should receive their mother’s share. RATIO: Where the words indicate a joint tenancy the words of the testator must be respected. ANALYSIS: 3 results at common law when the residue goes to a person who predeceased the testatrix

1. If the predeceased beneficiary was a member of a class which the testator intended should share the residue jointly and enjoy the rights of survivorship, then the share of the deceased beneficiary went to other members of the class;

2. If the predeceased beneficiary was a member of a class which the testator intended should share the residue in common and enjoy the rights of representation, then the share of the deceased beneficiary went to that person's issue; and

3. If the person was not a member of a class then the gift failed, or lapsed, and the predeceased beneficiary's of residue was distributed as if the testatrix had died intestate.

Words “in equal shares per capita for their sole use and benefit absolutely” these means that she intended the residue to go to her children and the right of survivorship to be enjoyed by each of the other

Trebett v. Arlotti-‐Wood (2004), 35 BCLR (4th) 166 C.A. FACTS: Mr. Wood had four children by first marriage. Married second wife in 1995. 1997 phoned first wife and asked how she is distributing her estate. She divided it into tenths one for each child and grandchild (two for one particular child). Mr. Wood said this sounded good and what draft a will that was similar. The month in which he made his new will his shares at the RBC accounts were valued at $111,000. 6 weeks later he transfer his account to Nanaimo. When Mr. Wood died there was 66,000 in the Nanaimo account. The children’s position was that the gift was not a specific bequest but a general legacy not subject to ademption. ISSUE: Was the gift specific or general? RATIO: If a gift specifically says were to it is coming from and what it is, it is specific, and regardless of the intentions of the will maker if it is specific and is adeemed it must fail. ANALYSIS:

-‐ This appeal concerns the doctrine of ademption by conversion — a rule of the law of wills whereby a specific bequest "adeems", or fails, if at the testator's death the specified property is not found among his or her assets — either because the testator has parted with it, or because the property has "ceased to conform to the description of it in the will", or because the property has been wholly or partially destroyed.

-‐ Specific legacies are subject to ademption -‐ Even if it is specific it may be saved if the property has changed in name or form only

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-‐ General one are not subject to ademption -‐ E.G. gift of $500 from RBC is general legacy -‐ A gift that specifically names the account number is specific and will be adeemed by withdrawal of the funds,

but if it’s deposited in another bank and it is in the same account and is a similar account that it will not be adeemed (RE Ashdown)

-‐ It could be demonstrative à unless there is something in the will to indicate clearly that the testator intended the bequest to fail if it was not paid out of the specific bank account it is open to argument that is was a demonstrative one

-‐ Chambers judge classified it as a “specific demonstrative legacy” -‐ No evidence that the father wanted the gift to fail (if it did his children would receive nothing à obviously this

was a mistake on his part -‐ Counsel appealed that there was evidence that the testator wanted the gift to fail and that stocks from the RBC

account could not be “traced” to the Midland account -‐ Cannot be demonstrative because it was supposed to come out of the RBC account, it is specific -‐ It ceased to conform to the description of it in the will -‐ Whether he intended to do this or not is not relevant

CONCLUSION: The gift must fail because it is specific. The respondents have a month to get information that shows what stocks were in the original account.

Milthorp v. Milthorp 2000 662. FACTS: Ms. Andrews dies with a will that provides equal shares for all of her children and her husband children from previous marriages. One of the children, Richard, died without children. Mr. Andrews children argue that as a class gift Richard’s share should be divided equally. Mrs. Andrews children submit that the gift fails and that the residue should go to them and therefore giving them a larger share. ISSUE: whether the share of the residue of the estate which Richard Andrews would have received has he survived the testatrix, fall into and form part of the residue of the estate to be divided among the persons entitle to receive the residue? RATIO: When it is unclear about whether a gift is a class gift or a persona designata the court must look at the wording and intentions of the testator. If it is a persona desginata the gift fails and is intestate. ANALYSIS:

-‐ Estate Administration Act if a personal a gifts that fails it lapses and devolves on an intestacy -‐ If a gift to a member of a group fails then it does not fail but is shared by the remaining people in the group -‐ Halsbury definition of class gift: Prima facie a class gift is a gift to a class of persons included or comprehended

under some general description and bearing a certain relation to the testator or another person. Thus, where a testator divides his residue into as many equal shares, as he shall have children surviving him, or predeceasing him leaving issue, and gives a share to or in trust for each such child, the gift is to a class.

-‐ The line between a class gift and a person designate one is a fine one there is nothing in the will that clarifies it -‐ Unable to determine that it was a personal gift and therefore passing on intestacy -‐ In the absence of Richard having any child his share must pass on intestacy

CONCLUSION: The gift fails and is passed on to Mrs. A’s children.

Changes -‐ Alterations, Amendments, Revocation, Codicils & Mutual Wills

General principles • A will can only be revoked consistent with WESA requirements (WESA sets out formalities pertaining to changes)

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• 1. Revocations arising through the operation of the law (prior to WESA, marriage revoked a prior will-‐ changed by WESA; by operation of WESA, will be revoked where persons cease to be spouses)

• 2. Revocations arising through an act of T • Revocation by T is a testamentary act-‐ this means that, if T purports to change her will, we are concerned with

T`s capacity to do so, and that she do so free from undue influence (Hubley v Cox)

WESA S. 54 -‐ 57

How to alter a will, WESA 54 (1) To make a valid alteration to a will the alteration must be made in the same way that a valid will is made under section 37 [how to make a valid will]. (2) Subject to subsection (4), an alteration to a will is valid if the signature of the will-‐maker to the alteration, and the witnesses to that signature of the will-‐maker, are made

(a) in the margin or in some other part of the will opposite to or near to the alteration, or (b) at the end of or opposite to a memorandum referring to the alteration and written in some part of the will.

(3) An alteration to a will that is not made by the will-‐maker in accordance with this section is ineffective (a) except to invalidate a word or provision that the alteration makes illegible, unless the court reinstates the original word or provision under section 58 (4) [court order curing deficiencies], or (b) unless the court orders the alteration to be effective under section 58.

(4) An alteration to a will that does not comply with subsection (2) is valid if (a) the alteration (i) does not substantively alter the effect of the will, and (ii) is in respect of form, style or numbering or is a typographical error, or (b) there is evidence to establish that the alteration was made before the will was executed, if the alteration substantively alters the effect of the will.

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

(a) by another will made by the will-‐maker in accordance with this Act; (b) by a written declaration of the will-‐maker that revokes all or part of a will made in accordance with section 37 [how to make a valid will]; (c) by the will-‐maker, or a person in the presence of the will-‐maker and by the will-‐maker's direction, burning, tearing or destroying all or part of the will in some manner with the intention of revoking all or part of it; (d) by any other act of the will-‐maker, or another person in the presence of the will-‐maker and by the will-‐maker's direction, if the court determines under section 58 that (i) the consequence of the act of the will-‐maker or the other person is apparent on the face of the will, and (ii) the act was done with the intent of the will-‐maker to revoke the will in whole or in part.

(2) A will is not revoked in whole or in part by presuming an intention to revoke it because of a change in circumstances Note, a will is no longer revoked by marriage (avoids Banton v Banton problem)

Revocation of Gifts, WESA (former spouse) 56 (1) This section is subject to a contrary intention appearing in a will. (2) If a will-‐maker

(a) makes a gift to a person who was or becomes the spouse of the will-‐maker, (b) appoints as executor or trustee a person who was or becomes the spouse of the will-‐maker, or (c) confers a general or special power of appointment on a person who was or becomes the spouse of the will-‐maker, and after the will is made and before the will-‐maker's death the will-‐maker and his or her spouse cease to be spouses under section 2 (2) [when a person is a spouse under this Act], the gift, appointment or power of appointment is revoked and the gift must be distributed as if the spouse had died before the will-‐maker.

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(3) Despite section 2 (2.1), the operation of subsection (2) of this section is not affected by a subsequent reconciliation of the will-‐maker and the spouse. (4) For the purposes of subsection (2), the relevant time for determining whether a person

(a) was the spouse of a will-‐maker is at the time the will was made, or (b) became the spouse of the will-‐maker is at any time after the will was made and before the spouses ceased to be spouses under section 2 (2).

Revival of will, WESA 57 (1) A will or part of a will that has been revoked is revived only by a will that shows an intention to give effect to the revoked will or the part that was revoked. (2) Unless a contrary intention appears in the will that revives a will under subsection (1), if a will that has been partly revoked and afterwards wholly revoked is revived, the revival does not extend to the part that was revoked before the revocation of the whole. (3) If a will has been revived by a codicil or has, by a codicil, been re-‐signed in the presence of 2 witnesses, the will is deemed to have been made at the time it was revived or re-‐signed. (4) A will or part of a will that has been revoked may not be revived except

(a) by an order of the court under section 58 if the court is satisfied that the will-‐maker intended to give effect to the will or part of the will that was revoked, or (b) in accordance with any other provision of this Act that recognizes the revival of a will.

Will made in contemplation of marriage • section 15 (a) of the Wills Act, RSBC, provided that a will is revoked by the marriage of the testator, unless there

is a declaration in the will, that it is made in contemplation of the marriage (so if I make a will referring to Henry as my spouse 2 weeks before our actual marriage, our subsequent marriage revokes the will).

• Significance of this in light of the pre-‐WESA rule that marriage revoked a will, meaning estate distributed on intestacy-‐ so this provision “saved” a gift made in contemplation of marriage

• WESA removes this issue

Powers of appointment • A power of appointment is a right given by the owner and donor of property (donor) to donee to dispose of (or

“appoint”) the property-‐ delays distribution of the property, gives doneee the right to decided at a later time who should have the property; Blackacre to D for life, then to distribute between her children as she sees fit

• General power of appointment-‐ permits donee to appoint anyone • Special power of appointment-‐ permits donee to appoint anyone among a specified class of persons (among

children, eg) • Hybrid power of appointment-‐ permits donee to appoint anyone among a specified class of persons , but the

class excludes one or more persons who would otherwise form part of the class • May be followed by gift over in default of appointment (ìf my daughter fails to appoint, equally to my

grandchildren) • May be exercised by or through a will-‐ unless, when originally granted, it was restricted • A donee is under no legal obligation to exercise a power of appointment (unlike a trustee, who must perform

the trust)-‐If donee declines to exercise the power, the property will pass to those entitled to it in the event of default or will revert to the testator’s estate

Tassone v. Pearson 2012 BCSC 1262 • Mrs. Pearson’s will (handwritten on a stationer’s form) included a general power of appointment and provided

that her estate was to be distributed “as seen appropriate” by her executrix. The executrix (Mrs. Pearson’s granddaughter) decided it was most appropriate to distribute the entire estate to herself. Mrs. Pearson’s other grandchildren took issue with this and argued that general powers of appointment found in a will are not valid since they conflict with the fundamental principal that the person making the will must dispose of their assets and is not allowed to delegate this responsibility to others.

• Conclusion-‐ principle embedded in the common law of wills (and nothing in WESA to contradict it), and E entitled to use her discretion as she wished (even if this meant giving it all to herself)

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Revocation by act of T • By a subsequent document in which he or she declares an intention to revoke a will, such as a new will, or a

codicil, or • By destroying the will • Revocation clause at the beginning of a will provides statement of this intent to revoke any previous will

(although a statement of revocation is not necessary) • Implied revocation-‐ where there is no express revocation clause, and where a second will is inconsistent with a

first • Revocation can be total or partial (a gift, for example), to the extent that the later document is inconsistent with

the first • Codicil=an addition or supplement that explains, modifies, or revokes a will or part of one (a codicil is included

within the definition of “will” in WESA-‐ which means that the formality requirements applying to wills apply to codicils)

Re Davies • In his will, T passes “all of his farms and land” in Bedwas to D (Clause 8) • Subsequently, T makes codicil in which he specifically mentions a new (since he wrote his will) farm he has

bought in Bedwas-‐ Farm A, which he leaves to E for life, remainder to F (remainder to F failed) • Does the farm now pass to D as part of “all T’s farms and lands in Bedwas”, or does it fall into the residue as a

failed gift? • “Farm A being a farm in Bedworth not otherwise disposed of has not ceased to be a Farm at Bedwas within

meaning of clause 8-‐ where the gift in the codicil is inoperative there is no implied revocation of the gift in the will; clause 8 is revoked only to the extent that the codicil is effective only”

• The codicil did not effectively change the meaning of “all his farms and lands in Bedwas” to mean “all farms and lands in Bedworth except Farm A” in the event the codicil was ineffective

Leonard v Leonard • What if T removes a page, and replaces it? • All of the replacement sheets were signed by T, and 2 witnesses • The destruction of the original sheets (the ones that were replaced) revoked them-‐ the destruction of these

sheets effected the revocation of the will as a whole, as it was unintelligible without them; “He did not intend those last three pages to be operative without doing something more. He intended to put two other sheets upon them” and up until that point, the will was revoked

• When the two new sheets were appended, they did not revive the remainder of the will, and the first two sheets along (without the final signature) were not sufficient to constitute a will (the original will was revoked in its entirety; and the two first pages did not meet the formal requirements for a will)

By another • Can another person destroy a will, or must T be present? • Delack et al v Newton: alleged revocation of first will invalid because will not destroyed in the presence of T; first

will valid, although neither witness saw T sign it, because T acknowledged it as her own-‐ there is nothing in the evidence of the witnesses which would rebut the omnia praesumuntur presumption-‐ the Court is entitled to presume that all due formalities were met, although witnesses cannot now recall the signature

Alteration • Ts often change their minds, and may try to just cross out provision A and replace it with provision B-‐ such an

alteration is not effective, however, unless it complies with statutory requirements re alterations WESA, s. 54) • If the alteration is compliant, that provision is revoked • The presumption is that any alterations visible on the face of the will were made after it was executed, and not

before (meaning those alterations must conform to the statutory provision re altering-‐ if made prior to execution they would be more like final edits)

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Re Douglas Estate • T whited out the words “to my son, Leslie, if at the time of our deaths he needs the house in which to live,

otherwise it is to be sold and the proceeds to” leaving a statement that all is property was to be divided equally among the named children

• The obliterated section was not initialled or sign • E sought to prove the will including the obliterated words (claiming they were still visible and legible) • This alteration was not made in accordance with the legislation; therefore, the key question is whether the

words remain apparent after what appears to be their attempted obliteration-‐ if the apparent attempted obliteration was not successful, the words must be restored to the will (significance of apparentness is that something is not destroyed if still apparent)

• In this case the words were successfully obliterated (destroyed) by the liquid paper, and probate must succeed with a blank in that place

Conditional revocation • If T destroys a valid will under the mistaken belief that the will was invalid, the will is not revoked as T did not

have the necessary intention to destroy a valid will • If T is mistaken about the facts or the law, similarly, the will is not revoked as T could not have the requisite

intention to revoke the will (his revocation being conditional on the facts/law-‐ about which he was mistaken-‐ being true)

• Re Sorenson: T changes her will in mistaken belief that one B (who remained alive) had died; change substitute’s T’s friend for that B Under the circumstances there is no revocation, the cause being false

Dependent relative/conditional revocation • Where revocation of an old will dependent on a new one taking effect, -‐ so if the new one is not made or fails

for some reason, the old one is effective (applies also to a specific gift in a will, ie the prior gift remains effective unless and until the new gift becomes effective)

• Re Jones: T dies, having mutilated the old will (benefitting dependent relatives) and before having made the new one-‐ trial judge held old will mutilated because T intended to replace it with new one, so old one remains effective

• Why did T tear it up? Did he believe this would automatically revive an old will? Did he believe this was necessary in order to carry out his intention of making a new will? If the intention to revoke was conditional, has that condition been satisfied?

• T intention that revocation of old will be conditional on new one taking effect something more than T merely considering the idea of making a new will/gift at the time he destroys the old one (not a fixed intention); no evidence here that T intended her revocation of the old will to be conditional on a new one (but, rather, that she intended to revoke her will “then and there” (evidence she was unhappy with Bs)

Revival of revoked wills • Sometimes T revokes a will under belief that this will have the effect of reviving a earlier one • WESA, s. 57 (1) A will or part of a will that has been revoked is revived only by a will that shows an intention to

give effect to the revoked will or the part that was revoked • (3) If a will has been revived by a codicil or has, by a codicil, been re-‐signed in the presence of 2 witnesses, the

will is deemed to have been made at the time it was revived or re-‐signed

Alma Gertrude Turner (Estate Of) FACTS:

• T’s 1987 will not properly witnessed • After execution, T delivers original of 1987 will to daughter, who delivers it to PGT after T’s death • A copy of a codicil dated 1990 found in T’s metal box; witnessed by 2 persons but usual attestation clause

missing (cured by affidavit from witnesses that they were present when T signed the will, and signed in presence of T and each other)

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• Codicil begins, due to circumstances I wish to make changes to my 1987 will…. Revokes gifts to A and B (made in 1987 will) and directs the residue to be held in trust for one son (1987 will devised the residue to all 4 children and A and B in equal shares

• The original of the codicil has never been found ISSUE:

-‐ Can the photocopy of the codicil suffice as the document? -‐ How could the codicil have saved the original will? -‐ Re-‐published the will through the attestation clause -‐ References the will – as “my will”

RATIO: -‐ Subsequent codicil can rectify a defected will through referencing it as “my will” – attestation clause. -‐ By the codicil itself is not effected because it’s a photocopy – presumption is that it’s destroyed but it still revives

the 1987 will ANALYSIS: There are two methods of republication:

• 1. By its re-‐execution with the proper formalities • 2. By a duly executed codicil containing some reference to it (confirmation need not be explicitly stated); “thus a

codicil described as a ‘codicil to my will’ republishes the will because the inference is drawn from the reference that, when executing the codicil, T considered the instrument referred to as his will and thereby confirmed it”

• Here, the 1990 codicil could have republished the 1987 will (by the reference in the codicil to T’s 1987 will), and in doing so cured its defect

• Problem here: the missing original codicil (photocopy only found) • A presumption of destruction arises when it is shown that T’s will was last traced to his or her possession but

cannot be found, after thorough search, on T’s death (ie. presumption is that will cannot be found because T destroyed it)

• Presumption can be rebutted by circumstances supporting conclusion that will not destroyed, or by declarations by T that the lost will was valid and subsiding

CONCLUSION: Here there is a presumption that the codicil was revoked, that is not rebutted (indeed evidence suggests otherwise); 1987 will restored

MacDonell v Hudson FACTS:

• Codicil makes no changes to gifts, but changes executors (replacing T’s nieces with K, M and C). C is a solicitor and the will includes a charging clause (allows C to charge his professional fees for estate-‐related work)

• Codicil occurs after nieces had taken steps to obtain a committeeship over T’s affairs) ISSUE: Did T have the necessary mental capacity to execute the codicil? RATIO: T had been discharged from hospital with a diagnosis of dementia just prior to executing codicil; affidavits from witnesses establish that T understood the nature and effect of the codicil; this is good enough

Mutual wills • Mutual wills are wills which contain a covenant not to alter the provisions of the will-‐ they remain revocable

notwithstanding the terms of the mutual will • However, the mutual wills may give rise to constructive trusts which cannot be revoked-‐ the agreement within

the wills not to alter or revoke the provisions without the other’s consent gives rise to the constructive trust that will not be revocable

• the first will maker to die must have done so without having revoked or altered the will in breach of the agreement; if so the court will direct that the property be paid out of the estate on the basis of the constructive trust even where the surviving will maker has altered his or her will

University of Manitoba v Montreal Trust (Sanderson Estate) • U of M seeking declaration that Montreal Trust Co holds residue of T’s estate as a constructive trust for U of M

FACTS:

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• T and his wife (W) had executed “mutual wills” stipulating that estate of first spouse would be held in trust for life (or until remarriage) for the survivor, residue to U of M; They also signed an agreement that provided that neither would change his or her will during their joint lives without the other’s agreement. Each agreed they would not change his/her will after the death of the other.

• By the date of W’s death in 1985, most of W and T’s assets had been acquired by them after they made their mutual will agreement and were held in joint tenancies, with right of survivorship, and the interest W held in their assets flowed to T outside of her estate; shortly thereafter T made a new will inconsistent with the terms and provisions of the mutual wills-‐ residue to named beneficiaries with the rest to U of M (so substantially reduced from mutual will)

ISSUES:

• Was the agreement not to revoke their mutual wills revoked by T and W during their lives by the purchase of jointly held assets? No-‐ the agreement contained a provision allowing it to be revoked with written consent of both parties, but that did not happen

• Did T’s obligation depend on his receiving a benefit under W’s will (that would give rise to unjust enrichment if the constructive trust were not enforced)?

• As T received no benefit through W’s will (the interest passing by right of survivorship), was T for this reason not bound by the mutual will agreement after W’s death?

• No: it is sufficient that W relied on the agreement in keeping her will, and it would be inequitable to allow T to change his will after she kept her will in reliance of the agreement.

CONCLUSION:

• The Court of Appeal found that U of M had a remedial constructive trust interest in T’s estate

Jung, Re Estate of Horace Lee Conditional Revocation of Wills FACTS:

• Horace and Hubert were siblings; Hubert made 2 wills, one in 1977, one in 1985 • 1977 will makes Horace executor, gives houses and property and residue to Horace; 1985 will revokes 1977 will,

makes Horace and Estelle co-‐ executors, and includes the following on the first page: • “My shares of Lee Bros. Holding Co. My property of 817 North Park St., Victoria, B.C. and 35% of cash & bonds to

my brother Horace. 35% to my sister Estelle of cash & bonds. 35% divided evenly for my sisters Elsie, Edythe, Effie and my brothers Harold & Henry of cash & bonds.”

• The 1977 will was probated; plaintiff asks for revocation of probate and that 1985 will be proclaimed as true last testament

Events after Hubert dies

• When Hubert died, Estelle says Horace gave her a copy of the 1985 will, and that she and Horace went to see the lawyer Mr. C; according to Estelle, Mr C said there were “problems” with the 1985 (the placement of Hubert’s signature and the addition of “Edythe” with a carrot ^), and that they could probate the 1977 will, but distribute property in accordance with the 1985 will

• Estelle left it to her brother to decide what to do, but put her copy of the 1985 will in her safety deposit box • Mr C says he did not meet Estelle until after Horace’s death, that Mr B in his office handled matters after the

death of Hubert; according to Mr C, when Mr B contacted one of the witnesses to Hubert’s 1985 will, witness said that the “whole thing [the first page containing the dispositions] was blank”; also (according to Mr B’s account of his conversation with witness) the “Edythe” addition was not there when he signed the will-‐ according to the witness, with reference to the blank parts, Hubert said “I haven’t’ made up my mind I’ll fill that in later”-‐ Mr B called this revelation a “lightening bolt”

• Horace, according to Mr B, said “why not just probate the 1977 will?” Mr B declined, and understood Horace took the mater elsewhere (1977 will was probated)

• Horace dies intestate in 2001

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Witness testimony (1985 will) • According to witness, after explaining why he wanted to change the dispositions to his family members to

recognise Estelle, Hubert signed the will, then the two witnesses in the presence of each other and Hubert-‐ the witness was “adamant that everything was filled in at the time”[no blank bits pending Hubert making up his mind]-‐ he denied the conversation recounted by Mr C

Was the 1985 will properly executed by Hubert?

• Evidence of lawyers preferred • Presumption that will properly executed is rebuttable, if defeated by clear, positive and reliable evidence

showing a defect in execution • The evidence establishes that the will was signed by Hubert and the witnesses correctly; the 1985 will was

properly executed, but not complete • The 1985 will was altered in a way that was not in accordance with the formal requirements of the legislation-‐

the evidence of Mr B in this regard is preferred to the witness [para 54-‐58] • The rest of the will was valid including the revocation clause • “I have no hesitation in coming to the conclusion that the alterations set out in the 1985 will accurately

represent the sentiments of Hubert when the alterations were made but that those alterations were made later and were not properly witnessed”

• However, only that part containing the alterations is invalid; the rest of the will was validly executed, including its revocation clause (revocation of the 1977 will)-‐ the 1985 will is not failed, but incomplete

Was the revocation conditional-‐ a “dependant relative” (conditional) revocation?

• My revocation of Will A is dependent on my successfully disposing of those assets in Will B • Testator only intended the revocation to take effect if the subsequent gift was effected • Presume that you are trying to replace your earlier will, but not revoking it, merely updating it in a sense • Always concerned with T’s intent • If the 1985 will revoked the 1977 will, but the distribution portion of the 1985 will was invalid, the estate would

pass on rules of intestacy • However, did the rule re dependent relatives revocation make the revocation clause in the 1985 will conditional

(conditional on the efficacy of a new will)? • “Merely because the 1985 will contained a revocation clause does not necessarily mean the 1985 revoked the

1977 will”-‐ it will not have done so if the revocation clause on condition of a new effective testamentary disposition; “although T does an act which unexplained would be one of revocation, yet if it appear that he did it only as a part of the means of setting up another will, if that end be not accomplished the former will is not revoked”

• Is this what Hubert was doing? If it is than it would revert back to the other will • If the attempt to gift fails that the revocation clause comes in

Jung Estate, cont’d

• “the intention of Hubert when adding the revocation found in the 1985 Will was clear — he wanted to revoke the 1977 Will and substitute the bequests that he added to the 1985 Will after it had been executed. Accordingly, I hold that the revocatory clause in the 1985 Will was conditional, the condition being that the bequests which were set out [in the 1985 will] would be valid.”

• Note-‐ the Court of Appeal order a second trial, at which it was found that the 1985 gifts were valid (preferring the evidence of the witnesses); the 1985 will did therefore revoke the 1977 will, and the 1977 will should not have been probated

• If those gifts are valid than the revocation clause is valid too • Horace had fraudulently concealed his knowledge about the 1985 will, delaying the limitation period (so Estelle’s

action not time-‐barred); it was now too late to undo everything that had happened, so Horace’s estate to pay 1985 beneficiaries what they would have been entitled to under 1985 will

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Smith Estate • E handwritten alterations to will of Smith • T executed valid will 2003-‐ subsequently removed (handwritten alteration) former common law spouse as

executor and as his sole residual B alterations not initialled by T or signed by witnesses) • Is there sufficient evidence of intention to overcome formal invalidity? (allowed by legislation) • Yes! Factors discussed at para. 15

Interpretation -‐ Where the meaning for the will is unclear the personal representative may need the guidance of the court on

how to proceed – the court must the interpret or “construct” the will -‐ A will is normally brought for interpretation through a representation by the personal representative -‐ Sometimes interpretive issues may also arise in the course of “proving” a will

Purpose of Interpretation

-‐ To ascertain the true intentions of T within the limits of the law -‐ Effect cannot be given to an intention which is not expressly or implicitly contained in the words of the will (Even

if there is evidence of that intent outside of the will) – to find otherwise would negate the requirement that a will be in writing – although modern courts take a more lenient approach to looking at “extrinsic evidence” (outside of the words themselves) as an aid in interpretation (more later!)

o Something to be avoided – the will is in the words o Modern approach “in light of” the words

-‐ Stricter approach necessarily increases significance of precedent (ie how have these words been interpreted in the past?)

-‐ Certain principles and rules of construction always guide the process of interpretation Principles and rules of interpretation

-‐ The whole will to be read in context (ie. words not read in isolation from each other but in relation to the whole) -‐ Identical words in the will are presumed to have the same meaning (presumption can be displaced by clear

meaning to the contrary, but he context, or by extrinsic evidence) -‐ Effect to be given to all words (so, eg, reference to “nephews” must be read as including half-‐nephews as T only

had one full nephew at the time and circumstances made it unlikely he would have others – a different interpretation would render the reference to nephews meaningless.

-‐ Ejusdem generis: general words must be given a restrictive interpretation that is consistent with particular words included with them, where the particular words form a common class of thing (so male Ts’ reference to his “personal jewellery” following specific references to his masculine items of jewellery, in a bequest to a young boy, held not to include items he had inherited from his wife)

-‐ General v particular intention: if the two may appear inconsistent, the general intention is paramount. Re Hopkins: general intent of T is to ensure continued functioning of school as a school, until it could be turned over to a charitable foundation; interpretation of school funds paid in advance as “operating funds” (as distinguished from “cash in hand”, although those funds existed as cash in the bank) consistent with that general purpose; often occurs where T appears to have made an absolute gift to B, followed by a gift-‐over to C and D-‐ the court must determine which of these intentions were dominant (we could say that T was just trying to give life estate with generous encroachment to B, but was inept)

Presumption against intestacy (rule of interpretation)

-‐ If a will is fairly capable of two interpretations, one resulting in some or all of the property being incompletely disposed of and the other completely disposing of all of the testator’s property, it is presumed that the testator intended to dispose of his or her entire estate and did not intend to die intestate in respect of the whole or any part of the estate. The presumption is especially strong if the testator has purported to dispose of all his or her property. Re MacDonald, (1982), 35 OR (2d) 578

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o Presume that the whole purpose of having a will is to make gifts -‐ When a testator has executed a will in solemn form you must assume that he did not intend to make it a solemn

farce -‐ that he did not intend to die intestate when he has gone through the form of making a will. You ought if possible to read the will so as to lead to a testacy, not an intestacy. This is a golden rule. Turner v. Hellard (1885), 30 Ch.D. 390 (C.A.)

o Sometimes this is not possible o But the court can’t impose it’s own words and language in place of testator’s

-‐ However, ... The avoidance of intestacy is not enough to induce the court to give an unnatural meaning to words or to construe plain words otherwise than according to their plain meaning. McEwan Estate, [1967] 62 W.W.R. 277 (B.C.C.A.),

-‐ We encountered this interpretative presumption when discussing conditional gifts; if two interpretations are sustainable, we give effect to the one which succeeds in gifting, as we presume that’s what T was trying to do with her will (although of course T may show that she intended to leave a part of her property undisposed of, as where T did not dispose of his estate, other than particular items of domestic use, in the event his wife predeceased him-‐ Howell v Howell Estate)

-‐ “I agree it is very unlikely the testator in this case intended not to leave his entire estate; however, the fact is that he failed to make provision for his assets (other than personal effects) in the event that his wife predeceased him. It is one thing to try to give effect to a testator's intention where he has used an ambiguous word or phrase — it is entirely another thing to supply a missing bequest out of thin air. No authority was cited for the proposition that the court can do so or that it can ignore perfectly clear language in order to avoid an intestacy. In the result, I am not persuaded that the Chambers judge made any error whatsoever in his reasoning, and I would dismiss the appeal.” (Howell v Howell Estate)

Rules

-‐ Presumption of rationality (in cases of ambiguity) -‐ Presumption of legality (in cases of ambiguity) -‐ Presumption against disinheritance, unless words ambiguous prefers interpretation that will favour near over

distant kin -‐ In case of irreconcilable dispositions in two clauses appearing in the same will (when we cannot interpret the

provision to avoid the irreconcilability, which is preferred): the last one prevails: exceptions o Where separate clauses give same property to different Bs o If application of the rule would result in intestacy, first is preferred o This is because it would be the last statement the testator said

Specific rules of construction

-‐ Fix an arbitrary objective meaning on certain common words (again, where no contrary intention can be found) -‐ “Legion” common example include:

o Spouse – WESA defines this o Children and grandchildren o Issue o Next of kin o Other relatives o Gifts to two or more persons (class gift( o Gift to survivors o Multiple gifts (when cumulative, when substitutionary) o Power of selection

WESA: heirs, issue, next of kin S. 42 42 (1) This section is subject to a contrary intention appearing in a will.

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(2) A gift of property in a will to persons described as "heir" or "next of kin" of the will-‐maker or of another person takes effect as if it had been made to the persons among whom and in the shares in which the estate of the will-‐maker or other person would have been divisible if the will-‐maker or other person had died without a will. (3) In a gift of property in a will (a) the words (i) "die without issue", (ii) "die without leaving issue", or (iii) "have no issue", or (b) other words importing either no descendants or no descendants in a person's lifetime or at the time of the will-‐maker's death or a complete absence of descendants, are deemed to refer to no descendants or no descendants in the lifetime or at the time of death of that person and not to a complete absence of descendants of that person. (4) A gift of property to a class of persons that (a) is described as a will-‐maker's "issue" or "descendants" or by a similar word, and -‐ must be distributed as if it were part of an intestate estate to be distributed to descendants. The meaning of particular expressions

-‐ Words generally taken to have their ordinary common sense meaning -‐ Perrin v Morgan: concerns meaning of word “money” -‐ T’s will referred to “all moneys I possess”; her property included investments, cash in the bank, some other cash

accrued dividends and accrued rent, an income tax repayment, household goods, and freehold-‐ did reference to “moneys” mean only cash?

-‐ The fundamental rule is to “put on the words the meaning which, having regard to the terms of the will, T intended”

-‐ In the case of an ordinary English words like “money”, which people do use in different ways, no justification for putting a fixed “cast iron” meaning on it when it appears in a will based on precedent (the word “ money” does no have only one ordinary and natural meaning-‐ case gives us several examples of diverse ways in which word is used)

-‐ The proper meaning is the correct meaning in the case of a particular will Perrin v Morgan cont’d

-‐ The context in which the word is used is, of course a main guide to its interpretation -‐ I should have thought that a will in a single sentence disposed of all the money of which I die possessed”

indicated T was using the words in a road sense, but an interpretation that also includes realty (w/o evidence of intention) is going too far

-‐ Even if we applied the definition of money as developed through precedent, indications here that I intended something broader – she had significant investments to which she made no other reference in her will; did she really mean to dies intestate in respect of these?

o Limit exploration to precedent o That is rejected in favour of the broader approach

The armchair approach

-‐ Read the will from the perspective of T (As if sitting in her “Armchair”) – can’t remake the words of the will (effectively making a fresh will) to achieve the intent you think T had (remember ”in writing” requirement – Howell v Howell Estate)

-‐ But if the courts is prevented by some rule of construction from giving effect to what the language of the will, read in light of the circumstances in which it was made, convinces it was the real intention of T, it has misconstrued the will

-‐ Recourse to the rule of construction is justified after the will has been read in accordance with the approach described above

Words defined by T: Re Helliwell

-‐ T may be explicitly providing the court with the dictionary she is using

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-‐ Usually makes meaning very clear -‐ Here T gave the residue of his estate t his “nieces and nephews” then expressly named nephews (who were

illegitimate), stating they were entitled to a share equally with his other nephews and nieces o His sister was illegitimate but her child was legitimate, should this person be included in the class? o Is T saying that he means to include all illegitimate nieces and nephews or explicitly just the ones stated?

-‐ By treating or naming definite individuals as relations who are not strictly such, T indicates that he is using the word in a wider or looser sense, and may therefore include in a class other persons in a corresponding position (such as the child of T’s illegitimate sister S)

o Act of interpretation Terms of art: RE Cook -‐ Certain terms have acquired a technical meaning in law, becoming “terms of art” – usually, words will be given such

a meaning (if they are indeed a term of art) o Certain Lawyerly words that are common in the legal context that they have acquired a character “term

of art” à it will have a settled meaning -‐ Re Cook: a case where a layman has chosen to use a “term of art” (“all my personal estate”), words so well know to

a lawyer that it must take a very strong context to include real estate (“T can make black mean white if they make the dictionary sufficiently clear”)-‐ but no such clarity here

o They might think that it means everything they own and it’s not… o We have to assume that this is what the Testator intended

-‐ T only disposed of her personal estate (in the lawyer’s sense), and not her house (which is realty) Partial intestacies -‐ In the absence of a contrary intention discernible in the will, the next of kin are to be ascertained at the date of T’s

death (Bullock v Downs rule) – arises where T part of an estate (of otherwise disposed of) to be distributed to next of kind “as on an intestacy”; T might specify when this is to be determined but not likely

-‐ National Trust Co v Fleury: T died, survived by daughter M -‐ Residue on trust to pay M $5,00 pa for life, power to encroach on capital; on death of M, 50% equally to M’s cousins,

other 50% to be distributed to persons entitled as on intestacy -‐ M is T’s next of kin on death of M-‐ M would take as on intestacy-‐ reversed on appeal, M’s estate appeals to SCC -‐ In this case, there is sufficient indication that T did not want the intestacy to be ascertained on his death (trial

result); “the whole scheme of the residuary clause appears to be predicated on the assumption M would be alive on T’s death, with the trial result following, and if this is the case T would intend to give a vested interest a his death-‐ but the language of the will indicates that T intended to his estate to be kept whole during his life, subject to payment to M

-‐ In this case, it is clear that T intended that the persons entitled to take as on intestacy be determined at the date of M’s death

Admissibility of evidence

-‐ Extrinsic evidence (ie evidence outside the will itself) Includes evidence of surrounding circumstances at the time the will was made, such as character and occupation of T; amount, extent and condition of T’s property; the relationship of T to her immediate family and relatives, friends, other natural objects of bounty”

-‐ Extrinsic evidence may be used to resolve ambiguity; if the ambiguity cannot be resolved, it fails for uncertainty -‐ “Strict constructionist” approach: the court must initially construe a will without regard to extrinsic evidence

(Tottrup v Patterson)-‐then, having concluded this exercise, if the objects in the world match the objects described in the will, that’s it; evidence of extrinsic evidence that T meant something else is excluded

-‐ If words do not describe objects or subjects in the worlds, sit in T’s armchair and consider the matter from this perspective

Extrinsic evidence

-‐ A more relaxed approach is that extrinsic evidence should be admitted when the court starts to interpret the will; sitting in the armchair from the beginning

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-‐ Both approaches have been taken by Canadian courts -‐ Haidl v Sacher-‐ the relaxed approach; extrinsic evidence under consideration in case goes only to indirect, nor

direct evidence of intent (such as instructions T gave to his solicitor-‐ more about that later) -‐ Question about whether named children of HH take per capita (each living member of the group takes equally)

or per stirpes (descendants of deceased B take by representation, in equal shares-‐ gift made to each branch of the family, as opposed to individuals)

-‐ Should extrinsic circumstances be taken into account only if the ordinary meaning is ambiguous and unclear (Procedure A), or if the circumstances should be considered from the start, and that the “ordinary meaning” should be applied in light of the surrounding circumstances (Procedure B)?

• We don’t look at explicit words that T made to somebody about the dispositions in their will Haidl v Sacher

-‐ The proper object of inquiry is not subjective meaning of T uncontrolled by words, or objective meaning of words uncontrolled by context, but rather the objective meaning of the words as used by particular T-‐ seems to sum up the English position (favouring position B)

-‐ “In the end it must be said that the Canadian authorities tend to put forward procedure B as the proper approach. After all ascertaining T’s true intention is the real and only purpose of the whole exercise”

-‐ In this case, the evidence (relationship of T to Bs, plus overall framing of this bequest) indicates that TY was considering the Bs not as individuals but as households, and meant them to take on that basis (per stirpes)

-‐ The trend in Canadian cases has favoured this approach Evidence of T’s intention

-‐ Evidence of her actual intent, such as statements made by her (as opposed to indirect extrinsic evidence), is admissible only in a case of “latent ambiguity”, ie. two or more objects of the gift to which the description applied equally (ie not readily obvious on its face-‐ X to my niece Jane and my nephew Joe-‐ but apparent on consideration-‐ X to my niece Emily and I have two nieces called Emily)

-‐ Why might this be? [that statements of actual intent are not considered] -‐ In a case of latent ambiguity, we can look at direct evidence to discern true intent

• Same gift to Jane as Joe – is inconsistent. Or Give X to Emily, but have two nieces Emily (statements about actual intent will be germane)

-‐ Re Carrick (gift to Protestant Orphan Boys Home Toronto-‐ no such thing, but there is a Protestant Children’s Home and a Boys Home); evidence that T had told people he had left money to the Boys’ home

Drafting errors and omissions

-‐ Limited jurisdiction to “correct” errors and omissions and reject incorrect descriptions (“correct” is in quotes because what is happening is actually an interpretation)

-‐ The court may complete T’s will where satisfied of an omission only, and can discover what T meant (in terms of intended effect; exact words not essential)-‐ what was intended must be evident with reasonable certainty

-‐ Re Freeman: the court cannot rewrite the provision; omission must be clear from “four corners of the will” and “collect with sufficient provision” the nature of the omission

-‐ Passage at 511: no doubt there is an omission; otherwise it would be highly odd, in the context of the will as a whole, that T would neglect to provide for what would happen to the remainder (after wife’ life estate) if wife survived him for more than 30 days (which is what happened); clear that T did not intend for remainder to pass on intestacy

Drafting errors

-‐ The construction (interpretation) jurisdiction includes the power to correct drafting errors if the error is apparent and the intention of T is clear

-‐ Re MacDonnell: T gifts sister, A, in event that A outlives T; Clause 3 (f) “if A has predeceased me [T], then and in such an event I make the following special bequest…. (31 specific bequests and 5 other provisions) Sub-‐clause (37) provides “all the rest and residue of my estate to… [charities]”

-‐ Did charities take gift only if A pre-‐deceased; as she did not, was there an intestacy?

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-‐ Found: T did intend to dispose of her entire estate (this is apparent from the will read in its entirety-‐ “The scheme of her will reveals an intention to dispose of all of her property” and not an intestacy of the residue in the event A survived her)

-‐ If that is T’s intent, it is clear the (37)-‐ creating a subclause of the “if A precedeases me” clause-‐ was inserted in error; if we remove it, the gift of the residue stands alone, and is not in any way dependent on A predeceasing T

-‐ “If words can be rejected where warranted by context and scheme of the will so too can numerals” Rejection of inaccurate description

-‐ Where a non-‐essential part of a description is true and part false, the false part will be disregarded if the true part describes the object with sufficient certainty-‐ extrinsic evidence is available for the purpose of establishing whether this is so

-‐ Reference to “my sister in law Mary Alicia Stone” and I have a sister in law named Alicia Stone (not Mary), it can be shown I intended Mary

-‐ Falsa demonstratio-‐ a false description does not void the gift is the intention is clear -‐ Re Beuchamp: gift of certain parcels of land (the “home farm”), but lot numbers given were incorrect; we may

look to extrinsic evidence to determine testator’s intended meaning of “home farm”; clear that reference to lot and parcel after reference to homefarm incorrect, and those words are to be disregarded

Laws et Rabbitt

-‐ T dies childless -‐ Her nieces and nephews would take on intestacy (the Laws); the Dobson group (descendants of T`s second

husband) are not -‐ T`s will disposed of cash to a number of named beneficiaries (includes Laws and Dobsons); but no direction is

made for disposition of non-‐cash assets -‐ Should the court `read in` to the will a `sell and convert` clause OR whether a broad meaning should be assigned

to the phrase `cash residue`` (to include non cash assets) Under either approach, intestacy avoided (and gifts pass to both Dobsons and Laws

-‐ `The basis upon which I should proceed is to examine the will to determine whether thee appear to be words that are omitted or not clear. Where there is an omission that is plain on its face or an ambiguity, I may apply common sense to make a change or addition, but may only do so where T`s intention is clear. I am entitled to consider the context of the whole will and surrounding circumstances, which existed at the time of the execution of the will, and I should prefer an interpretation which will avoid intestacy. I am not permitted to consider evidence of T`s intention as provided by the party who drew the will or from any person who purports to say what he intention was.``

-‐ What is the outcome where and why

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Cases:

Laws et al v. Rabbitt et al, 2006 BCSC 1519

Murray Estate, 2007 BCSC 1035

Re Meier (Estate of), 2004 ABQB 352

Tottrup v. Patterson et al., [1970] S.C.R. 318

Intestacy What is intestacy?

• When a person dies without a will, that person is said to have died intestate. • When the person dies leaving a will that does not fully dispose of his or her estate, he or she is said to have died

partially intestate • In both cases, the rules about who is entitled to share in that deceased’s estate are determined by statute. • In British Columbia Part 3 of the WESA sets out the mandatory legislative scheme for distribution.

WESA, Part 3 • S. 20 spouse and no descendants: entire estate to spouse. • S. 21(2): If a person dies without a will leaving a spouse and surviving descendants, the following must be

distributed from the intestate estate to the spouse: • (a) the household furnishings (defined in 21(1));

• Description is very broad and general • The Zeitler case deals with this question specifically • It is broad enough to make a reasonable argument that something is or is not a household

furnishing • (b) a preferential share of the intestate estate in accordance with subsection (3) or (4).

Definition of spouse • “Spouse” is defined in section 1 by reference to section 2 of WESA

• Spouse means what the legislation says “Spouse” means • Not what other acts/ legislation says but what WESA says

• A married spouse has the same rights as a common law spouse; a spouse can be two persons who are legally married or two persons who have been living in a marriage like relationship for at least two years at the critical time (the date of death of the deceased); both marriage and marriage like relationships can now be between persons of the same gender

S. 21 -‐ Spouse’s preferential share • S.21(3) If all descendants referred to in subsection (2) (“If a person dies without a will leaving a spouse and

surviving descendants”) are descendants of both the intestate and the spouse, the preferential share of the spouse is $300 000, or a greater amount if prescribed.

• Presumed Life estate working in the background if children are common; however, if children are not common this is not a presumption

• S.21(4) If all descendants referred to in subsection (2) are not common to the intestate and the spouse, the preferential share of the spouse is $150 000, or a greater amount if prescribed.

• Blended families is not uncommon today and the legislation needed to recognize this cultural change • This was something the legislature really wanted to change in recognition of the realities of modern

family life • S. 21(5) If the net value of an intestate estate is less than the spouse's preferential share under subsection (3) or

(4), the intestate estate must be distributed to the spouse. • Spouse no longer has a right to live in the spousal home for the remainder of his or her life

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• There used to be a LE in the spousal home, but WESA took this away • However, Testator can give a LE to the spousal home, but this does not arise automatically as a result of

intestacy • s. 21(6) If the net value of an intestate estate is the same as or greater than the spouse's preferential share

under subsection (3) or (4), • (a) the spouse has a charge on the intestate estate for the amount of the spouse's preferential share

under subsection (3) or (4), and • (b) the residue of the intestate estate, after satisfaction of the spouse's preferential share, must be

distributed as follows: • (i) one half to the spouse; • (ii) one half to the intestate's descendants.

S. 2 (2) -‐ When a person is no longer a spouse (meaning intestacy and variation rights will end) • Re married spouses: s.2(2)(a) in the case of a marriage, an event occurs that causes an interest in family

property, as defined in Part 5 [Property Division] of the Family Law Act, to arise-‐ under the Family Law Act the act of separation alone, with the intention of permanence of separation held by at least one spouse, is sufficient to make a claim for distribution of property under the Act, ie. immediately upon separation with intention of permanence spousal status ends

• We need to pay attention when someone stops being a spouse • There is no “triggering event” anymore in the FLA, used to be in the Family Relations Act • One subsection says wait two years; other says that it happens as soon as the event occurs that causes

an interest in family property • WESA was amended to take out that first subsection • Clean up of the provision is very recent

• A potential outcome is that Spouse 1 could leave Spouse 2 on April 1 with intention to separate permanently, and Spouse 2 would lose intestacy rights-‐ unfairness?

• This is a challenging provision because what constituted ending a relationship • There will be action in this area

• S.2(2)(b)-‐ in the case of a marriage like relationship, where one person terminates the relationship • “Grace period” appears to have disappeared

S.22 -‐ Two or more spouses • Changes to definition of spouse make the possibility of this arising much less likely (previously, could have arisen

if a person had not gotten a divorce/satisfied living separate and apart requirements but was living in a new spouse-‐like relationship)

S.22 (1) If 2 or more persons are entitled to a spousal share of an intestate estate, they share the spousal share in the portions to which they agree, or if they cannot agree, as determined by the court. (2) If 2 or more persons are entitled to apply or have priority as a spouse under this Act in respect of an intestate estate, they may agree on who is to apply or who is to have priority, but if they do not, the court may make the decision.

S. 23 -‐ No spouse but intestate leaving descendants or relatives • First, equally among descendants (distributed pursuant to section 24, discussed further, infra) • Then, equally to surviving mother or father • Then, brothers and sisters; nieces and nephews (descendants of intestate’s parents), distributed pursuant to

section 24 • Important part is they are a descendants of the Testator’s parents

• Where the intestate is not survived by a spouse, descendants, parents or descendants of parents sections 23(2)(d-‐ grandparents)(e great-‐grandparents)and (f-‐ escheat) set out the distribution scheme.

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S.24 -‐ Distribution to descendants • Section 24 deals with distribution to the descendants of a person. “Descendant” is defined as all lineal

descendants of that person through all generations (so it seems to have the same legal meaning as “issue”. ) • Section 24(1) sets out how the number of shares is determined: • (1) When a distribution is to be made under this Part to the descendants of a person, the property that is to be

so distributed must be divided into a number of equal shares equivalent to the number of • (a) surviving descendants, and • (b) deceased descendants who have left descendants surviving the person, in the generation nearest to

the intestate that contains one or more surviving members.

S. 24(2) -‐ Distribution of shares • Subject to subsection (3), each surviving member of the generation nearest to the intestate that contains one or

more surviving members must receive one share, and the share that would have been distributed to each deceased member if surviving must be divided among that member's descendants in the same manner as under subsection (1) and this subsection.

• The children of a deceased parent take the share (divided equally among them) that would have gone to the parent if the parent had lived to take it (per stirpes representation).

• Eg. M has two children S and E (no spouse); M dies intestate (E predeceases M leaving children A and B); M’s estate distributed in equal shares to S (50%) and children of E (25% to A and 25% to B-‐ E’s portion of 50% distributed in equal shares to A and B)

Division 2, Spousal Home • Spousal option to purchase home: A surviving spouse under WESA is entitled to an option to purchase the

spousal home in which the deceased person and his or her spouse were ordinarily resident (ss. 27-‐35); does not receive life estate by operation of statute

• the surviving spouse has 180 days from the date of the representation grant (aka grant of probate), in which to exercise the option to purchase the spousal home.

• The court can extend the 180 day deadline in appropriate circumstances. • There is a corresponding prohibition against the personal representative of the estate disposing of the spousal

home within 180 days of the representation grant, without the spouses consent. • WESA deals with the idea of a spouse having a LE it provides the option to purchase • Period where the home is “on ice” and the spouse can decide if they want to own it

Valuing the spousal home • When exercising the option, the surviving spouse must include the value he or she places on the spousal home.

If the personal representative disagrees with this value and no agreement can be reached, then the court’s direction can be sought. Where the surviving spouse is the personal representative, the agreement of the descendants must be obtained or a court order sought.

“Retention of spousal home” (s. 33) • Where the purchase of the spousal home would work a significant financial hardship on the surviving spouse, an

application to court may be made by the surviving spouse. The court under s. 33 then has a broad discretion to make various orders; examples include: (1) vesting the spousal home in the spouse; (2) setting the amount the surviving spouse must pay the descendants; and (3) converting an unpaid interest of the descendants to a charge against the title to the home

• Reversal of the default if it would be incredibly unfair • The court must be satisfied that “in all the circumstances, a greater prejudice would be imposed on the surviving

spouse by being unable to continue to reside in the spousal home than would be imposed on the descendants entitled to share in the intestate estate or that part of the estate that is to be treated as an intestate estate by having to wait an indeterminate period of time to receive all or part of their share of the intestate estate, and

• (e) either

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• (i) the surviving spouse has resided in the spousal home for a sufficient period of time to have established a connection to the spousal home, or

• (ii) the surviving spouse has a sufficient connection with the community or members of the community in the vicinity of the spousal home to warrant an order under subsection (2).

Indian Act Regime

Summary (“Distribution of property on intestacy”, s. 48) The above scheme can be altered at the Minister’s discretion. Minister has authority over this scheme if they feel it’s fair to do so 1. If the net value of the estate is less than $75,000, the surviving spouse or common law partner gets the entire estate; 2. If the net value of the estate is more than $75,000, the surviving spouse or common law partner gets the first $75,000; (a) no issue = remainder to survivor (b) If there is one child, the surviving spouse or receives half the remainder, with the remaining portion going to that child; (c) if there is more than one child, the surviving spouse receives one-‐third of the remainder, with the remaining portion being divided equally among the children; and If a child has predeceased the deceased and has issue, the issue will receive the child’s share. 4. If the deceased had no spouse, children, or grandchildren at the time of death, the next heirs in line are: 5. Parents; 6. Sisters and brothers, or their issue in their place; and (nephews and nieces) 7. Next of kin of equal consanguinity. 8. If there is no relative closer than a brother or sister, then reserve land appears to vest in Her Majesty for the benefit of the band; Indian and Northern Affairs Canada considers this area of the law to be unclear (its position being that nieces or nephews may not inherit an interest in reserve land through an intestate estate).

• Anyone who is legally adopted or adopted according to Indian custom is treated as if he or she were related by blood to the adoptive relative. There must be a finding of adoption by custom before that child can inherit.

• Ripe for significant attention and for an overhaul

Young v Abercrombie FACTS:

• Will construction and the presumption against intestacy • D’s will provides for the residue of his estate to be divided equally between his 2 children B and K, and if either

should predecease D leaving issue (lineal descendants), the issue of the predeceased child shall take in equal shares per stirpes the share that the predeceased child would have taken if living

• D’s subsequent codicil provides that if either B or K become incapable, the incapable child’s share shall be invested, with money’s advanced to the incapable child as the Trustee sees fit; otherwise will is confirmed

• Make a determinative statement about who get what • The will is republished through this

• D died 2005; B died 2007 ISSUE:

• At D’s death, did 50 % of the residue (as provided for in D’s will) vest in B? If so, the 50% passes to his estate, distributed under is will to his wife P

• If he only had a life interest than it would revert back to D’s estate • Or did the 50% of the residue not gift-‐ did B have a life interest only (to be administered by K)-‐ and did the

residue then revert back to D’s estate to be distributed on intestacy (meaning 50% to K and 50% to be shared by B’s children)? No distribution to P on partial intestacy of D’s estate?

• Under the rules of intestacy who gets in • Under B’s death if it vests than it goes to P (B’s wife). So is P able to take the Death of the Dad

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• But the lineal descendants take it. • Half goes to K, other half supposed to go to B. He dies it goes to his children • How does it get distributed if nothing is directly said about it in the will • Daughter in Law is not a descendant so doesn’t get it

• Williams on Wills: a “will and codicil must be construed together as one testamentary disposition, although not as one document”

• Construction/interpretation here Applicable principles

• Where 2 clauses are inconsistent, the Court must reconcile them, if possible • A clear provision will not be “controlled” by a subsequent ambiguous one • In the construction of wills, there is a strong presumption against intestacy, especially if on a reading of the will

as whole it is clear that T intended to dispose of his entire estate • Of course, it is one this to give effect to Ts’ intention where he has used an ambiguous word or phrase; but a

missing bequest cannot be supplied out of thin air • Where an omission or ambiguity is plan, common sense may be applied to make a change but only where T’s

intention is clear • If T’s intention cannot be determined on the plain meaning of the words in the will, extrinsic evidence may be

considered; each judge must endeavour to place himself in the position of T at the time the will was made, striving to give effect to T’s intention

Applying those principle in this case

• Looking closely at the language of the will and codicil, the same word “share” is used to describe B’s interest; read together the 2 references show that B’s interest-‐ his share-‐ vested on D’s death

• Further more, the reference to “my incapacitated child’s share” (as opposed to “what would have been my incapacitated child’s share) denoted ‘s B’s ownership of that share

• Significant that the codicil did not say what should happen with B’s share on his death (strengthening the argument that this is because the interest was vested in B)

• The executor (K) argues that the codicil created ambiguity • A clear provision will not be “controlled” by a subsequent ambiguous one-‐ this codicil does not clearly and

unambiguously change the nature of the gift to B from a share, as that gift is described in the will, to a [life interest] trust, as might be inferred from the codicil

• Especially as the codicil clearly confirmed the will in all other respects, such a change to be effective would need to unambiguous (and D did not indicate he was making such a change)

• Rather, the will indicates further directions for B’s (vested) share (how to be administered by K) • Such a reading avoids intestacy; it is clear D meant to dispose of his entire estate • What happens to it?

• Because it was vested in B, he gets to determine who gets it i.e. goes to his wife • If it wasn’t vested it would come back to the D’s estate and distributed on rules of intestacies (K and B’s

kids) Summary

-‐ Two revival interpretations of the testamentary disposition (will +codicil) interpreted in light of each other -‐ Bearing in mind the presumption against intestacy (partial) -‐ What are the two revivals?

• By including it D transformed the gift to B into a life interest • D was knowing the B had developed dementia and was creating a system that B’s gift would be

administered properly so he didn’t do anything wild with his gift -‐ The Court preferred the second interpretation -‐ Codicil did not turn it into a life interest -‐ Why did the Court go with this?

• Presumption against Intestacy • If option 1 was the case when B died, it would go back to D’s estate and then be distributed intestate

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• Refers to gift as B’s share, not a life estate or something like it -‐ K argues that D wanted it to be divided intestate but there is little to no evidence of this, and it works against

the presumption

Kilby v Myers FACTS:

• T married her husband at age 64; she had no children, her husband had one child and four grandchildren. Husband died May 1962; T died July 1962

• T’s will read in part: “If my husband and I should both die under circumstances rendering it uncertain which of us survived the other, I declare that my will shall take effect as if my husband had predeceased me and I GIVE, DEVISE AND BEQUEATH all my said property to my Trustees upon the following trusts, namely: x x x (3) To divide the residue of my estate into as many equal parts as there are grandchildren of mine then alive, and to pay to each grandchild one of such equal parts.”

• Is this just an awkward way of writing it (obvious omission) or is it literal • Yes, she meant this to apply if her husband did predecease her à someone just forgot an obvious part of it • Trial judge found that T intended to provide not only for the contingency of simultaneous death but also for the

contingency of her husband predeceasing her (obvious omission) • If this is not the case, there is an intestacy (as and her husband did not die in circumstances where it was

unclear who was the survivor) and her heirs-‐in-‐law (those entitlted to take in case of intestacy under the legislation) would take

APPLICATION: • Majority: By using the words “I declare that my will shall take effect as if my husband had predeceased me

and…” she had expressed the intention that if her husband predeceased her estate was to be disposed of as if he had died contemporaneously with her and what was to be done if the latter event should happen was fully set out in clauses (1), (2) and (3) of para. III.

• Per Ritchie J. (concurring): The construction urged by the heirs-‐at-‐law was based on the assumption that the testatrix intended to die intestate in the event of her husband having predeceased her. The suggestion that she had such an intention failed. When an individual has purported to make final disposition of all his “property both real and personal of every nature and kind and wheresoever situate”, he is not to be taken to have intended to leave all his property undisposed of on the happening of certain events, unless there are some very exceptional and compelling reasons for so holding. A construction resulting in an intestacy “is a dernier resort in the construction of wills.”

• The argument fails because it is a final disposition of one’s property and therefore they did not intent to leave a partial intestacy

• Per Spence J., dissenting: The declaration and dispositions made by para. III were in terms wholly conditioned upon an event which did not happen. Therefore, in order to attain the result which was reached in the Courts below, this Court must insert additional words in the testatrix’s will. To read into this will the words necessary to provide for the unmentioned event the Court must be compelled to the conclusion that the will revealed so strong a probability of such an intention that a contrary intention could not be supposed. No compelling necessity to insert the words allegedly omitted could be found; neither the actual words of the will nor the circumstances of the testatrix and her late husband’s death resulted in any compelling conviction that there was an accidental omission in the will as executed.

Thierman Estate v Thurman FACTS:

• Only a copy of the will of the deceased (G) can be found-‐ did he destroy it? If yes, he died intestate; G’s children (except A) ask for a declaration to this effect

• One son, A opposes, deposing that he finds it highly improbable that his father would have destroyed the old will without making a new will or telling anyone about it; evidence that house very messy

• Alternative plausible explanation, maybe he is a “hoarder” • It matters because of it’s relationship to revocation • Only destruction revokes a will not just being unable to find it

ISSUE:

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• Was will destroyed, or simply lost or misplaced? Presumption that if will last know to be in custody of T and not found, that T destroyed it with intention to revoke; presumption may be rebutted, and depends on he “character of the custody” (relevant factors listed at para. 44)

ANALYSIS: • Messy house does not displace either evidence • A was not taking care of T (G) • There is other evidence that perhaps he did revoke it

• In this case, presumption not rebutted (mention that T had expressed dissatisfaction with primary B under will) CONCLUSION:

• Declaration of intestacy granted

Zeitler v Estate of Alfons Zeitler FACTS:

• AZ died intestate • For our purposes, relevant question is: do the guns kept in the matrimonial estate constitute “household

furnishings”? • WESA s.21 (1) In this section: "household furnishings" means personal property usually associated with the

enjoyment by the spouses of the spousal home • The guns were kept on display in the house (different ones being brought up from the vault on a rotating basis

for this purpose); they enjoyed looking at them, polishing them, together • AZ’s son says the wife disliked the guns; collecting, enjoying the guns was a “passion” he shared with AZ; AZ’s

children assert the guns are not household furnishings • Disputes the idea that they were used like “décor”

ANALYSIS: Household furnishings

• Means more than furniture; “articles belonging to the house”-‐ must be more than transitory (ie anything brought into the house that both enjoy, however briefly); must have a connection to the use or enjoyment of the family home

• It like they are artwork à displayed on the wall is connected to the enjoyment of the home • Not so re gun collection-‐ any enjoyment of the guns experienced by the couple went to the guns themselves,

and not to the guns as connected to the family home-‐ more in the nature of personal property that was shard sometimes

• Significance of the characterization is that if they were Household furnishings the wife would get it automatically but if they aren’t they go to the estate

Challenging the Will: Undue Influence; Mental Capacity; Wills Estates & Succession Act (Wills Variation) Mental capacity

• In the narrow, specific sense (distinct from undue influence), refers to a person’s cognitive ability to appreciate and understand the matter in question; the kind and quality of mental capacity needed depends on the sophistication and complexity of the matter in question

o Text muddles this with cognitive capacity, mistake, undue influence, whether someone has the knowledge of their beneficiaries and estate

o This is separate from undue influence o However a person with dementia would be more able to fall under undue influence (capacity becomes a

factor) • This idea is distinguished from “insane delusions” which cloud questions of who to benefit and exclude, and may

exist where a person has the cognitive ability to appreciate and understand the matter in question o Specific idea that are not grounded in reality

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o There is overlap between these areas Undue influence

• Undue influence is distinct from both insane delusions and mental capacity • A person may possess unimpaired mental (cognitive) capacity, yet be unduly influenced by another to the extent

that his or her ability to consent to a particular transaction is impaired; without consent, the transaction or agreement (including a will) is not valid

o Presumption of undue influence Defendant side doctrine o Actual undue influence is a plaintiff side doctrine

Actual undue influence and the presumption of undue influence

• “Actual” undue influence is exercised intentionally by the influencer, and is akin to coercion and duress • Certain relationships give rise to a presumption of undue influence-‐ the presumption that the relatively

“stronger” party exercises undue influence over the relatively weaker, intentionally or not, by reason of the dynamics of power and dependency inherent in the relationship itself

• In the context of a relationship giving rise to the presumption the stronger must not take a benefit from the weaker without ensuring that the benefit is freely given (ie. not by reason of undue influence)

o Tribe v Farrell § Illustrated undue influence – Allcard v Skinner § What a solicitor’s duties are in making a will? And deciding capacity?

Rebutting the presumption

• Once the presumption has been raised, it must be rebutted; what must be shown is that the consent given was true and free, apart from influence

o Independent legal advice o There is no mechanistic rule but that is the best way to rebut it o Receiving advice about what you truly want to do and it is an autonomous choice

• Presumption can be rebutted by showing the donor had an opportunity to independently discuss the transaction before proceeding with it with a neutral figure (independent legal advice is helpful, but could be a priest, etc).

• Lloyd’s Bank v Bundy describes the rule in terms of policy-‐ that where in the context of this kind of relationship, in which one party is vulnerable, the other should take steps to satisfy herself before taking a benefit

What kind of relationships give rise to the presumption (law developed outside of the wills context)

• Certain “classes” of relationships always give rise to the presumption (lawyer-‐client, eg) o Doctor/ Patient o Potential for Domination

• Other relationships (to be determined on a case by case basis) give rise to the presumption where they possess the characteristics of relationship with the potential for A to unduly influence B (from Allcard v Skinner onwards)

o Nun case – giving a big gift while becoming a nun o Under undue influence to the mother superior o This was not successful o This applied to gifts and contracts

• What must be shown is that there is a potential for domination inherent in the relationship Undue influence in the context of wills

• Traditional position that the presumption of undue influence analysis did not apply in the wills context; ie, that a will could not be challenged on the basis that a non-‐rebutted presumption of undue influence vitiated T’s consent

o Presumption could be attacked – with enough evidence o What could they show that would have that effect?

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§ Suspicious Circumstances à then it’s on the prepounder of the will to establish capacity in this decision

o But it has been very hard in the history of wills to proved this o The onus is on the attacker they have to prove it

• Traditionally, what had to be shown (by the attacker of the will) was that the influence was so great and overpowering that the document reflected the will of the influences and not the deceased-‐ onus on “attacker” of the will prove this (Vout v Hay)

• Onus always on the attacker of the will to prove actual undue influence (and suspicious circumstances do not change this). This has been historically difficult to prove.

• WESA changes this WESA provision Undue influence 52. In a proceeding, if a person claims that a will or any provision of it resulted from another person (a) Being in a position where the potential for dependence or domination of the will-‐maker was present, and (b) Using that position to unduly influence the will-‐maker to make the will or the provision of it that is challenged,

• and establishes that the other person was in a position where the potential for dependence or domination of the will-‐maker was present, the party seeking to defend the will or the provision of it that is challenged or to uphold the gift has the onus of establishing that the person in the position where the potential for dependence or domination of the will-‐maker was present did not exercise undue influence over the will-‐maker with respect to the will or the provision of it that is challenged.

• This is essentially a codification of the rule that applies to non-‐testamentary gifts; but note that the provision does not include reference to specific classes of relationships that will always give rise to the presumption

Implications of change

• The onus to prove that the will or provision did not result from undue influence could shift under this section (to the person defending, as opposed to attacking) where the other person was in a position where the potential for dependence or domination of the will-‐maker was present

• Onus remains on attacker where no relationship gives rise to presumption, but where actual undue influence alleged

• Legislative change may lead to increased litigation; significance of lawyer’s being aware of “red flag” circumstances suggesting undue influence when making a will

o More onus on lawyers o This is a separate inquiry from capacity

Tribe v. Farrell, 2006 BCCA 38; 2003 BCSC 1758 FACTS:

-‐ T had a will and one son -‐ He was getting old and advertised for a companion to live rent free in his house -‐ The D slowly started changing things around with T’s estate and property -‐ Her relationship with T took T away from P, his son, -‐ P is claiming that D exerted undue influence on T

ANALYSIS: -‐ Did the defendant, as a fiduciary or otherwise, exercise undue influence or coercion in respect of the deceased

and the deceased’s decisions during his lifetime respecting the property of the deceased? o YES, according to Ogilvie v. Ogilvie Estate para 32 – 39 and Geffen v. Goodman Estate the principles of

undue influence are here. It creates a presumption that the defendant must disprove. On the facts and evidence before the court is has not been disproved.

-‐ Are the gifts or transfers of property from the deceased to the defendant, or her control, void because they were unconscionable transactions arising from the defendant’s exercise of undue influence, coercion or fraud?

o YES, the gifts were all void.

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-‐ Is the Second Will valid and enforceable? o It is invalid because the undue influence on the deceased and he did not receive independent legal

advice. -‐ If the Second Will is not valid and enforceable, should the Estate be administered and distributed pursuant to

the First Will? o YES

-‐ If the Second Will is valid and enforceable, what interest in the deceased’s Estate should be awarded to the plaintiff pursuant to the Wills Variation Act?

o Not necessary to consider -‐ If the Second Will is valid and enforceable, should the plaintiff receive punitive or aggravated damages from the

defendant’s interest in the deceased’s Estate by reason of her conduct and alleged malicious behaviour, and the alleged conversion of the majority of the deceased’s assets into the defendant’s control?

o Not necessary to consider. BCCA – Appeal The Appellant submits that:

-‐ The trial judge erred in the test of undue influence o No the TJ did not err

-‐ The A tries to submit new information o The purpose of an Appeal Court is not to present new evidence but to correct errors at trial

-‐ No errors of law or fact can engaged an appeal -‐ Appeal dismissed

CLASS NOTES

• BCCA upheld the judgment of the trial judge that a will in favour of T`s live-‐in-‐caregiver on the grounds of undue influence (BCSC case an excellent review of the case law in this area, and lawyer’s responsibilities)

• The undue influence was not manifest in this case as threats or mistreatment but from psychological pressure exerted by the caregiver, playing on T’s fear that she would leave him if he did not make the bequest and other gifts (those factors giving rise to the presumption vis a vis the inter vivos gifts created the context for the will, vis a vis which they constituted actual undue influence)

• Pre-‐WESA; establishes that actual influence can take the form of psychological pressures brought to bear on a vulnerable person

• What difference would the WESA provision make • After the son becomes aware of Will 2 he calls up and says to his dad “I can no longer see you anymore” maybe

attempted undue influence Wills variation, WESA

• Substantially incorporates the provisions from the Wills Variation Act o Another hot button issue around this o Nothing changed à although there was a strong opinions around kicking it out o In the end it was kept

• Maintenance from estate • 60 Despite any law or enactment to the contrary, if a will-‐maker dies leaving a will that does not, in the court's

opinion, make adequate provision for the proper maintenance and support of the will-‐maker's spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-‐maker's estate for the spouse or children.

o Spouse or children can bring an application to vary if they think there was not an adequate provision o Subject to a special limitation period

Wills variation, evidence Evidence

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62 (1) In a proceeding under section 60, the court may accept the evidence it considers proper respecting the will-‐maker's reasons, so far as may be determined, (a) for making the gifts made in the will, or (b) for not making adequate provision for the will-‐maker's spouse or children, including any written statement signed by the will-‐maker. (2) In estimating the weight to be given to a statement referred to in subsection (1), the court must have regard to all the circumstances from which an inference may reasonably be drawn about the accuracy or otherwise of the statement.

Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807 RATIO: To the extent that it is just, adequate and equitable the law will try to enforce the wish of the owner. BUT The phrase “adequate, just and equitable” must be viewed in light of current societal norms. Two sorts of norms must be addressed:

− 1. Legal obligations: obligations which the law would impose on a person during his or her life − 2. Moral obligations: found in society’s reasonable expectation of what a judicious person would do in the

circumstances, by reference to contemporary community standards o While the moral claim of independent adult children may be more tenuous, a large body of case law

suggests that IF the size of estate permits and in the absence of circumstances which negate the existence of such an obligation, some provision for such children should be made.

− Together, these two norms provide a guide for what is “adequate, just and equitable” in the circumstances of the case

Facts: Alex(husband) left his wife Mary a life estate in matrimonial home and made wife beneficiary of discretionary trust with 2nd son as trustee. Husband left everything to 2nd son except for wife’s right to live in house and 2nd son would have to provide her money. Mary and 1st son sought variation of the will (s. 60). Issue: Can “adequate, just, and equitable” under the Wills Variation Act be interpreted and applied to adult independents? Held: Yes it can be – Decided that it is a needs based test and look at the needs at the time (not at time will created) Wife needs title not just life estate, and once wife gets title, she can gift son’s an amount. 2nd son still got more (2/3) then the 1st son (1/3) Analysis:

− Testamentary autonomy v. adequate, just and equitable o The law recognizes testamentary autonomy, but it is limited so that individuals who have been

dependent and expected some benefit will derive benefit. − Needs Based Test:

o Walker v. McDermott Distinguishedà spouses and children entitled to equitable share of the estate even in absence of need. “Moral Duty”

• Re Dawson Estate à Needs Based Test testator’s wishes could be disturbed only on the basis of need

− Beyond needs-‐based test; should consider legal and moral obligations o Legal obligation:

§ Only legal obligations were towards Wife • Under the Divorce Act and the Family Relations Act she would have been entitled to

maintenance and a share in the family assets had the parties separated o So she must be afforded the same right here

§ Children are no longer dependents o Moral Claims

§ 1. Wife had outlived husband and must be provided for in the ‘extra years” she has ahead – not equitable to do otherwise (should not be up to her son to give her money)

§ 2. Moral claim of independent sons are weak because no evidence that they contributed to the estate. But Wife is in need.

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CLASS NOTES: • T and his wife had been married 43 years, and through joint efforts over the years had acquired the family

home, a rental property, and bank funds • T intensely disliked one of his sons (J). T’s will gave his other son E full title to the rental home; gave wife a life

estate in the family home; residue in discretionary trust, wife an income beneficiary, E is trustee with power to encroach on capital, everything to E on wife’s death. J got nothing

• Wife asking for will to be varied Tataryn, SCC

• Appeal successful • Sons granted an immediate gift of $10,000 each. • Wife granted title to the family home, a life interest in the rental property and the entire residue of the estate

after payment of the immediate gifts to the sons. Upon the death of the wife, the sons were entitled to the rental property (one-‐third to J.; two-‐thirds to E.)

Tataryn, reasons Two objectives of wills variation legislation:

1. to ensure that the spouse and child of T receive a just and equitable share of the family wealth 2. to protect testator autonomy (important Anglo-‐Canadian principle); variation legislation does not remove the

right of T to exercise freedom in the disposition of her property on her death, but limits it Absolute T autonomy had to yield to what was “adequate, just and equitable in the circumstances” (setting the limits of autonomy)

a. The “need-‐maintenance “approach rejected (ie that the purpose of variation was to “maintain” the spouse/dependent child in need, and prevent them becoming a charge on the state)-‐ permits recognition of the claim of the independent child

What is adequate, just and equitable

• two sorts of norms are available and both must be addressed. The first are the obligations which the law would impose on a person during his or her life were the question of provision for the claimant to arise. These might be described as legal obligations. The second type of norms are found in society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards. These might be called moral obligations, following the language traditionally used by the courts. Together, these two norms provide a guide to what is “adequate, just and equitable” in the circumstances of the case

• Provision for adult independent children should be made in the absence of circumstances which would negate the obligation

Tataryn, cont’d

• Only where the testator has chosen an option which falls below his or her obligations as defined by reference to legal and moral norms, should the court make an order which achieves the justice the testator failed to achieve (but, in the absence of relevant reasons for unequal distribution, there is a reasonable expectation that adult children will share equally even though no legal requirement of equal distribution exists)

• Gifts given inter vivos may be relevant (providing a reason for unequal bequest); estrangement /neglect (if T played key role in this) may create moral obligation to rectify (as opposed to providing a reason not to provide for the child in the will)

• Where there are competing interests, the legal obligation is the higher; moral obligations will be of various weights, and it is for the court to determine in each case

• May be possible to show circumstances which negate the obligation-‐ how? o Considerable interference with Testator’s autonomy

Stanton v. Stanton Estate, 2008 BCCA 32 FACTS:

-‐ T has a second wife, but his daughter from his first marriage inherits estate, real property, residue and the wife is only entitled to the car

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-‐ Before he died the T talked to his W about changing the will to ensure she had real property to live in -‐ He then died and the W commenced an acting against the probates alleging “suspicious circumstances” and

calling into question testamentary capacity ISSUES: Did T have testamentary capacity? Did T know and approve of the contents of the will? ANALYSIS:

-‐ He was mentally competent when the will was made -‐ There is no evidence of suspicious circumstances -‐ He had a will prior to marrying her and then re made the will after marriage – he reaffirmed his clear intentions

of giving to his daughter -‐ Good established reasons for not varying the will -‐ Discussion about undue influence: argument by the daughter’s lawyer that the man was unduly influence to

enter a marriage with the second wife, so maybe we didn’t have the capacity to make the will -‐ Doesn’t work à undue influence does not apply to marriage

CONCLUSION: Dismiss the appeal CLASS NOTES:

• Wife asking for will to be varied-‐ successful? Why, or why not? • How is undue influence implicated in this case?

Werbenuk v. Werbenuk Estate, 2010 BCSC 1678 FACTS:

-‐ Man had 6 children. 1 from an earlier marriage (V). 5 from his second marriage (1 son and 4 daughters) -‐ 1 of the daughters predeceased him, and the other 3 daughters are the plaintiffs in the case -‐ T gave all estate to his son and nothing to his daughters -‐ T was a harsh man and prone to violence against his daughters and wife

ISSUE: Whether based on contemporary moral standards adequate provision for proper maintenance and support was objectively considered by the father towards his daughters. RATIO: There is a moral obligation to provide for adult children when the reasons for disinheriting them are irrational and untrue. HOLDING: The father failed in that regard and the will must be vaired to include the daughters ANALYSIS:

-‐ Balance between providing equitably for dependents and testamentary autonomy -‐ The Wills Variation Act provides:

o Will is adequate, just and equitable to dependents o Protection of testamentary autonomy o The test is objective: was the testator acting in accordance with society’s reasonable expectations of

what a judicious parent would od in the circumstance by reference to contemporary community standards?

o “Adequate” and “Proper” depend on the size of the estate o First consider legal obligations and second moral obligations o Moral obligation of independent adult children is more tenuous o Circumstances that negate the moral obligation have to be “valid and rational”

§ Estrangement/ Neglect § Gifts and benefits made during lifetime

o Need/ Maintenance considerations

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-‐ Some of the daughters have real need and their lives have been seriously effected by their relationship with their father

-‐ They deserve more CONCLUSION: Will is varied to included stipulations for all 5 children. CLASS NOTES

• What is the “judicious parent” standard? • How is it applied in this case? • What significance does the court give to the relative need of the children?

o They spend some time discussing the need and it takes it into account o Need is not determinative but if there is a unjust and inequitable circumstance need can differentiate

the amount awarded

Legislation:

Wills Estates & Succession Act, Part 4, Div. 6

Patients Property Act and the Adult Guardianship Act What is the Patients Property Act?

• Legislation in force in British Columbia for purpose of appointing one person to make decisions for a person who is declared to be incapable (process often referred to as guardianship in other jurisdictions)

• For the purposes of the PPA, a person may be incapable of person, estate, or both; legislation says how this is to be determined, and process for appointing a substitute decision maker (called a “committee”)

o Distinction between person decisions (health care, living, associations) and financial decisions (estate, affairs)

• Adult Guardianship Act (passed in 1993) -‐ Part II intended to repeal Patients Property Act (not proclaimed-‐ although Part 2.1 due to come into force December 2014); Part III applies to abuse and neglect (in force)

o More of a detailed breakdown of spheres that you can be capable and incapable in o Break down the two categories of personal/ financial o Part 3 is proclaimed and has been in force for a while o Before Part 3 was in force the only thing you could do is have them declared incompetent and then take

over their important decisions Patients Property Act: what is the process?

• PPA previously provided process through which for both court ordered and statutory Committee appointed • “Term of Art” – there used to be two, but the most commonly way of appointing a committee is through

statutory appointment • Court ordered guardianship-‐ requires affidavits of two medical doctors; declaration that person is incapable;

appointment of committee • Managing their person, state/ affairs, or both • Nothing is really said about what these affidavits contain just that they need to have the right

conclusion: incapacity • Best practice that they include why the person is incapable and what evidence there is

• No a requirement but taken a face value • Statutory committeeship-‐ required finding of incapacity by (MHA-‐ definition) “Director” of “designated facility”;

appointment of PGT only as committee of estate only • If the director determined this = certificate of incapability • Public guardian would be in charge of estate only • BC Ombusperson report

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• In 1993 there was discussion about statutory committeeship should be done away with à but it is fast and useful

• Look to the Mental Health Act Mental Health Act definitions

• "designated facility" means a Provincial mental health facility, psychiatric unit or observation unit; • "director" means a person appointed under the regulations to be in charge of a designated facility and includes

a person authorized by a director to exercise a power or carry out a duty conferred or imposed on the director under this Act or the Patients Property Act;

• Originally the provision was to manage finances while they were committed, but was started to be used in a off label way

• Being used to involve the Public Guardian and Trustee/ Alternative to Court order Guardianship Statutory guardianship-‐ new regime (December 2014)

• Part 2.1 Adult Guardianship Act; Statutory Property Guardianship Regulation • Under this scheme, a Health Authority Designate issues a certificate of incapability; before the certificate is

issued, a two part assessment must be carried out: • Connection to being in a Mental Health Facility has been taken away with

• a medical component consisting of a physician’s medical assessment, which looks at the medical diagnosis and prognosis; à project future

• and a functional component, which may be conducted by a physician or other health care provider, such as a nurse, or social worker, and which consists of an evaluation of the adult’s understanding and ability to manage his or her finances

• How well someone is managing • Different question than the diagnosis of a patient • May be functionally adequate at management • People could have the same medical diagnosis but have different functional abilities

• The patients property act is finally being cracked open and being replaced by the Adult guardianship • Carved out statutory property guardianship à 2.1, not court ordered guardianship • Not personal decisions but the rest finance • Imprevision in the rules

New regime: “health care providers” (functional assessment)

• Health care providers 3 (1) A person who is licensed, certified or registered under one or more of the following Acts to provide health care is prescribed as a health care provider:

• (a) Health Professions Act; • (b) Social Workers Act.

(2) The classes of health care providers who are prescribed as qualified health care providers are as follows: • (a) registrants of the British Columbia College of Social Workers; • (b) registrants of the College of Registered Nurses of British Columbia; • (c) registrants of the College of Registered Psychiatric Nurses of British Columbia; • (d) registrants of the College of Occupational Therapists of British Columbia; • (e) registrants of the College of Psychologists of British Columbia.

New regime, cont’d

• Once the assessment is completed, if the health authority designate (HAD) considers it appropriate to issue a certificate of incapability than he or she must give the adult, and the adult’s spouse or other near relative notice of his or her intent to issue the certificate, and the adult, spouse or near relative must be given at least 10 days to respond

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• If, after considering responses, the HAD decides to issue a certificate of incapability, the PGT must give notice to the adult that she has been appointed as the adult’s statutory property guardian, and the adult may within 40 days of receipt of the notice request a second assessment; if the second assessment determines the adult to be incapable, the adult may apply to the BCSC for review

• Public Guardian Trustee does not do this for free à they need to be paid • Old system didn’t have a lot of notice • Pay structure creates an incentive from them to cherry pick who they pick to become the public

guardian • If after an assessment the HAD determines a person is incapable, s/he is not required to issue a certificate of

incapability if the adult’s needs can be met in other ways-‐ if s/he has an enduring power of attorney, for example, and that person is able and willing to act, a certificate should not be issued (this is the effect of s. 19 of the PPA)

Court ordered guardianship; Patients Property Act: declaration of incapability

-‐ This new thing does not effect the PPA in the way it exists today

3 (1) If, on (a) hearing an application, and (b) reading the affidavits of 2 medical practitioners setting out their opinion that the person who is the subject of the application is, because of

• (i) mental infirmity arising from disease, age or otherwise, or (very broad) • (ii) disorder or disability of mind arising from the use of drugs,

incapable of managing his or her affairs or incapable of managing himself or herself, (personal)or incapable of managing himself or herself or his or her affairs, (financial) the court is satisfied that the person is, because of (c) mental infirmity arising from disease, age or otherwise, or (d) disorder or disability of mind arising from the use of drugs, incapable of managing his or her affairs or incapable of managing himself or herself, or incapable of managing himself or herself or his or her affairs, it must, by order, declare the person (e) incapable of managing his or her affairs, (f) incapable of managing himself or herself, or (g) incapable of managing himself or herself or his or her affairs. Appointment of committee (1) Subject to section 13, on application by the Attorney General or any other person, the court may appoint any person to be the committee of the patient (2) On application by the Attorney General, the Public Guardian and Trustee or any other person, the court may, subject to section 13, rescind the appointment of a person appointed as committee. -‐ Can apply to get rid of the person as a committee -‐ Can ask and over see it (3) Subject to section 16, except during the time that a person appointed under subsection (1), other than the Public Guardian and Trustee, is the committee of a patient, the Public Guardian and Trustee is the committee of the patient. (4) An application under subsection (1) and an application under section 2 may be made as one application. Nomination of committee by patient

-‐ If you didn’t want another substitute decision maker scheme you could do thi -‐ Why would you ever want a committee over a POA or a RA?

o POA and RA are private arrangements o No one is going to require POA to show monthly statements (it is private) o Privacy creates vulnerability o But a committee must send periodic reports as to how the property is being managed. o Greater level of oversight

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• 9 On an application for the appointment of a committee, if there is presented to the court a nomination in writing of a committee by the patient,

• (a) made and signed by the patient at a time when the patient was of full age and of sound and disposing mind, and

• (b) executed in accordance with the requirements for the making of a will under the Wills, Estates and Succession Act,

• the nominee must be appointed committee unless there is good and sufficient reason for refusing the appointment.

Powers of committee

-‐ Full and plenary powers -‐ Essentially the person -‐ Stand in the person’s shoes -‐ The only exception is you cannot write a will

5 (1) Subject to section 16, (a) the committee of a patient as defined by paragraph (a) of the definition of patient in section 1 has all the rights, privileges and powers with regard to the estate of the patient as the patient would have if of full age and of sound and disposing mind [standing in the shoes], and (b) the committee of a patient

• (i) declared to be incapable of managing his or her affairs has all the rights, privileges and powers with regard to the estate of the patient as the patient would have if of full age and of sound and disposing mind,

• (ii) declared to be incapable of managing himself or herself has the custody of the person of the patient, and • (iii) declared to be incapable of managing himself or herself or his or her affairs has all the rights, privileges and

powers with regard to the estate of the patient as the patient would have if of full age and of sound and disposing mind, and as well the custody of the person of the patient.

(2) For investing money, a committee is a trustee within the meaning of the Trustee Act. Standing in the shoes

-‐ Anything I do for the person is seen as the person is doing it themselves -‐ “the patient” à meant to be applied to people in mental health facilities

Rights, powers and privileges included • 17 The rights, powers and privileges vested in the committee include all the rights, powers and privileges that

would be exercisable by the patient as a trustee, as the guardian of a person, as the holder of a power of appointment and as the personal representative of a person, if the person were of full age and of sound and disposing mind.

Effect of things done by committee • 21 Everything done by a committee in the exercise of the committee's powers under this Act has the same

effect with respect to all other persons as if done by the patient at a time when the patient was of full age and of sound and disposing mind.

Actions for and against patient • 22 (1) A person other than the committee of the patient must not bring an action on behalf of the patient. • (2) An action against a patient must be brought against the committee as litigation guardian.

Limits on committee’s power 16 (1) On the appointment of a committee, the court may, by the same order, attach conditions or restrictions on the committee's exercise of certain rights, privileges or powers specified in the order, including requiring the written consent of the Public Guardian and Trustee prior to the committee's exercise of any right, privilege or power. (2) If, under subsection (1), the court has attached a condition that the consent of the Public Guardian and Trustee is required prior to the committee's exercise of any right, privilege or power, the registrar of the court must send a copy of the court's order to the Public Guardian and Trustee. Caring for the committee: costs

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-‐ Costs come out of the patient’s estate -‐ Whether it’s the public guardian or a private individual -‐ They have access to fund to keep the patient’s maintenance

Cost of maintenance, care and treatment • 23 (1) A patient is liable for the cost of the patient's maintenance, care and treatment and, subject to

section 18, the committee must pay out of the estate of the patient the amounts necessary to defray all just and reasonable charges for the maintenance, care and treatment of the patient.

• (2) The Public Guardian and Trustee may permit a patient of whose estate the Public Guardian and Trustee is committee to hold, manage or control a part of the estate to defray normal living expenses or part of them, and the Public Guardian and Trustee is not liable for loss or damage to the estate of the patient resulting from the patient holding, managing or controlling that part of the estate.

Compensation for committee 14 (1) A person may be allowed reasonable compensation from the estate of a patient or from the estate of a person who has ceased to be a patient for services rendered as committee of the patient or of the person who has ceased to be a patient.

• (2) The compensation, if any, to be paid to a person other than the Public Guardian and Trustee must be fixed on the passing of accounts.

• (3) If, in the opinion of a person who is entitled to compensation under this section, the estate of a patient or the estate of a person who has ceased to be a patient is so limited in value that the payment out of it of compensation would create poverty or hardship for the patient or person who has ceased to be a patient or the patient's dependants, no compensation need be claimed or paid or no amount need be retained out of the estate.

• (4) A committee of a patient or a person who has been the committee of a person who has ceased to be a patient has a first lien or charge on the estate of the patient or person who has ceased to be a patient for all costs, expenses and advances made by him or her for or incidental to the administration of the estate of the patient or the person who has ceased to be a patient or for the benefit of the patient or person who has ceased to be a patient, the patient's family or other dependants.

Effect of committee appointment: other instruments Effect on power of attorney or representation agreement of person becoming a patient by court order

• 19 On a person becoming a patient as defined in paragraph (b) of the definition of "patient" in section 1, • declared incapable

• (a) every power of attorney given by the person is terminated, and • (b) unless the court orders otherwise, every representation agreement made by the person is terminated. • POA and RAs

Effect on power of attorney or certain representation agreements of person becoming a patient other than by court order (statutory guardianship)

-‐ Not terminated but suspended -‐ Any kind of rep agreement that has to do with finances “route finances”? S.7 RAA -‐ Used to an Enhanced RAA à this no longer exists at legislation

19.1 (1) On a person becoming a patient as defined in paragraph (a) of the definition of "patient" in section 1, the following are suspended: (a) every power of attorney that was given by the person; (b) every provision of a representation agreement made by the person in respect of his or her property. (2) After receiving a copy of the suspended power of attorney or of a representation agreement any provision of which has been suspended under subsection (1) and any information that the Public Guardian and Trustee may require, the Public Guardian and Trustee must determine whether it is necessary or desirable for the Public Guardian and Trustee to manage the patient's property under this Act. (3) If the Public Guardian and Trustee determines that it is necessary or desirable for the Public Guardian and Trustee to manage the patient's property, then on the making of the determination

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(a) the power of attorney that was suspended under subsection (1) is terminated, or (b) the provisions of the representation agreement that were suspended under subsection (1) are cancelled, as the case may be. (4) If the Public Guardian and Trustee determines that it is not necessary or desirable for the Public Guardian and Trustee to manage the patient's property, a) the Public Guardian and Trustee's authority as committee under the certificate referred to in paragraph (a) of the definition of "patient" in section 1 is terminated on the making of that determination, and (b) the suspension of the power of attorney or of the provisions of the representation agreement ends on the termination of the Public Guardian and Trustee's authority as committee. Representation agreements Act

• Originally intended to replace powers of attorney-‐ after long process of controversy and reform, we have two documents (power of attorney for financial only)

• Two kinds: section 7 (standard) and section 9 (non standard) o Important to understand these differences

• Section 9; person making needs higher degree of capacity to make, grants wider scope of health related decision making authority (includes end of life)

• Section 7; person making needs lower capacity, includes “routine” financial (because donor can’t make POA), “personal” decision making

• In the past (the “old” RA legislation) an “enhanced” RA was possible conferring both personal/health decision making power and enduring P of A-‐type financial decision making powers]

Movie Notes

• Advanced directives o Document that contains instructions that should be follow by health car providers if a time comes when

you can’t express your own wishes o Need to be information about what health care decisions/ options might be made o Provide guidance to the RA

• Enduring Power of Attorney is sprung when the patient become incapable of making decisions o Will not stop when capacity changes o Traditionally at CL POA is lost after capacity is lost o Ppl were using POA in a way that they shouldn’t have à explicitly to give people power after they lose

capacity, legislation changed to explicitly change this power of attorney o Enduring POA/ Springing POA: Did this happen after S.7/ S.9 were created or were they created as a

response to it? § Routine financial management only § S.7/ S.9 are distinctly different than POA

o No legislation like the Enduring POA o POA is NOT an honourific title but is really a job

• There are serious challenges to springing POA(requirement of two affidavits) • In reality if you trust someone enough to be a springing POA wouldn’t you trust them to be a POA without the

springing • HCCA à Substitute decision makers in regards to care

Patients Property Act

• Deal with the Guardianship • Adult Guardianship Act passed 20 years ago but has never been proclaimed à partially brought into force • It would require mandatory mediation for committeeship

Lindbergh v Lindbergh

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• If there is a valid, effective and continuing Representation Agreement/Power of Attorney in place, the Court may dismiss a committee petition as being unnecessary absent any evidence of a significant change in circumstances that would mitigate against the Representation Agreement (when Court exercises discretion under PPA 19.1

• Case gives context, criteria (from 48) for when a person who has been declared incapable will “order otherwise” under 19(b)-‐ “unless the court orders otherwise, every representation agreement made by the person is terminated” and 19.1-‐ “Effect on power of attorney or certain representation agreements of person becoming a patient other than by court order” (power of attorney and sections of RAs dealing with finances suspended by declaration of incapability)-‐ but see…………

Dawes v Dawes

• HD (son) asking that JD (mum) be declared incapable of person and estate and that he be appointed committee; JD2 (daughter) opposing on basis that JD executed valid RA making JD2 representative with authority to care for JD and make health decision for her

• JD now declared incapable pursuant to PPA-‐ question whether court should exercise discretion to maintain RA (as in Lindbergh, an “enhanced” agreement under the “old” RA)

• JD2 intends to use enhanced RA to sever property held by JD and her husband “to protect JD2 in case she incurs costs caring for her mother, who is in a care home”. JD2 describes her parents marriage as abusive, with the husband bullying his wife, JD2 as her protector; that husband wants to control wife and finances without regard for JD, and that JD chose JD2 to look out for her interests as representative

• No evidence here that JD intended to separate from husband, or to live apart-‐ severing does not seem in line with JD’s intentions, not is there financial need here

• Discretion not exercised to continue RA-‐ JD is incapable; who will be her committee? JD2 and husband (he suggests with other daughter Y) would each like to be

• Husband and Y appointed-‐ in JD’s best interest to have 2; note restriction on disposing of/encumbering family home without notice to PGT

Simons v Simons

• Declaration of incapability (note contested medical evidence) • Competing would-‐be committees; Ms. D asking for RA to be continued • What is the outcome? Why?

Re Elsie Jones

• What is the issue here re capacity (capacity to make a will, and re the inter vivos property transfer in this case?) How is it resolved?

Legislation:

Patients Property Act [RSBC 1996] c. 349

Cases:

Simons v. Simons, 2013 BCSC 650 FACTS:

-‐ Lots of evidence that corroborates that the patient is incapable of managing himself or his affairs -‐ Different parties disputing as to who the committee of the person is

o New wife and nephew o Or Son

ISSUE: 1. Who are the appropriate parties to the petition proceedings and what is the appropriate mode of hearing? 2. Does the Patient require a committee? 3. If so, who is the best-‐qualified candidate? And

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4. Should the Representation Agreement survive any appointment of committee? RATIO: Criteria to appoint a committee (below) ANALYSIS:

-‐ Test to appoint committee (BC v Pollen) o Takes into consideration issues concerning the adult’s autonomy, personal dignity, idiosyncrasies and

the way he has chosen to live his life while capacitated o Takes into account most assuredly any wishes he has validly expressed while mentally competent or

lucid about who he would like to act as his committee o Additional factors include: Candidate’s previous involvement with the patient and family, knowledge

and understanding of the patient’s situation and need, level of experience or capability in performing the duties of committee, plan for management of the patient, and any conflict of interest (Bowman (RE) Vranic (RE))

-‐ Three Candidates: Jeffrey Simons, Phillips Weinstein and the Public Guardian and Trustee -‐ Jeffrey Simons is the best candidate based on the criteria and most the allegations made were unfounded -‐ Rep Agreement is not in effect because of all of the evidence that Ms. Di Clemente is not looking out for the best

interest of the Patient Appeal

-‐ No exception is taken by the appellant to the judges criteria applicable to a appointment of a committee -‐ Handling of trust funds will be reviewed by the Public Guardian and Trustee

o Insufficient financial support for Ms. DiClemente -‐ The TJ correctly applied law -‐ Appeal dismissed

Class notes

-‐ Contested medical evidence -‐ Why? -‐-‐

Lindberg v. Lindberg, 2010 BCSC 1127 FACTS:

-‐ Lady lives in Abbotsford gets dementia and is moved into a home -‐ Her POA Ms. Shoemaker wants to sell the house because of ongoing debts, the security of the house and

insurance o POA was granted when the T was of sound mind

-‐ T’s son Mr. L does not want this and was appointed the committee of his mother which overrides the POA ISSUES:

-‐ Is there a basis for setting aside the order? -‐ Can the court address Mr. L’s petition that he be appointed committee -‐ Who should be the appointed committee of Mrs L?

RATIO: When there is a representative agreement it can continue if the person has a degenerative disease like dementia. Pursuant to S. 19 of the PPA it can be saved, but by examining theses different indicia:

-‐ The circumstances in which the representation agreement was executed -‐ The scope of the representation agreement; and -‐ The basis for the application to set it aside

ANALYSIS: -‐ To grant an injunction the test is

o Application must satisfy the court that there is a fair question to be tried as to the existence of the right which he alleges and a breach that is reasonably apprehended

o He must establish that the balance of convenience favours the granting of an injunction -‐ Does the POA qualify as a representation agreement?

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-‐ Patients Property Act provides that rep agreements are terminated or suspended upon the signatory becoming a patient except in certain conditions

o POA suspended unless court orders otherwise -‐ In this case the rep agreement meets the criteria to qualify as a valid representation agreement set out in s. 13

of the RAA -‐ Question is whether there is any reason why the court should not consider the rep agreement to continue

despite Mrs. L incapacity -‐ The real issue here is whether Mrs. ‘s choice of Ms. S to act as her representative and make decisions with

respect to her care and the management of her finances should be regarded as effective and continuing, despite Mrs. L’s apparent dementia?

-‐ S. 19 of the PPA permit a rep agreement to be saved but provide no criteria. -‐ Criteria should be:

o The circumstances in which the representation agreement was executed § Done with council, no impairment at the time § No suggestion of undue influence or there was any motive that was suspicious

o The scope of the representation agreement; and § Demonstrates broad faith in the ability of the representative

o The basis for the application to set it aside § It is brought as a result of selling the house rather then concern of conduct

CONCLUSION: The Rep agreement appointing Ms. S is saved pursuant to s. 19 (b) of the PPA CLASS NOTES:

-‐ Trigger is she has been declared incompetent -‐ Should the RP be put in charge of the committeeship or should her son -‐ Should we respect Mrs. L intention, if the RP is acting in her interests? -‐ In the best interest of Mrs L. for Ms. S to continue the RP -‐ Look to this case as to how s. 19 actually plays out in real life

Elsie Jones (Re), 2009 BCSC 1723 FACTS:

-‐ Maureen daughter was highly involved in matters of her mother’s estate after her father died -‐ During this time of influence the Testator revoked the POA of her son Ronald and was convinced he was trying

to dupe her and transferred her property in joint tenancy to her daughter -‐ The Sons, Ronald and Marvin take the position that the transfer is invalid on the basis that Elsie Jones lacked the

requisite mental capacity or was unduly influenced by Maureen to make the Transfer

ISSUE: Whether the transfer of property was valid? RATIO: An inter vivos transfer of property is invalid if a) There were testamentary capacity issues b) presumption of undue influence arises as a result of suspicious circumstances c) under the Patients Property Act S. 20 it fails. ANALYSIS:

-‐ Maureen must established that o Elsie Jones was mentally competent o make the Transfer; and o Rebut the presumption of undue influence

− 20. Every gift, grant, alienation, conveyance or transfer of property made by a person who is or becomes a patient is deemed to be fraudulent and void as against the committee if

o (a) the gift, grant, alienation, conveyance or transfer is not made for full and valuable consideration actually paid or sufficiently secured to the person, or

o (b) the donee, grantee, transferee or person to whom the property was alienated or conveyed had notice at the time of the gift, grant, alienation, conveyance or transfer of the mental condition of the person.

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− Both Conditions here are factually satisfied: The transfer happened for $1 and she was aware that Elsie had dementia

− The gift was made without consideration and the donor had an underlying mental condition there is a rebuttable presumption that the transfer is void à M did not prove this

− M argues the test for capacity varies when it is an inter vivos gift: the Transferor understands substantially the nature and effect of the transaction

− Test for a testamentary disposition is higher: transferor understood the nature and extent of his estate, the persons whom he would normally benefit, and was free from any delusion that would affect his capacity to comprehend those issues

o No disorder of the mind o Applying test for capacity “where suspicious circumstance exist, the proponent must prove

testamentary capacity to a higher degree or certainty than a mere fifty-‐one percent probability.” − Marvin and Ronald argue that this is the test (Banks v Goodfellow) − Presumption of undue influence also arises in the case of an inter vivos gift − Maureen’s evidence was not credible and was misleading − Issue with whether the solicitor did his job, case law tell us that: “A solicitor’s intervention is not sine qua non to

determine the validity of a will.” − M has not rebutted the presumption of undue influence − Onus is on the done to prove the gift was made with the donor’s free, full, independent and informed will

CONCLUSION: Transfer is void.

Powers Of Attorney

• For the most part in this class we are concerned with the enduring power of attorney • This is an instrument that is often used as an alternative to testamentary dispositions

Power of Attorney Act, Adult may make enduring power of attorney unless incapable

-‐ Created by this act, and it sets out the requirements -‐ S.12 provides the criteria

12 (1) An adult may make an enduring power of attorney unless the adult is incapable of understanding the nature and consequences of the proposed enduring power of attorney. Enduring power of attorney means a power of attorney in which an adult authorizes an attorney to (i) make decisions on behalf of the adult, or (ii) do certain things in relation to the adult's financial affairs (includes an adult's business and property, and the conduct of the adult's legal affairs) and that continues to have effect while, or comes into effect when, the adult is incapable

-‐ This set out the quality of mental capacity, what we require from someone creating an enduring POA -‐ Nature and consequence of this -‐ The legislation goes on to tell us about exactly what needs to be understood -‐ This is a common instrument that people use -‐ A lot of information packed into the description of the POA -‐ It pertains only to the financial affairs à definition sections defines this more -‐ It continues to have effect -‐ AT CL a POA ceased to be effective when a person loses capacity

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o To dangerous to give this power to another person when the person cannot supervise the activity -‐ Enduring POA creates a new instrument, a statutory creation, this is a response to peoples needs to want

someone to be in charge of their affairs -‐ Endures past the point of lost mental capacity -‐ But there is a difference when a POA comes into effect when capacity is lost ie the “springing” POA -‐ Would be suspended until the triggering event occurs

Includes standard re mental capacity for making a power of attorney (2) An adult is incapable of understanding the nature and consequences of the proposed enduring power of attorney if the adult cannot understand all of the following: (a) the property the adult has and its approximate value; (b) the obligations the adult owes to his or her dependants; (c) that the adult's attorney will be able to do on the adult's behalf anything in respect of the adult's financial affairs that the adult could do if capable, except make a will, subject to the conditions and restrictions set out in the enduring power of attorney; (d) that, unless the attorney manages the adult's business and property prudently, their value may decline; (e) that the attorney might misuse the attorney's authority; (f) that the adult may, if capable, revoke the enduring power of attorney; (g) any other prescribed matter.

-‐ S. 2 gives us more information in regards to the criteria, it sets out a standard -‐ Similar to the understanding required for a valid testamentary disposition

o Property Values o Obligations to dependents o These details are intended to provide greater safeguards than the simple statement

-‐ POAs are easier to get into than other instruments and that is why people use it more frequently -‐ Inherently risky relationship -‐ They can revoke it as long as they are capable -‐ Almost will like -‐ It has a high requirement for capacity

Enduring power must be created explicitly

• As “enduring” after incapability and as either coming into effect while the person is still capable OR as a “springing” power of attorney (“Enduring power of attorney must include provision for continued authority”, s. 14)

• Remember the springing power of attorney from Cam and Sally’s story-‐ Goodrich v BC discusses the conceptual basis of the springing power of attorney, situates it in the common law of contract (that I make contract today to take effect on future condition-‐ contract exists, but is suspended) and considerable legislative discourse (prior to legislative recognition here)

• Must be created explicitly à if it’s to continue or spring into action it needs to be clear and explicit in the document

• Not read into the document but explicit When an enduring power of attorney is effective (includes the springing event) 26 An enduring power of attorney is effective on the latest of

• the date by which the enduring power of attorney has been signed • a date stated in the enduring power of attorney as being its effective date, and • the date an event described in the enduring power of attorney as bringing the power of attorney into effect is

confirmed to have occurred [ie, p of a has sprung]. o You can include this in a POA

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o Last condition refers to the springing or triggering event o Going to stay in effect until the POA is terminated in some way o Date when this is confirmed

• If the enduring power of attorney, or a provision of it, is effective after a specified event occurs [if it is springing], the adult must state in the enduring power of attorney how and by whom the event [the springing trigger] is to be confirmed.

• If the adult specifies that the enduring power of attorney is effective when the adult is incapable of making decisions about the adult's financial affairs, and the person named to confirm the adult's incapability is incapable, unwilling or unable to act, a qualified health care provider may confirm whether the adult is incapable.

-‐ When we can treat a springing POA as being effective -‐ This is in fact what is being set out -‐ Without information of incapacity the POA is not effective -‐ But the POA could state that it isn’t a doctor who can makes this distinction but it could be a lawyer/ lay person,

nothing in the legislation says it has to be a physician who says the triggering event has occurred -‐ Although there is the legislation, banks have their own regulations as to have the POA entails and that the

confirmation of the triggering event has occurred o Usually this is medical documentation

Formalities, section 16 Must be in writing and signed (donor and attorney) and witnessed by

• the adult in the presence of 2 witnesses, and • both witnesses in the presence of the adult when that person signe

Subject to subsection (3), “who may not sign an enduring power of attorney on behalf of an adult”, an enduring power of attorney may be signed on behalf of an adult if

• the adult is physically incapable of signing the enduring power of attorney, • the adult is present and directs that the enduring power of attorney be signed, and • the signature of the person signing the enduring power of attorney on behalf of the adult is witnessed in

accordance with this section, as if that signature were the adult's signature. • Who may not sign: (a) a witness to the signing of the enduring power of attorney; • (b) a person prohibited from acting as a witness under subsection (6).

Witnesses (s. 16)

• Only one witness is required if the witness is a lawyer or a member in good standing of the Society of Notaries Public of British Columbia.

o Those people needs to sign it too o Possible to make a POA without a lawyer or notary o This can be accomplished privately

• If an enduring power of attorney is to be effective for the purposes of the Land Title Act, the enduring power of attorney must be executed and witnessed in accordance with the Land Title Act.

• (6) The following persons must not act as a witness to the signing of an enduring power of attorney: • a person named in the enduring power of attorney as an attorney; • a spouse, child or parent of a person named in the enduring power of attorney as an attorney; • This was quite controversial if people should be able to privately make these • But people wanted to be able to make these agreements in the quickest, cheapest way possible • For real property it needs to be conducting with the Land title act

Who cannot witness, cont’d

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• (b.1) an employee or agent of a person named in the enduring power of attorney as an attorney, unless the person named as an attorney is

• (i) a lawyer, • (ii) a member in good standing of the Society of Notaries Public of British Columbia, • (iii) the Public Guardian and Trustee, or • (iv) a financial institution authorized to carry on trust business under the Financial Institutions Act; • (c) a person who is not an adult; • (d) a person who does not understand the type of communication used by the adult, unless the person receives

interpretive assistance to understand that type of communication What enduring power of attorney may do? 13 (1) An adult may, in an enduring power of attorney, authorize an attorney to (a) make decisions on behalf of the adult, or (b) do anything that the adult may lawfully do by an agent in relation to the adult's financial affairs. (2) An adult may grant general or specific powers to an attorney.

-‐ It can be differentiated in regards to these powers -‐ Some people can take care of decisions on behalf of you and others for finances

What enduring power of attorney must not do? 15 A direction to an attorney to do either or both of the following is not valid and must be severed from an enduring power of attorney: (a) to do anything that is prohibited by law; (b) to omit to do anything that is required by law.

-‐ Becoming an attorney under this imposes responsibilities -‐ Does not carry compensation with it

o Needs to be cognizant of the responsibilities Who may act as attorney 18 (1) An adult may name one or more of the following persons as an attorney: (a) an individual, other than an individual who (i) provides personal care or health care services to the adult for compensation, or (ii) is an employee of a facility in which the adult resides and through which the adult receives personal care or health care services; (b) the Public Guardian and Trustee; (c) a financial institution authorized to carry on trust business under the Financial Institutions Act. (2) Despite subsection (1) (a), an individual described in subsection (1) (a) (i) or (ii) who is a child, parent or spouse of the adult may be named as an attorney. More than one attorney 4) An adult who names more than one attorney may assign to each of them (a) a different area of authority, or (b) all or part of the same area of authority. (5) If all or part of the same area of authority is assigned to more than one attorney, the attorneys must act unanimously in exercising the authority, unless the adult does one or more of the following in the enduring power of attorney: (a) describes the circumstances in which the attorneys need not act unanimously; (b) sets out how a conflict between attorneys is to be resolved; (c) authorizes an attorney to act only as an alternate attorney and sets out (i) the circumstances in which the alternate is authorized to act in place of the attorney, including, for example, if the attorney is unwilling to act, dies or is for any other reason unable to act, and (ii) the limits or conditions, if any, on the exercise of authority by the alternate.

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-‐ One situation is splitting up the responsibilities -‐ But you can also appoint more than one POA that is a full one à giving both the same amount of authority -‐ Why?

o Checks and balances o Could be prudent to ensure that exploitation happens

Duties of attorney 19 (1) An attorney must (a) act honestly and in good faith, (b) exercise the care, diligence and skill of a reasonably prudent person, (c) act within the authority given in the enduring power of attorney and under any enactment, and (d) keep prescribed records and produce the prescribed records for inspection and copying at the request of the adult. (2) When managing and making decisions about the adult's financial affairs, an attorney must act in the adult's best interests, taking into account the adult's current wishes, known beliefs and values, and any directions to the attorney set out in the enduring power of attorney. Duties, cont’d (3) An attorney must do all of the following: (a) to the extent reasonable, give priority when managing the adult's financial affairs to meeting the personal care and health care needs of the adult; (b) unless the enduring power of attorney states otherwise, invest the adult's property only in accordance with the Trustee Act; (c) to the extent reasonable, foster the independence of the adult and encourage the adult's involvement in any decision-‐making that affects the adult; (d) not dispose of property that the attorney knows is subject to a specific testamentary gift in the adult's will, except if the disposition is necessary to comply with the attorney's duties; (e) to the extent reasonable, keep the adult's personal effects at the disposal of the adult. Duties, cont’d (4) An attorney must keep the adult's property separate from his or her own property [can you relate this to a passage from Cam and Sally’s story?]. à Joint account issue (5) Unless the enduring power of attorney states otherwise, subsection (4) does not apply to property that (a) is jointly owned by the adult and the attorney as joint tenants or otherwise, or (b) has been substituted for, or derived from, property described in paragraph (a). Power of attorney 20 (1) An attorney may make a gift or loan, or charitable gift, from the adult's property if the enduring power of attorney permits the attorney to do so or if (a) the adult will have sufficient property remaining to meet the personal care and health care needs of the adult and the adult's dependants, and to satisfy the adult's other legal obligations, if any, (b) the adult, when capable, made gifts or loans, or charitable gifts, of that nature, and (c) the total value of all gifts, loans and charitable gifts in a year is equal to or less than a prescribed value.

-‐ Exception to standing in donor’s shoes -‐ Compromise between pure standing in the shoes of donor, make any gift, but on the other hand, no an attorney

shouldn’t be able to do these things -‐ This is a compromise that allows certain things to happen

Can an attorney make a gift to him or her-‐self? (2) An attorney may receive a gift or loan under subsection (1) if the enduring power of attorney permits. (3) Permissions under subsections (1) and (2) (a) must be express, and

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(b) may be in relation to a specific gift or loan, or charitable gift, or to gifts or loans, or charitable gifts, generally. (3) Permissions under subsections (1) and (2) [to make gift, loan, charitable donation] (a) must be express, and (b) may be in relation to a specific gift or loan, or charitable gift, or to gifts or loans, or charitable gifts, generally. -‐ POA does need to explicitly say this but it can say the gift to the POA is either specific or a more general gift Changing/creating beneficiary (other than will) 21 An attorney must not make or change a will for the adult for whom the attorney is acting, and any will or change that is made for an adult by his or her attorney has no force or effect. 20 (5) An attorney may, in an instrument other than a will, (a) change a beneficiary designation made by the adult, if the court authorizes the change, or (b) create a new beneficiary designation, if the designation is made in (i) an instrument that is renewing, replacing or converting a similar instrument made by the adult, while capable, and the newly designated beneficiary is the same beneficiary that was designated in the similar instrument, or (ii) a new instrument that is not renewing, replacing or converting a similar instrument made by the adult, while capable, and the newly designated beneficiary is the adult's estate. Relate to Desharnais v TD Bank?

-‐ Questions about whether the POA can be involved in other testamentary transactions (not a will) -‐ If it is it is subject to a whole different amount of rules

-‐ At the time D made the shift to Evergreen she did not include herself as a designated beneficiary as she had

been at TD -‐ Her argument is that she is unaware this is something she had to do and the bank did not help -‐ She assumed that the designation at TD would carry over the Evergreen -‐ But because there was no beneficiary on the registered account it went into the estate -‐ Husband had organized his affairs so D would receive the RRSP because in the estate his children were the

beneficiaries -‐ The funds went into the estate and D got nothing -‐ It’s good to argue that she couldn’t do this because it would go back to her being the beneficiary -‐ The argument is successful because she wasn’t allowed to do it -‐ This provision now explicitly tells us that it is not a testamentary act which is the reason why POAs could not do

it, but the legislation now says that a POA could change the named beneficiary -‐ Why would she not be out of luck today?

o Negligence on the part of the bank is the second argument o The Bank Manager did not advise her properly o And that she need to be told about this

Payment and expenses 24 (1) An attorney must not be compensated for acting as an adult's attorney unless the enduring power of attorney expressly authorizes the compensation and sets the amount or rate. (2) An attorney may be reimbursed from an adult's property for reasonable expenses properly incurred in acting as the adult's attorney.

-‐ Most people don’t realize this and they need to explicitly put it in writing Resignation of attorney 25 (1) In this section, "close friend", in respect of an adult who has made an enduring power of attorney, means another adult who has a long-‐term, close personal relationship involving frequent personal contact with the adult, but does not include a person who receives compensation for providing personal care or health care to the adult. (2) An attorney may resign by giving written notice to the adult and any other attorneys named in the enduring power of attorney.

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(3) In addition to the persons referred to in subsection (2), if the adult is incapable of making decisions at the time the attorney resigns, the attorney must give written notice of the resignation to a spouse, near relative or, if known to the attorney, close friend of the adult. (4) The resignation of an attorney is effective (a) when notice has been given under this section, or (b) on a later date specified in the notice.

-‐ You need to given written notice to the person and any other POAs -‐ Giving notice to a person who is incapable is not sufficient so notice would need to go to a spouse, family or

close friend Revoking and termination

• If capable, an adult can revoke an enduring power of attorney (legislation sets out notice requirements for doing so)

• Power of attorney also terminated where the attorney (i) is the adult's spouse and their marriage or marriage-‐like relationship ends, (ii) becomes incapable or dies, (iii) is bankrupt, (iv) is a corporation and the corporation dissolves, winds up or ceases to carry on business, or (v) is convicted of a prescribed offence or an offence in which the adult was the victim. Houston v Houston

• First power of attorney, to wife and son to each act separately o General POA – stand in the shoes o Son from first marriage o Second Wife

• Second power of attorney, son as alternate to wife (to act only if wife unable) o Changed it up in favour of the wife o Did the second POA terminate the first? o Legislation says nothing about this, whether a second POA terminates a first

• Son relying on first to sever joint tenancy with wife-‐ did second P of A revoke the first? What does this case say, and why? What would the current legislation say?

o W argument was this wasn’t allowed because it was revoked o What about the argument of implicit revocation?

§ This is possible but it would have to be explicit in writing § There needs to be more evidence in the second POA § Potentially a tricky area

• If the first P of A remained valid, could the son use it to sever the joint tenancy, or is this a testamentary act? What does this case say and why? What would the current legislation say?

o The interest would go into the estate so is this a testamentary act? o No it’s not a testamentary act

§ Because it doesn’t depend on death to be effective § Hallmark of the testamentary act § In these cases we want to look at the act § But this seems to be the father’s wish § He discussed this with his son and daughter but felt psychologically restrained from the wife § She was the caregiver and was manipulative, and he was dependant and was afraid of making

her mad • Did his doing so (effectively enriching the estate) breach his fiduciary duty to the donor?

o No he was actually serving and fulfilling his Father’s wishes Termination, cont’d

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• Power of attorney can also terminate: • (a) according to the terms of the enduring power of attorney (ie, donor can specify terminating event), • (b) if the adult who made the enduring power of attorney dies, • (c) if the court terminates the enduring power of attorney under section 36 (5) [on application by the PGT], • (d) if the enduring power of attorney is terminated under section 19 or 19.1 of the Patients Property Act (power

of attorney terminated or, in statutory committeeship, PGT may suspend it to consider suitability) Egli

• Note that section 20 of PPA now repealed • PGT questioning transactions (made without full consideration) , made by DE to himself and his wife pursuant

to the POA (DE attorney for his Dad, now incapable)-‐ the PGT is now the statutory committee of the father • Transactions that happened after the POA are invalid

• PGT says gifts have effect of draining any eventual estate, thereby divesting his mentally disabled brother of any inheritance from that estate (as currently provided for in the father’s will)

• Takes everything out so by the time of death there is no estate • DE was divesting his brother

• PGT argues the father was not competent to grant the power of attorney to DE, as he was suffering from dementia and did not have the mental capacity to appreciate the effect of this P of A, especially that it would enable DE to transfer real and personal property to himself

• Didn’t realize the issue with Real Property • No we have a detailed provision about what capacity is for enduring POAs

• Evidence from numerous witnesses re fathers’ mental situation at the time via his behaviour; father also given a “Mini Mental Status Test”; evidence from family doctor; evidence from lawyer executing the P of A says he was satisfied the father capable

• Supports the argument that he was not capable • Also evidence from the Lawyer that he was satisfied about capacity • Giving a direct benefit to his disabled son would stop government support

Egli cont’d • Lawyer also recounts conversation with the father about the consequences of taking money from any eventual

estate, and how Egli Sr. was concerned that his disabled son would lose his government allowance-‐ hence his instructions re the estate (ie. creation of discretionary trust for his disabled son), although PGT notes that draining the estate would leave no money for the discretionary trust

• Trial judge concluded, relying heavily on the lawyer’s testimony, that Egli Sr. was capable-‐ but found that DE had breached the fiduciary duty he owed to the donor (Egli Sr)

• Breach: is that you prefer your own interest at the expense of the donor’s interest Appeal decision

• Test may not be the same as for a will, but the donor must appreciate the nature and extent of the power being conferred, and that it continues despite incapacity

• Suggestion here that donor must also be able to understand and appreciate what he has in order to confer a broad power to deal with it, including to dispose of it (this is similar to understanding required in wills context)

• This case is close to the line, and trial judge’s factual determination shall stand (as shall her finding re fiduciary breach)

• As many cases often are • Facts are important – and they can’t be disturbed here

• See discussion of Re K-‐ relationship between level of capacity required and statutory protections provided • In the English context, HOL decision • English legislation creates significant protections • Because of the legislative context in England it’s appropriate to have a lower standard • But in our context because protection is minimal and risk is high there needs to be a high level of

capacity • Would the new capacity/ powers and duties of attorney provisions have made a difference here?

• It essentially codifies what was decided in Egli

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Representation Agreement Act

-‐ Only in BC – creatures of statute only • 4 An adult may make a representation agreement unless he or she is incapable of doing so. • Provides for two kind of representation agreements; capacity required to make each is different from the other,

powers conferred on different from the other • Like an attorney, a representative cannot make a will

• A will is special and specific to the individual s. 7 (“standard”) representation agreement -‐ Basic capacity rule is you cannot give more powers than you are capable of making yourself 7

(1) In a representation agreement made under this section, an adult may authorize his or her representative to help the adult make decisions, or to make decisions on behalf of the adult, about any or all of the following:

a. the adult's personal care; b. routine management of the adult's financial affairs, including, subject to the regulations,

i. payment of bills, ii. receipt and deposit of pension and other income, iii. purchases of food, accommodation and other services necessary for personal care, and iv. the making of investments;

c. major health care and minor health care, as defined in the Health Care (Consent) and Care Facility (Admission) Act, but not including the kinds of health care prescribed under section 34 (2) (f) of that Act;

d. obtaining legal services for the adult and instructing counsel to commence proceedings, except divorce proceedings, or to continue, compromise, defend or settle any legal proceedings on the adult's behalf.

(2) An adult may authorize a representative under subsection (1) (a) to accept a facility care proposal under the Health Care (Consent) and Care Facility (Admission) Act for the adult's admission to a care facility, but only if the facility is

a. a family care home, b. a group home for the mentally handicapped, or c. a mental health boarding home.

(2.1) A representative may not be authorized under this section a. to help make, or to make on the adult's behalf, a decision to refuse health care necessary to preserve

life, or b. despite the objection of the adult, to physically restrain, move or manage the adult, or authorize another

person to do these things. Test of incapability (section 7) Section 8

(1) An adult may make a representation agreement consisting of one or more of the standard provisions authorized by section 7 even though the adult is incapable of

a. making a contract, b. managing his or her health care, personal care or legal matters, or c. the routine management of his or her financial affairs.

(2) In deciding whether an adult is incapable of making a representation agreement consisting of one or more of the standard provisions authorized by section 7, or of changing or revoking any of those provisions, all relevant factors must be considered, for example:

a. whether the adult communicates a desire to have a representative make, help make, or stop making decisions;

b. whether the adult demonstrates choices and preferences and can express feelings of approval or disapproval of others;

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c. whether the adult is aware that making the representation agreement or changing or revoking any of the provisions means that the representative may make, or stop making, decisions or choices that affect the adult;

d. whether the adult has a relationship with the representative that is characterized by trust. Monitors

• 12 (1) An adult who makes a representation agreement containing a provision authorized by section 7 (1) (b) must name as monitor in that agreement an individual who meets the requirements of subsection (4) unless

• (a) the representative named by the adult is the adult's spouse, the Public Guardian and Trustee, a trust company or a credit union, or

• (b) the adult has assigned authority under section 7 (1) (b) to 2 or more representatives and they are required to act unanimously in exercising all authority assigned under that section,

A monitor must make reasonable efforts t ensure that the representative is complying with the Act -‐ This is a private agreement -‐ And who would be a monitor -‐ Is this a way to get away from the PGT relationship in the same way it monitors committeeship -‐

Section 9 (non-‐standard) agreement à Standing in shoes, different between S7 because the person should also create an enduring POA

-‐ Default powers -‐ You could decided to confer some of these powers but not all -‐ There is ability to exclude

1) In a representation agreement made under this section, an adult may, subject to subsections (2) and (3),

authorize his or her representative to a. do anything that the representative considers necessary in relation to the personal care or health care of

the adult, or b. do one or more things in relation to the personal care or health care of the adult, including any of the

following: i. decide where the adult is to live and with whom, including whether the adult should live in a

care facility; ii. decide whether the adult should work and, if so, the type of work, the employer, and any

related matters; iii. decide whether the adult should participate in any educational, social, vocational or other

activity; iv. decide whether the adult should have contact or associate with another person; v. decide whether the adult should apply for any licence, permit, approval or other authorization

required by law for the performance of an activity; vi. make day-‐to-‐day decisions on behalf of the adult, including decisions about the diet or dress of

the adult; vii. give or refuse consent to health care for the adult, including giving or refusing consent, in the

circumstances specified in the agreement, to specified kinds of health care, even though the adult refuses to give consent at the time the health care is provided;

viii. despite any objection of the adult, physically restrain, move and manage the adult and authorize another person to do these things, if necessary to provide personal care or health care to the adult.

2) Unless expressly provided for in a representation agreement made under this section, a representative must not a. give or refuse consent on the adult's behalf to any type of health care prescribed under section 34 (2) (f)

of the Health Care (Consent) and Care Facility (Admission) Act, b. make arrangements for the temporary care and education of the adult's minor children, or any other

persons who are cared for or supported by the adult, or

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c. interfere with the adult's religious practices. 3) In a representation agreement made under this section, if a representative is provided the power to give or

refuse consent to health care for the adult, the representative may give or refuse consent to health care necessary to preserve life.

S. 9, capacity to make

• An adult may authorize a representative to do any or all of the things referred to in section 9 unless the adult is incapable of understanding the nature and consequences of the proposed agreement.

Decisions not permitted Section 11

(1) Despite sections 7 (1) (c) and 9, an adult may not authorize a representative to refuse consent to a. (a) the adult's admission to a designated facility under section 22, 28, 29, 30 or 42 of the Mental Health

Act, b. the provision of professional services, care or treatment under the Mental Health Act if the adult is

detained in a designated facility under section 22, 28, 29, 30 or 42 of that Act, or c. the provision of professional services, care or treatment under the Mental Health Act if the adult is

released on leave or transferred to an approved home under section 37 or 38 of that Act. (2) A representative must not consent to the provision of professional services, care or treatment to the adult for

the purposes of sterilization for non-‐therapeutic purposes. Duties of representatives Section 6

(1) A representative must a. act honestly and in good faith, b. exercise the care, diligence and skill of a reasonably prudent person, and c. act within the authority given in the representation agreement.

(2) [does not apply to section 9 representative agreement if it provides rep. need only consider wishes of adult while capable] When helping the adult to make decisions or when making decisions on behalf of the adult, a representative must

a. consult, to the extent reasonable, with the adult to determine his or her current wishes, and b. comply with those wishes if it is reasonable to do so.

Section 7’s are really created for people who constantly have capacity issues i.e. for developmentally disabled people Section 9’s are for people who’s mental capability will be loss (getting dementia) Duties (4) If the adult's instructions or expressed wishes are not known, the representative must act

(a) on the basis of the adult's known beliefs and values, or (b) in the adult's best interests, if his or her beliefs and values are not known.

Bentley v Maplewood Seniors Care-‐ how do these issue play out in that case? -‐ This woman created these documents prior to RPA, they are more expression of wishes because RPAs weren’t

created -‐ But the RPA legislation says if you have a document that conforms substantially with the modern RPAs it will

have effect through the legislation -‐ Look through these documents and are these de facto RPAs -‐ The document contained strange wording “no heroic measures” “don’t keep me alive if I can’t recognize my

family”… “I would like my son and daughter to make decisions on my behalf if I become incapable of making decisions on my own behalf”

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-‐ Together these documents tell us what to do and create and RPA The children say that because of this they can stop the spoon feeding at the hospital because they are fulfilling her wishes

-‐ This is not tube feeding, because she is excepting the food she is indicating that she wants it -‐ She refuses some food items (showing she is refusing and making a choice) -‐ The courts holding is that whether or not these expression of wishes are RPAs the truth of the matter is she is

current making choices for herself about feeding and staying alive -‐ Her expression is different than it was 25 years ago but the evidence shows as a human being she is making

these choices -‐ Through her conduct and behaviours she is making choices and as long as she was the ability to her choice

trump the decision of any RPA

Legislation:

Power of Attorney Act [RSBC 1996] c. 370

Cases:

Goodrich v. British Columbia (Registrar of Land Titles), 2004 BCCA 100

Egli v. Egli, 2005 BCCA 627

Houston v. Houston, 2012 BCCA 300

Desharnais v. Toronto Dominion Bank, 2001 BCSC 1695

Medical / Health and other decisions

Legislation:

Representation Agreement Act [RSBC 1996] c. 405

Health Care (Consent) and Care Facility (Admission) Act RSBC 1996, c. 181

Cases:

Bentley v. Maplewood Seniors Care Society 2014 BCSC 165

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