Sara Li
Helen Low & Darrell Wickstrom
Fall 2012
SUCCESSION
Contents
Estate Administration ............................................................................................................................................ 7
Death & the Body .................................................................................................................................................. 8
Nature of a Will ..................................................................................................................................................... 9
Bird v Perpetual Executors and Trustees Assn of Australia (1946, Aus) – formal validity important ........................9
Hutton v Lapka Estate (1991, BCCA) – what makes something a testamentary doc? ............................................10
Re Huebner (1974, Man CA) – conditional wills (In the event of my death (on this trip)…) ....................................10
Re Green Estate (2001, Nfl TD) – conditional wills (In Event Something Should Happen To Both of Us) ................10
Solicitor’s Responsibilities ................................................................................................................................... 10
Re Worrell (1969, ON Ct) – what not to do when creating a will as a lawyer .........................................................10
Whittingram v Crease & Co. (1978, BCSC) – solicitors may be liable in neg to Bs via Hedley Byrne .......................10
Wilhelm v Hickson (2000, SKCA) – when will solicitors be liable in neg to Bs..........................................................11
Hall v Bennett (see Capacity section) – things that have led to criticism by the court ............................................11
Intestate Succession ............................................................................................................................................ 11
Gosbjorn v Hadley (2008, BCSC) – defn of CL spouse & when a CL relationship ends .............................................12
Re Kishen Singh (1957, BCSC) - the children of a half sister take as though full nieces/nephews ...........................12
Re Forgie (1948, Man KB) – intestacy rules saying that children of a brother/sister take if that brother/sister is
deceased→ children take without the $ going through the brother/sister’s estate ...............................................13
Execution of Wills ................................................................................................................................................ 13
George v Daily (1997, Man. CA) – Wills Act s. 23 “dispensing power” (with any or all formalities) is not unlimited
.................................................................................................................................................................................13
Re Nerstine Estate (2012, SKQB) – Need at least a signature, esp where testamentary intentions not clear
(Stricter approach to dispensing power taken by Sask than Manitoba) .................................................................13
Re Wagner (1959, Sk Surr. Ct) –envelope signed ....................................................................................................14
Re Bradshaw Estate (1980, NB Prob. Ct) - Shape etc of signature not important ...................................................14
Re White (1948, NSSC) – Help with signature ok if testator already trying to sign .................................................14
Peden v Abraham (1912, BCSC) – “Help” with signature not ok if testator was not able to consent/object at the
time .........................................................................................................................................................................14
Ball v Taylor (1999, BCSC) – Witnesses don’t have to witness the will-maker signing the will as long as will-maker
sufficiently indicates to them that the will/sig is theirs ...........................................................................................14
Re Brown (1954, Ont Surr. Ct.) – Testator must sign/acknowledge sig in front of both Ws at the same time. Then
W’s sign after this. But they don’t have to sign in each other’s presence. ..............................................................14
Re Wozciechowiecz (1931, Alta App Div) – testator must actually see the Ws sign. ..............................................14
Re Jackson (1985, BCSC) – Incorporation by reference & parol evidence................................................................14
In the Estate of Oates (1946) – presumption that alterations made on the face of the will were made after
execution .................................................................................................................................................................15
In the Goods of Itter (1950) – if alteration invalid, does the original stand? ..........................................................15
Re Cumming (1963, Ont HCJ) – gift to B can be invalidated where B/B’s spouse is a W, even when not a straight
gift. ..........................................................................................................................................................................15
Re Ray’s Will Trusts (1936) – trustee receiving gift can attest. Also W can be a member of the community which
benefits from the trust. ...........................................................................................................................................16
Re Royce’s Will Trusts (1959) – timing of beneficial interest: at the time of the attestation, did W have a stake. 16
Gurney v Gurney (1855) –Bs receiving gifts under the original will witness a later codicil .....................................16
Anderson v Anderson (1869) – B witnesses original will, but remedied by properly executed codicil ....................16
Jones v Public Trustee (1982, BCSC) – the voided gift (when it is a portion of the residue) falls to intestacy .........16
Incapacity Planning .............................................................................................................................................. 17
McMullen v Webber (2006, BCSC) - POA must be exercised with the instructions of donor unless the donor is
incapable .................................................................................................................................................................18
Easingwood v Cockroft (2011, BCSC) – POA creating an alter ego trust ≠ making a testamentary doc .................18
Houston v Houston (2012, BCCA) - can revoke POA by conduct, but need to have clear and unambiguous conduct.
.................................................................................................................................................................................19
O’Hagan v O’Hagan (2000, BCCA) – ok for committee to take tax-planning steps.................................................21
BC (Public Trustee) v Bradley Estate (2000, BCCA) – not ok for committee to take tax planning steps (when it
diminishes the size of the estate) ............................................................................................................................21
Disclaimer ............................................................................................................................................................ 22
In the Estate of Brannan (1991, BCCA) – when might acceleration apply ..............................................................22
De la Giraudias v Louis de la Giroday Trust (1998, BCSC) – what to consider re: acceleration ...............................22
Re the estate of Creighton (2006, BCSC) – factors to consider when deciding on acceleration ..............................22
Re Grund Estate (1998, BCSC) – how to use disclaimer to solve errors ...................................................................23
Abatement .......................................................................................................................................................... 23
Aboriginal Estates ................................................................................................................................................ 24
Provonost v Canada (Minister of Indian Affairs) (1985, FCA) – Aboriginal will .......................................................25
[2]
Revocation ........................................................................................................................................................... 26
Re Lawer (1986, Sask ct) – Subsequent instrument & intention..............................................................................26
Re Norris (1946, BCSC) – destruction of the will might not be enough to revoke – still need intention ..................27
Re Adams (1992, Eng) - destruction by blacking out signatures on the will ...........................................................27
Sugden v Lord St Leonards (1876, Eng) – presumption of revocation for a lost will is rebuttable ..........................27
Lefebvre v Major (1930, SCC) – lost will, possibly burned with the body ................................................................27
Re Jones Decd (1976, Eng) – what to ask when faced with destroyed will; conditional revocations ......................28
Re Sorenson (1981, BCSC) – mistaken fact can invalidate revocation if court decides revocation was conditional
on that mistaken fact. .............................................................................................................................................28
University of Manitoba v Sanderson Estate (1998, BCCA) – how BCCA dealt with a mutual will ...........................29
Revival ................................................................................................................................................................. 29
Re McKay (1953, BCSC) – revival requires intention ................................................................................................30
Republication, Lapse & Ademption ...................................................................................................................... 30
Re Hardyman (1925, Eng) – republication by codicil is used to effectuate a testator’s intentions. ........................30
Re Reeves (1928, Eng) – “present lease” in original will – republished in codicil → new lease ..............................30
Re Heath’s Will’s Trusts (1949, Eng) - If a gift is valid at the time the will is made, then mere republication cannot
invalidate it..............................................................................................................................................................30
Re Estate of Ruth Smith: Smith v Rotstein (2010, ONSC) – republication while lacking capacity doesn’t invalidate
will ...........................................................................................................................................................................30
Re Stuart Estate (1964, BCSC) - gift goes to intestacy if residual gift to one B fails (PRE WESA) ............................31
Re Mackie (1986, Ont HC) – doctrine of lapse does not apply if the disposition is made according to a moral
obligation ................................................................................................................................................................31
Re Wudel (1982, Alta QB) – when a court might find contrary intentions ..............................................................31
Re the Estate of Stella West (1999, Van Reg)- per capita = contrary intention to create joint tenancy .................32
Re Davison (1979, NSTD) – anti-lapse provisions in a will .......................................................................................32
Re Cousen’s Will Trusts (1937, Eng) – what happens when anti-lapse provision gives gift to someone else who
has also predeceased the testator ..........................................................................................................................32
Re Greenwood (1912, Eng) – language used to avoid a lapse ................................................................................32
Church v Hill (1923, SCC) – ademption is strictly applied ........................................................................................32
Trebett v Arlotti-Wood (2004, BCCA) – Ademption of specific/general legacies ....................................................33
Re Sweeting (1988, Eng) – when real property is adeemed & becomes personal property. ...................................33
Re Dearden Estate (1987, Man QB) - a K for sale and purchase which is not enforceable, either by or against the
testator, does not effect an ademption...................................................................................................................34
Re Pyle (1895, Eng) – republication can affect ademption under rule in Lawes v Bennett .....................................34
[3]
Rectification ........................................................................................................................................................ 34
Re Morris (1971, Eng) – Court of probate & court of construction working together to fix error ...........................35
Clarke v Brothwood (2006, Eng) – example of rectification of a ‘clerical error’ ......................................................35
Re Verity (2012, BCSC)- at probate – can only delete words but direct ev of intention admissible ........................35
Rondel v Robinson (2011, ONCA) – evidence of intention inadmissible at construction stage ...............................35
Balaz v Balaz (2009, ONSC) – ONSC pre-empts WESA. Dispenses with differentiation btwn court of probate &
court of construction ...............................................................................................................................................35
Guardian Trust and Executors Company of New Zealand v. Inwood, (1946, NZ) - Pre WESA - signing another’s will
by accident ..............................................................................................................................................................36
Re Brander Estate (1952, BCSC) – Pre WESA - signing another’s will by accident...................................................36
Re McDermid Estate (1994, Sask QB) – Post WESA – signing another’s will by accident .......................................36
Estate of Daly (2012, NZ SC) – Post WESA – signing another’s will by accident......................................................36
Construction ........................................................................................................................................................ 36
Perrin v Morgan (1943, Eng) – interpretation & example of evidence of surrounding circumstances ...................36
Haidl v Sacher (1980, Sask CA) – when using “ordinary meaning” rule of construction, look at ordinary meaning
in light of surrounding circumstances & entire will .................................................................................................37
Laws v Rabbitt (2006, BCSC) – armchair approach .................................................................................................37
Wilson v Shankoff (2007, BCSC) – application of Haidl v Sacher .............................................................................37
Estate of Murray (2007, BCSC) – using surrounding circumstances to correct error ..............................................37
Re Davidson (1979, OnHC) – CL principle of falsa demonstration – ambiguous description of property ................37
Re McEwen Estate (1967, BCCA) – court can’t fix errors by speculation .................................................................37
Re Meier (2004, ABQB) – Can’t gift what you don’t own ........................................................................................38
Ireland v Retallack (2011, NZ SC) – Compare to Re Meier .......................................................................................38
Amyot v Dwarris (1904, Eng) - "eldest" means the first born child even if there are only 2 children and the first
born is dead at the date of death of the testator ....................................................................................................39
Re Karkalatos Estate (1962, SCC) – where to apply per stirpes – in the generation above .....................................39
Re Clark Estate (1993, BCSC) ...................................................................................................................................39
Dice v Dice estate (2012, ONCA) - “gift to named children, per stirpes” shows testator’s intention to benefit his
children’s children ...................................................................................................................................................39
Milthorp v Milthorp (2000, BCSC) –not a class gift .................................................................................................40
Re Hutton (1983, ONHC) – class gift ........................................................................................................................40
Capacity, Knowledge & Approval, and Undue Influence ...................................................................................... 42
Vout v Hay (1995, SCC) - relationship btwn knowledge & approval, capacity, & undue influence .........................42
[4]
Re Henry (2009) OnSC – suspicious circumstances does not impose a higher std of proof. ....................................42
Robins v National Trust Co (1927, Eng) – Onus only really matters if the evidence is completely even on either
side. Otherwise, on a BOP, court just reviews & weighs evidence, then comes to a conclusion .............................42
Turner v Rochon (1980, BCSC) - where a will is admitted to probate in common form, and is later attacked for
lack of capacity, the onus of proof remains on the party propounding the will. .....................................................43
Banks v Goodfellow (1870, Eng) – test for legal capacity to make a will; capacity is a continuum ........................43
Royal Trust Co v Rampone (1974, BCSC) – can lack capacity in one area & retain capacity to make will ..............43
Re the Estate of Borhman, (1938, Eng) – psychopathy ≠ lacking capacity; when delusions relate to the
dispositions, then can be found to be lacking capacity (just for that disposition). .................................................43
Key & Anor v Key & Ors (2010, Eng) – “golden rule” for making will for someone with doubtful capacity ............43
Sharp & Bryson v Adam & Adam (2006, Eng) – intellectual vs moral understanding .............................................43
Parker v Felgate (1883, Eng) – capacity at execution not as important (vs at time of giving instructions) ............44
Perrins v Holland (2010, Eng) – confirms that Parker v Felgate is still good law ....................................................44
Hall v Bennett Estate (2003, ONCA) – duty for lawyer to create will ......................................................................44
Public Trustee v Gill (2001, NZ) – duty of a lawyer to make a will where capacity is doubted ...............................44
Wintle v Nye (1959, Eng) – Knowledge & approval .................................................................................................45
Russell v Fraser (1980, BCCA) – testator must know general amt of estate to have knowledge & approval .........45
Maddess v Estate of Johane Gidney (2009, BCCA) – language difficulties alone ≠ suspicious circ ..........................45
Wingrove v Wingrove (1885, Eng) – Undue influence = coercion ...........................................................................45
Craig v Lamoureaux (1920, Eng) – person alleging undue influence must prove it ................................................45
Bolianatz Estate v Simon (2006, SKCA) - Fraud .......................................................................................................46
Wilkinson v Joughin (1866, Eng) – distinction btwn “innocent & fraudulent” legatees ..........................................46
Transfers Outside of a Will ................................................................................................................................... 46
Pecore v Pecore – (2007, SCC) – joint tenancies ......................................................................................................48
Madsen Estate v Saylor (2007, SCC) – application of Pecore v Pecore – adding child on acct for convenience is not
a gift ........................................................................................................................................................................49
Mordo v Nitting (2006, BCSC) – Alter ego trusts & tax liabilities ............................................................................49
National Trust v Robertshaw (1986, BCSC) – RSP designation may be viewed as an inter vivos gift ......................49
Roberts v Martindale (1998, BCCA) - No automatic revocation of ins designation on divorce ..............................49
Claims Against Estates ......................................................................................................................................... 50
McCrea v Barrett (2004, BCSC) – stepchildren can’t apply for variation .................................................................51
Tataryn v Tataryn (1994, SCC) – legal & moral obligs under the WVA ...................................................................51
[5]
Bridger v Bridger Estate (2006, BCCA) - example of moral oblig working to give a spouse who has enough even
more ........................................................................................................................................................................51
Saugestad v Saugestad (2008, BCCA) – example of limiting moral obligs where legal obligs are sufficiently met 52
Picketts v Hall estate (2009, BCCA) – large award to CL spouse .............................................................................52
Waldman v Blumes (2009, BCSC) – adult independent children – moral obligs......................................................52
McBride v Voth (2010, BCSC) – WVA btwn children & will maker’s reasons ...........................................................53
Graham v Chalmers (2010, BCCA) – contrast with McBride ....................................................................................53
Mawdsley v Meshen (2012, BCCA) –using Fraudulent Conveyance Act to set aside inter vivos trust fails .............53
Harvey v Harvey (1979, BCCA) – restrictions on disposing of shares ......................................................................54
Role of the Public Guardian and Trustee .............................................................................................................. 54
Cameron v Cameron (BCSC) – where the parents of a minor child are still married, and one dies, leaving estate to
the other spouse, then a WVA claim for provision for the child is unnecessary. .....................................................57
[6]
Estate Administration
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What happens to assets immediately after death?
o The executor named in the will takes legal title at date of death
o Intestate: administrator takes ownership on date of court appointment
 Gap between death & court appt date
o Both executor or administrator are "personal representatives" of the deceased
 Stands in place of the deceased person
 Legal title vests in the personal representative
Property succeeds in the CL quite differently than in civil law jurisdictions
o Civil - title passes directly to beneficiaries/heirs
What are the rights of beneficiaries under a will or intestate heirs?
o B's entitlement arises after assets are collected and realized - debts are paid, estate
assets & cash proceeds are ready for distribution
How does a personal rep prove his/her authority?
o Will: grant of probate
o Intestacy: grant of letters of administration
o Actual "grant" is issued – need to apply to BCSC to prove existence or absence of will
o Grant process:
 Submit the original will and proof that it is the last known will
 Inventory of assets & values
 Notice of the will & probate must be given to Bs and potential claimants against
estate (allows an opportunity for claimants to challenge the will)
 OR: notice to intestate heirs & consent of heirs and creditors to appointment of
applicant seeking grant; posting of bond by applicant (ensuring that the
administrator won't run off with the assets)
 Probate fees to the govt (1.4% of gross value)
Who can apply for a grant of administration?
o Heir (next of kin) who has an interest in the estate
o If an executor cannot or refuses to act, then a B or a creditor who has an interest in the
state may apply (a grant of administration with will annexed)
o If an executor has acted but resigns, dies, or is incapable of completing, then a B may
apply (a grant of administration de bonis non - from here on)
o If there is a will in dispute, & there is ongoing litigation as to who is the proper personal
rep - then an indep 3rd party or a B under one of the competing wills may apply (grant
of administration pendente lite - during litigation)
An executor quite often is also a trustee - executor executes the will, trustee holds the funds for
the benefit of the beneficiaries
2 types of grant:
o Common form grant - when there's no dispute over the validity of the will administrative issuance of probate upon submission of the will & related docs
o Solemn form grant - court confirmation after a review of evidence that the will is
formally & substantively valid
o A common form grant can be set aside with a solemn form grant of probate
Why might a will not be valid?
o Not the final last instrument
[7]
o
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Not validly executed/witnessed (need to comply with formal validity provisions under
WESA)
o Not executed with testamentary capacity, knowledge, & approval or free will
(substantive validity) - this would require litigation and a court order finding
A will is "ambulatory" when it has been properly created, but before it can be executed (death)
Role of executor/administrator
o Gather assets & prepare inventory
o Pay debts & taxes
o Distribute to proper Bs
 Income tax act - need tax clearance before distribution
 WESA variation - 180 days after wills variation limitation period expires
o Maintain accts, get approval of accts & discharge
Some contentious issues in administration of estate:
o Proof of will in solemn form
o Interpretation proceedings (sometimes wills are not totally clear)
o Wills variation claims - spouses and children can claim - ie court can vary the testator's
wishes
 Specific to our jurisdiction - leads to:
 Lots of litigation
 Lots of estate planning
o Disputed acct passing/discharge
Remuneration o Will-maker can determine remuneration in advance in the will
o s. 88 of trustee act otherwise applies (capital fee, income fee, care & maintenance fee)
Formal discharge of executor/administrator upon completion of duties - order from the Bs or
the court
o Theoretically, discharge from the court is the only thing that releases the executor
o Discharge from the Bs might relieve him of liability contractually
Death & the Body
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Sometimes - no death certificate (no body, missing, etc) - get an declaration of presumed death
Curator - sort of like a trustee - can hold onto the missing person's assets until the declaration
Survivorship rules - WESA part 1, div 2 (WESA rules subject to contrary intention)
o WESA - s. 5(1)
 If 2 or more persons die and order of death is uncertain, rights to property
determined as if each had survived the other
 Purpose is to avoid the unnecessary double probate and administration of 2
estates
 Old rule was different - presumptions - led to lots of required estate planning
 Example: A & B die together
 For A's estate, presume B died first
 For B's estate, presume A died first
o WESA - s. 5(2)
 If 2 joint tenants die together, each person is presumed to have held their
interest in the jointly owned property as tenants in common
[8]
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Result is that each deceased person would dispose of their half interest in their
own estate and the ordinary survivorship rule would not apply
o WESA - s. 6
 If property passes in the event that a B dies before or at the same time as
another person or in circumstances
 Eg. A & B die together
 Will: my estate to C if B fails to survive me
 Result: C takes gift, B is presumed to have died before A
o WESA - s. 9
 Example: A & B die together
 Will: to B if B survives A
 Result: B loses gift as B is presumed to have died first
o WESA - s. 10 - when we do know the order of death
 5 day survival rule - B must survive by 5 days to take benefit
 This presumption only operates if will is otherwise silent and there is no
contrary intention to this survivorship rule applying
 Usually wills will have a survivorship clause - most often 30 days
o WESA - s.8 - post death births
 Child conceived before death but born after and living at least 5 days inherits
Insurance Act presumptions
o B always dies before the insured person
o If no other named B, then funds go to the estate
Responsibility for disposing of body rests with personal representative
o Subject to crim code & disposal places governed by legislation
Written wishes of the deceased person is binding on the personal representative - can be in will
or in funeral K
Nature of a Will
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If you are dealing with a testamentary instrument, need to make sure it is executed with the
formalities of the legislation - otherwise, you have nothing (eg. Bird)
RSP B designations and ins B designations have special legislation - they are also testamentary
but execution formalities are different (simpler)
Courts generally more results focused - trying to do the right thing
Bird v Perpetual Executors and Trustees Assn of Australia (1946, Aus) – formal validity important
F: Deceased person executes a doc under seal before dying to Mrs. Bird – instructs trustees/
administrators to pay Mrs. Bird some money after his death. Can Mrs. Bird get her money?
R: This is a duly executed sealed doc but because it is testamentary, it must also meet the Wills Act req.
Notes:
 Substance over form
 A doc may not be testamentary if it takes effect immediately (ie while the person is still alive) but
the enjoyment of benefits are postponed until death of the person
 Acknowledgement of indebtedness might indicate that the doc is to take effect immediately, but is
not determinative
[9]
Hutton v Lapka Estate (1991, BCCA) – what makes something a testamentary doc?
F: Administrators of Mrs. L’s estate found a note (not a bill of exchange) regarding a loan to Mrs. L’s son.
Son promised to pay testatrix 295K, wife to pay out of estate in case he should die. In the case of Mrs. L
dying, then the contract was to be null and void. Trial judge held that because the forgiveness of debt on
death was a testamentary action, the note needed to have complied with formal requirements.
R: This was a K which had immediate effect. Provision re: debt forgiveness might be considered
testamentary if read in isolation, but here, it did not alter the immediate effectiveness of the K. Test for
whether something is testamentary: if the person executing it intends that it shall not take effect until
after his death and it is dependent upon his death for its vigour and effect, it is testamentary.
Re Huebner (1974, Man CA) – conditional wills (In the event of my death (on this trip)…)
F: Before going on a trip, testator writes holograph will: “In the event of my death (on this trip) …”.
Testator returns from trip & dies 2 years later. No other will exists.
R: Testator regarded the trip as the reason for making the will, rather than a condition for its operation
Re Green Estate (2001, Nfl TD) – conditional wills (In Event Something Should Happen To Both of Us)
F: Mrs. G presents a letter written by the deceased, Mr. G & signed by both, for probate. Daughter
agrees that the letter is testamentary in nature but not operational because it was conditional on the
death of both Mr. & Mrs. G. Letter started with “In Event Something Should Happen To Both of Us.”
R: Unambiguous that the will depended on something (death) happening to both Mr. & Mrs.. The letter
left nothing for wife, only kids. Must distribute by intestacy.
Solicitor’s Responsibilities
Re Worrell (1969, ON Ct) – what not to do when creating a will as a lawyer
F: Lawyer did a lot of things poorly
a. he prepared a will for a testator for whom he had never acted and whom he never saw and knew
the testator concerned was 82 years of age and confined to a home for the aged,
b. he drew the will without any knowledge of the size of the testator's estate or the nature of its
assets,
c. he drew the will leaving a substantial portion of the estate to the person who consulted him,
d. he drew the will with changes from the original letter of instructions signed by the testator without
any consultation with the testator,
e. he handed the will to the beneficiary who had consulted him, to take out and have executed,
f. he kept no docket entries or other records dealing with the matters in issue.
Also: don’t ask leading Qs (particularly for elderly), see the testator, exercise sound, discriminating,
and well-informed judgment.
Whittingram v Crease & Co. (1978, BCSC) – solicitors may be liable in neg to Bs via Hedley Byrne
F: Testator made will benefiting one son above the rest. Lawyer asked son’s wife to sign as witness. Was
the lawyer negligent? Yes. But did he owe a duty to anyone other than the testator (ie the son)?
R: 2 lines of authority – first, no duty owed to beneficiaries of a will; second, when one party seeks out
information from another party with special skill, & that party knew or ought to have known about the
reliance on his skill & judgment, then there is a duty (Hedley Byrne). These facts satisfy HB factors.
[10]
Wilhelm v Hickson (2000, SKCA) – when will solicitors be liable in neg to Bs
F: Testator held shares of an incorporated co. which held his farming business & land. He dies. Court
held that the gifts of land set out in his will were ineffective because they were owned by the co, not
him. Trial judge finds lawyer liable.
R: Court canvasses law – discusses White v Jones:
 Instructions for will given to firm - 2 months later, testator died before meeting with the firm rep
who was in charge (hadn't acted on instructions yet). House of Lords decided that this was negligent
on the part of the firm.
 After balancing factors for & against, court held that duty should in some cases “extend to the
intended beneficiary a remedy under the Hedley Byrne principle … in circumstances in which neither
the testator nor his estate will have a remedy against the solicitor”.
Court follows White v Jones and finds for plaintiff Bs (not for some because they couldn’t show they had
suffered damages as their wives had in fact taken more than they would have under the will.)
Hall v Bennett (see Capacity section) – things that have led to criticism by the court
 the failure to obtain a mental status examination;
 the failure to interview the client in sufficient depth;
 the failure to properly record or maintain notes;
 the failure to ascertain the existence of suspicious circumstances;
 the failure to react properly to the existence of suspicious circumstances;
 the failure to provide proper interview conditions (e.g. the failure to exclude the presence of an
interested party);
 the existence of an improper relationship between the solicitor and the client (e.g. preparing a will
for a relative); and
 failing to take steps to test for capacity.
Intestate Succession
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A theme of this is whether a person has status to make a claim as an intestate heir
Potential intestate heirs may attack an existing will (test its validity) if they benefit from the
intestate rules. We want to prevent this.
Heirs - used to describe people who get something intestate
Administrator appointed by court has all the same duties as an executor (grant of administration
fees same as probate fees)
Other jurisdictions have some differences but generally the same approach
Partial intestacy is possible - ie there is a will that distributes part of the estate properly but not
the whole estate (usually happens when there is no "residue clause" or there is a drafting
mistake)
s. 19 - this section needs to be interpreted in light of other province's intestacy rules which are
similar
s. 20 - no descendants, but a spouse - then everything goes to the spouse
s. 21 - if there are descendants, spouse gets something off the top (household furnishings &
300k share of the estate) (aka preferential share)
o Reduced to 150k if not all the descendants are descendants of the deceased & spouse
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o
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If net value of the estate is less than (or equal to) the spouse's preferred share, then
spouse gets everything
o If there is something left, then ss. (6) says half to the spouse and half to the descendants
s. 22 - 2 or more spouses - can agree to portion out the spousal share, or allow court to
determine
s. 23 - no spouse but descendants or relatives
o Goes to descendants. If none, then up to parent of deceased
o If none, then to the descendants of the deceased's parents
o Keep going up.. See chart
Ss. (3) limits it to 5th degree of relationship
s. 24 - more or less per stirpes
s. 25 - deals with partial intestacy s. 2 - Who is a spouse?
Half siblings - s. 23 (5)(b) - count as full siblings
Adopted children gain the status of children under their adopted parents but at the same time
lose the status of being children of their natural parents
In addition to rights of preferential share that the spouse has, other rights set out in s 26 & 31
s. 33 - spousal home goes to spouse in certain circumstances
o This is a significant power of the courts - In some cases the house could represent a
large part of the estate. Court could deprive the other heirs/Bs of the value of the house
for a long period of time.
Gosbjorn v Hadley (2008, BCSC) – defn of CL spouse & when a CL relationship ends
F: Testator had 2 daughters from first marriage. After divorce, had 12 yr CL relationship with G (lived
together with G’s daughter). G & her daughter spent some nights away (partially moved into another
place). That month, the testator died. Was G still a spouse?
R: Defn of a CL spouse is a person who has cohabited with someone in a marriage-like relationship for
2+ yrs. From Gostlin, test is permanent mutual support commitment:
“If each partner had been asked, … whether, if their partner were to be suddenly disabled for life, would
they consider themselves committed to life-long financial and moral support of that partner, and the
answer of both of them would have been "Yes", then they are living together as husband and wife. If the
answer would have been "No", then they may be living together, but not as husband and wife.
… the answer to that question may prove elusive. If that is so, then other, more objective indicators may
show the way. Did the couple refer to themselves, when talking to their friends, as husband and wife, or
as spouses, or in some equivalent way that recognized a long-term commitment? Did they share the
legal rights to their living accommodation? Did they share their property? Did they share their finances
and their bank accounts? Did they share their vacations? In short, did they share their lives? And,
perhaps most important of all, did one of them surrender financial independence and become
economically dependant on the other, in accordance with a mutual arrangement.”
Conduct & “reality” are more persuasive than subjective/conscious intentions (Takacs)
When does a CL relationship end?
“when either party regards the relationship to be at an end, and by his or her conduct, demonstrates in
a convincing manner that this particular state of mind is a settled one”
Here, ev was not enough to show that the testator had settled on ending the relationship. Some
absences from the matrimonial home ≠ separation.
Re Kishen Singh (1957, BCSC) - the children of a half sister take as though full nieces/nephews
[12]
Re Forgie (1948, Man KB) – intestacy rules saying that children of a brother/sister take if that
brother/sister is deceased→ children take without the $ going through the brother/sister’s estate
Execution of Wills
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General Requirements:
1. Must be in writing
2. Be signed by the will-maker at the end in the presence of 2 witnesses
3. Witnesses must sign in the presence of the will-maker
Some Cdn jurisdictions (everywhere except BC, NS, & PEI) allow for “holograph” wills – written
by the will-maker & signed by the will-maker, no witnesses required
Testamentary intentions may include a consideration of competency (Wesekowski v
Wesekowski (2003, Man QB))
Will may be amended by an alteration on the actual will, or by codicil (is defined as a will under
WESA, so must follow same formalities)
Requirement of will being “written” or on paper is slowly fading – s. 46 of WESA defines
document to include electronic files – objections to this trend don’t really hold water, though
still some technical issues to be addressed
Pre-WESA: a defectively signed will = no will; courts hands are tied
Post-WESA: s. 39; s. 58 dispensing power/curing deficiencies
WESA s. 1 (“will-maker’s signature”)
36 – 16 yrs of age or older required
37 - how to make a valid will
38 - will by members of military forces
39 - clarification of doubt about signature placement
58 - court order curing deficiencies
40 – witnesses to wills (amendment adds age requirement of 19)
54 – How to alter a will
43 – Gift to witnesses
George v Daily (1997, Man. CA) – Wills Act s. 23 “dispensing power” (with any or all formalities) is not
unlimited
F: Will-maker wanted to change will. Spoke to accountant who wrote letter to lawyer. Met with lawyer.
Before formal will was drafted, will-maker died. Is the letter a testamentary doc?
R: Formal requirements serve evidentiary & cautionary, channeling (uniformity), & protective functions.
“Testamentary intention” is not just an expression of how he would like his property disposed – need a
deliberate or fixed and final expression of intention as to the disposal of his property on death.
BUT instructions for a will CAN be a good will – usually happens when someone is close to passing away.
Re Nerstine Estate (2012, SKQB) – Need at least a signature, esp where testamentary intentions not
clear (Stricter approach to dispensing power taken by Sask than Manitoba)
F: Doc not signed by anyone
R: There must at least be some attempt at creating a properly executed will.
[13]
Re Wagner (1959, Sk Surr. Ct) –envelope signed
F: Doc signed at the top by will-maker & witnesses, envelope signed by will-maker (& witnessed).
R: Sig on the envelope was last act of testator in making will; why else would he sign the envelope; will is
fair and no one disputes it → will valid.
Re Bradshaw Estate (1980, NB Prob. Ct) - Shape etc of signature not important
F: Testator on deathbed, wanted to sign codicil, could only make 2 diagonal marks, died.
Re White (1948, NSSC) – Help with signature ok if testator already trying to sign
F: Testator had a stroke, tried to make a mark to sign will, but needed help
Peden v Abraham (1912, BCSC) – “Help” with signature not ok if testator was not able to
consent/object at the time
F: Testator wanted a will, but when lawyer arrived, too weak to take interest in it. Indicated that he
could sign, but when taking the pen, couldn’t sign. Doc held his hand to sign. Died 15 min later.
R: Testator didn’t ask for help, couldn’t consent or object → invalid sig.
Ball v Taylor (1999, BCSC) – Witnesses don’t have to witness the will-maker signing the will as long as
will-maker sufficiently indicates to them that the will/sig is theirs
F: Testator told co-workers the doc was his will and asked them to witness. He hadn’t/didn’t sign in front
of them. Will was held valid.
Note: presumption of due execution - omnia praesumuntur rite et solemniter esse
acta donec probetur in contrarium – if everything looks regular, there is an inference that the will is duly
executed
Re Brown (1954, Ont Surr. Ct.) – Testator must sign/acknowledge sig in front of both Ws at the same
time. Then W’s sign after this. But they don’t have to sign in each other’s presence.
F: Testator signed, witnessed & signed by W1. Then both went downstairs & testator acknowledged her
sig, said it was her will, and W2 signed.
R: Testator’s sig must be made/acknowledged in front of both Ws at the same time, then both Ws have
to attest & sign (after testator’s sig/acknowledgement). But Ws don’t have to sign in the presence of
each other. So this will is invalid.
Re Wozciechowiecz (1931, Alta App Div) – testator must actually see the Ws sign.
F: Testator was very ill when he made the will. He signed in his hospital bed. Lawyer signed, & another
patient in the room signed. While the Ws were signing, the testator was turned towards the wall and
didn’t actually see them sign though they were in the same room.
R: Most cases say the testator must actually see the Ws sign. One case (Newton v Clarke) says testator
could have seen if he wanted to, & they were in the same room which satisfies “in the presence of”.
Here, testator didn’t see, and couldn’t have turned if he had wanted to. Invalid will.
Re Jackson (1985, BCSC) – Incorporation by reference & parol evidence
F: Will #1 made; then memorandum; then will2. Will1 did not mention the memo; will2 referenced a
memo
[14]
R: Parol ev was admissible to determine whether the memo mentioned in will2 was the memo in
question. Though it is considered a codicil to her will1, she did review it and decided to keep its terms
when making will2. So memorandum is admitted into probate along with will2.
Notes: For incorporation by ref, the doc must: (1) be in existence when the will is executed; (2) be
described as then existing; (3) be described so it is possible to ascertain the doc; (4) the will must not
state that the doc is not to form part of the will.
Parol ev – admissible when the will itself is disputed, but not admissible to explain the terms in the will.
Codicils & Alterations
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Short of revocation and a complete redrafting, a will may be amended by a codicil or by an
alteration on the face of the will.
Codicils fall within the definition of will in WESA, and so the law on the making of wills applies
equally to them
In the Estate of Oates (1946) – presumption that alterations made on the face of the will were made
after execution
F: Solicitor made will for testator, leaving residue to 2 sisters. 1 sister died. The testator copied word for
word the old will, but leaving residue to the surviving sister, and also changing the executors (as the
original had died). The words “and personal” (btwn “real” & “estate”) were added in btwn lines. Should
that be part of the will? (original said “real and personal estate”)
R: Alterations made on the face of the will are presumed to have been made after the will was executed.
But, judge looked to other ev of intentions by the testator. Found that she didn’t want to change
anything except for residual B & executors. Found that she was a very careful person, and probably
wrote in the 2 words prior to execution. Extra words were a part of the will.
In the Goods of Itter (1950) – if alteration invalid, does the original stand?
F: testator glued slips of paper over some bequests in a codicil. Slips of paper had new amts on them.
Testator had initialed the slips of paper but not attested, so they are invalid. Pl’s argued that if the slips
are invalid, then the original writing should stand.
R: Found “that it was the intention of the testator to revoke the part of the bequests covered by the
slips only if new bequests were effectually substituted”.
Witnesses as Beneficiaries
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Pre-WESA: Wills Act - Gift in a will is void if the gift is made to a W of the will, or a W’s spouse
(whether someone is the W’s spouse is determined at the time the will is made)
Post-WESA: s. 43 – same rule, but intention still trumps – court can order gift not void.
Re Cumming (1963, Ont HCJ) – gift to B can be invalidated where B/B’s spouse is a W, even when not a
straight gift.
F: Testator set out in his will that his property would be sold to friend Erley for certain amt. Property
would be worth 5k+ & selling price would be 1k. But Erley’s wife witnessed the will – so if this is a gift,
then would be invalid.
R: Court found this was a beneficial devise (ie gift) & not a bona fide sale.
[15]
Re Ray’s Will Trusts (1936) – trustee receiving gift can attest. Also W can be a member of the
community which benefits from the trust.
F: Nun in a convent left her property to the person who, at the time of her death, is abbess of the
convent. Both Ws were other nuns but not the abbess at the time of execution. When testatrix died, one
of the Ws had become the abbess.
R: It is ok for a trustee who receives the gift to have attested to it. Abbess is trustee of community fund.
But both nuns are Bs of the community fund – does this make the gift void? No. An attesting W can, as a
member of a community, get a benefit in some way without engaging the rule.
Re Royce’s Will Trusts (1959) – timing of beneficial interest: at the time of the attestation, did W have
a stake.
F: 2 executors & trustees listed in the will. 1 died, & the surviving executor appointed def, a solicitor, to
be the replacement. Def had witnessed the will. In the will, there were remuneration provisions for
executors & solicitor-trustees. Did this constitute a benefit under the will which made the will invalid
because the def had witnessed it?
R: Question should be: At the time of the attestation is any beneficial interest given to the attesting
witness under the instrument the execution of which he is going to attest? Not “At any time is any
beneficial interest…” Why? Doctrine of novus actus interveniens – some intervening event gave the def
his “benefit”. & otherwise wouldn’t support the objective of the provision (protecting a weak testator
who, when presented with a will by someone with substantial interest in it – signs). Also determining
whether someone is a spouse is consideration of the time the will is made – would be inconsistent.
Gurney v Gurney (1855) –Bs receiving gifts under the original will witness a later codicil
F: Testator had left some $ to F, and share of the residue to T. F & T didn’t witness his will, but witnessed
2 later codicils. One of them revoked some gifts which increased the residue.
R: F’s gift is ok – must be the same instrument giving the gift. T’s gift is ok – can’t read the revocation of
gifts to mean that T got a beneficial devise, etc.
Anderson v Anderson (1869) – B witnesses original will, but remedied by properly executed codicil
F: G was a B, but his wife witnessed the original will. Testatrix later made a codicil, witnessed by 2
others. Since a codicil repeats & confirms the original will, does G’s gift stand?
R: Gift stands. The “evils which the statute intended to prevent” can’t arise – the codicil republishes the
will & testatrix re-confirmed her wishes. Also testatrix could have thought of remedying her 1st mistake
by making the codicil.
Jones v Public Trustee (1982, BCSC) – the voided gift (when it is a portion of the residue) falls to
intestacy
F: Residue to go in equal shares to A, B, & C. A’s husband witnessed the will, so her gift fails. But what
happens to her gift? Could either split the residue into 2 and divide btwn B & C, OR could split residue
into 3, a share each to B & C, and the last share falls to intestacy.
R: Should take 2nd approach – A’s portion should go to intestacy.
[16]
Incapacity Planning
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Adult Guardianship and Planning Statutes Amendment Act, 2007 (+ other amendments – “2007
Act”)
A person, while capable, could make an enduring power of attorney, conferring on an attorney
powers to handle legal and financial affairs should that person become incapable; Power of
Attorney Act, R.S.B.C. 1996, c. 370, s. 8. By amendments to the Power of Attorney Act, the 2007
Act made significant changes to the law relating to enduring powers of attorney;
A person, while capable, could make a representation agreement, conferring on a
representative powers to deal with financial or personal affairs or both should that person
become incapable; Representation Agreement Act, R.S.B.C. 1996, c. 405, as amended. By
amendments to the Representation Agreement Act, the 2007 Act made significant changes to
the law on representation agreements;
There was no legislative provision permitting a person to make an advance directive, that is, a
document in which the person gives express directions about how health care is to be given, or
not given, if that person becomes incapable. The 2007 Act contains provisions to authorize the
making of advanced directives;
A Court could appoint a committee to handle financial or personal affairs or both of a person
found to be incapable; Patient’s Property Act, R.S.B.C. 1996, 349, as amended. The 2007 Act
would repeal that Act, and replace it by the Adult Guardianship Act. However, the relevant
provisions of the 2007 Act were not proclaimed, and so the Patient’s Property Act remains in
force.
Enduring Powers of Attorney
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CL allows “Donor” to give “Attorney” power to do inter vivos transactions with their property
(financial transactions)
Their relationship is principal & agent
Attorney’s powers can be general, narrow, or limited to specific transactions
By CL, the POA ceased to be effective if the donor became incapable – legislation changed this
by creating enduring POAs
o In BC, legislation enacted in 1983 allowed for EPOAs – now in the Power of Attorney Act,
RSBC 1996, s. 8 – 2007 Act made some changes
Only adults (must be capable of understanding the nature & consequences) can make an EPOA
o Adults are incapable if they cannot understand all of the following: their property and
its approximate value; obligations owed to dependants; the scope of authority granted
to the attorney; the fact that a failure by the attorney to manage property prudently
may result in a decline its value; the possibility of misuse of the attorney’s authority; the
fact the power may be revoked; any other prescribed matter
Who can be attorneys?
o Individuals
 Can’t be someone paid to look after the donor unless a child, spouse, or parent
 A minor who is named as attorney can’t act until they are an adult
o PGT
o a financial institution authorized to carry on trust business under the Financial
Institutions Act
If 2 or more attorneys (s. 18(4) & (5)):
o Can assign same or diff areas of authority
[17]
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o If same area, presumed co-attorneys acting unanimously.
Making an EPOA (ss. 16, 17):
o EPOA must be in writing, signed & dated by donor in presence of 2 witnesses who also
sign (1 witness if lawyer/notary)
 Witness can’t be attorney
 Another person may sign if directed by donor
o For land – Land Title Act also has requirements (parts 5 & 6)
o Attorney must also sign in presence of 2 witnesses– can’t act until then
 Without sig, attorney is not required to give notice that he is unwilling to act
o Must include provision in the POA that it is an enduring POA
An EPOA is effective on the latest of (ss 26, 27):
o the date by which the adult and an attorney has signed;
o the date stated in the power to be the effective date;
o the occurrence of an event specified in the power as bringing the power into effect
 creates “springing power”
Altering an EPOA (s 28):
o Capable adult can change according to same procedures as creating it
o After making changes, donor must give notice to attorneys
Revoking an EPOA (s. 28) – written notice to attorneys required
o Otherwise, attorney’s authority ends when EPOA is terminated (s. 30), attorney dies,
becomes bankrupt/incapable, etc (s 29)
A POA cannot authorize attorney to do something illegal (s. 15) and cannot authorize attorney
to make/change the donor’s will (s.21)
The attorney can’t delegate decision making authority (exceptions in investment matters)
Gifts and loans made/received by attorney subject to EPOA conditions (s. 20(1)(2)(3))
Duties of attorney (s. 19, 33) – act honestly & in good faith, exercise care, skill, & diligence of
reasonably prudent person, etc
Attorney not entitled to payment unless EPOA authorizes it but may be reimbursed for
expenses(s. 24)
Resignation of attorney (s. 25) – must be given to donor or close relative/friend if donor
incapable
Attorney not liable for loss/damage if duties are met (s.22)
Existing & extrajudicial POAs (ss 42, 38)
McMullen v Webber (2006, BCSC) - POA must be exercised with the instructions of donor unless the
donor is incapable
F: Elderly father started sending money to a woman he met in Hawaii. 3 kids wanted to protect his
assets. 2 are attorneys –tsf the dad's condo to their husbands only to protect the asset, not to take it.
Father takes action against kids.
R: POA must be exercised with the instructions of donor unless the donor is incapable
Capable donor = attorney is agent
Incapable donor = attorney is fiduciary
Can’t use POA to protect against stupid acts
Easingwood v Cockroft (2011, BCSC) – POA creating an alter ego trust ≠ making a testamentary doc
F: 2 kids have joint POA over dad. Dad remarries & makes a new will. Dad becomes incapable
1 kid becomes ill - thinks he might die before the father
[18]
Recall: putting funds in a trust while living, I'm the trustee and the B → those funds don't form part of
my estate → name a different trustee for after death → trust can be used as a succession vehicle.
Kids try to create alter ego trust for the father - they (or the survivor of them) are the trustees. Then if
one dies, still ok. Trust stated that the income during life of dad goes to dad. If father dies, then
provisions mirror the dad’s will. This meant that the spouse couldn’t apply under the Wills Variation Act.
Spouse tries to set aside the alter ego trust. Spouse argued that attorneys can't make trusts - why?
Attorneys cannot make a will for the donor after the donor becomes incapable -- by putting funds into
trust, is essentially making a testamentary instrument for the father.
R: Court did not accept spouse’s argument & found that the kids did it in good faith.
Houston v Houston (2012, BCCA) - can revoke POA by conduct, but need to have clear and
unambiguous conduct.
F: Donor appointed wife #2 and son as EPOA to act separately. Then he made a 2nd EPOA - appointed
wife #2, and son to act only if wife #2 was unable or unwilling. Son used 1st POA to sever joint tenancy
that the father held with wife #2 according to father’s wishes that his estate be preserved.
R: There is no presumption that a later POA revokes all earlier POAs. Onus is on the person wanting to
show that the earlier POA has been revoked. Here, evidence does not show earlier POA was revoked.
Court rejects wife’s argument that the act amounted to creating a testamentary direction.
Representation Agreements
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Representation Agreement Act RSBC, 1993 – basic intent was to allow people to appoint
representatives to deal with their financial & personal/healthcare affairs should they become
incapable
Now, RAA provides for 2 types of representation agreements:
o Section 7 RAs – personal care, health care, & limited financial matters
o Section 9 RAs – personal care & health care only
Section 7: Adults are presumed capable of making RAs unless contrary is established (s. 8 test –
adult may be considered incapable of doing many other things but still be able to make the RA)
Scope of section 7 RA includes (s. 7, 11):
o Personal care (incl admission to care facility)
o Routine management of finances (eg. paying bills, depositing cheques, purchase of food)
o Major & minor health care, with some exceptions (eg. re: refusal of life support)
o Legal matters (except divorce)
Section 9: Adult must be capable of understanding nature & consequences
Scope of section 9: Personal care & health care
Executing an RA (s 13):
o In writing, signed by adult & 2 witnesses (same stipulations as POA)
o Representative must sign – RA not effective until all RAs (if acting jointly) or at least 1 RA
(if acting independently) have signed
o For section 7 RAs – reps have to complete a certificate in the prescribed form
o When an RA is effective follows same rules as POA
S. 32(4) allows court to order an RA invalid solely based on improper execution
Who may be a representative (s 5):
o Cannot be someone paid to provide personal/health care unless child, spouse, or parent
o Credit union or trust company can be a rep only if the RA does not include
personal/health care
More than 1 RA (ss 5, 6) – same as POA
[19]
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Duties of rep – s. 16 – must follow wishes of the adult when possible
Rep can apply to PGT for guidance or court for interpretation of clause
Naming a monitor: mandatory if RA is a section 7 RA giving powers over routine financial
matters (some exceptions), otherwise optional
o Monitor needs to be 19+
o If monitor dies, becomes incapable, resigns, etc, then authority of the representative is
suspended until a new monitor is appointed (s. 21) or the court decides no monitor is
required
o Duties & powers of monitors – s. 20
Advance Directives
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Health Care (Consent) and Care Facility (Admission) Act, RSBC 1996, part 2.1 governs advance
directives
An advance directive is a written instruction given by a capable adult that complies with Part
2.1 and that gives or refuses consent to health care in the event the adult is not capable of
giving instructions at the relevant time
The directive must indicate that the adult knows that health care may not be provided where
the directive refuses consent, and that another person may not be chosen in respect of health
care for which the directive gives or refuses consent.
An instruction to do anything that is illegal, or to omit to do anything required by law, is invalid.
A directive must also deal with any other matter which may be prescribed by regulation.
Execution: signed with 2 witnesses by a capable adult, same stipulations as POA
When an advanced directive may be used (s. 19.7):
o In the opinion of the health care provider, the care is needed
o The adult is incapable of consenting to/refusing care
o The health care provider is aware of the directive & does not know of a personal
guardian or representative who has authority
 The health care provider only has to make reasonable efforts to determine if
there is a directive, guardian, or representative
When an advanced directive may not be used (s. 19.8) – health care provider must obtain
substitute consent for incapable adult:
o Directive doesn’t clearly address the health care in question
o The adult’s wishes, values or beliefs in relation to the health care have significantly
changed since the directive was made and the changes are not reflected in the directive
o Since the directive was made, there have been significant changes in medical practice
that might substantially benefit the adult, unless the directive expressly states it is to be
applied regardless of changes in medical practice
If an adult has a directive & an RA:
o Representative rules when matter is within the authority of the rep (but directive should
be treated as the wishes of the adult for purposes of s. 16) UNLESS RA states that
directive trumps rep
Patient’s Property Act
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Provides for the appointment by a court of what it refers to as a “committee” to act on behalf of
a person who falls under its definition of “patient”
[20]
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“Paragraph (a) patient” = person who has been declared to be incapable of managing his or her
affairs in a certificate signed by the director of a mental health facility or psychiatric unit under
the Mental Health Act.
o S. 11 indicates when a paragraph (a) patient ceases to be a patient – includes being
discharged from mental health facility, etc
“Paragraph (b) patient” = someone declared by a judge to be incapable of managing: his or her
affairs; himself or herself; or both his or her affairs and himself or herself. Section 2, 3 and 5 set
out the procedure to be followed on an application, or if ordered in a trial, to determine if a
person is incapable
o After 1 yr, can apply to court to be declared capable again. Can only apply once/yr
except with leave of the court (s. 4)
Scope of committee’s powers:
o Paragraph (a) patient: all rights & powers regarding estate that the patient would have,
if capable
o Paragraph (b) patient:
 Declared incapable of managing his or her affairs : all rights & powers regarding
estate that the patient would have, if capable
 Declared incapable of managing himself/herself: committee has custody of the
patient
Duty of committee (s. 18) – benefit patient & family
Reasonable compensation allowed unless it would place undue hardship on the patient (s. 14)
For 3rd parties, actions of the committee while acting under the PPA is the same as if the patient
had done it (s. 21)
If the PGT isn’t the committee, then a court, on application, may rescind an appointment while a
person is still a patient (s.6), or give a discharge to the committee of a person who has ceased to
be a patient (s. 12)
Paragraph (a) patient: every POA and every RA, so far as it relates to property, is suspended until
the PGT decides if it should or the original POA/RA should manage the patient’s property.
Paragraph (b) patient, every POA, and, unless the court orders otherwise, every RA made by the
patient, so far as it relates to property, is terminated
On death of the patient: committee retains powers of committee & personal rep until letters of
probate/letters of administration are issued
O’Hagan v O’Hagan (2000, BCCA) – ok for committee to take tax-planning steps
Committees don’t have to stick to “necessary” transactions as in the traditional sense. Committees have
power to do things for the benefit of the patient & his/her family – not simply to supply their needs.
Here, reorganized shares of company that the patient held so that at death, wouldn’t have such large
tax consequences.
BC (Public Trustee) v Bradley Estate (2000, BCCA) – not ok for committee to take tax planning steps
(when it diminishes the size of the estate)
Committee (husband) wanted to disburse funds prior to wife’s death for tax reasons. Court denied
application & distinguished from O’Hagan on the basis that the patient was younger (65 vs 89) &
condition could improve/deteriorate, and her money was being given away. Std of reasonably prudent
business person.
[21]
Disclaimer
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B is never forced to take a benefit
B can disclaim before taking the benefit but generally not after taking some of the benefit
Disclaimer can be used as a device to wind up a trust for tax & other reasons
Question is whether the disclaimer results in acceleration of remainder interests
Eg. A gives B a life interest. On B's death, property to be sold & divided equally among children.
If a child predeceases B, then their gift to their children.
o Last sentence is an "anti-lapse" provision
o What if the B decides to give up his life interest? - ie. a disclaimer
 Do the children take (acceleration), or do they have to wait until the B dies?
 Do you eliminate the contingent interest of the grandchildren by accelerating
the children's interest?
In the Estate of Brannan (1991, BCCA) – when might acceleration apply
F: Will gives income of residue to husband for his lifetime, in trust, capital to children on his death and
grandchildren would take if child predeceased the husband. If husband remarries, trust ends and capital
goes to children then living and grandchildren would take if child predeceased the remarriage. Husband
disclaims the life interest in the residue. At the time of disclaimer, all 3 sons alive, each of whom had
infant children.
Petitioners (sons) position: acceleration applies (sons take equally now)
PGT’s position: no acceleration to protect grandchildren’s interests (assets held until father's death or
remarriage before division amongst sons & grandchildren if any sons have deceased)
R: court decided acceleration applied – primarily because the remarriage clause indicated that if the
husband unilaterally ended his interest, acceleration applied. Also because when she made will, the
children were already adults, and she had seen 6 grandkids born while still alive, so she could have
expressly prevented acceleration if she wanted
De la Giraudias v Louis de la Giroday Trust (1998, BCSC) – what to consider re: acceleration
F: Income from trust to Ruth for her lifetime. On her death, trust property to settlor's children if aged 25
or over. If any child dies before reaching 25 leaving children, grandchild gets income from deceased
child's share. Ruth is 82 yrs of age and wants to disclaim
R: No acceleration - the settlor did not intend the trust to be prematurely terminated. Bs have to wait
until Ruth's death to determine the proper distribution
Intention found on:
 No encroachment on capital during term of trust and no unilateral ability by Ruth to terminate the
trust
 Recital language in trust expressed desire to benefit "wife, children, and others" suggesting
successive generations
 Large value of estate indicates dynastic concerns
 Trust included a rule against perpetuities which indicates an intention that grandchildren might get
a vested estate
Re the estate of Creighton (2006, BCSC) – factors to consider when deciding on acceleration
F: Residue in trust for benefit of son and daughter and grandchildren. On death of last surviving child,
residue divided equally amongst grandchildren then living. If any grandchild predeceased, greatgrandchildren would share equally the deceased grandchild's portion.
[22]
Son and daughter wished to disclaim in favour of their own children
R: Acceleration applies unless there is an intention to the contrary.
Factors to consider as to whether acceleration was intended
 Encroachment on capital permitted? If not, indicates an intention to preserve the capital & defer
ultimate distribution until death.
 Any reference to succeeding generations? If so, then indicates an intention to benefit those later
generations
 Trust value large? Dynastic concerns for remoter issue beyond providing for those immediate,
named Bs
 Is there a provision for premature vesting to protect against the rule against perpetuities?
Re Grund Estate (1998, BCSC) – how to use disclaimer to solve errors
F: House valued at 225k - left in mother's will to C & L but each to pay one half of value of house
(112.5k) to their other sibs, J & Li. Residue left to 4 children equally. Under these provisions, J & Li would
get 139.5k each while C & L would each only get 27k from the residue and a house that they have paid
fair market value for.
Disclaimer by C & L solves drafting error - ie give up the house which goes back into the residue.
Abatement
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S. 50 of WESA
When you don't have enough money to do what the will says
This shouldn't happen with proper drafting - ie should be using "residue"
Order of abatement sets out which Bs have to take the hit when there isn't enough to go around
Each level abates proportionally for each B
1. Property charged with a debt or left in trust to pay a debt (eg. my life insurance paid to the
executor to pay all my debts, the remainder to X - X gets nothing if there isn't enough money to
go around)
2. Property distributed on intestacy and residue
o Be careful when clients are naming x amounts to charities, people, and then the rest
with children. Residue abates before specific gifts so children will lose out
3. General, demonstrative and pecuniary gifts
o Eg. 25k to Darrell (general)
o Eg. 25k to Darrell from my BMO acct (demonstrative - specifically related to a source)
o Eg. 100 shares in Disney Inc to Darrell (general)
4. Specific gifts - sometimes using "my" indicates specific
o Eg. My car to Darrell (specific)
o The funds in my BMO acct #1234 (specific pecuniary legacy)
o My house located at … (specific devise)
o 10k from to each of my children to be paid for from the sale of my car but if proceeds
not sufficient, each child's share is equally reduced (specific legacy)
5. Power of appointment property
[23]
Aboriginal Estates
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Aboriginal estates are different than most succession cases.
It is a different regime, but it also comes up rarely. This is partly because until recently, most
aboriginal people died with very few assets.
The Regime:
o Government sets out who is status Indian under the Indian Act
o There is property in various reserves (Indian Act Deals With Property On Reserves),
which belongs to BANDS, not INDIVIDUALS → the right to live on a place is called
certificate of possession
o The legal regime for the estate field for aboriginal estates is made up of 8 sections in
the Indian Act (s. 42-50), plus 15 sections in one regulation → this replaces the entire
provincial legislative regime
 This arises partly out of patriarchal, paternalistic concerns
 Also arose because of the communal nature of aboriginal property
How does something fall into the Aboriginal estates system? Need:
o Is it a matter and cause testamentary?
 Does it have to do with distribution of property upon death?
 Did the obligation arise through testamentary intention? An obligation which
arose through an agreement which arose prior to death is not testamentary.
o Is that particular Indian ordinarily resident upon the reserve?
 Courts have tried to interpret this to give this as much leeway as possible. They
say it is a matter of intent, rather than a question of whether the person
actually resided on a reserve
Implications if the case falls into system - grant of probate
o Under the Indian Act, will goes to the Minister of Indian Affairs (the arbiter of everything
to do with aboriginal affairs) who decides: is this a valid will?
 Indian Act regs s. 15 - anything in writing, signed by an Indian - may be accepted
whether or not it is in accordance with Wills Act
o Consider whether you should go through BCSC or Minister of Indian Affairs - which way
will serve your client better?
 Probate fees through prov courts, none through Minister
 Minister just makes a determination - cheap, can be quite quick (if no one is
disputing)
 Sometimes may need to refer to court - ie in the case of disputes over the
validity of the will
 Write to the minister, ask them to kick it out to provincial superior court
- they will usually cede jurisdiction
 But what law applies? Indian Act? Provincial law? CL of Britain or prov?
o Is the Indian Act a complete code? (8 sections + 1 regulation)
did thegovt really intend to replace everything with that one
Act?
 Jurisprudence says - Yes
 BUT: s. 88 of the Indian Act says: Unless something is
contradictory in the Indian Act, then prov laws of
general application apply
[24]
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So what do you do? Depends on what you are looking at…
o Eg. Was the will properly executed? → Clear direct
contradiction - Indian Act says written, sig, intention is enough.
o Eg. Did the person have the capacity to make the will? →
Nothing in the Indian Act to contradict the law of general
application defining capability, so prov law/CL applies
Implications – variation: Wills Variation Act vs Indian Act
o WVA allows the court to look at any will to see if it is fair to the spouse or children - if
the court doesn't deem it to be fair, then the court has the power to vary the will to
something that is just/fair
 Only requirement is to be a spouse, biological child, or adopted child (no age
restrictions)
 No requirement of financial need
 Ie broad remedy for a narrow group of ppl
o Indian Act - s.46 (1) The Minister may declare the will of an Indian to be void in whole or
in part if he is satisfied that …
 (c) the terms of the will would impose hardship on persons for whom the
testator had a responsibility to provide;
 This could include a wide range of people - elderly parents? People living in
home?
 Narrower power of the minister - can only declare void - can't vary
 Ie. narrow remedy for a broad group of people (reverse of WVA)
o Can you use the WVA in an Indian estate? Is there a direct contradiction? No one knows
yet - no court decision yet. But most people think that WVA can apply—based on the
wording of the legislation
Indian Act was created to protect land on reserve
o Some indians have opted out of the Indian Act and have benefits of fee simple
 e.g. mortgage their properties but then this brings issues of whether they can
leave their property to non-band member—this depends on the band and the
treaties –some treaties are silent on this issue—so you have to look at each
individual treaty to determine which laws apply
o E.g. Nis’ga treaty: There is an exemption for a cultural artifact –it belongs to the band
Summary if it is a treaty regime:
o Member of the band?
o Look at the treaty for interpretation
o If the treaty doesn’t apply then you can backdoor and see if WESA/WVA applies?
Summary for Indian regime:
o Testamentary?
o Ordinary resident?
o Which laws apply
Under the new provisions of WESA, there are exceptions dealing with treaty rights (ss 11-18
deals with land, wills & cultural property of Nisga’a citizens).
Provonost v Canada (Minister of Indian Affairs) (1985, FCA) – Aboriginal will
F: Testator, an aboriginal man, legally possessed lot 371 of the Caughnawaga Reserve. In his will, left
property to 2 daughters in equal shares, but wife has right of occupancy while she lives. Minister finds
the bequest to daughters void because it is contrary to the interest of the Band and contrary to the
Indian Act (essentially giving the wife the entire interest in the property).
[25]
R: Minister’s finding overturned. Some notes:
 The right that an aboriginal person may hold over land located on a reserve is difficult to define. It is
a right of “possession” and may be transferred inter vivos or mortis causa (but any tsf must be
approved by the Minister first). It is not a life estate (as the Minister suggested here).
 The Minister’s role in “legitimizing” possession is administrative and not quasi-judicial. “..the power
conferred on the Minister to agree or refuse to “legitimize possession” or “confirm a transfer” is of a
very different order from his power to reject or approve as a will a written document signed by an
Indian (section 45) or his power to invalidate for certain specific causes a testamentary disposition
included in the will of an Indian (section 46). “
Revocation
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WESA: s. 55 - how to revoke all or part of a will
o Another will is made by the testator (most common) (also need intention but doesn't
talk about it in the statutory provision because it’s a CL rule)
o Written declaration revoking previous wills - ie choosing intestacy rules (rare)
o Burning, tearing, destroying all or part of the will with the intention of revoking it
o Some other act by the will maker or rep, intending to revoke (ch 9 p 2)
o Can't presume a revocation - relates to an old CL rule - don't worry about this
General power of appt - unrestricted right to give away property, even to self
Specific power of appt - can give to a certain group of ppl, excluding self
Re Lawer (1986, Sask ct) – Subsequent instrument & intention
F: Issue was whether the standard revocation clause in a 2nd will validly revoke the earlier will.
1st will dealt with certain mineral rights - holograph will
2nd will dealt with others, and didn't have a residue clause, written by lay person
R: Court concluded there was no intention to revoke the first will when testator made the second will also both can be read together. Surrounding circumstances can be considered, but not evidence of
direct stmts by the deceased.
Note: McCarthy v Fawcett (1944, BCSC) sets out some principles re subsequent revocation clauses
(1) That a revocatory clause in a will may under particular circumstances be held not to be the intention
of the testator and therefore ignored or eliminated in the granting of probate of the testamentary
documents;
(2) That a man making a testamentary document and those who take after him are found by his
expressed intention and not by what he actually intends;
(3) That a mere mistake on the part of a testator in inserting a revocatory clause in a testamentary
document is not sufficient in itself in the granting of probate to ignore or eliminate such revocatory
clause;
(4) That where a testamentary document on its face is complete and contains a revocatory clause there
is a heavy burden cast upon a plaintiff who comes into Court to say that the revocatory clause was not
intended to be operative, and the submission of the plaintiff in such connection will only be given effect
to on the most cogent evidence in support;
(5) That if evidence is admissible as to the circumstances under which the testamentary document
containing the revocatory clause was made, such evidence must relate to or about the time such
document was executed.
[26]
Re Norris (1946, BCSC) – destruction of the will might not be enough to revoke – still need intention
F: Will was found cut up in a number of pieces. Testator was a lawyer - had made a will, then moved to
Canada - lived with a woman who he referred to as his wife - but he actually had a wife and kids in
England. Left nothing to his real wife and kids
R: Who did the cutting? Was it done with the intention to revoke? Testator had suffered from some
delusions in his later years. Court found that it could have been cut up by the testator, but not done with
the intention to revoke. So will still valid. (back story: Cdn wife probably cut up will thinking it would
help her cause)
Re Adams (1992, Eng) - destruction by blacking out signatures on the will
F: Client asked lawyer to destroy the will - but lawyer sent to her to destroy. The testator uses a pen to
black out the “Last will and testament ..” & other parts & the signatures of the witnesses & testator.
R: This was a form of destruction.
Lost Wills
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A will maker executes only one copy (any more and the prev ones are revoked!) – no backups.
If the will is lost, then there is a presumption that they have revoked it (ie destroyed it)
Can override the presumption - in one case, had a copy of the will, needed to get affadavits to
show that the presumption should not apply
Re Perry, [1925] (Ont. C.A.): the Court refused to admit a lost will to probate when only the
name of the residuary legatee was known
Re Broome (1969) (Man. C.A.): the majority of the court held that if a testator becomes
incapable after making a will, and if at the date of death the will cannot be found or is in a
mutilated state, the burden of showing it was destroyed or mutilated with an intention of
revoking it lies on the party alleging revocation.
Sugden v Lord St Leonards (1876, Eng) – presumption of revocation for a lost will is rebuttable
F: Testator was actually a prominent wills & estates lawyer! Will was lost - but court found that it was
impossible that it was revoked - there were 8 codicils! Sugden wouldn't have died intestate. Daughter
could recount almost all of the provisions of the will.
R: Court won't allow a missing portion of the will to override testator intentions
Lefebvre v Major (1930, SCC) – lost will, possibly burned with the body
F: Testator died -wasn't found for some days. Cremated asap + other things in bedroom burned. Possibly
burned the will along with the body? Had confirmed gifts just a few weeks prior to 2 friends. Testator
took good care of his will & saw it as a very important & serious instrument.
R: Intention of revocation rebutted.
Marriage/Divorce
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Pre-WESA: automatic revocation happens when you get married (even when they have been
together for 10 yrs common law and have made a will together)
o s. 15 of Wills Act
o Unless will contained a declaration that it was made in contemplation of marriage
Post-WESA: eliminates this in BC
[27]
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S. 56 of WESA: certain gifts (those to a former spouse) deemed revoked even though the rest of
the will stays valid
Dependant Relative Revocation (aka Conditional Revocation)

A condition is attached to the revocation – ie if the condition is not fulfilled, then no revocation
Re Jones Decd (1976, Eng) – what to ask when faced with destroyed will; conditional revocations
F: Testatrix had a short will. Gave X to 2 nieces. Spoke to bank manager & solicitor intending to make a
new will giving X to a nephew. She before being able to make a new will. The will was found in her
possession, cut into 2. Did she intend revocation only if a new will was made?
R: Questions to ask when faced with a destroyed will:
1.) did the testator do so with the intention to revoke it?
2.) If yes, then were there qualifications attached to the revocation (ie was it conditional on something
else? Eg. the making of a new will)
3.) If yes, then have those conditions been satisfied?
Here, court found that testatrix had intended to revoke will regardless of whether new will was made.
Re Sorenson (1981, BCSC) – mistaken fact can invalidate revocation if court decides revocation was
conditional on that mistaken fact.
F: Testatrix had left gifts to 2 sisters-in-law. Thinking they were both dead, made a codicil that left the
gift to a friend. It turns out one sister-in-law is still living. Was the codicil (& revocation of the paragraph
giving the gift to sisters-in-law) based on a condition that the sister-in-law was dead?
R: Yes - If a person revokes based on a mistaken fact/law, and the court decides that the revocation was
conditional upon that mistaken assumption being true, then the revocation is invalid.
Joint and Mutual Wills
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Joint will: One doc that contains testamentary wishes of 2 people, stands as their will (Gillespie)
May be easier to establish a K btwn the 2 parties to a joint will
Mutual will: 2 parties have expressly provided that they will not change their will (Sanderson)
o Does this meant there is K btwn the 2 parties?
o An sort of agreement as to what they can or can't do with respect to terms in their wills
Important because everyone has a right to revoke their will - testamentary freedom - but with a
K, this right/freedom is limited
Corresponding wills: not really legally significant, but this means that there are 2 wills with
parallel/reciprocal/mirror image terms
Usually, will btwn couples will leave everything to each other with a 2ndary disposition to their
children. Sometimes where there aren't children, to other relatives/charity
Generally the couple has agreed to the disposition of both their estates
But sometimes life is more complicated than ppl imagine - one might die early and the other
may remarry, have more children, have step children, etc etc
Some solutions?
o Inter vivos tsf of property to the children (for older couples)
o Trusts for the children
o Do nothing.. Trust the surviving spouse to do the right thing
o An agreement btwn the 2 parties
o Create a spouse trust in the will
[28]
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K btwn the parties can be found with or without a written agreement, but you do need an
agreement (of course, best to do a written K)
If you don't want a K btwn the 2 parties, put a clause in the will that there is no mutual will - esp
if there are mirror image provisions to avoid any argument that there was a mutual will
Sanderson highlights some ambiguities with mutual wills
o What are the terms by which the surviving spouse holds the property? - held in a life
estate - can't dispose of the property - need to address this in the will
o What property does the K apply to? All property at the death of the first spouse? All
property acquired by the surviving spouse?
o Unforeseen circumstances - needs of the surviving spouse change? Something happens
to the property? What if one person loses capacity? Can anyone agree on their behalf to
change the terms of the mutual will?
Courts don’t have a solid grasp either - there was a mutual will but the surviving spouse was
given the property absolutely for their own use - ONCA said this is inconsistent so can't have this
- but AUS HC says not inconsistent
Need to determine - is there an agreement? What is the agreement?
The alternative to a mutual will: spouse trust - similar to a life estate but not exactly
o Each spouse leaves the property to other spouse in a trust
o Will contains terms of trust
o Tax implications: no deemed disposition (no tax on gains) if property passes to spouse
AND the income is payable to the spouse AND spouse is the only one who has access to
capital - deemed disposition happens when the spouse dies
o Then the property is there for the benefit of the spouse – and then the will can say when my spouse dies, this happens
o Note: If the surviving spouse is the sole trustee, then the spouse can wind up the trust so don't do that
o The hallmark of the trust is the discretion of the trustee to do the right thing - then all
the problems of unforeseen events disappear - instead of long list of possibilities, can
just trust the judgment of the trustee
University of Manitoba v Sanderson Estate (1998, BCCA) – how BCCA dealt with a mutual will
Sanderson - a couple does a detailed agreement re: what they can do with their wills & property. The
agreement was updated when they did codicils, etc. Agreement was to give everything left to the U of
M. Mrs. Sanderson dies. Then Mr. Sanderson wants to change his mind - changes his will – U of M sues
the estate.
Key issue - Mr. Sanderson didn't actually receive any property from Mrs. Sanderson's will - he didn't
receive any benefit from it - because he got the property by way of joint tenancy (ROS).
R: Court said receipt of benefit under the will is not required for the court to enforce the terms of the K
How does the court enforce this? Imposes a constructive trust - compels the survivor to hold it for the B.
Revival
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S. 57 of WESA deals with revivals – where a previously revoked will is brought back to life by a
subsequent will or codicil.
Can be whole or part of a previous will
S. 99 deals with effect of reviving a will
[29]
Re McKay (1953, BCSC) – revival requires intention
F: Testatrix made a will in 1946 (husband still alive). Made a 2nd will in 1951 (husband now dead),
revoking 1946 will. Then, son prepares a codicil (changing executors) in 1952 which refers to 1946 will
and confirms it. Did the codicil revive the 1946 will? Does the codicil stand?
R: No revival – need clear intentions, and this was probably just a mistake (testatrix likely overlooked the
date). But codicil is otherwise still valid – court will just omit reference to 1946 will.
Republication, Lapse & Ademption

These have to do with events that happen between drafting of the will & the testator’s death
Republication
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Making a codicil republishes your will to the date of the codicil (note that nowadays, shouldn’t
be making codicils anyways)
o This matters if "wife" and "children" change - these terms are interpreted in light of the
date of the will
Pre-WESA: s. 20(1) of Wills Act
Post-WESA: s.57(3)
Re Hardyman (1925, Eng) – republication by codicil is used to effectuate a testator’s intentions.
F: Testatrix makes will, creates trust in favour of her cousin, “his children and his wife”. At that time, the
cousin had a wife but no children. Wife dies. Testatrix knows this. 11 months after her death, testatrix
makes a codicil – no reference to cousin/wife etc. Testatrix dies. Cousin remarries afterwards. Does the
2nd wife take an interest in the trust?
R: Codicil republishes will. But can’t apply this in a rigid manner – use it as a “flexible instrument for
effectuating a testator’s intentions”. Ie don’t allow the republication to frustrate the testator’s
intentions. Here, republished at date of codicil. 2nd wife takes.
Re Reeves (1928, Eng) – “present lease” in original will – republished in codicil → new lease
F: The testator executed a will giving daughter an interest in the "present lease" of a property. 1923 new lease entered into. 1926 - codicil some changes, but in all other respects, will is confirmed.
R: Court found republication – “present lease” = new lease of 1923
Re Heath’s Will’s Trusts (1949, Eng) - If a gift is valid at the time the will is made, then mere
republication cannot invalidate it
F: Testator puts restraint on gift to daughter in will of 1932. Law Reform Act comes into effect in 1935.
The Act doesn’t allow for such restraints but if will is executed prior to Act then it is ok. Testator makes 4
codicils, 3 of which are after 1935. Daughter seeks to have restraint declared void.
R: If a gift is valid at the time the will is made, then mere republication cannot invalidate it. Also can’t
use republication to defeat the intentions of the testator. Original gift to daughter holds.
Re Estate of Ruth Smith: Smith v Rotstein (2010, ONSC) – republication while lacking capacity doesn’t
invalidate will
F: Testator makes will. Makes a 3rd & 4th codicil while incapacitated - is the original will still valid?
[30]
R: Yes - whatever you made while capable is valid even though technically, the will was republished
during incapacity. So, original will & first 2 codicils were admitted into probate.
Lapse
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What happens if a B dies before the testator dies? The gift to the B lapses (ie fails)
Pre-WESA
o Common law: Class gifts – if testator intended joint tenancy (RoS) btwn Bs, then would
be split btwn surviving Bs; if testator intended common tenancy btwn Bs (Right of
representation), then gift would go to the dead B’s issue. If the gift didn’t go to a class of
Bs, then the gift lapsed - distributed as if testator had died intestate.
o Statute: lapsed gifts (specific devises/bequests, not residual gifts, according to Re
Stuart) go to the residue unless the gift is to your issue or sibling, leaving a spouse or
issue – then the gift does not lapse and goes to the estate of the B
 s. 21 & 29 of Wills Act
Post-WESA: a gift to a predeceased B goes to alternate Bs specified, or if none, goes to residue.
Unless the B is a descendant or sibling – then the gift goes to their descendants.
o s. 44 - stuff that isn’t disposed of in a will falls to intestacy rules; & s. 46 – when do gifts
fail
Note on class gifts: a class is a gift to some group of ppl with common characteristics
o Class gifts are an exception to the lapse rule: If B gets a gift under a class gift, then the
gift doesn't lapse - it goes to the other people in the class
o There are class closing rules to limit the size of the class
o See Milthorp v Milthorp & Re Hutton in Capacity chapter.
Re Stuart Estate (1964, BCSC) - gift goes to intestacy if residual gift to one B fails (PRE WESA)
F: residue to be equally divided among 13 people. One predeceased the testator. What happens to her
share?
R: Wills Act s. 21 only applies to specific devises/bequests, not residual ones. Thus, the share goes to
intestacy.
Re Mackie (1986, Ont HC) – doctrine of lapse does not apply if the disposition is made according to a
moral obligation
Moral obligation = owing a debt. Court warned against allowing moral obligation to swallow up the
doctrine of lapse since anything can be framed as a moral oblig.
Re Wudel (1982, Alta QB) – when a court might find contrary intentions
F: Testatrix had 8 children. 1 daughter Marion died, leaving 4 children. Testatrix made a will 17 yrs after
Marion died. Specified that the residue was to be divided: 8% split btwn grandchildren, 28% btwn sons,
64% btwn daughters. Will also specified that should a child die btwn date of will and her death, then
their share goes to their issue. If no issue, then split btwn remaining children.
R: Wills Act says – subject to contrary intention, if you have a gift to a predeceased B & B is issue of the
testator, then the gift passes to B and is divided according to intestacy rules. Here, court found contrary
intention because the testatrix already left some portion equally to all grandchildren. Also, specifying
what happens should a B predecease her is an act ousting the Wills Act provision.
Note: “armchair principle” requires the court, in construing a will, to read the will with the same
knowledge of the surrounding facts and circumstances known to the testatrix at the time she
executed her will.
[31]
Re the Estate of Stella West (1999, Van Reg)- per capita = contrary intention to create joint tenancy
F: Testatrix had 2 kids D & K. D predeceased the testatrix. 3 living grandchildren – 2 are D’s and 1 is K’s.
Testatrix leaves gift to grandchildren. Leaves residue to D & K in equal shares per capita for their sole
use and benefit absolutely. What happens to D’s share?
R: According to Wills Act, unless contrary intention is shown, then D’s share goes to D’s children. The
words per capita show contrary intention to create joint tenancy. (might be stretching it a little here..)
Re Davison (1979, NSTD) – anti-lapse provisions in a will
F: Testator left residue to be divided “among my children”. If a child dies, then it goes to their issue by
right of representation (ie common tenancy - the grandkids stand in the shoes of the kids). Testator had
14 children, but 4 already predeceased when will was made. 2 had issue. Do those issue get something?
R: What does “my children” mean? Does it mean living children at the time the will was made or all
children? Need to define the class. General rule is that the B must survive testator to receive gift – but
the specification re: child predeceasing rebuts that general rule.
Some authority for limiting class to those members alive at time of will, but other interpretations have
been followed more consistently. Court found predeceased children to be included in “my children”
Re Cousen’s Will Trusts (1937, Eng) – what happens when anti-lapse provision gives gift to someone
else who has also predeceased the testator
F: Testator gives part of the residue to Mrs. Alcock - if she predeceased the testator, then it “shall be
held in trust for … her personal representatives as part of her personal estate”. Mr. Alcock was the
executor and the B of Mrs. Alcock's estate. But Mr. Alcock also predeceased the testator. Does the
daughter of the Alcocks take the gift? Or does the gift lapse?
R: General rule is that a legatee must survive the testator to receive the gift. Here, the gift went to Mrs.
Alcock, who predeceased the testator, but the testator specified an anti-lapse provision in giving the gift
then to her personal rep. But that was Mr. Alcock who also pre-deceased the testator. Without contrary
intention, go back to the general rule – Mr. A predeceased the testator so the gift lapses.
Re Greenwood (1912, Eng) – language used to avoid a lapse
F: testator leaves estate to 4 people. Provides for what should happen should they die without issue.
Also provides for what should happen should they die with issue – the gift “shall not lapse but shall take
effect as if his or her death had happened immediately after mine”
R: A testator can’t exclude the application of lapse (can’t avoid it) but can avoid the consequences of
lapse. The language used here is ok – it is a valid substitutionary gift.
Ademption
 Giving away property (while still alive) that is supposed to be given to someone else per the will
 Simplest solution: no gift
o Unless item clearly never existed, then executor may have to use estate proceeds to go
buy it
Church v Hill (1923, SCC) – ademption is strictly applied
F: Testator leaves youngest daughter a lot in Edmonton, balance divided equally among the other
children - will maker was trying to treat everyone fairly. But then he sells the property - agreement for
pmt in place – full purchase price not paid yet. And testator dies.
[32]
R: the purchaser of the property holds the equitable interest – as long as he keeps making payments,
the vendor has no right against him. Payment money goes to estate. Daughter gets nothing.
Trebett v Arlotti-Wood (2004, BCCA) – Ademption of specific/general legacies
F: Testator gives B “any” cash/stocks/bonds in RBC acct. 6 wks later, tsfs this acct into another acct. Gift
adeemed?
R: Court discusses specific vs general legacies
 Specific – identifiable, in existence, distinguishable within the testator’s estate – in real estate, gift of
property is specific (eg. I give my silver teaspoons to X; I give my gold rolex to Y)
 General – may or may not be part of the testator’s property – not any particular thing, but to be
provided out of the testator’s general estate (eg. I give $100 to X; I give a gold rolex to Y)
 Demonstrative/pecuniary – subset of general gifts – a general legacy that is directed to be satisfied
primarily (but not solely) out of a specified fund or specified part of the testator’s property (eg. I give
$500k to X to be raised by the sale of my business) – this kind of gift is not adeemed if the specific
property is no longer in existence.
 A specific gift is adeemed if it “ceases to exist as part of the testator’s property in his lifetime or has
ceased to conform to the description in the will. However, ademption does not occur if the thing has
changed in “name or form only” such that it is substantially the same thing. (Q of fact – often
happens when the change occurs without the testator knowing) If that is so, then the doctrine of
tracing can be used to ascertain the gift.
Here, “any” cash/stocks/bonds is not a demonstrative gift – it is a specific gift.
The cash ceased to conform to the description in the will. The cash in the new account was co-mingled
with the testator’s daily funds. The gift of cash has substantially changed and cannot be traced.
The court however did not hold that the stocks/bonds had been adeemed because there was a lack of
evidence on whether there were specific stocks/bonds transferred directly over and kept separately.
Notes: Doctrine of ademption applies irrespective of testator intentions.
Tracing - a remedy which allows you to follow the funds of the gift and still get the gift – the funds must
have only been co-mingled with the general estate momentarily or below de minimis.
Re Sweeting (1988, Eng) – when real property is adeemed & becomes personal property.
F: Testator left part of property A to daughter & the remainder of A to sons for carrying on business. He
also owned adjoining property B (where his house was). Entered into contract of sale for the properties.
Before the completion date, the testator died. Was the property adeemed?
The sale of A was conditional upon the completion of B’s sale & vice versa. Also the K for sale of B
included a clause where the sale was conditional upon the testator’s wife agreeing to be sold of all legal
& equitable rights.
R: If the sale had been completed, the property would be clearly adeemed. Here, even though there was
a clause with conditions that hadn’t technically been fulfilled, the sale still went ahead (conditions were
waived/already fulfilled).
Applying rule in Lawes v Bennett to conditional Ks: (1) if a person grants an option over a parcel of land;
(2) he later makes a general bequest of his land; (3) the testator dies; and (4) the option is exercised,
then (5) the proceeds of the sale of the land pass to those entitled to the testator’s personal estate.
Note: rule still applies if option is granted after the will is made (Weeding v Weeding).
Even if conditions meant that the real property hadn’t been converted into personal property at the
creation of the K, the K was still completed and Lawes v Bennett applies to say that the gift is adeemed.
[33]
Re Dearden Estate (1987, Man QB) - a K for sale and purchase which is not enforceable, either by or
against the testator, does not effect an ademption.
F: testator left business, land, & equipment to nephew in will. Entered K for sale of these things to
someone else – long list of conditions. Testator died before completion. The purchaser told executors
that they had repudiated the K and he accepted their repudiation. Had the gift been adeemed?
R: Lawes v Bennett (see above) says that real property is converted to personal property if someone
exercises an option to purchase the property. The conversion happens when the option is exercised, not
when the option is given by the testator. Likewise for a K, the property is only converted if the
testator/executors are capable of enforcing the K.
Here, neither the purchaser nor the vendor could enforce the agreement because it depended upon a
true condition precedent (govt approving rezoning). The applicable principle is that a contract for sale
and purchase which is not enforceable, either by or against the testator, does not effect an ademption.
Therefore, the gift is not adeemed.
Re Pyle (1895, Eng) – republication can affect ademption under rule in Lawes v Bennett
F: Testator left property to sons. Later, he made a codicil expressly confirming his will. On that same day,
he granted a lease to the property with an option to purchase. Testator died. The lessee exercised the
option. Was the gift adeemed?
R: Rule in Lawes v Bennett still subject to intention of the testator – he/she may say that the property,
whether in specie or having been converted under an option to purchase, should nevertheless go to the
B. Here, the intention is clear that the testator intended Bs to get benefit of the lease because of the
timing of the lease and codicil – the testator should have been thinking about it.
To rule out Lawes v Bennett, need: specific devise in the will, optional nature of the contract, and
republication of the will by the codicil.
Rectification
Function
What you are allowed to do
Evidence permitted


Court of Probate
Validate the will
Can delete words
Direct ev of intention admissible
(eg. copies of earlier wills, drafts,
codicils, solicitor’s notes, X said..)
Court of Construction
Interpret the will
Can add words
Indirect evidence of surrounding
circumstances known to the
testator
Pre-WESA:
o Court of probate & Court of construction distinction – can only delete words at Court of
Probate (Verity)
o In determining knowledge and approval (probate validity) all relevant evidence
admissible, including direct evidence of testator’s intention (Verity)
o Presumption that testator knew and approved words in will if will-maker read will or it
was read to her/him, but can rebut the presumption (Verity)
o If solicitor misunderstood instructions or used wrong words to carry out instructions,
court would not delete the words used (Mortimer)
WESA eliminates the distinction btwn court of probate/court of construction (ie whether you
are trying to fix something at the probate stage or at the point of clarifying something, same
evidence is allowed)
[34]

Rectification provision - s. 59 - can fix accidental errors, misunderstandings, or a failure to carry
out the will maker's instructions
Re Morris (1971, Eng) – Court of probate & court of construction working together to fix error
F: Testatrix gave gifts to Ms. Hurdell in clauses 3 & 7(iv). Then wanted to revoke gifts to Ms. Hurdell.
Lawyer wrote codicil revoking "clause 3 & 7" (all of it!).
R: Court found that the testatrix glanced over the will before signing it – but did not read it. Thus, no
knowledge & approval of revocation of all of clause 7.
Court's CL remedy at probate: delete the 7 - "I revoke clauses 3 and __ of my said will". Court's CL
remedy at construction: read in 7(iv) to replace the missing number in the codicil.
Clarke v Brothwood (2006, Eng) – example of rectification of a ‘clerical error’
F: Will said: 1/10 to charity A, 1/10 to charity B, 1/20 each of 4 godsons. This leaves 60% to intestacy!
Solicitor says it is possible that she meant: 1/10 to charity A, 1/10 to charity B, 20% each of 4 godsons,
leaving nothing for intestacy.
R: Intentions appear to be that she wanted to leave 20% to each of 4 godsons. She did not want to leave
anything to intestacy.
Re Verity (2012, BCSC)- at probate – can only delete words but direct ev of intention admissible
F: Testatrix left estate to nieces and nephews. Will said to divide residue into 2 shares:
 Half of residue would go to 10 nieces & nephews (named)
 Other half went to 4 children of a predeceased 11th niece
Earlier will gave 11 shares with 4 children of predeceased niece sharing the one share of their
predeceased mother + a notation by the solicitor to do a new will using the old one as precedent.
Solicitor for the testatrix had died
R: Court fixed the will at probate stage- creatively crossing out certain words to arrive at the result. Had
to be able to apply in the probate stage to get intentions evidence in - otherwise no other way to prove.
Rondel v Robinson (2011, ONCA) – evidence of intention inadmissible at construction stage
F: Testatrix had a will made in Spain – disposed of lots of assets (bf got life estate in London flat) &
referenced a Cdn will. In the Cdn will - she disposes of all of her property. But a sister doesn’t get
anything – she was provided for in the Spanish will. The Cdn will is very standard - eg. clause 1 - I revoke
all previous wills made by me. Does this include the Spanish will? Clearly she didn’t intend to revoke the
Spanish will. Executors apply at construction stage to delete the revocation clause.
R: Intention can only be determined from the words used in the will at the construction stage. Court
found evidence of testatrix’s intention inadmissible and therefore rectification was denied.
But! Since UK wouldn't take the Cdn will without it being rectified, life estate probably still went to bf via
spanish will.
Balaz v Balaz (2009, ONSC) – ONSC pre-empts WESA. Dispenses with differentiation btwn court of
probate & court of construction
F: Testatrix instructed that a spousal trust to be created to allow for tax deferral. Solicitor inadvertently
included trustee power provisions that would “taint” the spousal trust and eliminate tax advantage.
Husband attempted to have the will rectified by having the offending clauses deleted.
R: Current court sits only as single court, not one of probate or construction, in the exercise of its broad
civil jurisdiction. In determining knowledge and approval of testatrix, evidence of circumstances
[35]
surrounding the making of the will, earlier wills or drafts of the subject will as well as direct evidence of
testatrix's intentions is admissible.
Guardian Trust and Executors Company of New Zealand v. Inwood, (1946, NZ) - Pre WESA - signing
another’s will by accident
F: Sisters, Jane & Maude Remington have mirror wills. They sign each other’s will by mistake. Jane dies.
R: The court admitted to probate the document Jane had signed. Deleted the word “Jane” from
bequest, leaving will to say “life estate to my sister .. Remington”.
Re Brander Estate (1952, BCSC) – Pre WESA - signing another’s will by accident
F: John and Margaret (spouses) have mirror wills. They sign each other’s will by mistake. John dies.
R: Court purports to follow Guardian Trust – admits to probate the will that John has signed. But instead
of simply deleting the word “John”, court adds “Margaret” to the will.
Re McDermid Estate (1994, Sask QB) – Post WESA – signing another’s will by accident
F: Spouses executed each other’s “homemade” wills by mistake.
R: Saskatchewan court decided to attach the signature page of the erroneous will signed by the testator
to the correct will that the testator did not sign and admit these papers into probate as the proved will.
Estate of Daly (2012, NZ SC) – Post WESA – signing another’s will by accident
Provisions in New Zealand are similar to WESA, ss.58 and 59
F: spouses signed each other’s wills which were mirrors of each other
R: Court decided to admit to probate the document testatrix intended to be her will, even though
unsigned, rather than rectify the content of the erroneous will she actually signed.
Construction



Construction at common law is the exercise, after a will has been admitted to probate, of
interpreting a will for ambiguity
Pre WESA: Rule of the court of construction is that direct evidence of the testator’s intention is
not admissible in construing the meaning of the will (except in limited exceptions where the
ambiguity relates to the identity of the Bs or the identification of the property being gifted)
Post WESA: s. 4 - extrinsic evidence of intention not admissible UNLESS
o Provision is otherwise meaningless
o Provision is ambiguous on its face or in light of other evidence having regard to
surrounding circumstances
o Expressly permitted by WESA (s. 59)
Perrin v Morgan (1943, Eng) – interpretation & example of evidence of surrounding circumstances
F: “homemade” will provided that “all of my monies…shall be shared by my nephew and nieces” as a
specific bequest. No residue clause in will. At death, testator had little “cash” but considerable stocks
and bonds. Issue was whether “monies” included the investments in stocks and bonds.
R: Court held that monies included investments.
[36]
“Fundamental rule in construing the language of a will ... The question is not, of course, what the
testator meant to do when he made his will, but what the written words he uses mean in the particular
case—what are the “expressed intentions” of the testator.” – don’t use “strict legal meanings”
Surrounding circumstances used in constructing meaning of “monies”:
 investments formed large part of assets, not cash
 high number (14) of nephews and nieces
 small legacy if divided cash only
 no residue clause
 testatrix wrote will herself
Haidl v Sacher (1980, Sask CA) – when using “ordinary meaning” rule of construction, look at ordinary
meaning in light of surrounding circumstances & entire will
F: Will says – “give to the following people in equal shares: [then lists 7 ppl], the children of Herbert
living at my death”. There are 4 children of Herbert. Do the children get 1/11th each – per capita? Or, do
they share 1/8th (ie get 1/32nd each) – per stirpes?
R: When applying the “ordinary meaning” rule of construction, do you look at the ordinary meaning in
light of surrounding circumstances? Or do you only look to surrounding circumstances if the ordinary
meaning produces ambiguity? The first approach is correct (also interpret in light of the rest of the will).
Surrounding circumstances means indirect extrinsic evidence but not direct evidence (such as testator’s
instruction to solicitor). Indirect evidence includes character and occupation of testator, amount, extent,
and condition of assets; number, identity and general relationship of family to the testator; testator’s
friends and other natural objects of testator’s bounty
Court held per stirpes interpretation was correct.
Laws v Rabbitt (2006, BCSC) – armchair approach
Only proceed with construction if intention cannot be determined from the plain meaning of the words
Apply armchair approach - look back to the circumstances that existed and what could have reasonably
be expected to influence the will maker (approach taken in Haidl)
Wilson v Shankoff (2007, BCSC) – application of Haidl v Sacher
Applied the Haidl v. Sacher approach of admitting evidence of the surrounding circumstances at the
outset of the construction application and construe will in the context of those surrounding
circumstances.
Estate of Murray (2007, BCSC) – using surrounding circumstances to correct error
F: Direct ev of the testator's intention was disallowed - ie solicitor's affidavit setting out instructions he
had received from the client - clear drafting error
Will only disposed of 90 % of residue – should the remaining 10% go to intestacy or the Salvation army?
R: Court found surrounding circumstances indicated that remaining 10% was to go to the salvation army
Re Davidson (1979, OnHC) – CL principle of falsa demonstration – ambiguous description of property
Principle at CL of falsa demonstratio: can allow direct ev of intention if there is an ambiguity in
identifying the property to be gifted. Testator owned 2 lots, giving one to each daughter, but couldn't
tell which lot was to who. Court permitted direct evidence of intention.
Re McEwen Estate (1967, BCCA) – court can’t fix errors by speculation
[37]
F: Will directed residue to be invested to :
 Pay monthly sum to wife during her lifetime
 Pay monthly sum to adopted daughter during her lifetime
 If adopted daughter dies leaving issue, then on death of wife, to divide residue amongst adopted
daughter's issue
 If adopted daughter dies leaving no issue, then on death of wife, to divide residue among charities
Issue: what happens to residue if adopted daughter survives the wife?? Didn't address this situation
A missing clause - would have to add in a scenario.. or let it go to intestacy. On intestacy, the residue
would still go to the daughter. So actually, doesn’t make a difference.
R: Presumption against intestacy doesn’t even apply here – it can’t prompt the court to speculate. If the
court is being asked to fix an error, then the court must be able to say what the error was.
Would the court have come to the same result if the daughter was a stepdaughter who would not take
on intestacy?
Property


WESA: s. 41 (Property that can be gifted by a will), 44 (Residue of estate), 45 (Gift of land
contemplating division), 47 (Property encumbered by security interest)
When clients tell you they want to give gifts specifically - be aware of these issues:
o They might not own the property when they die
o For real property - check the LTO to make sure there isn't something else on title
o People also acquire new property
Re Meier (2004, ABQB) – Can’t gift what you don’t own
F: Testator gave brother his farmland that was in fact owned by a company of which the testator was
the sole shareholder & director
R: Court held gift adeemed as the testator could not gift what he did not own
Ireland v Retallack (2011, NZ SC) – Compare to Re Meier
F: Testator owned 989/990 shares of company. His daughter owned the other share. The company
owned, inter alia, a piece of land (Glengowan). In his will, the testator left Glengowan to his daughter.
R: Court held the gift was valid as executors controlled company and could convey the property to the
daughter
People



WESA - s. 42(2) defines heir & next of kin as ppl who would take on intestacy
Use of descriptor words for beneficiaries
o Child
 Law & equity act s. 61
 Includes natural children
 Includes adopted but not step children
o Nephew/nieces includes the children of the testator's siblings and the children of the
testator's spouse's siblings (Estate of Holmes (2007, BCSC))
In Lang Estate, (2011 BCSC), Brown J. noted that there was a CL presumption that in the case of
a gift to the descendants of a person (e.g. children, grandchildren), descendants encompassed
only lawful descendants. (Today children born outside marriage and adopted children would be
included in the presumption.)
[38]
o


Such a gift does not include “step-descendants” (e.g. step-children, step-grandchildren),
unless the will shows an intent that they were to take.
If something is given to “issue per stirpes,” then if a person in one generation predeceases the
testator, members of the next generation take their deceased parent's share by representation.
o Because “per stirpes” means per line or split up btwn families of Bs, it doesn’t make
sense to say “to my children, per stirpes”. Each child is not a family of Bs. If only one
generation is to benefit, then the term “per stirpes” is meaningless.
o Instead of saying per stirpes, just say: To my children in equal shares but if any child
predeceases me, the share of the predeceased child to go to children of that child.
If something is given to “issue per capita”, then each issue (children, grandchildren, etc) take
equal shares.
Amyot v Dwarris (1904, Eng) - "eldest" means the first born child even if there are only 2 children and
the first born is dead at the date of death of the testator
Re Karkalatos Estate (1962, SCC) – where to apply per stirpes – in the generation above
F: Will says: invest residue, benefitting 2 daughters, until one dies, then divide “among and between my
grandchildren, per stirpes, in equal shares”. One daughter (deceased) has 1 child. Other daughter (still
alive) has 3 children.
Which level to apply the per stirpes? Do you apply per stirpes at the level of the daughters? Or at the
level of the grandkids? Courts below held that the 4 grandchildren get equal shares, per capita.
R: Level of the daughters. If a gift is made to a number of people of the same generation, but of
different ‘stocks’ (families) – then the stocks are found in their ancestors
Eg. "per stirpes among the children of such of my children as shall have left issue" means that the
testator’s own children who have left issue are the ‘stocks’
Also, theme of dividing btwn daughters & benefitting them equally in the rest of the will.
Re Clark Estate (1993, BCSC)
F: Testatrix left half of residue invested in trust for grandson Robert – pay him $1000/month. At his
death, to divide into equal shares & tsf one share each to the children of George (testatrix’s son), per
stirpes. Now: Robert still alive. All 6 children of George still alive. If one of the 6 dies, leaving issue, then
upon Robert’s death, does that issue get share of the predeceased parent? Or does the share go to the
deceased person’s estate?
R: Determining intention – the testatrix seemed to favour Robert – but made no provision for any of his
potential children. Thus, she probably did not intend to provide for any of George’s children’s issue.
There was another error in the will – possibility of other errors – maybe the per stirpes was accidentally
left in. Court holds that the share will go to the deceased person’s estate.
Dice v Dice estate (2012, ONCA) - “gift to named children, per stirpes” shows testator’s intention to
benefit his children’s children
F: Will of father - on death of wife, residue “equally btwn son James and daughter Marlene per stirpes”.
Wife dies, then James dies, then father dies. James leaves 3 children & a will naming 2nd wife as sole
beneficiary of estate. Who takes James' portion?
1. Sister – no vesting of interest until death of the spouse and only the survivor takes
2. Second wife – vesting of interest at date of testator’s death, no meaning is given to “per stirpes” and
James’ estate takes
[39]
3. James three children – vesting at date of testator's death, meaning given to per stirpes is that if a
child predeceases spouse, then his children benefit from his share
R: General intention of the will appears to be to benefit 2 kids equally. “gift to named children, per
stirpes” doesn’t constitute a contradiction – it shows testator’s intention to benefit his children’s
children. Gift goes to James’ children.
Class Gift




Gift to a class of persons included under a general description & bearing a certain relationship to
the testator or another person
In a class gift, if 1 or more Bs die, survivors take the gift equally amongst them
Class gift is an anti lapse mechanism
At some point, the class "closes" and no more ppl can be considered to be in the class
Milthorp v Milthorp (2000, BCSC) –not a class gift
F: Residue to daughter X and son Y and to husband's children ABCDEF in equal shares per stirpes. D
predeceased leaving no children. EF predecease leaving children & grandchildren.
Is residue equally divided amongst living children or do issue of E & F take their deceased parents'
share? E F beneficiaries want this not to be a class gift - then they would take shares.
R: E & F’s issue got the gift - not a class gift - per stirpes language indicated an intention to benefit their
issue. Then D's share fell to intestacy - lapsed gift.
When court was interpreting this - if you name ppl then less likely to be a class gift (eg. X,Y,A,B,C vs sons
& daughters). Class gift is always subject to contrary intention =. Would have been more clear as a class
gift if will said "amongst all the children of my husband and me"
Re Hutton (1983, ONHC) – class gift
F: Left residue to A, B, C, D in equal shares (2 brothers & 2 sisters of the testator). Should any of them
predecease me, then their share goes to their child/children. After will was made, A & B die, both
leaving issue. Then testator makes codicil to change executor (originally B) and confirmed will. Then only
child of A dies. (but A leaves a widow & grandkids) What happens to A’s share?
R: This was a class gift (class being his siblings & their children if they die) and therefore A’s share gets
divided between remaining members – 3 shares - C, D, and B’s children.
Class closing rules (Re Bleckley & Shorrock Estate - class closing rules)
 Generally, the rule is that members of a class are prima facie determined as of the testator’s
death (but some condition might change this)
 Class closes at the earliest opportunity, namely upon the entitlement of a member of the class
to call on the gift.
 Rules apply to capital but probably not to gifts of income
 Rules are subject to a contrary intention in the document creating the gift
 Vested gift, no prior interest
o Eg: “To all of the children of A”
 At date of death of testator, A is alive and has children. That child or children
could call for possession and close the class to the exclusion of further children
A may have. To exclude rule, will should say “to the children of A whether born
before or after the date of my death”.
[40]




At the date of death of testator, A is alive but has no children. One outcome is
that the class is closed as soon as A has a first child. However, it is likely that all
of A’s future born children will take.
No contingency, prior interest
o Eg “To B for life, remainder to the children of A.”
 If a child alive at testator’s death, class will consist of that child and any children
born during B’s life.
 If there are no children of A alive at testator’s death, the class will consist of the
children born during the life estate to B.
 If there are no children of A alive at testator’s death and none born during the
life estate to B, the law is probably that all children born to A after the date of
the termination of the life estate to B will take
Contingent gift, no prior interest
o Eg “To the children of A if they reach 21 years of age.”
 At testator’s death, A has child/children over 21 years but none younger. The
class will then close in favour of those existing children.
 At testator’s death, A has one or more children over 21 and one or more
younger than 21. Class will close in favour of those existing children.
Distribution can be immediately made to children age 21 or over. Those under
21 will take if they reach 21 years. If they do not, the share will be shared by the
other members of the class. A’s children born between date of death and last
child to reach 21 years do not take as the class is closed.
 At date of testator’s death, A has children. All of whom are under 21 years.
Class will remain open until a child of A reaches 21 and then it closes. Any child
born to A in that period will fall into the class and takes provided he reaches 21
years.
 A has no children at testator’s death. Class will remain open in favour of all
children born before any child born after testator’s death reaches 21 years.
Then the class will close and those children take, provided they reach 21 years.
 A has no children at testator’s death. A then has a child who reaches age 21,
with no other children being born to A in the meantime. A’s child then can close
class and take to the exclusion of other children born thereafter
Contingent gift, prior interest
o Eg “To B for life, remainder to those of A’s children who reach the age of 21.”
 NB: Earliest date for the closing of the class is the death of B, which is the
earliest date on which a distribution could be made to the members of the class.
 If a child of A reaches 21 while B is alive, the class closes at B’s death in favour of
all children who were: (a) alive at date of testator’s death or born during B’s life
estate; and (b) who have reached or does eventually reach 21 years. If a child
reaches 21 during B’s life estate and then subsequently dies, that child’s interest
has vested and that child’s share will be paid to his estate after the death of B.
 If there are children alive at the termination of the life estate but none has yet
reached 21 years, the class closes upon the first child reaching 21 years.
Children born within that period fall within the class and take if eventually reach
21 years. Children born after the first child reaches 21 years are outside of the
class and do not take at all.
[41]

No children. None at the date of B’s death or A had children but who died
before reaching 21 years. Class will now close when any child born to A reaches
21 years.
Capacity, Knowledge & Approval, and Undue Influence
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Minors can receive property in a number of ways - inheritance, damage awards, etc.. but must
be 16 yrs + to make a will unless you are in the military (WESA s. 36 & 38)
What parents can do for minors is a very confused area - Parents/guardians don't have much
authority to deal with minors' property
Knowledge & approval: basically need to tell the client what you’ve drafted and they agree
Undue influence – under the CL, person alleging UI must prove it. WESA changes this for certain
types of people (s. 52) – some debate in the BCLI Report regarding this.
o WESA: where the potential for dependence or domination of the will-maker was
present, then the person seeking to uphold the will (or provisions of the will) holds the
onus of showing that that person did not exercise UI over the will maker.
Also, the CL differentiated btwn inter vivos gifts and testamentary gifts
o Inter vivos: if there is no fiduciary relationship, then the person alleging UI must prove it.
If there was a fiduciary relationship, then gift receiver must prove absence of UI.
o Wills: the person alleging UI must prove it.
Vout v Hay (1995, SCC) - relationship btwn knowledge & approval, capacity, & undue influence
 The person propounding the will has the legal burden of proof with respect to due execution,
knowledge and approval, and testamentary capacity.
 But - these are presumed if will was properly executed & testator read or was read the will
 A person opposing probate has the legal burden of proving undue influence (also, really, since
knowledge & approval and capacity are presumed, person opposing has evidentiary burden – this
burden can be met by adducing evidence of suspicious circumstances).
 The standard of proof on each of the above issues is proof on a BOP.
 If there are suspicious circumstances relating to either knowledge & approval or capacity, then the
presumption disappears & the propounder of the will reassumes the legal burden
 Knowledge & approval overlap with undue influence, but distinction exists: “A person may well
appreciate what he or she is doing but be doing it as a result of coercion or fraud”
Re Henry (2009) OnSC – suspicious circumstances does not impose a higher std of proof.
Discusses Vout v Hay & other cases
 The existence of suspicious circumstances does not impose a higher std of proof on the propounder
of the will. However, the extent of the proof required is proportionate to the gravity of the suspicion.
 A well-grounded suspicion of undue influence will not, per se, discharge the burden of proving undue
influence on those challenging the will.
Robins v National Trust Co (1927, Eng) – Onus only really matters if the evidence is completely even on
either side. Otherwise, on a BOP, court just reviews & weighs evidence, then comes to a conclusion
[42]
Turner v Rochon (1980, BCSC) - where a will is admitted to probate in common form, and is later
attacked for lack of capacity, the onus of proof remains on the party propounding the will.
Capacity
Banks v Goodfellow (1870, Eng) – test for legal capacity to make a will; capacity is a continuum
F: Testator had been in an asylum – prone to “violent excitement”. But did take care of his own money.
R: Shouldn’t deny someone testamentary freedom because they are partially unsound. Capacity is a
continuum - ok to have bad memory/some delusions that don’t relate to testamentary capacity.
Test for legal capacity - must understand the nature of the act of making the will & its effects;
understand that the purpose is for disposing their property; must understand what they are disposing
more or less; need to understand the claims that others may rightfully/expect to make with regards to
the property; there may be some sort of reasonableness test to their dispositions at least
Royal Trust Co v Rampone (1974, BCSC) – can lack capacity in one area & retain capacity to make will
F: Testator decided he did not have the capacity to manage his own business operations - but
afterwards he made a codicil. Can someone who doesn't have the capacity to manage his own business
affairs still have capacity to make a will?
R: Yes - they are different things. Being unable to manage his business is quite different from
understanding what making a will is. Helpfully perhaps he was adding children back into his will that he
had previously excluded in the codicil.
Re the Estate of Borhman, (1938, Eng) – psychopathy ≠ lacking capacity; when delusions relate to the
dispositions, then can be found to be lacking capacity (just for that disposition).
F: Will attacked on 2 bases - First, it was alleged that the testator was so devoid of any feeling of human
affection that he was incapable of making a will at all (expert said he was a paranoid psychopath).
Second, it was alleged that part at least of a codicil made in September, 1932, was invalid because of the
nature of the testator’s reaction to the London County Council. The Council had expropriated some of
his property and he had a strong, continued reaction – het hought that the Council was persecuting him.
In his last codicil, he directed that the clause giving money to charities be read and construed as if the
word “England “ were deleted therefrom and the words “United States of America” were substituted for
the word “England.
R: Just because someone is a psychopath does not mean they lack capacity. But, the testator clearly
suffered from some delusional insanity from the time of his fight with the London County Council – thus,
that portion of the codicil is invalid. (everything else valid)
Key & Anor v Key & Ors (2010, Eng) – “golden rule” for making will for someone with doubtful capacity
"Golden" rule for preparing a will for someone with doubtful capacity: Make arrangements for a
qualified medical practitioner to do a report on capacity and make contemporaneous record of the
examination & findings.
Point is to have someone who knows more about the brain and who has turned their mind to the
requirements to assess your client. (Interesting because cases always say capacity test is a legal test)
Sharp & Bryson v Adam & Adam (2006, Eng) – intellectual vs moral understanding
F: Will maker gave everything to 2 daughters. Then made 2nd will, excluding 2 daughters entirely. Gave
everything to 2 people who cared for him personally & looked after his business. He was in intermediate
stages of MS. Trial court found that he lacked capacity.
[43]
R: Appeal dismissed. Trial judge wasn’t clearly wrong – there was evidence to support lack of capacity.
Two aspects of understanding - intellectual understanding vs moral understanding - "cognitive powers"
vs what one ought to do.
Parker v Felgate (1883, Eng) – capacity at execution not as important (vs at time of giving instructions)
F: More than a year btwn initial instructions & signing of the will. Do you need capacity when you
execute a will?
R: Knowledge and approval most important while giving instructions, not when signing (as long as
lawyer has an absolutely clear idea of what the will maker wanted).
3 stages of capacity that a testator may be able to answer  Complete awareness
 Somewhat less than complete awareness
 Testator says he has settled the matter with the lawyer
Perrins v Holland (2010, Eng) – confirms that Parker v Felgate is still good law
Hall v Bennett Estate (2003, ONCA) – duty for lawyer to create will
F: Lawyer met with client while he was in hospital. Met with him for 65 min but the lawyer decided he
was not getting coherent instructions, so he didn't create the will. Potential B sued the lawyer.
R: Ont trial ct found lawyer had not properly carried out his role as a lawyer.
Ont CA - saved the lawyer – held that he never had a retainer with the client.
Retainer can sometimes mean $, a formal agreement set out in a letter, an informal agreement for the
lawyer to work for the client.
Note: Is the capacity required the same to make a will or an inter vivos trust? Maybe a little higher in an
inter vivos trust - since you are giving property away while alive (see Craig v Lamoureaux)
Public Trustee v Gill (2001, NZ) – duty of a lawyer to make a will where capacity is doubted
F: The defendant law firm prepared two wills for a testator, both of which were held invalid on the
ground that the testator lacked capacity. An earlier will, prepared by the Public Trustee of New Zealand,
was admitted to probate. The Public Trustee was the executor of that will. On behalf of the estate, the
Public Trustee sued the law firm to recover the substantial costs which the estate had incurred in the
proceedings respecting the two wills prepared by the firm.
R: The claim was dismissed on the facts
“In my view, the most which could be contemplated as a legal duty upon a solicitor is an obligation to
consider and advise upon the issue of testamentary capacity where the circumstances are such as to
raise doubt in the mind of the reasonably competent practitioner. However, any such duty would
necessarily be confined by the scope of the retainer and would also be limited by the solicitor’s
fundamental duty to comply with the client’s instructions. In particular, a solicitor would not ordinarily
be authorised to make inquiries of others such as family members or medical advisers without the
client’s instructions. As well, any decision about whether to make a will and about its contents is, in the
end, a matter for the client”
[44]
Knowledge & Approval
Wintle v Nye (1959, Eng) – Knowledge & approval
F: Successive changes made to the testator's will. Result was that the lawyer ended up with the residue.
Instructions were fairly complicated ($ going to sisters, not too much, over some time; many changes to
drafts etc). Solicitor’s evidence that the money was to go to the lawyer to hold in trust for the sisters.
R: Knowledge & approval requires knowledge & approval of what the will means (not the words). Must
know the effect of the words. Testator must know the general amount of their residue.
Someone who helps the testator prepare a will and gets a benefit from it = suspicious circumstances.
Note: concurrent judgment refers to BARD std of knowledge & approval where the person making the
will is also taking beneft.
Russell v Fraser (1980, BCCA) – testator must know general amt of estate to have knowledge &
approval
F: Testatrix discussed will with credit union manager. She wanted the mgr to give instructions to lawyer.
She wouldn’t tell him what to do with the residue because she didn’t care. He facetiously suggested that
she give it to him and she agreed. Almost 50% of the estate ended up in the residue (60k).
R: Trial: If a person helps make a will and takes a benefit under it, the court is allowed to consider in
particular the part of the will which gives the person the benefit. No undue influence here (not enough
control by the manager over the testatrix), but the manager (also the executor) “has not met the heavy
onus upon him to remove my suspicion that the testatrix knew and approved the residuary clause”.
CA: Dismisses appeal. Knowledge of the magnitude of the estate at the time the will is executed is
required for knowledge & approval – doesn’t matter that the magnitude can change afterwards.
Maddess v Estate of Johane Gidney (2009, BCCA) – language difficulties alone ≠ suspicious circ
F: Testator had some difficulty with English & was not sophisticated in business.
R: Trial judge held that this was not sufficient to rebut the presumption of knowledge & approval. Ie.
these things did not amount to suspicious circumstances. The test is not that the challenger must point
to “some evidence” of susp circ. There must be “some evidence, which if accepted, would tend to
negative the knowledge & approval”.
CA agreed with trial judge.
Undue Influence
Wingrove v Wingrove (1885, Eng) – Undue influence = coercion
Due influence vs undue influence. Not all influence is undue influence. Undue influence requires the will
of the person to be coerced into doing something which he/she does not want to do.
Also, even if a person has the power to overbear the will of a person, they still have to exercise it for UI.
Craig v Lamoureaux (1920, Eng) – person alleging undue influence must prove it
F: Husband told wife to leave property to him. Her sister claimed undue influence.
R: Nothing wrong with influence – a potential B is allowed to put his/her claims before the will maker &
ask for recognition. (probably also because the result was perfectly acceptable)
The person who is alleging UI holds the burden of proof. (May be different for inter vivos gifts)
[45]
Fraud
Bolianatz Estate v Simon (2006, SKCA) - Fraud
F: The B had actually been stealing from the testator prior to his death. Does court take away the gift of
the criminal B?
R: Court reviews case history:
 Kennell – wife leaves everything to her husband, but turns out husband was actually married to
another woman. Husband was not entitled to his legacy. “wherever a legacy is given to a person
under a particular character, which he has falsely assumed, and which alone can be supposed the
motive of the bounty, the Law will not permit him” to take the gift.
 Boddington – husband left things to wife. Prior to his death, the wife had the marriage annulled. As
per Kennell, need false assumption & ev that the false character was the reason for the gift. Wife
still entitled to gift because she didn’t assume a false character.
 Posner – adds that the false assumption must be a fraudulent one. Husband left things for wife. He
knew she was already married at the time of their marriage. No fraud here, so she still gets gift.
Majority: Question for this case is whether the testator would have made the gift had he known of the
fraud. Trustworthiness found to be a factor in deciding that the B would be an executor, but not relating
to the gift. Can’t open the door to assessing the moral worthiness of Bs before allowing them their gift.
Also don’t want to add more uncertainty to wills. And this is a fact dependant scenario, but not many
facts given (eg relationship btwn the B & the testator, why the B stole money etc)
Clean hands doctrine does not apply here – 1. The B is not asking for an equitable relief, and 2. B’s theft
and B’s gift are not sufficiently linked to engage the maxim.
Dissent: It’s so obvious that the testator would not have made the gift had he known about the fraud
that we don’t need any additional evidence. Also, clean hands could apply – when a testator dies, Bs
don’t take equitable ownership – the executor takes full title, and the B only has an equitable chose in
action against the executor – once accounts are settled, then the executor becomes trustee holding in
trust for the B. This means that if the administrator here didn’t give the B his money, then B would have
to come to the court asking for an equitable remedy → unclean hands! Would still need nexus btwn the
fraud & the legacy but that is satisfied here. Lastly, this would frustrate the restitution order from the
B’s criminal conviction of theft.
Wilkinson v Joughin (1866, Eng) – distinction btwn “innocent & fraudulent” legatees
F: The testator made bequests to “my wife Adelaide” and to “my step-daughter, Sarah Ward”. Adelaide
was in fact married to Thomas Ward when she purported to marry the testator. Sarah was the daughter
of that marriage.
R: The court found that Adelaide had represented herself to the testator as a widow at the time of their
“marriage”. Following Kennell, supra, the court distinguished between “innocent and fraudulent”
legatees, and annulled the gift to Adelaide, but upheld the gift to Sarah
Transfers Outside of a Will

Why don’t people want to use a will?
o Main reason: TAX
[46]
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At the time of your death, ITA deems that you have sold everything you own for
fair market value
 So, if there is any unrealized capital gain in your assets, then the deceased is
liable for that tax
 What your Bs receive is not taxed (ie your Bs don’t have to pay tax on
inheritance)
o Probate fees (1.4% of the estate)
o Wills Variation Act
o Privacy (once probated, a will is a public doc)
o Speed & cost – speedier without having to go through probate.
Why does anyone still make a will then? Because:
o They need to use what they have until they die
o Can always change a will (unless you become incapable)
o Don't have to know what you have when you have the will
How can you pass assets without a will?
o Gift inter vivos - but the problem is, how do you know you won't need it?
o Gifts mortis causa - very limited use
o Inter vivos trust
 Deals with tax and wills variation
 Alter ego or joint spousal trusts (not a company or society, is a relationship)
 Assets are held legally by the trustee
 Implications: no probate fee because they don't pass under the estate;
no deemed disposition at death since the deceased didn't hold legal
title
 Alter ego - for over 65 yrs old, can tsf assets into trust without pmt of capital
gains tax until death of the settlor
 Only the settlor can receive the benefit (income/capital)
 Joint spousal - for over 65 yrs old, avoid pmt of capital gains tax until later of
death of settlor or the surviving spouse
 When you die, the assets are not in your name so no probate fees
 Capital gains tax is payable at death
 Assets held by the trustee, so wills variation act does not apply
 No deemed disposition because the deceased didn't hold the asset
 In your trust, can make succession like provisions - eg. after death, trustee will
divide the trust property btwn children.. If predeceased, etc etc
 But a trust is complicated & costs a lot of money - trust doc, land title tsfs,
deeds, go to the bank and say that the property has been tsfed
 If under 65 - can still make a trust - just need to pay all capital gains tax
o Joint tenancy - more of a layman's way to avoid taxes
 Then the joint tenant takes upon death of other person - ROS
 Property tsf tax is usually payable if you tsf to a 3rd party - but if you just add
another owner (and the property is your principal res & you are adding a spouse
or child) the tax is not payable
o Direct beneficiary designation
 Insurance policies (Insurance Act s. 48)
 RRSP/RRIF/Pensions (WESA s. 85)
Legal presumptions that arise on the tsf of property/assets without consideration
o Presumption of resulting trust
[47]
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Law presumes that gifts (unpaid for) are held in trust – and it is up to the gift
recipient to show that it was a gift.
o Presumption of advancement (gift)
 This is an exception to the presumption of resulting trust
 Where a parent gives to a minor child, then it is presumed a gift – and the onus
is on the challenger to show it was not a gift (Pecore).
 Must be a minor child – adult, dependant children not included
Question that has to be asked is: when the gift is intended to take effect?
o If I give something away now - then this is an inter vivos disposition (immediate)
o If you intend to give it away upon death - then this is a testamentary disposition - but a
will is the only vehicle to give something away upon death - need all the will formalities
o So what the person intends at the time of jointure is important
Insurance Act - designation of B- doesn't fall to the estate, isn't subject to the wills variation act
(BUT note - if court does look at the estate to vary it, it will consider that a B has gotten $ under
the insurance policy), isn't subject to creditors
Can make revocable or irrevocable designation
o Why would you want to make an irrevocable designation? Family law reasons - spousal
support continuance
o s. 88 of Insurance Act - with agreement of B can change the irrevocable desig
If you give an RRSP to the B, then creditors of the estate can't get it
Designations that you can make by will - s. 50
Might not want to do designations via will - do it on the designation form with the ins company
o If the named B predeceases the policy holder, then amt reverts back to the estate
WESA - s. 85 - says that the designation is an exception to the rules of testamentary disposition
WESA s. 99 - effect of revival of will
WESA provides that designations may be made and revoked not only by wills, but also using
non-will formalities: see WESA, Part 5
Capacity required for designations? Re Rogers (1963, BCCA) decided that the wills test for
capacity applied where an insured changed preferred Bs under an insurance policy, but the
designation was not a testamentary disposition so that the burden of proof rested on the
person challenging the validity of the change.
Undue influence in designations? In Flack v. Rossi, (2008, BCSC), it was decided that as pension
designations were testamentary, the burden of providing undue influence fell on the person
asserting undue influence
Creditors? If designations are testamentary, the proceeds payable on death might be argued to
be part of the estate of the deceased for some purposes at least, e.g., paying off the debts of the
deceased. That argument is now precluded by s.95 of WESA.
Pecore v Pecore – (2007, SCC) – joint tenancies
F: Father transfers some money into joint accts with his daughter Paula. He was accustomed to helping
her out financially. But he declared the funds to be his and paid taxes for the earnings etc. In his will,
said nothing of the accounts but residue was to be split btwn Paula and her husband Michael.
Does presumption of advancement apply?
R: Not to adult children, regardless of dependency. Admissible evidence to show intention:
 Acts or statements of either party, whether before or after the transfer.
 The fact that the transferor had granted power of attorney to the transferee.
 The fact that the transferor had continued to control the property after the transfer.
[48]

The extent to which the transferor paid capital gains tax on a transfer, or paid taxes that became
due after the transfer.
 With respect to joint bank accounts, bank documents signed by the parties when a joint account is
opened are admissible.
Evidence showed that the father intended to “gift a right of survivorship” to Paula.
Madsen Estate v Saylor (2007, SCC) – application of Pecore v Pecore – adding child on acct for
convenience is not a gift
Dad & daughter have joint accts. Here, no evidence to rebut presumption of resulting trust.
Mordo v Nitting (2006, BCSC) – Alter ego trusts & tax liabilities
Mother wanted to disinherit son, benefit daughter, & avoid taxes - tsfed property into alter ego trust.
Alter ego trust:
1. Transfer legal title to trustee – did not register the form transferring title to avoid Property Transfer
Act transfer tax. So, the mother was still the registered owner, but executed a doc saying she was
holding her interest on trust for the trustee.
2. Execute trust doc – the sole B during the settlor’s lifetime must be the settlor for the ITA exception
to kick in. Normally, capital gains tax when tsfing to trustee, unless settlor is 65+ & the sole B of the trust
3. Upon death, trustee must hold on trust for daughter. Avoids probate fees which are calculated from
whatever falls into the estate.
Notes on trusts:
 A person can have a motive for creating a trust, but as long as her intention IS to create the trust,
then there is no sham (certainty of intention)
 Other 2 certainties: of objects (Bs clearly defined), and of subjects (property of trust & nature of
interest due to each B clearly defined)
 Reserving the power to call for the trust does not mean that it is testamentary in nature
 If the settlor intends for the trust to take effect immediately then it is inter vivos
Note that courts have generally upheld inter vivos trusts used to disinherit children. Not as settled when
it comes to disinheriting spouses.
National Trust v Robertshaw (1986, BCSC) – RSP designation may be viewed as an inter vivos gift
F: Testator designated his wife as B of an RRSP. They divorced. Then the testator tsfed funds from some
other RSPs in that RSP. After that, he executed a will revoking all former testamentary dispositions and
leaving his estate to his three children. The will made no mention of any RSP.
Executors took the position that the designation of the wife as B was a testamentary disposition which
had been revoked by the will.
R: The line between a revocable inter vivos trust and a testamentary disposition can be muddy. Depends
on the degree of control retained by the settlor (more control → testamentary).
Here, the RSP designation was an inter vivos transfer of a contingent interest. Thus, not revoked by will.
Roberts v Martindale (1998, BCCA) - No automatic revocation of ins designation on divorce
F: Wife designated husband as B on life ins policy. Forgot to make changes after separation. She had
revoked all previous wills and made a new will benefiting her sister. Also, wife & husband had entered
into separation agreement & settled all rights against each other. Life insurance funds were paid to ex
husband when she died.
R: Husband holding this on constructive trust. (Court relied on equity + unjust enrichment to come to
the conclusion)
[49]
Claims Against Estates
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In other jurisdictions (& historically CL) - testamentary freedom is not complete (eg. women,
requirements to leave a certain amt to offspring)
NZ started wills variation - a person should have to take care of their dependants so that they
don’t have to fall into the graces of the state. Shouldn't ignore those obligations.
Now - basically WVA has been put into WESA.
Something like WVA exists in other Cdn jurisdictions but they are generally very narrow - pl's
need to show they were financially dependant on the testator
In BC - WVA is not narrow - financial dependence is not a necessary requirement for variation
o Creates a lot of uncertainty & litigation
Some ways to avoid variation claims:
o Joint property (ROS - never falls into estate);
o Beneficiary designations (these are testamentary in nature but do not fall into the
estate);
o Inter vivos trust (not part of the estate)
WESA s. 60: maintenance from estate
o An incredibly broad discretion for the court
o Makes for a lot of litigation in our prov
WESA s. 62: evidence
o Any written stmt signed by the testator is admissible
o Currently called "s.5 memoranda" - still some discussion amongst lawyers on whether or
not these stmts are a good idea
o “Accuracy” means whether the stmt is true.
o The stmt must also be rational (ie there must be a logical connection btwn the act of
disinheriting and the reasons)
o If you are going to do a s.5 memoranda - need to make sure it will withstand the test of
whether it is relevant
Court's discretion is broad - s. 63
o Could tsf an asset directly to the child
o Could order monthly pmts for life (but more rare now)
WESA s. 65: If a claim succeeds, then the other Bs gifts decrease pro rata- usually will affect
residue
WESA s. 66: can freeze administration of the estate (eg. when a child has been living in the
house - may make a claim for the house - then executor can't sell the house yet)
Who can apply for variation?
o Spouse - married, CL, same or opp sex
o Child - biological or adopted, minor or adult, can be financially independent
How do minor kids get variation?
o If someone makes a variation application - anyone who can be affected (Bs, whoever
could take on intestacy, dependents) must be served
o If minor kids are involved - PGT gets involved
When does a CL relationship start/end? Can be hard. McCrea gives some direction.
Legal vs moral obligations – see Tataryn. Moral obligs are very fact dependent.
Can you put restrictions on certain property re how you can dispose of them? (see Harvey)
o Situation arising in the corporate area - eg. 2 ppl each have 50% of the shares. What if 1
dies & leaves the shares to someone who doesn’t get along with the other?
[50]
o
How can shares be dealt with in the event of death? - can write it in the K btwn
shareholders
McCrea v Barrett (2004, BCSC) – stepchildren can’t apply for variation
F: testator had left $ to biological child (?). CL spouse living with the testator sought variation for herself
and also for her son (stepchild to the testator)
R: Stepchild has no standing to seek a variation of the will. Exclusion of stepchild is not discriminatory
under s. 15 of the charter.
Tataryn v Tataryn (1994, SCC) – legal & moral obligs under the WVA
F: Husband had all the assets in his name. Married to wife for 40+ yrs & had 2 sons. Dad did not like one
son. In will, left most assets in a spousal trust & names preferred son as the trustee. On wife's death, the
good son gets the $. Both wife & bad son apply to vary the will - claim by wife was that she wanted out
of the trust because she wouldn't hold assets and wouldn’t have assets to dispose of on her death.
R: SCC looks at spousal claims under WVA. What is “adequate, just, and equitable” is not a needs based
approach (ie don’t only award spouse/children what is necessary to keep them off the streets).
Courts have a broad discretion to decide what is adequate just & equitable in the circumstances.
Looked at Family Relations Act, Divorce Act, unjust enrichment & other common law claims. Court gives
guidelines for courts exercising discretion:
What are legal obligs owed to the wife/kids?
 Look to what the testator was legally bound to do during his lifetime. Wife shouldn't be worse off if
she had divorced him 1 day before his death instead of staying married. So consider the Divorce Act.
 Dependant children may have a claim in legal obligs & independent children may have a claim if
there is an element of unjust enrichment (eg. adult child contributes to the parent’s estate)
 Legal obligs take precedence over moral obligs.
Here, all the assets of husband were jointly contributed to by both wife & husband. Family law says
prima facie 50/50 (of joint assets) + possibly support. This is the legal oblig.
Note: Currently, CL spouse is not entitled to property division (50/50) - only entitled to support (under
Family Relations Act)
Note: legal obligs exist at the time of death, though they don’t crystallize during the lifetime.
What are moral obligs owed to the wife/kids?
 Moral obligs = society’s reasonable expectations of what a judicious person would do in the
circumstances by reference to contemporary community standards.
 Moral duty assessed in light of testamentary autonomy – ie if the disposition falls within an
acceptable range of what is adequate, just & equitable, then don’t interfere.
 Consider the size of the estate (some provision should be made for children if size of estate permits
unless circumstances negate the oblig).
Here, long marriage, both contributed to the estate, funds were jointly set aside for old age, shouldn’t
deprive wife of independence just because husband died first.
Bridger v Bridger Estate (2006, BCCA) - example of moral oblig working to give a spouse who has
enough even more
F: 2 ppl marry later on in life. After 38 yrs of marriage, husband dies, leaving estate to his own 3
daughters - no significant provisions for the spouse. Spouse already has about the same amt as the
estate (ie not dependent). Spouse applies to vary will.
R: Satisfying the legal oblig may be inadequate even if spouse has no need - moral oblig may entitle a
spouse to an amt in addition to the legal oblig.
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Possibility that spouse will provide benefit of award to her own children is irrelevant.
Here court focused on factors going to moral obligation:
 Made will before dementia hit
 Spouse stayed home with him to take care of him - preserved estate
 Stuff he owned arose out of investments that she had initiated
Saugestad v Saugestad (2008, BCCA) – example of limiting moral obligs where legal obligs are
sufficiently met
F: Testator had 2 sons by his first wife. After her death, remarried – 2nd marriage lasted 13 yrs before he
died. He held accounts offshore (result of a retirement allowance & inheritance from his mother). Also
had some properties – matrimonial residence, another condo, & 2 properties held in joint tenancy with
spouse. Left her the matrimonial residence, pension, RRSPs, & some other specific bequests. Residue to
sons – who are making modest incomes.
R: Some assets were not held to be family assets. Also, shorter marriage to 2nd spouse and much of his
wealth was accumulated during his first marriage.
Court varied the will slightly - not nearly as much as what the spouse was looking for.
Picketts v Hall estate (2009, BCCA) – large award to CL spouse
F: CL relationship for 20+ yrs. $18mil estate - had already gifted a lot to his children. Left spouse the
condo that they were living in + 2000/month +use of condo in Hawaii. Residue divided btwn sons.
Spouse applied for variation - she says he had proposed to her at one point - promised to care for her as
if she were his wife. She also cared for him until death (preservation of estate).
R: Legal oblig - CL spouse, so no property division - no unjust enrichment because all his money was
already made when they got together. Trial judge says all you are entitled to is support. Still varied a
good deal.
On appeal: No legal oblig but this is a case of a really powerful moral obligation - warrants a capital
award from the estate. Court can look at all sorts of factors - not limited to unjust enrichment.
 No legal oblig to sons
 Length of marriage was 21 yrs
 Spouse gave up her career on insistence of testator
 Spouse used her own savings for household expenses sometimes
 She took care of him for 3+ yrs before he died
 She relied on his stmt that he would treat her as if she were his wife
 Size of the estate
 Had he died without a will - she would have received about 1/3 of the estate
Court awards her 5mil.
Note: Significant case because it was the first time a CL spouse had received such a large award.
Waldman v Blumes (2009, BCSC) – adult independent children – moral obligs
F: 20 yr 2nd marriage btwn 70 yr old testator & 37 yr old spouse. Testator dies 21 yrs later with 1.2 mil
estate. Spouse already has 2.6mil including matrimonial home of 1mil. 2 teenage children from 2nd
marriage. 1st wife of 48 yrs left entire estate to testator at her death - they had 4 kids together - all
adults & financially independent. Will left entire estate to 2nd wife.
All 6 children (adult & minor) bring variation claim - 2 adult children had financial need
R: Legal oblig: agreement to give spouse all assets for having children & not working full time.
Moral oblig: had kids even though she would likely be widowed before they reached independence, &
cared for husband at home before death. Also had moral oblig to children .
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Court only gave adult children a small variation (75k) - they had already received gifts from dad - but
recognized they received nothing from mother's estate.
Note: from Clucas v Royal Trust Corp (1999, BCSC) – summary of some principles from the WVA:
 Main aim of the Act is the adequate, just and equitable provision for the spouses and children of
testators. The other interest protected by the Act is testamentary autonomy.
 The test of what is "adequate and proper maintenance and support" is an objective test.
 The words "adequate" and "proper" as used in s. 2 can mean two different things depending on the
size of the estate. A small gift may be adequate, but not proper if the estate is large.
 First, consider legal obligs to spouse & children. Then moral obligs.
 For adult children, moral claims are more tenuous than those of spouse & minor children. But if size
of estate permits, & in the absence of special circumstances (ie valid & rational reasons) negating a
moral oblig, some provision should be made
 Adult children may have a moral claim if special circumstances exist, such as a disability,
assured/implied expectation, size of estate, etc)
 Can still consider needs.
McBride v Voth (2010, BCSC) – WVA btwn children & will maker’s reasons
F: Will gave gift to eldest child - M - a right to reside in testator's home for lifetime. M had lived with
parents until their death. House made up the majority of the residue. Residue to be divided amongst 3
children with gift over to grandchildren if a child were to predecease Margot before end of occupancy
period. So other kids don't get anything until M dies - she is not that much older than them. Other kids
apply to vary.
R: Factors going to moral duty from parent to adult independent children:
 Contribution & expectation (similarly, unjust enrichment or quantum meruit)
 Misconduct or poor character
 Estrangement or neglect
 Gifts & benefits made during the lifetime of the testator
 Unequal treatment btwn siblings (even treatment prima facie discharges moral duty, but uneven
treatment doesn’t mean that it hasn’t been discharged)
 Testator’s reasons for disinheritance (not sure whether valid & rational reasons are enough to
override objectively judicious parent test in Tataryn
Court ordered variation: 3 yr occupancy period in house after which sale must occur. Then net proceeds
to be divided with M taking 45% and others taking 30 & 25% (last child was quite well off)
Graham v Chalmers (2010, BCCA) – contrast with McBride
Testatrix limited one daughter, Janet’s, share, saying she had enough extra already. Janet had lived with
the testatrix. But court found in favour of Janet, noting that Janet paid rent & helped with household
chores etc.
Mawdsley v Meshen (2012, BCCA) –using Fraudulent Conveyance Act to set aside inter vivos trust fails
F: Mrs. married twice, had children by both husbands. 2nd husband died, leaving business. Had a long
relationship (20 yrs+) with Mr. - he only had condo going into the relationship. Unwritten agreement
that each person keeps his/her own things for his/her own kids. She sold a business & had a lot of cash.
Met with advisors - spoke to her re: alter ego trusts. She went to these meetings with CL spouse. She
made it clear that the trust funds would go to her 3 children & late husbands brother - Mr would not get
anything. But she doesn’t make the trust - finally makes a will when diagnosed with cancer. But still
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makes trust. Trust to gives everything to 3 children & brother in law after death. Lawyer mentions WVA
but she says unwritten agreement not to claim. Estate has very few assets when she dies.
R: Mr. brings a claim under Fraudulent Conveyance Act - Act says: Can't tsf/rid myself of assets to defeat
creditors (Mens rea element required) Mr. argues that settlement of the alter ego trust defeated his
claim under the WVA.
Court finds Mrs. had no intention to defeat his claim - it wasn't in her contemplation at all.
Also – trial judge was not obliged to find that because the trust had the effect of impoverishing the
estate, Mrs. had the intention to defeat Mr.’s claim under WVA.
A person who does not have a claim during his or her parent or spouse’s lifetime, and whose only claim
arises on the death of the testator under the WVA, is not a “creditor or other” under the FCA.
This could mean that transactions may still be set aside under the FCA by claimants under the WVA if
those claimants can show that the transaction was intended to defeat a legal obligation that the willmaker had to them during the will-maker’s lifetime.
Harvey v Harvey (1979, BCCA) – restrictions on disposing of shares
F: Mom + 2 sons are shareholders. Sons are directors. Articles of company gives right of first refusal to
other shareholders if one decides to dispose of shares - as long as a shareholder is willing to buy, can't
sell to other ppl. Mom leaves shares to a grandchild (son of one of the sons). He wants to register those
shares into his name &uncle says no. Then grandchild wants to register them in his dad’s name but
uncles still resists.
R: Trial - shares from testatrix can be registered to grandson. CA says – bequest to grandson is ok, but
must register them in his dad’s name. Courts don't really want to restrain testamentary freedom narrowly interpret inter vivos restrictions on property.
Role of the Public Guardian and Trustee
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Mandate of the PGT:
o To protect legal and financial interests of minors
o To protect legal, financial, personal/health care interests of adults requiring substitute
decision-making
o To administer the estates of deceased or missing persons
Authority is derived from statutes – 2 types:
o Direct representation of client – fiduciary role
o Protective/oversight role – review activities of others as they impact PGT client groups
Roles in Estate Matters:
o Can act in either type of authority (direct rep or oversight)
o Review grant applications to protect interests of minors/incapable adults
o Ensure that share of estate of minor/incapable adult is protected on distribution
o Respond to service under Wills Variation Act to protect interests of minors/incapable
adults
o Act as trustee for minor’s interest where no trustee is appointed in will or on intestacy
o Act as trustee by statutory direction
o Administer estates as executor or administrator
o Administer estates of missing persons
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An applicant for a grant/resealed grant of probate or letters of administration must provide
notice to PGT where a mentally incapable adult or minor has or may have an entitlement to
share in an estate
Notice to PGT includes:
o names, address and dates of birth of minors or incapable adults
o copy of wills search
o copy of affidavit of executor/administrator
o copy of settlement of assets, liabilities and distribution
o copy of affidavit of notice
Purpose of review:
o If there is a will, then the potential for a Wills Variation Act claim. PGT looks at:
 adequacy of provision made for minor / incapable adult who has right to apply
for variation of will
 relevant authorities
 viability of action given costs of litigation
 best interests of minor/incapable adult
o What are the moral/legal obligations of the deceased person? Have they fulfilled these
obligations?
o PGT can be sued if they don't pursue claims, so they err on the side of bringing the claim
and having court throw it out
If the PGT decides litigation is necessary, it will:
o Seek a private litigation guardian to act (eg legal guardian)
o Act as a litigation guardian where there is a legal duty to do so
 For minors: if the PGT is also the guardian of estate, the minor is in continuing
care/undergoing adoption/no guardian
 For adults: if the PGT is also committee of the estate or a representative
o In select cases, may act as a litigation guardian where there is no legal duty to do so
 Ie if no one else is suitable and willing, & if it is economically viable & in the best
interests of the minor
Difference btwn PGTs role for minor & mentally incapable adults?
o Court can appoint the PGT to act for minors if the PGT doesn't consent.
o Court can't appoint the PGT to act for incapable adults (consent required as per Marits v
Wolber)
Executor/administrator must deliver copy of grant of probate within 45 days of issuance (30
days under WESA) - because of the limitation period (6 months)
Posting of security → PGT recommends that the court order a posted bond to reflect value of
the person's share if over 25k
o Eg. what if the administrator does not act judiciously and loses money for the estate?
Then the B may have a claim.
o Other forms of security might be considered - eg for real property that is about to be
sold quickly
Protection of share on distribution of estate - minors
o Look to see what the trust provisions are in the will
o Need clear direction that someone is holding the funds in trust for the minor
o PGT could become trustee
o Executor should also be concerned about this - need someone with legal authority to
sign the release
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o Parents actually don't have inherent authority to receive money on behalf of their kid &
hold in trust. So always goes to PGT if it's money.
o For non-cash -- court appoints a trustee if none provided for - PGT can consent to being
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trustee but usually not
Protection of share on distribution of estate – incapable adults
o PGT may intervene when:
 will provides gift without trust provisions or incapable adult is intestate heir
and
 incapable adult has no committee, attorney, representative with authority to
manage
o Application to have committee appointed
Where an action is commenced and there are minor children of the testator or the testator’s
spouse or child is “mentally disordered”, a copy of Notice of Civil Claim must be served on the
PGT
o Supreme Court Civil Rules require that the executor, surviving spouse and children of
testator and all Bs whose interests may be affected be joined as parties (R 21-6(2))
o And that parties under legal disability act by litigation guardian who is represented by
solicitor (Rule 20-2)
o PGT may provide comments to the court re: a proposed settlement
Sometimes PGT becomes a trustee of assets passing outside of the estate
o Eg. Life insurance: Where designated B is a minor under 18 years, if no trustee is
appointed, payment is directed to PGT: s. 88 Insurance Act
o RRSP/Pension Plan Benefits: Where designated B is a minor, no statutory direction for
payment exists. Parents/guardians have no legal authority to provide valid discharge of
payor. So PGT may consent to act as trustee or Court appointment of trustee required
Estate administration:
o PGT may act as executor or administrator (PGT is the Official Administrator for BC)
o An estate may be referred to the Official Administrator where:
 Deceased died intestate/no relatives in BC willing to act
 Deceased died leaving a will but no executor appointed or deceased/unwilling/
unable to act and no beneficiary or relative willing to act
 all heirs and relatives in BC who are qualified to act renounce their right to do so
and request Official Administrator to act
o Official Administrator cannot be appointed without written consent of Official
Administrator
o Official Administrator will decline to act where:
 gross value of estate is $5,000 or less
 estate is insolvent (trustee in bankruptcy or creditor better suited)
 someone has intermeddled and assets cannot be ascertained or recovered
o Powers of Official Administrator same as private administrator + additional powers:
 prior to grant, power to investigate, take inventory, take possession of,
safeguard or dispose of assets
 discretion to mortgage
Estates of Missing Persons Act -- a person is missing when people who should have heard from
the person have not done so for 3 months
o PGT is appointed as curator of the person's estate in all cases except where Court is
persuaded some other person is more suitable because of business or personal
relationship
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Curator is a trustee
Curator’s powers are the powers “the missing person would have if that person were
present” but subject to supervision of the Court and restrictions of Act
Curator cannot sell or mortgage property of missing person without Court approval
Any acts of curator relating to property of missing person is binding on the missing
person, personal representative, heirs and assignees
Cameron v Cameron (BCSC) – where the parents of a minor child are still married, and one dies,
leaving estate to the other spouse, then a WVA claim for provision for the child is unnecessary.
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