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1 PRESUMPTION OF DEATH AND SURVIVERSHIP ........................................................................................................................ 7 RE CYR (2006)(BCSC)- presumption of death........................................................................................................................ 8 RE LAW (1946) (BCSC)- survivorship ..................................................................................................................................... 8 NATURE OF A WILL ................................................................................................................................................................... 8 BIRD V PERPETUAL (1946) (AUST)- must have sufficient intention to execute a doc for it to be testamentary ................ 8 HUTTON V LAPKA ESTATE (1991) (BCCA)- sets out test for determining if testamentary ................................................... 8 CONDITIONAL WILLS ................................................................................................................................................................. 9 RE HUEBNER (1974) (MAN) – rule for determining if conditional or not ............................................................................. 9 RE GREEN ESTATE (2001)(NFLD)- “in the event something should happen to both of us”.................................................. 9 2 OR MORE TESTAMENTARY DOCS .......................................................................................................................................... 9 DOUGLAS V UMPHELBY (1907) (NEW SOUTH WALES)- highlights common law approach ................................................. 9 RONDEL V ROBINSON ESTATE (ONCA) (2011)- when construing will look at words in the will ........................................... 9 DELEGATION OF WILL MAKING POWER ................................................................................................................................... 9 TASSONE V PEARSON (2012)(BCSC)...................................................................................................................................... 9 SOLICITOR’S RESPONSIBILITIES AND LIABILITIES ...................................................................................................................... 9 RE WORRELL (ONT) (1969) – Duties of lawyer in drafting a will......................................................................................... 10 WHITTINGRAM V CREASE & CO (1978)(BCSC)- L can owe duty of care to potential B’s.................................................... 10 WILHELM V HICKSON (2000) (SKCA)- supporting L being held negligent by B’s ................................................................ 10 INTESTATE SUCCESSION – WHEN A PERSON DIES W/O A WILL ............................................................................................. 10 RE KISHEN SINGH (BCSC) – half siblings – children of half siblings take as though full nieces/nephews of the intestate . 12 RE FORGIE (1948)(MAN) – the right of a descendant or their child to inherent under a intestacy can’t be given to anyone other than those ppl given the right under statute ............................................................................................... 13 SOURAYA V KINCH (2012)(BCSC) – determining if someone is a spouse ........................................................................... 13 GOSBJORN V HADLEY (2008)(BCSC)- Are we spouses? ...................................................................................................... 14 EXECUTION OF WILLS ............................................................................................................................................................. 14 THE MAKING AND ALTERNATION OF WILLS ....................................................................................................................... 14 GEORGE (1997) (MAN) – look at this for how BC might interpret s. 58- reasons why we have formality req for wills..... 14 RE NERSTINE ESTATE (2012) (SASK) - signature- at least attempt to execute formal will ................................................. 15 RE WAGNER (SASK) (1959) –signature- envelope signed instead of will........................................................................... 15 TAYLOR v HOLT (TENN CA) (2003)- signature- USA case on will signed on comp ............................................................. 15 RE BRADSHAW ESTATE (1980) (NB)- signature- 2 diagonal strokes enough to= signature ............................................... 15 RE WHITE (NS) (1948)- signature- assistance with signature- ok if someone helps .......................................................... 15 PEDEN V ABRAHAM (1912) (BC)- “Help” with signature not ok if testator was not able to consent/object at the time .. 15 HSIA V YEN-ZIMMERMAN (2012) (BCSC)- signature- unknown whether an formal req has been done correctly ............ 15 2 RE BROWN (ONT) (1954)- Witnesses- T has to sign in front of both W’s at the same time.............................................. 16 RE WOZCIECHOWIECZ (1931) (ALTA)- witnesses- T has to be able to see the W sign ....................................................... 16 RE JACKSON (BCSC) (1985)- adding a memo to a will......................................................................................................... 16 CODICILS + ALTERATIONS OF WILLS ....................................................................................................................................... 16 IN THE ESTATE OF OATES- presumption that alterations made on the face of the will were made after execution ........ 16 WITNESSES AS BENEFICIARIES ................................................................................................................................................ 16 RE CUMMING (ONT)(1963)- Wife of B was W to will= gift invalid ..................................................................................... 17 RE RAY’S WILL TRUST – if gift is for the benefit of a community, if member of community W will gift still valid......... 17 RE ROYCE’S WILL TRUSTS (1959)- when determining if W has beneficial interest look at time of attestation ................. 17 GURNEY v GURNEY (1855)- B W original will + codicil- codicil results in W getting a benefit ........................................... 17 ANDERSON V ANDERSON (1869) – B W original will, but remedied by properly executed codicil.................................... 17 JONES V PUBLIC TRUSTEE (BCSC) (1982)- the voided gift (when it is a portion of the residue) falls into intestacy .......... 17 ELECTRONIC WILL ................................................................................................................................................................... 17 REVOCATION OF A WILL ......................................................................................................................................................... 18 RE LAWER (SASK)(1986)- 2nd will has revocation clause ..................................................................................................... 18 RE NORRIS (BCSC)(1946)- tearing of the will- no intention to revoke found ..................................................................... 19 RE ADAMS (1992)- altering will w/ pen- this may be enough to revoke will ..................................................................... 19 LOST WILLS:......................................................................................................................................................................... 19 SUGDEN V LORD ST. LEONARDS (1876)- Lost Will – no revocation found ......................................................................... 19 LEFEBVRE V MAJOR (1930)(SCC)- Lost Will – no revocation found .................................................................................... 20 RE BROOME(1969) (MAN CA)- Lost Will ............................................................................................................................. 20 DEPENDANT RELATIVE REVOCATION (AKA CONDITIONAL REVOCATION) ............................................................................. 20 IN RE JONES DEC. (1976)(CA)- what to ask when faced w/ a destroyed will...................................................................... 20 RE SORENSON- mistaken fact can invalidate revocation if court decides revocation was conditional on that mistaken fact ...................................................................................................................................................................................... 20 JOINT AND MUTUAL WILLS..................................................................................................................................................... 21 UNIVERSITY OF MANITOBA V SANDERSON ESTATE (1998)(BCCA)- mutual wills – included an express K ........................ 21 REVIVAL OF A WILL ................................................................................................................................................................. 21 RE MCKAY (BCSC)(1953)- revival requires intention .......................................................................................................... 21 COURT ORDER CURING DEFICIENCIES: ................................................................................................................................... 21 REPUBLICATION, LAPSE AND ADEMPTION ............................................................................................................................. 22 REPUBLICATION – the effect of the making of a codicil ......................................................................................................... 22 RE HARDYMAN (1925)- republication by a codicil is used to give effect to T intentions ................................................... 22 RE REEVES (1928)- court find republication – present lease in original will- republished in codicil .................................. 22 3 RE HEATH’S (1949)- rule for republication isnt a strict rule always follow T intentions – no republication here.............. 22 RE ESTATE OF RUTH SMITH(2010)(ONSC)- republication while lacking capacity doesn’t invalidate a will........................ 23 LAPSE ...................................................................................................................................................................................... 23 RE STUART ESTATE (BCSC) (1964)- Pre-WESA .................................................................................................................... 23 RE WUDEL (1928)(QB)- when a court might find “a contrary intention” ........................................................................... 23 RE: THE ESTATE OF STELLA WEST (1999) (BC)- “per capita”- this showed contrary intention to create joint tenancy ..... 24 ANTI-LAPSE PROVISIONS IN A WILL ........................................................................................................................................ 24 RE DAVIDSON (1979)(NS)- anti-lapse provision in a will .................................................................................................... 24 RE COUSEN’S WILLS TRUST (1937)-when anti-lapse provision gives gift to someone else who is dead b4 the T ............. 24 RE GREENWOOD (1912)- language used to avoid a lapse .................................................................................................. 25 ADEMPTION ............................................................................................................................................................................ 25 CHURCH V HILL (1923)(SCC)................................................................................................................................................ 25 TREBETT VV ARLOTTI- WOOD (2004)(BCCA)- ademption of specific/general legacies ...................................................... 25 RE CLEMENT ESTATE (2007) (NSSC)- when gift gets destroyed before T death................................................................. 25 RE SWEETING (1988)- when real property is adeemed & becomes personal property..................................................... 26 RE DEARDEN ESTATE (1987)(MAN)- K unenforceable either by or against T= no ademption ........................................... 26 RE PYLE (1985)- what you need to rule out Lawes ............................................................................................................. 26 ABORIGINAL ESTATES ............................................................................................................................................................. 27 PROVONOST V CANADA (1985) (FCA)- AB interest ............................................................................................................ 29 DISCLAIMER ............................................................................................................................................................................ 29 IN THE ESTATE OF BRANNAN (BCCA)(1991)- acceleration allowed by courts.................................................................... 29 DE LA GIRAUDIAS V LOUIS DE LA GIRODAY TRUST (BCSC)(1998)- acceleration not allowed............................................. 30 RE IN THE ESTATE OF CREIGHTON (2006)(BCSC)- acceleration happens; factors to consider when deciding accelera .... 30 RE GRUND ESTATE (1998)(BCSC)- how to use disclaimer to solve errors .......................................................................... 30 ABATEMENT – when estate doesn’t have enough $ to do what will says ............................................................................. 31 RECTIFICATION – fixing a mistake in a will IE error arising from a mistake ............................................................................ 31 CLARKE V BROTHWOOD (2006) (ENG)- example of rectification of a clerical error........................................................... 32 RE MORRIS (1971)- court of probate & court of construction working together to fix an error ....................................... 32 RE VERITY (2012)(BCSC)- deleted words and allowed direct evidence of intention .......................................................... 32 RONDEL (2011)(ONCA)- evidence of intention at construction stage *narrow approach taken by the court* ................ 32 BALAZ V BALAZ (2009) (ON SC)- tax avoidance is legal and may be supported by rectification ........................................ 32 MCPEAKE V CANADA (BCSC)(2012)- explains rectification................................................................................................. 33 RECTIFICATION- T SIGNING THE WRONG WILL ...................................................................................................................... 33 4 MCDERMID ESTATE (SK)(1994)-Signing another will by accident- court orders last will prepared for sig + last will attached= probate .............................................................................................................................................................. 33 ESTATE OF DALE (2012) (AUSTRALIAN)- signing another’s will by accident....................................................................... 33 CONSTRUCTION– interpreting provision in a probated will that is ambiguous ..................................................................... 34 PERRIN V MORGAN (1943)(ENG HL)-example of evidence of surrounding circum ........................................................... 34 HAIDL V SACHER (1980)(SASK)- when using “ordinary meaning” rule of construction, look at ordinary meaning in light of surrounding circum *one approach to interpretation* ................................................................................................ 34 LAWS V RABBIT (2006)(BCSC)- only proceed w/ construction if intention can’t be determined from the plain meaning of the words used in the will- armchair approach discussed *one approach to interpretation* .......................................... 35 WILSON V SHANKOFF (2007)(BCSC)- application of Haidl v Sacher ................................................................................... 35 RE THE ESTATE OF MURRAY (2007) (BCSC)- if want to exclude extrinsic evidence of T intent use this case .................... 35 CONSTRUCTION- MISTAKEN INCLUSION AND OMISSION ...................................................................................................... 35 RE DAVIDSON (1979)(ON HC)- direct extrinsic evidence is admitted – principle of falsa demonstratio ........................... 35 RE MCEWAN ESTATE (BCCA) (1967)- strict approach used, courts cant fix errors by speculation .................................... 35 CONSTRUCTION- PROPERTY ................................................................................................................................................... 36 RE MERIER (AB)(2004)- T gives land in will he doesn’t own ............................................................................................... 36 IRELAND V RETALLACK (2011) (AUST)- if T doesn’t own asset can still gift it..................................................................... 36 CONSTRUCTION- PEOPLE ........................................................................................................................................................ 36 AMYOT V DWARRIS (1904)- eldest son means first born son ............................................................................................ 36 CHILDREN AND NIECES ........................................................................................................................................................... 36 RE SIMPSON ESTATE (1969)(BC)- children gifted in the will ............................................................................................... 37 LANG ESTATE (BCSC) (2011)- children gifted in the will ..................................................................................................... 37 CONSTRUCTION- PER STIRPES ................................................................................................................................................ 37 RE KARKALATOS ESTATE (1962)(SCC)- applied per stirpes division .................................................................................... 37 RE CLARK ESTATE (1993)(BCSC)- per stirpes word used but didn’t go w/ T intentions ..................................................... 37 DICE V DICE ESTATE (ON)(2012)- what to do when word per stirpes and issue used 2gether .......................................... 37 CLASS GIFTS ............................................................................................................................................................................ 37 MILTHORP V MILTHORP (2000)(BCSC)- test for class gifts ................................................................................................. 38 RE HUTTON (HC)(1983)- found to be class gift ................................................................................................................... 38 CONSTRUCTION- CLASS CLOSING ........................................................................................................................................... 38 IN RE BLECKLEY (1951)(CA)- summarizes diff categories of class gifts ............................................................................... 38 SHORROCK ESTATE V SHORROCK (MAN)(1996) ................................................................................................................. 39 RE CHARITON ESTATE (MAN) (1918) .................................................................................................................................. 39 INCAPACITY PLANNING ........................................................................................................................................................... 39 POA – dealing w/ POA Act ...................................................................................................................................................... 40 5 MCLULLEN (2006)(BCSC)- POA must be exercised w/ the instructions of the donor unless the donor is incapable ........ 41 EASINGWOOD V COCKROFT (2013)(BCCA)-Attorney creating a trust isnt considered making a testamentary doc ......... 41 HOUSTON V HOUSTON (2012)(BCCA)- if 2 POA’s look to intention to see if 1st one is revoked ........................................ 41 REPRESENTATION AGREEMENTS – dealing w/ adults personal and/or health care and/or limited financial affairs ............ 42 ADVANCE DIRECTIVES – sets out decisions in a doc that bind medical caregivers ................................................................ 43 COMMITTEESHIP – PATIENTS PROPERTY ACT (PPA) .............................................................................................................. 44 O’HAGAN (BC)(2000)- test of reasonable and prudent person of business, ok for C to take tax-planning steps .............. 45 BC V BRADLEY ESTATE (2000) (BCCA)- use this if you want C gift to fail ........................................................................... 45 CAPACITY + RELATED TOPICS .................................................................................................................................................. 46 VOUT V HAY (1995)(SCC)- knowledge and approval & UI & suspic circum & capacity ...................................................... 46 BANKS V GOODFELLOW (1870) (ENG)- Capacity test ......................................................................................................... 46 ROYAL TRUST COMPANY (1974)- can lack capacity in managing own affairs but can still have capacity to make a will .. 47 RE THE ESTATE OF BOHRMANN (1938)- found to lack capacity and one provision of codicil struck down ...................... 47 KEY & ANOR V KEYS & ORG (2010)(ENG)- “golden rule” for making will for someone old and/or ill ................................ 47 SHARP AND BRYSON V ADAMN AND ADAM (EWCA)- found T lacked capacity ................................................................. 48 PARKER V FELGAT (1883)- capacity at execution stage not as imp as capacity at time of giving instructions .................. 48 PERRINS V HOLLAND (EWCA)(2010)- court affirms Parker is still good law ....................................................................... 48 HALL V BENNERR ESTATE (2003)(ONT CA)- lawyer not making will b/c thinks T doesn’t have capacity ........................... 48 PUBLIC TRUSTEE V GILL (2001) (NEW ZEALAND)- duty of lawyer to make a will where capacity is doubted ................... 49 WINTLE V NYE (1959) (ENG)- knowledge and approval L don’t take residue of will you made ..................................... 49 RUSSEL(BCCA)- Knowledge and Approval-- T must know general amount of residue to have knowledge and approval . 49 MADDESS(BCCA)(2009)-knowledge and approval—language difficulties alone doesn’t mean don’t have knowledge.... 49 LASZLO V LAWTON (2013)(BCSC) – knowledge and approval- principle............................................................................ 49 UNDUE INFLUENCE ................................................................................................................................................................. 49 WINGROVE V WINGROVE (1885)- UI= coercion ................................................................................................................. 50 CRAIG V LAMOUREAUX (1920)(SCC)- case of UI................................................................................................................. 50 BOLIANATZ ESTATE V SIMON (SKCA)(2006)- fraud ............................................................................................................ 50 TRANSFERS OUTSIDE OF A WILL ............................................................................................................................................. 51 JOINT TENANCIES .................................................................................................................................................................... 51 PECORE V PECORE (2007)(SCC)- did he intend to a gift a right of survivorship?................................................................ 51 MADSEN ESTATE V SAYLOR (2007)(SCC)- application of Pecore- but diff result ................................................................ 51 RICE V RICE (2012)(BCSC)- P of RT can apply to dealings w/ real property ........................................................................ 52 TRUSTS .................................................................................................................................................................................... 52 MORDO V NITTING (2006)(BCSC)- trusts are a valid way to disinherit kids ....................................................................... 52 6 INSURANCE AND PLAN DESIGNATIONS .................................................................................................................................. 53 INSURANCE ACT BC ............................................................................................................................................................. 53 PLAN DESIGNATIONS- WESA .................................................................................................................................................. 54 NATIONAL TRUST V ROBERSHAW (BCSC)(1986)- RRSP designation may be viewed as an inter vivos gift ........................ 55 Re Bottcher Estate- current law is a general revocation clause won’t revoke plan designations ..................................... 55 MacInnes v MacInnnes (SCC)(1935)- WESA provisions came in after this case ................................................................. 55 Desharnais v TD Bank- Attorney can’t alter or revoke the planholders B .......................................................................... 55 ROBERTS V MARTINDALE (BCCA)(1998)- no automatic revocation of insurance designation on divorce......................... 55 LADNER V WOLFSON (BCCA)(2011)- good conscience constructive trust test .................................................................. 55 RICHARDSON V MEW (2009)(ON CA)- former spouse is entitled to life ins proceeds if B hasn’t been changed .............. 56 WILLS VARIATION CLAIM ........................................................................................................................................................ 56 MCCREA V BARRETT (BCSC)(2004)- Stepchild cannot apply for a variation of a will ......................................................... 57 TATARYN V TATARYN (1994)(SCC)- test for WVA ............................................................................................................... 57 BRIDGER (2006)(BCCA)- example of moral obligation working to give a spouse who has enough even more ................. 58 SAUGESTAD (2008)(BCCA)- example of moral obligations of kids trumping spouse ......................................................... 58 PICKETTS V HALLS ESTATE (2009)(BCCA)- large award to CL spouse based on moral obligations ..................................... 58 WALDMAN V BLUMES (2009)(BCSC)- adult independent children- moral oblig ................................................................ 59 CLUCAS V ROYAL TRUST CORP (1999)(BCSC)...................................................................................................................... 59 MCBRIDE V VOTH (2010)(BCSC)- Adult Independent children bringing a claim against each other.................................. 60 MAWDSLEY (2012)(BCCA)- using fraudulent conveyance act to set aside inter vivos trust fails ....................................... 60 HARVEY V HARVEY (1979)(BCCA)- restrictions on disposing of shares- K restrictions ....................................................... 60 PUBLIC GUARDIAN AND TRUSTEE .......................................................................................................................................... 61 ADMINISTRATIVE THINGS: - Both executor and administrator will be referenced as the personal representative - So in CDN title to assets go to personal representative then they distribute the title to the listed B - Personal rep has to pay debts, deal w/ court and distribute assets and once everything is dealt w/ they get discharged by the court and have no more personal responsibility - Probate is imp b/c need grant of probate to be able to go to banks, land title ect. deal w/ assets - Keep in mind: personal rep has title to ALL THE ASSETS- they can easily run off w/ them and not distribute them according to will so personal rep has to be trustworthy - If you want to vary the will- have 180 days from the date grant of probate is issued by the court - If you find a later will can go to court ANYTIME w/ latest will. If court finds 1st will is invalid and then go recover money from 1st will distribution b/c have to redistribute HOW TO APPLY FOR PROBATE: - Grant of probate (if die w/ will)/ grant of administration (die intestate) - Process of getting grant of probate or grant of administration (a) Give notice to beneficiaries (b) Set out assets in estate (c) Have to give court will or proof there is no will (d) Give affidavit that sets out who the ppl are under the will 7 (e) Give notice to ppl who aren’t under the will but might challenge the will (f) Give notice to intestate heirs (ppl who would get the will if I died w/o a will) - Document gets filed in court and grant is issued by chambers PROBATE FEES: - When application made to court for a grant of probate of a will probate fees are payable - Fees calculated by reference to the gross value of the estate - Possible for executor to deal w/ some types of property w/o the need for a grant of probate MAIN FEATURES OF A WILL - It is completely revocable until your dead or lose capacity to make a will - Ambulatory: applies to property acquired after the will is made - A document that has no effect at time its made effect only at time of death - B has no legal rights- can be cut out, changed ect. - Formal doc isnt necessary a req for a will- sometimes instructions will do - Note: holograph wills so wills made in writing of the will maker is not valid in BC but WESA might permit holograph wills that show the intention of the will maker – s. 58 - Testamentary freedom of the will maker PRESUMPTION OF DEATH AND SURVIVERSHIP We have Presumption of Death Act- deals w/ when you don’t know if person is dead o Can obtain a declaration of presumed death where no body is located o Can appoint a curator to manage missing persons property in meantime It is possible to obtain a declaration of presumed death when no body is located SURVIVORSHIP Presumption of common law: the younger person died last of the 2, older person died first WESA eliminates the common law presumption that the youngest dies last WESA deals w/ survivorship 5 (1) If 2 or more persons die an order of death uncertain, unless a contrary intention appears in an instrument, rights to property must be determined as if each had survived the other.- A and B die together, for A’s estate presume B died first, for B’s estate presume A died first purpose of this is to avoid unnecessary double probate + admin of 2 estates (2) If 2 joint tenants die together and order of death uncertain then each person is presumed to have held their interest in the jointly owned property as tenants in common unless a contrary intention appears in an instrument - Result is that each deceased person would dispose of their half interest in their own estate – w/ this rule there is severance so you don’t have to see who survived who S. 6 OF WESA - If property passes in the event that a B dies b4 or at the same time as another person or dies in circum where don’t know who died first, the event which triggers the operation of the disposition of the property is presumed to have occurred - IE property passes if B dies before someone -A and B die together. Will says: my estate to C if B dies before me (A). Result: C takes the gift, B is presumed to have died before A S. 9 OF WESA- SURVIVAL OF BENEFICARIES - If gift is conditional on B surviving someone and the order of death of B and person is unknown, the B is deemed to have died before the other person. -IE: A and B die together. Will: to B if B survives me (A). B loses gift b/c B presumed to have died first -If property is left to 2+ B or to the surviving B and all die at same time or in circum where uncertain who survived the other, unless contrary intention appears in instrument, the property must be divided into as many equal shares as there are B, and the shares must be distributed respectively to those persons who would have been entitled to a share in the event that each of the B had survived. 5 DAY SURVIVAL RULE (WESA) – if want to get the estate B MUST survive person by 5 days to take benefit 10 (1) A person who does not survive a deceased person by 5 days, or a longer period provided in an instrument, is conclusively deemed to have died before the deceased person.- BENEFICIARY MUST SURVIVE 5 DAYS TO TAKE THE BENEFIT -This presumption only operates if will is otherwise silent and there is no contrary intention to this survivorship rule applying (2) If 2 or more persons hold property as joint tenants, or hold a joint account, and (a) in the case of 2 persons, it cannot be established that one of them survived the other by 5 days, 8 (i) one half of the property passes as if one person survived the other person by 5 days, and (ii) one half of the property passes as if the other person referred to in subparagraph (i) had survived the first person referred to in subparagraph (i) by 5 days, and (b) in the case of more than 2 persons, it cannot be established that at least one of them survived the others by 5 days, the property must be divided into as many equal shares as there are joint tenants or persons holding the joint account, and the shares must be distributed respectively to those persons who would have been entitled to a share in the event that each of the persons had survived. (3) This section does not apply to the appointment of a personal representative in a will.. S. 8 WESA -Child conceived before 5 death but born after and living at least 5 days inherits RE CYR (2006)(BCSC)- presumption of death held that in order to get an order of presumption of death it had to be shown on a balance of probabilities that the person was dead. In this case the person for whom the order was sought might have been murdered or might have decided to disappearthis wasn’t enough for court so they refused the order RE LAW (1946) (BCSC)- survivorship Wife and husband died and couldn’t determine order of death. Died in intestate (no wills) The Act was applied the one dealing w/ survivorship at that time but it was subject to the provisions of the Insurance Act. According to Insurance Act it was presumed that the beneficiary so the wife died before her husband the insured. The policy didn’t name an alternate beneficiary. The proceeds were paid to the husband’s estate. The insurance proceeds did become a part of the husband’s estate BUT their destination cont’d to be governed by the Insurance Act not by the estate. This was viewed as a controversial decision. INSURANCE ACT PRESUMPTIONS - B always dies before the insured person- s. 83 of Insurance Act - If no other named B to the policy who survives then the insurance proceeds fall to the insured’s estate – insurance act s. 63(1) if the insured has a will it forms part of the residue - Insurance payout doesn’t go through the will or the estate its separate THE DECEASED’S BODY - Responsibility of disposing of body rests w/ personal rep - Written directions by the T as to preference to disposal is binding on personal rep - This is subject to criminal code of Canada – guilty of an indictable offence if improperly interfere w/ human remains or neglects to perform the burial of human remains- CC s. 182 NATURE OF A WILL A. TESTAMENTARY OR INTER VIVOS BIRD V PERPETUAL EXECUTORS (1946) (AUST)- must have sufficient intention to execute a doc for it to be testamentary Doc executed under seal from D saying that he is indebted to the B for rent and board and I direct my executors to pay B $X per week to the date of my death This is a testamentary doc but it needs to conform w/ the Wills Act Where a doc is made to depend on the event of death for its effect = testamentary doc Not testamentary if the doc takes effect immediately upon its execution even though the enjoyment of the benefits are postponed till the death of the person HUTTON V LAPKA ESTATE (1991) (BCCA)- sets out test for determining if testamentary Note in which R promised to pay deceased $X and note said if R dies my wife will pay it from my estate and if D dies then K is null and void. This was not a testamentary doc – note had immediate effect from date of execution Test for whether something is testamentary: If person executing a doc intends that it shouldn’t take effect until after his death and it is dependent on his death for its vigour and effect “vigour and effect”= applicable to the instrument itself not the result to be obtained by the instrument 9 CONDITIONAL WILLS RE HUEBNER (1974) (MAN) – rule for determining if conditional or not will made saying “in the event of my death on this trip…” 2.5 yrs after trip dies Valid will. It wasn’t conditional. “on this trip”- refers to the occasion for the making of the will not a condition for its operation Rule: if the language used in the will can by any reasonable interpretation be construed to mean that the testator is referring to the disaster and the period of time during which it may happen as the reason for making a will = not conditional So if T references trip as a period of danger which is reason why T made will= not conditional RE GREEN ESTATE (2001)(NFLD)- “in the event something should happen to both of us” Will says “in the event something should happen to both of us” There was a condition on this doc which is the death of both husband and wife Don’t look at extrinsic evidence in construing whether a will is conditional on happening of something if words used in the doc are clear. If words used in doc don’t clearly express a condition then extrinsic evidence including evidence of surrounding circum + intent of T can be considered use this as means of determining effectiveness of the doc not the effect of the words 2 OR MORE TESTAMENTARY DOCS - Common law said can’t have 2 or more wills Now we can generally ppl do when they have assets in diff countries DOUGLAS V UMPHELBY (1907) (NEW SOUTH WALES)- highlights common law approach Testamentary doc governed by Scottish law which disposed of his British property. Another testamentary doc governed by New South Wales law for Australian property. This case says can have multiple docs but can only have 1 will RONDEL V ROBINSON ESTATE (ONCA) (2011)- when construing will look at words in the will Will in Spain for European property/ D makes new will in CDN revoking other wills but doesn’t tell Lawyer about property in Europe or Spanish Will CDN will drafted in accordance w/ the D instructions and lawyer went through clause by clause and explained to T he was revoking all other wills General rule at common law: in construing a will, the court must determine the T intention from the words used in the will and not from direct extrinsic evidence of intent DELEGATION OF WILL MAKING POWER - Common law: person cannot delegate will making power to anyone else – T has to do everything Central problem w/ delegation of will making powers is it no longer shows T intention TASSONE V PEARSON (2012)(BCSC) Gave power in will to distribute assets as seen appropriate by executor Power can be given in trust or w/o trust- if no trust then bare power and gift receiver doesn’t have to exercise it 3 diff types of power (a) General- can appoint in favour of anyone in the world (b) Special- power to appoint from a specified generally small group (c) Hybrid – power to appoint in favour of anyone in the world w/ a few exceptions SOLICITOR’S RESPONSIBILITIES AND LIABILITIES - Lawyer should find out: a. How much property T has b. Kids/spouses T has 10 - c. Are all the B alive or dead, their respective ages Lawyers are liable to will makers and B = owe them a duty of care There is only one original Will signed- whoever keeps it better keep it safe and make copies of it In BC have wills registry- can file notice saying will signed on X date and will kept on X or fill and will makers name and DOB. Copy of will isnt filed. RE WORRELL (ONT) (1969) – Duties of lawyer in drafting a will L prepares will for someone hes never acted for and never met/ old T/drew will w/o knowledge of size of estate/ large portion of estate going to person consulting L/made changes from initial instructions w/o consulting about changes/ no record kept of matter= L found negligent Law as to L duty in drafting a will: a. Receive instructions immediately from T himself rather than 3rd party esp if 3rd party is interested in assets b. L should attend personally when the will is executed – don’t give to 3rd person to get executed c. Competent lawyer finds out extent of assets d. Be alerted if taking instructions from major beneficiary instead of T and satisfy himself thoroughly that the instrument expressed the real testamentary intentions of a capable testator prior to its being executed de facto as a will at all e. Can’t ignore T written instructions f. Can’t have Beneficiary get will executed in these circum (ie where haven’t met T or got instructions from him) g. Any lawyer drawing a will should make full docket entries in regards to all the details esp when dealing w/ a elderly testator. Always factor in with long term client or walk in (in this case walk in) Assess the will maker- are they old, weak, sick couple- diff standards in terms of their capacity Try to independently verify the info you’ve been given – search up house ect. WHITTINGRAM V CREASE & CO (1978)(BCSC)- L can owe duty of care to potential B’s Wills Act says that a witness to a will cannot be a beneficiary or their spouse and if it is the gift is void/ Here one of the W to the will was the B’s wife. Lawyer found to be negligent L knew that the W signing was the B’s wife L negligent in asking the B wife to witness the will and as a conseq of that negligence the P has suffered loss which was a reasonably foreseeable conseq of his negligence. L knew about potential loss the P would suffer since P was suppose to get a large portion of the estate. The lawyer can owe a duty of care to the B of a will he draws up Hedley Byrne: law will imply a duty of care when a party seeking info from a party possessed of a special skill trusts him to exercise due care and that party knew or ought to have known that reliance was being placed his skill and judgment WILHELM V HICKSON (2000) (SKCA)- supporting L being held negligent by B’s T farmer incorporated company and sold farm to company/ L who provided services to T before in regards to the company drafted his will/ will made gifts of the land but T didn’t own the lands they were owned by the company Case looks at reasons for putting liability on the L by B when they get screwed over b/c L was negligent in drafting the will and reasons why we shouldn’t Judge in White v Jones (HOL) said: in cases where disappointed B the courts should extend to the intended B a remedy under the Hedley Byrne principle by holding that the assumption of responsibility by the solicitor towards his client should be held in law to extend to the intended B who as the L can reasonably foresee may as a result of the L negligence be deprived of his intended legacy in circum in which neither the T nor his estate will have a remedy against the L. Such liability will not arise in cases in which the defect comes to light before the death of the T and T leaves will as is or otherwise cont’d to exclude the previously intended B from the benefit. L and T can exclude or limit liability though. Court concludes principle from White v Jones should be recognized in Sask too INTESTATE SUCCESSION – WHEN A PERSON DIES W/O A WILL - When intestacy kicks in: Person has no will 11 If will doesn’t provide for all the property Will isnt comprehensive – will fails B has died and no successor B enlisted Failed gift falls into residue and the person in residue is dead then intestacy WESA - If a person dies w/o a will and has a spouse not no surviving descendants (kids, grandkids, great grandchildren) the intestate estate goes to spouse – (s. 20) - 21(1)- net value of the intestate estate means the fair market value minus the household furnishings distributed to a spouse and minus charges, debts, funeral and admin expenses and fees under the Probate Fee Act – b/c estate pays that - S. 21(2)- If a person dies w/o will leaving a spouse and surviving descendants, the spouse gets: (a) The household furnishings (personal property usually associated w/ the enjoyment by the spouses of the spousal home) AND (b) A preferential share of the intestate estate in accordance w/ (3) or (4) (3) if all the descendants are descendants of both the deceased and the spouse (children they had together) the preferential share of the spouse is $300,000 or a greater amount if prescribed (4) if all the descendants aren’t the kids of the deceased and spouse (so stepkids) the preferential share of the spouse is $150,000 or a greater amount if prescribed. - If the net value of the intestate estate is less than the spouse’s preferential share (either $300,000 or $150,000) the intestate estate must be distributed to the spouse- 21(5) - If the net value of the intestate estate is the same as or greater than the spouse’s preferential share ($300,000 or $150,000) then the spouse has a charge on the intestate estate for the amount of the spouse’s preferential share and the residue of the intestate estate after the satisfaction of the spouse’s preferential share must be distributed like this (i) one half to the spouse and (ii) one half to the intestate’s descendants (s. 21(6)) - If theres 2 or more persons entitled to a spousal share they share the spousal share in the portions to which they agree and if they can’t agree the court determines the shares – (22(1)) - - - - SPOUSAL HOME Spousal home: land where deceased person and his/her spouse were ordinarily resident – s. 1 the provisions in WESA applying to a spousal home only apply if the intestate estate includes a spousal home and a spousal home isnt the subject of a gift or otherwise disposed of (IE joint tenancy and D dies and goes to other personthis doesn’t go through will crap)- s. 26 if the value of a spouse’s interest in the estate is equal to or greater than the value of the spousal home, the spouse may elect to take the home to satisfy in whole or in party the spouse’s share of the estate- s. 26(2) – so if SH worth less than $150 or $300 spouse can have the house If value of the spousal home exceeds the value of the surviving spouse’s interest under s. 21 (either $150,000 or $300,000) = the surviving spouse may purchase the remainder of the deceased persons interest from the personal rep (s.31 (1))- spouse has option to buy spousal home from estate surviving spouse can purchase the deceased’s interest in the spousal home even if spouse is personal rep of estate or trustee (s. 31 (2)) court may subject to any terms or conditions the court considers appop make an order doing one or more of the following – s. 33(2) (a) vesting the same interest in the spousal home in the surviving spouse that D had (b) specifying the amount of $ the surviving spouse must pay to the Desc. to get house share (c) converting the remaining unpaid interest of the desc in the intestate estate into a registrable charge against the title to the surviving spouse’s interest in the spousal home (d) determining an interest rate (e) determining the value of the registrable charge o S. 34 talks about when registrable charge becomes due and payable- first look at prevailing residential lending practices in CDN and if none are specified then payable on the earliest of the following (a) 12 mths after the date of death of surviving spouse (b) 12 mths after the date the surviving spouse ceases residing in the spousal home (c) the completion date of the sale of the spousal house o If don’t pay charge then can take any action a mortgagee under LTA could take (34(2)) S. 33(1): first surviving spouse must apply, then court may make an order under (2) if [have to meet these all to qualify for a court order under s. 33(2)]: 12 - - - - - - the surviving spouse is ordinarily resident in the spousal home at the time of the deceased persons death assets in the estate aren’t sufficient to satisfy the interests of all descendants entitled to share in the estate- not enough $ to give spouse home + D estate court is satisfied that purchasing the spousal home under s. 33 would impose a sig financial hardship on the surviving spouse the court is satisfied that, in all the circumstances, a greater prejudice would be imposed on the surviving spouse by being unable to continue to reside in the spousal home than would be imposed on the descendants entitled to share in the intestate estate or that part of the estate that is to be treated as an intestate estate by having to wait an indeterminate period of time to receive all or part of their share of the intestate estate, and the surviving spouse has resided in the spousal home for a sufficient period of time to have established a connection to the spousal home OR the surviving spouse has a sufficient connection w/ the community/members of community in the vicinity of the spousal home to warrant an order under (2) The personal rep when applying for a grant, must notify the spouse of the right of a surviving spouse to acquire the spousal home- section 27 (1). The surviving spouse, within 180 days of the issuing of a grant, or within such further time as a court may allow, must notify the representative and those intestate successors who will be affected of his or her intent to acquire the homesections 27 (2), (3); 29. The representative must not dispose of the home within 180 days, or any extension allowed by the court- section 28. A surviving spouse who occupies the spousal home pending its purchase must pay insurance, taxes, maintenance, utilities and any mortgage payments that fall due-s.32 What if you die w/o a will but don’t have a spouse (s. 23) Distribute the intestate estate to the intestate’s descendants (children, grandchildren, great grandchildren) if no surviving descendants then to the intestates parents in equal shares or to the intestates surviving parent if no surviving descendant or parent to the descendants of the intestates parent(s) if no surviving descendant, parent, or descendant of a parent then to grandparents or descendants of grandparents if no surviving descendant, parent, descendant of a parent (sibling), grandparent or descendant of a grandparent (uncles,aunts) but the then surviving great-grandparents or descendants of great-grandparents 23 (3)- limits to the 5th degree of relationship- can’t distribute further than that. But this limitation doesn’t affect the right of an intestate’s descendants to inherit the estate even though they are more than 5th degree of relationship (4)- IF PAST 5TH GOVT GETS IT Half relatives have same rights as those full relatives (IE stepkids ect.) (23(5)(b)) When distributing to descendants the property must be divided into a number of equal shares equivalent to the number of surviving descendants and deceased descendants who have left descendants surviving the person (s. 24)- in the generation nearest to the intestate that contains one or more surviving members. IE: I has 3 Descendants (A B and C) each of same generation so each get 1/3 share. IE: 3 Descendants (A B C)- C is dead and has 2 kids then A and B get one share each. C share goes to both gets who get 50/50 Per stirpes distribution: distribution by the branch. So first generation gets equal shares but if someone dead from 1st generation and has kids then kids take parents share and split it Per capita distribution: 2 Descendants, 1 dead, both descendants have 2 kids each. Estate divided equally b/w all the generations and it counts the number of heads involved so it would be 5 ppl RE KISHEN SINGH (BCSC) (1957) – half siblings – children of half siblings take as though full nieces/nephews of the intestate - K died, parents died before him. Left one sister +2 bros. A is half sister- same mom but diff dads, - The children of a half sister who is deceased will take as their mother would have taken under the Act- doesn’t matter that she is half sister and not whole sister - Half siblings viewed in same degree as full siblings 13 RE FORGIE (1948)(MAN) – the right of a descendant or their child to inherent under a intestacy can’t be given to anyone other than those ppl given the right under statute - F died intestate. Survived by a sister and a brother. Another brother died before F which is J. J is survived by wife + kids who are alive. - Can the widow of the sibling have any claim to the portion of the share her dead husband would have taken if he had survived the brother?- no - So where intestacy rules say that children of brother/sister take if brother/sister is dead- In these situations the share goes to kids directly not the kid’s dads estate - - SPOUSES- WESA s. 2(1) 2 ppl are spouses if they were both alive immediately before a relevant time [relevant time is the date of death of one of the persons] and they were married to each other or they had lived with one another in a marriage like relationship including a marriage-like relationship b/w persons of the same gender, for at least 2 yrs [this includes common law/ gf]- (2(1)) 2 ppl aren’t spouses if in the case of a marriage they live separate and apart for at least 2 yrs with one or both of them having the intention formed before or during that time to live separate and apart permanently or an event occurs that causes an interest in family assets as defined in Part 5 of the Family Relations Act to arise OR in the case of a marriage-like relationship one or both persons terminate the relationship (2(2)) ADOPTION Once child is adopted the adoptive parents become the parent of the child (adoption act s. 37(1)) If child is adopted the child isnt entitled to the estate of his natural parents except through the will of the natural parent (WESA s.3) SOURAYA V KINCH (2012)(BCSC) – determining if someone is a spouse When determining if someone comes within the definition of a spouse these are the steps: (1) How do they view themselves?- Whether the parties subjectively intended to live together in a marriage like relationship which is a relationship of psychological and emotional union that one associates w/ marriage – don’t just focus on whether their financial and living arrangements were intertwined. Various objective factors may be considered in attempting to ascertain the intentions of the parties. The qst of whether the parties were living together in a marriage like relationship doesn’t turn solely upon their subjective intentions Whether someone is in a marriage like relationship depends in part on how that person views the relationship (subjective) Starting point for the analysis is whether if asked the ppl in the relationship would consider themselves to be in a committed long term financial and moral relationship – if yes then marriage like 1. Can look at objective intentions such as: live together/apart, share finances/ did they refer to themselves as spouses/did they share their finances and bank accts/share vacations Austin: neither capacity to legally marry nor financial dependence upon the deceased are req in order to come within the def of spouse - Very holistic approach to determining if someone is a spouse and consider all appop factors w/o any particular factor being considered determinative - Molodowich: the list of generally accepted characteristics of a marriage like relationship are: o Shelter- live together? Sleeping arrangements? Anyone else live with them? o Sexual and personal behaviour?- sexual relations? Attitude of fidelity? Feelings towards each other? Communicate on a personal level? o Services: conduct and habit in regards to prep of meals/ washing clothes o Social: participate together or separately in neighbourhood/community activities? Relationship and conduct of them towards their family members? o Societal- attitude + conduct of the community towards each/couple o Support (economic): financial arrangements towards the necessaries of life/ arrangements concerning the acquisition and ownership of property o Children: what was the attitude and conduct of the parties concerning children 14 GOSBJORN V HADLEY (2008)(BCSC)- Are we spouses? - F: married have 2 kids separated/ D and G enter into a 12 yr common law relationship/ D dies intestate and commits suicide/ at time of death D and G were living apart, G moved into basement w/ her daughter and took half her things from mutual home to basement, D died few days later. Court found D and G were common law spouses at time of D’s death Common law relationships which have ended (not common law spouses anymore) VS those where the parties are separated but there is continued uncertainty about the future of the relationship (still common law spouses)- this case falls into 2nd one Hodge: parties cease to live and cohabit in a marriage like relationship when either party regards the relationship to be at an end and by his conduct demonstrates in a convincing manner that this particular state of mind is a settled one. Some absences from the matrimonial home doesn’t result in no more cohabitation Witnesses testified to help court determine D intention - All together evidence falls short of demonstrating in a convincing manner that he had a settled intention to end his relationship Fact that D committed suicide within days of the separation and following his visit to the emergency room= D had an unsettled state of mind neither party demonstrated that he or she had a settled intention to end the relationship = still lived in marriage like relationship until D death – court finds that separation is a difficult and confusing time and ppl may be undecided at the time = difficult to ascertain ppls true intentions of whether relationship is ended EXECUTION OF WILLS THE MAKING AND ALTERNATION OF WILLS - req for a valid will – WESA s. 37 [have to meet all these req] in writing signed at the end by the will maker, or the signature at the end must be acknowledged by the will maker as his, in the presence of 2 or more witnesses present at the same time will maker’s signature includes a signature made by another person in the will maker’s presence and by the will maker’s direction and the signature may be either the will maker’s name or the name of the person signing (s.1) signed by 2 or more of the witnesses in the presence of the will maker have to be 16+ and mentally capable of making a will (s. 36) if you’re a member of the CDN forces while placed on active service under the national defence act or a member of the naval, land or air force = doesn’t matter what age you are when will made (s. 38) - BC doesn’t allow holograph wills- wills in the handwriting of willmaker and signed by him - S. 58 WESA- the court has a lot of discretion in curing deficiencies If the court finds that a record, document or writing or marking on a will or doc represents the testamentary intentions of a deceased person Even if the making, alternation or revival of a will doesn’t comply w/ this Act the court may order that a record/doc/writing/or marking on a will or doc be fully effective - Can be argued that holograph wills may be declared valid under s. 58 - The cases below will give us direction on how BC might interpret s. 58 WITNESSES - Witnesses have to be 19 yrs + (s. 40(1) WESA) - If a witness to the will receives a gift under it the gift may be void under s. 43 (s. 40(2)) GEORGE V DAILY (1997) (MAN) – look at this for how BC might interpret s. 58- reasons why we have formality req for wills - Accountant sends letter to Lawyer w/ D instructions for will-court finds: D letter to lawyer didn’t embody testamentary intention – don’t even know if D knew what was in the letter 15 o o o o Main purposes or functions of the formality req of the wills act (1) The evidentiary and cautionary functions in which the req of writing, signature, and attesting witnesses impress the participants w/ the solemnity and legal significant and provide the court with reliable evidence of testamentary intent and of the terms of the will (2) formal req result in a degree of uniformity in the organization, language and content of most wills (3) The protective function in which the formal req may protect the T from imposition or fraud Courts ability to cure deficiencies - this provision cannot make a will out of a doc which was never intended by the deceased to have testamentary effect. Testamentary intention means there must be an deliberate or fixed and final expression of intention as to the disposal of his property on death – not every expression made by a person respecting disposition of their property on death has testamentary intention to it If 3rd party doc- so not a doc that T itself made- if its testamentary has to atleast be made at the request of the T or with his knowledge that this his final expression of disposition of property RE NERSTINE ESTATE (2012) (SASK) – look at this for how BC might interpret s. 58- signature- at least attempt to execute formal will o o doc not signed by will maker and no signatures of witnesses --- Will not valid There must at least be some attempt at execution of a formal will This is where the court wouldn’t save you RE WAGNER (SASK) (1959) –signature- envelope signed instead of will - instead of signing will T signed envelope sealed it and wrote “last will and testament. Found that the signature of the T on the envelope intended by the T to be his signature to the will – court found it was signed there for the purpose of authenticating his will Court came to this conclusion because: Sig on the envelope was the last act of the T in making his will, so after everything done and signed by witnesses he did this/ Why did he sign envelope if he wasn’t meant to be for the authentication of his will/ Small estate under 20 grand/ no indication of fraud TAYLOR v HOLT (TENN CA) (2003)- signature- USA case on will signed on comp o T prepared a will on a computer and each witness swore an affid stating that the T used his comp affixed his stylized cursive sign in my sight and presence. Court held this was a valid signature o The testator printed a copy of the will w/ the comp sig and that doc was then validly witnessed RE BRADSHAW ESTATE (1980) (NB)- signature- 2 diagonal strokes enough to= signature - when tried to sign T made only 2 diagonal strokes and a further mark, marks = signature Clear T intended to sign doc and clear b/c of physical reasons he signed in the manner in which he did – physically wasn’t able to sign more than 2 strokes Test: were those marks by the T placed there as a personal act or acknowledgment as such by him to verify the making of the will as his own act RE WHITE (NS) (1948)- signature- assistance with signature- ok if someone helps - T had a stroke. Couldn’t sign his name and someone had to help him make a mark = valid sign Not a big deal T signed and was assisted by someone in front of all the witnesses PEDEN V ABRAHAM (1912) (BCSC)- signature- assistance w/ signature- “Help” with signature not ok if testator was not able to consent/object at the time - Doc helped T trace his name/ T didn’t ask doc to do this and said nothing to him/ after signing he said nothing. Doc physical condition at the moment was that he could neither accept or reject ----- the T couldn’t consent or reject help w/ signature= Will not valid HSIA V YEN-ZIMMERMAN (2012) (BCSC)- signature- unknown whether an formal req has been done correctly - 3 witnesses, one W identity is unknown and whether other W say this W sign the doc Common law principles applicable from Re Laxter: When testamentary doc appears to be regular on its face and apparently duly executed the evidence as to some defect in execution must be clear, positive and reliable 16 If a will on its face appears to be duly executed the presumption is that all acts have been done rightly Maxim omnia praesummuntur rite esse acta- expresses an inference which may be reasonably drawn when an intention to do some formal act is established; when the evidence is consistent w/ that intention having been carried into effect in a proper way; but when the actual observance of all due formalities can only be inferred as a matter of probability RE BROWN (ONT) (1954)- Witnesses- T has to sign in front of both W’s at the same time - T sign must be made/acknowledged in front of both Ws at the same time, then both Ws have to attest and sign (after T sig/acknowledgment) in the presence of the T. But W’s don’t have to sign in the presence of each other. RE WOZCIECHOWIECZ (1931) (ALTA)- witnesses- T has to be able to see the W sign - T signed will in hospital bed, one of the W signed in same room but far away/ T sick so couldn’t turn body w/o help to see the W sign/ didn’t witness signatures - will not valid Newton v Clark- if signed in same room although T couldn’t see him sign that’s good enough Tribe: signing in same room where can’t see makes it void b/c like signing in diff room Court says: doesn’t matter if in same room or not have to ask could the T by looking have seen the W sign? – in this case couldn’t b/c of physical disability RE JACKSON (BCSC) (1985)- adding a memo to a will - Will #1 made; then memorandum; then will2. Will1 did not mention the memo; will2 referenced a memo – memo admitted b/c T reviewed contents at time of execution of will and didn’t change anything Req to permit the incorporation of memos into a will, the doc to be incorporated: (a) Must be in existence at time of execution of the will (b) Must be described as then existing (c) And in such terms that it is capable of being ascertained, and (d) The will must not state that the doc isn’t to form part of it CODICILS + ALTERATIONS OF WILLS WHEN SOMEONE WANTS TO CHANGE PROVISION IN WILL THE OPTIONS THEY HAVE ARE: (1) DO A NEW WILL (2) CODICILS - These are short of revocation and a complete redrafting of a will- codicils are an alternation on the face of the will - These are separate docs in which you refer to the will and then either add/delete provisions in it - Codicils fall within the def of will in WESA so have to follow same formal executions reqs as a will (3) ALTERATIONS OF WILLS - This is when you use the will document and your crossing stuff out ect. - To make a valid alteration to a will the alternation must be made in the same way that a valid will is made (s. 54(1)) - Alternation to a will is valid if the sig of the will maker to the alteration and the witnesses to that sign of the will maker are (s. 54(2)) o In the margin or in some other part of the will opposite or near to the alteration or o At the end of or opposite to a memo referring to the alteration and written in some part of the will - 58(4) If an alteration to a will makes a word or provision illegible and the court is satisfied that the alteration was not made in accordance with this Act, the court may reinstate the original word or provision if there is evidence to establish what the original word or provision was. IN THE ESTATE OF OATES (1946) - presumption that alterations made on the face of the will were made after execution - Made will by lawyer. T wrote “and personal” b/w 2 lines. – so made a change = will valid Alterations apparent on the face of a will are to be presumed to have been made after the will was executed until evidence to the contrary is adduced Conclusion she made draft which is a will and immediately noticed made mistake and added those words - WITNESSES AS BENEFICIARIES - Gift in a will is void if its to a W to the will-makers signature or the spouse of that witness (s. 43 (1)) 17 - Keep in mind if W is B this invalidates their gift NOT THE WILL then the gift would have to be distributed according to s. 46 (lapse provision) The relevant time for determining whether one person is the spouse of another is the time when the will was made (43(2)) If gift is void under (1) then remainder of the will isnt affected (43(3)) The court may declare that a gift to a W or W spouse isnt void and is valid if the court is satisfied that the will maker intended to make the gift to the person even though the person was a W to the will (43(4)) – can use extrinsic evidence to establish T intention here (5) RE CUMMING (ONT)(1963)- Wife of B was W to will= gift invalid RE RAY’S WILL TRUST – if gift is for the benefit of a community, if member of community W will gift still valid - T was a nun in a cult. 27 nuns there. Her will left all property to nuns who are part of the cult when she dies. One of the W to the will was a nun who at the date of making the will wasn’t part of cult but was part of it when T died – gift is valid W didn’t receive any “beneficial legacy or interest within the terms of the section” Gift is for community for benefit of community- that’s what makes this case diff An attesting W can, as a member of a community, get a benefit in some way without engaging the rule that B cannot W a will. Here nun wasn’t getting it in her capacity but getting it to share w/ other members so court said that is ok RE ROYCE’S WILL TRUSTS (1959)- when determining if W has beneficial interest look at time of attestation - - T dies/ one of the executor’s dies so new executor is appointed and it is one of the W to the will/ remuneration clause provided for the payment to trustees for work done as trustees= will valid Qst should be: at the time of the will being attested is any beneficial interest given to the attesting W under the instrument the execution of which he is going to attest **so looking at time of making the will not after the will is made** Attesting witness isn’t disqualified b/c after attestation (and sometimes after death) he became interested by virtue of the appointment made of him as a trustee GURNEY v GURNEY (1855)- B W original will + codicil- codicil results in W getting a benefit - Will left estate to F and T- who didn’t witness the will. F and T were witnesses to 2 later codicils Deceased made. Codicil had effect of revoking gifts and increasing value of estate F and T get. Court found the gifts to be valid b/c the original gift was made under will not the codicil Prof: this is a wrong decision the codicil republishes the will as of the date of the codicil ANDERSON V ANDERSON (1869) – B W original will, but remedied by properly executed codicil - G beneficiary under a will to which his wife was one of the witnesses. Testator later made a codicil which was witnessed by other witnesses. The gift stands The codicil was fully executed so it had the effect of republishing the will and making it a new and original disposition – the evil that the statute intended to prevent doesn’t arise. The codicil fixed the original problem – so if mistake made w/ will where B is W but later codicil is signed by independent W then fixed mistake and gift isnt void JONES V PUBLIC TRUSTEE (BCSC) (1982)- the voided gift (when it is a portion of the residue) falls into intestacy - By his will T left specific gifts to D and S and they witnessed the will. In such a case the assets should first be apportioned and then the provision applies So then the will would first be applied so that D S and V would be allocated one third each and then the wills act would be applied and the one third allocated to D passes as on intestacy ELECTRONIC WILL - BC has enacted e-commerce legislation providing that info on a record must not be denied legal validity merely b/c it is contained in electronic form 18 - - - - The main arguments offered for excluding wills and other testamentary instruments from the scope of general ecommerce legislation are 1. Will making is a unilateral juristic act in which validity and form are closely connected 2. Sufficient safeguards against fraudulent manipulation of electronic data aren’t available o But digital sig are pretty safe o According to the ABA’s science and technology section the digital signature identifies the signed message w/ far greater certainty and precision than paper signatures and provides a high level of assurance that the digital signature is genuinely the signer’s Electronic wills still present a number of issues that would have to be resolved There has been 1 case in CDN in which an electronic text was admitted to probate – Rioux v Coulombe T committed suicide leaving a note which left instructions to find an envelope containing a computer diskette which contained a fill named the T last will It was admitted into probate under QBC civil law which permits probate of an informal doc if it contains the unequivocal last wishes of the deceased S. 46(2) of WESA is drawn from s. 19 of the Uniform Wills Act and defines document for the purposes of section 46 to include computer data that (a) Is recorded or stored on any medium or by a computer system (b) Can be ready by a person, and (c) Is capable of reproduction in a visible form This provision will probably req reassessment in the future REVOCATION OF A WILL - Can revoke will with a new will that says “I revoke all former wills…” Even if there is no revocation clause the court may still deem that the 1st will is revoked by 2nd Cant revoke a will unless you have testamentary capacity How to revoke a will under WESA go to s. 55 which says a will is revoked ONLY in one or more of the following circum: (a) by another will made by the will-maker in accordance with this Act; (b) by a written declaration of the will-maker that revokes all or part of a will made in accordance with section 37 (c) by the will-maker, or a person in the presence of the will-maker and by the will-maker's direction, burning, tearing or destroying all or part of the will in some manner with the INTENTION of revoking all or part of it;- note: specifically refers to intention so its not just the act that leads tor evocation. (d) by an order of the court under section 58, if the court determines that the consequence of the act of burning, tearing or destroying all or part of the will in some manner is apparent on the face of the will, and the will-maker intended to revoke all or part of the will. (2) A will is not revoked in whole or in part by presuming an intention to revoke it b/c of a change in circ. MARRIAGE - Under WESA marriage isnt included in the list of events that revoke a will - Before WESA provision stated that will is revoked by the marriage of the will maker CEASING TO BE A SPOUSE: - REVOCATION OF GIFTS (WESA S. 56): if T makes a gift to a person (or makes executor or trustee) who was or becomes the spouse of the T and after the will is made and before the T death they stop being spouses then the gift must be distributed as if the spouse had died before the T. This provision is subject to a contrary intention appearing in a will. This rule isnt affected be a subsequent reconciliation of the will maker and the spouse. The relevant time for determining whether a person was the spouse of the will maker is at the time the will was made and if after will is made they become spouses then relevant time is anytime after will is made and b4 spouses ceased to be spouses. RE LAWER (SASK)(1986)- 2nd will has revocation clause -Deceased left 2 wills, 1st in 1962 and 2nd in 1978. 2nd will had revocation clause “I revoke all former wills -No intention to revoke the 1st will when T made 2nd will + both wills disposed of diff property + kept 1st will w/ the 2nd will + wills aren’t contradictory- can both stand 2gether+ read both wills and having regard to surrounding circum + court DIDN’T accept evidence of direct statements made by the T -Can have more than 1 testamentary docs admitted into probate together as last will -Farris: probate of a paper may be granted of a date prior to a will w/ a revocation clause if the court is satisfied that it wasn’t the deceased’s intention to revoke the particular benefit 19 -McCarthy v Fawcett set out some principles regarding subsequent revocation clauses: (a) That a revocatory clause in a will may under particular circum be held not to be the intention of the testator so then its eliminated in the granting of probate (b) A man making a testamentary doc and those who take after him are found by his expressed intention and not by what he actually intends (c) A mere mistake on the part of the testator in inserting a revocatory clause in a testamentary doc isnt enough to eliminate the revocatory clause (d) Where a testamentary doc on its face is complete + contains a recovatory clause there is a heavy burden cast upon the P who says to court that the revocatory clause wasn’t intended to be operative (e) If evidence is admissible as to the circum under which the testamentary doc containing the revocatory clause was made, such evidence must relate to or about the time such doc was executed RE NORRIS (BCSC)(1946)- tearing of the will- no intention to revoke found T made will told H where it is/ H finds will and it is in envelope but torn into a # of pieces/ once pieces placed together it was easy to read. Court finds: the will WASN’T revoked by the act of tearing Court: only ppl in house T and H so either T unintentionally or when suffering from mental delusions he tore the will and placed it back in the box in determining whether the tearing was done w/ the intention to revoke all the surrounding circum must be considered – nature of the acts examined- Application to facts: no change in relationship b/w T and wife; doc tear in way which perfectly legible once put back together/ will put back in envelope RE ADAMS (1992)- altering will w/ pen- this may be enough to revoke will T told lawyer destroy will/ L sent T will to destroy on her own/ will found w/ considerable alterations w/ pen made on itcrossed out signature line and W signature line ect. Court: will is invalid b/c of alteration made w/ pen on it b/c signature no longer apparent so material part of the will has been destroyed so the whole of the will has been revoked by the T (key thing is that a material part of the will is destroyed w/ the pen) writing scores out initials+ sig of T and witnesses. Can see some sig but can’t tell whose Court concludes T is the one who altered the will w/ pen writing Test to determine if there has been a destruction of a material part of the will depends on whether the original words of a material part of the will are or are not apparent – if not apparent then revoked- test is if words beneath obliterations, erasures, destructions or alterations on a testatmentory doc are “apparent” if experts using magnifying glasses when necessary can decipher them and satisfy the court that they have done so LOST WILLS: - Presumption that if an original will cannot be found it has been revoked by the T- this is a presumption that can be rebutted use detailed affid explaining why presumption should be revoked when submitting for probate SUGDEN V LORD ST. LEONARDS (1876)- Lost Will – no revocation found T had access to the will and all testamentary docs (8 codicils) in one box but will was missing from there- had no copies of the will. Judge: will wasn’t revoked b/c T careful w/ will and made 8 codicils. Witness proved contents of the will – through oral testimony Where a will is shown to be in the custody of the T and isnt found at his death the presumption arises that the will has been destroyed by the T for the purpose of revoking it- this presumption may be rebutted by the facts o A lot of ppl had access to box where will was kept o Judge concluded that T didn’t take will out but a 3rd party removed it from the box If found T himself hasn’t destroyed the will then ask whether can find evidence as to its contents Then ask whether the court has before it sufficient evidence of the contents of the will o Only had witness’s evidence- W is also a B so keep in mind can be bias. She was viewed as truthful. Her evidence was corroborated w/ other evidence Prior instructions or a draft by the T or verbal declarations of what he was about to do= legally admissible as secondary evidence of the contents of the last will but this isnt conclusive evidence 20 Declarations made by a T after the execution of a will is admissible LEFEBVRE V MAJOR (1930)(SCC)- Lost Will – no revocation found - made will leaving everything to sister. Friend present when will was made. He lost the will. Will may have been burned accidently when burning other content in the T house. Will valid • There is absolute and clear evidence on the proof of contents- the evidence is absolutely clear and dependable – friend who witnessed will stated contents, stated in T letter to sister •Few weeks before death T told 2 trustworthy W that he wanted to give everything to sis •Intention or revocation rebutted RE BROOME(1969) (MAN CA)- Lost Will •If a T 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 w/ an intention of revoking it lies on the party alleging revocation DEPENDANT RELATIVE REVOCATION (AKA CONDITIONAL REVOCATION) - Conditional revocation: was there something conditional about the revocation if so then the will only has effect if the condition of the will is met A condition is attached to the revocation – ie if the condition is not fulfilled, then no revocation IN RE JONES DEC. (1976)(CA)- what to ask when faced w/ a destroyed will T had will/ told L intended to make new will/ before able to make new will dies/ Will cut into 2 parts. Was revocation conditional on new will being made? – No. She intended to revoke will but intention wasn’t conditional or contingent on making a new will Where a T mutilates or destroys a will the qsts which arise are these: o Did T do this w/ the intention of revoking it – if no then will not revoked o If yes, then ask if his intention was absolute or qualified subject to some condition or contingency? If absolute= revocation. If qualified= what was the condition? Has it occurred? Pay attention to the circum surrounding the destruction of the will to discover whether any intention that the T then had of revoking the will was absolute or qualified Concerned w/ the subjective state of mind of theT o If T intention is found to have been a qualified one subject to some condition or contingency the final qst arises – has that condition or contingency been satisfied or occurred? – if not the revocation is ineffective/ if satisfied or occurred= revocation The fact that at the time of destruction the T intended/contemplated making a new will isnt conclusive of the qst whether his intention to revoke was dependent upon his later making new will No direct evidence of the belief of T that destruction of will was necessary precondition of making an effective new will – new will had revocation clause RE SORENSON: MONTREAL TRUST V HAWLEY (1981)(BCSC)- mistaken fact can invalidate revocation if court decides revocation was conditional on that mistaken fact Makes will gifts to S and C. T thinks S and C died so makes a codicil to take out their names. But S is still alive and T didn’t know this. court: condition in new will and it is that ppl she thinks dead r dead The codicil that takes out S and C’s names from the will doesn’t operate to revoke the will There is no revocation where T mistakenly makes change to will based on misinfo or mistake If its shown a revocation is made upon a mistake of fact or law and it isnt intended by the T to take effect except on the condition of the mistake assumption being correct= revoke inoperative Side note: codicil stated recitals: “whereas this will made b/c X died”- hers referenced death of ppl 21 JOINT AND MUTUAL WILLS - Joint will: doc that 2 T sign, both signature will be on the bottom of the same doc- testamentary wishes of 2 ppl in one will – they have the same terms in there Mutual will: will where 2 ppl (usually spouses) make wills on identical terms and agree they aren’t going to change their wills A K regarding the terms of the will and revocation may be express or implied – generally easier to infer an implied K from a joint will than it would be from a separate mutual will There can be an (i) implied K stating that can’t change the will w/o the consent of the other person or (ii) express Kwhich sets out exactly the terms you’ve agreed not to change [this was Sanderson case] In the absence of an express K, it is difficult to ascertain what property the K covers. Even w/ an express K some of the terms may be ambiguous UNIVERSITY OF MANITOBA V SANDERSON ESTATE (1998)(BCCA)- mutual wills – included an express K Had mutual wills/ agreement states that after the death of either H or W the said will of the survivor will not be revoked or altered. Wife dies H made a new will w/ terms inconsistent w/ terms of the mutual will. When W died almost all her assets were held jointly w/ H so most of the assets transferred over. Will wasn’t probated b/c nothing under will. This case makes it clear that it is not necessary for the survivor to have acquired property as a result of the will of the person 1st to die in order to give rise to enforceable obligations against the survivor. Court finds that although rec’d property through JT but had a K of how property was going to be dealt w/ under the wills. The terms of the K still applies to H estate even though he rec’d everything through JT Obligation of the survivor not to revoke his mutual will DOES NOT depend on him getting $ through estate 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 2 conditions which must be met before the court will impose a trust as a consequence of joint/mutual wills: (1) mutual agreement not to revoke the joint/mutual wills and (2) the first to die must have died w/o revoking or changing his will in breach of the agreement REVIVAL OF A WILL - S. 57 of WESA deals w/ revivals – where a previously revoked will is brought back to life by a subsequent will or codicil - A will or a part of it that has been revoked is revived only by a will that shows an intention to give effect to the revoked will or part (WESA s. 57) - If a will has been revived by a codicil the will is deemed to have been made at the time it was revived or re-signed (s. 57(3) of WESA) - A will or a part of it that has been revoked may not be revived except (A) by an order of the court under s. 58 if the court is satisfied that the T intended to give effect to the will or part that was revoked OR (B) in accordance w/ any other provision in Act that recog revival of a will (s. 57(4) WESA) RE MCKAY (BCSC)(1953)- revival requires intention Made 1st will (husband alive) then made 2nd will (husband dead now) stating “revoking all earlier wills…” (changes will takes out H gifts) prepared codicil after 2nd will and put in the date of the 1st will as the last will. – so referenced wrong will in codicil The 1st will was not revived – codicil otherwise valid court will just omit reference to 1st will S. 57 of WESA “showing intention to revive”- has to be clear beyond doubt the intent to revive. Codicil lacked these kinds of words- here no facts indicating intention to revive just shows mistake COURT ORDER CURING DEFICIENCIES: 58 “record” includes data that (a) is recorded or stored electronically, (b) can be read by a person, and (c) is capable of reproduction in a visible form. (2) On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents (a) the testamentary intentions of a deceased person, (b) the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or 22 (c) the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will. (3) Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made court given full power to say well look even though the formalities werent complied w/ this will is still valid (a) as the will or part of the will of the deceased person, (b) as a revocation, alteration or revival of a will of the deceased person, or (c) as the testamentary intention of the deceased person. (4) If an alteration to a will makes a word or provision illegible and the court is satisfied that the alteration was not made in accordance with this Act, the court may reinstate the original word or provision if there is evidence to establish what the original word or provision was. REPUBLICATION, LAPSE AND ADEMPTION - These 3 doctrines are concerned w/ the conseq of events that generally take place after the making of the will but BEFORE the death of the T Lapse: the effect of the death of a B Republication: the effect of the making of a codicil Ademption: the effect of the disposition inter vivos of property disposed of in a will REPUBLICATION – the effect of the making of a codicil - R: helping a court determine what a will means when faced w/ changing circum - R: a will is treated as if it were executed when its most recent codicil is executed unless to do so would be inconsistent w/ T intent. It deals mostly exclusively w/ codicils. - R pretty much makes it as if the will was made on the date the codicil was executed - When using republication to see if wills new date is date of last codicil then have to look at T intentions - If the will has been revived by a codicil or by a codicil it has been re-signed in the presence of 2 W= will is deemed to have been made at the time it was revived or re-signed (57(3) WESA) RE HARDYMAN (1925)- republication by a codicil is used to give effect to T intentions - T gives to M his children and wife. M’s wife dies and T knows this. few mths after her death T made a codicil doesn’t mention anyone in M’s family. T died. M remarried. - Whether M 2nd wife took any interest under the will?- yes – T knew 1st wife died when made codicil and no change made to will so must have been T intention that rights would apply to the next wife - Where a T gifts to the wife of a named person and there is a wife living at the date of the will then that wife only takes under the gift. - Effect of the codicil is to republish the will as of the date of the codicil. Republication makes the will speak as if it had been re-executed at the date of the codicil = this isnt a technical rule but a useful flexible instrument for giving effect to T intention by ascertaining them down to the last date on which it has been expressed - If a codicil confirms a previous will then the will is brought to the date of the codicil - Side note: more difficult for court to overcome the clear language in the will if it stated IE my cousins wife Jessica. Republication more useful when ambiguity left RE REEVES (1928)- court find republication – present lease in original will- republished in codicil - left “all my interest in the present lease” to daughter. Made new lease after will. Made new codicil after new lease. Codicil didn’t reference lease. •If the will stated the date of the lease then the republication of his will by the codicil wouldn’t have given her any benefit since the old lease had expired • But in this case will stated “my interest in my present lease” – and this fits the circum that existed at the date of the codicil RE HEATH’S WILLS TRUST (1949)- rule for republication isnt a strict rule always follow T intentions – no republication here In b/w time will made and the subsequent codicils made there was a change in the legislation and the restrictions they placed 23 in their will aren’t allowed anymore. The republication of a will substitutes the date of the republication for that of the will. There are exceptions to this rule – so if intention of T not to abide by this rule then T intention wins = this principle is not of universal application but only a general rule and isnt followed where it defeats the intention of the T. Essentially can’t use republication to defeat T intentions If gift is valid at the date of the will it cannot be invalidated by mere republication of the will The T intended for the restriction to cont’d to be legal + apply so not going to republish the will to the current date of the last codicil RE ESTATE OF RUTH SMITH: SMITH V ROTSTEIN (2010)(ONSC)- republication while lacking capacity doesn’t invalidate a will T makes will, makes 2 codicils while incapacitated. Is the original will still valid? – Yes – Don’t republish the will to bring it forward to a time when T didn’t have capacity. T had capacity when made the will. Left date of will to the date when T had capacity A codicil usually operates as a testamentary doc which supplements, explains, modifies, or subtracts from a will bearing an earlier date. Codicil is regarded as a essential part of the will to which it belongs Law regards a codicil as confirmation of the will except as to any express alterations it makes Doctrine of republication: it holds that a codicil confirming a will shifts the date of the will to the date of the codicil - this isnt a technical rule but a useful and flexible instrument for giving effect to a T intentions…Republications acts as a tool for interpreting or construing a will Court may find a codicil valid while concluding the will is invalid LAPSE - This applies where the person getting the gift doesn’t exist anymore - Rule: if a B in a will ISNT ALIVE then he wont get the gift = can’t opt out of this rule but can work around it - If a will doesn’t dispose of all of the T property then the property that isnt disposed of in the will must be distributed to the persons who would be entitled to if that property were an intestate estate and if that doesn’t work goes to gov’t (WESA s. 44) - If a gift can’t take effect for any reason, including b/c B died before the T, then gift must, subject to a contrary intention appearing in the will, be distributed accordingly (s. 46 WESA): (a) To the alternate B of the gift if there is anyone named in the will (IE to B but if B dead to C) (b) If the B was the brother, sister or a descendant (child, grandchild) of the T then to that B’s descendants determined at the date of the T death (c) To the surviving residuary B if any are named in the will in proportion to their interests - Above rules apply regardless of whether B death occurs before or after the will is made (WESA s. 46) - Lapse doesn’t apply to class gifts: o Class gift: where you give something to a group of unnamed persons and if they constitute a class of ppl then the gift will be shared amongst the living members of the class alive at the time of the T death EX: all students at UBC law RE STUART ESTATE (BCSC) (1964)- Pre-WESA - T directed balance of his estate was to be equally divided amongst 13 persons (they were listed). One of the persons was T niece who died before the T. How should niece’s share be divided? •S. 21(Wills Act) applied to lapsed specific devises or bequests but it didn’t apply to residuary devises or bequests. So nieces share goes to intestacy (concluded this is NOT a class) • There is authority for the view that the doctrine of lapse will not apply if the disposition in the will is made pursuant to a moral obligation (IE b/c friends, relatives) that rested on the maker of the will as opposed to making a gift to a creditor *no moral obligation there* RE WUDEL (1928)(QB)- when a court might find “a contrary intention” T died her daughter died 15 yrs before her. Made will 10 yrs after daughter’s death. Will said if any of my children die after the date of this will but b4 my death then their child should get their portion. Should dead daughters portion go to her kids? – No -intention of T to oust s. 46 of WESA General rule at common law: gift fails where a B has predeceased the T but now follow statute 24 WESA uses“except when a contrary intention appears by the will” court must go back to the date of the execution of the will to ascertain the intentions of the T. only evidence before the court is the will itself and the court must determine the meaning of the words used by the T. courts should determine the subjective intent of the T to determine the disposition of the property + look at the whole not just isolated parts RE: THE ESTATE OF STELLA WEST, DECEASED (1999) (BC)- “per capita”- this showed contrary intention to create joint tenancy - T had a son and daughter (who predeceased her). 3 grandchildren. Will said “the balance of my estate to my daughter and son in equal shares per capita for their sole use and benefit absolutely” - What happens w/ Daughter’s share who predeceased the T- does s. 46 apply? – D share goes to son -if s. 46 applied b/c T giving to descendant then it should go to D kids – court finds contrary intention • court found words “per capital” and “for their sole use and benefit absolutely” show contrary intention which is to create joint tenancy – so brings this out of s. 46 • To discover T intention have to look at whole will and every word is to be given its natural and ordinary meaning and if technical words are used they are to be construed in their technical sense • Key words were “in equal shares per capita for their sole use and benefit absolutely”- these words only capable of 1 meaning which is T intended the residue of her estate to go to her 2 children w/ the right of survivorship to be enjoyed by each of the other should one of them predecease her • Per capital means “equal sharing by the heads”- so according to the # of indiv w/o reference to their issue or right of such issue to take the share of an estate • Per stirpes- by the roots or stalks- expressly refers to dividing the share of an estate of a deceased ancestor amongst the successors of the deceased ancestor. •Words “for their sole use and benefit absolutely”- reinforces her intention that her children should share her estate and not their successors ANTI-LAPSE PROVISIONS IN A WILL - Can add in as many anti-lapse provisions in a will (if B dies to C if C dies to D…) but once they run out and all those ppl are dead then go into s. 46 b/c have a lapse RE DAVIDSON (1979)(NS)- anti-lapse provision in a will - T will says residue divided among my children and if one of my kids dead then to that kids children. T had 14 kids. 4 dead at the time will was made. 2/4 had married and had kids. - Found: The dead children’s kids get the dead parent’s estate • General rule is that a B must survive the T in order to take any benefit under a will of the T • This general rule has been rebutted in this case b/c here the T had provided for an alternative gift to prevent lapse of the gift under the general rule and this clause would have no meaning if the class intended by the T included only those children alive at the time of his death What does “my children” mean?- may mean a child dying after date of will and b4 time of T death or may mean a child who was already dead at the date of the will to determine which one he intended look at the language he used in directing such representation/substitution. If restrictive language maybe child had to be living at date of will but if he uses language so wide and general then maybe can be dead at time of will here it meant to both dead and living children RE COUSEN’S WILLS TRUST (1937)- what happens when anti-lapse provision gives gift to someone else who is dead b4 the T - So basically estate said estate goes to A if shes dead and has a kid(s) then give to personal rep. In this case A is dead has a kid and personal rep is dead. This gift lapses T can’t exclude the application of the law of lapse but the conseq of lapse can be avoided by the substitution of some other B to take the legacy in the event which makes the lapse occur General rule is that a B must survive the T to receive the gift. T avoided rule of lapse b/c he has provided that if the person who would have taken directly under the will predeceased him the benefit which that person would have taken 25 is to go to that persons legal rep. BUT here there is nothing that provides against the lapse which would happen if the personal rep is dead then who takes the estate? = fail RE GREENWOOD (1912)- language used to avoid a lapse -Will says: if my bros, sis, nieces,nephews die leaving kids then the gift “shall not lapse but shall take effect as if his death had happened immediately after mine”. No intestacy/ good substitutionary gift • General law: doesn’t allow a B who predeceases the T to take any benefit under his will • Conseq of a lapse can be avoided by the substitution of some other B • A T can provide that if a legacy to A shall lapse it shall go to persons who would have taken the benefit of it on the hypothesis that the B survived the T and died immediately afterwards -Here he doesn’t list the heirs who get the gift but court said that’s ok ADEMPTION - Ademption= what happens under a will when property doesn’t exist anymore or exist in the same form Simplest solution for ademption: no gift IE I give my gold rolex to H. At date of death there is no gold rolex. Then H doesn’t get anything What happens when the property has changed in form somewhat = ademption deals w/ this Once real estate is sold then the money rec’d from it doesn’t go to B who would have got the land but rather it falls into the residue B CHURCH V HILL (1923)(SCC) - will said daughter got a property lot 15. Residue divided amongst other kids.T sold lot 15 and the balance was payable in monthly instalments. So have monthly payments coming in from property but no property- Flow of payments is a personal deed and falls into the residue of the estate. So D gets nothing - will speaks of right to property but all left is right to price – subject matter no longer exists. •So b/c lot 15 was sold and any claim the purchaser had against the vendor would be a claim for purchase moneys b/c now have new owner of property TREBETT VV ARLOTTI- WOOD (2004)(BCCA)- ademption of specific/general legacies -will disposed of “any cash or any stocks and bonds held in account no. 861 located in RBC”. This was a specific legacy-- After will was made he transferred RBC acct to new bank - Gift is adeemed b/c he transferred accounts which caused the subject matter of the gift to cease to conform to the description in the will -2 classes of legacies- specific and general o Specific legacy- identifiable by sufficient description, distinguishable within the T estate- IE: I give X my Jaguar. o General legacy- may or may not be part of the T property- it has no reference to the actual state of his property. this is not a legacy of a particular thing but of something which is to be provided out of the T general estate – IE: I give $200 to X. o Demonstrative legacies- hybrid b/w top 2. It is directed to be satisfied primarily (but not solely) out of a specified fund or a specified part of the T property IE a gift of $100 to be raised out of the sale of my Longhouse property o If a specific legacy the gift will be adeemed by conversion if the property has ceased to exist as part of the T property in his lifetime or has ceased to conform to the description in the will. Ademption will not occur where the specific property in qst has been changed in name or form only so that it exists as substantially the same thing although in a diff shape. Whether the change is one in name or form only is a qst of fact o The doctrine of ademption applied irrespective of the T intentions o Where the proceeds which form the subject matter of the gift have been commingled in a manner that is more than de minimis or momentary = usually the assets lose their identity and the gift is adeemed – IE proceeds of sale are placed in a bank account RE CLEMENT ESTATE (2007) (NSSC)- when gift gets destroyed before T death -T devised in his will that his cottage go to his daughter. T died in a fire at the cottage. The money under fire insurance policy taken by T goes to the daughter 26 • If the T had died before the destruction of the cottage then = goes to residuary B • Substantial damage to the cottage occurred following the death of T and after legal title had passed to his personal reps to be held in trust for the B • If chattels are damaged but not destroyed the bequest did not adeem – the bequest passed to the designated B and they are entitled to insurance proceeds RE SWEETING (1988)- when real property is adeemed & becomes personal property - T gift this property. T enters into K of sale for the properties. Before the completion date the T died. Is the property adeemed? -The sale of A was conditional upon the completion of B’s sale and vice versa. Also the K for sale of B included a clause where the sale was conditional upon the T wife agreeing to be sign releases. -If the sale had been completed, then property would be clearly adeemed. Even though this K had conditions that hadn’t been fulfilled the sale still went ahead (K were waived or already fulfilled) -Applied the 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 T 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- so goes to the residue not the designated B for the gift of the land. -Note: if will said if exercises option then proceeds go to my son – then that’s ok but if doesn’t specify where the proceeds go then they go to the residuary B -Note: rule still applies if option is granted after the will is made Common ground that ademption of a specific gift of property is brought about where a K of sale of that property is entered into by the T before his death and that K is one which is binding on both the T and the P so as to be specifically enforceable at the suit of either of them RE DEARDEN ESTATE (1987)(MAN)- K unenforceable either by or against T= no ademption -T left the land to his nephew in will. Later T entered into a K to sell the land and business. K subject to a lot of conditions. T died before the completion date of K. Had the disposition for the nephew been adeemed? – No – nephew still gets the land • If agreement b/w T and purchaser is an actual agreement for sale and is enforceable = ademption •If after a specific devise of property the T by a valid and enforceable K for sale and purchase agrees to sell the lands to another the T has done 2 things (1) has manifested an intention that the devisee shouldn’t receive the lands (2) has converted his interest in the realty to a claim for the price •Rule from 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 T. for a K the property is only converted if the T/executors are capable of enforcing the K • Principle: that a K for sale and purchase which isnt enforceable either by or against the T doesn’t effect an ademption, here the K here was unenforceable both by and against T= no ademption RE PYLE (1985)- what you need to rule out Lawes - left certain lands to J. Granted 5 yr lease of the lands. Lease contained an option to purchase- same day of making lease he made codicil confirming his will. T dies. A few yrs later the lessee exercised the option to purchase the lands and the lands were conveyed to him. - whether the proceeds of the sale were to be paid to the J or fell into the residue of the T estate? – given to J – it is clear the T intended for the B’s to get benefit of the lease b/c of timing of lease and codicil – T must have been thinking about lease and will •General principle from Lawes v Bennett is a general rule the T may on the face of the will indicate an intention to exclude the operation of the rule • When a will is made AFTER the K giving the option of purchase and the will devises of the specific property which is the subject of the K and the will doesn’t refer to the K entered into = consider if there is sufficient indication of an intention to pass that property and give to the B all the interest • To rule out Lawes general principle: need specific devise in the will, optional nature of the K+ republication of the will by the codicil = brings this case out of the rule from Lawes. Relief from disposition of property 48 (1) In this section, "proceeds" means the proceeds at the time of disposition, and includes 27 (a) non-monetary consideration, and (b) in the case of a gift, the fair market value of the gift. (2) If property that is the subject of a gift in a will is disposed of by a nominee (committee, enduring POA, a rep under a RA- def doesn’t include executor) the beneficiary of the gift is entitled to receive from the T's estate an amount equivalent to the proceeds of the gift as if the will had contained a specific gift to the beneficiary of that amount. [contemplated period of time when T doesn’t have capacity and his POA or committee sells a piece of property] (3) Subsection (2) does not apply if (a) the disposition is made to carry out instructions given by the will-maker at a time when the will-maker was legally capable of giving instructions, or- so when T is capable (b) a contrary intention appears in the will. ABORIGINAL ESTATES - Originally gov’t administered AB estate- the gov’t would distribute to next of kin but now this changed - AB estates are diff than most succession cases- under a diff regime. Most AB estates dealing w/ reserve land which is a completely diff regime. No ability to own it in fee simple and transfer it. - Reserve land: it belongs to the bands not indivs. When you die get a cer’f of possession (right to live on reserve land)and this can’t be given to a non registered AB of that band- not even to child of the T o If person getting reserve land can after T death become registered band member and does so they can then take the band property o Now we have first national land management act (new leg) allows for indiv bands to set up the ability to give property to indiv AB whose able to “own” property- only 2-3 Bands elected into this so far – this is under a Treaty - Bernard v AG- found AB should have the same rights and entitlements to leave things by will as a private set up - Here we are dealing w/ the Indian Act - AB DIES WHAT TO DO NOW? 1. Which regime do I fall under? o Provincial regime- apply probate at the local court o Indian Act- Minister of Indian and Northern Development has to deal w/ it 2. Test to determine what regime you fall under is: (a) Is the matter in cause testamentary? (testamentary means after death) o Have to be dealing w/ an estate not a personal right of T that they owe someone. o Examine if dealing w/ validity of will or that aspect of testamentary causes (b) Is the deceased person ordinarily resident on the reserve? o Ordinarily resident is linked to the intention of the Indian = so if registered status Indian and ordinarily resident on reserve= Indian Act applies o If off reserve when AB passed away- then court looks at intention o If off reserve but intended to return to reserve then arguably ordinarily resident 3. Indian Act applies if person dealing w/ matter in cause testamentary + T ordinarily resident on reserve – but if fall under Indian Act have option of whether want to go under Indian Act or under Provincial regime o Indian Act: faster- Minister decides everything; one pg form that Minister needs to approve; ministry has sig experience dealing w/ AB; no probate fees. Negatives: don’t have pretrial remedies if going to be contestedthese available under prov regime. o Can argue Indian Act is a complete code so provincial legislation doesn’t apply or can argue provincial leg IE Wills variartion act/WESA would apply unless inconsistent w/ provisions of Indian Act. We have conflicting case law on this topic o Req for validity of will under IA so much more relaxed than under WESA o Under s. 46(1)(c) IA: Minister has limited powers to change the will. By change all minister can do is void that portion of the will - The act says that all jurisdiction and authority in relation to testamentary matters relating to deceased AB is vested exclusively in the Minister (s. 42) - The governor in council may say that a deceased AB who at the time of his death was in possession of land in a reserve shall be deemed at the time of his death lawfully in possession of that land (42) - The minister has power to (s. 43): o appoint executors of wills of AB, remove them and appoint others; o authorize executors to carry out the terms of the wills of AB; 28 - - - - - - - o authorize administrators to administer the property of Indians who die intestate; o carry out the terms of wills of AB and administer the property of AB who die intestate; o make another order, direction, finding… The SC can w/ the consent of the minister exercise jurisdiction and authority over the AB (s. 44) Minister can direct that the SC deal w/ this AB estate and the Minister can refer to the SC any qst arising out of any will of admin of estate (s. 44)- Side note: what legislation applies in this situation? o Johnson case: common law principles apply in a referral of qst situation. Left open qst of whether WVA would apply. So not looking at IA in isolation its informed by common law The SC can’t enforce any order relating to real property on a reserve w/o the consent in writing of the Minister (44) Req for a will under the Indian Act: o Any written instrument signed by an AB in which he indicates his wishes or intentions w/ respect to the disposition of his property on his death (45) o A will of a AB isnt of any legal force or effect as a disposition of property until the Minister has approved the will or a court has granted probate (45) Reasons why the minister may declare the will of an AB void in whole or in part (any of these reasons are sufficient – don’t need all of them) (s. 46): o The will was executed under duress and undue hardship o T at the time of execution of the will lacked testamentary capacity o Terms of the will would impose hardship on persons for whom the T had a responsibility to provide o The will purports to dispose of land in a reserve in a manner contrary to the interest of the band or contrary to this act o Terms of the will are so vague, uncertain, or capricious that proper admin and equitable distribution of the estate of the T would be difficult or impossible to carry out in accordance w/ this Act o The terms of the will are against public interest Where minister declares will of AB to be wholly void- then as if he died intestate. If will is declared void in part only then that gift lapses unless contrary intention appears in the will (s. 46) Appeals: decision of Minister can be appealed within 2 mths to the FC if the amount in controversy in the appeal exceeds $500,000 or if the Minister consents to the appeal (47) Distribution of AB property on intestate (48): o Where net value of estate doesn’t exceed $75,000 or any other amount fixed by order of the governor in council= estate shall go to the survivor o If minister thinks net value of estate exceeds $75,000 or any other amount fixed by order of the governor in council. That amount shall go to the survivor and o If intestate left no issue= remainder go to survivor o If intestate left 1 child= ½ remainder shall go to survivor o If intestate left 1+ kids= 1/3 of the remainder goes to the survivor o Where a child has died leaving kids alive at the date of the T death, the survivor shall take the same share of the estate as if the child had been living at that date o But if minister is satisfied that the children of T wont be adequately provided for he may direct that all or part of the estate that would’ve gone to the survivor shall go to the children + minister may direct that the survivor shall have the right to occupy any lands in a reserve occupied by T If T dies w/ kids his estate shall be distributed subject to the rights of the survivor, per stirpes among the kids If no survivor or kids= estate to parents of T in equal shares if both alive but if either dead then to the surviving parent If no survivor, kids or parents= goes to brothers and sisters in equal shares. If bro/sis dead then children of dead bro/sis take the share their parents would have taken. Where the only persons entitled are children of deceased bro/sis they shall take per capita If no survivor, issue, father, mother, brother, sister and no children of bro/sis his estate will go to next-of-kin – any interest in land in a reserve shall vest in her majesty for the benefit of the band if the nearest of kin of the intestate is more remote than a sibling RESERVE LAND 49. A person who claims to be entitled to possession or occupation of lands in a reserve by devise or descent shall be deemed not to be in lawful possession or occupation of those lands until the possession is approved by the Minister. 50. (1) A person who is not entitled to reside on a reserve does not by devise or descent acquire a right to possession or occupation of land in that reserve. 29 - (2) Where a right to possession or occupation of land in a reserve passes by devise or descent to a person who is not entitled to reside on a reserve, that right shall be offered for sale by the superintendent to the highest bidder among persons who are entitled to reside on the reserve and the proceeds of the sale shall be paid to the devisee/descendant - (3) Where no tender is received within six months or such further period as the Minister may direct after the date when the right to possession or occupation of land is offered for sale under subsection (2), the right shall revert to the band free from any claim on the part of the devisee or descendant, subject to the payment, at the discretion of the Minister, to the devisee or descendant, from the funds of the band, of such compensation for permanent improvements as the Minister may determine. - (4) The purchaser of a right under subsection (2) shall be deemed not to be in lawful possession or occupation of the land until the possession is approved by the Minister. PROVONOST V CANADA (1985) (FCA)- AB interest -Indian died while legally in possession of a lot on a Indian reserve. Will property 2 daughters and his wife shall have the right of occupancy as long as she lives. Minister said he disposed of the land on a reserve in a manner contrary to the interest of the Band and contrary to this Act. - Minister was wrong- didn’t dispose of land on a reserve in a manner contrary to interest of band or act •Looked at s. 45(1) of Indian Act - AB enjoy same testamentary freedom as other indivs so AB have to be recognized as having the same right as others to make gifts accompanied by a substitution •Right of an AB over both the land of which he has legal and legitimate possession and the buildings which his predecessors may have erected on it is not a life estate (lasts only his lifetime) • Minister’s power to refuse to legitimize possession of real estate is an administrative and not a quasi-judicial power • Even if it is a substitution then probably not contrary to the interests of the Band or Indian Act – bands interests can still be protected by the Minister who can refuse to legitimize the possession of the person asking for it under the will and of the substitute who will claim it later DISCLAIMER - This takes place after a will is found valid and has been probated - Disclaimer: B never forced to take a benefit (a gift) so a B can disclaim b4 taking the benefit but generally not after taking some of the benefit - Disclaimer closes the class at that moment and determines who the B are - Qst generally is whether disclaimer results in acceleration of remainder interests - So a B is ALWAYS entitled to disclaim a gift but the qst is whether the disclaimer takes effect immediately and accelerates the gift to the remainder B - Acceleration: the interests that are conditional on the 1st gift being met are sped up so the residual B take the gift right away instead of waiting for the 1st B to use the gift - Keep in mind that whenever a minors interests come into play PGT comes in – they may object to acceleration b/c it might eliminate the interests of the grandchildren IN THE ESTATE OF BRANNAN (BCCA)(1991)- acceleration allowed by courts - Will said pay residue to H until his death or remarriage w/e occurs first and upon death of H or remarriage of H to divide the estate in equal shares to children. Wife dies and H disclaimed any rights in the wife’s estate w/ the intent that the gift of the residue to his 3 sons would accelerate. - Found: H can accelerate the gift and NOW sons take equally - whether or not a gift is accelerated is a matter of intention of T, A is still possible if there is contingency - T intention in this context means the intention a reasonable person placing himself in the T chair would suppose the T had in view of the surrounding circum - These circum examined in determining what T intention in regards to acceleration was: When executed will no grandkids so probably concerned about the sons not unborn kids of theirs T estate pretty small grandkids born during the T lifetime – could have changed will to prevent A but didn’t power to encroach for benefit of sons but not remoter issues H interest is gone by death and remarriage –T gave H ability to end his interest by remarrying Remarriage clause very sig in determining T intention as to when sons should take- remarriage clause gave H unilateral control over when distribution to sons should take place- if If H can cause an immediate distribution to 3 30 sons by the unilateral and voluntary act of remarriage then he must also be able to do so by the unilateral and voluntary act of disclaimer Court says all these circum together are decisive but not standing alone – they bring forth conclusion that a reasonable person would suppose that the T had the intention that H can disclaim his interest and nothing in will indicating a contrary intention DE LA GIRAUDIAS V LOUIS DE LA GIRODAY TRUST (BCSC)(1998)- acceleration not allowed - Trust deed says upon R death the trust estate is to be divided into equal shares for the settlor’s kids then living. Came to court for advice. R wants to know if she disclaimed her life interest in the estate would it vest immediately in the kids b/c of doctrine of acceleration?- NO it will not accelerate to kids b/c T didn’t INTEND the trust to be prematurely terminated. B have to wait until R death to distribute - Can come to court about qsts about future events that haven’t happened or may not happen if B is hampered in their practical affairs in some sig way by the uncertainty or some other reason exists for court getting involved- this is a prima facie rule - Brannan: whether or not a gift is accelerated is a matter of intention. Settlor’s intention is to be determined by reference to the: trust deed + circum existing when the trust deed was executed - T intention to preclude the operation of acceleration found on: Trust deed doesn’t allow for encroachment upon the capital of the trust estate for the life tenant or other B – S has demonstrated an intention to preserve the trust Trust deed doesn’t provide the life tenant w/ the ability to unilaterally terminate her interest by remarriage or waiver *no remarriage clause* Trust stated to benefit “wife, children and OTHERS”- suggesting successive generations Trust estate has huge monetary value Provisions in trust which are intended to protect against the rule against perpetuities- demonstrates intention that grandchildren have opportunity to have the estate vest in them None of the above circum standing alone would be decisive but taken together is enough. Court says a reasonable person would suppose that he S didn’t intend that the trust could/would be prematurely terminated by disclaimer or anything else RE IN THE ESTATE OF CREIGHTON (2006)(BCSC)- acceleration happens; factors to consider when deciding accelera - Huge estate residue of $2 million. Trust in will says “upon the death of B and M divide the residue among my grandchildren and if dead then give their share to their kids (T great grandchildren)” - Great grandchildren alive at time will is made b/c A allowed they get nothing only grandchildren do - court found no contrary intention in the will or surrounding circum that would prevent A so B and M can disclaim and grandchildren will get interest VESTED right AWAY o Effect of disclaimer would be to close the class of B to include only the grandchildren of the T o whether or not a gift is accelerated is a matter of intention. A applied unless contrary intention o Some factors courts have considered to be of signif in determining whether an intention to prevent the operation of the doctrine of acceleration can be inferred from the will and/or surrounding circum: Remarriage clauses or other specific clauses enabling the life tenant to terminate his own interest Does the trust deed provide for an encroachment upon the capital?- if yes then intention to allow A Does the wording of the trust refer to the succeeding generations showing an intention to benefit those generations? – if yes intention to benefit later generations. IE to my children and if any died then to their children Is the value of the trust large? – if yes then probably no A if small trust then probably yes A Is there a provision for premature vesting in order to protect against the rule against perp o Here: executor can encroach on the capital of trust for the benefit of the grandchildren (sig factor here). T didn’t provide a clause which would allow the children to terminate their own interests. NO clause for immediate distribution to grandchildren + estate not large= T intended to allow A RE GRUND ESTATE (1998)(BCSC)- how to use disclaimer to solve errors - T left her house to 2 of her kids, C and Luanne, but directed that they were to pay a ½ share of the value of the house to each of her other 2 children, J and Linda. Clause in will saying divide the residue of her estate equally b/w the 4 kids. C and Luanne disclaimed gift and now house forms part of residue which all kids get split equally. - There was a drafting error here it made no sense why divided like this but by disclaiming the gift and letting it fall into residue the drafting error is solved 31 o a disclaimer is a refusal to accept an interest which has been gifted to the disclaiming party. The effect is to void the gift. Gifts which fail or are undisposed of are captured by the residuary gifts o house had been empty for awhile now = effective disclaimer/If they had taken advantage of the gift then may result in no effective disclaimer o court said this isnt even a gift it isnt a voluntary transfer or property w/o consideration b/c will req the B to pay for the home ABATEMENT – when estate doesn’t have enough $ to do what will says abatement= when there isnt enough money to pay for stuff that is suppose to be distributed in the will then ppl lose the gift they were suppose to get common law: the first person to lose gift is the person who is given the cash order of abatement sets out which B have to lose their gift when there isnt enough to go around s. 50 deals w/ this in WESA o it is subject to a contrary intention appearing in the will o if a T estate isnt sufficient to satisfy all debts/gifts then the debts and gifts have to be satisfied or reduced in accordance w/ this section o assets are reduced in the following order 1. property specifically charged w/ a debtor OR left on trust to pay a debt- IE house given and it has a mtg 2. property that fell into intestacy and in residue o IE rest of estate goes to residue where named B are kids. Residue abates b4 specific gifts 3. general, demonstrative and pecuniary gifts o Demonstrative: $25,000 to D from my BMO acct. o General: IE 100 shares in Disney to D o pecuniary: $25,000 to D 4. specific legacies o IE I am giving my pen collection; car to D; funds in BMO acct XYV to D; my house located on 1245 Surrey; $10,000 to each of my kids to be paid from the sale of my car 5. property over which the T had a general power of appointment RECTIFICATION – fixing a mistake in a will IE error arising from a mistake - Rectification deals w/ the court of probate - The whole issue of fixing b4 probate (rectification) VS fixing after probate (construction) – this was a diff the Eng courts brought up. Before we had 2 courts dealing w/ wills - Rectification at common law (Pre- WESA): the will is rectified at stage of probate when the court determines that the T didn’t have knowledge and approval of the wording of the will (1) Court of probate – able to fix a mistake by telling court what T intended and he made a mistake - Cannot add words, only delete words in a will - Can admit extrinsic direct evidence of testator’s intentions o If the T read the will, or the will was read to the T, there was a rebuttable presumption that the T knew and approved of the language used in the will o Probably if a person drafting a will for a T really applied his/her mind to the language used the court had no jurisdiction to delete words even though the drafter had misunderstood the instructions for the will or had used inappop language in trying to give effect to them - Statements made by testator as to intention are admissible (2) Courts of construction- come here if will has already been probated - Can add or delete words to give effect to provision - Cannot admit extrinsic direct evidence of testator’s intentions - Must interpret on language in the document and surrounding circumstances to infer meaning and intention - NOW we have BC SC- it has jurisdiction to determine at probate the validity of wills. We don’t have a court of probate and court of construction – just have 1 court deals w/ it all - 59 – WESA- saying we can rectify a will at time of probate or at time of construction (after probate) (1) On application for rectification of a will, the court, sitting as a court of construction OR as a court of probate, may order that the will be rectified if the court determines that the will fails to carry out the T’s intentions b/c of (a) an error arising from an accidental slip or omission, (b) a misunderstanding of the T's instructions, or (IE say want to give to D and L thinks you said L) 32 (c) a failure to carry out the T's instructions. (2) Extrinsic evidence, including evidence of the T’s intent, is admissible to prove the existence of a circumstance described above ( in (1)) - General rule: can’t admit parole evidence in- have to look at the words in the will to interpret it. If the scenario doesn’t fall within s. 59 then have to go back to general rule and common law cases CLARKE V BROTHWOOD (2006) (ENG)- example of rectification of a clerical error - Will only disposed of 40% of the residue leaving 60% to be disposed of on intestacy/ Application made to rectify the will/ Argument: T meant to say 20% to each of the 4 godsons but lawyer accidently recorded 1/20. What happens if you don’t dispose of all residue= goes into intestacy - Clerical error: an error made in the process of recording the intended words of the T in the drafting or transcription of his will. That meaning is to be contrasted w/ an error made in carrying his intentions into effect by the drafters choice of words and w/ a mistaken choice of words b/c of a failure to understand the T intentions - Intention appears to be she wanted to leave 20% to each of the 4 godsons. She didn’t want to leave anything to intestacy - Here the court deleted words RE MORRIS (1971)- court of probate & court of construction working together to fix an error - Clause 7(iv) was to be revoked. Codicil revoked clauses 7 – it revoked all gifts but should have said clause 7(iv). Solicitor made a mistake – draft has (iv) but got omitted in final draft - Court found T glanced through the codicil before she signed it but didn’t read it in conjunction w/ the will- she didn’t know and approve of the codicil in regards to it revoking all of clause 7 – not T intention to revoke all the gifts - Court deleted _7_ and admitted into probate. Then clause would be dealt w/ by the court of construction who read in “7(iv)” in interpreting the codicil RE VERITY (2012)(BCSC)- deleted words and allowed direct evidence of intention - Will said residue of her estate was to be divided into 2 equal shares and one share was to be divided b/w the 10 neices/nephews and 1 share b/w Federok – 4 ppl in this group – children of dead niece - Court found that the T intended to divide the residue into 11 shares, leaving one share to each neice/nephew and dividing remaining share to Fedorek respondents. Court found T hadn’t known or approved of the provisions in the 2003 will – she may have glanced at will but no evidence read it - For intention: Court reviewed files of T lawyer+ looked at draft will which divided estate into 11 shares + note of T asking for division into 11 shares + previous will making disposition of 11 shares + notation on new will saying use old will as precedent + considered T close relationship w/ neice and nephews - Probably lawyer made error in drafting the will - Will must be rectified at probate stage and the court deleted words from the clauses RONDEL (2011)(ONCA)- evidence of intention at construction stage *narrow approach taken by the court* - Application at construction stage to rectify a will to delete a revocation clause revoking prior wills - Made will in Spain that was intended to deal w/ all her European property –After made new CDN will. Lawyer didn’t know anything about out of CDN assets or wills. New will had revocation clause. - Evidence of T intention is clear = no intention to revoke Spanish will w/ revocation clause in CDN will - At construction stage intention can only be determined from the words used in the will – so evidence of T intention inadmissible - The aff evidence of friend and lawyer re testamentary intentions of T wasn’t admissible - dealing here w/ a court of construction – so it was to give effect to the T testamentary intentions - Final result: no ambiguity on the face of the will- clearly says it revokes all prior wills, no drafting error, will reviewed by T before executed = no rectification BALAZ V BALAZ (2009) (ON SC)- tax avoidance is legal and may be supported by rectification - T instructed that a spousal trust be created for tax reasons. Lawyer included power provisions in trust that would taint the spousal trust and eliminate tax advantage. - T husband applies for rectification of will wants deletion of clauses which taint the trust= successful - L admits he accidently put in those words and w/o T knowledge or approval - Will valid only to the extent the T knew and approved its contents – so courts may strike out passages words in a will which have been inserted by mistake where it can be demonstrated that the T didn’t intend or approve of those words 33 - Court sits only as a single court, not one of probate or construction - Where a court seeks to ascertain whether the T knew and approved of certain language in her will it can take account of evidence about the circum surrounding the making of the will including referring to earlier wills or drafts of the particular will + direct evidence of T intention = admissible - Words put in the will were a mistake and are deleted by the court- Here B consent to application + CRA MCPEAKE V CANADA (BCSC)(2012)- explains rectification - Rectification is an equitable remedy that courts may apply/ Rectification doesn’t change the essence of the agreement/ Rectification is restorative not retroactive - ensures that the instrument contains the provisions which the parties actually intended it to contain and not those it would have contained had they been better informed - Rectification is to restore the parties to their original bargain - Court will grant rectification if satisfied that the request to rectify merely aligns the doc w/ the true intentions underlying it and that the aspects to be rectified are mistakes that obstruct the true intentions behind the docs formation - Standard for this to meet is balance of probabilities RECTIFICATION- T SIGNING THE WRONG WILL - This is dealing w/ when ppl usually spouses execute their wills at the same time w/ same witnesses and accidently sign each others wills instead of their own - Generally the wills will mirror each other except for the clause w/ the name and the B - Pre-wesa the cases were divided on whether or not probate of such a will should be granted – now we have s. 59 and 58 of WESA to deal w/ this - English cases say no it shouldn’t b/c the person who signed the wrong will didn’t intend to sign the doc they signed and they couldn’t have approved the contents of the doc - New Zealand decision in Guardian Tryst v Inwood (1946) said: can admit into probate- so although it wasn’t the paper the T intended to sign but the substance of the will she intended to sign apart from the inclusion of her name as life tenant - BC Re Brander Estate (1952) followed Guardian Trust o H and W signed each others wills. Relying exclusively on guardian Trust- the court admitted into probate the will the H signed (meant to be wife’s will) o The will signed by H listed him as executor and sole B o Judge struck out the name of H and ordered that in each case the name of wife be added to the will – went further than Guardian Trust which just struck out wife’s name but didn’t add anything o Guardian Trust hasn’t been uniformly followed in New Zealand MCDERMID ESTATE (SK)(1994)-Signing another will by accident- court orders last will prepared for sig + last will attached= probate - Asking for probate here. T and wife made identical wills except for the designated B and personal rep. Accidently executed each others homemade wills. Have evidence of witnesses saying it was a mistake - Intestacy should be avoided if it is legally and reasonably possible to do so - The will prepared for the signature of the T but signed by his wife clearly embodies the testamentary intentions of the T – except for the fact that the T signed the wrong doc , the will prepared for his signature otherwise fully complies w/ the req of the wills act - Court directs that the will signed by the T be attached to the last will prepared for his signature so that the signature of the T will become part of the intended will for probate purposes ESTATE OF DALE (2012) (AUSTRALIAN)- signing another’s will by accident - Provisions in New Zealand are similar to WESA s. 58 and 59 - E and H signed each others will and they were mirror wills- both appointed their sons as executors and gave all of their estate to the other spouse. - before there can be an order for rectification there must first be a will. - T never intended to put her sig on a diff doc and to treat her signature as her will - S. 59 WESA is premised on there being a valid will which there would not be in the absence of an order under s. 58 of wesa - Appop course is to admit to probate the doc the deceased intended to be her will even though its unsigned by her, rather than rectify the content of the erroneous will she actually signed 34 CONSTRUCTION– interpreting provision in a probated will that is ambiguous on the face of the will or arising from the admin of the estate - Construction at common law is the exercise after the will has been admitted into probate of interpreting the will for ambiguity - Remember at this stage could court add in words to the will to give it meaning o Court of construction DOESN’T take direct evidence of T intention (IE L saying client said he wanted X) in construing the meaning of the will 2 exceptions to this: (1) doctrine of equivocation – where you don’t know who the B of the will are (2) doctrine of falsa demonstratio- the identification of the property being gifted – so don’t know what property is being gifted - Courts of construction- come here if will has already been probated - Can add or delete words to give effect to provision - Must interpret on language in the document and surrounding circumstances to infer meaning and intention - WESA s. 4- this codifies the common law rule that extrinsic evidence of intention isnt admissible. S. 4 says: Extrinsic evidence of testamentary intention including a statement made by the T isnt admissible to assist in the construction of a testamentary instrument UNLESS o A provisions of the will is meaningless o A provision of the testamentary instrument is ambiguous on its face or in light of evidence (other than evidence of the T intention) demonstrating that the language used in the testamentary instrument is ambiguous having regard to surrounding circum OR o Extrinsic evidence is expressly permitted by this Act (EG if s. 59 permits it) - 59 – WESA- saying we can rectify a will at time of probate or at time of construction (after probate) (1) On application for rectification of a will, the court, sitting as a court of construction OR as a court of probate, may order that the will be rectified if the court determines that the will fails to carry out the T’s intentions b/c of (a) an error arising from an accidental slip or omission, (b) a misunderstanding of the T's instructions, or (IE say want to give to D and L thinks you said L) (c) a failure to carry out the T's instructions. (2) Extrinsic evidence, including evidence of the T’s intent, is admissible to prove the existence of a circumstance described above ( in (1)) - for construction go to s. 4 and 59 and see if extrinsic evidence would be admitted, if you don’t fall under those provisions then go to CL case law and see what you can do. We have 2 analyses under the case law: 1. If you can interpret the will using the plain meaning of the words then do that (Laws v Rabbit) 2. At the outset look at the language in the will + surrounding circum to determine if the ordinary meaning produces ambiguity (Haidl) PERRIN V MORGAN (1943)(ENG HL)-example of evidence of surrounding circum - homemade will- saying “all moneys of which I die possessed shall be shared by my nieces”. At time of death T had little cash but a lot of stocks and bonds/ word moneys means here? – cash +investments - Fundamental rule in construing the language of a will is to put on the words used the meaning which – having regard to the terms of the will- the T intended. Don’t ask what T meant to do when he made the will. ASK what the written words he uses mean in the particular case – what are the expressed intentions of the T - If word has only 1 natural meaning = give that meaning to the word - If word has more than 1 natural meaning (like money)= ascertain w/o prejudice b/w the various usual meanings which is the correct interpretation of the particular document - Context in which word is used is a main guide to its interpretation - Surrounding circum used in construing monies: Investments formed large part of assets not cash/ High number of nieces and nephews (14)/ Small legacy if divided in cash only/ No residue clause/T wrote her will herself HAIDL V SACHER (1980)(SASK)- when using “ordinary meaning” rule of construction, look at ordinary meaning in light of surrounding circum *one approach to interpretation* - Letters of probate granted. Now will being questioned. Will lists “the following persons in equal shares, share the estate”- goes on to list by number 7 ppl and 8th person is “the children of H”- H has 4 kids. Ambiguity b/c don’t know if H kids get 1 share b/w all 4 or each kid gets own share o first apply the ordinary meaning rule of construction in light of contents of whole will or surrounding circumstances **so look at surrounding circum at in the beginning to determine if ambiguity* 35 o Surrounding circum is indirect extrinsic evidence which consists of (not direct evidence IE T instructions to lawyer): Character and occupation of the T/ Amount, extent and condition of his property/ #,identity and general relationship to T of the immediate family +other relatives/The persons who comprised his circle of friends/ Any other natural objects of his bounty o Evidence of relationship of the B to the T + manner in which the overall bequest is framed in that clause = indicates that the T was considering these B not as indiv but as households LAWS V RABBIT (2006)(BCSC)- only proceed w/ construction if intention can’t be determined from the plain meaning of the words used in the will- armchair approach discussed *one approach to interpretation* - Approach in Perrin has developed into the armchair rule – court put itself in the position of the T at the point when he made the will and construe the language from this vantage point in order to determine the actual or subjective intent of the T - Don’t go to the rules of construction if the intention of the T can be determined on the plain meaning of the words in the will 1. Look at plain meaning of the words in the will- if that resolves it go no further, if it doesn’t 2. Armchair approach – this encompasses the surrounding cirum approach b/c go to armchair to figure out surrounding circum WILSON V SHANKOFF (2007)(BCSC)- application of Haidl v Sacher - When applying the armchair rule the court should put itself in the position of the deceased at the point when he made the will, and construe the language from this vantage point in order to determine his intent. Court may look to extrinsic evidence to identify the surrounding circum that existed which might reasonably have influenced the deceased - The proper approach involves the admitting of evidence of surrounding circum at the start of the hearing and then construing the will in light of those surrounding circum (applied Haidl approach) RE THE ESTATE OF MURRAY (2007) (BCSC)- if want to exclude extrinsic evidence of T intent use this case - a gift of 10% of residuary estate to Salvation Army. Will only disposed of 90% of the residue. - How would the 10% of the residue be disposed of (intestacy or SA)? – goes to Salvation Army - Court used the surrounding circum to come to conclusion that T intended to dispose of full residue and 20% goes to SA o Residual clause said dispose of ALL my property court thinks this is L mistake o T didn’t have any contact w/ his family unlikely he wanted those ppl to benefit o Court looked at earlier wills- never disposed to family in them o Clause saying if any residual B gift fails goes to SA - One situation in which the court will admit direct evidence of the T intentions is where the words of the will apply equally well to 2+ persons (2 potential - direct extrinsic evidence of T intent isnt admissible – L aff of instructions he got from T= not allowed - RULES OF CONSTRUCTION – CONSTRUCTION OF A WILL o Court will not alter or add to the words of a will unless it is perfectly clear that the will doesn’t express the intention of the T o There is a presumption against intestacy- court prefers interpretation not leading to intestacy CONSTRUCTION- MISTAKEN INCLUSION AND OMISSION RE DAVIDSON (1979)(ON HC)- direct extrinsic evidence is admitted – principle of falsa demonstratio - Case where the description of the property given is partially accurate and partially inaccurate - Principle of common law of falsa demonstratrio applied here so direct evidence of intention was admissible to determine the proper property to be given RE MCEWAN ESTATE (BCCA) (1967)- strict approach used, courts cant fix errors by speculation - Residue to be given monthly sums to wife and daughter during her lifetime and when wife dies divide residue amongst daughters issues - T didn’t make provision for disposition of residue of estate if his wife dies before the daughter - Here the residue falls into intestacy – court said not going to fix will to say if D survives wife then D gets it all – but w/ lapse the daughter ends up getting the estate anyways - Context of will doesn’t help figure out what T intentions are in regards to this - presumption against intestacy doesn’t apply here – it can’t be used to speculate - if court is told there is an omission (clause missing need to fill in) =court has to be able to say as a matter of necessary implication that there was an omission +what the omission was – court can’t speculate 36 CONSTRUCTION- PROPERTY - A person can through a will gift property to which they are entitled by law or in equity at the time of his death including acquired before, on or after the date the will was made (s. 41 WESA) - When a will refers to property it is to be interpreted as if it had been made immediately b4 the death of the T unless a contrary intention appears in the will (s. 41 WESA) - A gift in a will takes effect according to its terms + subject to the terms of the gift it gives to the recipient of the gift every legal or equitable interest in the property the T has the legal capacity to give (s. 41 WESA) - If a will doesn’t dispose of all of the T property the property that isnt subject to a gift or isnt disposed of in the will must be distributed to the persons who would be entitled if that property were an intestate property and if there is no person that would receive under intestate property then it passes to the gov’t (s. 44 WESA) - If the gift of land in a will to 2+ B contemplates a physical division of the land by subdivision ect. then the gift takes effect as a gift to the B as tenants in common unless a contrary intention appears in the will (s. 45 WESA) RE MERIER (AB)(2004)- T gives land in will he doesn’t own - In will devises land he doesn’t own but owned by a corp – T sole shareholder + director of company - Corp assets belong to the corp not the shareholder - In the end if T is giving away property owned by a corp which he owns shares of doesn’t work. T cant give something away that he doesn’t own. Gift fails if trying to give property owned by corp but T - Here gift is adeemeed b/c T couldn’t gift what he didn’t own - Side note: when dealing w/ corp gift the shares not what the company owns IRELAND V RETALLACK (2011) (AUST)- if T doesn’t own asset can still gift it - T owned 989/990 shares in corp- other share owned by his daughter. The company owned property, G. T in will gave gift of G to daughter. Gift of G DOESN’T fail b/c executors controlled company and could convey the property to the daughter o This case is saying if T has shares in a company of which he had the whole B interest and whose actions he could control and direct then he owns and has an interest in the premises and the shares and could dispose of them or control their disposition as it willed o Basically this case allows T who owned and controlled a corp to dispose of corp property- main thing owned 99.9% of shares here and .1% owned by daughter whose getting the gift CONSTRUCTION- PEOPLE Meaning of particular words in a will- s. 42 WESA - This section is subject to a contrary intention appearing in a will. -If gifting property in a will to a person described as “heir” or “next of kin” of the T or someone else- this takes effect as if the T had died w/o a will= if you use words heir or next of kin mean T successors - in a gift of property in a will the words “die w/o issue” or “die w/o leaving issue” or “have no issue” or any other words meaning either no descendants= are deemed to refer to no descendants or no descendants in the lifetime or at the time of death of that person and not to a complete absence of descendants of that person. - A gift of property to a class of persons that are described as T “issue” or “descendants” or similar word and encompass more than one generation of B = must be distributed as if it were part of an intestate estate to be distributed to descendants AMYOT V DWARRIS (1904)- eldest son means first born son - Gift to “to the eldest son of my sister F and his heirs for ever”. At time T made his will sister had 2 sons. Oldest son now dead. What does eldest refer to?- oldest son - Eldest: first born child even if there are only 2 children and the first born is dead at date of death of T - Ordinary meaning of word eldest is the oldest of the sons doesn’t matter if eldest is dead now CHILDREN AND NIECES Child means natural child or adopted child (law and equity act s. 61) Natural child= born inside or outside of marriage Natural child DOESN’T include step child Nieces/nephews: includes the children of the T siblings and the children of the T spouse’s siblings 37 RE SIMPSON ESTATE (1969)(BC)- children gifted in the will - “equally b/w my six children”. R isnt the natural son of T- wife’s child w/ another man. In will T refers to R as his son in 2 diff clauses – in one clause saying “my son R to be the sole executor and trustee” and then referring to him in the clause giving six children gifts. Court: T intended for R to take as a son o In interpreting this will one must look to more than the bare words of the gift – courts have to consider the intention of the T, all the circumstances surrounding the relationship b/w the T and B o Court: T looked upon R as his son, had a father son relationship till T death, treated him equally w/ the other members of the family, referred to him as his son in his will = viewed as son under this will LANG ESTATE (BCSC) (2011)- children gifted in the will -Common law presumption is that in the case of a gift to the descendants of a person the descendants encompassed only lawful descendants -Today children born outside marriage and adopted children would be included in this presumption -Such a gift doesn’t include step descendants CONSTRUCTION- PER STIRPES - In per stirpes CANNOT SAY “to my kids in equal shares per stirpes” Per stirpes- lineal descendants each line will share the amount that line gets RE KARKALATOS ESTATE (1962)(SCC)- applied per stirpes division - will says life estate for wife and on her death his estate shall be paid between his 2 daughters and if one dies then estate is to divided/w my grandchildren “per stirpes, in equal shares” - T daughter E died leaving one child MG. M other daughter who is living and has 3 kids- J, L, Marina - “to among and between my grandchildren per stirpes in equal shares” the T intended to refer to the stocks represented by his 2 daughters so that ½ of the portion of the estate would go to MG and other half to 3 kids of M o Division of the estate at their respective deaths to among and b/w their children per stirpes in equal shares = supports view that equality of division b/w the 2 daughters during their lifetimes and their respective families after their deaths was a part of the testamentary scheme RE CLARK ESTATE (1993)(BCSC)- per stirpes word used but didn’t go w/ T intentions - “hold ½ of residuary estate for my grandson, R, and divide ½ of my residuary estate in equal parts and transfer one part to each of the children of my son, G, per stirpes”… R is alive and G has 6 kid - “children of son G per stirpes”= Per stirpa distribution at G kids and it ends there. So goes to 6 children of G, if one dies it doesn’t go to the childrens kids (so great grandchildren get no share here) Normally a gift remainder to “my children per stirpes” means a gift to all the T children and children who die then their kids get the gift Determining T intention: If T was concerned about great grandchildren then she should have been equally concerned about the children of R as she would be about children of G. she lent money to R so he may be favoured. T made no provision for children of R so probably didn’t intend to make provisions 4 other grandkids. found other small errors in will maybe using word per stirpes an error? DICE V DICE ESTATE (ON)(2012)- what to do when word per stirpes and issue used 2gether - divide residue equally b/w son J and daughter M per stirpes. J dead. Who would be entitled to J share of the residue? J has 3 kids. Found J kid’s are entitled to J’s share of the residue - various aspects of the will, including D use of the words “per stirpes” indicated an intention to benefit the families of each of his children equally if either of his children predeceased his wife. - clauses in will + surrounding circum = didn’t help much in assessing intention of T for residue - what is evident is general intention to benefit his children more or less equally - clear that T intended that the words “per stirpes” have some meaning b/c if he didn’t he wouldn’t have included them - when have word “per stirpes” and “issue” used together = most logical meaning is intention to benefit each of T children as well as intention to benefit at least each child’s children if named child fails to survive the life tenant CLASS GIFTS - don’t name specifically who you want to take the gift but describe what group you want to take 38 - the gift would be to a class of persons included under a general description and bearing a certain relation to the T or another person if it is a class gift and 1 or more persons in the class died in T lifetime, the survivors in the class take the gift equally amongst them. So if someone dies in class gift then gift DOESN’T fail MILTHORP V MILTHORP (2000)(BCSC)- test for class gifts - “to my husband’s children, J, R, E, R,R,G in equal shares per stirpes”. FOUND: No class gift to husbands kids – T specified by name indiv who got the gift + nothing in will showing intention for class gift + if it said “to all our children”= probably class gift - Per stirpes language indicated an intention to benefit the issue of predeceased husbands children so husbands children who predeceased T their issues take their parents share *this isnt a class gift* - If a gift to an indiv fails as a general rule a gift lapses and devolves on intestacy (when no per stirpes language) - If a gift to a member of a group/ class fails then that gift doesn’t lapse but is shared by the remaining members of the class who survive the T - Kingsbury-test for class gifts: when there is a gift to a number of persons who are united or connected by some common tie and you can see that the T was looking to the body as a whole rather than to the members constituting the body as indivs, and also you can see that he intended that if one or more of that body died in his lifetime the survivors should take the gift b/w them= give effect to T wishes - Gifts to several persons designated by name or number or by reference = likely not class gift RE HUTTON (HC)(1983)- found to be class gift - “estate in equal shares among my brothers and sisters ABCD… provided if any of bros/sis die and have kids then kids shall take parents share - court: residue divided amongst siblings alive at T death - One bro died and his kid died but had living grandchildren – court: no gift to grandchildren - At time executed codicil presumed T knew brother had died. And knowing this he didn’t change the will and left portion of estate to A daughter + language just talks about child predeceased sibling nothing about grandchildren CONSTRUCTION- CLASS CLOSING - When the doc comes into effect it may be possible to immediately identify all possible members of the class – IE if it says to all my kids then closed and everyone identified b/c after T dies no more kids - General principle: class closes in favour of all existing members when 1 member of the class has a vested interest and is in a position to call his share- when class is closed can determine the minimum amount that person is entitled to and distribute it immediately and as ppl start qualifying start distributing - If there is a condition that something must happen b4 you can take then until that thing happens ppl can keep joining the group *once first persons interest vests the class closes* - Essentially once the first persons interest vests (IE hits 21) the group closes and everyone else in the group who is yet to hit that thing (IE turning 21) can benefit but no one else, so if baby born after group closes it wont benefit but if baby born b4 group closes then it’s a part of the group - The class closing rules are subject to a contrary intention in the doc creating the gift - Class closes at the earliest opportunity essentially when a member of class can call on the gift IN RE BLECKLEY (1951)(CA)- summarizes diff categories of class gifts - trust fund was to held “for all or any children of my son H… who shall attain the age of 21 yrs +” - H remarried- H has 2 kids, 1 died shortly after birth, daughter T who attained age of 21 – she is claiming pay trust funds to her. - Andrews: rule of convenience: where there is a gift of an aggregate fund to children as a class, and the share of each child is made payable on attaining a given age or married the period of distribution is the time when the 1 st child becomes entitled to receive his share and children coming into existence after that period are excluded *we have rule is we don’t want to make ppl wait too long to enjoy gifts* - 4 types of cases 1. Vested gift no prior interest- gift to a class w/o any life interest or qualifications (ex: age, marriage) ect. IE: gift to all the children of A o Class of persons entitled is limited to those members of the class alive at the death of the T… cant let in children born after o If no kids born when T dies gift fails unless it is possible for A to still have kids in the future 2. No contingency, prior interest- “to B for life and remainder to the children of A” o Earliest date in which class can close is the date of termination of B’s life interest (can’t close until B life interest ends) 39 o If child alive at the date of the T death the class will consist of that child + any children born during B’s life estate. If any of those children die during life estate of B their estate gets their share o If no children alive at date of T death= class consist of the children born during the life estate o If no children alive at date of T death and no kids born during life estate of B= law probably is that all children born to A after the date of the termination of B’s life estate will take 3. Contingent gift, no prior interest- gift to the children of A if they reach 21 yrs old o At date of T death A has child aged 21+ but none younger= class closes in favour of existing children o At T death A has atleast 1 child over 21 and some younger than 21 = class will close in favour of those alive children at that point. A distribution can be made immediately to the children who are 21+. The kids under 21 if they hit 21 get a share if they don’t hit 21 their share will be shared by the other members of the class o At the date of T death A has children all are under 21= Class remains open until a child of A reaches 21 and then it closes. Any child born to A in that period falls into class o A has no children at date of T death= Class remains open until 1st kid hits 21 and will incorporate all children born b4 the 1st kid reaches 21. 4. Contingent gift, prior interest- To B for life remainder to those children of A who attain 21 yrs old o Earliest date for closing the class is the date of the termination of the life estate (death of B) o If a child reaches the age of 21 while B is alive the class closes at B’s death in favour of all children who were alive at the date of the T death or who were born during the period of the life estate and who have reached or eventually reaches 21. If child is 21 at the date of T death or reaches 21 during the life estate but dies before the termination of the life estate = the child having died w/ a vested interest will pass its share to its estate o Children alive at termination of life estate but none are 21= class closes when 1st kid hits 21. All kids alive at that point are part of class and will take if reach 21. o If no kids alive when life estate ends (B dies)= class closes when any child born to A reaches 21 and closes in favour of that child + any child alive when that kid hits 21 o It would seem if a child is born to A it reaches the age of 21 and no other child has been born = class close in favour of that child alone SHORROCK ESTATE V SHORROCK (MAN)(1996) - Gift to the grandchildren is found to be a class gift here - Rule is that members of a class are prima facie determined as of T death – but where there is a conditional gift to a class then rule is changed and in such cases the class is to be ascertained when the first member becomes entitled to the actual payment and enjoyment of his share RE CHARITON ESTATE (MAN) (1918) - Will: all living children of my siblings when they attain 21 yrs of age - Court held that all children before the eldest child reached 21 age would be entitled to participate in equal degree. When the eldest child reached 21 the class would be closed and no child born after that time would be entitled to participate - This is a class gift and class includes all grandchildren born before the eldest child reaches 21 – then class will close and balance will be distributed to each child in per capita shares as he reaches 21 yrs INCAPACITY PLANNING - - This deals w/ when a person becomes incapable and how to deal w/ their financial and personal affairs once they become incapable Key planning documents 1. Enduring POA- a person while CAPABLE could make an enduring POA conferring on an attorney powers to handle legal and financial affairs should the person become incapable (POA Act s. 8) 2. Representation agreement- a person while capable could make a RA conferring on a representative powers to deal w/ financial or personal affairs or both should that person become incapable 3. Advance directive- a doc in which the person gives express directions about how health care is to be given or not given if that person becomes incapable 4. Committee- court appoints a committee to handle financial or personal affairs or both of a person found to be incapable- Patients Property Act If don’t have a EPOA and become incapable you go under committeeship process whereby court designates a committee for you Attorney and committee have a fid relationship w/ P 40 - Unless POA says otherwise, cant use that power to benefit the attorney but the committee can benefit the patient and his family POA – dealing w/ POA Act Common law POA becomes ineffective if the donor becomes incapable but POA Act changes that w/ the enduring POA – s. 8 w/ enduring POA the powers cont’d to operate even if the donor becomes incapable w/ a POA while the adult is capable have to act on his instructions and there is a agent principle relationship BUT once he is incapable then don’t need to get instructions from adult and it turns into a fid relationship and have to act in their best interests – fid can never benefit from their position can have a conditional POA springing POA – IE not giving POA until I become incapable Attorneys can be given unlimited powers or limited powers (IE can only pay my bills) What an EPOA allows: an adult may in a EPOA confer on an attorney in relation to the adults financial affairs the power to make decisions on behalf of the adult or do anything an adult may lawfully do by an agent. EPOA may grant general or specified powers (s. 13)- essentially can do w/e w/ estate + assets Limits on what EPOA can authorize: EPOA CANNOT authorize (1) directions to do anything prohibited by law or omit to do what is req by law (s. 15) AND attorney cannot make or change a will for the adult (s. 21) (3) cant profit from your position (4) cant sell or transfer to yourself or your spouse(5) can only deal with financial and legal (5) have to abide by the terms in the doc Only adults can make a EPOA- s. 11 (a minor cannot act as an attorney until it becomes an adult) Adults aren’t capable of making an EPOA if they are incapable of understanding the nature and conseq of making it (s. 12) – adults are incapable if they cannot understand ALL of the following: Their property and its approx. value/ Obligations owed to dependents/ 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 attorneys authority/ Fact the power may be revoked/ Any other prescribed matter An attorney can be an indiv, PGT or financial inst (s. 18) Restrictions: an indiv or an employee of a facility in which the adult resides which provides personal or health care to the adult for compensation = cannot be named an attorney unless that person is a child, spouse or parent of the adult. Can have more than one attorney, if 2+ attorneys they maybe assigned diff or the same areas of authority. If same area then presumed to be co-attorneys unless power says differently. If co-attorneys they must act unanimously unless power says don’t act unanimously. (s. 18(4)(5)) Req’s for EPOA o be in writing, signed and dated by the adult in the presence of 2 W, signed by both W in the presence of the adult- only 1 W req if the W is a lawyer or NP(s. 16) o If adult physically incapable of signing another person can sign on his behalf if the adult is present + directs the power be signed +sig of the person signing is witnessed by 2 W (1 W if lawyer/NP) o Persons who cant sign on behalf of an adult: W to sig + person prohibited from being a W o Cant be a W: attorney, spouse/child/parent/employee/agent of an attorney, minor, a person who doesn’t understand the mode of communication of the adult unless there is an interpreter. If attorney is a lawyer or NP in good standing, Public GT, or a financial instit their employees or agents may sign as W o when attorney signs has to be infront of 2 W but adult doesn’t need to be there. Another person may sign for the attorney. Those ppl who cant act as W for the adult’s sig also prohibited from acting as W for attorneys sig (s. 17) o for land have to abide by LTA EPOA effect on the latest of: (i) the date by which the adult and an attorney has signed (ii) the date state in the power to be the effective date (iii) the occurrence of an event specified in the power as bringing the power into effect (s. 26) How to change an EPOA: a capable adult can change an EPOA using the same procedure req to make it- subject to the terms of the EPOA. After making the changes to EPOA adult has to give written notice to each attorney and change isnt effective till notice is given. Any change binding on the attorney (s. 28)- side note: if attorney isnt happy can always resign If EPOA covers land: then s. 57 of LTA provides that a POA filed in the LTO may be revoked by filing a notice of revocation Attorneys delegating decisions – S. 23 prohibits an attorney from delegating decision making authority given by an EPOA except w/ respect to investments Attorney may make a gift, loan or charitable gift in these cirum: (1) gift is expressly authorized by the EPOA (2) if not authorized in EPOA then if sufficient property will remain to meet the needs of the adult + the adults dependents and satisfy the adults other legal obligations + the adult when capable made gifts or loans of the type to be made + the total annual value isnt more than the prescribed amount (s. 20) 41 Gifts or loan to attorney- only allowed if EPOA permits it Duties of an attorney: an Attorney must act honestly and in good faith, exercise the care, diligence and skill of a reasonably prudent person, act within the authority given in the EPOA and under any enactment, and keep prescribed records and produce the prescribed records for inspection and copying at the request of the adult, act in the adult's best interests, taking into account the adult's current wishes, known beliefs and values, and any directions to the attorney set out in the enduring POA, to the extent reasonable, give priority when managing the adult's financial affairs to meeting the personal care and health care needs of the adult; foster the independence of the adult and encourage the adult's involvement in any decision-making that affects the adult; with respect to property: keep adults and attorneys property separate unless jointly owned/invest in accordance w/ the trustee act/ don’t dispose of property which is subject of a testamentary gift unless stated to do so in the duties (s. 19) Attorney acting under an EPOA must make a reasonable effort to determine the adults assets and liability and keep list of them and accounts and records (s. 2) Payment to attorney: not entitled to payment unless the EPOA authorises it and the EPOA has set out the amount or rate of the compensation. Attorney is entitled to be reimbursed from the adult’s property for reasonable expenses properly incurred (s. 24) Resignation of a attorney: attorney may resign by giving written notice to the adult + anyother attorney – if adult is incapable then give notice to spouse, near relative or close friend of adult (s. 25) Authority of the attorney ends when (s. 29): EPOA is terminated, provisions of the EPOA that give authority to attorney are revoke, if attorney becomes incapable, is bankrupt, dies or is convicted or a offence including offence in which adult is the victim; if attorney is a corp and dissolves, if attorney is the spouse of the adult and marriage ends subject to provision in EPOA saying authority will cont’d after the relationship ends Attorney not liable for loss/damage if duties are met (s. 22) EPOA terminates when (s. 30)- (i) according to its terms (ii) if adult revokes it (iii) if adult dies (iv) court terminates it under the POA Act (v) terminated under the patients property act s. 19 Improper exercise of authority by the attorney- is binding on the adult w/ respect to persons who didn’t know and had no reason to believe that the exercise of authority was improper (s. 31) MCLULLEN (2006)(BCSC)- POA must be exercised w/ the instructions of the donor unless the donor is incapable Kids have enduring POA for dad. Dad meets new lady he is 86 yrs old. New lady is milking him for $. Kids get worried try to protect dad they use their POA to transfer dads condo to the kids husbands leaving 1% share w/ the dad. Court orders this transfer to be set aside b/c dad didn’t authorize it Capable donor= attorney is agent- can only take steps if instructed. Incapable donor= attorney is fid They removed dads indiv autonomy – dad is capable at this point and can live however he wishes Cant use POA to protect against stupid acts EASINGWOOD V COCKROFT (2013)(BCCA)-Attorney creating a trust isnt considered making a testamentary doc 2nd wife for dad. Gave 2 kids have joint enduring POA. R becomes incapable. 1 kid becomes ill- thinks he might die b4 dad. Attorneys set up trust and transferred most of R property into the trust. Terms of the trust were identical to donors will in relation to the distribution of assets on death. Made trust to avoid probate and taxes. Keep in mind attorney cant make will for adult. POA authorized the creation of the trust. Wife claiming the kids didn’t have authority to put dads assets into a trust Court allowed the attorney to make a trust that would strip estate of assets that would have fallen under the will Court said attorney can make a trust as long as the post death distribution of the trust assets mirrors the asset distribution in the will + the inter vivos trust cannot be making a will for the adult Trust was ok here b/c didn’t diverge from R known intentions as reflected in his will + marriage agreement, business prudence, trust secured the principle assets for adults use during his lifetime O’Hagan: use standard of a reasonable business person to provide guidance by which to measure the attorney’s actions – steps taken by an attorney that lack business efficiency or coherence may indicate a lack of attention to the best interests of the principle Its ok if attorney is advantaged by decision as long as both adult and attorney are both advantaged HOUSTON V HOUSTON (2012)(BCCA)- if 2 POA’s look to intention to see if 1st one is revoked Adult granted 2 POA’s to son. Here the adult didn’t revoke the first enduring POA by the 2nd one In Re E: The execution of a later POA doesn’t automatically revoke an earlier POA. So the mere existence of one POA of itself doesn’t cast doubt over the validity of another POA. No implied revocation of the 1st POA w/ 2nd one- look to doc to see if intention of revocation- best place to look 42 A POA may be revoked either expressly or impliedly by doing an act which is inconsistent w/ the continuation of the power – POA Act says enduring POA can’t be impliedly revoked maybe for POA can bring in doctrine of implied revocation Implied revocation of POA must be done by clear and unambiguous action of donor REPRESENTATION AGREEMENTS – dealing w/ adults personal and/or health care and/or limited financial affairs Dealing w/ Representation Agreements Act (RAA) While capable an adult could appoint a representative to deal w/ the adults personal/health care affairs and/or financial affairs should the adult become incapable Have to act in the best interest of the person who granted you the status (fid relationship) RAA provides for 2 types of representation agreements(RA) 1. S. 7 RA’s which may provide for personal care, health care, and limited financial matters o A capable adult may make a s. 7 RA o An adult is presumed to be capable unless the contrary is established o Determining whether adult is incapable of making RA (s. 8) all relevant factors must be considered IE: whether adult communicates a desire to have a rep make his decision/ whether adult demonstrates choices and preferences and can express feelings of approval or disapproval of others/ whether adult has relationship w/ representative of trust… o S. (7,11): Scope of s. 7 RA: (1)adults personal care (2) routine management of the adults financial affairs (3) w/ some exceptions major and minor health care but rep ISNT authorized (i) authorized (i) to make or help the adult to make, decisions on the refusal of life supporting treatment (ii) to refuse consent in respect of matters under the mental health act (iii) to consent to sterilization for non therapeutic purposes (4) legal matters except divorce proceedings o S. 7 RA’s req each rep to complete a cert’f in the prescribed – if it isnt done RA is invalid- s. 5(4) 2. S. 9 RA’s which may provide only for personal and health care o Adults are presumed to be capable o An adult is incapable if he is incapable of understanding the nature and conseq of the proposed agreement (s. 10) Executing a RA: has to be in writing, signed by the adult, the sig witnessed by 2 W, signed by both W in the presence of the adult – only need 1 W if the W is a lawyer or notary (s. 13) o if adult is physically incapable of singing another adult may sign on behalf of the adult if (a) the adult is present and directs that the RA be signed (b) the sig of the person signing is witnessed as if the sign were that of the adult o W cant sign on behalf of the adult o Ppl who cant be W= a representative, or the spouse/child/parent/employee/or agent of a representative, a minor, a person who doesn’t understand the mode of communication of the adult, unless there is an interpreter. But if the attorney is a lawyer or NP, PGT, or financial inst= their employees or agents may sign o RA has to be signed by the rep. if 1+ rep they don’t need to sign 2gether and their sign don’t need to be witnessed s. 15: a RA becomes effective on the date it is executed or on the date of a later event specified in the RA. A capable adult may cont’d to do anything a rep has been authorized to do (s.36) A RA isnt terminated solely b/c the adult later becomes incapable of making a RA Who can be a rep: an adult or PGT (s. 5) Who can’t be a rep: (a) Any person who provides personal or health care services to the adult for compensation (b) An employee of facility in which the adult resides and through which the adult receives personal or health care- if the person is child, parent or spouse of the adult then this rule doesn’t apply (s. 5)- (c) A credit union or trust company may be appointed rep but only if the RA doesn’t include health or personal care Duties of a rep (s.16): a rep must: act honestly + good faith/ exercise the care, diligence and skill of a reasonably prudent person/ act within the authority given in the RA + rep must to the extent possible consult w/ adult to determine his wishes when making decisions and comply w/ these wishes as much as possible – this is subject to a rep acting within his authority or the rep agreement saying rep doesn’t need to comply w/ any instructions or wishes the adult expresses If 1+ rep is appointed = may be assigned the same or diff areas of authority. If they are assigned the same area of authority they must act unanimously unless the RA says otherwise. RA can provide for alternative reps- if it does it must specify the circum in which the alternate is to act ect. 43 a rep may resign by giving written notice to the adult, the other rep (including alternatives) and the monitor- if there is one. (s. 19) rep must not make or change a will for the adult (s. 19) Rep can retain qualified persons to assist them in carrying out their duties (s. 17-19) but cant delegate any authority given to him under rep agreement but can delegate investment matters (s. 16(6)) Rep has to keep accounts and produce them at the request of the adult, monitor, PGT (s. 16(8)) Remuneration of rep- s. 26: rep entitled to be reimbursed from the adults assets for reasonable expenses properly incurred in acting as a rep. Rep NOT entitled to remuneration unless the agreement (i) authorises and sets the rate and amount of remuneration and (ii) except where the PGT is the rep and the remuneration is authorized under the PGT Act, the court approves the payment of the remuneration. Even if agreement says it any payment in relation to the giving of consent to health care is void S. 34: a rep may (1) apply to the PGT for guidance on anything related to the reps role (2) apply to the court and the court may give directions or given an opinion about the interpretation of a provision of a rep agreement Monitors (s. 12)- an adult has a choice of whether or not to name a monitor. Appointment of monitor is mandatory in a s. 7 RA if the rep is entrusted w/ the routine management of the adults financial affairs. The req doesn’t apply if the rep is the adults spouse, PGT, a trust company or a credit union or if there are 2+ reps and they are req to act unanimously o Monitor must be 19+ o Monitor must complete a cert’f of prescribed form o Monitor may resign by giving written notice to the adult + all reps o If a M dies, resigns, becomes incapable or otherwise unable to act = authority of each rep is suspended until a new monitor is appointed under s. 21 or a court decides no M req. the authority of rep not suspended if the appointment of the M wasn’t req under the act and the RA provides that the authority isnt suspended b/c of the M resignation, death ect. o S. 26: a M is entitled to be reimbursed from the adults assets for reasonable expenses properly incurred in acting as M. a M isnt entitled to remunerated unless the agreement (1) authorizes and sets the rate and amount of renumeration and (ii) the court approves the payment of the remuneration. But any provision in an agreement that provides for payment in relation to the giving of consent to health care is void Changing and revoking a RA: o a capable adult may (a) change a RA by amendment executed in the same way manner as a RA (b) revoke a RA, written notice to be given to all reps and any M, and the revocation to be effective as soon as notice is given or on such later date as may be specified in the notice (s. 27) o A RA terminates (i) if the adult dies (ii) if a court cancels the RA pursuant to its power under s. 32(1) (iii) on the effective date of a revocation (iv) in the circum provided for in s. 19 of the patients property act …. Also terminates if the rep is the spouse of the adult and the marriage or common law ends, unless the RA provides it is to continue or the rep becomes incapable, resigns or dies. - last 2 don’t apply if the RA provides that any remaining or alternate reps may act o PGT can get involved if they think some shady stuff is going on- s. 30-33 ADVANCE DIRECTIVES – sets out decisions in a doc that bind medical caregivers The health care act (HCA) deals w/ directives- it makes provisions for the consent to or the refusal of health care on behalf of adults Advance directive is a written instruction given by a capable adult that complies w/ part 2.1 and it gives or refuses consent to health care in the event the adult is not capable of giving instructions at the relevant time (s.1)…. IE I don’t want a blood transfusion if I am in coma 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 (s. 19) Req for an advance directive (s.19): be in writing + signed + dated+ signed by the adult in the presence of 2 W and by both W in the presence of the adult o Only 1 W req if the W is a lawyer or NP o If adult is physically incapable of signing, another person may sign on behalf of the adult if (i) the adult is present and directs that the directive be signed and (ii) the sig of the person signing is witnessed as if the sig were that of the adult o A W to the signing can’t sign on behalf of adult 44 o CANT BE W: persons who provide personal or health care or financial services to the adult for compensation other than lawyer or NP, the spouse/child/parent/employee/agent of any of the above noted persons, a minor, a person who doesn’t understand the mode of communication of the adult, unless there is an interpreter. An instruction to do anything that is illegal or to omit to do anything req by law is invalid (s. 19) Who can make an advance directive: an adult unless the adult is incapable of understanding the nature of the directive and the conseq of making it. An adult is incapable if the adult cannot understand (a) the scope and effect of the instructions in the directive (b) that substitute decision makers will not make decisions on the matters covered in the directive Changing a directive: an adult who appreciates the nature and conseq of the change may change it and the change is to be executed in the same way as the directive was made (s.19.6) Revoking a directive(s. 19.6)- by: (a) making another doc (including another directive) expressing an intention to revoke (b) destroying the directive w/ the intention of revoking it When a directive may be used (s. 19.7)- a health care provider may give health care to an adult if a directive gives consent to the care, and must not provide care if the directive refuses consent, if: o In the opinion of the health care provider the care is needed o The adult is incapable of giving or refusing consent o The health care provider is aware of the directive, and doesn’t know of any personal guardian or rep who has authority in respect of the proposed care The health care provider only has to make reasonable efforts to determine if there is a directive, guardian, or representative When directive may not be used- a health care provider must obtain substitute consent for an incapable adult if the provider reasonably believes: o The directive doesn’t address/ unclear as to whether it addresses the health care in qst o The adults wishes, values or beliefs in relation to the health care have sig changed since the directive was made and the changes aren’t reflected in the directive o Since the directive was made, there have been sig changed 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 there is both a directive and RA: (1) the RA may provide that a health care provider may act in accordance w/ the directive w/o the reps consent (2) if (1) isnt applicable the directive doesn’t apply so far as it relates to any matter within the authority of the rep but the instructions in the directive shall be treated as the wishes of the adult for the purposes of the RA Act COMMITTEESHIP – PATIENTS PROPERTY ACT (PPA) Committee of estate= deals w/ persons legal and financial matters (like a POA) Committee of person= deals w/ health and personal care (like RA) One person can be appointed for both committees PGT must be notified in a committeeship application Court supervises committee (unlike POA who isnt supervised) The act provides for the appointment by a court of a committee to act on behalf of a person who falls under the definition of patient. A person can be declared a patient in 2 ways (s. 1): 1. If he is declared to be incapable of managing his affairs in a cert signed by the director of a mental health facility or psychiatric unit under the mental health act (paragraph a patient) o (s. 11) Stops being a patient in circum which include (i) being discharged from the mental health facility or psychiatric unit (ii) the delivery to the patients committee of a cert signed by the director that the person is no longer incapable (iii) being released on leave or transferred to an approved home if one of the conditions of the release is that the person is no longer incapable o Scope of C power: all rights + powers regarding estate that the P would have if capable 2. Declared by a judge to be incapable of managing his affairs, himself or both his affairs and himself (para. B patient) o When a application is made it must be accompanied by AFF from 2 medical practitioners stating that in their opinion person is incapable- s. 3 o If a person is declared incapable under para (b) – at any time after 1 yr from the making of the order, an app may be made for a declaration that the person is now capable. – s.4 o If patient is declared incapable of managing himself the committee has the custody of the patient o if para (b) patient every POA and every rep agreement so far as it relates to property is suspended until the PGT decides if it should manage the patients property under the act. If the PGT decides to act, any POA and rep agreements are cancelled. If the PGT decides not to act, the suspension of the POA and rep agreements is lifted 45 o scope of C power: if declared incapable of managing his affairs: all rights + powers regarding estate that the patient would have if capable/ if declared incapable of managing himself= C has custody of the patient If application made to court the court may appoint any person to be the committee of a patient – including PGT Until an appointment is made the PGT is the committee Court may attach conditions to the committees authority S. 18: committee must exercise the committee’s powers for the benefit of the patient + Patients family, having regard to the name and value of the property of the patient+ the circum and needs of the patient and the patients family S. 10: a committee, other than PGT, MUST: o Provide security for the proper performance of its duty if ordered to do so on the initial appointment or on a later application by the PGT o If req by the PGT, provide a true inventory of the assets and liabilities of the patient o Pass accounts before the PGT or the court as req by the PGT Only a committee may commence litigation on behalf of a patient (s. 22) If PGT isnt C, then a court, on application may rescind an appointment while a person is still a patient (s.6), or give a discharge to the C of a person who has ceased to be a patient (s. 12). Court may req accts to passed at this instances and if PGT says pass accts its REQUIREMENT S. 14: a committee has a charge on the estate of a patient for expenses properly incurred in acting as committee. A committee may be allowed reasonable compensation for services rendered as committee, but except w/ PGT, compensation must be set on a passing of accounts. No compensation needs to be claimed or made if in the opinion of the committee the payment of compensation would create poverty or hardship for the patient or his dependents If committee is discharged then committee released of all liability. if new committee appointed the former committee on being discharged stops being the committee and must transfer assets to new C s. 24: when a patient dies a committee continues to have the powers of a committee and also has the powers of a personal rep until the probate of the will or letters of admin of the dead patient are issued O’HAGAN (BC)(2000)- test of reasonable and prudent person of business, ok for committee to take tax-planning steps F is committee of his fathers person + estate. P (dad) 89 suffering from alzheimers disease for some yrs. P has low mental function + cant communicate. Ps main asset is shares in his company. b/c of tax implications (estate worth $10 mill) F is told to reorganize shares so when P dies not as much tax conseq. Existing shares exchanged for new shares went into a trust of which the dad was sole B during his lifetime and after dies sons were the B Application to court to approve the estate freeze- transfer of shares= court allowed this estate plan Looks at s. 18 of PPA which says a committee must exercise his “powers for the benefit of the patient and patient’s family…”= don’t limit this to orders considered necessary for well-being of patient or his family Factors court took into consideration: dad really old- 89 + really incapacitated+ no recovery+ he could call the trust if he regained capacity + huge estate + transaction wasn’t necessary but clear benefit to P family + passed prudent person of business test + doesn’t jeopardize his estate doesn’t diminish it + plan mirrors plan under the will When considering whether to carry out a proposed act then apply the standard of a reasonable and prudent person of business – would a reasonable and prudent businessperson think that the transaction or transfer in qst would be beneficial to the patient and his family given the circum that are known at the time and the possibilities that might arise in the future – this shouldn’t involve guesswork and is a matter on which prof advice can be sought – passed test here. Consider this: o In making decision take into account P own interests, present and future- really import o Consider possibility of P recovering from disease/illness- if very small chance don’t consider too much o Consider likelihood the P condition will change for the worse in the future- req more money for personal care BC V BRADLEY ESTATE (2000) (BCCA)- use this if you want C gift to fail H is the committee. P suffering brain hemorrhage and stroke. 63 yrs. Serious injury probably wont regain her mental function. Cost of her care very cheap right now. P will says when she dies 1/3 to H and 2/3 to kids. Estate is large. H is US citizen- many tax implications upon death. H got tax advice that to reduce tax liability he should start making gifts to himself and kids from P $ b4 she dies. Court didn’t approve a gifts from P to H and P’s kids – rejected! Court affirms O’Hagan- transactions not prohibited on the part of the C merely b/c they aren’t necessary. C held to the standard of care of a reasonable and prudent person of business Comparison b/w this case and O’Hagan o P is 65, O’Hagan P was 89 46 o Here: P may live for many yrs even though docs say probably wont. If condition worsens might need more expensive care. O’Hagen- dad totally gone o Here: C will be diminishing P estate from 2.6 mill to under a mill – huge decrease. In O’Hagen the shares would go into a trust help for him the value of trust property remains the same and only dad benefited from the trust while alive o Here: if she recovered from medical problems would find her estate is HUGELY decreased. Taking $ away from her. In O’Hagen putting $ in trust not taking away not making inaccesible Yes this gift helps save tax BUT reasonable and prudent businessperson considering all the circum and placing P interests first wouldn’t proceed w/ the gifts that are proposed- the gift worked in O’Hagan b/c the patients interest werent compromised in anyway but here they are CAPACITY + RELATED TOPICS - S. 36 wesa- person who can make will= 16+ age + mentally capable of making a will -if under 16 and make a will it isnt valid - S. 38 wesa- a member of the CDN forces while placed on active service under the National Defence Act or a member of the naval, land or air force = regardless of their age - Capacity is a absolute req for a valid will- this is a common law req not in statute – capacity is built on the case law – test for capacity in Banks v Goodfellas - Things you need for a valid will: (a) capacity (b) have knowledge and approval (c) cant have fraud (d) cant have undue influence (e) have formal req of will execution under WESA - General rule for capacity: It is presumed that a T has capacity it doesn’t have to be proven unless someone takes issue w/ it. if questioned then burden lies on executor to prove that the T had capacity and had knowledge and approval - General rule for undue influence and fraud: if bringing forth UI or fraud argument then onus on the person attacking the will to prove there was UI or fraud. Executor doesn’t have to prove that there was no UI or fraud - Test for capacity for inter vivos gifts or transfers not the same as for wills: o Higher standard for inter vivos than for a will b/c w/ inter vivos gift your depriving yourself right away but w/ a will depriving yourself after your dead o S. 12 of POA Act states what is needed for a valid POA- print this out CAPACITY- cases below discuss it KNOWLEDGE AND APPROVAL- this has no relevance if the person is found not to have capacity. If found to not have capacity then you don’t have knowledge and approval. Once found person has capacity then turn to knowledge and approval req. will cannot be probated if T doesn’t know its content. UNDUE INFLUENCE (UI)- doctrine of equity. Due influence- can to some extent influence what someone puts in their will (this isnt UI). UI will invalidate a will. FRAUD- don’t focus too much in this course VOUT V HAY (1995)(SCC)- knowledge and approval & UI & suspic circum & capacity In summary the principles the court brought forth here are: The person propounding the will (saying its valid) has the legal burden of proof w/ respect to due execution, knowledge and approval + testamentary capacity These are presumed if the will was properly executed after having been read over to or by the T who appeared to understand it then it will be presumed T knew and approved of it + had testamentary capacity – this is a rebuttable presumption A person opposing probate has the legal burden of proving undue influence The standard of proof on each of the above issues civil- balance of probabilities If evidence of suspicious circum brought forth then legal burden reverts to the propounder generally. Suspic circum: generally evidence if accepted would tend to negative knowledge and approval or testamentary capacity. If a party writes or prepares a will under which he takes a benefit = generally a susp circum Suspicious circum may be raised by: circum surrounding the prep of the will/ circum tending to call into qst the capacity of the T/ circum tending to show that the free will of the T was overborne by acts of coercion or fraud A well grounded suspicion of undue influence will not of itself discharge the burden of proving undue influence on those challenging the will BANKS V GOODFELLOW (1870) (ENG)- Capacity test Was the T of sound mind as to be capable of making the will on the day he made it? – yes 47 At earlier times T had been of unsound mind – he thought some dead guy was after him + believed devils and evil spirits. Suffered from epileptic fits + considered insane+ but T managed his own money affairs and was careful w/ his money + read will carefully 2-3 times b4execyted it can have situations where mind is overpowered by delusions but leave the indiv in all other respects rational and capable of transacting the ordinary affairs and fulfilling the duties and obligations incidental to the various relations of life ok to have bad memory/some delusions that don’t relate to testamentary capacity test for capacity: 1. T must understand the nature of the act of making a will- IE disposes of persons property after death 2. The T needs to understand the extent of the property of which he is disposing- needs to know value of the estate approx. 3. Need to be able to understand and appreciate the claims that society expects them to give – are they thinking about family and friends- normal ppl you would gift to in deciding upon the capacity of the T to make his will, it is the soundness of the mind and not the particular state of the bodily health that is to be attended to ROYAL TRUST COMPANY V RAMPONE (BCSC)(1974)- can lack capacity in managing own affairs but can still have capacity to make a will challenge on 2nd codicil. Distribution is amended in the 2nd codicil to bring in the 2 remaining sons so then residue split b/w all 6 kids. 10 days before made will the T was declared incapable of managing his own affairs so appointed a committee. All the faculties, moral and intellectual maybe involved (raving maniac) VS one or more faculties are disordered while the rest are left unimpaired and undisturbed- so even though affects some aspects the indiv in other respects is rational and capable of transacting the ordinary affairs No evidence of T suffering from delusion when he made 2nd codicil- just mistaken about son owning a farm which he didn’t So someone who doesn’t have the capacity to manage his own business affairs can still have capacity to make a will – diff things – being able to manage business vs understand making a will Just b/c someone is unable to manage their affairs (ie day to day affairs or financial affairs) DOESN’T MEAN they are incompetent to make a will RE THE ESTATE OF BOHRMANN (1938)- found to lack capacity and one provision of codicil struck down T paranoid psychopath –he thought govt was going to expropriate some of his property. made codicil changing the B from charities in England to charities in the USA= court said this is evidence he doesn’t have capacity Applied law from Banks – law recognizes that a man may suffer from delusional insanity and yet make perfectly good will so long as the delusions from which he suffers have no relation to any testamentary capacity Judge took into account the fact that T was suffering from delusional insanity + difficult to put any reasonable interpretation upon this particular declaration (changing everything to USA charities- if you hate LCC why does it make you hate all UK charities?) Court considered the one clause APART from the rest of the codicil – court deleted clause 2 of 4th codicil b/c T suffering from delusion at the moment he made KEY & ANOR V KEYS & ORG (2010)(ENG)- “golden rule” for making will for someone old and/or ill Result: will found to be invalid b/c of lack of capacity 89 yr old when made will and his wife of 65 yrs had been dead for only a week when he made the will + L didn’t take proper steps to satisfy himself of T testamentary capacity + didn’t make notes Golden rule: when a solicitor is instructed to prepare a will for an aged T or for one who has been seriously ill, he should arrange for T to meet w/a doc to make a report on capacity and understanding of the T o Compliance w/ the golden rule doesn’t operate to show validity of a will nor does non compliance demonstrate invalidity **just used in avoidance of disputes* The affective disorder such as depression including that caused by bereavement (grief) is more likely to affect powers of decision making than comprehension – a person in that condition may have the capacity to understand what his property is and even who relatives/dependents of his are w/o having the mental energy to make any decisions of his own about whom to benefit Here in regards to the Banks test the court made a slight development in this test by taking into account decision making powers rather than just comprehension – have to make this change b/c of the greater understanding of the mind now available from modern psychiatric medicine 48 Prof: I don’t think that the Banks test expressly goes to the ability of the will-maker to make up his mind – perhaps that is implicit, but it is not an explicit element. I think Keys in the last paragraph emphasizes that even if the will-maker could meet each of the Banks elements, the will-maker was so distressed/depressed that he could not have made a final decision. I think that is the “slight development” on Banks SHARP AND BRYSON V ADAMN AND ADAM (EWCA)- found T lacked capacity 20 yrs before T died he suffered from secondary multiple sclerorsis. Close to death it got to point of extreme physical debilitation- couldn’t speak, read, communicate. B4 will gave everything to his 2 kids. One yr before death changed will to give residue to S and B and didn’t give daughters anything. Found: T didn’t have the testamentary capacity We had evidence of friends, L, caregivers- who T told he intended not to leave anything to daughters to- saying T knew what he was doing. Expert evidence from docs who have never met T saying his cognitive ability and memory and executive functions had been impaired- didn’t know what he was doing expert evidence was the one the court sided w/ Banks does ask is there sufficient cognition for testamentary purposes? The fact that he left his will to friends and nothing to daughters was not understandable PARKER V FELGAT (1883)- capacity at execution stage not as imp as capacity at time of giving instructions given you fall into 1 of the SOMs T gives instructions and a yr later he executes the will. But very ill when executed will. Law applicable here is: if a person has given instructions to a solicitor to make a will, and the solicitor prepares it in accordance w/ those instructions, all that is necessary to make it a good will, if executed by the T, is that he should be able think thus far “I gave my lawyer instructions to prepare a will making a certain disposition of my property. I have no doubt that he has given effect to my intention and I accept the doc which is put before me as carrying it out” (3rd SOM) 3 stages of capacity that a T may be able to answer: 1st state of mind: Do you believe that T was so far capable of understanding what was going on? Did she at that time know and recollect all that she had done w/ L? 2nd SOM= if you come to the conclusion that she didn’t at that time recollect in every detail all that had passed b/w them, do you think that she was in a condition, if each clause of this will had been put to her, and she had been asked “do you wish to leave X so much” she would be able to answer intelligently “yes” to each qst 3rd SOM: a person might no longer have capacity to go over the whole transaction, and take up the thread of business from the beginning to the end, and think it all over again but if he is able to say to himself “I have settled that business with my lawyer. I rely upon his having embodied it in proper words, and I accept the paper which is put before me as embodying it”- it isnt necessary that he should use those words but if he is capable of that train of thought then that is sufficient PERRINS V HOLLAND (EWCA)(2010)- court affirms Parker is still good law Caregiver told L to get instructions for new will which gave her everything.. 19 mth delay b/w giving instructions and executing will. T only executed will once he got L bill The will is found valid- T didn’t lack testamentary capacity both when he gave the instructions for the will and when he executed it WHAT IS REQ’D is due execution of a will which the court can be satisfied expressed the wishes of a T at a time when he did have full testamentary capacity and has not been subsequently revoked In a case in which the principle in Parker v Felgate is applied it isnt necessary to prove knowledge and approval of the will provided that (a) the T believes that it gives effect to his instructions and (B) it does in fact do so Judge: T had testamentary capacity when he gave instructions and those instructions were carried forward into the draft will and concluded T wishes remained unchanged when he executed the will. HALL V BENNERR ESTATE (2003)(ONT CA)- lawyer not making will b/c thinks T doesn’t have capacity 12 hrs b4 T died L asked to come make a will. Few hrs b4 death the L met T and she gave him instructions. L didn’t draw up the will in the hospital room b/c he didn’t think T had capacity. Friend who was suppose to get a gift now suing L for negligence- L found not negligent b/c he didn’t have a retainer from the T Generally if no retainer given then L owes no duty of care – in the absence of a retainer to prepare a will the L owed no duty to 3rd parties Judge mentions that he thinks it is at least questionable whether the lawyer regardless of his opinion on T capacity, could be found to be under any legal obligation to accept the retainer to prepare T will 49 PUBLIC TRUSTEE V GILL (2001) (NEW ZEALAND)- duty of lawyer to make a will where capacity is doubted Judge says in his 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 circum are such as to raise doubt in the mind of a reasonably competent solicitor – such duty is confined by the scope of the retainer + limited by the lawyers fundamental duty to comply w/ the clients instructions L is generally bound to follow the clients instructions and can’t decline to proceed w/ a will except in the exceptional circum like illegality, breach of ethical obligation or where a client is so obv lacking in mental capacity that the instructions aren’t really instructions at all Most that could be expected of the reasonably competent lawyer is ability to recognize possible warning signs like age, ill health, irrational behaviour ect. – if no signs no obligation of L to inquire Lawyer can presume testamentary capacity unless there is reason to suppose otherwise WINTLE V NYE (1959) (ENG)- knowledge and approval L don’t take residue of will you made L had been T family legal advisor – L took the residue of the T estate under the will. T elderly lady doesn’t know business well, no one to rely on except L, no ILA, makes will giving a lot to L Is the will invalid?- yes It is not the law that in no circum can a lawyer or other person who has prepared a will for a T take a benefit under it – but that fact creates a suspicion that must be removed by the person propounding the will If the person who made the will takes a large benefit from it = really bad position make sure T not only signed but that she knew and approved of its contents. RUSSEL V FRASER (1980)(BCCA)- Knowledge and Approval-- T must know general amount of residue to have knowledge and approval T made will when 79, uneducated, little knowledge of business and real estate. On T request F took instructions for her will. F asked what ru going to do w/ residue and told her she could leave it to him. T replied that was a bit much after further discussion she eventually agreed. On death almost 50% of estate ended up in residue.($60k) Gift of residue clause is invalid It is clear that where the propounder of the will is shown to have participated in the preparation of the will and to take a benefit under the will, he must satisfy the conscience of the court that the part of the will under which he benefits had the full knowledge and approval of the T In order to have knowledge and approval of the contents of the will it was necessary that the T be aware of the value or magnitude of the residue of the estate on the date will is drawn where there is a gift of residue: T doesn’t need to know the precise amount but know approx. value of the residue. We need positive proof here that T knew amount of residual gift- no evidence here to support the conclusion that she was aware of the amount of the residual gift and such evidence cannot be supplied by showing that the T was an intelligent, mentally alert person + aware of the amount in her bank accts. MADDESS V ESTATE OF JOHANNE GIDNEY(BCCA)(2009)-knowledge and approval—language difficulties alone doesn’t mean don’t have knowledge T had difficulty speaking English and not good in business. fact that T didn’t speak very good Eng in and of itself didn’t tend to show that she didn’t have the req knowledge + fact she wasn’t sophisticated in business doesn’t tend to show that she didn’t know the effect of her clear instructions to L Receiving tax advice doesn’t give rise to suspicious circum that would tend to negate knowledge and approval LASZLO V LAWTON (2013)(BCSC) – knowledge and approval- principle The principles to be taken from the case law are that the T aren’t expected to know the exact composition of their estate assets and their value w/ exact precision. An appreciation of the general nature of the estate assets and an understanding of their extent- so their approximate value or the approximate value of the estate at large- expressed either in terms of dollars or quantitatively (a lot of money or a substantial fortune) is enough UNDUE INFLUENCE - S. 52 WESA: In an action, if a person claims that a will or any provision of it resulted from another person (a) being in a position where the potential for dependence or domination of the T was present, and (b) using that position to unduly influence the T to make the will or the provision of it that is challenged, 50 and establishes that the other person was in a position where the potential for dependence or domination of the T was present, the party seeking to defend the will has the onus of establishing that the person did not exercise UI over the T with respect to the will or the provision of it that is challenged. - BCLII Report: a transfer that results from UI will be set aside whether its under a will or inter vivos transfer. When changing will on UI the challenger always has the onus to prove that UI was actually exercised. The influence has to result in a will that doesn’t represent T true wishes. - Community care and assisted living act s. 3: a licensee cannot or attempt to persuade/induce a person in care to make or alter a will, provide a benefit for the licensee or their spouse, friend… - Hospital act s. 2 and 3: an employee cannot or attempt to persuade or induce a patient to make or change their will or provide a benefit for an employee or their spouse, relative ect. – provision of will void if it does this WINGROVE V WINGROVE (1885)- UI= coercion In order for there to be undue influence there must be coercion – only when T is coerced into doing that which he doesn’t desire to do is it UI. Coercion: T is in such a condition that if he could speak his wishes to the last he would say “this isnt my wish but I must do it” w/ UI understand what they are doing but compelled to do w/e they are doing Diff kinds of coercion: Actual confinement or violence Person in last days or hours of life may have become so weak and feeble that a very little pressure will be sufficient to bring about the desired result Mere talking to him at that stage of illness and pressing something upon him may fatigue the brain and the sick person may be induced for quietness sake to do anything Not sufficient to establish that a person has the power unduly to overbear the will of the T- Necessary to prove that in the particular case that power was exercised to amount to coercion CRAIG V LAMOUREAUX (1920)(SCC)- case of UI H and W , one very sick and plea made to survivor to leave it to the other person. Will isnt valid once it is proved that a will has been duly executed by a person of competent understanding, the burden of proving that it was executed under UI rests on the party who alleges this. spouses and kids can ask for their recognition in their will – that is ok and not UI. The persuasion has to stop short of coercion and the testamentary disposition must be made w/ comprehension of what is being done Undue influence in order to render a will void must be an influence to have caused the execution of a paper pretending to express a T mind but which really doesn’t express his mind but something else which he didn’t really mean. Not sufficient to establish that a person has the power unduly to overbear the will of the T – it must be shown that in the particular case the power was exercised, and that it was by means of the exercise of that power that the will was obtained BOLIANATZ ESTATE V SIMON (SKCA)(2006)- fraud - Whether or not the S course of conduct effectively amounted to fraud such that he would be disentitled to take under the will as a beneficiary?- No - S named executor of T will. When will executed T didn’t know S was stealing $ from him. S was convicted of fraud. Not sure if S knew about the fraud when he executed the will - Kennel Rule: wherever a legacy (gift) 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 avail himself of it; so he cannot demand his legacy - in order for Kennel rule to come into operation 2 things must exist: (1) the false assumption of the character of the legatee and (2) there must be evidence or a presumption or inference that the false character was the motive of the T bounty - does the false character of honesty and trustworthiness lead to a presumption or inference this character was the reason for the bequest? – can it be said that the T wouldn’t have made the bequest to S if he had known of the fraud?- No b/c open to idea that S was named executor b/c the T had confidence in him and believed him to be trustworthy - purpose of the fraud must be to obtain the legacy. Keep in mind gift didn’t result from the theft - can draw a link b/w the attributes of honesty and trustworthiness to the position of executor but no basis for drawing a link b/w those attributes and the position of the gift-IE to my honest wife, turns out wife cheated- this wont make gift fail b/c it makes the field way too open 51 TRANSFERS OUTSIDE OF A WILL This deals w/ other ways of disposing of property other than using a will – includes trusts, JT, insurance Why would you want to avoid using a will for succession?- avoid probate fees which apply to assets passing through a will, avoid claims under WVA, preserves privacy b/c will is a public doc, allows faster transmission of assets Inter vivos gifts- no restrictions on persons ability to give gifts when alive, issue- how do you know you wont need it? Gifts mortis causa- gift made in contemplation of death by a person JOINT TENANCIES Feature of a true JT is on the death of one owner, the other owner gets right of survivorship and becomes sole owner of whatever is in the account True JT: both parties put $ into acct and access it Immediate gift of a JT interest in asset (inter vivos) – happened in Pecore If don’t contribute anything to the JT acct then presumption of RT or advancement may apply. If P of advancement- presuming outright gift to the recipient (gift to joint tenant)- when parent gives to minor child or husband to wife it applies If P of RT- presuming that not a gift so goes back to donor or his estate – up to recipient of gift to show it was a gift Have to ask is this gift a inter vivos disposition or a testamentary disposition- if T disposition it has to meet the validity req of WESA (writing, signed 2 W…) Transferors intention dictates whether the beneficial interest passes immediately to other JT PECORE V PECORE (2007)(SCC)- did he intend to a gift a right of survivorship? o Dad makes joint acct w/ daughter and transfers a lot of his assets into it. he paid taxes/declared the income/ all $ in acct contributed by dad/ father claims “no gift to P” to advisors to avoid capital gains tax/ P only uses assets w/ fathers permission/ banking docs stated right of survivorship o Held: father intended a to gift a right of survivorship to daughter -Dads close relationship w/ P/ P relied on dad for financial assistance/ dad told lawyer accts already dealt w/ - rebutted RT o Presumption of resulting trust- applies to gratuitous transfers- When transfer made for no consideration the onus is placed on the transferee to demonstrate that a gift was intended o Presumption of advancement- this applies then presumption that there was a outright gift- applies to: husband to wife and father or mother to MINOR child (doesn’t depend on dependency of child) o Joint bank accts where one person puts in $ and other person gets the remaining $ on his death is NOT testamentary in nature o joint account in which A hasn’t put anything to and only B has and now B died and A has right of survivorship- in these situations the presumption of RT (unless dealing w/ minor child and parent) applies but it will fall on the surviving joint account holder to prove that the transferor intended to gift the right of survivorship to the assets left in the bank account- if unable to do this the assets will be treated as part of the transferors estate if P of RT applies and distributed accordingly o Admissible evidence to show intent: 1. Acts or statements of either party, whether before or after the transfer 2. The fact that the transferor had granted power of attorney to the transferee. 3. The fact that the transferor had continued to control the property after the transfer. 4. The extent to which the transferor paid capital gains tax on a transfer, or paid taxes that became due after the transfer. 5. Bank docs signed by the parties when opening joint bank acct MADSEN ESTATE V SAYLOR (2007)(SCC)- application of Pecore- but diff result P had joint acct w/ dad. P was named POA. The accounts had a right of survivorship. Dad retained control of the bank accounts and the funds were used solely for his benefit during his life. Dad declared and paid all taxes on income made from the accounts. Dad sole contributor of $ to acct Will said ½ to 3 kids equally, ½ to grandchildren equally = will equally divided *factored in by court* RESULT: not enough evidence to rebut the P of RT *similar facts to Pecore but diff outcome* In a dispute over a gratuitous transfer focus on the actual intention of the transferor at the time of the transfer – have rebuttable presumptions to help w/ this Signed bank docs saying right of survivorship applies 52 Trial judge: P testimony wasn’t credible and she gave conflicting evidence + misrepresented events RICE V RICE (2012)(BCSC)- P of RT can apply to dealings w/ real property S. 23(2) of LTA says: 23(2) An indefeasible title, as long as it remains in force and uncancelled, is conclusive evidence at law and in equity, as against the Crown and all other persons, that the person named in the title as registered owner is indefeasibly entitled to an estate in fee simple to the land described in the indefeasible title... Court affirms Aujla v Kaila (BCSC): it is settled law that the statutory presumption that registered title is conclusive evidence of ownership of legal and B interests (s. 23(2)) can be rebutted by P of RT TRUSTS Inter vivos trusts – transferring assets from own name into name of trustee and T holds it on the terms established in the trust Implication: no probate fee b/c the assets don’t pass under the estate Alter ego trusts: available for ppl over 65 yrs old – can transfer assets into the trust w/o payment of capital gains tax until death of settlor (income tax act allows this) Joint spousal trust – available for persons over 65 years of age, can avoid payment of capital gains tax until later of death of settlor and the surviving spouse A trust can have w/e provisions you want in it- revocable/ irrevocable/terms T holding property on In your trust can make succession like provisions- EG after death, trustee will divide trust property b/w children.. if children predeceased ect. Problem w/ trusts: complicated + costs a lot of $ If your under 65 and make a trust then assets you move are deemed disposition so the settlor has to pay capital gains tax if applicable on those assets (not applicable if no capital gain or its your permanent residence your transferring) MORDO V NITTING (2006)(BCSC)- trusts are a valid way to disinherit kids o Transfer by mom of property into alter ego trust to avoid WVA claim by son and payment of probate fees on death. Trust provided that trust assets after settlors death (moms death) go to daughter. Mom is settlor and she makes herself the trustee of the trust. o Holding: transfer of W to a trust was effective and W should NOT form part of E estate: 1. Alter Ego Trust was a sham as only intent was to defeat son’s WVA claim- argument fails - To determine if a trust is valid this is the test: did the settlor intend to create a valid trust, or were the docs executed to mask an intention to retain full control over the trust property? - For the test: examine other evidence of intention at the time the docs were executed - transaction isnt a sham b/c of the purpose for which it was carried out – so doesn’t matter what the motive was in making the trust (IE avoid WVA) as long as intention is to create a trust - Actions of settlor after a trust is created don’t matter in determining if trust is a sham - Make sure meet 3 certainties for a trust- certainty of objects/ subject matter (property of trust & nature of interest due to each B clearly defined)/ intention - S has to comply w/ all the form req the law imposes. 2. Assets “result back” to Settlor as held in trust- Fail- evidence established E intended to transfer property to the trustee for no $ 3. Trust was a testamentary disposition and not valid as did not meet formal validity requirement o This argument fails the trust wasn’t testamentary – if testamentary has to follow WESA req o Whether a trust is inter vivos or testamentary depends on the intention of the settlor o If the S intends that a trust shall not take effect until after his death and is dependent on his death for its vigour and effect= testamentary o If the doc creates a trust which takes immediate effect even though it is to be performed after the death of the S = not testamentary o Reserving the power to call for the trust doesn’t mean that it is testamentary in nature o Here looked at the trust doc and found in there intention of E that trust have immediate effect- used present test/ said trust irrevocable by the S- showing trust comes into effect right away/ entitles E to income – shows meant to come into effect right away 4. Trust void for public policy reasons as to defeat WVA claims and payment of probate fees- fail - Saying that the court cannot uphold the trust b/c it would go against the probate fees act, wills variation act, and wills act – this argument fails b/c trusts are standard estate planning tools 53 - WVA claim: claim of a child under WVA isnt a claim of a creditor so doesn’t matter 5. was the trust agreement in fact an agency agreement- Notrustee undertook to deal w/ the trust property in accordance w/ the trust doc – trustee only bound by directions in trust doc not S INSURANCE AND PLAN DESIGNATIONS - Designations are testamentary but statute allows you to do direct B designations and not have to comply w/ WESA + doesn’t fall within your estate – even if you make the designation under your will BCLI REPORT- RETIREMENT PLAN BENEFICIARIES - Pensions and retirement plans will often allow a plan holder to designate a person to receive a benefit payable upon the plan holders death - Referring to employee pension plans, RRSP, Registered retirement income funds ect. - Retirement plan beneficiary designations are: an arrangement made under K during the lifetime of the person making the designation which doesn’t actually pass the benefit of the plan to the B until the person dies. - Life insurance B are: informal K which are granted some statutory support. Under them make a K during the lifetime of the person making the designation which doesn’t actually pass the benefit of the life insurance proceeds to the B until the insureds death. Statute overcomes a common law rule that bars 3rd party B from enforcing the K. - The current law in BC on Retirement Plan designations: - NOW after MacInnes we have BC governing statutory provisions in BC law and equity act - S. 46: if under employee pension or retirement plan and have a B designated the designation is validly executed if it is in writing and signed by the employee and it isnt effected by a will or other testamentary instrument executed by the employee. Employee can alter or revoke a designation made under the plan but only in accordance w/ the plan - S. 49 applies to RRSPs and s. 50 applies to registered home ownership savings plan and s. 51 is registered retirement income funds: say the designation is effective if it is in writing and signed by the person, or if it is contained in a will or other testamentary instrument - planholders capacity to designate a B. it has been determined here that the proper test to apply is the same test for capacity applied to the making of a will. INSURANCE ACT BC Can make a designation in a will or outside a will The insured may in a K or by a declaration designate a B to receive insurance $ (s. 59) Insured can alter or revoke the designation by a declaration (s. 59(2)) A designation in favour of the "heirs", "next of kin" or "estate" of a person, or the use of words of like import in a designation, is deemed to be a designation of the personal rep of the person (s. 59(3)) An insured may in a K or by a declaration – other than declaration that is part of a will- can designate a B irrevocably meaning insured cant alter or revoke the designation w/o the consent of the B- has to file it w/ the insurer at its head/principle office in CDN during the lifetime of the insured (60) A designation in a will isnt ineffective by reason ONLY of the fact that the instrument is invalid as a will or gift under will is invalid (61) A designation in a will is of no effect against a designation made later than the making of the will (61) If designation made in will and the will is revoked then designation is revoked (61)- if you revoke a designation and don’t make a new designation then the $ goes to the estate An insured may in a K or declaration appoint a trustee for a B (62) If B dies before the person whose life is insured, and no disposition of the share of the B $ is provided in the K or by declaration, then the share is payable to the surviving B or if 1+ surviving B they get it in equal shares or if no surviving B to the insured or the insured’s personal rep (so the estate)(63) ACCIDENT AND SICKNESS INSURANCE- PART 4 An insured may in a K or declaration designate a B to receive insurance money payable in the event of death by accident, and may alter or revoke the designation by declaration (102) A designation under a will isnt ineffective just b/c instrument is invalid as a will or gift is invalid under the will (102) Designation in a will is of no effect against a declaration made later than the making of the will (102) If designation is in the will and will is revoked then designation is revoked (102) If B dies before the person whose insured, and no disposition of the share of the B $ is provided in the K or by declaration, then the share is payable to the surviving B or if 1+ surviving B they get it in equal shares or if no surviving B to the insured or the insured’s personal rep (104) 54 A B may on the death by accident of the person insured enforce his own benefit and trustee appointed can do this as well and the payment to B or trustee discharges the insurer to the extent of the amount paid, but the insurer may set up any defence that it could have set up against the insured (104) An insured can by K or declaration appoint a trustee for a B (105) PLAN DESIGNATIONS- WESA Benefit plan under this means a pension plan, retirement plan, or a welfare fund or profit sharing fund, RRSP, tax free savings acct (1)- act applies to these Testamentary instrument includes designation or a doc naming a person to receive a payment on death under a plan like a benefit plan (1) If benefit plan provision is inconsistent w/ this part this part prevails (84) This part doesn’t apply to life insurance or accident and sickness insurance- we have the insurance act that applies to that (84) A person entitled to a benefit under a benefit plan may designate a B for whose advantage the benefit is payable and can alter or revoke the designation (85) Designation is effective if it is in writing and it is signed by the person making it or by another person in the presence of the person making it and by his direction and the sig may be in the name of the person making it or the person signing (85) this applies to all designations whether will or not If designation made in a will then the designation is only effective if it relates expressly to a benefit plan either generally or specifically (85) + subject to division 3 + subject to s. 89 – if designation made through will and revoked then earlier designation isnt revived if person granted power over financial affairs under POA or a committee under patients property act- they can make a designation under this section only if expressly authorized to do by the court and the designation isnt made in a will (85) if 2+ designated B are designated other than alternatively, but no division is made of the benefit payable under the benefit plan on the persons death= benefit is payable to the B in equal shares (86) can make a irrevocable designation – only effective if filed w/ an office in CDN during the lifetime of the participant (2). if a person (a) makes an irrevocable designation by will OR (b) makes an irrevocable designation that isnt filed in accordance w/ (2) = the designation turns into a revocable designation (87) while a designated B of an IRREVOCABLE designation is living the participant may not alter or revoke the designation w/o the consent of the designated B. (2) A benefit subject to an IRREVOCABLE designation isnt subject to the control of the participant or his creditors and doesn’t form part of the participant’s estate (88) If the amount or duration of a payment under a benefit plan is determined having regard to the person entitled to a benefit under a benefit plan, unless otherwise permitted under the terms of the plan, the person named as designated B may not be changed after the payments start.(89) A committee, attorney, representative or person appointed under the Indian Act can make a new designation of the designated B in order to renew, replace or convert a designation made by the participant while capable (90) In same way as other designations, can appoint, alter or revoke a T as designated B (92) if the designated B dies before the participant and the designation doesn’t state what to do w/ deceased designated B share the share is payable to the surviving designated B and if 2+ of them then in equal shares to them and if there is no surviving designated B to the participants personal rep (91) if a designation is in effect when the participant dies a designated B or T entitled to a benefit under the designation may enforce payment of the benefit (93) if a benefit plan administrator transfers a benefit in accordance w/ the benefit plan to a designated B or T the benefit plan administrator is discharged for that benefit even if afterwards the administrator receives a notice of change of designated B (94) a benefit payable to a designated B or T under a benefit plan on the death of the participant doesn’t form part of the participants estate and isnt subject to participants creditors claims (95) a designation in a will may be altered or revoked by a later designation that ISNT in a will (96) A revocation in a will of a designation revokes a designation that is not in a will only if the revocation in the will relates to the designation, either generally or specifically, and the designation is not irrevocable. The revocation of a will revokes a designation in the will and revocation of a designation doesn’t revive an earlier designation (97) Designation made in a will is valid even if will is invalid (98) Revival of a will by codicil does not revive a revoked designation in a will unless the codicil expressly provides for revival (99) Unless a designation is irrevocable, a designation or revocation of a designation in a will is effective from the time the will is made. (100) 55 NATIONAL TRUST V ROBERSHAW (BCSC)(1986)- RRSP designation may be viewed as an inter vivos gift - R designated D as B of his RRSP. they divorced. Made a will which had standard revocation clause saying he is revoking all former testamentary dispositions. The will doesn’t reference any RRSP. - R had created a irrevocable trust for wife for proceeds of RRSP so didn’t pass under the will so revocation clause under the will didn’t apply –so RRSP designation was an inter vivos transfer of a contingent interest - Court didn’t really deal w/ the qst of whether a testamentary disposition gets revoked by a testamentary clause Hard to distinguish b/w a revocable trust inter vivos and a testamentary disposition –should ask: o Does the settlor retain a life interest or the right to the income from the property until his death? o Does he have the right to revoke the trust or withdraw from the scheme? (And what is the effect of revocation? Does he get the property back for himself?) Does he have the right to change the beneficiaries? o Does he control the investments that are to be made? right to encroach on the capital of the fund? In this case significant that the R didn’t retain the power to terminate the plan and w/d his contributions at any time Re Bottcher Estate- current law is a general revocation clause won’t revoke plan designations - Asked to determine if a general revocation clause in a will revoked the prior designation of J as the designated B of the RRSP. Looked at CL to determine this since nothing in law and equity act on it - The court ruled that something more than the language of a general revocation clause in a will is necessary to revoke a designation validly made other than by a will. - So law now is if have a general revocation clause in a will that isnt going to revoke life insurance, RSP plan designations ect. – but still be cautious MacInnes v MacInnnes (SCC)(1935)- WESA provisions came in after this case -court found retirement plan was a testamentary doc and b/c it wasn’t executed in accordance w/ WESA the designation to wife had no effect. Desharnais v TD Bank- Attorney can’t alter or revoke the planholders B -Acting under POA attorney transferred the RRSP and to designate herself as the B (this is after the planholder became incapable and bank suggested she do this). court decided in favour of Attorney. -She had the authority to transfer the RRSP. She did not have the authority to alter or revoke the planholder’s designation, because such an action would amount to a testamentary disposition, and an attorney does not have the authority at CL to effect a testamentary disposition for a principal ROBERTS V MARTINDALE (BCCA)(1998)- no automatic revocation of insurance designation on divorce - Appointed husband as B under insurance designation. They got divorced. Had a separation agreement which said this is to be a full and final settlement b/w them and they relinquished all rights in each others estates. Deceased mistakenly thought she had revoked ex-husband as B but she didnt. $ from policy were paid to B- ex-husband. Wife made new will to benefit sister rather than ex-husband - Court: ex-husband holding the money from insurance policy on a constructive trust o b/c of the K arrangement b/w spouses (separation agreement) prevented the husband from claiming any additional assetsincluding insurance $. Claiming insurance $ would be a breach of the separation agreement= husband held the money on a constructive trust o constructive trusts have imposed a trust whenever justice and good conscience req it o it would be against good conscience for the B to keep this money b/c B had by the separation agreement surrendered any right he might have had to the property of the deceased. LADNER V WOLFSON (BCCA)(2011)- good conscience constructive trust test - Examined Soulos v Korkontzilas SCC which said that 4 conditions had to be satisfied to establish a “good conscience” constructive trust: 1. The defendant must have been under an equitable obligation, that is, an obligation of the type that courts of equity have enforced, in relation to the activities giving rise to the assets in his hands; 2. The assets in the hands of the defendants must be shown to have resulted from deemed or actual agency activities of the defendant in breach of his equitable obligation to the defendant; 3. The plaintiff must show a legitimate reason for seeking a proprietary remedy, either personal or related to the need to ensure that others like the defendant remain faithful to their duties; and 56 4. There must be no factors which would render the imposition of a constructive trust unjust in all the circumstances of the case: e.g., the interest of intervening creditors must be protected. RICHARDSON V MEW (2009)(ON CA)- former spouse is entitled to life ins proceeds if B hasn’t been changed Case law says: a former spouse is entitled to proceeds of a life insurance policy if his designation as B has not changed. This result follows even where there is a separation agreement in which the parties exchange mutual releases and renounce all rights and claims in the other’s estate. General expressions of the sort contained in releases do not deprive a B of rights under an insurance policy because loss of status as a B is accomplished only by compliance with the legislation. WILLS VARIATION CLAIM WESA s. 60- if a will maker dies leaving a will that doesn’t, in the courts opinion, make adequate provision for the proper maintenance and support of the will maker’s spouse or children, the court may, in an action by or on the behalf of the spouse or child, order that the provision that it thinks adequate, just and equitable in the circum be made out of the will makers estate for the spouse or children - Who can apply for a variation of the will? o Spouse- married, common law (2 yr period of marriage-like relationship), same or opposite sex Common law relationships have been found when ppl don’t live 2gether Courts have found separate residence and separate accts= still common law o Child- biological or adopted, minor or adult, financially independent or dependent In BC- WVA isnt narrow- financial dependence isnt a necessary req for variation Some ways to avoid variation claims: - Joint property (ROS - never falls into estate); - Beneficiary designations (these are testamentary in nature but do not fall into the estate); - Inter vivos trust (not part of the estate) Under family law act assets you come into relationship w/ is excluded property so now only divide the growth and property acquired after entering into the relationship. Have to commence WV claim within 180 days from the date grant is issued for the will (61). If minor children of the T or if the spouse or children of T are mentally incapable then serve write on PGT (61) Can register a cer’d of pending litigation against the land being sought 10 days after the issuance of the writ (61) Copy of the writ of summons has to be served on the executor of the will no later than 30 days after the expiry of the 180 day period unless court extends the time for service (61) S.62- EVIDENCE: (1) In an action under section 60, the court may accept the evidence it considers proper respecting the willmaker's reasons, so far as may be determined, (a) for making the gifts made in the will, or (b) for not making adequate provision for the will-maker's spouse or children, including any written statement signed by the will-maker. (2) In estimating the weight to be given to a statement referred to in subsection (1), the court must have regard to all the circumstances from which an inference may reasonably be drawn about the accuracy or otherwise of the statement. Court may attach to an order under this division any conditions that it thinks appropriate or refuse to make an order in favour of a person whose character or conduct in the courts opinion disentitles the person to the benefit of an order under this division (63) (1) Unless the court otherwise determines, the incidence of the payments ordered under this Division falls ratably on the willmaker’s estate. If the authority of the court does not extend or cannot be made to extend to the whole estate, (1) applies to as much of the estate as is located in BC (65) What the court may order: - S. 64: (a) the provision for the T spouse or children is to consist of a lump sum, a periodic or other payment or a transfer of property, or (b) a trust be created in favour of the T spouse or children - S. 66: (a) suspending in whole or in part the administration of the T estate (b) exempting any part of the T estate from the effect of an order under s. 60 (maintenance of a estate)- could order either or both of these orders - S.68: any orders made under this division the part of the estate affected by it must be held subject to the provisions of the order but the order doesn’t bind land unless the order is registered in LTO as a charge against the land - S.72: person who thinks they have been prejudiced by an order can appeal to CA 57 Cameron case: if T leaves everything to husband or wife and they have children together, the children cant sue for variation of the will b/c dad/mom didn’t leave them anything. This isnt a steadfast rule but in circum of normal family situations- mom dad + both of their biological kids- then courts generally assume surviving parent will care for and provide for the children. Problem: what if surviving spouse gets remarried and gives estate fully to new husband/wife then kids really lose out. MCCREA V BARRETT (BCSC)(2004)- Stepchild cannot apply for a variation of a will K is the stepchild of the deceased and asking for variation of stepdad’s will= WONT WORK K is not a child for the purposes of the WVA – step child has no standing to seek variation under WVA The act differentiates b/w adopted and natural children VS step children Differentiating b/w step child VS adopted/natural child= not discriminatory under charter s. 15 TATARYN V TATARYN (1994)(SCC)- test for WVA Married for 43 yrs. Saved a lot of $ but all in deceased’s name. had 2 boys- dad didn’t like J. D didn’t want to leave anything to J and thought if he left to wife she would gift it to J. will gave life estate in home to wife and wife made B of a trust and other son is trustee (E). After wife dies everything goes to E, nothing to wife or J. court allows variation of the will under WVA. Court must ask what is adequate, just and equitable court has broad discretion in determining this- this isnt a needs based approach (IE is claimant already rich). WVA has to be read in light of modern values and expectations. Don’t need to establish need or dependency in order to get an award. Court trying to protect 2 interests (1) ppl aren’t at mercy of state if family members have estate that can support them (2) can’t let ppl leave their state to whomever they want. Act still protects testamentary autonomy- act still allows T to dispose of property as he wishes “adequate, just and equitable”- to determine this examine these guiding principles: - Legal obligations T owes to applicant: look at what T was legally bound to do during his lifetime. View from the date immediately before his death- wife shouldn’t be worse off if she had divorced him 1 day before his death instead of staying married. Look to obligations under divorce act, family law act, UE and other CL claims. Ask if this relationship had terminated before T death what would survivor had rec’d under divorce act… o Person under a legal duty to support his spouse and minor children- court will enforce it. o in some cases the principles of unjust enrichment may indicate legal duty towards independent children (Eg adult child contributes to the parents estate) o Family relations act: prima facie equal division of family assets b/w spouses - Moral obligations T owes to applicant: Societys reasonable expectations of what a judicious person would do in the circum, by reference to contemporary community standards. T moral duties towards spouse and children. No clear legal standard by which to judge moral duties. o Some provision should be made for children if the size of the estate permits unless circum negate the moral obligation. o Moral can arise b/c of assistance given to T, expectations from T statements, need may be compelling factor (but necessary element to get variation) o In long standing spousal relationship the highest moral obligation is to surviving spouse o 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 - Legal and moral obligations take precedence over those owed only a moral obligation - Where the estate permits all claims should be met, if priorities have to be considered claims of legal obligations should generally take precedence over moral claims. Application to facts: legal responsibility of T to wife wasn’t met. Under divorce act and family relations act she would have been entitled to maintenance and a share in the family assets if they split- ½ share. At a minimum she has to be given this much upon death of spouse. Moral responsibility: long marriage+wife outlived husband and she has to be provided for those extra yrs+ W and H regarded their estate to provide for their old age can’t be just and equitable to deprive the W of the benefit just b/c H dies first. Kids moral claims not very high b/c no evidence either contributed much to the estate. Result: wife gets title to house, life tenant in rental property, entire residue of estate after payment of the immediate gifts to the sons. Each son gets immediate gift of $10,000. Once wife dies the rental property is to be divided b/w sons- 1/3 to K and 2/3 to E. 58 BRIDGER (2006)(BCCA)- example of moral obligation working to give a spouse who has enough even more T survived by B (2nd wife) + 3 adult daughters from 1st marriage. T got sick B cared 4 him+visited him regularly in carehome+bought property 2gether+kept financial affairs separate. Will gave car to B and rest of estate to his daughters in equal shares ($300,000). They both stated b4 dying wanted to benefit own kids. Married for 38 yrs+B well off ( not dependent) Legal responsibility: no obligation 2 children and no legal obligation for the maintenance of B since B had sufficient income from her pension+ investments but if parties legally separate right b4 death she would be entitled to an equal share of the family assets according to family relations act. There was a shortfall of about $80,000 if estate gave her what she deserved under family relations act. Moral claim: both daughters (T moral duty to daughter enhanced by fact he never financially helped them b4 hand) and B have moral claim- B committed a lot of time to T when sick+ married for 20yrs after making will and got sick after making will+ B helped T find real estate to buy – his estate was benefited by her participation. Satisfying the legal oblg may be inadequate even if spouse has no need. Moral obligation may entitle a spouse to an amount in addition to the legal obligation- possibility that spouse will provide benefit of award to spouse’s own children is irrelevant Resut: B gets all the proceeds from the sale of the properties +25% of the balance of the estate to B and 75% of balance of estate to be divided b/w the 3 girls= will varied SAUGESTAD (2008)(BCCA)- example of moral obligations of kids trumping spouse - T left entire estate to his 2 sons from his 1st marriage. Challenge brought by T wife. They got married she retired. T told wife he had enough money to support them into retirement. T paid for sons education. Will says wife didn’t get anything under will b/c he provided for her through other means - got matrimonial home through JT + beneficiary of pension. bought real estate 2gether as TICommon - Legal Obligation: assume parties had split up and that assets were divided b/w them immediately before the date of T death pursuant to family relations act – exclude non-family assets from calculation (including inheritance from T mother) - Moral Obligation: 2nd marriage/ moderate length- 11 yrs/ T had children from previous marriage and much of his estate was accumulated during the 1st marriage; each party had their own assets and financially independent; T made it clear he wanted his estate to benefit his kids and not the wife wife entered marriage w/ assets worth $225,000 and leaving w/ assets worth over $900,000= not fair. Even if she worked as a realtor the whole time she wouldn’t have made that much money. sons had a strong competing moral entitlement to the T based on contributions of the T first wife to his estate-1st wife left estate to T- presumed 1st wife would have wanted her efforts to benefit her sons not T new wife + T support for sons throughout his lifetime created a legitimate expectation they would receive bulk of estate = moral obligation owed to sons ranked ahead of those to the spouse - Result: limited variation to the will –Gave her ½ interest in a condo she already had a ½ interest in. and wife will assume the full mtg on the condo. PICKETTS V HALLS ESTATE (2009)(BCCA)- large award to CL spouse based on moral obligations - estate worth 18million. P and T cohabited in a marriage like relationship for 21 yrs prior to his death (20 yr diff b/w P and T). Will says to P the family home, a condo in Vancouver, all personal effects; $2000 a mth…T son M gets 40% of residue and other son B gets 60% of residue. T always rich P struggled financially until meeting T. Evidence going to get married T gave ring but never got married. T got sick and P assisted in his care. - Depending on the circum of the particular case a married spouse might have less of a claim to an interest in his spouse’s estate than a marriage life spouse might have in his spouse’s estate. A marriage like spouse might have a better claim for the receipt of a lump sum remedy than a married spouse might have - Legal obligation: no basis for finding legal obligation under CT or UE. If separated P wouldn’t have any claim b/c doesn’t fall under def of spouse(b/c common law relationship) under the family relations act- only claim is spousal support. So no real legal obligation (except spousal support which isnt much) - Moral obligation: The size of the estate makes it possible to fully address the moral obligations of T toward all B. Testamentary autonomy always has to be considered. Not viable option for the court to approve a disposition that SUBSTANTIALLY prefers the moral claims of adult independent children to those of a long term, caring + dedicated spouse. Court took into account the following in assessing the substantial moral obligation of the T towards his spouse: Absence of legal obligation of T to either sons Length of marital relationship- 21 yrs Agreement of B to give up her career which deprived her of the opportunity to accumulate an estate of her own PL contributed to household expenses PL provided care to T while he was sick 59 Promise T made that he would take care of B as though she was his wife- gave her ring + told everyone about proposal The size and liquidity of the estate Result: $5 million outright award ($18 mill estate) +the family home, the personal and household effects, and the settled amount for the Hawaii condo. Founded on T moral obligation owed to spouse WALDMAN V BLUMES (2009)(BCSC)- adult independent children- moral oblig - 20 year 2nd marriage b/w 70 year old T and 37 year old spouse. T was 91 at date of death. 2 teenage children from 2nd marriage. 1st wife left entire estate to T at her death. 4 children from 1st marriage, all adult and financially independent. Will leaves entire estate to second wife (E). Estate worth $1 mill and E got matrimonial home through JT and its worth $1mill - All 6 children, adult and minor, bring a variation claim. 2 adult children had financial need. - T had legal obligation to his wife and dependent children at the date of his death o Wife: lengthy marriage+ T encouraged E to work part time + she contributed to the household+ cared for T when he got sick+E didn’t pursue law full time b/c T said she would get all his assets. T had legal obligation to E of the highest order. o 2 sons were minors at time of his death so he owed legal oblig to provide maintenance for them - Moral obligation to his wife, his dependent children and his independent children o E: T encouraged E to have kids even though he know she would be widowed while their sons still req sig parental support +Both E and T regarded their estate as being there for their old age so it cannot be just and equitable to deprive her of the estate b/c she died first+E cared for T as his health started to fail = Strong moral obligation to E o moral obligation to minor children is higher than the moral obligation to independent adult children. The moral obligation to minors includes an obligation to provide financial assistance, to the extent approp in the context of the family’s lifestyle and the size of the estate, during the period of time that they are pursuing their education and getting a start in life. Contemporary community standards mandate that a parent will endeavour with whatever means to give assistance to their children as young adults until they complete their education, even when the children are no longer minors. Minors assisted dad when he was elderly- cleaned up after him gave him showers. T didn’t discharge his legal and moral obligations to his sons by not providing them in his will. T owed moral obligation to his adult independent kids. The claim of an adult independent child is always more weak than the claim of a spouse or dependent child. - If size of estate permits and in the absence of circum negating the existence of such an obligation some provision for adult independent children should be made (Tataryn) - Ex of circum which bring forth a moral duty on the part of the T to recognize in his will the claims of adult children are: disability on part of adult child; assured expectation on part of adult child; implied expectation on part of adult child, arising from the abundance of the estate or from the adult childs treatment during the T lifetime; the present financial circum of the child; the probable future difficulties of the child; the size of the estate and other legitimate claims - Having considered the size of the estate+amount of T earlier gifts to his daughters+circum of the various B +contribution 1st wife made to the acquisition of the assets that make up the estate= some provision for adult children should have been made in the will - will is varied - $75,000 fixed sum paid to adult children – Minors try to reach settlement w/ mom CLUCAS V ROYAL TRUST CORP (1999)(BCSC) Principles that apply to the WVA : - main aim of Act is the adequate, just and equitable provision for the spouses and children of T. The other interest protected by the Act is testamentary autonomy. It is the exercise by the T of his freedom to dispose of his property and is to be interfered w/ not lightly but only so far as the statute requires (Tataryn) - The test of what is "adequate and proper maintenance and support" is an objective test. The fact that the testator was of the view that he adequately and properly provided for the disinherited B is not relevant - Words “adequate” and “proper” as used in s. 2 can mean 2 diff things depending on the size of the estate. A small gift may be adequate but not proper if the estate is large - First consider any legal oblig of the T to her spouse/children and then consider moral obligation (Tat) - The moral claim of independent adult children is more weak than the moral claim of spouses or dependent adult children. But if the size of the estate permits, and in the absence of circumstances negating the existence of such an obligation, some provision for adult independent children should be made.(Tataryn) - Circum that will negate the moral obligation of a T are “valid and rational” reasons for disinheritance. To constitute “valid and rational” reasons justifying disinheritance, the reason must be based on true facts and the reason must logically connected to the act of disinheritance 60 MCBRIDE V VOTH (2010)(BCSC)- Adult Independent children bringing a claim against each other - F: T has 3 kids M, J and D. All 3 kids had close relationship w/ T M lived in the house. In will gifts house as life tenant to M b/c M took care of her in that house. Residue to be equally divided b/w the children- residue included the house (major portion of residue)- so kids don’t get anything until M dies. M- 58 yrs old- lived in house all her life and intended to keep living there until death+M never married+M was the child most involved w/ the T care in the hospital. Other kids apply to vary. - Practical disinheritance of J and D since they wont get house till M dies and they will be so old and wont even get to enjoy it. - J in her 50s now left home in early 20s+ she is single parent+Son has disorder+ J financially struggling+ didn’t go see T much and rarely went to the house. - D left home at 18 moved to AB he is married now w/ kids in uni. + makes a lot of money+ D generally visited his mom every yr and called her regularly. - The date of the death of the T is the relevant point in time to be used in determining whether adequate provisions have been made under the act. - No legal duty owed to the adult independent children – dealing w/ competing moral obligations - Circum that might support or negate a T moral duty to independent children (Clucas) o Contribution and expectation- Contributions by the claimant to the accumulation of T assets with little in exchange, or providing other types of contribution or care to a T will generally serve to strengthen the moral obligation, other things being equal. o Misconduct/ poor character- court can refuse variation to a person whose character or conduct in the opinion of the court disentitles him to relief. Such misconduct is measured at the date of death, not after and must be directed at the T. conduct has to be severe o Estrangement/ neglect- court will enquire into the role played by the T in the estrangement or relationship breakdown and where it is seen to be largely the fault of or at the insistence of the T it will likely not negate a T moral duty o Gifts and benefits made by the T during lifetime- Depending on the circumstances, a testator’s moral duty may be diminished or negated entirely where he or she has made inter vivos gifts to the claimant, or the claimant has received assets on the testator’s death outside the framework of the will IE through trusts, JT o Unequal treatment of children- one child isnt given same gifts as other isnt of itself enough to establish a moral claim. equal treatment among independent adult children is prima facie fair from a moral duty standpoint o T reasons for disinheritance/subordinate benefit: Act allows the court to accept evidence of the T ascertainable reasons for making or not making the dispositions in the will for the spouse or child. The weight to be given to evidence of the T reasons is affected by its accuracy and not by morally acceptable or unacceptable content. Where T’s reasons purporting to explain a disinheritance are valid and rational= T moral duty in respect of that child is negated. burden then shifts to the plaintiff to show that the reasons acted upon by his or her parent were false or unwarranted. Reasons for disinheriting the child need to be valid – factually true and rational in the sense that there is a logical connection b/w them and the act of disinheritance - T didn’t owe a equal moral duty to all 3 kids, strongest duty to M followed by J largely b/c of her pronounced financial need and next to D - Varied so will so after 3 yrs of T death the mcbride house is to be sold as soon as reasonably practicable – varied also w/ distribution of sale proceeds from home 45% to M, 30% to J and 25% to D. MAWDSLEY (2012)(BCCA)- using fraudulent conveyance act to set aside inter vivos trust fails - T married twice/ children from both marriages/ T one child had mental health issues and other drug issues/T made an alter ego trust and transferred her assets to the trust for the benefit of her children after her death. No provision was made for her husband; however he was present at the meetings she had with lawyers. Husband brought this claim for fraudulent conveyance after her death - Husband brings claim under fraudulent conveyance act- act says cant tsf/rid asset to defeat creditors. He is saying she made the trust to get rid of assets from estate to defeat husbands claim under WVA. - Found: She had no intention to defeat the claim of husband- not in her contemplation at all - If assets in alter ego trust and can’t challenge the trust for being invalid then asset is effectively moved out of the hands of the court to make that variation. - Have to determine if husband falls within def of “creditor and others” under the FCA- but didn’t even go that far in this case since wife had no fraudulent intention – she didn’t think husband would bring a claim, he was in meetings when she made trust. - Doesn’t matter if the trust has the effect of defeating creditors as long as it didn’t intend to HARVEY V HARVEY (1979)(BCCA)- restrictions on disposing of shares- K restrictions - T and two sons were shareholders in business. Sons are directors. Company articles permitted shares to be transferred from one shareholder to another but not to any person who was not already a shareholder if an existing shareholder is willing to buy 61 the other’s shares (right of first refusal). T left shares to one grandson, (son of 1 of the directors). T’s other son, F, wanted to buy the shares and obtain majority ownership. - Held: Shares from T could be registered to the grandson. Bequest to grandson is ok but must register them in his dads name. So long as R is a member of the company, the said articles will permit the entry in the company's register of members of a transfer of the said shares by the executors to Richard PUBLIC GUARDIAN AND TRUSTEE Goal: to protect legal and financial interests of minors and to protect legal, financial, personal/health care interests of adults requiring substitute decision-making+ To administer the estates of deceased or missing persons PGT represents minors (under age of 19) and adults who have mental disability – no legal capacity and deals w/ estates of deceased or missing person who don’t otherwise have a rep All of PGTs authority is derived from statute 2 types of authority (1) direct representation of client- fid role (2) protective/oversight role- review activities of others as they impact PGT client groups – in estate matters PGT may act in either role PGT role in estate matters: 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 WESA 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 An applicant for a grant of probate or letters of admin must provide notice to PGT where a mentally incapable adult or minor has or may have an entitlement to share in the estate (s. 121 WESA)- exception to this is where applicant is executor and the minor isnt a spouse or child of deceased and there is a trustee for minor What is in the content of notice to PGT: notice delivered to the B, notice setting out the name of every other person to whom notice is req to be delivered who is a minor or incapable adult + w/ the residential and postal addresses, email, and fax numbers for each of those parties Where there is a will variation claim: PGT reviews 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 PGT will support a claim where minor’s parent has remarried and the new spouse is getting the estate and not the minor. PGT wont support claim where minor’s parents were together, and one biological parent died and his estate went to other biological parent If PGT determines there is a viable claim to be advanced on behalf of a minor or incapable adult, PGT: seeks a private litigation guardian to act (i.e. legal guardian of minor; committee or representative of adult) or acts as litigation guardian where there is a legal duty to do so or in select cases, may consent to act as litigation guardian even where there is no duty to do so but looks for costs to be covered Viable claim: has merit, has factual components there for strong legal and moral claim + amount at issue makes sense to bring a claim W/ minors PGT is Litigation Guardian if PGT is also property guardian s. 7(2) PGT Act w/ incapable adults PGT is litigation guardian if PGT is also committee of estate or representative (rule 20-2) Minors for whom PGT isnt property guardian then PGT seeks private litigation guardian but PGT may consent to act if no one else is suitable and willing + claim has reasonable prospect of success including recovery of costs + PGT determines is in best interests Mentally incapable adults where PGT has no duty to act- then PGTs consent to act is req (Marits) Where a minor or mentally incapable adult is entitled to rec notice of application for a grant then the applicant must delivery copy of grant to PGT within 45 days of issuance (s. 124 WESA) For grant of administration- Posting of security: S. 128 (1) WESA – No security is required unless a minor or incapable adult without a nominee has an interest in the estate, or unless the court on application requires it. PGT recommends to the Court that a bond be posted to reflect value of minor’s/incapable adult’s share, if over $50,000 Protection of share on distribution of estate: PGT reviews grant applications to confirm that the share of minor / incapable adult will be distributed to someone with legal authority to manage it 62 o Where minor is entitled to a share of an Estate and no trustee is appointed, on distribution executor/administrator must pay or transfer share to PGT: s. 153 WESA o Applies to intestate estates or where will fails to appoint a trustee for minor’s share o PGT holds in trust to minor’s majority and administers under s. 14 Infants Act w/ mentally incapable adults PGT may intervene when will provides gift w/o trust provisions or incapable adult is intestate hier+ incapable adult has no committee, attorney, representative w/ authority to manage WVA- NCC- S. 61(c)- Where an action is commenced and there are minor children of the will maker or the will maker’s spouse or child is mentally incapable, a copy of Notice of Civil Claim must be served on the PGT. S. 61(3)- If served, the PGT is entitled to be heard and to any costs ordered by the court - When served the PGT ensures interests of minors/incapable adults are represented in the proceedings When minor/incapable gets benefit outside of estate: if life insurance where designated beneficiary is a minor under 18 years, if no trustee is appointed, payment is directed to PGT: s. 88 Insurance Act - RRSP/Pension plan benefits: Where designated B is a minor and no trustee is appointed no statutory direction for payment exists, parents/guardians have no legal authority to provide valid discharge of payor without court order, PGT may consent to act as trustee or Court appointment of trustee required PGT may act as executor or administrator of an estate – but need PGTS written consent for this - PGT will decline to act where: gross value of estate is $5000 or less, estate is insolvent, someone has intermeddled and assets cannot be ascertained or recovered An estate may be referred to the PGT 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 PGT to act S. 125 WESA allows PGT to have file sealed by the court and this prevents heir tracing Curator under the Estate of missing persons act (curator is like committee- this occurs until the person is deemed dead then estate kicks in)- Official Administrator is appointed curator in all cases except where Court is persuaded some other person is more suitable because of business or personal relationship. 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. Officer of Court and subject to Court’s control and supervision. Court may appoint curator for whole or part of property of a missing person if satisfied that: - a person is “missing” within meaning of Act (generally not heard from for at least 3 months) - missing person owns or is interested in property in BC - curator required to manage, preserve, deal with or dispose of property
