1
Law 320 (Succession & Estates) CAN
Author: Vivian Burton
Instructor: Deanna Rivers, dgrivers@uvic.ca
Table of Contents
Table of Contents .................................................................................................................................................................... 1
1. Survivorship and Presumption of Death ........................................................................................................................... 17
Common Law .................................................................................................................................................................... 17
Statutes ............................................................................................................................................................................. 18
Survivorship and Presumption of Death Act, RSBC 1996, c 444 .................................................................................... 18
Insurance Act 2012........................................................................................................................................................ 19
Estate of Missing Persons Act: ...................................................................................................................................... 22
Re Law (1946) BCSC  As per the Insurance Act, in common disaster w/ insured, beneficiary presumed to die first;
Insurance Act takes precedence over seniority rule ...................................................................................................... 22
Re Topliss & Topliss (1957) ON CA Re Law was wrong; seniority rule takes precedence over Insurance Act 
Application: look to Insurance Act to determine where money goes, then Survivorship and Presumption of Death Act
to see who inherits  different purposes. .................................................................................................................... 23
Re Cyr (2006) BCSC Courts have imposed the requirement to prove the death of a missing person, beyond the
presumption set in the Survivorship and Presumption of Death Act  An order under s. 3 requires proof on balance
of probabilities that person is dead .............................................................................................................................. 23
The Body ........................................................................................................................................................................... 24
Criminal Code, RSC 1985. C. C-46 .................................................................................................................................. 24
Cremation, Internment and Funeral Services Act, SBC 2004, c. 35 ............................................................................... 24
Re Pop Estate (2001) BCCA Executors are required/entitled to control the disposition of remains provided (s)he
does not act capriciously (irregular; whimsical; odd; unaccountable). Have a specific plan!  Court will consider
presence of “family hostility” and “capricious change of mind”................................................................................... 25
The Anatomy Act, RSBC 1996, c 13 ............................................................................................................................... 26
Human Tissues Gift Act, RSBC 1996, c 211.................................................................................................................... 26
Wing v Angrave (1860) HL The one trying to receive the benefits of a will has the burden of proof.  Shows that
the courts take language very seriously........................................................................................................................ 27
Leach v Egar (1990) BCCA Canadian law of wills is strict about the application of law, not about policy................ 27
Kartsonas v Stanoulous 2010 BCCA Plans filed with funeral homes can trump wills, but wills are often not
obtained until after a funeral. In practice, it is better to file a specific plan with a funeral home. .............................. 27
2. Wills ................................................................................................................................................................................... 28
Terminology ...................................................................................................................................................................... 28
Inter vivos or Testamentary .............................................................................................................................................. 31
2
Bird v. Perpetual Executors and Trustees Association of Australia (1946) HC of Australia If a document that
purports to be testamentary takes effect before the testator’s death, it is merely a covenant and not a testamentary
document (not a will and unenforceable as such). ....................................................................................................... 31
Conditional Wills ............................................................................................................................................................... 32
***Test for a conditional will (Re Huebner)  was the event the reason for making the will or a condition for the
operation of the will? .................................................................................................................................................... 32
Sifton 1938 ON If a condition subsequent fails due to uncertainty, it is struck down and the gift is absolute......... 32
 If a condition precedent fails due to uncertainty, the gift is invalid and the beneficiary gets nothing. ................... 32
Re Huebner provided the test for a conditional will; If an event was the reason for making the will, it remains valid
after the event occurs. .................................................................................................................................................. 33
Joint Wills and Mutual Wills.............................................................................................................................................. 33
Dufour v Perreria (1769) UK When one joint testator dies, the other joint testator becomes a trustee, bound to
hold the property in trust for the beneficiaries of the joint will. ................................................................................... 34
Re Gillespie A joint will converts property held in a joint tenancy to a tenancy in common (no right of survivorship)
to bind survivor; the surviving joint testator becomes a trustee and is bound by the resulting trust instrument ........ 34
Brynelsen Estate v Verdeck (2002 BCCA) All terms must be certain; “engagements of honour” are not binding. .. 35
Andruchow Estate v Seniuk, (2005) ABQB Dependent adults have the capacity to make wills, divest property, etc.
....................................................................................................................................................................................... 35
Edell v Sitzer (2001) ON SC A constructive trust will not be imposed unless there is an agreement between mutual
testators not to change the scheme of disposition of their assets.  An agreement to distribute an estate in a
certain way is not an agreement to never change that distribution; an agreement to never change a mutual will
must be explicit! ............................................................................................................................................................ 35
University of Manitoba v Sanderson Estate Mutual wills create trusts to bind the surviving mutual testator ........ 36
Pratt v Johnson Constructive trusts are imposed on the shared assets of mutual testators as soon as one of them
dies.  Anything acquired after one of the parties dies is not bound by the trust. ..................................................... 37
Holographic Wills .............................................................................................................................................................. 37
Bennett v Gray (1958) SCC A letter wholly written and signed by a deceased person may constitute a valid
holograph will only if it contains a deliberate or fixed and final expression of intention as to the disposal of the
writer's property upon his death.  The burden is upon the party setting up such a paper as a will to show either by
its contents or by extrinsic evidence that it is of that character and nature. ............................................................... 37
3. Formalities of Execution (formal and substantive validity) .............................................................................................. 38
Three Main types of wills in Canada: ................................................................................................................................ 38
Five requirements for an attested will in BC (as per the Wills Act) .................................................................................. 38
*** Requirement 1: A will must be in writing .................................................................................................................. 38
*** Requirement 2: A will must be signed by a testator, at its end. ................................................................................ 39
Re McDermid Estate, 1994 Sask QB A will must be signed by the testator. ............................................................. 39
3
Re Bradshaw Estate (1988) NB Prob. Ct.  A mark other than a signature can be considered a valid signature, if the
testator’s intention was to execute a testamentary document. ................................................................................... 39
Peden v Abraham (1912) BCSC A testator must be aware of/engaged in the process of signing a will for it to be
valid. .............................................................................................................................................................................. 39
Re White (1948) NS SC If a testator is assisted in signing/marking their will, and they adopt the mark as their
signature, it will therefore be valid. A mark is allowed in lieu of a signature, when the testator is incapable of
signing as per usual. A request for assistance to sign a will does not need to be verbal; a gesture will suffice. ...... 39
Daintree v Butcher (1988) Witnesses to a testamentary document do not need to know the nature of the
document. A testator does not have to sign in front of the witnesses to a document, as long as the testator’s
signature is clear and undisputed (must sign or acknowledge in front of witnesses as per the Wills Act, but no
dispute here so the codicil was granted probate) ......................................................................................................... 40
Re Briggs (1985) Manitoba Queens Bench Intention rules and can be used to cure defects (will signed at the
beginning instead of the end; intention rules so will admitted to probate) ................................................................. 40
Kuszak v Smoley (1986) Manitoba Queens Bench Intention rules and can be used to cure defects (defects here
created by a “fill-in-the-blanks” wills kit, but intention ruled and the document was admitted to probate) .............. 40
Re Wagner (1959) Sask. Surr. Ct. Signature on envelope containing will valid because it represented the testator’s
intentions (even though signature placement must be at the end, intention rules) .................................................... 40
In the Goods of Bean Contradicts Re Wagner’s decision that signing the envelope containing the will was
sufficient; testator’s armchair/intention seems to have been considered; judge ultimately decided that T thought he
had already executed the will prior to signing the envelope. ....................................................................................... 41
Re Fitzhaut Estate (1966) BCSC A person signing on behalf of the T may sign his own name OR the T’s name (In
the Goods of Clark (1839) UK, and Re Deeley and Green (1930)). Computer (word processing) signatures are valid
in the US if properly witnessed (Taylor v Holt (2003) Tenn, CA), but the Electronic Signatures Act does not yet allow
for this in Canada. A testator may indicate agreement to a will with a gesture; valid if the witnesses saw or at
least might have seen ................................................................................................................................................... 41
Groffman A will is not valid if the testator acknowledges their signature to each of their witnesses separately;
they must both be present at the same time. ............................................................................................................... 42
Palan v Ponting HL  A last page was incorporated by reference, even though the final page was not signed
(intention cured signature defect) ................................................................................................................................ 42
*** Requirement 3: Two Witnesses, Present at the Same Time ...................................................................................... 42
Re Cumming (1963) ON HCJ Direction for sale is a beneficial devise – therefore witnesses set to benefit from this
devise invalidate their gift (or that to their spouse) ..................................................................................................... 42
Re Rays’s Will Trusts (1936) CH.D.  To be an invalid gift to a witness, the gift must benefit the witness personally
(or their spouse; but a community of which they are a part can receive the gift for the shared good) ....................... 43
Re Royce’s Will Trusts (1959) A will is not invalid solely because witnesses become beneficiaries or spouses of
beneficiaries sometime after the will was signed  A beneficial interest conferred to witness must be evident at
relevant time (i.e. attestation or death for a death-bed will) to invalidate gift; what happens after the signing is
irrelevant ....................................................................................................................................................................... 43
4
Gurney v Gurney (1855) In order to invalidate a gift, a witness must witness the document providing for the gift to
the witness himself (witnessing a separate testamentary document will not invalidate a gift under a document the
witness did not witness) ................................................................................................................................................ 43
Anderson v Anderson (1869) HL A properly executed codicil can remedy an improperly executed will .................. 44
Jones v Public Trustee (BCSC, 1982)  When a witness’s share of residue is invalidated, the share passes on
intestacy, not to other residual beneficiaries Where an invalid gift provides a life estate, the life estate is
accelerated and the gift goes to the ultimate beneficiary ............................................................................................ 44
*** Requirements 4 and 5: The testator must sign or acknowledge in the presence of the witnesses, and the witnesses
must sign in the presence of the testator ......................................................................................................................... 44
Re Brown (1954) ON Surr. Crt.  A testator must sign or acknowledge their signature in the presence of both
witnesses, at the same time. ......................................................................................................................................... 44
Re Wozciechowiecz (1931) AB Appeals Division A testator must be able to see the witnesses sign his will; whether
he chooses to watch/look is immaterial. ...................................................................................................................... 45
Other Case Law Re: Witness Signatures ....................................................................................................................... 45
Presumption of Due Execution ......................................................................................................................................... 45
Ball v Taylor (1999) BCSC In the absence of evidence to the contrary, there is an inference that there has been
compliance with the requirements of the stature with reference to execution  Presumption of due execution
applies and is not rebuttable by defective memory ...................................................................................................... 46
Krause v Toni (1999 BCSC in Chambers) Applied the doctrine of substantial compliance, to say that there was no
doubt as to the authenticity of the will and the defect could be cured. ....................................................................... 46
Boulton v Tartaglia 2000 BCSC Judge said the doctrine of substantial compliance was invalid in BC; contradicts
Krause v Toni. ................................................................................................................................................................ 46
Incorporation by Reference .............................................................................................................................................. 46
Re Currie (1978) ON HC Provided a two step test for incorporation by reference ................................................... 47
Re Jackson (1985) BCSC ***Current BC precedent on Incorporation by Reference Parol evidence CAN be used to
explain which of several documents a will/codicil is referring to. Created a four-step test for incorporation by
reference: The document 1. Must be in existence at time of execution; 2. Must be described as then existing; 3. And
in such terms that it is capable of being ascertained; and 4. The will must not state that the document is not to form
part of it. ....................................................................................................................................................................... 47
4. Revocation and Revival of Wills ........................................................................................................................................ 48
Revocation by Law ............................................................................................................................................................ 48
The Common Law: ........................................................................................................................................................ 48
The Wills Act: ................................................................................................................................................................ 48
BC Family Relations Act - Part 5: Matrimonial Property: .............................................................................................. 49
BCLI Report on Will Revocation by Marriage ................................................................................................................ 50
Notes on Marriage & Dissolution of Marriage .................................................................................................................. 50
Re Pluto Estate (1969) BCSC A contemplation of marriage clause must explicitly state that it is “in contemplation”
and not merely imply that the marriage took place. .................................................................................................... 50
5
Maclean Estate v Christiansen (2010) BCCA A contemplation of marriage clause requires an express declaration;
reference to the individual as a current spouse will not suffice. ................................................................................... 51
Re Ratzlaff Estate (2002) SK CA Extrinsic evidence may be admitted to identify the person referred to in a
contemplation of marriage clause. ............................................................................................................................... 51
Banton v Banton (1998) ON SC The “capacity” standard to enter into a marriage is lower than that required to
manage other affairs (write wills, appoint POAs, divest property, etc.) ....................................................................... 52
Allison v Allison (1998) BCSC Matrimonial, not testamentary domicile determines the validity of a will and
whether or not marriage results in revocation. A change in domicile does not revoke a will. ................................. 52
Revocation by the Testator: .............................................................................................................................................. 52
***Subsequent Instruments ............................................................................................................................................. 53
Re Lawer (1986) SK Sirr Court Set out the general principles governing revocation clauses It is open to a court to
inquire if there is sufficient evidence to establish that the testator did/did not intend to revoke ............................... 53
Re Estate of Blanca Esther Robinson (2010) ONSC Mistaken belief of the legal effect of provisions in a will does
not render the will or the provisions inoperable. .......................................................................................................... 53
***Declaration .................................................................................................................................................................. 54
***Destruction.................................................................................................................................................................. 54
Re Norris (1946) BCSC Tearing the will into pieces was insufficient to prove T’s intent to revoke; considered all
circumstances................................................................................................................................................................ 54
Re Adams (1992) EN Scoring of signatures rendering them no longer apparent is sufficient to revoke a will ......... 55
Cheese v Lovejoy Intention to revoke a will by destruction is not sufficient; there must be an actual act of
destruction .................................................................................................................................................................... 55
***Alterations ................................................................................................................................................................... 55
In the Estate of Oates (1946) PDA There is no formal presumption that additional words are added pre-execution ;
the onus of proof is on the propounder to show that alterations were written before execution ............................... 56
In the Goods of Itter (1950) Alterations must be effective in order to actually change a will If you revoke a will
or part of a will with the intention that your new will or new alteration will take effect in its place, and then the new
will or new alteration turns out to be void, the old will or clause will remain .............................................................. 56
Lost Wills ........................................................................................................................................................................... 57
Sugden v Lord St Leondards (1876) Eng CA Lost will not sufficient to revoke will – parol evidence used to re-create
will and get probate – loose custody of the will, lower burden if lost (T had self-custody of his will). ......................... 58
Unwin Estate v Unwin () BCSC Presumption of revocation applied with consideration of surrounding
circumstances; will was not revoked............................................................................................................................. 58
Lefebvre v Major (1930) SCC Lost will not sufficient to revoke will – parol evidence used to re-create will and get
probate .......................................................................................................................................................................... 58
Re Perry (1925) ON CA  Lost will revoked will  Court refused to admit a lost will to probate when only the name
of the residuary legatee was known. ............................................................................................................................ 59
Re Broome (1969) MB CA Reverse onus applies if the testator becomes incapable/incompetent; the party alleging
revocation has the burden of showing it was destroyed with the intention of revoking it .......................................... 59
6
Sigurdson v Sigurdson (1935) SCC Only lost wills case where the presumption was not rebutted; the court here
applied a different approach......................................................................................................................................... 59
Brown v Wooley (1959) BCSC Applied the presumption of revocation and considered the surrounding
circumstances; will was not revoked............................................................................................................................. 59
Holst v Holst (2001) BCSC To rebut the presumption, the Plaintiffs must adduce “sufficient evidence that it was
not destroyed by the testator animo revocandi”; Sigurdson v Sigurdson. If a will is lost or destroyed and a testator
is later deemed incompetent, there is a presumption that the will was lost or destroyed while they were
incompetent, and therefore not revoked. ..................................................................................................................... 59
Pidgeon Estate v Major (1930) SCC  In determining whether the presumption of revocation applies, the Court
should consider the following evidence: ....................................................................................................................... 60
Flaman Estate, Re, (1997) SK QB Defines when the presumption of lost wills applies: "when it is shown that the
testator's will was last traced to his possession but cannot be found on his death." ................................................... 60
Bolton and Hess v Toronto General Trusts Corporation (1961) MB CA In order for the doctrine of dependent
relative revocation to apply, it must be clearly demonstrated that the destruction was “wholly and solely”
dependent on the making of a new will; merely contemplating the making of a new will is not sufficient................. 60
Conditional Revocation ..................................................................................................................................................... 61
In Re Jones, Decd. (1976) Eng CA  Where T mutilates or destroys a will with intention of making a new will but
fails to make the new will, it does not necessarily follow that the mutilation or destruction was ineffective to revoke
the will. Revocation is only ineffective where it appears that in such action the T’s intention was conditional - in that
the revocation should only operate if a new will was actually executed. ..................................................................... 62
Re Sorenson: Montreal Trust v Hawley (1981) BCSC True example of conditional revocation A revocation which
is shown to be made upon a mistake either of fact or of law, and is considered by the Court not to be intended by
the Testator except conditionally on the mistaken assumption being correct, is inoperative...................................... 62
Doctrine of Revival ............................................................................................................................................................ 62
Wills Act ........................................................................................................................................................................ 62
Re Mckay (1953) BCSC As per s. 20 of the Wills Act in order to revive a will, a codicil must clearly express beyond a
doubt an intention to do so; not met here .................................................................................................................... 63
5. Rules of Construction and Problems of Mistake and Republication ................................................................................ 63
Rules of Construction: ....................................................................................................................................................... 64
Re Williams Estate (2006) Nfld. Trial Division The whole will is to be read in context to determine the testator’s
intention. ....................................................................................................................................................................... 64
Middlebro v Ryan (1925) SCC Identical words in a will can be presumed to have the same meaning..................... 65
Re Stark Give effect to all words and all letters within a will. ................................................................................... 65
Di Bella v Kangas (2001) BCSC Defined Ejusdem Generis: Where a law lists specific classes of persons or things and
then refers to them in general, the general statements only apply to the same kind of persons or things specifically
listed. ............................................................................................................................................................................. 65
Wagg v Bradley (1996) BCSC Testator’s intention and presumption against intestacy considered to cure a defect in
a wills kit will. ................................................................................................................................................................ 65
7
Smith v Smith (2010) BCCA Last provision rule: if apparently contradictory provisions in a will cannot otherwise be
reconciled, the last provision prevails ........................................................................................................................... 66
***Marks v Marks (1908) SCC Surrounding circumstances (extrinsic evidence) considered where a testamentary
term has 2 possible meanings. ...................................................................................................................................... 66
***Weir Estate v Weir (1998) BCSC Provided definitions for the term “issue”…...................................................... 66
Property Law Act SBC .................................................................................................................................................... 67
Summary of Approaches ............................................................................................................................................... 67
Specific Rules and People.................................................................................................................................................. 68
Perrin v Morgan (1943) HL The context in which the word is used is the main guide to its interpretation Defined
the “armchair” rule: the courts must put themselves in the testator’s position when they made their will, and
construe the language from this vantage point............................................................................................................ 68
Haidl v Sacher (1980) SK CA Consider the “ordinary meaning” of language simultaneously with evidence of the
testator’s intention (admit extrinsic indirect evidence at the start) ............................................................................. 69
Laws v Rabbitt (2006) BCSC Courts must consider the ordinary meaning simultaneously with evidence of the
testator’s intention only when the testator’s intention is not readily clear on the plain meaning of the testamentary
document. ..................................................................................................................................................................... 69
***Admission of Armchair & Extrinsic Evidence .............................................................................................................. 69
Wilson v Shankoff (2007) BCSC BC courts apply the “armchair” rule. Note: Procedure ........................................... 70
***Illegitimate Children .................................................................................................................................................... 70
Law and Equity Act ........................................................................................................................................................ 70
Illegitimate Children at Common Law........................................................................................................................... 70
Re Jensen Estate (1989) BCSC “Children” only means legitimate children, unless expressed otherwise ................. 71
***Technical Terminology ................................................................................................................................................ 71
Re Karkalatos Estate (1962) SCC Ambiguity when using technical terms (per stirpes) improperly .......................... 71
Re Clark Estate (1993) BCSC Ambiguity when using technical terms (per stirpes) improperly ................................. 71
Evidence of Intent ............................................................................................................................................................. 72
Patent vs. Latent Ambiguity: ......................................................................................................................................... 72
Re the Estate of Murray (2007) BCSC Where there is a patent ambiguity, direct evidence is inadmissible; but
evidence of the circumstances surrounding T’s intention is admissible........................................................................ 73
Millar v Travers (1832) Eng. Direct extrinsic evidence of T’s intention is inadmissible where there is no ambiguity
on the face of the will.................................................................................................................................................... 73
Re Jackson (1933) Eng. Example of equivocation requiring the admission of direct extrinsic evidence ................... 74
Mistake.............................................................................................................................................................................. 74
***Patent Mistake ............................................................................................................................................................ 75
8
Re Davidson (1979) ON HC Correction of a mistake under the doctrine falsa demonstratio; latent ambiguity
allowed the Court to consider extrinsic evidence (surrounding circumstances when T made the will and up to T’s
death) ............................................................................................................................................................................ 75
Re McEwen Estate (1967) BCCA Presumption against intestacy was not applied as it could not be used to correct a
fatal mistake. ................................................................................................................................................................ 75
Re Morris (1971) PDA T did not know and approve of the contents of her will; an obvious mistake was deleted.
Note: rules of evidence and law in case ........................................................................................................................ 76
***Drafting Error .............................................................................................................................................................. 77
Re Wright Sask. A will based on a patent mistake will be void ................................................................................. 77
Clarke v Brothwood (2006) EWHC Clerical errors allow for rectification  use this authority for drafting errors
remedied by the Estate Administration Act .................................................................................................................. 77
Re Lipson (2009) ONSC Adding or Deleting Words: If the court is satisfied that there are incorrect words in the
document, the court can either add words or delete them to correct the error. .......................................................... 77
***Execution of Wrong Documents ................................................................................................................................. 78
Re Brander Not good law, as mirror wills should not be substituted for one another, but this has been done. ...... 78
Doctrine of Republication ................................................................................................................................................. 78
Re Hardyman (1925) Eng. It is settled law under the doctrine of republication that a codicil republishes a will, but
the doctrine may be interpreted flexibly to adhere to the testator’s intention. ........................................................... 78
Re Reeves (1928) Eng.  It is settled law under the doctrine of republication that a codicil republishes a will 
Doctrine of republication applies (“my present lease” = the lease at date of codicil) .................................................. 79
Re Heath’s Will’s Trusts (1949) Eng. A republication cannot invalidate a clause in a will that was valid at the date
of the original will.  If the doctrine of republication is contrary to the intention of the testator, it will not be
applied........................................................................................................................................................................... 79
Re Estate of Ruth Smith: Smith v Rotstein (2010) ONSC The doctrine of republication will not operate to revoke
previous testamentary instruments/provisions. ........................................................................................................... 79
Anderson v Anderson (1869) HL Doctrine of republication: a properly executed codicil can remedy an improperly
executed will ................................................................................................................................................................. 80
6. Common Law and Equitable Doctrines: Abatement, Ademption, Satisfaction, Election, Lapse, Disclaimer, Rules against
Accumulation, etc. ................................................................................................................................................................ 80
Types of Gifts .................................................................................................................................................................... 80
Insolvent Estates and Abatement ..................................................................................................................................... 81
Common Law Order of Abatement ............................................................................................................................... 82
Estate Administration Act - Order of Payment for Insolvent Estates ........................................................................... 82
Ademption ........................................................................................................................................................................ 83
Wills Act ........................................................................................................................................................................ 83
Church v Hill (1923) SCC Conversion case: ademption of property and conversion to a receivable mortgage will go
into residue.................................................................................................................................................................... 84
9
Trebett v Arlotti-Wood (2004) BCCA A change in name only is not sufficient to lead to ademption, but where there
is a specific legacy and a change in substance, there is ademption. ............................................................................ 84
***Tracing ......................................................................................................................................................................... 84
Re Cudeck (In Trebett) Tracing: property will not change in substance if it has been commingled momentarily or in
a de minimis manner..................................................................................................................................................... 85
Re Stevens (In Trebett) If a testamentary gift no longer exists at T’s death, there must be something else which
can be identified as taking its place, or there is ademption ......................................................................................... 85
Re Rodd (In Trebett) A testamentary gift that undergoes sufficient change to lose “its identity” will be considered
to have adeemed........................................................................................................................................................... 85
***Conversion .................................................................................................................................................................. 86
Re Sweeting (1988) Eng. Pre-executed K for land defeasible interest  divests upon execution of K and
subsequent conversion  ademption .......................................................................................................................... 86
Re Dearden Estate (1987) MB QB Pre-execution K  no conversion until option to purchase exercised – if K
unenforceable, no ademption ....................................................................................................................................... 87
Re Pyle (Eng. 1985)  Rule of constructive conversion can be excluded by T’s implied intention ............................... 87
Nakonieczny v Kaminski (1989) Sask QB  No ademption as assets were co-mingled but still specific (identifiable)
 no loss of character and thus no ademption ............................................................................................................ 87
Appurtenances .................................................................................................................................................................. 88
Election.............................................................................................................................................................................. 88
Granot v Hersen Estate (1999) ONCA Doctrine of election n/a – T did not intend to dispose of R’s interest ........... 88
Maw Estate v Bush (1999) BCSC  Lacks express intention to put beneficiary to an election  Doctrine of election
applies to a will when two conditions are met: 1. There must be a gift to a legatee; AND 2. There must be a gift of
that legatee’s own property to a third person (e.g. JT). ............................................................................................... 89
Satisfaction ........................................................................................................................................................................ 89
Garnett v Armstrong (1977) NS CA Direction to pay all debts rebuts CL presumption of satisfaction of debt by gift
of an alternate legacy ................................................................................................................................................... 91
***Hotchpot ..................................................................................................................................................................... 91
Estate Administration Act ............................................................................................................................................. 91
Disclaimer.......................................................................................................................................................................... 92
In the Estate of Brannan (1991) BCCA Wording in a will which shows future generations simply shows the pattern
for succession; it does not create rules.  Disclaimer may accelerate contingent gifts .............................................. 93
Re Symes There is a presumption that disclaimer will accelerate a gift, unless a will states otherwise. ................. 93
Giraudias v Giroday Trust (1998) BCSC A will must provide for termination to allow acceleration ......................... 93
Re the Estate of Creighton (2006) BCSC Acceleration through disclaimer is allowed even where not explicitly
contemplated by the T, as long as no intention to the contrary in the will/surrounding circumstances ..................... 93
Re Grund Estate (1998) BCSC Disclaimed gifts are void, and pass to the residue of the estate clear of any
conditions ...................................................................................................................................................................... 94
10
Lapse ................................................................................................................................................................................. 94
Re Stuart Estate (1964) BCSC A share of a residuary non-class gift that lapses passes on intestacy ....................... 95
***Moral Obligation ......................................................................................................................................................... 95
Re Mackey Where a gift is meant to satisfy a moral obligation, a lapse will not prevent the gift from passing to B’s
estate. ........................................................................................................................................................................... 95
***Joint Tenancy .............................................................................................................................................................. 95
***Class Gift...................................................................................................................................................................... 96
Milthrop v Milthrop (2000) BCSC Share of a residuary non-class gift that lapses passes on intestacy .................... 96
Re Hutton (1982) ON HC Example of a class gift despite naming and right of representation (combination of
language + intent were considered) ............................................................................................................................. 96
Re Peters Will (1967) MB QB Example of a class gift despite numbering................................................................. 97
***Statutory Anti-Lapse ................................................................................................................................................... 97
Wills Act BC ................................................................................................................................................................... 97
***Contrary Intention....................................................................................................................................................... 97
Re Wudel (1982) AB QB Contrary intention can be used to oust the statutory anti-lapse provision ....................... 97
Re Estate of Stella West (1999) BCSC The use of “per capita” = contrary intention to oust statutory anti-lapse
provision ........................................................................................................................................................................ 98
***Anti-Lapse Provisions in a Will .................................................................................................................................... 98
Re Cousen’s Will Trusts (1937) Eng. If an anti-lapse provision fails, the gift lapses ................................................. 98
Re Greenwood (1912) Eng. Example of an anti-lapse provision that was successful in avoiding consequences of a
lapse .............................................................................................................................................................................. 99
Re Davison (1979) NS TD Example of a broad anti-lapse provision being used successfully .................................... 99
7. Testamentary Capacity and Undue Influence ................................................................................................................... 99
Age Requirement ............................................................................................................................................................ 100
The Present Law - WILLS ACT BC................................................................................................................................. 100
Knowledge and Approval ................................................................................................................................................ 100
Harmes v Hinkson (1946) PC Lawyer w/ non-professional relationship drafts will and receives residual gift = gift is
valid ............................................................................................................................................................................. 101
Wintle v Nye (1954) HL S drafts will for unsophisticated T and receives residual gift = gift is invalid .................... 101
Russell v Fraser (1980) BCCA Non-lawyer w/ bus rel. assists T in providing written instructions to S and receives
gift = invalid gift .......................................................................................................................................................... 101
***Onus of Proof ............................................................................................................................................................ 102
***Suspicious Circumstances ......................................................................................................................................... 103
Vout v Hay (1995) SCC  Established requirements for the onus of proof: Executor has the original burden of proof
concerning: 1. Age, 2. Formalities, 3. Knowledge and approval of contents, 4. Capacity (see above) ....................... 103
11
Mental Capacity: Sound Disposing Mind & Insane Delusions ........................................................................................ 103
Bank v Goodfellow (1870) UK Mental illness creates rebuttable presumption of incapacity................................. 104
Royal Trust Company v Rampone (1974) BCSC Example of successful rebuttal of the presumption of incapacity
due to mental illness ................................................................................................................................................... 104
Re The Estate of Bohrmann (1938) UK Presumption of incapacity not rebutted for one gift only ......................... 104
Sharp and Bryson v Adam and Adam (2006) Eng. CA Drafting a new will right before death and disentitling
daughters = incapacity ................................................................................................................................................ 104
Quaintance v Quaintance (Estate), (2006) AB CA Proof that testator knew and appreciated what he was doing is
strong evidence toward overcoming the burden established by those attacking the will on the basis of UI ............. 105
Drafting and Taking Instructions ..................................................................................................................................... 105
Parker v Felgate (UK, 1883)  3 possible states of mind from which the validity of the will could be upheld: 1. Was T
capable of understanding what she was doing (i.e. could she recall whole transaction)? 2.if not, was T capable of
confirming accuracy of each clause in will if it was read to her 3.if not, would T be able to say words to the effect: “I
have settled that business with my S. I reply upon his having embodied it in proper words, and I accept the paper
which is put before me as embodying it.” (Will was valid where T in coma and roused only to ok someone else to
sign will based on option #3)....................................................................................................................................... 105
Hall v Bennett Estate (2003) ON CA Don’t accept retainer if you suspect incapacity ............................................. 105
Public Trustee v Gill This case says that if there are some doubts as to capacity, go ahead and do the will
(remember that there is a presumption of capacity that is rebuttable) ..................................................................... 106
Undue Influence & Fraud ................................................................................................................................................ 106
Community Care and Assisted Living Act .................................................................................................................... 107
Wingrove Rule: When T is coerced into something that they do not wish to do, this is undue influence. And if they
could speak to what they did, they would say that they were forced to do it. Not enough to show that someone
has the power to unduly influence someone else; you must show that they exercised the power. ........................... 107
Craig v Lamoureaux (PC, 1920)  Burden of proof stays with person alleging UI.  UI, in order to render will void,
must be influence which can be described to have caused the execution of a paper PRETENDING to express a
testator’s mind, but which really does not express his mind, but something else which he did not really mean.  The
relationship of marriage is one where it is, generally speaking, impossible to ascertain how matters have stood in
that regard (Spouse/parent/child expected to exert some influence, just not undue) ............................................... 108
Ravynshyn v Drys (2007) BCCA Referred to Craig v Lamoureaux with approval  There is a distinction between
the burden for UI proof when dealing with an inter vivos gift (which strips T of property during their lifetime) as
opposed to a testamentary gifts (which establish succession when T has passed).  Counsel was unable to point to
any authority that burden shifts to beneficiary in circumstances when there is special relationship – in wills context
..................................................................................................................................................................................... 108
Wilkinson v Joughin (Eng. 1866)  Distinguish btw fraud and innocent legatees - innocent may be ok  Fraudulent
misrepresentation serves as example where wills or specific bequests in Will can be held to be void. ..................... 108
8. Lawyer’s Duties and Responsibilities .............................................................................................................................. 108
12
Murphy v Lampier (1914) ON Lawyers must ensure capacity, lack of UI, that clients understand the effect of their
gifts, and that they know specifically what is being disposed of under the will, notwithstanding the rest of their
estate. ......................................................................................................................................................................... 109
Turner v Rochon (1980) BCSC Where a will is admitted to probate in common form, and is later attacked on the
ground of lack of capacity, the onus of proof remains on the party propounding the will. ....................................... 109
Chalmers v Uzelac 2004 BCCA BC case that approved Murphy v Lampier: the level of care that must be taken with
regard to capacity issues depends on the specific circumstances. ............................................................................. 109
Re Worrell (1969) Ont. Surrogate Ct. A solicitor must exercise care in drafting a will to ensure it accurately reflects
intentions of testator .................................................................................................................................................. 109
Whittingram v Crease & Co. (1978) BCSC Solicitors can owe a duty of care to an intended beneficiary under a will
..................................................................................................................................................................................... 110
White v Jones 1895 HL There is a duty (public policy dictates) that the public should be able to rely on lawyers to
do their jobs. ............................................................................................................................................................... 110
Red flags to watch for: ................................................................................................................................................ 110
9. Variation of Wills: Wills Variation Act, Agreement, Contracts ....................................................................................... 111
The Wills Variation Act in BC ........................................................................................................................................... 111
***Who May Apply – Standing ....................................................................................................................................... 112
McCrea v Barrett (2004) BCSC Step-children do not have standing under the WVA .............................................. 113
***The Court’s Discretion ............................................................................................................................................... 113
******Cases Relating to Spouses ................................................................................................................................... 114
Tataryn v Tataryn (1994) SCC  Followed Walker v McDermid, and said that the WVA confers broad power on court
to make orders that are just in circumstances of each case and that conform to contemporary community standards
(a sliding scale which evolves with society).  The court has to have regard to testator’s legal and moral obligations
in deciding whether to make an award.  Legal obligations take priority over moral – so s surviving spouse has
priority over independent adult children. ................................................................................................................... 114
Bridger v Bridger Estate (2006) BCCA Followed Tataryn; no legal obligation to independent, adult children, and no
legal obligation for maintenance for a surviving spouse (does not mean there are no legal obligations whatsoever to
a surviving spouse  e.g. division of assets) Moral obligations must be considered, and may overrule what would
otherwise be an adequate division of assets according to the relevant legal obligations (increased when one spouse
cares for the other in their declining years)  Need is not the only factor in determining obligations  The future
devolution of assets is not a factor in deciding factor as to whether a spouse inherits ............................................. 115
Saugestad v Saugestad (2008) BCCA  Moral obligations to children from a previous marriage can outweigh
obligations to a second spouse (in some cases) .......................................................................................................... 115
Picketts v Hall Estate (2007) BCSC  The legal claim of a CL spouse is limited to the support claims she would have
had if the couple had separated  The moral claims of independent, adult children do not necessarily outweigh the
claims of a second, CL spouse ..................................................................................................................................... 116
Specific Considerations for Spousal Support .............................................................................................................. 116
***Cases Relating to Children ........................................................................................................................................ 117
13
Specific Considerations for Support for Children........................................................................................................ 117
***Cases relating to anyone ........................................................................................................................................... 117
General Considerations for All Claims (spousal, children, etc) ................................................................................... 117
General Notes: ............................................................................................................................................................ 119
Interesting Cases (EXAM) ............................................................................................................................................ 119
Exam Notes: ................................................................................................................................................................ 120
Walman v Blumes, (2009) BCSC  Summary of considerations governing the competing principles in WMA
applications ................................................................................................................................................................. 120
McBride v Voth (2010) BCSC  Historically, need was more important, now, contributions to the estate and inter
vivos gifting are more important  More during T’s life may equal less under the will, but here, continuous lifetime
support = ongoing right to support after T’s death .................................................................................................... 121
Wilcox BC  Opposite conclusion to McBride v Voth; daughter who had lived and supported her mother for her
whole life won a WVA claim to receive the entire estate based on her contributions. .............................................. 121
***Property Available to Satisfy a Claim ........................................................................................................................ 121
Murdo v Nitting (2006) BCSC  Trusts are a valid tool to avoid WVA claims and the application of probate fees 
Assets must pass through a will for the purpose of charging probate fees and for WVA purposes ........................... 121
***Contractual Constraints and Agreements ................................................................................................................. 122
Harvey v Harvey (1979) BCCA  A unanimous shareholder agreement can put restrictions on bequests of those
shares by a will ............................................................................................................................................................ 122
Frye v Frye Estate (2008) ONCA  A unanimous shareholder agreement can put restrictions on bequests of those
shares by a will ............................................................................................................................................................ 123
BCCA Case  Separation agreements cannot be used to contract out of the WVA.  To allow anyone to contract
out of the WVA would be contrary to the public policy behind it. .............................................................................. 123
10. Intestate Succession...................................................................................................................................................... 123
Estate Administration Act, R.S.B.C. 1996, c. 122 ........................................................................................................ 123
Process for Distribution .............................................................................................................................................. 124
Public Guardian and Trustee Act................................................................................................................................. 127
Law and Equity Act ...................................................................................................................................................... 127
Introduction .................................................................................................................................................................... 127
Times ............................................................................................................................................................................... 128
Spouse ............................................................................................................................................................................. 128
***Common Law Spouse ................................................................................................................................................ 128
***Separated Spouses .................................................................................................................................................... 128
Kirkwood 2008 BC case Must cohabitate in order to be considered CL spouses .................................................... 128
Re Mercer (1989) ........................................................................................................................................................ 128
14
Gosbjorn v Hadley (2008) SCC Separation of CL spouses for less than 1 year leads to disentitlement of the
surviving spouse if conduct or attitude demonstrates that either spouse thought the relationship was at an end. . 129
Legislation Summary ................................................................................................................................................... 129
Issue ................................................................................................................................................................................ 129
Re Kishen Singh (1957) BCSC  Example of application of ss. 87(2) and 90(2) EAA: half-blood inherit equally to fullblood. .......................................................................................................................................................................... 129
***Children outside Marriage ........................................................................................................................................ 129
***Adopted Children ...................................................................................................................................................... 130
Adoption Act, RSBC 1996, c. 5, s. 37 ........................................................................................................................... 130
Clayton v Markolefas (2002) BCCA  Example of application of s. 37(1) EAA: Disinheritance from natural parents
becomes effective at date of adoption orders; if natural parent dies pre-adoption, the child is still entitled to inherit
from them. .................................................................................................................................................................. 130
***Step Children ............................................................................................................................................................. 131
***Advancement ............................................................................................................................................................ 131
Lineal Ascendants and Collaterals................................................................................................................................... 131
Re Forgie (Man. KB, 1948)  Example of application of s. equivalent to s. 87 EAA  Widows of a deceased sibling
not mentioned in the EAA; children take the share of the deceased parent. ............................................................. 131
Crown .............................................................................................................................................................................. 131
Distribution ..................................................................................................................................................................... 132
***Preferential Shares/Distributive Shares .................................................................................................................... 132
Estate Administration Act ........................................................................................................................................... 132
***Other Rights .............................................................................................................................................................. 132
Aho Estate v Kelly (1988) BCSC  Example of application of s. 96(2)(a) EAA: the life interest will only be given to the
spouse where possible (not where debts of the estate render this impossible) ......................................................... 132
Kwasnycki v Kwasnycki Estate (1990) BCSC  Example of interpretation of s. 96(2)(a) EAA: life estate created for
surviving spouse mirrored a life estate at CL (except it may be terminated to pay estate debts).............................. 133
Vak Estate v Dukalow (1994) ON  In a partial intestacy in multiple provinces, the trustee/executor collects all
property from all provinces then uses the highest preferential share for the spouse, and the distributive scheme for
the remainder based on T’s province of residence...................................................................................................... 133
Austin v Girts (2007) BCCA It’s possible to have more than one spouse in BC........................................................ 133
Table of Consanguinity.................................................................................................................................................... 134
Collins v General Trust Corp (1925) ON  Purpose of 1 year delay in section 74 of EAA is to allow for the claims of
creditors to be known. ................................................................................................................................................ 134
11. Aboriginal Succession - Robert Janes ............................................................................................................................ 134
A. Why is Estate Planning for Indians Different? ................................................................................................................ 134
Distinct Rules for Indian Persons .................................................................................................................................... 134
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Constitution Act .......................................................................................................................................................... 134
Indian Act .................................................................................................................................................................... 135
Special Status of Reserve Lands ...................................................................................................................................... 135
Indian Act .................................................................................................................................................................... 135
Certificates of Possession and Customary Rights on Reserve ........................................................................................ 136
Indian Act .................................................................................................................................................................... 136
Tax Exemption................................................................................................................................................................. 137
Indian Act .................................................................................................................................................................... 137
Different Intestate Succession Rules (s. 50).................................................................................................................... 137
Indian Act .................................................................................................................................................................... 137
Lecture Notes: ................................................................................................................................................................. 137
B. Why is Estate Administration Different? ........................................................................................................................ 138
Role of Minister in Administering Estates....................................................................................................................... 138
Transfer to Supreme Court ............................................................................................................................................. 138
Role of Minister in Approving Transfers of Land ............................................................................................................ 139
Issues Arising During Administration (Rent) ................................................................................................................... 139
Sale of Land under Section 50......................................................................................................................................... 139
C. Are There Tools to Address Special Issues? .................................................................................................................... 140
Consideration of issues at time the Will is drafted ......................................................................................................... 140
Ensuring Certificates of Possession are in Place ............................................................................................................. 140
Pre-Death Dispositions (s. 58(1)(b)) ................................................................................................................................ 141
The First Nations Land Management Act (the Land Code) ............................................................................................. 141
D. Case Law ......................................................................................................................................................................... 141
Johnson v Pelkey 1997 BCSC The Minister has some discretion in whether or not to declare a will to be void, but
there is no room for exercising this discretion when there is clear evidence of UI, duress, or lack of testamentary
capacity ....................................................................................................................................................................... 141
Nicola Band et al v. Trans-Can. Displays et al (2000) BCSC  An individual can gain an interest in the land only under
the procedures described in sections 20-29 of the Indian Act.  A band member could only gain lawful interest in
land through a proper band council resolution and the approval of the Minister of Indian Affairs  Although a
customary claim can be used to justify granting a certificate of possession under the Indian Act, “[t]he recognition of
traditional or customary use of land cannot create a legal interest in the land that would defeat or conflict with the
provisions of the [Indian] Act”..................................................................................................................................... 141
Wilson v Bonneau (2002) BCSC, affirmed (2003) BCCA Application of s. 48(8) of the Indian Act: “any interest in
land in a reserve shall vest in Her Majesty for the benefit of the land if the nearest of kin of the intestate is more
remote than a brother or sister” ................................................................................................................................. 142
16
Songhees First Nation v Canada (Attorney General) et al, (2002) BCSC, affirmed (2003) BCCA file When reserve
land is auctioned due to testamentary gifts to non-eligible heirs (non-members of the band), rent collected prior to
the sale goes to the band, not the heirs. ..................................................................................................................... 143
Songhees Indian Band v Canada (Minister of Indian Affairs and Northern Development) 2006 Fed Ct The
Minister`s discretion is subject to reasonableness and is not unlimited; the Indian Act`s provisions more or less
dictate the results of the Minister`s decisions............................................................................................................. 143
12. Other Testamentary (Non-Will) Dispositions................................................................................................................ 144
Joint Tenancies ................................................................................................................................................................ 144
Pecore v Pecore (2007) SCC Need to show intention that jointures were a gift to avoid presumption of resulting
trust ............................................................................................................................................................................. 146
Madsen Estate v Saylor (2007) SCC – released concurrently with Pecore  Presumption of advancement does not
apply to adult children (instead, usually a resulting trust applies as per Pecore); applied all rules from Pecore and
considered the list of evidential factors ...................................................................................................................... 146
Doucette v Clarke (BCCA, 2009 – overturns BCSC) BCCA Found a JT, and exercised a WVA variation based on
particular circumstances  In general, if a parent has a valid and rational reason to disinherit, the moral obligation
will be overborne, but here, the court found T was partially responsible for the estrangement which led to the neardisinheritance .............................................................................................................................................................. 147
Beneficiary Designations ................................................................................................................................................. 148
Desharnais v TD Bank (2001) BCCA  Authority under a POA allows for the transfer of an RRSP, but not for a change
of designation; POAs cannot make testamentary dispositions .................................................................................. 148
***Insurance ................................................................................................................................................................... 148
***RRSP .......................................................................................................................................................................... 149
***RRIF ........................................................................................................................................................................... 149
National Trust v. Robertshaw (BCSC, 1986)  RRSP designation is not a “testamentary disposition” (see above note
– on this basis, decision likely wrong)  There is no clear distinction between revocable inter vivos trust and
testamentary disposition.  A Canadian court will likely base its decision on the degree of control retained by the
settlor.  The “full vigour and effect” of the designation of beneficiaries of RRSPs are not entirely dependent on the
death of the annuitant.  RRSPs administered by trust companies establish valid trust relationship between
annuitant and trust company. .................................................................................................................................... 150
Roberts v Martindale (1998) BCCA  Erroneously unrevoked life insurance designation, despite agreement to
revoke = erroneous beneficiary cannot claim proceeds from policy; equity steps with a constructive trust ............. 150
***Pensions & Employment Benefits ............................................................................................................................. 151
MacInnes v MacInnes (1934) SCC  Employee pension benefit designation is a “testamentary disposition” ......... 151
Re Bottcher (1990) BCSC  General revocation clause does not revoke beneficiary designations made outside a will
..................................................................................................................................................................................... 151
Inter-vivos Gifting............................................................................................................................................................ 152
Romaine Estate v Romaine (2001) BCCA  sealed K is reliable evidence of intention to make a gift, a gift given
under a sealed K is irrevocable .................................................................................................................................... 153
17
Trusts............................................................................................................................................................................... 153
***Inter Vivos Trusts ...................................................................................................................................................... 153
Fraudulent Conveyance Act ........................................................................................................................................ 153
Fraudulent Preferences Act ........................................................................................................................................ 154
Inter Vivos Trusts and Income Tax Act ........................................................................................................................ 154
13. Incapacity Planning ....................................................................................................................................................... 154
Estate: ............................................................................................................................................................................. 154
***Powers of Attorney (Pl = Attorneys) ......................................................................................................................... 154
Easingwood v Cockroft (2011) BCSC Trusts are a valid estate planning tool, and POAs can take advantage of this
method (here, the fact that the trust mirrored the will was ideal as it reflected the donor’s intention perfectly) .... 159
McMullen v Webber (2006) BCSC  Failing to account as required by PoAA = breach of duties ........................... 159
***Nominations of Committee and Committeeship Applications ................................................................................. 159
O’Hagan v O’Hagan (2000)BCCA  Change to patient’s estate by Committee permitted (in order to allow for
favorable tax planning  Necessity is not the ultimate test; donor’s best interests are of primary importance, but
changes are allowable when there will be no disadvantage to the donor ................................................................. 161
Re Bradley (2000) BCCA  Contrasts O’Hagan; change to patient’s estate by Committee denied as it would not be in
the donor’s best interest ............................................................................................................................................. 162
Person: ............................................................................................................................................................................ 163
***Representation Agreements ..................................................................................................................................... 163
Types of Representation Agreements ........................................................................................................................ 164
Substitute Decision Makers ........................................................................................................................................ 164
Health Care (Consent) and Care Facility (Admissions) Act.......................................................................................... 164
***Advance Directives .................................................................................................................................................... 165
Health Care (Consent) and Care Facility (Admissions) Act.......................................................................................... 165
***Nominations of Committee and Committeeship Applications ................................................................................. 165
14. Probate .......................................................................................................................................................................... 165
Probate Fee Act, S.B.C. c. 4 ......................................................................................................................................... 166
Wills Act RSBC 1996 ............................................................................................................................................................ 167
Wills Variation Act RSBC 1996 ............................................................................................................................................ 176
1. Survivorship and Presumption of Death
Common Law
-
There is no requirement (production of death certification) to prove that a person has actually died in order to
probate their will.
18
-
-
Death certificates are produced by hospitals and funeral homes, etc.
There are 2 cases where a missing person complicates probation:
1. The testator is missing and no remains have been found
2. One of the beneficiaries is missing/no remains have been found
At common law, if a body cannot be found, there is a presumption that the person is still alive.
If a person is missing and someone wants to prove that there are dead, they must prove an obvious inference that
death was the result of the circumstances.
The conclusion that someone died as an inference of the circumstances can be rebutted (commonly when families
have financial difficulties or windfalls, or when several people disappear).
If a person isn’t heard from (consistently) for 7 years, they are presumed to be dead.
Note: email and other modern technologies are changing the way we look at disappearances.
Summary: there is a presumption of life, which can be rebutted, but these rebuttals can also be rebutted.
For a beneficiary to receive property, they must outlive the testator.
First question: ask who died first?
Statutes
Survivorship and Presumption of Death Act, RSBC 1996, c 444
1 Definitions
"court" means the Supreme Court;
"instrument" includes the Wills Act (note expanded defn in s. 7 Model Act)
"interested person" means
(a) any person who is or would be affected by an order made under this Act,
(b) the next of kin of the person in respect of whom an order is made or for whom an order is applied, and
(c) a person who holds property of the person in respect of whom an order is made or for whom an order
is applied.
2(1) General Presumptions*
Where 2 or more die at the same time - or where it is uncertain who survived –
then for purposes of title to property, they are deemed to have died in order of seniority - younger deemed to
survive older.
*s.2(2) - this is subject to s. 72 of the Insurance Act (Re Currie (BCSC, 1963) / Re Topliss say Insurance Act
applies so proceeds go to general estate of insured, then apply s. 2(1) or s. 2(3) of SPDA vs. Re Law / Re
Newstead (BCSC, 1951)
**Replaced by s. 8 of Model Act.
2(3) (Subject to contrary provision in an instrument) where an instrument (e.g. will) provides for the disposition of
property to another person if the designated person:
i) dies before another person;
ii) dies at the same time as another person; or
iii) dies in circumstances that make it uncertain as to who died first:
19
and the designated person in fact dies at the same time as the other person or in circumstances that make it
uncertain who survived the other
then for purposes of the disposition, the case for which the instrument provides is deemed to have occurred.
2(4) Similar to s. 2(3) but dealing with the death of the executor or personal representative
2(5) If a contract of accident insurance or of sickness insurance, or both, provides for the payment of money on the
death by accident of the person insured and the person insured and a beneficiary perish in the same disaster, it is
presumed, in the absence of evidence to the contrary, that the beneficiary died first.
 Other types of insurance mirror life insurance
3(1) Presumption of Death
Court may make an order that a person is presumed dead for all purposes or specified purposes only (requires
reasonable grounds: Re Cyr)
4 Duty of Personal Representative
Personal Representative of presumed deceased must cease dealing with estate if on reasonable grounds believes
that person is actually alive - until further court order confirming death.
5 Status of Property if deceased later found alive
(1) Distributions under “s.3(1) order” are valid and final distributions as against the person presumed dead;
(2) Subject to s. 5(1), a Court may make an order it considers appropriate regarding preservation and return of
property of deceased later found alive.
 Note: there are no cases on this yet
6 Status of Property if Deceased in fact dead
Distributions made pursuant to s. 3(1) order are valid and a final distribution as against any other person who
would otherwise be entitled if “s. 3(1) order” had not been made.
7 Appeals
Any interested person may appeal an order made under this Act to the Court of Appeal.
Notes:
- Gives the right for the court to overrule the 7 year minimum for a person’s disappearance
- There is no “grey area” in the words of a will.
1996 Act
Insurance Act 2012
29
37 "declaration", except in sections 76 to 79, means an instrument signed by the insured
a) with respect to which an endorsement is made on the policy,
b) that identifies the contract, or
c) that describes the insurance or insurance fund or a part of the insurance or insurance fund,
in which the insured
d) designates, or alters or revokes the designation of, the insured, the insured's personal representative or a
beneficiary as one to whom or for whose benefit insurance money is to be payable, or
e) makes, alters or revokes an appointment under section 62 (1) or a nomination referred to in section 68;
59 (1) Subject to subsection (4), an insured may in a contract or by a declaration designate the insured, the insured's
personal representative or a beneficiary as a person to whom or for whose benefit insurance money is to be payable.
(2) Subject to section 60, the insured may alter or revoke the designation by a declaration.
(3) A designation in favour of the "heirs", "next of kin" or "estate" of an insured, or the use of words having similar
48
20
49
50
51
52
meaning in a designation, is deemed to be a designation of the personal representative of the insured.
(4) Subject to the regulations, an insurer may restrict or exclude in a contract the right of an insured to designate
persons to whom or for whose benefit insurance money is to be payable.
(5) A contract of group insurance replacing another contract of group insurance on some or all of the group life
insureds under the replaced contract may provide that a designation applicable to the replaced contract of a group
life insured, a group life insured’s personal representative or a beneficiary as a person to whom or for whose benefit
insurance money is to be payable is deemed to apply to the replacing contract.
(6) If a contract of group insurance replacing another contract of group insurance provides that a designation
referred to in subsection (5) is deemed to apply to the replacing contract,
a) each certificate in respect of the replacing contract must indicate that the designation under the replaced
contract has been carried forward and that the group life insured should review the existing designation to
ensure it reflects the group life insured’s current intentions, and
b) as between the insurer under the replacing contract and a claimant under that contract, that insurer is liable
to the claimant for any errors or omissions by the previous insurer in respect of the recording of the
designation carried forward under the replacing contract.
(7) If a beneficiary becomes entitled to insurance money and all or part of the insurance money remains with the
insurer under a settlement option provided for in the contract or permitted by the insurer, that portion of the
insurance money remaining with the insurer is deemed to be insurance money held under a contract on the life of
the beneficiary, and, subject to the provisions of the settlement option, the beneficiary has the rights and interests of
an insured with respect to the insurance money.
Irrevocable designation of beneficiary
60 (1) An insured may in a contract or by a declaration, other than a declaration that is part of a will, filed with the
insurer at its head or principal office in Canada during the lifetime of the person whose life is insured, designate a
beneficiary irrevocably, and in that event the insured, while the beneficiary is living, may not alter or revoke the
designation without the consent of the beneficiary, and the insurance money is not subject to the control of the
insured or the claims of the insured's creditors and does not form part of the insured's estate.
(2) If the insured purports to designate a beneficiary irrevocably in a will or in a declaration that is not filed as
provided in subsection (1), the designation has the same effect as if the insured had not purported to make it
irrevocable.
Designation in will
61 (1) A designation in an instrument purporting to be a will is not ineffective by reason only of the fact that the
instrument is invalid as a will, or that the designation is invalid as a bequest under the will.
(2) Despite the Wills Act, a designation in a will is of no effect against a designation made later than the making of the
will.
(3) If a designation is contained in a will and subsequently the will is revoked by operation of law or otherwise, the
designation is revoked.
(4) If a designation is contained in an instrument that purports to be a will and the instrument, if it were valid as a
will, would be revoked by operation of law or otherwise, the designation is revoked.
Trustee for beneficiary
62 (1) An insured may in a contract or by a declaration appoint a trustee for a beneficiary and may alter or revoke the
appointment by a declaration.
(2) A payment made by an insurer to the trustee for a beneficiary discharges the insurer to the extent of the
payment.
Predeceased or disclaiming beneficiary
63 (1) If a beneficiary predeceases the person whose life is insured, and no disposition of the share of the deceased
beneficiary in the insurance money is provided for in the contract or by a declaration, the share is payable
a) to the surviving beneficiary,
b) if there is more than one surviving beneficiary, to the surviving beneficiaries in equal shares, or
c) if there is no surviving beneficiary, to the insured or the insured's personal representative.
(2) If 2 or more beneficiaries are designated otherwise than alternatively, but no division of the insurance money is
made, the insurance money is payable to them in equal shares.
(3) A beneficiary may disclaim the beneficiary's right to insurance money by filing notice in writing with the insurer at
its head or principal office in Canada.
(4) A notice of disclaimer filed under subsection (3) is irrevocable.
(5) Subsection (1) applies in the case of a disclaiming beneficiary or in the case of a beneficiary determined by a court
to be disentitled to insurance money as if the disclaiming or disentitled beneficiary predeceased the person whose
21
81
102(1)`
102(2)-(5)
103
104(1)
life is insured.
Definitions
92 In this Part:
"declaration", except in sections 104 and 123, means an instrument signed by the insured
a) with respect to which an endorsement is made on the policy,
b) that identifies the contract, or
c) that describes the insurance or insurance fund or a part of the insurance or insurance fund,
in which the insured
d) designates, or alters or revokes the designation of, the insured, the insured's personal representative or a
beneficiary as one to whom or for whose benefit insurance money is to be payable, or
e) makes, alters or revokes an appointment under section 120 (1) or a nomination referred to in section 127;
Designation of beneficiary
117 (1) Subject to subsection (4), an insured may in a contract or by a declaration designate the insured, the insured's
personal representative or a beneficiary as a person to whom or for whose benefit insurance money is to be payable.
(2) Subject to section 118, an insured may by declaration alter or revoke a designation referred to in subsection (1).
…
(4) Subject to the regulations, an insurer may restrict or exclude in a contract the right of an insured to designate
persons to whom or for whose benefit insurance money is to be payable.
(5) A contract of group insurance replacing another contract of group insurance on some or all of the group person
insureds under the replaced contract may provide that a designation applicable to the replaced contract of a group
person insured, a group person insured's personal representative or a beneficiary as a person to whom or for whose
benefit insurance money is to be payable is deemed to apply to the replacing contract.
(6) If a contract of group insurance replacing another contract of group insurance provides that a designation
referred to in subsection (5) is deemed to apply to the replacing contract,
a) each certificate in respect of the replacing contract must indicate that the designation under the replaced
contract has been carried forward and that the group person insured should review the existing designation
to ensure it reflects the group person insured’s current intentions, and
b) as between the insurer under the replacing contract and a claimant under that contract, that insurer is liable
to the claimant for any errors or omissions by the previous insurer in respect of the recording of the
designation carried forward under the replacing contract.
(7) If a beneficiary becomes entitled to insurance money and all or part of the insurance money remains with the
insurer under a settlement option provided for in the contract or permitted by the insurer, that portion of the
insurance money remaining with the insurer is deemed to be insurance money held under a contract of life insurance
on the life of the beneficiary, and, subject to the provisions of the settlement option, the beneficiary has the same
rights and interests with respect to the insurance money that an insured has under a contract of life insurance.
Designation in will
119 (1) A designation in an instrument purporting to be a will is not ineffective by reason only of the fact that the
instrument is invalid as a will or the designation is invalid as a bequest under the will.
(2) Despite the Wills Act, a designation in a will is of no effect against a designation made later than the making of the
will.
(3) If a designation is contained in a will and subsequently the will is revoked by operation of law or otherwise, the
designation is revoked.
(4) If a designation is contained in an instrument that purports to be a will and the instrument, if it were valid as a
will, would be revoked by operation of law or otherwise, the designation is revoked.
Designation of beneficiary
117 (3) A designation in favour of the "heirs", "next of kin" or "estate" of an insured, or the use of words having a
similar meaning in a designation, is deemed to be a designation of the personal representative of the insured.
Predeceased or disclaiming beneficiary
121 (1) If a beneficiary predeceases the person insured or group person insured, as the case may be, and no
disposition of the share of the deceased beneficiary in the insurance money is provided for in the contract or by
declaration, the share is payable
(a) to the surviving beneficiary,
(b) if there is more than one surviving beneficiary, to the surviving beneficiaries in equal shares, or
(c) if there is no surviving beneficiary, to the insured or group person insured, as the case may be, or his or her
personal representative.
(2) If 2 or more beneficiaries are designated otherwise than alternatively, but no division of the insurance money is
22
104(2)
105
made, the insurance money is payable to them in equal shares.
(3) A beneficiary may disclaim the beneficiary's right to insurance money by filing notice in writing with the insurer at
its head or principal office in Canada.
(4) A notice of disclaimer filed under subsection (3) is irrevocable.
(5) Subsection (1) applies in the case of a disclaiming beneficiary, or in the case of a beneficiary determined by a court
to be disentitled to insurance money, as if the disclaiming or disentitled beneficiary predeceased the person whose
life or well being or both are insured.
Enforcement of payment by beneficiary or trustee
122 A beneficiary may enforce in the beneficiary's own name and for the beneficiary's own benefit, and a trustee
appointed under section 120 may enforce as trustee, the payment of insurance money made payable to the
beneficiary or trustee in the contract or by a declaration and in accordance with the provisions of it, but the insurer
may set up any defence that it could have set up against the insured or the insured’s personal representative.
Trustee for beneficiary
120 (1) An insured may in a contract or by a declaration appoint a trustee for a beneficiary, and may alter or revoke
the appointment by a declaration.
(2) A payment made by an insurer to the trustee for a beneficiary discharges the insurer to the extent of the amount
of the payment.
Irrevocable designation of beneficiary
118 (1) An insured may in a contract or by a declaration, other than a declaration that is part of a will, filed with the
insurer at its head or principal office in Canada during the lifetime of the person whose life or well being or both are
insured, designate a beneficiary irrevocably, and in that event the insured, while the beneficiary is living, may not
alter or revoke the designation without the consent of the beneficiary, and the insurance money is not subject to the
control of the insured or the claims of the insured’s creditors and does not form part of the insured's estate.
(2) If an insured purports to designate a beneficiary irrevocably in a will, or in a declaration that is not filed with the
insurer, the designation has the same effect as if the insured had not purported to make it irrevocable.
Notes:
- The Insurance Act does not care about relationships, only names (spouses don’t trump, etc.).
- Note: there is no way to overrule an insurance policy.
- Section 102: ways to move money other than through a will
- In BC there are no irrevocable insurance policies but in most other policies, the spouse has to sign for you to be able
to give your policy benefits to someone else.
- If a second will does not revoke a first will, the designation of benefits to an insurance policy in the first will
continue.
- If a second will does revoke a first will, the designation of benefits to an insurance policy in the first is null and void
(there is no beneficiary).
Estate of Missing Persons Act:
- if a person is missing for 3 or more months, the court can appoint someone to look after their affairs.
 This commonly occurs on mortgage renewals when one of the joint account holders has been missing for a few
years (but not 7)
 In this situation, a curator (trustee) from the official administrators of BC will be appointed to look after the
person’s affairs.
 This act does not allow curator’s to mortgage or sell if the property is worth more than $100
 Note: curators negate the power created by a power of attorney
Re Law (1946) BCSC  As per the Insurance Act, in common disaster w/ insured, beneficiary presumed to die
first; Insurance Act takes precedence over seniority rule
Facts: husband, wife, and husband’s dad go fishing in Campbell River and are all lost. Husband has 3 insurance policies
that all benefit the wife. Wife has a child from a previous marriage.
Issue: who gets the insurance $?
23
Rule: If wife died first, husband’s insurance policies go to his mother. If husband died first, his insurance policies go to his
wife’s daughter. Under the Survivorship & Presumption of Death Act, since the wife is younger, the benefits go to the
daughter. In the Insurance Act though, it says that the beneficiary is always considered to have died first if the testator
and beneficiary die together.
Conclusion: Since the Survivorship and Presumption of Death Act section here is subject to the Insurance Act, the
benefits all go to the husband’s mom.
Re Topliss & Topliss (1957) ON CA Re Law was wrong; seniority rule takes precedence over Insurance Act
 Application: look to Insurance Act to determine where money goes, then Survivorship and Presumption of
Death Act to see who inherits  different purposes.
Facts:
Husband and wife both died in the same accident; the husband was older. Wife was to benefit from the
insurance policies
Issue:
Who gets the insurance $?
Rule:
Insurance Act applies before the Survivorship and Presumption of Death Act
Application: The court applied the Insurance Act first and assumed that the wife died first so the benefits must be
paid to the husband’s estate.
The court then applied the Survivorship and Presumption of Death Act presumption that in a common
disaster, the younger victim is presumed to have outlived the older victim, and gave the $ to the wife’s
estate.
 Note: different order of statutory application.
Comments: Followed in Re Currie, 1963 BCSC - which rejected Re Law (see above)
Conclusion:
The wife’s beneficiaries get everything.
Re Cyr (2006) BCSC Courts have imposed the requirement to prove the death of a missing person, beyond
the presumption set in the Survivorship and Presumption of Death Act
 An order under s. 3 requires proof on balance of probabilities that person is dead
Facts:
Husband disappeared. Wife needed him to be presumed dead to handle affairs. Husband was a Hells
Angels member that disappeared with a lot of money.
Issue:
Could Cyr be presumed dead, and did his wife have to prove his death?
Rule:
Survivorship and Presumption of Death Act: Section 3(1):
3(1) If, on the application of an interested person under the Rules of Court, the court is satisfied that
a. a person has been absent and not heard of or from by the applicant, or to the knowledge of
the applicant by any other person, since a day named,
b. the applicant has no reason to believe that the person is living, and
c. reasonable grounds exist for supposing that the person is dead,
The court may make an order declaring that the person is presumed to be dead for all purposes, or for
those purposes only as are specified in the order.
Despite the Act not creating a legislative requirement for Cyr’s widow to prove his death, the case law
imposed this additional requirement (Re Noga and Prudential Insurance Co. of America (1971) SKCA,
and Martin v Prudential Insurance Company of America, (1954) BCCA
i) in order to get an order of presumption of death, it has to be shown on a balance of
probabilities that a person is dead.
ii) On the facts, the person in respect of whom the order is sought might have been murdered,
or might have decided to disappear
Application: The court found that there was an equal chance that he was murdered or just fled, and she had to prove
on a BoP that he was dead, which could not be met.
Conclusion: Cyr’s widow was unable to prove his death and thus unable to collect on his life insurance policy.
24
The Body
-
Problems arise when we try to determine who has the right to decide what to do with the body
Note: if practicing in succession and estate, you will likely be an executor. Remember to ask clients if they want to
be buried or cremated.
Criminal Code, RSC 1985. C. C-46
182 Dead Body
Everyone who
(a) neglects, without lawful excuse, to perform any duty that is imposed on him by law or that he undertakes
with reference to the burial of a dead human body or human remains, or
(b) improperly or indecently interferes with or offers any indignity to a dead human body or human remains,
whether buried or not,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
Cremation, Internment and Funeral Services Act, SBC 2004, c. 35
1 Definitions
"cremated remains" means human bone fragments left after human remains are cremated;
"human remains" means
(a) a dead human body in any stage of decomposition, or
(b) a body of a stillborn infant in any stage of decomposition,
but does not include cremated remains;
4 Prohibitions on improper distributions on remains
Proper disposition of “human remains” – (a) interment in specified site, (b) or cremation in a crematorium, or
(c) internment in or on crown land reserved under Land Act for internment purposes.
5 Control of disposition of human remains or cremated remains
(1) Designates who controls disposition of “human remains” or “cremated remains” based on hierarchy of
person (if tie, order determined by agreement or, if that fails, based on seniority: s. 5(3)).
(a) the personal rep named in will
(b) the spouse;
(c) an adult child;
(d) an adult grandchild;
(e) if the deceased was a minor, a person who was a legal guardian of the person of the
deceased at the date of death;
(f) a parent of the deceased;
(g) an adult sibling of the deceased;
(h) an adult nephew or niece of the deceased;
(i) an adult next of kin of the deceased, determined on the basis provided by sections 89 and 90
of the Estate Administration Act;
(j) the minister under the Employment and Assistance Act or, if the official administrator under
the Estate Administration Act is administering the estate of the deceased under that Act, the
official administrator;
(k) an adult person having a personal or kinship relationship with the deceased, other than
25
those referred to in paragraphs (b) to (d) and (f) to (i).
*s. 5(4), (5) - person can override hierarchy and claim sole right to control disposition by applying to BCSC, but
court must consider rights of all interested persons and give consideration to several factors:
(a) feelings of those related to deceased,
(b) rules, practices and beliefs of religion of deceased,
(c) reasonable directions given by deceased, and
(d) whether dispute concerns family hostility or capricious change of mind
*s. 5(6): Court order can override hierarchy based on s. 5(4) application (see Re Popp Estate)
6 Disposition to be in accordance w/ preference of deceased
Written preference of deceased can be binding – if..
(a) preference stated in a will or funeral service K
(b) compliance w/preference complies w/ Human Tissue Gift Act
(c) compliance w/preference would not be unreasonable or cause hardship
20 Intervention by court
Court intervention available to prevent disinterment or exhumation, but court must consider same factors as
those set out in s. 5(5) plus one additional factor:
(c) any terms and conditions respecting exhumation or disinterment contained in a contract for the
interment of the deceased,
Re Pop Estate (2001) BCCA Executors are required/entitled to control the disposition of remains provided
(s)he does not act capriciously (irregular; whimsical; odd; unaccountable). Have a specific plan!  Court will
consider presence of “family hostility” and “capricious change of mind”
Facts:
- Competing family wishes re location of cremation and urn of the deceased
- Deceased feared “ground” or “water”
- Deceased’s will silent on where to place remains following cremation (see s. 6 of CIFSA); nor did she
give a “reasonable direction” (see s. 5(5)(c) of CIFSA)
- Deceased’s husband (executor under the will) plans regarding her remains held to be “capricious”
(wanted them at his parents’ gravesite) (i.e., irregular, unpredictable and unaccountable)
- Court intervenes using s. 5(6) of CIFSA in favour of parents and siblings of deceased
Rule:
The husband (as executor and spouse) is entitled to sole discretion as to the location of burial of remains,
as long as they do not act capriciously.
Conclusion: order granted
- S. 51 of the Cemetery and Funeral Services Act (now s. 5(1) of the Cremation, Internment and Funeral
Services Act) sets out the scheme for the control and disposition of human remains.
1. Does the request for disinterment involve “family hostility” [No. there is only disagreement]
2. Whether the person claiming interest is displaying a “capricious change of mind” [Yes. The
husband is. A person is entitled to exclusive control over disposition of remains as long as
they do not act capriciously - see s. 5(5)(d)].
3. Court must consider the rights of all those that may have an interest in the order [i.e. not just
the spouse - see s. 20(2)]
Because the husband could not justify his actions, the wife’s next of kin were given the right to relocate
the wife’s remains at their discretion.
26
The Anatomy Act, RSBC 1996, c 13
Trigger: Deals with unclaimed bodies found publicly exposed, in public or government supported institutions
2
Unclaimed bodies
A body must be placed immediately under the control of the minister if
(a) within 48 hours after death or after being found, the body is not claimed by a relative, friend or person
entitled to control the disposition of the body under section 5 of the Cremation, Interment and Funeral Services
Act, and
(b) a coroner authorizes the release of the body under the Coroners Act.
4(1)
Use of unclaimed body for anatomical research
If body not claimed by person in s. 5 of CIFSA within 3 months of death, or being found, body may be used for
science or learning
4(3)
If no anatomical research, dispose under CIFSA
If not used for science or learning (or following such use) body must be disposed of in accordance with CIFSA.
7
Direction in will
Permits objection in will to prohibit use of body in accordance with Anatomy Act.
Human Tissues Gift Act, RSBC 1996, c 211
2
Transplants lawful
A transplant from one living human body to another living human body may be done in accordance with this
Act, but not otherwise.
3
Consent for transplant
3(1) Permits inter vivos gift of transplant human tissue – must be age 19, competent, free and informed.
3(2) Exception to s. 3(1) - consent given by a person who had not reached age 19, was not mentally competent
to consent, or was not able to make a free and informed decision is valid for this Act if the person who acted
on it had no reason to believe that the person who gave it had not reached age 19, was not mentally
competent to consent, and was not able to make a free and informed decision, as the case may be.
3(3) Consent given under this section is full authority for a medical practitioner to
(a) make any examination necessary to assure medical acceptability of the tissue specified, and
(b) immediately remove that tissue from the body of the person who gave the consent.
3(4) If for any reason the tissue specified in the consent is not removed in the circumstances to which the
consent relates, the consent is void.
4
Consent after Death
(1) Permits gift of body parts by deceased (age 19 or more) following death – need consent in writing and
signed, or consent given orally with two witnesses during last illness.
(2) Despite s. 4(1), consent given by a person who had not reached age 19 is valid for this Act if the person who
acted on it had no reason to believe that the person who gave it had not reached age 19.
(3) Consent given under s. 4(1) binding and is full authority for removal and use of body parts consented to.
(4) Cannot act on consent if reason to believe it was subsequently withdrawn, unless consent was contained in
valid will of deceased.
5
Consent by spouse or others after death
Allows consent of spouse and others for use of body or parts after death in writing or orally w/ witnesses, but
person cannot give consent if they have reason to believe person who died would have objected.
27
7
Determination at death
Procedures for determining death of donor: (1) need 2 medical practitioners, (2) medical practitioner cannot
have conflict of interest to get tissue, and (3) practitioner making determination cannot take part in transplant
procedure, and (4) exception: transplant of eyes for cornea transplant.
8
If transplant fails
If specified use for tissue that was consented to fails, subject matter of gift and body must be dealt w/ as if no
consent was given.
10
Sale of tissue prohibited
A person must not buy, sell or otherwise deal in, directly or indirectly, for a valuable consideration, any tissue
for a transplant, or any body or parts other than blood or a blood constituent, for therapeutic purposes,
medical education or scientific research.
Wing v Angrave (1860) HL The one trying to receive the benefits of a will has the burden of proof.  Shows
that the courts take language very seriously.
Facts:
Husband and wife have 3 children. They head to Australia and all die in a ship wreck. The sole survivor
saw everyone get swept overboard. There was great discussion as to who would have
drowned/asphyxiated first. Both had wills that said Mr. Wing was to get everything if their spouse died
first.
Issue:
Who gets the $?
Rule:
The one trying to receive the benefits of a will has the burden of proof.
Application: Since the language said “if I die before my spouse” and Mr. Wing could not prove who died first (he had
the BoP), the next of kin took everything.
Conclusion: Next of kin took everything
Leach v Egar (1990) BCCA Canadian law of wills is strict about the application of law, not about policy.
Facts:
- Husband and wife divorced and assets were divided, with the wife getting a $400,000 settlement
- Wife and the two children (17 and 19), went on vacation, were lost at sea, and were declared dead
under the BC Survivorship and Presumption of Death Act
- Wife died intestate (as divorce invalidated her previous joint-spousal will), so on the intestacy the
$400,000 passed to her children, who also died intestate and on their death reverted back to the former
husband under intestacy statute
- Now, the wife’s mother brings an application to avoid a declaration that the wife was presumed to have
died first under the Act, as it would be unfair for the bastard husband to get all the money (policy
argument).
Issue:
Could the ex-husband get the "windfall" as prescribed by the legislative presumptions?
Rule:
Boys are younger so are presumed to die first, mother’s assets go to them. Since they are deceased, it
goes to their next of kin (dad).
Application: Not contrary to public policy that the former spouse benefit from the wife's estate in absence of any
other legal impediments
Conclusion: Yes, the ex-husband was entitled to his ex-wife’s estate as the law is very strict in its application.
Kartsonas v Stanoulous 2010 BCCA Plans filed with funeral homes can trump wills, but wills are often not
obtained until after a funeral. In practice, it is better to file a specific plan with a funeral home.
Facts: A man left his son and daughter as the executors of his first will, but then produced a second will in which his
niece was the executor and the sole beneficiary was her son.
Issue: This lawsuit spoke to who would be able to determine where to bury the man and to whether or not he would
have a Greek Orthodox funeral.
28
Rule: The son/daughter and niece should have joint custody of the remains. The funeral arrangements were the right of
the son/daughter in the initial decision, which was appealed.
Application: The BCCA determined that the second “will” was not in fact a will, and thus the first document trumps the
second.
Conclusion: The man was buried in Vancouver with a Greek Orthodox funeral.
2. Wills
Terminology
Administrator
Person who administers an estate on an intestacy.
Bequest
gift of personal property
Devise
gift of real property
Estate
The degree, quantity, nature and extent of a person’s interest in real or personal property.
Key issue in estate planning and administration: is this asset part of a client’s or deceased’s estate?
Estate
Planning
The creation of a wealth management roadmap which efficiently meets “wealth redistribution
objectives” and how to achieve them in the most efficient means possible either before or after death
(contrast w/ “financial planning”)
Essential if estate involves significant assets or complex issues.
Helps a client:
o Meet wealth redistribution objectives
o Reduce taxes and expenses to estate
o Simplify and expedite the transfer of assets to heirs
o Ensure their beneficiaries are protected
o Reduce the risk of estate litigation.
Executor
The “office” of a man/woman appointed to carry out the intentions of the testator and administer his
“estate”. More than one executor can be appointed under a will (e.g. co-executors and/or alternative
executors).
Executor’s power emanates from a will and takes effect immediately upon death
Executor’s mandate commences immediately following death, unless he renounces
Executor must file probate application for “letters probate” to document that he has the authority to
deal with the assets of the deceased (but note: duties of executor do not await probate).
First responsibility of executor is to identify, protect, and insure the deceased’s assets from date of
death, for 2 main reasons:
(1) estate is a trust, and as executor you are a trustee, and thus owe a fiduciary duty to
intended beneficiaries to secure, protect and insure the assets in deceased’s estate, and
(2) you have to attach as an exhibit to the affidavit in a probate application a “Statement of
Assets, Liabilities and Distribution” that lists certain assets identified under the Probate Fee
29
Act (see below).
Financial
Planning
The creation of a financial roadmap which shows where a person is financially, where they want to go
financially, and how to get there (contrast w/ “estate planning’)
Essentially concerned with efficient wealth creation, management and preservation, and lifestyle
maintenance
Helps a client to:
o Minimize taxes and maximize investment returns
o Ensure more secure retirement years
o Assist with handling day-to-day finances
o Increase savings and optimize wealth
o Improve cash flow and balance income and expenses
o Accumulate assets for personal goals
o Cover dependents in case of death or disability
o Determine insurance requirements (life, disability, property, etc.)
Holograph Will
A will written entirely by the testator or grantor with their own hand - signed but not witnessed.
Not recognized in BC (exception: s. 5 of Wills Act allows holograph wills for mariners). Most Cdn
jurisdictions (except BC, NS, PEI) recognize them.
Intestacy
If a person dies without a will or with a void will. Estate Administration Act applies
Joint
Ownership
When two or more persons share legal and beneficial title in an asset (real or personal, tangible or
intangible). When a joint tenant dies, his share of the title goes directly to the other joint tenant(s)
(b/c of the right of survivorship), and not his estate.
2 main advantages of JT: (1) avoid probate fees (b/c asset never passes to personal rep - assuming
beneficial title is jointly owned), (2) avoid Wills Variation Act, (3) capital gains taxes, (4) creditors’
claims
Lapses
Where the disposition of one or more assets in a will fails. Occurs in several circumstances:
o Failure to name an executor in the will
o Executor named in will predeceased testator or “renounces” the office of the executor,
and no alternative executor is names
o Named beneficiaries have predeceased the testator with no alternate beneficiaries named
 Exception: s. 29 of Wills Act provides that dispositions to children and siblings of
testator that predecease testator, but who have children at time of testator, do
not lapse but take effect as if original disposition was to them
o Will fails to distribute all of the testator’s assets and no residue clause
o Testamentary trusts settled by the will fail to provide for the distribution of remaining
assets once the trust ends (see p. 14)
Lapses may lead to a partial intestacy if there is no residual clause in the will (see s. 21 of Wills Act), or
if lapse occurs in the residual gift itself, the residue will pass on intestacy (see Jones v. Public Trustee)
Legacy
gift of cash or cash equivalent
Partial
Intestacy
Deceased has a validly drafted and executed will, but there has been a lapse
o See “lapses”
o e.g. testator has not disposed of all of his assets, or one of his intended beneficiaries has
pre-deceased him leaving those assets remaining
30
o
Can be avoided with a broad residual clause, but note Jones v. Public Trustee. Property passing on
partial intestacy administered by Estate Administration Act.
Personal
The individual responsible for allocating your property (executor in a will, administrator otherwise).
Representative
 Key Differences:
1. An executor under a will can renew/change a mortgage, an administrator cannot.
2. An executor will be granted letters of probate in administering a will.
3. An administrator will be granted letters of administration.
Power of
Appointment
a power or authority conferred by one person by deed or will upon another (called the “donee”) to
appoint, that is, to select and nominate, the person or persons who are to receive and enjoy an estate
or an income therefrom or from a fund, after the testator’s death, or the donee’s death or after the
termination of an existing right or interest. A power to appoint may be exercisable by deed or by will
depending upon the terms established by the donor of the power, and is defined, generally, as power
or authority given to a person to dispose of property, or interest therein, which is vested in the person
other than the donee of the power.
E.g. “I GIVE, DEVISE AND BEQUEATH unto my Trustees all my estate, both real and personal of
whatsoever nature and kind and whatsoever situate, and also any estate over which I may have any
power of appointment or disposal at my death. . .”
Probate
Probate confirms the validity of a will. Not all wills must be submitted for probate.
Wills will need to be submitted for probate where
o there are competing wills,
o there is a challenge to validity of a will, specifically whether it expresses testator’s intent
(i.e. undue influence)
o executor needs poof of authority where institutions holding assets or involved in their
transfer to beneficiaries insist on probate
Many transfers can occur without probate
o e.g. small bank balances, personal ornaments, paintings, bicycles, clothing, cash, coins,
gold bars, furniture, electronics, books, collections, wine, etc.
Residue,
Remainder or
Rest
The assets remaining after specific bequests in a will.
Succession
The devolution of title to property under the law of descent and distribution.
Note: although “succession” is often define in statute as the acquisition of title to property of one who
dies without disposing of it by will, the word frequently has the broader meaning of the acquisition of
rights upon the death of another.
Testator
Person making the will
Trustee
The individual or corporation that is appointed by the will to hold the estate assets in trust during the
executor’s administration period and, perhaps, during the duration of any testamentary trusts settled
by the will.
Executor and trustee usually same person, but they can be separate entities. Separate trustees can
also be appointed by the estate and testamentary trusts
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Will
A written document prepared by a person during his/her lifetime, to take effect upon death, directing
how his/her assets are to be distributed following death.
Note: will can also be used as a designation of a beneficiary under an insurance policy - if will found
invalid, the designation of a beneficiary under insurance policy may still be valid (s. 50(1), s. 102(2),
Insurance Act)
Inter vivos or Testamentary
Inter vivos: a gift given while the testator is alive.
 Note: inter vivos gifts are not limited by the testator’s debts (they are non-secured), and are non-revocable.
Testamentary: a gift given once the testator is deceased. Note: testamentary gifts may only be dispersed if all debts of
an estate have been paid. If not, they may be used to pay these debts.
Will (definition): a document that disposes of all of a person’s property in BC under the Wills Act.
General Notes:
- A will is ambulatory (does not take effect until the testator dies), and thus can be revoked/re-written any time prior
to the testator’s death.
- Wills may also be used to appoint guardians for minor children
- Currently, you must be 19 to draft a valid will
- In joint guardianship, when one guardian dies, the other continues as sole guardian, unless Section 50 is used by the
deceased to appoint a guardian to take over upon their death.
- Individuals may self-appoint as recipients under the power of appointment in wills.
- The language in a will must be imperative (wishes are unenforceable and are not binding on the
executor/beneficiaries).
- While a person can only have one last will (binding), it can be contained in many different documents (e.g. codicils).
- Not every testamentary document must have multiple signatures (life insurance policies are only signed by the
insured, whereas wills have 2 witnesses).
- Expected interests under a will are merely expected (not certain) and may be destroyed when others dispose of the
testator’s property.
Four Elements of a Will
1. A will disposes of property
2. A will takes effect on death and is dependent on death (considered “scrap paper” prior to death)
3. A will is revocable until death (its ambulatory)
4. A will is made with the intention to make it a testamentary document (important with regard to fraud, duress,
undue influence, etc.)
Bird v. Perpetual Executors and Trustees Association of Australia (1946) HC of Australia If a document
that purports to be testamentary takes effect before the testator’s death, it is merely a covenant and not a
testamentary document (not a will and unenforceable as such).
Facts:
A sued R as trustee and administrator of the estate of James Allen Parker deceased for moneys
covenanted to be paid pursuant to a document under seal executed by Parker in December 1938 or in
the alternative for moneys payable to the appellant for board and lodging provided by the appellant for
Parker deceased and his wife.
Issue:
Was this an invalid will (scrap paper) or was it merely an acknowledgement of a debt?
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Rule:
Application:
Conclusion:
If a covenant takes effect upon death it is testamentary (subject to validity with the Wills Act), but if it
takes effect prior to death, it is not testamentary and therefore not binding.
Majority
- It was not a deed, b/c it was testamentary in character. As a will it was void for non-compliance w/
Wills Act
- “testamentary” document = “A document made to depend upon the event of death for its vigour
and effect and as necessary to consummate”
- In contrast, a document is not testamentary if it takes effect immediately upon its execution,
though the enjoyment of the benefits conferred are postponed until after the donor’s death.
- That is not the case here as the document expressly states that it will not take effect until the death of
Parker
- Parker intended payment to be post mortem
Minority
- deed was not a will and therefore was binding on administrators
- it was a immediate direction to pay a debt, once the indebtedness was fully ascertained (accruing
liability)
- It was not a direction to the executors, but a covenant binding Parker as it contained an express
Since the document accounted for the room & board prior to the death of the deceased, it could not be
considered a testamentary document, and was instead an unenforceable covenant (like a gentleman’s
agreement).
It amounted to a will which failed due to improper execution and therefore not binding on the
administrators
A (Mrs. Bird) could not collect for the accrued value of the room and board.
Conditional Wills
-
There is a presumption that is will is not conditional.
-
A conditional will is one which is only valid under particular circumstances (e.g. a train wreck).
Trigger: if T intends to dispose of property in case an event happens – the will is said to be “conditional”
Issue: Whether T intends to limit the operation of the will to the time during which such calamity is imminent
Particular gifts: specific bequests that can be divided into those triggered by conditions precedent and conditions
subsequent.
***Test for a conditional will (Re Huebner)  was the event the reason for making the will or a condition for
the operation of the will?
 If an event was the reason for making the will, it remains valid after the event (not a condition for the will to
take affect; instead is a triggering event to inspire T to make the will) (Huebner).
 If the event was a condition for the operation of the will, the document only takes effect if the event occurs
(In the Goods of Porter).
Sifton 1938 ON If a condition subsequent fails due to uncertainty, it is struck down and the gift is absolute.
 If a condition precedent fails due to uncertainty, the gift is invalid and the beneficiary gets nothing.
Facts:
The testator’s daughter was given a certain sum, with the condition precedent that she continues to
reside in Canada.
Issue:
Was this a condition subsequent or a condition precedent?
Rule:
If the condition is a condition subsequent and the condition fails, then the condition is struck down and
the gift is absolute. If it is a condition precedent and the condition fails due to uncertainty, the gift is
invalid and the beneficiary gets nothing.
33
Application:
Conclusion:
The Canadian residency requirement was found to be a condition subsequent, which was uncertain due
to lack of clarity/specifics.
The beneficiary received the full benefit ($) without the residency requirement condition.
Re Huebner provided the test for a conditional will; If an event was the reason for making the will, it
remains valid after the event occurs.
Facts:
Hueber writes a will prior to his departure for a journey to Russia. The will contained specific language
referring to “his death on this trip”. The testator did not die on the trip, but rather died 2 years after his
return from Russia.
Issue:
Was this a conditional will or did it continue to be valid upon the testator’s return from Russia?
Rule:
If the will is valid, everything goes to the beneficiary (his friend) specified in the will. If it is invalid, his
assets would go to his parents (assets go up, since there is no spouse and no issue)
Application: Principles are set out in In the Goods of Porter (1869) where the will was held to be conditional because
of the crucial words “at that time” in the context of the will. In that case the will read:
“Being obliged to leave England to join my regiment in China…I leave this paper containing my
wishes… Should anything unfortunately happen to me while abroad, I wish everything that I may be in
possession of at that time or anything appertaining to me hereafter…. To be….divided…:”
Conclusion: The will was deemed to be continuously valid, as the court deemed the trip to be the reason for making
the will, and not merely the time during which the will was to be valid.
Joint Wills and Mutual Wills
- Joint Wills – rarely used – single document signed by 2 testators which operates as 2 wills and which can be probated
twice;*
- Mutual Wills – 2 documents with similar or “mirror” terms – the issue becomes whether there was an agreement
between the 2 T’s to bind the survivor to deal with inherited property in certain manner;*
*Joint Wills & Mutual Wills
- In most cases the wills provide for a life estate for the survivor with a remainder over (after the life estate is
completed) to common beneficiaries.
- BUT in some cases the wills provide for an absolute gift to the survivor (i.e. an outright gift rather than a life
estate) followed by a direction that what remains on the survivor’s death is to go common beneficiaries.
General: Where an agreement underlying a joint or mutual will provides for property held in JT to be held in trust
following the death of one T, with only a life estate for the survivor, it severs any JT in property between the two Ts, as it
is inconsistent with the right of survivorship, and thus creates a TIC (Re Gillespie  see p. 34)
Creation of a Trust – Enforceable in Equity
Upon the death of one T, the joint will or mutual wills operate to create a trust, enforceable in equity, on the estate of
the survivor (which includes their own property and that which was inherited from the first T to die), if the following
requirements are met:
1. the joint will or mutual wills were made pursuant to a definite agreement or K not only to make such a will or
wills, but also that the survivor shall not revoke;
 note: the mere existence of a joint will, signed by both T, might be evidence of such an agreement
(e.g. Re Gillespie)
 Note: an agreement to make mutual wills cannot be inferred from similar documents; evidence,
such as an express agreement, is required (e.g. Sanderson Estate) (Birmingham v. Renfrew)
2. such an agreement is found with preciseness and certainty, from all the evidence; and
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3. the survivor has taken advantage of the provisions of the joint or mutual will
Other Considerations:
- The surviving joint testator is bound to hold the property in trust for the beneficiaries of the joint will (Dufour v
Perreria)
- Often there is a benefit given to the survivor of the mutual testators (not absolutely necessary as per Sanderson
Estate)
- For the trust to arise (and for equity to intervene), it is not necessary to have probate of the will of the first to
die.
- Re Ohorodynk, 1979 ONCA – Court held that where the gift to the survivor is absolute, no trust is created that
can be imposed on the survivor that which would constrain any subsequent disposition by survivor
Counter Argument
- The survivor could argue that the gift under the other T’s will was absolute, rather than a life estate. As a result,
no trust is created that can be imposed on the survivor to constrain any subsequent disposition of the property
(Re Ohorodynk, Ont. HC, 1979, affirmed by Ont. CA in 1979)
-
BUT see Birmingham v. Renfrew (Aust HC, 1937)  equity acts as a floating obligation on the survivor to
prevent breach of the agreement. The survivor is allowed to enjoy the property during the life estate, but upon
his/her the death, the property shall be disposed of in accordance with the joint or mutual will.
Dufour v Perreria (1769) UK When one joint testator dies, the other joint testator becomes a trustee,
bound to hold the property in trust for the beneficiaries of the joint will.
Facts:
Husband and wife made a joint will disposing of their property, husband died, and wife made a new will,
leaving everything to someone else. The original beneficiary sued for their rights to acquire.
Issue:
Was the original joint will binding on the survivor?
Rule:
He that dies, on his death, has done his part in a joint will, and the survivor then becomes a trustee,
bound to hold the property in trust for the beneficiaries specified in the joint will.
Application: The new will did not revoke the old will, but rather, converted it into a contract over which the personal
representative becomes a trustee for the benefit of the beneficiaries.
Conclusion: The original beneficiary was entitled to their bequests.
Re Gillespie A joint will converts property held in a joint tenancy to a tenancy in common (no right of
survivorship) to bind survivor; the surviving joint testator becomes a trustee and is bound by the resulting
trust instrument
Facts:
Husband and wife write joint wills, to give each other a life estate and leave the remainder to a third
party (Minnie). Wife dies, and husband applies for probate of her will. One piece of property (Baby Point)
was not governed by the wills, as the husband/wife held this as joint tenants, and the husband applied to
have this transferred to him as sole tenant. The husband took this property, based on the right of
survivorship in joint tenancy. Husband then makes a new will, and dies.
Issue:
Who gets Baby Point?
Who gets property acquired by one of the joint-testators after the trust was formed?
Was there an agreement to make the will revocable?
Rule:
A joint will converts property held in a joint tenancy to a tenancy in common (no right of survivorship).
A joint will and its resulting trust do not apply to property acquired by one of the testators after the
creation
The mere fact of creating mutual wills is not evidence of a contract not to revoke; it is merely one factor
35
Application:
Conclusion:
that will be considered.
Creating a joint will (on a single document) is stronger evidence that there was to be a contract not to
revoke.
By signing the joint will, the husband and wife had severed their joint tenancy in Baby Point, becoming
tenants in common (no right of survivorship, with the property to vest in the third party beneficiary).
 The joint will made an agreement that precludes revocation which would otherwise frustrate
the deal
Severance of the joint tenancy resulted in the husband only getting a life interest in the Baby Point
property, and Minnie having a vested remainder.
Brynelsen Estate v Verdeck (2002 BCCA) All terms must be certain; “engagements of honour” are not
binding.
Facts:
The appellant (“Holly”) died a widow without issues, brothers, sisters, nieces, or nephews. She had a will
from her second marriage, which gave all of her property to her second husband, which would then go to
his issue. This will is challenged as being invalid, having been voided by her third marriage.
Issue:
Does the appellant’s estate go to the daughters of her second husband (deceased), or her six 2nd cousins
who initially disputed her will?
Rule:
All terms must be certain; “engagements of honour” are not binding.
Application: “The critical time in this case is the time of the making of the wills when the Forresters had been married
but a few months. The evidence simply does not warrant a conclusion that Mrs. Forrester, as she then
was, was close to the respondents whom she had met but a few months before.”
 The court did not believe that “Holly” was close enough to her stepdaughters to leave her
estate to them, even though it contained property left to her by their father.
 The court also believed that it would be “irrational” to infer that “Holly” would leave
everything to the issue of her second husband, ignoring her third husband and his issue.
 Any agreement that “Holly” had with her stepdaughters was merely an “engagement of
honour”, and thus not bound by the mutual wills doctrine.
Conclusion: The stepdaughters of Holly’s second husband get nothing; her cousins take all.
Andruchow Estate v Seniuk, (2005) ABQB Dependent adults have the capacity to make wills, divest
property, etc.
Rule:
Dependent adults have the capacity to make wills.
Application: In the situation here, the trustees do not suggest that there is any analogy between their issuance of the
Statement of Claim and an executor’s need to go to court to interpret words that a testator chose; in my
view, they are correct in not drawing any such analogy. The situation here is one where a dependent
adult has made a will, but there is no evidence before the court that the dependent adult is unable to
make future wills. Therefore, according to law, the dependent adult has the potential capacity to make
future wills: s. 65 Dependent Adults Act. Since the dependent adult has the potential capacity to make
further wills, the court will not deal with the current will because it is only a “piece of scrap paper”. The
whole argument of the trustees on this motion must be that they acted reasonably in defending the
motion, not that they were obliged to contest a will that had not yet come into potency.
Edell v Sitzer (2001) ON SC A constructive trust will not be imposed unless there is an agreement between
mutual testators not to change the scheme of disposition of their assets.
 An agreement to distribute an estate in a certain way is not an agreement to never change that
distribution; an agreement to never change a mutual will must be explicit!
 Affirmed 2004 OCA; leave to appeal refused
Facts:
Paul and Geraldine (husband/wife) had 2 children together. Paul and his business partner had vast real
36
Issue:
Rule:
Application:
Conclusion:
estate and commercial assets, which were held at different times under each of them and Geraldine. Paul
and Geraldine made mutual wills in 1984, leaving everything to each other with the remainder to their
children (life estates with limited rights to encroachment). She died in 1991, but before she died, they
had discussed an estate freeze (they had also created various trusts and holdings). After Geraldine died,
Paul continued to create new trusts, etc. Daughter and her husband sued Paul, claiming that everything
was to go equally to her and her brother, and therefore, everything should be held in trust for her and
her brother.
Did Paul have the right to change the scheme of disposition?
In order for a constructive trust to result, there would have to be a promise not to revoke AND not to
make any changes to the scheme of disposition.
“Where an agreement as to mutual wills does not define the survivor’s power over the property, but
merely provides as to the disposition of the property at his death, the survivor may use not only the
income, but reasonable portions of the principal, for his support and for ordinary expenditures, and he
may change the form of the property by reinvestment and the like but he must not give away any
considerable portions of it or do anything else with it that would be inconsistent with the spirit or the
obvious intent and purpose of the agreement.”
Paul’s rights after Geraldine’s death with respect to what had formerly been his property—as well as his
rights to Geraldine’s personal effects and the matrimonial home that he received under her will—would
be very similar to those of a life tenant with very limited rights of encroachment.
“I have referred to the insistence in the cases that a contract that will bring into play the doctrine of
mutual wills must be proven by clear and satisfactory evidence. I have no hesitation in finding that no
such contract was created in this case. I accept Paul’s evidence that there was no contract, or other
agreement, between him and Geraldine with respect to the inability of the survivor to vary the estate
planning arrangements that had been put in place while each was alive or to deal freely with his or her
own property after the first death.”
University of Manitoba v Sanderson Estate Mutual wills create trusts to bind the surviving mutual testator
Facts:
In this case, the entire joint estate was held in joint tenancies between the two mutual testators. They
left all of their assets (after both of them passed) to the University of Manitoba in a will dated 1970. They
created a codicil in 1973 changing the beneficiaries, and another in 1977 which changed their executor. In
1984, their executor suggested that they review their wills, they do not. In 1985, wife dies, with their joint
assets still in joint tenancy. One month later, husband writes a new will, giving ¾ of his assets to other
parties, and ¼ to the University. When the husband passed, the University filed a caveat to recover their
original interest (everything).
Issue:
Is there a trust created by a mutual will when there is no benefit conferred to the surviving testator (must
there be a benefit to create an obligation)?
Rule:
Husband had the right (ambulatory right under wills law) to change his will, but did not have the right to
change the division of assets under the mutual will, as his wife had already passed.
Before a constructive trust is imposed on the survivor of a mutual will, an agreement must be proven
from the will or from extrinsic evidence, and then the survivor becomes a constructive trustee of all
assets held jointly at the time of the first person’s death.
Application: The court concluded that it was not necessary to benefit from a mutual will, in order for the will to create
a trust based on the contract created.
 The fact that the mutual testators made mutual wills giving to each other is not evidence of a
contractual agreement…
 Those opposing the University’s caveat argued that husband’s bequests to the other parties
acted as absolute gifts, and that a trust could not be imposed to undo what he had given to
them.
 Note: equity acts as a floating obligation to prevent the survivor from breaching the
agreement. He may enjoy the property in his lifetime, but on his death, the property must
37
follow the mutual agreement.
Conclusion:
Requirements for imposing a constructive trust:
1. There must be an enrichment to one party
2. There must be deprivation to another party
3. There must be a juristic reason for imposing a trust
Pratt v Johnson Constructive trusts are imposed on the shared assets of mutual testators as soon as one of
them dies.
 Anything acquired after one of the parties dies is not bound by the trust.
Facts:
A joint will, with everything to each other (spouses), and the remainder to a group. After husband dies,
wife changes her will, leaving everything to different beneficiaries.
Issue:
Was there valid reason to impose a constructive trust?
Rule:
A constructive trust from a mutual will arises as soon as one of the parties dies. Everything they together
own at the time of death of one of them is then governed by the trust. Anything acquired after one of the
parties dies is not bound by the trust.
Application:
Conclusion:
Holographic Wills
Holographic Will (definition): a testamentary document that is entirely in the testator’s own handwriting, signed by the
testator, and does not require any witnesses.
- Holographic wills are not valid in BC, but they are valid in other provinces (AB).
- Exception to the BC invalidity of holographic wills: member of the CA armed forces (when on active service) can
create valid, holographic wills.
- Section 41 of the Wills Act: a change of domicile of the testator does not invalidate a holographic will (e.g. a
holographic will created by an AB resident who moves to BC and does not create another will would still be valid for
assets in AB).
Bennett v Gray (1958) SCC A letter wholly written and signed by a deceased person may constitute a valid
holograph will only if it contains a deliberate or fixed and final expression of intention as to the disposal of
the writer's property upon his death.
 The burden is upon the party setting up such a paper as a will to show either by its contents or by extrinsic
evidence that it is of that character and nature.
Facts:
T said she’d like to give what little she had in letter to solicitor, noting that she would contact him later.
Issue:
Does a letter, wholly written and signed by the late Mary Winifred Gray and addressed to her solicitor
and friend manifest a deliberate and final intention as to the disposal of her property upon her death?
Rule:
Although it is established under the authorities that a letter wholly written and signed by a deceased
person may constitute a valid holograph will, it will not have that effect unless it contains a deliberate or
fixed and final expression of intention as to the disposal of the writer's property upon his death.
The burden is upon the party setting up such a paper as a will to show either by its contents or by
extrinsic evidence that it is of that character and nature.
Application: In this case, the testatrix committed to future consultation with the lawyer, but never did (showing
abandonment of the original intention). The burden is on the party claiming a document to be a will to
show by the will’s contents or by extrinsic evidence that this intention exists.
Conclusion: Probate refused.
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3. Formalities of Execution (formal and substantive validity)
Three Main types of wills in Canada:
1. Attested will: signed by testator and 2 witnesses
2. Privileged will: available only to active duty CA forces and do not require witnesses
3. Holographic wills: entirely in the testator’s handwriting with no witnesses (not in BC)
Manitoba has a dispensing power (BC does not): S. 23 of the Wills Act: allows MB to make wills fully-effective (cures
defects
Dispensation power
-
S. 23 Where, upon application, if the court is satisfied that a document or any writing on a document embodies
a. the testamentary intentions of a deceased; or
b. the intention of a deceased to revoke, alter or revive a will of the deceased or the testamentary
intentions of the deceased embodied in a document other than a will;
-
the court may, notwithstanding that the document or writing was not executed in compliance with any or all of the
formal requirements imposed by this Act, order that the document or writing, as the case may be, be fully effective
as though it had been executed in compliance with all the formal requirements imposed by this Act as the will of
the deceased or as the revocation, alteration or revival of the will of the deceased or of the testamentary intention
embodied in that other document, as the case may be
Five requirements for an attested will in BC (as per the Wills Act)
1. Section 3: A will must be in writing (Wills Act)
 Writing includes handwriting, typing, word processing, etc.
 It does not have to be in English, but the testator must understand its contents
 20 or so of the United States allow oral wills
 Other common law jurisdictions for active duty military
 A dying declaration differs from a will: it may be oral, but it is not a will. It is a gift that is effective
immediately, not upon death.
2. Sections 4a and 6: A will must be signed by a testator, at its end (Wills Act)
 This applies to the testator and the witnesses (there is a signing clause for each of them).
 Section 6 of the Wills Act can save a will if the signature is placed elsewhere, as a will is not necessarily
invalid if it is in various other specific locations.
 Note: everything that comes after the signature on a will is of no force and effect.
3. Section 4b: There must be two witnesses (they do not need to know that the document is a will or what are the
contents, merely that they are witnessing the testator’s signature) (Wills Act)
4. The testator must sign or acknowledge in the presence of the witnesses (Wills Act)
5. The witnesses must sign in the presence of the testator (Wills Act)
*** Requirement 1: A will must be in writing
-
Even a will written on a tractor fender (SK) was found to be valid.
39
-
Wills created with pre-typed will kits (where the testator fills in the blanks) are not valid, as they are not in the
testator`s writing.
*** Requirement 2: A will must be signed by a testator, at its end.
Re McDermid Estate, 1994 Sask QB A will must be signed by the testator.
Facts:
Husband and wife had identical, mutual wills, but mistakenly
Issue:
Was this a valid will?
Rule:
A will must be signed by the testator.
Application: The court ordered that the husband and wife’s wills be attached to one another, in order for the
signatures to effectively be at the end of each of their respective wills.
Conclusion: The defect was cured and the will was admitted to probate.
Re Bradshaw Estate (1988) NB Prob. Ct.  A mark other than a signature can be considered a valid
signature, if the testator’s intention was to execute a testamentary document.
Facts:
A testator attempted to sign a codicil on his deathbed, but was only able to make a couple of strokes on
the paper.
Issue:
Was the codicil a valid part of the will?
Rule:
A mark other than a signature can be considered a valid signature, if the testator’s intention was to
execute a testamentary document.
Application: The court examined the intent of the testator, which was to sign the will, and which was only prevented
by his physical infirmity.
Conclusion: The will was admitted to probate.
Peden v Abraham (1912) BCSC A testator must be aware of/engaged in the process of signing a will for it
to be valid.
Facts:
The deceased testator summoned the plaintiff to his deathbed to assist with his will. By the time P
arrived, the testator was too weak to be interested in making a will, and too weak to be capable of
signing his name. When it was time to sign, although the testator signalled that he could sign unassisted,
his doctor (seeing that he could not manoeuver the pen), put his hand over the testator’s and traced him
name, to which the testator did not respond or offer any acknowledgement. The testator was also
unaware/unengaged in the process in which the witnesses signed his will, and he proceeded to die
shortly thereafter.
Issue:
Was this a valid will?
Rule:
A testator must be aware of/engaged in the process of signing a will for it to be valid.
Application: Based on the testator’s lack of involvement in finalizing his will, the court decided that in his physical
condition, he could neither consent or object to the contents of the will or its process of implementation.
Conclusion: The court rejected the will.
Re White (1948) NS SC If a testator is assisted in signing/marking their will, and they adopt the mark as
their signature, it will therefore be valid. A mark is allowed in lieu of a signature, when the testator is
incapable of signing as per usual. A request for assistance to sign a will does not need to be verbal; a
gesture will suffice.
Facts:
The testator had had a stroke, and was asked by the doctor if he could make a mark on his will. He said
he could, but dropped the pen. The doctor then guided the testator’s hand to sign the will.
Issue:
Was this a valid signature and therefore a valid will?
Rule:
If the testator is making a mark, and is assisted by another person, and he adopts this mark, it is the same
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Application:
as if he had no assistance.
Any adoption of the mark is sufficient to make it binding.
The court considered whether what was written by the testator was the best he could do, bearing all the
circumstances.
Because the testator adopted the scribble as his signature (he died one yr. later), it became his legal
signature.
Conclusion:
Daintree v Butcher (1988) Witnesses to a testamentary document do not need to know the nature of the
document. A testator does not have to sign in front of the witnesses to a document, as long as the testator’s
signature is clear and undisputed (must sign or acknowledge in front of witnesses as per the Wills Act, but no
dispute here so the codicil was granted probate)
Facts:
A testatrix handwrote a codicil to her will, and asked her 2 witnesses to come into the room and sign it.
They did not see the testatrix sign, but did see her signature. They signed as witnesses, but were unaware
that they were signing a testamentary document.
Issue:
Was the codicil a valid part of the will?
Rule:
Witnesses to a testamentary document do not need to know the nature of the document.
A testator does not have to sign in front of the witnesses to a document, as long as the testator’s
signature is clear and undisputed.
Application: The court determined that the presence of the testatrix’s signature was sufficient acknowledgement of
her agreement to the document.
Conclusion: The codicil was admitted to probate.
Re Briggs (1985) Manitoba Queens Bench Intention rules and can be used to cure defects (will signed at
the beginning instead of the end; intention rules so will admitted to probate)
Facts:
Document wholly in deceased’s handwriting purported to be will but was signed at the beginning instead
of the end.
Issue:
Was this a valid will?
Rule:
Intention rules, and was used to cure defects.
Application: Document represented testamentary intention.
Conclusion: Admitted to probate.
Kuszak v Smoley (1986) Manitoba Queens Bench Intention rules and can be used to cure defects (defects
here created by a “fill-in-the-blanks” wills kit, but intention ruled and the document was admitted to probate)
Facts:
Testator filled out will form with no witnesses.
Issue:
Was this a valid, holographic will?
Rule:
Intention rules, and was used to cure defects.
Application: The handwritten parts were not enough to constitute a holograph will; the printed words were required.
The court noted that the document embodied testamentary intentions.
Conclusion: Document admitted to probate.
Re Wagner (1959) Sask. Surr. Ct. Signature on envelope containing will valid because it represented the
testator’s intentions (even though signature placement must be at the end, intention rules)
Facts:
A reverend wrote and delivered the will for Mr. Wagner, who signed his name on the first line (first page)
of the document, and also signed the envelope which contained the document, and which was marked as
the testator’s last will and testament.
Issue:
Was the signature on the envelope intended by the testator to be the signature on his will?
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Rule:
Application:
Conclusion:
If the signature on the envelope was intended to be the testator’s signature to his will, does it matter
that it was on a separate piece of paper?
The Saskatchewan Wills Act stated that a signature could not give effect to any disposition or direction
that followed.
The Wills Act of England contained essentially the same rules regarding signature placement, so English
case law was applied.
The court considered the additional signature that the testator affixed to the envelope containing his
testamentary documents, noted that there was no dispute or issue of fraud and examined the intent of
the testator.
Reasons for the decision:
1. The envelope was signed after the will was complete, and was therefore the last act of the
testator in creating his will.
2. The court also noted that it was unnecessary for the testator to sign the envelope, and therefore
his intention was to validate his will with the additional signature on the envelope.
3. The deceased left behind a widow and nine children, and none of them contested the will. Since
everything was left to the mom, the children would be the only other possible beneficiaries, and
they did not seek to enforce this.
4. The envelope was considered “to have a far closer relationship to a document which it encloses
than a second and wholly disconnected piece of paper.”
The will was admitted to probate.
In the Goods of Bean Contradicts Re Wagner’s decision that signing the envelope containing the will was
sufficient; testator’s armchair/intention seems to have been considered; judge ultimately decided that T
thought he had already executed the will prior to signing the envelope.
Facts:
The testator in this case did not sign the will; he only signed the envelope.
Issue:
Was this a valid signature?
Rule:
Testator’s armchair/intention considered; judge ultimately decided that T thought he had already
executed the will prior to signing the envelope.
Application: The judge said it was impossible to be satisfied that the deceased intended to give effect to the will by
writing on the envelope as in all likelihood the deceased was under the impression that he had already
executed the will.
Conclusion:
Probate refused.
Re Fitzhaut Estate (1966) BCSC A person signing on behalf of the T may sign his own name OR the T’s name
(In the Goods of Clark (1839) UK, and Re Deeley and Green (1930)). Computer (word processing) signatures
are valid in the US if properly witnessed (Taylor v Holt (2003) Tenn, CA), but the Electronic Signatures Act
does not yet allow for this in Canada. A testator may indicate agreement to a will with a gesture; valid if the
witnesses saw or at least might have seen
Facts:
A will was witnessed in accordance with the Wills Act, but was not signed by the testator himself. The
substitute signee signed his own name, instead of that of the testator, although there was an
acknowledgement that the signature was to replace the testator’s and a declaration that the testator was
incapable of signing on his own.
Issue:
Did this meet the signature requirement; was the substitute signature valid?
Rule:
The Wills Act states that a will is not valid unless it is signed at its end by the testator, or signed by
another person in his presence and at his direction.
 Agents/other signatories may sign their own name.
Application: The court applied English case law from In the Goods of Clark as the signature provisions in the Canadian
statute mirror the English Wills Act.
If the testator had directed the witness to sign in lieu of his own signature, due to infirmity or other
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Conclusion:
limitation of his ability to sign, and in the presence of witnesses who saw this direction, the lack of the
testator’s own signature would not be a problem.
The will was properly executed.
Groffman A will is not valid if the testator acknowledges their signature to each of their witnesses
separately; they must both be present at the same time.
Facts:
Witnesses to a will were not present at the same time a will was signed, although the testator drew their
attention to his signature separately and individually. His widow challenged the validity of the will
Issue:
Did this meet the signature requirement?
Rule:
A will is not valid if the testator acknowledges their signature to each of their witnesses separately; they
must both be present at the same time.
Application: Since the witnesses were not there at the same time, their signatures did not meet the requirement.
Conclusion: Probate refused.
Signature Requirement Summary:
- Verbal acknowledgment of signature is not necessary; a gesture is sufficient if this is normal for the testator.
- Witnesses had to have seen, or had to have had the opportunity to see T sign the will
- The person who witnesses a will need not be told that the document is a will; they need only be told that they are
witnessing a document.
Palan v Ponting HL  A last page was incorporated by reference, even though the final page was not signed
(intention cured signature defect)
Facts:
The testatrix wrote on the margin (see other side for completion) and the other side contained more
provisions
Issue:
Did this meet the signature requirement?
*** Requirement 3: Two Witnesses, Present at the Same Time
General Rules:
- A will must be witnessed by an adult.
- If a witness was at the time of execution, or thereafter becomes incompetent, the will is not invalid on that reason
alone.
- A creditor is a competent witness.
- The executor is a competent witness.
- Note: it does not affect the validity of the will for a beneficiary to be a witness, but it may affect the ability of the
beneficiary to take the benefit to them that was specified in the will.
- Lawyers cannot charge both legal fees and executor`s fees, unless they specify in the will that they are doing both
jobs.
- If a beneficiary or their spouse witnesses a will, any gift to the beneficiary is void.
 This is done for policy reasons to prevent fraud.
Re Cumming (1963) ON HCJ Direction for sale is a beneficial devise – therefore witnesses set to benefit
from this devise invalidate their gift (or that to their spouse)
Facts:
Mr. Cumming gave his house to his trustees, specifying that they will put it in “perfect condition”, and
then sell it to his friend, Mr. Early, for a period of 3 years at $30 per month. If Mr. Early was incapable of
working during the 3 years, he would get the house right away without further payment. Mr. Early’s wife
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Issue:
Rule:
Application:
Conclusion:
witnessed the will.
Whether direction for the sale of the residence of deceased to Mr. E is void in whole or in part by reason
of the fact that Mrs. E is an attesting witness to the will?
Where a sale is directed by the will, the applicable provisions need to be reviewed to determine if they
confer a beneficial interest to the proposed purchaser.
The court found that the $1080 in total that Mr. Early would have paid over the 3 years was not
sufficiently beneficial as to allow for him to receive the house.  Even though his wife’s signature
technically voided his gift, the court still considered the net amount he would pay over the 3 years to see if
he could still keep the house.
Benefit (which Court held would clearly be conferred upon Mr. E by the terms of the sale under the will)
is void by reason of the fact that Mrs. E is an attesting witness to the will contrary to the statute.
 The $1080 total to be paid was insufficient (below market value) to rebut this conclusion.
Re Rays’s Will Trusts (1936) CH.D.  To be an invalid gift to a witness, the gift must benefit the witness
personally (or their spouse; but a community of which they are a part can receive the gift for the shared good)
Facts:
A nun left all of her property to the convent to which she belonged. Two other nuns witnessed her will –
one of whom was in charge of the convent when the testatrix died, and both of whom would receive a
benefit as members of the convent that would, as a whole, benefit from the testator’s will.
Issue:
Could the leader of the covenant administer and benefit from the will she witnessed?
Rule:
To be an invalid gift to a witness, the gift must benefit the witness personally
Application: The court did not look into the timing of the gift here, but they did consider whether the gift was given to
the abbess herself, or the community as a whole.
The court noted that as members of the society, the two witnessing nuns would receive an indirect
benefit from the will, but said that this was not sufficient to void the gift.
Conclusion: The gift was allowed since the abbess received the gift for the benefit of the whole society.
Re Royce’s Will Trusts (1959) A will is not invalid solely because witnesses become beneficiaries or
spouses of beneficiaries sometime after the will was signed  A beneficial interest conferred to witness must
be evident at relevant time (i.e. attestation or death for a death-bed will) to invalidate gift; what happens
after the signing is irrelevant
Facts:
The plaintiff and a solicitor named Claremont were the executors and trustees of the testator’s will. After
they proved the will, Claremont died, and the plaintiff appointed another solicitor (who had witnessed
the will) as the replacement trustee. The will provided for remuneration to be given to the trustees.
Issue:
Could the second solicitor benefit from the will he had witnessed?
Rule:
A will is not invalid solely because witnesses become beneficiaries or spouses of beneficiaries sometime
after the will was signed.
Application: The court looked only at the time that the will was signed, and noted that whatever happens after the
signing is irrelevant.
Conclusion: The new trustee was able to collect remuneration for his appointment.
Gurney v Gurney (1855) In order to invalidate a gift, a witness must witness the document providing for
the gift to the witness himself (witnessing a separate testamentary document will not invalidate a gift under
a document the witness did not witness)
Facts:
The testator left money to Mr. Fry and Mr. Temple, who did not witness the will. They did however
witness codicils executed at a later date, which served to increase the revenue of the estate which would
in turn benefit Mr. Temple.
Issue:
Did the witnesses of codicils void the benefits under the will?
Rule:
In order to invalidate a gift, a witness must witness the document providing for the gift to the witness
44
Application:
Conclusion:
himself.
The court applied the rule very literally, and said that since Mr. Fry`s signatures to the later codicils did
not affect his gift, he was entitled to keep this amount.
In considering the benefit to Mr. Temple, the court noted that although the codicil served to increase the
benefit to Mr. Temple, his interest was created in a different document altogether (the original will), and
therefore his benefit could not be voided by his signature on the later codicils.
Both beneficiaries were able to receive their gifts.
Anderson v Anderson (1869) HL A properly executed codicil can remedy an improperly executed will
Facts:
The codicil here had the effect of republishing the will (Note: this is the exact opposite of the decision in
Gurney). Mr. Anderson was the beneficiary under a will, which his wife witnessed. The testator later
wrote a codicil that was witnessed by 2 different people
Issue:
Was Mr. Anderson`s benefit void due to his wife`s signature?
Rule:
Codicils and other testamentary documents later executed may cure defects created by signatures
provided by beneficiaries.
Application: The court said that the effect of the codicil was to `repeat and confirm`` the will, and to incorporate the
codicil and the original will into one document.
Conclusion: Mr. Anderson was still able to benefit from the will.
If a signature defect cannot be cured, and a beneficiary cannot collect, there are three possible remedies:
1. The assets will be divided amongst the other beneficiaries
2. They will treat it as though the beneficiary died
3. The benefit goes to intestacy law
Jones v Public Trustee (BCSC, 1982)  When a witness’s share of residue is invalidated, the share passes on
intestacy, not to other residual beneficiaries Where an invalid gift provides a life estate, the life estate is
accelerated and the gift goes to the ultimate beneficiary
Facts:
A testatrix left gifts to her 3 daughters and her son-in-law, who both witnessed the will. As a witness, the
daughter who signed was incapable of taking her gift (it was voided).
Issue:
Who gets the share of the daughter who signed the will?
Rule:
When a beneficiary witnesses a will, and the defect is not cured by a codicil or other remedy, intestacy
law applies.
Where a voided gift is specific and absolute, it falls to intestacy law; where a gift provides a life estate,
the life estate is accelerated and the gift goes to the ultimate beneficiary.
Application: The daughter who signed the will argued that the court should treat her as dead, and give her share to
her children. Her sisters argued that the court should divide the court into 2 shares for those that did not
sign.
The court applied intestacy law, which resulted in the signing daughter`s share being divided equally
between the 3 sisters (one-ninth to each of them, with the original two-thirds going to the non-signing
sisters.
Conclusion:
*** Requirements 4 and 5: The testator must sign or acknowledge in the presence of the
witnesses, and the witnesses must sign in the presence of the testator
Re Brown (1954) ON Surr. Crt.  A testator must sign or acknowledge their signature in the presence of both
witnesses, at the same time.
Facts:
The testatrix wrote and signed her will in the presence of one witness, then went to another room, where
45
Issue:
Rule:
Application:
Conclusion:
both indicated their signatures, and a second witness signed the will.
Did this meet the signature requirement; was the will signed by the witnesses “in the presence” of the
deceased?
While the witnesses must attest and subscribe to the will of the testator, they need not do so in the
presence of each other.
The testator’s signature must be made or acknowledged in the presence of two witnesses who must both
actually be present at the same time, and both witnesses must attest or subscribe the will after the
testator has signed or acknowledged their signature.
While the witnesses must attest the will in the presence of the testator, they need not be in each other’s
presence, and thus their separation does not render the will invalid.
Since the testatrix did not sign or acknowledge her signature in the joint presence of the witnesses, and
they in turn did not both subscribe their signatures that this had been done in their joint presence, the
will is invalid.
Probate refused as the signature requirement was not met.
Re Wozciechowiecz (1931) AB Appeals Division A testator must be able to see the witnesses sign his will;
whether he chooses to watch/look is immaterial.
Facts:
The testator was in hospital and very ill. His lawyer wrote the will in his presence, proper him up, read it
to him, and had him sign. The lawyer and another patient in the room signed as witnesses. The testator,
on the evidence, was unable to turn around in bed in order to see the witnesses sign the will, and may or
may not have known what was going on.
Issue:
Did this meet the signature requirement; was the will signed by the witnesses “in the presence” of the
deceased?
Rule:
A testator must be able to see the witnesses sign his will.
Application: Since the testator was incapable of turning over in order to see the witnesses sign his will, the court
ruled that he might as well have been in another room as he could not know what was going on.
Conclusion: Probate refused as the signature requirement was not met.
Other Case Law Re: Witness Signatures
- In Tribe v Tribe, 163 E.R. 1210, where it was impossible for the testator (in the same room as the witnesses) to have
seen the witnesses sign the will, the judge said “what difference would there have been, in principle, if the witnesses
had signed the will down stairs?”
- Tribe is cited for the following in Jarman on Wills (1930), 7th edition, Vol. 1, p. 109 and in Kingsford’s Canadian Law of
Wills, (1913) p. 66: “If the testator be unable to move without assistance and have his face turned from the
witnesses, so that it is out of his power to see them, if he so wished, the attestation will be insufficient.”
- Newton v Clarke - curtains ok
- The Newton case was later distinguished from Tribe on the basis that in Newton the testator could have seen the
witnesses sign if he chose to look, whereas in Tribe it was impossible.
- Brown v Skirrow – is quoted by the judge as follows: “You cannot be a witness to an act that you are unconscious of;
otherwise the thing might be done in a ball-room 100 feet long and with a number of people in the intervening
space.”
Presumption of Due Execution
-
This is the common law presumption that a will has been executed properly (Ball v Taylor)
In BC, there is no requirement to attach an affidavit of witness to a will (Note: all other provinces require this
addition).
46
Ball v Taylor (1999) BCSC In the absence of evidence to the contrary, there is an inference that there has
been compliance with the requirements of the stature with reference to execution  Presumption of due
execution applies and is not rebuttable by defective memory
Facts:
The testator’s sister prepared his will, then she and her husband watched as the testator signed. The
testator late took his will to work, and had two co-workers sign as witnesses. The witnesses did not see
the testator sign, and do not recall whether his signature was already on the document. There was an
“attention clause” above where the witnesses signed, stating that the testator had signed this page and
initialed the others, in the presence of both witnesses at the same time and that they too had signed
while all three individuals were together.
Issue:
Did this meet the signature requirement; was the will signed by the witnesses “in the presence” of the
deceased?
Rule:
A testator must either make or acknowledge his signature in the presence of the 2 attesting witnesses,
and they must sign in the presence of each other and the testator.
In the absence of evidence to the contrary, there is an inference that there has been compliance with the
requirements of the stature with reference to execution.
Application: Since this will had an “attestation clause”, the court assumes the will was duly witnessed by a person
who knew the requirements of the Wills Act, and will not assume that a person has signed his or her
name to the attestation knowing it to be untrue.
It was sufficient for the testator to identify the document as his will; he need not draw specific attention
to his signature.
Conclusion: Since the witnesses could not recall whether or not they saw the testator’s signature, but that he did
identify the document as his will, and they did sign below the attestation clause, the presumption of due
execution is not rebutted, and the will is valid.
Krause v Toni (1999 BCSC in Chambers) Applied the doctrine of substantial compliance, to say that there
was no doubt as to the authenticity of the will and the defect could be cured.
Facts:
A solicitor and his secretary witnessed the wills of the husband and wife, she died, and it was determined
that the lawyer did not sign her will.
Issue:
Was the will valid?
Rule:
Doctrine of substantial compliance was applied as the will’s authenticity was undoubted.
Application: Even though the wife’s will was missing her solicitor’s signature the BCSC found in Chambers that there is
a common law right to cure the defect in this will.
Conclusion: The will was admitted for probate.
Boulton v Tartaglia 2000 BCSC Judge said the doctrine of substantial compliance was invalid in BC;
contradicts Krause v Toni.
Facts:
A solicitor and his secretary witnessed the wills of the husband and wife, she died, and it was determined
that the secretary did not sign her will, but merely stamped her name.
Issue:
Was the will valid?
Rule:
Doctrine of substantial compliance was deemed not to be valid law in BC.
Application: Even though there was no opposition to the admission of this will to probate, and though the facts are
nearly identical to Krause v Toni, the judge refused to cure the defect in this will under the doctrine of
substantial compliance, saying that this was not within his power.
Conclusion: Probate was refused.
Incorporation by Reference
-
This doctrine allows for existing, unattested documents to be incorporated into a will (very commonly used).
47
-
-
If a testator has a lot of collectibles, they should bring in a specific list of who should receive each item.
There are 4 absolute requirements for incorporation by reference:
1. The document must exist when the will is executed.
2. The will must refer to the document as a presently existing document.
3. The will must describe the document with sufficient certainty.
4. The will must not state that the document is not to form part of it
Although a reference in a will to a list that exists elsewhere is not technically valid, these almost always survive as
they are rarely challenged, and are often used to divvy up small, non-valuable items.
If a document cannot be incorporated successfully, it will not be covered by the Wills Act.
Parol evidence cannot be used to determine the testators intention, but it can be used to narrow down the options
created by a statement revealing intention:
E.g. the testator wants all items to be distributed according to the memo given to their lawyer, however, if their
lawyer has more than one memo, parol evidence can be used.
Re Currie (1978) ON HC Provided a two step test for incorporation by reference
Facts:
The testatrix wanted to transfer shares of a company to a trust (which did not exist at the time). The
codicil specified that the shares would go to a trust, “if such a trust existed” at the time of the testator’s
trust. She made the trust only 10 days before she died.
Issue:
Was the reference to a non-existing trust at the time of execution of the will a valid “incorporation by
reference”?
Rule:
If a document is to be incorporated into a will, two conditions must be satisfied:
1. The will must refer to some document then in existence; and
2. The document in question must be beyond doubt the document referred to in the will.
The onus of proof is on the person seeking to have incorporated some other documents into a will.
Application: Since the trust did not exist at the time the will was created, the disposition of shares was invalid and the
codicil to this purpose was of no force and effect.
Conclusion: The shares passed to beneficiaries under the will, as the disposition to the trust was invalid.
Re Jackson (1985) BCSC ***Current BC precedent on Incorporation by Reference Parol evidence CAN be
used to explain which of several documents a will/codicil is referring to. Created a four-step test for
incorporation by reference: The document 1. Must be in existence at time of execution; 2. Must be described as
then existing; 3. And in such terms that it is capable of being ascertained; and 4. The will must not state that
the document is not to form part of it.
Facts:
The testatrix made a will on July 8, 1975, which made no reference to a memorandum that she wrote a
few days later. The memo listed specific possessions, and the parties she wished to receive them, and it
was signed at its end. She then wrote a last and final will 3 years later, which referred to and was filed
with the memorandum.
Issue:
What kind of evidence could be used to identify the memo referred to in the will?
Could parol evidence be admitted in order to ascertain the particular instrument which the testatrix
referred to her last will?
Rule:
There are 4 requirements to permit the incorporation by reference into a will of a testamentary paper.
The document to be incorporated:
1. must be in existence at time of execution;
2. must be described as then existing;
3. and in such terms that it is capable of being ascertained; and
4. the will must not state that the document is not to form part of it.
Referred to Allan in allowing parol evidence to explain which of several documents the will is referring to.
Note: parol evidence cannot be used to explain the meaning of particular terms of a will or codicil.
48
Application:
Conclusion:
Since there was only one memo contained in the envelope with the will, the court accepted parol
evidence that this must have been the memo referred to by the will.
The court sought to place itself in the position of the testatrix, necessitating the inclusion of evidence that
provided insight as to her intentions.
The memorandum was included and the will was admitted to probate.
4. Revocation and Revival of Wills
Revocation by Law
The Common Law:
- The common law said that any change in the testator’s circumstances would revoke a will
- E.g. Marriage of a testator
- E.g. Testator goes to jail
The Wills Act:
- The Wills Act differs in that there is no presumption that a will changes just because of a change in the testator’s
circumstances.
- Wills Act, s. 14(1) –General revocation - a will or part of a will is revoked only by
a. marriage of T (a s. 15 declaration can avoid this)
b. another will made under the Wills Act
 But seee Lawer: revocation clause in subsequent instrument ignored if it does not represent T’s
intentions (see test on p. 77)
c. a writing declaring an intention to revoke made in accordance with the Wills Act
d. burning, tearing or destruction, etc. of the will by T or some person in T’s presence and by T’s
direction with the intention of revoking it
 If T had capacity following execution of will (Re Broome), presumption of animus revocandi created
when a will if destroyed, torn or lost
 Propounder of will must consider circumstances surrounding the tearing, destruction or losing of the
will to rebut presumption (Re Norris: an example of successful rebuttal)
 For destroyed wills
 T’s intention to revoke must be demonstrated!
 Entire will does not have to be destroyed – just need destruction sufficient to render a
material part of it no longer apparent (i.e. can’t be seen w/ magnifying glass, and no
physical interference to have clearer view) - e.g. scoring signature, cutting out signature (Re
Adams; Hobbs)
 For lost wills
 Rebuttable presumption that where a will which is last traced to the possession of the T and
is last known to be there is not available upon T’s death, it is presumed that the will was
revoked by the T animo revocandi (with the necessary intention to revoke the will)
 Strength of presumption depends on T’s custody over the will – “tight” or “loose” custody
(Sugden)
o “loose”  weaker presumption of intention to revoke (likely stolen)
 Presumption can be rebutted using extrinsic evidence – i.e. parol evidence of the contents
of the lost instrument (Sugden; Lefebvre)
o parol evidence should be corroborated if possible
49



If presumption rebutted and substantial parts of the will’s contents are recovered from
parol evidence, probate should be granted (Sugden; Lefebvre)
BUT, if T loses capacity after execution of will, RO arises – i.e. burden of proof lies on party alleging
revocation (Re Broome)
3 Items to be Proved on BoP, re validity of lost wills – Lefebvre
 1. Proof of due execution of Will
 2. Proof of contents of will; and
 3. Proof which rebuts presumption of revocation with animo revocandi
- Will Act, s. 14(2) – a will is not revoked by a presumption of an intention to revoke based on a change in
circumstances
 e.g. if T provides a gift for his CL spouse, where that relationship ends, the gift is not revoked based on a
presumption that T intended to revoke the gift
 e.g. if the description of B is in general terms (“to my brother’s wife”) and they subsequently divorce,
the wife at the time of making the will is entitled to the gift, even if the brother remarried (unless
contrary intention can be found in will)
- Wills Act, s. 15 – Declaration of marriage – a will is revoked by the marriage of T
a. Unless there is a declaration in the will that it is made in the contemplation of the marriage, or
 Re Pluto: declaration must be express, not implied or inferred from will)
 Re Ratzlaff: may construe declaration having regard to all surrounding circs  better approach
given principles governing interpretation of wills)
b. the will is made in exercise of a power of appointment of property which would not in default of the
appointment pass to the heir, executor or administrator of the testator or to the persons entitled to the
estate of the testator if the person died intestate.
- Will Act, s. 16 – Revocation of gift on dissolution of marriage
(1) In this section, "spouse" includes a person considered by a testator to be the testator's spouse.
(2) If in a will a testator
a. gives an interest in property to his or her spouse,
b. appoints his or her spouse executor or trustee, or
c. confers a general or special power of appointment on his or her spouse,
and after the making of the will and before the testator's death
d. a judicial separation has been ordered in respect of the marriage,
e. the marriage is terminated by a decree absolute of divorce, or a judgment granting a divorce under the
Divorce Act (Canada) for which a certificate was or could have been issued under that Act, or
f. the marriage is found to be void or declared a nullity by a court
then, unless a contrary intention appears in the will, the gift, appointment or power is revoked and the will takes
effect as if the spouse had predeceased the testator.
BC Family Relations Act - Part 5: Matrimonial Property:
Equality of entitlement to family assets on marriage breakup
- S. 56(1) – Each spouse is entitled to an interest in each family asset on or after march 31, 1979 when
a. a separation agreement,
b. a declaratory judgement under s.57,
c. an order for dissolution of marriage or judicial separation, OR
d. an order declaring the marriage null and void
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Respecting the marriage is first made.
(2) – the interest under (1) is an undivided half interest in the family asset as a tenant in common
(3) – an interest under (1) is subject to
a. an order under this Part or Part 6, or
b. a marriage agreement or a separation agreement.
(4) – this section applies to a marriage entered into before or after March 31, 1979
Declaratory judgement
S. 57 – On application by 2 spouses married to each other or by one of the spouses, the Supreme Court may
make a declaratory judgement that the spouses have no reasonable prospect of reconciliation with each other.
BCLI Report on Will Revocation by Marriage
- BCLI Report recommends abolition of revocation of will on marriage of T and makes a number of recommendations
for changes on the effect of “marriage breakdown” on a will.
- Rationale:
o The rue is archaic
o Provision is not widely known - results in carefully planned estates inadvertently overturned
o Other estate planning instruments (i.e. RRSP and insurance designations) are not revoked by marriage
o CL marriages would not covered by s. 14 (results in uneven application of law)
o FRA already affords protection to spouses during T’s lifetime, and WVA already applies to dependents
(spouses and children)
Notes on Marriage & Dissolution of Marriage
-
To revoke the will, the marriage must be valid
A marriage can be void AND voidable
Dissolution of a marriage only deletes the specific clauses (benefits to the ex-spouse)
Void Marriages:
- A marriage is void if the person getting married lacked capacity to consent, or if there is a case of mistaken identity.
- A void marriage can be challenged by anyone.
- If a marriage is void, a will is not revoked because the marriage never existed in the first place.
Voidable Marriages exist when:
- They didn’t meet the formalities (fake justice of the peace)
- They were coerced
- The parties failed to consummate the marriage
- These can only be challenged by the people that get married
- A voidable marriage will revoke a will, unless a challenge to marriage is made, and it is then voided.
Re Pluto Estate (1969) BCSC A contemplation of marriage clause must explicitly state that it is “in
contemplation” and not merely imply that the marriage took place.
Facts:
The testator’s will (April 15, 1964) conveyed his house to his wife, whom he married the very next day
(she was not his wife at the time the will was made).
Issue:
Did the marriage revoke the will?
Rule:
A contemplation of marriage clause must explicitly state that it is “in contemplation” and not merely
imply that the marriage took place.
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Application:
Conclusion:
The will did not constitute a declaration that he was contemplating marriage
The will was revoked since it did not contain a “contemplation of marriage” clause.
Maclean Estate v Christiansen (2010) BCCA A contemplation of marriage clause requires an express
declaration; reference to the individual as a current spouse will not suffice.
Facts:
The testator had four children, had separated from his second wife, and had been living with Ms.
Christiansen since 2003. In 2004 he had a heart attack. In 2006 he received estate planning advice. He
announced his engagement to Christiansen in December, wrote a will in June of the next year, but
referred to Christiansen as his spouse, and married her in September of 2007. While on honeymoon, he
had a heart attack and died upon his return to Canada.
Issue:
Did the marriage revoke the will?
Rule:
Application: The chambers judge held to strict construction, and said that the express declaration of contemplation of
marriage had to made, noting that when Maclean referred to her as his spouse, he meant his commonlaw spouse, and that their subsequent marriage revoked the will.
The court of appeal disagreed, adopting Ratslaff Estate, Re (2002), and examining the behaviour of the
testator prior to his death, specifically:
- The testator and his wife had done their estate planning together
- The wedding plans were made before the will was written
- They had a stable, long-term, common-law relationship
- The benefits that Christiansen was to receive were benefits under a spousal trust
- His children were also provided for under the will
- The testator had given specific instruction to his solicitor to prepare the will before the marriage.
Note: other provinces allow common-law relationships to revoke wills, but BC does not.
Conclusion: The reference to Ms. Christiansen as his spouse was not a declaration of intention to marry, so the
marriage revoked the will, and the estate falls to intestacy.
Re Ratzlaff Estate (2002) SK CA Extrinsic evidence may be admitted to identify the person referred to in a
contemplation of marriage clause.
Facts:
Testator wrote a will with a wedding date in mind, which specified that if he were married at the time of
his death, his wife would get $10k for every year that they had cohabitated.
Issue:
Did the marriage revoke the will?
Rule:
Once a declaration to the effect that the testator intended to marry is found in the will, "extrinsic
evidence may be admitted to identify the person in contemplation, should there be an ambiguity in that
regard".
Application: The court of appeal wanted to ensure that the will as a whole, and not just the specific bequest was
made in contemplation of marriage.
- The wording of the will must be construed having regard to those surrounding circumstances to aid
and explain what is written in the will, not to explain the intent or what he intended to write.
- Having regard to all surrounding circumstances it is clear that the marriage of the T referred to in the
will was the marriage to Antonia Ramos given that:
 T was unmarried at the time he made the will;
 He left almost immediately after executing the will for Mexico where had made
arrangements to marry Antonia Ramos;
 He intended to marry Antonia Ramos within a short period of time after the making of his
will, and
 He intended to benefit her in his will.
Conclusion: Taking all the surrounding evidence into account and references in the new will to changed matrimonial
status, the inescapable conclusion is that the will was made in contemplation of T’s marriage to Antonia
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Ramos and all the statutory requirements were met.
Banton v Banton (1998) ON SC The “capacity” standard to enter into a marriage is lower than that
required to manage other affairs (write wills, appoint POAs, divest property, etc.)
Facts:
The children contested the marriage of their father (Mr. Banton) and the subsequent revocation of his
will. His will (pre-marriage) divided everything equally between his children. Several years later, Banton
was terminally ill and went into a retirement home and met a 31 year-old waitress named Muna, who he
subsequently married (at this point he was castrated, so consummation was impossible, incontinent, and
almost immobile) 2 days later he wrote a will and a power of attorney. The lawyer who wrote the will had
some concerns about his capacity. He died 2 years later, and the children contested the will.
Issue:
Was the will revoked by the marriage?
Rule:
There is a much lower threshold for capacity to marry than there is for estate planning and other
manners of managing one’s affairs.
Application: The marriage could not be voidable, as he had already died, but it could be void on the basis of lack of
capacity to consent or in mistaken identity.
Since there is a much lower threshold for capacity to marry, the marriage was valid. The court found that
he had no capacity to write the new will, and that his old will was revoked and he died intestate, resulting
in most of his estate going to his young widow.
Conclusion: “notwithstanding George Banton’s incapacity to manage property on December 17, 1994, he had
capacity to marry and that his marriage to Muna was valid. In consequence, his will of January 30, 1991,
was revoked and, in view of my other findings, he died intestate.”
Allison v Allison (1998) BCSC Matrimonial, not testamentary domicile determines the validity of a will and
whether or not marriage results in revocation. A change in domicile does not revoke a will.
Facts:
The testator made his will in Quebec, got married in Quebec, and then moved to BC and died shortly
thereafter.
Issue:
Was the Quebec will valid when Mr. Allison died?
Rule:
Matrimonial, not testamentary domicile determines the validity of a will and whether or not marriage
results in revocation.
Application: Note: in Quebec, a will is not revoked by marriage.
If the will had been made in BC, the marriage would have revoked it.
If the will had been revoked, it would have been the move to BC, and not the marriage in Quebec that
triggered the revocation. The court held that matrimonial, not testamentary domicile determines the
validity of a will and whether or not marriage results in revocation.
Conclusion: Since the testator married in Quebec, the will was valid.
Revocation by the Testator:
There are 3 ways a will can be revoked by the testator:
1. A subsequent instrument/alteration:
 Should contain a declaration such as “I revoke my previous wills”
 A subsequent instrument need not contain a revocation clause if the intent is not to revoke a previous
instrument.
 The intention of whether or not to revoke is the key
 An un-revoked earlier will is considered revoked only to the extent that it is inconsistent with a
subsequent will.
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2. A declaration of revocation
3. A physical act (destruction)
***Subsequent Instruments
Re Lawer (1986) SK Sirr Court Set out the general principles governing revocation clauses It is open to a
court to inquire if there is sufficient evidence to establish that the testator did/did not intend to revoke
Facts:
- T created two wills – Oct. 29/62 and May 23/78.
- The 1st will was contained in a handwritten document.
- The 2nd will, written on a printed stationery will document, says: “I revoke all former Wills and
Testamentary Dispositions by me at any time heretofore made and declare this to be and contain my
last Will and Testament.”
- If only the second will were valid, the testatrix’s main asset would not have been disposed of
Issue:
Can both wills be admitted to Probate after deletion of the revocation clause in the 2nd will?
Rule:
General principles governing revocation clauses
1. There is a heavy burden of proof on those attempting to eliminate revocation clause where
document is complete on its face
2. A revocation clause may be ignored if it does not reflect the trust intentions of T
3. Mere mistake by T in inserting a revocation clause is not sufficient in itself in granting probate to
ignore a revocation clause
4. Indirect evidence of the circumstances surrounding the creation of the document alleging to
revoke a prior will may be admissible to determine whether T intended to revoke his will
Application: The court said that since the two documents did not contradict one another, they could coexist. They also
noted that if only the second will were valid, the testatrix’s main asset would not have been disposed of.
One of her sisters challenged the will, seeking to benefit under intestacy.
The court considered her intention in writing the second will to provide for the various charities, that the
1978 will did not contradict the 1962 will, and that the revocation clause was not sufficient to revoke
both wills as it was not the intention of the testator.
The fact that the testatrix kept both wills together in her safety deposit box was seen to illustrate that she
did not intend to revoke the first will with the second.
Note: the law of probate and the law of construction differ in estate matters
- The law of probate is whether the will itself is valid
- The law of construction applies once probate has been granted, and applies to the individual clauses
in a will to determine whether they are valid.
- In the law of probate, you can use indirect evidence re: the creation of a document if you are trying
to determine whether the testator intended to revoke a will.
- Only indirect evidence can be used.
- If there is a physical act of destruction that was done by the testator (burning a will in a fire), then
you can use both direct and indirect evidence.
- Lacking a physical act, the will itself is the only direct evidence (as it still exists).
Conclusion: Held: A mere mistake on the part of the testator in inserting a revocation clause should not be sufficient
to admit only the second will to probate  this would likely be different if she had handwritten the
second will.
Both wills were admitted to probate, and the revocatory clause was ignored.
Re Estate of Blanca Esther Robinson (2010) ONSC Mistaken belief of the legal effect of provisions in a will
does not render the will or the provisions inoperable.
Facts:
Testatrix owned property in Spain and in Canada. She made a will in Spain to dispose of her EU property,
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Issue:
Rule:
Application:
Conclusion:
and then came to Canada and met with a lawyer and he drafted her CA will. He inserted the standard
clause to revoke all other wills, as she did not tell him that she had another will.
Was the Spanish will revoked by the Canadian will?
A will is valid if the person making it approves the content, even if they misunderstand the legal effect of
the words.
The court found that the testatrix misunderstood the meaning of the revocation clause, thinking that it
would not apply to her Spanish will.
They determined that this was a clear error on the part of the testatrix, but that the CA will was valid and
served to revoke her Spanish will.
The CA will was valid and served to revoke her Spanish will.
***Declaration
-
To revoke a will by declaration, all formalities must be observed (witnesses, signatures, etc.).
This is not common:
1. Example 1: a testator is separated and there was no triggering event to revoke the will, but he didn’t want
his ex-spouse to get more than what their divorce would provide
2. Example 2: a testator had one disabled child, but wanted to provide for all of his children equally (the Wills
Variation Act would have given most or all of his estate to the disabled child); he revoked his will so he
would die intestate and his estate would be divided equally.
***Destruction
-
Burning, tearing, or destruction in another manner with the intention of destroying the will leads to destruction of
the will
Complete destruction can be done by the testator, or by another person at the direction of and in the presence of
the testator.
There is a presumption that if the will was in the testator’s possession, and it was destroyed, that any destruction
was done by the testator.
If the will was in the testator’s possession, and the will is lost and the testator is now incompetent, it is presumed
that it was destroyed while the testator was incompetent to revoke it  the will is still valid.
The person who seeks to have the will declared as being destroyed bears the burden of proving this fact.
If you die mentally competent, and your will has been destroyed, it is presumed that you intended to revoke it
(animo revocandi).
If you destroy the original of a will, and there are still copies floating around, the will is revoked.
Destroying a copy of the will has no effect, and the will is still valid.
If you have a will, and then write a new will that revokes the old will based upon an upcoming marriage (for
example), and then destroy the new will, the old will is not revived.
 The only way to bring back the old will would be to write a codicil to incorporate the old will by reference, or
to just re-print, date, and sign a new copy.
Re Norris (1946) BCSC Tearing the will into pieces was insufficient to prove T’s intent to revoke; considered
all circumstances
Facts:
T and B lived together as husband and wife. T suffered from “hallucinations and recurring delusions.” T
made will and told Miss H where he kept it and even gave her a key and showed her the envelope inside
a black box in his locked shirt drawer. When T died, Miss H found the will had been torn into a number of
pieces but could be easily read. The will left most of T’s property to Miss H.
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Issue:
Rule:
Application:
Conclusion:
Was the will revoked by tearing, as per section 18 of the Wills Act RSBC?
In coming to a conclusion whether an act of destruction was done animo revocandi, all the surrounding
circumstances must be considered.
Ms. H, as propounder of the will, had to rebut presumption the of animo revocandi by using evidence of
the circumstances surrounding the destruction.
The court noted that:
a. The pieces of the torn will were carefully put back into the envelope; if T’s intention was to
create intestacy, would he not have thrown the pieces into the fire or trash?
b. Continued affection between T and Miss H and on the whole of the evidence T placed in Miss H’s
possession the envelope containing the torn will on the belief that it was still a valid will.
c. T hadn’t spoken to his ex-wife or children in England in more than 30 years; they had passed from
his life.
Upon considering all of these circumstances, the court decided that it was the intention of the testator to
leave everything to Miss H.
If will was torn by T it was done unintentionally or in a moment of mental confusion with no intention of
revocation. Hence, will was not revoked
Re Adams (1992) EN Scoring of signatures rendering them no longer apparent is sufficient to revoke a will
Facts:
T asked lawyer to destroy will but lawyer said it is best for T to destroy it.
T died and the will was found heavily scribbled upon with heavy scoring with dark ink. Signature of T and
witnesses were heavily scored and almost totally illegible.
Issue:
Was the will effectively revoked by the heavy scoring, or, could it be saved?
Rule:
There is a presumption "Where a will is destroyed or found mutilated, in a place in which the testator
would naturally put it...that the testator destroyed it, and that it was destroyed with the intention of
revoking it..."
 This is only prima facie, and may be rebutted.
Application: Intention of T to revoke was inferred from facts including request to lawyer to destroy will, scoring over
signatures of T and witnesses. “Whatever was done to this will was done with the intention of revoking
it.”
Conclusion: Since a material part of the will was destroyed, the will as a whole had been revoked and was therefore
denied probate.
Cheese v Lovejoy Intention to revoke a will by destruction is not sufficient; there must be an actual act of
destruction
Facts:
T drew his pen through the lines of various parts of the will and wrote on the back of the will ‘This is
revoked’
Issue:
Was the act sufficient to revoke the will?
Rule:
Intention to revoke a will by destruction is not sufficient; there must be an actual act of destruction
Application: Marks with T’s pen did not fully destroy the will.
Conclusion: It was held that that was not a sufficient act to constitute destruction.
***Alterations
- “Codicil” = means of amending a will.
o format: (i) identify will, (ii) date of will, (iii) state which provision is being amended (i.e. revoked and
replaced with…), and (iv) confirm last will and testament
- s. 17 - alterations to will or codicil
56
o
(1) subject to (2), unless an alteration that is made in a will is made in accordance with the provisions of this
Act governing the making of a will (e.g. validly executed codicil), the alteration has no effect, except to
invalidate the words or meanings obliterated (i.e. no longer “apparent”) by the alteration. (see Goods of
Itter)
o
(2) exception to (1) – an alteration to a will is validly made when the signature of the testator and the
subscription of the witness or witnesses to the signature of the testator to the alteration are made either:
 In the margin or in some other part of the will opposite or near to the alteration, or
 At the end of or opposite to a memorandum referring to the alteration and written in some part of
the will.
General Rule:
- Alterations apparent on the face of a will are presumed to have been made after the will was executed (Estate of
Oates)
- Onus on propounder of will to adduce evidence that the alterations were made before the execution of the will (e.g.
successfully rebutted in Estate of Oates)
o e.g. intention of testator relevant as evidenced by his declarations prior to execution of the will  court can
draw inferences from such declarations, namely that the alteration was made in furtherance of an intention
that existed before execution of the will
In the Estate of Oates (1946) PDA There is no formal presumption that additional words are added preexecution ; the onus of proof is on the propounder to show that alterations were written before execution
Facts:
The testatrix wrote out her own will from an older version prepared by her solicitor. She wrote 1 copy,
then another, from which she left out the words “and personal” in reference to her property, but added
these words above the line containing her disposition of property.
Issue:
Were the words “and personal” written in the will before or after its execution?
Rule:
There is no formal presumption that additional words are added pre-execution, but the onus is on the
beneficiary to prove that the words were added by the testatrix prior to the will’s execution.
Application: The court considered the first draft of the final will, which did contain the words “and personal” and also
considered the testatrix’s reputation as a careful woman and her expressed intention to divest her
property as specified in the will.
 Propounder has onus of proof to show the alteration occurred before execution; propounder
can adduce evidence of testator’s intentions underlying the alteration (e.g. testator
declarations)
Conclusion: Based on the testatrix’s intention and the evidence from the 1st draft, the words were a valid part of the
will and it was admitted to probate.
In the Goods of Itter (1950) Alterations must be effective in order to actually change a will If you revoke
a will or part of a will with the intention that your new will or new alteration will take effect in its place, and
then the new will or new alteration turns out to be void, the old will or clause will remain
Facts:
The testatrix pasted slips of paper on a codicil that was to modify her will, but failed to have them
properly witnessed. The writing underneath the slips (the original bequests) were only visible if a special
camera was used.
Issue:
Do the original legatees under the codicil inherit according to the original codicil or the revisions, or do
the slips of paper obliterate the original provisions so that they are no longer apparent due to the
alteration and, therefore (by Statute) invalid provisions?
Rule:
- Alterations must be effective in order to actually change a will
- If you revoke a will or part of a will with the intention that your new will or new alteration will take
effect in its place, and then the new will or new alteration turns out to be void, the old will or clause
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Application:
Conclusion:
will remain
Plaintiff argued that because of the infra-red photography the words and figures under the slips of
paper were “apparent” (i.e. not obliterated) within the meaning of the statute and should be
followed.
- The intention of the testator was to revoke the part of the bequests covered by the slips only if new
bequests were effectively substituted. Her intention was not to revoke the bequests but to substitute
different amounts. It follows that the slips may be removed from the document, if necessary, or any
other means used to ascertain the writing which was on the document before the slips were pasted
on
- The court rejected the plaintiff’s submission on the basis that “apparent” means “apparent on the
face of the instrument itself”. If the words of the document can be read by looking at the document
itself then it is apparent within the meaning of the statute – however elaborate may be the devices
used to assist the eye… but if they can only be read by creating a new document (e.g. photograph) “I
cannot find that the words are apparent. They may be discoverable; in this case they have been
proved to be so; but that is not the word used in the section.”
Since alterations were not effective, the original legatees take in accordance with the terms of the
original codicil (b/c paper could be peeled off).
-
Lost Wills
Same presumption as destroyed wills: if the will was in the possession of the testator, and cannot be produced upon
their death, it is presumed that it was destroyed with the intention to revoke the will (as long as they have mental
capacity).
Four ways to rebut the presumption:
1. by words or actions of the testator;
2. By a codicil that refers to the will;
3. By evidence of the character of the testator and his treatment of the beneficiaries and of the will, and;
4. By statements made by the testator regarding the provisions to the beneficiaries.
-
Lost wills are more common than destroyed wills.
The presumption is nearly always rebutted; it would not be prudent to go to court if it were not likely to be
rebutted.
In order to get probate, you must do a search of the Wills Registry that is run by Vital Statistics.
 Note: less than 50% of testators register their wills.
If you rebut the presumption of revocation (lost or destroyed wills), you must still:
1. Prove the contents of the will (can use oral testimony, solicitor’s notes, other statements by the testator, such as
letters to family, etc.)
2. Show proper execution of the will (signatures, witnesses, etc.)
 Note: this presumption only applies if the will was in the possession of the testator, because only the
testator can revoke the will (except by law).
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Sugden v Lord St Leondards (1876) Eng CA Lost will not sufficient to revoke will – parol evidence used to
re-create will and get probate – loose custody of the will, lower burden if lost (T had self-custody of his will).
Facts:
T’s will was lost but executors attempted to propound the lost will made Jan. 13, 1870, and 8 codicils that
were actually produced with application for probate.
T died Jan 29, 1875 (age 93). Will and codicils were all holographs kept in a small locked black box kept in
T’s sitting room. Evidence of the contents of the will came from T’s daughter who lived with him and was
one of T’s beneficiaries. The court said that “her memory of the contents of the will was almost
unbelievable.” When the will was discovered missing she immediately wrote a statement (setting out in
great detail the contents of the will) from memory without reference to the codicils or other
testamentary documents in the black box. A supplementary statement was made to fill in a few gaps.
Probate was granted but there was an appeal.
Issue:
1. Was will destroyed by T as per animo revocandi ?
2. Can secondary evidence be given of contents of lost will?
3. If yes to secondary evidence, is there satisfactory evidence of contents of will?
4. If evidence is satisfactory, so far as it goes, but not altogether complete, should probate be granted to
part of the will, knowing that it isn’t the whole will?
Rule:
A lost will is not sufficient to revoke a will – parol evidence used to re-create will and granted probate –
loose custody of the will, lower burden if lost
Application: Issue #1 - Where a will is shown to have been in the custody of T and is not found at his death there is a
rebuttable presumption that the will has been destroyed by T for purposes of revoking it and the
presumption will be more or less strong according to the character of the custody which T had over the
will. Here there was “loose custody” b/c so many people had access to will – suggests that it may have
been taken
Issue #2 – parole evidence may be used to prove the contents of a lost will
Issue #3 – daughter’s statements were truthful b/c they were corroborated by the codicils
Issue #4 – if substantial parts of the will can be made out, the court should grant probate, because it
would be better to give some of the gifts than to give none of the gifts.
Conclusion: The granting of probate of the paper propounded as containing the provisions of T’s will should be
confirmed
Unwin Estate v Unwin () BCSC Presumption of revocation applied with consideration of surrounding
circumstances; will was not revoked.
Facts:
Mr. Unwin prepared a will leaving everything to his wife; gave the will to his wife in a envelope; upon his
death they could not find the will.
Issue:
Was there a valid will?
Rule:
Presumption of revocation applied
Application: The court found that T had no motive to make another will, and this was sufficient to rebut the
presumption.
They considered his relationship with his wife and his words and actions after he wrote the will.
They also considered the custody of the will, noting that it was in loose custody.
Conclusion: The will was not revoked.
Lefebvre v Major (1930) SCC Lost will not sufficient to revoke will – parol evidence used to re-create will
and get probate
Facts:
T had will written by lawyer leaving all his assets to his sister and witnessed by his friend Zoel.
T deposited will with bank and then had it sent to him but it could not be found on his death.
Court of Appeal held that presumption that T had revoked the will had not been rebutted.
Issue:
1. Was due execution of will established?
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Rule:
Application:
Conclusion:
2. Were its contents satisfactorily proved?
3. Does evidence rebut presumption of destruction by T animo revocandi?
A lost will is not sufficient to revoke its application.
Contents of will were proven by evidence of Zoel, T’s letter to his sister describing the contents of the
will, and statements made by T to other witnesses just prior to his death.
On the whole, Court was satisfied that presumption of destruction by T animo revocandi is sufficiently
rebutted and probate should be granted to a copy of the original will.
Re Perry (1925) ON CA  Lost will revoked will  Court refused to admit a lost will to probate when only the
name of the residuary legatee was known.
Re Broome (1969) MB CA Reverse onus applies if the testator becomes incapable/incompetent; the party
alleging revocation has the burden of showing it was destroyed with the intention of revoking it
Court held that if a testator becomes incapable after making the will and at death the will cannot be found or is in
mutilated state, burden of showing it was destroyed or mutilated with an intention of revoking it lies on the party
alleging revocation.
Sigurdson v Sigurdson (1935) SCC Only lost wills case where the presumption was not rebutted; the court
here applied a different approach
Facts:
Mr. S had the lawyer draw the will, but he took the original home with him. He let his whole family read
the will, and then put it into a locked metal box in his office. Prior to his death, he told one son that he
did not have a will. The court found as a matter of fact that Mr. S knew exactly what papers he had
where. TJ found that he deliberately died intestate to ensure that everything he had was divided equally.
Issue:
Was there a will?
Rule:
The presumption of revocation was applied.
Application: The court applied the presumption of revocation, refused to admit a copy of the will, and considered the
statement that Mr. S made to his son that he did not have a will and that he wanted everything divided
according to intestacy law.
Conclusion: The testator died intestate.
Brown v Wooley (1959) BCSC Applied the presumption of revocation and considered the surrounding
circumstances; will was not revoked.
Facts:
A will was lost, and the main beneficiary sought to prove that it existed. The only evidence admitted was
that of the beneficiary and a carbon copy of the original will.
Issue:
Was there a valid will?
Rule:
Applied the presumption of revocation.
Application: The presumption was rebutted based on the evidence of the beneficiary (who was deemed to be a
trustworthy witness) and the carbon copy of the original will.
Conclusion: The will was granted probate.
Holst v Holst (2001) BCSC To rebut the presumption, the Plaintiffs must adduce “sufficient evidence that it
was not destroyed by the testator animo revocandi”; Sigurdson v Sigurdson. If a will is lost or destroyed and
a testator is later deemed incompetent, there is a presumption that the will was lost or destroyed while they
were incompetent, and therefore not revoked.
Facts:
The testator wrote a will, then, several years later, wrote a codicil that modified the original terms. He
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Issue:
Rule:
Application:
Conclusion:
was given the codicil for safekeeping, and told his solicitor where it could be found upon his death. As the
codicil “could not be located after his death, the presumption arose that Albert intentionally destroyed
it” (animo revocandi), Sigurdson v. Sigurdson (1935) SCC.
The plaintiffs, who are the Executors under the Codicil, contended that the evidence rebutted this
presumption. They seek a Declaration that the Codicil is valid and enforceable.
The Defendants, on the other hand, submitted that the evidence did not rebut this presumption. They
seek a finding that Albert probably intentionally destroyed the Codicil, thereby restoring all of the terms
of the original Will as if the Codicil had never be made.
Did the plaintiffs rebut the presumption that the testator had intentionally destroyed, and thereby
revoked, the Codicil?
To rebut the presumption, the Plaintiffs must adduce “sufficient evidence that it was not destroyed by
the testator animo revocandi”: Sigurdson v Sigurdson.
If a will is lost or destroyed and a testator is later deemed incompetent, there is a presumption that the
will was lost or destroyed while they were incompetent, and therefore not revoked.
In making this determination, the Court should consider the following evidence:
[T]he character of the testator and his relation to the beneficiaries, the contents of the instrument, and
the possibility of its loss being accounted for otherwise than by intentional destruction on the part of the
testator: Pidgeon Estate v Major (1930)SCC
In addition, although there is a presumption against the fraudulent abstraction of the Codicil, that is,
there is not a presumption that someone other than the Testator destroyed it. However, the
circumstances which render such abstraction possible must be taken into account: Sigurdson v.
Sigurdson
“The evidence established that the Plaintiffs had rebutted the presumption that Albert had intentionally
destroyed the Codicil…the Codicil was probably unintentionally lost or destroyed.”
Pidgeon Estate v Major (1930) SCC  In determining whether the presumption of revocation applies, the
Court should consider the following evidence:
- The character of the testator and his relation to the beneficiaries;
- The contents of the instrument, and;
- The possibility of its loss being accounted for otherwise than by intentional destruction on the part of the testator
Flaman Estate, Re, (1997) SK QB Defines when the presumption of lost wills applies: "when it is shown that
the testator's will was last traced to his possession but cannot be found on his death."
Facts:
The testator was in a nursing home, but he was not the last person to have the will in their possession.
When T became incompetent, the will was with Cecilia.
Issue:
Rule:
The presumption of animo revocandi (lost wills) arises "when it is shown that the testator's will was last
traced to his possession but cannot be found on his death."
Application: The court followed other cases since when the will was lost, it was last in the possession of the testator’s
solicitor. Since it was not in T’s possession, the presumption does not apply, and the will is just lost.
Conclusion:
Bolton and Hess v Toronto General Trusts Corporation (1961) MB CA In order for the doctrine of
dependent relative revocation to apply, it must be clearly demonstrated that the destruction was “wholly and
solely” dependent on the making of a new will; merely contemplating the making of a new will is not sufficient
Facts:
- The testator destroyed his will by burning it in the kitchen stove
- Around the time of this act, he expressed the intention of making a new will; however, he didn’t do
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so during the remaining two years of his life
Estate argued that the destroyed document could still be regarded as the testator’s last will and that
a photocopy of it could be admitted to probate
Could the doctrine of dependent relative revocation apply to save the will?
In order for the doctrine of dependent relative revocation to apply, it must be clearly demonstrated that
the destruction was “wholly and solely” dependent on the making of a new will; merely contemplating
the making of a new will is not sufficient
Evidence fell short of establishing that the destruction of the will “was referable, wholly and solely, to an
intention on the part of the testator to replace it by a new will
No act of destruction of the will was performed deliberately and animo revocandi, so his estate was
distributed on a resulting intestacy
Issue:
Rule:
Application:
Conclusion:
Conditional Revocation
1.
2.
3.
-
TEST:
-
This doctrine represents a form of conditional revocation (see Hawley) which arises where T does not want
revocation of a testamentary instrument to become effective until a replacement instrument becomes effective.
If the condition never takes effect (i.e. because the new instrument is ineffective or is based on a mistaken
assumption), the revocation of the original will is deemed ineffective
Since a valid revocation depends in part upon the existence of an animus revocandi, it may be relevant to
determine what the nature of the testator’s intention was
There are three situations in which a revocation is conditional:
Testator believes the will is void
 If a valid will is destroyed because the testator believed at the time of the destruction that it was not a
valid will, the will is not revoked because the testator didn’t have the intention of destroying a valid
testamentary document
Testator is mistaken about the facts or the law
 Re Sorenson: if a valid will is destroyed in circumstances in which the testator believes that he/she is
revoking a valid will, but does so under the mistaken belief as to the facts or the law, the will is not
revoked
Dependent relative revocation
 If a testator wishes to make a new will to replace an existing one and revokes the existing one in
anticipation of making the new one, the revocation may or may not be effective:
i. Effective – if the testator intends the revocation to be effective whether or not the
new will is made
ii. Not effective – if the testator intends that the revocation shall not be effective
unless and until the new will takes effect
This doctrine allows the old will to remain effective if the new one is not made or fails for any reason, as
testator’s intention to revoke was conditional on the new will taking effect
Where T mutilates or destroys a will with intention of making a new will but fails to make the new will, it does
not necessarily follow that the mutilation or destruction was ineffective to revoke the will
T must show clear “conditional intention of revocation” in his or her actions – i.e. an intention that the original
will should only be revoked if a new will was actually executed (Re Jones)
A revocation which is shown to be made upon a mistake either of fact or of law, and is considered by the Court
not to be intended by the Testator except conditionally on the mistaken assumption being correct, is
inoperative. (Hawley)
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In Re Jones, Decd. (1976) Eng CA  Where T mutilates or destroys a will with intention of making a new will
but fails to make the new will, it does not necessarily follow that the mutilation or destruction was ineffective
to revoke the will. Revocation is only ineffective where it appears that in such action the T’s intention was
conditional - in that the revocation should only operate if a new will was actually executed.
 No conditional intention of revocation to allow doctrine to operate
Facts:
T’s will left real property to two nieces but just before she died T attempted to instruct her lawyer to
change her will and give the real property to the children of a nephew.
The lawyer was unavailable and T never executed a new will but she did (it was presumed) cut out the
clauses in her will giving the gift to the nieces along with her signature and attestation clause and
signature of witnesses.
Issue:
Whether the mutilation by T was ineffective in revoking T’s will because of the “doctrine of dependent
relative revocation”.
Rule:
Application: Where T mutilates or destroys a will with intention of making a new will but fails to make the new will, it
does not necessarily follow that the mutilation or destruction was ineffective to revoke the will.
Revocation is only ineffective where it appears that in such action the T’s intention was conditional - in
that the revocation should only operate if a new will was actually executed. Therefore, must find
conditional intention of revocation.
Trial judge drew the wrong inference from T’s actions.
Conclusion: T died intestate. There was no direct evidence of T’s belief that revocation by destruction was conditional
on her making a new will.
Instead, T intended there and then to revoke the pre-existing clauses and revocation was not conditional
on a new will become effective.
Re Sorenson: Montreal Trust v Hawley (1981) BCSC True example of conditional revocation A
revocation which is shown to be made upon a mistake either of fact or of law, and is considered by the Court
not to be intended by the Testator except conditionally on the mistaken assumption being correct, is
inoperative.
Facts:
- T’s will provided for gifts to her husband’s two sisters (Mrs. S and Mrs. C).
- T mistakenly understood both sisters to have predeceased her and made a codicil providing for Mrs. H
to take the gifts that were to go to Mrs. S and Mrs. C. (Codicil stated that since “both [women]
predeceased me and I am desirous of substituting [Mrs. H].”)
- At T’s death Mrs. S, contrary to T’s belief was, in fact, still alive.
Issue
Did the codicil revoke the gift to Mrs. S?
Rule:
A revocation which is shown to be made upon a mistake either of fact or of law, and is considered by the
Court not to be intended by the Testator except conditionally on the mistaken assumption being correct,
is inoperative.
Application: Codicil represented a conditional revocation of gift to Mrs. S and, as condition was not fulfilled
Conclusion: The revocation failed
Doctrine of Revival
Wills Act
- s. 20 – effective time of will
1. If a will has been revived or re-executed by a codicil, the will is deemed to have been made at the time it was
revived or re-executed
2.
Unless a contrary intention appears by the will, a will speaks and takes effect as if it had been made
immediately before the death of the testator with respect to the property.
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Note:
s. 20 – effective time of will
a. If a will has been revived or re-executed by a codicil, the will is deemed to have been made at the time it was
revived or re-executed
b. Unless a contrary intention appears by the will, a will speaks and takes effect as if it had been made immediately
before the death of the testator with respect to the property.
-
s. 20 appears to confirm both the “doctrine of revival” and the ‘doctrine of republication’ (below)
- TEST: for the doctrine of revival to operate the words of the codicil must clearly express, beyond a doubt, an
intention to revive the will (Re McKay)
Re Mckay (1953) BCSC As per s. 20 of the Wills Act in order to revive a will, a codicil must clearly express
beyond a doubt an intention to do so; not met here
Facts:
T made a will on May 4/46 and revoked it by a new will dated May 26/51.
Both wills appointed Royal Trust and her son as executors and trustees.
On Oct 25/52 she made a codicil: “This is the first codicil to [T’s will] which Will bears date the 4th day of
May, 1946, replaces Royal Trust with National Trust and “in all other respects, I do confirm my said Will.”
The codicil met all formal requirements under the Wills Act.
T’s son was unaware of the 1951 will and T either forgot about it or missed it when executing the codicil.
The first will made provision for T’s husband who died before the 1951 will, which makes no mention of
him or his relatives.
Issue:
Does the codicil have the effect of reviving the 1946 will; does the codicil have any effect?
Rule:
As per s. 20 of the Wills Act in order to revive a will, a codicil must clearly express beyond a doubt an
intention to do so
Application: There was no reason for reviving the 1946 will and it is not revived because there is insufficient evidence
to show a clear intention to revive that will.
Conclusion: The 2nd part of the codicil (re National Trust) is to be given effect notwithstanding the obvious error in the
1st part of the codicil. The 1951 will and codicil (omitting ref. to the 1946 will) are admitted to probate.
5. Rules of Construction and Problems of Mistake and Republication
- Note: Construction and Interpretation mean the same thing and are used interchangeably.
- There is no single principle of construction
- Courts have specific interpretive roles and functions in relation to wills:
1. Decide which documents comprise last will and testament and to admit the will to probate (“Court of Probate”)
2. Once admitted to probate, an executor or a beneficiary may apply to court to have an unclear will interpreted.
The function of the court is to determine the true intentions of T within the limits of the law (i.e. rules that
constrict which evidence can be admitted to aid interpretation) (“Court of Construction”)
- Note: in BC, only the BCSC handles estate matters.
- Testator’s intent: the court cannot give effect to an intention which is not expressed or at least implied by the
words contained in the will, and not what the testator meant to do (otherwise, the requirement for a will to be
written would be defeated) (Perrin v Morgan)
- Use of extrinsic evidence: the modern approach to ascertaining T’s intention is to go outside the will to
consider extrinsic evidence as an interpretive aid
- Void for uncertainty: if after the court uses all interpretive techniques and aids and still cannot determine the
T’s intention, the disposition will fail due to uncertainty.
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Rules of Construction:
 Use when the plain meaning of the will is unclear
1. The whole will is to be read in context; don’t read particular provisions in isolation from the rest of the will (Re
Williams Estate)
2. Identical words in a will can be presumed to have the same meaning (Middlebro v Ryan 1925 SCC)
3. Give effect to all words used in a will, unless to do so would be contrary to T’s intention (Re Stark)
4. General vs. particulate intention: Where there is a general and a particular intention that are inconsistent, the
general intention is favoured, and the court will either modify or disregard the particular intention.
5. Ejusdem Generis: (Di Bella v Kangas) When a list of two or more specific descriptors is followed by more
general descriptors, the otherwise wide meaning of the general descriptors must be restricted to the same class,
if any, of the specific words that precede them.
6. Presumption against intestacy: it is presumed by the court that in making a will the testator intended to dispose
of their entire estate.
 Avoidance of intestacy is not sufficient reason for a Court to give an unnatural meaning to words or to
construe plain words otherwise than according to their plain meaning. Also note: Canada Trust Co. v.
Banks - opposite result.
7. Presumption of rationality: it is presumed that a testator will not be capricious, irrational, etc.
E.g. it would not be irrational for a testator to instruct their solicitor to give everything in their estate to the first
3 people to pass them on a sidewalk.
8. Presumption of legality: if there is more than one interpretation of a will, but one would be void for illegality,
adopt the meaning that is legal.
9. Presumption against disinheritance: if the will is ambiguous, the court will favour an interpretation that
benefits the usual next of kin over one that benefits more distant relatives. The court will also presume that
there will be an equal distribution to next of kin of equal degree.
E.g. a testator’s four brothers would take an equal share).
10. Irreconcilable dispositions: if the will contains a provision that cannot be reconciled, adopt the interpretation
that will avoid an inconsistency.
E.g. a testator’s will said that “if my wife should survive me, give everything to my nephews” but likely should
have said “if my wife should NOT survive me, give everything to my nephews”  T’s wife predeceased him and
the court gave everything to the nephews.
E.g. If 2 beneficiaries are given the exact same gift and it is one which cannot be divided, they will share the gift.
Re Williams Estate (2006) Nfld. Trial Division The whole will is to be read in context to determine the
testator’s intention.
Facts:
T left everything to his wife and said that on her death, everything would go to his sons or their surviving
children if they predeceased him. He also specified that the youngest son would get a 1/3 share, and if
there are less than 3 remaining, the youngest would get a ½ share. When T died, there were 5 sons living,
and when his wife died, there were 2 sons living and 2 children of a son who had died.
Issue:
What does “less than three remaining” refer to?
Rule:
The whole will is to be read in context to determine the testator’s intention.
Application: The court examined the entire will in context. They noted that the youngest son was to receive a
minimum of 1/3, and they considered the ages of the other sons.
They applied Haidl for the application of the “ordinary meaning” rule in context of the circumstances
known to the testator at the time the will was made.
The court noted that an equal distribution would be very attractive, but that given the favourable
treatment for the youngest son, the testator was not adverse to an unequal distribution.
Conclusion: The court held that “less than 3 remaining” referred to the number of sons remaining at the time of the
testator’s death.
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Middlebro v Ryan (1925) SCC Identical words in a will can be presumed to have the same meaning
Facts:
T gave a beneficiary the 1st right to buy his business at “book value”. The value on the records of the
testator was much lower than the value the appraisers gave to the business.
Issue:
What is the meaning of “book value”?
Rule:
Identical words in a will can be presumed to have the same meaning (assuming similar context).
Application: The court noted that in a previous instance the phrase “book value” had been used to describe the value
on the books, not the appraised value.
Conclusion: B was able to purchase the business at the stated value from T’s own records.
Re Stark Give effect to all words and all letters within a will.
Facts:
T made a gift for everything to go to his only son’s children, and then to his “own nephews and nieces
who are then living” if his son predeceased him or did not have issue (which is what happened). T had
some full-blood nephews and some half-blood nieces and nephews.
Issue:
What is the meaning of “own nephews and nieces”?
Rule:
Give effect to all words and all letters in a will.
Application: The court noted that T had only 1 living full-blood nephew at the time the will was made, and thus since T
used the plural “nephews”, he must have intended to include his half-blood nieces and nephews.
Conclusion: Both the full-blood and half-blood nieces and nephews were entitled to a share.
Di Bella v Kangas (2001) BCSC Defined Ejusdem Generis: Where a law lists specific classes of persons or
things and then refers to them in general, the general statements only apply to the same kind of persons or
things specifically listed.
Facts:
The solicitor and executor went to T’s house after their death and sealed the house. She found over $25k
in cash in the house. The will contained a clause to give all of the contents of the house to the nephews of
a particular friend.
Issue:
Did T intend to give her friends’ nephews the $25k?
Rule:
Ejusdem Generis: Where a law lists specific classes of persons or things and then refers to them in
general, the general statements only apply to the same kind of persons or things specifically listed.
E.g. Where "cars, motor bikes, motor powered vehicles" are mentioned, the word "vehicles" would be
interpreted in a limited sense (therefore vehicles cannot be interpreted as including airplanes).
Application: The court found that the general words, “the contents of the house”, were restricted by the rule of
ejusdem generis, so that the $25k fell into the residue of the estate.
They noted that cash is not typically kept in a house in such large amounts, and that the very general
description of contents was not sufficient to include cash.
Conclusion: The $25k fell into the residue of the estate.
Wagg v Bradley (1996) BCSC Testator’s intention and presumption against intestacy considered to cure a
defect in a wills kit will.
Facts:
T used a wills kit to dispose of her property. The only specific disposition made was to Mrs. Wagg. Her
relatives challenged the will.
Issue:
Was this a valid will
Rule:
Testator’s intention and presumption against intestacy considered to cure a defect in a wills kit will.
Application: Prima facie, the court found that the entire estate should go to Mrs. Wagg. Since there was only a single
disposition in the will, the court noted that there was an all or nothing result that would leave everything
to Mrs. Wagg or result in the entire estate passing on intestacy.
Conclusion: TJ: “I have no difficulty in directing the words "all my estate" be added to the will after the handwritten
words "Marguerite Wagg, 327 Boon Avenue, Toronto, Ontario."”
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Smith v Smith (2010) BCCA Last provision rule: if apparently contradictory provisions in a will cannot
otherwise be reconciled, the last provision prevails
Facts:
T’s will left specific bequests to be paid from the income of his estate to set beneficiaries for 21 years,
with the trusts and entire estate to wind up after 21 years. At this time, the beneficiaries were still alive,
and challenged the will, arguing that the bequests should continue until their death. The TJ ordered for
payment of a net sum in lieu of the monthly payments for their lifetimes.
Issue:
Are the beneficiaries entitled to ongoing payments for their lifetimes?
Rule:
Only apply the armchair rule if the testator's intention is not clear from the plain meaning.
Applied the last provision rule: if apparently contradictory provisions in a will cannot otherwise be
reconciled, the last provision prevails (Royal Trust Co. v Martin (1957)).
Application: The TJ applied the armchair rule in error, effectively rewriting the will contrary to the testator’s intention
for the whole estate to wrap up after 21 years. The last provision rule is the correct one to apply; while
the testator intended to support his beneficiaries, his specific expressed intent was for the whole estate
to wind down and be fully divested 21 years after he died.
Conclusion: The beneficiaries’ claims to ongoing payments were denied, but they were awarded their share of the
residue of the estate.
***Marks v Marks (1908) SCC Surrounding circumstances (extrinsic evidence) considered where a
testamentary term has 2 possible meanings.
Facts:
A devise made in a will "to my wife" was claimed by two women, with both of whom the testator had
lived in the relationship of husband and wife.
Issue:
Which “wife” was to take under the will?
Rule:
Surrounding circumstances (extrinsic evidence) considered where a term has 2 possible meanings.
Application: Held, per Idington J.—That, even if the first marriage was assumed to have been validly performed, all
the surrounding circumstances shewed that, by the words "to my wife," the testator intended to indicate
the woman with whom he was living, in that relationship, at the time of the execution of the will and
thereafter up to the time of his death.
Held, per Duff J.—That the woman who claimed to have been first married to the testator had not
sufficiently proved that fact, and that the other woman, who was living with the testator as his wife at
the time of the execution of the will and up to the time of his death, was entitled to the devise.
Held, per Davies and Maclennan JJ. dissenting.—That the first marriage was sufficiently proved and,
consequently, that the devise went to the only person who was the legal wife of the testator.
Conclusion:
Fitzpatrick C.J. was of opinion that the appeal should be dismissed.
Surrounding circumstances considered and spouse with which T was cohabitating at time of his death
was held to be his wife.
***Weir Estate v Weir (1998) BCSC Provided definitions for the term “issue”…
Facts:
Dispute as to the definition of issue and the resulting beneficiaries of an estate.
Issue:
What is the correct definition of issue?
Rule:
The primary meaning of the word "issue" in a will is "descendants to the remotest degree" and
is to be determined per capita (Re Gardner Estate (1991))
The secondary meaning of "issue" is "children". "Issue" may be construed in its secondary meaning of
"children" or "children only" where the will makes it clear that such a meaning was intended by the
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Application:
testator (Re Linklater Estate (1967) BCCA)
There were four possible interpretations of the term "issue" as used in the Will:
1) lineal descendants to the remotest degree per capita (all five surviving children of Dennis and all
nine of his grandchildren would share the 1/3 share);
2) lineal descendants per stirpes (all five surviving children and Meisha, the sole descendant of
Michael, Dennis' deceased son, would share the 1/3 share);
3) children only (Dennis' five children would share the 1/3 share;
4) the five children and Meisha who would be entitled to her deceased father's share pursuant to s.
29(1) of the Wills Act, R.S.B.C. 1996, c. 489.
The court also considered the intention of the testator and whether there were any circumstances to
displace the ordinary meaning of issue.
Conclusion:
Property Law Act SBC
Section 11 (1) In this section, "transferred" includes a vesting by declaration of trust or order of court.
(2) If, by an instrument executed after April 20, 1891, land is transferred or devised in fee simple,
charged, or contracted to be sold by a valid agreement for sale in which the vendor agrees to transfer the
land to 2 or more persons, other than personal representatives or trustees, they are tenants in common
unless a contrary intention appears in the instrument.
(3) If the interests of the tenants in common are not stated in the instrument, they are presumed to be
equal.
Summary of Approaches
Ordinary Meaning Rule: In construing a will the duty of the Court is to ascertain the intention of the T which intention is
to be collected from the whole will taken together. Every word is to be given its natural and ordinary meaning and, if
technical words are used (i.e. “devise”, “bequest”), they are to be construed in their technical sense, unless from a
consideration of the whole will it is evident that the T intended otherwise (Smith v. Chatham Home)
- The HL in Perrin added a gloss on the ordinary meaning rule -- the court must look at the specific context of the
will and what the testator intended when interpreting a word’s ordinary meaning. In other words, the court
must put itself in the position of the testator.
-
This position was furthered in Haidl where the Sask. CA held that surrounding circumstances are to be admitted
at the start and that the “ordinary meaning” rule of construction ought to be applied in the light of those
surrounding circumstances. Surrounding circumstances refers to extrinsic indirect evidence (see also Marks v.
Marks; Re Burke)
-
This led to what is now known as the “armchair” principle – i.e. the court must put itself in the position of the T
at the point when he or she made the will and construe the language from this vantage point.
-
BUT as noted by the BCSC in Laws v. Rabbit (citing the SCC in Fleury Estate) these rules of interpretation only
apply if the intention of T cannot first be determined on the plain meaning of the words in the will
Process: (1) Interpret the will using its plain meaning, (2) if the plain meaning is unclear, consider surrounding
circumstances. This highlights a modern approach to ascertain T’s intention that is more lenient than previous strict
approaches of interpretation.
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Specific Rules and People
-
From Re Estate of Murray; see also Re McEwen Estate)
1. Presumption against intestacy – if the will is capable of two interpretations, the court will prefer the interpretation
which disposes of the whole estate in preference to one that results in intestacy (but see Re McEwen Estate below
where this presumption didn’t apply)
 Avoidance of intestacy is not sufficient reason for a Court to give an unnatural meaning to words or to
construe plain words otherwise than according to their plain meaning. Also note: Canada Trust Co. v.
Banks - opposite result.
2. Alterations – a court will not alter or add to the words of a will unless it is perfectly clear that the will does not
express the intention of the T (especially where will is drafted by a solicitor). Specifically, the court must be certain:
a. that there has been an unintentional omission, and
b. as to the testator’s precise intention (i.e. what the testator meant to do)
*Together, these two rules may allow a court, in certain circumstances, to avoid intestacy by adding or correcting a term
in the will. But satisfying 2(b) will be difficult (see below)
Perrin v Morgan (1943) HL The context in which the word is used is the main guide to its interpretation
Defined the “armchair” rule: the courts must put themselves in the testator’s position when they made their
will, and construe the language from this vantage point.
Facts:
T’s will had a residual clause that “all moneys of which I die possessed shall be shared by my nieces and
nephews now living.”
The Court of Appeal decided that “moneys” included only dividends, “cash” at the bank, rents due at
death and the income tax payment – because they felt bound by authority to apply a strict meaning of
“money” unless the word was used in a context in which it could be given a wider meaning which, in this
case, the Court of Appeal did not find.
Issue:
What did the word “moneys” refer to?
Rule:
The 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 testator intended.
Application: a)
The approach to the ordinary meaning rule use by the CA is incorrect:
i)
“The context in which the word is used is, of course, a main guide to its interpretation, but it is
one thing to say that the word must be treated as having one particular meaning unless the context
overrules that interpretation in favour of another [as was done by the Court of Appeal] and another thing
to say that “money,” since it is a word of several possible meanings, must be construed in a will in
accordance with what appears to be its meaning in that document without any presumption that it bears
one meaning rather than another.”
b)
the 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 testator intended
c)
I protest against the idea that, in interpreting the language of a will, there can be some fixed
meaning of the word “money,” which the courts must adopt as being the “legal” meaning as opposed to
the “popular” meaning. The proper meaning is the correct meaning in the case of the particular will
d)
The duty of the court is to ascertain without prejudice as between various usual meanings which
is the correct interpretation of the particular document
e)
I cannot for a moment believe that, had the testatrix intended to provide for what was in
substance the whole of the generation of her family next to her own with nothing but money as defined
by the rule [i.e. narrowly defined], she would have used the language that I have quoted. The words, in
my opinion, according to their true construction mean the whole of her residuary personal estate.
Conclusion: The term “moneys” in this particular will means the whole of the T’s residual personal estate.
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Haidl v Sacher (1980) SK CA Consider the “ordinary meaning” of language simultaneously with evidence of
the testator’s intention (admit extrinsic indirect evidence at the start)
Facts:
Ambiguous language used to divide the residue of the testator’s estate led to the executors awarding
1/32nd to a group of 4 beneficiaries and that group seeking a 1/11th share.
Issue:
When considering a particular testamentary provision, should the courts apply the ordinary meaning rule
of construction, and resort to circumstantial evidence only where necessary, or should the rule and the
evidence be considered simultaneously?
Rule:
Court should consider the “ordinary meaning” rule simultaneously with evidence as to the testator’s
intention when interpreting testamentary provisions.
Application: The “ordinary meaning” rule was applied in conjunction with evidence from the circumstances that
surrounded the testator when he wrote his last will & testament.
The four appellants were the children of an original beneficiary of the will, who predeceased the testator.
The circumstances revealed that their relationship with the testator would have been less-close than the
other beneficiaries.
Conclusion: The 4 were awarded a per-stirpital share (1/32)
Laws v Rabbitt (2006) BCSC Courts must consider the ordinary meaning simultaneously with evidence of
the testator’s intention only when the testator’s intention is not readily clear on the plain meaning of the
testamentary document.
Facts:
Marjorie, the testatrix, died in 2004 with no issue. She was married to Ned in 1936 and later to Art in
1978. While she was married to Ned, they bought a home in Sicamous, where she continued to live for 15
years after he died. She later married Art and sold the 1st house and bought a 2nd house. The Laws are the
nieces and nephews of the testatrix and Rabbitt was her best friend. Art and Marjorie had joint wills with
all to each other and the rest to Rabbitt and the laws. When Art died, Marjorie made a new will with
different bequests; at issue was the meaning of the word cash as the original will called for all assets to
be converted to cash, but the latest will did not have this clause.
Issue:
Was Marjorie’s most recent will valid, and what did the term cash mean?
Rule:
Applied Perrin v Morgan and the SCC in Fleury Estate, and noted that courts must consider the ordinary
meaning simultaneously with evidence of the testator’s intention only when the testator’s intention is
not readily clear on the plain meaning of the testamentary document.
Application: Process:
1. First consider the testator’s intention based on the plain meaning of the testamentary document.
2. If this is not readily clear, consider the ordinary meaning of the words in conjunction with other
evidence as to the testator’s intention.
Conclusion: The court decided not to read in a conversion clause and thus only T’s actual cash would be divided
amongst the beneficiaries while her real property would pass on intestacy.
***Admission of Armchair & Extrinsic Evidence
 From Clackson J in Decore Estate (2009) ABQB
1. Starting Point: Where the testamentary instrument is clear and unambiguous, no evidence beyond the
document is receivable.
2. Formerly: where the testamentary instrument is unclear as to intent or construction, armchair evidence is
receivable.
Currently: where there is a legitimate contest over the construction of a testamentary instrument, context or
armchair evidence is likely to assist in resolving the dispute and should be received.
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3. Where a testamentary instrument is ambiguous, extrinsic evidence of intent is receivable. In this context
ambiguity does not simply mean competing possible interpretations. The interpretations must be equally
plausibly intended.
4. Where there is reason to believe that the testator made a mistake and the mistake was one of fact, not law,
both armchair evidence and extrinsic evidence may be received. Where the alleged mistake is established, the
offending portions of the instrument are struck and what remains is then construed.
Policy reasons to limit admission of extrinsic evidence which may be probative of the testator's intent or meaning:
1. Floodgates argument: general admission of such evidence could create a flood of claims based only on hearsay.
2. Risk that the written document will be supplanted by an oral or a verbal direction.
Principled approach for admitting hearsay evidence (R v Starr (2000) SCC):
Necessity & Reliability --> any evidence which is not the best but which is necessary is potential admissible if it’s reliable.
- Necessity here means that the proposed evidence will advance the inquiry and there is no better existing source for
the evidence.
- Reliability here means that the evidence had trustworthiness.
- Where there is a traditional exception to the rule against the admission of hearsay evidence, the evidence will be
presumptively admissible unless it fails to meet the required necessity or lacks sufficient threshold reliability.
Wilson v Shankoff (2007) BCSC BC courts apply the “armchair” rule. Note: Procedure
Procedure:
1. Admit extrinsic evidence at the start of the hearing.
2. Construe the will in light of the surrounding circumstances from the extrinsic evidence.
***Illegitimate Children
Law and Equity Act
s. 61– Child Status – no such thing as “illegitimate children”
(1) Subject to the Adoption Act and FRA, for all purposes of the law of BC
(a) A person is the child of his or her natural parents,
(b) Any distinction between status of a child born inside marriage and a child born outside marriage is abolished,
and
(c) The relationship of parent and child and kindred relationships from that relationship must be determined in
accordance with (1)
(2) This section applies to enactments made before April 17, 1985, but does not apply to instruments or dispositions
of property made before April 17, 1985**
(3)* When construing an instrument or statute, a reference to a person or a group or class of persons described in
terms of relationship to another person by blood or marriage must be construed to refer to and include a person who
comes within the description because of the relationship of parent and child as determined under (1)
Note: ss. 61(1)(b) + (3) changes the old CL presumption that the word “children” did not include illegitimate children
(see below).
Illegitimate Children at Common Law
-
APPLIES ONLY TO DOCS MADE BEFORE April 17, 1985
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-
Trigger: for wills or dispositions of property made before April 17, 1985
GR (Re Jensen Estate): it is presumed that the word “children” in a will means legitimate children but there are two
exceptions:
o where on the face of the will and on proper construction and interpretation of the words used in it, you
find an expression of the intention of T to use the term “children” as including illegitimate children;
o where there are no legitimate children or where it is impossible for children born within the marriage to
take (e.g. iron curtain, Cuba, China, etc.)
Re Jensen Estate (1989) BCSC “Children” only means legitimate children, unless expressed otherwise
Facts:
T’s will made before April 17, 1985 (i.e. s. 61 does n/a)
9 grandchildren born to the legitimate children of T but T had one illegitimate child with children of her
own.
T’s will provided for a trust for each “grandchild”.
Issue:
Are the children of T’s illegitimate child part of the class of grandchildren who will benefit from the trust?
Rule:
“Children” only means legitimate children, unless expressed otherwise
Application: As per Hill v Crook (Eng. 1873), it is presumed that the word “children” in a will means legitimate children
but there are two exceptions:
1. where on the face of the will and on proper construction and interpretation of the words used in
it, you find an expression of the intention of T to use the term “children” as including illegitimate
children;
2. where there are no legitimate children or where it is impossible for children born within the
marriage to take (e.g. iron curtain, Cuba, China, etc.)
Those two exceptions are not met here.
Conclusion: Taking into account all circumstances and T’s failure to mention his illegitimate daughter in his will, Court
concluded that T did not intend to benefit the children of his illegitimate daughter.
***Technical Terminology
Re Karkalatos Estate (1962) SCC Ambiguity when using technical terms (per stirpes) improperly
Facts:
T’s will provided for a trust for his two daughters with income therefrom to be paid annually “to among
and between both of them in equal shares” until the death of one of them, after which it directs that his
trustees:
“…shall pay divide and distribute approximately one-half of my then remaining estate to among and
between my grandchildren, per stirpes, in equal shares, and they shall pay all the net profits of the
remainder of my estate … annually and every year, to my surviving daughter until her death.”
[Emphasis mine.]
Issue:
Whether in using the words “to among and between my grandchildren, per stirpes, in equal shares” T
intended to designate his grandchildren as the “stirpes or stocks” so that each of the four of them would
take in equal share of the portion of the estate made available for distribution upon the death of the first
daughter or whether he intended to refer to the “stocks” represented by his two daughters so that onehalf of the portion would go to the child of one daughter and the other half to the three children of the
other daughter.
Conclusion: Grandchildren means my children’s children and the two daughters and their two families are to be
treated separately and equally as to the division of both the profits and the corpus of the estate.
Re Clark Estate (1993) BCSC Ambiguity when using technical terms (per stirpes) improperly
Facts:
T’s will provided: “To hold the other one-half (1/2) of my residuary estate in trust for my Grandson,
Robert Clark, and I direct my Trustees to keep such share invested and pay same to the said Robert Clark
at the rate of ONE THOUSAND DOLLARS ($1,000) per month … Upon the death of my Grandson, Robert
72
Clark, I DIRECT my Trustees to divide the remainder of the one-half (1/2) of my residuary estate being
held pursuant to this paragraph into to [sic] equal parts or shares and transfer one such part or share to
each of the children of my son, GEORGE EDWARD CLARK, per stirpes.”
Whether any person other than Robert Clark and the six children of George Edward Clark has a potential
interest in that part of T’s estate dealt with in the preceding paragraph. (i.e., if one of the six children of
George pre-decease Robert Clark does their children, if any, take a benefit from their deceased father?)
Issue:
Rule:
Application:
Conclusion:
Based on wording in will, surrounding circumstances and authorities the phrase “the children of my son,
George Edward Clark, per stirpes” means the six children of George Edward Clark and that the shares of
each of the six children are not subject to divestiture in the event that one of them predeceases Robert
Clark.” (i.e. won’t go to George’s grandchildren)
Whatever the testatrix may have intended by the use of the words “per stirpes”, it is likely that she was
not intending to benefit the issue of the children of George Edward Clark.
Remove “per stirpes”
Evidence of Intent
General Rule (Re Estate of Murray; Millar)
When construing the terms of a will, the court may look at the surrounding circumstances existing at the time the will
was made to determine the testator’s intention (indirect extrinsic evidence)
-
e.g., the character and occupation of the T; the amount, extent and condition of his property; the number,
identity and general relationship to the T of the immediate family and other relatives; and the persons who
comprised his circle of friends.
The court may NOT, however, rely on direct extrinsic evidence of intent, except in limited circumstances, as the will is
presumed to have been accepted by the testator, and to speak for itself.
-
This precludes instructions provided to a solicitor, or other written or oral statements that amount to
declarations of T’s intention (e.g. affidavit from solicitor)
Exceptions:
1. Direct extrinsic evidence of T’s intent may be admissible where there is an equivocation (i.e. the words of the will
apply equally to two or more persons or things) (Sarkin; Re Estate of Murray)
-
e.g. where a description of gift or B is clear on the face of the will but upon T’s death it is discovered that there is
more than one gift, or more than one B, that meets the description in the will; parol evidence is admissible to
show which gift or which B was intended by T (Millar; see e.g. Re Jackson – 3 “Arthurs”)
-
e.g. where a description in the will of the thing intended to be gifted or the B is true in part but not true in every
particular, the parol evidence is admissible to show what estate was intended to pass and to which B, provided
there was sufficient indication of intention appearing on the face of the will to justify the application of the
evidence (Millar)
Patent vs. Latent Ambiguity:
- Patent ambiguity: ambiguity on the face of a will prohibits the admission of direct extrinsic evidence
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-
Latent Ambiguity: ambiguity created by circumstances that surround the will permit the admission of direct
extrinsic evidence.
Re the Estate of Murray (2007) BCSC Where there is a patent ambiguity, direct evidence is inadmissible;
but evidence of the circumstances surrounding T’s intention is admissible.
Facts:
T provided instructions to dispose of the residue of his estate. His solicitor drafted the will so that 90% of
the residue was accounted for, but 10% was not. Notes from the meeting when the will was prepared
reveal that T had given instructions to dispose of 100% of the residue, and his solicitor erred in leaving
out the 10%, which neither of them noticed upon reviewing the final draft of the will.
Issue:
Can direct and indirect extrinsic evidence as to T’s intention be admitted?
Rule:
Where there is a patent ambiguity, direct evidence is inadmissible; evidence of the circumstances
surrounding T’s intention is admissible.
Application: Three options to resolve the will:
1) Pass the 10% to the cousin on intestacy
2) Divide the 10% among the other residual beneficiaries
3) Give the 10% to the Salvation Army, who was designated as the final residual beneficiary.
The court noted that they can only amend a will when there is evidence that the testamentary document
is contrary to the testator’s intention.
The court also applied the presumption against intestacy, which favours testacy over intestacy.
The court ignored evidence in the communication between T and his solicitor that referred to his
intentions in disposing of the residue of his estate; they only admitted the evidence that did not relate to
direct intention of the T.
The court did consider the solicitor’s notes which showed that T did not intend to leave 10% intestacy,
and that he had wanted the 10% unaccounted for to be included in a total of 20% to the Salvation Army.
Conclusion: The court gave the 10% unaccounted for to the Salvation Army based on the indirect extrinsic evidence
(the former will, etc.).
Millar v Travers (1832) Eng. Direct extrinsic evidence of T’s intention is inadmissible where there is no
ambiguity on the face of the will.
Facts:
T’s will provided a gift of “all his freehold and real estate whatsoever, situate in the county of Limerick,
and in the city of Limerick.”
At the time of making his will (and at his death) T had real estate in the city of Limerick but none in the
county of Limerick although he had substantial real estate in the county of Clare.
B of real property in city of Limerick wanted to introduce extrinsic evidence (parol evidence) to show that
a mistake had occurred and that T had intended to gift real estate in the county of Clare to B.
Issue:
Is the Court free to admit the parol evidence which B proposes?
Rule:
Direct extrinsic evidence will not be admitted where there is no ambiguity on the face of the will.
Application: This was a latent ambiguity, as a reading of the will revealed no issues; it was only when the property was
inventoried and detailed that the ambiguity was revealed.
Extrinsic evidence will not be admitted in the case where it is designed to introduce into the will an
intention not apparent upon the face of the will.
In that case the extrinsic evidence is not introduced to assist with a difficulty arising from a defective or
mistaken description, rather it is making the will speak upon a subject on which it is altogether silent and
is the same in effect as the filling up of a blank which the T might have left in his will.
It short, it amounts, by the admission of parol evidence, to the making of a new devise for the T which he
is supposed to have omitted.
Conclusion: Evidence excluded.
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Re Jackson (1933) Eng. Example of equivocation requiring the admission of direct extrinsic evidence
Facts:
T left a gift to “my nephew Arthur Murphy”, but she had two nephews (i.e., her brothers’ sons) with that
same name one in country and one abroad, neither of whom had much to do with T and one of whose
father was already receiving a substantial benefit under T’s will.
T also had a sister who had an illegitimate child named Arthur Murphy who was in close relationship with
the T and had married one of T’s nieces and, in a sense, could be viewed as T’s nephew.
Issue:
Which of the three “nephews” named Arthur Murphy did T intend to benefit under the terms of her will?
Rule:
Extrinsic evidence of intent is not admissible unless:
Application: Because there were two legitimate nephews named Arthur Murphy, this gave rise to a latent ambiguity
as to which nephew the T intended to benefit and in order to solve that problem, evidence as to the state
of the family generally is admissible.
Had there been only one Arthur Murphy no extrinsic evidence would have been admitted and the Court
would not have been able to recognize the illegitimate Arthur Murphy. Once this investigation began it
was open to the Court to discover the illegitimate child.
Conclusion: Looking at the whole of the evidence, the Court had no doubt that T intended to benefit illegitimate child
named Arthur Murphy
Mistake
Recall: T must have knowledge and approval of contents of Will. Therefore, if there has been a mistake, the
requirements may not have been met – provisions should fail or be rectified – court has this power
Note: it is more likely that a patent mistake will be noticed when submitting a will to probate (court of probate). A latent
mistake is more likely to be noticed by a court of construction (same court in BC)
Main rectification areas:
1. Patent Mistake: Where there is an error of existing fact clear on the face of the will or from surrounding
circumstances. If the court is convinced that the will or relevant provision was made in reliance on mistaken
belief, the court may exercise its power of rectification and declare the will or provision in the will to be invalid.
2. Errors in Drafting: Even where a will has been read over by T, if the draftsperson or T inserted words in his or her
will in error, court may exercise its power of rectification and delete such words.
3. Execution of Wrong Document: Where it can be shown that execution of the wrong instrument was inadvertent
and contrary to T's intentions and instructions (i.e. not T's document) the court may exercise its power of
rectification to delete the incorrect references and insert the correct references (which appears to be a limited
exception to the rule that a Court cannot insert words for the T in the will in BC).
E.g. Husband mistakenly executes wife's will and vice versa.
Doctrine of falsa demonstratio non nocet, cum de corpore constat: if there is adequate and sufficient description with
convenient certainty of what was meant to pass (or a ‘latent ambiguity), a subsequent erroneous addition will not vitiate
it. The doctrine operates to strike out the non-essential words (Re Davidson – e.g. Lots X and Y)
Alterations: a court will not alter or add to the words of a will unless it is perfectly clear that the will does not express
the intention of the T (especially where will is drafted by a solicitor). Specifically, the court must be certain:
-
that there has been an unintentional omission, and
*as to the testator’s precise intention (i.e. what the testator meant to do – which must be clear on the face of
the will or from surrounding circ) (Re Estate of Murray; Re McEwen)
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-
See: Douet v. Budd and Canada Trust Co. v. Banks – below
Wills, Estate and Succession Act SBC 2009
s. 59 – Rectification of a Will
o (1) a court may order that a will be rectified if it determines that the will fails to carry out T’s intentions as a
consequence of
 (a) an error arising from an accidental slip or omission (e.g. Jewish Association);
 (b) a misunderstanding of T’s instructions; or
 (c) a failure to carry out T’s instructions
o
**(2) Extrinsic evidence, including evidence of T’s intent, is admissible to prove facts (1)(a)-(c)
o
(3) Unless leave is granted, application under (1) must be made within 6 months from the date of probate.
o
(4) Personal representatives will not be liable for erroneous distributions after 6 months from date of
probate and before receipt of notice of an application for leave under (3) where distribution was done in
reasonable reliance on the will.
o
(5) Subsection (4) does not affect the right of any person to recover any part of the estate distributed in the
circumstances described.
***Patent Mistake
Re Davidson (1979) ON HC Correction of a mistake under the doctrine falsa demonstratio; latent
ambiguity allowed the Court to consider extrinsic evidence (surrounding circumstances when T made the will
and up to T’s death)
Facts:
T is a widow with two daughters, Y & R, who were her executors and who were to divide the residue
equally. R also received a $500 legacy.
T owned Lots 187 and 188 and the easterly 3 feet of lot 189. Lot 188 was to the north of lot 187 and lot
189 was to the west of both of lots 187 and 188. T’s house is substantially on lot 188 but encroaches on
lot 187 by as much as 5 feet.
T’s will gave Y Lot 188 and the house, and R Lot 187, for their own use absolutely.
Issue:
The house encroaches on lot 187 and yet the house and lot were gifted to different daughters – a latent
ambiguity. How is the ambiguity resolved?
Rule:
Doctrine of falsa demonstratio is to be applied to strike out the reference to the specific lots (188 and
187) in the will resulting in a construction of the will so that the house and corresponding land go to Y
and remaining land to the south of the house to R with both enjoying the corresponding 3 foot section of
lot 189.
Application: Because there is a latent ambiguity the Court can look to extrinsic evidence (i.e., circumstances
surrounding T at the time of the making of the will and up to T’s death) to determine if latent ambiguity
exists and to help resolve it.
Conclusion: One daughter got the house, its lot, and the necessary several feet of her sister’s lot so as to
accommodate the house.
Re McEwen Estate (1967) BCCA Presumption against intestacy was not applied as it could not be used to
correct a fatal mistake.
Facts:
T’s will provided a trust for his wife and daughter and a residuary gift to charities, if T’s daughter
predeceased his wife with no issue.
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Issue:
Rule:
Application:
Conclusion:
The will did not deal with the contingency which actually arose, namely that the daughter survived the
widow. T failed to dispose of the residue of his estate in the event his wife predeceased his daughter
(which would have been expected).
1. Whether it can properly be said as a matter of necessary implication from the context of the will as a
whole, that the omission of a provision for disposition of the residue of the estate in the event that the
wife predeceased the daughter was unintended and the result of an error in drafting of the will and,
2. If yes, whether the precise words of disposition that have been omitted can be determined and
supplied.
Whether it can properly be said as a matter of necessary implication from the context of the will as a
whole, that the omission of a provision for disposition of the residue of the estate in the event that the
wife predeceased the daughter was unintended and the result of an error in drafting of the will and,
If yes, whether the precise words of disposition that have been omitted can be determined and supplied.
Presumption Against Intestacy’ does not operate here.
- That presumption is sometimes useful where the construction of the will is doubtful and there is room
for two interpretations and Court will be inclined to lean against an interpretation which will result in
intestacy but the avoidance of intestacy is not sufficient reason for a Court to give an unnatural
meaning to words or to construe plain words otherwise than according to their plain meaning.
Comments – other examples of corrections
In Douet v Budd (1978) BCCA – the CA added the words “for his own use absolutely” to allow the
executor (Douet) to receive residue remaining after debts, taxes and funeral expenses were paid. This
prevented an intestacy of the residue. In doing so, the court rejected the claims of T’s nieces and
nephews who were entitled on intestacy. The court stated that the T was likely unaware of the effects of
intestacy and if he had wanted to make a gift directly to the nieces and nephews, he would have done so.
In Canada Trust Co. v Banks (1981) BCSC – The testator and his wife had executed similar wills on the
same day. Both provided that, in the event that the other spouse predeceased the testator, the income
from the residue of the estate was to go to H for her lifetime. The wife's will provided that, if H died first,
or upon H's death, the principal was to go to one B. The testator's will made a similar provision in the
event that H predeceased him and his wife, but did not provide for the contingency ' which occurred,
namely that H survived them both and B survived H. (B did survive H). The omission was rectified to
permit B to take the residue following H's death. A reading of the testator's will revealed an omission
which "leapt to the eye". That being the case, the Court admitted evidence of surrounding circumstances,
including the wife's will, to ascertain the testator's intention. It was clear from this evidence that the
testator intended to benefit B, and that he intended her to take the residue following the death of the
income beneficiary.
Each issue is answered in the negative with the result that there is an intestacy with respect to the
residue and daughter, being the next-of-kin, takes the residue.
Re Morris (1971) PDA T did not know and approve of the contents of her will; an obvious mistake was
deleted. Note: rules of evidence and law in case
Facts:
The testatrix’s solicitor made an error in a codicil that referred to her will, resulting in provisions being
revoked against her wishes.
Issue:
Can it be assumed, contrary to the evidence, that the testatrix knew of and approved the effect of the
codicil?
Rule:
Rule of Evidence: A competent T who has read the instrument must be taken to have known/approved
its contents
- Trend in CL against such an absolute rule
Rule of Law: where T has delegated a draftsman, and T executes the draft, T is bound by any mistakes.
- Applies only to limited cases – if the draftsman puts in something that is outside T’s scope of
intentions, then he is acting outside of T’s intentions.
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Application:
Conclusion:
Two circumstances to permit/forbid change:
1. Where the mind of a draftsperson was applied to the will, the court will not make changes.
2. Where the mind of a draftsperson was not applied to the will, the testator will not be bound to
mistakes unless they are explicitly drawn to their attention and they agree to the format.
The court considered all of the surrounding circumstances and the available evidence, and noted that
they were not bound in a “straightjacket” to make a decision that is “artificial” based on a limited ability
to remedy the solicitor’s mistake.
They also noted that the testator’s attention was not explicitly drawn to the mistake of her solicitor, and
that she should thus not be bound by it.
Because this was a patent mistake, the court didn’t admit any direct extrinsic evidence (this was the
court of probate), but the case went to the court of construction, and the beneficiary took everything
without the likely intended limitation.
The court could not add the intended # to the codicil, but they could exclude a clause which would lead
to the same result
***Drafting Error
Re Wright Sask. A will based on a patent mistake will be void
Facts: T left everything to his friend in Canada, thinking that his wife and child in England were dead. The will specifically
said, “Since my wife and child are dead…” which was a patent mistake as they were not
Conclusion: The entire will was void as it was based on a patent mistake. The testator likely would have provided for his
wife and child, had he known they were still alive.
Clarke v Brothwood (2006) EWHC Clerical errors allow for rectification  use this authority for drafting
errors remedied by the Estate Administration Act
Facts:
The testatrix’s solicitor wrote provisions to deal with the residue of her estate which led to 60% intestacy.
The solicitor could not recall the instructions she provided, and therefore could not provide evidence of a
mistake.
Issue:
Can the resulting intestacy be rectified?
Rule:
Section 20(1) of the Estate Administration Act:
"If a court is satisfied that a will is so expressed that it fails to carry out the testator's intentions, in
consequences –
(a) of a clerical error; or
(b) of a failure to understand his instructions, it may order that the will shall be rectified to carry out
his intentions"
Application: The court must consider 3 questions for rectification under the above provision (Re Segelman):
1. What were the testator’s intentions re: the dispositions for which rectification is sought?
2. Does the will so expressed fail to carry out those intentions?
3. Is the will as it is expressed the result of a clerical error or a failure on the part of the draftsman
they retained to understand the instructions they provided?
Conclusion: The court noted that a clerical error required an actual error in recording the words/intention of the
testator, and that this would allow for rectification.
Re Lipson (2009) ONSC Adding or Deleting Words: If the court is satisfied that there are incorrect words in
the document, the court can either add words or delete them to correct the error.
There are four requirements to allow for correction:
 If upon reading the whole will, it’s clear that there has been a mistake in drafting, and
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


The mistake does not express T’s intentions, and
T’s intentions are shown so strongly in the will, and
That no other intention could be supposed,
 Then the proposed correction (either by deleting or adding) must give effect to T’s intention.
***Execution of Wrong Documents
-
Often occurs in joint wills when spouses sign each other’s wills (Brander)
Re Brander Not good law, as mirror wills should not be substituted for one another, but this has been done.
T and his wife left everything to each other for life, with remainders to other B’s. Both had signed each other’s wills.
The court added the correct signatures to each will.
Doctrine of Republication
‘Doctrine of Republication’ – a prima facie rule which provides that where a will is amended by a codicil which confirms
the remainder of the will then, unless there is contrary intention, the will is effectively republished as at the date on
which the codicil is executed.
- Republication via codicil gives a will a new, later date.
Purposes:
- Gives new meaning to broad and general terms (e.g. “my present lease” – Re Reeves)
- Surrounding circumstances to resolve ambiguities  Republication is important where a will takes on a later date it
can be construed in accordance with any change in surrounding circumstances existing at that later date i.e. court
does not have to look at surrounding circumstances existing at the time the original will was made (see Re
Hardyman)
- To cure defects in original will (see Anderson)
Exceptions / Limitations of Doctrine
- Doctrine of Republication is NOT automatically applied – depends on intention of T (Re Hardyman)
- Thus, it will not operate where it defeats the intention of the T (Re Health’s)
- E.g. It would seem, on general principles, that if a testamentary gift is valid at the date of the will, it cannot be
invalidated by mere republication of the will” (Jarman on Wills, cited with approval in Re Heath’s) – i.e. otherwise, T
would not have intended to republish
Wills Act: the doctrine is codified in s. 20, Wills Act
20 (1) If a will has been revived or re-executed by a codicil, the will is deemed to have been made at the time it
was revived or re-executed.
(2) Unless a contrary intention appears by the will, a will speaks and takes effect as if it had been made
immediately before the death of the testator with respect to the property.
Re Hardyman (1925) Eng. It is settled law under the doctrine of republication that a codicil republishes a
will, but the doctrine may be interpreted flexibly to adhere to the testator’s intention.
Facts:
Will made in 1898 created a trust of $5k in favour of T’s cousin, Colonel McClintock and his wife, who
died prior to the death of the testator. After the wife’s death, T made a codicil which did not mention the
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Issue:
Rule:
Application:
Conclusion:
gift to McClintock and his wife. T died the next month, and Colonel McClintock remarried in 1903 (2 years
after T’s death).
Does the second wife have an interest
It is settled law under the doctrine of republication that a codicil republishes a will.
The court considered the doctrine of republication and noted that the codicil republished the will.
They decided that the doctrine is a useful and flexible way to determine the testator’s intentions.
If T had not made a codicil at all, it would have been clear that the will spoke to McClintock’s first wife,
but since she published the codicil after the first wife’s death, the second wife had an interest.
Wife 2 had an interest in the trust of $5k.
Re Reeves (1928) Eng.  It is settled law under the doctrine of republication that a codicil republishes a will
 Doctrine of republication applies (“my present lease” = the lease at date of codicil)
Facts:
Mr. Reeves leased property, and left interest in his present lease of residential property in his will to his
daughter. 2 years later he entered into a 12 year lease of the same property. Later, he made a codicil to
his will, but did not mention the clause for the lease. After he died, his executors
Issue:
Did the codicil modify the will to include the new lease?
Rule:
It is settled law under the doctrine of republication that a codicil republishes a will.
Application:
- Without a codicil the “present lease” would have been the lease at the time of the will but by
confirming will by codicil during the currency of the new lease the T effectively gifted new lease
to daughter.
- Republication would not have saved a gift that had specifically identified the 7-year lease (e.g. by
reference to its date), however, by reference to “my present lease” in the will, republication
works to recognize the new lease entered into by the T shortly before execution of the codicil.
- The court found that the will and codicil comprised a single document that could not be
separated, and were dated 1926 (date of the codicil) and spoke to the “current lease” which was
the 12 year lease to which T’s daughter was entitled.
Conclusion: When will and codicil are read as one document dated Feb 1926 there is a gift of “my present lease” and
present lease is the 12-year lease – full benefit passes.
Re Heath’s Will’s Trusts (1949) Eng. A republication cannot invalidate a clause in a will that was valid at
the date of the original will.  If the doctrine of republication is contrary to the intention of the testator, it
will not be applied.
Facts:
T’s will provided for an interest to his daughter, who was married and therefore her legal status “in
coverture” was to be bound to her husband. Due to her status, she could not borrow against her interest
as long as she was married. T made several codicils, and before the last one was executed, legislation in
the UK was introduced to give women separate legal status. If the will had been written after the Act for
property rights came into force, the clause would have been void.
Issue:
Did the codicils published after the Act was published invalidate the daughter’s interest in the will?
Rule:
A republication cannot invalidate a clause in a will that was valid at the date of the original will.
Application: The court ruled that legislation combined with republication could not operate to invalidate the intention
of the testator and limit a gift.
Conclusion: T’s daughter’s interest was still valid.
Re Estate of Ruth Smith: Smith v Rotstein (2010) ONSC The doctrine of republication will not operate to
revoke previous testamentary instruments/provisions.
Facts:
Ms. Smith died with a will and 4 codicils. The last 2 codicils were attacked by beneficiaries on grounds of
capacity, undue influence, etc. The intestate beneficiaries wanted the court to find that the last codicil
revoked the entire will and that T died intestate.
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Issue:
Rule:
Application:
Conclusion:
Was the will republished or revoked?
The doctrine of republication will not operate to revoke previous testamentary instruments/provisions.
The principle of republication makes the will speak as though it was re-executed at the date of the
codicil, although this is flexible and serves as an interpretation tool.
The codicil is a republication that re-dates the former will, but the changes in the last codicil do not take
effect as the testator lacked capacity to make them.
T’s will was valid and her estate was distributed based on the will’s provisions as per the second-last
codicil.
Anderson v Anderson (1869) HL Doctrine of republication: a properly executed codicil can remedy an
improperly executed will
Facts:
The codicil here had the effect of republishing the will (Note: this is the exact opposite of the decision in
Gurney). Mr. Anderson was the beneficiary under a will, which his wife witnessed. The testator later
wrote a codicil that was witnessed by 2 different people
Issue:
Was Mr. Anderson`s benefit void due to his wife`s signature?
Rule:
Codicils and other testamentary documents later executed may cure defects created by signatures
provided by beneficiaries.
Application: The court said that the effect of the codicil was to `repeat and confirm`` the will, and to incorporate the
codicil and the original will into one document.
Conclusion: Mr. Anderson was still able to benefit from the will.
6. Common Law and Equitable Doctrines: Abatement, Ademption, Satisfaction,
Election, Lapse, Disclaimer, Rules against Accumulation, etc.
Types of Gifts
Three Basic Types of Testamentary Gifts:
1. Devises – real property gifts
2. Bequests – personal property gifts
3. Legacies – cash or cash equivalent gifts
Major Categories of Testamentary Gifts
1. General and Pecuniary: gift of items or sum of money or annuity payable out of general assets of the estate (e.g.
$1,000)
 E.g. General: a watch may be a general gift, but the executors must purchase this watch or award one
that is already among the assets of the estate.
 E.g. Pecuniary: $1000 from the estate, either from liquid assets, or other property that may be sold to
satisfy this gift.
2. Demonstrative – gift which, by its terms, must be paid out of a specific source of funds (e.g. $1,000 from my
stock fund)
 If it says $10k from my RBC account and there is not enough in it, executors may take $ from other
sources to satisfy this gift.
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
If the wording says it must be paid solely from a specific asset, it becomes a specific gift, but as much of
the gift as can be satisfied by the specific fund is treated as a general gift and the balance, if any, is a
specific gift that is satisfied last.
3. Specific – gift of specific personal property which can only be satisfied by delivery of a particular thing (e.g. “my
1998 Red Honda Civic, or “all the cash, stocks and bonds out of my RBC account”)
 Does not abate until all general, pecuniary, and residual gifts are satisfied.
 The word “my” is an indication of a specific gift.
4. Residuary – gift of all testator’s estate not otherwise disposed of by will (i.e. remaining estate after all debts,
expenses, legacies, bequests and devises have been satisfied)
 Keywords: the balance, the rest, all the rest, the residuary, etc.
 Usually near the last sentence of the will.
 If a specific gift fails, it falls into the residue
 If the residue fails, it goes to intestacy
Examples:
Example 1: T gives Bob $1000  this is a general, pecuniary gift
Example 2: I give 10 shares of O’Keefe brewery, and I don’t own the shares  this is a general gift
Note: if a person does not want an asset of a general gift that is not already owned by the estate, they can have the cash
equivalent.
Example 3: I give a watch to each of my grandchildren
Example 4: I give $948 worth of a particular stock which I own when I made the but I sold before I died  this is a
general gift.
Example 5: I give my account in the bank of Montreal  general legacy
Example 6: My account #3789 in BMO  specific gift, and if the money is withdrawn, you get nothing.
Example 7: A gift of $10k from my account with BMO  demonstrative; the account contains $10, so the remainder is
specific.
Example 8: My piano to my daughter  specific
Example 9: My house be sold for not less to $100k and the proceeds to be paid in various $5k disbursements with the
remainder to a final party  the $5k amounts were specific gifts, as was the remainder as it was contingent on the sale
price.
Example 10: I forgive any debts owing to me by my son  the court found that this was not an asset, but could have
been considered a specific legacy.
Insolvent Estates and Abatement
-
All debts must be paid first out on estate
If there is not enough $ to satisfy all debts, they are paid in order of secured creditors before general creditors
Funeral expenses are paid immediately; everything else waits until they know how much there is
Abatement = a proportional diminution or reduction of the pecuniary legacies, when the funds or assets out of which
such legacies are payable are not sufficient to pay them in full
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If all debts have been paid, and there is for example $100k remaining, the gifts are paid in the reverse order in which
they are used to satisfy debts.
Order of Asset Liquidation to Satisfy Debts
1.
2.
3.
4.
5.
Those owed on residual claims
General legacies
Demonstrative legacies
Specific legacies of personalty
Specific devises of real property
Order of Payment Following Debt Satisfaction
1.
2.
3.
4.
5.
Specific devises of real property
Specific legacies of personalty
Demonstrative legacies
General legacies
Those owed on residual claims
Note: Issues arise in classifying the type of gifts as beneficiaries compete to take first so that their bequests are relatively
safer from debt satisfaction needs.
Executors year: executors to a will have one year before they have to make any payments to creditors; this is to allow
them to figure out which, if any gifts will have to be sold to satisfy debts.
Common Law Order of Abatement
The common law order for abatement is:
1. Residuary personalty
2. Residuary real property
3. General legacies (including pecuniary legacies from residue)
4. Demonstrative legacies
5. Specific legacies of personality
6. Specific devises of real property
Estate Administration Act - Order of Payment for Insolvent Estates
101 (1) Subject to the rights of secured creditors, the proceeds realized from an insolvent estate must be applied by the
executor or administrator in priority of payment as follows:
a. the reasonable funeral and testamentary expenses incurred by the legal personal representative of the
deceased;
b. the costs of administration, in the following order:
i.
the expenses and fees of the legal personal representative;
ii.
legal costs;
c. wages, salaries, commissions or compensation of any clerk, employee travelling salesperson, labourer or
worker for services provided during the 3 months immediately preceding the death of the deceased, to the
extent of $500 in each case, and, in the case of a travelling salesperson, disbursements properly incurred
83
d.
e.
f.
g.
h.
i.
by the salesperson in and about the deceased's business during the same period, to the extent of an
additional $300 in each case;
municipal taxes assessed or levied against the deceased not exceeding the value of the interest of the
deceased in the property in respect of which the taxes were imposed as declared by the legal personal
representative;
the landlord for arrears of rent for a period of 3 months next preceding, provided that the total amount so
payable must not exceed the realization from the property on the premises under lease;
all indebtedness of the deceased under any Workers Compensation Act, under any Unemployment
Insurance Act, under any Income Tax Act, or under a provision of the Income War Tax Act creating an
obligation to pay to the Crown amounts that have been deducted or withheld, rateably and without
preference;
claims resulting from injuries to employees of the deceased to which the provisions of any Workers
Compensation Act do not apply, but only to the extent of money received from persons or companies
guaranteeing the deceased against damages resulting from the injuries;
claims, not previously mentioned in this section, of the Crown in right of Canada or of any province,
rateably and without preference despite a statutory preference to the contrary;
all other claims accepted by the legal personal representative of the deceased, rateably and without
preference.
(2) Subject to retention of sums necessary for the costs of administration or otherwise, payment in accordance with
subsection (1) must be made as soon as funds are available for the purpose.
(3) A creditor whose rights are restricted by this section is entitled to rank as an unsecured creditor for any balance of
claim due the creditor.
(4) For the purposes of subsection (1) (c), commissions payable when goods are shipped, delivered or paid for, if
shipped, delivered or paid for within the 3 months referred to in that paragraph, are deemed to have been earned in
those months.
Ademption
-
Common law principle
Definition: when a specific gift is not part of T’s estate at his or her death (whether T disposed of it or POA did), then
the gift fails and the B has no claim to an equivalent benefit under the will (Re Church)
Ademption only applies to specific, not general gifts.
Wills Act
-
S.19: where a specific gift adeems, the rest of the will is operational
S.20: (1) If a will is revived or re-executed by codicil, then the will is deemed to have been made at the time it was
revived or re-executed
(2): a will speaks and takes effect as if it had been made immediately before the death of T
Policy: T should be free to deal with property during his or her lifetime and to change testamentary plans. If gift is not
part of T’s estate, it’s assumed he or she revoked the gift.
Exception: a specific legacy won’t adeem where the specific property has changed only in name and form, but remains
the same in substance (Trebett)
- it is a question of fact - whether the change is in name and form only
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- tracing  property will not change in substance if it has been commingled momentarily or in a de minimis manner
(Re Cudeck)
Church v Hill (1923) SCC Conversion case: ademption of property and conversion to a receivable mortgage
will go into residue.
Facts:
T died and his will divided his property among 4 children – youngest daughter (M) gets specific real
property (house) and other 3 children share residue equally. House is sold (with vendor take-back
mortgage) prior to T’s death.
Issue:
Can M claim the house or, alternatively, the proceeds from the sale of the house?
Rule:
The court would not re-write T’s will; conversion of the house to a mortgage adeemed the gift.
Application: Notwithstanding the mortgage, the purchaser of the house immediately acquired an equitable interest in
the property.
What the T devised to M was the property itself; what he had at death was the right to the price and not
the property. The devise fails because the subject matter of the devise no longer existed at death.
Conclusion: M’s gift fails because the subject matter of the gift no longer existed in T’s estate at T’s death and
proceeds (due to Conversion) go into the residue of the estate to be divided among other 3 children.
Trebett v Arlotti-Wood (2004) BCCA A change in name only is not sufficient to lead to ademption, but
where there is a specific legacy and a change in substance, there is ademption.
Facts:
T’s will provided for any cash, stocks and bonds in his account # xxxx with RBC, to be distributed.
The value of assets in the account at the time of the making of the will was $110K. T transferred his
assets from RBC to Midland Walwyn (MW) in Nanaimo 6 weeks after making the will and at that time the
assets were $66K cash and other securities. Many of the securities in the MW account after the transfer
were the same as in the RBC account. At death, the value of the MW was down to $60K.
Issue:
Whether the gift of assets in the RBC account had been adeemed?
Rule:
A change in name only is not sufficient to lead to ademption, but where there is a specific legacy and a
change in substance, there is ademption.
Application: a. Demonstrative legacies by their nature are a general legacy, usually pecuniary, directed to be satisfied
primarily (but not solely) out of a specified fund or a specified part of the T’s property. E.G. “$100 to be
raised out of the sale of my Surrey properties” – a gift of this sort will not be adeemed even if the
proceeds of the Surrey properties cease to exist or to be identifiable prior to the testator’s death.
b. However, if the will shows that the legacy is to be paid out of a particular fund AND ONLY OUT OF
THAT FUND, it is then a specific legacy and is subject to ademption.
Conclusion:
its ademption
This was a specific legacy and, except to the extent that the particular securities which were in the RBC
account at the time of transfer can be identified in T’s MW account at the date of death, the legacy in T’s
will adeems.
BUT, beneficiaries are allowed to pursue limited “tracing” (i.e. at time of T’s death) and submit more
complete evidence to Court, failing which, the entire gift fails.
***Tracing
Exception to Ademption
- where the will or codicil explicitly states:
 A T may direct in his will for the sale of property and then provide that certain cash gifts be made from the
proceeds of the sale
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
Re Cudeck – The gift can only adeem if the T has taken steps which clearly indicate that he has appropriated
the proceeds to himself.
- Generally, ademption does not occur where the T’s intention was clearly set out in the will or codicil.
Re Cudeck (In Trebett) Tracing: property will not change in substance if it has been commingled
momentarily or in a de minimis manner
Facts: Gift was the proceeds from a term deposit, and noted that it referred to the term deposit of the particular date,
or any one thereafter. T cashed them at term and reinvested in new term deposits. Before his death, T cashed the
deposits and put $37k into his safety deposit box with a note that said it was for Marie.
Issue: Was the conversion sufficient to create ademption?
Rule: A gift can only adeem if T has taken steps which clearly indicate that he has appropriated the proceeds to himself;
generally, ademption does not occur where the T’s intention was clearly set out in the will or codicil.
Tracing: property will not change in substance if it has been commingled momentarily or in a de minimis manner
Application: The note was critical as it was not testamentary, but was sufficient to show tracing of the term deposits and
to allow for the beneficiary to take the $.
Re Stevens (In Trebett) If a testamentary gift no longer exists at T’s death, there must be something else
which can be identified as taking its place, or there is ademption
Facts: T gifted the net proceeds of her house, sold the house, then put the $ in her bank account, which she continued
to use for everyday banking.
Issue: Was the gift adeemed?
Rule: Where the "proceeds" or other assets which form the subject-matter of the gift have been commingled in a
manner that is more than de minimis or "momentary", the authorities say that the assets lose their identity and the gift
is adeemed.
Application: Since T had used the account for other purchases/deposits, the proceeds of the sale had changed in
substance.
Conclusion: The gift failed because the substance of the gift changed.
Re Rodd (In Trebett) A testamentary gift that undergoes sufficient change to lose “its identity” will be
considered to have adeemed.
Facts: Gift of the proceeds of the house, but T was incompetent and someone else sold the house. The trustee put the
proceeds in a savings account, but continued to draw from the account and invested $30k in a debenture.
Issue: Had the gift of the proceeds adeemed?
Rule: Where the "proceeds" or other assets which form the subject-matter of the gift have been commingled in a
manner that is more than de minimis or "momentary", the authorities say that the assets lose their identity and the gift
is adeemed.
Application: The court said since it was a gift and not the house itself, it had not adeemed. The real question was
whether it was traceable, which the $30k debenture was, but the rest of the account had lost its identity and was
adeemed.
Conclusion: The debenture was traceable but the bank account was not, so that gift failed.
86
***Conversion
General Rule: exchange of property from real to personal or personal to real  leads to ademption
- Where a T sells or otherwise disposes of property that was gifted in a will, the T has effectively converted the original
gift into other property and the gift therefore adeems
- “constructive conversion” = conversion after testator’s death if option to purchase in a sales K is exercised (Lawes v.
Bennett)
 But this rule can be excluded through T’s contrary intention – express or implied (Re Pyle)
 e.g. republication of will by codicil (or new will) after the date of the sales contract granting an option to
purchase  beneficiary deemed to take entire interest, despite any subsequent conversion, thus avoiding
ademption (Re Pyle)
Re Sweeting (1988) Eng. Pre-executed K for land defeasible interest  divests upon execution of K and
subsequent conversion  ademption
Facts:
- T made a will when he owned a house and a depot yard behind the house used for a haulage business.
- By his will he made a specific gift of the yard to his daughter, Cheryl, with a right-of-way granted to the haulage
business; with residue of his estate being divided equally among his 5 children.
- Three weeks prior to his death the testator entered into two contracts for the sale of the house and the depot yard.
He died before the completion of the transaction.
Issue: Were the specific gifts to Cheryl and haulage business are adeemed by the sale contracts with the consequence
that the sale price is added to the residue and does not form part of the specific devise?
Held: Contracts were carried out, property exchanged hands and conversion took place. Thus, the specific gifts were
adeemed. The proceeds of the sale of the yard pass as part of the testator’s residuary estate.
Analysis
- the gifts would have failed by ademption had the K been executed prior to T’s death
- here, the daughter had a defeasible interest in the real property that divested on the execution of the K, at which
time the real property was converted into personal property (cash proceeds)
- any income from the real property (i.e. rents) would have been payable to the daughter prior to the divestment
87
Re Dearden Estate (1987) MB QB Pre-execution K  no conversion until option to purchase exercised – if
K unenforceable, no ademption
Facts:
- D owned land upon which he operated a dry cleaning business. In Sept. 1970 he made a will leaving the land,
business and equipment to his nephew. In Oct. 1985 D entered into a contract, subject to a large number of
conditions, to sell land, business and equipment to P to be completed in Aug. 1986.
- D died in June 1986.
- in Sept. 1986 P took the position that the executors by their conduct had repudiated the K and that he accepted the
repudiation
Issue: Had the disposition in favour of the nephew been adeemed?
Held: The contract for the sale of the land, business and equipment was unenforceable by or against the testator and
therefore the devise and bequest to the nephew is not adeemed.
Analysis:
- A contract for sale which is not enforceable does not affect an ademption
- As per Lawes v Bennett – where the T has entered into a K under which a person has an option of purchasing the
land, and exercises the option after T’s death. Constructive conversion only takes place where the option is
exercised. It is exercise of the option, not the grant of the option that causes conversion
Re Pyle (Eng. 1985)  Rule of constructive conversion can be excluded by T’s implied intention
Facts:
- T made his will in Mar. 1886 and left land to P and his two sons.
- In June 1890 T made a codicil to his will by which he made additional pecuniary legacies and confirmed his will. On
the same day he granted a 5 year lease of the land which lease contained an option to purchase.
- T died in Sept 1890 and the lessee exercised the option to purchase in 1893 - land was conveyed to him
Issue: Whether the proceeds of the sale were to be paid to P and his two sons or fell into the residue of T’s estate.
Held: No ademption b/c rule in Lawes v Bennett does not apply – T must have known that property may be converted
if option to purchase was exercised, but he did not change the will – thus P entitled to the entire interest (real or
personal)
Analysis:
- Because the lease and codicil were executed concurrently, it must have been present in T’s mind (when he
confirmed the will) that ademption was possible, thus the rule in Lawes v. Bennett does not apply
- The operation of the rule can be excluded by T’s intention – express or implied  implied where the republication
of the will by codicil (or a new will) after the date of the sale contract granting the option does not change the
bequest
Nakonieczny v Kaminski (1989) Sask QB  No ademption as assets were co-mingled but still specific
(identifiable)  no loss of character and thus no ademption
Facts: T wrote a will in 1982, gifting property to various ppl. In 1984, T was ill and told D to sell his home, its contents,
and his car.
Issue: Had the gift adeemed?
Application:
The court considered each asset separately:
1. The proceeds of the house were not adeemed as they were identifiable.
2. The proceeds of the car were partially adeemed as they were comingled with the other funds
Conclusion: The contents were comingled but specific, so they didn’t lose their character and were not adeemed.
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Appurtenances
Anything attached to a piece of land or building such that it becomes a part of that property, and is passed on to a new
owner when the property is sold. It may be something tangible like a garage, septic system, water tank, or something
abstract such as an easement or right of way
- If an item is an appurtenance, it passes under a gift as a part of that
- E.g. easement necessary to live on land like a water easement
 Necessary for enjoyment of property
 If you sell land, easement goes with it
Election
-
Definition = where a lagatee or devisee under a will is put to the choice of accepting the beneficial interests
offered by the donor in lieu of some estate which he is entitled, but taken from him by the terms of the will
o When the beneficiary’s interest in property is inconsistent with any provision of the will. The beneficiary
cannot take both interests, but must make an election (Granot)
-
Trigger (Maw Estate): Doctrine of election applies to a will when two conditions are met:
o (1) There must be a gift to a legatee; AND
o (2) There must be a gift of that legatee’s own property to a third person (e.g. JT).
-
GR (Granot):
o It applies only where the T clearly intended to dispose of another’s interest in property while at the same
time making a gift to that person under his will;
o The intention must be made express or appear by necessary implication from Will terms;
o One starts from the premise that the testator only intended to dispose of his or her own property in the will;
AND
o General words in a will like “all my estate” or a residuary gift in general terms will not, standing alone evince
an intention to dispose of property or an interest in property which the testator was not entitled to dispose
of in his will (see e.g. Granot)
Granot v Hersen Estate (1999) ONCA Doctrine of election n/a – T did not intend to dispose of R’s interest
Facts:
T was survived by daughter (L), son (R). T owned a condo in Switzerland worth btwn $600K and $800K.
T’s will specified “I GIVE all my property wheresoever situate … to my trustees upon the following trust,
namely.” Will provides that R gets $600K and another of T’s properties, but makes no mention of condo,
and leaves residue of estate to L.
Under Swiss property law, R entitled to ¼ interest in condo. By implication, under T’s will L received R’s
interest in condo.
Issue:
Was R required to make an election? (i.e., choose between his rights under T’s will and his right under
Swiss law to an interest in the condo?)
Rule:
Application:
- Application of Doctrine of Election depends upon whether R’s ¼ interest in the condo is
inconsistent with any provision of the will. If there is an inconsistency, R cannot take both under
the will and under Swiss law. If he elects to take the gifts under T’s will, he must forgo his rights
to the condo. If he chooses to take his interest in the condo, his gifts under T’s will must be
reduced by an amount equal to the value of his interest in the condo. If R’s interest in the condo
does not create any inconsistency with the provisions under T’s will, then he is entitled to take
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both the gifts under T’s will and his interest in the condo.
R’s ¼ interest in the condo will be inconsistent with the terms of the will if T intended to give that
interest in the condo to someone other than R. Such intention must be expressed on the face of
the will or must arise by necessary implication from the text of the will taken as a whole.
- Nothing on the face of the will suggested such an intent but the trial judge found that necessary
implication of such intent arose when reading the opening words “I give all my property
wheresoever situate”...
- Canadian courts have shown a reluctance to invoke the election doctrine absent a clear intention
of the face of the will to dispose of property in a manner inconsistent with the rights of another.
That intention has been found either in the express language of the will read as a whole or where
the clear intention of the testator could not be carried out if the property interest of the other
person were given effect. Canadian courts have held that general language in the residuary
clause standing alone will not demonstrate as an intention.
Not proved that T intended to dispose of R’s ¼ interest in the Swiss condo in his will. The doctrine of
election has no application and R is entitled to both the ¼ interest in the Swill condo and the Will gifts.
-
Conclusion:
Maw Estate v Bush (1999) BCSC  Lacks express intention to put beneficiary to an election  Doctrine of
election applies to a will when two conditions are met: 1. There must be a gift to a legatee; AND 2. There must
be a gift of that legatee’s own property to a third person (e.g. JT).
Facts: Mr. and Mrs. M owned (as joint tenants) two properties – a residence and a vacation lot.
- Mrs. M died and her will divided her estate between Mr. M and their 3 daughters. Mrs. M’s will stated: “In the
event that I own any house and property at the date of my death”, such properties shall be held for 10 years
and then sold and distributed as per residual clause in my will.
- Following Mrs. M’s death, Mr. M as the surviving joint tenant sold the vacation lot and keep the proceeds for
himself and transferred the residence to his own name
Issue: Whether Mrs. M’s will specifically refers to either the residence or the vacation lot and, if so, does the doctrine of
election apply?
Held: Doctrine of election does not operate as there is nothing on the face of the will to show that Mrs. M was referring
to the residence and vacation lot or was mistaken about her property rights (i.e., that she believed that she had rights
that she did not have) and hence no evidence to suggest that she wanted to put Mr. M to an election. Nothing suggests
that Mrs. M intended to deal with something that did not belong to her.
Satisfaction
-
GR: If T makes a will leaving a legacy to a particular person and then makes an inter vivos gift to that person in
the same amount, the gift is rebuttably presumed to revoke the legacy.
o Something given either in whole or in part as a substitute or equivalent for something else, and not
something that may be construed as the identical thing covenanted to be done
o
-
E.g. of presumption rebutted in Garnett; Lahay v. Brown (presumption of satisfaction of debt rebutted w/
clause directing trustee to pay all debts)
Presumptions rooted in centuries old English social conventions continue to exist in the law of wills which,
arguably, are no longer suitable in today’s society (WESA will change this, but does not apply to the exam)
WESA
Section
Description of WESA Provisions
Old/CURRENT CL Presumption / Comments
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53(1)
The presumption of law that a gift by a
testator made during the testator’s lifetime
to a child of the testator or to a person to
whom the testator stands in place of a
parent is an advancement of a portion that
is intended to revoke a gift in the testator’s
will in favour of the child or person is
abrogated and the gift in the will takes
effect according to its terms.
Presumption against double portions
 Assumes that parents intend to treat all of their
children equally.
When a will is made containing a gift to the T’s child,
a presumption may arise that the (inter vivos)
transfer was a “portion” that is intended to reduce
the child’s entitlement under the will. Presumption
only applies with respect to transfers intended to
advance the child in life.
Comments: Designed to prevent financial abuse of
parents by children. Not uncommon today to see
large wealth transfers during lifetime of parent.
Parents do not realize that what they do during their
life can impact their will.
53(2)
The presumption of law that a legacy is
revoked by a gift in the same amount as the
legacy made by the testator during the
testator’s lifetime is abrogated and the
legacy takes effect according to its terms.
Presumption of satisfaction of legacy by gift during
testator’s lifetime
If T makes a will leaving a legacy to a particular
person and then makes a gift to that person in the
same amount, the gift is rebuttably presumed to
revoke the legacy.
Problem: Creates uncertainty. T wishing an inter vivos
gift to supplant the legacy should change the will.
53(3)
The presumption of law that a debt owed
by a testator is satisfied by a legacy to the
creditor equal to or greater than the debt is
abrogated and the debt continues to be a
claim against the testator’s estate.
Presumption of satisfaction of debt
When a T has incurred a debt, and makes a
testamentary disposition to the creditor in an amount
equal to or greater than the debt, a presumption
arises that the legacy is in satisfaction of the debt.
Creates uncertainty – if this is the T’s intention, it
should be expressed in the will.
53(4)
The presumption of law that a binding
promise by a person to make a gift to
advance a child in life is satisfied to the
extent of the benefit promised by a gift in
the person’s will to the child is abrogated
and the promise remains binding on the
person and the person’s estate.
Presumption of satisfaction of portion debts by
legacies
If a parent enters into a formal obligation to advance
a portion (“portion debt”) to a child and later makes a
will leaving a legacy to the child but dies before the
obligation is fulfilled, a presumption arises that the
portion debt is satisfied by the legacy to the child.
Thus the child is prevented from both taking under
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the will and enforcing the obligation. If the legacy is
less than the portion, the portion debt is satisfied to
the extent the amount of the legacy.
Creates uncertainty: Designed to prevent financial
abuse of parents by children. Parents do not realize
that what they do during their life can impact their
will. Creates uncertainty.
53(5)
The abrogation of a presumption set out in
any of the subsections (1) to (4) is subject to
a contrary intention of the testator and
extrinsic evidence may be admitted to
prove the contrary intention.
Admissibility of extrinsic evidence to prove contrary
intent
The abrogation of each of the four presumptions
should be subject to the contrary intent of T and
extrinsic evidence should be allowed to prove that
intent.
This is an exception to the general provision in Bill 4
confining extrinsic evidence of testamentary intent to
cases of demonstrated ambiguity.
Garnett v Armstrong (1977) NS CA Direction to pay all debts rebuts CL presumption of satisfaction of debt by gift
of an alternate legacy
Facts: P worked for the deceased for 20 years at low wages. Deceased promised to take care of P in his will. Will left
property worth $58K to P while total estate was worth $516K.
At trial P failed in an action for breach of contract but was awarded $45K for quantum meruit (i.e., as much as P
deserved)  formal obligation / debt
Issue: Should the amount so awarded be deemed to be satisfied by the bequests given to P under the terms of the will,
or be paid out of the residue of the estate in addition to the bequests?
Held: No presumption arises that legacies were intended by testator to have been in satisfaction of the remuneration to
which the plaintiff was entitled. Thus, P was entitled to be paid out of the residue, in addition to the specific bequests.
Analysis:
- By will testator directed executors to pay all his just debts … as soon as possible…
- In Lahay v. Brown, the following was approved: “A direction by will to pay debts alone is sufficient to rebut the
presumption that a legacy of equal or greater amount than the debt is to be taken as satisfaction of the debt.”
***Hotchpot
Estate Administration Act
Advances to Children (the “Hotchpot Rule”)
92 (1) If any child of a person who has died wholly intestate has been advanced by the intestate by portion, the
portion must be reckoned, for the purposes of this section only, as part of the estate of the intestate distributable
according to law.
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(2) If the advancement is equal to or greater than the share of the estate that the child would be entitled to
receive as above reckoned, the child and the child's descendants must be excluded from any share in the estate.
(3) If the advancement is not equal to the share, the child and the child's descendants are entitled to receive so
much only of the estate of the intestate as is sufficient to make all the shares of the children in the estate and
advancement equal as nearly as can be estimated.
(4) The value of any portion advanced is deemed to be that which has been expressed by the intestate or
acknowledged by the child in writing, otherwise the value is the value of the portion when advanced.
(5) The onus of proving that a child has been maintained or educated, or has been given money, with a view to a
portion is on the person so asserting, unless the advancement has been expressed by the intestate, or
acknowledged by the child, in writing.
Note 1: Rebuttable presumption arises once there is proof that a child did receive an advancement w/no logical
explanation that it was not an advancement by portion , which then must be rebutted by child who received
advance (Re Evaschuk p. 31)
[Note 2: the longer the period between the advance of money and the intestacy, the harder it will be to assert
this rule]
“Portion = an allotted part; a division in a distribution; a share of an estate or the like received by gift or
inheritance”
An advancement is neither a loan nor a gift, but a bestowment of property by a parent on a child on condition
that if the donee claims to share in the intestate estate of the donor, he shall bring in this property for the
purposes of equal distribution. [Widdifield on Executors Accounts 5th ed. 1967 p.182]
Disclaimer
Definition: occurs where B to a gift, pursuant to a will or following intestacy, chooses not to accept gift due to:
- Unacceptable conditions or onerous duties attached to the gift, set out in the Will by T
- Insolvency of B which might lead to creditors seizing the gift
- B is precluded by statute or otherwise from accepting the gift; OR
- Other reasons (taxes) personal to B
Rules:
- B may disclaim orally, by conduct or writing so long as gift has not been unequivocally accepted
- Disclaimer of one gift does not preclude B from accepting another gift under that same will, unless the two gifts are
somehow bound together (e.g. $10k and a dog)
- Disclaimed gifts are void, and added to the residue of the estate (Re Grund Estate)
 If it’s a residual gift, then it passes on intestacy – augments the share of the other next-of-kin
 T may avoid this if they provide for substitute B in case of disclaimer
Acceleration via Disclaimer:
- B can accelerate a successive gift by disclaiming their interest in the gift (Estate of Creighton)
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
The position now is that on a premature determination, the subsequent interests are accelerated unless
there is an intention to the contrary
In the Estate of Brannan (1991) BCCA Wording in a will which shows future generations simply shows the
pattern for succession; it does not create rules.  Disclaimer may accelerate contingent gifts
Facts:
T provided for life estate to husband with sons receiving residue of estate upon husband’s death or upon
his remarriage. Husband disclaimed life estate to accelerate gift to sons
Issue:
Does the disclaimer accelerate the gift to the sons and vest the residue absolutely in them, or do they
take only if they survive their father?
Rule:
Disclaimer may accelerate contingent gifts
Application: True intention of will – was to delay the distribution of residue so long as father was alive and not
remarried – hence, distribution of the residue was to occur when the husband’s interest terminated
The court found it significant that if the husband remarried, the residue would pass to their sons as if he
had died – they noted that this gave him unilateral control over the timing of distribution, and if he could
trigger this via marriage, he could do the same with a disclaimer.
Conclusion: Disclaimer accelerated the gift of residue to the sons
Re Symes There is a presumption that disclaimer will accelerate a gift, unless a will states otherwise.
Giraudias v Giroday Trust (1998) BCSC A will must provide for termination to allow acceleration
Facts:
Life tenant of a trust wished to disclaim her right to revenue from the life interest in hopes of terminating
her interest in the trust and thereby vest the residual Bs with an interest in the trust
 Income tax concerns
Issue:
If the life tenant disclaims interest does the trust estate vest immediately through acceleration?
Rule:
A will must provide for termination to allow acceleration
Application: In Brannan’s case the will provided for the husband to unilaterally terminate life interest in the estate
and cause distribution, here, no such intention is present. Death only to terminate.
The court considered several factors:
1. The LT had no ability to encroach on the capital
2. LT could not unilaterally disclaim their interest in the trust
3. T’s intent to benefit others
4. The high dollar value
5. The intent/work to prevent application of the RAP
Based on all of these factors, the court decided that T did not intend for acceleration by disclaimer.
Conclusion: Does not vest immediately pursuant to acceleration
Re the Estate of Creighton (2006) BCSC Acceleration through disclaimer is allowed even where not
explicitly contemplated by the T, as long as no intention to the contrary in the will/surrounding
circumstances
Facts:
T’s children wished to disclaim their respective life interests in the residue of father’s estate so as to vest
to their children an indefeasible interest in the residue of the estate
Issue:
Whether acceleration was allowed for the proposed vesting
Rule:
Acceleration through disclaimer is allowed even where not explicitly contemplated by the T
Application: Brannan: “to limit acceleration only to cases where the testator specifically contemplated that a B would
refuse a gift or to exclude acceleration in any case where there is the contingency of survivorship, would
be contrary to the weight of authority and to the very concept osf acceleration
Further: “…whether or not a gift is accelerated is a matter of intention…the position now is that on a
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Conclusion:
premature determination of a particular interest, the subsequent interests are accelerated unless there is
an intention to the contrary” – here, no intention to contrary
Several factors were considered to determine whether the doctrine of acceleration should apply in a
given circumstance:
1. Whether there is an ability to encroach on capital
2. Whether there are other ways to trigger the doctrine of acceleration
3. Whether the will refers to later generations
4. What is the value of the estate
5. Are there any provisions to protect against RAP
Children allowed to disclaim their respective interests – resulting in immediate vesting to their kids
Re Grund Estate (1998) BCSC Disclaimed gifts are void, and pass to the residue of the estate clear of any
conditions
Facts:
T’s will left house to two of her four children, on condition that they pay ½ the fair market value to the
other two children; residue divided amongst the four
Issue:
If first two disclaim and receive a share of the house as part of the residue, would they have to
compensate the other two for the lost value they would receive? (Sold for less than market value?)
Rule:
Disclaimed gifts pass to residue clear of any conditions
Application: Was not interpreted to be a charge on the house; T’s intention was that first two only pay if they
accepted the house, which they did not
A beneficiary need not accept a testamentary gift, and if he declines it, the gift falls into residue
Conclusion: The disclaimed gift forms part of the residue of the estate, clear of the conditions contained in Will
Lapse
Definition – the failure of a testamentary gift to vest because of the death of a beneficiary prior to the death of the
testator; the gift “lapses” as a result
When does this happen?
1. If there’s a gift that calls for joint survivorship, and one of the parties does not survive, the gift lapses.
2. If there’s no residue clause in a will, the residue lapses on technicality
How are lapsed properties handled?
- Under common law, lapsed realty goes to the eldest heir (male or his male children, or if none, the eldest daughter)
- Lapsed personalty passes on intestacy
- Under statutory rules, a gift of residue that lapses passes on intestacy
General Rules
- S.21 Wills Act: Property in a devise or bequest that fails or becomes void because the beneficiary predeceased the T,
the gift is contrary to law or is otherwise incapable of taking effect, is to be included in the residuary devise or
bequest, if any, contained in the will UNLESS contrary intention
- For non-residuary gifts (i.e. specific bequest or devise)  the gift will lapse and fall into the RESIDUE, unless
 a statutory anti-lapse provision applies (s. 29, Wills Act);
 a contrary intention appears in a will (e.g. gift-over - “to his children”) (s. 21).;
 it is a class gift; OR
 the gift is a moral obligation (Re Mackie)
- For residuary gifts  the gift will lapse and pass on INTESTACY unless
o a statutory anti-lapse provision applies (s. 29),
o a contrary intention appears in a will (e.g. “to his children”) (Re Davison),
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o
o
it is class gift (Re Stuart Estate; Milthrop), or
the gift is a moral obligation – but unlikely b/c fixed debt (Re Mackie)
Cases: Re Stuart Estate (no class; residuary gifts pass on intestacy); Milthrop (no class), Re Hutton (class, despite
naming – “type of class”); Re Peters (class, despite numbering)
Re Stuart Estate (1964) BCSC A share of a residuary non-class gift that lapses passes on intestacy
Facts:
T’s will provided for the residue to be “equally divided among” 13 listed individuals (names provided =
specific gifts, not a class) – one of whom, a niece named AP, predeceased T
Issue:
How is AP’s share of the residue to be distributed?
Rule:
A share of a residuary non-class gift that lapses passes on intestacy
Application: Not a class gift because the testator did not look “to the body as a whole” – instead he looked at the
members constituting the list as individuals
Conclusion: The gift to AP is not a “Class Gift”.
Since T’s will is silent on what is to happen to AP’s share of the residue and because the Wills Act does
not provide for the disposition of lapsed residuary devises or bequests, AP’s interest in the residue of T’s
estate passes as on an intestacy.
***Moral Obligation
1st Common Law Exception to the Doctrine of Lapse
Trigger: applies to the repayment of fixed debts of T or T’s relatives only (applies where there is an
unenforceable legal obligation with a bounty; not a debt owed to a creditor)
 If this is met, there is no lapse, and the gift goes to the beneficiary’s estate.
- GR: where the legatee has predeceased T and the legacy was intended to fulfill a moral obligation (repayment of a
fixed debt), the gift does not lapse but is instead paid to the legatee’s estate (Re Mackey) – because T intends to
discharge the debt whether to the legatee or to the estate because “it is only morally proper to do so”
- This applies when:
1. If there is an issue of bankruptcy/insolvency
2. If the debt is statute-barred (has not been collected within 10 years of when it was incurred).
-
Re Mackey Where a gift is meant to satisfy a moral obligation, a lapse will not prevent the gift from passing
to B’s estate.
Facts:
T’s will left everything to his sister and his sister-in-law (who did all of T’s housework once T’s spouse
died). Her husband was also T’s close friend. The sister-in-law predeceased T.
Issue:
Who gets the sister-in-law’s share?
Rule:
Where there is a moral obligation meant to be discharged by a testamentary gift, the gift is irrevocable.
Application: The court considered the plain meaning of the will, the armchair rule (T wrote in when they were both
alive), the presumption against intestacy, and the moral obligation rule.
Conclusion: There was insufficient evidence of a debt, so the gift passed on intestacy.
***Joint Tenancy
-
2nd Common Law Exception
Joint tenancy can apply to many things (furniture, real property, etc.)
If a will refers to a joint tenancy, there is an automatic right of survivorship
In a TIC, no right of survivorship unless otherwise specified in the will (can be an issue with gift-overs)
At CL, there is a presumption in favour of joint tenancies
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-
At Equity, there is a presumption in favour of tenancies in common
By statute in BC, real property is held as tenancies in common, unless it expressly differs
***Class Gift
- Definition = a gift made to a group of beneficiaries that share a common characteristic (members of a family, sports
team, etc.) is a “class gift”, as opposed to a “named gift”. A class gift allows for “members” to join (births) or leave
(death) the group after execution of the will without requiring amendment to the Will.
- GR: the beneficiaries of a class gift hold their interests as JT – right of survivorship means that any lapse passes to the
remaining beneficiaries and does not go to the residue (if it’s a specific gift) or pass on intestacy (if it’s a residuary
gift) (Re Peters Will)
- TEST: for a “class gift”
 Did the testator look to the “body as a whole” (Re Stuart Estate; Milthrop)
 general description of class that bears some relationship to T (e.g. “my children”) (Re Brush, cited in
Milthrop)
 There is no naming of beneficiaries(Milthrop, but see Re Hutton)
 No number of beneficiaries are named (Milthrop, but see Re Peters which is an exception)
 There is no use of per stirpes – indicates that share was to pass to issue, not to the “class” (Milthrop)
 “per capita” (Re Estate of Stella West)
- Otherwise it is a “named gift”, or a “gift to individuals”, or a gift to “persona designata”
Milthrop v Milthrop (2000) BCSC Share of a residuary non-class gift that lapses passes on intestacy
Facts:
Application for the interpretation of the residuary clause of a will.
T and her husband (predeceased) both had children from a previous marriage and the residuary clause
provided for the residue to be divided among her two named children and her husband’s six named
children in equal shares per stirpes. One of the husband’s children (Richard) predeceased T and left no
issue
Issue:
Does the share of the residue that Richard would have received had he survived T, fall into and form part
of the residue to be divided among the persons entitled to receive the residue?
Rule:
If a gift to an individual lapses, it passes on intestacy; if it’s a gift to a member of a class, it does not lapse
and instead passes to the other members of the class.
Application: T names the beneficiaries and provided per stirpes  suggests individual gift or named gift
Conclusion: Richard’s share is to pass on intestacy because he had no issue (statutory anti-lapse n/a).
This did not amount to a “class gift” and there is no wording to indicate that Richard’s failed gift was to
be redistributed among the other named children.
Re Hutton (1982) ON HC Example of a class gift despite naming and right of representation (combination of
language + intent were considered)
Facts:
T’s will provided for the residue to be paid in equal shares among his brothers and sisters, Alex, Archie,
Myrtle and Jean; provided that if any are not living at his death but leave children living, that child or
children are to take the share which his or her parent would have taken if alive. Elsewhere in the will
there were specific bequests to these 4 beneficiaries.
All beneficiaries were alive at the time the will was made but Arch died on Mar. 19/79 and Alex died on
Apr. 2/79 (both brothers dead).
T made a codicil on Apr. 28/79 removing Alex as executor and appointing another person and confirming
the will in all other respects. At the time of the codicil Alex and Arch were both dead but both had left a
child or children living.
On June 25/79 Arch’s only child, PW, died. T died on Aug. 19/79 leaving his two sisters, the children of
Alex, the three grandchildren of Arch (PW’s children) and Arch’s widow alive.
Issue:
Whether the ¼ share of the residue left to Arch, or in the event of his death to his children, should pass to
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Rule:
Application:
Conclusion:
the other 3 named residuary beneficiaries, or whether it should go to Arch’s widow and/or grandchildren,
or whether it should pass on intestacy
This is an exception to the general rule as there were names and the use of per stirpes yet found to be a
class.
the Court reviewed the entire will and concluded that T’s intention was that he had covered all of his
assets and any undisposed assets were to form the residue to be divided among those named brothers
and sisters (and, if dead, their kids) as a type of class.
In the context of the whole of the will, T’s brothers and sisters and nieces and nephews formed a type of
class and being a type of class the residue is to be divided among the survivors of that group.
Hence, the residue is to be divided into three parts – one for Myrtle, one for Jean and one to be divided
among Alex’s children.
Re Peters Will (1967) MB QB Example of a class gift despite numbering
Facts:
T left the residue of her estate to “my three stepchildren” one of which, ES, predeceased her
Issue:
Was this a class gift?
Rule:
Application: Residue to be divided between 2 surviving stepchildren. In absence of any words of severance or
demarcation in the gift of the residue, the clause created a joint tenancy and with death of ES, residue is
divided between the surviving joint tenants.
Conclusion: Yes – class gift.
***Statutory Anti-Lapse
Wills Act BC
Lapsed and void devises and bequests
21 Property in a devise or bequest that fails or becomes void because the beneficiary predeceased the T, the gift is
contrary to law or is otherwise incapable of taking effect, is to be included in the residuary devise or bequest, if any,
contained in the will UNLESS contrary intention
Gift to issue predeceasing testator
29(1) Unless a contrary intention appears by the will, if a person dies in the lifetime of a testator either before or after
the testator makes the will and that person
a) is a child or other issue or a brother or sister of the testator to whom, either as an individual or as a member of a
class, is devised or bequeathed an estate or interest in property not determinable at or before his or her death,
and
b) leaves issue any of whom is living at the time of the death of the testator,
the devise or bequest does not lapse, but takes effect as if it had been made directly to the persons among whom and in
the shares in which the estate of that person would have been divisible if the person had died intestate without leaving
a spouse and without debts immediately after the death of the testator.
***Contrary Intention
Re Wudel (1982) AB QB Contrary intention can be used to oust the statutory anti-lapse provision
Facts:
T died a widow with one of four daughters, MB, predeceasing her. She had four sons survive her. All
surviving children were adults.
MB died on Oct. 16/61 but was survived by 4 children, all of whom were alive at T’s death.
T’s will, made on Aug. 10/77, provided:
“If any of my sons and daughters should die after the date of my [will] but before my death, then I
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Issue:
Rule:
Application:
Conclusion:
direct that the portion that that child was entitled to should be divided equally among his or her
children. Should any of my children die as aforesaid leaving no children then the portion that that
child was entitled to shall be divided between my children alive at the time of my death.”
Whether statutory anti-lapse provisions apply to MB or whether T’s will demonstrated a “contrary
intention” which ousted the application of the anti-lapse provisions?
Contrary intention can be used to oust the statutory anti-lapse provision
a) construing a will the Court must read the will with the same knowledge of the surrounding facts
and circumstances known to the T at the time she executed her will. This is the “armchair
principle” which permits the Court to look only at evidence as to the facts and circumstances as
they existed at the time of the execution of the will and the Court is barred from receiving
evidence as to subsequent events.
b) When the will was drawn, it must be accepted that T knew that her daughter, MB, had
predeceased her, and thus drafted the will to prevent the operation of the statutory anti-lapse
provision for MB
T demonstrated a contrary intention in her will and intended to oust the application of the statutory antilapse
Re Estate of Stella West (1999) BCSC The use of “per capita” = contrary intention to oust statutory antilapse provision
Facts:
T died leaving a son, K, and 3 grandchildren alive – 1 being K’s daughter and 2 belonging to T’s daughter,
D, who had predeceased her. The will created a trust for each grandchild and paid the residue to D and K
“in equal shares per capita for their sole use and benefit absolutely.”
Issue:
Whether s. 29 of the Wills Act applies such that D’s children take her share of the residue or whether T’s
will demonstrates a contrary intention such that K takes the entire residue.
Rule:
The use of “per capita” = contrary intention to oust statutory anti-lapse provision
Application: To discover T’s true intention and to determine whether it is contrary to the effect of s. 29, you must look
at the whole of the will:
In construing a will the duty of the Court is to ascertain the intention of the T which intention is to be
collected from the whole will taken together. 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, unless from a
consideration of the whole will it is evident that the T intended otherwise. (Smith v. Chatham Home of
the Friendless (SCC)
Conclusion: K takes the entire residue.
The words “per capita” had the effect of creating a JT and hence a clear intention by T to oust the
application of s. 29(1). The intention of T to create a joint tenancy in the residue of her estate was clear.
***Anti-Lapse Provisions in a Will
Re Cousen’s Will Trusts (1937) Eng. If an anti-lapse provision fails, the gift lapses
Facts:
T left a share of the residue to A if she was living at the date of his death, provided that if she died in his
lifetime, before or after the making of his will, and had issue who were alive at his death, such share
“shall be held in trust … by her personal representatives as part of her personal estate.” A predeceased T
but was survived by a daughter, J, who survived the T. A’s husband, W, was her personal representative
and entitled beneficially to her estate. W predeceased T.
Issue:
Whether gift of residue A is to be treated as part of A’s estate or does it simply become undisposed
residue of T’s estate?
Rule:
If an anti-lapse provision fails, the gift lapses
Application: - In no sense does the share of the residue which A would have taken if alive become part of her estate;
it is part of T’s estate given to A’s legal personal representatives to be held by them upon the same
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Conclusion:
trusts as A’s property was held.
- W did not survive T and since there is nothing in T’s will which provides against the lapse which must
result if the person who is substituted for A as legatee predeceases T, it must follow that that portion
of T’s estate has not been effectively disposed of.
As a matter of proper construction of T’s will, gift to A’s alternate (W) fails because he predeceased T
and, hence, gift passes to T’s next of kin as on an intestacy.
Re Greenwood (1912) Eng. Example of an anti-lapse provision that was successful in avoiding
consequences of a lapse
Facts:
T’s will provided for residue to be divided among her two brothers, a niece and a nephew with a
provision if any of them predeceased her as follows:
“If any of them … shall die in my lifetime leaving issue, and any of such issue shall be living at my
death, the benefits hereinbefore given to him or her so dying shall not lapse but shall take effect as if
his or her death had happened immediately after mine.”
Issue:
What is the proper construction to be given to T’s will?
Conclusion: There is no intestacy but a good substitutionary gift in favour of the person or persons who would have
taken if the legatee had survived the testatrix, and died immediately afterwards.
Re Davison (1979) NS TD Example of a broad anti-lapse provision being used successfully
Facts:
T had 14 children – 4 of which were dead when the will was made but 2 of the 4 were married and left
issue which survived T along with the other 10 of T’s children. Residue clause provided:
“All the rest and residue of my Estate … I give, devise and bequeath to my executrix to divide among
my children, share and share alike. IN CASE of the death of any of my children having married and left
issue them surviving … I direct that the issue of the said deceased child or children shall receive and
take the parents share in my estate by right of representation.”
Issue:
Whether residue is to be divided into tenths or twelfths – i.e. whether children of a person who was dead
at the date of the will are entitled to share in the residue of the estate.
Rule:
Application: - When a testator directs that issue shall stand in the place of, or be substituted for, a deceased child,
and take the share which their parent would have taken if living, he may intend such substitution to
apply only to the case of a child dying subsequently to the date of his will and before the time of his
own death, or he may mean it to extend also to the case of a child who was already dead at the date
of the will.
- But if he uses language so wide and general as to be no less applicable to a predeceased child than to
a child living at the date of the will, then the direction as to such substitution must be held to
embrace both
Conclusion: Residue is to be divided into twelfths with 10 twelfths to go to T’s surviving children and the remaining 2
1-twelfth shares to be divided, respectively, among the children of the two children of T who
predeceased T and left issue alive at T’s death.
7. Testamentary Capacity and Undue Influence
*Note: as a solicitor you are required to do a rudimentary assessment of your client’s capacity to make a will. This can be
done through casual conversation using your interview checklist as a guide (i.e. name, address, spouse, issue, assets
liabilities). This initial interview should provide a solicitor with a clue as to what a client’s intentions are which will
provide insight into testamentary capacity (see e.g. Hall v. Bennett Estate; Public Trustee v. Gill)
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Golden rule: If a solicitor does have an uneasy feeling that there may be a capacity issue, enlist the support of medical
personnel to witness and observe the testator’s mental state at the time of execution, and to record their examination
and findings. It will require very persuasive evidence for a Court to dislodge a conclusion of capacity (see Sharpe and
Bryson v. Adam and Adam).
Solicitors’ common errors in will preparation (Hall v Bennett Estate; Public Trustee v Gill)
1. Failure to obtain mental status examination
2. Failure to interview client in sufficient depth
3. Failure to properly record or maintain notes
4. Failure to ascertain existence of suspicious circumstances
5. Failure to properly react to existence of suspicious circumstances
Age Requirement
The Present Law - WILLS ACT BC
Wills of persons under 19 years of age
7 (1) A will made by a person who is under 19 years of age is not valid unless at the time of making the will the person
a) is or has been married, or
b) is a person described in section 5.
(2) For the purposes of section 5 and of this section, a certificate that purports to be signed by or on behalf of an officer
who has custody of the records of the force in which a person was serving at the time the will was made and that sets
out that the person was at that time a member of a naval, military or air force of a named country is sufficient proof of
that fact.
(3) A person who has made a will to which subsection (1) applies may, while under19 years of age, revoke the will.
Military forces and mariners
5 (1) A member of the Canadian Forces while placed on active service under the National Defence Act, or member of the
naval, land or air force of any member of the British Commonwealth of Nations or any ally of Canada while on active
service, or a mariner or seaman at sea or in the course of a voyage may, regardless of his or her age, dispose of his or her
real and personal estate by will in writing, signed by the testator at its end or by some other person in the presence of
and by the direction of the testator.
(2) If the will is signed by the testator, there is no necessity for the presence, attestation or subscription of any witness.
(3) If the will is signed by another person, the signature of that other person must be attested by the signature of at least
one person, who must attest in the presence of the testator and of that other person.
Knowledge and Approval
Trigger: gift in will seems larger or more generous than testator thought
Common Scenario: solicitor (or other person) writes or prepares a will (or assists in writing instructions for will), under
which he/she takes a benefit
Issue: did the testator have sufficient knowledge and approval of the gift?
General Rule:
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- If a party writes or prepares a will (or instructions for a will), under which he takes a benefit, the court will generally
be “suspicious, vigilant and jealous” (Harmes; Wintle; Russell)
o the degree of suspicion will vary with the facts of the case which makes the burden to rebut this
suspicion more onerous
 e.g. high in Wintle b/c testator unversed in business and elderly
 e.g. high in Russell b/c beneficiary had prepared written instructions
- To remove this suspicion the propounder must satisfy the court that the testator knew and approved of the
contents of the will
o e.g. golden rule - have medical examiner corroborate the drafter in question (esp. if in hospital)
o e.g. solicitor should make good notes during interview, drafting process and reviews w/ client that
illustrate that he took the necessary inquiries to confirm knowledge and approval
o e.g. review will with testator in presence of witnesses
o testator need not know the exact amount of a residuary gift, but should have general knowledge of the
general value and magnitude of the gift (Wintle; Russell)
- If the suspicion is not removed, the propounder’s burden of proof to show knowledge and approval is undischarged
Harmes v Hinkson (1946) PC Lawyer w/ non-professional relationship drafts will and receives residual gift
= gift is valid
Facts: Hinkson (lawyer) was good friend of deceased for over 10 years but never had acted for him professionally.
Deceased became ill and while in hospital Hinkson attended on him with a “wills kit” for the purpose of making his will,
and ended up acting as his executor and residual beneficiary. Hinkson oversaw execution of will at hospital, with two
nurses as witnesses. At trial, most of the details of making the will came from Hinkson. The will was challenged by nextof-kin.
Issue: whether the testator had “knowledge and approval” of the contents of the will prepared by Hinkson
Application: where a party drafts a will, under which he takes a benefit, the court will be suspicious
- it is not coercion to urge upon a man who is dying the desirability to make a will – not undue influence
- Comments: once Hinkson knew that testator wanted to name him as executor and residual beneficiary, he should
have gotten another lawyer to draft the will (but note Russell) or follow the “golden rule”
Conclusion: will upheld
Wintle v Nye (1954) HL S drafts will for unsophisticated T and receives residual gift = gift is invalid
Facts: Nye (lawyer) drew a will for the testator and was appointed executor and residual beneficiary. The testatrix, an
elderly lady, unversed in business had no one to rely on except Nye and her family. A later codicil prepared by Nye
revoked legacies to various charities (resulting in > residual amounts for him). Testatrix did not have firm grasp on the
value of her estate or the size of the residue, despite a presentation on such by Nye. At trial, jury held that testatrix
knew and approved the contents of the will and codicil. Family appealed.
Issue: was there knowledge and approval?
Analysis: testator had little idea of the size of the benefit being conferred on Nye.
Held: will and codicil invalid - Nye could not prove knowledge and approval on BoP
Russell v Fraser (1980) BCCA Non-lawyer w/ bus rel. assists T in providing written instructions to S and
receives gift = invalid gift
Facts: Fraser, the manager of the deceased’s credit union, was the executor and residual beneficiary under a will
prepared by a lawyer. Fraser who only had a business relationship w/ the testator referred her to a lawyer to prepare
her will after agreeing to be her executor. But the testator asked Fraser to intervene by providing written instructions to
the lawyer. Fraser agreed and as he prepared and reviewed the instructions w/ the testator, he noted that she had not
dealt w/ the residue of her estate and made suggestions for distribution. Fraser jokingly suggested that she should leave
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him the residue, and the testator instructed him to do that. Fraser took the written instructions to the lawyer who
prepared the will. The testator also asked that if Fraser predeceased her, that his estate should get her residue. Fraser
was not present for the will’s execution. But the lawyer and 2 witnesses were present and the lawyer reviewed the
entire will w/ the testator. Testator made clear that Fraser was to receive residue b/c he showed attention while her
family had not. At trial, residue clause was struck out.
Issue: was there full knowledge and approval?
Analysis: testator did not fully appreciate what she was doing (i.e. wasn’t aware of approximate value of the residue of
her estate)
Higher onus: burden was more onerous because he had prepared the written instructions for the will and taken a
substantial benefit under it
Held: residue clause struck out
NOTE: solicitor must make the necessary inquiries so that if called upon he can show the testator fully appreciated the
effect of what she was doing when she made her will – no evidence of this here
***Onus of Proof
- From Vout v Hay)
Executor has the original burden of proof concerning:
1. Age
2. Formalities
3. Knowledge and approval of contents: The executor is assisted by a rebuttable presumption that the testator
knew and approved the contents if:
 The will was properly executed after being read to or by the testator and testator appeared to understand it
4. Capacity: Presumption is that testator had capacity
Challenger of the Will has the burden of raising suspicious circumstances or showing mental illness
-
The test is not that there is some evidence, but that “there is some evidence, which if accepted, would tend to
negative the knowledge and approval.
Mental illness creates a rebuttable that the Will is not valid - onus shifts to executor to rebut this preliminary
presumption of testamentary incapacity on the facts of each case.
If suspicious circumstances are shown, then the executor has the burden of proving actual knowledge and approval,
and capacity
Four Point Test for mental capacity (paraphrased):
1. The testator understands that he is making a will and that a will disposes of property upon his death
2. The testator must know the assets he disposes of, that is, he understands the nature and extent of his property
3. The testator understands and appreciates the claims to which he ought to give effect, that is, those who have an
appropriate claim upon his bounty
4. The testator must be free of delusions which may affect his decision
If the executor meets the burden, and the will is probated, the challenger to the will has the burden of showing:
-
Fraud
Undue influence
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***Suspicious Circumstances
The 3rd of 4 requirements of a valid will:
1. Testamentary capacity
2. Valid execution (i.e. compliance with Wills Act)
3. Knowledge and approval
4. Absence of undue influence or fraud
- Typically, more than one of the above is pleaded simultaneously when a will or specific gift is challenged - “suspicious
circumstances”
o e.g. Quaintance v Quaintance Estate (see below)
If suspicious circumstances are shown, then the executor has the burden of proving actual knowledge and approval,
and capacity
Suspicious circumstances relating to a Will may be raised by and as broadly defined as:
a. circumstances surrounding the preparation of the Will;
b. circumstances tending to call into question the capacity of the testator; or
c. circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud.38
Vout v Hay (1995) SCC  Established requirements for the onus of proof: Executor has the original burden of
proof concerning: 1. Age, 2. Formalities, 3. Knowledge and approval of contents, 4. Capacity (see above)
Facts: Vout sought to establish the invalidity of a will under which she was a beneficiary. Hay argued that the will was
invalid due to “suspicious circumstances”
Issues: was the will validly executed, was the deceased of testamentary capacity; was the deceased procured to execute
will by undue influence?
Held: will is valid
Mental Capacity: Sound Disposing Mind & Insane Delusions
- TEST: does the deceased have the capacity to comprehend the extent of the property being disposed of, and the
nature of the claims the testator is excluding? (Bank)
- Presumptions and onus:
o Mental illness creates a rebuttable presumption - strongest when natural affection and near relationships
are disregarded (Bank; Rampone)
o Onus shifts to propounder to rebut this preliminary presumption of testamentary incapacity on the facts of
each case.
o e.g. of testamentary incapacity - Re Estate of Bohrmann; Sharp and Bryson
o e.g. of testamentary capacity - Bank v Goodfellow; Royal Trust Co. v Rampone (p. 39)
- Alertness and consciousness
o Determine which of the 3 possible states of mind from which the validity of the will could be upheld, apply
(Parker):
 1) Was T capable of understanding what she was doing (i.e. could she recall whole transaction)?
 2) if not, was T capable of confirming accuracy of each clause in will if it was read to her?
 3) if not, would T be able to say words to the effect: “I have settled that business with my S. I reply
upon his having embodied it in proper words, and I accept the paper which is put before me as
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embodying it.
- Note: a solicitor should not undertake to prepare a will before assessing testamentary capacity (Hall v Bennett
Estate; Public Trustee v Gill)
 but solicitor may still be liable if a reasonable and prudent lawyer in their position would have
reached a dif conclusion re testamentary capacity
Bank v Goodfellow (1870) UK Mental illness creates rebuttable presumption of incapacity
Facts:
Testator was haunted by 2 delusions: (i) spirits, and (ii) that a deceased man was going to molest him.
Validity of will challenged
Issue:
Should mental unsoundness which is wholly unconnected w/testamentary disposition take away
testamentary capacity?
Rule:
Mental illness creates rebuttable presumption of incapacity
Application: - Testamentary capacity is the ability of the testator to comprehend the extent of the property being
disposed of, and the nature of the claims the testator is excluding
- Mental illness creates a rebuttable presumption (presumption is strongest when natural affection and
ties of near relationship have been disregarded).
Conclusion: Testamentary capacity met
Royal Trust Company v Rampone (1974) BCSC Example of successful rebuttal of the presumption of
incapacity due to mental illness
Facts:
2nd codicil challenges on basis of lack of “sound and disposing mind”. Testator had been declared
incapable of managing his own affairs by reason of mental infirmity arising from arteriosclerosis and an
order for an appointment of committee of his estate was made.
Issue:
Did the testator have testamentary capacity when he executed the codicil?
Conclusion: Testator had testamentary capacity and presumption of incapacity rebutted
Re The Estate of Bohrmann (1938) UK Presumption of incapacity not rebutted for one gift only
Facts:
Will of testator was attacked, in part, b/c he was a “paranoid psychopath” and thus deficient in human
affections and, in part, due to his delusions relating to London County Council.
Issue:
Did testator’s mental disorder prevent him from making valid testamentary dispositions?
Rule:
Application:
Conclusion: Will and 4 codicils upheld, except for one clause in 4th codicil dealing w/ London County Council b/c
testator suffered from delusional insanity that went to his testamentary capacity.
Sharp and Bryson v Adam and Adam (2006) Eng. CA Drafting a new will right before death and
disentitling daughters = incapacity
Facts:
Testator suffered from MS for 20 yrs and died in extreme physical debilitation (could not speak, read and
only communicated by blinking). He made will 5 yrs before his death, and left his estate to his daughters
in equal shares. Sharp and Bryson ran testator’s business and cared for him during last 10 years of his
life. 1 year prior to death, testator drew new will and left his entire estate in equal shares to Sharpe and
Bryson. Daughters successfully attacked the will on basic of lack of testamentary capacity, affirmed on
appeal. Sharpe and Bryson appealed.
Issue:
Did testator have testamentary capacity in making second will?
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Rule:
Application:
Conclusion:
Case turns on own facts - to leave assets to S and B was understandable, but to leave nothing to
daughters was not. Note golden rule (see above).
no testamentary capacity; appeal dismissed.
Quaintance v Quaintance (Estate), (2006) AB CA Proof that testator knew and appreciated what he was
doing is strong evidence toward overcoming the burden established by those attacking the will on the basis of
UI
Facts:
shortly before death, testator revoked will which left his estate to his issue in favour of a will that
provided that the residue to the daughter of his CL partner. Testator’s daughter challenged will for lack
of testamentary capacity and undue influence
Issue:
What are the tests for testamentary capacity and undue influence?
Rule:
Application: Proof that testator knew and appreciated what he was doing is strong evidence toward overcoming the
burden established by those attaching the will on the basis of UI.
Conclusion: There should be a trial of the UI issue.
Drafting and Taking Instructions
Parker v Felgate (UK, 1883)  3 possible states of mind from which the validity of the will could be upheld: 1.
Was T capable of understanding what she was doing (i.e. could she recall whole transaction)? 2.if not, was T
capable of confirming accuracy of each clause in will if it was read to her 3.if not, would T be able to say
words to the effect: “I have settled that business with my S. I reply upon his having embodied it in proper
words, and I accept the paper which is put before me as embodying it.” (Will was valid where T in coma and
roused only to ok someone else to sign will based on option #3)
Facts: testator gave instructions to her S for purposes of updating her will but, prior to execution fell into a coma from
which she could be roused. S appeared at hospital for the execution and the testator was roused and asked if she
wanted the will signed by another on her behalf; to which she answered “yes”.
Issue: was the will valid?
Rule: Review of 3 possible states of mind from which the validity of the will could be upheld:
1. was T capable of understanding what she was doing (i.e. could she recall whole transaction)?
2. if not, was T capable of confirming accuracy of each clause in will if it was read to her?
3. if not, would T be able to say words to the effect: “I have settled that business with my S. I reply upon his
having embodied it in proper words, and I accept the paper which is put before me as embodying it.”
Application: #3 applies in his case
Conclusion: yes, validity of will was upheld
Hall v Bennett Estate (2003) ON CA Don’t accept retainer if you suspect incapacity
Facts: S saw Bennett in hospital and received instructions for a will but did not prepare one b/c Bennett was unable to
decide how to distribute the residue and b/c S felt that Bennett would likely not be alert enough to review the will and
execute it.
Issue: was S negligent in not preparing B’s will and therefore in breach of his duty of care owed to Hall (an intended
beneficiary under the will)?
Rule: Don’t accept retainer if you suspect incapacity
Application:
o solicitor rightfully assessed testamentary capacity before undertaking to prepare will and entering into
retainer
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o
since there was no retainer, there was no proximity between S and prospective beneficiaries to impose a
duty of care
o but solicitor may still be liable if a reasonable and prudent lawyer in their position would have concluded
that the testator did have testamentary capacity.
o Note: See Solicitor’s common errors in Will preparation above
Held: No, S was not liable to prospective beneficiaries.
Public Trustee v Gill This case says that if there are some doubts as to capacity, go ahead and do the will
(remember that there is a presumption of capacity that is rebuttable)
Note: It would be impracticable to make it the duty of a lawyer to ascertain capacity in every case (need medical,
psychological, or other training).
- Lawyers can’t enquire with family/friends to determine if there is capacity
- Lawyers can get permission to enquire with family/friends; if they get permission, and determine that T lacks
capacity (e.g. from doctor), they should not do the will
Rule: This case says that if there are some doubts as to capacity, go ahead and do the will (remember that there is a
presumption of capacity that is rebuttable)
Other cases say if there is ANY DOUBT, do not write the will
- Common errors in these cases:
- If suspicious re: T’s capacity, get a doctor’s evaluation
- Take notes at the time of interview/drafting
- Look into suspicious circumstances (does one B get way more?)
- Remember the 3 states of mind from Parker
Undue Influence & Fraud
- Trigger: circumstances exist to suggest that the testator was unduly influenced to make certain gifts in a will
- Note: not related to capacity; can be fully competent but still be subject to undue influence
- Policy rationale: where a testator is unduly influenced, the will, or a specific provision therein, does not truly reflect
the voluntary wishes of the testator.
- Definition: undue influence involves a degree of influence which overwhelms, overpowers or dominates the testator
who is thereby “influenced” to provide a benefit (or abstain from providing a benefit: see Mayrand v Dussault) in
the will, or a provision therein, such that the will does not truly reflect a voluntary action on the part of the testator.
TEST:
- Central question is whether there is coercion (Wingrove)
o influence only amounts to coercion where influence is so excessive that leads a testator to make a will that
he has no desire to make
o having the power to unduly influence someone is insufficient - this power must be exercised (Craig)
o examples: violence; confinement; pressing an ill; feeble and weak person in their last hours or days of life;
someone who is so fatigued that they agree to do something for quietness sake
- But note if alleged influencer is a spouse, child or parent - allowed to exert some influence (see Craig)
Fraud vs. Undue Influence
- Fraud is a broader term
- Undue influence is a type of fraud
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-
GR: where a testator is influenced to make a will or provision in a will by fraud on the testator, the will or the
provision will be set aside where it can be shown that the will or provision would not have been made in the
absence of fraud
o Distinguish between innocent legatees and fraudulent legatees - where the testator knew the innocent
legatee personally and intended to benefit her personally, the gift must stay (Wilkinson)
o Note: evidence that a charity is fake does not satisfy test, but may be very persuasive for a court
Community Care and Assisted Living Act
- prohibits a licensee (caregiver) from persuading or inducing a resident or person in care to:
o make a will
o make a gift
o provide gifts to the licensee (or their spouse, relative or friend), or
o conduct their financial affairs for the benefit of a licensee (or their spouse, relative or friend)
18(3): A licensee must not do any of the following:
a. persuade or induce…a person in care or a resident to make or alter a will, make a gift, provide a benefit for
the licensee (spouse, relative, friend), OR conduct the financial affairs of the person in care for the benefit
of the licensee (spouse, or friend);
b. act under the authority of a power of attorney granted to the licensee by a person in care;
c.
d. act as a personal representative or committee of the estate of a person in care…
18(4): A provision in a will is void if it confers a benefit on licensee (spouse or friend) and the Public Guardian and
Trustee has not given written consent to it.
o
o
If you ignore prohibition and as result of your actions someone benefits, the action is void.
People caught by this statute: See Section 1 of the statute.
[BCLI Report: Discussion in Report on this issue – should there be general statutory provision which takes K law UI and
effect of special relationships and move it over to testamentary documents; they voted 3-3…so there was no
recommendation at all. When Bill 28 came down, in s.52 the government picked up on idea of moving concepts over: “If
person claims that a will or any provision of it result from another person (a) being in position for potential of
dependence of domination, and (b) using position to unduly influence the person AND establishes where potential for
domination present, the person seeking to defend will have onus of establishing they did not use that. Seems as though
they intended to create rebuttable presumption]
Wingrove Rule: When T is coerced into something that they do not wish to do, this is undue influence. And if
they could speak to what they did, they would say that they were forced to do it. Not enough to show that
someone has the power to unduly influence someone else; you must show that they exercised the power.
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Craig v Lamoureaux (PC, 1920)  Burden of proof stays with person alleging UI.  UI, in order to render will
void, must be influence which can be described to have caused the execution of a paper PRETENDING to
express a testator’s mind, but which really does not express his mind, but something else which he did not
really mean.  The relationship of marriage is one where it is, generally speaking, impossible to ascertain
how matters have stood in that regard (Spouse/parent/child expected to exert some influence, just not
undue)
Facts: H and his brother (a lawyer) were instrumental in preparing sick W’s will. Urgency arose due to the realization
that W’s property would not pass to H (as desired) in absence of a will due to their marriage K (Qc. law). 1st draft of will
left all of W’s property to H w/ discretion in H to give gifts to W’s family. 2nd draft had specific provisions requiring H to
benefit W’s family. W’s attempt to sign 2nd draft fails (due to feebleness and drugs) and she then executed the 1st will w/
a “mark” rather than wait for 2nd draft to be redone. W’s sister challenged will on basis of UI by H.
Issue: was H’s influence “undue”?
Analysis:
- While burden is on he who alleges it: “it was wrong to require the ‘righteousness’ of the transaction.”
- “There is no reason why a husband or parent, on whose part it is natural that he should do so, may not put his claims
before a wife or a child and ask for their recognition, provided the person making the will knows what is being
done.”
- Policy on Burden: “…a will, which merely regulates succession after death, is very different from a gift inter vivos,
which strips the donor of his property during his lifetime.”
- “It is not sufficient to establish a person has the power unduly to overbear the will of the testator. 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.”
Held: Appeal reversed. The husband did not have the burden alleged.
Ravynshyn v Drys (2007) BCCA Referred to Craig v Lamoureaux with approval  There is a distinction
between the burden for UI proof when dealing with an inter vivos gift (which strips T of property during their
lifetime) as opposed to a testamentary gifts (which establish succession when T has passed).  Counsel was
unable to point to any authority that burden shifts to beneficiary in circumstances when there is special
relationship – in wills context
Wilkinson v Joughin (Eng. 1866)  Distinguish btw fraud and innocent legatees - innocent may be ok 
Fraudulent misrepresentation serves as example where wills or specific bequests in Will can be held to be
void.
Facts: Adelaide misrepresented herself as a widow w/child (despite her husband still being alive) and married the
testator (marriage void, of course). Will leaves bequests to “my wife Adelaide” and to “my step-daughter Sarah”
Issue: are the gifts valid?
Held: bequest to Adelaide is void, but gift to child is valid.
Analysis: must distinguish between innocent beneficiaries and fraudulent legatees. Note: Sarah probably didn’t know
that her biological dad was alive; had she known, she likely would have been a party to the fraud and therefore
disentitled.
 If testator knew innocent legatee personally and intended to benefit her personally, the gift is valid
Conclusion: Sarah was an innocent legatee, and therefore entitled to her legacy.
8. Lawyer’s Duties and Responsibilities
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Duty to take instructions
 Review beneficiary names/ addresses, etc.
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
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If instructions do not come from T, do not ask leading questions; confirm details by asking specifically:
“how many children do you have,” not “you have 3 children, right?”
Duties to beneficiaries
Murphy v Lampier (1914) ON Lawyers must ensure capacity, lack of UI, that clients understand the effect
of their gifts, and that they know specifically what is being disposed of under the will, notwithstanding the
rest of their estate.
Facts:
T had written 4 previous wills, all with gifts to her husband. In her fifth will, she left everything equally to
her children, and wrote her husband out altogether.
Issue:
Did T have sufficient capacity and was the 5th will valid?
Rule:
We must ensure capacity, lack of UI, that clients understand the effect of their gifts, and that they know
specifically what is being disposed of under the will, notwithstanding the rest of their estate.
Application: - Instructions should be taken directly from T
- Para 57: You must go far enough to satisfy yourself, and the court, that the steps you took to satisfy
your duties as a lawyer.
Conclusion:
Turner v Rochon (1980) BCSC Where a will is admitted to probate in common form, and is later attacked
on the ground of lack of capacity, the onus of proof remains on the party propounding the will.
Chalmers v Uzelac 2004 BCCA BC case that approved Murphy v Lampier: the level of care that must be
taken with regard to capacity issues depends on the specific circumstances.
Facts:
T changed her will to reflect a change in residence. Her lawyer could not find his notes taken when the
will was drafted, and there was an allegation of capacity issues as a beneficiary.
Issue:
Did T have sufficient capacity and did her lawyer breach his DoC?
Rule:
The level of care that must be taken with regard to capacity issues depends on the specific circumstances.
Application: Justice Southin: apply Murphy, and notes that lawyers should do duties based on professional pride and
not just fear of legal retribution (getting sued).
Justice Paul: Said that the lawyer was not helpful, but consider
Conclusion:
Re Worrell (1969) Ont. Surrogate Ct. A solicitor must exercise care in drafting a will to ensure it accurately
reflects intentions of testator
Facts:
Solicitor drafting will made several poor judgements, including: leaving a substantial portion of the estate
of the testator to the person who consulted him (the beneficiary), drew the will with changes from the
original instructions of the testator without consulting the testator, and handed the will over to the
beneficiary that consulted him to have it executed.
Issue:
What is the extent of a solicitor’s duty in drafting a will?
Rule:
A solicitor must exercise care in drafting a will to ensure it accurately reflects intentions of testator
Application: - Solicitor should take instructions directly from the testator himself, rather than from 3rd parties,
particularly beneficiaries
- Where written instrument is given by a third party, the solicitor must satisfy himself thoroughly that
the instrument expresses the real testamentary intentions of a capable testator, prior to its execution
- A solicitor should not ask leading questions to an elderly testator in obtaining instructions for a will
- A solicitor should enquire as to the nature and extent of all the testator’s property in order to
properly advise the testator and test his competency
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-
Solicitor should keep full docket entries events related to drafting of will, particularly notes of the
testator’s intentions
Conclusion:
Whittingram v Crease & Co. (1978) BCSC Solicitors can owe a duty of care to an intended beneficiary under
a will
Facts:
Testator had 5 children. His will left practically all of his estate ($100K) to one of his sons, the Plf. The
will was prepared and executed by the Def-lawyer. The spouse of the P (sole beneficiary) signed the will
as a witness, but under s. 11 of the Wills Act, this made the gift to the beneficiary void. As a result, the
estate passed on intestacy, to be divided equally between the 5 children. P sued in negligence, claiming
damages the dif btw the amount he would have received under the will and the amount received on
intestacy.
Issue:
Was the D lawyer negligent in doing what he did knowing the relationship btw the beneficiary and the
person asked to witness the will?
Sub-issue: does a solicitor owe a duty of care to beneficiaries in tort?
Rule:
A solicitor can owe duty of care to an intended beneficiary under a will
Application: Decision (as per Atkins J.):
- A solicitor owes a contractual duty to a testator to use reasonable skill, care and diligence to see to
the execution and witnessing of the will to ensure that it is fully effective
- A solicitor owes a duty of care to an intended beneficiary under a will when drafting and preparing
the execution of the will
1. Solicitor possesses specialized skill
2. P relied on solicitor
3. Reasonably foreseeable that if solicitor negligently performed duty, P would suffer loss
(Hedley Byrne and Haig v Bamford)
Standard of care: Any lawyer who undertakes to supervise the execution of a will can reasonably be
expected to be familiar with all the comparatively simple provisions of the statute regulating the
execution of wills (incl. those setting out the law in relation to gifts to witnesses and to the spouses of
witnesses)
Comments: In assessing damages, Atkins reasoned that if the will had been valid, two of the children
would have made claims under what is now the Wills Variation Act, RSBC 1996 and each of them would
have been awarded 1/3 of the estate. Thus, P awarded different btw 1/3 and 1/5.
Conclusion: The solicitor had to pay damages
White v Jones 1895 HL There is a duty (public policy dictates) that the public should be able to rely on
lawyers to do their jobs.
Facts:
T fought with his daughters, wrote them out of his will, reconciled with his daughters, and then sought to
change his will. Due to lapse of time and other circumstances, the will was not re-drafted and T died
leaving nothing to his daughters.
Issue:
Did the solicitor owe the beneficiaries a DoC?
Rule:
There is a duty (public policy dictates) that the public should be able to rely on lawyers to do their jobs.
Red flags to watch for:
- Taking instructions from third parties
- Capacity issues (note: bereavement is a possible type of incapacity  case from chapter 6)
- Unequal treatment of ppl in the same category
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9. Variation of Wills: Wills Variation Act, Agreement, Contracts
There are two ways to vary a will:
1. Under the Wills Variation Act
2. By agreement
The Wills Variation Act in BC
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Historically, T could dispose of their property however they wanted; this was not absolute and was subject to some
claims
We are the only province in Canada where an independent, financially-secure adult child can make a claim
Other provinces limit variation claims to spouses and minor, dependent children
WVA in BC came into force in 1920
WVA is only a variation scheme, and does not apply to wills that have not been admitted to probate
There is no requirement in BC that a will be probated
General Overview
s. 1 – definitions
o “spouse” = married and CL spouses (“marriage like relationship for more than 2 years”), including samesex spouses
o Note: there is no definition of child (see McCrea)
s. 2 – Maintenance from estate  not automatic, but gives a right to apply
o Despite any law or statute to the contrary, if a T dies leaving a will that does not (in the court’s opinion)
make adequate provision for the proper maintenance and support of T’s spouse and children*, the court
may, in its discretion, order that the provision that it thinks “adequate, just and equitable in the
circumstances” be made out of T’s estate for the spouse and children.
o Requires action by or on behalf of the spouse / children* for court to consider the issue.
s. 3 – Time limit and service
o Action must be commenced within 6 months of the issuance of probate of the will in BC (probate is a
prerequisite)
 May be applied for even if probate is delayed for several years
 After 6 months, typically nothing can be done
 In Sun v Sun, the court allowed an amendment of pleadings to add a WVA challenge mid-trial
o The Executor of T’s estate must be served with writ of summons (stops running of LP), within 30 days of the end
of the 180 day limitation period
o Public Trustee and Guardian must be served with writ of summons if there are minor children or if spouse or
child of T is mentally disordered,
s. 4 – Representative action
o Wide net: as soon as anyone makes a claim under WVA, it opens the whole will to scrutiny
o Where action is commenced on behalf of a person, it may be treated by the court as an action on behalf of all
persons who might apply (as far as LP is concerned) – i.e. only takes one writ of summons to stop the 6-month
clock.
o Where land might be affected by action – plaintiff must register a certificate of pending litigation under Land
Titles Act against land sought to be affected by action within 10 days after the issue of the writ of summons.
s. 5 – Evidence
o Court may accept the evidence it considers proper of T’s reasons, so far as ascertainable, for making the
dispositions made or for not making adequate provision for spouse and children including any written statement
signed by T.
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o
Court must have regard to all circumstances from which an inference may reasonably be drawn about the
accuracy of any statement made by T.
s. 6 – Court may make order subject to conditions
o Court may attach such conditions to an order made under the Act that it thinks fit.
o “Clean hands”  Court may refuse to make an order in favour of a person whose character or conduct (in the
Court’s opinion) disentitles the person to the benefit of an order under the Act.
s. 7 – Lump sum of periodic payments
o Court can make an order for a lump sum, periodic or other payment (see Picketts, BCSC vs. BCCA – and reasons
in favour of lump sum – below)
s. 8 – Payments fall rateably on Estate
1. Unless otherwise stated, payment ordered is to fall rateably on the whole estate.
2. If authority of Court does not extend or cannot directly or indirectly be made to extend to the whole estate, (1)
applies to as much of the estate as is located in BC.
s. 14 – Court may cancel or vary an order
o Where periodic payments are ordered or where a lump sum is invested for some person, the Court may:
a. Inquire whether at any subsequent date the party benefited has become possessed of or entitled to provisions
for that person’s proper maintenance or support, and into the adequacy of those provisions; and
b. May vary or suspend the order or make another order that is just in the circumstances.
s. 15 – Appeal to BCCA
o A person who considers himself or herself prejudicially affected by an order made under the Act may appeal to
the Court of Appeal.
o Note: CA reviews the BCSC decision on a correctness standard and is thus free to come to its own determination
of what is “adequate, just and equitable” (e.g. Bridger, but see WESA)
***Who May Apply – Standing
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-
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Married spouses (definition in s. 1)
CL spouses – i.e. marriage-like relationship for more than 2 years (s. 1)
o Test: objective and subjective arms of test (Gostlin)
 objective factors: (Molodwoich v Penttinen)
 1. What were their shelter arrangements
 2. sexual and personal behaviour (*conjugal relations not determinative)
 3. Who did the domestic services/chores
 4. social activities/holding out
 5. financial arrangements (how financially independent)
 6. Their attitude/conduct towards children (mutual or from previous marriages)
 7. How were they viewed by the community
 subjective factors: (Gostlin) - note: may be better for “modern marriages”
 Did they refer to one another as husband and wife
 Did they vacation together
 intentions of the parties to live as married couple, including what obligations they would
have felt to each other if one had been physically or mentally disabled during course of
rel (evidence of commitment)
Note Estate Administration Act requires 2 years of co-habitation immediately prior to T’s death, while the WVA only
requires 2 years of co-habitation, with no requirement as to when this was.
 FRA says that a triggering event (separation agreement, divorce order, etc.) or 2 years living apart severs
a marriage
 For common law rel, if one or both persons terminate the relationship, they will no longer be spouses
Children, includes natural or adopted children, but excludes step-children (McCrea)
 If T had a child that was adopted by a third party, they are no longer a child under WVA
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 Children who are proven by DNA evidence not to be related to T
First Nations Governments
 No case law in this area, but FN Govts can apply
-
Note: you can waive the right to notice
McCrea v Barrett (2004) BCSC Step-children do not have standing under the WVA
Facts: T did not provide for common law spouse, CM, or stepchild, KM, in his will [although it did provide for “all my
children”] so CM on her behalf and on behalf of KM sought a declaration under the Wills Variation Act (“WVA”) that
she and KM were entitled to claim a remedy under the WVA. Application for a declaration was brought procedurally
under Rule 18A – this was not a trial under the WVA provisions.
Issue: were T and CM in a “marriage-like” relationship for purposes of the WVA; and was KM a “child” for purposes of
the WVA.
Held:
a) Issue of relationship of T and CM to be determined at trial when evidence of witnesses can be assessed by the
trier of fact.
b) Issue of whether KM was a “child” for purposes of the WVA was decided against KM on the basis that
stepchildren are not entitled to claim under the WVA.
Analysis:
a) WVA allows for children of the testator to seek relief under the Act but the term “child” or “children” under
the WVA does not include the stepchildren of the T (i.e., a child who has a relationship with the T but is
neither the natural or adopted child of the T)
b) The exclusion of a stepchild from the definition of “child” under the interpretation of that term as used in the
WVA is not discriminatory under the Canadian Charter of Rights and Freedoms.
***The Court’s Discretion
GR (as per Tataryn):
- s. 2 of WVA imposes a duty on a T to adequately provide for the proper maintenance and support of a surviving
spouse and children.
- If T fails to discharge this duty, a court may (in its discretion) order for the claimant the maintenance from the estate
that it considers “adequate, just and equitable in the circumstances”
- In exercising this discretion, the court must balance the two interests protected by the WVA, namely, (1) testator
autonomy, and (2) the right of spouse and children to receive an “adequate, just and equitable” amount of
maintenance (Waldman)
-
To determine what is “adequate, just and equitable” the court will consider:
o Legal obligations – what the law would impose on a person during his or her life were the question of
provision for the claimant to arise – it is the minimum level of what is “adequate, just and equitable”
(Picketts; Glanville); and
 Spouses  maintenance and property allocations owing to a spouse under family law (i.e.
Divorce Act; FRA; constructive trusts if CL) – consider:
 Length of marriage/relationship (a brief marriage/rel has more limited obligations)
 A “marriage of convenience” is not disentitled
 Spouse’s contributions to family assets (was property acquired prior to or during the
marriage  usually applies to 2nd marriages)
 Was property inherited?
 Factors to negate entitlement (i.e. incompetence?)
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

•
Dependent children
Independent children  avoid unjust enrichment where children who have made contributions
to the estate
o Moral obligations – society’s reasonable expectations of what a judicious person would do in the
circumstances, by reference to contemporary community standards (Waldman)
 No clear legal standard (Tataryn)
 Spouse and dependent children - consider length of relationship, contributions, &
 the size of the estate,
 whether both spouses intended it to be used to provide for their old age
 whether surviving spouse cared for T in his/her declining years (Bridger)
 wishes or promises of T (Pickett)
 means and needs of spouse (Pickett)
 Independent children  more tenuous, but look to size of the estate, wishes of T, means and
needs of children (Pickett); estrangement, disability (Doucette)
 BUT if a parent has a valid and rational reason to disinherit, the moral obligation will be
overborne (Doucette)
If T has provided for his/her spouse and children within the range of what is considered “adequate, just and
equitable”, such a provision will not be disturbed. However, if the provision falls below this range, the court shall
make an order (Picketts; Crerar Estate; Lee Estate; Walman v. Blumes!!!!!)
******Cases Relating to Spouses
Tataryn v Tataryn (1994) SCC  Followed Walker v McDermid, and said that the WVA confers broad power
on court to make orders that are just in circumstances of each case and that conform to contemporary
community standards (a sliding scale which evolves with society).  The court has to have regard to
testator’s legal and moral obligations in deciding whether to make an award.  Legal obligations take
priority over moral – so s surviving spouse has priority over independent adult children.
Facts:
- T’s will left a life estate in matrimonial home to spouse, M, with a gift over to son, E, to the exclusion of his other
son, J, whom he disliked.
- E was trustee of trust for spouse (capital and interest could be used for support) with balance to E on his mother’s
death.
- T’s will explained the reasons for his distribution: his dislike for J and his fear that M would share estate with J if
amounts were left to her.
- J and M brought an application under the WVA and the trial judge’s decision was to make minor changes to the will
including an immediate gift to J and E of $10K.
J and M appealed, but Court of Appeal upheld trial judge’s decision although it clarified a couple of issues relating to
E’s trusteeship.
- M appealed to the SCC.
Issue: Whether courts below erred in their interpretation of the WVA s. 2 – what considerations should govern a court
faced with an application under this section of the WVA.
Rule: Followed Walker v McDermid, and said that the court should consider contemporary standards (a sliding scale
which evolves with society)
Analysis:
- Legal obligations outweigh moral obligations
 Consider: Divorce Act, Family Relations Act
- Legal obligations to a minor child are time-limited (same as child support)
- Financially-independent adult children have a lesser moral claim than spouses/minor children
- Range: do not disturb T’s wished if within the “adequate, just and equitable” range
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Conclusion:
1. “Legal claims” entitle M to at least half the estate.
2. “Moral claims” entitle M to the funds set aside for her in old age indicate that an “adequate, just and equitable”
provision for her requires giving her the bulk of the estate.
3. Moral claims of sons, J and E were satisfied with the $10K awarded at trial together with a residuary interest in
a portion of the property left after M’s death (1/3 to J and 2/3 to E).
Bridger v Bridger Estate (2006) BCCA Followed Tataryn; no legal obligation to independent, adult
children, and no legal obligation for maintenance for a surviving spouse (does not mean there are no legal
obligations whatsoever to a surviving spouse  e.g. division of assets) Moral obligations must be
considered, and may overrule what would otherwise be an adequate division of assets according to the
relevant legal obligations (increased when one spouse cares for the other in their declining years)  Need is
not the only factor in determining obligations  The future devolution of assets is not a factor in deciding
factor as to whether a spouse inherits
Facts:
-
-
-
Appeal by Mr. Bridger’s (i.e., T’s) three adult daughters from his first marriage from a wills variation order – where trial judge made an order
providing for T’s second wife, Mrs. Bridger, with 25% of net estate of $300K and $125K from proceeds from revenue properties.
The Bridgers had made wills in 1981 which recognized that this was their second marriage and it appears that each intended to take care of
their respective children from their first marriages and that neither would attempt to benefit from other’s estate.
Trial judge approached the will variation issues by first considering the positions of Mr. and Mrs. Bridger if they had separated immediately
before his death (legal obligations). Following T’s death Mrs. Bridger obtained all proceeds from sale of various properties less tax ($400k).
Judge concluded that need was not a factor to be considered in the apportionment of assets. He found that each had adequate pensions and
money to invest. He concluded that had the two separated Mrs. Bridger would have had little or no entitlement to receive spousal support.
He also concluded that need was not a factor in the claims from the T’s daughters.
After finding that there was no financial need on either side the trial judge turned to T’s moral obligations and concluded with respect to Mrs.
Bridger, society’s reasonable expectations with reference to contemporary community standards are that the T would make additional
provision (over an above whatever minimum legal property and support obligation lay upon him) for his wife in his will.
Judge found that there was no doubt that T had moral obligations to daughters as well. T recognized this in his will and judge held that no
order varying T’s will should seriously frustrate that obligation.
Bearing in mind that duties to spouses outweigh obligations to independent grown children and that Mrs. Bridger had already received more
than half of the couple’s combined assets and that T’s estate was relatively small, the judge concluded that “just, adequate, and equitable”
provision for Mrs. Bridger would be 25% of T’s estate with daughters sharing the remaining 75% equally between them.
Issue: Did trial judge consider all the relevant factors – legal and moral duties of T – when considering T’s will and a WVA
application?
Held:
- Trial judge balanced the competing moral duties of T to his wife and to his children as the WVA requires. In so doing
he did not fail to give adequate weight to any relevant factors and it was not unfair to allocate all of the proceeds of
the real estate and 25% of balance of estate to his wife on the facts of the case.
- The fact that Mrs. Bridger would benefit her sons with assets from T’s estate arising from the variation order was
treated as irrelevant by the trial judge. That was a factor that arose due to Mrs. Bridger living frugally; it was her
choice and beyond the purview of the Act.
Note: Just because a spouse will not use the funds from an inheritance, it does not mean they are not entitled to them.
(2011 BCCA case)
Saugestad v Saugestad (2008) BCCA  Moral obligations to children from a previous marriage can outweigh
obligations to a second spouse (in some cases)
Facts:
T died leaving everything to his two adult, independent children, and nothing (other than cars, artwork,
and other miscellaneous gifts) to his widowed second spouse. He also left his spouse the condo where
they lived, but which he paid for exclusively, and ½ interests in 2 other income properties. His widow
seeks a variation under the WVA, to fulfil T’s legal and moral obligations to her.
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Issue:
Rule:
Application:
Conclusion:
Is T’s second spouse entitled to a variation under the WVA?
The TJ considered the following factors
- T’s first wife left her estate to T with the expectation that it would devolve to their sons, not T’s
second wife.
- T had paid for his children’s education, and upbringing to a high standard, and that they had
expectations to receive his property including condos which they had the use of and shares in T’s
business.
- T had the discretion to provide for his second spouse within a range that is “adequate and proper”
and the amounts given should not be disturbed unless they are outside of that range.
- The provisions for T’s sons are not exceedingly high given the cost of living they face in Vancouver
- T’s second spouse received about $50k more than she would have under a division of marital assets
as per the Family Relations Act
- She also received $1350 per month from his Japanese pension and $270 per month from CPP;
enough to sustain the lifestyle to which she was accustomed and provide financial security
CA decided that A should get the absolute interest of T’s half-interest in an investment property, and
didn’t disturb the TJ’s decision that she could keep amounts taken from the estate prior to trial.
Picketts v Hall Estate (2007) BCSC  The legal claim of a CL spouse is limited to the support claims she would
have had if the couple had separated  The moral claims of independent, adult children do not necessarily
outweigh the claims of a second, CL spouse
Facts: T died at age 96 (after lengthy illness) and had lived lovingly in a common law relationship for 21 years with P.
There had been discussions of marriage but it never happened but T promised to “take care” of P. P had dedicated
herself to T’s care and not allowed him to be placed in a nursing home. T’s estate was worth $18 million. P made a claim
under WVA – it was conceded that T had not made adequate provision in his will for P
Issue: What provision should have been made in T’s will for P?
Held: T’s will varied to provide a lump sum to update P’s home ($400K) plus $175K per annum of maintenance and
support and additional funds (when and if necessary) for nursing support of P in her old age.
Analysis:
- it is not the function of the Court to remake the wills of Ts; it is the duty of the Court to implement the T’s
dispositions except insofar as those dispositions fail to accord with the requirements of the WVA (Crerar Estate)
- the legal obligation defines the minimum acceptable level of what is adequate, just and equitable (Glanville)
- Legal obligations - under the Family Relations Act, P had no right to a share of T’s property, unless she could make
out a claim of constructive trust and unjust enrichment, but she would have been entitled to support and
maintenance – in fact, a substantial amount due to the length of their relationship.
- Moral Obligation – considered more important given the 21 year relationship; the fact that P had been
supplementing the family’s monthly allowance for many years by dipping into her own savings (questionable); her
dedicated care of T during his lengthy illness; T’s sons would still benefit
i) The moral duty side of Tataryn formula is best served by a regime in which P is secure in the enjoyment of
the standard of living she enjoyed while T was alive; a regime in which she need not worry about her
financial position for the rest of her life.
ii) This is best secured by assuring P a proper annual income for life. Periodic, rather than lump sum payments
also best reflect T’s wishes and honour his choice of the proper way to “take care” of P.
- P was entitled to testamentary autonomy (should be able to devolve benefits from T’s estates at her discretion)
- P didn’t need an allowance; should be able to manage her own life
Specific Considerations for Spousal Support
1. Adultery is not a bar to relief
2. Commencing divorce proceedings is also not a bar to relief  still legally married
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3. Desertion does disentitle an applicant to relief
4. Separation agreements/pre-nuptial agreements are also not a bar to relief; can be challenged in some cases
***Cases Relating to Children
-
“Adequate, just and reasonable” consideration is always considered
Legal obligations considered before moral obligations
No rule that children must take equally
Claims of a dependent child outweigh claims of a spouse, unless the spouse is the parent of the child
Generally, adult, independent children are not owed any legal obligation
Specific Considerations for Support for Children
- Estrangement: goes both ways; can argue that lack of visitation disentitles child or that they were deprived of the
love/affection of T and therefore should get a bigger share
 Disabled children likely will not be disentitled even where they are estranged
 Parents’ abandonment does not disentitle a child
 Foster kids likely entitled to a larger portion of the estate (reflects personal challenges)
 Estrangement of children due to a second spouse does not disentitle them
- Misconduct on the part of the child (children that are criminals, involved in drugs, spendthrift, etc.)
 Belligerence (violence) towards parents can disentitle
 Verbal abuse can disentitle
 Living in a CL relationship cannot disentitle
 Bearing a child out of wedlock and refusing to adopt out the baby will not disentitle
 Being “weak-willed” and “of poor character” will not disentitle
 Allegedly stealing (unproved) will not disentitle
***Cases relating to anyone
General Considerations for All Claims (spousal, children, etc)
1. The date for the claim: date of T’s death is to be used to determine validity of a gift
 Rationale: this is the last chance T would have had to make a proper will
2. The size of the estate (started in Walker, and carries on through Tataryn, etc.)
 The larger the estate, the higher the moral obligation owed to spouse/children
 Will litigation consume a large % of the value of the estate?
 How many beneficiaries there are: smaller estates = greater legal obligations
 Even if a dependent child cannot show a strong or any legal claim, if the estate is large, they will likely have a
moral claim and will receive some sort of benefit (no known cases of disinheritance for large estates)
3. The date to value the estate: A: on the date of T’s death
 When handing out gifts/assets from the estate, courts tend to use the value at the time of trial
4. The standard of living test:
 Not just the bare necessity to keep you alive; instead, is the standard of living to which the testator has
allowed the plaintiff to become accustomed.
 Also applies to the standard of living to which T should have made P accustomed
 The aspirations that are reasonable for a person with a given standard of living
5. Disabled applicants:
 May be entitled to more, even where they are disinherited by T (greater need)
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
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6.
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Simply not working does not mean a B is disabled
How does this apply to disabled children being supported by the government?
 No definite answer yet; consider policy as giving money to government-supported disabled children would
not increase their standard of living (unless funneled through a trust), but merely change who provides
support.
 Case law has gone both ways: some decisions say family should support dependent children, but others
have said the opposite.
Circumstances of the claimants (usually the financial circumstances of the spouse/children)
Many children drop out of WVA motions to avoid disclosing full assets, etc.
Previously, financial need ruled moral claims
Now, where there are competing claims, financial need leads to a higher ranking in the moral obligation
category
o In Walker, the court even considered the child’s spouse’s income in determining need.
o A recent will awarded more $ to the biological child than the adopted child; the court equalized
payments as the adopted child had greater health and financial needs.
o Future financial needs may also be considered to give credence to a claim
Age and state of health of the claimant: where a spouse is older and ill, the court may be more liberal with gifts
(award more for greater need or less for reduced life expectancy)
The claimants dependants (usually a B with 7 children gets more than a B with 1 child)
Whether the surviving spouse has children, and whether those children will need a share of the estate  second
marriage consideration
Future circumstances such as more children being born
Children supporting grandchildren (e.g. post-secondary education support)
Who is providing the family support (old case law said female breadwinners should get more)
Any other inheritances that may be expected (e.g. B marries into a wealthy family and expects future
inheritances)
Gifts by T to the spouse or children outside of the will
Note: can completely circumvent WVA with inter vivos dispositions, as long as you don’t flout the Fraudulent
Conveyances Act
E.g. Father gave inter vivos gifts of everything to his sons, and his daughters received all of the estate under the
WVA
Where children are Bs of life insurance, the spouse is likely to get a much larger portion of the estate
However, where a child has always been supported by T, they have a continued expectation of ongoing support
The court will also consider the beneficiary’s contributions to the estate; greater contributions = greater share
Change in circumstances
Considers change leading up to date of trial
Inflation, possibility of death, future loss of income, etc.
Re Berger: the court needs to proceed on the basis that ladies of a certain group may live very long lives (90s);
life expectancy is always considered.
Marriage to a wealthy spouse before trial of a WVA claim
Competing claimants
E.g. T left $1,000,000 to his church and $1,000 to his children; was varied to give 50/50 division
A substantial portion to brothers/sisters/nieces/nephews; not competing claims as there is no duties to these
beneficiaries, so the widow’s share was increased.
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Re Berger: T left a large portion of estate to a close nephew, but this was varied as the nephew was a “stranger”
to the estate as far as the WVA was considered
Daughters successfully claimed a greater share than grandchildren (???)
In (???) a gift to a grandson who was close to T was enforced as he was closer than T’s daughter
Testamentary Intentions
If T lists reasons for gifts, the court is more likely to uphold their gifts even where they are otherwise
questionable
T should include a WVA declaration and may also specify reasons with gift clauses in the actual will
Reasons must be valid and rational (connection to disinheritance/smaller gift and the facts)
The effect of taxes
Inter vivos gifts and dispositions may affect the net value of the estate necessitating variation
Contrary to public policy
Disinheriting children who challenge a will is contrary to public policy
Cultural traditions
Tradition of leaving everything to sons rather than daughters not justified (except case where B sons became
care-takers/providers for their sisters)
Tradition of leaving nothing to a homosexual child not justified
General Notes:
- If estate is less than $200k, the spouse will take it all
- If T has left unequal gifts to children, you may get a variation but the scheme may not change (e.g. oldest gets most)
- Unless it’s a very large estate, independent adult children rarely succeed
- Minor children almost always succeed
- Spouses almost always succeed
- Look first to legal and then moral claims
- No greater weight to spouse’s legal claim than a child’s, but in family law, children’s claims come first
- Moral claims of adult independent children are further down the scale than those of dependent children (depends
on estate value)
 Disability in an adult child increases duty
 Expectation of an adult child increases duty
 Financial difficulty (present and future)
 Size of the estate
 Valid and rational reasons to negate moral obligation may validate disinheritance (must be true and
connected) but legal obligation cannot be negated.
 Needs and maintenance no longer the main test but is still a consideration.
Interesting Cases (EXAM)
- Wife had independent assets of $4M, life estate of home, and a pre-nuptial agreement barring her from anything
under the estate. No legal obligations; only moral obligations to wife (which was fully discharged) and children (who
were taken care of under the will)
- Couple in mid-60s married but lived separately and signed pre-nups to prevent taking from each other. He died and
left everything ($215k) to his children, but she argued that her own assets would be insufficient for the rest of her
lifetime so she should get his $. The court said he owed her no moral duty as she did not contribute to his estate,
and his legal obligation to her was fully discharged under the pre-nup.
120
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T gets married in 1939, goes to war, and his wife has his baby while she’s gone. He is gone for 10 years, and when he
returns, she accuses him of cheating and makes him move out. They divorce and he remarries and has 2 children
with new wife and dies in 1983. His $81k estate came from $40k of his 2nd wife’s estate and his own assets. He left
everything to kids from 2nd marriage and nothing to daughter from 1st marriage. She sought variation as her husband
was ill and she had financial need. The court noted that he had a moral duty but that his 1st family had rejected him,
he had no relationship with 1st daughter, and many of the assets came from 2nd marriage. Also, since 2nd wife owed
no duty to daughter of 1st marriage, assets from her estate should not be given as such.
Exam Notes:
- All cases turn on the facts
- If there is complete or substantial disinheritance, consider allowable evidence as per section 5 of the WVA; this
allows almost anything as long as its proper
- Conduct and character of the applicant can be used here (not common): ongoing love and support, neglect,
abandonment, violence, etc. may be considered here.
Walman v Blumes, (2009) BCSC  Summary of considerations governing the competing principles in WMA
applications
Facts: T died leaving adult children from his first marriage and a spouse and minor children from his second marriage. T’s
will left nothing to his children and entire estate to second wife
Issue: On a WVA app, should T’s will be varied to provide maintenance and support to children (all)
Rule: T had a legal obligation to spouse and minor children, and Moral Ob to adult children.
Analysis:
- Obligations to second wife and children are of higher degree than moral obligation to adult children, whom T had
already assisted growing up (schooling, housing, etc)
Summary of considerations governing the competing principles in WMA applications:
1. Main aim of WVA is the adequate, just and equitable provision for the spouses and children of the T
2. The other interest protected by the WVA is testamentary autonomy. Such freedom to dispose of T’s property as
he or she sees fit is to be interfered with not lightly but only insofar as the statute requires
3. Test of what is “adequate and proper maintenance and support” under s.2 WVA is based on an objective
analysis:
a. Society’s reasonable expectations of what a judicious parent would do in similar circumstances by
reference to contemporary community standards – T’s own subjective view of having properly
provided for spouse or children is irrelevant.
4. The words “adequate” and “proper” can mean two different things depending on the size of the estate. A small
gift may be adequate but not proper if the estate is large.
5. Court must first consider legal obligations of T to the spouse or children and, second the moral obligations to the
spouse or children
6. Moral claim of independent adult child is more tenuous than the moral claim of a spouse or dependant adult
children. But if size of estate permits, some provision for adult independent children should be made
7. Examples of moral obligations: disability, assured expectations, implied expectations arising from large estate or
treatment of child during T’s life, present financial circumstances, probably future difficulties, size of estate,
other legitimate claims
8. Circumstances that will negate moral obligation – “valid and rational” reasons for disinheritance
9. “Needs test” not sole factor but consideration of needs of adult independent child is still relevant
Conclusion: $75,000 lump sum ordered to be paid from estate to each of the adult children claiming under WVA. Minor
children were permitted to negotiate settlement with their mother
121
McBride v Voth (2010) BCSC  Historically, need was more important, now, contributions to the estate and
inter vivos gifting are more important  More during T’s life may equal less under the will, but here,
continuous lifetime support = ongoing right to support after T’s death
Facts: T left everything to his spouse. He had 3 children, 1 of whom (Margot) lived with her parents for her whole life.
Wife left Margot a life interest in the house with the residue to the 3 children collectively (they were unaware of this).
Margot’s siblings wanted her to move out so they could sell the house for everyone’s benefit.
Issue: Were the other 2 kids adequately supported by their mother’s will?
Rule: Prima facie unequal treatment of children is not unfair
Application:
- The court considered Margot’s contributions to the family home and the care of her parents, and noted that all
other things considered, this should increase the strength of her moral claim.
- Whether Margot had an expectation to live there.
- They also considered whether there was any character or conduct that should disentitle the siblings to relief
(estrangement, neglect, etc.)
- Whether there were gifts outside the will to the other two.
- If Margot lived there forever, the other 2 may not live there and thus may never get their share.
- The brother and sister would only ever get a 3rd interest as Margot had the life interest and would get her 1/3 share
paid to her estate.
- None of the children got anything under their dad’s will (everything went to mom) and it was too late to challenge it
Conclusion: Margot’s contributions to the home were not sufficient to leave the disposition undisturbed; Margot got a
short-term stay and a larger share of the proceeds when the house was sold.
Wilcox BC  Opposite conclusion to McBride v Voth; daughter who had lived and supported her mother for
her whole life won a WVA claim to receive the entire estate based on her contributions.
***Property Available to Satisfy a Claim
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Only property under the will is able to satisfy a WVA claim
Property given outside of the will affects WVA eligibility (e.g. receiving life insurance $ disentitle B to receive
proceeds of the sale of the house)
Until a WVA claim is filed, beneficiaries cannot know what everyone else received outside of the will
Only assets in BC are subject to WVA claim
If bank accounts are in Canada, the funds may be transferred between provinces (easy for executor to transfer)
Note: probate fees are calculated based on where assets are held
Insurance policies with designated beneficiaries go right to the beneficiary (don’t put estate as beneficiary as
probate fees and WVA would apply)
Pension funds, government annuity payments, RRSPs and RRIFs also go outside the will (they will be considered by
the court but not affected by any orders made)
BCLI, CLI,
Murdo v Nitting (2006) BCSC  Trusts are a valid tool to avoid WVA claims and the application of probate
fees  Assets must pass through a will for the purpose of charging probate fees and for WVA purposes
Facts: T left everything to her daughter in trust, and nothing to her son. He said that this was to avoid a WVA claim, and
that he should have access to the assets to satisfy his claim.
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Issue: Is the son entitled to a gift, and can the assets in the trust be subjected to a WVA claim?
Rule: Trusts are a valid tool to avoid WVA claims and the application of probate fees.
 Assets must pass through a will for the purpose of charging probate fees.
Application: Leaving assets in a trust is a legitimate way to avoid the WVA and probate fees, and noted that a spouse or
child are not considered a creditor, so the Fraudulent Conveyances Act could net help him.
- This was also not invalid as a matter of public policy.
- The crown sought probate fees from the trust, but was denied as assets must pass through a will for the purpose of
charging probate fees.
Conclusion: the daughter got everything under the trust; no variation.
***Contractual Constraints and Agreements
Trigger: Where you are dealing with contractual restraints regarding how assets can be distributed
- e.g. privately held corporation with unanimous shareholder agreement (USA) as to how shares can be distributed.
General
- A unanimous shareholder agreement can put restrictions on bequests in a will (Harvey; Frye)
- ALWAYS check the USA or articles when dealing w/ a bequest of shares in a will
Two Main types:
1. Pre-nups, marriage agreements, and separation agreements – usually people subject to these agreements waive
all rights under WVA, Wills Act, WESA, etc.
 Waiving these rights is contrary to public policy, but may waive right to bring a claim (only helps where
no one else brings a claim, because as soon as there is a claim, anyone else is free to claim and all will be
considered).
 Even though waiving rights in contrary to public policy, these agreements have a lot of weight and will be
considered
2. Contractual restraints in the transferring of shares
 May be in the articles of the company or the shareholder’s agreement
 These are agreements that bind shareholders not to transfer the assets of the company
Harvey v Harvey (1979) BCCA  A unanimous shareholder agreement can put restrictions on bequests of
those shares by a will
Facts: mom and sons were only shareholders in company. Agreement said could only transfer between other
shareholders, unless none of them are willing to purchase. Mom transfers via will to grandson. Grandson’s dad (her son)
wants to purchase the shares.
Issue: Did the agreement prevent mom from transferring to her grandson, or was this ok?
Application: nit-picked wording  agreement did not prevent transfer but did prevent a 3rd party from registering the
shares.
Conclusion: Grandson’s lawyer suggested that the shares be transferred to the dad’s name but held in trust for the
grandson.
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Frye v Frye Estate (2008) ONCA  A unanimous shareholder agreement can put restrictions on bequests of
those shares by a will
Facts: The siblings were the shareholders of the company. T’s will transferred shares to his sister, but one of the siblings
challenged the transfer. SA said no shares could be transferred w/o the agreement of the board of directors.
Issue: Was this a valid transfer or was it prohibited by the shareholders’ agreement?
Rule: The shareholders’ agreement validly prohibited transfer of shares, including transfer under a will.
Application: T was bound by the shareholders’ agreement (could not transfer to his sister)
Conclusion: Sister could not take her brother’s share.
BCCA Case  Separation agreements cannot be used to contract out of the WVA.  To allow anyone to
contract out of the WVA would be contrary to the public policy behind it.
Facts: A separation agreement gave T’s wife half of the assets (they split in ’75 and he died in ’84). They had an
agreement that said she waived any right to his estate, but they never divorced. His will in ’79 left everything to his new
common-law spouse. When he died he had $336k, and the separated spouse brought a WVA claim
Issue: Was the separation agreement a bar to recovery under the WVA?
Rule: to allow anyone to contract out of the WVA would be contrary to the public policy behind it.
Application: Since T owed a moral duty to his separated spouse, she made a successful claim under the WVA
Conclusion: She got $50k
10. Intestate Succession
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Trigger: intestacy or partial intestacy (s. 96)
Rule: succession upon intestacy (complete or partial) is governed by the Estate Administration Act, and to a
lesser degree, the Public Guardian and Trustee Act and the Law and Equity Act
Estate Administration Act, R.S.B.C. 1996, c. 122
74 Time of distribution of intestate estate
(1) – subject to (2) and (3) - must wait at least 1 year before distributing the surplus (i.e., residue) from an
intestate estate (net amount after debts are paid)
(2) – Exception – court order for dependant who is entitled to share in surplus from estate
(3) – Exception – estates administered by Public Guardian and Trustee* (“PG&T”) – if PG&T is satisfied it will
not prejudice rights of creditors of intestate estate, discretion to PG&T to distribute surplus to anyone entitled
at any time
* The PG&T frequently administers intestacies in the role of Official Administrator - but is appointed as a last
resort if no one else comes forward (see s. 6 of Public Guardian and Trustee Act on p. 30).
1 Definitions
“intestate” or "person dying intestate" means a person owning property dying without a will;
"spouse" includes a common law spouse;
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"common law spouse" means either
(a) a person who is united to another person by a marriage that, although not a legal marriage, is valid
by common law, or
(b) a person who has lived and cohabited with another person in a marriage-like relationship, including
a marriage-like relationship between persons of the same gender, for a period of at least 2 years
immediately before the other person's death; (unique to the EAA, not the same as the WVA)
81
“issue” means includes all lineal descendants of the ancestor (i.e. not only children, but grandchildren,
great-grandchildren, etc…)
“estate” includes both real and personal property
- changed in 1921; pre-1921 real property was not included, but post-1921, real property is included)
Process for Distribution
83 Spouse but no issue - all surplus goes to spouse
84 Issue - subject to rights of spouse, if intestate dies leaving issue, surplus to be distributed “per stirpes” among
the issue (see s. 85)
“per stirpes” - means issue of a deceased person takes or inherits the share of an estate which their
immediate ancestor would have inherited, if living (note: share bypasses estate of immediate ancestor:
see Re Forgie)
s. 85(1) - “net value” means the value of an estate wherever located, both in and outside of BC, after payment
of any charges on it and debts, funeral expenses, expenses of administration and probate fees.
85 Spouse and issue
(3) if net value is $65K or less, entire estate goes to spouse
(4) & (5) if the net value is greater than $65K, spouse gets an initial $65K (aka “spouse preferential share”) and
residue is divided as follows:
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One child only: 1/2 goes to spouse (aka “ordinary spousal share”)
Children: 1/3 goes to spouse (aka “ordinary spousal share”)
(6) If child has died leaving issue who are alive at date of intestate’s death, spouse takes same share as if child
had been living at the date (i.e. half or one third). Child’s share – per sterpes
85.1 More than one spouse
For purposes of s. 85, if 2 or more are entitled as a spouse, they share the spousal share in the estate in the
portions determined by the court as the court considers just.
86 No spouse, no issue
(1) Estate goes to father and mother in equal shares if both are living
(2) If one parent is dead, estate goes to surviving parent.
125
(3) If both parents deceased, it goes to T`s siblings equally with representation (if sibling is deceased, their
children take)
(4)If no brothers or sisters, the nieces and nephews take per capita (it does not go down to issue of nieces or
nephews – section 88)
(5) If no spouse, no children, no grandchildren, nieces, nephews, etc, next of kin of equal degree take per capita
Table of Consanguinity is changing under WESA; if everyone there is deceased, it goes to the crown
87 No spouse, issue or parents
(1) Estate goes to brothers and sister in equal shares
(2) Children of deceased brother or sister take the share their parent would have received if alive but “further
representation must not be admitted” (per capita - i.e. stop and niece and nephew) (see Re Kishen Singh; Re
Forgie)
“representation” is the principle upon which issue of a deceased person take or inherit the share of an
estate which their immediate ancestor would have taken or inherited, if living – the taking or inheriting
per stirpes.
“per capita” method of division by a number of individuals, share and share alike with no reference to
their issue (i.e. no further representation). It is the anti-thesis of per stirpes.
88 No spouse, issue, parents, brothers or sisters
Estate goes to nephews and nieces in equal shares - no representation (i.e. per capita).
89 No spouse, issue, parents, brothers, sisters, nieces or nephews
Estate is distributed equally among the next of kin of equal degree of consanguinity to the estate - no
representation.
*See Table of Consanguinity  changed to Parentellic system under Part 2 Model Law Act
90 Kindred and half-blood
(1) Degrees of kindred are computed by counting upward from the intestate to the nearest common ancestor
and then downward to the relative.
(2) Kindred of the half-blood inherit equally with those of the whole blood in the same degree (see Re Kishen
Singh)
91 Posthumous births
Descendants and relatives of the intestate, conceived before the person’s death but born afterwards, inherit as
if they had been born in the lifetime of the intestate and had survived the intestate.
92 Advances to Children (the “Hotchpot Rule”)
(note: repealed in Model Law Act)
(1) – (4) If any child of a person who died wholly intestate has been advanced by the intestate by portion, the
portion must be “reckoned” as part of the estate distributable according to law and taken into account in
determining the child’s (and descendants’) entitlements on intestacy
126
(5) Onus of proving that a child has been maintained, educated or given money is on person so asserting it ,
unless there is a writing or acknowledgement
Note 1: Rebuttable presumption arises once there is proof that a child did receive an advancement w/no
logical explanation that it was not an advancement by portion , which then must be rebutted by child
who received advance (Re Evaschuk p. 31)
[Note 2: the longer the period between the advance of money and the intestacy, the harder it will be to
assert this rule]
“portion – an allotted part; a division in a distribution; a share of an estate or the like received by gift or
inheritance”
An advancement is neither a loan nor a gift, but a bestowment of property by a parent on a child on
condition that if the donee claims to share in the intestate estate of the donor, he shall bring in this
property for the purposes of equal distribution. [Widdifield on Executors Accounts 5th ed. 1967 p.182]
94 Estate undistributed by will (i.e. partial intestacy)
All the estate not disposed of by will must be distributed as if the testator had died intestate and had left no
other estate.
Old provisions allowed for different distribtution schemes
95 Abolition of dower and courtesy
96 Spousal home and furnishings
Subject to s. 98 (separation of spouses)
(2)(a) except where it would otherwise go to the spouse under this Part of the EAA+, the spousal home* goes to
those persons entitled to it, but they must hold it in trust for an estate for life of the surviving spouse*, or so
long as the surviving spouse wishes to retain the estate for life
*life estate has same incidents of life estate at CL, including net income to property if leased (Kwasnycki)
(2)(b) household furnishings* go to the surviving spouse
*Note definitions in s. 96 and note s. 97 dealing with contiguous land not incidental to spousal home.
+
Trigger: matrimonial house + spouse does not have 100% share + does not have to be sold to pay debts
or taxes (e.g. see Aho Estate)
98 Separation of spouse as bar to entitlement on intestacy
(1) Unless a court orders otherwise, in an intestacy, the surviving spouse takes no part of the deceased spouse’s
estate if the spouse:
(a) had, immediately before the death of one spouse, separated for one year or more with the intention
of living separate and apart; and
(b) had not during that period lived together with the intention of resuming cohabitation
127
(2) Surviving spouse, executor or administrator or any person interested in the estate may apply to court to
determine the matter*
*see Tuomi for rebuttable presumption (p. 32), but Law v. Tretiak for discretion where “strong moral
claim” exists (p. 33)
(3) Application under (2) must be made no later than 6 months after the date of the issue of letters of
administration of the deceased spouse’s estate
*Note changes to provision in Model Law Act ss. 1(2) and 19
Public Guardian and Trustee Act
The PG&T may
(a) act as an executor under a will or as an administrator of an estate
(b) act, either alone or jointly with another person, as a trustee if the PG&T is appointed as trustee,
(i) in a will, settlement or other instrument creating a trust
6
(ii) by a majority of the trust’s beneficiaries who have reached 19 years of age and are
otherwise capable of making the appointment, or
(iii) by a court, and
(c) act as attorney of a person in accordance with the terms of a power of attorney
Law and Equity Act
Child Status – re: no distinction for illegitimate children
(1) subject to the Adoption Act (see below) and the Family Relations Act, for all purposes of the law of B.C.
(a) a person is a child of his or her natural parents
61
(b) no distinction between children born in a marriage and children born outside a marriage (i.e.
abolishes concept of illegitimacy)
(2) this section applies to all statutes, regardless when enacted, and to any instrument made on or after April
17, 1985
Introduction
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Note: should tell clients not to distribute estates until they have received a clearance letter from the CRA regarding
taxes.
Administrators that distribute before this certificate may be personally liable for taxes owing
Administrators should receive the consent of all beneficiaries for expenses paid from the estate
Executors of intestate estates have no power until the courts provide this
Intestacy considers the net amount of the estate (after JTs, RRSPs, etc. that are already disposed of)
Note: debts are paid out before the net value of the estate is determined
Intestacy law began in 1680s England
128
Times
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Determine who can take under an intestacy based on T`s date of death
Partial intestacies are also determined on the date of death for B eligibility
Spouse
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Includes a common law spouse
Date of death is important, as cohabitation timing for spousal inheritance keeps changing
Anything before 1983 requires consideration of previous statutes (depends on what was in effect when T died)
In 2000, the term matrimonial home was changed to spousal home
***Common Law Spouse
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Until the Nov 2000 change to the EAA, a CL spouse could only apply to the court for support and maintenance
(section 76) and had to apply within 6 months of T`s death
Nov 1, 2000, the definition of spouse was amended to include CL spouses (case law says that amendments are not
retroactive), which included cohabitation and commitment type descriptions
BC was the first prov to include CL marriages under the EAA
Under the EAA, married and CL spouses are equal
Concealment of a spousal relationship is a substantial indicator that a relationship is not marriage like
Lack of legal capacity to marry is not a bar to a CL relationship
Financial dependence is not a factor to be a CL spouse, but it is a factor to be considered
Can have more than one spouse
***Separated Spouses
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If a spouse is separated before T`s death for at least a year, with the intention of being separated, they get nothing
The presumption of an intention to live separate and apart comes from spouses actually living separate and apart
for at least a year, but this is rebuttable
Note: adultery is not a bar to inheritance under intestacy
Kirkwood 2008 BC case Must cohabitate in order to be considered CL spouses
Claimant didn`t live with CL spouse; this was fatal to being considered a CL spouse
Re Mercer (1989)
The court held that the spouses were not separated as per s. 98(1) of the EAA, but even though she was a spouse, the
court ordered under s. 98(2) that the costs for the estate litigation be paid out of the estate, thereby reducing her share
of the estate.
129
Gosbjorn v Hadley (2008) SCC Separation of CL spouses for less than 1 year leads to disentitlement of the
surviving spouse if conduct or attitude demonstrates that either spouse thought the relationship was at an
end.
Facts: T and his wife married, then separated years later after having 2 kids. 1 year after the marriage ended, he had a
12 year CL relationship with Gosbjorn. His CL spouse and her minor daughter lived with him and 1.5 weeks before he
died, as he was difficult to deal with. She said in court that she had only left temporarily but intended to reconcile with
him.
Issue: Under what circumstances will the separation of common law spouses for less than one year result in
disentitlement of the survivor to the spousal share in the estate of the intestate? S.98.1 says that spouses who lived
apart for a year or more are separated.
Rule: The two definitions of spouse do not conflict; living together 2 years immediately prior meant immediately prior to
separation, and if the separation was 1 year or more, there would be no entitlement for the separated spouse.
Application: At the time of death of the intestate the parties had not ceased to live and cohabitate in a marriage-like
relationship in the sense that the common law relationship had ended. Hence, Ms. Gosbjorn was entitled to her share in
the deceased’s estate as the “surviving spouse”
Conclusion: Gosbjorn is a spouse and gets the spousal share
Legislation Summary
Section 98 EAA summary
- Separation must be pre-death
- It must be for at least a year
- They must not be living together with an intention to resume cohabitation
Issue
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No provision under EAA for money to be held in trust for a minor, so the PG&T takes the full share for the minor and
doles out the $ on proof of the minor reaching their 19th bday (section 75)
PG&T takes a monthly admin fee and 5%
Testators can contract out of the PG&T requirements (will can specify alternate arrangement)
Under the EAA, issue = all lineal descendants
Wills Act: issue is used but not defined (interpreted both; usually children and grand-children)
Construction: children + grandchildren (case law)
Re Kishen Singh (1957) BCSC  Example of application of ss. 87(2) and 90(2) EAA: half-blood inherit equally
to full-blood.
Issue: whether the children of the half-blood sister of the deceased are entitled to share in the intestate estate as their
mother would have taken if alive
Decision:
- s. 90(2) [half-blood inherit equally] is of general application to this Part of the EAA dealing w/ intestate succession
- as per s. 87(2), children take the share of the mother who was of the half-blood, but of the same degree as her
whole blood brothers and sisters
***Children outside Marriage
-
At CL, children outside of marriage had no claim on parents` estates, and parents could not claim against the child.
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-
Later, the child could claim on the mother and the mother on the child (deemed legitimate child of their mother
only)
The Charter amended this so that legitimate and illegitimate children are treated equally (parents can also claim
against their children)
***Adopted Children
-
Section 37 of the adoption act: an adopted child has no legal relationship with the natural parents but has one with
the adoptive parents as per the Family Relations Act
The date of the adoption order is the date of the severance of family ties
Adopted kids cannot inherit from natural parents and parents can’t take from children they give up for adoption
If a child is specifically named for a gift (e.g. to Billy Joe and not to a class of kids) disinherited by adoption
Likely no, but not sure as no case law
Adoption Act, RSBC 1996, c. 5, s. 37
37 Effect of the adoption order (restated in s. 4 of Model Law Act)
(1) When an adoption order is made:
(a) The child becomes the child of the adoptive parent
(b) The adoptive parent becomes the parent of the child; and
(c) The birth parents cease to have any parental rights or obligations with respect to the child, except
a birth parent who remains under (2) a parent jointly with the adoptive parent (i.e. “step birth
parents”)
*Thus, on intestacy, the adopted child cannot make a claim on the birth parents’ intestate estates
(exception: if interest vested prior to adoption: s. 37(4)).
(3) An adoption order for second or subsequent adoptions has the same effect on the child, on the new
adoptive parent and on the former adoptive parent as it does on the child, on the adoptive parent and on the
birth parents or parent under (1).
(5) Family relationships of one person to another are to be determined in accordance with this section unless
another statute specifically otherwise provides or distinguishes between persons related by birth and persons
related by adoption.
(6) Adoption order does not affect an interest in property or a right of the adopted child that vested in the
child before the date of the adoption order.
Clayton v Markolefas (2002) BCCA  Example of application of s. 37(1) EAA: Disinheritance from natural
parents becomes effective at date of adoption orders; if natural parent dies pre-adoption, the child is still
entitled to inherit from them.
Facts: Appellant was adopted by persons unrelated to her natural parents. Her natural father died intestate and she
sought a share of his estate in accordance with the intestacy rules.
Held: appeal dismissed
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Decision:
- While old Adoptions Act of 1920, preserved inheritance rights from natural parents, s. 37(5) of the current Adoption
Act provides that family relationships of one person to another are to be determined in accordance with s. 37
- the clear effect of s. 37(1) is that the adoptive child becomes the child of the adoptive parent and it follows that all
parental obligations fall upon the adoptive parents.
- “the adoptive parents are the parents and the adopted child is their issue”
***Step Children
-
If not adopted by the testator as a child, step children do not inherit
***Advancement
-
Recall hotchpot, as per s. 92 of EAA, any advances to children will be offset against their respective shares of the
estate of the deceased (if the amounts are similar)
S. 92(1) if a child of an intestate T has been given an advance, it will be deducted from their share (they will not have
to repay excess); onus of proving an advance is on the person asserting the claim (must show it’s not a loan or a gift)
Courts will consider the size of the payment (is it approx equal to what the child will receive); is it a large sum
Payments for debts are not an advancement (not actually a gift to the child)
Giving money to furnish a new house is an advancement
Lineal Ascendants and Collaterals
-
Ascendants are the family members above (parents)
Collaterals are the people to the side
Other than the spouse of the deceased, in order to take on intestacy, you must be somehow related by blood to the
Testator
Re Forgie (Man. KB, 1948)  Example of application of s. equivalent to s. 87 EAA  Widows of a deceased
sibling not mentioned in the EAA; children take the share of the deceased parent.
Issue: whether widow of the brother of the deceased is entitled to a portion of the intestate’s estate which her husband
would have received had he been alive
Decision: brother’s share of the intestate estate goes directly to his children and never forms part of his estate
the widow is not entitled to a share of the intestate’s estate by statute [s. 87 provides that it goes directly to the
children] or by her husband’s will [since it never passes through his estate]
Crown
-
If a relative is 5th degree or later, they are disentitled and the Crown gets their share
Under the Escheat Act, the land is returned as though it was Crown land
If land is has escheated to the Crown, you can claim it as “discovered” land
If land to which you had a moral or legal claim has escheated, you can claim its return from the Crown
Under the Unclaimed Property Act, a non-profit third-party organization maintains a database of all unclaimed
property, which heirs can search and claim.
After 5 years, unclaimed money goes into an unclaimed money fund, where it stays:
o For 5 years if it’s $1000 or less
o For 10 years if it’s more than $1000
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-
The Law Society maintains unclaimed trust funds, which are those that are unable to be paid to beneficiaries under
trusts and are therefore held by this central organization, having been sent to the LS by lawyers/trustees.
Distribution
-
If T dies intestate with no children but has a spouse only, the spouse(s) get everything
If there is more than one spouse, the court will determine how the spouses will share the estate:
If a spouse and children, the spouse is entitled to a preferential share
***Preferential Shares/Distributive Shares
-
-
s 85(2) of the Wills Act
S gets $65k and half of remainder (if there are children)
If there is a partial intestacy in BC, the intestate assets are distributed as though there is no estate under than the
intestate assets
 In other provinces, the spouse receives the preferential share less what they received under the will
 In BC, spouses of partially-intestate testators get more
Note: can contract out of statutory intestacy distributions with a pre-nup, but the court may only be persuaded, not
bound by such contracts.
Estate Administration Act
- If no spouse and only children, they take equally (s. 84)
- If no spouse, and no children, parents take equally (s. 85)
- Put in intestacy distribution provisions
***Other Rights
-
Spouse gets a LE in the residence and HF in the residence
Aho Estate v Kelly (1988) BCSC  Example of application of s. 96(2)(a) EAA: the life interest will only be
given to the spouse where possible (not where debts of the estate render this impossible)
Issue:
Whether a widow’s life estate in the matrimonial home (per the EAA) is monetarily valued upon the sale
of the home and distributed (net of liabilities) to widow in priority to the distribution of the residue
Rule:
S. 96(2)(a) creates in the surviving spouse a life estate in the matrimonial home.
- The trust created is determinable during the surviving spouse’s life if there is a need to sell the
matrimonial home to pay off the debts of the estate. Where this happens, the trust in favour of
the surviving spouse is terminated.
Application: Here, debt meant that the house had to be sold. The widow argued for the $ value of a LE, but the court
found that the statute listed debts as a precursor to providing a LE, she was only entitled to the
preferential spousal share and the distributive share.
Conclusion: Spouse got her preferential spousal share and the distributive share.
-
-
2 years after Aho Estate, the BCSC looked at a case where the widow rented the house as she had another place to
live, but T`s son sought an accounting to deduct her rental revenue from her share. The court held that a life estate
entitles the rights holder to rent a home and keep the income without being subject to an accounting. When the
house was sold, she got her preferential and distributive shares.
Household furnishings may not include specific collections; there was a case where T`s kids sought to get the T`s
guns collection, and the court distinguished this from the HF.
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Kwasnycki v Kwasnycki Estate (1990) BCSC  Example of interpretation of s. 96(2)(a) EAA: life estate
created for surviving spouse mirrored a life estate at CL (except it may be terminated to pay estate debts)
Facts: Wife had life interest as per EAA, remarried and then moved into new husband’s home. She leased the
matrimonial home to the deceased’s daughter and then demanded rent. The daughter refused to pay.
Issue: whether the widow is entitled to income from the lease of the matrimonial home while not occupied by her
personally
Decision:
- life estate created for the surviving spouse has all the incidents of a life estate at CL (except that it may be
terminated to pay estate debts)
- this includes entitlement to net income from the property if it is leased by the life tenant during the course of
his/her life interest in the land
Vak Estate v Dukalow (1994) ON  In a partial intestacy in multiple provinces, the trustee/executor collects
all property from all provinces then uses the highest preferential share for the spouse, and the distributive
scheme for the remainder based on T’s province of residence.
Facts: T died intestate with property in MB and ON. In MB the preferential spousal share is $50 and in ON its $75k; the
husband claimed both
Issue: How much does a spouse get from an intestate estate with property in multiple provinces?
Rule: In a partial intestacy in multiple provinces, the trustee/executor collects all property from all provinces, then uses
the highest preferential share for the spouse, and the distributive scheme for the remainder based on T’s province of
residence.
Conclusion: Husband got the $75k as per the ON statute, and 50% of the remainder as per the MB statute.
Austin v Girts (2007) BCCA It’s possible to have more than one spouse in BC
Facts: T separated from his 1st spouse with a separation agreement then lived with a CL spouse for the 6 years before his
death. On his death, the 1st spouse challenged the intestacy rules that would give everything to his CL spouse.
Issue: Who was T’s spouse when he died?
Rule: It’s possible to have more than one spouse in BC
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Table of Consanguinity
Collins v General Trust Corp (1925) ON  Purpose of 1 year delay in section 74 of EAA is to allow for the
claims of creditors to be known.
11. Aboriginal Succession - Robert Janes
Main Points:
- The rules are different
- Consider whether clients are status or band members
 The results of estate issues are very different as a result of the answers to these questions.
A. Why is Estate Planning for Indians Different?
Distinct Rules for Indian Persons
Constitution Act
- s. 91(24) – the federal parliament has legislative authority over “Indians, and lands reserved for Indians”.
- s. 35(1) – the existing aboriginal and treaty rights of the Ab. peoples of Canada are hereby recognized and
affirmed.
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Indian Act
- The Indian Act applies to wills made by Indians (as defined in the Indian Act) and to estates of deceased Indians
who ordinarily resided on reserve land. Relevant provisions of the IA are sections 42 – 52.
- INAC (“Indian &Northern Affairs Canada”) maintains that if someone is temporarily in hospital, that does not
mean they did not ordinarily reside on reserve.
- The Minister of INAC is given broad powers over testamentary matters and causes (ss. 42 and 43).
Certain sections inapplicable to Indians living off reserves:
4. (3) Sections 114 to 122 and, unless the Minister otherwise orders, sections 42 to 52 do not apply to or in respect of
any Indian who does not ordinarily reside on a reserve or on lands belonging to Her Majesty in right of Canada or a
province.
Grants, etc., of reserve lands void
28. (1) Subject to subsection (2), any deed, lease, contract, instrument, document or agreement of any kind, whether
written or oral, by which a band or a member of a band purports to permit a person other than a member of that band
to occupy or use a reserve or to reside or otherwise exercise any rights on a reserve is void.
Minister may issue permits
28. (2) The Minister may by permit in writing authorize any person for a period not exceeding one year, or with the
consent of the council of the band for any longer period, to occupy or use a reserve or to reside or otherwise exercise
rights on a reserve.
General provincial laws applicable to Indians
88. Subject to the terms of any treaty and any other Act of Parliament, all laws of general application from time to time
in force in any province are applicable to and in respect of Indians in the province, except to the extent that those laws
are inconsistent with this Act or the First Nations Fiscal and Statistical Management Act, or with any order, rule,
regulation or law of a band made under those Acts, and except to the extent that those provincial laws make provision
for any matter for which provision is made by or under those Acts.
Special Status of Reserve Lands
Indian Act
Restriction on mortgage, seizure, etc., of property on reserve
89. (1) Subject to this Act, the real and personal property of an Indian or a band situated on a reserve is not subject to
charge, pledge, mortgage, attachment, levy, seizure, distress or execution in favour or at the instance of any person
other than an Indian or a band.
Exception
(1.1) Notwithstanding subsection (1), a leasehold interest in designated lands is subject to charge, pledge, mortgage,
attachment, levy, seizure, distress and execution.
Conditional sales
(2) A person who sells to a band or a member of a band a chattel under an agreement whereby the right of property or
right of possession thereto remains wholly or in part in the seller may exercise his rights under the agreement
notwithstanding that the chattel is situated on a reserve.
Property deemed situated on reserve
90. (1) For the purposes of sections 87 and 89, personal property that was
a. purchased by Her Majesty with Indian moneys or moneys appropriated by Parliament for the use and
benefit of Indians or bands, or
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b. given to Indians or to a band under a treaty or agreement between a band and Her Majesty,
Shall be deemed always to be situated on a reserve
Restriction on transfer
(2) Every transaction purporting to pass title to any property that is by this section deemed to be situated on a reserve,
or any interest in such property, is void unless the transaction is entered into with the consent of the Minister or is
entered into between members of a band or between the band and a member thereof.
Certificates of Possession and Customary Rights on Reserve
Indian Act
Possession of lands in a reserve
20. (1) No Indian is lawfully in possession of land in a reserve unless, with the approval of the Minister, possession of the
land has been allotted to him by the council of the band.
Certificate of Possession
2) The Minister may issue to an Indian who is lawfully in possession of land in a reserve a certificate, to be called a
Certificate of Possession, as evidence of his right to possession of the land described therein.
Location tickets issued under previous legislation
3) For the purposes of this Act, any person who, on September 4, 1951, held a valid and subsisting Location Ticket
issued under The Indian Act, 1880, or any statute relating to the same subject-matter, shall be deemed to be
lawfully in possession of the land to which the location ticket relates and to hold a Certificate of Possession with
respect thereto.
Temporary possession
4) Where possession of land in a reserve has been allotted to an Indian by the council of the band, the Minister may, in
his discretion, withhold his approval and may authorize the Indian to occupy the land temporarily and may prescribe
the conditions as to use and settlement that are to be fulfilled by the Indian before the Minister approves of the
allotment.
Certificate of Occupation
5) Where the Minister withholds approval pursuant to subsection (4), he shall issue a Certificate of Occupation to the
Indian, and the Certificate entitles the Indian, or those claiming possession by devise or descent, to occupy the land
in respect of which it is issued for a period of two years from the date thereof.
Extension and approval
6) The Minister may extend the term of a Certificate of Occupation for a further period not exceeding two years, and
may, at the expiration of any period during which a Certificate of Occupation is in force
a. approve the allotment by the council of the band and issue a Certificate of Possession if in his opinion the
conditions as to use and settlement have been fulfilled; or
b. refuse approval of the allotment by the council of the band and declare the land in respect of which the
Certificate of Occupation was issued to be available for re-allotment by the council of the band.
Transfer of possession
24. An Indian who is lawfully in possession of lands in a reserve may transfer to the band or another member of the
band the right to possession of the land, but no transfer or agreement for the transfer of the right to possession of lands
in a reserve is effective until it is approved by the Minister.
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Tax Exemption
Indian Act
87. (1) Notwithstanding any other Act of Parliament or any Act of the legislature of a province, but subject to section 83
and section 5 of the First Nations Fiscal and Statistical Management Act, the following property is exempt from taxation:
a) the interest of an Indian or a band in reserve lands or surrendered lands; and
b) the personal property of an Indian or a band situated on a reserve.
2) No Indian or band is subject to taxation in respect of the ownership, occupation, possession or use of any property
mentioned in paragraph (1)(a) or (b) or is otherwise subject to taxation in respect of any such property.
3) No succession duty, inheritance tax or estate duty is payable on the death of any Indian in respect of any property
mentioned in paragraphs (1)(a) or (b) or the succession thereto if the property passes to an Indian, nor shall any
such property be taken into account in determining the duty payable under the Dominion Succession Duty Act,
chapter 89 of the Revised Statutes of Canada, 1952, or the tax payable under the Estate Tax Act, chapter E-9 of the
Revised Statutes of Canada, 1970, on or in respect of other property passing to an Indian.
Different Intestate Succession Rules (s. 50)
Indian Act
Non-resident of reserve
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.
Sale by superintendent
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 or
descendant, as the case may be.
Unsold lands revert to band
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.
Approval required
4) The purchaser of a right to possession or occupation of land 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.
Lecture Notes:
-
Basic problem: different rules apply on reserve
The word “Indian” has two different meanings in law: 1 is the constitutional meaning, and one is the statutory
meaning.
Step 1: ask client if they are an Indian within the meaning of the Indian Act
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

-
-
Anyone who has status under the Indian Act will have a status card
Note: there is the potential for a person to be covered under the Indian Act, and not have a status card
(if they are eligible to be registered under the Indian Act, but have not yet done so).  Ask whether
their parents have status
 The Indian Act primarily addresses the application of special rules to people who are status Indians
Step 2: ask whether they are a member of an Indian band
 This is critical: people can be Indians, and not belong to any band, or belong to a different band than
their parents.
 Ask: were you eligible to vote in the last band council election? (Easy way to find membership).
 There are specific tracts of land held for members of Indian Bands
o Constitutional Issue: These are Federal lands, and are covered under s. 91(24) of the
Constitution Act, and thus, Provincial laws that relate to land do not apply to reserve lands, and
the federal equivalents are sparse/incomplete.
o Registration Issues: the types of rights (bundle of sticks) to reserve lands are different; they are
statutorily defined, and are less than what a landowner would get with a fee simple (sections 20
and 24 of the Indian Act). Indian reserve land holders cannot rent or sell their property.
 There is a separate registry system to keep track of title for Reserve lands
 Status Indians on Reserve can rent their Reserve lands tax-free (e.g. the retail properties
in Duncan).
 Reserve lands are not subject to seizure (cannot be taken to satisfy judgment creditors),
but are thus difficult to mortgage.
Another critical difference between reserve and non-reserve lands for estate planning purposes is that the
intestacy rules are different:
 Intestate succession is governed by section 48 of the Indian Act, and differs from non-Indian intestacy
rules.
 Okanagan v : on reserve, when there is an intestacy and no heirs specified according to the Indian Act,
the land reverts to the Band.
B. Why is Estate Administration Different?
Role of Minister in Administering Estates
-
-
Main point: in an ordinary situation (non-Indian estate), the courts determine probate/construction issues, but
when dealing with an Aboriginal estate, it is the Minister of Aboriginal Affairs and Northern Development that
deals with an estate
Sections 44-47 of the Indian Act describe how the Minister’s office administrates Indian estates.
Exception to normal rules (big question mark): under s. 46(1)(c), one of the powers of the minister is to declare
the will void in whole or in part, if he determines that the will would create hardship for persons for whom the
testator was to provide (reduces the Wills Variation Act to one sentence)
 The test under the Wills Variation Act to modify a will to provide for dependents might be different
than that which is imposed under the Indian Act
 Case law administered under the Wills Variation Act may not be used as precedents (this is unclear).
 Discuss with clients whether they want to have a dispute decided under section 46(1)© of the Indian
Act or under the Wills Variation Act
Transfer to Supreme Court
-
You can apply to have an estate administration issue transferred to the BCSC
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-
Note: if you apply for probate in BCSC, you have to pay probate fees (not so when an estate is administered by
the Minister).
Role of Minister in Approving Transfers of Land
-
Note: every transfer of reserve land requires approval of the Minister.
The Minister has discretion, but this is not unqualified or unlimited
Issues Arising During Administration (Rent)
-
Rent for land bequeathed to non-members of a given band goes to the band
Cannot rent reserve land to those that don`t have the right to live on reserve
Sale of Land under Section 50
Sale by superintendent
50(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 or descendant, as the case may be.
Unsold lands revert to band
50(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.
Approval required
50(4) The purchaser of a right to possession or occupation of land 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.
-
-
-
A person who is not entitled to reside on a reserve, does not by devise or descent, acquire a right of possession
or occupation of land in that reserve
cannot inherit rights you are not already entitled to
Essentially, if you are not a member of a band, you cannot inherit land on a reserve.
If a testator tries to pass land on a reserve to a beneficiary who is not a member of the band, the land will be
sold at auction and the proceeds will go to whoever would next be entitled to the land (not the enumerated
beneficiary).
If the land is not sold at auction, the land will revert to the band and no compensation will be paid.
 Issue: how will the land be valued for auction?
o Offering land for sale to reserve members only limits the number of potential purchasers (most
bands range from 200-500 members, including kids, and many don’t have $ to purchase).
o Due to the limited number of potential purchasers, it may be difficult to obtain fair market value,
and land often goes for less than this.
o Solicitor liability issue: if you create a situation where a piece of land is sold for below market value,
you are exposed to liability and might be sued.
 Issue: When a family leaves land to several kids equally, some of whom are members of the band and some
of whom are not, the Department of Indian Affairs’ position is that the shares of the non-members are to
be sold
Creating an off-reserve market for on-reserve lands
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o
o
o
o
Section 58(3) of the Indian Act, allows the Minister to lease reserve lands for the benefit of the
beneficiaries of the land
E,g. The houses in Westbank (Kelowna) are on-reserve but are leased on 99 year leases with the full
value paid upfront (via a mortgage) and therefore allow for a valuation of on-reserve land that is similar
to off-reserve land.
Look at the SCC Musqueam case for an illustration of how reserve lands may be worth more or less than
off-reserve lands due to the additional rules that are applied.
Note: Section 4(3) of the Indian Act, which specifies that if an Indian is not a “resident on a reserve”
then all of the special rules related to estates do not apply
 The general thinking is that if you own a piece of land on reserve, the courts will find some way
to make it so that you are a resident on a reserve.
 A fairness issue would be created if band members could die off-reserve to allow their heirs to
succeed even if they are not band-members (the special rules would not apply).
C. Are There Tools to Address Special Issues?
Consideration of issues at time the Will is drafted
-
-
-
Most difficulties in Indian wills have flowed from the fact that the drafter of the will did not consider potential
consequences of certain heirs not having the right to live on reserve
 Always consider this factor.
Note: the prohibition on holding reserve lands is simply a prohibition under the Indian Act
 E.g. the testator has reserve lands being used for commercial purposes, and wants all of their kids to benefit
from the land.
 One way to deal with this is to put the land into a corporation and use a lease, and then sub-leases to allow
the rent from the sub-leases to be paid to beneficiaries who are not entitled to reside on reserve; the kids
who reside on reserve would get the primary lease payment, but the kids off-reserve could be shareholders
in the corporation and thus benefit from rent on the secondary leases.
 Be suspicious of your clients: they all lie
 Note: a Buckshee lease is one that has not been approved by the Minister, and is used to avoid the
formalities required by having a corporation (tax-filing, etc.), but the leases are essentially meaningless as
the band or the Minister can kick out the tenants at any time, and these leases do not provide a mechanism
of providing for heirs not living on-reserve.
 Ask: do you have a lease that has been approved by the Minister under section 58(3) of the Indian Act?
Note: another way to provide for beneficiaries that are mixed between on and off-reserve is to allocate separate
assets that are easily obtainable for them (land for on-reserve and cash for off-reserve).
Note: the statutory powers to partition land do not apply to reserve lands, therefore, co-owners (co-heirs) of a
piece of land cannot rely on a statute to determine how they will divvy up the land, so the land will not be used
unless all of the beneficiaries agree (creates veto and hold-out issues).
Ensuring Certificates of Possession are in Place
-
-
When advising clients re: disposition of reserve lands, consider whether they actually have the title/ownership
interests that they think they have.
 If your allotment has not been approved by the band council and the Minister, you have nothing!
 Many bands do everything regarding land allocation informally (based on history/tradition), but this is
problematic when there is a dispute as occupation does not lead to ownership.
Getting approval for a certificate of possession takes 1-5 years (requires detailed surveys, approval by the band
council, and approval by the understaffed Ministry of Aboriginal Affairs and Northern Development).
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Pre-Death Dispositions (s. 58(1)(b))
Uncultivated or unused lands
58. (1) Where land in a reserve is uncultivated or unused, the Minister may, with the consent of the council of the band,
(b) where the land is in the lawful possession of any individual, grant a lease of that land for agricultural or grazing
purposes or for any purpose that is for the benefit of the person in possession of the land; and
Distribution of proceeds
2) Out of the proceeds derived from the improvement or cultivation of lands pursuant to paragraph (1)(b), a
reasonable rent shall be paid to the individual in lawful possession of the lands or any part thereof and the
remainder of the proceeds shall be placed to the credit of the band, but if improvements are made on the lands
occupied by an individual, the Minister may deduct the value of the improvements from the rent payable to the
individual under this subsection.
The First Nations Land Management Act (the Land Code)
-
Allows bands to take control of reserve lands and create their own rules for estates and their own intestate
succession rules.
If a piece of reserve land is on a reserve under this Act, consider whether different rules apply
D. Case Law
Johnson v Pelkey 1997 BCSC The Minister has some discretion in whether or not to declare a will to be void,
but there is no room for exercising this discretion when there is clear evidence of UI, duress, or lack of
testamentary capacity
Facts:
T`s wife predeceased him, and in his 2nd will, he left the majority of his estate to one of his 9 surviving
children. His other children challenged the will on the basis of UI, lack of capacity, and because he didn`t
understand the value of his estate or the significance of his testamentary gifts.
Issue:
Did T have sufficient mental capacity to execute his 2nd will
Was T under UI when he executed his 2nd will
Rule:
The Minister has some discretion in whether or not to declare a will to be void, but there is no room for
exercising this discretion when there is clear evidence of UI, duress, or lack of testamentary capacity
Application: Based on the medical evidence, the court decided that T lacked testamentary capacity and that therefore
the 2nd will was void.
T`s solicitor did not explain to T that his second will revoked the first, and T did not seem to
independently understand this.
The TJ also decided that T was under UI by his son Albert, who was also his caregiver, and the major
beneficiary of his 2nd will, as he was completely dependent on Albert and therefore vulnerable to the risk
of UI.
Conclusion: The will was executed under duress of T and was therefore wholly void.
Nicola Band et al v. Trans-Can. Displays et al (2000) BCSC  An individual can gain an interest in the land
only under the procedures described in sections 20-29 of the Indian Act.  A band member could only gain
lawful interest in land through a proper band council resolution and the approval of the Minister of Indian
Affairs  Although a customary claim can be used to justify granting a certificate of possession under the
Indian Act, “[t]he recognition of traditional or customary use of land cannot create a legal interest in the land
that would defeat or conflict with the provisions of the [Indian] Act”
Facts:
David Shuter, a member of the Nicola band in British Columbia, claimed 80 acres of land on the
Joeyaska reserve as his own property, based on his family’s “traditional or customary use and occupation
142
Issue:
Rule:
Application:
of the land” (para 4). Shuter claimed to have obtained the land in 1968 through an informal agreement
with George Spahan, who had inherited the land from his father, Antoine Spahan. Shuter maintained that
(1) his customary interest in the land, (2) a 1987 band council resolution (BCR) affirming the allotment of
the land to him, and (3) statements by certain Nicola band chiefs referring to the land as being “owned”
by Shuter proved his lawful ownership.
Did Shuter legally acquire and therefore, own the land
An individual can gain an interest in the land only under the procedures described in sections 20-29 of
the Indian Act.
A band member could only gain lawful interest in land through a proper band council resolution and the
approval of the Minister of Indian Affairs
Although a customary claim can be used to justify granting a certificate of possession under the Indian
Act, “[t]he recognition of traditional or customary use of land cannot create a legal interest in the land
that would defeat or conflict with the provisions of the [Indian] Act”
BCSC: According to Joe v. Findlay (1981), interest in reserve land is held in common by the band as a
whole and not by individual members.
- An individual can gain an interest in the land only under the procedures described in sections 2029 of the Indian Act.
- Since Antoine Spahan never registered the land under section 20, he did not have a lawful
interest in it and could not have bequeathed it to his son.
- George Spahan, therefore, had no interest that he could transfer to David Shuter.
- Also, although the band council recognized that David Shuter did have “some” interest in the
land, neither the band council nor the Ministry of Indian Affairs had ever formally granted the
land to him.
- Shuter’s claim that the 1987 BCR allotted him the land was false because the BCR did not make
the allotment to David Shuter individually, nor did it describe the exact parcel of land being given
to him.
- Moreover, on October 8, 1987, the Department of Indian Affairs formally rejected the allotment
based on the fact that only 22 of 160 councilors had voted on it, and that “the form that was
used [to file the allotment] was wrong” (para 68).
- The court rejected the relevance of statements made by Nicola chiefs indicating that Shuter
owned the land.
- Relying on Leonard v. Gottfriedson (1980 21 BCLR 326), George v. George (1996, 139 DLR 4th 53),
and several provisions in the Indian Act, the court ruled that a band member could only gain
lawful interest in land through a proper band council resolution and the approval of the Minister
of Indian Affairs
- Although a customary claim can be used to justify granting a certificate of possession under the
Indian Act, “[t]he recognition of traditional or customary use of land cannot create a legal
interest in the land that would defeat or conflict with the provisions of the [Indian] Act”
Conclusion:
Wilson v Bonneau (2002) BCSC, affirmed (2003) BCCA Application of s. 48(8) of the Indian Act: “any
interest in land in a reserve shall vest in Her Majesty for the benefit of the land if the nearest of kin of the
intestate is more remote than a brother or sister”
Facts:
The piece of land in question was worth $5-10 million. It passed unexpectedly on intestacy. There was no
spouse or issue, and the provision for nieces and nephews differed under the Indian Act.
P (the band chief) sought to have the land revert to the band, while D (a buyer chosen by the nieces and
nephews) sought to purchase the land with the proceeds to go the nieces and nephews as they were
non-members of the band and therefore ineligible to use the land.
Issue:
When an Indian dies intestate, and his closest living relatives at the time of his death are nieces and
nephews, does any right of possession to land in a reserve held by that Indian pursuant to the Indian Act,
143
Rule:
Application:
Conclusion:
R.S.C. 1985, C. I-5 (the “Indian Act”):
a. go to those nieces and nephews pursuant to s. 48(6) of the Indian Act; or
b. Does it vest in Her Majesty for the benefit of the band pursuant to s. 48(8) of the Indian Act?
s. 48(8) “any interest in land in a reserve shall vest in Her Majesty for the benefit of the land if the nearest
of kin of the intestate is more remote than a brother or sister”
When an Indian dies intestate and his closest living relatives at the time of his death are nieces and
nephews, any right of possession to land in a reserve held by that Indian pursuant to the Indian Act vests
in Her Majesty the Queen for the benefit of the band pursuant to s. 48(8) of the Indian Act.
The land reverted to the band and the nieces and nephews received nothing in compensation.
Songhees First Nation v Canada (Attorney General) et al, (2002) BCSC, affirmed (2003) BCCA file When
reserve land is auctioned due to testamentary gifts to non-eligible heirs (non-members of the band), rent
collected prior to the sale goes to the band, not the heirs.
Facts:
By her last will and testament, T devised all her rights and interests in the allotted parcels to her children,
William Gosse, Harvey George and Charlotte Thompson.
The children are not members of the plaintiff Band and accordingly are not entitled to lawful occupation
or possession of the allotted parcels.
Canada received the rents from the tenants, and, during her lifetime, paid those rents to the T. It is not
disputed that Canada has a duty to pay the rents received.
Issue:
Who has the correlative right to receive those payments
Rule:
When reserve land is auctioned due to testamentary gifts to non-eligible heirs (non-members of the
band), rent collected prior to the sale goes to the band, not the heirs.
Application: Any rent that is collected on a piece of land prior to an auction for that land when no band-member heirs
are listed will go to the band, not the heirs.
Conclusion: The land was sold and the rental revenue went to the band.
Songhees Indian Band v Canada (Minister of Indian Affairs and Northern Development) 2006 Fed Ct The
Minister`s discretion is subject to reasonableness and is not unlimited; the Indian Act`s provisions more or
less dictate the results of the Minister`s decisions.
Facts:
When T died in April 1996, she held Certificates of Possession (Cps) in respect of the CP lots. The
respondents, who are not members of the Songhees Indian Band, inherited those lots. However,
subsection 50(1) of the Act prohibits a person who is not entitled to reside on a reserve from acquiring
rights to possession or occupation of land in the reserve by devise or descent. As a result, pursuant to
subsection 50(2) of the Act, the Superintendent planned a sale of the CP lots (the section 50 sale), the
proceeds of which would go to the respondent devisees. Once completed, the section 50 sale would
require the approval of the Minister under subsection 50(4) of the Act. On July 15, 2004, the Minister
approved the transfer of possession of the land and the respective CP lots were transferred to the
possession of the respondents Alice Large and Sylvia Ann Joseph.
Issue:
Four issues were raised:
1. Whether the Minister has a duty to verify the validity of the Certificates of Possession of the
testator or testatrix prior to approving possession under subsection 50(4) of the Act;
2. whether the Minister has a duty to obtain a band council allotment prior to approving possession
under subsection 50(4);
3. whether the Minister owes a fiduciary duty to the band in conducting a section 50 sale; and
4. whether the Minister breached the duty of procedural fairness in failing to provide the applicants
with an opportunity to meet with the Minister, or, at a minimum, to make further written
submissions.
Rule:
The Minister`s discretion is subject to reasonableness and is not unlimited; the Indian Act`s provisions
more or less dictate the results of the Minister`s decisions.
144
Application:
Conclusion:
Details the kinds of considerations the Minister will review in deciding whether to allow a transfer of
reserve land.
At the heart of this case lie the Minister’s duties, obligations and responsibilities in approving possession
under subsection 50(4). Accordingly, it is necessary to set out the general parameters of the Minister’s
discretion in making such a decision. The Court of Appeal in Tsartlip cited Baker and the “margin of
manoeuvre” approach to reviewing a discretionary decision. In Baker, Justice L’Heureux‑Dubé noted that
“discretion must still be exercised in a manner that is within a reasonable interpretation of the margin of
manoeuvre contemplated by the legislature” (Baker, at paragraph 53). In Tsartlip, the Court of Appeal
noted that the Minister’s margin of manoeuvre was “not unlimited” in that, when considering whether or
not to approve a lease under subsection 58(3), the Act contained enough provisions with regard to the
use of land in a reserve by non‑Indians, that the Minister’s decision was more or less dictated.
The Minister met his duties and the land was sold.
12. Other Testamentary (Non-Will) Dispositions
-
JTs and other methods of gifts outside the will avoid taxes
Probate fees are only assessable on assets that pass under your will in BC
Life insurance passing through the estate can be grabbed by creditors (but is safe when given to a designated
beneficiary outside the will)
WVA will only affect assets that pass under the will
Giving gifts outside of a will provide more certainty that gifts will reach the beneficiaries that you desire
Joint Tenancies
-
-
-
Significant JTs here are ones where one party contributes and another party is set to benefit w/o contributing
Old law: if a JT was made for the benefit of T’s child, the presumption of advancement applied; if to anyone else,
there was a presumption of a resulting trust.
Bank accounts: must think of differently than other assets; bank accounts are a chose in action, with the
account holders having a claim on the bank (the creditor) for the funds held; they also differ in that their value
may change (increase or decrease).
True joint ownership with the right of survivorship means that you co-own the legal & equitable title
If surviving JTs are not a spouse, they will have to pay a capital gains tax
Vehicles under $20k value can be transferred w/o getting probate
Non-registered investment accounts can be held in JT; registered ones cannot
Note: an agreement to make mutual wills severs a JT  becomes a TIC
Advantages of JT
1. Income tax treatment of will vs. non-will dispositions
o Note: when someone dies, they are deemed, for income-tax purposes, to have sold all their property at
FMV. But if you roll property to a spouse, tax consequences are deferred
o E.g. If have cottage that has appreciated in value  capital gain on that property (b/c not principal
residence) can be quite high and estate would have to pay
2. Reduction or elimination of probate taxes
o as long as intention of gift of beneficial title is clear (use JT & Survivorship Agreement), otherwise, JT
may be viewed as creating resulting trust for deceased’s estate
3. Protection of assets from estate creditors
o unless fraudulent conveyance under s. 1, FCA
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4. Reduction of risk of Will Variation Act application
a. subject to anti-avoidance provisions in Model Act
b. but see Doucette
5. Simplify the administration of an estate
Examples of JT
• Real estate
• Bank accounts
• Automobiles
• RVs
• Non-registered investment accounts
Potential Problems Arising from JTs w/ Children
*Pitfalls for parent who adds child as joint tenant to an asset such as a bank account, non-registered investment
account, etc.
1.
2.
3.
4.
5.
6.
7.
Rebuttable presumption of resulting trust if intention to pass beneficial title not proven (see Pecore)
Creditors of child may claim against an estate in JT – including judgment creditor
Bankruptcy of child
Marital separation and division of property of child (see Pecore)
Estrangement from child = loss of control of asset by parent
Fraud by child during parent’s lifetime
Disputes with other children over actions by child “in control” of parent’s assets (accounting for actions, etc…)
**THP = make spouse JT, if possible
Intention to Pass Beneficial Title and Resulting Trusts – General Rules:
1. Where a parent transfers assets, without consideration, into a joint account held with one of their minor children,
there is a presumption of advancement (Pecore)
2. Where a parent transfers assets, without consideration, into a joint account held with one of their adult children,
there is a presumption of resulting trust (Pecore)
3. Where evidence of the transferor’s intention, at the time of transfer, is unavailable or unpersuasive, the
presumption will apply (Pecore)
4. The onus is on the transferee (adult child) to rebut the presumption and establish, on a balance of probabilities, that
a gift (survivorship) was intended (Pecore)
5. The court may look to the following non-exhaustive list of evidence to determine a transferor’s intention to pass
beneficial title (Pecore)
a. Acts or statements of either party after the transfer
b. Lack of child’s knowledge of his/her status as a joint tenant (Doucette, BCCA)
c. evidence after the transfer provided that it is relevant to the transferor’s intention at the time of transfer;
146
d. banking documents that detail intentions of the transferor regarding how the balance of the funds should be
treated upon her death;
e. granting of a power of attorney may demonstrate that the transferor intended to gift the monies in the joint
account; and
f.
Tax treatment of the joint accounts (who paid capital gains/income tax).
6. To avoid all of this, have a Joint Tenancy with Right of Survivorship Agreement
Pecore v Pecore (2007) SCC Need to show intention that jointures were a gift to avoid presumption of
resulting trust
Facts:
- An ageing father gratuitously placed the bulk of his assets in joint accounts with his daughter P,
who was the closest to him of his three adult children.
- Unlike her siblings, who were financially secure, P worked at various low paying jobs and took
care of her quadriplegic husband, M. P’s father helped P and her family financially, including
buying them a van, making improvements to their home, and assisting her son while he was
attending university.
- P’s father alone deposited funds into the joint accounts. He continued to use and control the
accounts, and declared and paid all the taxes on the income made from the assets in the
accounts.
- In his will, P’s father left specific bequests to P, M and her children but did not mention the
accounts. The residue of the estate was to be divided equally between P and M. Upon the
father’s death, P redeemed the balance in the joint accounts on the basis of a right of
survivorship.
- P and M later divorced, and a dispute over the accounts arose during their matrimonial property
proceedings.
- M claimed that P held the balance in the accounts in trust for the benefit of her father’s estate
and, consequently, the assets formed part of the residue and should be distributed according to
the will.
- The trial judge held that P’s father intended to make a gift of the beneficial interest in the
accounts upon his death to P alone, concluding that the evidence failed to rebut the presumption
of advancement. The Court of Appeal dismissed M’s appeal.
Issue:
Whether assets in joint accounts were estate assets held in a resulting trust for all beneficiaries under T’s
will or did they pass to P pursuant to right of survivorship?
Rule:
Need to show intention that assets gratuitously transferred to JT were a gift to avoid presumption of
resulting trust
Application: See above
Conclusion: Appeal dismissed.
Madsen Estate v Saylor (2007) SCC – released concurrently with Pecore  Presumption of advancement
does not apply to adult children (instead, usually a resulting trust applies as per Pecore); applied all rules
from Pecore and considered the list of evidential factors
Facts:
Daughter, P was made joint account holder with her father of accounts worth $185k and which had a
right of survivorship.
Her father retained control of the accounts, used the funds solely for his purposes, and paid all required
taxes.
Mother and fathers wills leave one-half to their 3 kids and one-half to their 8 grandkids.
P was also the executor of their wills, and claimed to be their favourite child (of 3).
147
Issue:
Rule:
Application:
Conclusion:
Father died after mother and P did not include the joint bank accounts in the estate, so her siblings sued.
Were the joint accounts estate assets held in a resulting trust for all beneficiaries under T’s will or did
they pass to P pursuant to right of survivorship?
Presumption of advancement does not apply to adult children (as per Pecore); applied all rules from
Pecore and considered the list of evidence categories.
TJ in ON Superior Court (2004): The presumption of resulting trust trumps the presumption of
advancement from parent to child in almost all cases (narrow exceptions).
ON CA (2005):
- Majority: neither presumption needs to be applied as surrounding circumstances and evidence
show that T intended the bank accounts to form part of the estate.
- Dissent: TJ erred in saying that the presumption of resulting trust trumps advancement; that
here, the presumption of resulting trust applies, and that P had the onus to prove that her father
intended for her to receive the joint account funds exclusively.
SCC: Advancement does not apply as P is not a minor; P has the burden of proving that her father
intended to gift the assets to her on the BoP standard.
- P gave little evidence and what she did provide was conflicting and deliberately manipulated.
- Banking agreements were not specific enough to show intent of gift
- T`s use and control of the funds was not decisive.
Insufficient evidence to show intent to gift; the funds form part of the estate.
Doucette v Clarke (BCCA, 2009 – overturns BCSC) BCCA Found a JT, and exercised a WVA variation based on
particular circumstances  In general, if a parent has a valid and rational reason to disinherit, the moral obligation
will be overborne, but here, the court found T was partially responsible for the estrangement which led to the neardisinheritance
Facts:
Diane, Louie, John and Joslin were the adult children of the deceased, Mildred. Mildred passed away in
2004 with an estate valued at $890,000. Her last will named Diane and Louie co-executors. She
bequeathed $5,000 each to John and Joslin, a house initially valued at $240,000, now valued at $420,000,
to Louie, and the residue of the estate to Diane.
A letter dictated by the deceased expressed hurt at her estrangement from John and Joslin. Diane was a
joint tenant with Mildred on bank and investment accounts worth $230,390. Louie was a joint tenant on
an investment certificate valued at $43,900. Joslin was a joint tenant on an investment certificate valued
at $150,000. The three children claimed their jointures under the right of survivorship and took the
money in the respective accounts. John sued Diane, Louie and Joslin for a declaration that the jointures
were subject to a resulting trust in favour of the estate, and sought a more equitable division. At trial,
BCSC found that presumption of resulting trust was not rebutted - all of the joint account holders were
adult children since the evidence is unpersuasive that the deceased intended the jointures to be gifts.
Further, BCSC held that Mildred had not met her moral obligations to make adequate provision for Joslin
and John given their disabilities and need for assistance. The will was thus varied to provide Louie with 35
per cent of the estate, Diane and Joslin with 25 per cent of the estate, and John with 15 per cent. Diane
and Louie appealed.
Issue:
Rule:
Application: Analysis – JT
- The children had no knowledge that Mildred named them as joint owners of the accounts.
- In that context, the chronology underlying the circumstances of Mildred's will and the
subsequent purchase and structuring of the accounts strongly indicated that she understood and
intended that the beneficial interest in each account would fall to the named child upon her
death.
- The funds were thus returned to the children in whose name each account was held.
148
Conclusion:
Analysis – WVA:
- There was no error in finding that Mildred had not met her moral obligations to Joslin and John,
as the judge's findings reflected that Mildred bore some responsibility for estrangement rather
than a need to compensate them to account for childhood abuse.
- It was necessary to amend the variation order to account for the removal of the term deposit
accounts from the estate. Mildred's duties to Diane and Joslin were fulfilled with the funds
received from the accounts. She intended to leave the house and any proceeds from sale to
Louie. The will was thus varied to provide Louie with 70 per cent of the estate and John with 30
per cent of the estate.
Appeal allowed
 Trial judge erred in finding that the accounts were subject of a resulting trust in favour of the estate by
failing to incorporate a significant uncontested fact into the analysis regarding the presumption of
advancement.
Impact of Trust Agreement Involving JT
-
JT can be severed by a trust agreement signed by one of the joint trustees – such that agreement operates to
convert the joint tenancy to property held as tenants in common.
Hence, be careful of transactions which might operate to terminate the joint tenancy.
Example: agreement to make mutual wills -- turns JT into TIC (see Gillespie at p. 34)
Beneficiary Designations
-
In BC, POA cannot change designations on anything.
Desharnais v TD Bank (2001) BCCA  Authority under a POA allows for the transfer of an RRSP, but not for a
change of designation; POAs cannot make testamentary dispositions
Facts:
a) KH granted an enduring PofA to his friend D and designated her the beneficiary of his TD RRSP.
b) Through a series of mishaps and the incapacity of KH, the RSP was transferred to a TD bank
associated company (TD Evergreen) per D’s instructions without continuing the beneficiary
designation in favour of D.
c) On KH’s death the proceeds from the RRSP were paid to his estate of which D was not a
beneficiary.
d) D sued for the proceeds of the RRSP and claimed that TD Bank and TD Evergreen breached a
fiduciary duty owed to her or were negligent.
Issue:
Did D have power to transfer the RRSP and change the beneficiary designation on behalf of KH?
Rule:
Authority under a POA allows for the transfer of an RRSP, but not for a change of designation; POAs
cannot make testamentary dispositions
Application:
- Revoking her own beneficiary designation under one RRSP and attempt to designate herself
under the new RRSP was a testamentary disposition – a change which an attorney could not do
as under the Law and Equity Act (BC) (s. 49)
- only KH could alter or revoke the designation
Conclusion: D had the power to transfer the RRSP from TD Bank to TD Evergreen (and open a new RRSP with
Evergreen) but she did not have the authority to make a testamentary disposition similar to a
beneficiary designation.
***Insurance
-
Gift can be made in insurance docs or in your will
149
-
Designation in a will overwrites a designation in a policy itself.
Revoking a will with an insurance declaration results in there not being a beneficiary (intestacy)
Life insurance B can be designated in a will; if a will is revoked, the B is revoked and the $ goes to the estate
No issue with creditors/probate/WVA when using a life insurance designation
Life insurance B designations can be irrevocable (as in family law support cases)
Can appoint a trustee for a minor B in a life insurance policy
Sickness/accident insurance is similar (s. 122) but you must actually prove an accident/sickness, and the
insurance company can challenge the insured or their trustee on this proof
***RRSP
-
-
-
Gift can be made in RRSP docs or in your will
Designation in a will overwrites a designation in a policy itself.
Revoking a will with an RRSP declaration results in there not being a beneficiary (intestacy)
RRSPs must at some point be transferred to RRIFs, with the B then taking a monthly payment
Rationale for RRSPs  get tax deduction in year of contribution and it accrues on tax-deferred basis
s. 49, Law and Equity Act –
o If in accordance with terms of a RRSP the annuitant designated a person to receive a benefit payable
under the plan on the annuitant’s death
 *(a) the designation is effective in writing and signed by the annuitant or if it is contained in a
will
 (b) person designated may enforce payment,
 *(c) the benefit is not part of the estate of the annuitant
 (d) s. 50(1) to (3) of the Insurance Act applies (designation in invalid wills, if will revoked, so is
designation)
 (e) annuitant may alter or revoke the designation
s. 54, Insurance Act – RRSP issued by insurance co. free from creditors
o (1) Insurance money paid out after the happening of an event (i.e. someone dies). Insurance $ does not
become part of estate of insured, so proceeds are not available to creditors.
o (2) Policy exists, but event hasn’t happened yet, and beneficiary designated is a parent, child, grandchild or
spouse: any interest insured person has in this $ is exempt from execution and seizure against the insured
(e.g. cash redeemable).
s. 71.3, COEA – RRSP exempt from execution and attachment by a creditor (including spousal rollover: s. 71.3(4))
o exceptions: voluntary contributions within 12 months before or after debt, and payments out of RRSP
***RRIF
-
s. 51, Law and Equity Act –
o if in accordance w/ terms of RRIF the annuitant designates a person to receive a benefit under the plan
on the annuitant’s death:
 (a) the designation is effective in writing and signed by the annuitant or if it is contained in a will
 (b) the designated person may enforce payment
 (c) the benefit is not part of the estate of the annuitant
 (d) s. 50(1) to (3) of the Insurance Act applies (designation in invalid wills, if will revoked, so is
designation)
 (e) annuitant may alter or revoke designation
-
s. 71.3, COEA – RRIF exempt from seizure and attachment by a creditor (including spousal rollover: s. 71.3(4))
o exceptions: voluntary contributions within 12 months before or after debt, and payments out of RRSP
150
National Trust v. Robertshaw (BCSC, 1986)  RRSP designation is not a “testamentary disposition” (see
above note – on this basis, decision likely wrong)  There is no clear distinction between revocable inter
vivos trust and testamentary disposition.  A Canadian court will likely base its decision on the degree of
control retained by the settlor.  The “full vigour and effect” of the designation of beneficiaries of RRSPs are
not entirely dependent on the death of the annuitant.  RRSPs administered by trust companies establish
valid trust relationship between annuitant and trust company.
Facts: In 1967, R, a contributor to an association’s Group RRSP, designated his first wife beneficiary under the plan. They
divorced in 1972 and thereafter R remarried and divorced twice. In Aug. 1985 R executed a will under which his 3
children were named principal beneficiaries. The will contained a standard revocation clause: “I… hereby revoke all
former testamentary dispositions made by me and declare this to be my last will.” Nowhere in the body of the will is
there any reference to any RRSP. R died in Sept. 1985.
R’s executor applied to Court to receive proceeds from RRSP but was opposed by first wife (no new RRSP designation to
replace the one made in 1967 was made by R). Executor argued that the designation was a testamentary disposition
and was revoked by the standard revocation clause in R’s will.
Issue: Was designation a testamentary disposition, which was subject to Wills Act requirements?
Held: Designation was not testamentary in nature. (As this issue was addressed on an application – determination of
who was entitled to the proceeds from RRSP will await trial.) THUS, it was not revoked.
Analysis: Court undertook an analogy of the nature of the RRSP contract and the trustee relationship and concluded that
the designation was not entirely dependent on death to be effective. Judge felt that it was more akin conferring on R’s
wife an immediate, albeit contingent, future interest by way of an inter vivos trust, when the plan was established.
Recent cases demonstrate that there is a true trust relationship between R and the trustee holding the RRSP assets.
Roberts v Martindale (1998) BCCA  Erroneously unrevoked life insurance designation, despite agreement
to revoke = erroneous beneficiary cannot claim proceeds from policy; equity steps with a constructive trust
Facts:
- In 1979, D completed a written Group Life Insurance Designation and designated her husband, M, to be the
beneficiary of any money payable under the insurance policy on her death.
- D and M divorced in 1981. They entered into an agreement whereby each relinquished all rights in the other’s
estate free from all claims from the other. D never changed her designation having thought she had done all
required to remove M as beneficiary (by signing separation agreement); on D’s death the insurance money was
paid by the insurer to M. D’s executor sought a return of the insurance money.
- At trial the judge said M held the money on a resulting trust in favour of D’s estate.
Issue: Did M hold the insurance proceeds on resulting trust in favour of D’s estate or is M entitled to the proceeds from
the insurance?
Held: Trial judge erred in holding that M held the insurance proceed on a resulting trust, however, he did hold it as
trustee pursuant to a constructive trust.
Analysis:
- T’s not infrequently are mistaken about the legal effect of what they have or have not done. After reviewing the
applicable provisions of the Insurance Act appeal court concluded that because D had not changed her
designation M was legally entitled to recover from the insurer and the insurer was obliged to pay to him the
proceeds of the policy – from a legal perspective. However, M is not entitled to the proceeds in equity. “Equity
will no permit even an act of parliament to be used as an instrument of fraud.”
- Based on the analysis in McCormick v. Grogan (1869) L.R. 4 H.L. 82 the person you wish to convert to a trustee in
equity must have acted in bad faith. However, M did not act in bad faith. He did not in any way contribute to
the deceased’s mistaken belief. There was no fraud by M.
- However, since that case was decided constructive trusts have been imposed in many cases where the
defendant has done nothing which could properly be characterized as “fraudulent”.
151
-
It would be against good conscience for M to keep this money because; by the separation agreement M
surrendered the right he might have had to the property of D.
For M to claim from the insurer the proceeds was a breach of that agreement and sufficient to call in aid the
doctrine of the remedial constructive trust.
***Pensions & Employment Benefits
-
-
Under the Law and Equity Act, employee benefit plans are not affected by a will (must declare Bs in the benefit
plan itself)
s. 46, Law and Equity Act - Designations under employee benefit plans1
If an employee designates a person to receive benefits payable under the plan in the event of his/her death, the
following rules apply:
a) the designation must be in writing and signed by the EE
b) designation is not affected in any way by a will executed by the EE after making the designation
c) ER is discharged once it had paid benefit to designated person
d) designated person may enforce payment of benefit
e) EE may revoke or alter designation, but only in accordance w/ plan rules
s. 63(1)(a), Pensions Benefits Standards Act: benefits are exempt from execution, seizure or attachment by a
creditor
o BUT - s. 63(3) + (3.2)(a) – additional voluntary contributions made 12 months before or after the date
that the debt arose are not exempt
MacInnes v MacInnes (1934) SCC  Employee pension benefit designation is a “testamentary disposition”
Facts: the deceased had been a member of his employer’s ‘Employees’ Savings and Profit Sharing Plan’. He was entitled
to designate a beneficiary on his written application (“Employee’s Acceptance”) to join the plan or by later written
document filed with the plan trustees or by his will. He designated his wife to be his beneficiary in his written
application and his signature was witnessed by one person.
Issue: Whether the application form with its designation of Mrs. MacInnes as beneficiary was “a trust in her favour or a
testamentary disposition”?
Held: the written application and beneficiary designation in question was testamentary in nature and was invalid
because it did not comply with the requirements for making a will.
Re Bottcher (1990) BCSC  General revocation clause does not revoke beneficiary designations made
outside a will
Facts:T’s application to establish an RRSP designated her son, J, as beneficiary of any death benefit. T’s will contained a
general revocation clause but did not refer to the RRSP.
Issue: Did general revocation clause revoke the RRSP designation in favour of J?
Held: General revocation clause did not revoke the previous RRSP designation made outside the will
Analysis:
- While Law and Equity Act does not specify an exact method of revocation – something more than the language
of a general revocation clause in a will is necessary to revoke a designation validly made other than by will.
- The general revocation clause in a will does not revoke a prior beneficiary designation validly made outside a will
unless the language of such a clause evidences a clear intention to do so.
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Inter-vivos Gifting
Advantages of Inter Vivos Gifts
1. Avoid probate fees on the value of the transferred assets
2. Avoid creditors on death
o *subject to possible claims under FCA
3. Avoid claims under WVA
o *subject to anti-avoidance provisions in s. 95 Model Act
4. Avoid disputes over the interpretation of a will
5. But note Income Tax implications (see below)
Definition: An inter vivos gift is an irrevocable gratuitous (i.e., no consideration) transfer of property from the owner
(i.e., the donor) to another person (i.e., the donee), during the donor's lifetime, with the intention that the transfer have
present effect and the title to the property pass to the donee.
Essential CL Elements for Gifting
1. Donor capable of making the gift
o Donor must be mentally capable and of age of majority.
2. Donee must be capable of receiving the gift
o In case of a minor donee, the gift is valid unless the donee, upon reaching age of majority, rejects the gift.
3. Clear and unmistakable intention on the part of the donor to irrevocably divest himself of the title
a. put it in writing (policy: reliability of evidence, deliberation) (Romaine Estate)
b. If intention is insufficient  resulting trust (donee is trustee)
4. Delivery of gift by the donor to the donee
a. Exception: donates mortis causa does not require delivery
5. Acceptance of the gift by the donee.
Income Tax Act Implications
- Gift of capital asset to a non-spouse will result in the donor being deemed under the Income Tax Act (Canada)
as having sold the “gifted property” at FMV – which will trigger latent capital gains tax on the transferred assets
- Gift of income producing property (e.g., rental property, stocks with dividends, bonds with interest, etc…) to
minor child can trigger Income Tax Act (Canada) attribution rules whereby income will be attributed back to
donor for income tax purposes.
Donatis Mortis Causa (“Donation in prospect of death”)
- Def’n = A type of inter vivos gift of personalty which is made in contemplation (but not necessarily in
expectation) of the donor’s death.
- Exception to the rule that the CL will not perfect an invalid gift
- Property need not been fully delivered to the donee to be an effective inter vivos gift at CL. (i.e., title need not
be fully vested, but need partial delivery)
- Failure of delivery is overcome by showing a clear intention of the donor to give the gift upon the death of the
donor – so constructive delivery is permitted.
- The gift while it takes effect immediately, is dependent for its absolute effect upon the death of the donor (i.e.,
the property is not fully vested until the death of the donor.)
- Personal representatives of deceased may be deemed trustees for the purpose of giving effect to the gift (i.e.
transferring legal title)
- Revocation of gift
o The donor is able to revoke the gift while living
o It is revoked automatically if the donor recovers from the feared peril.
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Romaine Estate v Romaine (2001) BCCA  sealed K is reliable evidence of intention to make a gift, a gift
given under a sealed K is irrevocable
Facts: R gave property to nephew to save on taxes on his death. Nephew’s lawyer prepared a letter of gift and
declaration of trust transferring beneficial interest in property to nephew. R signed them, witnessed. R did not obtain
ILA. Property was transferred to nephew, but in his company’s name.
R and nephew had a ‘falling out’. R sought property’s return and brought action alleging resulting trust. R died and
estate continued action.
Trial judge found that the nephew had not met the onus of proving that R intended to make gift of beneficial title in
property.
Held: appeal allowed
The gift documents were enforceable as sealed contracts which R signed. R’s later change of heart regarding the
transfer was irrelevant.
Trusts
-
Another way to xfer assets outside of the estate
Most people self-appoint as trustees
Trusts are not used to deal with specific gifts
CRA is not a creditor (unless taxes are already owed), so the Fraudulent Conveyances Act does not apply unless
taxes are already owed.
***Inter Vivos Trusts
-
Trigger: inter vivos trusts are best suited for large estates (i.e. $100Ks) b/c of legal, accounting and trustee costs
associated w/ establishing and maintaining an inter vivos trust
Definition: Transfer of a person’s assets to a trust while alive. Declaration of trust or trust agreement would
specify who is to benefit from income and capital of trust during the settlor’s lifetime and following the settlor’s
death.
Advantages of Inter Vivos Trusts
- Because the transferred assets DO NOT form part of the settlor’s estate, a settlor can:
o Defer paying capital gains taxes
o Avoid probate fees on the value of the transferred assets (Mordo)
o Avoid creditors on death
 *subject to possible claims under FCA and FPA
o Avoid claims under WVA (see Mordo)
 *subject to anti-avoidance provisions in Bill 4
o May eliminate the need for a will for the specific assets transferred to the inter vivos trust
Fraudulent Conveyance Act
- s. 1: any disposition of property . . . is void or of no effect if done to delay/hinder/defraud creditors of lawful
and just remedies.
- s. 2: exempts -- where transfer is for good consideration and in good faith, and transferee has no notice or
knowledge of collusion or fraud at time of transfer.
- Fraudulent Conveyance = disposition of property +
o unless property is generally exempt from execution
 intent to delay/hinder/defraud creditors +
o badges of Fraud (Twyne’s Case; approved in Re Romanowich)
154

no consideration
o *note: if consideration, need to prove intent of both transferor and transferee)
Fraudulent Preferences Act
- 3 requirements in FPA s. 3:
1. disposition of property (except payment of money) in favour of a creditor
2. debtor must be in insolvent circumstances
3. must be intent to create a preference
Inter Vivos Trusts and Income Tax Act
- Capital gains issues arise for transfers to inter vivos trust if not an ‘alter-ego trust’ or ‘joint partner trust’.
o “alter ego trust” = settlor is beneficiary
o “joint partner” = settlor and someone are beneficiaries
- Deemed disposition of capital assets transferred to inter vivos trust - with capital gains recognized UNLESS trust
qualifies as an ‘alter-ego trust’ or ‘joint partner trust’
- Requirements for Deferral of Capital Gains
1. Meet definitions of ‘alter-ego trust’ and ‘joint partner trust’ in s. 248, Income Tax Act
2. Settlor must be 65 or older
3. Settlor must be entitled to all income of trust during his/her lifetime.
- Consequences
o Capital gains recognized at time of death of settlor or spouse, if later, for ‘joint partner trust’ under
Income Tax Act
o i.e., capital gain recognition is not considered until time of settlor’s death for ‘alter-ego trust’ or death of
spouse if later – for ‘joint partner trust’.
13. Incapacity Planning
Estate:
***Powers of Attorney (Pl = Attorneys)
Trigger: where D is mentally or physically unable to do things, temporarily out of country, etc.
General
- At common law a POA is a document that evidences the authority granted by one person, “D”, known as the
donor, (sometimes referred to as the grantor or principal) to another, “A”, known as the attorney (sometimes
referred to as the donee, grantee or agent) to act on his or her behalf in conducting some financial transaction
that D could otherwise do him or herself (except make a will).
- Donor (D)  grants POA  Attorney (A)
- POA may be general (i.e. all acts D could do, except make will) or specific (i.e. sell specific property, pay bills)
- Once established, POA will result in A’s signature being accepted by 3rd parties as representing and legally
binding D
- Policy: D should have a great deal of trust in A’s faithfulness and loyalty
- Prudent to select alternative attorneys – A has a fiduciary duty to D – must answer to D and those interested in
D’s estate
- There is a presumption that people are capable of granting a POA; incapacity is defined, but capacity is not
- Can revoke while competent, but when incompetent, they can no longer revoke
155
-
Whether someone was incompetent when they created a POA is a factual decision to be found by the court;
incompetence means POA is void
Doctor’s clause: designed to trigger a POA based on expert opinion that donor is incompetent
Indian Act  Minister of Indian and Northern Affairs has exclusive jurisdiction for affairs relating to reserve
property; other attorneys may be appointed for affairs of status Indians off-reserve
Land Title Issues
- Under s. 51 of the Land Title Act, the original POA must be filed with the registry
- Donor’s name must be full legal name (middle names too)
- POA at this office is automatically declared invalid after 3 years (s. 56 of the Land Title Act); in practice, include a
standard term to say that 3 year limit does not apply
- Calls for black ink, but blue is now ok (photocopiers have changed)
- A subsequent POA does not revoke a power on a previous POA, unless there is a revocation clause (be careful
not to revoke those that you want to remain in effect)
Revoking POA at Common Law
- D can revoke a POA at any time provided he or she has mental capacity to do so.
 This is typically done by writing signed by D and delivered to A.
 Should advise 3rd parties who have been relying on the POA (e.g., banks, investment brokers…)
-
Death of D automatically revokes the POA –
 At that time the executor (under a will) or administrator (intestacy) will have authority to act on behalf
of D’s estate.
 POA does not survive the death of D and A must cease to act upon learning of D’s death.
-
Automatically revoked with the mental incapacity of D
 Based on the principle of agency law (i.e. agency relationship terminates on death and mental incapacity
of principal)
 Practically speaking, then bank should have to ask if D has mental capacity each time A tries to engage in
transaction on behalf of D – not the case from estate planning view
 But see BC Power of Attorney Act – which allows enduring POA as long as written instrument specifies
that POA continues during mental incapacity of D
*Side note: if D has property outside of BC, a BC POA may not be recognized in that other jurisdiction. Thus, it is
important to consult with legal counsel regarding formalities of POA in that jurisdiction.
TRIGGER: client only wants to deal with financial affairs in event of mental incapacity
Power of Attorney Act BC:
- s.4 POAs from other jurisdictions may be valid in BC with a certificate from the drafting solicitor
- s. 8 - enduring POA
o (1) While D is mentally capable (Egli), he/she may make an enduring POA conferring on an A powers to handle
financial affairs should D become incapable, provided that
 (a) The written instrument provides that the authority is to continue despite any mental infirmity of the
donor AND
 (b) Is signed by the donor and by a witness to the signature of the donor, other than the attorney or the
spouse of the attorney
o


(2) BUT this enduring POA terminates on
(a) the making of an order under the Patients Property Act,
(b) on the appointment of a committee under s. 6 Patients Property Act, or
156

•
(c) as provided in section 19 (a) or 19.1 (3) (a) of that Act.
s. 9 – short form
o
(1) general POA may be in Forms 1 or 2
o
(2) use Form 2 if more than 1 attorney is being used
Property Law Act BC
•
s. 27 – A restricted from dealing w/ land
o
Unless a POA expressly authorizes it (or the D ratifies the sale) the A named in the POA cannot sell,
transfer or charge (in favour of A) land owned by the D.

Policy: to protect D from fraudulent POA

But see s. 331, Criminal Code
•
s. 27.1 – Representative restricted from dealing w/ land
o Unless a representation agreement (made pursuant to the Representation Agreement Act) expressly authorizes
it, a representative cannot sell, transfer or charge (in his or her favour) land owned by the adult on whose behalf
there is a representation agreement.
Criminal Code of Canada
- s. 331– theft by A
 You commit theft if being entrusted with a POA for the sale, mortgage, pledge or other disposition of
real or personal property, fraudulently sells, mortgages, pledges or otherwise disposes of the property
or any part of it, or fraudulently converts the proceeds or any part of the proceeds to a purpose other
than that for which he was entrusted by the POA.
TYPES of POA
1. General POA – without restrictions
2. Specific/Limited POA – restrictions set out in instrument
3. Enduring POA – requires clause in POA to provide for it to endure even after D become mentally incompetent (see s.
8 of Power of Attorney Act); effective as soon as they are signed
4. Springing POA – Goodrich v. BC (BCCA, 2004) – one that can be used by A from time to time but only upon
subsequent mental incapacity of D
Who can be a POA?
- Spouse
- Parents
- Kids
Powers/Abilities of Attorneys
- Note: attorneys can never change a will or do anything illegal/omit to do anything required by law; other than
that, their authority is found in the POA, or, where silent, their authority is that which the donor would have had
but for their incompetence
- Requirements of a POA: collects assets; s. 32; to ask for assistance where needed
- Note: section 28 needs to be in notes
157
-
An attorney can give gifts, where the donor had the habit of doing so before
The total of all gifts per year must be the lesser of $5k or 10% of the donor’s taxable income for the previous
year
Any gifts to the attorney must be listed in the POA, or else they will be ineligible to receive anything from the
donor
Permitted Investments by Attorney
- Trustee Act will apply where A is responsible for investing assets of D unless there are specific instructions in the
POA which differ:
- s. 15.1(1): A trustee may invest property in any form of property or security in which a prudent investor might
invest, including a security issued by an investment fund as defined in Securities Act.
- s. 15.1(2) – exception – corp. trustee cannot invest in its own securities
Delegation of Investment Functions
- s. 15.5(2): A trustee may delegate to an agent the degree of authority with respect to the investment of trust
property that a prudent investor might delegate in accordance with ordinary business practice.
- s. 15(3): if delegate, trustee must exercise prudence in
a. selecting an agent,
b. establishing the terms and limits of the authority delegated,
c. acquainting the agent with the investment objectives, and
d. monitoring the performance of the agent to ensure compliance with the terms of the delegation.
- Obtaining investment advice  likely part of duty of care of prudent investor (Cowan)
- Mutual Fund Investments  technically example of delegation, but s. 15.5(7) allows it
CAPACITY of Donor
General
1. PofA executed by someone mentally incompetent is void (Egli)
2. The capacity of the donor will always be a factual decision for the trial court to make based on the evidence
(Egli)
o the donor must have a general appreciation of the enabling power he or she is bestowing upon the
donee of the power
3. Watch out for suspicious circumstances (see Teffer)
Egli (Committee of) v. Elgi (BCCA, 2005) – D must have mental capacity when granting POA under s. 8
1) Facts
a) In 1998, F gave S PofA when his mental capacity was questionable.
b) Public Guardian & Trustee intervened after it was appointed Committee for F and questioned transfer of real property of F by
son from sole ownership by F to joint tenancy by F, S and spouse of S.
2) Issue
a) Did F have capacity to grant PofA to S in 1998 – what is the standard to be applied in assessing capacity of donor of PofA?
3) Held
a) F had capacity to grant PofA to S in 1998 – appeal by PG&T dismissed.
b) Real estate transfer is upheld.
4) Analysis
a) It may not be necessary to treat the test for testamentary capacity as being the standard required for valid execution of PofA,
yet the donor must have a general appreciation of the enabling power he or she is bestowing upon the donee of the power.
The donor must be cognizant of the circumstance that the donee is being granted a broad power to deal with the property of
the donor.
158
Teffer et. al v Schaefers (Ont.SCJ, 2008)
1) Facts:
a) The grantor of the Power was 87 at the time of signing, and had been diagnosed as an Alzheimer's sufferer.
b) A Power she had granted 8 years previously was held to be of doubtful validity.
2) In 2006, she appointed granted POA to a lawyer
3) Held:
a) The appointed Attorney was removed by the Court from having any future authority to act.
b) The Power was fully invalid for lack of capacity.
4) Comments
a) Should a lawyer or financial institution presented with a PofA be considered negligent for relying on it?
i) Probably not; but perhaps it would always be cautious practice to simply ask - “Is this PofA valid”?
Powers and Duties of Attorney
A/ General Duties (*can be modified by instrument)
-
Fiduciary duties imposed on A due to agency relationship w/ D – e.g. A must act in best interests of D (see Tim
v. Lai)
-
Duty not to delegate - Attorney cannot (sub)delegate unless authorized by PofA (see Re Bussche) or by statute
(see Trustee Act, s. 15.5)
-
Duty of loyalty - Attorney NOT entitled to remuneration unless authorized by PofA
-
Duty to provide information - attorney must keep proper records and is liable for failure to keep proper accounts
(see Deacon)
• See more stringent requirements in McMullen
-
Duty of care - to exercise reasonable care as would a typically prudent person managing his or her own affairs,
and not act contrary to the interests of the donor (McMullen)
General
• Attorneys cannot co-mingle donor’s assets with their own
• If assets were previously co-mingle (e.g. joint accounts) need not separate them
• Authority of an attorney ends if they become incapable; new to the 2011 act, insolvency or committing a fraud
offence also ends authority, as does divorce (unless otherwise specified in the POA) and death of the attorney
• Insolvency & winding up of a corporation also ends its reign as an attorney
Executing a POA
• Lawyers can now sign a POA
B/ Powers
•
Depends on the construction of the instrument granting POA (Desharnais)
o Authority must be found in the 4 corners of the instrument (express or implied)
•
If instrument is silent, the general restrictions on an agent’s authority under agency law apply (Desharnais):
o Making a will;
o Exercise of a power of a discretionary nature given personally to a donor;
o Exercise of the donor’s duties as a trustee or executor (unless allowed by the instrument appointing the
donor, or by statute);
o Serve a prison term;
o Any limitations imposed upon an attorney by fiduciary obligations owed to the donor;
o Anything illegal
159
Easingwood v Cockroft (2011) BCSC Trusts are a valid estate planning tool, and POAs can take advantage
of this method (here, the fact that the trust mirrored the will was ideal as it reflected the donor’s intention
perfectly)
Facts:
After the death of his 1st wife, dad (Reg) remarried (2nd wife = Kay) with a marriage agreement to keep
estates separate. Later, he gave an EPOA to 2 of his 4 kids that said they had to act jointly. He made his
will in 2004, and from 2007 onwards (relying on med. opinion that he was no longer capable), his kids
began to manage his affairs.
When using the EPOA to give their consent for dad's cancer treatments, kids were worried 1 of them
might die, and set up an alter ego trust, transferred dad's property to it, and appointed a successor to
take over if 1 kid died. When dad died, his widow (2nd wife) sued the estate over the validity of the trust.
Issue:
Should the trust be set aside because in exercising their general power (which allows for trusts of this
type to be created), the trustees were in breach of their fiduciary duty to the donor?
Rule:
The attorneys were entitled to take advantage of estate planning advice and to establish the Trust as an
estate planning tool (as per Mordo v Nitting, 2006 BCSC).
Application: The Trust here reflected perfectly the terms of Reg’s will.
The Fund and the House Operation Fund were to be the same amount as if there was no Trust. The
disposition was contemplated and approved by Reg through his will which Kay knew about.
In the circumstances here, it was reasonable and proper to create the Trust to effectively manage Reg’s
affairs because the Trust did not go beyond what Reg himself had contemplated.
Conclusion: The Trust was a valid act of transfer and was properly constituted as an inter vivos Trust.
McMullen v Webber (2006) BCSC  Failing to account as required by PoAA = breach of duties
Facts:
a) F grants an enduring PofA to his 3 children, exercisable by any two of them. The PofA required A
to account to F on a regular basis whenever A assists F with his financial affairs.
b) Children feared F was being manipulated by a much younger woman and transferred F’s condo to
their spouses (and F – 1%) to protect F. They never told F about the transfer or accounted to him.
c) F discovered the transfer and sued for transfer of property back to him.
Issue:
Where A was acting to “protect” F by transferring his property without an accounting – was A in breach
of fiduciary duties?
Rule:
Relationship between attorney and donor is fiduciary and attorney owes fiduciary duties to donor; failing
to account as required by PoAA = breach of duties
Application:
a) An attorney acting under a PofA is bound to the duties enunciated on the face of the instrument
granting the power.
b) Relationship between attorney and donor is fiduciary and attorney owes fiduciary duties to donor
(i.e. act in best interests of D)
Conclusion: Notwithstanding their attempt to protect their father, the children breached their fiduciary duties owed
to F by failing to account as required by PofA and by failing to act only in accordance with F’s interests.
***Nominations of Committee and Committeeship Applications
Trigger: if client wants to appoint a person to manage their estate or person; or if client fails to do so while competent, a
court is forced to appoint at which time all prior POA or rep agreements are terminated
Legislation – Patients Property Act *
*to be replaced by the Adult Guardianship Act once by Bill 29 – 2007 (Adult Guardianship and Planning Statutes
Amendment Act 2007 – is proclaimed in force)  is this in force yet?
s. 1 – definition of “patient”
160
(a) Includes a person who due to mental infirmity is described in a Mental Health Act certificate as being incapable of
managing his or her affairs or
(b) Someone declared by a judge as incapable of managing his affairs or himself or both.
s. 2 – judicial declaration of “patient”
The AG, a near relative or other person may apply to court for an order declaring that a person is incapable of managing
his affairs or incapable of managing himself (or both).
THUS a person can be a committee of “estate and/or person”.
Committee of person
Committee of estate
Committee of estate and person
s. 6 – Court appointed Committee
A court may appoint a committee to handle the financial or person affairs or both of a person found to be incapable
s. 9 – Individual appointed Committee
While competent to do so, an adult may nominate a committee who is to be appointed unless there is good and
sufficient reason for Court refusing the appointment
s. 16 – court imposed restrictions on Committee powers
Court can attach conditions or restrictions on Committee’s exercise of powers, etc. including requiring the written
consent of PG&T prior to exercise of power, etc.
ss. 15 +17 – general powers of Committee
Subject to s. 16, these provisions sets out the powers of the committee and limits on those powers; also the rights,
powers and privileges vested in the committee
investment powers Committee becomes a “trustee” and s. 15.1, Trustee Act applies
Standard of “prudent investor”
s. 18 – general duties
Committee must exercise the powers for the benefit of the patient and the patient’s family having regard to the nature
and value of the property and the circumstances and needs of the patient and his or her family (see O’Hagan)
E.g. X in coma – committee in charge of estate – committee wants to re-organize estate, but changes must comply w/ s.
18 (see also s. 28 – orders of ct)
s. 19 – termination of all prior POA and RA
Where a person becomes a “patient” by Court order under s. 1(b) of the Act
Every PofA given by the person is terminated, and
Unless the court orders otherwise, every representation agreement made by the person is terminated
s. 19.1 – suspension of POA and RA
Where a person becomes a “patient” by a Mental Health Act certificate under s. 1(a) of the Act:
Every PofA that was given by the person is suspended (pending review by PT&G)
Every provision of a representation agreement made by the person in respect to his property is suspended (pending
review by PT&G), UNLESS it is a special rep agreement described in s. 19.2(1)(b)
161
s. 20 – previous conveyances by “patient” unenforceable
Every gift, grant, alienation, conveyance or transfer of property made by a person who is or becomes a patient is
deemed to be fraudulent and void as against the committee if:
(a) The gift, etc. is not made for full and valuable consideration actually paid or sufficiently secured to the person; or
(b) The donee etc. to whom property was alienated or conveyed had notice at the time of the gift, etc. of the mental
condition of the person
s. 21 – Committee acts as if person
Everything done by Committee in exercise of powers under Act has the same effect with respect to all other persons as
if done by the patient at a time when the patient was of full age and of sound and disposing mind.
Powers and Duties of Committees
General
- A Committee may carry out the expressed but unfulfilled intentions of the patient if the transaction or transfer is
for the benefit of the patient and the patient’s family (s. 18, PPA) (O’Hagan)
- The test of “necessity in the traditional sense” no longer applies to approving the reorganization og a patient’s
estate (O’Hagan; Re Bradley)
- When a Committee is considering disposing of or re-organizing a patient’s estate, it is held to the standard of
“reasonable and prudent [person] of business” (O’Hagan)
- i.e. “would a reasonable and prudent business person think that the transaction would be beneficial to the
patient and his family, given the circumstances that are known at the time and the possibilities that might arise
in the future.” (O’Hagan; Re Bradley)
- In deciding this, the patient’s own interests, present and future must be given paramount importance (O’Hagan;
Re Bradley)
- Committee-ships may be preferable in some cases, as committees must report all financial dealings to the PG&T
every 2 years
Note: A committee uses the estate for the benefit of the patient and his dependents and preserves the estate to the
extent permitted by such use, but has no authority for testamentary disposition without specific statutory
enactment.(Allen)
O’Hagan v O’Hagan (2000)BCCA  Change to patient’s estate by Committee permitted (in order to allow for
favorable tax planning  Necessity is not the ultimate test; donor’s best interests are of primary importance,
but changes are allowable when there will be no disadvantage to the donor
Facts:
Committee of “person and estate” for O appealed to Court of Appeal to implement an “estate freeze”
because of the great value of O’s estate and the potential tax liabilities that were growing as assets
increased in value.
Committee was one of two sons – both were the sole beneficiaries of O’s estate and other brother had
consented to the application. Application clearly demonstrated tax problems and detrimental effects on
the estate, family (and the family business) if some action like an “estate freeze” was not undertaken.
Proposed reorganization set up a trust for the benefit of O and if he recovered he could call upon the
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Issue:
Rule:
Application:
Conclusion:
capital of the trust.
“In short, the plan seems to be one that a prudent businessman of advanced years would see fit to
undertake in order to minimize tax on his death and maximize the value of passing to his heirs… and
poses no real disadvantage to O and does not disturb or deviate from what would occur under O’s will
and therefore respects his intentions and autonomy.”
Lower court held that except in clear cases of necessity the Courts have consistently held that a
Committee should not change the form of a patient’s property – is this position to be continued in this
case?
The tax benefits realized can be done without jeopardizing or diminishing the patient’s estate during his
lifetime or the ability to regain control should he recover – it would be unreasonable to withhold
approval on the ground that “necessity” had not been shown
- In deciding this, the patient’s own interests, present and future must be given paramount
importance – e.g. will he recover or will his condition get worse and require more money –
- In this case the estate was so large that these contingencies were not problematic.
Appeal allowed.
Re Bradley (2000) BCCA  Contrasts O’Hagan; change to patient’s estate by Committee denied as it would
not be in the donor’s best interest
Facts:
- Appeal by PT&G from a decision of lower court approving the payment of certain gifts by Committee of B.
- Committee was second husband of B. B has been comatose since a stroke in 1998 (at age 63) and the annual
cost of her maintenance is less than $4K thanks to insurance coverage.
- Committee is retired and has a good pension and B’s three sons from her previous marriage are all selfsupporting. B had intended to give sons each $105K gifts prior to her stroke and had sold securities to make the
gifts but she never completed the gifts.
- One of the applications to the Court below was to allow the Committee to complete these gifts and they were
approved and PT&G did not appeal those gifts.
- B had no will and under intestacy laws Committee will get 1/3 and B’s sons will get 2/3’s of the estate. Because
she has a large estate and is a U.S. citizen her estate faces a sizable tax bite from the U.S.
- B (prob Committee) received tax advice from U.S. attorney and was attempting to implement that advice to
reduce B’s estate tax exposure through the proposed gifts.
- B was seeking court approval (s. 28) to implement the gifting regime proposed to save taxes. Proposed gifting
regime keep considerable assets for B ($800K) if she recovered and produced 10 times the income necessary to
pay for her current maintenance.
Issue: Did lower Court err in not following the rule requiring “necessity in the traditional sense” before any gifts may be
made from a patient’s estate by a Committee.
Held: PG&T Appeal allowed.
Analysis:
- Can appreciate the need for a rule like “necessity in traditional sense” for PT&G who cannot always get financial
advice.
- However where a private Committee formulates a good plan, it seems unfair to penalize patients and their
families by denying planning opportunities that would otherwise be available to them because of the
Committeeship and simply because there is no “necessity”.
- The Patients Property Act does not impose any prohibition against transactions or dispositions on the part of a
Committee merely because they are not “necessary”
- Moreover given that Committees are held to the standard of care of a “reasonable and prudent person of
business” it is only logical to approach applications of this kind according to whether a reasonable and prudent
business person would think that the proposal in question would be of benefit to the patent and her family in
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-
-
light of the circumstances known at the time and that might arise in the future giving paramount importance to
the patient’s own interest present and future
O’Hagan approved an ‘estate freeze’ for an 89 year-old; B is only 65 and the planned gifts taken in the
circumstances of B’s age and the possible future costs of her care are quite different and the diminution of her
estate all amount to something very different than was proposed in O’Hagan. B’s estate would go from $2.6
million to $800K and the distribution being proposed by Committee is quite different from what would happen
on intestacy under Estate Administration Act – notwithstanding the consent of B’s sons.
While tax savings are desirable, Court of Appeal is not persuaded that a reasonable and prudent businessperson
considering all circumstances and placing B’s interests first would proceed at this time with gifting regime
proposed by Committee.
Person:
***Representation Agreements
-
Trigger: if client wants to delegate power over financial and personal affairs
*note: authority over health-care decisions only kicks in when D is incapacitated; whereas authority over
financial decisions can occur when D is still of capacity
While s. 7 is called the “standard RA” they are rarely used; the s. 9 are used commonly
Representation Agreement Act
-
A person, while mentally capable, may make a representation agreement conferring on a representative powers
to deal with the financial OR personal affairs (i.e., matters other than financial, like place of residence or
provision of health care) should that person become incapable.
-
DOES NOT include advance directives, that is, a document in which the person gives express directions about
how health care is to be given, or not give, if that person become incapable.
*Note: The Adult Guardianship and Planning Statutes Amendment Act, 2007 (Bill 29 – 2007) strengthens and
clarifies representation agreements (and enduring powers of attorney). It contains provisions on advanced
directives. It has received Royal Assent but has not yet been proclaimed in force.
•
s. 7 – lower std for capacity
o requires a monitor to be appointed
o lawyer does not have to be involved (unlike s. 9)
•
s. 8 – lower std for capacity
o Test for incapacity for standard representation agreement in s. 7 of Act
o s.8 - adult may make a rep. agreement under s. 7 even thought the adult is incapable of making a contract
or managing his or her health care, personal care, legal matters, financial affairs, business or assets.
•
s. 9 – higher std for capacity
o Test for incapacity for enhanced provisions in s. 9 of Act (b/c allows rep to do more)
o s.10 -- adult may authorize a rep agreement under s. 9 unless the adult is incapable of understanding the
nature of the authority and the effect of giving it to the representative
-
s. 13 provides execution requirements
both s. 7 and s. 9 allow for alternate representatives (recommended)
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-
covers everyday financial decisions where written in (must be specifically listed)
Where there is no rep
Must give written notice to every affected person when an RA is revoked
Must specify when an alternate is to take over
Rep gets out-of-pocket expenses, but fees are only allowed when specified by the rep agreement
Termination of a rep agreement same as a POA:
1. Spouse Reps terminated on divorce unless otherwise specified
Adult must sign (or someone on their behalf) and be witnessed by 2 ppl or 1 lawyer (Note: certificates required
under s. 7 format)
Types of Representation Agreements
s. 7 – Standard Rep Agreement
s. 9 – Enhanced Rep Agreement
(rep to help make decisions or make decisions on behalf of
adult)
(rep authorized to do any or all of the enlisted items on
behalf of adult)
•
•
•
•
•
•
•
•
•
•
Lower capacity test
Requires monitor to be appointed in certain cases
(s.12)
No need for a lawyer (but not a bad idea)
Must be in writing and must meet execution
requirements (s. 13)  separate certificate of witness
is required
Can provide for alternate representatives
Cannot authorize rep to refuse health care that will
preserve your life
Becomes effective as soon as its executed
•
•
•
•
•
•
Higher capacity test
** Legal counsel needed (s. 9(2)(a)(i))+certificate)
Used for major health care decisions (including
refusing care)
Financial matters and permitted decisions must be
listed
Exhaustive listing requirements
Must be in writing and must meet execution
requirements (s. 13)
Can provide for alternate representatives
CAN authorize rep to refuse health care that will
preserve your life
Becomes effective as soon as executed but can be set
to take effect when client loses capacity
Substitute Decision Makers
TRIGGER: if client is incapacitated and needs medical treatment but does not have a representation agreement or an
advanced directive
Health Care (Consent) and Care Facility (Admissions) Act
- Act deals with decisions by adults relating to health care consent and care facility admission and who can make
“substitute decisions” on behalf of adults relating to care and admission issues.
- Requirements for substitute decision makers:
2. Must be 19;
3. Must have been in contact with the person in the last 12 months;
4. Must not be in dispute with the person, and;
5. Must be willing to comply with the specified duties.
- Should have an alternate as well (common accidents etc.)
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***Advance Directives
-
Used to be called living wills
Difference from an RA as an RA appoints a person to make decisions when you cannot, whereas an advanced
directive is your directions to a doctor right now
Parents make all decisions for a child (up to 18), but
A care facility cannot require you to sign an AD in order to gain admission
Executed similarly to wills
Health Care (Consent) and Care Facility (Admissions) Act
• s. 19.1 – 19.9– Advanced directives (not in force yet) *
o The sections deal with “Advance Directives” and allow “capable” adults to make advance directives to
give or refuse consent to any health care set out in the advance directive unless:
 (a) It is prohibited by law; or
 (b) Requires omission of anything that is required by law
o Contemplates that an adult may have both a representation agreement and advance directives.
*Note: these sections are added to the Health Care (Consent) and Care Facility (Admissions) Act (BC) by Bill 29 – 2007
(Adult Guardianship and Planning Statutes Amendment Act 2007 – not yet proclaimed in force)
***Nominations of Committee and Committeeship Applications
-
-
When a patient dies, a committee continues to have the powers of a committee and also has the powers of a
personal representative, until probate of the will or letters of administration of the estate of the deceased
patient are issued.
The committee must provide accounts to the personal representative of the patient, or if committee and the
personal representative are the same person, to the beneficiaries of the estate, for their approval. If they do not
approve the accounts, the committee may be required to pass the accounts before a court, which, on being
satisfied with the accounts, may order that the committee is discharged.
14. Probate
General:
 Applies to grant of probate applications (“letters probate”) by requiring personal representative (executor) of estate
to pay the BC government probate fees calculated based on the value of the estate (as defined in s. 1, Probate Fees
Act).
 Not all assets are included in the “value of the estate” - 2 main requirements:
1. if real and tangible property, it must be situated in BC, or if intangible, deceased must have been ordinarily
resident in BC, and
2. property passes to personal representative (i.e. not joint tenant or designated beneficiary).
 Note: Insurance policy designations to “heirs”, “next of kin” or “estate” are deemed to be designation of the
personal rep (s. 103, Insurance Act)
 Also, no payment of probate fees if value of the estate is less than $25,000 (s. 2, Probate Fees Act)
Class Example: advise Mr. and Mrs. Jones on which assets will be included in probate application
Assets of Mr. Jones (unless
specified otherwise)
Probate Fees Apply?
Method of Avoiding Probate Fees
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Mexico condo - $40,000
No.
(Only real property
situated in BC is part of
“value of the estate”
under s.1 Probate Fees
Act).
Victoria house (Mrs. Jones has
title) - $650,000
Yes.
(Real property situated in
BC)
Sole bank account - $10,000
Car - $33,000
RRSP - $300,000
Tax-Free Savings Account - $10,000
Pension BC -$150,000
Yes.
(Intangible asset and
deceased ordinarily
resident in BC, and bank
account would go to
estate and pass to
personal rep.)
Yes.
(Tangible asset located in
BC, and car would go to
estate and pass to
personal rep upon death)
Yes
(Intangible asset and
deceased ordinarily
resident in BC, and bank
account would go to
estate and pass to
personal rep.)
Yes
(Intangible asset and
deceased ordinarily
resident in BC, and bank
account would go to
estate and pass to
personal rep.)
Yes.
(Intangible asset and
deceased ordinarily
resident in BC, and bank
account would go to
estate and pass to
personal rep.)
N/A
Create joint tenancy in property so that once Mrs.
Jones dies the house will pass to Mr. Jones, not
her estate and personal rep. (but legal and
beneficial title must be jointly owned: CLE BC
article)
Create joint bank account w/ Mrs. Jones so that
once Mr. Jones dies, account goes to her and not
the estate and personal rep.
Create joint ownership in property so that once
Mr. Jones dies, title to the car passes to Mrs.
Jones and not the estate and personal rep. (but
legal and beneficial title must be jointly owned:
CLE BC article)
May avoid probate fees and taxes on estate by
designating Mrs. Jones as a beneficiary. In
general, upon death, RRSP goes directly to
beneficiary, not the estate, which avoids probate
fees. Further, RRSP is rolled onto Mrs. Jones’s
RRSP on a tax-deferred basis, thereby avoiding
significant taxes which would be otherwise
payable by the deceased’s estate if RRSP was
“cashed in” on death.
May avoid probate fees and taxes on estate by
designating Mrs. Jones as a beneficiary. In
general, upon death, TFSA goes directly to
beneficiary, not the estate, which avoids probate
fees. (Assuming beneficiary is of age of majority,
alive and competent)
May avoid probate fees and taxes on estate by
designating Mrs. Jones as a beneficiary. In
general, upon death, pension benefits go directly
to beneficiary, not the estate, which avoids
probate fees. (Assuming beneficiary is of age of
majority, alive and competent)
Probate Fee Act, S.B.C. c. 4
Definitions
1
"grant" means a grant or ancillary grant of probate and administration;
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"resealing" means a resealing under the Probate Recognition Act;
"value of the estate" means the gross value, as deposed to in a Statement of Assets, Liabilities
and Distribution exhibited to the affidavit leading to a grant or to a resealing, as the case may
be, of
(a) the real and tangible personal property of the deceased situated in British Columbia,
and
(b) if the deceased was ordinarily resident in British Columbia immediately before the date
of death, the intangible personal property of the deceased, wherever situated,
that passes to the personal representative at the date of death.
In addition to any fees payable under the Rules of Court to commence a proceeding to obtain the issue of a
2(1)
grant or a resealing and to any fees payable under the Rules of Court to file documents within that
proceeding, a fee determined in accordance with this section must be paid to the government, before
the issue of any grant or before any resealing, as the case may be, on behalf of the estate of a deceased
by the personal representative of the deceased but is payable by that personal representative in his,
her or its representative capacity only.
No fee is payable under this Act
2(2)
(a) on a grant de bonis non, a cessate grant or a double probate, or
(b) if the value of the estate does not exceed $25 000.
If the value of the estate exceeds $25 000, whether disclosed to the court before or after the issue of the
2(3) grant or before or after the resealing, as the case may be, the amount of fee payable is
(a) $6 for every $1 000 or part of $1 000 by which the value of the estate exceeds $25 000 but is not
more than $50 000 [*0.006], plus
(b) $14 for every $1 000 or part of $1 000 by which the value of the estate exceeds $50 000 [*0.014]
2(4) If, after the issue of any grant or after any resealing, the personal representative learns of the existence of
an asset of the deceased that was not disclosed in the Statement of Assets, Liabilities and Distribution
exhibited to the affidavit leading to the grant or to the resealing, determines that the value attributed to an
asset in that statement must be revised or determines that an asset was otherwise not properly disclosed,
the personal representative must disclose to the court the existence and value of that asset and must pay to
the government the difference between the fee paid before the issue of the grant or before the resealing
and any greater fee that would have been payable under subsections (1) to (3) had the asset been disclosed
or appropriately valued in the original Statement of Assets, Liabilities and Distribution.
Wills Act RSBC 1996
1 Definitions
Part 1
2 Property disposable by will
3 Writing required
4 Signatures required on formal will
5 Military forces and mariners
6 Place of signature
7 Wills of persons under 19 years of age
8 Will exercising power of appointment
9 Publication
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10 Incompetence of witness
11 Gift to attesting witness
12 Creditor as witness
13 Executor as witness
14 Revocation in general
15 Revocation by marriage
16 Revocation of gift on dissolution of marriage
17 Altering a will
18 Revival of will
19 Subsequent conveyance
20 Effective time of will
21 Lapsed and void devises and bequests
22 Inclusion of leaseholds in general devise
23 Exercise of general power of appointment by general gift
24 Devise without words of limitation
25 Gifts to heirs
26 Meaning of "die without issue"
27 Devise to trustees otherwise than for term
28 Unlimited devise to trustees
29 Gifts to issue predeceasing testator
30 Primary liability of mortgaged land
31 Executor as trustee of residue
Part 2
32 Filing of notice of will with chief executive officer
33 Filing of notice of revocation
34 Filing notice of change of place of will
35 Chief executive officer's records
36 Search of records
37 Validity of will or revocation not affected
38 Power to make regulations
Part 3
39 Definitions and interpretation
40 Wills of interest in movables
41 Change of domicile
42 Construction of will
43 Movables used in relation to land
Part 4
169
44 Application of Act
Definitions
1 In this Act:
"chief executive officer" means the chief executive officer under the Vital Statistics Act;
"will" includes a testament, a codicil, an appointment by will or by writing in the nature of a will in
exercise of a power and any other testamentary disposition.
Part 1
Property disposable by will
2 A person may by will devise, bequeath or dispose of all property, whether acquired before or after making
the will, to which at the time of the person's death he or she is entitled either at law or in equity,
including one or more of the following:
(a) estates pur autre vie, whether there is or is not a special occupant, and whether they
are corporeal or incorporeal hereditaments;
(b) contingent, executory or other future interest in property, whether the testator is or is
not ascertained as the person or one of the persons in whom those interests may become
vested and whether the person is entitled to them under the instrument by which they
were created or under a disposition of them by deed or will;
(c) rights of entry.
Writing required
3 A will is valid only if it is in writing.
Signatures required on formal will
4 Subject to section 5, a will is not valid unless
(a) at its end it is signed by the testator or signed in the testator's name by some other
person in the testator's presence and by the testator's direction,
(b) the testator makes or acknowledges the signature in the presence of 2 or more
attesting witnesses present at the same time, and
(c) 2 or more of the attesting witnesses subscribe the will in the presence of the testator.
Military forces and mariners
5 (1) A member of the Canadian Forces while placed on active service under the National Defence Act, or
member of the naval, land or air force of any member of the British Commonwealth of Nations or any
ally of Canada while on active service, or a mariner or seaman at sea or in the course of a voyage may,
regardless of his or her age, dispose of his or her real and personal estate by will in writing, signed by
the testator at its end or by some other person in the presence of and by the direction of the testator.
(2) If the will is signed by the testator, there is no necessity for the presence, attestation or subscription
of any witness.
(3) If the will is signed by another person, the signature of that other person must be attested by the
signature of at least one person, who must attest in the presence of the testator and of that other
person.
Place of signature
6 (1) A will is deemed to be signed at its end if the signature of the testator, made either by the testator or
the person signing for the testator, is placed at or after or following or under or beside or opposite to
the end of the will so that it is apparent on the face of the will that the testator intended to give effect
by the signature to the writing signed as his or her will.
(2) A will is not rendered invalid in any of the following circumstances:
(a) the signature does not follow immediately the end of the will;
(b) a blank space intervenes between the concluding words of the will and the signature;
(c) the signature is placed among the words of a testimonium clause or of an attestation
clause or follows or is after or under an attestation clause either with or without a blank
space intervening, or follows or is after or under or beside the name of a subscribing
witness;
170
(d) the signature is on a side or page or other portion of the paper or papers containing the
will on which no disposing part of the will is written above the signature;
(e) there appears to be sufficient space to contain the signature on or at the bottom of the
side or page or other portion of the same paper on which the will is written and preceding
that on which the signature appears.
(3) The generality of subsection (1) is not restricted by the enumeration of circumstances set out in
subsection (2), but a signature in conformity with section 4 or 5 or this section does not give effect to a
disposition or direction that is underneath the signature or that follows the signature or to a disposition
or direction inserted after the signature was made.
Wills of persons under 19 years of age
7 (1) A will made by a person who is under 19 years of age is not valid unless at the time of making the will
the person
(a) is or has been married, or
(b) is a person described in section 5.
(2) For the purposes of section 5 and of this section, a certificate that purports to be signed by or on
behalf of an officer who has custody of the records of the force in which a person was serving at the time
the will was made and that sets out that the person was at that time a member of a naval, military or air
force of a named country is sufficient proof of that fact.
(3) A person who has made a will to which subsection (1) applies may, while under 19 years of age,
revoke the will.
Will exercising power of appointment
8 A will made in accordance with this Act is as to form a valid execution of a power of appointment by will,
even if it has been expressly required that a will in exercise of the power be made in some form other
than that in which it is made.
Publication
9 A will made in accordance with this Act is valid without other publication.
Incompetence of witness
10 If a person who attested a will was at the time of its execution or afterward has become incompetent as a
witness to prove its execution, the will is not on that account invalid.
Gift to attesting witness
11 (1) If a will is attested by a person to whom or to whose then spouse a beneficial devise, bequest or other
disposition or appointment of or affecting property, except charges and directions for payment of debt, is
thereby given or made, the devise, bequest or other disposition or appointment is void so far only as it
concerns the person so attesting, or the spouse or a person claiming under any of them, but the person
so attesting is a competent witness to prove the execution of the will or its validity or invalidity.
(2) A devise, bequest or other disposition or appointment is not void under this section if the will is
attested in accordance with section 4 or 5 by at least the number of persons required by those sections
and who are not persons within subsection (1).
Creditor as witness
12 If property is charged by a will with a debt and a creditor or the spouse of a creditor whose debt is so
charged attests a will, the person so attesting, despite that charge, is a competent witness to prove the
execution of the will or its validity or invalidity.
Executor as witness
13 A person is not incompetent as a witness to prove the execution of a will, or its validity or invalidity, solely
because the person is an executor.
Revocation in general
14 (1) A will or part of a will is revoked only by one of the following:
(a) marriage of the testator, subject to section 15;
(b) another will made in accordance with this Act;
(c) a writing declaring an intention to revoke and made in accordance with the provisions
of this Act governing the making of a will;
171
(d) the burning, tearing or destruction of it in some other manner by the testator, or by
some person in the testator's presence and by the testator's direction, with the intention
of revoking it.
(2) A will is not revoked by presumption of an intention to revoke it on the ground of a change in
circumstances.
Revocation by marriage
15 A will is revoked by the marriage of the testator, unless
(a) there is a declaration in the will that it is made in contemplation of the marriage, or
(b) the will is made in exercise of a power of appointment of property which would not in
default of the appointment pass to the heir, executor or administrator of the testator or to
the persons entitled to the estate of the testator if the person died intestate.
Revocation of gift on dissolution of marriage
16 (1) In this section, "spouse" includes a person considered by a testator to be the testator's spouse.
(2) If in a will a testator
(a) gives an interest in property to his or her spouse,
(b) appoints his or her spouse executor or trustee, or
(c) confers a general or special power of appointment on his or her spouse,
and after the making of the will and before the testator's death
(d) a judicial separation has been ordered in respect of the marriage,
(e) the marriage is terminated by a decree absolute of divorce, or a judgment granting a
divorce under the Divorce Act (Canada) for which a certificate was or could have been
issued under that Act, or
(f) the marriage is found to be void or declared a nullity by a court
then, unless a contrary intention appears in the will, the gift, appointment or power is revoked and the
will takes effect as if the spouse had predeceased the testator.
Altering a will
17 (1) Subject to subsection (2), unless an alteration that is made in a will is made in accordance with the
provisions of this Act governing the making of a will, the alteration has no effect, except to invalidate
words or meanings that it renders no longer apparent.
(2) An alteration that is made in a will is validly made when the signature of the testator and the
subscription of the witness or witnesses to the signature of the testator to the alteration are made
(a) in the margin or in some other part of the will opposite or near to the alteration, or
(b) at the end of or opposite to a memorandum referring to the alteration and written in
some part of the will.
Revival of will
18 (1) A will or part of a will that has been in any manner revoked is revived only
(a) by a will made in accordance with this Act, or
(b) by a codicil made in accordance with this Act
that shows an intention to give effect to the will or part that was revoked.
(2) Unless a contrary intention is shown, if a will that has been partly revoked and afterward wholly
revoked is revived, the revival does not extend to the part that was revoked before the revocation of the
whole.
Subsequent conveyance
19 A conveyance of or other act relating to property comprised in a devise or bequest or other disposition,
made or done after the making of a will, does not prevent operation of the will with respect to any estate
or interest in the property that the testator had power to dispose of by will at the time of the testator's
death.
Effective time of will
20 (1) If a will has been revived or re-executed by a codicil, the will is deemed to have been made at the time
it was revived or re-executed.
172
(2) Unless a contrary intention appears by the will, a will speaks and takes effect as if it had been made
immediately before the death of the testator with respect to the property.
Lapsed and void devises and bequests
21 Unless a contrary intention appears by the will, property or an interest in it that is comprised or intended
to be comprised in a devise or bequest that fails or becomes void because of the death of the devisee or
donee in the lifetime of the testator, or because the devise or bequest is contrary to law or otherwise
incapable of taking effect, is included in the residuary devise or bequest, if any, contained in the will.
Inclusion of leaseholds in general devise
22 Unless a contrary intention appears by the will, if a testator devises
(a) the testator's land,
(b) the testator's land in a place mentioned in the will, or in the occupation of a person
mentioned in the will,
(c) land described in a general manner, or
(d) land described in a manner that would include a leasehold estate if the testator had no
freehold estate which could be described in the manner used,
the devise includes the leasehold estates of the testator or any of them to which the description extends,
as well as freehold estates.
Exercise of general power of appointment by general gift
23 (1) Unless a contrary intention appears by the will, a general devise of
(a) the real property of the testator,
(b) the real property of the testator in a place mentioned in the will or in the occupation of
a person mentioned in the will, or
(c) real property described in a general manner
includes any real property or any real property to which the description extends, that the testator has
power to appoint in any manner the testator thinks proper and operates as an execution of the power.
(2) Unless a contrary intention appears by the will, a bequest of
(a) the personal property of the testator, or
(b) personal property described in a general manner
includes any personal property or any personal property to which the description extends, that the
testator has power to appoint in any manner the testator thinks proper and operates as an execution of
the power.
Devise without words of limitation
24 Unless a contrary intention appears by the will, if real property is devised to a person without words of
limitation, the devise passes the fee simple or the whole of any other estate that the testator had power
to dispose of by will in the real property.
Gifts to heirs
25 Unless a contrary intention appears by the will, if property is devised or bequeathed to the heir or next of
kin of the testator or of another person, the devise or bequest takes effect as if it had been made to the
persons among whom and in the shares in which the estate of the testator or other person would have
been divisible if the testator or other person had died intestate.
Meaning of "die without issue"
26 (1) Subject to subsection (2), in a devise or bequest of property
(a) the words
(i) "die without issue",
(ii) "die without leaving issue", or
(iii) "have no issue", or
(b) other words importing either a want or failure of issue of a person in the person's
lifetime or at the time of the person's death or an indefinite failure of the person's issue
are deemed to refer to a want or failure of issue in the lifetime or at the time of death of that person and
not to an indefinite failure of that person's issue unless a contrary intention appears by the will.
(2) This section does not extend to cases where the words defined in subsection (1) import
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(a) if no issue described in a preceding gift be born, or
(b) if there be no issue who live to reach the age or otherwise answer the description
required for obtaining a vested estate by a preceding gift to that issue.
Devise to trustees otherwise than for term
27 Unless there is devised to a trustee expressly or by implication an estate for a definite term of years
absolute or determinable or an estate of freehold, a devise of real property to a trustee or executor
passes the fee simple or the whole of any other estate or interest that the testator had power to dispose
of by will in the real property.
Unlimited devise to trustees
28 If real property is devised to a trustee without express limitation of the estate to be taken by the trustee
and the beneficial interest in the real property or in the surplus rents and profits
(a) is not given to a person for life, or
(b) is given to a person for life but the purpose of the trust may continue beyond the
person's life,
the devise vests in the trustee the fee simple or the whole of any other legal estate that the testator had
power to dispose of by will in the real property and not an estate determinable when the purposes of the
trust are satisfied.
Gifts to issue predeceasing testator
29 (1) Unless a contrary intention appears by the will, if a person dies in the lifetime of a testator either before
or after the testator makes the will and that person
(a) is a child or other issue or a brother or sister of the testator to whom, either as an
individual or as a member of a class, is devised or bequeathed an estate or interest in
property not determinable at or before his or her death, and
(b) leaves issue any of whom is living at the time of the death of the testator,
the devise or bequest does not lapse, but takes effect as if it had been made directly to the persons
among whom and in the shares in which the estate of that person would have been divisible if the person
had died intestate without leaving a spouse and without debts immediately after the death of the
testator.
(2) Unless a contrary intention appears by the will, if a person dies in the lifetime of a testator either
before or after the testator makes the will and that person
(a) is a child or other issue or a brother or sister of the testator to whom, either as an
individual or as a member of a class, is devised or bequeathed an estate or interest in
property not determinable at or before his or her death, and
(b) leaves a spouse but does not leave issue any of whom is living at the time of the death
of the testator,
the devise or bequest does not lapse, but takes effect as if it had been made directly to the persons
among whom and in the shares in which the estate of that person would have been divisible if the person
had died intestate and without debts immediately after the death of the testator.
Primary liability of mortgaged land
30 (1) In this section, "mortgage" includes an equitable mortgage, and any charge, whether equitable,
statutory or of other nature, including a lien or claim on freehold or leasehold property for unpaid
purchase money, and "mortgage debt" has a meaning similarly extended.
(2) If a person dies possessed of, or entitled to, or under a general power of appointment by the person's
will disposes of, an interest in freehold or leasehold property that, at the time of the person's death, is
subject to a mortgage, and the deceased has not, by will, deed or other document, signified a contrary or
other intention, the interest is, as between the different persons claiming through the deceased,
primarily liable for the payment or satisfaction of the mortgage debt.
(3) For the purposes of subsection (2), every part of the interest, according to its value, bears a
proportionate part of the mortgage debt on the whole interest.
(4) A testator does not signify a contrary or other intention within subsection (2) by
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(a) a general direction for the payment of debts or of all the debts of the testator out of
the testator's personal estate or the testator's residuary real or personal estate, or the
testator's residuary real estate, or
(b) a charge of debts on that estate,
unless the testator further signifies that intention by words expressly or by necessary implication
referring to all or some part of the mortgage debt.
(5) Nothing in this section affects a right of a person entitled to the mortgage debt to obtain payment or
satisfaction either out of the other assets of the deceased or otherwise.
Executor as trustee of residue
31 (1) Unless a contrary intention appears by the will, if a person dies after this Act takes effect, having by will
appointed a person executor, the executor is a trustee of any residue not expressly disposed of for the
persons among whom and in the shares in which the estate of the testator would have been divisible if he
or she had died intestate.
(2) Nothing in this section affects or prejudices a right to which the executor, if this Part had not been
passed, would have been entitled in cases where there is not a person who would be so entitled.
Part 2
Filing of notice of will with chief executive officer
32 If a person has executed a will, a notice may be filed with the chief executive officer in a form satisfactory
to the chief executive officer.
Filing of notice of revocation
33 If a will has been revoked, whether or not a notice was filed under section 32, a notice of revocation in a
form satisfactory to the chief executive officer may be filed with the chief executive officer.
Filing notice of change of place of will
34 If notice has been filed under section 32 and the will is no longer located at the place mentioned in the
notice, notice of the change in a form satisfactory to the chief executive officer may be filed with the chief
executive officer.
Chief executive officer's records
35 The chief executive officer must maintain, in a system that he or she believes facilitates access to
information by those who require it, a record of every notice filed under this Act.
Search of records
36 (1) A solicitor of the Supreme Court of British Columbia or a member of the Society of Notaries Public of
British Columbia may, on application in a form satisfactory to the chief executive officer, ascertain from
the chief executive officer whether or not a notice has been filed under this Act.
(2) Any person other than a solicitor of the Supreme Court of British Columbia or a member of the Society
of Notaries Public of British Columbia may, on written application accompanied either by a certificate of
the death of the person named in the application or by a statutory declaration proving to the satisfaction
of the chief executive officer that the person named in the application has died, ascertain from the
director if the person has filed a notice under this Act.
(3) The chief executive officer must
(a) issue to an applicant under subsection (1) or (2) a certificate in duplicate showing the
contents of all notices filed and relevant to the application, and
(b) permit the applicant, or the agent of the applicant, to inspect the notices.
(4) The chief executive officer may provide a solicitor or member of the Society of Notaries Public of
British Columbia who is an applicant under subsection (1) with
(a) a copy of a notice filed under this Act, or
(b) access by computer or otherwise to information contained in a notice filed under this
Act.
(5) Except as provided in this section, the chief executive officer must not provide to any person
information regarding notices filed under this Act or information showing whether or not a notice has
been filed.
Validity of will or revocation not affected
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37 The failure to file or the filing of a notice under this Act does not affect the validity of a will or of the
revocation of a will.
Power to make regulations
38 The Lieutenant Governor in Council may make regulations as follows:
(a) respecting the keeping, custody, disposal, destruction and indexing of notices filed
under this Part that have been superseded or that refer to wills that have been probated;
(b) respecting the use to be made of and the procedure to be followed with respect to the
original and duplicate certificate issued under section 36;
(c) to carry into effect this Part according to its true intent;
(d) correcting deficiencies in this Part;
(e) [Repealed 2002-12-41.]
(f) prescribing fees to be paid to file a notice under this Part or to search for or inspect a
notice filed under this Part.
Part 3
Definitions and interpretation
39 (1) In this Part:
"an interest in land" includes a leasehold estate as well as a freehold estate in land, and any other
estate or interest in land whether the estate or interest is real property or is personal property;
"an interest in movables" includes an interest in a tangible or intangible thing other than land, and
includes personal property other than an estate or interest in land.
(2) Subject to other provisions of this Part, the manner and formalities of making a will, and its intrinsic
validity and effect, so far as it relates to an interest in land, are governed by the law of the place where
the land is located.
(3) Subject to other provisions of this Part, the manner and formalities of making a will, and its intrinsic
validity and effect, so far as it relates to an interest in movables, are governed by the law of the place
where the testator was domiciled at the time of his or her death.
Wills of interest in movables
40 In so far as the manner and formalities of making a will are concerned, a will, so far as it relates to an
interest in movables, made outside British Columbia is valid and admissible to probate if it is made in
accordance with the law in force at the time of its making in the place where
(a) the will was made,
(b) the testator was domiciled when the will was made, or
(c) the testator had his or her domicile of origin.
Change of domicile
41 A change of domicile of the testator occurring after a will is made does not render it invalid as regards the
manner and formalities of its making or alter its construction.
Construction of will
42 Nothing in this Part precludes resort to the law of the place where the testator was domiciled at the time
of making a will in aid of its construction as regards an interest in land or an interest in movables.
Movables used in relation to land
43 If the value of a thing that is movable consists mainly or entirely in its use in connection with a particular
parcel of land by the owner or occupier of the land, succession to an interest in the thing, under a will or
on an intestacy, is governed by the law of the place where the land is located.
Part 4
Application of Act
44 (1) Except as provided in subsections (2) and (3), this Act applies only to wills made after March 31, 1960.
(2) In the case of a person dying after March 17, 1960, sections 25 and 30 apply to the will and estate of
the testator whether the will was made before, on or after March 31, 1960.
(3) Section 16 applies to a will made before, on or after March 31, 1960.
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Wills Variation Act RSBC 1996
1 Definitions
1.1 Will or cultural property of Nisga'a citizen
1.2 Will or cultural property of treaty first nation members
2 Maintenance from estate
3 Time limit and service
4 Representative action
5 Evidence
6 Court may make order subject to conditions
7 Lump sum or periodic payments
8 Payments fall ratably on estate
9 Power to release part of estate
10 Power of court to allow commutation
11 Effect of order
12 No distribution until 6 months after probate
13 Mortgage in anticipation of order invalid
14 Court may cancel or vary order
15 Appeal to the Court of Appeal
Definitions
1 In this Act:
"court" means the Supreme Court;
"executor" includes an administrator with will annexed;
"Nisga'a citizen" has the same meaning as in the Nisga'a Final Agreement;
"Nisga'a Final Agreement" has the same meaning as in the Nisga'a Final Agreement Act;
"Nisga'a law" has the same meaning as in the Nisga'a Final Agreement;
"Nisga'a Lisims Government" has the same meaning as in the Nisga'a Final Agreement;
"probate" includes letters probate and letters of administration with will annexed.
"spouse" means a person who
(a) is married to another person, or
(b) is living and cohabiting with another person in a marriage-like relationship, including a
marriage-like relationship between persons of the same gender, and has lived and
cohabited in that relationship for a period of at least 2 years.
Will or cultural property of Nisga'a citizen
1.1 (1) As provided in paragraph 118 of the Nisga'a Government Chapter of the Nisga'a Final Agreement, the
Nisga'a Lisims Government may commence an action under this Act in respect of the will of a Nisga'a
citizen that provides for the devolution of cultural property.
(2) In any judicial proceeding under this Act in which the validity of a will of a Nisga'a citizen, or the
devolution of the cultural property of a Nisga'a citizen, is at issue, the Nisga'a Lisims Government has
standing in the proceeding as provided in paragraph 117 of the Nisga'a Government Chapter of the
Nisga'a Final Agreement.
(3) In a proceeding described in subsection (1) or to which subsection (1) or (2) applies, the court must
consider, among other matters, any evidence or representations in respect of Nisga'a laws and customs
dealing with the devolution of cultural property as provided in paragraph 119 of the Nisga'a Government
Chapter of the Nisga'a Final Agreement.
(4) As provided in paragraph 120 of the Nisga'a Government Chapter of the Nisga'a Final Agreement, the
participation of the Nisga'a Lisims Government in a proceeding described in subsection (1) or to which
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subsection (2) applies must be in accordance with the applicable Rules of Court and does not affect the
court's ability to control its process.
(5) In this section, "cultural property" has the same meaning as in paragraph 115 of the Nisga'a
Government Chapter of the Nisga'a Final Agreement.
Will or cultural property of treaty first nation members
1.2 (1) If the final agreement of a treaty first nation so provides, the treaty first nation may commence and may
intervene in an action under this Act in respect of a will of a treaty first nation member of the treaty first
nation if the will provides for the devolution of cultural property.
(2) If the final agreement of a treaty first nation so provides, in any judicial proceeding under this Act in
which
(a) the validity or variation of a will of a treaty first nation member of the treaty first
nation, or
(b) the devolution of cultural property of a treaty first nation member of the treaty first
nation
is at issue, that treaty first nation has standing in the proceeding.
(3) In a proceeding described in subsection (1) or to which subsection (2) applies, the court must
consider, among other matters, any evidence or representations in respect of the applicable treaty first
nation's laws or customs dealing with the devolution of cultural property.
(4) The participation of a treaty first nation in a proceeding described in subsection (1) or to which
subsection (2) applies must be in accordance with the applicable Rules of Court and does not affect the
court's ability to control its process.
(5) In this section, "cultural property", in relation to a treaty first nation, has the same meaning as in the
final agreement of the treaty first nation.
Maintenance from estate
2 Despite any law or statute to the contrary, if a testator dies leaving a will that does not, in the court's
opinion, make adequate provision for the proper maintenance and support of the testator's spouse or
children, the court may, in its discretion, in an action by or on behalf of the spouse or children, order
that the provision that it thinks adequate, just and equitable in the circumstances be made out of the
testator's estate for the spouse or children.
Time limit and service
3 (1) An action must not be heard by the court at the instance of a party claiming the benefit of this Act
unless
(a) the action is commenced within 6 months from the date of the issue of probate of the
will in British Columbia or the resealing in British Columbia of probate of the will,
(b) a copy of the notice of civil claim has been served on the executor of the will, and
(c) if there are minor children of the testator, or if the spouse or a child of the testator is
mentally disordered, a copy of the notice of civil claim has been served on the Public
Guardian and Trustee.
(1.1) An action in respect of the will of a Nisga'a citizen must not be heard by the court at the instance of
a party claiming the benefit of this Act unless a copy of the notice of civil claim has been served on the
Nisga'a Lisims Government.
(1.2) An action in respect of the will of a treaty first nation member of a treaty first nation in relation to
which section 1.2 (1) or (2) applies, other than an action commenced by the treaty first nation, must not
be heard by the court at the instance of a party claiming the benefit of this Act unless a copy of the notice
of civil claim has been served on that treaty first nation.
(2) If the Public Guardian and Trustee is served with a copy of the notice of civil claim under subsection
(1), the Public Guardian and Trustee is entitled to appear, to be heard and to any costs that the court
orders.
Representative action
4 (1) If an action has been commenced on behalf of a person, it may be treated by the court as, and so far as
regards the question of limitation is deemed to be, an action on behalf of all persons who might apply.
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(2) Within 10 days after the filing of a notice of civil claim, a plaintiff in an action must register a
certificate of pending litigation in the approved form under the Land Title Act against the land sought to
be affected in the land title office in which the title to the land is registered.
Evidence
5 (1) In an action under section 2 the court may accept the evidence it considers proper of the testator's
reasons, so far as ascertainable,
(a) for making the dispositions made in the will, or
(b) for not making adequate provision for the spouse or children,
including any written statement signed by the testator.
(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 make order subject to conditions
6 The court may
(a) attach the conditions to an order under this Act that it thinks fit, or
(b) refuse to make an order in favour of a person whose character or conduct, in the
court's opinion, disentitles the person to the benefit of an order under this Act.
Lump sum or periodic payments
7 In making an order the court may, if it thinks fit, order that the provision for the testator's spouse or
children is to consist of a lump sum or a periodic or other payment.
Payments fall ratably on estate
8 (1) Unless the court otherwise determines, the incidence of the payments ordered falls ratably on the
whole estate of the testator.
(2) If the authority of the court does not extend or cannot, directly or indirectly, be made to extend to the
whole estate, subsection (1) applies to as much of the estate as is located in British Columbia.
Power to release part of estate
9 (1) The court may exonerate a part of the testator's estate from the effect of the order after hearing those
of the parties that may be affected by the exoneration that it considers necessary.
(2) For the purposes of subsection (1), the court may direct any executor or trustee, or appoint any
person, to represent any of those parties.
Power of court to allow commutation
10 (1) The court may at any time set a periodic payment or lump sum to be paid by a legatee or devisee, to
represent, or in commutation of, the proportion of the sum ordered to be paid that falls on the portion of
the estate in which the legatee or devisee is interested, and may exonerate that portion from further
liability.
(2) The court may direct
(a) how the periodic payment must be secured,
(b) to whom the lump sum must be paid, and
(c) how a lump sum must be invested for the benefit of the person to whom the
commuted payment was payable.
Effect of order
11 On an order being made under this Act, the portion of the estate comprised in it or affected by it must be
held subject to the provisions of the order, but the order does not bind land unless it is registered as a
charge against the land affected in the land title office in which the title to the land is registered.
No distribution until 6 months after probate
12 (1) Until 6 months have passed from the issue of probate of the will in British Columbia or the resealing in
British Columbia of probate of the will, the executor or trustee must not distribute any portion of the
estate to beneficiaries under the will except
(a) with the consent of all persons who would be entitled to apply, or
(b) if authorized by order of the court.
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(2) Until the period referred to in subsection (1) has passed, a title passing by devise to a beneficiary must
not be registered in a land title office unless under a similar consent or order, except subject to the
liability of being charged by an order made under this Act.
Mortgage in anticipation of order invalid
13 (1) A person for whom provision is made under this Act must not anticipate that provision.
(2) A mortgage, charge or assignment of any kind of or over that provision made before the order of the
court is of no effect.
(3) A mortgage, charge or assignment made after the order of the court is made is of no effect unless
made with the court's permission.
Court may cancel or vary order
14 If the court has ordered periodic payments, or that a lump sum be invested for the benefit of a person, the
court may
(a) inquire whether at any subsequent date the party benefited by its order has become
possessed of or entitled to provisions for that person's proper maintenance or support,
and into the adequacy of those provisions, and
(b) cancel, vary or suspend its order, or make another order that is just in the
circumstances.
Appeal to the Court of Appeal
15 A person who considers himself or herself prejudicially affected by an order made under this Act may
appeal to the Court of Appeal.