Death & the Body ............................................................................................................... 6
If There is No Body ................................................................................................................... 6
Estate of Missing Persons Act ................................................................................................ 6
Who Died First? ........................................................................................................................ 6
Survivorship and Presumption of Death Act .......................................................................... 6
Re Law [1946, BCSC] ............................................................................................................ 6
Re Topliss and Topliss [1957, ONCA] ................................................................................... 7
Wing v. Angrave [1860, HL] .................................................................................................. 7
Leach v. Egar [1990, BCCA] ................................................................................................. 7
Re Cyr [2006, BCSC] ............................................................................................................. 7
Insurance Policies ................................................................................................................................. 8
The Body .................................................................................................................................... 8
Funeral Plans......................................................................................................................................... 8
Cremation, Interment and Funeral Services Act ..................................................................... 8
Kartsonas v. Stanolous [2010, BCCA] ................................................................................... 8
Anatomy Act........................................................................................................................... 9
Human Tissue Gift Act ........................................................................................................... 9
Wills .................................................................................................................................... 9
Discussion of Some Key Terms ................................................................................................ 9
Four Required Characteristics of a Will ............................................................................... 10
Basics of Giving under a Will................................................................................................. 10
Bird v. Perpetual Executors and Trustees Association of Australia [1946, Aus. HC] ...........10
Ownership ............................................................................................................................................11
Some Common Types of Wills: ...........................................................................................................11
Conditional Wills ............................................................................................................................11
Joint and Mutual/Reciprocal Wills ..................................................................................................11
Re Gillespie [1968, ONCA] ..................................................................................................12
University of Manitoba v. Sanderson Estate [1998, BCCA] .................................................12
Grey v. Perpetual Trustee [Aus] ............................................................................................13
Birmingham v. Renfrew [1937, Aus] ....................................................................................13
Elements of Unjust Enrichment ..................................................................................................13
Identifying Joint and Mutual Wills .............................................................................................13
Brynelsen Estate v. Verdeck [2002, BCCA] .........................................................................13
Edeil v. Sitzer [2001, ONSC; aff’d 2003 ONCA] .................................................................14
Holographic Wills ...........................................................................................................................14
Bennet v. Grey [1985, SCC] ..................................................................................................14
Formalities ....................................................................................................................... 15
What Types of Wills are Allowed in Canada?...................................................................... 15
What Jurisdiction Governs the Requisite Formalities of a Will? .........................................................15
How Strict are the Formalities Requirements? .................................................................... 15
Krause v. Toni [1999, BCSC] ................................................................................................15
Boulton v. Tartaglia [2000, BCSC] .......................................................................................15
Presumption of Due Execution ............................................................................................................15
Five Requirements for a Will ................................................................................................. 16
1. Must be in Writing ...........................................................................................................................16
2. Must be Signed at the End ...............................................................................................................16
3. Must be Signed by Two Witnesses ..................................................................................................17
4. Testator must Sign or Acknowledge in Presence of Witnesses .......................................................18
1
5. Witnesses Must Sign in Presence of Testator ..................................................................................19
Incorporation by Reference ................................................................................................... 19
Revocation and Revival of Wills ...................................................................................... 19
By Operation of Law: Marriage or Dissolution of Marriage .............................................. 20
Revocation by Act of Testator ................................................................................................ 21
1. Revocation by Subsequent Instrument .............................................................................................21
2. Revocation by Declaration ...............................................................................................................22
3. Revocation by Physical Act .............................................................................................................22
Lost Wills ................................................................................................................................. 23
Alteration of Wills ................................................................................................................... 24
Conditional Revocations ......................................................................................................... 25
Interpretation (Construction) .......................................................................................... 26
General ..................................................................................................................................... 26
The Law of Probate & the Law of Construction: Evidentiary Rules ...................................................26
Definitions: ..........................................................................................................................................27
Decore Estate (2009) AB QB: ...............................................................................................27
Policy reasons for restricting the general admission of extrinsic evidence which may be probative of
the testator’s intent or meaning: ...........................................................................................................28
Points re Construction ..........................................................................................................................28
Applicable Rules of Interpretation ........................................................................................ 29
General Principles of Construction ......................................................................................................29
1) Take the Whole Will in Context .................................................................................................29
2) Presume that Identical Words have Identical Meaning ...............................................................29
3) Give Effect to all of the Words (and all Letters in the Word) .....................................................29
4) Ejusdem Generis .........................................................................................................................30
5) General and Particular Intention Toward a Gift – if they are inconsistent, the ...........................30
particular intention is lost to the general .........................................................................................30
6) If there are Multiple Interpretations, Presume that the Intended Outcome was the One that
Doesn’t Leave an Intestacy .............................................................................................................30
7) Presumption of Rationality .........................................................................................................30
8) Presumption of legality ...............................................................................................................30
9) Presumption against disinheritance .............................................................................................30
10) if the will contains a irreconcilable disposition, interpret it in a way that there is no
inconsistency (“the rule of last resort and ultimate despair”) ..........................................................31
Specific Rules of Construction ............................................................................................................31
Interpretation of Some Key Terms ..................................................................................................31
Spouse ........................................................................................................................................31
Children ......................................................................................................................................31
Grandchildren .............................................................................................................................32
Issue ............................................................................................................................................32
Next of Kin .................................................................................................................................32
Houses ........................................................................................................................................32
Gifts to More than One Person ........................................................................................................32
Per Capita and Per Stirpes Distributions .........................................................................................32
Re Karkalatos Estate [1962, SCC] .........................................................................................33
Re Clark Estate [1993, BCSC] ..............................................................................................33
Re Campbell Estate ...............................................................................................................33
Power of Selection ..........................................................................................................................34
Naming ............................................................................................................................................34
2
Evidence of Intent ................................................................................................................................34
Mistake ..................................................................................................................................... 35
1. Drafting Error...................................................................................................................................35
2. Patent Mistake ..................................................................................................................................36
Clarke v. Brothwood [2006, Eng. Ch.] ..................................................................................37
3. Execution of Wrong Document .......................................................................................................37
Doctrine of Republication....................................................................................................... 37
Common Law Doctrines .................................................................................................. 38
Introduction ............................................................................................................................. 38
Key Concepts .......................................................................................................................................38
Four Types of Gifts ..............................................................................................................................38
1. General and Pecuniary Gifts........................................................................................................38
2. Specific Gifts ...............................................................................................................................39
3. Demonstrative Gifts ....................................................................................................................39
4. Residuary ....................................................................................................................................39
Order of Payment .................................................................................................................................39
Ademption................................................................................................................................ 40
Tracing .................................................................................................................................................40
Conversion ...........................................................................................................................................41
Appurtenance .......................................................................................................................... 42
Elections ................................................................................................................................... 42
Satisfaction............................................................................................................................... 43
1. Double Portions & Satisfaction of Legacies ....................................................................................43
2. Satisfaction of Debts ........................................................................................................................43
3. Hotchpot Rule ..................................................................................................................................44
4. Satisfaction of portion debts ............................................................................................................44
Disclaimer ................................................................................................................................ 44
Acceleration Issues ..............................................................................................................................45
Lapse ........................................................................................................................................ 45
Exceptions to the Doctrine of Lapse ....................................................................................................45
Moral Obligation .............................................................................................................................46
Joint Tenancy ..................................................................................................................................46
Class Gifts .......................................................................................................................................46
Statutory Anti-Lapse ............................................................................................................................46
Challenging a Will ........................................................................................................... 48
Background.............................................................................................................................. 48
Knowledge, Suspicion, and Undue Influence ....................................................................... 49
Maddess v. Estate of Johanne Gidney [2009, BCCA] ...........................................................49
Harms v. Hinkson [1946, PC]................................................................................................50
Russel v. Fraser [1980, BCCA] .............................................................................................51
Mental Capacity ...................................................................................................................... 51
Royal Trust Company v. Rampone [1974, BCSC] ................................................................52
Re Estate of Bohrmann [1938, Eng. PDA] ............................................................................53
Timing ..................................................................................................................................................53
A Solicitor’s Role in Questioning Capacity .........................................................................................54
Undue Influence ...................................................................................................................... 54
3
Craig v. Lamoureaux [1920, PC] ...........................................................................................55
Fraud ........................................................................................................................................ 55
Wilkinson v. Joughin [1866] .................................................................................................55
Lawyers’ Duties and Responsibilities .................................................................................... 55
1. Taking Instructions ..........................................................................................................................55
2. Duties to Beneficiaries .....................................................................................................................56
3. Insurance Duties...............................................................................................................................56
Variation of Wills ............................................................................................................. 57
Background on the Wills Variation Act ................................................................................ 57
Important Sections: ..............................................................................................................................57
Who Can Apply? ..................................................................................................................... 58
Timeline.................................................................................................................................... 59
Obligations Addressed By the Wills Variation Act .............................................................. 59
Tataryn v. Tataryn [1994, SCC] ............................................................................................59
Spousal Claims ....................................................................................................................................60
Moral Obligation to Spouse ............................................................................................................61
Bridger v. Bridger Estate [2006, BCCA] ...............................................................................61
Saugestad v. Saugestad [2008, BCCA] .................................................................................61
Pickets v. Hall Estate [2009, BCCA] .....................................................................................62
Some Specific Spousal Claim Issues...............................................................................................63
Children’s Claims ................................................................................................................................63
Legal Obligations ............................................................................................................................63
Moral Obligations ...........................................................................................................................63
Some Specific Considerations for Children’s Claims .....................................................................63
Discretion in Making Orders ................................................................................................. 64
Factors Considered by the Court: .........................................................................................................64
Standard of Living...........................................................................................................................65
Disabled Applicants? ......................................................................................................................65
Circumstances of the Claimant .......................................................................................................65
Gifts to Children Outside the Will ..................................................................................................65
Contributions to the Estate Made by the Applicants .......................................................................66
McBride .................................................................................................................................66
Wilcox ...................................................................................................................................66
Change in circumstances .................................................................................................................66
Competing claimants .......................................................................................................................66
Testamentary intentions ..................................................................................................................67
Effects of taxes ................................................................................................................................67
Waldron v. Blumes ................................................................................................................67
Contrary to Public Policy? ..............................................................................................................68
What’s most important? .......................................................................................................................68
The Court Can Consider Whatever Evidence it Thinks Proper ...........................................................68
Property Available under a WVA Application .................................................................... 68
Assets in a trust during lifetime of testator ..........................................................................................68
Mordo v. Nitting ....................................................................................................................68
Insurance policies go directly to beneficiary........................................................................................69
Contractual Restraints ........................................................................................................... 69
Harvey ...................................................................................................................................69
Fry Estate ...............................................................................................................................69
Intestacy............................................................................................................................ 70
4
General Rules .......................................................................................................................... 70
Definitions of Recipients ......................................................................................................... 70
Who Can Take .....................................................................................................................................70
Spouse ..................................................................................................................................................71
Gosbjorn v. Hadley [2008, BCSC] ........................................................................................72
How do you Determine Settled Intention to Live Separate and Apart? ..........................................72
Children ...............................................................................................................................................72
Distribution of Estate .............................................................................................................. 74
Shares (in order of distribution) ...........................................................................................................74
1. Preferential Share ........................................................................................................................74
2. Distributive Share ........................................................................................................................74
3. Other Rights ................................................................................................................................74
Calculation of Advancement ................................................................................................................74
Inter Vivos Gifts ............................................................................................................... 74
Joint Tenancy .......................................................................................................................... 75
Pecore ....................................................................................................................................76
Inter Vivos Gifting .................................................................................................................. 76
Beneficiary Designations – Employment, RRSP, and RRIG .............................................. 77
Life Insurance Designation..................................................................................................... 78
A&S Designation ..................................................................................................................... 79
RRIFS....................................................................................................................................... 80
1) Is it testamentary? ......................................................................................................................80
National Trust v Robertshaw .................................................................................................80
2) What if didn’t change beneficiary designation as intended? (constructive trust) ........................81
Roberts v Martindale .............................................................................................................81
3) In BC, power of attorney cannot change your beneficiary designations because that is a
testamentary act ...............................................................................................................................81
Incapacity Planning ......................................................................................................... 82
Power of Attorney ................................................................................................................... 82
Basics ...................................................................................................................................................82
Four Types ...........................................................................................................................................82
Powers and Requirements ....................................................................................................................82
Formalities ...........................................................................................................................................83
Enduring Power of Attorney ................................................................................................................83
Requirements ..................................................................................................................................83
Springing Power of Attorney ...............................................................................................................83
Revocation ...........................................................................................................................................84
Gifts/Loans...........................................................................................................................................84
Changing Beneficiaries ........................................................................................................................84
Nomination of Committee ...................................................................................................... 85
O’Hagen ................................................................................................................................85
Re Bradley .............................................................................................................................85
Advance Directive ................................................................................................................... 85
Representation Agreement ..................................................................................................... 86
5
Death & the Body
If There is No Body
 There is a presumption that a person is still alive.
 To rebut this presumption, an inference is required such that death flows logically from
a known fact
 That conclusion, in turn, can be rebutted by showing that there is another explanation.
o E.g. family difficulties, more than one person disappeared, financial difficulties,
huge influx of money
 If a person isn’t heard from for seven years (continuously absent, not heard from by
those who would normally have received news from them), then they are presumed
dead.
o Uncertain: implications of modern technology. If you only hear via email for 7
years, and no one actually sees the person, does that count? We aren’t sure.
Estate of Missing Persons Act
 If a person is reported as missing for three months, the state can appoint someone to
look after their affairs.
 The Act is so old it’s almost useless.
 BCSC can appoint a curator (usually an administrative official for BC under the Public
Guardian and Trustee
 Can sign documents etc., but s. 4 of the Act says the curator has no power to sell or
mortgage property valued over $100
 Also, makes Power of Attorney void.
 So…it’s good to be aware of this Act, but we will probably never use it in practice.
Who Died First?
 Issue: if two people die at the same time, it’s not clear who died first – but it may be
important to know this.
Survivorship and Presumption of Death Act
 If two people die at the same time, the youngest person is presumed to have died first.
 So, if a husband and wife both die in a car crash, e.g., whoever was younger is
presumed to have survived the other. [s. 2(1)]
 S. 5(1) and (2) deal with situations where a person is declared deceased and comes
back, but all their property is gone.
o Deemed to be a final distribution, but courts can make orders as they consider
appropriate regarding preservation and return.
Re Law [1946, BCSC]
 Facts: Father, son and son’s wife all go out to sea in a rowboat; all die. Son/wife are
both intestate.
 Issue: Timing of deaths of son/wife
o If son died first, estate goes to his wife then to her daughter from a previous
6
marriage.
o If wife died first, estate goes to the son/husband and then to his mother
o Under s. 2(1) of the Survivorship and Presumption of Death Act, everything
would go to the daughter because the wife was younger.
o However, s. 2(2) of the Act stipulates that the Act is subject to the Insurance
Act.
o In a situation where it’s unclear who died first, s. 83 of the Insurance Act deems
the beneficiary of an insurance policy to have predeceased.
 Held: court found that the Insurance Act prevailed here.
o So, reverses the order and the son is deemed to have died last. Estate goes to his
family.
Re Topliss and Topliss [1957, ONCA]
 Facts: husband and wife both died. Husband was older, but wife was beneficiary of
insurance policies.
 Held: Insurance Act deems beneficiary to have predeceased. BUT, court applied
Survivorship Act to the husband’s estate, so it went back through and went to wife’s
estate after all.
Wing v. Angrave [1860, HL]
 Facts:
o Husband, wife, three kids. Headed to Australia and all die in a shipwreck. Sole
survivor of wreck saw the whole family swept off the deck in a wave.
o Both parents had wills, and each will said “if I die before my spouse, all
property to Mr. Wing”
 Issue: next of kin (cousins) challenged Wing and said that if he couldn’t prove who had
died first, it reverted to them.
 Held: cousins lost.
 Analysis
o Court engages in a discussion of the capacity of males vs. females, who would
have asphyxiated first.
o The party trying to get the gift (i.e. the potential beneficiary) has the burden of
proof.
 Should have said “before or at the same time as” – would have solved the problem.
Leach v. Egar [1990, BCCA]
 Facts: husband and wife divorced, wife and sons take trip to Mexico and they all die.
 Issue: Wife’s mother wanted to take her estate, because she didn’t want it to go through
sons to the father. Said it was unfair for the estate to go to her ex-husband.
 Held: sons deemed to have died later. Wife’s estate divided in two and given to sons,
then it reverts to their father.
o Court didn’t accept wife’s mother’s equity argument. Ex-husband received his
sons’ estates, not his ex-wife’s.
Re Cyr [2006, BCSC]
 Facts: Deceased was in Hell’s Angels gang, told his girlfriend he thought ppl were out
7
to get him and that he might not come home.
 Issue: presumption of death on disappearance
 Court said it wasn’t proven on BOP reasonable grounds that he was dead.
 …Honestly, I don’t know what would satisfy this, then.
Insurance Policies
 Alternates
o Policies list a beneficiary, and also often an alternate (for if beneficiary
predeceases or dies at the same time.
o If there’s no alternate, it reverts to the estate (as if on intestacy)
 The Insurance Act doesn’t care about relationships, just the name.
 There is no way to vary an insurance policy.
 Insurance Act s. 117: in most other provinces, a spouse needs to sign in order for you
to give your insurance policy to someone else, but in BC you don’t have to do that.
 Declarations:
o If you write in your will that you give a life insurance policy to someone, and
the court finds the will invalid, the declaration is still valid.
o Insurance declarations don’t have the same signing requirements as wills
o In practice, though, just make it a separate document.
o A revoked will containing a declaration means that the declaration is void.
The Body
Funeral Plans
Cremation, Interment and Funeral Services Act
 Divides body into human remains or cremated remains
 S. 5 (key provision) – (1) control of remains is based on the following hierarchy:
o (a) personal representative named in will
o (b) spouse
o (c) adult child
o (d) adult grandchild
o (e) legal guardian (if deceased was a minor)
o (f) parent
o (g) adult sibling
o (h) adult nephew or niece
o (i) adult next of kin, determined per ss. 89 and 90 of the Estate Administration
Act
o (j) the minister under the Employment and Assistance Act, or, if the official
administrator under that act is administering the estate of the deceased, then the
official administrator.
o (k) an adult person w/ personal or kinship relationship to the deceased, other
than those listed above.
Kartsonas v. Stanolous [2010, BCCA]
8
 Facts: Family had a falling out. T made new will and named niece as personal
representative, niece’s son as beneficiary.
 Issue: several lawsuits arose around the will. This one was about the children’s
application for the right to dispose of the remains.
o Children wanted a Greek Orthodox funeral, but niece contested b/c T wasn’t
practicing at time of death.
 TJ Held: Greek Orthodox funeral in Canada w/ joint custody of the remains to T’s
children and niece.
 CA held: Dismissed appeal
o But said deceased was estranged from children and trusted the niece.
o The reason they dismissed the appeal was that the particular designation given
wasn’t even a will, it was invalid, and thus the children prevailed on intestacy.
Anatomy Act
 S. 2 – Unclaimed bodies
o If not claimed w/in 48 hours, bodies are placed in the care of the Minister
 Note: this won’t come up often – lawyers don’t tend to get involved here.
Human Tissue Gift Act
 Basically, just be aware that it exists.
 You can do transplants before or after death, in accordance with the Act
 S. 4: consent to transplant after death
o Either orally or in writing during a last illness
o If the person hasn’t reached 19, but the person doing the transplant thought they
were 19, that’s ok.
 S. 5: Spouse or other parties listed can give consent to transplant after death
o But can’t give consent if reason to believe deceased would have objected
o So, onus on the person giving consent to know whether or not deceased would
have consented.
 S. 10: Tissue sales are not legal in Canada. That includes blood.
Wills
Discussion of Some Key Terms
 Give, bequeath, devise
o Devise: real property
o Bequeath: personalty
 Testator
o Soon, this is going to be changed to “will-maker” (WESA)
o If a person dies with a valid will: testate.
o If a person dies without a valid will: intestate.
 Personal representative
o Responsible for collecting and distributing the property of the deceased.
o If there is a will, the personal representative is called the executor.
o If there is no will, the personal representative is called the administrator.
9
o Differences:
 An executor under a will can renew a mortgage, but an administrator
cannot.
 An executor under a will gets letters probate; an administrator gets
letters of administration.
 Residue
o Everything that’s left after specific bequests are made
Four Required Characteristics of a Will




1. Disposes of Testator’s property
2. Takes effect upon death/is dependent on death
3. Revocable until death [see Andruchow Estate v. Seniuk]1
4. Made with intention of being a testamentary document
Basics of Giving under a Will
 Two options when giving something away: inter vivos and testamentary gifts
o Any testamentary gift is revocable  as long as T is competent, can rewrite
will or change a designated beneficiary of RRSP, etc.
 A will is ambulatory – it can change.
o For an inter vivos gift, debts aren’t taken into account (as long as the property
in question isn’t secured)
o For a will, debts are paid off first, then gifts are distributed
 The law of wills – aka the law of construction:
o Determines the validity of each distribution within the will
 Guardians
o Infants Act, s. 20  a parent can appoint a guardian by deed or will for a child
under 19
o This doesn’t overwrite the other parent’s rights, it simply gives guardianship
status – and then they can argue over custody under the Family Relations Act
 Power of appointment
o Funds may be left to a party who is given authority to distribute them
o Can choose to distribute to self
 Wishes expressed in a will are not binding on the executor
 A testator can only have one Last Will, but it may be contained in multiple documents.
Bird v. Perpetual Executors and Trustees Association of Australia [1946, Aus. HC]
 Facts:
o Mrs. Bird took in her brother-in-law, sister and husband for years.
o The brother-in-law wrote a document under seal saying he acknowledged that
he was under debt to her, and ordered his trustees to pay after his death. That
document was delivered to her lawyer.
Andruchow Estate v. Seniuk: Court noted: “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’.”
1
10
 Issue: did the document validly convey a gift to Mrs. Bird?
o Opposing party argued it wasn’t a valid will
o Was it an acknowledgment of a debt due by testator and payable on his death?
 Held: invalid will. No payout to Mrs. Bird.
 Reasons:
o It was testamentary, not inter vivos, and it wasn’t a valid will so it couldn’t
pass.
o It wasn’t a specific debt since the amount was ongoing – interest and increasing
amounts, etc.
Ownership
 No one owns anything given under the will until the T is actually dead
 Expectant interests – not vested.
 Other people (such as someone with Power of Attorney) can dispose of property before
death even if the will says property goes to a particular person.
o Anecdote: grandchild w/ PoA sold condo and used funds to support
grandmother. Turned out in the will that grandmother had left her the condo.
SOL.
 Could have a condition precedent or subsequent:
o CP: to x provided y happens  gifts don’t vest until the event
o CS: to x unless y happens  gift vests, but may be lost
Some Common Types of Wills:
Conditional Wills
 Only valid under prescribed circumstances
 Test: was the event the reason for making the will [Heubner]2 or a condition for the
operation of the will [Porter]3?
o If it was just the reason for making the will, then the will is valid.
o If the event was actually a condition for the operation of the will, then the will
is invalid
o The determination is pretty context-specific.
Joint and Mutual/Reciprocal Wills
 Mutual/Reciprocal: husband and wife have same will with names switched
o Not a binding K or anything – can change, e.g. if one spouse dies, the other
spouse doesn’t have to stick with the same document.
 Joint will: husband and wife’s wills on the same piece of paper.
Re Heubner [1974, MBQB]: Will said “should I die while on this trip”...all to best friend & his wife. T’s
siblings argued invalid because he died well after the trip to Russia. He hadn’t spoken to siblings in years,
but was close with the friends right up until his death. Held: the words “on this trip” referred to the making
of the will, but don’t render the will invalid. Reason for making a will, but didn’t make the will conditional
on him dying on the trip.
3
In the Goods of Porter: The words “at that time” limited the will to the period discussed (joining his
regiment in China). Whereas in Heubner it was the reason for making the will, in this case it made the
will’s application conditional on the circumstances described.
2
11
 In a joint will, the instrument itself is evidence of the agreement. [Dufort v. Perreria
(1789, UK)]
o He who dies has performed his part of the agreement, so the other party
becomes a trustee and has to enforce.
Re Gillespie [1968, ONCA]
 Facts:
o 1948: husband and wife write wills. Life estate to each other, everything else to
MLH (Minnie), a friend.
o 1956: wife dies. H successfully probates the will. But some property didn’t pass
under the will.
 A property, “Baby Point”, was held in joint tenancy, so he didn’t take
it under the will.
o 1963: Husband makes a new will, then he dies.
o H was the executor of W’s will, so the executor of H’s will becomes W’s
executor too, now.
o So, H’s executor goes to court to ask what to do about Baby Point.
 Held: Half of the property to MLH, half to be disposed of as set out in husband’s will.
 Reasons
o By signing the will in 1948, they severed the JT. So, since it was TinC when
she died, her half of the property went to him on a life estate, under the will.
 So, after his death it goes to MLH, per wife’s will.
o His half he held until he died, and then for some other reason I think it still
went to MLH?
o The mere existence of a joint will is not conclusive evidence of an agreement
not to revoke.
o According to the original wills, all property owned by the husband and wife
was agreed to go to MLH.
o Court found that the agreement brought about a trust, such that all property
owned by H and W up to wife’s death had to go to MLH after husband died.
 After-acquired property is not impressed by the trust  anything
husband acquired after the wife’s death was not covered, and went
according to his own will.
o Three requirements to find a trust from joint will:
 1. Will gives survivor a life estate in the property
 2. Survivor must receive a benefit?
 3.
University of Manitoba v. Sanderson Estate [1998, BCCA]
 Facts:
o
o
o
o
o
o
Will written by M and K in 1970 leaves everything to University of Manitoba.
Codicil in 1973, changed wording but still left to U of M.
1977 changed executor
1984 executor wrote to them and said they should review their wills
1985, K dies. Basically everything was held on JT, so survivorship sent it to M.
The next month, M changed his will, leaving only one quarter of estate to U of
12
M, the rest to family, creditors etc.
 Note: under wills law, he had the right to make these changes, but not
under their agreement.
o 1985: M dies. Montreal trust co receives probate, but found U of M filed a
caveat and was owed notice of changes.
 Result: Everything went to U of M
o If there hadn’t been an agreement, there wouldn’t have been any issue with M’s
will.
o But, since there was an agreement, everything subject to the trust went to U of
M  everything he owned.
Grey v. Perpetual Trustee [Aus]
 You can always change your will.
 But, may have to look beyond the later will to the agreement.
 If an agreement is found, courts impose a trust.
Birmingham v. Renfrew [1937, Aus]
 Equity acts as a floating obligation.
 In life, you can do whatever you want, but on death the property must be passed in
accordance w/ the agreement.
 Though, there are also cases that ask how much you can do with the property while you
have a life estate.
Elements of Unjust Enrichment
 1. Enrichment
 2. Deprivation
 3. No juristic reason
 Note: these are not the same as the rules for unjust enrichment in family law.
Identifying Joint and Mutual Wills
 Standard of proof:
o Joint will status must be proved in fact
o Mutual wills: need strong evidence
 A will can always be revoked
 Joint will: survivor becomes a constructive trustee of all the assets in existence at the
death of the first party
Brynelsen Estate v. Verdeck [2002, BCCA]
 Facts: Lillian had had three husbands. Her will left estate to 2nd H’s daughters, but the
will was old. Cousins sought to overturn.
 Held: no constructive trust.
 Reasons:
o The critical period is when the wills were made.
o It’s unlikely she was close to the daughters at the time the will was made, even
if she did grow to love them.
13
o So, no trust for the daughters. She was not agreeing to make the will
irrevocable.
Edeil v. Sitzer [2001, ONSC; aff’d 2003 ONCA]
 Facts:
o Paul and Geraldine owned properties through a holding company
o 1984 wills gave life estates to each other (w/ encroachment), and then
everything to their two children.
o 1991: Wife died. Before her death, they talked to a bunch of advisors about
doing an estate freeze.
o At time of death, estate was worth about $30 million. Trusts for children &
grandchildren.
o When wife died, everything went to husband. He made more trusts for
grandchildren, but then had a falling out with a daughter
o The daughter married a lawyer and sued her father. She argued that the parents
had an agreement that everything would go equally to the two children, and
thus everything father owned should be held as a trustee (half for her and half
for her brother)
 Held: No binding obligation on father to hold everything in trust for kids.
 Reasons:
o You must have more than just an agreement about what to do.
o There must be evidence that both parties entered into a contract, with an intent
never to change that scheme.
o But in this case, they had discussed many options, and tried many schemes,
changing repeatedly  indicated the opposite intention.
Holographic Wills
 Wills written entirely in handwriting of testator, no witnesses.
 Currently not legal in BC (though they will potentially be validatable under WESA s.
58, which grants a judge discretion to make an order validating a will despite a
deficiency)
 Wills Act, s. 5: can have a holographic will in BC if the testator is a member of the
Canadian Armed Forces.
o They can sign it themselves without a witness, or someone else can sign on
their behalf with another witness attesting.
 Wills Act s. 41: a change of domicile doesn’t make a will invalid
o So, a holographic will made validly in a jurisdiction that allows them  will be
valid in BC.
Bennet v. Grey [1985, SCC]
 Letter from testatrix showed some testamentary intent, was entirely in T’s handwriting
and was signed by her.
 It definitely satisfied the formal requirements for a holographic will, but it was not
clearly testamentary
 T had discussions with her lawyer about the document, expressing intention to sign a
will. So, court held that this couldn’t be the will, since she was intending to create a
14
new document. The letter was just a preliminary to a will, and thus not a will in itself.
Formalities
What Types of Wills are Allowed in Canada?
 Oral wills are allowed in the US, but not in Canada
 Attested Wills  the most common type.
o Signed by T and witnessed by two
 Privileged Wills  limited availability
o Members of the Canadian Armed Forces on active service, or sailors at sea
o Slightly relaxed requirements in terms of formalities
 Holographic wills
o See above. Not in BC, but available elsewhere in Canada
What Jurisdiction Governs the Requisite Formalities of a Will?
 For land: the law in the place where the land is located governs.
o So, if a client has land in another jurisdiction, make sure to do the research on
the requirements in the other jurisdiction.
 For movables: the law in the place where testator was domiciled at time of death
governs.
How Strict are the Formalities Requirements?
 See e.g. Manitoba Wills Act, s. 23: curative provision, allows courts to validate a will
despite deficiencies.
Krause v. Toni [1999, BCSC]
 Problem: lawyer forgot to sign as witness
 Wilkinson J found a common law jurisdiction to dispense with formalities
Boulton v. Tartaglia [2000, BCSC]
 Very similar facts, but declined to follow Krause v. Toni.
 Hood J. said that while the two cases are not distinguishable, it is not the law in BC for
substantial compliance to suffice.
 Note: WESA s. 58 will give us a very similar curative provision to that in Manitoba, so
soon there will be jurisdiction to allow this
Presumption of Due Execution
 In the absence of evidence to the contrary, courts presume compliance with the
statutory modes of execution [Ball v. Taylor]4
4
Ball v. Taylor [1999, BCSC]: If invalid, children get all on intestacy. If valid, Mrs. Ball gets most and
children are basically written out. Issue: neither witness could remember whether T’s signature was on the
will. Held: court presumed it was compliant. Won’t allow bad memory to upset the will as it stands. Need
to have evidence of insufficient witnessing of the will.
15
Five Requirements for a Will
1. Must be in Writing
 Per Wills Act s. 3
 Theoretically, a will can be written on anything.
o There’s a case in SK where the will was written on a tractor fender.
 What about oral wills?
o About 20 US states allow these, but Canada doesn’t
o Not to be confused with a dying gift/donation mortis causa
2. Must be Signed at the End
 Per Wills Act s. 4(a)
 Testimonium Clause
o Signature clause, at the end of a will
o It’s a final clause that restates what’s happening – i.e. this is my will, signed on
x date.
o The testimonium clause isn’t required – just the signature – but it’s common.
 Attestation Clause
o Clause containing witnesses’ signatures
 What if T signed the wrong will? [Re McDermid Estate5]
 A mark can be a valid signature, as long as it represents the testamentary intention of
the testator. [Re Bradshaw Estate]6
o Test: whether the mark made was the best T could do in writing his/her name,
bearing in mind all of the circumstances.
 Signing on behalf of someone else:
o If the testator adopts the mark, it’s allowed. [Re White7]
o Acquiescence is sufficient – don’t need to verbally state a direction to the other
person to sign on T’s behalf. [ Wilson v. Better8]
o For insufficient direction to signer, see Peden v. Abraham;9
o If signer signs own name instead of T’s, may be ok. [Re Fitzhaut Estate10]
5
Re McDermid Estate [1994, SKQB]: Husband and wife signed opposite wills by accident; no one noticed
until husband died. Solution: court put the wills together and read them as one long document, with the
husband’s signature at the bottom. Note: this was in Saskatchewan, and wouldn’t necessarily fly in BC
6
Re Bradshaw Estate [1988, NB Prob. Ct]: T on deathbed, pen was placed in his hand and he tried to sign
it. Made three strokes on the paper then died. Issue: validly executed? Held: yes. Intended to sign, but was
unable due to physical infirmity. Best he could do under the circumstances. Court cites a bunch of similar
cases. The rule seems to be that it’s ok as long as the court is satisfied that the markings were intended to be
a signature.
7
Re White [1948, NSSC]: was there a decision by the testator? If testator adopts the mark, it’s ok.
8
Wilson v. Better: cited in Re White. To constitute a direction, T doesn’t have to say anything –
acquiescence can be enough to signify adoption. Person who assisted T was allowed to sign T’s name.
Challenger argued that “acknowledgment or direction” requirement meant verbal direction was necessary,
but court said any adoption is sufficient.
9
Peden v. Abraham [1912, BCSC]: T couldn’t sign, and didn’t express any desire to do so. When doctor
asked him if he could sign, he nodded but dropped the pen. Doctor took it out of his hand and traced
signature. Held: physical condition was such that he didn’t have mental ability to consent or refuse –
couldn’t give direction.
16
 What if it’s not signed at the end?
o Wills Act s. 6
 (1) A will is deemed to be signed at the end if the signature...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 to the will by the signature.
 (2) A will is not rendered invalid by the signature being in the
formats listed.
o Signed only at the top of will? Not ok. But in Saskatchewan, at least, it may be
ok if you put the will in an envelope and sign the envelope. [Re Wagner]11
o Signing the envelope may not be enough, though, especially if you haven’t
signed the actual will at all [Goods of Bean]12
3. Must be Signed by Two Witnesses
 Wills Act s. 4(b)
o A will is not valid unless the testator makes or acknowledges his signature in
the presence of two or more witnesses at the same time.
 Witnesses don’t have to know the content of the will, or even that it is a will.
o They are just witnessing the fact that the person who signed is the person they
say they are. It’s for identification purposes only.
 Requirements of witnesses
o Must be a competent adult
 Note: if witness is incompetent, this doesn’t invalidate the will. [s.
10]
o A creditor is a competent witness
o The executor is also a competent witness [s. 13]
o Witnesses cannot receive anything under the will [see e.g. Re Cumming]13
 Note: normally you can’t take legal fees for acting as an executor, so
lawyers have to put a clause into the will that allows you to take both
– it’s still considered a gift, though, so make sure someone else signs
the will in that case.
 Issue: what if a witness becomes a beneficiary later? [see Re Ray’s
Will Trusts]14
10
Re Fitzhaut Estate [1966, BCSC]: T definitely directed, but the person signed his own name instead of
T’s. It was clearly the T’s intent to have him sign. Held: acceptable. Provision said “signed by testator or in
his name”  legislature could have specifically limited it to the testator’s actual name, but it didn’t.
11
Re Wagner [1959, SK Surr. Ct]: T signed at the top of will, not the bottom, but also signed the
envelope. Court accepted this as T having signed at the end. Evidence that signature was there for the
purpose of authenticating the will – why else would it be there?
12
Goods of Bean: T signed envelope, didn’t sign will at all. Judge wasn’t satisfied that the signature on the
envelope indicated intent to authenticate the will – characterized it as just another piece of paper he signed.
13
Re Cumming [1963, ONHC]: T wanted to sell house to his friend for $30 plus taxes under the will.
Friend’s wife witnessed the will. Held: the clause that allowed friend to purchase at lower than FMV rate
counted as a benefit, and was thus void because his wife signed the will.
14
Re Ray’s Will Trusts [1936, Eng. Ch. D.]: Testatrix nun left everything to the abbess at the time of her
death. One of the nuns who witnessed the will turned out to be the abbess when T died. Was the gift to her
17

A beneficiary can witness a codicil without invalidating a gift to
himself under the will. [Re Gurney]15
 A codicil can cure a beneficiary-witness defect [Anderson v.
Anderson]16
 Re Royce’s Will Trusts



 So, what happens if will is erroneously witnessed by a beneficiary?
o 1) Could divide it up among other beneficiaries
o 2) Could treat it as though the person had died
o 3) Could treat it as an intestacy  this seems to be the rule, per Jones v. Public
Guardian and Trustee.17
4. Testator must Sign or Acknowledge in Presence of Witnesses
 Testator either signs in the presence of witnesses, or signs it and then acknowledges the
signature in the presence of witnesses. [Re Groffman;18 Re Brown19]
 There is no requirement that a testator must tell witnesses that it’s his signature – just
have to ensure signature is placed so witnesses can see it, and give some
acknowledgment of the signature [Re Daintree20]
 Four rules re acknowledgment of valid signature [Jarman on Wills]:
o 1. Doesn’t have to be verbal – can acknowledge signature by gestures
o 2. Witnesses must have seen or been able to see had they looked at the
signature
o 3. Don’t need to specifically acknowledge the signature – can just say it is your
will
void? Held: indirect benefit to convent, not direct to abbess. Indirect benefit wasn’t sufficient, to the gift
stood.
15
Gurney v. Gurney [1855, Eng. Ch.]: Codicil increased gift to beneficiary given under original will.
Beneficiary signed codicil (but hadn’t signed original will). Held: that’s fine. Codicil won’t invalidate the
fit – the case does not fit within the statute.
16
Anderson v. Anderson [1869, Eng. Ch.]: Spouse signed the will; new non-beneficiary witnesses signed
codicil. Held: a-ok. Gift to spouse stands, because affirmed by the codicil which was signed by independent
witnesses.
17
Jones v. Public Guardian and Trustee [1982, BCSC]: P had 3 daughters. Gave a specific gift to
daughter D, and to her husband S, then divided the rest of gift among all three daughters. But D and S had
signed the will, so all of their gifts are invalid. D argued they should treat her as dead and give to her
children. Sisters said it should just be divided among the two other daughters, as residue split 50-50
between them. Court decided to treat it as intestacy: everything D was supposed to get is divided equally
between the three siblings. So, V and C each get their 1/3 share, and then D’s 1/3 share is divided in three
and given on part to each of the three daughters. So, V and C wind up with 4/9, and D gets 1/9. Note: if it
had been a life estate to D, then it could have gone straight to the children.
18
Re Groffman: Witnesses were asked to sign, but did so separately. With T but not together. Widow
challenged and won; witnesses are supposed to be together.
19
Re Brown [1954, ON Surr. Ct]:Witness 1 saw T sign and witnessed, then T and Witness 1 went
downstairs and told Witness 2 it was T’s signature and had him witness. All present at time of an
acknowledgment, so that’s fine.
20
Daintree v. Butcher [1988, Eng. CA]:
18
o 4. When the signature is seen or acknowledged, it doesn’t matter if the witness
wasn’t told it was a will
5. Witnesses Must Sign in Presence of Testator
 Wills Act, s. 4(c)
 Witnesses have to see acknowledgement of testator together, but don’t actually have to
sign at the same moment – so long as they both sign in presence of testator. [Re Brown]
 The testator must be physically able to see the witnesses sign. Doesn’t have to actually
see, but must be able to if he wants to. [See e.g. Re Wozciechowiecz]21
Incorporation by Reference
 Sometimes, another document can be incorporated into the will by reference in the
will.
 E.g. a Letter of Memorandum – lists various small/low-value items and how they are to
be distributed. Used often because the list will change but T doesn’t want to change the
will every time.
 Requirements: [See Re Jackson;22 Re Curry]23
o 1. The document must exist when the will is executed.
o 2. The will must refer to the document (As a presently-existing document)
o 3. The will must describe the document with certainty
 To what extent does the document become part of the will?
o It’s not officially valid to say “divide these items in my house according to the
Letter of Memorandum.”
o We do it all the time, though, because:
 The items aren’t valuable enough to be put in the will (it’s too
expensive)
 The list will change anyway
 No one is going to take this to court
o If something is valuable, put it in the will or incorporate it.
Revocation and Revival of Wills
Re Wozciechowiecz [1931, ABCA]: T had to be lifted up to sign; he couldn’t see the witnesses signing
and likely wasn’t aware that witnesses had signed – or even that they had to sign. Held: invalid. Physical
presence is not sufficient to satisfy the “presence” requirement. If unable to see witness sign, ≠ valid
execution of the will.
22
Re Jackson [1985, BCSC]: Wrote will, then wrote memo several days later. Memo said will referred to
it, but it didn’t. Memo was a list of effect she wanted to distribute to certain ppl after her death. Signed at
end, witnessed etc. in accordance w/ Wills Act. 3 years later, new will. Refers to the memo this time, but no
new memo. So, either they forgot to make a new memo, or they misdated the first memo. Issue: could they
use parol evidence to determine which memo was referred to by the will? Court said yes; because that
memo was the only one in the envelope with the will, it was admitted to probate with the will.
Requirements stated: 1. Must be in existence at time of execution; 2. Must be described as existing; 3.
Capable of being ascertained; 4. Will must not state that doc must not form part of it.
23
Re Curry [1978]: Incorporated the Curry Trust after the codicil in which she bequeathed it. Died w/in ten
days. Tax authority said you can’t get the shares into the trust tax-free, because the trust didn’t exist when
the codicil was made. Held: court agreed with the CRA-equivalent. Shares passed under the will, not under
the trust. Will must refer to a document in existence, and it must be beyond doubt the document referred to.
21
19
 Wills Act, s. 14(2)
 Two ways to revoke:
By Operation of Law: Marriage or Dissolution of Marriage
 A will can be revoked by marriage [see e.g. Re Pluto]24
o Presumption that a testator means to provide for spouse (moral duty)
o Consequently, a presumption that if a person gets married after making a will
that doesn’t provide for a spouse, the T would rather their estate go on
intestacy, so the spouse could take.
 S. 14(1)(a): will revoked by marriage, subject to s. 15
 S. 15 allows for a declaration that T made the will in contemplation of marriage.
 In order to revoke a will, it must be a valid marriage.
o If the marriage is invalid, then the marriage never truly existed, so a will written
before the marriage is not revoked by that marriage.
 An invalid marriage may be void or voidable.
o Void: (e.g. if someone didn’t have capacity to enter the marriage)
 Capacity, mistaken identity, [formerly, same gender]
o Voidable marriages existed at law, but became inoperable due to formality or
some later issue.
 Coercion, didn’t meet formalities of marriage , can’t consummate
o The void vs. voidable distinction has implications on who can bring the
application for this finding.
 Voidable: one of the parties to the marriage has to bring application
to void the marriage – must be one of them, can’t be outsider
o Parties outside the marriage can only bring actions for conditions where the
marriage would be void: so, lack of capacity to enter marriage or mistaken
identity. This can cause issues for family members seeking to void a testator’s
marriage [see e.g. Banton]25
 Note: marriage itself is the triggering event that revokes the will, not any other
testamentary matters. So, if you get married in a jurisdiction where marriage does not
invalidate a will and then later move to a jurisdiction where it does, the will remains
valid. [Allison v. Allison]26
 Dissolution of marriage – specific sections are removed
Re Pluto Estate [1969, BCSC]: Use of the phrase “to my wife” was not sufficient. Did not constitute a
declaration that he was contemplating marriage.
25
Banton v. Banton [1998, ONSC]: will before marriage gave everything to children. Then T got married
while in retirement home. He couldn’t consummate the marriage and was otherwise weak and incontinent,
but he got married. Then he wrote a will that favoured her. Lawyer had concerns about capacity, but he saw
two doctors and then signed it. After he died, children contested the will and the marriage, trying to
invalidate both of them so that the previous will would apply. They needed to find the marriage void since
he was dead and she wasn’t challenging it (which is why the inability to consummate wasn’t usable). So,
children argued lack of capacity. Court found that he lacked the capacity to make the latter will, but
satisfied the lower capacity threshold for marriage. So, the marriage invalidated the prior will, but the later
will was also invalid, so T died intestate.
26
Allison v. Allison [1998, BCSC]: in QC, marriage doesn’t revoke a will. T got married in QC, then
moved to BC, where he died. Held: will still valid. Adopts counsel’s submission: “why should a perfectly
valid will which survived the marriage be rendered invalid as a result of a change in domicile?”
24
20
o Wills Act s. 16
o When you separate, your will continues in full force and effect.
o On divorce, any gifts to spouse lapse, but the rest of the will remains valid.
 This also applies to a judicial separation, or where marriage is found
void.
o When gifts to spouse lapse on divorce, they are treated as though the spouse
predeceased rather than as an intestacy (which is what happens with witnesses
whose gifts lapse).
 Note difference: s. 15 revokes the entire will upon marriage, but s. 16 only revokes the
gift to the spouse on divorce
Revocation by Act of Testator
1. Revocation by Subsequent Instrument
 Wills Act, s. 14
o (b) “another will made in accordance with this Act”  permits revocation by a
later inconsistent will
 Usually, it’s best to put a line in the will saying “I am revoking all previous wills”
o We used to also say “and testamentary declarations”, but a court found that this
phrase also revoked insurance contracts etc., so we just say “previous wills”
now.
o Note: you don’t have to say this if you aren’t revoking prior wills.
 You might make separate wills for property in different jurisdictions,
or for company vs. personal assets, etc.  these aren’t mutually
exclusive.
 If the person making the will knows the contents of the paper that’s
being executed, it’s immaterial that they are mistaken as to the effect,
even if it means a court will interpret the will differently than
intended. [Canning v. Seward]
 So, be careful when drafting not to revoke something the client
doesn’t want revoked. [see e.g. Re Estate of Bianca Esther
Robinson]27
o Practice point: if there is no line in the later will saying you revoke previous,
then both documents will be admitted to probate. The first will then be
considered revoked only to the extent that it’s inconsistent with the other one.
So, anything not mentioned in the second document will go according to the
first.
 The key is intent to revoke.
o Revocation clause can be ignored if doing so reflects the true intent of the
Re Estate of Bianca Esther Robinson [2010, ONSC]: T didn’t tell Canadian lawyer, but she already had
a will in Spain. Solicitor drafted will with standard revocation clause. She signed it because she didn’t think
the revocation clause would affect the Spanish will. Her mistake, not the lawyer’s – he just followed her
instructions. Held: revoked. Per Canning v. Seward: it wasn’t a typo, the T made a mistake b/c she didn’t
understand the legal effect of the clause. So, Spanish will revoked, only Canadian will survived. Contrast
w/ Re Lawer, where T likely didn’t know the will said it revoked previous – in this case, she did know the
phrase was there.
27
21
testator (but there is a high threshold to prove ≠ intend to revoke) [Re Lawer]28
 1. Revocation clause must be held not to be the actual intent of the
testator
 2. Intent must be assessed by the express intention
 3. Mere allegation of mistake is not sufficient
 4. There is a heavy burden on the party seeking to ignore a revocation
clause
 5. The evidence raised to deal with this issue must relate to the time
at which the will was written.
2. Revocation by Declaration
 Still need the regular formality requirements for the declaration as for the will
 Rationale for revoking by declaration: if T wants to die intestate, and wants to ensure
there is no question that he died intestate
o E.g. where a father wanted to ensure that WVA didn’t alter his wish to leave his
estate equally to his three children (could apply to vary a will to give more to
one who got/needs more financial support)
3. Revocation by Physical Act
 You can simply destroy the will, but it has to be truly destroyed.
o Tearing it up isn’t enough if you can still read the content.
 Courts will look to intention to revoke: animo revocandi.
 Testator can ask someone else to destroy the will, but it must be done in their presence
[s. 14(1)(d)].
 If will was in T’s possession, but can’t be found at time of T’s death
o Presumption that it was destroyed with intent to revoke. [see e.g. Adams]29
o Counter presumption: if T was incompetent at time of death, the will stands
28
Re Lawer [1986, SK Surr. Ct.]: T had two sisters, not close. Before her death, she sold a piece of
property to a friend, D. By accident, D transferred the mining/mineral rights with the property. In 1962, T
wrote a note leaving those rights to a friend, saying they were presently leased to the Crown. Later, she
writes a full will from a kit, which contains a standard revocation clause. This will distributes a few
hundred dollars to charities etc., and doesn’t mention the mining rights, which are her major asset (income
from subsidies). Takes handwritten note and will and puts them in safety deposit box. Executor (her niece)
brought a petition to admit both wills into probate and delete the revocation clause. Sisters contested, b/c if
the handwritten note was invalid, they would take on intestacy everything not mentioned in the later will.
Issue: does the later will revoke the prior one? Held: documents ≠ contradictory, and if 2 nd will stood alone
it would not deal with the major asset of her estate. The mistake of including a revocation clause should not
bar T from doing what she clearly wanted to do. Note: high bar to prove ≠ intent. If the second will had
been handwritten, it would likely have been different since she would have had to physically write in the
revocation clause. But really, the lady was 90 years old and she probably just wanted to give some money
to charity and didn’t read the rest of the kit will.
29
Re Adams [1992, UK]: T wanted to destroy her will, law firm sent it to her for that purpose. Their
evidence was that it was in perfect condition when they sent it. After T’s death, will was found heavily
scribbled out. Held: T had intentionally destroyed her will. It was seriously illegible. Plus, she had told the
firm she wanted to destroy that will. Likely she was in the process of altering her will and wanted to edit
this one out. We noted in class that maybe she didn’t really have the intention to revoke at that time, but
more likely wanted to revoke it to implement a new will – not certain she knew the scribbling would count.
22




valid. Presumed destroyed when ≠ capacity to revoke. [see e.g. Re Norris]30
Note: There seems to be a belief that lawyers will not allow themselves to die intestate
[see Re Norris]
Copies
o If you destroy a will and copies remain, the original will is still destroyed.
o Destroying a copy has no effect on the original
If you have a will and validly execute a new will, the old will is revoked and won’t
come back regardless of what happens to the new will.
Requirements to revoke by destruction:
o Physical act
o Intention
Lost Wills
 Same presumption as a destroyed will:
o If lost and T ≠ capacity at ToD, presumption that will ≠ revoked. [see Re
Broom]31
 Policy rationale: not clear when the will was lost in relation to the
time T became incompetent.
o If lost and T did have capacity, presumption that will was revoked [Sugden v.
Lord St. Leonards, though the court in that case found the presumption
rebutted]32
 Presumption can be rebutted by the following [see e.g. Brown v. Wooley;33 :
o 1. Actions or words of testator [See e.g. Lefebvre v. Major;34]
30
Re Norris [1946, BCSC]: T took off for the Americas with a mistress (Miss Heynman), leaving his wife
and children back in England. T was a lawyer, had retired a few years before death due to illness which
included hallucinations and delusions. Before he died, he told Miss Mistress where to find his will, leaving
everything to her. She went to find it and discovered it was ripped to shreds. Held: not revoked. No
intention of revocation. If destroyed, it was likely done in a moment of confusion. Based on surrounding
circumstances, it was clear he intended Miss Heynman to inherit, and not to leave anything to his wife in
England, who was a terrible shrew who bankrupted him.
31
Re Broom: Testator ≠ competent at time of death. Same presumption as with destruction: will ≠ revoked
because ≠ capacity to revoke.
32
Sugden v. Lord St. Leonards [1876, Eng. CA]: LSL = lawyer, his daughter (Sugden) worked for him as
a clerk. After LSL’s death, can’t find his will but do find 8 codicils made over his life and referring back to
it. Daughter reproduced the will from memory – court described her memory as ‘almost unbelievable’, but
noted that the language was highly technical and it was unlikely she would understand it. Court stated the
presumption that if lost then destroyed, but found that it was rebutted: T considered the will of utmost
importance, and likely would have kept it in his own possession. It was unlikely that such a man would
destroy his will. Also, he discussed the will with people up to his death. Daughter’s evidence was
admissible, as well as corroborating codicils. Given that substantial parts of the will could be reproduced,
even though it wasn’t the whole will, court said it could be probated – better to give some of the gifts than
none. Daughter did receive most of the estate under the will she reproduced, but she was his daughter and
she had been his clerk for most of her life.
33
Brown v. Wooley [1989, BCSC]: as in Sugden, on the evidence of trustworthy witnesses the court held
that the will could be probated.
34
Lefebvre v. Major [1930, SCC]: Couldn’t find will in SD box. Court found the presumption of
destruction was rebutted: friend walked w/ him from law office to bank, testified that he treated it with
great care. Told his sister he’d written a will and left her everything. It took a couple of weeks after he died
23
o 2. Codicil that refers to the will [See e.g. Sugden]
o 3. Evidence of the character of testator in his treatment of beneficiaries and his
treatment of the will [see e.g. Unwin Estate v. Unwin]35
o 4. Statements made by the testator about the provision he had made. [See e.g.
Sigurdson v. Sigurdson36; Holst Estate v. Holst;37]
 If you do rebut the presumption, you must still:
o (1) Prove the will was validly executed
o (2) Prove the contents of the will
 Solicitor’s notes can be used for evidence of this
 Also oral testimony from someone who knew about the will
 If a will is lost after it went out of the possession of the testator, it’s not presumed
revoked – just lost.[see e.g. Re Flaman;38]
o Note: you want to consider who had access to the will at the time it was
lost/destroyed  if the person most likely to benefit from the loss of the will
had access the most recently, that’s sort of suspicious.
Alteration of Wills
 Any alteration must comply with Wills Act, s. 17
o (2) Any alteration is validly made when signature of T and witnesses to
alteration are made, in the margin or near the alteration, or at the end of a
memorandum referring to the alteration, etc.
 Basically, if you have to make an alteration, you:
o 1. Cross out what you want to remove
o 2. Legibly write in the alteration
o 3. Follow all the formalities
 Seriously, though, if the client is in your office, just reprint the will.
 Presumption that alterations were made after will was signed.
o The onus is on the person arguing in favour of the alterations to prove that the
alterations were there when the will was signed.
before he was found, so then a hazmat team went in an burned everything. So…if will was near him, it was
likely burned as well.
35
Unwin Estate v. Unwin [BCSC]: Couldn’t find the will. Relied on testimony of T’s wife. Court
considered the rel’ship b/w T and wife, and his words/actions after making the will. Loose custody of the
will: it was kept in his dresser drawer, unlocked. Held: destroyed. Presumption not rebutted.
36
Sigurdson v. Sigurdson [1935, SCC]: Only a copy of the will could be found. Just prior to death, T told
one of his sons that he didn’t have a will and everything was to be decided according to law. Held: no will.
TJ found that T was a man who knew what he had in his files. Found he had revoked his will because he
wanted it to be divided among wife and sons according to intestacy. SCC upheld the presumption of
destruction and wouldn’t use a copy. A key factor was that he told his son he didn’t have a will – indicates
intent.
37
Holst Estate v. Holst: Will left everything equally to children, but then T realized he had already given
one child his appropriate share, so he wrote a codicil revoking that gift. But they couldn’t find the codicil
when he died. Held: presumption of intentional destruction rebutted. T had told lawyer several months
before death that he’d drafted this codicil. Evidence that it could have been lost – not in his character to
have intentionally destroyed it. He had documents throughout the house that weren’t organized.
38
Re Flaman [1997, SKQB]: T was in a nursing home, but he wasn’t the last person who had the will. A
lady named Cecilia had it when he became incompetent. Because the will was lost after it went out of the
possession of the testator, it is not presumed revoked – just lost.
24
o To fulfill this onus, any declarations made before the execution of the will are
admissible [Estate of Oates]39
 What happens if alterations are rejected?
o If the original state of will is still intact (i.e. if you wrote in the margins but
everything is still readable), then it will be admitted to probate without the
changes.
o If the original will is NOT intact, problems arise. [see e.g. In the Goods of
Itter]40
 If you can’t read the original provisions, then the provisions that are
not readable are obliterated, and the rest of the will continues on.
o If the changes couldn’t stay, it’s assumed the T wanted the other words to
stand. So, they’ll probate as much of the will as possible.
Conditional Revocations
 An intentional revocation may be conditional – three situations:
 1. Where testator thinks will has already been invalidated
o Didn’t have intention of revoking a valid will, but rather intended to
destroy/invalidate an invalid will.
o Example: man thought he was married, ripped up his prior will because he
thought it had been revoked. Turned out he wasn’t actually married, because
his “wife” was already married.
 2. Where testator is mistaken about facts or the law [see Re Sorenson;41 Southerden]42
 3. Dependent relative revocation
o Where T intends to make a new will, but for some reason it doesn’t get
completed
o Sometimes revocation will be effective in this situation, and sometimes it
won’t.
39
In The Estate of Oates [1946, Eng. PDA]: T had a will prepared, leaving all to her two sisters. One
sister died, and T went to redo her will, but just bought a kit this time. She just wrote a note inserting the
words “and personal” into the phrase “I give all my real estate to [sister].” Issue: were the words “and
personal” there before the will was signed, or were they written in afterward? Held: Court found it was
clear she always intended to have the words “and personal” in the will. Principle: any declarations made
before the will executed are admissible – can show intention existed before the will was signed.
40
In the Goods of Itter [1950]: T pasted strips of paper over codicil to make changes. She initialed the
changes, but no witnesses. They were able to use infrared photography to figure out what the original will
said. On this basis, one party argued the original will was apparent, and people should inherit under the
original will. Court didn’t accept the infrared photography visibility argument, but instead said that the
paper could be peeled off and that was enough. Court “cannot find that the words are apparent, but they are
discoverable”.
41
Re Sorenson: Montreal Trust v. Hawley [1981, BCSC]: T gave estate to ex-husband’s two sisters. Then
she thought they had died, so she went to a lawyer and got a codicil saying that since both sisters had
predeceased, Mrs. H was to get everything that they had previously been left. After T died, it turned out one
of the sisters was still alive. Held: court found the revocation wasn’t intended by T except on the mistaken
condition being operative. So, only intended to revoke if both sisters were dead, and thus the revocation
failed.
42
Southerden (mentioned in Re Jones): husband and wife went on vacation, they wrote a will for that.
When they got home husband destroyed the will because he believed everything would go to his wife on
intestacy.
25
o Revocation will be effective if T intended it to be effective regardless of
whether new will was made
 E.g. family law context, rips up will not to leave to ex-spouse
 This is an extremely fact-dependent assessment.
o If a T revokes a will in anticipation of making a new one, and the new one is
made but then fails, then the revocation is not effective unless the prior will
was intended to be revoked regardless of whether the new will took effect
o Intention is the key to finding dependent relative revocation. [see e.g. Re
Jones]43
 1. Did T mutilate the will with the intention of revoking it?
 2. If she had the intention of revoking it, was it absolute or qualified
so as to be contingent or conditional (this is where it failed in Re
Jones)
 3. What was the nature of the qualification?
 4. Has that condition or contingency occurred?
o The act of revocation must be “wholly and solely referable” to the intention to
create a new will. [Bolton v. Hesse]44
Interpretation (Construction)
General
The Law of Probate & the Law of Construction: Evidentiary Rules
 Probate = what documents are admitted/show testamentary intent
 Construction = now that it is admitted, what the will would mean to a reasonable
person
 The law of probate
o Asks whether the will itself is valid
o Typically: can use indirect evidence surrounding the creation of a document to
determine whether testator wanted to revoke the will
o Can consider direct evidence
o Though, when assessing revocation, limited to direct evidence of the will and
the revoking document
 Rationale: you have to use all the formalities to revoke, so courts
have inferred that the legislation restricts us to those documents for
direct evidence? [insert notes from Jeff because you’re an idiot]
 The law of construction
In Re Jones, Dec’d [1976, Eng. CA]: Someone, presumably T, cut out the clauses in the will giving
particular property to her nieces, and also cut off the bottom part of the will with her signature and the
witnesses’. Held: died intestate. No evidence that showed her intention was only to revoke if she made a
new will. She was tired of her sisters – showed absolute intent to revoke the will so as not to give to her
sisters. Found that she destroyed the will with intent to revoke regardless of what happened with a new
will. So, by defacing/destroying her will, she intended to revoke it there and then, and it wasn’t contingent
on anything.
44
He burned it in a fire and died two years later w/o having made a new will. Not wholly and solely
referable to the intention to make a new will.
43
26
o Asks whether a specific gift is valid.
o Subsequent document: can only use indirect evidence to prove it revokes.
o If you physically have the will, the only direct evidence you can use is what’s
in the will.
o If you no longer have the will (e.g. due to a physical act of destruction), you can
use other direct evidence as well as indirect.
o But if the will is still physically in existence, even if it has been revoked by a
subsequent document, you can only use the direct evidence of the will itself.
Definitions:
 Ejusdem Generis: restrict the general words (to the particular words)
 Equivocation: where the words of a will apply equally well to two or more persons or
things. This is one situation in which the court can admit direct evidence of the
testator’s intention.
 Court of Probate: decides what documents will be admitted and what the
testamentary intent was
 Court of Construction: once documents are admitted to probate, the CoC decides
what it/they mean
 Per stirpes: as representatives of their respective ancestors or relations
 Per capita: each member of a class is to take an equal share
 Falsa demonstratio (non nocet, cum de corpore constat): if there be an adequate and
sufficient description w/ convenient certainty of what was meant to pass, a subsequent
erroneous addition will not vitiate it: Re Carvill (1913)
 Power of anticipation: right to draw more $$ from an asset before it can legitimately
be used
Decore Estate (2009) AB QB:
 Armchair evidence is that evidence which establishes a context for the testator’s words.
Evidence of the testator’s intention will include hearsay reports of the testator’s words.
 The law regarding armchair and extrinsic evidence can be summarized as follows:
o Where the testamentary instrument is clear and unambiguous, no evidence
beyond the document is received. Presumably because none is necessary.
o Where the testamentary instrument is unclear as to intent or in construction,
armchair evidence is receivable. Again, presumably, because that evidence
will bring clarity. In my view that rule is too narrow. I accept the view in
Haidl v. Sacher as adopted in Re Davis Estate. I conclude that the rule has
been relaxed such that in any case where there is an apparently 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.
o 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.
o 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
27
construed.
Policy reasons for restricting the general admission of extrinsic evidence
which may be probative of the testator’s intent or meaning:
 There is danger that a flood of spurious claims backed by hearsay will clog the courts
and bring chaos to the orderly administration of estates
 There is a danger that the written document will be supplanted by an oral or a verbal
direction
Points re Construction
 Most of construction is determining the testator’s intent - If the court, after using all
evidence, still can’t determine the intention, the gift fails – Perin
 In Canada, the rule is to look at surrounding cirucmstances right from the
beginning to interpret the ordinary meaning of the words – Haidl - must determine
the intention of the will by looking at the ordinary and grammatical meaning, the
contents of the will as a whole, and having regard to the circumstances in which the
will was made
o All the surrounding circumstances can be admitted
o Can now look at other types of evidence (not just the document) when
interpreting the will
 Method
o 1) read the will
o 2) if the meaning is unclear, then look at surrounding circumstances
 Wilson v Shankhoff/Haidl- says you can look at the surrounding
circumstances from the start
 If strict interpretation works for you (as it did for one party in Rabbit,
then go for it)
 Ordinary meaning is always still there –Haidl Sask CA
 Laws v Rabbit - Cash goes to one party, house to another.
 Cash means cash – there is a reasonable possibility that she
intended it to go to her own family
 Perin “armchair rule” started this trend, but it took hold after Haidl
 Perin – 1943 HL– gave a piece of land to 2 nephews, cash
to 1 sister, and then “all monies of which I die possessed to
be shared between my nieces and nephews now living”what is monies?
 HL – the ordinary meaning rule is correct, but it has to
be applied correctly - it’s just that we are not using
technical definitions anymore – we are interpreting words
contextually, having regard to what the testator intended
 The fundamental rule is to put on the words the meaning
which, having regard to the terms of the will, the testator
intended
 Not what it says but what the testator intended to say – but
28
the testator DOES have to say it - So the definitions of
words will change in each case – have to see what it means
in that document (and remember, there could be different
meanings for the same word in a document)
 Patent ambiguity: there is ambiguity on its face; never allowed direct extrinsic
evidence
o The court cannot give any effect to intent unless it is express or implied in the
will – must be somewhere in writing
 Need to hang your hat somewhere in the will
 Latent ambiguity: after looking at the circumstances and the will together it is clear
there is ambiguity; sometimes allowed direct extrinsic evidence, although it is very rare
o Can use extrinsic evidence to aid in the interpretation of the will
Applicable Rules of Interpretation
General Principles of Construction
 (don’t go to these when the will is obvious)
1) Take the Whole Will in Context
 Don’t read particular words or phrases in isolation
 Re Williams - “the grandchildren shall take the parent’s share per stirpes”
o But also says “if there are less than 3 remaining, it goes to the youngest son”.
Issue: is this less than three remaining to take referring to all the issue? or does
it mean less than 3 remaining of the children?
o Court looks at the entire will
 The youngest son was to receive 1/3 in any event (the will said “1/3
to the youngest son regardless”
 The will is not adverse to the youngest son benefitting the others.
Based on all the circumstnaces, and the intention to benefit the
youngest son more than others, less than 3 remaining refers to the
children only
 So the whole will read in context – don’t just look at the words in
the phrase but other phrases to get the intent of the will
2) Presume that Identical Words have Identical Meaning
 See Middlebro v Ryan - Testator gave his brother the option to buy a business at “book
value”
 This can be rebutted by looking at the testator’s intent
3) Give Effect to all of the Words (and all Letters in the Word)
 There shouldn’t be extra words – if the clause is ambiguous, give effect to all the words
unless this would go against the testator’s intent
 Re Stark – if son had no children, the rest of the estate to be distributed to “my own
nephews and nieces who are then living”
29
o Full-blooded nephews and nieces = 3
o Half-blooded nephews and nieces = 10
o Since he only had one nephew when he wrote the will, he would not have said
“nephews” (with an “s”) unless he was contemplating all nephews and nieces
to benefit (including half)
4) Ejusdem Generis
 Di Bella - Found $25,000 in cash left in the house
o Problem: she said she would divide and distribute the “contents of my
residence, including goods, chattels, and household effects”
o “contents of the house” is restricted by the eiusdem generis rule – cash falls
into the residue
5) General and Particular Intention Toward a Gift – if they are inconsistent, the
particular intention is lost to the general
 E.g. “I give all my assets to my husband.” “On his death, I give it to the children”
o These are in conflict. The court will then restrict the particular gift (says that the
husband’s is a life interest), and then gives the rest to the general gift (to the
children)
6) If there are Multiple Interpretations, Presume that the Intended Outcome was
the One that Doesn’t Leave an Intestacy
 Re Harrison - the testator who made a “solemn will” did not intend a “solemn farce”
 Wagg v Bradley [1996 BCSC]: Wills kit told her to state specific items. She said she
gave “everything to Wagg”
o Court used the presumption against intestacy to choose all
 Re McEwen - did not apply the presumption
o Gave everything to wife and daughter – if wife predeceased the daughter, then
it goes to a charity - charity claims that since the daughter survives the wife, it
should be read it that goes to the charity
o court: inclined to lead against intestacy but the avoidance of intestacy is not
enough to give an unnatural interpretation to plain words
 There is an intestacy for this portion and goes to the charity. (suspect
that if in the case of intestacy the daughter didn’t receive, but
someone else did, then the charity would have got it)
7) Presumption of Rationality
 It is presumed that the testator is not capricious, arbitrary, unjust, or irrational
o Weird gifts must be really clear
8) Presumption of legality
 If there is an interpretation that offends the law, and one that doesn’t, then pick the one
that doesn’t
9) Presumption against disinheritance
30
 If the will is ambiguous, prefer an interpretation that benefits close relatives more than
distant ones
 Presume equal distribution for next of kin of equal degree (e.g. for 4 brothers)
10) if the will contains a irreconcilable disposition, interpret it in a way that
there is no inconsistency (“the rule of last resort and ultimate despair”)
 This is used with the general/particular intention rule
 “everything to my wife for her own use absolutely, should she be my survivor, then
equally to my nieces and nephews”
o Probably should have said ‘should she not survive me”
o Here, it goes to the nieces and nephews -> this interpretation avoids the
inconsistency
 Doesn’t matter if it is right, just that it is not inconsistent
 This also comes up where 2 people have the same gift (not a problem with cash where
you can just sell something else)
o Generally in these cases, the beneficiaries take the property together
Specific Rules of Construction
Interpretation of Some Key Terms
Spouse
 Reference to a spouse means the lawful spouse at time will was made [see Marks v.
Marks]45
 If there was no spouse at time will was made, the will may have been in contemplation
of marriage – can be valid
Children
 First degree issue  “children” does not include grandchildren or anyone else unless
the context requires it.
 “Our children” includes stepchildren
 Illegitimate children
o At CL, not children under a will.
o But, the Law and Equity Act fixed this in 1985: basically, for all purposes of
law in BC, a person is the child of their natural parents, and there’s no
distinction between children born in or outside of a marriage.
o But note: if you see a will written pre-1985, two exceptions to the exclusion of
illegitimate children
 1. If there are no legitimate children and the will refers to children
 2. If the will specifically expresses inclusion
45
Marks v. Marks [1908, SCC]: T married wife 2 while still married to wife 1. Regardless of whether
second marriage was valid, the words “to my wife” were intended to mean the woman he was living with at
the time he wrote the will.
31
Grandchildren
 Similar to children – means this one generation only. Does not include greatgrandchildren.
Issue
 At CL, issue means all descendants, as far down as it goes.
 If a gift is given “to all of my issue”, everyone takes.
 Look, just don’t use the word “issue”, because it almost invariably makes things
confusing and overcomplicated. [See e.g. Weir Estate v. Weir]46
Next of Kin
 Nearest blood relatives, according to the Table of Consanguinity.
 Note: not the same people as those who take on intestacy  these are set out in the
Estate Adminstration Act
 Spouse and children don’t count here; heirs at law but not next of kin
Houses
 Includes everything in a house but not choses in action (e.g. deeds, cheques, etc.)
Gifts to More than One Person
 Do they take jointly or as tenants in common?
o Real property in BC given to two people is presumed 50-50 tenancy in
common, unless otherwise stated.
 Formerly: CL presumption that any gift given to more than one
person = JT
 But now, Property Law Act, s. 11(2): (after certain date) Tenancy in
Common, unless contrary intention. If division is not stated,
presumed to be equal.
Per Capita and Per Stirpes Distributions
 Default rule: beneficiaries take per capita, unless context requires otherwise.
o This means each beneficiary will get an equal share.
 Per stirpes: gift splits according to branch.
o So, if three children, each child’s branch of the family gets an equal share – 1/3.
o If child B is deceased, offspring B1 and B2 each get 1/6 – half of their parent’s
share.
46
Weir Estate v. Weir [1998, BCSC]: 1/3 each to 3 children, and if any of them predecease then their share
to their issue. Two children survived T, but one died. That child left 3 grandchildren, one of whom was
deceased, who himself left 2 great-grandchildren, one of whom had been adopted by one of the original
surviving children. The other living grandchildren (children of the deceased child) also had a total of 7
great-grandchildren. So, 5 grandchildren and 9 great-grandchildren (the one that was adopted out doesn’t
take anything from his natural parent). If this were done under the Wills Act: each child would get a share,
and the remaining children of deceased child (the grandchildren) would get their parent’s share. In this
case, though, it said issue will get their “parents share” (no apostrophe). So, technically it goes to each of
them in equal share.
32
 Per capita by generation: everyone in the same generation takes the same amount
o In per stirpes, people in the same generation could get different amounts
depending on who has died and how many children each deceased had.
o In per capita by generation, example:
 4 kids. B and D are deceased. B had two children and D had one.
 Result: the three grandchildren take equally, regardless of their
parent’s share had they been alive.
Re Karkalatos Estate [1962, SCC]
 Facts:
o T was married and had two daughters
 E had 1 child
 M had 3 children
o Wife died a few months after T. Daughters survived him and received income
annually until E’s death, when we hit problems.
 The issue was around the phrase “remaining estate to and among my grandchildren per
stirpes”
o The apportionment of the estate depends on where the per stirpes division
begins – at the grandchildren, or at the children?
o If it starts at grandchildren: each grandchild should get 1/3 of E’s half (so 1/8th),
and M should keep her half.
o If it starts at children: E’s child should get ½, and each of M’s children should
get 1/6 on M’s death.
 Held: Division starts at children.
 Reasons: he wanted the children to be treated equally, so they started the division there.
Re Clark Estate [1993, BCSC]
 Facts:
o A died 1982, will went to court in 1993.
o Two sons:
 G – 6 children, one of whom expecting a child
 S – one son (R)
o Instructions were to hold ½ of estate in trust for grandson R, and on his death to
provide the remainder of that half to each of G’s children, per stirpes.
 Issue: There was something problematic about the use of “per stirpes”
 Held: court removed the phrase “per stirpes” from the will, and distributed per capita,
which solved the problem.
 ?
Re Campbell Estate
 Facts:
o Two children plus four nieces and nephews.
o If children die, to each other. If none to each other and children both die w/o
issue, capital to be divided among nieces and nephews.
o Son dies, his share goes to daughter (who has no children)
o By the time daughter dies, all the nieces and nephews have died too, but one
33
left a son.
 Issue: what happens to the remaining estate?
o Does it all go to the remaining grand-nephew?
 Held: no. he gets his father’s ¼ share, and the remaining ¾ goes back on intestacy and
went with son/daughter’s estates.
o He was taking as the survivor of the named group, not the survivor of the issue.
Power of Selection
 If a gift is made to multiple people with power of selection among a set of items, the
power of selection goes in order of the list.
 Power of selection is tied to the person named  doesn’t flow to their estate
 Example:
o One of my motorcycles to each of A, B, C, and D.
o A chooses first, then B, and so forth.
o If B dies, then their gift goes back into my estate – doesn’t go to B’s estate.
o If A never chooses, B never gets to choose. So, it’s smart to put in a clause
saying that if they don’t choose within x days, the next person gets to choose.
Naming
 Be specific.
 Use middle names where you can, and watch out for nicknames or unofficial names,
 Basically, do everything you can to make it clear who you mean to refer to and what
you mean to give.
 If people have the same name, specify the relation as well to be extra clear.
 If an item is insured, describe it as “x item, which is described in more detail in the
insurance document attached.”
Evidence of Intent
 General/historical rule: courts construe a will without any evidence other than what
is written in the will.
 If there is an ambiguity, can sometimes look at extrinsic evidence.
o Timing: consider all the circumstances at the time the will was made. [see Re
Jackson]47
o Considerations:
 Character and occupation of T
 Amount and extent of property
 Number, identity and relationship of the family
 And intimate friends
 And more…
 Distinction: Patent ambiguity vs. latent ambiguity
47
In Re Jackson [1933, Eng. Ch. D.]: T had two legitimate nephews and one illegitimate, all named
Arthur Murphy. Who was to inherit? Can’t just divide among them, since it didn’t say “to my nephews”.
Once the court had opened it up to consider extrinsic evidence, looking at all the circumstances – could
consider the illegitimate nephew as well as the legitimate ones. In the end, the illegitimate nephew took the
gift.
34
o Patent ambiguity: where it is apparent on the face of the will, even if you
don’t know the testator or their circumstances.
o Latent ambiguity: if the ambiguity is not apparent on the face of the will
without further knowledge about the testator and/or their circumstances. [See
e.g. Millar v. Travers]48
 E.g. if you realize it could refer to two different people who have the
same name.
 Direct evidence is usually inadmissible unless there is a latent ambiguity [See e.g.
Estate of Murray]49
o The will is presumed to have been read, understood and accepted by the
testator.
o The will is the T’s words – direct evidence isn’t generally allowed because it
would overwrite what the T said.
Mistake
 There are three types of mistake:
1. Drafting Error
 Drafting omission
o Court will only add words where it is satisfied that there was an omission and it
knows what the T wanted.
o Trigger: alleged omission or mistake made in drafting the will or codicil
o To remedy an omission, the court:
 1. Must be certain that there has been an unintentional omission
 2. Must be clear on the precise intention of the will
 It is much more difficult to satisfy this latter condition.
 Falsa demonstrata
o A false statement
 E.g. “my houses on Tulip Street”, where T only has one.
o Where there is an adequate and sufficient description of what was meant to
pass, a subsequent erroneous description is not enough to vitiate it.
48
Millar v. Travers [1832, Eng. Ch.]: Gift of property in the county and city of Limerick. Problem: T only
owned property in County Clare city of Limerick. Latent ambiguity. Held: court wasn’t willing to look at
any extrinsic evidence at all, where no ambiguity on the face of the will. If they changed it to refer to
County Clare, then they’re rewriting the will.
49
Re the Estate of Murray [2007, BCSC]: Will only gave away his assets by percentage, and only added
up to 90%. Patent ambiguity. Salvation army was the last beneficiary listed, got 10% bringing it up to 90.
Options before the court: (1) correct estate and give SA 20% instead of 10; (2) take the last 10% and divide
it back into the remaining 90%; (3) intestacy, in which case 2 nd cousin would get windfall of the estate.
Residuary clause of the will said any undistributed amount was to go to SA. In solicitor’s notes it clearly
said T wanted 20% to go to SA, but the court could not use that evidence  where there is a patent
ambiguity, you aren’t allowed to use direct evidence. So, instructions to solicitor are inadmissible. Rules of
construction: (a) court won’t add to words in the will unless it is clearly not the will of T; (b) presumption
against intestacy; (c) but, courts won’t rewrite the will for T. So, intestacy option is struck because T
clearly didn’t intend that. No contact with that cousin or his branch of the family. Ultimately, the court gave
the remaining 10% to SA, giving weight to the residuary clause in its favour – although the final 10%
wasn’t covered by that clause, it indicated that the T’s intent was for SA to get the rest.
35

The court will just remove the extra words in the subsequent
description [see Re Davidson]50
 With drafting omissions, courts tend to consider most importantly whether rectification
is a necessity: is there a strong indication of T’s contrary intent?
 Extrinsic evidence? Maybe.
o Some cases say yes, some say no.
o A court of construction is less likely to hear any surrounding evidence in
general.
 It’s assumed that if T signed the will he knew what it said and wanted
to say that. [Guardhouse v. Blackburn]51
 Note: this stands even if T didn’t know what a word meant.
If a drafter is a legal expert using legal phraseology and T
signs w/o truly understanding the meaning, he is adopting
the wording and knowledge/approval is imputed.
 This presumption is rebuttable, though. [See Re Morris]52
2. Patent Mistake
 It’s more likely that a patent error will be seen at the probate stage
 A court can insert or delete words in the following circumstances [Lipson]:
o 1. If on readings the whole will, it’s clear that there has been a mistake in
50
Re Davidson [1979, HC]: T had some land/lots; residue was left to children equally. Devised lease on lot
188 to one daughter, 187 to the other. Problem: house on 188 was partly on 187. 188 daughter wanted
everything and wanted to strike out the lot numbers and just give her the house and the lot it’s on. But court
says it’s a latent ambiguity, house covers two lots and you can’t have them both. 187 daughter said
insufficient description meant both gifts should fail, go into residue and both take equally. Held: court used
the falsa demonstrata doctrine but chose to take out the numbering and the reference to “and the lot on
which [the house] stands”  give one daughter the house and the other the lot. So, they draw a line through
the south wall of the house and after the judgment they subdivided to make the non-house lot start there.
Note: then the other sister built her house right up to the line, because they totally hated each other.
51
Guardhouse v. Blackburn [UK Probate Division]: If the will was read to T and he signed it, that should
be conclusive evidence that he knew and approved of the contents of the will. (Note: this is now a
rebuttable presumption rather than a hard rule).
52
Re Morris [1971, UK Probate Division]: Codicil revoked an entire clause (7), but solicitor was only
supposed to revoke a subclause (7(iv)). T didn’t intend to sign a doc invalidating the entire clause – she just
read the codicil and assumed it revoked what her solicitor had been instructed to revoke. Also, codicil
refered to an article in the will, which wasn’t with her at the time she signed codicil. Two types of drafting
error: where solicitor misunderstood T’s instructions, and where understood instructions but applied them
incorrectly. Rule from Guardhouse v. Blackburn was only a presumption (based on later jurisprudence),
and in this case it was rebutted. Argument: T should be bound where he delegates the task to a drafter then
executes the document, as he has adopted the mistakes. But court avoids ruling on this point, and instead
says that this is a class of case in which court can intervene, since solicitor himself didn’t know of error and
thus T couldn’t be bound: how can one impute knowledge/approval to the principal if agent himself didn’t
have it? Solution: Court can’t add words, only omit. So, severs the reference to article 7 in the codicil (so it
retains its effect in the will, for now). Then, when it’s admitted to probate, the courts will consider the
phrase “I revoke clause 3 and __ of my will”, and assess what should have been referred to. Or, might find
that the wording of the codicil as left rebuts the presumption of cumulative gifts and indicate that article
7(iv) must be revoked to give effect to the new gift in the codicil. Either would get full effect of T’s wishes.
Problem: because a patent ambiguity at that point, the later courts won’t admit extrinsic evidence to clarify
T’s intentions, so they might find the gifts cumulative  this is what wound up happening, and Mrs. H
took everything. Note, though: here, this would all be done in one court.
36
drafting;
o 2. The mistake does not express the testator’s intentions;
o 3. The testator’s intentions are so strong on the reading of the will that no other
intention can be supposed; and
o 4. The proposed correction must give effect to the testator’s intention.
Clarke v. Brothwood [2006, Eng. Ch.]
 Facts:
o 1/10 of estate to go to each of two charities, then 1/20th to each of 4 godchildren.
 Issue: this only devised 40% of his estate. So, potential intestacy of 60% of the estate.
o Everyone agreed there was a drafting error, but couldn’t agree on what the error
was. Either:
 T said 20% and solicitor wrote down 1/20th; or
 T said 1/20th and solicitor just didn’t think about it.
o Solicitor couldn’t remember the meeting, but could say with certainty that
client didn’t intend anything to pass on intestacy
 Held: ?
 Reasons
o Looking back to Re Morris, the key was whether T had turned her mind to it or
not.
 In that case it was an absolute rule: if T did turn their mind to the
words of a clause, court won’t take them out of the will, and if you
didn’t turn your mind to the words, court will correct and remove
them.
o But Clarke kind of erodes that absolute standard.
3. Execution of Wrong Document
 Examples:
o Signed a mortgage not a will  can’t be probated; it’s not a will.
o Executed the wrong will
 Courts normally cannot substitute names if spouses sign the wrong wills, but in one
case it was done [see Re Brander]53
Doctrine of Republication
 General rule: where a will is later amended by a codicil that says something different,
then the will is considered republished on that date and that date is the date of
publication for the whole will (unless contrary intention expressed by T). [See e.g. Re
Hardyman;54 Re Reeves]55
Re Brander [1952?, BCSC]: Spouses had reciprocal wills and were each other’s executors. By accident,
they signed each other’s wills. Court substituted the other’s name on each. But, this decision is contrary to
law. The court of probate is there to strike out errors, not to redraft. Still, it was done here so if you need to
argue for it, go to this.
54
Re Hardyman [1925, Eng. Ch. D.]: Will created trust in favour of T’s cousin and the cousin’s children
& wife. Cousin’s wife died. Three years after first will, T made codicil that didn’t mention the cousin’s gift
but affirmed the will generally. Then T died. Cousin remarried about a year after T died. Could second wife
53
37
o Wills Act, s. 20: a will is deemed published on the date it is revived/republished.
 Rationale:
o This can resolve ambiguities by allowing courts to look at circumstances
around the time of the codicil.
o Can cure defects in original will [recall Anderson v. Anderson]
o Can incorporate a document by reference [Goods of Smart]
 It’s a presumptive rule, but it’s not absolute  if it defeats the intention of the testator,
it won’t be applied. [Re Heath’s Will’s Trusts]56
o Republication cannot invalidate a provision in a will that was valid before. [Re
Heath]
 An invalid codicil will not invalidate the original will [Smith v. Smith]57
Common Law Doctrines
Introduction
Key Concepts




Devise = real property
Bequest = personalty
Legacy = cash
Residue always comes last  if you spend it all before you get to that point, the
residual person may not get anything.
 Abatement  reduction of gifts where insufficient funds to pay them all.
o Can give percentages instead, in which case everyone will get something
Four Types of Gifts
1. General and Pecuniary Gifts
 Paid out of the assets of the estate.
o Not from any specific asset or fund – just a direction to pay this legacy or gift.
 Pecuniary  same as general, just money in particular.
 If it’s a general gift of a specific item, it’s a direction to executors to buy that item in
take under T’s will? Held: assuming republication on date of codicil, there was no wife so it must mean any
wife. Therefore, second wife can take (for life or until she remarries).
55
Re Reeves [1928]: Original will gave “my present lease” to daughter. Codicil didn’t mention but
affirmed will generally. Held: the phrase “my present lease” was general enough that it could be
republished to mean any lease held by T.
56
Re Heath’s Will’s Trusts [1949]: Will left trust for daughter. She was in coverture and couldn’t borrow
against her interests as long as she was married. Four codicils. Between #2 and #3, legislation came into
force that would have invalidated the provision and allowed daughter to take all w/o restraint clause. Held:
restraint clause ≠ invalidated by the new act. General rule: won’t allow republication to invalidate a
testamentary gift (or restrictions thereon) if it goes against T’s intention. But note: Rivers thinks this case
would be decided differently now.
57
Smith v. Smith [2010, BCCA]: Note: this is the only recent Canadian case on this issue. T died leaving 4
codicils, last two were attacked on basis of capacity. Attackers sought to find entire will invalid on basis
that final codicil was invalid. Held: republication is just a tool for interpretation  codicil may alter will
after publication, but it won’t invalidate the will if it is itself invalid.
38
order to give it.
If beneficiary doesn’t want a general gift of an item, they can instead take the
money that would have been used to purchase the item.
2. Specific Gifts
 Specific gift of a specific asset
 Must be an identifiable object, which T has described w/ specific certainty to know
what is being given
 If item no longer exists, the gift is just gone.
 However, it does not abate until all of the residue and all of the general estate have
been exhausted.
 Trigger word: “my”
3. Demonstrative Gifts
 Gifts which must be paid out from a specific source.
o E.g. $10,000 from my Royal Bank account
 Only has to be primarily out of the specified location  if the
account only has $8000, e.g., then once the account is emptied you
will take from the general/residue to make up the difference.
 So, as much as possible taken from the specified source, and then the bit that isn’t
coming from there is treated as a general gift.
4. Residuary
 Everything else.
 Anything that isn’t specific, general, or demonstrative  everything that hasn’t
otherwise been disposed of.
 If any other gift fails, it goes into the residue.
 If the residue fails, it goes on intestacy.
Order of Payment
 1. Pay all debts
o If there isn’t enough money to pay all the debts, creditors get paid based on
priority of debts. General creditors share pro rata.
o Estate Administration Act s. 101 sets out who gets paid first.
 Secured creditors come first (“subject to the rights of secured
creditors”)
 (a) funeral and testamentary expenses
 (b) legal fees
 (c) wages, salaries, commissions (employment)
 Current Act says max $500/employee (WESA says $2000)
 (d) taxes
 (e) landlord (rent)
 (f) workers comp, EI payments, income tax payments (things owing
on behalf of employees)
 (g) injuries to employees (where workers comp doesn’t apply)
39
 (h) anything owed to the government (in same or other province)
 (i) all other claims, pro rata.
o Funeral expenses are paid immediately. Everything else waits until you know
what’s in the estate.
 2. If insufficient money to pay out the debts on the estate:
o (a) The residue is tapped first
o (b) Then the general legacies are used to pay (including general portions of
demonstrative legacies)
o (c) then demonstrative legacies
o (d) then specific bequests of personalty
o (e) then specific devises of real property
 3. If all debts have been paid and funds remain:
o (a) real property is distributed first
o (b) then specific personalty
o (c) then demonstrative legacies
o (d) then general legacies
 If there isn’t enough for all the general legacies, divide what’s left
among all of them pro rata
 Note: you don’t have to make any payments for one year
o Rationale: gives time to figure out whether estate has enough money to pay
creditors, and to figure out what gifts to make and in what order.
Ademption
 T has the right to do whatever he wants to with his property during his life (or, at least,
the will doesn’t restrict that).
 In general, you must own something at time of death to dispose of it in your will. If
you no longer own something you’ve gifted in your will, the gift has adeemed.
o But note that general gifts aren’t subject to ademption  they are treated as a
direction by the testator to go buy the item.
 If a gift adeems, the beneficiary gets nothing. So, if an item is going to be sold, you
need to specify if you want the proceeds to go to the otherwise intended beneficiary.
[see Church v. Hill]58
 Ademption does not look at testator’s intention [See Trebett v. Arlotti-Wood] – except
when it does [see Re Pyle]
Tracing
 A gift won’t adeem where specific property has been changed only in name/form, but
Church v. Hill [1923, SCC]: T sold property but didn’t rewrite will, which had left the property to his
daughter Mary. Could she have the mortgage proceeds? If it adeemed, would go to other children in the
residue. (Note: kids probably didn’t get along, otherwise the siblings would have just given her the
proceeds as what their father wanted). Held: gift adeemed. At ToD, T only had right to the price of the
property, not the property itself. Payments couldn’t be used to substitute for the land. Courts were
sympathetic to Mary and to the fact that T didn’t intend to leave her nothing, but they weren’t going to
write him a new will.
58
40
remains the same in substance. [See Trebett v. Arlotti-Wood]59
o When a change is made in name or form only, then tracing is allowed.
o This is a question of fact
 If cash is commingled, then no tracing. So, no tracing into mixed-fund accounts. [see
Re Stevens;60 Nakonieczny v. Kaminski]61
 Tracing tends to be allowed where the change is not due to T’s own actions. [but see
also Re Cudeck]62
 Proceeds of real estate are traceable if they’re put into their own account, even if some
money has been removed [see Re Rod]63
Conversion
 When property is substituted with something of the same kind or amount
 What if T starts to sell property before death, but the sale is not completed?
o E.g. Church v. Hill: property was still in his name; didn’t own it but had right to
proceeds.
 Issue: if the transfer/sale hasn’t been completed at time of death, has the testator
converted the property?
o If gift is the proceeds of property, there’s no conversion  it’s only an issue
where the gift is the actual property.
 Constructive Conversion
o If the T has done everything he can to complete the sale, and it’s just waiting on
a third party for completion, then it will be treated as though the sale were
completed before T died (so long as purchase does actually get completed). [Re
Sweeting]64
59
Trebett v. Arlotti-Wood [2007, BCCA]: Court allowed beneficiaries to pursue some limited tracing, then
come back to court. Where they could show that assets were transferred directly from RBC Securities into
the Midland Walwyn account, the court would allow the funds to be traced. Tracing tends to be allowed
where it’s not due to T’s own actions.
60
Re Stevens (discussed in Trebett): Court couldn’t tell whether T had withdrawn money from the net
proceeds of her house or from other money in the account. Held: commingled, gift adeemed.
61
Nakoniecznyv. Kaminski [1989, SKQB]: Proceeds of house & contents to friend, proceeds of car to son.
Asked executor to sell the items. Sold car to self, put $7000 into T’s bank account and $5000 into GIC.
Contents of house sold at auction and $990 goes into T’s bank account. $34,000 from sale of house. Held:
auction and car proceeds had adeemed, because a withdrawal was made after they were deposited.. Because
it was impossible to identify which money was coming out of the account, it was found to have
commingled and thus adeemed. Lost its character – couldn’t be identified. $11k in account before auction
proceeds, then $990 put in, then $100 came out. Court can’t say whether all the money from the auction is
in there. Principle: you can either trace or you can’t – no partials. House proceeds were traceable, because
nothing else had come out of the account since that amount was deposited.
62
Re Cudeck (discussed in Trebett): Bequest of term deposit. Matured, T cashed it in and bought a new
one; repeated this process a few times. Then, cashed it all in, withdrew everything and put 37 $1000 bills
into a safety deposit box with a note that said he was gifting it to Marie. Held: note couldn’t be given
testamentary effect, but could be used to trace the gift. So no ademption.
63
Re Rod (discussed in Trebett): Gift of proceeds of house, but T had become incompetent and wasn’t the
one who sold it. Committee sold house and withdrew some $ from the proceeds to pay fees etc., Held:
debenture identifiable, but account had lost proceeds.
64
Re Sweeting [1988, Eng. Ch. D.]: Will gave house and land to C, haulage business & land to C and D,
and residue among all 5 children. 3 weeks before death, 2 Ks: one for sale of house, one for sale of haulage
business. Died before transaction was completed. The issue was that the wife had to agree to the sale before
41
o If the sale is never actually completed, then the gift won’t adeem. [Re Dearden
Estate]65
o If you can find an intention to exclude the possibility of constructive
conversion, then it will be excluded. [Re Pyle]66
 As soon as the sale completes, a gift adeems. [Laws v. Bennett]
 Proceeds of a sale of real property are not considered real property; they’re personalty.
[Laws v. Bennett]67
Appurtenance
 A gift that belongs to something else
 E.g. an easement is an appurtenance on the land
 E.g. “my residence” includes things necessary to the residence, not just the land at that
address
 Basically, the idea is that if a will says “the contents of my garage”, beneficiary gets
everything in there.
Elections
 Rule: you can’t take a benefit under a will unless you confirm all the provisions of the
will.
 Example: my house to my eldest son, provided that he gives his house to his sister to
live in. Son has three options:
o 1. Disclaim the gift and not fulfill the condition (i.e. don’t take the house and
don’t give own house)
o 2. Take the gift and fulfill the condition
o 3. Take the house, keep own house, and pay value of own house to sister.
 Trigger:
it could close, and she hadn’t done that yet at ToD. But she did eventually do so, and the transaction was
completed. Held: gift adeemed. Has sale completed before T’s death (i.e. had wife signed docs before
death), it would have adeemed. Because the wife did eventually sign the docs and the purchasers didn’t
back out, the gift did adeem. Not traced. C and D receive residue along with other children.
65
Re Dearden Estate [1987, MBQB]: Will left drycleaning business to nephew; K to sell business, but it
was not completed. Purchaser backed out and T accepted repudiation. Held: because K was not
enforceable, no ademption. There was no way to forcibly complete the K. “Constructive conversion”
(conversion after death of T) only exists if the option/purchase etc. is actually exercised.
66
Re Pyle [1895, Eng. Ch. D.]: Will left land to Pyle & sons. Later codicil and same day made 5 year grant
of land w/ option to purchase. Dies. 3 years later, tenant exercises the option to purchase. So, Pyle & sons
had gift that no longer exists. Should proceeds be paid to Pyle/sons or does it go into residue? Held:
proceeds to Pyle & sons. T must have known property might be converted if tenant exercised option, but
didn’t change the will. Therefore, Pyle entitled to proceeds. Court carefully considered T’s intention  so,
operation of the rule can be avoided if you can show that T’s intention was for option not to change the gift.
But, really, in this case, it was very much implied. Here, the doctrine of republication saves the gift from
ademption, since it’s assumed he would have altered the will if he didn’t want them to take the gift.
67
Laws v. Bennett: will gave real property all to cousin and personalty shared b/w cousin and his sister.
After T’s death, tenant exercised option to purchase. Cousin wanted proceeds classified as real property so
they went 100% to him. Held: the gift adeemed as soon as the purchased was completed. So it’s cash,
personalty, and it’s split between the two beneficiaries. It was the tenant’s exercise of the option that caused
the conversion, not the granting of the option. So, as soon as the tenant exercised the option, the gift of the
property adeemed. Doesn’t matter that it happened after T’s death.
42




o Gift to legatee
o Gift of legatee’s property to 3rd party
An election must be very clear: testator must have clearly intended to dispose of
someone else’s property. [See Granot v. Hersen Estate]68
Giving a power of appointment is not sufficient to impose an election requirement.
The beneficiary must be able to actually alienate the gift.
o If person who received gift would have to give away property, they can’t have
only a life tenancy in that property  have to own it to give it away.
Gifts to beneficiary and others must all be in the same document/instrument
o Will & codicil is fine, but you can’t have some in deed and some in will.
o Can’t sign over property to someone inter vivos and then say in will that you
want that person to give the property to a third party  they can just ignore
that.
Satisfaction
 Assessing whether a gift made before T died is meant to satisfy a gift given in the will.
 If a client wants these rules now, just write them into the will directly.
1. Double Portions & Satisfaction of Legacies
 Only difference between these two is that for double portions it has to be your child,
and it has to be a transfer to advance the child in their life.
o So, $ to child to advance their education: double portion.
o $10k to someone (child or otherwise) as straight gift: satisfaction of legacy.
 If a legacy is satisfied in a person’s lifetime, they don’t get it again.
o So, if testator gives a gift of a certain amount (or property of substantial nature)
to child and also gives a legacy of equivalent value under the will, the legacy
has been satisfied and they don’t get it again.
 Unless you write the will after the gift  to fall w/in this doctrine, the advancement
has to be made AFTER the will is written.
2. Satisfaction of Debts
 Only applies to creditors
 If person leaves same amount to creditor as they owe, it is presumed that the debt is
thereby satisfied. [see Garnet v. Armstrong]69
 A direction by will to pay debts is strong enough to rebut the presumption of
68
Granot v. Hersen Estate [1999, ONCA]: T left all residue to daughter. But he owned a condo in
Switzerland, and under Swiss law there is forced heirship. So, mandatory that son gets ¼ share, daughter ¼,
and ¼ to each of two grandchildren. Daughter argued: Son must choose between taking gifts under the will
or under Swiss law. So, ¼ goes to son under Swiss law but then in order for him to benefit under the will he
must pass that share to her. Held: no intention of T to give son’s share to daughter – just an operation of
Swiss law that wasn’t inconsistent with the provisions of the will.
69
Garnet v. Armstrong [1997]: Employee sued executor for breach of K because the will specifically
directed executor to pay debts and he didn’t pay back wages owed. Held: ≠ breach of K, but gave quantum
meruit. Was gift in the will meant to be in satisfaction of the debt? It was more than the amount of the debt,
and the separate direction to pay debts counters the presumption that it would be in satisfaction of the debt.
So, employee gets both the gift and his debt paid.
43
satisfaction of debts. [Lehay v. Brown (1957)]
3. Hotchpot Rule
 Generally, trying to bring everything back into the family pot. Blending property to
divide it equally.
 This was a common law doctrine, but it’s written specifically into wills now.
 Example:
o Father leaves everything equally to 3 children, estate is worth $1 million, but
after will was made he gifted $200k to one child.
o We say it’s a 1.2 mill estate, and divide it in 3. So, 2 children will get 400k
each, and the third (who already got 200k) gets 200k
 Again, must be gifted after the will was made for this to apply.
4. Satisfaction of portion debts
 Uncommon in wills
 When parents have formal obligation to advance a portion of their estate to the child.
 Comes up in separation agreements; parents agree to each leave x amt to their child.
o These days, this is more commonly done through life insurance.
 Example:
o Separation Agreement says “put x amts/year from RESP into account for
child”. Father makes will leaving legacy of that amount, but dies before making
those transfers  then the estate doesn’t have to make the RESP transfers then
pay out, it can just let the legacy cover it.
Disclaimer
 Basic idea: you can’t force someone to receive a gift.
 Four main types of situations where disclaimer occurs:
o 1. Where there are unacceptable conditions attached to the gift
o 2. Where beneficiary is in debt and creditors would take the amount
 Will often disclaim and let it go to their children or something
o 3. Where beneficiary has taken a vow of poverty
o 4. Where beneficiary can’t take it for tax reasons
 Disclaimer can be made any time up until a benefit is actually taken, but once taken
you’re tied to it. [Montreal Trust]
 If there are two connected gifts, you can’t take one and disclaim the other. [Montreal
Trust]
o But if they aren’t connected, it’s fine to pick and choose.
 If something is disclaimed (or otherwise fails), it goes into the residue. If the residue
fails, it goes on intestacy.
 You can use a disclaimer to void the obligations on a gift and then take it in residue or
intestacy (if you’re the person that will take in that circumstance) [Re Grund]70
70
Re Grund Estate [1998, BCSC]: house to A and B so long as they pay x amount to C and D; A and B
wanted to disclaim and let it come to them on residue, but C and D said they had to pay regardless. Held: A
44
o If a gift is disclaimed, it’s totally void – as though never made.
Acceleration Issues
 Sometimes it’s useful to one party to disclaim so that the gift accelerates through to the
next party (i.e. whoever would take it if they were dead, or otherwise out of the picture)
 This can be contested, though – it’s not always allowed.
o The PG&T may get involved where the class of beneficiaries isn’t closed
o It may also be contested where one party has an interest contingent on the latter
beneficiary surviving the first, or something like that.
 There is a presumption that a will allows acceleration. [Re Creighton;71 Re Brannan]72
 To rebut this presumption, must show contrary intention of testator. [Re Giraudais]73
 Courts consider T’s intention at time of writing, not time of death [Re Creighton]
Lapse
 Starting point:
o Wills Act, s. 21: (absent contrary intention in will), if a devise or bequest fails, either
due to death of recipient before testator or b/c bequest is contrary to law or otherwise
cannot take effect, then property/interests in that devise or bequest will be included in
the residuary devise or bequest (if the will contains one).
 If the residuary fails, it goes on intestacy [Re Stuart Estate]74
Exceptions to the Doctrine of Lapse
 If a gift lapses, it will fall into the residue (or residue into intestacy), unless there is a
saving statutory provision, a contrary intention in the will, a class gift or a moral
obligation.
and B can take free under the residue. Disclaimer voids the gift as though never given – so the condition
attached never came either.
71
Re Estate of Creighton [2006, BCSC]: Trustee had discretion to give to children or grandchildren, then
at death of last child discretion to give to grandchildren or great-grandchildren, as desired. Children wanted
to disclaim so grandchildren could take all right away – all 6 grandchildren were still alive, so the greatgrandchildren wouldn’t get anything since their parents had not yet died. PG&T got involved, said the
great-grandchildren had an interest because they might be able to take. Held: no indication that T intended
to prevent acceleration. Court noted low chance of further grandchildren (children were too old), and also
noted that the great-grandchildren would still benefit because their parents would have more money to
spend.
72
In the Estate of Brannan [1991, BCCA]: Father wanted to disclaim and give to sons. Held: father was
allowed to disclaim. It wasn’t just the father’s death that would shift it to the sons, but also if the father
remarried. Since he could have chosen to remarry, he could choose to disclaim.
73
De La Giraudias v. Louis de La Giroday Trust [1998, BCSC]: Court looked at intention: life tenant
wasn’t able to terminate unilaterally (no provision allowing that). Recitals to the trustee. Court considered
the high dollar value and the fact that the trustee was protected against the rule against perpetuities,
indicating that the T may have wanted to prevent early disposition. Contrary intention found – T didn’t
intend to allow acceleration.
74
Re Stuart Estate [1964, BCSC]: T directed that residue of his estate be divided equally among 13 listed
people, one of whom predeceased him. Didn’t specify what would happen if anyone predeceased. Issue:
how to dispose of his share of the residue? Normally, gifts that fail go into the residue, per s. 21 of the
Wills Act. But since this was already part of the residue…what happens? Held: jurisprudence indicated that
a failed residuary bequest is treated as an intestacy, not falling under s. 21.
45
Moral Obligation
 Applies only where: [Re Mackie]
o 1. There is a legally unenforceable obligation and it is a bounty, and
 E.g. debts discharged by bankruptcy (non-collectable/written off, but
moral obligation to pay)
 E.g. statute-barred obligations
o 2. It is a fixed sum debt
 This is where it failed in Re Mackie  not enough to be a personal
obligation.
 Example: my son B owed money to R, and I direct my executor to pay that debt.
o Fixed sum debt, not enforceable against the parent.
Joint Tenancy
 Personalty and realty can be held in joint tenancy.
 Automatic survivorship
 Typically name the beneficiaries (unlike class gifts)
Class Gifts
 If a member of the class dies, their gift will be split among the rest of the members of
the class
 Class gifts can still lapse, but only if the entire class dies before the testator.
 Doesn’t have to be a closed group – can change, as long as it’s generally determinable
o Could say, e.g. “everyone who is a member of x church at the date of my death”
o You can specify a date other than your death, but beware: there was a case in
Ontario in which the date was set at 6 months after death, and the church’s
membership went up like crazy by the deadline.
 Test for class gift [per Milthorp v. Milthorp]
o 1. Connected by a common tie
o 2. Looking to the body as a whole rather than an individual
 Typically no naming of beneficiaries
 Though this does not automatically disqualify [Re
Hutton]75
 Typically no number listed [Milthorp]
 But this may not disqualify either [Re Peters]76
 Typically not per stirpes, because this suggests an individual gift [but
see Re Hutton]
o 3. If one or more should die in testator’s lifetime, the survivors take the gift.
Statutory Anti-Lapse
75
Re Hutton [1983, HC]: To four children, named, and if they died then to their children the share their
parents would have taken. Court found a class gift: a gift to a group of people united by a common tie, and
T is looking to the body as a whole. Even though it was per stirpes, court said on the whole this best gave
effect to T’s intentions. So, 1/3 each to surviving children and 1/3 to children of deceased child who left
children.
76
Re Peters: Residue should be divided among step children that were left as joint tenants.
46
 At common law, a gift will lapse if the beneficiary dies before the testator.
o This can be inconvenient, so there are statutory provisions in every province to
address the issue.
 See Wills Act, s. 29:
o It’s not technically a pure anti-lapse provision, since it gives the gift to another
person, rather than sending it to the deceased’s estate/beneficiaries.
o Only applies to some gifts:
 Children and siblings of the testator who have predeceased
o 29(1) gives nothing to the spouse if there are children  disposed of as though
the person died intestate w/o spouse and with no debts.
 If the predeceased beneficiary had no children, then their spouse can
take.
 Testator can countermand the statutory anti-lapse provisions, if intent demonstrated
[see e.g. Re Wudel;77 Re Meredith;78 Re Estate of Stella West]79
 But you can’t actually negate the doctrine of lapse – don’t say “shall not lapse” [Re
Greenwood]80
 Consequences can be avoided by substitution.
o Anti-lapse provisions in a will can’t be an attempt to exclude the rule of law,
but can show an intention to avoid the consequences of lapse by substituting a
new beneficiary.
 If the anti-lapse provision fails (e.g., if the person who was supposed to take instead
dies first), then the whole gift lapses [Re Cousen’s Will Trusts (1937, Eng. Ch. D.)]
 The strictness of interpretation depends on the language of the will. [Re Davison]81
Other ways to void a gift
 Condition precedent
o Gift of real prop w/ condition precedent is void
Re Wudel [1982, ABQB]: One of T’s children died before the will was written, leaving 4 children. Will
distributed 8% among the grandchildren and 64% among T’s children. Will stated that if any child died
after the date of will, their gift goes to grandchildren. So, court found that will contained a contrary
intention that countered the statutory anti-lapse provision. Armchair of testator: she knew child was dead,
and must have intended to countermand the anti-lapse. Looking at the scheme of the whole will, she
intended the gift to the deceased daughter to lapse.
78
Re Meredith (considered in Re Wudel): T gave gift to son then residue to 5 children by name. Son died,
T wrote codicil stating the death and providing for the son’s children. So, specifically expressed that gift to
deceased son had lapsed, and wrote intention into the will to do something with that gift. If he hadn’t stated
the belief that gift would lapse, then a simple codicil leaving gifts to grandchildren would not have been
enough to contravene the anti-lapse provisions.
79
Re Estate of Stella West [Vancouver Registry, 1999]: the phrase “per capita” (without gift over to the
beneficiaries’ issue) was held to mean that it did not lapse  indicated intention to benefit those specific
people, not their children. “Sole use and benefit absolutely”  reinforces that it was for the direct
beneficiaries and no one else.
80
Re Greenwood [1912, Eng. Ch. D.]: Residue to be divided between niece and nephew, “but if any die in
my lifetime leaving issue, the benefits shall not lapse but shall take effect as if their death had happened
immediately after mine”  not allowed. You can’t just throw out the doctrine of lapse. If she had just left it
to the deceased’s children as beneficiaries, that would have been fine.
81
Re Davison [1979, NSTD]: If the language is broad enough to include children who had already died at
the time the will was written (“my children”), then they are included in the gift. Court chooses the less
restrictive reading, such that each living child got a share and each grandchild got a share too.
77
47
o Gift of personalty – CP is void and gift is valid
 Public policy
o E.g. Requiring beneficiary to divorce
o In terrorem conditions
 Threat to induce a beneficiary to comply w/ something
 E.g. “if any of my children should challenge this will, they get
nothing.”; or “if any of my children challenge the will, I authorize my
executor to use the full amount of my estate to defend the will as it
stands”
 These are void for public policy, as of late last year.
 Impossible performance
o Where gift is based on an assumption of facts that can’t exist
o E.g. references to Soviet Union
 If void for uncertainty [Sifton v. Sifton]82
Challenging a Will
Background
 In BC, whenever you have an incompetent person or a child involved, you must notify
the PG&T and they get copies of any proceedings or accountings
 When an executor applies for probate, they must prove:
o 1. Age (old enough to make a will)
o 2. Formalities adhered to
o 3. Knowledge and approval by T of the will
o 4. T had capacity to execute a will
 Challengers can either challenge on basis that the burden of proof for one of the above
has not been met, or can prove fraud, undue influence or suspicious circumstances.
 There are two ways to probate a will – depends if it’s contested or not
o 1. Proof in Common Form
 Where will is not contested
 Executor signs 2 affidavits:
 1. As to identity of deceased
 2. Formalities of the estate
 These are then attached to the will.
 Executor has to send out a notice form and a copy of the will to every
person mentioned in the will, everyone who would be entitled on
intestacy, and everyone who could make a WVA claim.
 Burden of showing age, formalities, knowledge/approval, and
capacity is on the executor. But these are assumed unless someone
challenges.
o 2. Proof in Solemn Form
 The burden of proof doesn’t change, onus is still on executor to prove
Sifton v. Sifton: “only so long as she remains in Canada”; beneficiary went abroad for 11 months for
school. Lower court found not uncertain, but temporary absences didn’t mean she no longer resided in
Canada. Privy council found condition was uncertain, struck down the condition and gave a gift absolute.
82
48
age, formalities, knowledge/approval, and capacity.
 Can rely on presumptions: presumed if signed will had
capacity, knew and understood contents
 If challenger can show suspicious circumstances, though,
then the executor loses the presumption and must fully
prove the matter.
 In solemn form, you actually have to appear in front of a judge and
prove your case
 As opposed to common form, where you just send the
documents to the courthouse and they come back with
probate.
 Note: the standard of proof is the civil standard – balance of probabilities [see Re
Henry]83
Knowledge, Suspicion, and Undue Influence
 If you can show no knowledge of the entire will, then it can’t be probated at all.
 If you can show there’s only a specific part of the will that they didn’t understand, then
that part can be dropped and the rest probated.
 A T must have real knowledge of the value of the will (consideration of the
extent/magnitude) in order to approve the will [Wintle v. Nye]84
 Presumption that will was read to testator and they understand it
o Rebutted if there are suspicious circumstances [Maddess; Russell v. Fraser]
Maddess v. Estate of Johanne Gidney [2009, BCCA]
 Facts
o Mrs. Craz had poor English, no business skills
o There were serious tax implications in her will, and it treated the children very
unequally.
 Issue: Daughter challenged knowledge/approval of the will  did she have enough
knowledge of the estate and the effects of the will for it to be valid?
 Held: Will valid.
 Reasons
o Considered the allegedly suspicious circumstances:
 1. Poor English skills – lawyer could still understand her, that’s fine.
 2. Treating children unequally – she treated them financially
unequally all their lives
 3. Received documents from another lawyer – that’s not weird
 4. Tax consequences – Son takes free and daughters have to pay the
capital gains tax on the property he gets, out of their residue gift. But
Re Henry: just because there is a suspicion of undue influence doesn’t mean it has been proven. The
standard of proof does NOT vary with the gravity of the situation or weight of suspicious circumstances.
84
Wintle v. Nye [1959, HL]: Lawyer took residue. He did protest but she insisted. He kept the will and she
never saw a copy, but this was common. Problem: she was wrong about the amount of money in her estate,
didn’t expect it to be worth much after probate fees, but it was. Held: will invalid, T must know value given
to approve. Solicitor may be able to take under a will he prepares, but it’s suspicious.
83
49
court says tax is not a suspicious circumstance.
o So, no suspicious circumstances, presumption of knowledge stands.
 What constitutes suspicious circumstances?
o It isn’t strict law that a solicitor who prepares a will can’t take under it, but this
creates a suspicion [Wintle v. Nye]
o If T gets advice from someone who takes under the will, this is suspicious [Vout
v. Hay]85
o Age, health/illness relating to capacity [Vout]
o Anything that shows that the free will of the T is overborne by acts of coercion
and fraud. [Vout]
o The level of suspicion will vary depending on the circumstances. [Vout]
 Burdens of proof when an allegation of undue influence is raised [per Vout v. Hay]:
o Onus on challenger to prove undue influence.
o Onus on challenger to rebut presumptions of validity re formalities, capacity,
etc, but once rebutted, onus shifts to executor to prove.
Harms v. Hinkson [1946, PC]
 Facts
o Hinkson, a lawyer, went to visit his friend George in the hospital.
o George was about to die, and the doctor told Hinkson that and said he was ok to
make a will.
o So, Hinkson got a will kit and they discussed bequests. Once they’d set out all
the specific gifts, H asked G what he wanted to do with the rest of his estate,
and G said “you take it”.
o H protested, G insisted. H didn’t want G to sign the will that night (witnesses
corroborated this), but G wanted to sign right away, so he did – properly
executed w/ two nurses as witnesses.
o H brought back another form the next day, but G refused to sign anything else.
 Issue: G’s sons challenged the will, saying H was an interested party and gifts to him
void; also alleged undue influence.
 Held: Will valid.
 Reasons:
o The fact that H was interested is just suspicious – still have to prove undue
influence.
o Obviously his evidence is not the most reliable, but there were other people
there.
o Court noted that however well-intentioned H was, it was ill-advised and he
85
Vout v. Hay [1995, SCC]: 81 year old testator left estate to a friend, Sandra Vout. Family alleged
suspicious circumstances, undue influence, everything they could think of. Vout had been a friend to T in
last several years of his life; helped on farm, etc. Will was prepared by a legal secretary in Vout’s parents’
lawyer’s office. The secretary said she took instructions over the phone from Vout (said the woman had
Vout’s voice). Secretary said she showed T the will and Vout said “yes, that’s what we discussed.” Vout
said she just recommended the lawyer but didn’t go with T to the office or anything. Other witnesses said T
was alert, smart, etc.; just a grumpy old man, probably not lacking capacity. SCC restored trial judgment
upholding the will, but said that where a T gets instructions from someone who’s supposed to take under
the will, that’s suspicious.
50
should have brought in another lawyer.
 Note: entire value of estate was $65k. By the time this was all fought out, there was
little left.
Russel v. Fraser [1980, BCCA]
 Facts
o T had grade seven education, couldn’t read, had no real knowledge of real
estate, but was capable and looked after herself until right before she died.
o Fraser was the manager of T’s credit union. They had a long time business
relationship.
o A few years before T’s death, she asked him to draft a will for her – he refused
and sent her to a lawyer. In the end, she didn’t sign that will because he wanted
her to make a decision about the residue and she didn’t want to.
o So she went back to Fraser and ultimately she told him to have the residue. He
took the will to his lawyer’s office, saw an assistant, had the will typed, and
eventually the lawyer and another person from the credit union met with T and
went over/signed the will
o Lawyer didn’t meet w/ T until the signing, and he couldn’t remember any
details about the residue or the amount of the estate
 Issue: did F get the benefit? Did T understand the contents?
 Held: no undue influence, but couldn’t prove that T knew the size of the gift she was
leaving him
 Reasons
o Because of the suspicious circumstances, he’s not protected by the
presumptions. So he had to prove that she knew.
o Couldn’t show that she knew the size of the residue, even though he did.
o No one had notes or records indicating whether anyone had discussed the
amount with her.
 Even if the lawyer had notes to the effect that she knew the amount
and wanted to give it to him, that would have been enough.
o The gift to him was very large, considering they had no familial or other ties.
Mental Capacity
 A person of unsound mind cannot make a will.
o Policy: protect testator and assets
o But…what degree of unsoundness is necessary?
 Mental illness creates a rebuttable presumption against validity [Banks]
o The presumption is stronger if you haven’t given to people who would have
been expected to benefit.
 Test for validity of a will where capacity is in question [per Banks v. Goodfellow]86:
86
Banks v. Goodfellow [1870, QB]: T, Banks, left all to Goodfellow, his niece. (though she died before the
trial so her estate was involved at this point). Nephew (who would take on intestacy) challenged the will.
T had spent some time in a lunatic asylum, with two delusions: (1) He thought spirits were out to get him;
(2) He thought a man from his past (who had died long ago) was pursuing him and trying to kill him.
Otherwise, he was pretty much ok. Will: lawyer read him instructions, T read them, signed right away.
51




o 1. T must understand that they are making a will and that it disposes of their
property
o 2. T must understand the nature and extent of property being disposed of
o 3. Court will consider claims to which T ought to have given effect (i.e. people
to whom they would ordinarily be expected to give under their will)
o 4. T must have no disorder of the mind that prevents the exercise of mental
faculties (i.e. free of delusions that affect the decision)
 If delusions don’t impact the distribution of property, then that’s fine.
Note: just because a person is competent or incompetent for one legal purpose, that
doesn’t mean they are necessarily competent or incompetent for other purposes.
o Contractual capacity is the highest level
o Wills are somewhere in the middle
o S. 7 representation agreements are lower
o Getting married: way at the bottom.
A person may be found incompetent if they lack decision-making powers due to
bereavement [Key & Anor v. Key & Ors]87
A lawyer can do his best, but sometimes a court will find a lack of capacity on a
change of mood or a bequest the court thinks is unreasonable. [see Sharp & Bryson v.
Adam & Adam]88
Shifting the presumption: as soon as suspicious circumstances are raised, the onus
shifts to the executor to prove mental capacity. [Quaintance v. Quaintance Estate]89
Royal Trust Company v. Rampone [1974, BCSC]
Lawyer left and came back 25 days later with the completed will, which was then executed. Issue: was he
competent to sign the will? Held: competent. Delusions didn’t influence the distributions.
87
Key & Anor v. Key & Ors [2010, Eng. Ch.]: T had 4 wills; last will benefited daughters much more than
sons. Sons contested b/c last will was made 7 days after wife’s sudden death; alleged inability to make
decisions due to the bereavement. Court opened this up as an area of incompetence. Recognized that the
loss of his wife left him unable to make decisions – no doubt that he knew how many children he had, what
his assets were, met all of the other requirements of the Banks test.
88
Sharp & Bryson v. Adam & Adam [2006, EWCA]: T had MS, severe physical disability and also
affected mental capability. Lawyer came out to farm took instructions and took “meticulous care” to ensure
capacity – brought out T’s doctor and a senior lawyer. T was estranged from his daughters and totally wrote
them out of the will. The will left minor gifts to someone who’d cared for him, and residue to his
employees. Daughters challenged, alleging undue influence and lack of capacity. TJ found no undue
influence – employees didn’t even know they were going to take – but found lack of capacity because it
was unreasonable not to give anything to his daughters. Must have been a temporary poisoning of his
natural affection for daughters, and therefore the 4 th Banks criterion wasn’t satisfied. Court said this factor
deals with mood as well as capacity, but this case really turns on its facts. The lawyer did more than most
people would have, but apparently it wasn’t enough.
89
Quaintance v. Quaintance Estate [2006, ABCA]: T revoked will 13 days before his death and wrote a
new will leaving everything to the daughter of his CL spouse. His natural daughter challenged the will.
Family doctor signed affidavit swearing competent at time of signing. Court looked at all the
circumstances: CL daughter filled out will questionnaire and talked to the lawyer first. She did bring a
handwritten note from T which she gave the lawyer. In the original written instructions T said he wanted
his grandchildren to be his beneficiaries, but then he called back and said he changed his mind and wanted
to leave it all to the CL daughter. He was 81, had Parkinson’s, was frail/weak and hard of hearing. Major
beneficiaries were written out of the will. Court notes distinction between providing sufficient evidence to
raise suspicion and to prove undue influence. Once suspicions raised, goes back to executor to prove
capacity.
52
 Facts
o Before 2nd codicil made, testator was declared incapable of mging his affairs.
o To get a committeeship in BC, must get two doctors who say they know the
person and he is not capable of managing his affairs. This happened. Before he
published the 2nd codicil he was declared incapable of mging his affairs by
reason of mental infirmity.
o He had actually started writing the codicil because he knew of his advancing
infirmity, and asked one of his children to get it done.
o The first will left equally to 4/6 children. The first codicil left some to the other
two sons. Last codicil left everything equally to the six children.
 Issue: Did he have testamentary capacity?
 Held: T had capacity. Codicil valid, everything went. Presumption rebutted.
 Reasons:
o Considered the facts: he knew he had 6 children. He had good and bad days.
o One of his daughters testified in favour of him having capacity at time of his
writing the second codicil, even though she would get less under that. So court
placed a lot of weight on that.
o Lawyer testified that he thought he’d given the farm to his sons and that’s why
they weren’t in the will, but he realized later that he’d actually sold it to them,
not gifted, so he wanted to divide it evenly.
o No one suggested the codicil to him, he just wanted to do it.
 Costs were paid out of the estate, since it was a proper issue to be tried.
Re Estate of Bohrmann [1938, Eng. PDA]
 This case is kind of rogue – try not to rely on it if you can find a better one.
 Facts:
o T was eccentric and unreasonable; a paranoid psychopath.
o Had some delusions about the London City Council
o They had appropriated his land, and he decided they were out to get him.
o He made a codicil saying all $ left to charities in England should go to US
charities
 Issue: did mental disorder prevent him from making a valid testamentary decision?
o No doubt that the delusion had an effect on that disposition.
 Held: court upheld the will and codicil and took out the paragraph shifting the gifts
from the London charities to US ones.
o Uncommon to find capacity for the rest of the will while incapacity for one
clause, but use this if you have to.
Timing
 General rule: need capacity at time will is signed
 Parker gives some wiggle room  if someone has a terminal illness, you can write
something out right away and have them sign it, in case you can’t get back in time
 Three possibilities for state of mind [per Parker v. Felgate (1883)]:
o 1. Capable of understanding what she was doing
o 2. Could confirm the accuracy of each clause if read to them
53
o 3. If not, would T be able to say “I rely on my solicitor to have put my wishes
into the proper words, and I accept this paper as meaning that”?
 It’s enough if you’re capable of understanding and did understand
that the will she gave instructions for was the document being signed.
A Solicitor’s Role in Questioning Capacity
 There are two schools of thought in this:
o 1. Just make sure you have evidence re capacity, and go ahead [see Public
Trustee v. Gill]90
 Take notes, be prepared to advise the court on your views. It’s a
finding of fact.
Problem: if you’re wrong, you may be liable to a potential
beneficiary.
o 2. If there are any issues re capacity, just don’t make a will for that person.
 If a reasonable and prudent lawyer would have found capacity,
though, a lawyer who declines may be liable to third parties who
would have taken under the will [See e.g. Hall v. Bennett Estate]91
 There is a legal duty on a solicitor to consider signs of incapacity [Public Trustee v.
Gill]
o Suspicious circumstances, e.g. disinheritance, treating kids differently, etc.
Undue Influence
 Onus is on the person making the claim of undue influence [Vout v. Hay]
 Test for undue influence in testamentary gifts: Power, exercised to make T do
something they don’t want to do. [Wingrove v. Wingrove (1885)]
o Having power is not sufficient – must exercise the power.
o Must be coercion  enough to make T do something they didn’t want to do.
 Note: Doesn’t have to involve coercion if inter vivos.
 In an inter vivos gift, any relationship with receipt of
benefit w/o corresponding payment.
 Examples of coercion methods:
 Force: near death, a person can become so feeble that
minimal pressure is needed to force a result
 Or, could just get tired of hearing kids whine about not
getting enough money.
Public Trustee v. Gill: If there are doubts as to capacity, just write the will. There’s a presumption of
capacity, so just make sure to interview client in sufficient depth. Note, though: legal duty to consider signs
of incapacity.
91
Hall v. Bennett Estate [2003, ONCA]: Lawyer decided that a potential client was incompetent and
declined to make his will. Died, and a potential beneficiary sued the lawyer for not making the will. Court
said the real issue was whether a reasonable and prudent solicitor would have concluded that this person
didn’t have capacity. Duty of care is to clients, but can extend to other people. In this case, it was the
lawyer’s duty to decline the retainer in this case. He assessed capacity before agreeing to retainer. No K, no
duty.
90
54
Craig v. Lamoureaux [1920, PC]
 Adopted by BCCA in Ravenshen.
 Facts
o She was very ill. They had no children.
o Her husband’s brother (a lawyer) took instructions, husband read will to wife,
asked about changes. She said yes, he went downstairs to change the will.
o She went to sleep (on morphine), he came back, read it to her again, she tried to
sign it but her signature was illegible.
 Issue: undue influence? If it went on intestacy, it would have gone to her sister.
 Held: Will valid.
o Lower court held that it was the job of the husband to prove that he had not
unduly influenced the wife
o But CA said burden of proof in undue influence stays with the person alleging
it. Sister had to prove not just the power imbalance but the exercise of that
power, to establish undue influence.
Fraud
 Broader than undue influence (which is in fact a type of fraud)
 False facts acted upon by the testator
Wilkinson v. Joughin [1866]
 Facts
o Ms. Rowntree & Mr. Ward, child Sara
o Then Ms. R married Mr. Thompson, but never actually divorced Mr. Ward
(who was still alive).
o So, Mr. Thompson thought she was a widow, and he left bequests to “my wife
and my stepdaughter, Sara”
 Issue: was Mr. Thompson’s will valid?
 Held: Court found that Ms. R’s gift was invalid, as she had perpetrated a fraud. But
stepdaughter was an innocent legatee.
 Reasons
o R knew she was already married and husband was still alive. No doubt that he
supported her his whole life. Court: “she imposed in a gross manner upon him”
o Important distinction: fraudulent party and innocent beneficiary
o Testator raised Sara for many years; certainly an intention to benefit Sara. He
left specific gifts to S.
o We’re assuming (not specified in case) that Sara didn’t know her bio father was
still alive (i.e. she didn’t know about the fraud)  this is key, because otw she
couldn’t have taken.
Lawyers’ Duties and Responsibilities
1. Taking Instructions
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 Duties of solicitor [per Murphy v. Lampier]92
o 1. Know that:
 (a) T has capacity
 (b) They aren’t being influenced inappropriately
 (c) they actually understand the consequences of their gifts
 This entails knowing the contents of their estate and what
they are disposing of in the will
o 2. Instructions should be taken from the T himself
 If you take instructions from a third party, solicitor must be satisfied
that the will conveys the T’s wishes [Re Worrell (1969, ON Surr.
Ct.)]
o 3. Need full inquiry into family and objects of T’s bounty
o 4. Must satisfy the court that the steps you took were sufficient.
 The degree of inquiry necessary varies depending on the
circumstances [see Chalmers]93
 There is a contractual duty to a testator.
2. Duties to Beneficiaries
 A solicitor can be liable to beneficiaries where [per Whittengram]94
o (a) the lawyer was negligent, and
o (b) the lawyer owed a duty of care to that beneficiary
 A court may also impose liability for public policy reasons [White v. Jones]95
3. Insurance Duties
 One in seven lawyers report a wills incident per year
 Common errors:
o Failing to recognize undue influence
o failing to advise that marriage invalidates
o failing to point out effects of lapse
92
Murphy v. Lampier [1914, ON]: 5th will in 9 years; all others gave to husband but last wrote him out. At
the end of her life, she occasionally forgot that she had a husband. Solicitor had duty to ensure capacity.
93
Chalmers v. Uzelac? [2004, BCCA]: Sufficient general recollection of the circumstances to demonstrate
that she was competent at the time. Lawyer spent time going over the provisions, knew her background and
distribution scheme; there were logical/sensible reasons for the bequests she made. T was forthright, clearthinking and determined. Held: acceptable. Degree of inquiry varies. Where T is clear, business-oriented,
etc., we take less care than where someone is clearly feeble and having difficulty remembering things.
94
Whittingram v. Crease & Co. [1978, BCSC]: Son’s wife signed will as witness, and son was a
beneficiary, so that invalidated his gift. Wife had asked lawyer if she was allowed to sign, and he said it
was ok because she wasn’t taking anything. Disappointed son sued lawyer in negligence for the amount he
should have received under the will. Held: son was awarded the amount he lost (made up some of it on the
intestacy anyway). Plus, had the will been properly executed there would likely have been a WVA
application from the other kids, so they estimated what he would have gotten and topped him up to that.
The facts were very important here: lawyer had implied duty of care because the gift was invalid due to
improper execution of the will (and it was clearly his fault). So, not all beneficiaries will have a claim.
95
White v. Jones [HL]: T wrote daughters out of the will then decided to write them back in. Sent letter to
lawyer, who went on holiday and didn’t meet w/ testator for three months, but then T died so it was too
late. Court found a duty to the daughters, on the grounds of public policy: people should be able to rely on
lawyers to do their jobs within reasonable time.
56
o wrong precedent
o leaving out portions of bequest
o not satisfying self about capacity
 Red flags:
o Instructions from 3rd parties
o Capacity issues
o Testator changing a will  always ask for a copy of the old will.
o Unequal treatment of parties in same category (e.g. children etc.)
o Identify all relationships
o Recall: incapacity doesn’t have to be strictly psychological [Key & Anors v.
Key & Ors]
 Depression may soon be included too.
Variation of Wills
 A will can be varied either by pre-existing agreement or by an application under the
Wills Variation Act.
Background on the Wills Variation Act
 The BC Act puts significant constraints on what T can do with their assets.
o Sometimes parents WANT inequality.
o Often people want to gift a person who has benefited them.
 Note: a WVA Application happens after the will is probated.
o Need a valid will to hang the application on.
o Sometimes wills in BC aren’t even probated, if the estate is small – you can just
get everyone to agree and transfer it to the executor without going through
probate.
Important Sections:
 1 – Definitions
o Spouse includes married and CL
o No definition of child or children
 2 – “despite any law/legislation to the contrary”  gives itself primacy
o Court may make any order it finds adequate, just and equitable.
o Gives you a right to apply.
o Until 1994, it was strictly financial need-based (usually just allowances were
given)
o See Walker and Tataryn
 3 - Have to apply w/in 6 months of getting probate
o Note that you’ll still have a year to serve it on the other party.
 4 – ‘net’: as soon as anyone makes a claim under WVA, opens the whole will.
o Court looks at every recipient
o Comes in where imbalance b/w gifts to children, e.g.
o Be careful to advise client accordingly.
 5 – court has total discretion as to evidence
o Can look at whatever it wants.
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o Don’t put reasons in the will, because everyone who can claim has to get a copy
of the will, and a child is much more likely to challenge if they can see the
reasons (e.g. nothing to x because I don’t like his wife)
o If there are positive reasons to give to someone, it’s usually fine to put it in the
will.
 6:
o almost never attach cond’ns
o court can refuse to make order where character or conduct disentitles
 12 – executors can’t make any payment until 6 months after probate.
o In practice, we get people to sign releases and then can distribute estate early.
 15 – can appeal to the court of appeal.
Who Can Apply?
 BC is the only jurisdiction that allows an independent adult child to bring a claim
 1. Spouse
o Three types
 (1) married spouses
 (2) separated spouses who are still married at date of death
 (3) common law spouses
o Who counts as a common law spouse?
 Common law spouse status is measured at the date of death, doesn’t
matter what happens afterward [Bailey]96
 Factors [per Gosselin]
 Did they refer to themselves as husband and wife?
 Did they share property?
 Joint finances/accounts?
 Did they go on vacation together?
 Subjective factors
o Did they intend to live as a married couple?
o If one were physically disabled, would the other
care for them, etc.
 More factors [Moldovitch]
 Who did the chores?
 Who cared for the children?
 What did neighbours/friends think?

 2. Children
o No definition of children. But under Law and Equity Act, legitimate and
illegitimate children are treated the same.
o Stepchildren are not children [McCrae]97
Bailey: CL spouse brought WVA claim and then married someone else. Held: it’s measured at date of
death; what you do afterward is irrelevant.
97
McCrea v. Barrett [2004, BCSC]: It was in question whether she was his CL spouse, but this part was
about whether her daughter (his ‘stepdaughter’, maybe) could take. Answer: no. stepchildren are not
children.
96
58
o A child that a person is in loco parentis to  not a child.
o A birth child who is adopted out  not a child.
 Adoption by someone else severs the ties b/w birth parent and child.
o Child of testator’s wife whose birth certificate listed testator as father, but DNA
evidence indicated he was not the father  not a child.
 3. First Nations Governments
o S. 1.1 and 3(1.1)
o No cases on this and no indication of how these provisions would be applied.
Timeline
 Claim must be brought after the will is probated, theoretically
 But, in practice, people often challenge validity and bring WVA claim, so it happens
together all the time.
o Midway through the trial the judge will declare on validity, and then parties
will decide whether to proceed with the WVA claim
 Must commence within 6 months of the grant of probate
o If you miss this window, you lose the opportunity to make a WVA claim
 May be extended if the executor fails to properly notify interested parties of the will’s
probate. [recall case discussed in class in which executor took T’s address book and
mailed out notices, but many came back undeliverable and he made no further effort.]
 Where there is a breach of trust and an unjust enrichment claim, the court once allowed
a late application, but the limitation period wasn’t actually argued in that case [Sun v.
Sun]
 Note: if there are minor children involved, executor must notify the PG&T of any
WVA application [per s. 3(1)]
Obligations Addressed By the Wills Variation Act
 S. 2: a testator must give adequate provision and support
o Balancing testamentary autonomy with the right of spouse/child to receive
appropriate maintenance from estate.
Tataryn v. Tataryn [1994, SCC]
 Facts
o T didn’t like one of his sons (John). So he left his wife a life estate in the
matrimonial home, w/ remainder of estate to his other son. Made the other son
(Edward) trustee for the wife (i.e. to decide her income from the estate), to
receive everything on the mother’s death.
o T was up front: because I don’t like my son John and I’m afraid my wife would
share the estate if she received it.
o John and the wife applied for WVA
 Procedural History:
o TJ made some minor variations but basically gave an immediate gift of $10k to
the sons.
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o CA upheld TJ decision, clarifying a couple of rules/issues.
o Wife/John appealed to SCC
 Issue at SCC: review s. 2 WVA
o What considerations should court look at on a WVA application?
 Balance conflicting claims.
 Where estate permits, meet all the claims
 If estate isn’t big enough, prioritize.
 Legal claims take precedence over moral claims
 Divorce Act obligations
 Family Relations Act obligations
 Note that legal obligations to a minor child are time-limited
(e.g. child support)
 Moral obligations  reasonable expectations of society
 Independent adult children have a more tenuous moral
claim, but if the estate permits there should be some
provision for them.
 Range: a lot of options that may be accepted as just and equitable.
o Court should consider contemporary standards
 Legal obligations – what would have been enforced if the couple had
separated the day before the T died.
 Moral obligations – no actual standard; court looks at several things.
 The key is adequate, just and equitable provision for spouses and children, balanced
with testamentary autonomy.
o It’s an objective test that came out of Walker, the seminal case before Tataryn.
o The fact that T thought he had adequately provided for a disinherited
beneficiary is not relevant if the provision doesn’t meet society’s reasonable
expectations.
Spousal Claims
 Watch out for CL spouses, because they don’t currently fall w/in Family Relations Act,
so they have no right to a division of assets. (though they have a right to maintenance)
 Can look at what a spouse would have rec’d under Estate Admin Act, but that’s not a
legal obligation to the spouse  just a consideration.
 If you want more than half of the estate, look at s. 65 FRA
 Considerations
o Length of marriage
 Brief marriage has less obligations
o How long lived separate/apart
o Date property was acquired
 often important where property was acquired during first marriage,
and isn’t going to children of 1st marr.
o Extent to which it was acquired through inheritance or gift
o Needs of spouse to become/remain economically independent
 Note: marriage of convenience doesn’t make a difference – spouse still entitled.
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Moral Obligation to Spouse
 There is no clear legal standard to judge moral duties [Tataryn]
 Society’s expectations are the yardstick
 Some say “manner in which accustomed” is the standard
Bridger v. Bridger Estate [2006, BCCA]
 Facts
o Second marriage, made wills in 1981 stating that neither would benefit from the
other’s estate. Left everything to children from first marriages.
 Trial Judge
o First looked at legal obligations  what would have happened if they separated
the day before death?
 Need wasn’t a factor – each had adequate pensions, money to invest,
and she would have had little to no entitlement to spousal support.
o Second, consider moral obligations  society’s reasonable expectations
 Society would have expected him to make provision for her in his
will, above and beyond the legal obligation.
 CA: did TJ consider the right factors?
o T had no obligation to daughters – independent adults
o No legal obligation for maintenance, but that wasn’t the only legal obligation
falling on T
o Spouse was driving force behind acquisition of real estate  he was on title,
but she was the one who pushed it.
o Wills made in 81, he didn’t die for many years after that  court considered the
length of the marriage.
o Events over the years from will drafting to death supported a heavy moral
obligation to wife that was unanticipated at the time wills made
o Also, how things would pass under her will (i.e. nothing would go to T’s
daughters) was irrelevant  what her estate would do wasn’t the question; the
question was whether she was entitled to it.
 Held: all proceeds of real estate to the spouse, then 25% to each as above.
o So, T had a legal obligation to divide the assets, and moral obligation for other
stuff.
o Note: because she was independently financially secure, her claim isn’t as
strong. (but, it doesn’t matter what you’re going to do with it, it’s just a
question of whether you’re entitled)
Saugestad v. Saugestad [2008, BCCA]
 Moral claims of T’s children from first marriage could rank ahead of the claims of the
second spouse
 Testator left entire estate to sons from first marriage, and his second wife made WVA
claim
 At trial, judge gave her a monthly income and half the condo in Blackcomb.
 But note that she got a whole bunch of other stuff on receivership anyway, so it’s not
that great a precedent for all-to-children
o Matrimonial home
61
o Another condo
o $1350 from his pension
o all vehicles, art, $ in RRSP and $20k in bank accounts
 She made no provision for him in her will either
 Legal obligation?
o She actually made about $50k more than if they’d separated the day before the
death.
o Children: no legal obligations, adult & independent
 Moral
o Children: didn’t get anything under mom’s will, but said they expected to get
under dad’s and so they didn’t challenge hers
o He had given them money for education etc., when needed
 Argued that this set a precedent that he would leave them more on his
death
o Sons didn’t start the WVA to get more – they were just defending their father’s
wishes. So, the evil stepmother was trying to get even more.
o Considered testamentary autonomy
o Spouse: she was given sufficient assets to have a comfortable lifestyle
o So, she got the full condo, not just half. Everything else the same.
Pickets v. Hall Estate [2009, BCCA]
 Held: Legal claim of a CL spouse is limited to the amount could have claimed had the
parties been separated.
 Held: moral claims of adult indep. Children shouldn’t be preferred to those of a longterm caring and dedicated spouse
 Considerations
o No legal obligation to the adult sons.
o It was a 21 year rel’ship.
o She agreed to give up her career, depriving her of the option to develop her own
estate. She didn’t have the income for her living expenses – would have had to
use own savings to supplement.
o Court considered the size of the estate  $18 million
 TJ: allowance. She appealed, seeking lump sum of ½ estate (so 9mil)
 CA:
o His moral obligation was more important than his legal obligation to her. A
proper adjustment wouldn’t risk any harm to the lesser moral obligations owed
to the sons.
 Plus, the sons were still going to get plenty.
o Not a viable option to substantially prefer the moral claims of independent adult
children to those of a long term caring and dedicated spouse
o She was entitled to manage her own affairs without being dependent on the
estate, not get an allowance
o She was also entitled to do what she wanted with the money (i.e. in her own
estate)
o She got lump sum of 9 mil, family home & everything in it, and sale price of
condo in Hawaii
62
Some Specific Spousal Claim Issues
 Adultery ≠ bar to relief
 Commencement of divorce proceedings ≠ bar  still married to testator, entitled to
apply
 Desertion may disentitle  onus shifts to spouse to show desertion was justified
o Usually where due to cruelty
 Agreement not to make claims ≠ bar.
o Prenups, separation agreements.
o SAs aren’t always fair and could be challenged, so you go back and look at
whether it counts. Also, SA made on assumption that 2 ppl need to be
supported from one amt of $, but if only 1 to support then probably a different
agreement would have come about.
o A prenup or SA doesn’t bar your claim, it’s just a consideration in whether you
succeed in the claim.
Children’s Claims
 No rule for how a court approaches competing claims among children.
 Some cases say reas expect that adult children will all share equally, unless they can
show differently
 Some cases say it’s an error to analyze testator’s rel’ship w/ particular children
 Some say it’s T’s right to prefer one child over another, and can do for a variety of
reasons
 It comes down to whether you can convince the court that it is/is not an adequate, just
and reasonable provision
 Look to legal and moral obligations.
Legal Obligations
 If minor child, legal obligation
 Claims of minor dependent child take priority over financially independent spouse
o This is less likely to happen where spouse is also parent of child and
responsible for providing for child.
 Generally, adult independent children ≠ legal obligation
o Might make alt claim under quantum meruit rather than WVA
o Go to moral claims for adult independent children
Moral Obligations
 Judgments can very quite widely.
 Usually depends on how much money is in the estate
Some Specific Considerations for Children’s Claims
 Estrangement  can go both ways
o (a) because you haven’t seen child in 20 years ≠ deserve benefit of estate
o (b) because child wasn’t able to receive benefit of T’s care/affection during
lifetime, should get larger portion of estate on death. Especially where the
estrangement is the T’s fault.
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
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o If you act for the estranged child, blame it on anyone but the child  common
argument: separated spouse who wouldn’t allow access
Disabled Child
o Can go w/ estrangement  would be unseemly to have the child be cared for
by a public charge than by the will
Result of parents abandonment ≠ disentitle
Children who are made wards of the estate ≠ disentitle
o The difficulties from being made a ward actually give them a larger entitlement
Where children estranged due to a second spouse, ≠ disentitled
Misconduct on the part of the child can disentitle
o E.g nothing to my son because he has a drug problem (often held in trust in
these situations)
o Inability to save money
o ‘Belligerence toward parents’ (punched his dad in the mouth)  disentitled
o Verbally abusive  disentitled
Living in CL rel’ship ≠ disentitle
Bearing child out of wedlock and refusing to give it up for adoption ≠ disentitle
Being ‘weak-willed and irresponsible’ ≠ disentitle
Stealing (or allegedly stealing) ≠ disentitle
o But, really, it should.
Discretion in Making Orders
 Aside from who can apply and when, WVA decisions are totally at the discretion of the
court.
 Adequate does not necessarily mean proper  amount may be adequate, but looking at
the size of the estate it may not be proper.

Factors Considered by the Court:
 Indications of moral duty:
o Disability in adult child
o Expectation on part of adult child
o Financial circumstances of the child
o Future difficulties child may have
o Size of estate
 Valid and rational reasons for disinheritance will negate moral obligation
o (Nothing negates legal obligation)
o to be V and R:
 must be based on true facts,
 must be logically connected to act of disinheritance
 Although means/maintenance ≠ the test, it’s still a consideration
 If a moral obligation to a spouse or independent child would take away from what a
dependent child needs (i.e. a legal obligation), that’s a consideration
 Will litigation take up a large percentage of the estate?
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o This is a very real issue with legal fees.
 Are claimant’s aspirations reasonable?
Standard of Living
 “Std of living to which testator has allowed  to become accustomed.”
 One case: std to which she ought to have become accustomed, if testator hadn’t been
parsimonious.
Disabled Applicants?
 Woods v. Davie:
o Mother set out in will why giving less to disabled child
 Didn’t need as much b/c had support; also had never taken an interest
in the family
o Court varied the will – although rational consideration, child still had need.
 What if no need apparent? Is there still a moral obligation?
o One issue: to keep people from relying on the state support? But you’ve got to
keep your clients informed about their options
Circumstances of the Claimant
 Financial need will put you higher into the moral claim category.
 What is adequate, just and equitable: considered based on assets and income
 In Walker, the court even looked at the child’s spouse’s income, to determine if they
had need.
 Example: in a case last year, parent gave larger portion of estate to biological child than
to adopted child.
o Court equalized, citing greater financial and health needs of adopted child (but
note that they only equalized the payments, didn’t give more to the adopted
child.)
 Future financial worth
 Age and state of health
 Claimant’s dependents
 Whether surviving spouse has children (not related to testator) and whether those
children will need a cut of the estate.
o E.g. if spouse is only provided w/ enough for her lifetime, then her kids from
prior marriage won’t get anything.
 Who’s doing the supporting
o if one person is supporting a family, etc.
 If claimant could expect income from elsewhere (like if a child expected to get
inheritance from spouse’s parents)
Gifts to Children Outside the Will
 E.g. if you gave half your estate to one child before death, then left the other half to the
other child in the will, courts will consider that.
 Where child has been supported by T for their entire life, there may be a moral
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expectation of continued support for the remainder of their days
Contributions to the Estate Made by the Applicants
 Where applicant contributed to the estate, there is a much greater likelihood that the
court will provide a share of the estate
McBride








Couple, 3 children, he died in 1981
One daughter, Margot, had never left home, was a sad old spinster.
M was in the house.
Mom left residue of estate to all three children. None of the children knew what was in
the will. Mom died, Margot spent a few months before showing the will to the sisters.
Sisters wanted to know when M was leaving the house, she decided not to, so they
brought WVA application
Analysis
o Lived there long term, helped out  strengthened moral obligation of mother
o Expectation to rec’ the benefit? Some factors strengthened this.
 Though, she did start out saying she didn’t know what was in the
will.
Problem: sibs might ≠ get anything, if they died before Margot.
Held: she got a larger share that sibs, but didn’t receive a life interest in the home.
o Son rec’d less than the other daughter  he needed less support, and he was in
less contact with the mother.
Wilcox
 Opposite of McBride
 Wife divided equally between the children, but one had lived there all her life and
supported mother, so the court gave her more on the WVA application.
 Rivers’ case (she lost)
Change in circumstances
 Courts have considered such future circumstances as inflation increasing need,
possibility of death, possibility of loss of income
o Note: get expert reports to back you up on these things
 Re Berger: “the court needs to proceed in the common knowledge that ladies such as
[pty] often live to a great age and ...may live into her 90s]
o Life expectancy almost always gets brought into these cases
 Last year: court refused to consider where in between T’s death and trial, one of the
daughters making the claim married a wealthy man and her financial situation
increased substantially
o Court found that b/c marriage plan was known to testator, that wasn’t a
substantial change and they ignored it.
Competing claimants
 Case: Some to adult indep kids and some to charity (church)
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o Favours children
o In that case, 50% to church and 50% shared among children
 Leaving amts to nieces & nephews
o Re Berger (again): T left sig amt to nephew, but as far as WVA was concerned
the nephew was a stranger.
o Graham v. Chalmers: T divided estate equally b/w 2 kids and 2 grandkids (so,
¼ to each)
 Daughters sought more because their moral obligation came first
 Ds got 40% each and GKs got 10% each.
 Case.
o Where gson had better rel’hsip to gmother than mother did, found a gift to him
to be fair.
o No other claimants than him and his mother
Testamentary intentions
If T actually sets out why they are doing things, court may take more note
of/give more weight to that.
E.g. second wife; listed all assets she came into marriage with, all assets
he left her with, and therefore, leaving nothing to her.
Unfortunately, by the time they went to court, she actually had
nothing left. So they settled and set it up as a trust (?)
Where you can show it’s both valid and rational, court will put more
weight on that gift/lack thereof
Effects of taxes
Waldron v. Blumes
 4 children from prior will.
 Two youngest children from second marriage were 15 and 17 at ToD. If everything
were to go to 2nd wife, there would be huge CGs and size of estate would shrink
drastically, leaving net value at $1.2 million
 Second wife was content, but all 6 children applied to vary the will.
o Likely, 4 older children applied to vary, and PGT made counter-app once that
happened.
 Oldest daughter: moral obligation - didn’t receive anything from mom’s will since it
went to dad on her death
 Second daughter: health problems
 Both the sons had bowed out by trial and left it to court
 Second wife: autonomy, do what he wants w/ his estate
 Minor children: argued they were dependent, only pties w/ legal claim as well as moral
claim (as well as spouse)
 Moral oblig’s to wife & all 6 children
 Looked at McBride considerations
 In the end, 75k to each daughter; then, minor sons req’d that remainder be adjourned so
they could come to an agreement w/ their mom.
o By the time it got through court, the minor children were adults.
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o They probably did come to an agreement, since there’s no cont’d judgment
Contrary to Public Policy?
 Remember, had to take out clauses allowing executor to spend the entire estate
defending against WVA applications. Contrary to public policy, and therefore void.
 Ketchum (?); about a year ago.
o If my children challenge my will, they will receive nothing, and the entirety of
my estate go to [a charity, she thinks].
 Cultural traditions
o Tradition of leaving everything to sons ≠ daughters  not legitimate
o Tradition of leaving nothing to homosexual child ≠ legitimate.
 Keep in mind:
o If you divide in diff amts between children, e.g. oldest 50%, second 30%, 3rd
20%, court may adjust to bring closer but will likely keep the oldest w/ the
most.
 Minor children almost always succeed, spouses almost always succeed
What’s most important?
 Need used to be most important, but now things like contributions will be more
important, and also inter vivos gifting
 Once you create an ongoing dependency, more likely to expect continuation, whereas
an inter vivos lump sum gift is more likely to be seen as an advance.
The Court Can Consider Whatever Evidence it Thinks Proper
 Conduct and character of applicant are fair game
o Whether as indication that they deserve more or that they don’t deserve as
much
 Family issues WILL get drawn out.
Property Available under a WVA Application
 It has to pass under the will to be subject to a WVA order. Nothing outside the will can
be covered by this.
 Courts look at everything, but can’t make orders about things outside the will.
o E.g. if child gets $500k life insurance policy outside of will, then claims for a
$500k deficiency in the will gifts, unlikely to get it.
 When you are giving info to the court concerning assets, you must give the address of
the branch where the funds are held, and that’s how probate fees are calculated. So,
there’s an argument that assets held in AB wouldn’t be subject to WVA app in BC 
but she’s never seen that.
o Certainly assets held offshore are an issue.
Assets in a trust during lifetime of testator
Mordo v. Nitting
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 To daughter, nothing to son. Son said she did this to avoid a WVA claim, and that the
assets in the trust should be available to him in his WVA claim.
 Court acknowledged that trust was set up in part to avoid WVA. These are estateplanning tools and legitimate ways to get around WVA
 Also looked at Fraud Convey Act, but creditor doesn’t include spouse or child if no $
owing under legal claim
 Daughter got everything under the trust, which was really the entire estate.
Insurance policies go directly to beneficiary
 Don’t let clients leave these things to their estate  it’s the major asset, and they’ve (1)
let it into WVA scheme, and (2) opened it up to probate fees.
 RRSPs, pensions, etc., all go outside the will. Not that they aren’t considered, but don’t
include them in the will.
Contractual Restraints
 Prenup, Marriage Agreement, Separation Agreement
 Say that they agree not to make any claim under WVA
o If someone else brings a claim on their behalf, they’re free and clear
o And if someone else brings a claim, court looks at everyone who could benefit
 However, court does weigh separation agreements and prenups heavily when
considering legal claims of surviving spouse
 Goes to q of whether agreement is substantially fair when application is made.
Harvey
 Mom & two sons (F & R) were only SHs in company. F & R were directors.
 Articles said shares could be transf’d from 1 member to another, but no shares shall be
transferred to a person who is not a member of the company, so long as any SH is
willing to purchase them.
 Mom leaves her shares to R’s son Eric.
 F & R are executors. R’s son is beneficiary of the shares, but F wants to buy them.
 So, the question is: did the article stop mom from transferring shares to E, or could he
take them despite?
 The court split hairs on the wording  articles didn’t prohibit giving him the shares, it
just prohibited registration of shares to E. Therefore, F & R were to transfer shares into
their names as execs, then as directors they could provide for the transfers
o Transferred into R’s name, in trust for Eric.
 So, they basically found a way around it.
Fry Estate




Siblings SHs of co; T’s will transf’d shares to his sister Cheryl. Jack challenged.
SH agreement said ≠ shares transf’d w/o sanction of board.
Basically dad set it up and didn’t want anyone transferring out etc.
Held: T was bound by SH agreement – no right to transf to sister. That portion of will
was severed (found null/void), and the estate was bound by SH agreement.
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 Wording: no SH could transfer any shares in any form, other than w/ consent of maj of
SHs
o Included transfer by way of will
 So, unless they figured it out, execs would hold the shares forever, and the estate would
be a SH
 Because SHs hold subject to cond’ns  bound by SH Agreement (assuming signed)
and articles of the co.
Intestacy
General Rules
 When there’s no will, the beneficiaries are still contingent beneficiaries.
 The Estate Administration Act explains what to do if a will doesn’t deal with property.
o E.g. if no will written, if will invalid, if gift lapsed, if part of estate not dealt
with in will
 Intestacy considers the net amount of the estate  everything that isn’t already dealt
with. And nothing else.
o Debts are paid out first – not considered when handing out assets on intestacy.
o EAA s. 94: all of the estate that wasn’t disposed of in the will must be
distributed as if T died intestate and left nothing else.
 S. 95: abolishes CL practices of dower and curtesy
 Definition of “estate”:
o Changed in 1921, so possibly you might need to distinguish.
 Before 1921 “Estate” ≠ include real property. As of 1921 it does.
 s. 81: real and personal property
 Recipients are determined as of the date of death.
Definitions of Recipients
Who Can Take
 Must be either spouse or related by blood [Re Forgey]98
 If all of issue/spouse predecease, go to
o Lineal Ascendents (going up)
o Collaterals (out to the side)
o (not necessarily in this order)
 S. 86 EAA: five rules  this s. applies if no issue and no spouse.
o S. 86 (1) and (2)  if parents alive, they take equally. If one, they take all.
o S. 87(1) and (2) if both parents are deceased, siblings share equally with
representation (i.e. their children take - doesn’t go to nieces/nephews’ children
though)
Re Forgie [1948, MBKB]: Predeceasing brother had four children and a widow. Issue: could brother’s
widow receive anything on intestacy? Widow and children lived in Scotland. Execs brought app to see if
they were allowed to send it to the widow. Held: no blood relation, can’t take.
98
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o S. 88: If no siblings, then goes to nieces and nephews directly (per capita).
Doesn’t go to children of nephews/nieces
o 89: next of kin of equal degree take per capita.
 See Consanguinity Table
 Half blood take equally to whole blood
 Escheat Act  Land
o Land is returned as though it is Crown land
o Can also claim land that has escheated to the crown if you have a legal or moral
claim
 Unclaimed Property Act  Personalty
o Personalty is dealt w/ as if abandoned
o Database of unclaimed property
o After 5 yrs, $ goes into an unclaimed $ deposit, and continues for further 6
years if under a certain amount, or 10 years if over.
Spouse
 S. 82 – Look at when person died to determine what the spouse receives.
 Per s. 1 of Estate Admin Act: includes CL spouse.
o Until 2000, CL spouse could only apply for support/maintenance, not a portion
of the assets (s. 76)
o In 2000, they added CL to the definition of spouse in s. 1, and added definition
of a CL spouse
o There is a case that says these amendments are not retroactive. So if your CL
spouse died before 2000, still can’t make any claim under the Act.
 CL spouse:
o (a) a person who is united to another person by marriage that, although not
legal, is a marriage at common law, OR, (b) [lived together for 2 years]
 Some marriages don’t conform to the Marriage Act, but are still valid
 Inuit marriages, sometimes ceremony doesn’t conform
 Post-war some unregistered marriages
o (b) have to have lived/cohabited [probably an intimate, sexual relationship], has
to be a marriage-like relationship.
 Lack of legal capacity to marry is not a bar to finding a CL relationship.
 Financial dependence is not a necessary prerequisite to being CL spouse, but is a factor
to be considered [2007 case]
 S. 85.1: it is possible for a person to have more than 1 spouse under the definitions of
the EAA.
o See e.g. Kirkwood99
o Where more than 1 qualified spouse, the court can determine what share they
receive.
 98(1) Separation
o A presumption of intention to live sep and apart arises if they were living apart
for a period of one year, but this can be rebutted by them showing that they
99
Kirkwood [2008, BC]: Claimant never actually lived w/ T, and court found that this was in most
instances fatal to claim of being CL spouse.
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didn’t intend it to be a separation.
o Can apply to court to determine whether separated or not [see e.g. Re Mercer
Estate]100
Gosbjorn v. Hadley [2008, BCSC]
 12 year CL relationship, and then ‘wife’ and minor daughter moved out about a week
before he died.
 She took furniture and moved it into a basement suite.
 She said, though, that it was a temporary separation but a step toward reconciliation.
 Court said that was informed by hindsight, and thus subject to some skepticism
 Found no settled intention on her part to separate. Brought witnesses on his intentions,
but it was a long term rel’ship and a very short separation
 Definition of CL spouse – does ‘if separated for not less than one year’ apply to CL?
o One party argued s. 98 could never apply to CL relationships, b/c any
separation meant it was over.
 Court found the two provisions ≠ in conflict
o Parties in CL rel’ship cease to live/cohabit etc when either party intends it to be
over and has settled state of mind as to the determination. In that situation, s. 98
applies.
How do you Determine Settled Intention to Live Separate and Apart?
 Gosselin: what did you do to show you were a spouse?  para 134, many factors
listed.
 Note: adultery is no longer a reason to be disentitled to a share under intestacy
(removed in 2000)
 S. 98: four things to look at
o Separation must have taken place before death
o Must be for at least 1 year
o Must be an intention to live separate and apart
o Can’t be living together w/ intention to resume cohabitation
 So, if you’re married, get something. If divorced, nothing. Separation is the tricky one,
and 98(1) says whether you get or don’t.
Children
 PGT will often jump in and take share of minor child; held in trust, minor receives on
proof of 19th birthday.
 S. 75
o (1) if
 (a) a minor is entitled to a share of the assets of an estate consisting
of money, and
 (b) there is no trustee for the minor’s interest in the estate,
Re Mercer Estate: Court found ≠ separated for purpose of 98(1), but went on to make an order under
98(2). Costs to be paid out of the estate, thereby reducing her share of the estate. Problem w/ s. 98 doesn’t
usually come up w/ married spouses – usually to determine who’s a separated CL spouse.
100
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on distribution of the assets, the executor…must pay the minor’s share to
the PG&T in trust for the minor.
o (2) subs (1) doesn’t apply if the will says otherwise.
Half-children are treated the same as full children. [Re Kishen Singh (1957, BCSC);
EAA s. 90(2)]
Estate Administration Act S. 91: if child conceived at date of death but born later,
treated as though they had survived the deceased
EAA used to allow mother and children to claim against each other; Repealed
Illegitimate children
o At CL, no claim on either estate
o Charter of Rights Amendment Act – now illegitimate children are equal.
o S. 61 of the Law and Equity Act abolishes distinction b/w legitimate and
illegitimate children.
Adopted
o All links to biological family are severed as of date of adoption [Clayton v.
Markolefas]101
o When you do an adoption, you have to declare whether child will lose out on
natural parent’s estate. Courts have sometimes refused to let a new spouse
adopt where that would disinherit the child from a large estate of their birth
parent/the old spouse
o There is one adoption case in BC where a deceased person was allowed to
adopt a child
 Unrelated to EEA  it was because the potential adoptive father was
native, and he and the mother had 4 other kids together, plus the one
child from the mother’s first marriage, who wasn’t a member of the
native band.
 They had gone through all of the steps, but he died before the order
came due.
 Went back to court and sought the order so the kid would be incl in
the extended family, so they were all equal.
 So, we’re not sure how this will fall out in an estates sense if a
potential adoptive parent dies while proceedings are in process
 But per Clayton, Rivers thinks probably not?
o If child is referred to as “my child” in the will, wouldn’t fall into the class gift
Stepchildren
o If ≠ adopted by deceased, ≠ inherit on intestacy.
Hotchpot/Advancement
o EAA s. 92(1)  if a person dies wholly intestate, any advances to children will
be offset in the estate
o (2) if the advancement is equal to or greater than gift on intestacy, child is
disentitled.
o (3) if advancement isn’t equal to gift, then entitled to difference.
o Have to show that it wasn’t a loan or gift (onus on person asserting)
101
Clayton v. Markolefas [2002, BCCA]: Appellant was adopted out. Her natural father died intestate, and
she wanted a share of his estate in accordance w/ intestacy rules
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Distribution of Estate
 If no issue, only spouse: spouse takes all [s. 83]
Shares (in order of distribution)
1. Preferential Share
 S. 85(3): Spouse takes $65k off the top
o If the net value of the estate is under that, then the spouse takes all.
2. Distributive Share
 85(5)
o (a) if one child and spouse, then half to each
o (b) if more than one child, 2/3 split among children, 1/3 to spouse
 (6) “if a child has died leaving issue”, they take the child’s share.
o Definition of “issue”: must be a child or grandchild (of the original intestate,
that is), can’t go to next generation at this stage. [per BCCA, currently. But
changes.]
3. Other Rights
 S. 96(2)
o Spouses are entitled to life interest in main residence and household furnishings
o Case: household furnishings does not include a deceased’s gun collection 
didn’t have a predominant connection to the use of the house.
Calculation of Advancement
 Calculate entitlement first, and then distribution
 So, take out where advancement disentitles, then recalculate to distribute among those
remaining.
 This means, e.g, that where there are two children but one becomes disentitled, the
distribution shifts to 50-50 spouse/remaining child.
 S. 84: If no spouse and leave children, all children take equally.
 S. 86: If you have no spouse AND no children, then father & mother take equally or
the survivor parent takes all.
 S. 87: if you have no spouse, no children/grandchildren and no father or mother, then
your siblings take equally.
o If siblings died, their children take their share.
 S. 88: no spouse, no kids/grandkids, no siblings, then to nieces and nephews equally.
o Really equally. E.g.
 Intestate, siblings,, 4 of 5 dead, all have kids
 1/5 to surviving, then each 1/5 divided b/w surviving children, per
stirpes style.
 S. 89: if none of those, go to your table of consanguinity! Next of kin takes.
Inter Vivos Gifts
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 There should be nothing to give away in the will if you’ve done it right
o Rationale:
 Taxes
 Probate fees (1.4% of the estate)
 These are only paid on assets that pass under the will in
BC. If the asset is not in BC, you don’t pay probate fees
 Creditors
 If it goes through the estate, then insurance can be taken by
creditors
 Wills Variation Act
 Makes it so that this does not apply. The WVA only applies
to assets that pass under the will
 Absolute certainty
 May be that the diamond ring doesn’t actually goes to the niece
 There are several ways to do it
Joint Tenancy
 Advantages
o Avoid probate fees
o Income tax – no capital gains if passes to spouse (does if it passes to other
persons) – deferred to the surviving joint tenant
o Estate creditors – need to show a beneficial interest in the property  if it
doesn’t, then it doesn’t go to the tenant
o Wills Variation Act
 Disadvantages
o Don’t do it with adult children – someone may contest it. You will need really
good notes to rebut the presumption
o Creditors can apply the court to divide the property into shares
o Bankruptcy of the joint tenant – will attach to this property
o Divorce – may be difficult to unwind it
o Minor Children – once it is in the name of a minor child, it can’t be brought
back out
o Adult Children – unless they consent, it can’t be brought out of their name
 Severing joint tenancy: Gillespie – mutual will severs -> turns to tenancy in common
 Bank accounts
o The bank owns the money. The bank is a debtor and the depositors are
creditors. The right of survivorship is independent of the agreement for the
joint ownership of the property.
o Have to ask: what did A intend when they put B on the account. Did they intend
it to be a gift or a trust?
 Presumption of Resulting Trust
o Pecore: arises where a transfer is made for no consideration
o The purpose is to place the onus on the transferee to demonstrate the gift was
intended (shifts the burden from the P to the D)
 Policy: where the person is deceased, the survivor is in the best place
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to give evidence
 Presumption of Advancement
o If the presumption of advancement applies, then resulting trust does not apply
o If this presumption arises, the burden is on the person challenging the gift
(the P, not the D)
o The presumption of advancement arises:
 1) between spouses
 2) parents providing for children – but not independent adult children
 3) adult independent children providing for parents
 Policy: the doctrine arises where there are obligations of support
between the parties
o Could look to affection between the parties to rebut the presumption
o Could look at the degree of dependency between the parent and the adult child
to rebut the presumption as well (i.e. if the adult child is dependent, it is
probably a gift/advancement)
 Any relevant evidence is admissible – the weight will depend on the facts
o Examples
 1) acts or statements before or after the transfer
 2) granting power of attorney to the transferee
 3) transferor continued to control the property after the transfer
 4) extent to which the transferor paid capital gains tax
Pecore
 Presumption of Resulting Trust (adult child) but rebutted:
o They were close
o He wanted to provide for her
o Agree that it was clear it was to go to her alone
o Howerver, presumption of resulting trust should have been applied despite the
daughter being poor and relying on her father for support (and it was rebutted)
o If the child is not told about being put on the account, this suggests that it
was a joint tenancy since the parent was not expecting the child to help
take care of them –Doucette BCCA 2009
 Presumption of Resulting Trust Not Rebutted – Madsen Estate v Saylor
o No clear statement he wanted to favour her
o Conduct during his lifetime does not look like he treated the account as joint
o He paid all tax
o But did sign the form knowing what survivorship meant. However, the
documents were not clear enough to be given substantial weight
o Also – judge did not trust her credibility
Inter Vivos Gifting
 Advantages:
o Creditors: claims can’t attach because you don’t own it
 Disadvantages
o Problem is that if you don’t own it, you can’t use it
o Children have it and your spouses have a claim on it.
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o Irrevocable. Once you give something to somebody, it is theirs
 Gifts Requirements (delivery, intent, acceptance)
o 1) competent
o 2) donee has to be able to receive the gift
o 3) if it is to a child, then can only revoke when they are 19
o 4) have to intend to give it as a gift and never have an interest in it again
(loaning is not gifting)
o 5) have to deliver the gift to the donee
o 6) can be symbolic delivery
 Bayoff (safety deposit box)
 While solicitor was taking instructions for the will, he gave
the key
 it was intended to be an inter vivos gift. It was not intended
to be a gift in anticipation of death, but there was an
intention to deliver, acceptance, and symbolic delivery (the
key was handed over)
 The uncompleted gift could be treated as the gift being
complete because the donee was the executor of the will –
as executor, they could sign the bank documents
o 7) will have to pay capital gains tax
o 8) if it is to a minor child, you still retain the tax implications until they are
adults
o 9) if it is a gift in anticipation of death, then you don’t need to satisfy the
delivery requirement. But, it is dependent on the death of the donor to pass the
legal title
 Inter vivos trusts
o A makes it for own benefit during lifetime, then to B
o Advantages
 Gets everything outside the will
o Usually $100,000 or more because there are costs (accounting and trustee costs)
o Fraudulent Conveyance Act – does not apply for the avoidance of tax
o If it is to defraud creditors, it will pull it out of the trust
 Difference is if the trust pays for the transfer
o Fraudulent Preferences Act
 If you owe money to six different people, and do the trust to prefer
one person, that kind of trust will be clawed back
Beneficiary Designations – Employment, RRSP, and RRIG
 Employee Benefit
o Law and Equity Act, s 46(3) - Employee benefit plans are not affected by a
will. “An employee may alter or revoke a designation made under a plan, but
only in the manner set out in the plan.” This is differnet than life insurance
and RRSPs which can be set out in the will
 RRSP
o Can be named in the will or on the actual bank document
o 49(2)If, in accordance with the terms of a registered plan, an annuitant
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designated a person to receive a benefit payable under the registered plan in the
event of the annuitant's death,
 (a) the designation is effective if it is in writing and signed by the
annuitant, or if it is contained in a will or other testamentary
instrument,
 (b) the person designated may enforce payment of the benefit, and
 (c) the benefit is not part of the estate of the annuitant,
o and section 61 (1) to (3) of the Insurance Act applies to that designation
Life Insurance Designation
 Can designate the insured, their representative, or another as beneficiary
o
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.
 Can designate a beneficiary in the will if you want. But if the will is revoked, the
designation is revoked (61(3)). If all they say that “the proceeds are paid to X”, then it
is an estate asset that is being gifted.
o 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.
o (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. [later desigantions dominate
over the will]
o (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.[if the will is
revoked (by operation of law or otherwise) the designation is revoked]
o (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. [same for instruments purporting to be
wills]
 BUT - A general revocation clause in a will does not revoke a life insurance policy
 Can make your designation irrevocable
o 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.
o (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. [need
to file a designation in a will for it to be irrevocable]
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A&S Designation
 Almost the same
o Can designate
 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).
o If the will is revoked the designation is revoked
 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. [an
invalid will does not invalidate a designation]
 (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.
[designations made after the will trump 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.
[if 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. [same
with instruments purporting to be wills]
o Can designate irrevocably
 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. [cannot designate irrevocable in a will or in a
declaration unless it is filed with the insurer]
 Difference is in s. 122: entitled to payment but if the insurance company can
challenge the insurer, they can now challenge the trustee
o 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
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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.
RRIFS
 Same as RRSPs:
o 51 (2) Subject to subsection (5), if, in accordance with the terms of a registered
plan, an annuitant designates a person to receive a benefit payable under the
registered plan in the event of the annuitant's death,
 (a) the designation is effective if it is in writing and signed by the
annuitant, or if it is contained in a will or other testamentary
instrument,
 (b) the person designated may enforce payment of the benefit, and
 (c) the benefit is not part of the estate of the annuitant,
o Section 61 (1) to (3) of the Insurance Act applies to that designation.
o (3) An annuitant may alter or revoke a designation made under a registered
plan.
 Issues:
1) Is it testamentary?
 If testamentary, and it does not comply with the Wills Act requirements, then it is
invalid – MacInnes v MacInnes [SCC 1932]
National Trust v Robertshaw
 Facts
o He had a group RRSP with the employer – he designated his wife as the
beneficiary. Then got married and divorced a few times
 Issue: Is it testamentary? If it is, then it won’t satisfy the formality requirements of the
Wills Act.
 Held: Not testamentary. Was an immediate, contingent future interest.
o TEST Cock v. Cooke (1866): if it shall not take effect until death and is
dependent on death for its vigour and effect, it is testamentary
o Here it was not testamentary – an immediate interest, although it is contingent
on a future event may be conferred inter vivos
o “vigour and effect” means that the document itself is not valid until death
o Consider:
 Does the settlor retain a life interest or the right to the income from
the property until his death?
 Does he have the right to revoke the trust or withdraw from the
scheme? (And what is the effect of revocation? Does he get the
property back for himself?)
 Does he have the right to change the beneficiaries?
 Does he control the investments that are to be made?
 Does he have the right to encroach on the capital of the fund?
o In this case:
 there was no power for the deceased to revoke the plan
 He did have the power to terminate the plan when he retired, but
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

could not do so before the age of 60
Courts have recognized that RRSPs create a valid trust relationship
between the beneficiary and the trust company
It was not going to take effect on death – it could take effect inter
vivos (therefore, not testamentary)
 If it is testamentary, a general revocation clause does not revoke a plan made
outside the will. - Re Bottcher [Though the court notes that this is unless you intend to
– this could leave the for interpreting it to intend to revoke – if the designation was
testamentary, then the whole gift would be revoked]
2) What if didn’t change beneficiary designation as intended? (constructive
trust)
Roberts v Martindale
 Separation agreement
 Wife designated the husband as the beneficiary of life insurance
 After divorce they filed a separation agreement relinquishing all rights to each other’s
assets
 Wife did not make a change to the insurance policy
 Wife had a mistaken belief that she did all she needed to do to separate it from the
spouse
 BCCA – the issue isn’t the mistake. The issue is that he had signed away all rights.
This is a K issue. Testators are frequently mistaken as to the legal effect of what they
do. He was legally entitled to recover but it would be against good conscience for him
to keep it becuase he surrendered it in the agreement (constructive trust)
3) In BC, power of attorney cannot change your beneficiary designations
because that is a testamentary act
 (PoA cannot do this under section 21 of the Power of Attorney Act) – Desharnais
 Can only do this in an instrument renewing a similar instrument made by the
adult, or the new beneficiary is the adult’s estate
o Power of Attorney Act, 20(5)
o An attorney may, in an instrument other than a will,
 (a) change a beneficiary designation made by the adult, if the court
authorizes the change, or
 (b) create a new beneficiary designation, if the designation is made in
 (i) an instrument that is renewing, replacing or converting
a similar instrument made by the adult, while capable, and
the newly designated beneficiary is the same beneficiary
that was designated in the similar instrument, or
 (ii) a new instrument that is not renewing, replacing or
converting a similar instrument made by the adult, while
capable, and the newly designated beneficiary is the adult's
estate.
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Incapacity Planning
 Wills, Insurance Declarations, etc.
Power of Attorney
Basics
 Can only deal with financial/legal issues
o No medical decisions
 You’re really just appointing an agent. Technically don’t need a PoA to do that, but the
agreement shows the relationship between donor and attorney.
 It doesn’t have to be for estate-planning  can be for the purpose of doing a specific
task, e.g.
Four Types
 1. General
o No restrictions
o Revoked on incapacity
 2. Specific or Limited
o Specifies limitations on attorney
 3. Enduring Power of Attorney
o Allows attorney document to be used even after the person becomes
incompetent
 4. Springing Power of Attorney
o Doesn’t become effective until a certain event happens.
o Usually it’s tied to incapacity, but it could be anything.
Powers and Requirements
 Unless there are limitations, an attorney can do basically anything, except make a will
(s. 21).
 S. 15: can’t do anything illegal
 Otherwise, authority is given in the power of attorney document.
o If it’s silent, they can do whatever the donor could have done, if competent.
 Investment powers:
o Trustee Act: allows attorney to invest where a prudent investor would do so.
o A prudent investor would obtain advice where the magnitude of the estate
would merit it.
o Also obligated to exercise prudence in who you ask for advice
 Land Title Office rules
o If your attorney is specified with initials, it will be rejected
o Also, it must be in black ink
 Who can be an attorney?
o A person
o Can’t be someone who provides care for compensation
 If you name all of your children, they have to act unanimously
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o Even if you allow them to act separately, per the document, then they have joint
liability because they are presumed to act in concert.
 PoA must act in best interests of donor [s. 19]
 Duty of loyalty – not to disclose details of donor’s affairs
o Keep records, but don’t disclose unless necessary
 S. 24: right to be paid for out-of-pocket expenses, but you don’t get paid to act as an
attorney unless it’s specified in the instrument
Formalities
 Can be witnessed before two people – doesn’t have to be a lawyer
o But if a witness is a lawyers, must witness as a lawyer. Otherwise can’t be used
in the land title office
 Witnesses can’t be spouse, child or parent of person mention in PoA
 Can’t be an employee, but we’ve fixed it so lawyers aren’t affected somehow, since
this caused problems.
 Since 2011, attorneys have to sign the PoA
Enduring Power of Attorney
 Effective as soon as they are signed [s. 26]
 Often include a doctor’s clause:
o “I will be considered incompetent at such time as two doctors sign saying I am
no longer able to manage my financial affairs”
Requirements
 S. 12(1) An adult may make an enduring power of attorney unless the adult is
incapable of understanding the nature and consequences of the proposed enduring
power of attorney.
 S. 12(2) An adult is incapable of understanding the nature and consequences of the
proposed enduring power of attorney if the adult cannot understand all of the
following:
o (a) the property the adult has and its approximate value;
o (b) the obligations the adult owes to his or her dependants;
o (c) that the adult's attorney will be able to do on the adult's behalf anything in
respect of the adult's financial affairs that the adult could do if capable, except
make a will, subject to the conditions and restrictions set out in the enduring
power of attorney;
o (d) that, unless the attorney manages the adult's business and property
prudently, their value may decline;
o (e) that the attorney might misuse the attorney's authority;
o (f) that the adult may, if capable, revoke the enduring power of attorney;
o (g) any other prescribed matter.
Springing Power of Attorney
 Becomes effective on the later of two dates specified
o You can’t make it the earlier of two options, so find a way to word it
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accordingly.
 Springing can be sketchy, because they may need someone to take over before they are
willing to admit it, and if they are losing capacity over time there may not be a second
doctor who will make the incapacity call on first meeting, whereas a GP who’s seen
them over 20 years may know earlier.
Revocation
 Automatically revoked on death
o At CL, it was revoked when donor became incompetent
 At CL, you can revoke any time, as long as you have capacity.
 Under the Act, if you want to revoke all previous PoAs, s.28 requires that you advise
the attorneys.
o Revocation isn’t effective until notice is given.
 Authority ends if:
o Revoked
o Attorney becomes incapable
o Attorney becomes bankrupt
o Attorney is convicted of fraud or an offence against donor
o Attorney dies
o Attorney is spouse and they divorce (unless PoA states otherwise)
Gifts/Loans
 S. 20(1) If not listed in the PoA, can still make gifts/loans if:
o (a) There is sufficient property to meet the donor’s needs;
o (b) Donor made those types of gifts/loans when they were competent.
o (c) Total value given in a year is the lesser of of $5000 or 10% of taxable
income for the year
 Attorney can’t take anything for himself unless it’s in the power of attorney
o So, if every year a person gives $ to children, and appoints a child as their PoA,
must specify the exact parties to get the gift, including the attorney explicitly.
o PoA must explicitly allow it, otherwise it can’t be done.
Changing Beneficiaries
 Situations where this is allowed, per s. 20(5):
 1. Where the Court Authorizes a Change in Beneficiary [Easingwood]102
 2. Creating a new beneficiary – allowed where:
o Renewing an instrument and it’s the same beneficiary; or
o The new beneficiary is the estate
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Easingwood: attorneys were children from prior marriage. Everything into alter-ego trust. On his death,
they had the trust mirror the terms of his will exactly. His second wife saw the will before the PoA and
trust; they had agreed to keep all property separate, so she wasn’t getting anything. She commenced
proceedings against both the estate and the trust after he died, alleging that the trust was invalid  because
she needed the money to be in the estate to get anything on a WVA claim. Held: general power of attorney,
includes authority to create trusts. Not in breach of duty to donor, because the trust reflected the terms of
the will and the wife knew about the will and agreed to those terms.
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Nomination of Committee
 Committeeship application is the only way to get things into place if you didn’t get
PoA or Rep agreement before went incompetent.
 You apply to the court – serve on the adult, on the PG&T, get two doctors to sign an
affidavit, and then you go before the court and hope no one challenges
 Costs $5000 to pay a firm to do a standard application for committeeship. PoA: $200.
 s. 9, Patient Property Act
o If req’mts fulfilled, nominee must be appointed committee.
o So, in general, you’re looking to stop any challenges.
 But people need to know that the appointment exists.
o You serve PG&T
 Occasionally you get someone who’d rather have committeeship, b/c a committee has
to report behaviour to PG&T every two years.
O’Hagen
 Committee appointed by the court. Son.
 Wanted to set up an estate freeze, but this wasn’t allowed w/o approval of PG&T or
further court order (common to have restrictions that you need further approval for)
 Wanted to avoid 5.7 million in taxes on father’s death.
 Other son consented.
 PG&T argued there had to be necessity to change the form of patient’s property, and he
was going to be fine.
 CA said that’s not the test – unreasonable to withhold approval on basis of necessity.
o Patient’s own interests had to be given primary concern, but estate was large
enough that there would be no difference in his life whether this was done or
not, it was just preserving his estate.
o What would a prudent businessman of advanced years do?
o Because ≠ disadvantage to the patient, court allowed it.
Re Bradley
 US tax advisor said they should be gifting funds to get the $ out of the estate prior to
donor’s death.
 Donor was comatose and had been for 12 years at time of trial. Not expected to ever
wake up.
 Second husband was committee;
 Under US tax law, spouses can get much more than children (100k per year over 10k)
 Wasn’t allowed – even though intention was to keep $800k of assets for patient during
her lifetime.
 Not necessity in traditional sense, but in this case would reas/prud person of business
make those gifts if she regained consciousness? Unlikely, but doctors couldn’t say it
wouldn’t happen. And to allow it would make her estate go down from 2.6mil to 800k
in one fell swoop. Even though sons consented, court didn’t go for it.
Advance Directive
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 Can only deal w/ personal and medical side of things
 Used to be called “living wills”
 Difference from rep agreement: this is your written instructions to the doctor right now
– doesn’t give 3rd party job of intervening b/w you and doctor
 Until age 13 (?) parent makes all decisions for child
 According to Health care facility something Act, since Sept 1 2011 ppl can make these.
o They have to contain mandatory acknowledgments, and none made before that
date do.
 Must indicate that health care provider can’t give health care which they’ve refused to
consent to in the document.
 Formalities: signed by two witnesses, competent, over age of majority
o Only one witness if it’s a lawyer
o Can’t be spouse/child/parent/employee again
 Most often used for heroic measures  to tell doctors to do everything possible to keep
you alive
Representation Agreement
 If you have both advance directive and representation agreement, then the advance
directive takes priority
 Rep has to look at adv directive and assume that’s the req’mt of the adult.
 Often ppl won’t appoint their spouse, because it’s difficult to take your spouse off life
support.
 Have an alternate set out in case you and your spouse both die in a car accident.
 S. 5 talks about naming rep
Formalities





Rep has to accept the duties, sign the agreement.
Only an adult can sign a rep agreement
The subject has to sign the agreement, or someone has to sign on their behalf.
Must be witnessed by two witnesses, or one if it’s a lawyer
Certificates
o No requirement for certificates under s. 9
o S. 7 witnesses have to sign certificates
 The agreement must be signed by each representative and alternate
o For s. 7, reps then have to complete a certificate.
Temporary Decision-maker
 It’s for emergency sorts of situations. Doctors are pretty willing to listen if you come in
with a piece of paper.
 Must be 19, must be wiling to comply w/ duties, can’t have had dispute w/ party (but
how could doctors know this?)
Section 7 Rep Agreement
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 S. 7: financial and medical. Don’t need to be fully competent.
o If you have someone who’s already out of capacity, do a s. 7. (Note: she has
never done one)
 S. 7 requires a monitor to be appointed (s. 12), but s. 9 doesn’t. She’s never had a
monitor appointed.
 S. 7: no requirement for lawyer to be involved. S. 9, in most cases (see 9(2)), you do
require a lawyer and a certificate, because you’ll be dealing w/ specific issues.
 S. 7 agreements are effective as soon as subject is incompetent
Section 9 Rep Agreement
 S. 9: just medical.
o Only effective on mental incapacity
 Enhanced rep agreement – lawyers make them all the time. S. 9.
 For some reason lawyers don’t tend to do s. 7.
 Both can provide for alternate reps  strongly recommend you have at least 1
alternate.
 Basically decisions after they can’t make them
o Health care
 S. 9 agreement allows you to make arrangements for the care and education of patient’s
minor children, anyone else supported by them. Not a guardian agreement, but does
give some authority over them.
 Per s. 16 of the act, consult only to the extent rep deems reasonable/appropriate in
circumstances to determine patient’s wishes
 Rep does have to act on patient’s known beliefs.
 Per s. 15, a s. 9 agreement becomes effective when executed
o But you can specify that it becomes effective when the person becomes
incompetent.
Monitor
 Don’t usually need one
 Responsibilities/liabilities aren’t set out in detail
o If they think rep isn’t acting appropriately, they have to report them.
o But they don’t have access to books or records or anything
o Most people just don’t have them
Revocation
 A rep agreement can always be revoked, as long as the adult is competent.
 Because the rep has signed accepting duties of rep, must notify them that they’ve been
revoked. Must give written notice to every person.
Alternates
 If you have alternates (which you should), must say when the alt takes over from the
original representative.
o E.g. “if my representative dies/goes bankrupt”
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o If it’s my spouse and we get divorced
 Can say: alt can take over at any time
o Where want spouse to be rep, but want adult child to take over if mom/dad
can’t do it anymore.
 Can appoint an equal rep instead of an alt
o E.g. I wish my daughter Mary to make all decisions about my care home and
what treatments I receive in a care home, but if I am hospitalized I want my son
John to make all decisions about my treatment in hospital.
What is minor and major health care?
 Minor: reg dental checkups, annual physicals
 Major: major surgeries, any treatment involving anaesthetic, etc
 Also, there are precluded care items  if not specifically stated, can’t do it.
o Psycho-surgery, abortions, things there’s medical controversy about.
 Under s. 7 agreement, can’t auth rep to refuse healthcare which will preserve your life.
o But you can under s. 9
Personal Care
 Includes shelter, employment, will they be allowed to attend courses, will they be
allowed visitors? Who? Can they be restrained (even if they don’t want to be)?
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