SUCCESSION
w/ Wickstrom & Low, Fall 2013
Prepared by Veronica Manski
Contents
Abatement (for debts, or not enough $$ in estate) ................................................................................................ 9
Aboriginal Estates .................................................................................................................................................. 9
Provonost v Canada (Minister of Indian Affairs) (1985, FCA) – Aboriginal will.................................................10
Administration of Estates .................................................................................................................................... 11
Capacity, Knowledge & Approval, and Undue Influence/Fraud ........................................................................... 12
Vout v Hay (1995, SCC) – rebuttable presumption regarding execution, knowledge&approval, and capacity if
will properly executed and testator read/was read will. Standard is BoP ..........................................................13
Re Henry (2009) OnSC – suspicious circs do not impose a higher std of proof on the propounder of will ........13
Robins v National Trust Co (1927, Eng) – Onus only really matters if the evidence is completely even on
either side. Otherwise, on a BOP, court just reviews & weighs evidence, then comes to a conclusion ............13
Turner v Rochon (1980, BCSC) - where a will is admitted to probate in common form, and is later attacked for
lack of capacity, the onus of proof remains on the party propounding the will. ...............................................13
Capacity – General Law ...........................................................................................................................................13
Banks v Goodfellow (1870, Eng) – test for legal capacity to make a will; capacity is a continuum ...................13
Royal Trust Co v Rampone (1974, BCSC) – can lack capacity to manage business affairs but retain capacity to
make will .............................................................................................................................................................13
Re the Estate of Bohrman, (1938, Eng) – psychopathy ≠ lacking capacity; when delusions relate to the
dispositions, then can be found to be lacking capacity (just for that disposition). ............................................14
Key & Anor v Key & Ors (2010, Eng) – “golden rule” for making will for someone with doubtful capacity:
Make arrangements for a qualified medical practitioner to do a report on capacity and make
contemporaneous record for the examination & findings. ................................................................................14
Sharp & Bryson v Adam & Adam (2006, Eng) – Court distinguished b/w intellectual vs moral understanding –
held will invalid for lack of capacity wrt moral understanding ...........................................................................14
Capacity wrt Instructions to Execution ....................................................................................................................14
Parker v Felgate (1883, Eng) – capacity at execution not as important (vs at time of giving instructions). Three
stages of sufficient capacity ................................................................................................................................14
Perrins v Holland (2010, Eng) – confirms that Parker v Felgate is still good law ...............................................14
Hall v Bennett Estate (2003, ONCA) – duty for lawyer to create will ................................................................14
Public Trustee v Gill (2001, NZ) – duty of a lawyer to make a will where capacity is doubted ..........................15
Knowledge & Approval ............................................................................................................................................15
Wintle v Nye (1959, Eng) – knowledge & approval of what the will means (not the words), the effect of the
words, and the general amount of their residue. ...............................................................................................15
Russell v Fraser (1980, BCCA) – testator must know general magnitude of estate at time will is made ...........15
Maddess v Estate of Johane Gidney (2009, BCCA) – language difficulties alone do not rebut presumption of
knowledge & approval; does not create suspicious circs ...................................................................................15
Undue Influence ......................................................................................................................................................15
Wingrove v Wingrove (1885, Eng) – Undue influence = coerced to do something they don’t want to do .......15
Craig v Lamoureaux (1920, Eng) – potential B’s can make their claim known to the will-maker and ask for
recognition – not UI. ...........................................................................................................................................15
Fraud .......................................................................................................................................................................15
Bolianatz Estate v Simon (2006, SKCA) – Fraud (has to be pretty severe, and it’s pretty rare). Question is
whether the testator would have made the gift had he known of the fraud. ....................................................16
Claims Against Estates (wills variation) ................................................................................................................ 16
Claims by Spouses ...................................................................................................................................................18
Tataryn v Tataryn (1994, SCC) – legal & moral obligs under the WVA; Court has broad discretion .................18
Bridger v Bridger Estate (2006, BCCA) – Smallish estate. Long marriage later in life. W was self-sufficient, had
received almost half the family assets outside the estate. H left majority of his assets to his daughters –
Testator totally failed to meet his moral obligations to W, which accumulated since will was drafted, 20 yrs
earlier. .................................................................................................................................................................18
Saugestad v. Saugestad (2008, BCCA) – Modest estate. Where testator has provided reasonable financial
security to his wife of 13 yrs, he can choose to benefit his young adult kids whose moral claims rank higher.
W’s wish to maintain same standard of living after H’s death as before is not a moral claim. ..........................19
Picketts v Hall estate (2009, BCCA) – Large estate. ‘Powerful moral obligation’ may warrant large capital
award to CL spouse; court can look at lots of factors, not restricted to UE or support claims. Now under FLA,
she would have strong legal claim as well. .........................................................................................................19
Claims by adult children ..........................................................................................................................................20
Waldman v Blumes (2009, BCSC) – Largish estate. Will-maker may have moral oblgs to adult independent
children ...............................................................................................................................................................20
Amongst children, and will-maker’s reasons ...........................................................................................................20
McBride v Voth (2010, BCSC) – Factors in determining will-maker’s moral duty amongst adult independent
children, where one child can live in home til she dies; home made up majority of estate ..............................20
Graham v Chalmers (2010, BCCA) – Where testator limits one child’s share b/c “she had enough extra
already”, court will look at what child had received in deciding whether she was adequately provided for.
Living with mom rent-free meant child had to help out – not a straight benefit. ..............................................20
Mawdsley v Meshen (2012, BCCA) – ability to make a claim is diminished if the testator used effective estate
planning to keep most assets out of the estate ..................................................................................................20
Contractual Restraints .............................................................................................................................................21
Harvey v Harvey (1979, BCCA) – Courts are hesitant to restrain testamentary freedom; interpreted testator’s
gift of shares in a narrow way to give effect to company articles (contractual restraints) ................................21
Construction (interpreting the will) ..................................................................................................................... 21
General Principles ....................................................................................................................................................22
Perrin v Morgan (1943, Eng) – In construing the language of a will, focus on meaning of particular words used
in the will in the particular circs. “monies” .........................................................................................................22
Haidl v Sacher (1980, Sask CA) – In construing words in will, apply ordinary meaning rule in light of contents
of whole will or surrounding circs. Did testator intend per capita or per stirpes distribution? ........................22
Laws v. Rabbitt (2006, BCSC) – Only proceed with construction if intention can’t be determined from the
plain meaning of the words. Apply armchair approach, looking at circs that could’ve influenced will-maker, to
determine intention (from Haidl) .......................................................................................................................22
Wilson v Shankoff (2007, BCSC) – application of Haidl v Sacher, ev of surrounding circs admitted and will
construed in the context of those circs ..............................................................................................................23
[p 2]
Estate of Murray (2007, BCSC) – Evidence of surrounding circs admitted to resolve ambiguity on the face of
the will, which purported but failed to dispose of all the property....................................................................23
“Mistaken” Inclusion and Omission .........................................................................................................................23
Re Davidson (1979, OnHC) – Direct ev of intention admitted to resolve ambiguity related to property (which
lot went to who). CL principle of falsa demonstration .......................................................................................23
Re McEwen Estate (1967, BCCA) – Will was missing a clause for a scenario that hadn’t been contemplated.
Missing clause ≠ error that can be fixed; court must know what the error is ....................................................23
Property ...................................................................................................................................................................23
Re Meier (2004 ABQB) – Can’t gift what you don’t own (ademption) ...............................................................23
Ireland v Retallack (2011 NSWSC) – Opposite result than in Re Meier, court held executors could effect the
gift .......................................................................................................................................................................23
People (incl. interpretation of per stirpes?) .............................................................................................................23
Amyot v Dwarris (1894 Privy Council) – meaning of “eldest” ...........................................................................24
Re Simpson (BC 1969) – Even where child not natural or adopted by testator, facts in will (“my son”) can
establish that testator intended to treat like a child on disposition of estate. ..................................................24
Lang Estate (2011 BCSC) – CL presumption that gift to “descendants” is only to lawful descendants (excludes
step-descendants unless they can show intent that they were to take) ............................................................24
Estate of Holmes (2007 BCSC) – gift to “all my nieces and nephews” operates in favour of the children of the
testator’s brothers and sisters and in favour of the children of his wife’s brothers and sisters; on the facts this
was testator’s intention ......................................................................................................................................24
Re Karkalatos [1962 SCC] – “per stirpes” was used improperly, but court had to try to interpret what testator
intended (Helen: don’t use this case) ................................................................................................................25
Re Clark Estate (1993, BCSC) – interpretation of per stirpes .............................................................................25
Dice v Dice (2012 Ont CA) – ”gift to child J and child M, per stirpes” shows testator’s intention to benefit his
children’s children ...............................................................................................................................................25
Class Gifts (anti-lapse mechanism) .........................................................................................................................25
Milthorp v Milthorp (2000) BCSC – naming beneficiaries and using ‘per stirpes’ makes it less likely to be a
class gift ..............................................................................................................................................................25
Re Hutton (1983 Ont HC) – class gift can be to children and their children .......................................................25
Class Closing Rules (Re Bleckley & Shorrock Estate - class closing rules) ................................................................26
Death (survivorship rules) & the Body ................................................................................................................. 27
Presumption of Death .............................................................................................................................................27
Survivorship and Posthumous Births .......................................................................................................................27
The Body ..................................................................................................................................................................27
Disclaiming an interest (does it accelerate remainder interests??) ...................................................................... 28
Estate of Brannan (1991, BCCA) – Disclaiming life interest in the residue – Court considers language in the
will, and surrounding circs to determine whether testator intended acceleration ...........................................28
De la Giraudias v. Louis de la Giroday Trust (1998, BCSC) – Court determined testator’s intention was for
trust not to be prematurely terminated (no disclaiming). Preservation of capital for future generations,
contemplated grandchildren. .............................................................................................................................28
Re the estate of Creighton (2006, BCSC) – Regarding disclaimer, acceleration applies unless there is a
contrary intention. ..............................................................................................................................................29
Re Grund Estate (1998, BCSC) – how to use disclaimer to solve errors .............................................................29
[p 3]
Execution of Wills (formal requirements) ............................................................................................................ 29
Part 1 – Making and Altering Wills .........................................................................................................................29
Curing Deficiencies .............................................................................................................................................30
George v. Daily (1997, Man. CA) – Wills Act allows court to dispense w/ any or all formalities as long as doc
(ie. a letter) represents will-maker’s testamentary intention. Defines Testamentary intentions ......................30
Re Nerstine Estate (2012, SKQB) – Substantial compliance: Need at least some attempt at execution of a
formal will. Need at least a signature, esp where testamentary intentions not clear (Stricter approach) ........30
The Will-Maker’s Signature or Acknowledgement ...........................................................................................30
Re Wagner (1959, Sk Surr. Ct) – will’s validity (where testator only signed at top of page) saved by fact that
testator signed envelope enclosing will ..............................................................................................................30
Re Bradshaw Estate (1980, NB Prob. Ct) - Shape etc of signature not important (and witnesses present) .....30
Re White (1948, NSSC) – Help with signature ok if testator already trying to sign ............................................30
Peden v. Abraham (1912, BCSC) – “Help” with signature not ok if testator was not able to consent/object at
the time. Has to demonstrate intention to sign. ................................................................................................30
Hsia v. Yen-Zimmerman (2012, BCSC) – It was argued that will was invalid for failing to meet due execution
formality (a witness’ signature was unproven). Highlights importance of attestation clause in the doc.
Presumption of due execution if will appears duly executed on its face. ..........................................................31
Ball v Taylor (1999, BCSC) – Witnesses don’t have to witness the will-maker signing the will as long as willmaker sufficiently indicates to them that the will/sig is theirs ...........................................................................31
Witnesses ...........................................................................................................................................................31
Re Brown (1954, Ont Surr. Ct.) – Testator must sign/acknowledge sig in front of both Ws at the same time.
Then W’s sign after this. But they don’t have to sign in each other’s presence. But see Ball v Taylor ..............31
Re Wozciechowiecz (1931, Alta App Div) – testator must actually see the Ws sign. ........................................31
Incorporation by Reference (Wickstrom doesn’t recommend this) .................................................................31
Re Jackson (1985, BCSC) – Requirements for Incorporation by reference & admissibility of parol ev ..............32
Codicils & Alterations .........................................................................................................................................32
In the Estate of Oates (1946) – presumption that alterations made on the face of the will were made after
execution (not part of original will), but can be rebutted by evidence ..............................................................32
In the Goods of Itter (1950) – if alteration invalid, does the original will stand? ...............................................32
Part 2: Witnesses as Beneficiaries ...........................................................................................................................32
Re Cumming (1963, Ont HCJ) – a sale of property for inadequate consideration can also be considered a gift,
and invalidated if purchaser or their spouse witnessed will ..............................................................................33
Re Ray’s Will Trusts (1936) – trustee receiving gift can attest. Also W can be a member of the community
which benefits from the trust. ............................................................................................................................33
Re Royce’s Will Trusts (1959) – timing of beneficial interest: at the time of the attestation, did W have a
stake. ...................................................................................................................................................................33
Gurney v Gurney (1855) – B’s gifts under will not invalidated by their witnessing codicils to will. However in
practice that’s not really the case b/c the codicil republishes the will as of the date it’s made. This case is an
odd exception that’s out there. ..........................................................................................................................33
Anderson v Anderson (1869) – B witnesses original will, but remedied by properly executed codicil ..............33
Jones v Public Trustee (1982, BCSC) – the voided gift (when it is a portion of the residue) falls to intestacy ...33
Incapacity Planning .............................................................................................................................................. 33
Enduring Powers of Attorney ..................................................................................................................................34
McMullen v Webber (2006, BCSC) - POA must be exercised with the instructions of donor unless the donor is
incapable – foolish or improvident behaviour of donor not enough for attorneys to intervene .......................35
[p 4]
Easingwood v Cockroft (2013 BCCA) – Attorneys validly created an alter ego trust that mirrored testator’s
will; not equivalent to making a will (which they’re prohibited from doing). ....................................................35
Houston v Houston (2012, BCCA) - can revoke POA by conduct, but need to have clear and unambiguous
conduct. Execution of later POA does not automatically revoke earlier POA (use express language)...............35
Representation Agreements (two types) .................................................................................................................35
Advance Directives ..................................................................................................................................................36
Patient’s Property Act..............................................................................................................................................36
O’Hagan v O’Hagan (2000, BCCA) – Committees have power to do things for the benefit of the patient and
his/her family (including tax planning related to the estate). Apply reasonable and prudent business standard.
............................................................................................................................................................................37
BC (Public Trustee) v Bradley Estate (2000, BCCA) – Applying standard of reasonably prudent business
person, it didn’t make sense for committee to gift assets out of patient’s estate .............................................37
Intestate Succession ............................................................................................................................................ 37
Key Intestacy Rules from WESA ...............................................................................................................................38
Souraya v. Kinch (2012, BCSC) – in determining whether someone is a spouse for the purposes of WESA,
starting point is the parties themselves, and then consider if objective factors support that there was a longterm marriage-like commitment b/w the two people. Holistic approach. .........................................................39
Gosbjorn v. Hadley (2008, BCSC) – Nature of a marriage-like relationship and how to determine when it has
ended – Test is whether there is a permanent mutual support commitment. ..................................................39
Re Kishen Singh (1957, BCSC) - the children of a half-sister take as though full nieces/nephews.....................40
Re Forgie (1948, Man KB) – intestacy rule saying that children of a brother/sister take if that brother/sister is
deceased means children take without the $ going through the brother/sister’s estate ..................................40
Nature of a Will ................................................................................................................................................... 40
Testamentary or Inter vivos.....................................................................................................................................41
Bird v Perpetual Executors and Trustees Assn of Australia (1946, H.C. Aus) – If document is testamentary,
must meet formal requirements. .......................................................................................................................41
Hutton v Lapka Estate (1991, BCCA) – what makes something testamentary (promissory note from son) ....41
Conditional wills ......................................................................................................................................................41
Re Heubner (1974, Man CA) – whether “In the event of my death (on this trip)…” makes will conditional .....41
Re Green Estate (2001, Nfl TD) – conditional wills (In Event Something Should Happen To Both of Us) ..........42
Two or more testamentary documents ...................................................................................................................42
Douglas-Menzies v. Umphelby (1907 PC Aus) – A person cannot claim against a will and under it. Two wills in
two different jurisdictions are effectively one will. ............................................................................................42
Rondel v. Robinson Estate, 2011 ONCA – Situation in which testator had two separate wills under Canadian
and Spanish law. Court held that new Canadian will revoked Spanish will, even though lawyer drafting it
wasn’t aware it existed and that likely wasn’t what testator intended to do. ...................................................42
Delegation of will-making power ............................................................................................................................42
Tassone v. Pearson, 2012 BCSC – A testator can effectively delegate their will-making power through a
general power of appointment to a named executor. If executor decides to give entire estate to themselves,
that’s a valid exercise of their discretion (general power of appt). ....................................................................43
Rectification (fixing a mistake/error in a will prior to probate) ............................................................................ 43
Re Morris (1971, Eng) – Court of probate & court of construction working together to fix error .....................44
[p 5]
Clarke v Brothwood (2006, Eng) – There’s a presumption in favour of interpretation that prevents leaving
estate to intestacy; here rectification of a ‘clerical error’ to meet that presumption, which was supported by
facts.....................................................................................................................................................................44
Re Verity (2012, BCSC) - at probate – can only delete words but direct ev of intention admissible .................44
Rondel v Robinson (2011, ONCA) – extrinsic ev of intention inadmissible at construction stage .....................44
Balaz v Balaz (2009, ONSC) – Example where courts have already dispensed with differentiation btwn court
of probate & court of construction. Court admitted evidence to determine knowledge & approval of testator,
to determine whether to allow rectification. .....................................................................................................44
McPeake v. Canada (AG), 2012 BCSC 132 – Rectification is an equitable remedy that can apply to various
contracts and trust docs. Party seeking rectification bears the onus – standard is BoP. ...................................44
Testator’s Signing Each Other’s Will........................................................................................................................45
Guardian Trust and Executors Co of N.Z. v. Inwood, (1946, NZ) – rectification where testator signed
another’s will by accident ...................................................................................................................................45
Re Brander Estate (1952, BCSC) – rectification where testator signed wife’s will by accident ..........................45
Re McDermid Estate (1994, Sask QB) – WESA-type rectification where testator’s signed each other’s wills by
accident (court swapped signature pages) .........................................................................................................45
Estate of Daly (2012, NZ SC) – WESA–type rectification where testators signed each other’s wills by accident
– court admitted a document testatrix intended to be her will even though unsigned. ...................................45
Republication, Lapse & Ademption ...................................................................................................................... 45
Republication...........................................................................................................................................................45
Re Hardyman (1925, Eng) – Codicil republishes will to that date, and is taken to reflect testator’s intentions
at that time, though this will be applied flexibly. ...............................................................................................45
Re Reeves (1928, Eng) – Codicil republishes lease, and thus “present lease” in will takes on current meaning
............................................................................................................................................................................46
Re Heath’s Will’s Trusts (1949, Eng) – Republication rule can’t be used to defeat a testator’s intention. If a
gift is valid at the time the will is made, then mere republication cannot invalidate it .....................................46
Re Estate of Ruth Smith: Smith v Rotstein (2010, ONSC) – codicils made while lacking capacity do not
properly republish will or invalidate original will/previous codicils ...................................................................46
Lapse (when a B has died) .......................................................................................................................................46
Lapse, generally ..................................................................................................................................................46
Re Stuart Estate (1964, BCSC) - gift goes to intestacy if residual gift to one B fails (PRE WESA) .......................46
Re Mackie (1986, Ont HC) – doctrine of lapse does not apply if the disposition was really made to satisfy a
moral obligation (ie. if debt owed to B, and B has died, money should go to his estate). .................................47
Re Wudel (1982, Alta QB) – example where ‘contrary intention’ appeared in will to oust statutory lapse
provision. “armchair principle” ...........................................................................................................................47
Re the Estate of Stella West (1999, Van Reg) – court found contrary intention in testator’s disposition of
residue among two children – created joint tenancy ousting lapse provisions..................................................47
Anti-lapse provisions ..........................................................................................................................................47
Re Davison (1979, NSTD) – Highlights need to define the class (be specific), however anti-lapse provisions
was found in the will to rebut presumption that dead B doesn’t take. ..............................................................47
Re Cousen’s Will Trusts (1937, Eng) – anti-lapse provision can fail if it directs gift to someone else who has
also died. Note WESA s. 46(1)(a) or (b) may apply and direct gift to someone else ..........................................47
Re Greenwood (1912, Eng) – strange example where court held language used by testator didn’t “avoid
application of lapse” (which isn’t allowed) but dealt with its consequences (which is allowed). ......................47
Ademption (what happens when property gifted in a will is no longer available at testator’s death) ...................48
Church v Hill (1923, SCC) – Ademption applied where testator disposes of property himself ..........................48
[p 6]
Trebett v Arlotti-Wood (2004, BCCA) – How ademption applies to specific and general gifts – unless you are
able to identify any property from the old account in the new account, gift is adeemed. ................................48
Re Clement Estate, 2007 NSSC – court gets around Church v. Hill *fire cottage/insurance case* ....................49
Re Sweeting (1988, Eng) – when real property is adeemed (ie. by completion of a sale), it becomes personal
property. .............................................................................................................................................................49
Re Dearden Estate (1987, Man QB) - a K for sale and purchase which is not enforceable, either by or against
the testator, does not effect an ademption. Conversion from real to personal property only happens when
option to buy/sell is exercised, not when it’s given. ...........................................................................................49
Re Pyle (1895, Eng) – republication can affect ademption; Ademption rule is subject to contrary intention of
testator (ie. to benefit Bs even if property converted) .......................................................................................49
Revival ................................................................................................................................................................. 50
Re McKay (1953, BCSC) – revival requires intention ..........................................................................................50
Revocation ........................................................................................................................................................... 50
Subsequent Instrument ...........................................................................................................................................50
Re Lawer (1986, Sask ct) – Court had to decide whether 2nd will (w/ standard revocation clause), actually
revoked the 1st will. Court considered intention of testator, whether both could be read together, and
surrounding circs. Principles for dealing with revocation clauses set out in McCarthy v Fawcett. ....................50
Acts of the will-maker affecting the will (ie. destroying will, losing will) ................................................................51
Re Norris (1946, BCSC) – destruction of the will might not be enough to revoke – still need intention
(consistent with s. 55(1)(c) WESA) ......................................................................................................................51
Re Adams (1992, Eng) - effective revocation by blacking out signatures on the will........................................51
Sugden v Lord St Leonards (1876, Eng) – presumption of revocation for a lost will is rebuttable. On the facts,
testator had a will, and would not have died intestate; daughter knew contents. ............................................51
Lefebvre v Major (1930, SCC) – Presumption of revocation for lost will rebuttable. On the facts, testator took
great care with will – possible burned up with body. Gifts told to friends prior to death. ................................51
Marriage/divorce ....................................................................................................................................................51
Dependant relative revocation (aka conditional revocation) ..................................................................................51
Re Jones Decd (1976, Eng) – Whether revocation by destroying will was conditional on new will being
drafted; decided on the facts re intention of testator ........................................................................................52
Re Sorenson (1981, BCSC) – If a person revokes gift based on mistake of fact/law, court can decide revocation
was conditional as contrary to testator’s true intention. ...................................................................................52
Joint and Mutual Wills .............................................................................................................................................52
University of Manitoba v Sanderson Estate (1998, BCCA) – Mutual will agreement found between couple.
Not necessary to receive property under the will for court to enforce terms of the K. Constructive trust arises.
............................................................................................................................................................................53
Public Guardian and Trustee ................................................................................................................................ 53
Cameron v Cameron (BCSC) – where the parents of a minor child are still married, and one dies, leaving
estate to the other spouse, then a variation claim for provision for the child is unnecessary. ..........................55
Solicitor’s Responsibilities ................................................................................................................................... 55
Re Worrell (1969, ON Ct) – what not to do when creating a will as a lawyer ..................................................55
Whittingram v Crease & Co. (1978, BCSC) – solicitors owe a duty of care to intended B’s and may be liable in
neg to them via Hedley Byrne. ............................................................................................................................56
[p 7]
Wilhelm v Hickson (2000, SKCA) – Solicitors should be liable to intended B’s in circs where neither the
testator nor his estate would otherwise have a remedy against the solicitor ...................................................56
Hall v Bennett (see Capacity section) – things that have led to criticism by the court......................................56
Transfers Outside of a Will ................................................................................................................................... 56
Joint Tenancies ........................................................................................................................................................57
Pecore v Pecore – (2007, SCC) – joint tenancies can be used to effect transfer, but presumption of resulting
trust may apply if not a spouse or minor child. Can rebut this with evidence of intention. ..............................57
Madsen Estate v Saylor (2007, SCC) – application of Pecore v Pecore – adding child on acct for convenience is
not a gift ..............................................................................................................................................................57
Trusts .......................................................................................................................................................................58
Mordo v Nitting (2006, BCSC) – Alter ego trusts (tax benefits, can be used to disinherit ppl) ........................58
Plan designations (Insurance and Benefit Plans).....................................................................................................58
National Trust v Robertshaw (1986, BCSC) – RSP designation may be viewed as an inter vivos transfer of a
contingent interest (not testamentary, not revoked by future wills) .................................................................59
Roberts v Martindale (1998, BCCA) - No automatic revocation of ins designation on divorce ........................59
[p 8]
Abatement (for debts, or not enough $$ in estate)
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When there’s not enough money in the estate to do what the will says
o This shouldn't happen with proper drafting - ie should be using "residue"
Order of abatement sets out which Bs have to take the hit when there isn't enough to go around
S. 50 of WESA
(1) subject to a contrary intention appearing in the will
(2) If a will-maker's estate is not sufficient to satisfy all debts and gifts, the debts and gifts must be satisfied or
reduced in accordance with this section.
(3) Land charged by the will-maker with payment of debts or pecuniary gifts, or both, is primarily liable for the
debts and gifts, despite a failure of the will-maker to expressly exonerate the personal property.
(4) Land and real property must be reduced together
(5) subject to (3), assets are reduced in the following order:
1. Property charged with a debt or left in trust to pay a debt

That property will first be reduced to pay the debt(s)

eg. “my life insurance paid to the executor to pay all my debts, the remainder to X”  X gets
nothing if there isn't enough money to go around
2. Property distributed on intestacy and residue

Be careful when clients are naming x amounts to charities, people, and then the rest with
children. Residue abates before specific gifts so children will lose out
3. General, demonstrative and pecuniary gifts (whether real property or not)

Eg. 25k to Darrell (general)

Eg. 25k to Darrell from my BMO acct (demonstrative - specifically related to a source)

Eg. 100 shares in Disney Inc to Darrell (general)
4. Specific legacies/gifts - sometimes using "my" indicates specific

Eg. My car to Darrell (specific)

The funds in my BMO acct #1234 (specific pecuniary legacy)

My house located at … (specific devise)

10k to each of my children to be paid for from the sale of my car but if proceeds not sufficient,
each child's share is equally reduced (specific legacy)
5. Property over which the will-maker had a general power of appointment.
The more specific the gift you give, the law infers that you had a heightened intention, so it should abate last
Aboriginal Estates
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Aboriginal estates are different than most succession cases.
It is a different regime, and it used to come up rarely b/c most aboriginal people died with very few assets. Now,
more and more assets.
The Indian Act Regime:
o Government sets out who is status Indian under the Indian Act
o There is property in various reserves (Indian Act Deals With Property On Reserves), which belongs to
BANDS, not INDIVIDUALS → the right to live on a place is called certificate of possession
o The legal regime for the estate field for aboriginal estates is made up of 8 sections in the Indian Act (s. 4250), plus 15 sections in one regulation → this replaces the entire provincial legislative regime

This arises partly out of patriarchal, paternalistic concerns

Also arose because of the communal nature of aboriginal property
1970’s case came down (Kinard v queen?) that said aboriginal people should be able to pass estate privately through
will
So now there are two regimes: provincial regime v. Indian Act regime
Have to ask – does Indian act apply in a particular case? Test is:
1. Is it a matter and cause testamentary?

Does it have to do with distribution of property upon death?

Did the obligation arise through testamentary intention? An obligation which arose through an
agreement which arose prior to death is not testamentary. Contract concerning what person is
likely to receive is not ‘matter and cause testamentary’ which deals with validity of the will or that
aspect of testamentary causes.
2. Is that particular Indian ordinarily resident upon the reserve?
[p 9]
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Courts have tried to interpret this to give this as much leeway as possible. They say it is a matter
of intent, rather than a question of whether the person actually resided on a reserve

If person is a status Indian and ordinarily resident on the reserve, then the act applies.

If you determine that Indian Act applies, why would you want to fall under that system?
o It’s way faster to go through Minister of Indian Affairs for approval.
o Minister has much more expertise with Aboriginal land.
o No probate fees
o Downside? No pre-trial remedies or ability to get information (examination for discovery, banking or
medical records); whether provincial legislation would apply (may not be able to use case law relating to
legislation)

Is there an ability to get provincial laws into application? Does provincial law apply?
o 91(24) exclusive jurisdiction of the Federal Government to legislate in the area of aboriginals
o Indian Act s.88 says were there are laws of general applicability in a province, they will apply unless there is
an inconsistency with the Federal Indian Act  so all of the WESA legislation should apply unless
contrary/inconsistent with Indian Act

Indian Act says valid aboriginal will if it’s in writing, which is inconsistent with Wills Act

New curing provisions in WESA may help with these problems though
o Is Indian Act meant to be a complete code? If it is then there’s no room for provincial legislation to apply.

1960’s BC case said there’s still room for provincial legislation, not a complete code

1970s MB case – Indian Act and provisions dealing with wills is a complete code. Went to SCC but
they didn’t deal with that point.
o Assume it’s not a complete code.
Some key issues:

Wills Variation claims – allows spouse or child to bring action making claim against estate if court determines they
were not adequately provided for. Court has broad remedial powers. Under Indian Act – very different – s. 46(1)(c)
says the Minister has very limited power to change a will. All Minister can do to change a will is void a part of a will –
gift goes into residue.

Proof in Solemn Form – has it actually been met?
o Is it in writing and compliance with Wills Act/WESA? If in BC it would be tossed out, would have to go with
the Indian Act.

Intestacy – what happens?
o Similar provisions but not the same.
o Different $ value provisions for spouse and children
o There are provisions that talk about nieces and nephews – under provincial legislation they can take but
under Indian Act it may not descend to nieces and nephews.

Real Property – in the context of Indian estates
o Most land caught up in the Reserve, individuals can’t own in fee simple. Completely different. Have to get
permission from Minister to pass rights.
o If you die, can’t leave to non-registered Band member.
o First Nation’s Land Management Act – allows for individual bands to set up ability to give property to
individuals. Need to consider whether a person belongs to one of these bands.

References to the Court – Minister has the ability to do this
o If you have a contested estate – is the will valid or not?
o Minister can, under provisions of the Indian Act, refer a matter to a provincial court for determination.
Question is, are they applying the Indian act, laws of the province or common law?
o In 1999 BCSC decision, laws of general application (common law) apply even on a referral. Judge left open
whether or not a law such as WVA would apply – she said in principle she didn’t see why not but it wasn’t
important for deciding that case. English CL would apply, informed by general body of common law.
Provonost v Canada (Minister of Indian Affairs) (1985, FCA) – Aboriginal will
F: Testator, an aboriginal man, legally possessed lot 371 of the Caughnawaga Reserve. In his will, left property to 2 daughters in
equal shares, but wife has right of occupancy while she lives. Minister finds the bequest to daughters void because it is contrary
to the interest of the Band and contrary to the Indian Act (essentially giving the wife the entire interest in the property).
R: Minister’s finding overturned. Some notes:

The right that an aboriginal person may hold over land located on a reserve is difficult to define. It is a right of
“possession” and may be transferred inter vivos or mortis causa (but any tsf must be approved by the Minister first).
It is not a life estate (as the Minister suggested here).

The Minister’s role in “legitimizing” possession is administrative and not quasi-judicial. “..the power conferred on the
Minister to agree or refuse to “legitimize possession” or “confirm a transfer” is of a very different order from his
power to reject or approve as a will a written document signed by an Indian (section 45) or his power to invalidate for
certain specific causes a testamentary disposition included in the will of an Indian (section 46). “
[p 10]
Administration of Estates
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
What happens to assets immediately upon death?
o Always have to ask – did deceased have a will?
o Yes – The executor named in the will takes legal title at time of death
o No will – estate passes by intestate succession; assets vest in the court until an administrator is appointed.
Administrator takes ownership on date of court appointment

Gap between death & court appt date

WESA states that when the court appoints the administrator, the administrator has been afforded
ownership retroactively after death, but relieved of liability for the intervening time
o Both executor or administrator are "personal representatives" of the deceased

Stands in place of the deceased person

Legal title vests in the personal representative

Both have to get a grant from the court to approve their status
Is a will/testamentary intention always respected by the courts?
o No, not always. Will can be varied where testator did not make adequate provision for spouse or children.
o No – the will may be formally or substantively invalid (see below)
Intestacy – WESA designates that estate goes to next of kin. See ‘Intestacy’ section.
o What are the rights of beneficiaries/intestate heirs?

B's entitlement arises after assets are collected and realized - debts are paid, estate assets & cash
proceeds are ready for distribution
How does a personal representative prove his/her authority?
o Grant of probate (will/executor) VS Grant of letters of administration (intestacy/administrator)
o Seek actual "grant" by applying to BCSC to prove existence or absence of will
o Grant is something that third parties will recognize
o Grant process:

Submit the original will and proof that it is the last known will

Provides inventory of assets & values

Notice of the will & probate must be given to Bs and potential claimants against estate (allows an
opportunity for claimants to challenge the will)

OR: notice to intestate heirs & consent of heirs and creditors to appointment of applicant seeking
grant; posting of bond by applicant (ensuring that the administrator won't run off with the assets)

Payment of probate fees to the govt (1.4% of gross value)
Who can apply for a grant of administration?
o Heir (next of kin) who has an interest in the estate
o If an executor cannot or refuses to act, then a B or a creditor who has an interest in the state may apply (a
grant of administration with will annexed)
o If an executor has acted but resigns, dies, or is incapable of completing, then a B may apply (a grant of
administration de bonis non - from here on)
o If there is a will in dispute, & there is ongoing litigation as to who is the proper personal rep - then an indep
3rd party or a B under one of the competing wills may apply (grant of administration pendente lite - during
litigation)
An executor quite often is also a trustee - executor executes the will, trustee holds the funds for the benefit of the
beneficiaries
2 types of grant (re wills):
o Common form grant - when there's no dispute over the validity of the will - administrative issuance of
probate upon submission of the will & related docs
o Solemn form grant - court confirmation after a review of evidence that the will is formally & substantively
valid
o A common form grant can be set aside with a solemn form grant of probate
Why might a will not be valid?
o Not the final last instrument
o Not validly executed/witnessed (need to comply with formal validity provisions under WESA)
o Not executed with testamentary capacity, knowledge, & approval or free will (substantive validity) - this
would require litigation and a court order finding
o NOTE: Under WESA, court has power to cure problems in a will
Basic Role of executor/administrator
o Gather assets & prepare inventory
o Pay debts & taxes
o Distribute to proper Bs

ITA/CRA - need tax clearance before distribution
[p 11]
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


WESA variation - 180 days after wills variation limitation period expires
o Maintain accts, get approval of accts & discharge
Some contentious issues in administration of estate:
o Proof of will in solemn form
o Interpretation proceedings (sometimes wills are not totally clear)
o Wills variation claims - spouses and children can claim - ie court can vary the testator's wishes
o Disputed acct passing/discharge
Remuneration for personal representative
o Will-maker can determine remuneration in advance in the will
o s. 88 of Trustee Act otherwise applies (capital fee, income fee, care & maintenance fee)
Formal discharge of executor/administrator upon completion of duties - order from the Bs or the court
o Theoretically, discharge from the court is the only thing that releases the executor
o Discharge from the Bs might relieve him of liability contractually
Capacity, Knowledge & Approval, and Undue Influence/Fraud

In addition to execution requirements, validity of will also depends on: 1) Do they have capacity, 2) Is there
knowledge and approval? 3) must have absence of undue influence and fraud
o Propounder of will – person who wants will affirmed
1) Capacity

In probate, it is presumed that testator had capacity. (Vout v. Hay).

Where a will is admitted to probate in common form, and is later attacked for lack of capacity, the onus of proof
remains on the party propounding the will (Turnery v. Rochon, 1980 BCSC)
o Objector has the evidentiary burden of showing suspicious circumstances (Vout v. Hay)

Test for legal capacity to make a will; testator must understand:
1) the nature of the act of making the will (ie. That it disposes of person’s property after death) 2) the
extent of the property that he/she is disposing, and 3) understand and appreciate the claims that society
expects them to give some thought to (Banks v Goodfellow)

Capacity is a continuum (Banks v Goodfellow (1870, Eng))

Can lack capacity to manage business affairs, but retain testamentary capacity (Royal Trust Co v Rampone (1974,
BCSC)

psychopathy ≠ lacking capacity; when delusions relate to the dispositions, then can be found to be lacking capacity
(just for that disposition) (Re the Estate of Bohrman, (1938, Eng))

“Golden rule” for making will for someone with doubtful capacity (Key & Anor v Key & Ors (2010, Eng))
o Make arrangements for a qualified medical practitioner to do a report on capacity and make
contemporaneous record for the examination & findings.

Court distinguished b/w intellectual vs moral understanding – held will invalid for lack of capacity wrt moral
understanding (Sharp & Bryson v Adam & Adam (2006, Eng))

Capacity wrt instructions at execution: capacity at execution not as important (vs at time of giving instructions). Three
stages of sufficient capacity provided in Parker v Felgate (1883, Eng)
o Perrins v Holland (2010, Eng) confirms that Parker v Felgate is still good law

Duty to create a will where capacity doubted? See Hall v Bennett Estate (2003, ONCA), and PG v Gill, NZ

re age: Minors can receive property in a number of ways - inheritance, damage awards, etc.. but must be 16 yrs + to
make a will unless you are in the military (WESA s. 36 & 38)
o What parents can do for minors is a very confused area - Parents/guardians don't have much authority to
deal with minors' property

Note: Is the capacity required the same to make a will or an inter vivos trust? Maybe a little higher in an inter vivos
trust - since you are giving property away while alive (see Craig v Lamoureaux)

Capacity required to make someone a Power of Attorney is a higher standard than for making a will (See Power of
Attorney Act s. 12)
2) Knowledge/approval

Knowledge & approval: basically need to tell the client what you’ve drafted and they agree

Knowledge & approval of what the will means (not the words), the effect of the words, and the general amount of
their residue (Wintle v Nye (1959, Eng))
o Testator must know general magnitude of estate at time will is made (Russell v Fraser (1980, BCCA))

In probate, it is presumed that testator had knowledge/approval (Vout v. Hay).

If someone objects and can show suspicious circumstances, then burden lies on executor (person propounding will) to
prove testator had capacity, knowledge & approval. (Vout v. Hay).
o Standard is balance of probabilities (Vout v Hay)
o Suspicious circs do not impose a higher std of proof on the propounder of will (Re Henry (2009) OnSC)
[p 12]

Language difficulties alone do not rebut presumption of knowledge & approval; does not create suspicious circs
(Maddess v Estate of Johane Gidney (2009, BCCA))
3) Undue Influence (s. 52)

Undue influence = coerced to do something they don’t want to do (Wingrove v Wingrove (1885, Eng))

S. 52 “In an action, if a person claims that a will or any provision of it resulted from another person [unduly
influencing the will-maker] and establishes that the other person was in a position where the potential for
dependence or domination of the will-maker was present, the party seeking to defend the will or the provision of it
that is challenged or to uphold the gift has the onus of establishing that [undue influence did not impact the willmaker in making] the will or the provision of it that is challenged.”
o So, person claiming UI has to establish that a person was in a position where potential for
dependence/domination of will-maker was present;
o Person seeking to defend the will/provision, or to uphold the gift has the onus of establishing that UI did
not impact the will-maker in making the will/provision

Potential B’s can make their claim known to the will-maker and ask for recognition; influence ≠ undue influence (Craig
v. Lamoureaux (1920, Eng))

Also, the CL differentiated btwn inter vivos gifts and testamentary gifts wrt burdens of proof
o Inter vivos: if there is no fiduciary relationship, then the person alleging UI must prove it. If there was a
fiduciary relationship, then gift receiver must prove absence of UI.
o Wills: the person alleging UI must prove it.

Fraud: has to be pretty severe, and it’s pretty rare. Question is whether the testator would have made the gift had he
known of the fraud? (Bolianatz Estate v Simon (2006, SKCA))
Vout v Hay (1995, SCC) – rebuttable presumption regarding execution, knowledge&approval, and
capacity if will properly executed and testator read/was read will. Standard is BoP
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
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The person propounding the will (who wants to have will affirmed) has the legal burden of proof with respect to due
execution, knowledge and approval, and testamentary capacity.
But - these are presumed if will was properly executed & testator read or was read the will. Can be rebutted if person
can establish suspicious circs (they have evidentiary burden). Then propounder of will reassumes the legal burden.
The standard of proof on each of the above issues is proof on a BOP.
Knowledge & approval overlap with undue influence, but distinction exists: “A person may well appreciate what he
or she is doing but be doing it as a result of coercion or fraud”
Re Henry (2009) OnSC – suspicious circs do not impose a higher std of proof on the propounder of will
Discusses Vout v. Hay & other cases

The existence of suspicious circs does not impose a higher std of proof on the propounder of the will. However, the
extent of the proof required is proportionate to the gravity of the suspicion.
Robins v National Trust Co (1927, Eng) – Onus only really matters if the evidence is completely even on
either side. Otherwise, on a BOP, court just reviews & weighs evidence, then comes to a conclusion
Turner v Rochon (1980, BCSC) - where a will is admitted to probate in common form, and is later
attacked for lack of capacity, the onus of proof remains on the party propounding the will.
Capacity – General Law
Banks v Goodfellow (1870, Eng) – test for legal capacity to make a will; capacity is a continuum
F: Testator had been in an asylum – prone to “violent excitement”, delusions. But did take care of his own money.
R: Shouldn’t deny someone testamentary freedom b/c they are partially unsound. Capacity is a continuum - ok to have bad
memory/some delusions that don’t relate to testamentary capacity.
Test for legal capacity – must understand 1) the nature of the act of making the will (ie. That it disposes of person’s property
after death) 2) the extent of the property that he/she is disposing, and 3) understand and appreciate the claims that society
expects them to give some thought to (are they thinking about family and friends when they are considering the gifts they are
making in a will; this isn’t a requirement that they leave gifts to them but that they considered it) ; there may be some sort of
reasonableness test to their dispositions at least
*having memory is not any kind of legal capacity issue. Will-maker does not need to remember what they’ve done in their will,
if they understood at the time what they’ve done in their will (and that they’ve met all these other tests)
Royal Trust Co v Rampone (1974, BCSC) – can lack capacity to manage business affairs but retain
[p 13]
capacity to make will
F: Testator decided he did not have the capacity to manage his own business operations - but afterwards he made a codicil. Can
someone who doesn't have the capacity to manage his own business affairs still have capacity to make a will?
R: Yes - they are different things. Being unable to manage his business is quite different from understanding what making a will
is. Helpfully perhaps he was adding children back into his will that he had previously excluded in the codicil.
Re the Estate of Bohrman, (1938, Eng) – psychopathy ≠ lacking capacity; when delusions relate to the
dispositions, then can be found to be lacking capacity (just for that disposition).
F: Will attacked on 2 bases - First, it was alleged that the testator was so devoid of any feeling of human affection that he was
incapable of making a will at all (expert said he was a paranoid psychopath). Second, it was alleged that part of a codicil made in
September, 1932, was invalid because of the nature of the testator’s reaction to the London County Council. The Council had
expropriated some of his property and he had a strong, continued reaction – he thought that the Council was persecuting him.
In his last codicil, he directed that the clause giving money to charities be read and construed as if the word “England “ were
deleted and the words “United States of America” added in their place.
R: Just because someone is a psychopath does not mean they lack capacity. But, the testator clearly suffered from some
delusional insanity from the time of his fight with the London County Council – thus, that portion of the codicil is invalid.
(everything else valid)
Key & Anor v Key & Ors (2010, Eng) – “golden rule” for making will for someone with doubtful capacity:
Make arrangements for a qualified medical practitioner to do a report on capacity and make
contemporaneous record for the examination & findings.
Sharp & Bryson v Adam & Adam (2006, Eng) – Court distinguished b/w intellectual vs moral
understanding – held will invalid for lack of capacity wrt moral understanding
F: Will maker gave everything to 2 daughters. Then made 2nd will, excluding 2 daughters entirely  gave everything to 2
people who cared for him personally & looked after his business. He was in intermediate stages of MS. Trial court found that he
lacked capacity.
R: Appeal dismissed. TJ wasn’t clearly wrong – there was evidence to support lack of capacity. Two aspects of understanding intellectual understanding vs moral understanding - "cognitive powers" vs what one ought to do.
Capacity wrt Instructions to Execution
Parker v Felgate (1883, Eng) – capacity at execution not as important (vs at time of giving instructions).
Three stages of sufficient capacity
F: More than a year btwn initial instructions & signing of the will. Do you need capacity when you execute a will?
R: Knowledge and approval most important while giving instructions, not when signing (as long as lawyer has an absolutely
clear idea of what the will maker wanted).

3 stages of capacity that a testator may be able to answer o Capable of understanding what was going on. Testator knew and recollected all that all that they had done
with the lawyer  Complete awareness
o Can’t recall each and every detail, but if asked “Do you want to leave $x to Y, and Z item to A” they would
answer yes.  Somewhat less than complete awareness
o A person might no longer have capacity to go over the whole will from beginning to end and think it all over
again, but they are able to say to themself "I have settled that business with my solicitor. I rely upon his
having embodied it in proper words, and I accept the paper which is put before me as embodying it".
Perrins v Holland (2010, Eng) – confirms that Parker v Felgate is still good law
Hall v Bennett Estate (2003, ONCA) – duty for lawyer to create will
F: Lawyer met with client while he was in hospital. Met with him for 65 min but the lawyer decided he was not getting coherent
instructions, so he didn't create the will. Intended B sued the lawyer.
R: Ont trial ct found lawyer had not properly carried out his role as a lawyer.

Ont CA - saved the lawyer – held that he never had a retainer with the client.

Retainer can sometimes mean $, a formal agreement set out in a letter, an informal agreement for the lawyer to work
for the client.
[p 14]
Public Trustee v Gill (2001, NZ) – duty of a lawyer to make a will where capacity is doubted
F: The defendant law firm prepared two wills for a testator, both of which were held invalid on the ground that the testator
lacked capacity. An earlier will, prepared by the Public Trustee of NZ, was admitted to probate. The Public Trustee was the
executor of that will. On behalf of the estate, the Public Trustee sued the law firm to recover the substantial costs which the
estate had incurred in the proceedings respecting the two wills prepared by the firm.
I: What is a lawyer’s duty when capacity is doubted, in preparing wills?
Court: “In my view, the most which could be contemplated as a legal duty upon a solicitor is an obligation to consider and
advise upon the issue of testamentary capacity where the circs are such as to raise doubt in the mind of the reasonably
competent practitioner. However, any such duty would necessarily be confined by the scope of the retainer and would also be
limited by the solicitor’s fundamental duty to comply with the client’s instructions. In particular, a solicitor would not ordinarily
be authorised to make inquiries of others such as family members or medical advisers without the client’s instructions. As well,
any decision about whether to make a will and about its contents is, in the end, a matter for the client”
Knowledge & Approval
Wintle v Nye (1959, Eng) – knowledge & approval of what the will means (not the words), the effect of
the words, and the general amount of their residue.
F: Successive changes made to the testator's will. Result was that the lawyer ended up with the residue. Instructions were fairly
complicated ($ going to sisters, not too much, over some time; many changes to drafts etc). Solicitor’s evidence that the money
was to go to the lawyer to hold in trust for the sisters.
R: Knowledge & approval requires knowledge & approval of what the will means (not the words), the effect of the words,
and the general amount of their residue.

Someone who helps the testator prepare a will and gets a benefit from it = suspicious circumstances.
Russell v Fraser (1980, BCCA) – testator must know general magnitude of estate at time will is made
F: Testatrix discussed will with credit union manager. She wanted the mgr to give instructions to lawyer. She wouldn’t tell him
what to do with the residue because she didn’t care. He facetiously suggested that she give it to him and she agreed. Almost
50% of the estate ended up in the residue (60k).
Trial: If a person helps make a will and takes a benefit under it, the court is allowed to consider in particular the part of the will
which gives the person the benefit. No undue influence here (not enough control by the manager over the testatrix), but the
manager (also the executor) “has not met the heavy onus upon him to remove my suspicion that the testatrix knew and
approved the residuary clause”.
CA: Dismisses appeal. Knowledge of the magnitude of the estate at the time the will is executed is required for knowledge &
approval – doesn’t matter that the magnitude can change afterwards.
Maddess v Estate of Johane Gidney (2009, BCCA) – language difficulties alone do not rebut
presumption of knowledge & approval; does not create suspicious circs
F: Testator had some difficulty with English & was not sophisticated in business.
R: TJ held that this was not sufficient to rebut the presumption of knowledge & approval. Ie. these things did not amount to
suspicious circumstances. The test is not that the challenger must point to “some evidence” of susp circ. There must be “some
evidence, which if accepted, would tend to negative the knowledge & approval”.
CA agreed with trial judge.
Undue Influence
Wingrove v Wingrove (1885, Eng) – Undue influence = coerced to do something they don’t want to do
Due influence vs undue influence. Not all influence is undue influence. Undue influence requires the will of the person to be
coerced into doing something which he/she does not want to do.
Also, even if a person has the power to overbear the will of a person, they still have to exercise it for UI (consistent with WESA)
Craig v Lamoureaux (1920, Eng) – potential B’s can make their claim known to the will-maker and ask
for recognition – not UI.
F: Husband told wife to leave property to him. Her sister claimed undue influence.
R: Nothing wrong with influence – a potential B is allowed to put his/her claims before the will maker & ask for recognition.
(probably also because the result was perfectly acceptable)
The person who is alleging UI bears the burden of proof. (May be different for inter vivos gifts)
Fraud
[p 15]
Bolianatz Estate v Simon (2006, SKCA) – Fraud (has to be pretty severe, and it’s pretty rare). Question is
whether the testator would have made the gift had he known of the fraud.
F: The B had actually been stealing from the testator prior to his death. Does court take away the gift of the criminal B?
R: Court reviews case history:

Kennell – wife leaves everything to her husband, but turns out husband was actually married to another woman.
Husband was not entitled to his legacy. “wherever a legacy is given to a person under a particular character, which he
has falsely assumed, and which alone can be supposed the motive of the bounty, the Law will not permit him” to take
the gift.

Boddington – husband left things to wife. Prior to his death, the wife had the marriage annulled. As per Kennell, need
false assumption & ev that the false character was the reason for the gift. Wife still entitled to gift because she didn’t
assume a false character.

Posner – adds that the false assumption must be a fraudulent one. Husband left things for wife. He knew she was
already married at the time of their marriage. No fraud here, so she still gets gift.
Majority: Question for this case is whether the testator would have made the gift had he known of the fraud. Trustworthiness
found to be a factor in deciding that the B would be an executor, but not relating to the gift. Can’t open the door to assessing
the moral worthiness of Bs before allowing them their gift. Also don’t want to add more uncertainty to wills. And this is a fact
dependant scenario, but not many facts given (eg relationship btwn the B & the testator, why the B stole money etc)
Clean hands doctrine does not apply here: 1) The B is not asking for an equitable relief, and 2) B’s theft and B’s gift are not
sufficiently linked to engage the maxim.
Dissent: It’s so obvious that the testator would not have made the gift had he known about the fraud that we don’t need any
additional evidence. Also, clean hands could apply – when a testator dies, Bs don’t take equitable ownership – the executor
takes full title, and the B only has an equitable chose in action against the executor – once accounts are settled, then the
executor becomes trustee holding in trust for the B. This means that if the administrator here didn’t give the B his money, then
B would have to come to the court asking for an equitable remedy → unclean hands! Would still need nexus btwn the fraud &
the legacy but that is satisfied here. Lastly, this would frustrate the restitution order from the B’s criminal conviction of theft.
Claims Against Estates (wills variation)


Testamentary freedom is not absolute – have to make adequate provision for spouse/dependents
Wills variation legislation in other Canadian jurisdictions is more narrow, ie. P’s need to show they were financially
dependent on the testator

In BC - WVA is not narrow - financial dependence (need) is not a necessary requirement for variation

To avoid effective variation claims, use (see ‘Transfers Outside the Will’):
o Joint property (RoS - never falls into estate);
o Beneficiary designations (these are testamentary in nature but do not fall into the estate);
o Inter vivos trust (outside the estate) (Mawdsley v. Meshen)
Key WESA provisions

s. 60: maintenance from estate
o **the key provision**
o Gives courts an incredibly broad discretion (Tataryn) to vary wills that do not make “adequate provision
for the proper maintenance” of spouse or kids
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Spouses – married, CL (2 years), same sex
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Children – only biological or adopted (not step-children, McRea), minor or adult, financially
independent
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Keep in mind step-children wouldn’t take on intestacy either, if will found invalid
o Court may order a provision “that it thinks adequate, just and equitable in the circumstances”
o This section limits courts consideration to provisions under the will, thought court will consider transfers
outside the will
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S. 61: time limit (~180 days from date grant of probate issued) and service

s. 62: evidence
(1) Court may accept evidence it considers ‘proper’ concerning will-maker’s reasons, …including any written
stmt signed by the will-maker
(2) In determining how much weight to give statements, the court must have regard to all the circs from which
an inference may reasonably be drawn about the accuracy or otherwise of the statement.
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“Accuracy” means whether the stmt is true.
[p 16]
o
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The stmt must also be rational (ie there must be a logical connection btwn the act of disinheriting and the
reasons)
s. 63: Court may
(a) attach conditions, or
(b) refuse to make an order in favour of a person whose character or conduct, …, disentitles the person to the
benefit of an order under this Division.
s. 64: Lump sum or periodic payments, transfer of property or trust
o Could tsf an asset directly to the child
o Could order monthly pmts for life (but more rare now)
s. 65: any payments ordered fall rateably on the will-maker's estate (or portion in BC); usually affects residue
s. 66: can suspend administration of the estate (eg. when a child has been living in the house - may make a claim for
the house - then executor can't sell the house yet) or exempt any part of estate from an order under s. 60
s. 67 – court may order a B to make a periodic or lump sum payment from their share of the estate
s. 71 – court may cancel, vary suspend or make another order if circs wrt claimant change
Caselaw

Test: In deciding whether to vary the will, courts will consider whether testator has met his legal and moral
obligations to spouse and children. Legal obligations take precedent, such that moral obligations may not be met if
the size of estate does not permit it. Courts have a broad discretion to decide what is adequate just & equitable in the
circumstances. (Tataryn, 1994 SCC)
o The test for varying is objective (Clucas v Royal Trust, 1999 BCSC)
o “adequate" and "proper" depends on the size of the estate. (Clucas)
o Can still consider needs. (Clucas)
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Legal obligations:
o Spouse – under family legislation and Divorce Act, Unjust Enrichment (Constructive Trust),
o Children – if dependent testator had legal obligation to provide for them; if independent children, only
unjust enrichment
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Moral obligations:
o society’s reasonable expectations of what a judicious person would do in the circs by reference to
contemporary community standards. (Tataryn)
o Test for moral claims more nebulous where the surviving spouse is not “dependent” and the children are all
financially independent adults. (Bridge)
o For adult children, moral claims are more tenuous than those of spouse & minor children. But if size of
estate permits, & in the absence of special circumstances (ie valid & rational reasons) negating a moral
oblig, some provision should be made (Clucas)
o Adult children may have a stronger moral claim if special circumstances exist, such as a disability,
assured/implied expectation, size of estate, etc) (Clucas)
o Helen: Where the estate is sizeable enough, all of the moral obligations ought to be met and you should
provide adult independent children unless there is a good reason to exclude the child.

Main aim of the Act is the “adequate, just and equitable provision” for the spouses and children of testators. The
other interest protected by the Act is testamentary autonomy. (Clucas v Royal Trust, 1999 BCSC)

Bridger, 2006 BCCA – Smallish estate. 38yr marriage later in life. W was self-sufficient, had received nearly half the
family assets from outside estate. H left majority of his assets to his daughters. Testator totally failed to meet his
moral obligations to W, which accumulated since will was drafted, 20 yrs earlier. Court especially persuaded by how
W looked after H in his later, dementia years.
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Saugestad, 2008 BCCA – Modest estate. 13yr 2nd marriage. H had 2 sons from previous marriage, who were now
young men. Where testator has provided reasonable financial security to his wife of 13 yrs, he can choose to benefit
his young adult kids whose moral claims rank higher. W’s wish to maintain same standard of living after H’s death as
before is not a moral claim.
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Pickets v Hall, 2009 BCCA – Large estate. ‘Powerful moral obligation’ may warrant large capital award to CL spouse;
court can look at lots of factors, not restricted to UE or support claims. Now under FLA, she would have strong legal
claim as well.
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Waldman v Blumes, 2009 BCSC – Largish estate. Old guy enters into 2nd marriage with younger woman. After 20 yrs,
he dies, leaves her everything despite 4 adult children from his 1st marriage and two teenagers from 2nd marriage.
Court finds he had pretty significant legal and moral obligations to his wife, which he satisfied. Didn’t satisfy his moral
obligation to his adult independent children, court awarded small gift.
o Helen: Highest claim to spouse, no obligation to provide for adult dependent children. But children can
apply to vary a will (ie. Where father remarried, and then he left estate to new wife). In estrangement cases,
courts have been hard on the will-maker.
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McBride v Voth (2010, BCSC) – Factors in determining will-maker’s moral duty amongst adult independent children,
where one child can live in home til she dies; home made up majority of estate to be divided among children
[p 17]
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Graham v Chalmers (2010, BCCA) – Where testator limits one child’s share b/c “she had enough extra already”, court
will look at what child had received in deciding whether she was adequately provided for. Living with mom rent-free
meant child had to help out – not a straight benefit. Will varied.
Mawdsley, 2012 BCCA: reflects the fact that if the assets aren’t in the estate (ie. b/c testator used an alter ego trust),
then you can’t have an effective wills variation claim.
o Testator had put assets into a trust. 2nd spouse sought to vary the will, but in order to have an effective
claim, he had to get assets out of the trust and back into the estate. Court in that case confirmed that trust
was valid and therefore there weren’t any assets to put into the estate.
o There had been some support in the case law that you could uses trusts to avoid claims by your children
(Mordo v Nitting), however Abakhan suggested that if you have a fraudulent intent to defeat ‘creditors or
others’ the transfer could be nullified. The Easingwood case talked about whether or not potential claimant
could be an ‘other’ creditor, but court didn’t have to decide it so they didn’t.
o Again, in Mawdsley, court gets into discussion about fraudulent conveyance but can’t find on the facts that
the testator had any fraudulent intent to defeat her spouse’s claim.
o Helen: These aren’t good facts though. Need hard facts where the plaintiff is really sympathetic.
Harvey v Harvey, 1979, BCCA – Courts are hesitant to restrain testamentary freedom; interpreted testator’s gift of
shares in a narrow way to give effect to company articles (contractual restraints)
Claims by Spouses
Tataryn v Tataryn (1994, SCC) – legal & moral obligs under the WVA; Court has broad discretion
F: H had all the assets in his name. H & W married for 40+ yrs & had 2 sons. Dad did not like Son #2. In will, left most assets in a
spousal trust (income for W’s use) & named Son#1 as the trustee (up to him to decide what mom receives). On W’s death,
Son#1 gets the $. (H wanted to disinherit Son#2). Both W & Son#2 applied to vary the will - claim by W was that she wanted out
of the trust b/c she couldn't hold assets and wouldn’t have assets to dispose of on her death.
I: was a life interest in the trust an adequate provision for wife?
SCC: looks at spousal claims under WVA. Purpose of legislation is to protect spouse and children. What is “adequate, just, and
equitable” is not a needs/maintenance based approach (ie. That they were reliant on will-maker). Have to consider both legal
and moral obligations.
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Courts have a broad discretion to decide what is adequate just & equitable in the circumstances.
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What are legal obligs owed to the wife/kids?
o What was the testator legally bound to do during his lifetime under relevant laws: Divorce Act, Family
legislation, and unjust enrichment at CL
o Did any of those obligations crystallize at the time of death?
o Wife shouldn't be worse off if she had divorced him 1 day before his death instead of staying married.
Family law says she would’ve been entitled to 50/50 (of joint assets) + possibly support. (Thus will did not
meet legal obligations)
o Dependent children may have a claim in legal obligs & independent children may have a claim if there is an
element of unjust enrichment (eg. adult child contributes to the parent’s estate)
o Legal obligs take precedence over moral obligs.
o Here, all the assets of husband were jointly contributed to by both wife & husband.

What are moral obligs owed to the wife/kids?
o Moral obligs = society’s reasonable expectations of what a judicious person would do in the circs by
reference to contemporary community standards.
o Moral duty is assessed in light of testamentary autonomy – ie if the disposition falls within an acceptable
range of what is adequate, just & equitable, then don’t interfere.
o Consider the size of the estate (some provision should be made for children if size of estate permits unless
circumstances negate the oblig).

Here, long marriage, both contributed to the estate, funds were jointly set aside for old age, shouldn’t deprive wife of
independence just because husband died first (high moral oblgn).
Result: Will was varied so as to give W title in matrimonial home, life estate in rental property, and remainder of estate after
each son given $10k.
Bridger v Bridger Estate (2006, BCCA) – Smallish estate. Long marriage later in life. W was self-sufficient,
had received almost half the family assets outside the estate. H left majority of his assets to his
daughters – Testator totally failed to meet his moral obligations to W, which accumulated since will was
drafted, 20 yrs earlier.
F: 2 ppl marry later on in life. After 38 yrs of marriage, H dies, leaving estate to his own 3 daughters - no significant provisions
for the spouse as she was self-sufficient and had received some assets outside of the estate. Spouse applies to vary will.
R: Even where legal obligations is mostly met, W may have moral obligation that testator failed to satisfy.
[p 18]
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Court applies Tataryn in considering whether testator’s legal obligations were met. The court calculates what total
family assets would’ve been if H&W had separated just prior to his death, and determines that what she received
(both inside and outside of the estate) was close to half, but not quite. Legal obligation not quite met.

Court goes onto look at the moral claims. Here the court is required to balance the competing moral claims on the
estate of Mrs. Bridger and the daughters after the notional legal claim of Mrs. Bridger to a half share of family assets
has been recognized. The will recognizes the moral claims of the appellant daughters but ignores any moral claim of
Mrs. Bridger.
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Tataryn recognizes that there is no clear legal standard to judge moral claims and the test is more nebulous where
the surviving spouse is not “dependent” and the children are all financially independent adults.

While there may be a number of options for dividing assets by a testator which are adequate, just and equitable
(Tataryn), preferring the moral claims of your (financially independent) kids to your wife (who was loyal and cared for
you through your declining health) is not one of them. Moral obligation to wife not met.

Here court focused on factors going to moral obligation:
o Marriage continued for nearly 20 years after wills were made – The events over the intervening years
supported a moral obligation to W unanticipated when the wills were made
o Spouse dedicated time and effort to his care in the later years of his life.
o She acquired real estate assets for their mutual benefit of her own initiative, while he acquired his financial
assets secretly

Any intention on the part of the W to live frugally so that she may pass on some assets to her own children was
irrelevant. Whatever she intends to do with the assets is beyond the purview of wills variation legislation; doesn’t
effect her moral claim
Result: Court gave her 25% of his net estate, and a share of sale proceeds from two rental properties
Saugestad v. Saugestad (2008, BCCA) – Modest estate. Where testator has provided reasonable
financial security to his wife of 13 yrs, he can choose to benefit his young adult kids whose moral claims
rank higher. W’s wish to maintain same standard of living after H’s death as before is not a moral claim.
F: Testator had 2 sons by his first wife. He later remarried W – 2nd marriage lasted 13 yrs before he died. He held accounts
offshore (result of a retirement allowance & inheritance from his mother). He encouraged her to retire so they could travel
together (at his expense). He said he would look after her in retirement.

On death, she inherited the matrimonial home, a condominium, as surviving joint tenant. She received testator's
pension of approximately $1,350 per month and a CPP survivor's benefit of $270 per month. Together with motor
vehicles, furniture and artwork, she was the beneficiary of testator's RRSPs which totalled $52,633 and approximately
$28,000 in various bank accounts.

Sons received specific bequests in the will (cars, antiques, and art pieces), and were to divided the residue.

W brought variation claim.
Court

TJ’s order was amended to give W one half interest in condominium outright, instead of a life estate. She had to
assume remainder of mortgage though. She also got a small cash legacy.

Testamentary autonomy and kids’ moral claims coincided to support the terms of the will.

Testator arranged his affairs in a manner that provided reasonable financial security for W and otherwise chose to
benefit his sons.
o Kids’ modest employment income and father’s support of them prior to death put their moral claims ahead
of W’s in the circs.
o W’s wish to maintain the same standard of living after H’s death as she enjoyed before is not a moral
obligation
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Other key facts: Shorter marriage to 2nd spouse; much of his wealth was accumulated during his first marriage; sons
hadn’t inherited from their mother; W didn’t have much assets prior to the marriage
*In Saugestad, Helen was counsel for the kids.
Picketts v Hall estate (2009, BCCA) – Large estate. ‘Powerful moral obligation’ may warrant large capital
award to CL spouse; court can look at lots of factors, not restricted to UE or support claims. Now under
FLA, she would have strong legal claim as well.
F: CL relationship for 20+ yrs. $18mil estate - had already gifted a lot to his children. Left spouse the condo that they were living
in + 2000/month +use of condo in Hawaii. Residue divided btwn sons.
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Spouse applied for variation - she says he had proposed to her at one point - promised to care for her as if she were
his wife. She also cared for him until death (preservation of estate).
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TJ: Legal oblig - CL spouse, so no property division - no unjust enrichment because all his money was already made
when they got together. All she is entitled to is support. Still varied a good deal.
On appeal: No legal oblig but this is a case of a really powerful moral obligation - warrants a capital award from the estate.
[p 19]
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Court can look at all sorts of factors - not limited to unjust enrichment.
o No legal oblig to sons
o Length of relationship was 21 yrs
o Spouse gave up her career on insistence of testator
o Spouse used her own savings for household expenses sometimes
o She took care of him for 3+ yrs before he died
o She relied on his stmt that he would treat her as if she were his wife
o Size of the estate
o Had he died without a will - she would have received about 1/3 of the estate

Court awards her 5mil.
Note: Significant case because it was the first time a CL spouse had received such a large award.
**Case would not be decided in the same way anymore because of changes in the Family Law Act
Claims by adult children
Waldman v Blumes (2009, BCSC) – Largish estate. Will-maker may have moral oblgs to adult
independent children
F: 2nd marriage b/w 70 yr old testator & 37 yr old spouse. Testator dies 21 yrs later with $1.2 mln estate, leaves everything to
2nd wife, who already took $2.6mln outside the estate. First wife had left everything to H and nothing to their 4 kids (now
financially independent adults). H also had 2 kids with 2nd wife (both teenagers).

All 6 children (adult & minor) bring variation claim - 2 adult children had financial need
Court:

Legal and moral obligations: to his spouse and dependent children; H had agreed to give spouse all assets for having
children & not working full time (as a lawyer)
o W had kids even though she would likely be widowed before they reached independence, & cared for
husband at home before death.
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Also moral obligations to his adult independent children

Court only gave adult children a small variation (75k) - they had already received gifts from dad - but recognized they
received nothing from their mother's estate (testator’s first wife).
Amongst children, and will-maker’s reasons
McBride v Voth (2010, BCSC) – Factors in determining will-maker’s moral duty amongst adult
independent children, where one child can live in home til she dies; home made up majority of estate
F: Will provided a right to eldest child, M, to reside in testator's home for lifetime. M had lived with parents until their death.
House made up the majority of the residue, which was to be divided amongst 3 other children with gift over to grandchildren if
a child were to predecease M before end of occupancy period. So other kids don't get anything until M dies - she is not that
much older than them. Other kids apply to vary.
R: Court had to assess whether parents met moral duty to adult independent children. Factors considered:

Contribution & expectation (similarly, unjust enrichment or quantum meruit)
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Misconduct or poor character
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Estrangement or neglect
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Gifts & benefits made during the lifetime of the testator
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Unequal treatment btwn siblings (even treatment prima facie discharges moral duty, but uneven treatment doesn’t
mean that it hasn’t been discharged)

Testator’s reasons for disinheritance (not sure whether valid & rational reasons are enough to override objectively
judicious parent test in Tataryn
Court ordered variation: 3 yr occupancy period in house after which sale must occur. Then net proceeds to be divided with M
taking 45% and others taking 30 & 25% (last child was quite well off)
Graham v Chalmers (2010, BCCA) – Where testator limits one child’s share b/c “she had enough extra
already”, court will look at what child had received in deciding whether she was adequately provided
for. Living with mom rent-free meant child had to help out – not a straight benefit.
Property available to satisfy a claim
Mawdsley v Meshen (2012, BCCA) – ability to make a claim is diminished if the testator used effective
estate planning to keep most assets out of the estate
F: Mrs. married twice, had children by both husbands. 2nd husband died, leaving business. Had a long relationship (20 yrs+)
[p 20]
with Mr. - he only had condo going into the relationship. Unwritten agreement that each person keeps his/her own things for
his/her own kids. She sold a business & had a lot of cash. Met with advisors - spoke to her re: alter ego trusts. She went to these
meetings with CL spouse. She made it clear that the trust funds would go to her 3 children & late husbands brother - Mr would
not get anything. But she doesn’t make the trust - finally makes a will when diagnosed with cancer. But still makes trust. Trust
to gives everything to 3 children & brother in law after death. Lawyer mentions WVA but she says unwritten agreement not to
claim. Estate has very few assets when she dies.
R: Mr. brings a claim under Fraudulent Conveyance Act - Act says: Can't tsf/rid myself of assets to defeat creditors (intent to
defeat required) Mr. argues that settlement of the alter ego trust defeated his claim under the WVA.

Court finds Mrs. had no intention to defeat his claim - it wasn't in her contemplation at all.

Also – trial judge was not obliged to find that because the trust had the effect of impoverishing the estate, Mrs. had
the intention to defeat Mr.’s claim under WVA.
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A person who does not have a claim during his or her parent or spouse’s lifetime, and whose only claim arises on the
death of the testator under the WVA, is not a “creditor or other” under the FCA.

This could mean that transactions may still be set aside under the FCA by claimants under the WVA if those claimants
can show that the transaction was intended to defeat a legal obligation that the will-maker had to them during the
will-maker’s lifetime.
Contractual Restraints
Harvey v Harvey (1979, BCCA) – Courts are hesitant to restrain testamentary freedom; interpreted
testator’s gift of shares in a narrow way to give effect to company articles (contractual restraints)
F: Mom + 2 sons are SHs. Sons are directors. Articles of company gives right of first refusal to other SHs, but can’t transfer/sell
to someone not already a SH in the company. Mom leaves shares to a grandchild (son of one of the sons). He wants to register
those shares into his name &uncle says no. Then grandchild wants to register them in his dad’s name but uncle still resists.

Trial - shares from testatrix can be registered to grandson.
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CA, upheld TJ but decided articles of company could not preclude will-maker from disposing of her shares in the
company in the way she wanted. Articles should still be followed so grandson must register them in his dad’s name.

Court takes very narrow approach to restricting a person’s right to dispose of property in the way they want to on
death.
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Courts don't really want to restrain testamentary freedom - narrowly interpret inter vivos restrictions on property.
Construction (interpreting the will)
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(See also Rectification)
Construction at CL is the exercise, after a will has been admitted to probate, of interpreting a will for ambiguity
o Interpretation based on the language used in the will
At construction stage, court could add in words to the will to give it meaning
Where a will is missing a clause for a scenario that hadn’t been contemplated; court of construction can’t fix this.
Court must know what the error is. Re McEwen Estate (1967, BCCA)
CL Rule of Court of Construction is that direct ev of the testator’s intention is not admissible in construing the
meaning of the will, except where ambiguity relates to
o the identity of the beneficiaries (Doctrine of Equivocation); or
o the property being gifted (Doctrine of Falsa Demonstratio)
WESA: s. 4 - extrinsic evidence of intention inadmissible UNLESS
a) Provision of the will is meaningless
b) Provision is ambiguous on its face or in light of evidence (other than evidence of the will-maker’s intention)
demonstrating that the language used in the testamentary instrument is ambiguous having regard to
surrounding circumstances
Ie. provision relating to beneficiaries or property?? Probably

c) Expressly permitted by WESA (s. 59 – Rectification of will)
Extrinsic evidence was admitted in Estate of Murray (2007, BCSC), b/c will purported but failed to dispose of all of the
property.
Re Davidson (1979, OnHC) – Direct ev of intention admitted to resolve ambiguity related to property (which lot went
to who). CL principle of falsa demonstration
Extrinsic evidence related to testator’s intention was disallowed in Rondel v Robinson, 2011 ONCA, bc Canadian will
on its face was unambiguous, although the circumstances were not (since she had a Spanish will, that it was alleged
she had not intended to revoke)
Two stages:
1) Look at plain meaning of words used. If you can determine meaning then don’t go further. (Laws v. Rabbit)
[p 21]
o
Focus on the meaning of particular words in the will, in the particular circs. Look at “expressed intention”,
don’t use “strict legal meanings” (Perrin v Morgan)
Apply ordinary meaning rule in light of contents of whole will or surrounding circs (Haidler v. Sacher)
o
If not, then
2) Use Arm Chair approach to consider what intention may have been, by looking at surrounding circumstances to
determine meaning of words. (Laws v. Rabbit, Wilson v. Shankoff, applying Haidl v. Sacher)
o Surrounding circs – indirect extrinsic evidence (Haidler v. Sacher)
Property:

s. 41 (Property that can be gifted by a will),
o legal and equitable interests can be gifted
o property acquired before, on or after will is made
o reference to “property” under will is to be interpreted as if will was made immediately before death

44 (Residue of estate) – distributed according to intestacy if will is silent

45 (Gift of land contemplating division)
o If a gift of land in a will to 2 or more Bs contemplates a physical division of the parcel by subdivision or
otherwise, the gift takes effect as a gift to the B as tenants in common in proportion to their interests,
unless a contrary intention appears in the will.

47 (Property encumbered by security interest)
o makes the B of land or personal property that is subject to security interest, primarily liable for payment of
the whole of the debt, so that the B only acquires the interest in property net of that debt.

When clients tell you they want to give gifts specifically - be aware of these issues:
o They might not own the property when they die (Re Meier, but see Ireland v. Retallack where court held
such a gift was valid and could be given effect by executors)
o For real property - check the LTO to make sure there isn't something else on title
o People also acquire new property
General Principles
Perrin v Morgan (1943, Eng) – In construing the language of a will, focus on meaning of particular words
used in the will in the particular circs. “monies”
F: “homemade” will provided that “all of my monies…shall be shared by my nephew and nieces” as a specific bequest. No
residue clause in will. At death, testator had little “cash” but considerable stocks and bonds.
I: whether “monies” included the investments in stocks and bonds.
Court: monies included investments.
“Fundamental rule in construing the language of a will ... The question is not, of course, what the testator meant to

do when he made his will, but what the written words he uses mean in the particular case—what are the “expressed
intentions” of the testator.” – don’t use “strict legal meanings”
Surrounding circs used in constructing meaning of “monies”:

o investments formed large part of assets, not cash - high number (14) of nephews and nieces - small legacy if
divided cash only - no residue clause - testatrix wrote will herself
Haidl v Sacher (1980, Sask CA) – In construing words in will, apply ordinary meaning rule in light of
contents of whole will or surrounding circs. Did testator intend per capita or per stirpes distribution?
F: Will says – “give to the following people in equal shares: [lists 7 ppl], and the children of Herbert living at my death”. There
are 4 children of Herbert. Do the children get 1/11th each – per capita? Or, do they share 1/8th (ie get 1/32nd each) – per
stirpes?
Court:
First apply the ordinary meaning rule of construction in light of contents of whole will or surrounding circs.

Surrounding circs means indirect extrinsic ev but not direct ev (such as testator’s instruction to solicitor).

Indirect evidence includes character and occupation of testator, amount, extent, and condition of assets; number,

identity and general relationship of family to the testator; testator’s friends and other natural objects of testator’s
bounty
Court held per stirpes interpretation was correct.
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Laws v. Rabbitt (2006, BCSC) – Only proceed with construction if intention can’t be determined from
the plain meaning of the words. Apply armchair approach, looking at circs that could’ve influenced willmaker, to determine intention (from Haidl)
[p 22]
Wilson v Shankoff (2007, BCSC) – application of Haidl v Sacher, ev of surrounding circs admitted and will
construed in the context of those circs
Estate of Murray (2007, BCSC) – Evidence of surrounding circs admitted to resolve ambiguity on the
face of the will, which purported but failed to dispose of all the property
F: Because of a drafting error, will only disposed of 90 % of residue. There was a clause that if any of the residuary B’s failed to
obtain a vested interest, their share should go the Salvation Army. Should evidence of testator’s intention to benefit Salvation
Army be admitted, or should remaining amount go to intestacy?
Direct ev of the testator's intention was disallowed - ie solicitor's affidavit setting out instructions he had received

from the client - clear drafting error
Court:
direct ev of testator’s intention admissible when used to resolve equivocation issue (where will-maker’s words could

apply to two or more persons).
Extrinsic ev as to surrounding circs is admissible to resolve an ambiguity on the face of a will.

Court found there was an ambiguity on the face of the will (will-maker purported to dispose of all property but then

only distributed 90% of estate), thus extrinsic evidence of surrounding circs was admissible.
Court found that evidence indicated that remaining 10% was to go to the Salvation army

“Mistaken” Inclusion and Omission
Re Davidson (1979, OnHC) – Direct ev of intention admitted to resolve ambiguity related to property
(which lot went to who). CL principle of falsa demonstration
F: Testator owned 2 lots, giving one to each daughter, but it wasn’t clear which lot went to who. Court permitted direct ev of
intention.
R: Principle at CL of falsa demonstratio: can allow direct ev of intention if there is an ambiguity in identifying the property to be
gifted.
Re McEwen Estate (1967, BCCA) – Will was missing a clause for a scenario that hadn’t been
contemplated. Missing clause ≠ error that can be fixed; court must know what the error is
F: Will directed residue to be invested to :
Pay monthly sum to wife during her lifetime

Pay monthly sum to adopted daughter during her lifetime

If adopted daughter dies leaving issue, then on death of wife, to divide residue amongst adopted daughter's issue

If adopted daughter dies leaving no issue, then on death of wife, to divide residue among charities

Issue: what happens to residue if adopted daughter survives the wife?? Didn't address this situation
A missing clause - would have to add in a scenario… or let it go to intestacy. On intestacy, the residue would still go to

the daughter. So actually, doesn’t make a difference.
R: Presumption against intestacy doesn’t even apply here – it can’t prompt the court to speculate. If the court is

being asked to fix an error, then the court must be able to say what the error was.
Would the court have come to the same result if the daughter was a stepdaughter who would not take on intestacy?

Property
Re Meier (2004 ABQB) – Can’t gift what you don’t own (ademption)
F: testator gave brother his farmland that was in fact owned by a company of which testator was the sole SH and director
R: Court held gift adeemed as testator could not gift what he did not own (Remedy: negligence claim against the lawyer)
Ireland v Retallack (2011 NSWSC) – Opposite result than in Re Meier, court held executors could effect
the gift
F: testator gave daughter his property that was in fact owned by a company of which testator owned all shares (but one share
held by daughter)
R: Court held gift was valid as executors controlled company and could convey the property to the daughter
People (incl. interpretation of per stirpes?)
[p 23]
S. 42(2) A gift of property in a will to persons described as "heir" or "next of kin" of the will-maker or of another person takes
effect as if it had been made to the persons among whom and in the shares in which the estate of the will-maker or other
person would have been divisible if the will-maker or other person had died without a will.
Use of descriptor words for beneficiaries:

o Child: Law and Equity Act s. 61, including natural child born in or outside of marriage. Includes adopted child
but not step-children

But see Re Simpson (BC 1969) where a non-natural, non-adopted child (of testator’s wife) can be
treated like a child on disposition of testator’s estate if words in will (and surrounding circs)
establish this was testator’s intention.
o Nephew/nieces: includes the children of the testator’s siblings and the children of the testator’s spouse’s
siblings (Estate of Holmes (2007, BCSC))
o Descendants: encompasses only lawful descendants (would include children born outside marriage and
adopted children), but does not include “step-descendants” (e.g. step-children, step-grandchildren), unless
the will shows an intent that they were to take. (Lang Estate, 2011 BCSC)
Meaning of “eldest” (Amyot v Dwarris (1894 Privy Council))

If something is given to “issue per stirpes,” then if a person in one generation predeceases the testator, members of

the next generation take their deceased parent's share by representation.
o Because “per stirpes” means per line or split up btwn families of Bs, it doesn’t make sense to say “to my
children, per stirpes”. Each child is not a family of Bs. If only one generation is to benefit, then the term “per
stirpes” is meaningless.
o Instead of saying per stirpes, just say: To my children in equal shares but if any child predeceases me, the
share of the predeceased child to go to children of that child.
o Courts have had to try to infer testator’s intention where testator improperly used ‘per stirpes’ in Re
Karkalatos, Re Clark Estate, and Dice v Dice
If something is given to “issue per capita”, then each issue (children, grandchildren, etc) take equal shares.

per capita
per stirpes
(per head)
(per line)
1/3
1/4
1/4
1/4
1/4
1/6
1/6
1/9
1/9
1/9
= Deceased
Amyot v Dwarris (1894 Privy Council) – meaning of “eldest”
F: gift to “eldest son of my sister…and his heirs”. At time will made, sister had 2 sons but by death of testator, the older of the 2
sons had died and younger surviving son claimed gift.
I: What does “eldest” mean?
R: “eldest” means the first born child even if there are only two children and the first born is dead at the date of death of the
testator
Re Simpson (BC 1969) – Even where child not natural or adopted by testator, facts in will (“my son”) can
establish that testator intended to treat like a child on disposition of estate.
F: in will, testator referred to Robert as “my son” in appointment of executor and divided estate equally b/w 6 children. Robert
was child of testator’s wife but not a natural or adopted child of testator.
R: court held that gift to R was intended as interpretation of will, since Robert was described as a son and also testator treated
him as a son in their relationship
Lang Estate (2011 BCSC) – CL presumption that gift to “descendants” is only to lawful descendants
(excludes step-descendants unless they can show intent that they were to take)
Estate of Holmes (2007 BCSC) – gift to “all my nieces and nephews” operates in favour of the children
of the testator’s brothers and sisters and in favour of the children of his wife’s brothers and sisters; on
[p 24]
the facts this was testator’s intention
Re Karkalatos [1962 SCC] – “per stirpes” was used improperly, but court had to try to interpret what
testator intended (Helen: don’t use this case)
F: Will says: invest residue, benefitting 2 daughters, until one dies, then divide “among and between my grandchildren, per
stirpes, in equal shares”. One daughter (deceased) has 1 child. Other daughter (still alive) has 3 children.
I: where do you cut off and count the shares? It was unclear here from how testator used “per stirpes”
R: Level of the daughters. If a gift is made to a number of people of the same generation, but of different ‘stocks’ (families) –
then the stocks are found in their ancestors
Helen: don’t use this case.
Re Clark Estate (1993, BCSC) – interpretation of per stirpes
F: Testatrix left half of residue invested in trust for grandson Robert – pay him $1,000/month. At his death, to divide into equal
shares & tsf one share to each of George’s children (George was testatrix’s son), per stirpes. Now: Robert still alive. All 6
children of George still alive. If one of the 6 dies, leaving issue, then upon Robert’s death, does that issue get share of the
predeceased parent? Or does the share go to the deceased person’s estate?
R: Determining intention – the testatrix seemed to favour Robert – but made no provision for any of his potential children.
Thus, she probably did not intend to provide for any of George’s children’s issue. There was another error in the will –
possibility of other errors – maybe the per stirpes was accidentally left in.
Result: Court holds that the share will go to the deceased person’s estate.
Dice v Dice (2012 Ont CA) – ”gift to child J and child M, per stirpes” shows testator’s intention to benefit
his children’s children
F: Will of father said “on death of wife divide residue equally b/w son, James, and daughter, Marlene, per stirpes”. James
survived mother but predeceased father, leaving 3 children and a will where his second wife was sole beneficiary of the estate.
Marlene survived both parents
I: who takes James’ portion?
Court: considered the possibilities (goes to his sister; second wife) but decided his share goes to his three children (vesting at
date of testator’s death. Meaning given to ‘per stirpes’ is that if child predeceases his own spouse, then his children benefit
from his share).
Note: Proper drafting would be: to my “issue per stirpes”; or “to my children in equal shares but if any child predeceases my
spouse, the share of my predeceased child to be paid equally to those children of such predeceased child then surviving my
spouse”
Class Gifts (anti-lapse mechanism)



Gift to a class of persons included under a general description and bearing a certain relation to the testator or another
person
Right of survivorship: if one or more of the persons in the class die in testator’s lifetime, the survivors in the class
takes the gift equally amongst them
o Class gift is an anti lapse mechanism
At some point, the class "closes" and no more ppl can be considered to be in the class
Milthorp v Milthorp (2000) BCSC – naming beneficiaries and using ‘per stirpes’ makes it less likely to be
a class gift
F: “…residue to my daughter X and my son Y and to my husband’s children A, B, C, D, E, and F, in equal shares per stirpes”. D
died leaving no children. E and F died leaving children and grandchildren
I: Is residue 1) equally divided amongst testatrix’ surviving children; or 2) do issue of E and F take their deceased’s parent’s
share?
R: court held option 2 was correct interpretation, not a class gift. Per stirpes language indicated an intention to benefit their
issue. Then D's share fell to intestacy - lapsed gift.

if you name ppl then less likely to be interpreted as a class gift (eg. X and Y vs sons & daughters).

Class gift is always subject to contrary intention.

Would have been more clear as a class gift if will said "amongst all the children of my husband and me"
Re Hutton (1983 Ont HC) – class gift can be to children and their children
F: “residue in equal shares among my brothers and sisters, A, B, C, and E; should any of them predecease me, then their share
[p 25]
goes to their child/children”. After will was made, A & B die, both leaving issue. Then testator makes codicil to change executor
(originally B) and confirmed will. Then only child of A dies. (but A leaves a widow & grandkids)
I: What happens to A’s share?
R: This was a class gift (class being his siblings & their children if they die) and therefore A’s share gets divided between
remaining members – 3 shares - C, D, and B’s children.
Class Closing Rules (Re Bleckley & Shorrock Estate - class closing rules)


Rule: If gift of an aggregate amount to children as a class and share of each child is payable upon child attaining a
certain age, the period of distribution is the date on which the first child becomes entitled to his share and children
coming into existence thereafter are excluded
o class closes at the earliest opportunity, namely upon the entitlement of a member of the class to call on
the gift.
o rules apply to capital, but probably not to gifts of income
o rules are subject to a contrary intention in the document creating the gift
Four examples of Class Closing Rules
1)
Vested gift, no prior interest  “To all of the children of A”

If at date of death of testator…
o A is alive and has children - those children could call for possession and close the class to the
exclusion of further children A may have. To exclude rule, will should say “to the children of A
whether born before or after the date of my death”.
o A is alive but has no children - one outcome is that the class is closed as soon as A has a first child.
However, it is likely that all of A’s future born children will take.
2)
No contingency, prior interest  “To B for life, remainder to the children of A.”

If a child is alive at testator’s death, class will consist of that child and any children born during B’s life.

If there are no children of A alive at testator’s death, the class will consist of the children born during
the life estate to B.

If there are no children of A alive at testator’s death and none born during the life estate to B, the law
is probably that all children born to A after the date of the termination of the life estate to B will take
3)
Contingent gift, no prior interest  “To the children of A if they reach 21 years of age.”

If at testator’s death …
o A has child/children over 21 years but none younger - The class will then close in favour of those
existing children.
o A has some children over 21 and some or one younger than 21 - Class will close in favour of those
existing children. Distribution can be immediately made to children age 21 or over. Those under
21 will take if they reach 21 years. If they do not, the share will be shared by the other members
of the class. A’s children born between date of death and last child to reach 21 years do not take
as the class is closed.
o A has children. All of whom are under 21 years. Class will remain open until a child of A reaches
21 and then it closes. Any child born to A in that period will fall into the class and takes provided
he reaches 21 years
o A has no children. A then has a child who reaches age 21, with no other children being born to A
in the meantime. A’s child then can close class and take to the exclusion of other children born
thereafter.
4)
Contingent gift, no prior interest  “To B for life, remainder to those of A’s children who reach the age
of 21.”

NB: Earliest date for the closing of the class is the death of B, which is the earliest date on which a
distribution could be made to the members of the class.

If a child of A reaches 21 while B is alive, the class closes at B’s death in favour of all children who
were: (a) alive at date of testator’s death or born during B’s life estate; and (b) who have reached or
does eventually reach 21 years. If a child reaches 21 during B’s life estate and then subsequently dies,
that child’s interest has vested and that child’s share will be paid to his estate after the death of B.

If there are children alive at the termination of the life estate but none has yet reached 21 years, the
class closes upon the first child reaching 21 years. Children born within that period fall within the
class and take if eventually reach 21 years. Children born after the first child reaches 21 years are
outside of the class and do not take at all.

No children, none at the date of B’s death or A had children but who died before reaching 21 years.
Class will now close when any child born to A reaches 21 years.
[p 26]
Death (survivorship rules) & the Body
Presumption of Death

Sometimes - no death certificate (no body, missing, etc)
o Can get a declaration of presumed death, use Presumption of Death Act

Act also clarifies duties on personal representative, what happens if person found alive

Re Cyr, 2006 BCSC: followed Re Schmitt , 1987 BCCA in holding that in order to get an order of
presumption of death, it had to be shown on a BoP that the person was dead
o Can appoint a curator to manage missing person's property in mean time
Survivorship and Posthumous Births
Survivorship rules (Part 1, div 2 WESA)

Principle: The point of the rules is to not give it to someone who has died, but get it in the hands of the alternate

Note, rules are subject to whether contrary intention appears in the instrument

s. 5 **Fundamental Rule – when persons die simultaneously**
(1) If 2 or more persons die and order of death is uncertain, rights to property determined as if each had survived
the other

Purpose is to avoid the unnecessary double probate and administration of 2 estates

Example: A & B die together. For A's estate, presume B died first. For B's estate, presume A died first
(2) If 2 joint tenants die together, each person is presumed to have held their interest in the jointly owned
property as tenants in common

Result is that each deceased person would dispose of their half interest in their own estate and the
ordinary survivorship rule would not apply

s. 6 **General presumption – disposition of property on simultaneous deaths**
o If an instrument provides for disposition of property in the event that a person dies before or at the same
time as another person, or in circs where the order is uncertain, and the deceased and B die at the same
time or in circs making it uncertain, in order to effect that disposition, the event for which the instrument
provides is conclusively deemed to have occurred
o Eg. A & B die together

Will: my estate to C if B fails to survive me

Result: C takes gift, B is presumed to have died before A

S. 8 **Posthumous births** descendants and relatives conceived before but born w/in 5 days after intestate’s death
can inherit

s. 9 **Survival of beneficiaries**
(1) If B’s right to property is conditional on B surviving another person and B dies at the same time as the other
person or in circs uncertain as to timing, the B is conclusively deemed to have predeceased the other person.
o Example: A & B die together

Will: to B if B survives A

Result: B loses gift as B is presumed to have died first
(2) If property is left to 2 or more Bs or to the surviving B/B’s, and they all die together, property is divided into
equal shares and distributed to persons that would’ve been entitled if Bs had survived (unless contrary intention
appears)

s. 10 *five-day survival rule*- when we do know the order of death
o B must survive by 5 days to take benefit (otherwise presumed dead)

Rule altered where there are joint tenants and who survived who is unclear (2)
o This presumption only operates if will is otherwise silent and there is no contrary intention to this
survivorship rule applying
o Can draft around this, but minimum is 5 days
Insurance Act

presumptions
o Subject to contrary intention, B presumed to die before the insured person (s. 83 & 130)
o If no other named B, then funds go to the estate (s. 63)
The Body



Responsibility for disposing of body usually rests with personal representative, but can fall to others in order of
priority set out in BC Cremation, Interment and Funeral Services Act
o Failing to carry out obligation is a crime
o Disposal places governed by BC Act
Written wishes of the deceased person is binding on the personal representative - can be in will or in funeral K
Also,
[p 27]
(1) unclaimed bodies, the Anatomy Act, R.S.B.C. 1996. c.13;
(2) gifts inter vivos or on death of bodies or body parts, the Human Tissue Gift Act, R.S.B.C. 1996, c. 211.]
Disclaiming an interest (does it accelerate remainder interests??)









B is never forced to take a benefit
B can disclaim before taking the benefit but generally not after taking some of the benefit
Use: as a device to wind up a trust for tax & other reasons
Question is whether the disclaimer results in acceleration of remainder interests
Eg. A gives B a life interest, and “on B's death, property to be sold & divided equally among children then living. If a
child predeceases B leaving children, then their gift to their children.”
o (Last sentence is an "anti-lapse" provision)
o What if the B decides to give up his life interest? - ie. a disclaimer

Do the children take (acceleration), or do they have to wait until the B dies?

Do you eliminate the contingent interest of the grandchildren by accelerating the children's
interest?
In the Estate of Brannan (1991, BCCA) Court considers language in the will (especially clause allowing husband to
disclaim if he remarries), and surrounding circs to determine whether testator intended acceleration
Court determined testator’s intention was for trust not to be prematurely terminated (no disclaiming – she has to die
first, but no acceleration will occur). Preservation of capital for future generations, contemplated grandchildren.
(Giroday Trust case (1998, BCSC))
Regarding disclaimer, acceleration applies (disclaimer allowed) unless there is a contrary intention. Contrary
intention can be shown by considering/showing no ability to encroach on capital, reference to successive generations,
and large trust (dynastic concerns) (Re the estate of Creighton (2006, BCSC))
Disclaimer can be used to solve errors in the will (Re Grund Estate (1998, BCSC))
Estate of Brannan (1991, BCCA) – Disclaiming life interest in the residue – Court considers language in
the will, and surrounding circs to determine whether testator intended acceleration
F: Will gives income of residue to H for his lifetime, in trust, with capital to children on his death and grandchildren would take if
child predeceased H. If H remarries, trust ends and capital goes to children then living and grandchildren would take if child
predeceased the remarriage. H disclaims the life interest in the residue. At that time all 3 sons alive and have minor kids.
I: Does the disclaimer cause acceleration of children’s interests, or does dad have to die for them to take?

Petitioners (sons) position: acceleration applies (sons take equally now)

PGT’s position: no acceleration, protect grandchildren’s interests (assets held until father's death or remarriage
before division amongst sons & grandchildren if any sons have deceased)
Factors court considered in determining intention of will-maker:

sons young and no grandchildren born at date of will execution.

grandchildren born over lifetime without change to will

small estate

Husband’s unilateral ability to terminate trust through remarriage

power to encroach for benefit of sons but not remoter issue
R: court decided acceleration applied – primarily because the remarriage clause indicated that if H unilaterally ended his
interest, acceleration applied. If H could end it by remarrying, he should also be able to by disclaiming. Also when she made
will, the children were already adults, and she had seen 6 grandkids born while still alive, so she could have expressly prevented
acceleration if she wanted
Following case relates to disclaiming under a trust, but it applies to disclaiming under a will
De la Giraudias v. Louis de la Giroday Trust (1998, BCSC) – Court determined testator’s intention was
for trust not to be prematurely terminated (no disclaiming). Preservation of capital for future
generations, contemplated grandchildren.
F: “Income from trust to Ruth for her lifetime. On her death, trust property to settlor's children if aged 25 or over. If any child
dies before reaching 25 leaving children, grandchild gets income from deceased child's share.” Ruth is 82 yrs of age and wants
to disclaim
I: would the interests accelerate to the kids, allowing them to wind up the trust?
R: No acceleration - the settlor did not intend the trust to be prematurely terminated. Bs have to wait until Ruth's death to
determine the proper distribution

Intention found based on:
o No encroachment on capital during term of trust and no unilateral ability by Ruth to terminate the trust
o Recital language in trust expressed desire to benefit "wife, children, and others" suggesting successive
[p 28]
o
o
generations
Large value of estate indicates dynastic concerns
Trust included a rule against perpetuities which indicates an intention that grandchildren might get a vested
estate
Re the estate of Creighton (2006, BCSC) – Regarding disclaimer, acceleration applies unless there is a
contrary intention.
F: “Residue in trust for benefit of son (69yrs) and daughter (68yrs) and grandchildren. On death of last surviving child, residue
divided equally amongst grandchildren then living. If any grandchild predeceases child, great-grandchildren would share equally
the deceased grandchild's portion.”

Son and daughter wished to disclaim in favour of their own children

There were 9 great-grandchildren alive at time will was made; 10 at time of petition with more expected

Brother and sister asked court to vary the will and pay out the estate, so they could pass it onto their own children.
R: Acceleration applies unless there is an intention to the contrary.

Factors to consider as to whether acceleration was intended
o Encroachment on capital permitted? If not, indicates an intention to preserve the capital & defer ultimate
distribution until death.
o Any reference to successive generations? If so, then indicates an intention to benefit those later
generations
o Trust value large? Dynastic concerns for remoter issue beyond providing for those immediate, named Bs
o Is there a provision for premature vesting to protect against the rule against perpetuities?
Court: I can find no contrary intention in the will itself or the surrounding circumstances that would prevent the doctrine of
acceleration from applying. The children should be allowed to disclaim their respective interests, with the result that the
residue will vest immediately in their children, the testator’s grandchildren.
Re Grund Estate (1998, BCSC) – how to use disclaimer to solve errors
F: House valued at 225k - left in mother's will to C & L but each to pay one half of value of house (112.5k) to their other sibs, J &
Li. Residue of $108k left to 4 children equally. Under these provisions, J & Li would get 139.5k each while C & L would each only
get 27k from the residue and a house that they have paid fair market value for.

Disclaimer by C & L solves drafting error - ie give up the house which goes back into the residue.
Execution of Wills (formal requirements)
Part 1 – Making and Altering Wills



Must will be written/on paper?
o Requirement of will being “written” or on paper is slowly fading (s. 37 requires that it is in writing)
o s. 46 of WESA defines document to include electronic files – objections to this trend don’t really hold water,
though still some technical issues to be addressed
o Some Cdn jurisdictions (everywhere except BC, NS, & PEI) allow for “holograph” wills – written by the willmaker & signed by the will-maker, no witnesses required
Will may be amended by an alteration on the actual will, or by codicil (is defined as a will under WESA, so must follow
same formalities)
Burden is on propounder of the will to prove due execution (Vout v Hay, 1995 SCC)
Key provisions in WESA

s. 1 Def’n of “will-maker’s signature” - includes a signature made by another person in the will-maker's presence and
by the will-maker's direction, and the signature may be either the will-maker's name or the name of the person
signing.

36 – 16 yrs of age or older required

37 - how to make a valid will
(a) Must be in writing
(b) Be signed by the will-maker at the end in the presence of 2 witnesses, or signature needs to be
acknowledged by the will-maker in the presence of 2 witnesses (Another person can sign a will for you and it
can be valid)
(c) 2 Witnesses must sign in the presence of the will-maker
(2) will that does not comply is invalid unless (a) court orders it to be effective under s. 58, (b) it is recognized as valid
per s. 80 (valid per other law (domicile, place will maker died, etc.), or (c) it is valid under another provision of this Act
 good practice is to use an attestation clause, affidavits of witnesses, and get everyone to initial each page
[p 29]

38 - will by members of military forces
Curing Deficiencies


s. 39 - clarification of doubt about signature placement (aimed at saving a will where testator signed in a weird place)
s. 58 - court order curing deficiencies
(2) On application, the court may make an order under subsection (3) if the court determines that a record,
document or writing or marking on a will or document represents (George v. Daily)
(a) the testamentary intentions of a deceased person,
(b) the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the
deceased person, or
(c) the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a
document other than a will.
(3) Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court
may, as the circumstances require, order that a record or document or writing or marking on a will or document
be fully effective as though it had been made
(a) as the will or part of the will of the deceased person,
(b) as a revocation, alteration or revival of a will of the deceased person, or
(c) as the testamentary intention of the deceased person.
Note: Testamentary intentions may include a consideration of competency (Wesekowski v Wesekowski (2003, Man QB)
George v. Daily (1997, Man. CA) – Wills Act allows court to dispense w/ any or all formalities as long as
doc (ie. a letter) represents will-maker’s testamentary intention. Defines Testamentary intentions
F: Will-maker wanted to change will. Spoke to accountant who wrote letter to lawyer. Met with lawyer. Before formal will was
drafted, will-maker died. Is the letter a testamentary doc?
R: Formal requirements serve evidentiary, cautionary, uniformity & protective functions. “Testamentary intention” is not just
an expression of how property should be distributed, it needs to represent a deliberate, fixed and final expression of the willmaker’s intention as to the disposal of property on death. Testator needs to be aware that there is a will. “It” has to
demonstrate testamentary intention.
BUT instructions for a will CAN be a good will in certain circs – usually happens when someone is close to passing away.
Re Nerstine Estate (2012, SKQB) – Substantial compliance: Need at least some attempt at execution of a
formal will. Need at least a signature, esp where testamentary intentions not clear (Stricter approach)
F: Doc not signed by anyone
R: There must at least be some attempt at creating a properly executed will.
The Will-Maker’s Signature or Acknowledgement

s. 39 - clarification of doubt about signature placement (aimed at saving a will where testator signed in a weird place)
Re Wagner (1959, Sk Surr. Ct) – will’s validity (where testator only signed at top of page) saved by fact
that testator signed envelope enclosing will
F: Doc signed at the top by will-maker & witnesses, envelope signed by will-maker (& witnessed).
I: is the validity of the will saved by the fact that the testator signed the envelope, sealed in which was his last will and
testament whereupon he only signed at the top?
R: Sig on the envelope was last act of testator in making will; why else would he sign the envelope; will is fair and no one
disputes it → will valid.
Re Bradshaw Estate (1980, NB Prob. Ct) - Shape etc of signature not important (and witnesses present)
F: Testator on deathbed, wanted to sign codicil, could only make 2 diagonal marks, died.
Re White (1948, NSSC) – Help with signature ok if testator already trying to sign
F: Testator had a stroke, tried to make a mark to sign will, but needed help
Peden v. Abraham (1912, BCSC) – “Help” with signature not ok if testator was not able to
consent/object at the time. Has to demonstrate intention to sign.
F: Testator wanted a will, but when lawyer arrived, too weak to take interest in it. Indicated that he could sign, but when taking
the pen, couldn’t sign. Doc held his hand to sign. Died 15 min later.
[p 30]
R: Testator didn’t ask for help, couldn’t consent or object → invalid sig. Will-maker has to know what it is he’s signing and
demonstrate intention to sign.
Hsia v. Yen-Zimmerman (2012, BCSC) – It was argued that will was invalid for failing to meet due
execution formality (a witness’ signature was unproven). Highlights importance of attestation clause in
the doc. Presumption of due execution if will appears duly executed on its face.
F: Will was signed by two witnesses, and by the testator. Signatures appeared under attestation clause:
“SIGNED, PUBLISHED AND DECLARED by the above-named Testator, CHESTER HUGH YEN, as and for his Last Will and
Testament, in the presence of us, both present at the same time, who at his request, in his presence, and in the presence of
each other have hereunto subscribed our names as witnesses”

One signature was by lawyer – was proven by the law society as lawyer had since died

Second witness signature was not proven. Her identity is unknown. There is no evidence that she was known to the
deceased or to any member of his family.

Signature of will-maker was identified by a surviving daughter.
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Defendants (who had not been left anything under the will), argued that since there was no evidence as to the third
signature, or any evidence that the subscribing witnesses were present together and actually witnessed testator
signing, that the plaintiff had not proven due execution.
Issue: is the will valid?

if a will on the face of it appears to be duly executed the presumption is that all acts have been done rightly

Court holds that even though it is lacking proof of one of the formalities (that the unknown witness signed as a
witness and did so in the presence of the other witness and the testator), it can be inferred from the proven facts
that the requirement was met, and it is open to the court to do so.

Further, there was no evidence which casts due execution into doubt; indeed, what surrounding evidence there is
tends to support the due execution of the will.

Court holds that it is satisfied that will was executed in a matter that complied with wills legislation.
Ball v Taylor (1999, BCSC) – Witnesses don’t have to witness the will-maker signing the will as long as
will-maker sufficiently indicates to them that the will/sig is theirs
F: Testator told co-workers the doc was his will and asked them to witness. He hadn’t/didn’t sign in front of them. Will was held
valid.
Note: presumption of due execution
Witnesses


s. 40 – witnesses to wills (must be 19, can witness even if receiving a gift, BUT gift may be void under s. 43, will not
invalid b/c witness was or became incapable of proving the will)
Re Brown – have both witnesses present at the time the will is being signed
Re Brown (1954, Ont Surr. Ct.) – Testator must sign/acknowledge sig in front of both Ws at the same
time. Then W’s sign after this. But they don’t have to sign in each other’s presence. But see Ball v Taylor
F: Testator signed, witnessed & signed by W1. Then both went downstairs & testator acknowledged her sig, said it was her will,
and W2 signed.
R: Testator’s sig must be made/acknowledged in front of both Ws at the same time, then both Ws have to attest & sign (after
testator’s sig/acknowledgement). But Ws don’t have to sign in the presence of each other. So this will is invalid.
Re Wozciechowiecz (1931, Alta App Div) – testator must actually see the Ws sign.
F: Testator was very ill when he made the will. He signed in his hospital bed. Lawyer signed, & another patient in the room
signed. While the Ws were signing, the testator was turned towards the wall and didn’t actually see them sign though they
were in the same room.
R: Most cases say the testator must actually see the Ws sign. One case (Newton v Clarke) says testator could have seen if he
wanted to, & they were in the same room which satisfies “in the presence of”. Here, testator didn’t see, and couldn’t have
turned if he had wanted to. Invalid will.
Incorporation by Reference (Wickstrom doesn’t recommend this)


Sometimes testators want to give elaborate instructions – the best way to do this is to give those properties
outright to one of the beneficiaries, and then ask them in a side letter to give each item to each intended person.
Another option is to list it all out in detail in the will. If you want to change that list, you have to do an
amendment/codicil to the will (kind of a hassle, high probability of mistakes/lapse, etc.)
[p 31]
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Another option is to incorporate by reference to the list (Wickstrom doesn’t recommend this). Court will worry that
this document wasn’t executed in compliance with formal requirements. So the court gives rules about validity,
discussed in Jackson case.
Re Jackson (1985, BCSC) – Requirements for Incorporation by reference & admissibility of parol ev
F: Will #1 made; then memorandum; then will #2. Will #1 did not mention the memo; will #2 referenced a memo
R: Parol ev was admissible to determine whether the memo mentioned in will2 was the memo in question. Though it is
considered a codicil to her will1, she did review it and decided to keep its terms when making will2. So memorandum is
admitted into probate along with will2.
Notes: For incorporation by ref, the doc must: (1) be in existence when the will is executed; (2) be described as then existing;
(3) be described so it is possible to ascertain the doc; (4) the will must not state that the doc is not to form part of the will. (if
these met, then document can/will be incorporated in the will)

Parol ev – admissible when the will itself is disputed, but not admissible to explain the terms in the will. Court:
Codicils & Alterations
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
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Short of revocation and a complete redrafting, a will may be amended by a codicil or by an alteration on the face of
the will.
o Codicil – separate document in which you refer to the will. You can add or change a provision
o Alteration – amendment to the will

Codicils and alterations fall within the definition of will in WESA, and so the law on the making of wills applies equally
to them (same execution requirements)

S. 54 (1) To make a valid alteration to a will the alteration must be made in the same way that a valid will is made
under s. 37
(2) an alteration to a will is valid, if the signature of the will-maker to the alteration, and the witnesses to that
signature of the will-maker, are made
(a) in the margin or in some other part of the will opposite to or near to the alteration, or
(b) at the end of or opposite to a memorandum referring to the alteration and written in some part of the will.
(3) alteration not made in accordance with this section is ineffective
 You would only do an alteration if you were not able to do a codicil in the office
S. 58(4) If an alteration to a will makes a word or provision illegible and the court is satisfied that the alteration was not
made in accordance with this Act, the court may reinstate the original word or provision if there is evidence to establish
what the original word or provision was.
In the Estate of Oates (1946) – presumption that alterations made on the face of the will were made
after execution (not part of original will), but can be rebutted by evidence
F: Solicitor made will for testator, leaving residue to 2 sisters. 1 sister died. The testator copied word for word the old will, but
leaving residue to the surviving sister, and also changing the executors (as the original had died). The words “and personal”
(btwn “real” & “estate”) were added in btwn lines. Should that be part of the will? (original said “real and personal estate”)
R: Alterations made on the face of the will are presumed to have been made after the will was executed. But, judge looked to
other ev of intentions by the testator. Found that she didn’t want to change anything except for residual B & executors. Found
that she was a very careful person, and probably wrote in the 2 words prior to execution. Extra words were a part of the will.
In the Goods of Itter (1950) – if alteration invalid, does the original will stand?
F: testator glued slips of paper over some bequests in a codicil. Slips of paper had new amts on them. Testator had initialled the
slips of paper but not attested, so they are invalid. Pl’s argued that if the slips are invalid, then the original writing should stand.
R: Found “that it was the intention of the testator to revoke the part of the bequests covered by the slips only if new bequests
were effectually substituted”.
Part 2: Witnesses as Beneficiaries

43 – Gift to witnesses (usually void)
(1) Unless court otherwise declares under subsection (4), a gift in a will is void if it is to
(a) a witness to the will-maker's signature or to the spouse of that witness,
(b) a person signing the will by the will-maker's direction, or the spouse of the person signing, or
(c) a person claiming under a person, other than the will-maker, referred to in paragraph (a) or (b).
(2) Relevant time for determining whether someone was a spouse in (1) was at the time will was made
(3) if gift is void, remainder of will is not affected
(4) On application, the court may declare that a gift to a person referred to in subsection (1) is not void and is to
take effect, if the court is satisfied that the will-maker intended to make the gift to the person even though
the person was a witness to the will.
[p 32]
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(5) Extrinsic evidence is admissible for the purposes of establishing the will-maker's intention under (4).
Voided gift (when it is a portion of the residue) falls to intestacy (Jones v Public Trustee (1982, BCSC))
Remember, don’t act as witness if you’re taking under the will (you’re likely to lose your gift)
Re Cumming (1963, Ont HCJ) – a sale of property for inadequate consideration can also be considered a
gift, and invalidated if purchaser or their spouse witnessed will
F: Testator set out in his will that his property would be sold to friend Erley for certain amt. Property would be worth 5k+ &
selling price would be 1k. But Erley’s wife witnessed the will – so if this is a gift, then would be invalid.
R: Court found sale was for inadequate consideration (ie gift) and provision in will was found invalid
Re Ray’s Will Trusts (1936) – trustee receiving gift can attest. Also W can be a member of the
community which benefits from the trust.
F: Nun in a convent left her property to the person who, at the time of her death, is abbess of the convent. Both Ws were other
nuns but not the abbess at the time of execution. When testatrix died, one of the Ws had become the abbess.
R: It is ok for a trustee who receives the gift to have attested to it. Abbess is trustee of community fund. But both nuns are Bs of
the community fund – does this make the gift void? No. An attesting W can, as a member of a community, get a benefit in some
way without engaging the rule.
Re Royce’s Will Trusts (1959) – timing of beneficial interest: at the time of the attestation, did W have a
stake.
F: 2 executors & trustees listed in the will. 1 died, & the surviving executor appointed def, a solicitor, to be the replacement. Def
had witnessed the will. In the will, there were remuneration provisions for executors & solicitor-trustees. Did this constitute a
benefit under the will which made the will invalid because the def had witnessed it?
R: Question should be: At the time of the attestation is any beneficial interest given to the attesting witness under the
instrument the execution of which he is going to attest? Why? Doctrine of novus actus interveniens – some intervening event
gave the def his “benefit”. & otherwise wouldn’t support the objective of the provision (protecting a weak testator who, when
presented with a will by someone with substantial interest in it – signs). Also determining whether someone is a spouse is
consideration of the time the will is made – would be inconsistent.
Gurney v Gurney (1855) – B’s gifts under will not invalidated by their witnessing codicils to will. However
in practice that’s not really the case b/c the codicil republishes the will as of the date it’s made. This case
is an odd exception that’s out there.
F: Testator had left some $ to F, and share of the residue to T. F & T didn’t witness his will, but witnessed 2 later codicils. One of
them revoked some gifts which increased the residue.
R: F’s gift is ok – must be the same instrument giving the gift. T’s gift is ok – can’t read the revocation of gifts to mean that T got
a beneficial devise, etc.
Anderson v Anderson (1869) – B witnesses original will, but remedied by properly executed codicil
F: G was a B, but his wife witnessed the original will. Testatrix later made a codicil, witnessed by 2 others. Since a codicil repeats
& confirms the original will, does G’s gift stand?
R: Yes, gift stands. New witnessing cures previous conflict issue. The “evils which the statute intended to prevent” can’t arise –
the codicil republishes the will & testatrix re-confirmed her wishes. Also testatrix could have intended to remedy her 1st
mistake by making the codicil.
Jones v Public Trustee (1982, BCSC) – the voided gift (when it is a portion of the residue) falls to
intestacy
F: Residue to go in equal shares to A, B, & C. A and her husband witnessed the will, so her gift fails. But what happens to her
gift? Could either split the residue into 2 and divide btwn B & C (read will as if A’s name wasn’t there), OR could split residue
into 3, a share each to B & C, and the last share falls to intestacy (read as if A’s name is in will).
R: Should take 2nd approach – A’s portion should go to intestacy.
Incapacity Planning
Several options available (Adult Guardianship and Planning Statutes Amendment Act, 2007 (+ other amendments – “2007 Act”)
[p 33]
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A person, while capable, could make an enduring power of attorney, conferring on an attorney powers to handle
legal and financial affairs should that person become incapable;
o Power of Attorney Act, + changes from 2007 Act
A person, while capable, could make a representation agreement, conferring on a representative powers to deal with
financial, healthcare or personal affairs … should that person become incapable;
o Representation Agreement Act, + changes from 2007 Act
A person can make an advance directive: a document in which the person gives express directions about how health
care is to be given, or not given, if that person becomes incapable. (from the 2007 Act)
A Court can appoint a committee to handle financial or personal affairs or both of a person found to be incapable;
o Patient’s Property Act
Enduring Powers of Attorney
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CL allows “Donor” to give “Attorney” power to do inter vivos transactions with their property (financial
transactions)
o Their relationship is principal & agent while donor is capable, and fiduciary relationship when donor
becomes incapables (McMullen v Webber (2006, BCSC))
Attorney’s powers can be general, narrow, or limited to specific transactions
By CL, the POA ceased to be effective if the donor became incapable. Legislation changed this by creating enduring
POAs. In BC, legislation enacted in 1983 allowed for EPOAs – now in the Power of Attorney Act, RSBC 1996, s. 8 –
2007 Act made some changes
o Enduring POA – capacity planning tool. Means that POA endures incapacity
S. 11 and 12: Only adults (capable of understanding the nature & consequences) can make an EPOA
o Adults are incapable of making an EPOA if they cannot understand all of the following:

their property and its approximate value;

obligations owed to dependants;
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the scope of authority granted to the attorney;
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the fact that a failure by the attorney to manage property prudently may result in a decline its
value;
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the possibility of misuse of the attorney’s authority;
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the fact the power may be revoked;
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any other prescribed matter
S. 18 Who can be attorneys?
o Individuals

Can’t be someone paid to look after the donor unless a child, spouse, or parent

A minor who is named as attorney can’t act until they are an adult
o PGT
o a financial institution authorized to carry on trust business under the Financial Institutions Act
If 2 or more attorneys (s. 18(4) & (5)):
o Can assign same or diff areas of authority
o If same area, presumed co-attorneys acting unanimously.
Making an EPOA (ss. 16, 17):
o EPOA must be in writing, signed & dated by donor in presence of 2 witnesses who also sign (1 witness if
lawyer/notary)

Witness can’t be attorney

Another person may sign if directed by donor
o For land – Land Title Act also has requirements (parts 5 & 6)
o Attorney must also sign in presence of 2 witnesses– can’t act until then

Without sig, attorney is not required to give notice that he is unwilling to act
o Must include provision in the POA that it is an enduring POA
An EPOA is effective on the latest of (ss 26, 27):
o the date by which the adult and an attorney has signed;
o the date stated in the power to be the effective date;
o the occurrence of an event specified in the power as bringing the power into effect (“springing power”)
Altering an EPOA (s 28):
o Capable adult can change according to same procedures as creating it
o After making changes, donor must give notice to attorneys
o It’s a criminal offence for an attorney under an EPOA to do something contrary to the EPOA
Revoking an EPOA (s. 28) – written notice to attorneys required
o Otherwise, attorney’s authority ends when EPOA is terminated (s. 30), attorney dies, becomes
bankrupt/incapable, etc (s 29)
[p 34]
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A POA cannot authorize attorney to do something illegal (s. 15) and cannot authorize attorney to make/change the
donor’s will (s.21)
The attorney can’t delegate decision making authority (exceptions in investment matters)
Gifts and loans made/received by attorney subject to EPOA conditions (s. 20(1)(2)(3))
Duties of attorney (s. 19, 33) – act honestly & in good faith, exercise care, skill, & diligence of reasonably prudent
person, etc
Attorney not entitled to compensation unless EPOA authorizes it but may be reimbursed for expenses(s. 24)
Resignation of attorney (s. 25) – must be given to donor or close relative/friend if donor incapable
Attorney not liable for loss/damage if duties are met (s.22)
Existing & extrajudicial POAs (ss 42, 38)
McMullen v Webber (2006, BCSC) - POA must be exercised with the instructions of donor unless the
donor is incapable – foolish or improvident behaviour of donor not enough for attorneys to intervene
F: Elderly father started sending money to a woman he met in Hawaii. 3 kids wanted to protect his assets. 2 are attorneys –tsf
the dad's condo to their husbands only to protect the asset, not to take it. Father takes action against kids.
R: POA must be exercised with the instructions of donor unless the donor is incapable (foolish or improvident is not enough to
allow you to intervene)

Capable donor = attorney is agent

Incapable donor = attorney is fiduciary
Can’t use POA to protect against stupid acts
Easingwood v Cockroft (2013 BCCA) – Attorneys validly created an alter ego trust that mirrored
testator’s will; not equivalent to making a will (which they’re prohibited from doing).
F: 2 kids have joint POA over dad. Dad remarries & makes a new will. Dad becomes incapable. 1 kid becomes ill - thinks he
might die before the father. Kids try to create alter ego trust for the father - they (or the survivor of them) are the trustees.
Then if one dies, still ok. Trust stated that the income during life of dad goes to dad. If father dies, then provisions mirror the
dad’s will. Spouse argued that attorneys can't make trusts b/c Attorneys cannot make a will for the donor after the donor
becomes incapable -- by putting funds into trust, is essentially making a testamentary instrument for the father.
R: Court did not accept spouse’s argument & found that the kids did it in good faith; followed dad’s existing will (didn’t make it).

Attorneys who put donor’s assets into an alter ego trust acted within scope of authority granted by donor. Terms
of alter ego trust were identical to donor’s will in relation to the distribution of assets on death.
Houston v Houston (2012, BCCA) - can revoke POA by conduct, but need to have clear and unambiguous
conduct. Execution of later POA does not automatically revoke earlier POA (use express language)
F: Donor appointed wife #2 and son as EPOA to act separately. Then he made a 2nd EPOA - appointed wife #2, and son to act
only if wife #2 was unable or unwilling. Son used 1st POA to sever joint tenancy that the father held with wife #2 according to
father’s wishes that his estate be preserved.
R: There is no presumption that a later POA revokes all earlier POAs. Onus is on the person wanting to show that the earlier
POA has been revoked. Here, evidence does not show earlier POA was revoked. Court rejects wife’s argument that the act
amounted to creating a testamentary direction.
Representation Agreements (two types)
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Representation Agreement Act – allows people to appoint representatives to deal with their personal, health care,
and sometimes financial, affairs should they become incapable
Two types of representation agreements:
o Section 7 RAs – personal care, health care, & limited financial matters
o Section 9 RAs – personal care & health care only
Section 7:
o Who may make a s 7 RA? (s. 3, 4, and 8)
o A capable adult may make a section RA.
o An adult is presumed to be capable, unless the contrary is established. In the case of section 7 RAs, the test
of capability is set out in section 8 (test – adult may be considered incapable of doing many other things but
still be able to make the RA; subsection (2) provides relevant factors to consider)
o Scope of section 7 RA includes (s. 7, 11):

Personal care (incl admission to care facility)

Routine management of finances (eg. paying bills, depositing cheques, purchase of food)

Major & minor health care, with some exceptions (eg. re: refusal of life support)

Legal matters (except divorce)
[p 35]
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Section 9:
o Adult must be capable of understanding nature & consequences (ss., 4, 9 and 10)
o Scope of section 9: Personal care & health care
Executing an RA (s 13):
o In writing, signed by adult & 2 witnesses (same stipulations as POA)
o Representative must sign – RA not effective until all RAs (if acting jointly) or at least 1 RA (if acting
independently) have signed
o For section 7 RAs – reps have to complete a certificate in the prescribed form
o When an RA is effective  follows same rules as POA
S. 32(4) allows court to order an RA invalid solely based on improper execution
Who may be a representative (s 5):
o Cannot be someone paid to provide personal/health care unless child, spouse, or parent
o Credit union or trust company can be a rep only if the RA does not include personal/health care
More than 1 RA (ss 5, 6) – same as POA
Duties of rep – s. 16 – must follow wishes of the adult when possible
Rep can apply to PGT for guidance or court for interpretation of clause
Naming a monitor: mandatory if RA is a section 7 RA giving powers over routine financial matters (some exceptions),
otherwise optional
o Monitor needs to be 19+
o If monitor dies, becomes incapable, resigns, etc, then authority of the representative is suspended until a
new monitor is appointed (s. 21) or the court decides no monitor is required
o Duties & powers of monitors – s. 20
Advance Directives
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Health Care (Consent) and Care Facility (Admission) Act, RSBC 1996, part 2.1 governs advance directives
An advance directive is a written instruction given by a capable adult that complies with Part 2.1 and that gives or
refuses consent to health care in the event the adult is not capable of giving instructions at the relevant time
o Can set out a bunch of specific scenarios, and what level of health care you want to be given in those
scenarios
An adult may make an advance directive unless the adult is incapable of understanding the nature and consequences
of the proposed advance directive. (19.1(1)).
Scope of advance directive: (s. 19.2)
(1) Subject to subsection (2), an adult may in an advance directive give or refuse consent to any health care
described in the advance directive.
(2) An instruction to do anything that is illegal, or to omit to do anything required by law, is invalid.
The directive must indicate that the adult knows that health care may not be provided where the directive refuses
consent; and can’t choose another person to make decisions for you (s. 19.4)
A directive must also deal with any other matter which may be prescribed by regulation.
Execution (s. 19.5): signed with 2 witnesses by a capable adult, same stipulations as POA
Can change/revoke AD unless incapable of understanding the consequences (s. 19.6)
When an advanced directive may be used (s. 19.7):
o In the opinion of the health care provider, the care is needed
o The adult is incapable of consenting to/refusing care
o The health care provider is aware of the directive & does not know of a personal guardian or representative
who has authority

The health care provider only has to make reasonable efforts to determine if there is a directive,
guardian, or representative
When an advanced directive may not be used (s. 19.8) – health care provider must obtain substitute consent for
incapable adult:
o Directive doesn’t clearly address the health care in question
o The adult’s wishes, values or beliefs in relation to the health care have significantly changed since the
directive was made and the changes are not reflected in the directive
o Since the directive was made, there have been significant changes in medical practice that might
substantially benefit the adult, unless the directive expressly states it is to be applied regardless of changes
in medical practice
If an adult has a directive & an RA (s. 19.3)
o Representative rules when matter is within the authority of the rep (but directive should be treated as the
wishes of the adult for purposes of s. 16 (substitute consent/directions wrt healthcare)) UNLESS RA states
that directive trumps rep
Patient’s Property Act
[p 36]
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Provides for the appointment by a court of what it refers to as a “committee” to act on behalf of a person who falls
under its definition of “patient”
o “Paragraph (a) patient” = person who has been declared to be incapable of managing his or her affairs in a
certificate signed by the director of a mental health facility or psychiatric unit under the Mental Health Act.

S. 11 indicates when a paragraph (a) patient ceases to be a patient – includes being discharged
from mental health facility, etc
o “Paragraph (b) patient” = someone declared by a judge to be incapable of managing: his or her affairs;
himself or herself; or both his or her affairs and himself or herself. Section 2, 3 and 5 set out the procedure
to be followed on an application, or if ordered in a trial, to determine if a person is incapable
o After 1 yr, can apply to court to be declared capable again. Can only apply once/yr except with leave of the
court (s. 4)
Committee of estate (like POA) vs committee of person (like representation agreement)
Scope of committee’s powers:
o Paragraph (a) patient: all rights & powers regarding estate that the patient would have, if capable
o Paragraph (b) patient:

Declared incapable of managing his or her affairs: all rights & powers regarding estate that the
patient would have, if capable

Declared incapable of managing himself/herself: committee has custody of the patient
Safeguards – committee has to post bond (get insurance against assets at their disposal)
Duty of committee (s. 18) – benefit patient & family
Reasonable compensation allowed unless it would place undue hardship on the patient (s. 14)
For 3rd parties, actions of the committee while acting under the PPA is the same as if the patient had done it (s. 21)
If the PGT isn’t the committee, then a court, on application, may rescind an appointment while a person is still a
patient (s.6), or give a discharge to the committee of a person who has ceased to be a patient (s. 12)
Paragraph (a) patient: every POA and every RA, so far as it relates to property, is suspended until the PGT decides if it
should or the original POA/RA should manage the patient’s property.
Paragraph (b) patient, every POA, and, unless the court orders otherwise, every RA made by the patient, so far as it
relates to property, is terminated
On death of the patient: committee retains powers of committee & personal rep until letters of probate/letters of
administration are issued
In both of the following cases, the families wanted to reduce tax.
O’Hagan v O’Hagan (2000, BCCA) – Committees have power to do things for the benefit of the patient
and his/her family (including tax planning related to the estate). Apply reasonable and prudent business
standard.
Application to court to approve an estate freeze that would benefit patient’s sons on patient’s death. Patient was 89yrs old and
incapable; $10mm estate. Committee was one of patient’s two sons. They both agreed to the plan. Shares would be transferred
to a trust for patient’s benefit during lifetime with right to encroach for patient.
CA: authorized committee to implement the estate plan.

Committees don’t have to stick to “necessary” transactions as in the traditional sense. Committees have power to do
things for the benefit of the patient & his/her family – not simply to supply their needs. Act allows for the family to
be taken into account. Here, reorganized shares of company that the patient held so that at death, wouldn’t have
such large tax consequences.

Key factors: patient was really old and had irreversible incapability, trust allowed for him to have access to the funds,
trustee would be institutional/independent, large estate. Applying reasonable and prudent business person
standard – it made sense.
BC (Public Trustee) v Bradley Estate (2000, BCCA) – Applying standard of reasonably prudent business
person, it didn’t make sense for committee to gift assets out of patient’s estate
Application to court to approve a series of gifts from patient to husband and sons by committee of estate (husband) consented
to by patient’s family. Plan would reduce estate from $2.6mm to $800,000 and save significant US estate tax on patient’s death.
PGT opposed plan; BCCA did not give committee authority. Court distinguished from O’Hagan on the basis that the patient
was younger (65 vs 89) & condition could improve/deteriorate, and her money was being given away. Std of reasonably
prudent business person.
Intestate Succession

the government’s approach to distributing your estate
[p 37]



Intestacy can apply where:
o No will
o There’s a will but it only relates to certain assets (those assets won’t be subject to intestacy)
o Person to whom will was directed has died, and there’s no designated successor beneficiary, and there’s not
a person designated by statutory anti-lapse provisions
o There’s a will but it’s not validly executed and court’s not inclined to save it
o Or there’s a will that was validly executed but where person did not have capacity (or knowledge and
approval of the contents)  complete intestacy or partially valid but part of will falls out on intestacy
Partial intestacy is possible - ie there is a will that distributes part of the estate properly but not the whole estate
(usually happens when there is no "residue clause" or there is a drafting mistake)
Terminology
o Intestate heirs (not beneficiaries) - people who get something intestate

Who has status to claim as intestate heir?

Potential intestate heirs will attack status of existing will
o Administrator appointed by court has all the same duties as an executor
Key Intestacy Rules from WESA

Remember 5 day survivorship rule still applies
Division 1: Distribution of Estate when there is no will

s. 20 – … leaving a spouse but no surviving descendants (kids, grandchildren, etc.) - then everything goes to the
spouse

s. 21 - …leaving a spouse and descendants, spouse gets household furnishings & preferential share ((3) either 300k
share of the estate if all descendants are of the intestate+spouse, or (4) 150k if not all the descendants are of the
intestate + spouse)
(5) If net value of the estate < spouse's preferential share, then spouse gets everything
(6) If the estate is worth > spouse’s preferential share, the extra amount goes half to the spouse and half to the
descendants (s. 24 tells us how to split it up among the defendants)

s. 22 - 2 or more spouses – they can agree on how to share spousal share, or court will decide

Remember, per s. 2, a spouse is either by marriage, or from living in marriage-like relationship for > 2yrs
o They cease being spouses when

In the case of marriage, they live separate and apart > 2 yrs with one or both of them having the
intention, formed before or during that time, to live separate and apart permanently, or Divorce…

In the case of CL, one or both persons terminate the relationship.
o See Souraya v. Kinch where court had to decide whether someone was a spouse (provided list of factors),
and Gosbjorn v Hadley where court had to decide whether CL relationship ended

s. 23 - no spouse but descendants or relatives
(2) Goes to descendants.

If none, then up to intestate’s parents in equal shares or to the intestate’s surviving parent

If none, then to the descendants of the intestate's parent(s) (intestate’s siblings)

If this doesn’t apply, then to the parents of the intestate’s parents or else to their descendants in
equal shares
o See Table of Consanguinity
(3) For the purposes of this section, persons of the 5th or greater degree of relationship to the intestate are
conclusively deemed to have predeceased the intestate, and any part of the intestate estate to which those
persons would otherwise be entitled must be distributed to other descendants entitled to the estate
(4) does not affect intestate descendant’s ability to inherit even if they were of a greater degree
(5)(b) half-siblings count as full siblings (supported by Kishen Singh case)

s. 24 – Distribution to descendants – property divided into a # of equal shares equivalent to the # of surviving
descendants and deceased descendants who have left descendants surviving the person, in the generation nearest to
the intestate that contains one or more surviving members
o more or less per stirpes (first line of descendants inherit equal shares, and descendants down the line share
in the whatever was left to their branch)
(3) Distribution to descendants under subsections (1) and (2) as a result of an intestate's parent having
predeceased the intestate ends with the children of a brother or sister of the intestate. (nieces/nephews =
descendants?)

s. 25 – says these rules apply to partial intestacies

Hotchpot – if you see a clause in a will that says “equal distribution to my children, but for the purposes of that
distribution, bring into hotchpot all previous gifts given to my children”. Previous gifts and advances are added back
into the pot to determine the total, and then each child’s share is reduced by any gifts previously advanced to the
children
[p 38]


Under the Adoption Act, adopted children gain the status of children under their adopted parents but lose the status
of being children of their natural parents
o This is supported by WESA – adopted child can only inherit by will of natural parent, and vice versa (s. 3
WESA)
In addition to rights of preferential share, spouse has other rights (primarily related to the spousal home) set out in
Division 2 (ss 26 -35). Generally the sections set out that
o If the value of a spouse’s interest in the estate is > value of the spousal home, the spouse may elect to take
the home to satisfy, in whole or in part, the spouse’s share of the estate (s. 26(2));
o If the value of the spousal home > the value of the surviving spouse’s interest under s. 21, the spouse may
elect to pay the “estate” the difference in the values and keep the spousal home (s. 31, “option to buy”);
o In the circs provided for in the Act, a court may, inter alia, make an order vesting the deceased’s interest in
the surviving spouse (in a variety of forms – paying something to the other heirs, giving them a charge on
the property, granting them interest etc.) (ss. 33-35; s. 33 sets out requirements that must be met to allow
court to exercise this power).
Souraya v. Kinch (2012, BCSC) – in determining whether someone is a spouse for the purposes of WESA,
starting point is the parties themselves, and then consider if objective factors support that there was a
long-term marriage-like commitment b/w the two people. Holistic approach.
F: Billy Rai died intestate – his gf at the time, Kinch, obtained Letters of Administration to deal with his estate. Rai’s sister,
Souraya, sought to set aside the order granting K LoA on basis that she was not his “spouse”, and sought to have estate go to
Rai’s mother.
I: whether Mrs. K had been the CL spouse of the deceased, in accordance with the Estate Administration Act (which defined
that a person is a spouse if they “lived and cohabited with one another in a marriage-like relationship”) (WESA only says “lived”
with one another…)
Court:

Court held that K was not CL spouse of deceased. Starting point – do they consider themselves to be living in a
marriage-like relationship. Then consider evidence of surviving party. Take a holistic approach in deciding whether
or not they were spouses. Case provided list of factors to consider (below)

Evidence by K was unsupported and unreliable. Court relied on fact that deceased kept an apartment at his family’s
home and maintained his address there (for most official purposes), they kept their finances separate whereas
deceased had entered into legal and financial commitments with his family, deceased never referred to K as his
spouse, and K had no relationship with deceased’s family. While the Court accepted that K and deceased had a warm
and loving relationship, there were many factors that suggested a lack of a long-term marriage-like commitment to
each other.

extent to which each factor will be taken into account will vary with the circs of each case  there’s lots of flexibility,
lots of room to argue.
(1) Shelter: (a) Did the parties live under the same roof? (b) What were the sleeping arrangements? (c)
Did anyone else occupy or share the available accommodation?
(2) Sexual and personal behaviour: (a) Did the parties have sexual relations? If not, why not? (b) Did they
maintain an attitude of fidelity to each other? (c) What were their feelings toward each other? (d) Did
they communicate on a personal level? (e) Did they eat their meals together? (f) What, if anything, did
they do to assist each other with problems or during illness? (g) Did they buy gifts for each other on
special occasions?
(3) Services: What was the conduct and habit of the parties in relation to: (a) Preparation of meals,
(b) Washing and mending clothes, (c) Shopping, (d) Household maintenance, (e) Any other domestic
services?
(4) Social: (a) Did they participate together or separately in neighbourhood and community activities? (b)
What was the relationship and conduct of each of them towards members of their respective families
and how did such families behave towards the parties?
(5) Societal: What was the attitude and conduct of the community towards each of them and as a couple?
(6) Support (Economic): (a) What were the financial arrangements between the parties regarding the
provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)? (b)
What were the arrangements concerning the acquisition and ownership of property? (c) Was there any
special financial arrangement between them which both agreed would be determinant of their overall
relationship?
(7) Children: What was the attitude and conduct of the parties concerning children?
Gosbjorn v. Hadley (2008, BCSC) – Nature of a marriage-like relationship and how to determine when it
has ended – Test is whether there is a permanent mutual support commitment.
[p 39]
F: Testator had 2 daughters from first marriage. After divorce, had 12 yr CL relationship with G (lived together with G’s
daughter). G & her daughter spent some nights away (partially moved into another place). That month, the testator died. Was
G still a spouse?
R: Defn of a CL spouse is a person who has cohabited with someone in a marriage-like relationship for 2+ yrs. Test is whether
there is a permanent mutual support commitment:
1) If you asked each partner, whether they would by committed to life-long financial and moral support of their partner
if he/she had been disabled for life, and each would’ve said yes – then test is met.
2) If the answer to that question is unclear/elusive, then look to other, more objective indicators.
o Did the couple refer to themselves, when talking to their friends, as husband and wife, or as spouses, or in
some equivalent way that recognized a long-term commitment?
o Did they share the legal rights to their living accommodation?
o Did they share their property?
o Did they share their finances and their bank accounts?
o Did they share their vacations?
o In short, did they share their lives?
o And, perhaps most important of all, did one of them surrender financial independence and become
economically dependant on the other, in accordance with a mutual arrangement.”

Conduct & “reality” are more persuasive than subjective/conscious intentions (Takacs)
When does a CL relationship end?

“when either party regards the relationship to be at an end, and by his or her conduct, demonstrates in a
convincing manner that this particular state of mind is a settled one”

Here, ev was not enough to show that the testator had settled on ending the relationship. Some absences from the
matrimonial home ≠ separation.

separation is a difficult and confusing time. People may be sending out conflicting messages and may be conflicted
themselves about what they intend to do.
Re Kishen Singh (1957, BCSC) - the children of a half-sister take as though full nieces/nephews
Re Forgie (1948, Man KB) – intestacy rule saying that children of a brother/sister take if that
brother/sister is deceased means children take without the $ going through the brother/sister’s estate
Testator tried to leave property to his spouse that he would inherit as intestate heir. Court said no he can’t leave that to his
spouse, you can’t give your right to inherit to someone else. It’s a statutory right.
*Note, can’t distribute future possible inheritances through your will
Nature of a Will
Definition of “will” under WESA, s. 1

Includes a will, testament, codicil, an appointment under a will, anything ordered to be effective as a will under s. 58
(court order curing deficiencies) and any other testamentary disposition except (RRSP designations, life insurance
designations, etc.)
The Will

A will has no effect until a person dies. Thus, an intended beneficiary can't do anything to protect their right under the
will until the testator dies (Except with a testator who no longer has testamentary capacity)

Will is intended to be revocable

If you are dealing with a testamentary instrument, need to make sure it is formally and essentially valid
o Formal validity address through statute – needs to meet formal requirements or else invalid (Bird)
o But under WESA there are relief provisions for improperly constituted wills (see s. 58)
o Essential validity: Testator has to be of free will and mind - Have to understand what it is they're doing by
signing the will. Can’t be under duress, incapacity, undue influence, etc.

Testamentary freedom: Testator should be able to do with their property what they want. But this is subject to
statutorily permitted variation claims

Important components/provisions in will:
o Revocation (of prior wills)
o Appointment of executors (and alternates)
o Dispositive provisions - can be dangerous to identify specific assets (letter of wishes may be of help but not
legally binding)
[p 40]
o



Residue clauses (doesn't have to use the word residue; an effective will should deal with all the assets in the
estate)
o Powers of executor - ie. Power of sale (very important especially if they have to deal with trust assets as a
trustee)

If powers aren’t laid out, doesn't necessarily invalidate the will; many are presumed or provided
by the common law
o Guardians for children?
Precatory language (“I wish”, “it is my hope”) – not legally binding on the personal rep
Holograph wills
o wills that are wholly in the handwriting of the will maker, signed by them and not witnessed
o Invalid in BC (but valid practically everywhere in Canada)
o However curative provisions (in s. 58) of WESA may allow a court to render a holograph will valid
o Both wills in Heubner and Green were holograph wills
RSP B designations and ins B designations have special legislation - they are also testamentary but execution
formalities are different (simpler)
Testamentary or Inter vivos



It’s possible the court will find that something is actually a testamentary instrument and is rendered invalid by the
fact that it doesn’t meet statutory technical requirements (Bird)
Both Bird and Hutton consider whether the document has “Life and vigour” separate and apart from the provision in
question relating to a person’s death
Can always have two witnesses sign the document, to avoid failing formal requirements of a testamentary document
Bird v Perpetual Executors and Trustees Assn of Australia (1946, H.C. Aus) – If document is
testamentary, must meet formal requirements.
F: Deceased executes a doc under seal before dying to Mrs. B, instructing trustees/administrators to pay Mrs. B some money
after his death. Can Mrs. B get her money?
R: This is a duly executed sealed doc but bc it is testamentary, it must also meet formal req’ts under Wills Act
Notes:

Substance over form

A doc may not be testamentary if it takes effect immediately (ie while the person is still alive) but the enjoyment of
benefits are postponed until death of the person

Acknowledgement of indebtedness to a person might indicate that it is not testamentary, but the doc here was
accompanied by a direction to pay the amount on death, which is inconsistent with any immediate covenant to pay
the debt.
Hutton v Lapka Estate (1991, BCCA) – what makes something testamentary (promissory note from son)
F: Administrators of Mrs. L’s estate found a note regarding a loan to Mrs. L’s son. Son promised to repay testatrix $295K, wife to
pay out of his estate if he dies. In the case of Mrs. L dying, then the K was to be null and void. Mrs. L died.
Court:

Test for whether something is testamentary: if the person executing it intends that it shall not take effect until after
his death and it is dependent upon his death for its vigour and effect, it is testamentary.

This was a K which had immediate effect. Provision re: debt forgiveness might be considered testamentary if read in
isolation, but it did not alter the immediate effectiveness of the K. The provision was testamentary and failed to meet
formal validity requirements, thus it is ineffective.

Son was not required to repay the debt.
Conditional wills





All wills are conditional on someone's death, but other conditions may also be set out (though it’s not common in
professional wills)
Conditions are subject to public policy arguments
Gifts to beneficiaries are subject to them still being alive
In Hutton v Lapka Estate, court had to consider whether a note of indebtedness was really testamentary since it
included a provision contingent on the death of the obligor. Case sets out test for whether something should be
considered testamentary, and thus subject to formal requirements.
Did these conditions go to the heart of the will only effective if condition has occurred? In Heubner, no. Simply the
will-maker’s expression of his reason for making the will. In Green, yes – it was clearly a condition.
Re Heubner (1974, Man CA) – whether “In the event of my death (on this trip)…” makes will conditional
F: Before going on a trip, testator writes holograph will: “In the event of my death (on this trip) …”. Testator returns from trip &
[p 41]
dies 2 years later. No other will exists.
R: Language used by testator signified that he regarded the trip as the reason for making the will, rather than a condition for its
operation.

The court relied on case law setting out the principle that “ if the language used by the testator can by any
reasonable interpretation be construed to mean that the testator refers to the calamity and the period of time
during which it may happen, as the reason for making a will, then the will is not conditional”
Re Green Estate (2001, Nfl TD) – conditional wills (In Event Something Should Happen To Both of Us)
F: Mrs. G presents a letter written by the deceased, Mr. G & signed by both, for probate. Daughter agrees that the letter is
testamentary in nature, but not operational bc it was conditional on the death of both Mr. & Mrs. G. Letter started with “In
Event Something Should Happen To Both of Us.”
Court:

Unambiguous that the will depended on something (death) happening to both Mr. & Mrs.

The letter left nothing for wife, only kids. Must distribute by intestacy.
Two or more testamentary documents



Under CL, NO. You can have two or more documents which constitute your will but they stand together as one will.
(Douglas-Menzies v. Umphelby, 1908 Aus.) Equity does not allow a person to claim under a will, and against it.
(Douglas-Menzies).
o Might have a Canadian will and a Spanish will, but they’re read together (Rondel)
Rondel – Court held new Canadian will that revoked all previous wills, revoked Spanish will. Will in another jurisdiction
held to be previous version of ‘will’. Key point was lawyer didn’t do everything he could’ve/should’ve to make sure
testator didn’t have assets in other jurisdictions
Probate fee planning is one reason to have two wills
Douglas-Menzies v. Umphelby (1907 PC Aus) – A person cannot claim against a will and under it. Two
wills in two different jurisdictions are effectively one will.
F: testator died domiciled in Scotland – left property in Great Britain and Aus through separate wills under law of each place.
Wife opted to renounce her claim under British will so she could take under Scottish law. She also claimed amount left to her
under Australian will.
I: Can she renounce will in one jurisdiction, and try to claim under it in another?
R: It is against equity that any one should take against a man’s will and also under it.

There is only one will – two documents must be read together
Rondel v. Robinson Estate, 2011 ONCA – Situation in which testator had two separate wills under
Canadian and Spanish law. Court held that new Canadian will revoked Spanish will, even though lawyer
drafting it wasn’t aware it existed and that likely wasn’t what testator intended to do.
F: Robinson (testator) had a Canadian and Spanish will at death – her Canadian lawyer had been instructed to draft a new will
prior to her death that revoked all previous wills. He was unaware of the Spanish will which left property to Rondel. Affidavit
evidence of Rondel, the Canadian lawyer, and the testator’s life-long friend was tendered.
I: Did the new Canadian will revoke the Spanish will? Did the testator intend to revoke her Spanish will?
Court:

The CA ruled that the application judge, sitting as a court of construction, was to give effect to the testator’s
testamentary intentions as represented in the words used in the will.

The court should not consider direct extrinsic evidence of intent.

The key thing was that the new will, on the face of it, revoked all previous wills;

also the lawyer didn’t do everything he could’ve/should’ve to make sure testator didn’t have assets in other
jurisdictions
Note: Case has been criticized for court having failed to distinguish between its common law jurisdiction as a court of probate
and its jurisdiction as a court of construction.
Delegation of will-making power





Power to make a will: Can you delegate to another, the power to make a will?
If you have been delegated general power of appointment, yes (as seen in Tassone v. Pearson, 2012 BCSC)
Though basic proposition is that a person can’t delegate their will-making power to someone else.
It usually arises as an issue when the delegator loses testamentary capacity.
In s. 1 of the Power of Attorney Act - an attorney must not make or change a will for the person for which they are
acting; any change they make is of no force and effect
[p 42]
Tassone v. Pearson, 2012 BCSC – A testator can effectively delegate their will-making power through a
general power of appointment to a named executor. If executor decides to give entire estate to
themselves, that’s a valid exercise of their discretion (general power of appt).
F: Testator named her son as executor and beneficiary and gave him general power of appointment. He later died and Tassone,
testator’s granddaughter, took over as alternate. She sought to take entire estate. Other grandchildren sought to declare her
power invalid, and argued estate should go to them.
I: Whether a general power of appointment given to the executrix by the testator was valid.
R: General power of appointment to executor was valid
HELD: Application allowed.

There was no dispute that the will was a valid testamentary disposition and a grant of probate was therefore issued.

The will created a valid power of general appointment in Tassone's favour and she was entitled to exercise her
discretion as she wished.

If the testator had intended that her last surviving son would be the sole beneficiary of her estate, then granting the
power of appointment in Tassone's favour, allowing her to distribute the estate as she deemed appropriate, would
not have made any sense.

Furthermore, extrinsic evidence established that Tassone had a close relationship with her grandmother
Rectification (fixing a mistake/error in a will prior to probate)


Rectification: fixing a mistake in a will prior to probate to correct an error
Construction: interpreting a provision in a probated will that is ambiguous either on the face of the will or arising
from the administration of the estate
Court of Probate
Court of Construction (equity)
Function
Validate the will
Interpret the will
(based on language in the doc and surrounding
circs to infer meaning and intention)
What you are
Can only delete words (cannot add words)
Can add or delete words to give effect to provision
allowed to do
(Verity)
Evidence
Extrinsic direct ev of intention admissible,
Indirect ev of surrounding circs known to the
permitted
including statements made by testator as
testator (cannot admit extrinsic direct ev of
to intention (eg. copies of earlier wills,
testator’s intentions)
drafts, codicils, solicitor’s notes, X said..)



Rectification at common law:
o The court rectifying a Will at the stage of probate when the court determines that the will-maker did not
have knowledge and approve of the wording of the will.
o Jurisdiction was limited to striking out words in a will that the will-maker did not in fact know of or approve
o In determining knowledge and approval all relevant evidence admissible, including direct evidence of
testator’s intention (Verity)
o rebuttable presumption that testator knew and approved words in will if will-maker read will or it was read
to her/him (Vout v. Hay)
o There’s a presumption in favour of interpretation that prevents leaving estate to intestacy; here
rectification of a ‘clerical error’ to meet that presumption, which was supported by facts (Clarke v
Brothwood (2006, Eng))
o Rectification is an equitable remedy that can apply to various contracts and trust docs. (McPeake v. Canada
(AG), 2012 BCSC 132)
o Party seeking rectification bears the onus – standard is BoP. (McPeake v. Canada (AG))
o See cases below where rectification was used to correct mistakes related to testators signing wrong wills
Under WESA, the court may now rectify a will at time of probate or at time of construction, i.e. after a will is
proved (by probate)
S. 59 (1) On application for rectification of a will, the court, sitting as a court of construction or as a court of probate,
may order that the will be rectified if the court determines that the will fails to carry out the will-maker's intentions
because of
(a) an error arising from an accidental slip or omission,
(b) a misunderstanding of the will-maker's instructions, or
(c) a failure to carry out the will-maker's instructions. (ie. negligence of lawyer)
(2) Extrinsic evidence, including evidence of the will-maker's intent, is admissible to prove the existence of a circ
described in subsection (1). (so now the rule is easier, but you still have to fit into one of these three
circumstances)
[p 43]

(3) application for rectification must be made w/in 180 days from date of representation grant
In Balaz v Balaz (2009, ONSC), courts have already dispensed with differentiation btwn court of probate & court of
construction. In that case, solicitor mistakenly included trustee power in will that would taint the establishment of a
spousal trust. Court admitted evidence going to knowledge & approval of testator, to determine whether to allow
rectification. Rectification allowed and provision was deleted.
Re Morris (1971, Eng) – Court of probate & court of construction working together to fix error
F: Testatrix gave gifts to Ms. H in clauses 3 & 7(iv). Then wanted to revoke gifts to Ms. H. Lawyer wrote codicil revoking "clause
3 & 7" (all of it!).
R: Court found that the testatrix glanced over the will before signing it – but did not read it. Thus, no knowledge & approval of
revocation of all of clause 7.

Court's CL remedy at probate: delete the 7 - "I revoke clauses 3 and __ of my said will".

Court's CL remedy at construction: read in 7(iv) to replace the missing number in the codicil.
Clarke v Brothwood (2006, Eng) – There’s a presumption in favour of interpretation that prevents
leaving estate to intestacy; here rectification of a ‘clerical error’ to meet that presumption, which was
supported by facts
F: Will said: 1/10 to Charity A, 1/10 to Charity B, 1/20 to each of 4 godsons. This leaves 60% to intestacy! Solicitor says it is
possible that she meant: 20% (1/5) to each of 4 godsons, leaving nothing for intestacy.
R: On the facts, it appeared her intention was to leave 20% to each of 4 godsons, and leave nothing to intestacy. There’s a
presumption in favour of interpretation that prevents leaving estate to intestacy.
Re Verity (2012, BCSC) - at probate – can only delete words but direct ev of intention admissible
F: Testatrix left estate to nieces and nephews. Will said to divide residue into 2 shares:

Half of residue would go to 10 nieces & nephews (named)

Other half went to 4 children of a predeceased 11th niece
Earlier will gave 11 shares with 4 children of predeceased niece sharing the one share of their predeceased mother + a notation
by the solicitor to do a new will using the old one as precedent. Solicitor for the testatrix had died
R: Court fixed the will at probate stage - creatively crossing out certain words to arrive at the result. Had to be able to apply in
the probate stage to get intentions evidence in - otherwise no other way to prove.
Rondel v Robinson (2011, ONCA) – extrinsic ev of intention inadmissible at construction stage
F: Testatrix had a will made in Spain – disposed of lots of assets (bf got life estate in London flat) & referenced a Cdn will. In the
Cdn will - she disposes of all of her property. But a sister doesn’t get anything – she was provided for in the Spanish will. The
Cdn will is very standard - eg. clause 1 - I revoke all previous wills made by me. Does this include the Spanish will? Clearly she
didn’t intend to revoke the Spanish will. Executors apply at construction stage to rectify the will (delete the revocation clause).
I: Was the extrinsic evidence relating to the testator’s intention admissible for interpreting the Cnd will?
R: No. The general rule of the CL is that in construing a will, the court must determine the testator’s intention from the words
used in the will, and not from direct extrinsic evidence of intent. Court found evidence of testatrix’s intention inadmissible and
therefore rectification was denied. (court’s interpretation of court of construction/probate criticized)
But! Since UK wouldn't take the Cdn will without it being rectified, life estate probably still went to bf via spanish will.
Balaz v Balaz (2009, ONSC) – Example where courts have already dispensed with differentiation btwn
court of probate & court of construction. Court admitted evidence to determine knowledge & approval
of testator, to determine whether to allow rectification.
F: Testatrix instructed that a spousal trust be created to allow for tax deferral. Solicitor inadvertently included trustee power
provisions that would “taint” the spousal trust and eliminate tax advantage. Husband attempted to have the will rectified by
having the offending clauses deleted.
R: Current court sits only as single court, not one of probate or construction, in the exercise of its broad civil jurisdiction. In
determining knowledge and approval of testatrix, ev of circs surrounding the making of the will, earlier wills or drafts of the
subject will as well as direct ev of testatrix's intentions is admissible. Rectification was allowed.
McPeake v. Canada (AG), 2012 BCSC 132 – Rectification is an equitable remedy that can apply to
various contracts and trust docs. Party seeking rectification bears the onus – standard is BoP.


Rectification can be applied to: Contracts, Land deeds, Docs relating to corporate transactions, and Trust deeds
Rectification is an equitable remedy. Rectification would not change the intended legal relation, but it might change
an instrument’s expression of that intention. It restores parties to their original bargain.
[p 44]



Party seeking rectification bears the onus. A petitioner must satisfy the court that the request to rectify merely aligns
the doc w/ the true intentions underlying it, and that the aspects to be rectified are mistakes that obstruct the true
intentions behind the document’s formation.
More specifically, a petitioner must establish:
1. that the written instrument does not reflect the true agreement of the parties; and
2. that the parties shared a common continuing intention up to the time of signature that the provision in question
stand as agreed rather than as reflected in the instrument.
Standard of proof is on a BoP.
Testator’s Signing Each Other’s Will
Guardian Trust and Executors Co of N.Z. v. Inwood, (1946, NZ) – rectification where testator signed
another’s will by accident
F: Sisters, Jane & Maude Remington have mirror wills. They sign each other’s will by mistake. Jane dies.
R: The court admitted to probate the document Jane had signed. Deleted the word “Jane” from bequest, leaving will to say “life
estate to my sister .. Remington”.
Re Brander Estate (1952, BCSC) – rectification where testator signed wife’s will by accident
F: John and Margaret (spouses) have mirror wills. They sign each other’s will by mistake. John dies.
R: Court purports to follow Guardian Trust – admits to probate the will that John has signed. But in addition to deleting the
word “John”, court adds “Margaret” to the will.
*next two cases show approach taken by court to fix the wills, where two persons signed each other’s will by accident
Re McDermid Estate (1994, Sask QB) – WESA-type rectification where testator’s signed each other’s
wills by accident (court swapped signature pages)
F: Spouses executed each other’s “homemade” wills by mistake.
R: Sask Court decided to attach the signature page of the erroneous will signed by the testator to the correct will that the
testator did not sign and admit these papers into probate as the proved will. The wills embodied the testamentary intentions of
each party and otherwise complied with will making requirements.
Estate of Daly (2012, NZ SC) – WESA–type rectification where testators signed each other’s wills by
accident – court admitted a document testatrix intended to be her will even though unsigned.
Provisions in New Zealand are similar to WESA, ss.58 and 59
F: spouses signed each other’s wills which were mirrors of each other
R: Court decided to admit to probate the document testatrix intended to be her will, even though unsigned, rather than rectify
the content of the erroneous will she actually signed.
Republication, Lapse & Ademption

These have to do with events that happen between drafting of the will & the testator’s death
Republication

CL: A will is treated as if it was executed when its most recent codicil was executed, even if it doesn't explicitly
state it republishses the will...unless it would be inconsistent with the testator's intent
WESA: s.57(3)
(3) If a will has been revived by a codicil or has, by a codicil, been re-signed in the presence of 2 witnesses, the will is
deemed to have been made at the time it was revived or re-signed.

Making a codicil republishes your will to the date of the codicil (note that nowadays, shouldn’t be making codicils
anyways)
o This matters if "wife" and "children" change as in Re Hardyman, however court is to apply republication
flexibly to try and give effect to testator’s intentions
Re Hardyman (1925, Eng) – Codicil republishes will to that date, and is taken to reflect testator’s
intentions at that time, though this will be applied flexibly.
F: Testatrix makes will, creates trust in favour of “her cousin, his children and his wife”. At that time, the cousin had a wife. Wife
dies - testatrix knows this - and 11 months later testatrix makes a codicil, but doesn’t refer to cousin/wife etc. Testatrix dies.
[p 45]
Cousin remarries afterwards. Does the 2nd wife take an interest in the trust?
R: Codicil republishes will to that date and should express intention of testator at that date. But can’t apply this in a rigid
manner – use republication as a “flexible instrument for effectuating a testator’s intentions”. She knew when she made codicil
that cousin’s first wife had died, but she didn’t change provision in will – so could only mean that she intended future wife to
take.
Re Reeves (1928, Eng) – Codicil republishes lease, and thus “present lease” in will takes on current
meaning
F: 1921 - The testator executed a will giving daughter an interest in the "present lease" of a property. 1923 - new lease entered
into. 1926 – testator made a codicil that effected some changes, but in all other respects, 1921 will (which talks about “present
lease”) is confirmed.
I: Does the daughter have an interest in the current lease or not?
R: Court found codicil republished will, and thus “present lease” refers to new lease.
Re Heath’s Will’s Trusts (1949, Eng) – Republication rule can’t be used to defeat a testator’s intention.
If a gift is valid at the time the will is made, then mere republication cannot invalidate it
F: Testator puts restraint on gift to daughter in will of 1932. Law Reform Act comes into effect in 1935. The Act doesn’t allow for
such restraints but if will is executed prior to Act then it is ok. Testator makes 4 codicils, 3 of which are after 1935. Daughter
seeks to have restraint declared void.
R: The general rule is that a will is made at the date of its latest codicil (republication), but there’s an exception where the rule
would defeat the testator’s intention. Generally if a gift is valid at the time the will is made, then mere republication cannot
invalidate it. Original gift to daughter holds.
Re Estate of Ruth Smith: Smith v Rotstein (2010, ONSC) – codicils made while lacking capacity do not
properly republish will or invalidate original will/previous codicils
F: Testator makes will. Makes a 3rd & 4th codicil while incapacitated - is the original will still valid?
R: Yes - whatever you made while capable is valid even though technically, the will was republished during incapacity. Court
won’t republish will if it would render it invalid. So, original will & first 2 codicils were admitted into probate.
Lapse (when a B has died)

What happens if a B dies before the testator dies? The gift to the B lapses (ie fails)
o Falls into residue of estate, and possibly intestacy

However if B was part of a ‘class gift’ (intended by testator), then have to determine whether testator intended
joint tenancy or tenants in common
o Class gift is a gift to some group of people with common characteristics (ie. my children, my children and
their children, etc.)
o Class gifts are an exception to the lapse rule: If B gets a gift under a class gift, then the gift doesn't lapse - it
goes to the other people in the class, or it goes to B’s estate.
o There are class closing rules to limit the size of the class
o See Milthorp v Milthorp & Re Hutton in Construction section.
WESA: s. 46
(1) If a gift in a will cannot take effect for any reason, including because a B dies before the will-maker, the property that is
the subject of the gift must, subject to a contrary intention appearing in the will, be distributed according to the following
priorities:
(a) to the alternative B of the gift, if any, named or described by the will-maker, whether the gift fails for a reason
specifically contemplated by the will-maker or for any other reason; [alternate B’s (ie. in class gifts)]
(b) if the B was the brother, sister or a descendant of the will-maker, to their descendants, determined at the date
of the will-maker's death, in accordance with section 42 (4) [meaning of particular words in a will];
 this is consistent with intestacy rules
(c) to the surviving residuary Bs, if any, named in the will, in proportion to their interests.

Note that residue of estate, if not disposed of in the will, falls to intestacy (s. 44)

If residuary beneficiary predeceases testator, their share of residue falls to intestacy, not to other residuary
beneficiaries. (Re Stuart Estate)
Lapse, generally
Re Stuart Estate (1964, BCSC) - gift goes to intestacy if residual gift to one B fails (PRE WESA)
F: residue to be equally divided among 13 people. One predeceased the testator. What happens to her share?
[p 46]
R: Wills Act s. 21 only applies to specific devises/bequests, not residual ones. Thus, the share goes to intestacy.
Re Mackie (1986, Ont HC) – doctrine of lapse does not apply if the disposition was really made to satisfy
a moral obligation (ie. if debt owed to B, and B has died, money should go to his estate).
Re Wudel (1982, Alta QB) – example where ‘contrary intention’ appeared in will to oust statutory lapse
provision. “armchair principle”
F: Testatrix had 8 children. 1 daughter Marion died, leaving 4 children. Testatrix made a will 17 yrs after Marion died. Specified
that the residue was to be divided: 8% split btwn grandchildren, 28% btwn sons, 64% btwn daughters. Will also specified that
should a child die btwn date of will and her death, then their share goes to their issue. If no issue, then split btwn remaining
children.
R: Wills Act says “subject to contrary intention, if you have a gift to a predeceased B who is issue of the will-maker, then the gift
passes to B’s estate”. Here, court found contrary intention because the testatrix already left some portion equally to all
grandchildren. Also, specifying what happens should a B predecease her is an act ousting the Wills Act provision.
Note: “armchair principle” requires the court, in construing a will, to read the will with the same knowledge of the surrounding
facts and circumstances known to the testatrix at the time she executed her will.
Re the Estate of Stella West (1999, Van Reg) – court found contrary intention in testator’s disposition of
residue among two children – created joint tenancy ousting lapse provisions.
F: Testatrix had 2 kids D & K. D predeceased the testatrix. 3 living grandchildren – 2 are D’s and 1 is K’s. Testatrix leaves gift to
grandchildren. Leaves residue to D & K in “equal shares per capita for their sole use and benefit absolutely”. What happens to
D’s share? Court asked whether provision (s. 46 in WESA) should apply?
R: According to Wills Act, unless contrary intention is shown, then D’s share goes to D’s children. Court felt that “equal shares
per capita for their sole use and benefit absolutely” demonstrated an intention to create a joint tenancy. (might be stretching it
a little here..)
Darrell: court found contrary intention without any real basis
Anti-lapse provisions
Re Davison (1979, NSTD) – Highlights need to define the class (be specific), however anti-lapse
provisions was found in the will to rebut presumption that dead B doesn’t take.
F: Testator left residue to be divided “among my children”. If a child dies, then it goes to their issue by right of representation
(ie common tenancy - the grandkids stand in the shoes of the kids). Testator had 14 children, but 4 already predeceased when
will was made. 2 had issue. Do those issue get something?
R: What does “my children” mean? Does it mean living children at the time the will was made or all children? Need to define
the class. General rule is that the B must survive testator to receive gift – but the specification re: child predeceasing rebuts
that general rule.

Some authority for limiting class to those members alive at time of will, but other interpretations have been followed
more consistently.

Court found predeceased children to be included in “my children”

Note that WESA s. 46(1)(b) provides that if B is a child of the testator, then their share goes to their descendants. So
intention they found here is really consistent with that section.
Re Cousen’s Will Trusts (1937, Eng) – anti-lapse provision can fail if it directs gift to someone else who
has also died. Note WESA s. 46(1)(a) or (b) may apply and direct gift to someone else
F: Testator gives part of the residue to Mrs. A, but if she predeceased the testator, then it was to be held in trust for her
personal representatives as part of her estate. Mr. A was the executor and the B of Mrs. A's estate, but he had also died. Can
Mr. and Mrs. A’s daughter take the gift? Or does the gift lapse?
R: General rule is that a B must survive the testator to receive the gift. Here, the anti-lapse provision directed the gift to a 2nd
person who also died. Without contrary intention, the general rule applies.

This would be the case under WESA too b/c the A’s weren’t brother/sister or descendant of original testator
Re Greenwood (1912, Eng) – strange example where court held language used by testator didn’t “avoid
application of lapse” (which isn’t allowed) but dealt with its consequences (which is allowed).
F: testator leaves estate to 4 people. Provides for what should happen should they die without issue. Also provides for what
should happen should they die with issue – the gift “shall not lapse but shall take effect as if his or her death had happened
[p 47]
immediately after mine”
R: A testator can’t exclude the application of lapse (can’t avoid it) but can avoid the consequences of lapse. The language used
here is ok – it is a valid substitutionary gift.
Ademption (what happens when property gifted in a will is no longer available at testator’s death)



S. 48 WESA
(2) If property that is the subject of a gift in a will is disposed of by a nominee, the B of the gift is entitled to
receive from the will-maker's estate an amount equivalent to the proceeds of the gift as if the will had contained
a specific gift to the B of that amount.
(3) Subsection (2) doesn’t apply if:
(a) the disposition is made to carry out instructions given by the will-maker at a time when the will-maker
was legally capable of giving instructions, or
(b) a contrary intention appears in the will
What if testator disposes of property themselves? CL says: no gift (Church v Hill).
o I think the basic principle is to uphold the testator’s autonomy to do with their property what they want,
during their life time. CL rules are ALWAYS subject to a contrary intention in the will so will-maker should
account for this in drafting, or altering will if they don’t want give to beneficiaries to adeem.
o Unless item clearly never existed, then executor may have to use estate proceeds to go buy it. This can
happen with general legacies (ie. “I give my nephew a gold watch”)
o Or “I give X $100,000” – that’s a general legacy. Assuming estate has sufficient funds and there’s no
abatement, X will get the gift.
o Specific gifts however are more susceptible to ademption, unless they have changed in “name or form only”
and are still readily identifiable. Trebett v Arlotti-Wood (2004, BCCA)
o Majority of cases otherwise support that where property is converted from realty to personalty (ie. by sale
arranged by testator, enforceable K) the intended beneficiary of the specific property doesn’t take.

Court tried to get around this in Re Clement Estate, 2007 NSSC
o Gift of ‘any cash in account Y’, is likely to adeem if the testator transferred all the funds into another fund
where cash was co-mingled. Gift of ‘any stocks/bonds in account Y may not adeem if still identifiable in new
account (Trebett)
See Property cases on page 23.
Church v Hill (1923, SCC) – Ademption applied where testator disposes of property himself
F: Testator leaves youngest daughter a lot in Edmonton, balance of estate divided equally among the other children - will maker
was trying to treat everyone fairly. But then he sells the property - agreement for pmt in place – full purchase price not paid
yet. And testator dies.
R: the purchaser of the property holds the equitable interest – as long as he keeps making payments, the vendor has no right
against him. Payment of money goes to estate. Daughter gets nothing.
Court could’ve interpreted his intention to treat kids fairly as meaning he intended his daughter so share in the estate, however
court is saying “testator knew selling the property would impact his gift to his daughter, so he should’ve altered his will”
Trebett v Arlotti-Wood (2004, BCCA) – How ademption applies to specific and general gifts – unless you
are able to identify any property from the old account in the new account, gift is adeemed.
F: Testator gives B “any” cash/stocks/bonds in RBC acct. 6 wks later, testator tsfs this acct into another acct. Gift adeemed?
R: Unless you’re able to identify any property from the old account in the new account, the gift is adeemed.
Court discusses specific vs general legacies

Specific – identifiable, in existence, distinguishable within the testator’s estate; in real estate, gift of property is

specific (eg. I give my silver teaspoons to X; I give my gold rolex to Y)
o A specific gift is adeemed if it “ceases to exist as part of the testator’s property in his lifetime or has
ceased to conform to the description in the will.” However, ademption does not occur if the thing has
changed in “name or form only” such that it is substantially the same thing.
o It’s a question of fact – often happens when the change occurs without the testator knowing. If that is so,
then the doctrine of tracing can be used to ascertain the gift.
General – may or may not be part of the testator’s property – not any particular thing, but to be provided out of the

testator’s general estate (eg. I give $100 to X; I give a gold rolex to Y)
Demonstrative/pecuniary – subset of general gifts – a general legacy that is directed to be satisfied primarily (but not

solely) out of a specified fund or specified part of the testator’s property (eg. I give $500k to X to be raised by the sale
of my business) – this kind of gift is not adeemed even if the specific property is no longer in existence
Here, “any” cash/stocks/bonds is not a demonstrative gift – it is a specific gift.

The cash ceased to conform to the description in the will. The cash in the new account was co-mingled with the

testator’s daily funds. The gift of cash has substantially changed and cannot be traced.
[p 48]

The court however held that the gift of any “stock, bonds” from the original account that could still be identified in
the new account should pass (“substantially still the same thing”), but otherwise the gift is adeemed
Notes: Doctrine of ademption applies irrespective of testator intentions.
Re Clement Estate, 2007 NSSC – court gets around Church v. Hill *fire cottage/insurance case*
F: In this case, testator left cottage to his daughter. He ended up dying in the cottage as it burned down (adeemed). Key
question in the case was: What happens to proceeds of insurance policy? Does that go to the daughter with the land or does it
fall within the residue?

If you applied the old Church v Hill approach, the view might be that the insurance policy doesn’t follow the
cottage/land but instead goes to the other beneficiaries. But that’s not what the court found here. They found it did
go to the daughter – based on the reasoning that the testator died before the cottage burned down. By the time he
died, beneficial interest had already gone to daughter, so insurance proceeds should go to the daughter.

Court said in this case that they were not changing the law of ademption.
Re Sweeting (1988, Eng) – when real property is adeemed (ie. by completion of a sale), it becomes
personal property.
F: Testator left part of property A to daughter & the remainder of A to sons for carrying on business. He also owned adjoining
property B (where his house was). Entered into K of sale for the properties. Before the completion date, the testator died. Was
the property adeemed?

The sale of A was conditional upon the completion of B’s sale & vice versa. Also the K for sale of B included a clause
where the sale was conditional upon the testator’s wife agreeing to sell all her legal & equitable rights.

Court took traditional approach – if and when sale of property is completed, the character of the gift changes from
realty to personalty, so the beneficiaries of the property may change depending on what the will says.
o Original gift is adeemed

Question was how far can the executors go to cause the completion of the sale of the property that was subject to
the specific gift, bearing in mind that by completing the sale they would move the property from one beneficiary (of
the land) to the beneficiaries of the residue.

Court says certainly technical minor amendments (give and take you’d see in normal closing to permit completion)
are okay, even if it has the consequence of moving the proceeds from one beneficiary to the other. But how far can
they go? Can they restructure the deal completely? Can they modify the purchase price in order to complete the sale?
That question is unanswered.
Re Dearden Estate (1987, Man QB) - a K for sale and purchase which is not enforceable, either by or
against the testator, does not effect an ademption. Conversion from real to personal property only
happens when option to buy/sell is exercised, not when it’s given.
F: testator left business, land, & equipment to nephew in will. Entered K for sale of these things to someone else – long list of
conditions. Testator died before completion. The purchaser told executors that they had repudiated the K and he accepted
their repudiation. Had the gift been adeemed?
R: Real property is converted to personal property if someone exercises an option to purchase the property. The conversion
happens when the option is exercised, not when the option is given by the testator. Likewise for a K, the property is only
converted if the testator/executors are capable of enforcing the K.

Here, neither the purchaser nor the vendor could enforce the agreement because it depended upon a true condition
precedent (govt approving rezoning).

The applicable principle is that a K for sale and purchase which is not enforceable, either by or against the testator,
does not effect an ademption. Therefore, the gift is not adeemed.
Re Pyle (1895, Eng) – republication can affect ademption; Ademption rule is subject to contrary
intention of testator (ie. to benefit Bs even if property converted)
F: Testator left property to sons. Later, he made a codicil expressly confirming his will. On that same day, he granted a lease to
the property with an option to purchase. Testator died. The lessee exercised the option. Was the gift adeemed?
R: Rule that gift is adeemed when real property converted to personal through K to buy/sell, is subject to contrary intention
of the testator. He/she may say/indicate that the property, whether in specie or having been converted under an option to
purchase, should nevertheless go to the B. Because of the nearly simultaneous timing of codicil and lease, the testator must’ve
intended that the proceeds of the sale would go to sons.
[p 49]
Revival
S. 57 of WESA deals with revivals – where a previously revoked will is brought back to life by a subsequent will or codicil
(showing intention to revive)
(1) A will or part of a will that has been revoked is revived only by a will that shows an intention to give effect to the
revoked will or the part that was revoked. [So a will can revive part or all of revoked will, but only if it shows that intention]
(2) Unless a contrary intention appears in the will that revives a will under subsection (1), if a will that has been partly
revoked and afterwards wholly revoked is revived, the revival does not extend to the part that was revoked before the
revocation of the whole. (only goes back one revocation)
(3) [republication]
(4) A will or part of a will that has been revoked may not be revived except
(a) by an order of the court under section 58 if the court is satisfied that the will-maker intended to give effect to
the will or part of the will that was revoked, or
(b) in accordance with any other provision of this Act that recognizes the revival of a will.
s. 58 – Curing provision
S. 99 - Revival of a will by codicil does not revive a revoked designation in a will unless the codicil expressly provides for revival.
Re McKay (1953, BCSC) – revival requires intention
F: Testatrix made a will in 1946 (husband still alive). Made a 2nd will in 1951 (husband now dead), revoking 1946 will. Then, son
prepares a codicil (changing executors) in 1952 which refers to 1946 will and confirms it. Did the codicil revive the 1946 will?
Does the codicil stand?
R: No revival – need clear intentions, and this was probably just a mistake (testatrix likely overlooked the date). But codicil is
otherwise still valid – court will just omit reference to 1946 will.
Revocation
WESA: s. 55 - how to revoke all or part of a will
(1) A will or part of a will is revoked only in one or more of the following circumstances:
(a) by another will made by the will-maker in accordance with this Act;

CL also says you need intention to revoke
(b) by a written declaration of the will-maker that revokes all or part of a will made in accordance with section 37
[how to make a valid will];

It would be rare to do this – choosing intestacy instead of your will
(c) by the will-maker, or a person in the presence of the will-maker and by the will-maker's direction, burning,
tearing or destroying all or part of the will in some manner with the intention of revoking all or part of it;
(d) by an order of the court under section 58, if the court determines that the consequence of the act of burning,
tearing or destroying all or part of the will in some manner is apparent on the face of the will, and the will-maker
intended to revoke all or part of the will.
(2) A will is not revoked in whole or in part by presuming an intention to revoke it because of a change in circumstances.
Need capacity to validly execute a will, and to revoke a will

McCarthy v Fawcett (1944, BCSC) sets out some principles re subsequent revocation clauses

(1) A revocation clause in a will may under particular circs be held not to be the intention of the testator and
therefore ignored or eliminated …
(2) A man making a testamentary doc and those who take after him are found by his expressed intention
(3) A mere mistake on the part of a testator in inserting a revocation clause in a testamentary doc is not
sufficient in itself … to ignore or eliminate such revocation clause;
(4) Where a testamentary doc on its face is complete and contains a revocation clause, there is a heavy burden
cast upon a plaintiff who comes into Court to say that the revocation clause was not intended to be operative,
and the submission of the plaintiff in such connection will only be given effect to on the most cogent evidence in
support;
(5) If evidence is admissible as to the circs under which the testamentary doc containing the revocation clause
was made, such evidence must relate to or about the time such document was executed.
Subsequent Instrument
Re Lawer (1986, Sask ct) – Court had to decide whether 2nd will (w/ standard revocation clause), actually
revoked the 1st will. Court considered intention of testator, whether both could be read together, and
surrounding circs. Principles for dealing with revocation clauses set out in McCarthy v Fawcett.
F: Issue was whether the standard revocation clause in a 2nd will validly revoked the earlier will.
1st will dealt with certain mineral rights - holograph will

[p 50]
2nd will dealt with others, and didn't have a residue clause; written by lay person

R: Court concluded there was no intention to revoke the 1st will when testator made the 2nd will - also both can be read
together. Surrounding circumstances can be considered, but not evidence of direct stmts by the deceased.
Acts of the will-maker affecting the will (ie. destroying will, losing will)
Re Norris (1946, BCSC) – destruction of the will might not be enough to revoke – still need intention
(consistent with s. 55(1)(c) WESA)
F: Will was found cut up in a number of pieces. Testator was a lawyer - had made a will, then moved to Canada - lived with a
woman who he referred to as his wife - but he actually had a wife and kids in England. Left nothing to his real wife and kids
R: Who did the cutting? Was it done with the intention to revoke? Testator had suffered from some delusions in his later years.
Court found that it could have been cut up by the testator, but not done with the intention to revoke. So will still valid.
Anyone can rip up a will – have to tie it to the testator

Re Adams (1992, Eng) - effective revocation by blacking out signatures on the will
F: Client asked lawyer to destroy the will - but lawyer said for her to destroy it. The testator uses a pen to black out the “Last
will and testament ..” & other parts & the signatures of the witnesses & testator.
R: This was a form of destruction.
Lost Wills
A will maker executes only one copy (any more and the prev ones are revoked!) – no backups.

If the will is lost, then there is a presumption that they have revoked it (ie. destroyed it)

Presumption is rebuttable (Lefebvre v. Major). In one case, had a copy of the will, needed to get affadavits to show

that the presumption should not apply
What if will is lost and there are no copies? Sugden


Re Perry, [1925] (Ont. C.A.): the Court refused to admit a lost will to probate when only the name of the residuary
legatee was known

Re Broome (1969) (Man. C.A.): the majority of the court held that if a testator becomes incapable after making a will,
and if at the date of death the will cannot be found or is in a mutilated state, the burden of showing it was destroyed
or mutilated with an intention of revoking it lies on the party alleging revocation.
Sugden v Lord St Leonards (1876, Eng) – presumption of revocation for a lost will is rebuttable. On the
facts, testator had a will, and would not have died intestate; daughter knew contents.
F: Testator was actually a prominent wills & estates lawyer! Will was lost - but court found that it was impossible that it was
revoked - there were 8 codicils! Sugden wouldn't have died intestate. How did they prove the contents of the will? Daughter
could recount almost all of the provisions of the will (she was also his secretary).
R: Court was satisfied with her testimony – (consistent with the 8 codicils. Some of the information she remembered was
adverse to her interests). Court won't allow a missing portion of the will to override testator intentions
Lefebvre v Major (1930, SCC) – Presumption of revocation for lost will rebuttable. On the facts, testator
took great care with will – possible burned up with body. Gifts told to friends prior to death.
F: Testator died -wasn't found for some days. Cremated asap + other things in bedroom burned. Possibly burned the will along
with the body? Had confirmed gifts just a few weeks prior to 2 friends. Testator took good care of his will & saw it as a very
important & serious instrument.
R: Intention of revocation rebutted.
Marriage/divorce

s. 56(2) revokes a gift(s), executorship/trusteeship or powers of appointment made under a will to someone who was
or became a spouse, if they ceased to be spouses (as under s. 2) prior to the will-maker’s death.
o General power of appt - unrestricted right to give away property, even to self
o Specific power of appt - can give to a certain group of ppl, excluding self
(3) Subsection (2) doesn’t apply if they reconcile prior to death
(4) “was a spouse”  relevant time is at the time will was made; “became a spouse”  any time after will was
made, prior to any separation.
Dependant relative revocation (aka conditional revocation)

Revocation is conditional on some situation or event
[p 51]


When faced with a destroyed will, have to ask 1) Did the testator do so with the intention to revoke it? 2) If yes, was
the intention absolute or conditional? (ie was it conditional on something else? Eg. the making of a new will) 3) If yes,
then have those conditions been satisfied? (Re Jones Deceased, 1976, Eng)
Recitals, where you set out background as to why you’re making a will, can be very important to showing a condition
had not been met, such that a change should be revoked (Sorenson)
Re Jones Decd (1976, Eng) – Whether revocation by destroying will was conditional on new will being
drafted; decided on the facts re intention of testator
F: Testatrix had a short will. Gave X to 2 nieces. Spoke to bank manager & solicitor intending to make a new will giving X to a
nephew. She died before making new will. Existing will found in her possession, cut into 2. Did she intend revocation only if a
new will was made?
R: Questions to ask when faced with a destroyed will:
1) Did the testator do so with the intention to revoke it?
2) If yes, was the intention absolute or conditional? (ie was it conditional on something else? Eg. the making of a new will)
3) If yes, then have those conditions been satisfied?
Here, court found that testatrix had intended to revoke will regardless of whether new will was made.
Re Sorenson (1981, BCSC) – If a person revokes gift based on mistake of fact/law, court can decide
revocation was conditional as contrary to testator’s true intention.
F: Testatrix had left gifts to 2 sisters-in-law. Thinking they were both dead, made a codicil that left the gift to a friend. It turns
out one sister-in-law is still living. Was the codicil & revocation of the paragraph giving the gift to sisters-in-law conditional on
the sister-in-law’s death?
R: Yes - If a person revokes based on a mistaken fact/law, and the court decides that the revocation was conditional upon
that mistaken assumption being true, then the revocation is invalid.
Joint and Mutual Wills
Joint will: One doc that contains testamentary wishes of 2 people, stands as their will (Gillespie)

May be easier to establish a K btwn the 2 parties to a joint will

Wickstrom: don’t use these!
Mutual will: 2 parties create mirror wills and expressly provide that they will not change their will (Sanderson)

One issue is usually whether parties agreed – and what did they actually agree to? Sanderson highlights some
ambiguities with mutual wills
o What are the terms by which the surviving spouse holds the property? Ie. Life estate? Access to capital?
Ability to dispose of assets?
o What property does the K apply to? All property at the death of the first spouse? All property acquired by
the surviving spouse?
o Unforeseen circs - needs of the surviving spouse change? Something happens to the property? What if one
person loses capacity? Can anyone agree on their behalf to change the terms of the mutual will?

Is there an implied contract? K btwn the parties can be found with or without a written agreement, but you do need
an agreement (of course, best to do a written K)
o This limits testamentary freedom – and each party’s ability to revoke will
o Can always change your own will, but a constructive trust may have arisen over assets inherited from the
first to die spouse
o Important to ascertain intentions of parties and what they sought to achieve

Used as a way to protect dispositions to children in blended family scenario, or where surviving spouse may remarry
(at the same time, don’t want to tie up your assets in a way that prevents surviving spouse from accessing it)

To avoid this doctrine, put a clause in the will saying it is not a mutual will - esp if there are mirror image provisions to
avoid any argument that there was a mutual will
Corresponding wills: not really legally significant, but this means that there are 2 wills with parallel/reciprocal/mirror image
terms

Put a provision saying they’re not mutual and each person can change their will
Other alternatives

Tax free roll-overs under the Income Tax Act into a spousal trust.
o Requirements: all of the income earned on the trust property must be paid or payable to the spouse and
capital can’t be used by anyone other than the spouse
o Each spouse leaves property to the other in a trust. Will contains terms of trust.
[p 52]
o



Benefits: no deemed disposition (tax liability) until after spouse dies. Spouse can access income and capital
in the mean time. Trustee(s) has discretion to do the right thing as unforeseen events arise.
o Not good idea to have spouse as sole trustee (can wind up the trust). Better to have spouse and one other
person (can be a bit annoying for them though).
Inter vivos transfers and joint tenancy
Trusts for the children
Leave everything to surviving spouse and trust them to do the right thing
University of Manitoba v Sanderson Estate (1998, BCCA) – Mutual will agreement found between
couple. Not necessary to receive property under the will for court to enforce terms of the K.
Constructive trust arises.
F: The Sanderson couple does a detailed agreement re: what they can do with their wills & property. The agreement was
updated when they did codicils, etc. Agreement was to give everything left to the Univ of M. Mrs. Sanderson dies. Then Mr.
Sanderson wants to change his will – U of M sues the estate.
Key issue - Mr. Sanderson didn't actually receive any property from Mrs. Sanderson's will - he didn't receive any benefit from it
- because he got the property by way of joint tenancy (ROS).
R: Receipt of benefit under the will is not required for the court to enforce the terms of the K. How does the court enforce
this? Imposes a constructive trust - compels the survivor to hold it for the B.
Public Guardian and Trustee

Mandate of the PGT:
o To protect legal and financial interests of minors (under 19)
o To protect legal, financial, personal/health care interests of adults requiring substitute decision-making
o To administer the estates of deceased or missing persons

Authority is derived from statutes (including WESA, FLA, Public Guardian Trustee Act, etc) – 2 types:
o Fiduciary role – direct representation of client
o Protective/oversight role – review activities of others as they impact PGT client groups

 In estate matters, PGT may act in either role

Roles in Estate Matters:
o Review grant applications to protect interests of minors/incapable adults
o Ensure that share of estate of minor/incapable adult is protected on distribution
o Respond to service under WESA to protect interests of minors/incapable adults
o Act as trustee for minor’s interest where no trustee is appointed in will or on intestacy
o Act as trustee by statutory direction
o Administer estates as executor or administrator
o Administer estates of missing persons
Estate Matters

An applicant for a grant/resealed grant of probate or letters of administration must provide notice to PGT where a
mentally incapable adult or minor has or may have an entitlement to share in an estate (s. 121 WESA, SC Rule 25-2)
o Exception where applicant is executor and minor is not a spouse or child of deceased and there is a trustee
for minor

Notice to PGT
o regular notice you send out to Bs, but also:
o names, address and phone/fax #s of minors or incapable adults

Purpose of review:
o If there is a will, then the potential for a wills variation claim. PGT looks at:

adequacy of provision made for minor / incapable adult who has right to apply for variation of will

relevant authorities

viability of action given costs of litigation

best interests of minor/incapable adult
o What are the moral/legal obligations of the deceased person? Have they fulfilled these obligations?
o Classic situation occurs where spouses are divorced, one spouse dies, leaves everything to current spouse
with no provisions and no assets passing outside estate to child of divorced couple.
o Re Cameron: where the parents of a minor child are still married, and one dies, leaving estate to the other
spouse, then a variation claim for provision for the child is unnecessary.
o PGT can be sued if they don't pursue claims, so they err on the side of bringing the claim and having court
throw it out

If the PGT decides litigation is necessary, it will either:
[p 53]
o
o







Seek a private litigation guardian to act (eg legal guardian for minor; committee or representative of adult)
Act as a litigation guardian where there is a legal duty to do so

For minors: if the PGT is also the guardian of estate (property guardian), the minor is in continuing
care/undergoing adoption/no guardian

For adults: if the PGT is also committee of the estate or a representative
o In select cases, may act as a litigation guardian where there is no legal duty to do so

Ie if no one else is suitable and willing, and if on the facts, there is a strong legal and moral claim,
& if it is economically viable & in the best interests of the minor
Difference btwn PGTs role for minor & mentally incapable adults?
o Court can appoint the PGT to act for minors if the PGT doesn't consent.
o Court can't appoint the PGT to act for incapable adults (consent required as per Marits v Wolber)
Executor/administrator must deliver notice of application for a grant within 45 days of issuance (WESA s. 124(2)) because of the limitation period (6 months)
Posting of security → s. 128(1) – no security req’d unless a minor/incapable adult w/o a nominee has an interest in
the estate, or unless the court on application requires it (nominee would make that application)
o PGT recommends that the court order a posted bond to reflect value of the minor/IA’s share if over 50k
o Eg. what if the administrator does not act judiciously and loses money for the estate? Then the B may have
a claim.
o Other forms of security might be considered - eg for real property that is about to be sold quickly
Protection of share on distribution of estate - PGT reviews grant applications to confirm that the share will be
distributed to someone with legal authority to manage it
o Minors

Look to see what the trust provisions are in the will

Where minor is entitled to a share of an Estate and no trustee is appointed, on distribution
exec/administrator must pay or transfer share to PGT (s. 153 WESA)

Applies to intestate estates or where will fails to appoint a trustee for minor’s share

PGT holds in trust to minor’s majority and administers under s. 14 Infants Act

Need clear direction that someone is holding the funds in trust for the minor

Executor should also be concerned about this - need someone with legal authority to sign the
release

Parents actually don't have inherent authority to receive money on behalf of their kid & hold in
trust. So always goes to PGT if it's money.

For non-cash – can convert minor’s interest into money, can transfer it directly to the minor (ie.
Fishing equipment) or PGT can decline to accept it and recommend that the court appoint
someone more suited (ie. An aunt who has room to store a horse)
o Incapable adults

PGT may intervene when:

will provides gift without trust provisions or incapable adult is intestate heir
and

incapable adult has no committee, attorney, representative with authority to manage

Application to have committee appointed
Review of Notice of Civil Claim – Will Variation Claims
o S. 61(c) Where an action is commenced and there are minor children of the will maker or the will maker’s
spouse or child is mentally incapable, a copy of Notice of Civil Claim must be served on the PGT
o S. 61(3) If served, the PGT is entitled to be heard and to any costs ordered by the Court
o Supreme Court Civil Rules require that the executor, surviving spouse and children of testator and all Bs
whose interests may be affected be joined as parties (R 21-6(2))
o And that parties under legal disability act by litigation guardian who is represented by solicitor (Rule 20-2)
o PGT may provide comments to the court re: a proposed settlement
o S. 65 – who receives less? Usually any claim is visited rateably on everyone. You take your proportionate
share by reduction, by reason of the award made in favour of the claimant.

May be able to get other Bs to agree to exempt minor from sharing in any claim awarded to
o S. 66 – you can exempt out somebody’s share from being subject to an order
Assets that pass outside the estate
o Sometimes PGT becomes a trustee of assets passing outside of the estate

Eg. Life insurance: Where designated B is a minor under 18 years, if no trustee is appointed,
payment is directed to PGT: s. 88 Insurance Act

RRSP/Pension Plan Benefits: Where designated B is a minor, no statutory direction for payment
exists. Parents/guardians have no legal authority to provide valid discharge of payor. So PGT may
consent to act as trustee or Court appointment of trustee required
Estate administration:
o PGT may act as executor or administrator
[p 54]
o

An estate may be referred to the PGT where:

Deceased died intestate/no relatives in BC willing to act

Deceased died leaving a will but no executor appointed or deceased/unwilling/unable to act and
no beneficiary or relative willing to act

all heirs and relatives in BC who are qualified to act renounce their right to do so and request PGT
to act
o PGT cannot be appointed without written consent of PGT
o PGT will decline to act where:

gross value of estate is $5,000 or less

estate is insolvent (trustee in bankruptcy or creditor better suited)

someone has intermeddled and assets cannot be ascertained or recovered
o s. 125 WESA allows PGT to have file sealed by court; this prevents heir tracing
Estates of Missing Persons Act -- a person is missing when people who should have heard from the person have not
done so for 3 months (See slides)
o PGT can be appointed as curator of whole or part of the person's estate in all cases except where Court is
persuaded some other person is more suitable because of business or personal relationship
o Curator is a trustee
o Curator’s powers are the powers “the missing person would have if that person were present” but subject
to supervision of the Court and restrictions of Act
o Curator cannot sell or mortgage property of missing person without Court approval
o Any acts of curator relating to property of missing person is binding on the missing person, personal
representative, heirs and assignees
Cameron v Cameron (BCSC) – where the parents of a minor child are still married, and one dies, leaving
estate to the other spouse, then a variation claim for provision for the child is unnecessary.
Solicitor’s Responsibilities





Lawyers owe a duty of care to the will-maker and to intended future beneficiaries (Whittingram v Crease)
White v Jones, 1995 Eng HL – testator sent instructions to lawyer to amend his will, nothing was done by the firm for
4 weeks, firm didn’t arrange to see client for another 4 weeks. He died just before. Daughters who were supposed to
inherit sued law firm for negligence. They won, firm took too long to carry out client’s instructions
o Highlights duty owed to beneficiaries.
o Heightened duty when dealing with elderly clients – who have one foot in the grave
What you should do:
o Get instructions directly from the testator or have the testator confirm them
o Test the understanding by not putting forth questions that permit yes or no answers (don’t ask leading q’s)
o Assess the will-maker: are they old, weak or sick? Is it a couple who are mid-30’s with two kids? Apply
different standards depending on their situation.

Is there undue influence, etc?
o Are the dispositions in the will consistent with other non-will dispositions?
o Independently verify some of the information you’ve been given (using public registry – ie. Title searches)
o Ask them for previous wills – could be that they’re disinheriting one of their children, or losing their mind
(big swings in distributions)
o Do they have skeletons in the closet?
o Get first draft done quickly while it’s fresh in your mind and the client’s mind
o Take good notes from meetings with the client
Practice checklist from Law Society of BC Website – Wills Procedure Checklist, Wills Drafting Checklist, Initial Interview
Checklist
There should only be one original will
o Revocation – when original cannot be found, it’s presumed that it’s revoked
o Will-maker must be careful not to lose it – best for lawyer to keep it
o It’s good to keep copies, you can prove a will if you keep copies; can get around revocation presumption
o Can file notice with BC Wills Registry (“will was signed on ___ date, and is kept in ___ location”, together
with will-maker’s name and DOB)
Re Worrell (1969, ON Ct) – what not to do when creating a will as a lawyer
F: Lawyer did a lot of things poorly
a. he prepared a will for a testator for whom he had never acted and whom he never saw and knew the testator
concerned was 82 years of age and confined to a home for the aged,
[p 55]
b. he drew the will without any knowledge of the size of the testator's estate or the nature of its assets,
c. he drew the will leaving a substantial portion of the estate to the person who consulted him,
d. he drew the will with changes from the original letter of instructions signed by the testator without any consultation
with the testator,
e. he handed the will to the beneficiary who had consulted him, to take out and have executed,
f. he kept no docket entries or other records dealing with the matters in issue.
Whittingram v Crease & Co. (1978, BCSC) – solicitors owe a duty of care to intended B’s and may be
liable in neg to them via Hedley Byrne.
F: Testator made will benefiting one son above the rest. Lawyer asked son’s wife to sign as witness. Was the lawyer negligent?
Yes. But does a lawyer owe a duty to anyone other than the testator (ie the son)?
Court:

When one party seeks out information from another party with special skill, & that party knew or ought to have
known about the reliance on his skill & judgment, then there is a duty (Hedley Byrne).

These facts satisfy HB test and thus a duty was owed by the lawyer to the intended beneficiary.
Wilhelm v Hickson (2000, SKCA) – Solicitors should be liable to intended B’s in circs where neither the
testator nor his estate would otherwise have a remedy against the solicitor
F: Testator held shares of an incorporated co. which held his farming business & land. He dies. Court held that the gifts of land
set out in his will were ineffective bc they were owned by the co, not him. TJ finds lawyer liable.
Court:

Court canvasses law – discusses White v Jones which established that negligence on the part of the lawyer/firm in
dealing with the client, made them liable to intended B’s

After balancing factors for & against, court held that duty should in some cases “extend to the intended beneficiary
a remedy under the Hedley Byrne principle … in circumstances in which neither the testator nor his estate will have
a remedy against the solicitor”.

Court follows White v Jones and finds for plaintiff Bs (not for some bc they couldn’t show they had suffered damages
as their wives had in fact taken more than they would have under the will.)
Hall v Bennett (see Capacity section) – things that have led to criticism by the court








the failure to obtain a mental status examination;
the failure to interview the client in sufficient depth;
the failure to properly record or maintain notes;
the failure to ascertain the existence of suspicious circumstances;
the failure to react properly to the existence of suspicious circumstances;
the failure to provide proper interview conditions (e.g. the failure to exclude the presence of an interested party);
the existence of an improper relationship between the solicitor and the client (e.g. preparing a will for a relative); and
the failure to take steps to test for capacity.
Transfers Outside of a Will



Why don’t people want to gift property through a will?
o TAX

At the time of your death, ITA deems that you have sold everything you own for FMV

So, if there is any unrealized capital gain in your assets, then the deceased is liable for that tax

What your Bs receive is not taxed (ie your Bs don’t have to pay tax on inheritance)
o Probate fees (1.4% of the estate)
o Wills variation claims
o Privacy (once probated, a will is a public doc)
o Speed & cost – speedier without having to go through probate.
Why does anyone still make a will then? Because:
o They need to use what they have until they die
o Can always change a will (unless you become incapable)
o Don't have to know what you have when you have the will
How can you pass assets without a will?
1. Gift inter vivos - but the problem is, how do you know you won't need it?
2. Gifts mortis causa - very limited use
3. Inter vivos trust
[p 56]





Deals with tax and wills variation
Alter ego or joint spousal trusts (not a company or society, is a relationship)
Assets are held legally by the trustee

Implications: no probate fee because they don't pass under the estate; no deemed
disposition at death since the deceased didn't hold legal title

Alter ego - for over 65 yrs old, can tsf assets into trust without pmt of capital gains tax until death
of the settlor

Only the settlor can receive the benefit (income/capital)

Joint spousal - for over 65 yrs old, avoid pmt of capital gains tax until later of death of settlor or
the surviving spouse

When you die, the assets are not in your name so no probate fees

Capital gains tax is payable at death

Assets held by the trustee, so wills variation act does not apply

No deemed disposition because the deceased didn't hold the asset

In your trust, can make succession like provisions - eg. after death, trustee will divide the trust
property btwn children.. If predeceased, etc etc

But a trust is complicated & costs a lot of money - trust doc, land title tsfs, deeds, go to the bank
and say that the property has been tsfed

If under 65 - can still make a trust - just need to pay all capital gains tax
4. Jointure (joint tenancy)

Then the joint tenant takes upon death of other person – “right of survivorship”

Property tsf tax is usually payable if you tsf to a 3rd party - but if you just add another owner (and
the property is your principal res & you are adding a spouse or child) the tax is not payable
5. Direct beneficiary designation

Insurance policies (Insurance Act s. 48)

RRSP/RRIF/Pensions (WESA s. 85)
Legal presumptions that arise on the tsf of property/assets without consideration
o Presumption of resulting trust

Law presumes that gifts (unpaid for) are held in trust – and it is up to the gift recipient to show
that it was a gift.

Applies to gifts from parent to adult children (Pecore)
o Presumption of advancement (gift)

This is an exception to the presumption of resulting trust

Where a parent gives to a minor child, then it is presumed a gift – and the onus is on the
challenger to show it was not a gift (Pecore).
Question that has to be asked is: when the gift is intended to take effect?
o If I give something away now - then this is an inter vivos disposition (immediate)
o If you intend to give it away upon death - then this is a testamentary disposition - but a will is the only
vehicle to give something away upon death - need all the will formalities
o So what the person intends at the time of jointure is important
Joint Tenancies
Pecore v Pecore – (2007, SCC) – joint tenancies can be used to effect transfer, but presumption of
resulting trust may apply if not a spouse or minor child. Can rebut this with evidence of intention.
F: Father transfers some money into joint accts with his daughter Paula. He was accustomed to helping her out financially. But
he declared the funds to be his and paid taxes for the earnings etc. In his will, said nothing of the accounts but residue was to
be split btwn Paula and her husband Michael.
I: Does presumption of advancement apply?
R: Not to adult children, regardless of dependency. Admissible evidence to show intention:

Acts or statements of either party, whether before or after the transfer.

The fact that the transferor had granted power of attorney to the transferee.

The fact that the transferor had continued to control the property after the transfer.

The extent to which the transferor paid capital gains tax on a transfer, or paid taxes that became due after the
transfer.

With respect to joint bank accounts, bank documents signed by the parties when a joint account is opened are
admissible.
Evidence showed that the father intended to “gift a right of survivorship” to Paula.
Madsen Estate v Saylor (2007, SCC) – application of Pecore v Pecore – adding child on acct for
[p 57]
convenience is not a gift
Dad & daughter have joint accts. Here, no evidence to rebut presumption of resulting trust.
Trusts
Mordo v Nitting (2006, BCSC) – Alter ego trusts (tax benefits, can be used to disinherit ppl)
Mother wanted to disinherit son, benefit daughter, & avoid taxes  tsfed property into alter ego trust.
1. Transfer legal title to trustee – did not register the form transferring title to avoid Property Transfer Act transfer tax. So,
the mother was still the registered owner, but executed a doc saying she was holding her interest on trust for the
trustee.
2. Execute trust doc – the sole B during the settlor’s lifetime must be the settlor for the ITA exception to kick in. Normally,
capital gains tax when tsfing to trustee, unless settlor is 65+ & the sole B of the trust
3. Upon death, trustee must hold on trust for daughter. Avoids probate fees which are calculated from whatever falls into
the estate.
Notes on trusts:

A person can have a motive for creating a trust, but as long as her intention IS to create the trust, then there is no
sham (certainty of intention)

Other 2 certainties: of objects (Bs clearly defined), and of subjects (property of trust & nature of interest due to each
B clearly defined)

Reserving the power to call for the trust does not mean that it is testamentary in nature

If the settlor intends for the trust to take effect immediately then it is inter vivos
Note that courts have generally upheld inter vivos trusts used to disinherit children. Not as settled when it comes to
disinheriting spouses.
Plan designations (Insurance and Benefit Plans)



Designations can be used to avoid benefit passing through estate (s. 95)
Generally, you want to designate beneficiary for plans on the designation form
o If the named B predeceases the policy holder, then amt reverts back to the estate
Insurance Act – Insurance designations
o Designation of life insurance to B doesn't fall to the estate, isn't subject to wills variation BUT note - if court
does look at the estate to vary it, it will consider that a B has gotten $ under the insurance policy; isn't
subject to creditors
o Can make revocable or irrevocable designation
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Why would you want to make an irrevocable designation? Family law reasons - spousal support
continuance
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s. 88 of Insurance Act - with agreement of B can change the irrevocable desig
WESA provisions:
Part 5 relates to benefit plan designations

designations may be made by wills as well as in other ways

S. 84 – the provisions under WESA apply even if benefit plan gives a person the right to make a designation
(2) If a benefit plan provision is inconsistent with this Part, this Part prevails unless the benefit plan provision … is
authorized under another enactment of British Columbia or Canada.
(3) This Part does not apply to a contract of insurance or to a declaration to which Part 3 [Life Insurance] or Part
4 [Accident and Sickness Insurance] of the Insurance Act applies.

S. 85 – can make designations regarding benefit plans, and can alter/revoke those designations (unless irrevocable)
(2) sets out the formalities

If you do it through a will, ss. 96-100 apply

s. 87 – may make the designation irrevocable

Capacity required for designations? Re Rogers (1963, BCCA) decided that the wills test for capacity applied where an
insured changed preferred Bs under an insurance policy, but the designation was not a testamentary disposition so
that the burden of proof rested on the person challenging the validity of the change.

Undue influence in designations? In Flack v. Rossi, (2008, BCSC), it was decided that as pension designations were
testamentary, the burden of providing undue influence fell on the person asserting undue influence

Creditors? If designations are testamentary, the proceeds payable on death might be argued to be part of the estate
of the deceased for some purposes at least, e.g., paying off the debts of the deceased. That argument is now
precluded by s.95 of WESA.
[p 58]
National Trust v Robertshaw (1986, BCSC) – RSP designation may be viewed as an inter vivos transfer of
a contingent interest (not testamentary, not revoked by future wills)
F: Testator designated his wife as B of an RRSP. They divorced. Then the testator tsfed funds from some other RSPs in that RSP.
After that, he executed a will revoking all former testamentary dispositions and leaving his estate to his three children. The will
made no mention of any RSP.
Executors took the position that the designation of the wife as B was a testamentary disposition which had been revoked by the
will.
R: The line between a revocable inter vivos trust and a testamentary disposition can be muddy. Depends on the degree of
control retained by the settlor (more control → testamentary).
Here, the RSP designation was an inter vivos transfer of a contingent interest. Thus, not revoked by will.
Roberts v Martindale (1998, BCCA) - No automatic revocation of ins designation on divorce
F: Wife designated husband as B on life ins policy. Forgot to make changes after separation. She had revoked all previous wills
and made a new will benefiting her sister. Also, wife & husband had entered into separation agreement & settled all rights
against each other. Life insurance funds were paid to ex husband when she died.
R: Husband holding this on constructive trust. (Court relied on equity + unjust enrichment to come to the conclusion)
[p 59]
EXAM:::
1)
2)
3)
Do a family tree

Make notes of who witnessed the will

Think about who the beneficiaries are
Organize your answer by writing down the issues.

Remember the critical time is date of death.

Look at what the dispositions occur at date of death.

What are the assets at death
Do a quick timeline

When was will made – was it made in contemplation of marriage or some event?
 Formally and essentially valid? Can it be cured under Wesa? Can a gift to someone who witnessed the will
be cured?

Was mutual will agreement made? Was it a contract?

Have beneficiaries died? What effect does that have?

Ademption issue? Will specified money in one account but it didn’t exist on death. Court can look if there’s
tracing.

Important to note who is alive at the important times
 Variation claims?
 Life estate?
 Who’s going to take
[p 60]