Aachal Goundar
TRU LAWWILLS & ESTATES CAN
Winter 2014
Aachal Goundar
Contents
INTRODUCTION 7
WILLS AND ESTATES SUCCESSION ACT (WESA) 7
ORDER OF DEATH & BODY 9
DISPOSITION OF PROPERTY ON TESTACY 9
Bird v. Perpetual Executors, 1946 AusHc 10
Hutton v. Lapka Estate, 1991 BCCA 10
CHALLENGING A WILL 11
CONTRACTS TO MAKE WILLS 11
WILL SUBSTITUTES 11
Pecore v. Pecore, 2007, SCC 13
Madsen Estates v. Saylor, 2007 SCC 13
Mordo v. Nitting, 2006 BCSC 15
National Trust v. Robertshaw, 1986 BCSC 16
Roberts v. Martindale, 1998 BCCA 16
INTERPRETATION OF AMBIGUOUS WILLS 16
AMBIGUITY IN INTENTION 17
AMBIGUITY IN GIFTING TO PEOPLE 17
Re Harrison: Turner v. Hellard (1885) 19
Howell v. Howell Estate, 1999 BCCA 19
Moiny Estate 2001 BCCA 19
Milwarde-Yates v. Sipila 2009 BCSC 19
Lee v. Lee Estate (1993) BCLR 19
WILL-MAKER: AGE, CAPACITY & INTENT 21
LEGISLATION 21
ATTACKING A WILL 21
TESTAMENTARY CAPACITY 22
A. General Insanity/Dementia 23
Leger v. Poirer [1944] SCC 23
Re Davis (1963) ON CA 23
Royal Trust Co. v. Rampone [1974] 24
B. Delusions 24
Banks v. Goodfellow (1870) 26
O’Neil v. Royal Trust Co. [1946] SCC 26
Skinner v. Farquharson (1902) SCC 26
Royal Trust Company v. Rampone 1974 BCSC 26
Ouderkirk v. Ouderkirk, [1936] SCC 26
SUSPICIOUS CIRCUMSTANCES 27
Barry v. Butlin 27
Vout v. Hay [1995] SCC 28
KNOWLEDGE AND APPROVAL 28
Russell v. Fraser (1980) B.C.C.A. 28
UNDUE INFLUENCE 29
Field v. James, 1999 (BC SC) 29
FRAUD 29
Bollsnstz Estate v. Simon, 2006 SKCA 29
MISTAKE 30
Rhodes v. Rhodes 30
WILL FORMALITIES 30
LEGISLATION 30
FORMS OF WILLS 30
A. ATTESTED/FORMAL 30
CURING DEFICIENCES 31
REQUIREMENTS 31
Ball v. Taylor (1999) (B.C.S.C.) 32
Re White (1947) NSSC 32
Re Bradshaw Estate (1988) NB 33
Re Wagner (1959) 33
Chesline v. Hermiston [1928] ONSC 34
Bolton v. Tartaglia (2000) BCSC 34
INCORPORATION BY REFERENCE 34
Re Jackson [1985] (B.C.S.C) 34
B. HOLOGRAPH WILLS 34
Bennett v. Gray [1958] SCC 35
Canada Permanent Trust Company v. Bowman [1962] SCC 35
Re Forest (1981) Sask C.A 35
Re Clarke (1982) 36
Re Dixon-Marsden Estate (1985) Ontario Surrogate Court 36
Re Brown Estate, 1954 36
C. PRIVILEGED WILLS 37
Re Booth [1926] 37
D. INTERNATIONAL WILLS 37
TESTAMENTARY GIFTS 37
GENERAL 37
GENERAL AND PECUNIARY GIFTS 38
Frye v. Frye Estate (2008) ONCA 39
Re Miller [1927] ONSC 39
Re Willcocks, [1927] 39
Re McLean (1969) NBCA 39
DEMONSTRATIVE GIFTS 39
Re Webster’ Gross v. Webster [1937] 39
SPECIFIC GIFTS 40
Culbertson v. Culbertson (1967) SKCA 40
RESIDUARY GIFTS 40
ABATEMENT 41
Lindsay v. Waldbrook (1897) ONCA 42
ADEMPTION 42
Re Hunter (1975) ONSC 42
LAPSE & SURVIVORSHIP 43
Re Stuart (1964) BCSC 43
Re Wudel AB 44
Trebett v. Arlotti-Wood (2004), BCCA 44
Milthorp v. Milthorp B.C.S.C. 44
VESTED AND CONTINGENT GIFTS 44
Property Law Act, s. 8 47
General Principles of Vesting: 47
Re Brailsford [1916] 48
Re Archer (1907) ONSC 49
Re Barton [1941] SCC 49
Re Stephens: Royal Trust Co. v. East (1978) BCSC 49
Re Taylor (1972) ONSC 50
Re Squire (1962) ONSC 50
Re Krause (1985) ABSC 51
Church v. Hill [1923] SCC 51
REVOCATIONS, CHANGES & MUTUAL WILLS 52
CODICILS 52
Henderson v. Fraser 1924 (SCC) 53
Macdonell v. Hudson (Estate of), 1995 BCSC 53
Alma Gertrude Turner (Estate of), 2003 BCSC 53
REVOCATION 53
Leonard v. Leonard [1902] 55
Re Lawer, 1986 SKCT 55
Re Norris, 1946 BCSC 55
Re Adams, 1992 UK 55
REVOCATION BY MARRIAGE 55
Challenging the Will under WESA 56
REVOCATION OF GIFTS 56
LOST WILLS 57
Sugden v Lord St Leonards, 1876 58
Lefebvre v Major, 1930 SCC 58
Alma Gertrude Turner (Estate of), 2003 BCSC 58
CONDITIONAL REVOCATION/ DEPENDENT RELATIVE REVOCATION 58
Re Sorenson, 1981 BCSC 58
In Re Jones, Decd, 1976 UK 59
REVOCATION – POWERS OF APPOINTMENT 59
ALTERATIONS IN A WILL 59
Re Douglas Estate (1986) 60
Smith Estate, 2012 ABQB 60
REVIVAL OF REVOKED WILLS 60
Re McKay, 1953 BCSC 61
JOINT AND MUTUAL WILLS 61
University of Manitoba v. Sanderson Estate, 1998 BCCA 61
Spousal Trust 61
ESTATE ADMINISTRATION 62
GRANT OF LETTERS PROBATE OR ADMINISTRATION 62
PROBATE 62
APPLICATION FOR ADMINISTRATION 63
SECURITY FOR EXECUTOR/ADMINISTRATOR — BONDS 65
EXECUTORS & ADMINISTRATORS 65
APPLICATION PROCEDURES FOR PROBATE 68
PUBLIC GUARDIAN AND TRUSTEE (PGT) 70
CHAIN OF EXECUTORSHIP 71
POST GRANT 71
REPORTING LETTER TO CLIENT 72
FINISHING THE JOB 72
CHALLENGES TO WILL 74
LEGISLATION 75
WILLS VARIATION APPLICATIONS 75
PROCEDURE 75
SPOUSAL CLAIMS 76
ISSUE CLAIMS 77
PROPERTY AVAILABLE TO SATISFY CLAIMS 78
Tataryn v. Tataryn, 1994 SCC 79
Bridger v. Bridger Estate, 2006 BCCA 79
Saugestad v. Saugestad, 2008 BCCA 79
Picketts v. Hall Estate, 2009 BCCA 79
Waldman v. Blumes, 2009 BCSC 79
McBride v. Voth, 2010 BCSC 79
SOLICITOR-CLIENT OBLIGATIONS 80
Romans v. Tassone, 2009, BCSC 80
Cardinal v. Tassone, 2013 BCSC 609 80
COURT COSTS 80
Maddess v. Racz, 2009 BCSC 1550 82
EXECUTOR’S FEES 82
Chevrefils Estate, 2010 BCSC 753 83
PROBATE ACTIONS 83
SUMMARY OF PROBATE PROCESS 83
INTESTATE SUCCESION 83
INTESTACY RULES (Part 3, WESA) 84
SPOUSES 84
CHILDREN & KIN 85
SPOUSAL HOME 85
ESCHEAT ACT 86
LETTERS OF ADMINISTRATION 86
Vaughan (Estate of), 1990 BC SC 87
Wagg v. Bradley, 1996 BCSC 87
Bank of NS Trust Co. v. Van Raan et al., 2005 BCSC 87
Jung (Re), 1979 BCSC 87
POWERS OF ATTORNEY 88
GENERAL 88
CAPACITY TO MAKE AN ENDURING POA 88
APPOINTING AN ATTORNEY 89
FORMALITIES 89
THE “ENDURING PART” 90
POWERS OF THE ATTORNEY 90
DUTIES OF AN ATTORNEY 91
PRIVILEGES AND LIABILITY 92
REVOCATION/SUSPENSION/TERMINATION 92
TRANSITIONAL - DEEMED EPOAS 92
UNDUE INFLUENCE 93
McMullen v. Weber, 2006 BCSC 93
Easingwood v. Cockroft, 2013 BCCA 93
Houston v. Houston 2012 BCCA 93
Parnell v. BC 2004 BCCA 94
Egli (PGT) v. Egli 2005 BCCA 94
Desharnais v. Toronto Dominion Bank 94
REPRESENTATION AGREEMENTS 94
GENERAL 95
SECTION 7 — Standard provisions in RA 95
SECTION 9 — Enhanced Provisions 95
EXECUTION 96
REPRESENTATIVES 96
MONITORS 97
TERMINATION OF AGREEMENT 98
CONFLICTS 99
ADVANCE DIRECTIVE FOR HEALTHCARE 99
PUBLIC GUARDIAN & TRUSTEE 99
LEGISLATION 99
GENERAL STATUTORY POWERS 99
ROLE OF PGT 100
COMMITTEES 101
GENERAL 101
APPOINTMENT OF COMMITTEE 101
POWERS OF COMMITTEE 103
COMPENSATION & FEES OF COMMITTEE 104
EFFECT OF COMMITTEE ON POA AND REPRESENTATION AGREEMENTS 104
EFFECT OF DEATH OF PATIENT 105
SOLICITOR’S RESPONSIBILITIES 105
Simons v. Simons 2013 BCSC 107
Lindberg v. Lindberg 2010 BCSC 107
WILLS & ESTATES CAN
WM = will-maker
B = beneficiary
WESA = Wills Estates and Succession Act
1. When did WM die? Determines whether WESA applies.
2. Is there a will?
3. Are there other testamentary-like documents?
4. Are there any notes?
INTRODUCTION
WILLS AND ESTATES SUCCESSION ACT (WESA)
• received royal asset on October 29, 2009; will come into effect on March 31, 2014
• repeals and replaces the following:
• Wills Act
• Wills Variation Act (WVA)
• Estate Administration Act (EAA)
• Probate Recognition Act
• It will apply to all deaths occurring after that date.
• WESA will not invalidate a will validly made before it came into force; nor will it revive a will validly revoked.
NEW PROBATE RULES
• New rules dealing w/ probate estate administration will take effect on March 31, 2014 (“the effective date”). The new probate rules are Part 25 of the BC Supreme Court Civil Rules and replace Rules 21-4 and 21-5.
• Most of court forms & procedures that were in place prior to March 31, 2014 will change under WESA & new probate rules.
TRANSITION
• If an application was filed before the effective date under a former probate rule and met all the requirements of the former rules, the application is deemed to continue under the new probate rules.
• As of March 31, 2014, all filings respecting an estate will be under the new probate rules and the registry will reject the former probate forms.
• Where an application for an estate grant is made after WESA comes into effect, the new probate rules will apply even where the person died prior to the effective date.
• Under section 185 of WESA, the following parts will apply to deaths occurring on or after the date on which those parts come into force:
· Part 2 - Fundamental Rules
· Part 3 - When a Person Dies Without a Will
· Part 6 - Administration of Estates
• WESA 186 will apply only if WM dies on or after date on which Part 4 comes into force, but does not invalidate a will validly made before effective date nor revive a will validly revoked before effective date.
• WESA 187 will apply to designations (whenever made) if the participant dies on or after the effective date.
• Under WESA 188, administration and probate grants granted under the Estate Administration Act will be deemed to be valid under WESA.
• WESA 189 will apply to wills made on or after the effective date.
• Finally, the court may give any transitional directions or make any orders with respect to an Act repealed by WESA.
WESA — biggest change — testamentary-like dispositions are going to be considered by the courts. Things that may not meet the formal requirements can be modified by the courts. Estates practice - Lawyers will have to explain to clients that even if they have paid money and made out a valid will, that will can be changed by the courts if there is any notes made by the client at home.
*** PRACTICE POINT
• In order to indemnify yourself if the client has notes at home that could change the formal will - Reporting Letter -- include that you will not be advising the client if there are any changes to legislation and if the client leaves any notes or comments, advise that this could affect the will.
• Include in the will that you revoke all prior wills.
• Courts will look at context - who prepared the will, what type of advice was given, what the will disposes of.
• Under WESA - deed of gift is considered a testamentary-like disposition.
ORDER OF DEATH & BODY
Presumption of Death Act
• S. 3 – No reason to believe a person is living + reasonable grounds to suppose person dead – can apply for order presuming death.
• S. 4 – if PR has reasonable grounds to believe person is not dead, they must cease dealing w/ estate.
• S. 5 – if person later found alive, any distribution of their property deemed to be fraud – unless court order.
Survivorship
• WESA 5(1) – if 2 or more people die at the same time (or in circumstances where it can’t be said who died first) rights of property will be determined as if each had survived the other, absent a contrary intention. Purpose – avoid unnecessary double probate & administration of 2 estates.
• WESA 5(2) – if 2 JTs die together, each person presumed to have held their interest as tenants-in-common – each person disposes of their ½ interest through their own estate – ordinary survivorship rule doesn’t apply.
• WESA 6 – if property passes to C upon the happening of an event – the event is presumed to have occurred (A’s will leaves property to C if B dies 1st).
• WESA 8 – if gift is conditional on death of person & the order of death of WM and the person is unknown, presume person died. E.g. “To B if he survives A” – A & B die together – B loses gift as B is presumed to have died first.
• WESA 10 – if a person doesn’t live for at least 5 days longer than a deceased person, they’re deemed to have died before the deceased for all purposes affected the estate of the deceased person, or property they were able to gibe by will to another – 5 day survival rule.
Insurance Act Presumptions
• B always presumed to die before the insured.
• If no other B named, proceeds go to insured’s estate.
• If insured has a will, proceeds go to residue; if intestate, proceeds form part of general estate.
Dealing with Bodies
• It is a criminal offence to neglect to deal w/ lawful duties w/r/t/ burial or to improperly/indecently interfere w/ remains – CC 182.
• Right to decide in order: PR named in will, spouse, adult child, adult grandchild, legal guardian if minor, parent, adult sibling, adult niece/nephew, etc.
DISPOSITION OF PROPERTY ON TESTACY
• Will — testamentary instrument by which WM disposes of his assets.
• In order for will to be effective WM must have:
(a) Intended will to have dispositive effect; (but may also appoint a guardian for one’s minor children and exercise a power of appointment sanctioned by statute).
(b) Intended will not take effect until after death and to be entirely dependent on death for its operation;
(c) Intended for will to be (and in fact is) revocable;
(d) Executed will in accordance w/ formalities under applicable legislation (Wills Act or WESA).
(e) Intended to make a testament or a will -- made animo testandi.
Nature of a Will
• Testamentary or inter vivos
• Docs are testamentary if they depend on death for their vigour & effect (Hutton).
• If WM directs testamentary disposition shall not take effect until after his or her death, it is not a will and cannot take effect as such (Kavanagh Estate v. Kavanagh), unless language can be construed as merely postponing possession by B (Graham v. Graham).
• Doc may not be testamentary if it takes effect immediately, even though enjoyment of benefits postponed until death of person. (Bird; Mordo).
• Conditional Wills
• Some wills contain conditions – e.g. “in the event of my death on this trip to Russia, I leave my property to X”