Sunday, April 12, 2015

Heathfield v. St. Jacques

Although the Wills, Estates and Succession Act has now been in effect for over a year, in most of the court cases being reported now, the Courts are dealing with the law as it stood before the effective date of March 31, 2014. This is because most of the provisions of the Wills, Estates and Succession Act only apply if the date of death occurred after the legislation came into effect. It is interesting to note how the law would have applied in some of the recent cases if the deceased had died on or after March 31, 2014.

The recent decision of Madam Justice Ballance in Heathfield v. St. Jacques, 2015 BCSC 505, provides an illustration.

When Michael Heathfield made his will on August 7, 2004, he was in a common-law relationship with Nicole St. Jacques. They had a child together with another on the way. In his will, he appointed Ms. St. Jacques as his executor. He left his estate to her if she survived him by thirty days, and if not, the will provided that his estate would be held in trusts for his children, until each attained the age of 25.

Mr. Heathfield and Ms. St. Jacques later separated. They divided their property. Their two children resided primarily with her, and he paid child support to her.

Instead of making a new will, Mr. Heathfield wrote in changes on his 2004 will, essentially stating that Ms. St. Jacques would not receive any of his estate, which would go to their two children. These changes were not witnessed by two witnesses as required under the Wills Act. He told others that he wanted his estate to go to his children, rather than to his former common-law spouse.

When Mr. Heathfield died on November 13, 2011, he left an estate valued at approximately $1.2 million.

Ms. St. Jacques as his executor obtained a grant of probate of the will.

The Public Guardian and Trustee of British Columbia brought an application under the Wills Variation Act on behalf of Mr. Heathfield’s two young children to vary the will. The Public Guardian and Trustee argued that the will should be varied so that the estate would be held in trust for each child until that child attains the age of 25, with the Public Guardian and Trustee acting as trustee of the funds.

Ms. St. Jacques opposed the application. She agreed that the estate should be used to benefit the two children, but argued that a formal trust was unnecessary. She as their mother would use the inheritance for their benefit. If the will was varied in favour of the two children, she asked the court to appoint her as trustee of funds.

In opposing the application to vary the will, Ms. St. Jacques relied on a previous Supreme Court of British Columbia decision, Cameron(Public Trustee of) v. Cameron Estate (1991), 41 E.T.R. 30, in which the Court declined to vary a will of a minor child’s mother. In that case, Mrs. Cameron left her estate to her husband, who was the father of the child. The trial judge found that Mr. Cameron was properly maintaining and supporting their child, and refused to vary the will.

Madam Justice Ballance varied Mr. Heathfield’s will by deleting the gift to Ms. St. Jacques, and creating trusts similar to those in the will for each of the two children in respect of the residue of the estate.

In arriving at her decision, Madam Justice Ballance declined to follow the decision in Cameron for two reasons. First, Cameron was decided before the Supreme Court of Canada’s decision in Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807, which provided a framework for determining if a adequate provision has been made, including an analysis of the will-maker’s legal and moral obligations to a spouse and children. Madam Justice Ballance expressed doubt as to whether Cameron is good authority for the proposition that a will should not be varied whenever a minor child’s surviving parent is the sole beneficiary of the will in light of the Tataryn framework.

Secondly, the circumstances in Heathfield are different. In contrast to Cameron, a case in which the court found that the wife and husband relied on each other to provide for their child, following his separation from Ms. St. Jacques, Mr. Heathfield made it clear that he did not rely on Ms. St. Jacques.

Madam Justice Ballance found that Mr. Heathfield had legal obligations to his children, as reflected in the child support he was paying, and moral obligations to them. In leaving a will that made no provision for them, Mr. Heathfield did not meet those legal and moral obligations. In contrast, he did not have those obligations to Ms. St. Jacques, who was not a person who could have applied to vary the will under the Wills Variation Act.

In her reasons for judgment, Madam Justice Ballance noted how the Wills, Estates and Succession Act has changed the law in a couple of respects that would have been significant to this case if Mr. Heathfield had died after it came into effect.

As she wrote at paragraph 82, under section 56, unless there is a contrary intention expressed in the will, “a gift to a person who has ceased to be a married spouse or a common-law spouse is revoked and must be distributed as if the surviving spouse had predeceased the will-maker.”

Section 58 of the Wills, Estates, and Succession Act would have allowed the court to give effect to Mr. Heathfield's handwritten notes on his will despite the fact that they were not witnessed if the court were satisfied that the notes represented his testamentary intentions.

Accordingly, if Mr. Heathfield had died on or after March 31, 2014, the children would likely have received his estate without having to resort to an application to vary the will under wills variation legislation (now Part 4, Division 6, of the Wills, Estates and Succession Act).

Madam Justice Ballance did accede to Ms. St. Jacques request that she be appointed as trustee of the trusts for the children, and she declined the Public Guardian and Trustee’s submission that Ms. St. Jacques should be restricted as trustee in her ability to access income from the trust for the benefit of the children.

Sunday, April 05, 2015

Larson Justice Center, Indio, California

I this photograph of the Superior Court of California, County of Riverside, Larson Justice Center, in Indio, California, a little over a year ago, in March 2014.

Wednesday, March 25, 2015

New Societies Act Introduced in British Columbia Legislative Assembly

The Government has introduced a new Societies Act in the Legislative Assembly. Bill 24 incorporates many of the recommendations made by the British Columbia Law Institute's Report on Proposals For a New Society Act, which can read here.

Tuesday, March 03, 2015

Court of Appeal Dismisses Appeal in Bentley v. Maplewood Seniors Care Society

In reasons for judgment released today in Bentley v.Maplewood Seniors Care Society, 2015 BCCA 91, The British Columbia Court of Appeal has upheld Mr. Justice Greyell’s decision dismissing a petition brought by Margaret Anne Bentley’s family seeking declarations requiring the care facility she was in to discontinue providing food and water to her.

I have written about Mr. Justice Greyell’s decision in greater depth in my previous post here, but in a nutshell Mrs. Bentley is suffering from the final stages of Alzheimer’s disease, and is incapable of communicating, walking, meeting her own care needs, or eating. She is offered nutrition by staff placing a spoon to her mouth. If she opens her mouth, she is given the food. If not, she is prompted a second time, but if she still does not accept the food, the staff do not attempt to force her to eat. Based on her communications at a time when she was clearly capable of making her own decisions, her family were of the view that she would not wish to be kept alive on this basis.

In the Supreme Court of British Columbia, Mr. Justice Greyell applied the presumption that a person is capable of making his or her own personal care decisions, and found that the family had not rebutted the presumption that Mrs. Bentley, despite her limitations, was capable of deciding whether to eat and drink when she either opened her mouth or kept her mouth closed when prompted.

Mr. Justice Greyell also considered whether British Columbia’s substitute decision making statutes authorized a substitute decision maker to make a decision to refuse personal care necessary to preserve life, and concluded, that in contrast to health care in some circumstances, the legislation did not allow a substitute decision maker to refuse personal care if doing so would cause the person to die.

The family members who had petitioned the Court appealed on the following grounds:

A.         The learned Chambers Judge erred in law by failing to address whether [Mrs. Bentley] had consented to the process of “prodding” and “prompting” that precedes her being fed by Maplewood.

B.         The learned Chambers Judge erred in law by placing the onus on [Mrs. Bentley] to prove a “clear refusal of consent”, rather than placing the onus on Maplewood to prove consent by [Mrs. Bentley] to being “prodded” and “prompted”.

C.        The learned Chambers Judge erred in law by failing to find that, in the absence of consent to the process described above, a battery is committed by Maplewood when it prods and prompts [Mrs. Bentley].

A person commits the tort of battery if he or she touches another in a non-trivial manner without the other’s consent.

Madam Justice Newbury for the Court of Appeal rejected all three grounds, finding that Mr. Justice Greyell did at least implicitly find that she was consenting, communicating her consent through her behaviour in accepting or not accepting nutrition. She also rejected the argument that the Mr. Justice Greyell placed the onus on the Petitioners to prove that Mrs. Bentley did not consent.

The Court of Appeal decided this case on the relatively narrow grounds that the evidence supported Mr. Justice Greyell’s finding that Mr. Bentley is consenting to the provision to her of food and water. The Court of Appeal did not expressly decide whether the balance of his reasons deciding that Mrs. Bentley’s family could not require the care facility to stop providing her with nutrition in this manner even if she were incapable of deciding whether to accept the provision of food and drink.

Madam Justice Newbury wrote at paragraph 18:

[18]        In closing, I emphasize again that the scope of this appeal was a narrow one and that none of the chambers judge’s conclusions regarding the documents executed by Mrs. Bentley, the applicability of the various statutes to them, or the determination of her wishes was appealed. I recognize the terribly difficult situation in which Mrs. Bentley’s family find themselves and I appreciate the disappointment they must feel in being unable to comply with what they believe to have been her wishes and what they believe still to be her wishes. It is a grave thing, however, to ask or instruct caregivers to stand by and watch a patient starve to death. It should come as no surprise that a court of law will be assiduous in seeking to ascertain and give effect to the wishes of the patient in the ‘here and now’, even in the face of prior directives, whether clear or not. This is consistent with the principle of patient autonomy that is also reflected in the statutes referred to earlier (see especially s. 19.8 of the HCCCFA Act), and in many judicial decisions, including Carter v. Canada(Attorney General) 2015 SCC 5, where the Court emphasized that when assisted suicide is legalized, it must be conditional on the on the “clear consent” of the patient. (Para. 127.)

Sunday, March 01, 2015

Restrictions on Who May File a Notice of Dispute

One of the changes made to British Columbia’s rules governing probate procedures that came into effect on March 31, 2014, was the replacement of caveats with notices of dispute. One of the main purposes of both caveats under the former rules and notices of dispute under the new rules is to prevent the court from issuing a grant of probate of a will for a period of time to allow someone who wishes to challenge the validity of the will to do so.

I have already written about the new notice of dispute in Rule 25-10 of the Supreme Court Civil Rules, but I confess I had over looked a significant change. The new rule appears to contemplate that only those who are entitled to notice of an application for an estate grant may file a notice of dispute.
Subrule 25-10 (1) says:

Notice of dispute

(1)To oppose the issuance of an estate grant, an authorization to obtain estate information or an authorization to obtain resealing information or to oppose the resealing of a foreign grant, a person to whom documents have been or are to be delivered under Rule 25-2 (2) must file a notice of dispute that accords with subrule (3) of this rule before the earlier of

(a) the issuance of an authorization to obtain estate information or an authorization to obtain resealing information, and

(b) the issuance of an estate grant or the resealing of a foreign grant.

Although subrule (1) does not expressly say that only those who are entitled to notice under Rule 25-2(2) may file a notice of dispute, subrule (3) states that the notice of dispute must state that he or she is entitled to notice:

Contents of notice of dispute

(3)A notice of dispute referred to in subrule (1) must be in Form P29, must provide an address for service of the disputant, which address for service must be an accessible address that complies with Rule 4-1 (1), and must disclose

(a) that the disputant is a person to whom documents have been or are to be delivered under Rule 25-2 (2), and

(b) the grounds on which the notice of dispute is filed.

Who is entitled to notice under Rule 25-2 (2)? To apply for an estate for a will, the applicant must provide the notice to any other executor with an equal or prior right to apply, all of the beneficiaries of the will, and anyone who would receive a share of the estate of the will-maker had died without a valid will. Anyone who falls into one of those categories may file a notice of dispute if he or she does not think the will is valid.

But what if you are a beneficiary of a prior will, you believe that the will-maker did not have capacity to make a later will (or perhaps I should say alleged will), but you do not fall within one of the categories of people entitled to notice? It would appear that because of this restriction, you cannot simply file a notice of dispute, despite the fact that you have an interest in challenging the later will. This restriction was pointed out to me by my friend and colleague Michelle Rosser, who is also one of the lawyers in the case I will refer to shortly.

If you are not within a category of people entitled to notice, you may apply to court add you as a person entitled to notice under Rule 25-2 (14)(a), which says:

Court may alter or dispense with notice

On application, the court may do one or both of the following to avoid any prejudice that would otherwise result to the intended applicant, to another person or to the estate:
(a) vary the classes of persons to whom documents referred to in subrule (1) are to be delivered;

If the court makes the order, then as a person entitled to notice, you may then file a notice of dispute.

This is what Ms. Rosser and her client did in the first reported case dealing with this issue: Re Dow Estate, 2015 BCSC 292.

Dalton George Dow named Joanne Golos as a beneficiary in a will he made in February 2013, but not in a later will made in April 2014, which I will refer to as the 2014 Will. Ms. Golos questioned whether Mr. Dow had the necessary capacity to make the 2014 Will and whether he was unduly influenced by others to cut her out. She wished to file a notice of dispute so that she would have an opportunity to investigate the merits of her claim before the named executor of the 2014 Will received probate, and potentially distributed the estate, thereby defeating her claim.

But Ms. Golos was not an executor or beneficiary of the 2014 Will, nor would she receive a share of Mr. Dow’s estate if he had left no will.

Ms. Golos applied under Rule 25-2 (14)(a)to be added as a person to whom Mr. Cosar had to give notice so that she would have the right to file a notice of dispute. Mr. Cosar argued that there was no merit to her claim, and that the effect of allowing her to file a notice of dispute was to tie up the estate for up to a year or longer.

Master Harper heard the application, and granted the order adding Ms. Golos as a person to whom Mr. Cosar had to give notice of his application to probate the 2014 Will, thereby allowing her to file a notice of dispute. Master Harper held that it was not appropriate to consider the merits of Ms. Golos’ claim. The issue was whether there was prejudice to Ms. Galos if she were not added as a person to whom notice had to be given. The Master found that there would be prejudice to Ms. Golos if she did not make the order. Master Harper wrote at paragraph 15:

[15]         The applicant has met the threshold required by Rule 25-2(14). There is a risk that if she is not included in the class of persons entitled to receive information about the estate and to file a notice of dispute, she will be prejudiced. The prejudice is the risk that Mr. Cosar will be granted probate and the estate will be distributed before the applicant’s claim can be assessed. That prejudice outweighs the possible delay in the distribution of the estate.

This decision is surely correct, but begs the question, why was this restriction on notice of disputes made in the first place? Before the rule changed, any person with an interest in the question of whether a will was valid could file a caveat. Now someone in Ms. Golos position must first make an application to court, significantly adding to the expense of disputing the will.

What if Ms. Golos had not been successful, and probate issued? She could still have applied to court to revoke the grant of probate on the grounds that Mr. Dow did not have capacity or that he was unduly influenced. Once the application is filed, the executor would be required to return the original grant to the court registry pursuant to Rule 25-5 (5)(b). The executor would have been put through the cost of applying for the grant, only to have to return it, pending resolution of the litigation. The result would be further costs, and delay.

I note that restricting the right to file a notice of dispute to those entitled to notice of the probate application was not one of the recommendations made in the British Columbia Law Institute Report on New Probate Rules, on which many of the new rules were modeled. I assume someone in government thought this restriction a good idea, but I cannot see any benefit to this restriction, and the Rule should be amended to allow anyone with an interest under a previous will to file a notice of dispute, whether or not he or she would be entitled to notice of the application for an estate grant.

Sunday, February 22, 2015

British Columbia Law Institute Report on Terminating a Strata

The British Columbia Law Institute  has just published its Report on Terminating a Strata recommending reform of the Strata Property Act provisions allowing a strata to wind up its strata corporation and cancel the strata plan.

Under current legislation, there are very stringent requirements that must be met before a strata may be terminated. The Strata Property Act requires a unanimous vote to terminate a strata, which effectively requires that all owners consent. On an application authorized by three-quarters of the votes, the court may allow a termination in very limited circumstances despite dissenting votes. Pursuant to section 52 of the Strata Property Act, if a strata corporation is comprised of 10 or more strata lots, and the vote in respect of one strata lot, or if more than one strata lot, “the court may, if satisfied that the passage of the resolution is in the best interests of the strata corporation and would not unfairly prejudice the dissenting voter or voters, make an order providing that the vote proceed as if the dissenting voter or voters had no vote.”

For most termination applications, the consent of the mortgagees and other registered charge holders is also required.

Why would the owners want to terminate their strata? One of the reasons is that as buildings age, they may become obsolete. The cost of repairs and maintenance of apartments and other buildings may become disproportionately high in comparison to what the owners might be able to receive if the strata is terminated and the property sold for redevelopment.

If the threshold for terminating a strata is too high, there is a risk that a small minority may unreasonably withhold consent to termination in circumstances where it is clearly in the best interest of the owners as a whole to terminate.

On the other hand, too low a threshold may be unfair to those who disagree with the majority, particularly for the owners of residential strata lots who occupy their units, for whom termination will require finding a new residence.

In the Report, the Strata Property Law (Phase Two) Project Committee, chaired by Patrick Williams of the law firm Clark Wilson LLP, sought to balance the collective interests of a strata, with the need to provide safeguards for minority dissenting owners and charge holders.

The Report recommends that the threshold for terminating a strata be lowered to 80% of the eligible votes. The consents of charge-holders would not be required. On the other hand, unless the strata consists of fewer than five strata lots (in which case the 80% threshold would effectively require unanimity), the strata corporation would also require court approval to terminate the strata. The requirement for court approval would give any dissenting owners, and holders of charges registered against the land the opportunity to oppose the termination. The court would then have to determine whether the termination is in the best interests of the strata corporation.

The Report contains a detailed analysis of the relevant provisions of the Strata Property Act and earlier British Columbia legislation, a comparison of the law in other jurisdictions, a discussion of the policy implications, and 21 specific recommendations. 

Friday, February 13, 2015

Estate of Young: Curative Provisions of Wills, Estates and Succession Act.

We now have a reported case applying the new British Columbia legislation allowing the court to give effect to a document or other record as a will even though it does not comply with the formal signing and witnessing requirements for a valid will. This curative provision is section 58 of the new Wills, Estates and Succession Act, and I have written about it before.

The case is Estate of Young, 2015 BCSC 182, and Madam Justice Dickson released her reasons for judgment on February 6, 2015. It is significant because it is the first precedent in British Columbia, and the approach Madam Justice Dickson took to section 58 will likely influence future cases.

Sharone Young made her will on March 2, 2009, in which she appointed The Canada Trust Company as her executor. One clause in the will instructed the executor to dispose of articles of personal, domestic and household use or ornament in accordance with a memorandum that she would leave with her will.

The March 2, 2009 will was properly signed and witnessed, and there was no question about the validity of it. But The Canada Trust Company, through its lawyer John Bilawich, asked the court whether two later documents represented her testamentary intentions, and should be given effect as though they were part of her will.

Madam Justice Dickson described the first document as follows:

[9]             The June 17 Documents has two pages.  The first page is headed "Sharone Young" and "June 17, 2013", followed by the words:

Distribution of furniture, art, antiques, jewelry, sculptures, First Nation masks etc. This is being prepared if I have not sold, given in advance of death.

Thereafter, six people, described as beneficiaries, are named and, under each name, several items of personal property are listed.  The final words on the first page are:

If items not taken buy any of the beneficiaries provide to sell - Maynards Auction, Consignment shops in West Vancouvers including antiques and designer clothes, mink coat.  Maynards would be good resource for items they do not sell for auction.

There are items not named that could be the choice of named beneficiaries.

[10]         The first page of the June 17 Document is signed by Ms. Young.

[11]         The second page of the June 17 Document begins with the words "Beneficiary Contacts Information".  Thereafter, the following words appear:

For physical items in home or safety deposit box (jewelry for Kelly Young)) Bank of Montreal, Main and Mountain Hwy, North Vacouver, BC.  It is my intention to give before my passing.

[ list of names and contact information ]
Money for estate to provide through Will:

[ list of names of individuals and organisations ]

This is being provided as a caution.  Zach and Faren can be responsible, with help, once old enough to be responsible.

On that same day, Ms. Young showed an unsigned copy of the June 17 Document and asked her to help assist with distributing items to people who wanted them, and find places for the remaining items.

With respect to the second document:

[13]         The October 15 Document has one page.  Ms. Young's address and the date appear at the top of the page, followed by these words:


This will serve to confirm, I have requested Nancy Sunderland of 1920 Riverside Dr., North Vancouver, BC to distribute to named beneficiaries household effects including art, all antiques, all furniture.  Specific items have been identified for specific beneficiaries.  As well, beneficiaries may also choose other items not named for them for the rest.

Because Zach and Faren Cross-Nadeau are the youngest, they may have first choice of unnamed items.  Jefferey Young and then the others based upon age for fairness.  Items not taken by all beneficiaries are to be consigned, sold or auctioned on behalf of the estate.

Ms. Young did not sign the October 15 Document.

If finding that the June 17 Document, but not the October 15 Document, represented Ms. Young’s testamentary intentions and should be given effect, Madam Justice Dickson applied the approach of the leading Manitoba Court of Appeal case on Manitoba’s curative legislation, George v. Daily (1997), 143 D.L.R. (4th) 273, a case I wrote about here.

Madam Justice Dickson summarized the approach as follows:

[34]         As is apparent from the foregoing, a determination of whether to exercise the court's curative power with respect to a non-compliant document is inevitably and intensely fact-sensitive.  Two principal issues for consideration emerge from the post-1995 Manitoba authorities.  The first in an obvious threshold issue:  is the document authentic?  The second, and core, issue is whether the non-compliant document represents the deceased's testamentary intentions, as that concept was explained in George.

[35]         In George the court confirmed that testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death.  The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased's property on death.  A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a will, by its nature, is revocable until the death of its maker.  Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.

[36]         The burden of proof that a non-compliant document embodies the deceased's testamentary intentions is a balance of probabilities.  A wide range of factors may be relevant to establishing their existence in a particular case.  Although context specific, these factors may include the presence of the deceased's signature, the deceased's handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests and the title of the document:  Sawatzky [v. Sawatzky, 2009 MBQB 222] at para. 21; Kuszak [v. Smoley, [1986] M.J. No. 670 (Q.B.)] at para. 7; Martineau [v. Myers Estate, [1993] M.J. No. 339 (Q.B.)] at para. 21.

[37]         While imperfect or even non-compliance with formal testamentary requirements may be overcome by application of a sufficiently broad curative provision, the further a document departs from the formal requirements the harder it may be for the court to find it embodies the deceased's testamentary intention:  George at para. 81.

The factors that lead Madam Justice Dickson to conclude that the June 17 Document represented Ms. Young’s testamentary intentions were that the language conveyed “an air of finality,” that it was generally consistent with the provisions of her will, that she signed it and left it on her dining room table where it could be found by others, and that she showed an unsigned copy to her neighbour and sought her assistance in carrying out Ms. Young’s wishes.

In contrast, the October 15 Document did not constitute a disposition, but contained an expression of Ms. Young’s non-binding wishes. She did not sign it, nor was there evidence that she showed it to anyone.