Separation Without Termination: Robledano v. Queano

Can you separate from your common-law spouse without terminating the relationship? Apparently, according to the British Columbia Court of Appeal decision in Robledano v. Queano, 2019 BCCA 150.

Spousal status is often critical in estate disputes. A “spouse” as that term is defined in the Wills, Estates and Succession Act (the “WESA”) may apply to vary her deceased’s spouse’s will. If there is no valid will, she will be entitled to a share of the estate on an intestacy (sometimes the entire estate). There is not surprisingly a great deal of litigation over the question of whether someone meets the definition of spouse.

Section 2 of the WESA sets out the criteria for a spouse under the Act. I will leave out subsection (2.1) which is not necessary for this discussion.

2   (1) Unless subsection (2) applies, 2 persons are spouses of each other for the purposes of this Act if they were both alive immediately before a relevant time and

(a)they were married to each other, or

(b)they had lived with each other in a marriage-like relationship for at least 2 years.

(2) Two persons cease being spouses of each other for the purposes of this Act if,

(a)in the case of a marriage, an event occurs that causes an interest in family property, as defined in Part 5 [Property Division] of the Family Law Act, to arise, or

(b)in the case of a marriage-like relationship, one or both persons terminate the relationship.

….
(3) A relevant time for the purposes of subsection (1) is the date of death of one of the persons unless this Act specifies another time as the relevant time.

The Family Law Act (the “FLA”) has similar, but as we shall see, not identical, criteria for determining when someone is a spouse. Section 3 provides:

3  (1) A person is a spouse for the purposes of this Act if the person

(a)is married to another person, or

(b)has lived with another person in a marriage-like relationship, and

(i)has done so for a continuous period of at least 2 years, or

(ii)except in Parts 5 [Property Division] and 6 [Pension Division], has a child with the other person.

(2)A spouse includes a former spouse.

(3)A relationship between spouses begins on the earlier of the following:

(a)the date on which they began to live together in a marriage-like relationship;

(b)the date of their marriage.

(4) For the purposes of this Act,

(a)spouses may be separated despite continuing to live in the same residence, and

(b)the court may consider, as evidence of separation,

(i)communication, by one spouse to the other spouse, of an intention to separate permanently, and

(ii)an action, taken by a spouse, that demonstrates the spouse's intention to separate permanently.

Section 81 of the FLA deals with the rights of each spouse to property held by the other on separation. It reads:

81  Subject to an agreement or order that provides otherwise and except as set out in this Part and Part 6 [Pension Division],

(a)spouses are both entitled to family property and responsible for family debt, regardless of their respective use or contribution, and

(b)on separation, each spouse has a right to an undivided half interest in all family property as a tenant in common, and is equally responsible for family debt.

The main issue in the Court of Appeal in Robledano was whether Maria Robledano was Barbara Jacinto’s spouse when Ms. Jacinto died on April 14, 2014. If so, because the court had found that Ms. Jacinto did not have a will, Ms. Robledano is entitled to the entire estate. If not, the estate goes to other relatives. In the Supreme Court of British Columbia, the trial judge found that Ms. Robledano was Ms. Jacinto’s spouse. One of Ms. Jacinto’s sisters, Milagros Queano, appealed.

Ms. Robledano and Ms. Jacinto were not married. The parties agreed that Ms. Robledano and Ms. Jacinto were in a marriage-like relationship from 1985 to 2000, and again from 2005 to 2010, but Ms. Queano argued that they were no longer in a marriage-like relationship after 2010. From November 2010, Ms. Robledano and Ms. Jacinto had separate residences, but Ms. Robledano maintained that they did continue to reside together part of the time.

The Court of Appeal held that the trial judge applied the correct legal tests and did not make any palpable and overriding error.

In his reasons for judgement, Mr. Justice Groberman held that it is not necessary for a couple who were in a marriage-like relationship to be in a marriage-like relationship at the time of death, as long as the relationship had not been “terminated.” Termination is not the same as separation, although separation is a factor that may be considered.

Mr. Justice Groberman wrote:

[39]         Ms. Queano says an unmarried person can only be the spouse of a deceased person if they were living together at the time of death and for at least the two years immediately preceding it. In my view, that is not a correct interpretation of s. 2(1).

[40]         Paragraph 2(1)(b) of the statute uses the past perfect tense (“had lived together”) rather than the past continuous tense (“were living together”). The ordinary grammatical meaning of paragraph 2(1)(b) is that in order for a person who was not married to the deceased to be their spouse, the two must have lived together in a marriage-like relationship for two years, but not necessarily for the two years immediately preceding the deceased’s death. In contrast to paragraph 2(1)(b), paragraph 2(1)(a) uses the past continuous tense (“were married”) rather than the past perfect tense (“had been married”). The statute is professionally drafted and the use of these different tenses should be presumed to be deliberate.

Further on:

[44]         Ms. Queano contends that the question to be asked under s. 2(2)(b) is whether the parties separated. She says that the parties clearly did so at the end of 2010, and that they remained separated for the rest of Ms. Jacinto’s life.

[45]         Again, I am unable to fully agree with Ms. Queano’s interpretation of the statute. Paragraph 2(2)(a) of the WESA provides that married persons cease to be spouses when events occur that engage the property division provisions set out in Part 5 of the Family Law Act, S.B.C. 2011, c. 25. Typically, those provisions are engaged, under s. 81 of the Family Law Act, when the parties separate.

[46]         Paragraph 2(2)(b), on the other hand, which applies to persons who are not married but are in a marriage-like relationship, does not mention “separation” nor does it incorporate any test involving Part 5 of the Family Law Act. It simply states that persons in a marriage-like relationship cease to be spouses when either or both of them “terminate the [marriage-like] relationship”. I do not suggest that separation is an irrelevant consideration under the provision. The fact that parties have separated may lead a judge to infer that one or both of them has terminated the marriage-like relationship. That said, separation, per se, is not the test for termination of a marriage-like relationship.

Mr. Justice Groberman wrote that the standard for termination is a flexible one.

[55]         What we are left with, in s. 2(2)(b) of the WESA, is a rather imprecise and flexible legal standard. The question of whether a person has “terminated the relationship” requires a judge to consider the expressed and implicit intentions of each spouse, as well as the objective evidence concerning the subsistence of the relationship. The determination is a “judgment call” for the trial judge – the application of a broad legal standard to the factual circumstances of an individual case. It is a question of mixed fact and law. 

I have some doubt as to whether the drafters of the WESA intended to have different criteria for determining when a spousal relationship ends for the purpose of the WESA and for the purpose of the FLA. I understood that the intent was that one could have either a claim under the FLA or the WESA but not both. 

Consider this scenario. A couple living in a marriage-like relationship “separates” but neither one “terminates” the relationship. One of them dies without a will, leaving surviving him a child from a previous relationship. The implication is that the survivor may make both a claim to property under the FLA and a share of the estate under the WESA. Suppose he has an estate of $1 million, and the court finds that the surviving spouse is entitled to $400,000 under the FLA, leaving the value of the remaining estate at $600,000. Of this $600,000, the surviving spouse receives the first $150,000 plus one-half of the balance. The total amount the surviving spouse receives is $775,000 ($400,000 under the FLA, plus $150,000 and $225,000 under the WESA). If the spouses had not been separated, the surviving spouse would have received $575,000. If they had been separated, but the relationship terminated, then the surviving spouse would have received $400,000.

Volovsek v. Donaldson

The provisions of the Wills, Estates and Succession Act (the “WESA”) allowing a spouse or child to apply to vary a will if the will-maker has not made adequate provision for the spouse or child may be avoided by the will maker settling a trust during his lifetime, and holding significant assets in the trust. The relevant sections in Part 4, Division 6 of the WESA do not apply to assets held in trust. Claims that transfers of assets into a trust to avoid a wills variation claim offend the Fraudulent Conveyance Act have not been successful (although I would argue that in some circumstances it may be open to successfully challenge a trust on the basis of the Fraudulent Conveyance Act, but that’s for another post).

In a recent decision, Volovsek v. Donaldson, 2019 BCSC 1820, the plaintiff’s lawyers came up with a creative argument in an unsuccessful attempt to challenge a trust.

Yasmine Volovsek and Fernand Joseph Boisvenu were in a relationship from 1989 until Mr. Boisvenu’s death in March 2015. In 2014 he settled a trust, which held most of his assets, and he also made a will. Under the will and trust, he provided Ms. Volovsek about $1 million. The total value of his assets, including those he held in trust, was about $8 million. The other beneficiaries were relatives and a friend.

Ms. Volovsek alleged that they were in a marriage-like relationship. If so, she would be able to apply to vary his will, and if they had separated during his lifetime, she could have made a claim to a share of the assets pursuant to the Family Law Act.

She alleged that she was financially dependant on him, and he owed her a fiduciary duty, or in other words a high duty of loyalty, which included a duty to tell her of his estate plan so she could take steps to protect her interest including separating from him and making a family law claim. Mr. Justice Myers set out her argument at paragraph 144:

[144]   Ms. Volovsek argues that the fiduciary duties were owed because (quoting from her written argument):

a)         they were spouses; b) he encouraged and asked Ms. Volovsek to be completely financially dependent on him from the beginning of the relationship and she gave up education and job opportunities to be self-sufficient in reliance on these promises; c) he promised to her multiple times that she would be well provided for from his estate ("there's $5 million in the bank and no Japanese, do you want to see my will?"); and (d) based upon these statements and their relationship, Ms. Volovsek stayed and took care of Mr. Boisvenu when he was sick instead of separating from him upon the [Ms. F.] affair to crystallize her family property claim.

The reference to “no Japanese” was a reference to Ms. F. with whom he also had a relationship.

Although Mr. Justice Myers found that Ms. Volovsek and Mr. Boisvenu did not have a marriage-like relationship, he considered the argument that Mr. Boisvenu had a fiduciary duty to Ms. Volovsek on the assumption that they were in a marriage-like relationship.

There are certain relationships which the courts have recognized as fiduciary relationships such as a trustee-beneficiary, lawyer-client, director-corporation. He rejected the argument that a spousal relationship should fall into a similar category when one spouse is financially dependant on the other. Mr. Justice Myers wrote:

[147]   In my view, the proposed category is not appropriate.  First, it is not simply a type of relationship (as, for example, solicitor-client); rather, it adds an additional quality to the relationship, i.e. financial dependence.

[148]   Moreover, but for the qualification of the relationship having to involve financial dependence, it would engage every spousal relationship.  Yet as the courts have recognised, and as discussed in Mother 1, there is no set type of spousal relationship.  Although, Ms. Volovsek's counsel submitted that, "If it looks like a duck, walks like a duck and quacks like a duck, then it is a duck", there is no defined "duck".

In cases that do not fall within a category recognized by the courts as inherently fiduciary, the courts may still find on the particular facts that one person owed the other fiduciary duties. This is referred to as ad hoc fiduciary duties. Mr. Justice Myers summarized the law:

[157]   In Elder Advocates of Alberta Society v. Alberta, 2011 SCC 24 and PIPSC, the court set out the requirements to establish an ad hoc fiduciary duty.  A plaintiff must show that:

a)              the alleged fiduciary has expressly or impliedly undertaken to act in the best interest of the plaintiff;

b)              the alleged fiduciary has scope for the exercise of some discretion or power;

c)               the alleged fiduciary can unilaterally exercise that power or discretion so as to affect the plaintiff's legal or practical interests;

d)              the plaintiff is peculiarly vulnerable to or at the mercy of the alleged fiduciary holding.

He found on that facts that there Mr. Boisvenu did not undertake to act in Ms. Volovsek’s best interest. Statements made by him to her that he would leave assets to her were not ones that she could reasonably rely on. One statement was a vague statement that she was in his will, and the other two indicating that she would get most of his wealth were made when he in a medical emergency. Mr. Justice Myers did not accept her evidence that Mr. Boisvenu asked her to quite work.

Mr. Boisvenu kept his assets separate, and maintained an independent lifestyle. Mr. Justice Myers distinguished the facts from circumstances in which a couple build a business together, or one spouse stays at home to raise the children.

Might the argument that there is a fiduciary duty owed by one spouse to another be successful in a different case? Perhaps, although the types of circumstances in which I think it might be successful could also give rise to other claims such as unjust enrichment or proprietary estoppel.

Amendments to section 151 of the WESA

Section 151 of the Wills, Estates and Succession Act (the “WESA”), was amended effective September 16, 2019. This section allows someone who is not the deceased’s personal representative to apply to court to make or defend a claim on behalf of the deceased. The amendments make a number of procedural changes, some of which I will comment on.

As amended, section 151 now says:

151   (0.1)In this section, "specified person" means a beneficiary, an intestate successor or a person who may commence a proceeding claiming the benefit of Division 6 [Variation of Wills] of Part 4 [Wills].

(1)Despite section 136 [effect of representation grant], a specified person may, with leave of the court, commence proceedings in the name of the specified person and on behalf of the estate of the deceased person

(a)to recover property or to enforce a right, duty or obligation owed to the deceased person that could be recovered or enforced by the personal representative, or

(b)to obtain damages for breach of a right, duty or obligation owed to the deceased person.

(1.1)A specified person may apply for leave of the court under subsection (1) in the proceedings described in that subsection.

(2)Despite section 136, a specified person may, with leave of the court, defend in the name of the specified person and on behalf of the estate of a deceased person, a proceeding brought against the deceased person or the personal representative.

(2.1)A specified person may apply for leave of the court under subsection (2) in the proceeding described in that subsection.

(3)The court may grant leave under this section if

(a)the court determines the specified person seeking leave

(i)has made reasonable efforts to cause the personal representative to commence or defend the proceeding,

(ii)has given notice of the application for leave to

(A)the personal representative,

(B)any other specified persons, and

(C)any additional person the court directs that notice is to be given, and

(iii)is acting in good faith, and

(b)it appears to the court that it is necessary or expedient for the protection of the estate or the interests of a specified person for the proceeding to be brought or defended.

(4)On application by a specified person or a personal representative, the court may authorize a person to control the conduct of a proceeding under this section or may give other directions for the conduct of the proceeding.

First, this section now allows a person who is not a beneficiary or intestate successor, but who is making a claim to vary the deceased’s will, to apply under section 151. A spouse or child who may apply under Part 4, Division 6 of the WESA for a share or larger share of the deceased’s estate. As was noted in Sharma v. Sharma, 2018 BCSC 1262, a wills variation claimant did not have standing under section 151 unless she was already a beneficiary. Now the definition of “specified persons” including wills variation claimants.

Second, it is clear now that the person applying under this section may file a notice of civil claim or petition before making the application. This may be inferred from subsection (1.1) which says that leave may be applied for in the proceedings for which the applicant is seeking leave.

Third, the wording of this section used to say that the person making or defending the claim was to do so “in the name and on behalf of the personal representative of the deceased person.” If say a beneficiary wished to make a claim for the benefit of the estate against the personal representative, she would have to name the personal representative as both a plaintiff and defendant, which is absurd. Now the person making or defending a claim does so in her own name “and on behalf of the estate of the deceased person.”

Palazzo di Giustizia (Palace of Justice), Rome, Italy

Kim and I took these photographs of the Palace of Justice last summer in Rome.

Order Declaring Person Incapable of Managing Her Person Revokes Power of Attorney

[This guest post is written by Taeya Fitzpatrick of our firm, Sabey Rule LLP. She discusses the impact of an order declaring someone incapable of managing her person in British Columbia on a power of attorney.]

I have recently come across an interesting issue with respect to the Patients Property Act and, perhaps, an unintended consequence in the way section 19 was drafted.

Under the Patients Property Act, a person can be declared a patient by reason of being unable to care for their person, their finances, or both. Another person can then be appointed as the committee of the estate of the patient, committee of the person of the patient, or both.

However, even if the application before the Court only concerns the person, the effect of being declared a patient results in any and all power of attorney agreements being terminated from the date of the order:

Effect on power of attorney or representation agreement of person becoming a patient by court order

19  On a person becoming a patient as defined in paragraph (b) of the definition of "patient" in section 1,

(a) every power of attorney given by the person is terminated, and

(b) unless the court orders otherwise, every representation agreement made by the person is terminated.

Section 1 part b provides the definition of “Patient” relevant to section 19:

(b)          a person who is declared under this Act by a judge to be

(i) incapable of managing his or her affairs,

(ii) incapable of managing himself or herself, or

(iii) incapable of managing himself or herself or his or her affairs;

Therefore, once a person is declared incapable, if no one applies to be committee of the patient’s finances, the Public Guardian and Trustee becomes committee by default. At issue in Re Clay, 2016 BCSC 261, was whether the declaration of incompetence severed the representation agreement. Unlike a power of attorney, a representation agreement can be preserved by the court in appointing someone as a committee of the estate of a person.

In a recent case that I was personally involved in, the daughter of the patient applied for, and was granted, committeeship of the person of her mother. The daughter did so as the previous personal representative of the mother was no longer able to continue the job and no one had been appointed as an alternate. The daughter had only intended to take over her mother’s person and had no intention to disturb the power of attorney which had been granted to a trust company. Regardless of those intentions, the Patients Property Act operated to sever the power of attorney and the Public Guardian and Trustee became the acting committee of the estate of the mother.

I then, on behalf of the trust company applied to the court to resume the trust company’s handling of the mother’s finances. The application was successful, but as a result of the Ac, the mother was put to unnecessary expense. This should operate as a cautionary tale to counsel to make sure that their applications will not have unfortunate, unintended consequences.

Supreme Court Civil Rules Amendments Change Procedures in Estate Litigation

Admittedly this isn't the most eye-catching title, but there are some significant amendments to the Supreme Court Civil Rules affecting the conduct of estate litigation matters that came into effect on July 1, 2019. I will highlight a couple of changes.

One of the changes is to broaden the scope of those persons who may file a notice of dispute. The purpose of a notice of dispute is to prevent the issuance of an estate grant when there is a dispute about a will or about the appointment of a personal representative. For example, someone may file a dispute if she alleges the will is invalid, or if she believes there are grounds to pass over the executor. 

The rule used to provide that a notice of dispute could be filed by a person to whom notice must be given of the application for an estate grant, which generally limited it to those who are beneficiaries or would be entitled to notice on an intestacy. The problem was that other people, such as beneficiaries of a prior will might have good grounds to file a notice of dispute, but would not be entitled to notice. I wrote about the problem in a previous post.

Now Rule 25-10 (1) also allows a person “who claims an interest under a prior or subsequent will” to file a notice of dispute.

Another welcome change is that Rule 25-14 has been amended to provide that most applications must now be brought either by a notice of application, if a probate file has been opened, or by petition if a probate file has not been opened. Previously, the Rules provided that many applications had to be made by requisition if a probate file had not been opened. In most cases, starting a proceeding, which in some cases could include multi-million dollar litigation, by requisition was nonsensical. A requisition is a request to the court, which is generally not served on other parties, and there are no rules setting out a time for other parties to respond. For example, before these amendments, if no probate file had been open, someone wishing to bring an application under Section 58 of the Wills, Estates and Succession Act asking the court whether a document that does not comply with the formal signing and witnessing requirements of a valid will should be given effect as a will, was required to apply be requisition. There was even a prescribed form of requisition. In practice, lawyers either filed a submission for an estate grant and then brought an application by notice of application, or ignored the rule requiring a requisition and proceeded by petition. There have been several decided cases under section 58 that were brought be petition. The change brings the Rules more in line with the practice. In contrast to requisitions, there are well developed rules relating to service and filing of responses (Rule 16-1).

Rule 25-14 (1.11) provides that applications may be made by requisitions in limited circumstances. You can use a requisition for an order pursuant to Rule 25-2 (14) changing the class of persons to whom notice of the application for an estate grant must be given, or dispensing with the requirement that the notice be sent to certain beneficiaries. You can also use a requisition to apply to shorten the time from 21 days in which notice of an application for an estate grant must be given before filing the materials for an estate grant.

As at today’s date, July 6, 2019, the online version of the Supreme Court Civil Rules in bclaws has not been updated to reflect these changes. I hope it will be updated within the next week.

Re: Levesque

[This post is a guest post written by Keith Sabey,  of our firm Sabey Rule LLP about a recent case of his in which section 58 of the Wills, Estates and Succession Act was applied to a will in which the will-maker used white out to remove a beneficiary.]

When you complete your estate planning with a lawyer, you will generally receive a reporting letter, which explains the work completed. The letter will also typically contain cautions against doing certain things like writing on or marking the Will or removing the staples from the Will.

Unfortunately, it is not uncommon for will-makers to write on or otherwise make various markings and changes on their originally executed wills. This may be done by accident or it may be done in an attempt by the will-maker to alter or revoke all or portions of their Will. This problem is compounded when the will-maker makes these markings without telling anyone and the issue is only discovered after the time of death. This is not a new problem. The courts have battled with how to deal with this issue for a very long time.

The recent case of Re:Levesque, 2019 BCSC 927 , involved the application of white-out to cover one of seven residual beneficiaries. A disagreement arose between the remaining beneficiaries as to how to deal with the application of the white-out. Unfortunately, the white-out marking was not signed by the will-maker and by two witnesses as required by the Wills, Estates and Succession Act.

In cases where there is a marking on a will, there is a rebuttable presumption that the marking on the Will was made subsequent to the execution of the Will- see the discussion in Gillis v Ardies, 2009 BCSC 215 and in particular para 23. Evidence to the contrary including evidence from the witnesses to the Will is important. For example a witness to the Will may be able to provide evidence as to whether or not the marking on the Will existed at the time of execution of the Will.

Generally speaking, substantive, unsigned and un-witnessed markings on a Will are not effective. However there is a long-standing exception that provides that when a will-maker goes to the trouble of obliterating a word or phrase in a Will, so that it cannot be read upon ordinary inspection, the Will is admitted to probate with the words that are no longer apparent being left blank. In British Columbia, this exception is discussed in s. 54 of WESA. As explained by Mr. Justice Gomery in Re: Levesque, 2019 BCSC 927 at paras 24 – 28:

[24]        Alterations to a will are addressed in s. 54 of the WESA.  Essentially, it requires that an alteration made after the will was executed must be signed by the will’s maker whose signature must be witnessed by two witnesses, in each other’s presence and in the presence of the maker.  These requirements may be avoided:

a)    Under s. 54(4)(a), if the alteration is not substantive;

b)    Under s. 54(3)(a), if the alteration has made a word or provision illegible; or

c)    Under s. 54(3)(b), if the alteration is made effective by an order pursuant to s. 58.

[25]        The Alteration in this case is substantive and s. 54(4)(a) does not apply.

[26]        The exception in s. 54(3)(a) for alterations that make a word or provision illegible dates back to the English Wills Act, 1837 (1 Vict. c. 26, s. 21).  It was determined by the English courts, in reasoning that has been adopted in British Columbia, that the words or provision in question must be impossible to read by ordinary inspection of the document, without chemical or other analysis; Springay Estate (Re), [1991] B.C.J. No. 984 (S.C. Master).

[27]        In this case, an affiant has sworn that the provision in question listing Ms. Nixon as a beneficiary can be read under the white-out by holding the Will up to the light.  I have inspected the Will and come to the same conclusion.  I find that the Alteration has not made the provision illegible within the meaning of s. 54(3)(a).

[28]        The Alteration is therefore ineffective unless it is made effective by an order pursuant to s. 58.

Given that the name under the white-out could still be read by ordinary inspection by holding the Will up to a strong light source, Mr. Justice Gomery then considered the application of s. 58 of the WESA. This section may be used by the Court to find that the marking on a will represents the testamentary intentions of the will-maker to “revoke…[a] testamentary disposition of the deceased person” and for the Court to order that the marking is effective as though it had been properly made “as a revocation, alteration or revival of a will of the deceased person.” At paras 30-37 he explained:

[30]        The leading decision concerning the matters to be considered in deciding whether to make an order under s. 58(3) is Estate of Young, 2015 BCSC 182.  The reasoning in Estate of Young was approved by the Court of Appeal in Hadley Estate (Re), 2017 BCCA 311, aff’g 2016 BCSC 765.  In Estate of Young, Madam Justice Dickson identified two issues.  The first is whether the document – in this case, the Alteration – is authentic.  I have already found that the Alteration was made by the Deceased and the requirement of authenticity is satisfied.

[31]        Dickson J. identified the second issue as the core issue.  She relied on a decision of the Manitoba Court of Appeal addressing equivalent legislation to the WESA in George v. Daily (1997), 143 D.L.R. (4th) 273.  She stated, at paras. 34-36:

[34]      … 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.  …

[32]        Accordingly, the question I must address, on a balance of probabilities, is whether the Alteration was a deliberate or fixed and final expression of the Deceased’s intention to remove Ms. Nixon from her Will.

[33]        Carefully dabbing white-out over the provision in question was undoubtedly a considered and deliberate act on the part of the Deceased.  She was applying the white-out to the original Will.  It was not a casual act.  The only reasonable inference is that her intention was to remove the provision from the Will.

[34]        There is no evidence that the Deceased was not of sound mind and lacked testamentary capacity at any point before she gave up custody of the Will in June 2018 or indeed before she died.

[35]        The likelihood is that the Deceased applied the white-out after she learned of Ms. Nixon’s marriage in January 2018.  This was nine years after she had made the Will and it is probable that she had forgotten Ms. Leung-Levesque’s advice about altering the Will, or she may not have taken it seriously.  The case reports record many cases in which makers of wills attempt to alter them without complying with the formal requirements.  This tendency of will makers to ignore the requirements of the statute is one of the reasons s. 58 was added to the legislation with the enactment of the WESA in 2009, allowing the Court to approve non-complying alterations and amendments where the will-maker’s intentions and continuing capacity to make a will are clear.

[36]        If the Deceased applied the white-out in the immediate aftermath of learning of Ms. Nixon’s marriage, she took no steps to reinstate or unrevoke the gift to Ms. Nixon after that.  She maintained an affectionate relationship with Ms. Nixon, giving her a marriage gift and congratulating her on her marriage to “a good hard-working man”.  It may be that she no longer felt that Ms. Nixon needed special provision as she had felt nine years earlier.  This is speculation.  The facts I am left with are that the Deceased made the Alteration deliberately, in the knowledge that she was altering the original Will, with the intended effect that Ms. Nixon was removed as a Beneficiary.

[37]        I conclude that the Alteration was a deliberate or fixed and final expression of the Deceased’s intention to remove Ms. Nixon from the Will.  Giving effect to the Deceased’s expressed intention, it is therefore appropriate to order that the Alteration be made effective pursuant to s. 58(3) of the WESA.

Mr. Justice Gomery also provided a useful summary of how costs are typically dealt with in applications where the parties are forced into litigation as a result of the conduct of the Deceased i.e. revoking a beneficiary in the Will without complying with the formal technical requirements, which forced the co-executors to apply to the court for directions. Specifically paras 38 – 41 read:

[38]        The co-executors seek an order for special costs, payable from the Estate.  Ms. Leung-Levesque, Wayne Levesque and Ms. Nixon oppose.

[39]        In Lee v. Lee Estate (1993), 84 B.C.L.R. (2d) 341, Master Horn discussed costs orders in probate or administration actions such as this.  At para. 13 he stated:

·        … In such cases where the validity of a will or the capacity of the testator to make a will or the meaning of a will is in issue, it is sometimes the case that the costs of all parties are ordered to be paid out of the estate. This is upon the principle that where such an issue must be litigated to remove all doubts, then all interested parties must be joined and are entitled to be heard and should not be out of pocket if in the result the litigation does not conclude in their favour. The estate must bear the cost of settling disputes as a cost of administration. This is the reasoning which underlies such cases as Re Dingwall (1967) 65 D.L.R. (3d) 43 (Ont. H.C.) and McNamara v. Hyde [1943] 2 W.W.R. 344 (B.C.S.C.) and Re Lotzkar Estate (1965) 51 W.W.R. 99 (B.C.C.A.). The question to be asked in such case is whether the parties were forced into litigation by the conduct of the testator or the conduct of the main beneficiaries.

[40]        The Court of Appeal quoted Master Horn’s reasoning with approval in Vielbig v. Waterland Estate (1995), 1 B.C.L.R. (3d) 76 at paras. 41-45. [41]        In my view, this is a case in which the parties were forced into litigation by the conduct of the Deceased.  Her alteration of the Will gave rise to a dispute among the beneficiaries of the Will.  It was reasonable for the executors to apply to the Court to resolve the dispute.  All parties’ costs should be paid from the Estate and the executors’ costs should be assessed as special costs; Mawdsley v. Meshen, 2011 BCSC 923 at paras. 35-40.

Another useful broader summary of how costs are handled in estate litigation matters can be found in Mr. Justice Silverman’s discussion in Jung v HSBC, 2007 BCSC 1740 at para 106-107:

[106]      The case law in estate proceedings supports the following general approach:

1.         The costs of and incidental to a proceeding will follow the event unless the court otherwise orders.

2.         If the cause of the litigation originated from the conduct or errors of the testator (i.e., unclear wording or validity of the will), then the costs of all parties will generally be paid from the estate on a full indemnity basis.

3.         If there were circumstances which provided reasonable and sufficient grounds to have brought the action relating to questions of capacity or allege undue influence or fraud, the court will not normally make an order for costs against the unsuccessful party.

4.         In an action under dependent relief legislation (i.e., where the proceedings are adversarial in nature and are not brought about by the actions of the testator), costs follow the event.

5.         All costs awards are subject to the court’s discretion and an overriding test of reasonableness.

Vielbig v. Waterland Estate (1995), 1995 CanLII 2544 (BC CA), 1 B.C.L.R. (3d) 76, 6 E.T.R. (2d) 1 (C.A.) Lee v. Lee Estate (1993), 1993 CanLII 2368 (BC SC), 84 B.C.L.R. (2d) 341, 50 E.T.R. 297

[107]      Underlying the above structure is the acknowledgement that probate actions are unlike other actions.  They are meant to discern the true intentions of someone who is deceased, and give effect to them if possible.  Such actions occupy a special status: Atchison v. Inkster (1983), 1983 CanLII 313 (BC CA), 47 B.C.L.R. 222, 15 E.T.R. 1 (C.A.).

Since the coming into force of s. 58 of WESA, we have developed a useful body of cases, which have begun to outline how far the courts will exercise their power to cure documents and Wills, which are not made in compliance with the strict formal requirements of WESA. It will be interesting to see how the case law develops in the future as the courts are presented with challenging fact patterns.

The case is an important reminder to consult with a lawyer anytime that you are considering making a Will or changes to your existing Will. The costs of having to make court applications regarding improperly completed Wills can be significant; both in terms of the legal costs and the accompanying stresses carried by families during the court proceeding.