[The following guest post was written by Kimberly Wallis also of Sabey Rule LLP.]
In the recent British Columbia Supreme Court case of Becker v Becker, 2016 BCSC 487, the executor of the will of Ann Andrews sought to prove her will in solemn form after its validity was formally challenged by those who would benefit under a previous will.
There were a number of red flags raised surrounding the circumstances of the execution of Ms. Andrews last will and testament. These were:
· She made not one but two new wills in the last six weeks of her life;
· She had been diagnosed with an inoperable brain tumor at the time;
· Her long time companion gave instructions directly to her lawyer, indicating that the first new will had errors in it that had to be corrected;
· The ultimate residuary beneficiaries departed from an estate plan that Ms. Andrews had in place for at least a decade.
Despite these red flags, Mr. Justice Smith found that the last will executed by Ms. Andrews (“the Final Will”) was valid and the will would thus govern the ultimate distribution of her estate.
Ms. Andrews emigrated from the UK to Canada in 1974, with her husband Mr. Andrews, who died a few years later. Ms. Andrews met and lived with Hendrik Becker for 27 years prior to her death, but neither relationship led to children and she died without issue. Mr. Becker, however, had three sons from a previous relationship.
Accordingly, Ms. Andrews was survived by her common-law husband, his children and Mr. Becker’s four grandchildren who were Ms. Andrews step-grandchildren (‘the grandchildren”) in Canada.
Ms. Andrews was also survived by an assortment of six nieces and godchildren in England (“the godchildren”).
Under earlier wills, the residue of Ms. Andrews estate, (after a life interest for Hendrick in her West Vancouver condominium) would have been divided among the godchildren, whereas under the final will, the residue would be divided ten ways among the grandchildren as well as the godchildren.
After being admitted to Lions Gate hospital on December 28th, 2011, Ms. Andrews was told of the inoperable brain tumor and she remained in the hospital in palliative care until her death some six weeks later. On her behalf, Hendrick contacted the law firm that had drawn up her previous will, and shortly thereafter a solicitor from that firm attended upon Ms. Andrews.
Ms. Andrews gave instructions on January 10th and executed a new will on January 13th. Like her old will, the first new will provided that the godchildren would be the residuary beneficiaries.
However, Mr. Becker contacted the solicitor, one Ms. Rockandel, on January 12th, indicating that he believed his own grandchildren were the residuary beneficiaries. On the 16th of January, he told her that his grandchildren were to be included, along with the godchildren as residuary beneficiaries. On the 17th Ms. Rockandel took instructions from Ms. Andrews to that effect, and on the 18th Ms. Andrews executed the Final Will, which did indeed provide for ten way distribution of the residue and included both the godchildren and the grandchildren.
In coming to the conclusion that Ms. Andrews had mental capacity to execute her will and further that Mr. Becker did not exert undue influence upon her, Mr. Justice Smith looked at the following factors:
WARMTH AND CLOSENESS OF RELATIONSHIP WITH BENEFICIARIES
· Although close to her godchildren, the court also considered that Ms. Andrews had known the grandchildren their whole lives, and as such, that while not blood relatives they were natural objects of her bounty.
· Although the godchildren attempted to portray Ms. Andrew’s relationship with Mr. Becker as one of convenience, the fact remains that they spent three decades together and were together at her death.
· The solicitor spent a significant amount of time taking instructions, although Mr. Hendrick was there for the first two thirds on January 10th.
· Ms. Rockandel was quite properly “keenly aware” when Mr. Hendrick told her to include his grandchildren as residuary beneficiaries that she had to hear this from Ms. Andrews directly.
· Ms. Rockandel was blunt and told Ms. Andrews flatly that she did not have to change her will; Ms. Andrews told her she had seen the grandchildren grow up and did not wish to leave them out.
· Ms. Andrew’s doctor testified she was “bright and alert” on the 13th, the day she executed the first new will. While he testified she was emotional about her diagnosis, the judge emphasizes that one should not confuse the disturbed emotions that are to be expected of one who learns “that death is imminent, with the question of mental capacity” .
With respect to the involvement of Mr. Becker in the creation of Ms. Andrews estate plan, Mr. Justice Smith cited Madam Justice Dardi in Chang Estate vChang, 2013 BCSC 976, for the proposition that merely making one’s wishes known does not amount to undue influence:
…The undue influence must constitute coercion which could not be resisted by the will-maker and which destroyed his or her free agency. It is well-established on the authorities that if the will-maker remains able to act freely, the exercise of significant advice or persuasion on the will-maker or an attempt to appeal to the will-maker to gratify the wishes of another, will not amount to undue influence….
Historically, in British Columbia, it has fallen on a person alleging undue influence to prove it. However, one of the changes brought in by the new Wills, Estates and Successions Act ("WESA") is a switch to this burden of proof – going forward, for those wills adjudicated under WESA, the burden of proof will fall upon the person who is in a position of trust and who benefits in the will to prove that they did NOT unduly influence the will-maker.
Interestingly, Mr. Justice Smith states that while in this case the will-maker died before that provision became law, even if the burden of proof had rested upon Mr. Becker to refute, the evidence would have fallen short of establishing a case of undue influence.
With regard to Ms. Rockandel’s actions, the judge stated that while it is of some concern that Hendrick was present for part of the January 10th meeting, he was not present on the 13th, 17th, or 18th of January. Further, Ms. Rockandel took the time to talk with Ms. Andrews at length and comfort herself that Ms. Andrews was acting freely, albeit possibly with some coaxing from her husband of 30 years. As Mr. Justice Smith states, “Nothing in the case law prevents suggestions or persuasion by a spouse, provided that there is no coercion and the testator remains free to make his or her own decision” .
Also important is the fact that the Becker grandchildren had been part of Ms. Andrew’s life for decades and she had watched them grow up. Mr. Justice Smith contrasts this with those wills made at the end of a life to benefit someone “who had only recently come into the testator’s life” . Presumably the courts may regard such a change with more suspicion.
This case, like many before, establishes that very solid evidence must be available in order to succeed in a claim of undue influence in the courts of British Columbia, and that this will possibly remain the case even with the new reversal of the burden of proof.