Tuesday, February 14, 2017

I Will be Speaking at the Legal Education Society of Alberta Capacity and Influence Course

I have the honour of being included in the faculty for a course on Capacity and Influence, which will be held in both Edmonton and Calgary, presented by the Legal Education Society of Alberta.

The course is chaired by John Poyser, author of the text Capacity and Undue Influence, Carswell, 2014. The other speakers are:

Dr. Arlin Pachet, Ph.D, R. Psych, ABPP-CN
Pachet Assessment
and Rehabilitation Services
Calgary, Alberta

Shelley E. Waite, TEP
McLeod Law LLP
Calgary, Alberta

Helen R. Ward
Duncan Craig LLP
Edmonton, Alberta

Kimberly A. Whaley, CS, TEP, LLM
WEL Partners
Toronto, Ontario

The topics cover undue influence and capacity in respect of both lifetime transfers and wills, approached from both a litigation perspective, and a planning perspective. I will be speaking the planning side of  undue influence including steps a lawyer may take to recognize risk factors for undue influence, what steps a lawyer may take if it appears likely that his or her client is being unduly influenced, and how the file should be documented in order to provide evidence in case a transaction or will that the lawyer has been involved with is later challenged as having been obtained by undue influence.

The dates and places of the course are as follows:

EDMONTON
March 1, 2017
Chateau Louis Hotel
& Conference Centre
11727 Kingsway NW

CALGARY
March 8, 2017
Glenmore Inn
& Convention Centre
2720 Glenmore Trail SE
9:00 AM–4:30 PM

Registration information is available in the brochure.

On March 15, 2017, I will also be speaking on my topic at the Canadian Bar Association, Okanagan Wills and Trusts section meeting.

Wednesday, February 08, 2017

Court of Appeal Overturns Trial Decision in McKendry v. McKendry

The presumption of resulting trust is a presumption of law that applies when one person gratuitously transfers property to another. The presumption is that the person transferring the property did not intend to make a gift, and that the recipient holds the property in trust for the person who made the transfer. It is a presumption only, and may be rebutted if the recipient proves that the person making the transfer intended to make a gift. The court attempts to determine what the person who made the transfer actually intended, but in many cases this is difficult because the claim is often made after the person who transferred the property died.

The relevant time for determining whether the person who transferred the property intended to make a gift is the time of the transfer.

But what happens if at the time of the transfer, the person who gave an interest in the property did not intend to make a gift, but then later changes her mind, and decides she wishes to make a gift?

I wrote about this in a previous post about the trial decision in McKendry v. McKendry, 2015 BCSC 2433. Because the trial judge’s decision in that case has now been overturned by the British Columbia Court of Appeal in McKendry v. McKendry, 2017 BCCA 48, this issue is worth revisiting.

Mary McKendry transferred title to her home on W 48th Avenue in Vancouver into a joint tenancy with her son, John McKendry, in 2008. The home was worth over $1.9 million when she died on February 23, 2012. There were mortgages registered against the home, which her son had used to finance the purchase of an investment property. Apart from the home, her estate was worth about $465,000.
In addition to her son, she had four daughters who survived her.

Following the transfer, she twice instructed lawyers to draft trust agreements in respect of the home for her son to sign. The first stated that John McKendry held his interest in the title to the home in trust, and on her death he would receive a one-third interest, one of her daughters would receive a one-third interest, and her other three daughters would share a one-third interest. The second trust declaration made in February 2010 provided that on Mary McKendry’s death, each child would be entitled to an equal interest in the home. She signed both trust declarations, but her son did not.

But when she signed her last will, on December 16, 2010, her will contained the following paragraph:

7.         I wish to advise my Trustee/s that I have registered my home civically known as [W. 48th] (hereinafter called the “Home”) in Joint Tenancy with my son, John Alexander McKendry.  My son shall receive the Home subject to the Mortgages registered against [the] Home and shall be responsible for payment of the Mortgages as he was the recipient of the mortgage proceeds.In her will, she left the residue of her estate to her four daughters.

She also signed a letter at the time of her will, stating

I, Mary Alice McKendry, confirm that I wish to cancel any trust agreements or other documents imposing an obligation on my son to share the property I own at [W. 48th] with my other children.  I want my home to be my son’s property on my death absolutely – no strings attached.  I have made this decision after much consideration and I fully understand that this gives my son the majority of my assets.  My house constitutes the majority of my assets.

The issue before the court following her death was whether John McKendry as the surviving joint tenant was entitled to the home, or whether he held it in trust. The trial judge held that he held it in trust. When she transferred title into a joint tenancy with her son, Mary McKendry did not intend to make a gift to him, but rather intended for him to hold title to the home in trust. Accordingly, she had not made a gift. Although she later changed her mind, deciding she wanted John McKendry to have the house as an outright gift, the trial judge held that she needed to do something more to make a gift, such as signing a deed of gift.

John McKendry appealed to the British Columbia Court of Appeal. The Court of Appeal held that he was entitled to the home. Although initially Mary McKendry did not intend to confer a gift when she transferred the home into a joint tenancy with him, when she later decided to make a gift, she did not need to sign a deed of gift, or take any further steps to perfect the gift. It was sufficient for her to make her intention to make a gift clear.

Madam Justice Dickson wrote:

[40]         In January 2008, when Mary gratuitously transferred legal title to the property to John in joint tenancy, she did so with the intent that he hold the property in trust.  The judge found that she intended to retain the entire beneficial interest, including the right of survivorship, for herself and her estate: paras. 124-133. Although John did not sign the trust declaration prepared by counsel, Mary’s intentions were clear and unambiguous.  In consequence, while John held legal title with Mary jointly from January 2008 onward, he held all of the beneficial interest, including survivorship rights, in trust.

[41]         Unless something changed, upon Mary’s death John would have continued to hold legal title to the property only and to hold the beneficial interest in trust.  However, in December 2010 something did change.  As evidenced by the November note and the two-page document prepared by her lawyer, Mary unambiguously renounced her beneficial interest in the right of survivorship in John’s favour should he survive her.  In doing so, she clearly intended to make an immediate inter vivos gift of that incident of the joint tenancy to John.  As explained in Simcoff [v. Simcoff, 2009 MBCA 80] the gift was to whatever remained when Mary died.
.... 
 [43]         Given that she had previously transferred legal title to the property to John in joint tenancy, Mary did everything necessary in December 2010 to give her beneficial interest to John, bearing in mind the nature of that interest.  Her intention was made manifest in the signed two-page document her lawyer prepared and no further act of delivery was required because of the existing joint tenancy.  In particular, nothing more would have been gained had Mary executed a deed of gift under seal, given her clear and formally expressed intention. The immediate inter vivos gift was complete and binding.  In my view, Mary’s intention should prevail.

Tuesday, January 17, 2017

K.L.W v. Genesis Fertility Centre

Mr. A.B. had serious medical problems throughout his life. He and his wife, K.L.W., wished to have children. He arranged to have his sperm stored by Genesis Fertility Centre, so that his wife could use his reproductive material to conceive a child. He wanted her to be able to do so after his death.

A.B. died without a will, and K.L.W. sought to have his sperm released so that she could conceive his child.

Unfortunately, no one advised the couple of the requirement in s. 8(1) of the Assisted Human Reproduction Act, S.C. 204, c. 2 (“AHRA”) and ss. 3(1) and 4(1) of the Assisted Human Reproduction (Section 8 Consent) Regulations, SOR/2007-137 (the “Regulations”) that A.B. consent in writing to K.L.W.’s use of his sperm to create embryos after his death. A.B. did not sign a written consent, but there was clear evidence from several witnesses that he had said that he had wanted his wife to be able to conceive his child even if he died.

Without the written consent, Genesis Fertility Centre, would not release the reproductive material to K.L.W.

In K. L.W. v. Genesis Fertility Centre, 2016 BCSC 1621, K.L.W. asked the Supreme Court of British Columbia to declare that her late husband’s reproductive material was her is her legal property, and for an order that the Genesis Fertility Centre release the reproductive material to her for her use to create embryos for her reproductive use.

Is reproductive material property?

After considering several cases both in British Columbia and other jurisdictions, Mr. Justice Pearlman held that the reproductive material was property in the context of this case. Although there are legislative restrictions based on public policy that do not apply to other types of property, including prohibitions on the sale of reproductive material, the courts have held that reproductive material is property in the context of claims in which it has not been properly stored and in division of family property.

Mr. Justice Pearlman  quoted from Madam Justice Bennett’s reasons for judgment in Lam v. University of British Columbia,  2015 BCCA 2, a case in which the Court of Appeal affirmed that sperm damaged when a freezer malfunctioned was property to which the provisions of the Warehouse Receipt Act (“WRA”) applied. Mr. Justice Pearlman wrote:
[75]    At paras. 113 and 114, Bennett J.A. stated:
[113] The nature and scope of property interests that a person can have in human sperm need not be decided on the facts of this case. This case, unlike for example, J.C.M. v. A.N.A., 2012 BCSC 584, does not deal with competing property interests in human sperm. This case considers whether Mr. Lam, a cancer patient, has ownership of the sperm he produced, such that he can contract for its storage to enable his personal use of the sperm at a later date. If so, the sperm is property, as something must be property if it is capable of being owned. There may also exist things that are property that cannot be owned, but that is not something that needs to be decided in the context of this case.
[114] Not all of Professor HonorĂ©’s 11 incidents of ownership need to be present for ownership to arise (Yearworth [v. North Bristol NHS Trust, [2009] EWCA Civ 37] at para. 28). Ownership of body parts must be contextual, and often limited by legislation because of public policy reasons. No one would argue that if a cancer patient cut her hair and stored it for the purpose of later making a wig after treatment that she did not “own” her hair in that context. On the other hand, legislation prevents the selling of sperm and organs such as kidneys, but does not prevent their donation. The prohibition on sale does not necessarily mean the legislation is inconsistent with ownership. It has provided limits to ownership in some contexts.
[76]         In concluding that each of the sperm donors had sufficient ownership of their stored sperm for it to be “property” and thus “goods” within the meaning of the WRA, Bennett J.A. applied the same analytical framework as the Court had adopted in Yearworth. The donors had ejaculated the sperm; contracted to store the sperm for their own future use; paid a fee for storage; and could consent to the sperm being tested. Further, they could terminate the storage agreement; could consent to the release of the sperm to their physician to be used by their spouse; and could exclude all others from using the sperm.  Although legislation or the storage agreement precluded the donors from disposing of the sperm by leaving it to someone in their will or from selling the sperm, they nonetheless had sufficient rights in relation to their own sperm for it to be defined as property.
Because A.B. died without a will, and did not leave any descendants, K.L.W. as his surviving spouse is the sole beneficiary of his estate. Accordingly, pursuant to section 20 of the Wills, Estates and Succession Act, she is entitled to the reproductive material.

This leaves the fundamental question in this case: may K.L.W. use her husband’s sperm to conceive a child despite the fact that he did not provide consent in writing?

Mr. Justice Pearlman held that A.B. had consented to his wife’s use of the reproductive material, and that it is consistent with the underlying principles of the legislation to allow her to do so. He wrote:
[131]     The circumstances of this case are extraordinary. [A.B.] freely and repeatedly expressed his consent to the petitioner’s use, following his death, of the Reproductive Material. He communicated his agreement to the petitioner's use of his stored sperm to the petitioner, to his social worker, to a nurse at the [content redacted] hospital where his [content redacted] was performed, to his family doctor, and to Genesis.
[132]     [A.B.] fully understood that the Reproductive Material would be used in accordance with his wishes to create an embryo, and would be used, following his death, by the petitioner to attempt to conceive a child.
[133]     One of the guiding principles of the AHRA is the promotion and application of free and informed consent as a fundamental condition for the use of human reproductive technologies. Another guiding principle, set out in s. 2(b), is that the benefits of the technology for individuals, families and society can be most effectively secured by appropriate measures for the protection and promotion of human health, safety and dignity. Here, [A.B.] and the petitioner sought to use the technology in order to have a child of their own. They took appropriate steps to ensure that the [content redacted] would not be passed to any child they conceived through in-vitro fertilization.  They consulted with medical specialists about the safe use of the technology.
[134]     To deny the petitioner the use of the Reproductive Material intended by [A.B.] would be both unfair and an affront to her dignity.
[135]     [A.B.] expressed his consent to the petitioner's use of the Reproductive Material after he had the benefit of professional counselling from his [content redacted] social worker, a nurse trained in [content redacted] fertility issues and his family doctor.
[136]     I conclude that in the circumstances of this case, [A.B.]'s consent, although not in writing, specifically contemplated the petitioner’s reproductive use of his stored sperm after his death, and was sufficient to satisfy the fundamental objective of the AHRA that the donor’s consent must be both free and informed.  Accordingly, the Court may order the release of the Reproductive Material to the petitioner to enable her use of that material for the purpose of creating an embryo.

Sunday, January 08, 2017

Sabey Rule LLP Welcomes Taeya Fitzpatrick


I am pleased to announce that Taeya Fitzpatrick joined our firm last week, on January 1, 2017. 

Before joining Sabey Rule LLP, Taeya practiced condominium and strata law with a boutique firm here in Kelowna, and recently successfully appealed a condominium law decision to the Court of Appeal, Terry v. The Owners, Strata Plan NW 309, 2016 BCCA 449, thereby assisting her client in having significant fines that a strata corporation had improperly levied rescinded. 

While continuing her condominium and strata law practice, Taeya is also working in the areas of wills, estate planning, estate administration and estate dispute resolution, as well as business law at our firm. 

Monday, January 02, 2017

Supreme Court of Canada Decision Takes a Narrow Approach to Rectification

The majority of the Supreme Court of Canada has construed the equitable power of the court to rectify a contract or other document relatively narrowly in a recent decision, Canada (Attorney General) v. FairmontHotels Inc. 2016 SCC 56.  

Fairmont Hotels Inc. and two subsidiaries sought to rectify a directors’ resolution in which the directors had redeemed certain shares, triggering a tax liability. The redemption was part of a number of transactions by the companies to finance the acquisition of two hotels. Both the Ontario Superior Court of Justice and the Ontario Court of Appeal had allowed rectification, finding that the parties had from the outset a continuing intention to structure the transactions in a tax neutral way. Those two Ontario Courts had applied a previous leading authority from the Ontario Court of Appeal, Juliar v. Canada (Attorney General),    46 O.R. (3d) 104, aff’d (2000), 50 O.R. (3d) 728. In Juliar the Ontario Court of Appeal held that a transfer of shares for a promissory note that triggered a tax liability could be rectified so that the transaction would be an exchange of shares for shares, with the effect of deferring tax, on the bases that the parties had a common continuing intention to avoid an immediate tax liability.

Canada appealed the decision allowing rectification in Fairmont, and Mr. Justice Brown for the majority of the Supreme Court of Canada, allowed the appeal, holding that Fairmont Hotels Inc. had not met the criteria for rectification. The majority found that the parties had not established that they had “reached a prior agreement with definite and ascertainable terms. “ It was insufficient for the parties to intend to structure their affairs in a tax neutral manner in order to rectify the transaction. The court may rectify a document that incorrectly sets out a specific agreement.

Mr. Justice Brown summarized the law on rectification as follows:

[38]                          To summarize, rectification is an equitable remedy designed to correct errors in the recording of terms in written legal instruments. Where the error is said to result from a mistake common to both or all parties to the agreement, rectification is available upon the court being satisfied that, on a balance of probabilities, there was a prior agreement whose terms are definite and ascertainable; that the agreement was still in effect at the time the instrument was executed; that the instrument fails to accurately record the agreement; and that the instrument, if rectified, would carry out the parties’ prior agreement. In the case of a unilateral mistake, the party seeking rectification must also show that the other party knew or ought to have known about the mistake and that permitting the defendant to take advantage of the erroneously drafted agreement would amount to fraud or the equivalent of fraud.
In this case, in the majority’s view, the facts did not permit rectification. As set out in paragraph 40,

The error in the courts below is of a piece with the principal flaw I have identified in the Court of Appeal’s earlier reasoning in Juliar. Rectification is not equity’s version of a mulligan. Courts rectify instruments which do not correctly record agreements. Courts do not “rectify” agreements where their faithful recording in an instrument has led to an undesirable or otherwise unexpected outcome. 


In dissent, Madam Justice Abella, for herself and Madam Justice Cote, would have dismissed the appeal, and upheld the orders allowing rectification. They considered that the majority applied rectification too narrowly, and that Canada Revenue Agency would be unjustly enriched if the parties were not allowed to rectify their mistake. 

Wednesday, November 30, 2016

Counting the Days: How to Calculate the Five-Day Survival Period in Section 10 of the Wills, Estates and Succession Act

Section 10 of the Wills, Estates and Succession Act provides for a 5-day survival before a person may inherit from another. For example, if in your will you leave your estate to your spouse, then she must survive you for a period of at least five days (although you may specify a longer survival period in your will).  Similarly, if you and your spouse hold your residence as joint tenants, then for either of you to acquire the whole of the property by right-of-survivorship, the survivor must outlive the other by at least five days. Otherwise, in the case of a joint tenancy, if both joint tenants die within five days of each other, then one-half interest passes through the estate of each co-owner.

Section 10 (1) and (2) read as follows:

10  (1) A person who does not survive a deceased person by 5 days, or a longer period provided in an instrument, is conclusively deemed to have died before the deceased person for all purposes affecting the estate of the deceased person or property of which the deceased person was competent to give by will to another.
(2) If 2 or more persons hold property as joint tenants, or hold a joint account, and
(a) in the case of 2 persons, it cannot be established that one of them survived the other by 5 days,
(i) one half of the property passes as if one person survived the other person by 5 days, and
(ii) one half of the property passes as if the other person referred to in subparagraph (i) had survived the first person referred to in subparagraph (i) by 5 days, and
(b) in the case of more than 2 persons, it cannot be established that at least one of them survived the others by 5 days, the property must be divided into as many equal shares as there are joint tenants or persons holding the joint account, and the shares must be distributed respectively to those persons who would have been entitled to a share in the event that each of the persons had survived.
How are the five days calculated?

The calculation of the five days was considered in reasons for judgment on November 1, 2016, in Todoruk v. British Columbia (Land Titleand Survey Authority), 2016 BCSC 2241. Mrs. Grant died without a will on January 12, 2016 at 4:12 am. She did not have a will. Her husband, Mr. Grant died on January 17 at 1:40 p.m. If he survived her for 5 days, then Mrs. Grant’s estate forms part of Mr. Grant’s estate, and will be distributed in accordance with his will. If not, then Mr. Grant would be considered to have died before her for the purpose of succession of her wealth, and would go to some of her relatives in accordance with the provisions for person’s dying without a will.

Mr. Justice Dley considered three different methods of calculating the time between their deaths as follows:

[7]            Mr. Lund [counsel for the executor of Mr. Grant’s will] submits that there are three ways to calculate the time between the respective deaths:
i) First is by counting the hours. That would result in five days nine hours 28 minutes;
 ii) Second, if clear days are counted, as expressed in s. 25(4) of the [Interpretation] Act, then January 13 becomes the first day and only four days had passed when Mr. Grant died; or
 iii) Third, if the calculation is not to be expressed in clear days, then s. 25(5) applies, with the exclusion of the first day but inclusion of the last day, resulting in an interval of five days.
Mr. Justice Dley rejected both the first method, involving counting hours, and the third method, requiring five clear days between the two deaths, and held that the second method applied. Accordingly, the date of Mrs. Smith’s death (January 12) is excluded in the calculation of the five days, but the date of death of Mr. Smith (January 17) is included on the basis that he was still alive on the fifth day.

In the result, Mr. Smith survived Mrs. Smith by necessary five days, and her estate will form part of her husband’s estate to be distributed in accordance with his will. 

Monday, November 28, 2016

British Columbia's New Societies Act Came into Effect Today

The Societies Act came into effect today, November 28, 2016. The new legislation has made significant changes to the governance of non-profit societies incorporated in British Columbia It replaces the Society Act (the "Old Act"), which is now repealed.

Over the next two years, societies are required to transition to the new Act. This will involve filing a non-profit society's constitution and consolidated bylaws. The constitution will now only include the society's name and purposes. Other provisions that used to be common in constitutions under the Old Act, such as provisions requiring that a society's assets be distributed to a charitable organization if the society is wound up, will be moved to the bylaws.

The Province of British Columbia has published a helpful guide to the transitions available here.