Court of Appeal Upholds Decision in Sato v. Sato

In Sato v. Sato, 2018 BCCA 287, the British Columbia Court of Appeal upheld Mr. Justice Funt’s decision that Hiroyuki Rex Sato was domiciled in British Columbia when he married Makiko Sato on April 30, 2013, although he was living and working in Luxemburg at the time and had not lived in British Columbia since 1999. Mr. Sato’s domicile was significant because he had made a will before he was married in which he left most of his estate to his sisters, and if he were domiciled in Luxembourg, pursuant to that country’s law, the marriage would not have revoked the will. However, because he was domiciled in British Columbia, under British Columbia law, the will was revoked and his estate will go to his wife on the basis that he died without a valid will. I wrote about Mr. Justice Funt’s decision here.

It is worth noting that British Columbia law has now changed, and marriages on or after March 31, 2014 do not revoke wills.

It was agreed that Mr. Sato at one time was domiciled in British Columbia, where he had moved to as a child, but the question was whether he changed domiciled. To change domicile, one has to both physically move to another jurisdiction and intend to live there permanently. Mr. Justice Funt found that Mr. Sato did not have the intent to live in Luxembourg permanently, in part, on the basis that Mr. Sato had indicated he intended to retire in Canada.

Helen Sato, one of Mr. Sato’s sisters, appealed the decision, arguing that Mr. Justice Funt had placed to much emphasis on a document that Mr. Sato had signed years previously indicating that he intended to retire in Canada. She argued that Mr. Justice Funt effectively required proof that Mr. Sato intended to retire in Luxembourg to show that he was domiciled there.

In the Court of Appeal, Chief Justice Bauman rejected Helen Sato’s arguments. He wrote:

[50]         The deceased’s retirement plans were clearly a relevant consideration in the context of demonstrating his new intention to live in Luxembourg indefinitely and make it his permanent home “unless and until something (which is unexpected or the happening of which is uncertain) shall occur to induce him to adopt [some] other permanent home”: Osvath-Latkoczy at 753. The deceased’s intention to retire to Canada was an important factor in finding that his domicile of choice remained British Columbia. To prove the abandonment of that domicile in favour of Luxembourg it clearly became relevant to show a change in the deceased’s retirement plans.

[51]         It is not the case that, as a matter of law, a person must show they intend to retire where they reside to establish domicile in that place. But, if, as a fact, the person intends to retire somewhere other than where they reside, that may be sufficient to defeat the argument that they are domiciled where they reside since they do not intend to reside in that place permanently. The case at bar is an example of the latter.

[52]         Further, it was not the only factor considered by the judge. He also considered the fact that the deceased did not speak fluent French “a principal language used in Luxembourg”, the fact that the plaintiff was also Japanese, not a citizen of Luxembourg, and the fact that the deceased still had family in British Columbia (at para. 157).

[53]         In my view, the judge correctly stated the law for determining domicile and he made the necessary findings of fact to come to his conclusion based on an extensive record that he carefully reviewed (and edited as necessary based on his admissibility findings).

Chief Justice Bauman did allow Helen Sato’s appeal of the award of court costs against her. The usual rule in litigation in British Columbia is that the unsuccessful party pays court costs to the successful party. These costs usually do not fully cover the legal expenses. But in some cases, the courts will depart from that rule, where the court determines that the litigation was brought about because of the conduct of the deceased person whose estate is disputed.

In this case the Court of Appeal determined that it was appropriate to award all parties costs as special costs (which generally covers nearly all of the actual legal expenses). The Chief Justice wrote:

[56]         It is true that the modern approach to estate litigation is that the normal costs rules generally apply: Hollander v. Mooney, 2017 BCCA 238 at paras. 39–40. However, in McDougald Estate v. Gooderham (2005), 255 D.L.R. (4th) 435 at para. 78 (Ont. C.A.), in a passage cited in Hollander, the Court of Appeal acknowledged that costs may be awarded against the estate “[w]here the difficulties or ambiguities that give rise to the litigation are caused, in whole or in part, by the testator”. The principles are similar with respect to appeal costs: Maddess v. Estate of Johane Gidney, 2011 BCCA 165 at para. 15.

[57]         The judge gave no reasons for his costs order, and in my view it was an error in principle not to have considered whether “the difficulties or ambiguities that [gave] rise to the litigation [were] caused, in whole or in part, by the testator”: McDougald Estate at para. 78.

[58]         Cases where costs are awarded out of the estate generally involve questions of the construction of an ambiguous provision of a will or the testator’s capacity at the time the will was created, and I would similarly here conclude that the conduct of the deceased raised the dispute as to the validity of the will. The deceased drafted his will in 2011, while living abroad, and took no action after he was married to draw up a new one by the time he died in 2015. He was also diagnosed with cancer approximately a year before he died, yet took no steps to update his will. The evidence in this case shows that there was a good faith dispute as to whether the deceased had an intention to reside in Luxembourg permanently at the time he was married such that his 2011 Will might still have been valid. Therefore I would set aside the order with respect to costs, and award the parties special costs of both the trial and appeal against the estate.

Because Mr. Sato’s widow is the beneficiary of the estate, the effect of this order is that she bears the burden of both her own legal expenses and those of Mr. Sato’s sister.

Quinn Estate

Estate planning for people with assets and connections to both the United States and British Columbia is fraught with potential legal and tax pitfalls. It is important to get tax and legal advice with respect to the implications on both sides of the border. This is illustrated by the recent decision concerning the former NHL coach Pat Quinn in Quinn Estate, 2018 BCSC 365.

Mr. Quinn and his wife Sandra Quinn settled a trust in the United States which dealt with assets in the United States. Mr. Quinn was an American citizen, and Mrs. Quinn had U.S. Green Card, but they lived in British Columbia. Their U.S. lawyer also draft a will for Mr. Quinn dealing with his assets in Canada. The will provided that the residue of his Canadian Estate would “pour over” into a U.S. trust, referred to as the Quinn Family Trust.

The issue in this case was whether the distributive provision of the Canadian will is valid under British Columbia law. The will was signed by Mr. Quinn in the presence of two witness in accordance with the requirements of section 37 of the Wills, Estates and Succession Act. The will itself was formally valid. The difficulty was the “pour over” clause, which I understand is valid in at least some states. The terms of the Quinn Family Trust allowed Mr. and Mrs. Quinn to amend it. Because they could amend the trust, the beneficiaries could be changed without compliance with the requirements of section 37.

Mr. Justice Funt, who heard the application, applied the decision in Kellogg Estate, 2013 BCSC 2292, appeal dismissed as moot 2015 BCCA2013:

[39]         In Kellogg Estate, Justice Gray held a pour-over clause to a revocable, amendable, inter vivos trust to be invalid. As in the case at bar, the inter vivos trust was amended after the execution of the deceased’s will. In Kellogg Estate, the amendment served to remove one of the primary beneficiaries of the trust.

[40]         After a review of the relevant English and Canadian cases, American legislation and cases, and academic commentary, Justice Gray concluded:

[69]      In my view, the fact that the Pour-Over Clause refers to future amendments of the KF Trust and the fact that the KF Trust Indenture was amended by the Amendment to KF Trust following the execution of the Will is determinative.

[70]      The gift cannot “pour over” to be held by the trustee of the KF Trust on the terms which existed at the time the Will was executed, because that trustee is now obliged to follow the terms set out in the Amendment to KF Trust. The gift cannot “pour over” to be held by the trustee on the basis of the Amendment to KF Trust because the effect would be to permit RPK to have effectively amended his Will without complying with the Wills Act [now section 37 of the Wills, Estates and Succession Act].

[71]      Even though there is some formality associated with acknowledging execution of a document before a single witness who is a notary public, the court does not have jurisdiction to weigh the degree of formality. The failure to comply with the Wills Act is fatal.

[72]      The doctrine of “facts of independent significance” has not been recognized in B.C., and applying such a doctrine here would require bypassing the Wills Act.

There was an amendment to the Quinn Family Trust, but it was administrative in nature. Mr. Justice Funt rejected the argument advanced by one of Mr. Quinn’s children that this case could be distinguished on that basis. Mr. Justice Funt held that the problem with the clause was that the Quinn Family Trust could be amended to change the beneficiaries, and it did not matter whether an amendment had been made.

Since the decision in Kellogg Estate, British Columbia law has changed to allow the court to give effect to a document that does not comply with the formal signing and witnessing requirements for a valid will. Section 58 of the Wills, Estates and Succession Act allow the court to give effect to a non-compliant record if the court finds that it represents the “testamentary intentions of a deceased person.”

Can section 58 be applied to save the “pour over’ clause?

Mr. Justice Funt held that it cannot. In this case, the will itself complied with the formal signing and witnessing requirements. It was rather the structure that is inconsistent with the formal requirements of a will, by allowing changes to be made without compliance. He wrote:

[55]         Section 58 is not an independent provision. From its language, “[e]ven though the making, revocation, alteration, or revival of a will does not comply with this Act”, s. 58 is tethered to s. 37. I agree with Ms. Francis, counsel for Sandra Quinn in her personal capacity, in her written submission:

44. The policy reason behind section 58 is to enable the Courts to step in where a person has taken real steps to make a will, but the formalities have fallen short. It does not exist to enable the court to bless structures that circumvent the formalities all together, which is what a pour over clause to an amendable trust does. If the policy behind section 58 were to do away with testamentary formalities, then our WESA would not contain testamentary formalities. Rather, what section 58 reflects is a policy to ensure that a document that reflects the deliberate, fixed and final intention of a Deceased person is not set aside on the basis of failure to comply with a formality.

[56]         Section 58’s scope is reflected in s. 59(1). Section 59(1) enables a will to be rectified where the will “fails to carry-out a will-maker’s intentions” in specified circumstances. Section 59 does not allow rectification under any circumstances. If s. 58 were to be given an overly broad interpretation, s. 59(1) would have no purpose. Rectification could occur under s. 58 based on a simple assertion of testamentary intentions. Section 58 is a curative provision and not an independent provision designed to change fundamental principles of the law of wills.

[57]         In short, the statutory context shows that the purpose of s. 58 of WESA is to permit the Court to address circumstances of “formal invalidity” where the will-maker’s “deliberate or fixed and final intention” as to the disposal of his or her property on death is found. [Quotation from Hadley Estate (Re), 2017 BCCA 311 omitted.

 [58]         In the case at bar, the deficiency is not one of proper execution. All parties agree that the Will was properly executed. 

…. 

[62]         The Quinn Family Trust was a revocable, amendable, inter vivos trust with the deceased being one of the two settlors and trustees. Although, as may be seen from clause 6.04, the Quinn Family Trust was part of an estate plan functioning during the deceased’s life time, it was designed to be flexible, and left matters in flux. For example, shortly before the deceased’s death, counsel had sent the November 21, 2014 letter addressed to the deceased and Sandra Quinn, which Sandra Quinn had the opportunity to read, and which recommended the assets be distributed “now”. The distribution of all of the Quinn Family Trust assets would have had the effect of a revocation.

The result is that the Canadian assets will be distributed to the persons entitled under on an intestacy.

The case does not deal directly with the taxation aspects of Mr. Quinn’s estate plan, but Mr. Justice Funt quoted from a tax opinion letter, which indicated that the structure could result in a significant tax burden to the Quinn family by triggering taxes in Canada that would not be offset by credits in the United States. This highlights the need to get specialized tax advice concerning the implications of a plan in both jurisdictions.

Sato v. Sato

Things would be simpler, but not nearly as interesting, if everyone remained in the same place.

Hiroyuki Rex Sato, often referred to as Rex, immigrated with his family to British Columbia in 1969. He became a Canadian citizen in 1975. Following his graduation from university, Mr. Sato lived and worked in several different cities, first in Toronto, then back in Vancouver, followed by the Cayman Islands, Tokyo, Guernsey, and then Luxembourg. He died on March 7, 2015 in Japan where he was being treated for cancer. For Canadian income tax purposes, the Canada Revenue Agency agreed that he became a non-resident of Canada in 1999.

Mr. Sato made a will in Vancouver on May 19, 2011, while visiting. In his will, Mr. Sato appointed his sister Helen Sato as his executor, and divided most of his estate equally between his two sisters. This will was his last.

Makiko Sato and Rex Sato were married in April 2013. At that time, he was living in Luxembourg. He had moved there in 2009, and remained a resident of Luxembourg until his death.

The issue Mr. Justice Funt was asked to decide in Sato v. Sato, 2017 BCSC 1394, was whether Mr. Sato was domiciled in Luxembourg at the time of his marriage or still in British Columbia. Why is that important?

The law in British Columbia in April 2013 was that a marriage revoked a will unless the will was made in contemplation of marriage. (The law has since changed in British Columbia, and a marriage occurring on or after March 31, 2014, no longer revokes a prior will.) If the court found that Mr. Sato was domiciled in British Columbia, then British Columbia law would apply. The result would then be that Mr. Sato’s will was revoked, and his wife would inherit estate on the basis that he died without a valid will.

But the law in Luxembourg was different. Under Luxembourg law at the time marriage did not revoke a will. If Mr. Sato were domiciled in Luxembourg, then his marriage did not revoke his 2011 Will, and his sisters would inherit the residue of his estate.

Although Mr. Sato was resident in Luxembourg, and had not resided in British Columbia since 1999, domicile means something more than residence. To change domicile, it is necessary to both reside in a new place, and intend to permanently settle their. Mr. Justice Funt quoted from several cases, including the following at paragraph 9 of his decision:

[9]            In Osvath-Latkoczy v. Osvath-Latkoczy, [1959] S.C.R. 751, the Supreme Court of Canada considered whether the appellant’s domicile of choice was Ontario. Justice Judson writing for the Court stated at 753:

The principle to be applied is that stated in Lord v. Colvin, which was adopted in Wadsworth v. McCord, and followed in Gunn v. Gunn:

That place is properly the domicile of a person in which he has voluntarily fixed the habitation of himself and his family, not for a mere special and temporary purpose, but with a present intention of making it his permanent home, unless and until something (which is unexpected or the happening of which is uncertain) shall occur to induce him to adopt [some] other permanent home.

Mr. Justice Funt found that Mr. Sato was not domiciled in Luxembourg. When Mr. Sato applied to Canada Revenue Agency to determine his residency status when he left Canada, Mr. Sato wrote in the form that he intended to return to Canada. He wrote that he had a strong desire to be involved in international business, and planned to retire in Canada.

Helen Sato had the burden of showing that Mr. Sato had changed his intention to eventually retire in Canada. She was unable to provide sufficient evidence to persuade the Court that Mr. Sato intended to make Luxembourg his permanent home. There was some evidence that Mr. Sato wished to retire in Japan, which Mr. Justice Funt noted “further supports the proposition that the deceased did not intend to reside in Luxembourg indefinitely.”

The result is that Mr. Sato’s marriage revoked the 2011 will, and his wife, Makiko Sato, is entitled to his entire estate as the intestate heir.

Can You Revoke a Quebec Notarial Will by Destroying a True Copy?

A notary in Quebec always retains the original of a notarial will and registers it under the Quebec Civil Code. Despite the usual rule in British Columbia that an executor must probate the original will, an exception is made for Quebec notarial wills, in which case, under section 36(1) of the Evidence Act, you may probate a copy that is certified by a notary as a true copy of the original. I have written about this before.

Under British Columbia law, one of the ways to revoke a will is to destroy the original. This is set out in section 55 (1) (c) of the Wills Estates and Succession Act, and was set out in section 14(1) (d) of the now repealed Wills Act.

This raises an interesting question. Under British Columbia law, can the maker of a Quebec notarial will revoke it by destroying a certified true copy of it?

John David Christian made a notarial will when he lived in Quebec in 1991. In it, he appointed Lorraine Leigh Morton, with whom he was living in a marriage-like relationship, as his executor and the beneficiary of his estate. The Quebec notary retained the original and gave Mr. Christian three certified copies.

Mr. Christian and Ms. Morton moved to British Columbia, and Mr. Christian became domiciled here.

In 2009, Mr. Christian and Ms. Morton separated and following mediation agreed on the division of their assets.

Mr. Christian died on December 29^th, 2011, and he did not have any of the certified copies of the 1991 Quebec will or any new will among his possessions.

Ms. Morton received another certified true copy of the original will from a Quebec notary and applied to probate the copy in British Columbia. Mr. Christian’s mother, who would be entitled to the estate if her son died without a will, filed a caveat to oppose the application for probate.

There was evidence from both his family law lawyer and another lawyer that following his separation from Ms. Morton, Mr. Christian wished to change his will so that Ms. Morton would not be a beneficiary. He told his girlfriend that he had ripped up the will that left everything to Ms. Morton and pointed to the recycling basket, which had some ripped paper.

Mr. Justice Johnson, in Morton v. Christian, 2014 BCSC 1303, accepted the evidence of the lawyers and Mr. Christian’s girlfriend, but found it insufficient to prove that Mr. Christian in fact destroyed any or all of the certified true copies of the notarial will in his possession. But even if Mr. Christian had destroyed the true copies, doing so, would not, under British Columbia law revoke the notarial will. To revoke a will by destruction, it is necessary to destroy the original will, which is not possible with a Quebec notarial will, which remains in the possession of the notary.

In reaching his decision Mr. Justice Johnson considered section 36 of the Evidence Act allowing a certified copy of the notarial will to be admitted into probate, but held that it did not follow that it was sufficient to destroy a certified copy of a Quebec notorial will to revoke it.

Because the original is in the possession of the notary, destroying a certified copy is at best a symbolic destruction which is insufficient to revoke a will. Mr. Justice Johnson wrote at paragraph 57:

[57]         If I had found the contrary, tearing a copy of a notarial will, knowing that the original is safely lodged with a notary, appears to me to be no more effective than the “symbolical” steps referred to in Cheese v. Lovejoy (1877), 2 P.D. 251 (C.A.):

It is quite clear that a symbolical burning will not do, a symbolical tearing will not do, nor will a symbolical destruction. There must be the act as well as the intention. As it was put by Dr. Deane in the court below, “All the destroying in the world without the intention will not revoke a will, nor all the intention in the world without destroying: there must be the two.

Accordingly, if you have made a Quebec notarial will and wish to revoke it, under British Columbia law, it is not sufficient to tear up a certified copy. The best way to revoke it is to make a new will.

Vanston v. Scott

Laws governing wills and estates vary from province to province in Canada. If there is a dispute over a will, some parties may prefer the law of one province over another. Although often enough it is clear what province’s laws govern the dispute, that is not always the case.

Dr. James Montague Scott was born in Calgary Alberta, but practised as a radiologist in Kelowna, British Columbia from 1988 to 1999. He had significant conflicts with other radiologists, the Kelowna General Hospital and the B.C. College of Physicians and Surgeons. He moved to Saskatoon where he practised with a group of radiologists until March 2012, when he lost is job there.

Dr. Scott, together with his wife, Deborah Vanston, listed his condominium in Saskatoon for sale, and rented a home in Kelowna, in July, 2012, while he looked for work. He had a potential job in Powell River, British Columbia, but that feel through. Because of his previous conflicts, it was unlikely that he would find work in British Columbia, and he was looking for work abroad in Mexico and Central America, when he died in September 2012.

In his will, he left most of his estate to Ms. Vanston, and excluded his two children from his prior marriage.

Dr. Scott’s children challenged his will, alleging that he did not have the mental capacity to make a will, and that his wife unduly influenced him. They argued that the law of British Columbia should govern their challenge, while Ms. Vanston asserted that the law of Saskatchewan governs.

I don’t know what advantages there would be to the children if the law of British Columbia governs the question of their father’s capacity to make a will, or the issue of whether it was obtained by undue influence as the law stood in 2012, but I speculate that they may have preferred to have British Columbia govern if they later wished to make a claim under the B.C. Wills Variation Act (now Part 4, Division 6 of the Wills Estates and Succession Law) to vary the will if the court finds that the will is valid.

In any event the question of what law would apply to Dr. Scott’s personal property depends on where he was domiciled at the date of death. The trial of that issue came before Mr. Justice Dufour of the Saskatchewan Court of Queen’s Bench in Vanston v. Scott, 2014 SKQB 64 (CanLII).

Mr. Justice Dufour neatly summarized the law of domicile and the legal issue as follows:

[20] The law of domicile is well settled:

 1. A person will always have one, and only one, domicile at any point in his or her life. A person begins with a “domicile of origin”, which is generally the place where he or she was born.

 2. A domicile of origin can be displaced by the acquisition of a “domicile of choice”, a place where a person has acquired a residence in fact in a new place and has the intention to live there indefinitely.

 3. A person abandons a domicile of choice by ceasing to reside there in fact and by ceasing to intend to reside there permanently or indefinitely.

 4. A person can lose his or her domicile of choice by abandonment even though a new domicile of choice has not been acquired.

See: Wadsworth v. McCord (1886), 12 S.C.R. 466, [1886] S.C.J. No. 18 (QL); Trottier v. Rajotte, [1940] S.C.R. 203, [1940] 1 D.L.R. 433; Osvath-Latkoczy v. Osvath-Latkoczy, [1959] S.C.R. 751, 19 D.L.R. (2d) 495; Udny v. Udny (1869), L.R. 1 Sc. & Div. 441; Lauderdale Peerage (1885) 10 App. Cas. 692; Winans v. Attorney-General, [1904] A.C. 287; Lamond v. Lamond, [1948] 1 W.W.R. 1087, [1948] S.J. No. 5 (QL) (Sask. K.B.); Gunn v. Gunn (1956), 2 D.L.R. (2d) 351, 18 W.W.R. 85 (Sask. C.A.); Patterson v. Patterson (1956), 3 D.L.R. (2d) 266, [1955] N.S.J. No. 28 (QL) (N.S. Div. & Mat. Causes Ct.); Foote Estate (Re), 2011 ABCA 1, [2011] 6 W.W.R. 453.

[21] The questions here are whether or not Dr. Scott abandoned Saskatoon as his domicile of choice and, if he did, whether he acquired a new domicile of choice in British Columbia. Finally, if he abandoned Saskatoon but had not acquired a domicile of choice in British Columbia at the time of his death, where was his domicile?

Where was Dr. Scott domiciled at the date of his death? British Columbia or Saskatchewan?

Neither.

When Dr. Scott left Saskatchewan in July of 2012, he abandoned Saskatchewan as his domicile of choice. He had listed his condominium for sale, had no job prospects in Saskatchewan, and Mr. Justice Dufour inferred that Dr. Scott had no intention of returning.

Although by renting a residence in Kelowna, Dr. Scott established a sufficient physical connection in British Columbia to establish British Columbia as his domicile of choice, Mr. Justice Dufour found that Dr. Scott did not intend to reside in British Columbia permanently or indefinitely. Dr. Scott had no job prospects in British Columbia either, and was looking for work abroad.

Consequently, Dr. Scott’s domicile at death was Alberta, which was his domicile of origin by virtue of his birth in Calgary.

Mr. Justice Dufour acknowledged that it may seem odd that the law of a province with which Dr. Scott may have had little connection should govern, but the law on this point is well established:

[44] I will concede that a decision that effectively results in the law of Alberta determining how his estate will be divided might appear arbitrary or odd. But that is the law and there is nothing that distinguishes the result here from the results in the raft of authorities that have stated and restated and applied that law for more than 100 years. Three of those are from the Supreme Court of Canada: Wadsworth v. McCord, supra; Trottier v. Rajotte, supra.; Osvath-Latkoczy v. Osvath-Latkoczy, supra. I see no great injustice here that cries out for redress but, in any event, the doctrine of stare decisis prevents me from going it alone with some new test that I might think is more appropriate. The doctrine of stare decisis “requires that courts make decisions consistent with the prior decisions of higher courts” and promotes “important values including consistency, certainty and predictability in the law” (Saskatchewan v. Saskatchewan Federation of Labour, 2013 SKCA 43, 361 D.L.R. (4 ) 132, at para. 29 and 30). Whether the principles that apply to the determination of domicile need overhauling (and I do not suggest that they do) is a decision that would have to be made by the Supreme Court of Canada (S.F.L., supra, at para 60). 

Domicile

The laws governing the estate of a person who has died can vary considerable from country to country, and in Canada, even from province to province. For example, in British Columbia, an independent adult child can apply to court under the Wills Variation Act to vary the will of her parent if the parent did not make adequate provision for her. Many other provinces don’t have legislation permitting and independent adult child to vary a parent’s will. It may make a big different to a child wishing to bring a claim whether the law of British Columbia will apply or the law of another province will apply to her parent’s estate.

Sometimes this is fairly straightforward. If the person who died lived in British Columbia all of his life and all of his real estate is located in British Columbia, then British Columbia law will apply.

But in an age where people move all around the world it is not always so simple. Some people may have two or more homes they live in for part of the year. Or they may spend only a short time in a new province before their death.

The law of place where someone is “domiciled” at death will often determine what law governs the administration of that person’s estate (other than interests in real estate which is governed by the law in the jurisdiction where the real estate is located).

Domicile can be an elusive concept as is demonstrated in the decision of the Alberta Court of Appeal in Foote v. Foote Estate, 2011 ABCA 1.

Eldon Foote lived in Alberta for the first 43 years of his life. He built an international business distributing the cleaning product Swipe. In the early 1970s, he bought a large property in Norfolk Island, an Australian protectorate with favourable tax laws, and he moved there.

In 1999, Mr. Foote bought a condominium in Victoria, British Columbia, and spent the summers of 2001, 2002, and 2003 at his Victoria condominium. He and his wife made some plans to sell the Norfolk Island residence to move to Victoria.

In April of 2004, he was diagnosed with cancer, and went returned to Edmonton, Alberta for cancer treatment, where he died in May 2004.

At his death, his estate was worth approximately $130 million. He had three wills dealing with assets in different jurisdictions. He left some of his assets to his wife, his six children, and other family members, but he left most of his wealth to two charities: the Edmonton Community Foundation and the Lord Mayor of Melbourne’s Charitable Fund.

All of the parties agreed that Mr. Foote had established his domicile in Norfolk Island in the 1970s.

Mr. Foote’s children argued Mr. Foote changed his domicile to British Columbia before his death, and that the law of British Columbia governs the administration of his estate. His widow argued that he had abandoned his domicile in Norfolk Island but had not established a new domicile. Accordingly, she argued, his domicile reverted to his domicile of origin, Alberta. She argued that the law of Alberta governed the administration of his estate. The charities argued that Norfolk Island remained Mr. Foote’s domicile at his death, and the administration of his estate was domiciled in that jurisdiction.

The parties’ motives for adopting the positions they did are not apparent from the judgment. Presumably, British Columbia law would be favourable to the children, Alberta law favourable to the widow, and Norfolk Island law favourable to the charities.

The Alberta Court of Appeal in its Memorandum for Judgment explained the concepts of domicile of origin and domicile of choice as follows:

[19] The concept of domicile is relevant to the law governing a person’s status and property. For purposes of this appeal, the relevant point is that the domicile of a deceased person determines the law that will govern estate administration. A person will always have one, and only one, domicile at any point in his or her life. A person begins with a domicile of origin, generally the place where he or she was born. No one disputes that Mr. Foote’s domicile of origin is Alberta, where he was born and lived for the first 43 years of his life, and where he attended university, embarked on the practice of law, married and had five children.

[20] One’s domicile of origin can be displaced by a “domicile of choice”, a place where a person has chosen to live. The classic description of domicile of choice is found in Udny v. Udny (1886), L.R. 1 Sc. & Div. 441:

Domicile of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time. ... There must be a residence freely chosen, and not prescribed or dictated by any external necessity, such as the duties of office, the demands of creditors, or the relief from illness; and it must be residence fixed not for a limited period or particular purpose, but general and indefinite in its future contemplation.

The Court of Appeal described how a domicile may change:

[22] The acquisition of a domicile of choice involves two factors: “the acquisition of residence in fact in a new place and the intention of permanently settling there ... in the sense of making that place [one’s] principal residence indefinitely”: Trottier v. Rajotte, [1940] S.C.R. 203 at 206, 1 D.L.R. 433.

….

[25] The following rule is set out in Dicey, Morris and Collins on The Conflict of Laws, 14th ed. (London: Sweet & Maxwell, 2006) at 151:

Rule 13 - (1) A person abandons a domicile of choice in a country by ceasing to reside there and by ceasing to intend to reside there permanently or indefinitely, and not otherwise.

[26] The test for loss of domicile of choice is two-fold: it requires an intention to cease to reside in a place coupled with acts that end one’s residence. It is described in Dicey as follows:

A domicile of choice is lost when both the residence and the intention which must exist for its acquisition are given up. It is not lost merely by giving up the residence nor merely by giving up the intention.

[27] Castel & Walker, in their Canadian Conflict of Laws at s. 4.8, 6th ed. (Markham, Ont.: LexisNexis Butterworths, 2005), describe the process of abandonment of a domicile of choice as “the converse of its acquisition”. They also note the dual nature of the test. To paraphrase, for Mr. Foote to have abandoned his domicile of choice on Norfolk Island, it would be necessary for him to cease to reside there and also to cease to have the intention to return to Norfolk Island as his permanent home. “Absence without the intention of abandonment is of no effect, nor is intention without any actual change of residence”: Castel & Walker at s. 4.8.

The Court of Appeal upheld the trial judge’s decision that Norfolk Island remained Mr. Foote’s domicile on death. The trial judge had found that Mr. Foote planned to change his primary residence to British Columbia at some point, but his plans were provisional. He had not taken any steps to appraise or market his considerable home and property in Norfolk Island. He would not likely have changed his residence without tax planning. He began to receive tax advice in 2002, but had not taken any steps to implement it. The trial judge found that the intention to change his residence to British Columbia, and the preliminary steps Mr. Foote had taken, were insufficient to displace Norfolk Island as his domicile of choice.

Accordingly, the laws of Norfolk Island will govern the administration of Mr. Foote’s estate.

Supreme Court of Canada Grants Leave to Appeal inSt. Michael Trust Corp., as Trustee of the Fundy Settlement v. Her Majesty the Queen

The Supreme Court of Canada granted leave to appeal in St. Michael Trust Corp., as Trustee of the Fundy Settlement v. Her Majesty the Queen this morning, a case in which the Tax Court of Canada and the Federal Court of Appeal applied the test of where the central management and control of a trust was exercised in determining whether a trust was resident in Canada or in another jursidiction for the purpose of applying the provisions of the Income Tax Act, Canada. In this case, the trustee of two trusts was a trust company incorporated in Barbados, and the trustee argued that the trusts were exempt from capital gains tax in Canada on the sale of certain assets persuant to a tax treaty between Canada and Barbados. But the Tax Court of Canada held that because the central management and control of the trusts were really exercised in Canada, the trusts were resident in Canada, rather than in Barbados. The Federal Court of Appeal upheld that aspect of the decision.

The Supreme Court of Canada will now have the opportunity to determine the test for residency of a trust under Canadian income tax law.

I wrote about the Tax Court of Canada decision here. You can read the Federal Court of Appeal decision here.

I found out about this leave to appeal from Eugene Meehan Q.C.'s SCCLawLetter which provides very timely information about Supreme Court of Canada decisions.

Claim For Failure to Maintain Life Insurance

Jean Stewart and Earl Clark Stewart were divorced in Mississippi, on March 23, 1978. Mr. Stewart was required to pay child support for his son, Joseph Stewart. He made a few payments, then stopped, and moved to British Columbia. In 1992 the Mississippi Court held Earl Clark Stewart in contempt for failing to abide by its order to pay support, and ordered him to pay over $26,000 in arrears of support. The Mississippi Court also ordered Earl Clark Stewart to “maintain an insurance policy on his life in the amount of $100,000 and to name the minor child born of this marriage as sole beneficiary of the policy….”

Joseph Stewart is now a man of 34 years. Earl Clark Stewart never did pay the arrears of child support, nor continue to make the support payments. When he died, on December 18, 2008, he left his estate worth approximately $150,000 in his will to three children from a second marriage and to three step children. He did not make any provision for his son Joseph Stewart. Nor did he maintain a life insurance policy naming Joseph Stewart as his beneficiary.

Joseph Stewart sued his father’s estate for $100,000 for his father’s failure to have a life insurance policy in place.  

The first question that Mr. Justice Butler considered in Stewart v. Stewart, 2011 BCSC 774, was what law should apply to determine the extent of the obligation to maintain the life insurance? The case was heard by the Supreme Court of British Columbia, which usually applies British Columbia law, but the order to maintain the life insurance policy was made by a Mississippi court. Mr. Justice Butler held that Mississippi law governed. The law of the jurisdiction of the court that made the order should be applied to determine the obligations. Furthermore, child support obligations are governed by the law of the jurisdiction most closely connected to the child and custodial parent, which in this case was Mississippi.

When the court in British Columbia applies the law of a foreign jurisdiction, the court will generally consider expert evidence from a lawyer in that foreign jurisdiction.

In this case, the executor filed evidence from, James Farrior, a lawyer in Mississippi. According to Mr. Farrior, the order that Earl Clark Stewart maintain life insurance is a form of support, intended to provide security in case Earl Clark Stewart died while the child support obligation continued. Under Mississippi law, the obligation to pay child support ends when the child attains the age of majority, which is 21 in that State.

Mr. Justice Butler accepted Mr. Farrior’s opinion on Mississippi law, and held that the obligation to maintain the life insurance policy ended when Joseph Stewart turned 21. The Supreme Court of British Columbia dismissed Joseph Stewart’s claim against his father’s estate for $100,000.

Accidental Revocation of Foreign Will

It is fairly common—or at least not unusual—to have property in different countries. It is often a good idea to have separate wills governing property in separate jurisdictions. Each will is drawn by a lawyer familiar with the laws of his or her jurisdiction, and can tailor your will accordingly. On your death, the executor of each will can apply for a grant of probate for the will in the jurisdiction for which it is intended to apply.

But if you have more than one will, it is important that the wills be carefully coordinated. If you change one will covering assets in one country, make sure that you do not accidentally revoke a will you indent to keep in effect for your property in another country.

This is what happened in an Ontario case, Re Estate of Blanca Esther Robinson, 2010 ONSC 3484. Esther Robinson owned property in England, Spain and Canada. She had wills made in Spain and in Canada. In her Spanish will, which she made in 2002, she gave her companion, Dr. Rondel, a life interest in her flat in London England, and provided that subject to the life interest, her property in Spain and England would go to her sisters. The terms of the Spanish will were clear that it governed only the assets in Europe, and her Canadian will governed her assets in Canada.

In 2005, she instructed her lawyer to make changes to her will in Canada. He did so. The Canadian will had provisions for a number of different beneficiaries, including step-children, business associates, her brother-in-law, two nieces and one of her sisters. She later revised her Canadian Will again to provide a gift of $1 million to her companion.

Unfortunately, when she made a new Canadian Will in 2005, she did not tell her lawyer about the Spanish Will. He included fairly standard clauses in the Canadian Will revoking all previous wills, and providing that all of her assets “wheresoever situate” would go to her estate trustee to be distributed in accordance with the Canadian Will. The lawyer went through the new Canadian Will with her clause by clause, and she signed it.

The estate trustee applied for and received a grant of probate of the Canadian Will in Ontario before he found out about the Spanish Will. He then applied to court for directions as to whether the Canadian Will could be rectified delete the revocation clause.

Mr. Justice Belobaba found that Blanca Robinson probably did not intend to revoke the Spanish Will. But he held that the court did not have the authority under Ontario law to rectify the will in these circumstances, where the solicitor had not made a drafting error, and Ms. Robinson knew of and approved the clause, but was mistaken as to the legal effect of the clause.

Ms. Robinson had accidentally revoked her Spanish Will, eliminating the gifts of the English and Spanish properties to her companion and her sisters.

The lessons are that it is important to tell you lawyer if you have wills in other jurisdictions. Lawyers, in turn, need to pay close attention to the wording of wills that they draw when the wills are not intended to revoke wills dealing with property in other jurisdictions, or to affect property in other jurisdictions.

Garron Family Trust v. The Queen

The Canadian Government taxes trusts resident in Canada. How can you tell where a trust is resident? Sometimes it is easy, but sometimes it is not.

The Tax Court of Canada released a significant decision concerning the residence of a trust in September. The case is Garron Family Trust v. The Queen, 2009 TCC 450. This case involves some fairly complex tax, estate and corporate planning. I will simplify it a bit to summarize the decision.

Myron Garron and Andrew Dunin built a very successful business manufacturing components for motor vehicles. They and other family members held interests either directly or through a holding company in a company called PMPL Holdings Inc. (which I will refer to as PMPL). PMPL, in turn, held shares in companies engaged in the active business.

In 1998, Mr. Garron and Mr. Dunin arranged for PMPL to be restructured. They received business valuation advice that the shares of PMPL were worth $50,000,000. These shares were exchanged for other new preferred shares that had a fixed value of $50,000,000 (they could be redeemed by PMPL for that amount). New common shares were then issued to two new holding companies, both incorporated in Ontario. The new common shares were arguably not worth much when they were issued, because all of PMPL’s value at the time was in the preferred shares (worth $50,000,000). But, the new common shares owned by the newly incorporated holding companies would increase in value with any increase in PMPL’s value. In other words, the common shares were growth shares. The preferred shares were frozen shares.

The shares of each of the new holding companies were owned by a trust. One trust, called Fundy, owned the shares of one new holding company. The other trust, called Summersby, owned the shares of the other new holding company. The beneficiaries of Summersby are Mr. Dunin, his wife, children and other descendants. The beneficiaries of Fundy are Mr. Garron, his wife, children and other descendants.

The trustee of each of the trusts is St. Michael Trust Corp., which is a company incorporated in Barbados. The shares of St. Michael Trust Corp. were initially owned by an accounting firm in Barbados.

In 2000, the trusts sold their shares in the new holding companies as part of a sale of PMPL and its subsidiary business to a New York firm, Oak Hill Capital Partners, L.P. The sale was for over $500,000,000. On the sale of the new holding companies’ shares, the shares increased in value by something in the neighbourhood of $450,000,000.

I am not sure how much federal and provincial income tax you would pay on a capital gain of $450,000,000 in Canada. It is not something with which I have ever had to concern myself. It would depend in part on what province you were in. I imagine the tax would be in the range of $90,000,000 to $100,000,000 or thereabouts, but I will let an accountant figure that out.

Whatever the amount of capital gains tax payable, Her Majesty the Queen took an interest in receiving those taxes for Canada. Well, at least Canada Revenue Agency did anyway.

But you will recall that the trustee of each of these two trusts was a corporation in Barbados. Canada and Barbados have a tax treaty. It has the title of “Agreement Between Canada and Barbados for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and Capital.” I think I might just call it the Tax Treaty.

The Tax Treaty provided that each country would only tax its own residents on capital gains on the sale of assets (with some exceptions). The trustee and ultimately the beneficiaries of each trust would prefer that the gain on the sale of the shares be taxed by Barbados than by Canada. This is because apparently Barbados doesn’t tax capital gains on the sale of shares.

The trustee of both trusts argued that because the trustee was a corporation resident in Barbados, the trusts were residents of Barbados. Therefore, under the Tax Treaty, Canada had agreed not to tax the trusts. The trustee found support in its position from an earlier Tax Court of Canada decision Thibodeau Family Trust v. The Queen, 78 DTC 6376, in which the Court held that the residence of the trust for tax purposes was the place where the majority of the trustees were resident.

But Canada Revenue Agency begged to differ. It argued that the real management and control of the trusts were in Canada, rather than Barbados.

In order to decide the case, Judge Woods first considered the tests for determining residency of a trust in respect of the Income Tax Act. She held that the appropriate test was similar to the test for determining the residency of a corporation: where is the central management and control of the trust. She rejected the argument that the residency of the trustee by itself determined the residence of the trust.

Judge Woods based her decision on a number of factors, which she found indicated that the central management and control of the trusts was Canada, rather than Barbados. She found that the role of the trustee was to sign legal documents for the trust and provide some administrative services, rather than to make important decision for the trust. The facts she considered include the following:

1. The terms of each trust provided for a protector, who had the power to remove and replace the trustee of the trust. Mr. Dunin and his wife, in turn, had the power to remove the protector of the Summersby trust, while Mr. Garron and his wife had the power to remove the protector of the Fundy trust. Indirectly, each family had the ability to remove the trustee of its trust.

2. The trustee’s internal memorandum indicated that the trustee expected to play a limited role in the trusts transactions and defer to Mr. Dunin and Mr. Garron.

3. The trustee appeared to have a limited role in making investment decisions. The trustee used Mr. Dunin’s and Mr. Garron’s advisors. The investment advisors in turn were given discretion in making investments by the trustee, allowing the investment advisors to take direction from Mr. Dunin and Mr. Garron.

4. Judge Woods found that there was little documentation indicating that the trustee played a large role in managing the trusts. The documentation that was provided indicated that the trustee had a limited role.

5. The trustee was at the time of the sale of the shares owned by an accounting firm, and did not have specialized expertise in managing trusts.

The result is that the trusts will have to pay capitals taxes in Canada on the gains of approximately $450,000,000 on the sale of the shares of the holding companies.

Judge Woods appears to have based her decision on the totality of these and other factors, rather than on any one consideration alone. The decision demonstrates that if you want to set up an offshore trust to take advantage of tax laws in another country, the trustee will need to exercise real management and control of the trust. It can’t just look good on paper.

This case likely also applies to determinations of the residency of trusts within Canada. For example, there may be tax advantages to having a trust resident in Alberta rather than British Columbia or Ontario. If there is a dispute about whether a trust is resident in one province or another, the court could look at where the central management and control is exercised.

[Since I wrote this post, both the Federal Court of Appeal and the Supreme Court of Canada have upheld Judge Woods's decision. See my post on the Supreme Court of Canada decision here.]

Does British Columbia Have Jurisdiction to Decide the Validity of a Codicil Concerning Land in Barbados?

In Armour v. Fuller, 2009 BCSC 409, Mr. Justice Halfyard held that the Supreme Court of British Columbia has jurisdiction to determine the validity if a codicil made in British Columbia, by a resident of British Columbia, but dealing with land in Barbados.

Elizabeth Armour had five children. She signed a will, and four codicils amending her will. She made the fourth codicil while she was living with her daughter, the Defendant Vikki Fuller. The fourth codicil left her villa in Barbados to the Vikki Fuller.

After Elizabeth Armour’s death on May 16, 2007, her other four children sued Vikki Fuller, alleging that the fourth codicil is invalid. They allege that their mother did not have testamentary capacity to make the fourth codicil, and that their sister unduly influenced their mother. If the plaintiff children are successful, the Barbados villa will fall into the residue of Elizabeth Armour’s estate, to be divided equally among her five children.

The defendant Vikki Fuller applied to court for a declaration that the Supreme Court of British Columbia does not have jurisdiction. She argued that both at common law and pursuant to the Court Jurisdiction and Proceedings Transfer Act, British Columbia courts do not have jurisdiction. She argued that the validity of the codicil must be dealt with by the courts in Barbados.

The plaintiff’s acknowledged that the law of Barbados will govern the validity of the codicil because it deals with land in Barbados. But the plaintiffs maintained that there is a sufficient connection with British Columbia for the case to be decided here.

Mr. Justice Halfyard agreed with the plaintiffs. There was a real and substantial connection to British Columbia, because Elizabeth Armour signed all of the codicils in British Columbia, and died in British Columbia. All of the relevant events happened in British Columbia.

The plaintiffs also met the provisions of the Court Jurisdiction and Proceedings Transfer Act, specifically section 3(d) and (e). The proceeding was brought against a resident of British Columbia, and there is a real and substantial connection to British Columbia.

Accordingly, the lawsuit will be allowed to proceed in British Columbia.

Ancillary Grants in British Columbia

In my last post, I wrote about resealing grants of probate from other Canadian provinces and from a few other Commonwealth jurisdictions in cases where the deceased was ordinarily resident outside of British Columbia, but had assets in British Columbia.

You can only “reseal” a grant of probate if the original grant was made in a place to which the Probate Recognition Act applies.

What if the Probate Recognition Act does not apply? For example, if the deceased was a resident in the Oregon at death, the executor may probate the will in Oregon. The deceased may have owned land in British Columbia. The Land Title Office will not allow the executor to transfer the land into his or her name on the basis of a grant of probate made by an Oregon court. Nor will the executor be able to reseal the grant in British Columbia under the Probate Recognition Act.

Fortunately, there is provision under the British Columbia Supreme Court Rules for an ancillary grant. Rule 61 (48) [since I wrote this post, the rules have been amended, and it is now Rule 21-5 (59)] says:

If probate or administration has been granted by a court of competent jurisdiction outside British Columbia and the grant cannot be resealed under the provisions of the Probate Recognition Act,
(a) a grant of administration, limited to the estate of the deceased in British Columbia, may be made to the attorney of the personal representative appointed by the foreign court, or
(b) an ancillary grant of probate or administration may be made to the personal representative appointed by the foreign court.

Rule 61 (49) [now 21-5 (60)] requires the applicant for an ancillary grant to file a copy of the will certified by the foreign court that granted probate or letters of administration.

The procedure is otherwise similar to a probate application. The applicant must file an affidavit of notice, and as well as an affidavit exhibiting an inventory of the deceased’s assets, liabilities and distribution. (See my post on probate applications.)

Resealing Probate in British Columbia

When I write about probating a will (or proving a will) in British Columbia in this blog, I usually assume that the person who died was a resident of British Columbia just before death. I assume that he or she had land only in British Columbia. Death, like life, is often more complicated.

The deceased may have lived in British Columbia, but owned land in Ontario, or California, or Peru.

Or, the deceased may have lived in Manitoba, but owned land in British Columbia.

The practical difficulty in these types of situations is that each province, or state or country has its own courts and procedures for dealing with probate. If you are an executor or other personal representative of the deceased, and you probate a will in one place, you may still have to go through a further court procedure in another place to deal with the deceased assets. This is true even among provinces in Canada.

In this post and the next, I am going to write about estates of deceased persons who were not residents of British Columbia at death. I will assume that the executor of the deceased’s will has received a grant of probate in the place where the deceased was domiciled at death, but must now deal with land or other assets in British Columbia. Although I refer to “probate,” much of what I write will also apply to “letters of administration” granted by a court appointing an administrator if there is no will or no executor willing to act.

In some cases, the executor may be able to deal with assets in British Columbia without a further grant. This may be true for shares of corporations or bank accounts.

But in other cases, including those in which the deceased was the sole registered owner of land valued at more than $50,000, it will be necessary for the executor to apply for a further grant in British Columbia.

If the original grant of probate in another Canadian province, the United Kingdom, and certain other members of the British Commonwealth listed in this Regulation, then the grant may be “resealed” in British Columbia pursuant to the Probate Recognition Act. The list does not by any means include all Commonwealth provinces and countries. For example, only two Australian provinces are included. Hong Kong is included in the regulation, but it may be that because Hong Kong is no longer a British possession, the Probate Recognition Act does no apply.

To reseal the grant in British Columbia, the executor makes an application in the Supreme Court of British Columbia. The procedures are set out in Rules 21-5 (61)-(68) of the Supreme Court Civil Rules. The application includes an affidavit of executor and an affidavit of notice, which are very similar to the affidavits filed in support of a probate application (see my post on probate applications). The main difference is that instead of filing the original will, the executor files a copy of the grant of probate certified by the court in the province or country where the probate was granted.

The affidavit of the executor must include an inventory of the deceased’s assets and liabilities, including those outside of British Columbia. The executor will be required to pay probate fees to the court. In calculating the amount of the probate fees, if the deceased was not ordinarily resident in British Columbia, the court registry should only include real estate and tangible personal property situated in British Columbia.

In my next post, I will write about cases involving deceased persons who were not resident in a place to which the Probate Recognition Act applies.

Gordon v. Venables

What happens when people bring court proceedings relating to an estate in two different provinces?

This is what happened in a recent case of Gordon v. Venables, 2008 BCSC 501.

Percival Gordon created a trust in his will. He directed his trustees to invest his estate, and pay the income to his daughter Helen Venables for her life. On her death, the will left the capital of the trust fund to his two grandsons, Peter Gordon and Michael Venables. He named his daughter as his trustee, and Peter Gordon as the alternate trustee in case his daughter was not able to act.

After Percival Gordon’s death in 1975, his daughter acted as the trustee with the assistance of a trust management company. She lived and managed the trust in the province of Ontario.

Helen Venables suffered a stroke in 2005, and became incapable of continuing to act as the trustee.

Peter Gordon, who lived in British Columbia, then became the trustee. He moved the trust assets to British Columbia employing a management company in British Columbia handle the investments.

Michael Venables and Helen Venables brought proceedings in Ontario to remove Peter Gordon as a trustee and to require him to pass his accounts in that province. They alleged that he had acted improperly.

Peter Gordon brought proceedings in British Columbia seeking approval of fees for his handling of the trust. It is not clear whether he was seeking legal fees as a lawyer or trustee fees, or both.

Michael Venables and Helen Venables brought an application to the Supreme Court of British Columbia asking the court to decline jurisdiction, or in other words, decline to allow Peter Gordon’s application to go forward. They argued that it would be more appropriate for the disputes to be decided in Ontario.

Mr. Justice Metzger held that it was more appropriate for the matter to be heard in Ontario. He considered the factors set out in s. 11 of the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28, which reads as follows:

11(1) After considering the interests of the parties to a proceeding and the ends of justice, a court may decline to exercise its territorial competence in the proceeding on the ground that a court of another state is a more appropriate forum in which to hear the proceeding.
(2) A court, in deciding the question of whether it or a court outside British Columbia is the more appropriate forum in which to hear a proceeding, must consider the circumstances relevant to the proceeding, including
(a) the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum,
(b) the law to be applied to issues in the proceeding,
(c) the desirability of avoiding multiplicity of legal proceedings,
(d) the desirability of avoiding conflicting decisions in different courts,
(e) the enforcement of an eventual judgment, and
(f) the fair and efficient working of the Canadian legal system as a whole.

Although there was some connection to British Columbia because Peter Gordon was managing the trust in British Columbia, Mr. Justice Metzger considered this in relation to the whole of the life of the trust. For most of the life of the trust, it was administered in Ontario. The court would need to consider any entitlement of Helen Venables to remuneration in determining Peter Gordon’s claim, and this would require hearing from witnesses who lived in Ontario. Mr. Justice Metzger wrote at paragraph 36,

With respect to the broader “ends of justice” analysis under s. 11, I note that the petitioner became the Trustee approximately one and a half years ago. He transferred the assets to British Columbia approximately one year ago. In my view, it would be contrary to the ends of justice for this court to rely on the petitioner’s own residency status and his own actions in moving trust assets in order to accede to his submission that British Columbia is the appropriate forum for the resolution of these disputes. I reach this conclusion because the changes that he brought about were extremely recent developments in the life of the Trust.

Probate in British Columbia of a Notarial Copy of a Quebec Will

Today I received a grant of letters probate of notarial copy of a will drawn by a Quebec notary. This was the first time I had acted for a client applying to probate a notarial copy of a will.

Usually in British Columbia, the original will must be submitted with an application for probate. But notaries in Quebec do not release the originals. Instead, they provide their clients with certified true copies of the wills.

Fortunately, British Columbia law provides if the will is made by a Quebec notary, the copy "has the same force and effect as the original and must be received in evidence in place of the original if the copy purports to be certified by a notary or prothonotary as a true copy of the original in his or her possession..." unless there is evidence that there is no original or the copy is not a true copy. This is set out in s. 36(1) of the Evidence Act, RSBC 1996, c. 124.

I had to make some small changes to the wording of the standard-form executor's affidavit and some of the other documents to reflect that we were applying to probate a notarial copy instead of the original, but thanks to the assistance of the Kelowna Supreme Court Registry staff, the application was quite straight-forward.

Because the will was in French, I had to provide a certified translation into English of the will. Shouldn't we be able to submit wills for probate without translations in either official language anywhere in Canada? I suppose the legal answer is that although Canada is an officially bilingual country, British Columbia is not an officially bilingual province. Probate laws are provincial. As a practical matter, I was more confortable getting the will translated into English by a qualified translater, than relying on my own understanding of French. All the same, its too bad we can't probate wills either French or English all accross Canada.