Is Someone Named in a Lawsuit as both an Executor and Personally Separate Persons?

 It is common for a person to be named in an estate lawsuit to be named personally and as an executor or administrator. For example, in British Columbia, in a wills variation claim, it is necessary for the plaintiff to name the executor of a will as well as all the beneficiaries (and anyone else who is entitled to apply to vary the will). If the same person is both the executor and a beneficiary, their name may appear twice: once as executor and once as a beneficiary. The claim may say “Jane Smith v. John Smith as executor of the will of Mary Smith and John Smith in his personal capacity.” (Someday I need to come up with cleverer names for my examples.)

John Smith may be represented by two different law firms, so that one may look after his personal interests as a beneficiary, and the other in respect of his duties as executor. But is John Smith, the executor a different person in law than John Smith, the beneficiary?

The answer is “no, he is not.”

This is succinctly explained by Madam Justice Francis in the Court of Appeal in Rasner v. Berger, 2026 BCCA 166. Laurie Rasner, in her capacity as executor of her stepmother, Adele Hurtig’s will brought a claim asserting that Ms. Hurtig’s son, Richard Berger, held a condominium on a resulting trust for Ms. Hurtig’s estate. She was not successful, and the trial judge ordered that she personally pay costs to Mr. Berger.

Ms. Rasner wanted to appeal against the order that she personally pay costs to the Court of Appeal. Because a party does not have an automatic right to appeal a cost order, she applied for leave to appeal. Her argument was that she was not personally a party to the suit (having brought the claim as executor), and costs should only be awarded against a non-party in exceptional circumstances.

Madam Justice Francis, who heard the application for leave to appeal, did not grant leave, holding that the application did not meet the tests for leave to appeal, which she set out in paragraphs 13 and 14 as follows:

[13]         In these circumstances, the test is:

1)    whether the proposed appeal raises questions of principle that extend beyond the parameters of the particular case;

2)    whether the questions of principle are of significance to the practice; and

3)    whether the proposed grounds of appeal are arguable.

Singh v. Singh, 2025 BCCA 309 at paras. 23–25.

[14]         Given the limited scope of appellate review of cost orders, leave will generally not be granted unless a question of principle is involved: Yung v. Jade Flower Investments Ltd., 2012 BCCA 168 at paras. 18–20 (Chambers). This Court will not interfere with a trial judge’s exercise of discretion on the issue of costs “unless persuaded that the trial judge misdirected him or herself on a matter of legal principle, or that the trial judge’s decision is so clearly wrong as to amount to an injustice”: Seminoff v. Seminoff, 2007 BCCA 403 at para. 2 (Chambers).

Ms. Rasner argued that the principle involved was “whether a judge is prohibited from ordering costs against an executor in their personal capacity, absent special circumstances, on the basis that an executor is, if not named personally as a party to the litigation, a non-party.” (Paragraph 15)

Justice Francis rejected this argument on the basis that Ms. Rasner was a party, even though Ms. Rasner was named in her capacity as executor. She wrote,

[16]         With respect, I find the applicant’s statement of principle to be premised on a misunderstanding of the nature of an estate. Trusts and estates are not juridical persons capable of suing and being sued. A trust is a type of relationship, namely, the fiduciary relationship that exists between trustee and beneficiary. When a personal representative commences litigation on behalf of an estate, they are not asserting a separate legal personhood. The often-used analogy is that they are the same person, wearing a different hat. Because the executor who commences a lawsuit in their capacity as executor is not a different legal person than the executor in their personal capacity, they are not a non-party in the latter capacity.

Boisvert Estate

 The British Columbia Wills, Estates and Succession Act (the “WESA”) allows the spouse of someone who dies without a will to retain the deceased’s interest in the spousal home as part of the spouse’s share of the estate. This will apply when the residence is in British Columbia.

In British Columbia, when someone dies without a will, referred to as an intestacy, then the provisions of the WESA sets out how the estate is to be divided. If the deceased’s left a spouse, but no descendants, then all the estate goes to the spouse, but if there the deceased had descendants (children, grandchildren and/or great-grandchildren etc.), then the estate is allocated between the spouse, on the one hand, and the descendants on the other. The share of the spouse depends in part on whether all of the descendants are descendants of both the deceased and the spouse, or whether the deceased had descendants from a previous relationship. If all the descendants are shared, then the spouse receives the first $300,000 of the estate, but if the deceased also had descendants who are not descendants of the spouse, then the spouse receives the first $150,000 out of the estate. The spouse also receives one-half of the rest of the estate.

The law used to be that the spouse also received a life interest in the estate in the spousal home, which allowed the spouse to live in the home for the rest of the spouse’s life. But this changed in 2014 when the WESA came into effect.

Now, the spouse can choose to retain the house as part of their share, the effect being that the spouse receives less funds from the estate. This is straightforward when the value of the estate is significantly greater than the value of the deceased’s interest in the home. For example, if the home, owned solely by the deceased is worth $700,000, and the total value after debts and expenses of the estate is $2 million, then there are sufficient funds to allocate the home to the spouse. In this example, let’s say that the deceased and the spouse have two children together, and the deceased did not have any children from another relationship. The spouse would be entitled to $1,150,000 ($300,000 plus half of $1,700,000) of the estate. The spouse could then elect to receive the home plus an additional $450,000.

But what if the value of the estate is not large enough for the spouse to receive the spousal home without infringing on the descendants’ share of the estate? This is what happened in a recent case, Re Boisvert Estate, 2026 BCSC 195, the only reported decision of which I am aware (at the time of writing this post).

Kathryn Anne Boisvert died May 14, 2022. She did not have a will. Ralph Amies was her common-law spouse and lived with her in a home owned by her for 25 years. She had two children from a previous relationship. The home was worth about $600,000 and she had no other significant assets. On the basis that the estate was worth $600,000, he was entitled to $375,000 (the first $150,000 in this case plus $225,000 representing half of the remaining $450,000). Ms. Boisvert’s two children were each entitled to $112,500 (half of $225,000).

If he received the home, then the children would not receive their share. On the other hand, in the circumstances of this case, Mr. Armies had limited means to buy out the children’s interest. He was 62 years old, with an income of about $20,000 annually, and about $100,000 in a Registered Retirement Savings Plan. The home was his longtime residence, and he contributed to the home and the household expenses. It would have been, the court found, a hardship to him to require him to buy out the children’s interest or to leave immediately.

 

The WESA does have provisions for this type of circumstance, providing a judge with a broad discretion to balance the interest of a surviving spouse and the descendants. Section 33 reads as follows:

33   (1) On application by a surviving spouse, the court may make an order under subsection (2) if

(a)the surviving spouse is ordinarily resident in the spousal home at the time of the deceased person's death,

(b)assets in the estate are not sufficient to satisfy the interests of all descendants entitled to share in the intestate estate or that part of the estate that is to be treated as an intestate estate without disposing of the spousal home,

(c)the court is satisfied that purchasing the spousal home under section 31 would impose a significant financial hardship on the surviving spouse,

(d)the court is satisfied that, in all the circumstances, a greater prejudice would be imposed on the surviving spouse by being unable to continue to reside in the spousal home than would be imposed on the descendants entitled to share in the intestate estate or that part of the estate that is to be treated as an intestate estate by having to wait an indeterminate period of time to receive all or part of their share of the intestate estate, and

(e)either

(i)the surviving spouse has resided in the spousal home for a sufficient period of time to have established a connection to the spousal home, or

(ii)the surviving spouse has a sufficient connection with the community or members of the community in the vicinity of the spousal home to warrant an order under subsection (2).

(2) The court may, subject to any terms or conditions the court considers appropriate, make an order doing one or more of the following:

(a)vesting the same interest in the spousal home in the surviving spouse that the deceased person had;

(b)specifying the amount of money the surviving spouse must pay to the descendants towards satisfaction of their interest in the estate;

(c)converting the remaining unpaid interest of the descendants in the intestate estate into a registrable charge against the title to the surviving spouse's interest in the spousal home;

(d)determining an interest rate, as that term is defined in section 7 [interest rate] of the Court Order Interest Act, or at any other rate the court considers appropriate, for the amount the descendants are entitled to under paragraph (c) of this subsection;

(e)determining the value of the registrable charge referred to in paragraph (c) to include the principal amount owing to the descendants entitled to share in the intestate estate or that part of the estate that is to be treated as an intestate estate and the expected value of the future interest that will be earned under paragraph (d).

Madam Justice Hardwick heard the application and balanced the competing interests by allowing Mr. Amies to retain the home, but subject to a charge on the title in the amount of $225,000 for the benefit of the Ms. Boisvert’s children. She reasoned:

[54]         Section 33(1)(d) requires me to assess whether a greater prejudice would be imposed on Mr. Amies by reason of not being able to reside in the spousal home, than would be imposed on the Descendants by reason of having to wait to receive most of their share of the Estate.

[55]         I find that Mr. Amies would be significantly prejudiced by a decision requiring him to quickly vacate the Smithers Home. He has resided in the Smithers Home for almost 30 years. It sits on a large lot. While there are homes that are available in Smithers that Mr. Amies could purchase with his share of the Estate, I accept that none of them are as desirable to live in as the Smithers Home as they are generally smaller and less private.

[56]         The Descendants will be prejudiced by Mr. Amies remaining in the Smithers Home but less so. Their only significant inheritance is their share of the Smithers Home. The longer that Mr. Amies stays in the Smithers Home, the longer they must wait for their inheritance. I am mindful that the Descendants’ inheritance has already been delayed through this litigation and that Mr. Amies has lived in the Smithers Home for almost four years following Ms. Boisvert’s death. As I will outline below however, the Descendents do have options to dispose of their charge so they can receive a portion of their inheritance sooner.

However, Madam Justice Hardwick limited the period Mr. Amies could reside in the home to 24 more months, reflecting the fact that he had already been in the home for over three years since Ms. Boisvert's death.

 

In the decision of Paige v. Noel, 2025 BCCA 358, the British Columbia Court of Appeal has arguably narrowed the criteria for determining whether to give effect under section 58 of the Wills, Estates and Succession Act (the “WESA”) to a document or other record that does not comply with the formal signing requirements for a will. Traditionally, British Columbia had very strict requirements for signing a witnessing a will in order for the document to be effective, but when the WESA came into effect in 2014 the law gave the court the authority to give effect to a non-compliant record “if the court determines that a record, document or writing or marking on a will or document represents… the testamentary intentions of a deceased person.”

The general test that the courts have applied in B.C. is whether the document or other record reflects “a deliberate or fixed and final expression of intention.”

The Court of Appeal has added the requirement “that the document is intended to operate as a will or as an alteration or revocation to an existing will.” This is quoted from paragraph 50 of the decision.

In Paige, Barbara Kissel died on January 7, 2023. She had made a will dated August 7, 2014, in which she appointed Michelle Noel as her executor and left her estate to Jennifer Paige and Adrian Kissel. There was no issue as to the validity of the will. However, she later sent messages to Ms. Noel indicating that she wanted to take Ms. Paige out of her will. As described in the Court of Appeal decision, there were two messages:

[7]            The record in issue is comprised of two electronic messages sent by the deceased to Michelle in October 2022 (which I will refer to as the Messages, as did the chambers judge). The first was a text exchange sent on October 6, 2022:

The deceased:            On a completely different note ... I have an appointment with the notary on the 14th to redo my will ...

Michelle:                      Oh boy, a redo?

The deceased:            Yes ... redo … Jennifer is out ....

Michelle:                      Well I don’t blame you, that wasn’t an easy decision and one I know you didn’t make lightly

The deceased:            I agree ... Jennifer has cut off her nose to spite her face. Once the redo is done I will give you a copy and explain more ....

                                    …

                                    Oh jeez…I didn’t even ask you…will you continue to be my executrix?

Michelle:                      Oh absolutely

The deceased:            MERCI beaucoup

[Emphasis in original.]

 

[8]            The second was an email sent on October 15, 2022:

… Just to have a paper trail … here is an update regarding my will. The notary I am using is Blandyna Skowronska …

I met with her yesterday and conveyed the changes I wanted. She said it would take about two weeks for the new will to be drawn up and registered. She said one option I had was to destroy all copies of my current will which would remove Jennifer immediately. However, should I pass away before the new will is registered, my estate, such as it is, would go to probate court and could be tied up for years. Going to probate also means that the governments have a say in distribution of assets. So, the current will that you have will stand until I get a new one.

In November, the deceased texted Ms. Noel indicating that she was going to go to a different Notary, and on January 3, 2023, she sent an email to neighbour who was a lawyer asking if her firm dealt with wills stating she wanted to “make a very minor change.” She died a few days later.

The Supreme Court of British Columbia judge found that the text message removing Ms. Paige represented her fixed and final intention and gave effect to the message pursuant to s. 58 of the WESA. Her reasons are set out in the Court of Appeal decision:

[25]         In concluding that the Messages represented the deceased’s fixed and final intention to alter the 2014 will to remove Jennifer as a beneficiary, the judge made the following findings (at para. 53):

·       the deceased did not waiver from her stated intention from October 6 up to her death;

·       her reasons for removing Jennifer were clear;

·       she was taking steps to accomplish this by seeking the assistance of two notaries and a lawyer; and

·       for reasons beyond her control, she was not able to complete a new will.

Ms. Paige appealed, and in allowing the appeal, the Madam Justice Fisher for the Court of Appeal described the criteria as follows:

[23]         The importance of the words “fixed and final at the material time” cannot be understated. As I explain further below, this is because s. 58(2) requires that the record, document or writing represents the testamentary intention of the deceased person, whether to make a will or to revoke or alter an existing will. A fixed and final intention must be grounded in the document itself, in that the document is intended to effect the testamentary intention.

Madam Justice Fisher reasoned:

[52]         The judge’s conclusion that the Messages reflected the deceased’s fixed and final intention cannot be reconciled with the content of the Messages themselves or with the surrounding circumstances. It is clear the deceased was unhappy with Jennifer and expressed an intention to alter her will to remove Jennifer as a beneficiary. But that intention cannot be considered fixed and final because it is equally clear that the deceased intended to effect that alteration by making a new will, and until she did so, the 2014 will was to remain operative.

….

[55]         The extrinsic evidence does not displace the words in the Messages. The deceased expressed the desire to remove Jennifer as a beneficiary to others in October 2022 and again in January 2023. She also set up but did not follow through with an appointment with a second notary in early November 2022 for reasons stated as health reasons. However, there is no evidence about the deceased’s state of health after early November that would explain why she did not take any steps to make a new will for almost two months. There is also no evidence that the deceased provided instructions to a notary or a lawyer after early November. The implications of the deceased’s email to her neighbour in January 2023 indicating that she wanted to make a “very minor change” to her will are at best unclear. In my view, the judge’s interpretation of this as not inconsistent with removing a beneficiary — that the required amendment could be minor despite the significant impact — is speculative.

[56]         The record also includes evidence from Jennifer about her positive interactions with the deceased in November 2022 — which was after the deceased’s communications with Michelle that were found to indicate an attempt to maintain a semblance of normalcy in her interactions with Jennifer. Moreover, while the judge was entitled to place less weight on Jennifer’s perceptions of the deceased’s state of mind, that evidence was not irrelevant.

In the result, Ms. Paige is entitled to a share of the estate.

Although the Court of Appeal’s decision is reasonable on the facts, I suggest that the court may have made the requirements a little too narrow.

I can conceive of circumstances in which the deceased makes a document that clearly demonstrates a deliberate or fixed and final intention without intending that document to be operative as a will. For example, the document may be a very clear instruction to a lawyer on what is to go in a will, but the deceased dies unexpectedly, shortly thereafter without have a reasonable opportunity to meet with the lawyer to sign the new will.

Zaleschuk Estate

Victor Stephen Zaleschuk died on January 2, 2022, leaving his spouse, Wendy Chen, and two children, Shane Zaleschuk and Christian Zaleschuk. Most of his wealth was in California, and was held in two trusts. This case considers the interpretation of a Will he made on January 12, 2020, governing his British Columbia assets, which consisted of a residence in Victoria, and a handful of assets of significantly less value, and no funds. His son Shane was living in a suite in the residence.

The Will appointed Ms. Chen has his executor and included the following:

a).        I DISTRIBUTE MY ASSETS AS FOLLOWS:

i).         Residence at 750 Pears Road, Victoria, British Columbia, Canada, V9C 3Z8 to Wendy Xin Hong Chen. All Farm equipment and implements included.

ii).        2016 Ford Flex to Wendy Xin Hong Chen.

iii).        2011 Ford F-150 to Shane Zaleschuk.

iv).       All shop tools, Nikon Camera, Gold Bracelet with Lapis & Diamonds to Shane Zaleschuk.

b).        I DISTRIBUTE ANY RESIDUE OF MY ESTATE AS FOLLOWS:

To both Wendy Xin Hong Chen and Shane Zaleschuk all Art & Jewelry and personal belongings as they see fit.

5).        I give my Executrix the following POWERS:

Power of sale, realization, employ agents, and power of dispute resolution.

***When and if the property is sold: Shane Zaleschuk to receive $150,000 CAD. Steve Whitner (a minor) to receive $25,000 CAD invested towards a[n] Educational Trust Fund.

6).        This Will was executed in Canada for Canadian Assets ONLY. My updated (01-01-2020) USA Children’s Trust takes precedent of ALL MY ASSETS OUTSIDE OF CANADA.

There was an error in the description of the beneficiary Steve Whitner, whose last name is Widner.

In a letter to his lawyer in California seeking advice concerning his U.S. estate planning, he described his plans for his residence in Victoria:

This property to be gifted (***) to Wendy Xin Hong Chen with the following caveats

i).         Suite will remain as Shane Zaleschuk residence. If the property is sold Shane to receive $150,000 CAD. A $25,000 Education Fund gifted to Steve Whitner.

A Canadian Trust does not work as I am not a full time resident of Canada. A Canada Will is included to clarify Canadian assets only.

ii).        As the mortgage renewal will be due April - 2020.....Wendy will be added to the title.

***After which Wendy will automatically inherent by Canada Law. But the Will must be adhered to regarding the sale of the property.

It should be noted that Wendy Chen was not in fact added to the title of the residence and it formed part of the British Columbia estate.

In her reasons for judgment, in Zaleschuk Estate, 2023 BCSC 523, Madam Justice Young first dealt with a challenge by Shane to his father’s capacity to make a will, and found that he did have capacity and that the Will is valid.

The more interesting aspects of the decision involve the interpretation of the will in light of reforms made in 2014 to British Columbia’s succession laws when the Wills, Estates and Succession Act came into effect. The reforms liberalized the types of evidence admissible when construing a will, permitted the court to rectify mistakes in a will, and also permitted the court to give effect to a document or other record that does not comply with the formal signing and witnessing requirements of a will.

Wendy Chen argued that she was entitled to the residence, and that the payments of $150,000 and $25,000 were void because they are inconsistent with the gift of the residence to her.

Shane Zaleschuk argued that the gift of the residence was subject to a trust requiring her to pay those cash gifts when she sold the residence. He also argued that the letter to the California lawyer, referred to in the decision as the “Record,” gave him the right to occupy the suite in the residence.

The most relevant provisions of the Wills, Estates and Succession Act are: 4(2), 58 (1) through (3), 59 (1) and (2):

4(2)        Extrinsic evidence of testamentary intent, including a statement made by the will-maker, is not admissible to assist in the construction of a testamentary instrument unless

(a)        a provision of the will is meaningless,

(b)        a provision of the testamentary instrument is ambiguous

(i)         on its face, or

(ii)        in light of evidence, other than evidence of the will‑maker's intention, demonstrating that the language used in the testamentary instrument is ambiguous having regard to surrounding circumstances, or

(c)        extrinsic evidence is expressly permitted by this Act.

58 (1)   In this section, “record” includes data that

(a)        is recorded or stored electronically,

(b)        can be read by a person, and

(c)        is capable of reproduction in a visible form.

(2)        On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents

(a)        the testamentary intentions of a deceased person,

(b)        the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or

(c)        the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.

(3)        Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made

(a)        as the will or part of the will of the deceased person,

(b)        as a revocation, alteration or revival of a will of the deceased person, or

(c)        as the testamentary intention of the deceased person.

 

59 (1)   On application for rectification of a will, the court, sitting as a court of construction or as a court of probate, may order that the will be rectified if the court determines that the will fails to carry out the will-maker's intentions because of

(a)        an error arising from an accidental slip or omission,

(b)        a misunderstanding of the will-maker's instructions, or

(c)        a failure to carry out the will-maker's instructions.

(2)        Extrinsic evidence, including evidence of the will-maker's intent, is admissible to prove the existence of a circumstance described in subsection (1).

Ms. Chen argued that there was no ambiguity in the will permitting extrinsic evidence, but rather two inconsistent gifts, and the absolute gift to her prevails over the inconsistent cash gifts. Madam Justice Young wrote:

[58]       The executor here submits that it is not appropriate to consider extraneous evidence when constructing a will which needs no clarification. Extraneous evidence is only considered when there is a need for clarification of a will. She cites ElliottEstate v. Elliott, 1998 Can LII 4471 which has some similarities to the present case. Of note, that case predated the enactment of the WESA, and so deals with the stricter common law rules of construction. The WESA came into force in 2014. Prior to that, the court had no power to rectify a will (Simpson v. Simpson Estate, 2022 BCCA 208 at para. 70).

[59]       In Elliott the will provided the petitioner with an absolute bequest of the testator’s estate. The respondents who had lived on the property for many years submitted that it was most probable that the testator intended to bequeath his property in trust to the petitioner subject to the life estate of the respondents.

[60]       The central issue in the case was what interest under the testator’s will did the respondents have in the house that they occupied. Justice Edwards found that this was not a case of a patent omission or even of ambiguity. It was a case where unambiguous but contradictory bequests were found in the same will. If the initial bequest to the executor of the property stood alone in the will it could only be interpreted as an absolute gift of the entire estate to her. If the other bequests stood alone they could not be said to be ambiguous as to the intention to create life estates or specific bequests of modest sums. The two gifts were inconsistent (Elliott at para. 19).

[61]       Justice Edwards found that the case before him was not a case of ambiguity which would permit the court to entertain evidence of surrounding circumstances in order to determine the testator’s intention or supply some omission (para. 20). He found that it was a case of a will containing incompatible bequests which were governed by the Blackburn and Cox v. McMillan (1902), 33 S.C.R. 65 line of authority (para. 21).

Citing Theimer Estate, 2012 BCSC 629, Justice Young held that the proper approach is to consider the Will as a whole in light of properly admissible extrinsic evidence.

She held that she could consider the letter to the California lawyer to assist in determining Victor Zaleschuk’s intentions. She found that it supported the view that he intended to impose a trust on the residence requiring payment of the cash gifts if and when it is sold.

In contrast, Madam Justice Young did not give effect to the statement in the letter permitting Shane to continue to live in the suite in the residence. The letter, though authentic, did not represent Victor Zaleschuk’s final testamentary intention.

Justice Young wrote:

[97]       I conclude that the Record is a working paper prepared to obtain advice from Mr. Watt and possibly from Shelsey Robertson as to whether the deceased’s overall estate plan is “doable”. It does not set out the deceased’s fixed and final expression of intention as to the disposal of the deceased’s property on death. I am influenced by his statement that “this is the second draft that I mailed to Mr Watts after he made a few changes”.

[98]       The gift to Shane of a life estate to the suite in the Residence is inconsistent with the gift of the property to Wendy. It is not provided for in the Will.

….

[100]    The cash legacies to Shane and to Steve Widner are repeated in the Will and although inconsistent with an absolute gift, I am satisfied that the deceased did intend that these cash legacies be paid. I find that the cash legacy clause should be read in as a trust imposed on Ms. Chen to pay if she sells the Residence.

[101]    I am not satisfied that the words “Suite will remain as Shane Zaleschuk residence” should be added to the Will. The Record is not a testamentary document. It sets out a plan for the U.S. and Canadian assets but some of it was not implemented, and the note changed on a few occasions, although the orphan signature page remains the same.

Justice Young declared:

      iii.        the subclause in clause 5 of the Will as corrected is valid:

 ***When and if the property is sold: Shane Zaleschuk to receive $150,000 CAD. Steve Widner (a minor) to receive $25,000 CAD invested towards a[n] Educational Trust Fund.

Tom v. Tang

In Tom v. Tang, 2023 BCCA 221, released in June, 2023, the British Columbia Court of Appeal clarified that in a wills variation proceeding the Court applies an objective standard when considering a will maker’s reasons for disinheriting a child or treating children unequally. Earlier Court of Appeal decisions have often been interpreted as applying a more subjective approach to a will-maker’s reasons, allowing a court to uphold disinheritances or significantly unequal treatments of adult children if the will-maker provided reasons that were valid (in that they were based on true fact) and rational (in that they were logically connected with the parent’s treatment of their child), even if those reasons were not objectively justifiable.

Before I get to the legal issues, the story in Tom is that of a couple and their five children, working together to build successful lives in Vancouver, after having immigrated to Canada in the 1960s. The will-maker, Bo Kam Tom, and her husband, with the assistance of their children, bought and operated a grocery store. They later bought a family home. All of the children obtained university educations.

Mr. Tom died before Mrs. Tom. Her health declined after she was hurt in a car accident and diagnosed with cancer. All of the children were described as “dutiful and devoted to their mother, visiting or calling regularly, taking her to appointments, dim sum and social activities, staying with her when she needed support and visiting her when she was at the hospital and later the hospice.“ They were “devoted and loving children.”

Two of the children, Rose Tsai and Samsun Tom, provided significantly greater care for their mother in her last few years. In recognition of their care, she changed her will to leave her house to those two children, with the rest of her estate divided among all five children. Her house was worth approximately $1.7 million and the remaining assets about $700,000. The effect of the will was that two of her five children would receive about 85 per cent of her estate, and the other three, Linda Tang, Faye Wong and Jack Tom, would share about 15 per cent.

The three children receiving a lesser share brought a wills variation claim asking the court to provide them with a larger share.

Section 60 of the Wills, Estates and Succession Act provides that the Court may vary a will if the will maker does not make adequate provision for a spouse or child. If adequate provision is not made the court may vary the will to provide such provision as the court considers “adequate, just and equitable in the circumstances.” Section 62 provides that the court may consider evidence of the will-maker’s reasons for making the provision they made. These legislative provisions were formally in the Wills Variation Act, which is referred to in many of the cases.

The trial judge varied the will to increase the provision for the three children who were left less in the will. The will was varied by giving an additional $300,000 to each of Rose Tsai and Samsun Tom, and dividing the rest of the wealth equally among all five children. The decision of the trial judge reduced the discrepancy among the children, while giving some effect to the will-maker’s decision to favour two of her children.

Rose Tsai and Samsun Tom appealed. One of their arguments was that the trial judge should have upheld the will on the basis that their mother had rational and valid reasons for making the provisions she made in view of the additional care they provided to her.

This raises an important issue. The will-maker’s reasons in this case, that two of her children had provided her with greater assistance, were factually accurate. Her decision to provide those two children with greater shares is logically connected to her reasons. Yet the overall distribution in her will is arguably disproportionate. She may have good reasons for favouring two of her children, but leaving them with 85 per cent seems a bit much in the context of her good relationships with all of her children.

Some would argue--including me--that there has been a tension in the cases between an objective standard in assessing whether a will-maker has made adequate provision for a child, and some of the cases in which the courts have upheld distributions on the basis of the will-maker’s reasons.

The Supreme Court of Canada has articulated an objective approach to wills variation cases. In a case decided in 1931, Walker v. McDermott, [1931] S.C.R. 94, the Supreme Court of Canada said that in applying the legislation the court “would naturally proceed from the point of view of the judicious father of a family seeking to discharge both his marital and his parental duty; and would of course (looking at the matter from that point of view), consider the situation of the child, wife or husband, and the standard of living to which, having regard to this and the other circumstances, reference ought to be had.”

In a more modern case, Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807, the Supreme Court of Canada set out a framework focused on the will-maker’s legal and moral obligations to a spouse or children. Legal obligations refer to obligations such s division of property obligations to a spouse under family law, while moral obligations are based on society’s reasonable expectations of what a judicious person would do in the circumstances.

In three cases, Bell v. Roy, (1993) 75 B.C.L.R. (2d) 213, Kelly v. Baker (1996), 15 E.T.R. (2d) 219, and Hall v. Hall, 2011 BCCA 354, the Court of Appeal has used language implying a more subjective standard if the will-maker provides reasons that are valid and rational, even if not objectively sufficient.

In Bell, Justice Goldie wrote at paragraph 38,

…that the weight to be given evidence of the testator's reasons is affected by its accuracy and not by morally acceptable or unacceptable content. I do not say the legislature swept away any objectively determined moral duty. I do say, however, that the actual intentions of the testator are to be given an effect which is largely denied by reliance upon the notionally objective reasonable testator.

In Kelly, Justice Finch (later Chief Justice) wrote,

The law does not require that the reason expressed by the testator in her will, or elsewhere, for disinheriting the appellant be justifiable.  It is sufficient if there were valid and rational reasons at the time of her death - valid in the sense of being based on fact; rational in the sense that there is a logical connection between the reasons and the act of disinheritance.

As I wrote in 2015 in a blog post entitled “It’s Time forthe Court of Appeal to Revisit its Formulation of ‘Rational and Valid Reasons’in Wills Variation Cases,” these cases have been criticized in other court decisions as being inconsistent with the objective standard in Tataryn.

In the Court of Appeal in Tom, Madam Justice Fenlon considered Bell, Kelly and Hall in the context of the facts and issues in dispute in each of those cases, and found that the Court of Appeal in each of those cases did apply an objective approach and was not advocating a more subjective approach to a will-maker’s reasons. For example, in Kelly, the claimant submitted that at the time the will was made, four years after the claimant left home, the reasons did not provide a sound basis for disinheriting him. Those reasons included that he had abandoned his family and lived a life morally unacceptable to the will-maker. However, the will was made 16 years before the will-maker died. Justice Finch was addressing the timing of the reasons: they did not have to be justifiable at the time the will was made, if they were consistent with the “discharge of a good parent of her duties to her family,” at the time of her death.

After considering all three cases, Justice Fenlon wrote,

[51]         In summary, Bell CA, Kelly and Hall do not stand for the principle that a testator’s unequal treatment of adult children must be deferred to, without regard to the objective standard of the reasonable testator and current social norms, as long as the subjective reasons given for the unequal distribution are valid and rational. These cases recognize instead that a testator’s moral duty to adult children must be assessed from the viewpoint of a reasonable testator, and that the moral duty may be negated where there is just cause.

The Court of Appeal in Tom went some distance in re-interpreting it’s earlier decisions, but the result is to bring the jurisprudence in line with the objective framework of Tataryn.

This ground of appeal was dismissed. The Court of Appeal did vary the trial judge’s decision a little, by awarding each of Rose Tsai and Samsun Tom 30 per cent of the estate with the other three sharing 40 per cent. 

 

Estates Disputes in British Columbia: A Litigator's Guide

The Continue Legal Education Society of British Columbia has published a new manual entitled Estates Disputes in British Columbia: A Litigator's Guide. The Chapters are:

1.  Initial Considerations in Estate Disputes

2.  Conflict of Laws in Estate Disputes

3.  Resolving Estate Disputes through Mediation

4.  Proceeding with Estate Litigation

5.  Validity of Wills Disputes

6.  Interpretation, Rectification, and Construction of Wills Disputes

7.  Curing a Defective Will

8.  Wills Variation Claims

9.  Disputes Regarding Attorneys

10.  Disputes Regarding Personal Representatives and Trustees

11.  Committeeship Applications and Claims Against Committees

12.  Inter Vivos Trust Disputes

13.  Inter Vivos Transfer Disputes

14.  Life Insurance, Registered Account, and Benefit Plan Beneficiary Designation Disputes

15.  Resulting Trusts, Unjust Enrichment, Constructive Trusts, and Secret Trusts

16.  Issues of Spousal Status in Estate Disputes

17.  Administration of Intestate Estates Disputes

18.  Passing of Accounts and Trustee Remuneration Disputes

Shahdin Farsai of our firm authored the chapter, Passing Accounts and Trustee Remuneration Disputes. I am one of the co-editors of the book. 

 

The Taciturn and Undemonstrative Men of Somerset

 

A mere promise to leave property to someone in the will is not enforceable. But, like so much in law, there are exceptions. One exception that sometimes arises occurs when the person who is promised property reasonably relies on the promise, making sacrifices as a result. The type of claim I am writing about has the rather inscrutable label “proprietary estoppel.” I have written about it before, including a Supreme Court of Canada case, Cowper-Smith v.Morgan, 2017 SCC 61.

The principle, as set out by Chief Justice McLachlin in Cowper-Smith, is as follows:

[15] An equity arises when (1) a representation or assurance is made to the claimant, on the basis of which the claimant expects that he will enjoy some right or 2017 SCC 61 (CanLII) benefit over property; (2) the claimant relies on that expectation by doing or refraining from doing something, and his reliance is reasonable in all the circumstances; and (3) the claimant suffers a detriment as a result of his reasonable reliance, such that it would be unfair or unjust for the party responsible for the representation or assurance to go back on her word [citations omitted].

My favourite case is an English case predating Cowper-Smith. The name of the case is Thorner v. Majors, [2009] UKHL 18, but I refer to it as the “Taciturn and Undemonstrative Men of Somerset” case.  

Perhaps what’s most interesting about Thorner is how far the trial judge and ultimately the House of Lords were prepared to go to find that the farm owner made a representation that the claimant would receive his farm.

The plaintiff, David Thorner was a farmer who did substantial work for almost 30 years on his father’s cousin’s farm. He did so without pay. The farm was in Somerset, a seemingly irrelevant fact.

The cousin, Peter Thorner, did not ever expressly say he would leave David Thorner the farm.  There was, rather, some indirect statements and conduct that led the plaintiff to believe he would inherit the farm.  In 1990, for example, Peter handed over an insurance policy bonus notice to David, and said “that’s for my death duties.” There were other oblique statements implying that Peter would leave David the farm.

Peter did not leave David the farm, but died without a will.

The trial judge found that Peter was “a man of few words.” He also “was not given to direct talking. The simplest example…is that when Peter said ‘What are you doing tomorrow?’ he generally meant ‘Would you come and help me tomorrow.’”

In awarding to David the land, buildings live stock and other farm assets, the judge found that David had established the elements of proprietary estoppel. As quoted by Lord Walker of Gestingthorpe at paragraph  47, the judge  wrote:

With regard to all that David did at Steart Farm, and in looking after Peter, for the further fifteen or so years up to his death, there is again no need for me here to repeat the various relevant findings I have already made earlier in my judgment. David’s contribution was not only unremunerated, but also far in excess of that made by any of the others who helped at Steart Farm, whose roles I have reviewed in paras 74-80 above. He was encouraged to continue with his considerable and unremunerated commitment to this work by what was said and done by Peter on the various occasions I have already identified. There is a clear and sufficient link between that encouragement from Peter and what David did for him and on his farm.

The Court of Appeal reversed primarily on the grounds that Peter’s assurances were insufficiently clear and unambiguous to be reasonably relied upon. They were consistent with Peter expressing a current intention to leave David the farm, rather than as an assurance that he would leave the farm.

In the House of Lords, there are five separate judgments restoring the trial judge’s decision. The nub of the reasons in the House of Lords is that the trial judge considered the circumstances of Peter’s words and conduct, and the decision is entitled to deference. The trial judge considered Peter’s words and conduct in the context of the relationship between him and David and also in the context of the community in which they lived. Lord Walker of Gestingthorpe wrote:

59. In this case the context, or surrounding circumstances, must be regarded as quite unusual. The deputy judge heard a lot of evidence about two countrymen leading lives that it may be difficult for many city-dwellers to imagine—taciturn and undemonstrative men committed to a life of hard and unrelenting physical work, by day and sometimes by night, largely unrelieved by recreation or female company. The deputy judge seems to have listened carefully to this evidence and to have been sensitive to the unusual circumstances of the case.

Ghag v. Ghag

Last month, I wrote that the courts in British Columbia are reluctant to interfere with a trustees discretion when the trust instrument gives the trustee a wide discretion to make distributions to beneficiaries.  I used the case of Re Zaleschuk as an illustration of the deference courts often show to the exercise of a discretion. But,  as you will see below, there are limits to a court's deference to trustees, especially when the trustees prefer their own interest.

In Ghag v. Ghag, 2021 BCCA 106, Madam Justice Griffin set out the principles as follows:

[47]         A trustee’s exercise of wide discretion under the express terms of a trust will rarely be interfered with by a court. Nevertheless, there are grounds that may justify the court’s interference in the exercise of a trustee’s discretion. As summarized by Professor Waters, the court may interfere in the exercise of discretion by a trustee where:

a)    the decision is so unreasonable that no honest or fair‑dealing trustee could have come to that decision;

b)    the trustees have taken into account considerations which are irrelevant to the discretionary decision they had to make; or

c)     the trustees, in having done nothing, cannot show that they gave proper consideration to whether they ought to exercise the discretion.

(Donovan W.M. Waters, Mark R. Gillen & Lionel D. Smith, Waters’ Law of Trusts in Canada, 4th ed (Toronto: Carswell, 2012))

Sukie Ghag settled a family trust for the benefit of his wife, Charmaine, and his four children, after he was diagnosed with brain cancer. 100 Class A common shares of Abby Pharmacy Ltd. were held in the trust. He appointed his son Brendan as trustee and Charmaine as the alternate trustee. The terms of the trust included the provision:

… The Trustee shall exercise the powers and discretions given to him in what he deems to be the best interests, whether monetary or otherwise, of the Beneficiaries, whether or not such exercise may have the effect of conferring an advantage on any one or more of the Beneficiaries at the expense of the other Beneficiaries ….

 [emphasis in decision.]

Brendan Ghag took $100,000 out of the trust bank account, and he distributed 55 Class A common voting shares to himself, 15 Class A shares to each of the other children, and none to Charmaine. He also caused the company to allot 150 Class B common voting shares, ranking equally with the Class A shares, to himself.

Charmaine Ghag and the other three children brought a petition to remove him as trustee and appoint Charmaine, for an accounting, and for an order voiding the transfer and allotment of shares.

While consenting at the hearing of the petition to his removal as trustee, and to an accounting, Brendan alleged that the share transactions were in furtherance to a secret agreement he had with his father. He claimed that his father intended for him to receive control of the company in a tax-efficient way, and for his mother to receive no interest in the shares or voting rights.

In the Supreme Court, at 2021 BCSC 815, Mr. Justice Tammen heard the petition and granted the relief sought including declaring the transfer and issuance of shares void. He found that by acting in accordance with the alleged secret agreement, Brendan

took into consideration irrelevant and inappropriate considerations in exercising his discretion as trustee.  In addition, his decision to apportion the majority of the trust assets to himself and to exclude entirely one of the named beneficiaries is one that no even‑handed, fair minded trustee could have made in the exercise of his discretion.

The Court of Appeal upheld Mr. Justice Tammen’s decision. 

Re Zaleschuk

 

Discretionary trusts are often drafted broadly permitting the trustees “absolute and uncontrolled discretion.” This may be so, even when the will maker or settlor had in mind creating a benefit for one beneficiary. Courts are reluctant to interfere with the trustee’s discretion in such cases, as long as the trustee is acting reasonably and in good faith.

In a recent case, Re Zaleschuk, 2022 BCSC 943, Justice A. Ross declined to remove trustees who had refused various requests for funds made by a beneficiary’s mother on behalf of the beneficiary. After Kenneth Zaleschuk (“Kenneth Sr.”) was diagnosed with cancer in 2014, he settled a trust for his son, Kenneth Jr., a young adult who had a learning disability and was unable to live independently. Kenneth Sr. was the initial trustee, and named his sisters as his successor trustees. His sisters became the trustees following Kenneth Sr.’s death in 2015.

Kenneth Jr. lived with his mother Marina Zaleschuck. She and Kenneth Sr. and divorced and there was evidence from Kenneth Sr.’s lawyer and financial advisor that in settling the trust, Kenneth Sr. was concerned about protecting the funds from his former spouse, and making sure there were sufficient funds for his son for life.

The trustees refused several requests from Marina for funds for Kenneth Jr. including funds for a motorized scooter, glasses, massage and acupuncture treatments, a new phone, a new laptop, travel expenses for a trip to Europe and a new headboard.

A petition was filed for Kenneth Jr. to remove his aunts as trustees and replace them with his mother. Although the petition was brought in his name, the trustees alleged that the litigation was being driven by his mother who had a power of attorney for him.

The trustees had provided funds totaling about $26,000 for Kenneth Jr. including travel expenses for trips with his sister, Marie, glasses and a helmet. They provided reasons for denying Marina’s requests including that she did not follow the procedure they put in place for requests, that they considered that some expenses were for items he did not need or, in the case of the scooter, potentially dangerous, and that some of the expenses were potentially covered under his disability benefits. They were willing to step aside as trustees provided that a professional trustee was appointed, but opposed Marina becoming the trustee.

In declining to remove the trustees, Justice Ross found that they were acting properly within the scope of their discretion. Justice Ross wrote:

[80]         Despite the criticisms leveled by the petitioner, I note that:

a)    the Trustees have released Trust funds to the benefit of Kenneth Jr. for travel and other items;

b)    they have considered and rejected other expenditures on the basis that they were not in Kenneth Jr.’s best interests (e.g., the motorized scooter) or they were unsure whether the Province may be reimbursing the expense;

c)     their actions have resulted in the capital increasing by more than $200,000 since 2015.

[81]         Although complaints have been leveled regarding the decisions of the current Trustees, I accept their submission that the Trust Deed imbues them with the full discretion to decide whether to pay amounts out of the Trust. On that point I accept this overarching submission of the Trustees:

They are exercising their discretion (as provided in the provisions of the Trust Deed) to make sure that there are sufficient funds to care for Kenneth Jr. for the rest of his life. At present, Kenneth Jr. lives with his mother and his regular expenses are covered by his disability benefits paid by the Province. At some point in the future, he will not be able to rely on living with his mother. The Trustees are administering the Trust in a fashion that will best ensure that there are funds available for his care in his later years. The Trustees submit that the Trust Document provides them with the full discretion to make those decisions.

Can the Personal Representative of a Deceased Separated Spouse Start a Claim Against the Surviving Former Spouse?

 

In a decision released on February 25, 2022, the British Columbia Court of Appeal confirmed that the personal representative of a deceased separated married spouse may bring a family law claim against the surviving spouse if they had not divorced. The case is Weaver Estate v. Weaver 2022 BCCA 79.

Lani Jo Weaver and Albert Russell Weaver married in 1993 and separated in 2005. They did not divorce, sign any separation agreement or bring any family law proceedings against each other.

Ms. Weaver died in 2020, and in November 2020, the administrator of her estate brought a family law claim in British Columbia against Mr. Weaver seeking a division of family property including jointly owned real estate in British Columbia and in the United States. Mr. Weaver brought an application in the Supreme Court of British Columbia in which he asked to dismiss the claim on the basis that because of Ms. Weaver’s death her administrator did not have standing to bring the claim and the court did not have jurisdiction to hear it. Mr. Weaver’s application was dismissed, and he appealed to the Court of Appeal.

The Court of Appeal held that Ms. Weaver’s administrator did have standing to bring the claim on behalf of her estate. The decision is based primarily on the wording of the legislation.

The Section 81 of the Family Law Act provides that on separation each spouse is entitled to an undivided one-half interest in family property and is equally responsible for family debt. The legislation provides that the one-half interest is as a tenant in common, the implication of which is that on death the one-half interest falls into the souse’s estate and does not pass to the other joint owner by right-of-survivorship as in a joint tenancy.  The word spouse is defined in section 3 to include a former spouse.

The time limits for brining a family law claim for a division of family property are set out in section 198 and depend on whether the spouses are married or are spouses by virtue of living in a marriage-like relationship. Pursuant to section 198 (2), the claim must be filed in court

(a)in the case of spouses who were married, the date

(i)a judgment granting a divorce of the spouses is made, or

(ii)an order is made declaring the marriage of the spouses to be a nullity, or

(b)in the case of spouses who were living in a marriage-like relationship, the date the spouses separated.

(The running of the time limit may be suspended in some circumstances.)

The Supreme Court Family Law Rules contain provisions providing that claims may survive the death of a spouse and for the appointment of a litigation representative to start or continue a family law case on behalf of a deceased’s estate.

Section 150 of the Wills, Estates and Succession Act provides (with certain specified exceptions such as defamation claims) a cause of action or proceeding survives the death a person who has a claim or is a party to a proceeding.

Madam Justice DeWitt-Van Oosten, for the Court of Appeal, contrasted the Family Law Act with legislation in some of the other provinces where the relevant legislation expressly excluded claims by or against the estate of a deceased separated spouse. If the British Columbia Legislative Assembly intended to exclude claims by the personal representative of a deceased former spouse, it could have done so expressly.

Furthermore, the case law established that a surviving former spouse could bring a claim against the estate of a deceased former spouse, and it would be unfair if the personal representative of the deceased former spouse could not similarly make a claim against the surviving former spouse.

In light of the language of the legislation, this decision does not appear to me to be controversial. But there is an interesting point to consider. In view of the fact that only living spouses may divorce, is there any limitation period for a claim either made against the estate of a deceased separated married spouse, or brought on behalf of the estate of the deceased separated spouse? What if both spouses have been dead for decades?

Madam Justice DeWitt-Van Oosten commented briefly on this point:

 

[81]         The chambers judge did not address this issue. Nor did we receive full submissions on the point. For present purposes, I simply note that the modern principle of statutory interpretation, as applied to s. 198(2)(a) of the FLA and s. 150 of WESA, may support an interpretation that the administrator of an estate would have two years from the date of death of the separated and deceased spouse to commence a claim for division.

I confess that on reading the legislation, I am not sure how those sections support that interpretation. I hope that this will be considered in a future case, because in many cases an undue delay would be unfair to either the living separated spouse or to the beneficiaries of the deceased spouse. There may perhaps be other defences available particularly if the claimant’s delay caused the defendant to change their position to their detriment. From the perspective of the person making the claim, it is best not to delay.

Avoidable Legal Expenses in Estate Disputes

 

Its easy for legal expenses in emotional estate disputes to get out of hand. Some are surprised when I tell them that legal expenses can be in the hundreds of thousands of dollars. Although I generally associate expenses in that range with cases that go through a full trial, even without a trial, disputes can result in disproportionate expense. In some cases much of the expense can be avoided by forthright, early communication among the parties.

My point is illustrated by a recent assessment of lawyers’ bills in Mulder Estate, 2022 BCSC 406. This dispute was between the daughter of the deceased will-maker and her two brothers. The daughter, Leondra Ponnusamy, was named as the executor, and all three were beneficiaries of their mother’s estate. Her brothers, Ronald Mulder and Robert Mulder, asked for records of their mother, Alma Mulder’s bank accounts predating her death. Their sister refused, taking the position that as executor she did not have provide records of transactions that occurred before death. They claimed that she failed to repay $20,000 in loans. The also claimed that $35,000 that their mother had given to her was a loan, which she had to repay, rather than a gift, as she claimed. They further alleged that she received another $150,000 from their mom, and that she owed that amount to the estate.

Ultimately the dispute was settled out of court, after she did provide records, including records showing that she did not receive $150,000 and that she repaid the $20,000. But by then, the parties had incurred combined legal bills of about $300,000 in a $1.3 million estate. The sister had two lawyers involved, and the brothers had one lawyer.  

Although the Registrar did reduce the bills to some extent (25% for one lawyer, 20% for another and 5% for the third), the main point is that most of this could have been avoided.

Registrar Nielsen disagreed with the position the executor took initially that she had no obligation to provide disclosure of records prior to her mother’s death. She had a fiduciary duty, or in other words a duty of loyalty, to beneficiaries, and the circumstances called for full disclosure. Had she done so at the outset, the dispute could have been resolved with far less expense.

Registrar Nielsen wrote:

[63]         During the course of her evidence, the executor stated that she did not want her brothers seeing the per-death financial records as Ron and his wife Tammy had meddled in Alma’s finances while she was alive, and Alma had confided in Leondra that she resented this. Disclosure of the records would essentially be an affront to her mother’s memory. It is difficult to equate this stance with the definition and duties of a fiduciary provided by Dr. Waters [from Waters’ Law of Trusts in Canada, 4th ed].

[64]         In my view this was a case that cried out for full financial disclosure at the outset when it was first requested. The executor was both executor and beneficiary, and she had a pre-death history of receiving both gifts and loans from the deceased. Her relationship with her brothers had been fractured before she became executor, and Alma had indicated to Ron that Leondra was having financial difficulties. Mistrust in these circumstances was inevitable. It was not, in the words of Dr. Waters, “in the interests of the estate, or the beneficiaries” to withhold the financial information in these circumstances, from two of the three beneficiaries. 

[65]         When the executor is also a beneficiary, the fiduciary duty is particularly high when there is a pre-death history of loans and gifts to the executor by the deceased. She had a duty to identify and collect any unpaid debts owed to the estate. She alone had exclusive access to the financial records. Ron and Rob had no right to access those records without her consent, or court order. Without disclosure of the pre-death financial records, they were completely in the dark with respect to any debts owed to the estate, real or imagined.

[66]         As the litigation progressed needlessly, select financial records were disclosed, as the executor saw fit, to prove the allegations of the beneficiaries to be incorrect, or “false”, as submitted by counsel for the executor. Once disproved, the allegations were eventually withdrawn, although not as quickly as the executor would have liked.  

The brothers could also have brought an application to court to get the disclosure to get the documents early on.

What I find remarkable is that, although none of the parties were challenging their own lawyer bills, it took 24 days of hearing time for the bills to reviewed. We don’t know how additional expense the parties incurred arguing about each other’s lawyer’s bills.

Registrar Nielsen noted:

[72]         Following 24 days of evidence and argument in the within proceeding on what should have been the relatively narrow topic of legal fees, with the benefit of hindsight, there is no doubt in my mind that early disclosure of the financial records, when first requested, would have nipped the lion’s share of the subsequent litigation in the bud. The savings to the estate in legal fees would have been considerable. It may have also preserved what was left of the sibling’s fractured, but civil personal relationship.

Supreme Court of British Columbia Gives Effect to an Unsigned Draft Will During Covid-19

Getting wills signed during Covid-19 has been a challenge, especially for persons in retirement communities and care homes when visitors are restrictions. The process those of us who are estate-planning lawyers like to follow of meeting our clients in person to review the final drafts of their wills and act as one of the two witnesses has often been thwarted. No doubt many wills have gone unsigned for months, with the increased risk of death before the wills are completed.

In a recent decision, Bishop Estate v. Sheardown, 2021 BCSC 1571, the Supreme Court of British Columbia gave effect to a draft will that was left unsigned because of Covid-19 restrictions. Section 58 of the Wills, Estates and Succession Act allows the court to give effect to a document or other record in British Columbia even though the document has not been signed and witnessed in accordance with the formal requirements for making a valid will. This provision has been used in a wide variety of contexts to give effect to a document if the court is satisfied that the document is authentic and reflects the deliberate or fixed and final intentions of the now deceased person. As I have written before, it may be difficult to satisfy a court to give effect to a draft will prepared by a lawyer months before the person died, without a good explanation of why the lawyer’s client didn’t make an appointment with her lawyer to sign the will. In Bishop Estate, there was a good explanation: Covid-19.

On June 27, 2014 Marilyn Carole Bishop and her husband made wills in which each left everything to the other, and if the other had died, to the Kelowna General Hospital Foundation. The Bishops did not have any children. Mr. Bishop had been treated at the Kelowna General Hospital, and their gifts to the Foundation reflected their gratitude for his treatment. 

After Mr. Bishop’s death, Ms. Bishop’s nephew Robert Sheardown and his wife, Deborah Sheardown, moved to Kamloops, nears where Ms. Bishop resided. They became very close and they assisted her.

In February 2020, Ms. Bishop met with her lawyer to revise her will. She told her lawyer, Matthew Livingston, that she wanted to give most of here estate to the Sheardowns. She wanted to give a gift to their daughter and was considering modest gifts to some o charities. She said the gift to the Kelowna General Hospital Foundation was her husband’s idea and she had no connection to Kelowna, which she considered two far away.

Mr. Livingston drafted a will for her, with some questions. She delivered a note to him setting out Ms. Sheardown’s full name, that she wanted to give a brooch to her great-niece and “No charities at this time.”

On March 17, 2020, she booked an appointment for March 20, to sign the final draft will, which reflected the changes as set out in her note. On March 19, she cancelled her appointment. By that time, the care home in which she lived had prohibited residents from leaving other than for medical appointments, and did not permit visitors, in order to protect residents from Covid-19. Ms. Bishop died on July 20, 2020, without signing her will.

The Kelowna General Hospital Foundation argued that the 2020 draft will should not be given effect. They argued that the words “No charities at this time,” implied that Ms. Bishop had not demonstrate a fixed and final intention. However, Madam Justice Matthews that wills are by their nature revocable, and the issue is whether the intentions are fixed and final at the relevant time. It is not necessary for someone to decide that they would not change the will in the future.

In finding that the document did reflect Ms. Bishop’s fixed and final intentions, Madam Justice Matthews carefully reviewed the facts:

[38]         It is evident that Ms. Bishop reviewed the draft that Mr. Livingston sent to her on February 12, 2020. Her handwritten note that she delivered on March 3, 2020, directly responded to each of Mr. Livingston’s questions in the comment boxes in the first draft.

[39]         In her note, Ms. Bishop did not suggest any new changes to the will; she simply filled in the blanks that Mr. Livingston had left for her. The first was to fill in Ms. Sheardown’s middle name. The second was to specify a gift for the Sheardowns’ daughter, whom Ms. Bishop had already mentioned that she would like to give a gift to. Although Mr. Livingston had discussed the possibility of a registered education savings plan for her, Ms. Bishop ultimately decided to give her a gold brooch.

[40]         The same can be said of Ms. Bishop’s third instruction, “no charities at this time”. When she met with Mr. Livingston, Ms. Bishop indicated that while she did not want to give a gift to Kelowna General Hospital Foundation, she might want to make a couple of modest gifts to specific charities. In the month that followed, Ms. Bishop decided she did not want to make charitable gifts.  This is not problematic. The gifts initially proposed were relatively minor: $10,000–$20,000 for each of Thomson Rivers University and the Firefighters’ Burn Fund. At most, this represented approximately 7% of her total estate.

[41]         Kelowna General Hospital Foundation submits that the language of “at this time” indicates that Ms. Bishop’s intentions lacked finality. I am not satisfied that it demonstrates that her intentions were not final. As Dickson J. notes in Young Estate at para. 35, a fixed and final intention cannot mean that the intention is irrevocable, since wills are, by their nature, revocable until the testator’s death. Rather, the intention need only “be fixed and final at the material time”.

[42]         Accordingly, the mere mention of “at this time” is not enough to overcome the considerable evidence that suggests that her intentions were fixed and final. Her instruction was not an equivocation; it was a clear expression of her fixed and final intention at the time she delivered the note on March 3, 2020. Of course, in this case, the material time stretches beyond March 3 to the date of Ms. Bishop’s death; nevertheless, as I will discuss, nothing suggests that Ms. Bishop’s intention to not give to any charities changed in that time.

[43]         Ms. Bishop did not request any substantive changes to the draft. The manner in which she responded to Mr. Livingston’s questions suggests that she was satisfied with the unexecuted 2020 will and was prepared to execute it. When she was asked if she wanted to review it again in advance of an appointment to sign it, she made an appointment to sign it. In the circumstances, it cannot be said that the unexecuted 2020 will “was not seen, or read, or written, or in some way authenticated, or adopted”: George v. Daily (1997), 143 D.L.R. (4^th) 273 (Man. C.A.) at para. 56.

[44]         It is relevant that the unexecuted 2020 will makes considerable sense in the circumstances: Hubschi Estate (Re), 2019 BCSC 2040 at para. 40. Based on the evidence, it is unsurprising that Ms. Bishop would wish to name the Sheardowns as the executors and primary beneficiaries of her estate and to remove Kelowna General Hospital Foundation as a beneficiary.

[45]         The document and the context in which it is made has the hallmarks of fixed and final testamentary intention in that bears the title of a will, it was made by a lawyer retained by Ms. Bishop for that purpose, it revokes her prior wills, it directs how her remains are to be dealt with, it names executors and beneficiaries including an alternate beneficiary. The beneficiaries make sense in the context of Ms. Bishop’s relationships. Ms. Bishop’s response to Mr. Livingston’s questions provided him with the information necessary to complete the draft.

Accordingly, the Sheardowns will receive Ms. Bishop’s estate.