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

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

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

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

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

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

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

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

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

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

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

(i) incapable of managing his or her affairs,

(ii) incapable of managing himself or herself, or

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

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

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

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

Re: Levesque

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[34]      … The second, and core, issue is whether the non-compliant document represents the deceased’s testamentary intentions, as that concept was explained in George.

[35]      In George the court confirmed that testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death.  The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death.  A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a will, by its nature, is revocable until the death of its maker.  Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.

[36]      The burden of proof that a non-compliant document embodies the deceased’s testamentary intentions is a balance of probabilities.  A wide range of factors may be relevant to establishing their existence in a particular case.  …

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Becker v. Becker Case Comment -- by Kimberly Wallis

[The following guest post was written by Kimberly Wallis also of Sabey Rule LLP.]

In the recent British Columbia Supreme Court case of Becker v Becker, 2016 BCSC 487, the executor of the will of Ann Andrews sought to prove her will in solemn form after its validity was formally challenged by those who would benefit under a previous will. 

There were a number of red flags raised surrounding the circumstances of the execution of Ms. Andrews last will and testament.  These were:

·         She made not one but two new wills in the last six weeks of her life;

·         She had been diagnosed with an inoperable brain tumor at the time;

·         Her long time companion gave instructions directly to her lawyer, indicating that the first new will had errors in it that had to be corrected;

·         The ultimate residuary beneficiaries departed from an estate plan that Ms. Andrews had in place for at least a decade.

Despite these red flags, Mr. Justice Smith found that the last will executed by Ms. Andrews (“the Final Will”)  was valid and the will would thus govern the ultimate distribution of her estate.

Ms. Andrews emigrated from the UK to Canada in 1974, with her husband Mr. Andrews, who died a few years later.  Ms. Andrews met and lived with Hendrik Becker for 27 years prior to her death, but neither relationship led to children and she died without issue.  Mr. Becker, however, had three sons from a previous relationship.

Accordingly, Ms. Andrews was survived by her common-law husband, his children and Mr. Becker’s four grandchildren who were Ms. Andrews step-grandchildren (‘the grandchildren”) in Canada.

Ms. Andrews was also survived by an assortment of six nieces and godchildren in England (“the godchildren”).

Under earlier wills, the residue of Ms. Andrews estate, (after a life interest for Hendrick in her West Vancouver condominium) would have been divided among the godchildren, whereas under the final will, the residue would be divided ten ways among the grandchildren as well as the godchildren.

After being admitted to Lions Gate hospital on December 28^th, 2011, Ms. Andrews was told of the inoperable brain tumor and she remained in the hospital in palliative care until her death some six weeks later.  On her behalf, Hendrick contacted the law firm that had drawn up her previous will, and shortly thereafter a solicitor from that firm attended upon Ms. Andrews.

Ms. Andrews gave instructions on January 10^th and executed a new will on January 13^th.  Like her old will, the first new will provided that the godchildren would be the residuary beneficiaries.

However, Mr. Becker contacted the solicitor, one Ms. Rockandel, on January 12^th, indicating that he believed his own grandchildren were the residuary beneficiaries.  On the 16^th of January, he told her that his grandchildren were to be included, along with the godchildren as residuary beneficiaries.  On the 17^th Ms. Rockandel took instructions from Ms. Andrews to that effect, and on the 18^th Ms. Andrews executed the Final Will, which did indeed provide for ten way distribution of the residue and included both the godchildren and the grandchildren.

In coming to the conclusion that Ms. Andrews had mental capacity to execute her will and further that Mr. Becker did not exert undue influence upon her, Mr. Justice Smith looked at the following factors:

WARMTH AND CLOSENESS OF RELATIONSHIP WITH BENEFICIARIES

·         Although close to her godchildren, the court also considered that Ms. Andrews had known the grandchildren their whole lives, and as such, that while not blood relatives they were natural objects of her bounty. 

·         Although the godchildren attempted to portray Ms. Andrew’s relationship with Mr. Becker as one of convenience, the fact remains that they spent three decades together and were together at her death.

SOLICITOR’S INSTRUCTIONS

·         The solicitor spent a significant amount of time taking instructions, although Mr. Hendrick was there for the first two thirds on January 10^th.

·         Ms. Rockandel was quite properly “keenly aware” when Mr. Hendrick told her to include his grandchildren as residuary beneficiaries that she had to hear this from Ms. Andrews directly.

·         Ms. Rockandel was blunt and told Ms. Andrews flatly that she did not have to change her will; Ms. Andrews told her she had seen the grandchildren grow up and did not wish to leave them out. 

MEDICAL EVIDENCE

·         Ms. Andrew’s doctor testified she was “bright and alert” on the 13^th, the day she executed the first new will.  While he testified she was emotional about her diagnosis, the judge emphasizes that one should not confuse the disturbed emotions that are to be expected of one who learns “that death is imminent, with the question of mental capacity” [66].

With respect to the involvement of Mr. Becker in the creation of Ms. Andrews estate plan, Mr. Justice Smith cited Madam Justice Dardi in Chang Estate vChang, 2013 BCSC 976, for the proposition that merely making one’s wishes known does not amount to undue influence:

…The undue influence must constitute coercion which could not be resisted by the will-maker and which destroyed his or her free agency.  It is well-established on the authorities that if the will-maker remains able to act freely, the exercise of significant advice or persuasion on the will-maker or an attempt to appeal to the will-maker to gratify the wishes of another, will not amount to undue influence….[35]

Historically, in British Columbia, it has fallen on a person alleging undue influence to prove it.  However, one of the changes brought in by the new Wills, Estates and Successions Act ("WESA") is a switch to this burden of proof – going forward, for those wills adjudicated under WESA, the burden of proof will fall upon the person who is in a position of trust and who benefits in the will to prove that they did NOT unduly influence the will-maker.

Interestingly, Mr. Justice Smith states that while in this case the will-maker died before that provision became law, even if the burden of proof had rested upon Mr. Becker to refute, the evidence would have fallen short of establishing a case of undue influence.

With regard to Ms. Rockandel’s actions, the judge stated that while it is of some concern that Hendrick was present for part of the January 10^th meeting, he was not present on the 13^th, 17^th, or 18^th of January.  Further, Ms. Rockandel took the time to talk with Ms. Andrews at length and comfort herself that Ms. Andrews was acting freely, albeit possibly with some coaxing from her husband of 30 years.  As Mr. Justice Smith states, “Nothing in the case law prevents suggestions or persuasion by a spouse, provided that there is no coercion and the testator remains free to make his or her own decision” [70].

Also important is the fact that the Becker grandchildren had been part of Ms. Andrew’s life for decades and she had watched them grow up.  Mr. Justice Smith contrasts this with those wills made at the end of a life to benefit someone “who had only recently come into the testator’s life” [60].  Presumably the courts may regard such a change with more suspicion.

This case, like many before, establishes that very solid evidence must be available in order to succeed in a claim of undue influence in the courts of British Columbia, and that this will possibly remain the case even with the new reversal of the burden of proof.

Mr. Attorney- Don't Change The Wills Variation Act - By Trevor Todd

[My friend Trevor Todd is a Vancouver lawyer who practices estate litigation exclusively. He is very concerned about proposals that if passed would eliminate the right of many adult children to make claims under the Wills Variation Act, RSBC 1996, c. 490. Trevor has kindly authorized me to post this article as a guest post. He has several other excellent articles on his website: Disinherited.com.]

In the summer of 2006 the British Columbia Law Institute delivered to the Attorney General a sweeping report entitled Wills, Estates and Succession: A Modern Legal Framework. Many of that report's recommendations involve well-considered and welcome changes.

There are two recommendations in that report, however, which appear to be ill-considered and arguably contrary to public policy. Specifically the problematic recommendations propose changing the Wills Variation Act.

The Wills Variation Act permits a spouse or child to contest a will where it does not make adequate provision for them. The class of claimants eligible to bring such a claim includes any spouse, common-law spouse or same-sex spouse and includes both the natural and adopted children of the deceased.

The troublesome changes proposed in the report would:

a) eliminate adult children as claimants unless they are unable to be self supporting; and
b) discourage lump sum payments under the Act in favour of periodic maintenance

The supposed "rationale" for the proposed changes is to make the law of British Columbia consistent with the law in other Provinces. In fact, we say that British Columbia, is actually ahead of the other Provinces. Our legislation permits B.C. courts to bring more fairness into the law of wills and succession by introducing the principles of equity.

These proposed changes would reverse almost 90 years of jurisprudence enforcing the claims of adult children, who have not been adequately provided for in a parent's will. We believe it is contrary to good public policy to abolish these long standing rights. Indeed the only apparent rationale is to provide certainty to both testators and to their solicitors who do not like to see their well-crafted wills rewritten.

In this paper, we intend to briefly sketch the background to the legislation and illustrate, with real life examples, the clear need for such legislation.

Today's Society

The potential for inheritance conflicts has been growing, especially with the increasing number of "blended family" situations and second or even third families. In such cases there may be differing perceptions of any obligation to provide an inheritance for younger children, as opposed to older more established children.

The question of a child's "entitlement" to share in a parent's estate often provokes a lively discussion. Thus it is common, in our experience, for people to criticize the Wills Variation Act because it permits mere "malcontents" to contest a will. It is said these ingrates should instead be grateful for whatever their parents have given them.

Unfortunately such critics simply do not appreciate that many successful claims involve disempowered individuals who have been raised in dysfunctional families. Too often, the last act of abuse by an abusive parent is to disinherit their child. For example, we have had a couple of cases involving childhood incest victims who have been disinherited as adult women, yet they will carry the scars of this devastating abuse all their lives. This is just one type of claim which would be eliminated if the legislation is passed.

Let us begin by reviewing three recent successful claims which would be eliminated by the proposed changes. Perhaps these examples will help to illustrate the dangers of "tinkering" with this legislation-particularly in an increasingly diverse and multi-cultural society.

1) The cultural bias for males over females-preferring sons over daughters in wills.

Many cultures, including for example, South Asians and Chinese, commonly favour sons over daughters both in life and in death. The decision of Prakash and Singh v. Singh et al 2006 BCSC 1545 involves such a case. Most of the mother's estate went to her sons. They were left bequests of $260,000 each compared to the $ 10,000 left to each of three daughters.

Mr. Justice Rice, increased the daughters bequests to an almost equal share with the sons. In doing so he eloquently stated:

" In modern Canada, where the rights of the individual and equality are protected by law, the norm is for daughters to have the same expectations as sons when it comes to sharing in their parents estates. That the daughters in this case would have this expectation should not come as a surprise. They have lived most of their lives, and their children have lived all of their lives, in Canada.

A tradition of leaving the lion's share to the sons may work agreeably in other societies with other value systems that legitimize it, but in our society, such a disparity has no legitimate context. It is bound to be unfair, and it runs afoul of the statute of this Province."

2) Disinheriting Gays and Lesbians

Peden, Smith et al 2006 BCSC 1713 involved a deceased who left three sons, two heterosexual sons and one gay son. The Deceased's will provided that the two heterosexual sons would receive an outright inheritance whereas the gay son would receive only the income of a share to be held in trust during his lifetime. The capital of his share would be left to his two brothers after his death. The drafting lawyer gave evidence that the deceased had been greatly upset that his son was gay and actually had wanted to completely disinherit him. The court concluded that it was the son's gay lifestyle which had thus caused the deceased to dispose of his estate as he did.

The court varied the will and converted the life estate to be an outright direct gift to the gay son. In so doing, the court observed "homosexuality is not a factor in today's society justifying a judicious parent disinheriting or limiting benefits to his child."

3) A Child Abandoned to a Life of Abuse and Deprivation by Her Mother

Austin v. Janzen Estate involved a plaintiff who was born illegitimate. Her mother, rather than putting the girl up for adoption, farmed her out to an abusive home. Over the years, the mother paid $ 20 per month to have her daughter raised by this abusive family. She visited occasionally until she had a new boyfriend. She continued to repeatedly reject this daughter. For example, their last contact was when the 14 year old daughter wrote to ask for money for badly needed dental treatment. The mother wrote back that she could not afford the money because she needed it to paint the nursery for the new baby she and her husband were about to adopt.

This mother effectively abandoned the plaintiff yet went on to be a loving and supportive mother to two adopted daughters. Not surprisingly these adopted daughters were well educated and enjoyed happy successful marriages and lives. On the other hand, the plaintiff left school when she was young and struggled through abusive marriages and many other traumatic events.

At age 60 the plaintiff learned her mother had died leaving her very sizable estate to her two adopted daughters. To the plaintiff she left $100.

The Court varied the will to provide for an equal one third to each daughter.

Background - Testamentary Freedom at Common Law

Any discussion of the Wills Variation Act requires an understanding of the English common law underlying the legislation.

English common law provided that when a person died, that person could leave his or her property to whomsoever he or she wished.

This ability to dispose of one's estate is known as "testamentary autonomy " or "testamentary freedom". It is legal doctrine which was developed by the English courts during a time (1700-1900) when little property was actually disposed of by will.

During that time, few people actually had assets to leave in a will. Most wealth was made up of real property which was generally considered to be family property. Because it did not belong to the individual, it was not part of the estate to be disposed of by will upon death.

When the children of wealthy families married, their families often made marriage settlements which included conditions with respect to the ownership of the property and its passage upon death. Thus, property governed by a settlement was not part of an individual's estate.

It was in this context that the English courts decided that a testator was free to decide the beneficiaries to inherit under his or her will.

Thus, the English law of succession left it to the discretion of testators to dispose of their estates as they saw fit. Even today at common law testators are not legally obliged to make provision for their spouse or children. There is no binding obligation to leave a set amount to their spouse or their children.

This English common law was inherited by all of the former English colonies, including Canada. It is noteworthy that this common law approach is in stark contrast to most of the rest of the world. The law of most civil law countries (all of Europe but for England, South America, Africa, Japan) requires that the majority of a person's estate pass on death to their spouse and children.

In civil law countries which include most of the non-English speaking world, a fixed portion of a deceased's estate (often 50% to 75%) passes automatically to the surviving spouse and children. The testator can only dispose freely of a smaller portion of his or her estate. The credo seems to be "you had them, you pay for them".

In our common law world, this historic common law doctrine of testamentary freedom has been modified by statutes such as the Wills Variation Act which permit the spouse or children to make a claim against the estate in appropriate circumstances. Unless there is a successful statutory claim brought under the Wills Variation Act, however, the principle of testamentary freedom still prevails at common law.

We contend that our Canadian society should not be slaves to the historic concept of testamentary autonomy. The common law is always focused backwards and the usefulness of this out-dated concept is extremely questionable. Quite simply, the Wills Variation Act provides for equity to be done, where appropriate. Eliminating the claims by adult children would prevent the courts from doing equity in appropriate circumstances. It is for that reason we strongly suggest that eliminating appropriate Wills Variation Act claims would be a move backwards rather than forwards.

It is only assets that actually form part of the deceased's estate which are subject to Wills Variation Act claims. Testators, who are truly determined to disinherit their children, may still use trusts and inter vivos transfers to circumvent the Act. Indeed the rich have historically utilized trusts to circumvent the Act and other statutory law. Many will continue to do so. It is not illegal to arrange one's affairs to avoid the application of the Act altogether.

Claims under the Wills Variation Act by Adult Children

In our practice, claims frequently involve the children of abusive and alcoholic parents, generally fathers. We hear a recurring theme - a father coming home drunk after work, beating his wife and children, and generally terrorizing the family on an ongoing basis. Many of these children leave home at very early ages, and quite understandably bear a strong resentment against the abusive parent. Some become substance abusers themselves. At best, they remain emotionally damaged individuals.

Naturally such abusive parents generally have little insight as to the lifelong effects of their mistreatment. Thus the abuser, when preparing his or her will, will typically disinherit the children on the basis of estrangement. The handling lawyer or notary often just accepts this statement as the truth of the matter and makes little enquiry into the history of the estrangement.

Most of us had the remarkable fortune to be raised in happy, healthy families. But just ask any experienced teacher, minister, police officer or doctor and they will attest to the great number of dysfunctional families. A visit to the Canadian Department of Justice Family Violence fact sheet indicates much more family violence than we would wish to believe. There is a large body of information available that attests to the unfortunate frequency of such dysfunctional families.

In our practice many of the estrangement cases involve a history of physical, emotional and/or sexual abuse by the parent or step-parent toward the child. Where the estrangement can be properly explained and put into perspective, then the adult child may well have a meritorious claim under the Wills Variation Act.

Two Real Life Examples from our practice:

Example 1 involves a claim made by the three adult independent children relating to the death of their father, Mr. M, a victim of murder.

Mr. M had been married for almost 50 years when his first wife died. He had a good relationship with his three adult children and his grandchildren. Living alone, however, he became very lonely and depressed and thus engaged Ms. R through an "escort service".

Shortly after they met, Ms. R moved into the deceased's residence. Mr. M was 71 and Ms. R was 41. Ms. R changed the residential phone number to her own unlisted number and soon completely isolated Mr. M from his children. Within two months they "married" (unbeknownst to Mr. M, his "bride" was still legally married to another man). On their tropical "honeymoon" he was treated at a medical clinic for a lacerated scrotum-it appeared that he had been kicked. Shortly after the marriage Mr. M prepared a new will leaving his entire estate to R, and alternatively to her daughter, thus completely disinheriting his own three children.

Once back in Canada, the " bride" began to run her escort service out of their now joint home, publishing ads that she "specialized in seniors". This so-called marriage ended abruptly a few weeks later when Ms. R beat Mr. M to death. In fact, she beat him so severely she broke every rib in his body. She was subsequently convicted of his murder and thus became disentitled to share in his estate. As a wrongdoer, she was prevented by law from benefiting from her own crime.

In these circumstances, however, Ms. R's daughter arguably continued to have a valid claim as the alternate beneficiary under the will. This daughter had never met the deceased. At common law, however, testamentary freedom prevails and this daughter had done no wrong. Ms. R's daughter was very arguably entitled to receive the entire estate as the named beneficiary under the will.

Fortunately however, an application under the Wills Variation Act led to the court rewriting the will to leave the estate instead to Mr. M's three adult children.

Example 2 involves a 40 year old woman known as S. She had been adopted at age 7 by the Deceased and her husband, it seems more as a servant than as a child. She was made to work long hours at her "mother's" puppy farm business. Each morning S rose at 4.30 am to feed and care for 100 animals before catching the school bus into town for school. The Deceased would routinely beat her for any perceived misbehaviour or insubordination. In extreme situations, she was denied food. The Deceased wore the pants in the family and her husband, rather a more kindly man, did not intervene on S's behalf. Presumably, he too was victimized by his wife.

S skipped school for the first time at age 16 (one Friday afternoon, in order to help her friend prepare for the friend's mother's release from hospital). S learned from her father that the deceased intended to beat her so she stayed away until Sunday, hoping her mother would cool down. When she phoned home her mother told she had already burned all of her possessions and would be putting her dog down. The mother said "You came into the house with nothing and you will leave with nothing".

This Deceased not only disowned S, she obliged her husband and other family members to disown S as well. (Fortunately one kindly aunt defied this order, however, she too paid the price for disobedience.)

S was homeless and taken in by friends. With few options, she became pregnant and married a severely abusive man who continued to abuse her and the children for years. He beat her and starved her and the children while she was pregnant-gambling all their money away. Their third child, a son, was born severely disabled child. S finally summoned the courage to leave him raising her children on her own for 24 years. She continues to care for this adult son who cannot speak and is incontinent. He weighs only 40-45 pounds and is catastrophically injured in every sense of the word.

Nevertheless S managed to get a university education by attending classes while her son was at eligible government care as a child. Once he became an adult however, this eligibility ended and she continued to care for him full-time rather than putting him into an institution.

S was a very kind person who repaid her aunt's kindness many times over. She also attempted to contact her adopted mother on several occasions, but was rebuffed at each turn.

The Deceased died leaving an estate of approximately $250,000. Her will provided S with a bequest of $5,000 on the basis that they had been estranged for 25 years.

We commenced a Wills Variation claim on her behalf however once the proper facts were brought to the attention of the executor and beneficiaries of the estate, the case was settled with S receiving one-half of the net estate.

Summary of Basic Principles --The Clucas Decision

Madam Justice Satanove, in Clucas v. Clucas Estate 29 E.T.R.(2d) 222, did an excellent summary of the basic principles of the Wills Variation Act.

Let us paraphrase those principles briefly.

The main object of the Act is to provide adequate, just and equitable provision for the testators’ surviving spouse and children.

The Act also protects the interest in testamentary freedom which is not to be interfered with lightly. In the absence of other evidence, a testator is presumed to know best how to meet his legitimate obligations and concerns.

The Act provides an objective standard by which to measure whether a testator has provided "adequate and proper maintenance and support" for his surviving spouse and children. Thus the court should examine the will keeping in mind society's reasonable expectations of what a judicious parent would do in the circumstances.

In making a determination, the court must consider any legal obligations of the testator to the spouse and children, followed by the moral obligations to them.

Independent adult children have a more tenuous moral claim than any spouse or dependent adult children. If the size of the estate permits, however, parents should generally make some provision for adult independent children (unless there are circumstances which rule out such an obligation)

A testator may have a moral duty to adult children in a number of different circumstances including disability, legitimate expectation of inheritance, probable future difficulties of the child; the size of the estate and other legitimate claims.

This moral obligation by a testator may be negated by "valid and rational" reasons which justify disinheriting the child. In such a case, these reasons must be based on true facts and must be logically connected to the disinheritance

Although a needs/maintenance test is no longer the sole factor governing such claims, a consideration of needs is still relevant.

Conclusion

The purpose of this paper has been to demonstrate there are many circumstances in which the Wills Variation Act allows equity to be done for adult children. That ought not to change.

In effect the British Columbia Court of Appeal has specifically recognized dysfunctional families in their decision Gray v. Nantel 2002 BCCA 94. In permitting the claim of an estranged child, Mr. Justice Donald, spoke for the court:

"I cannot accept that a child so neglected for his first 18 years and then treated shabbily during a brief reconciliation can be said to forfeit the moral claim to a share in his father's estate by abandoning any further effort to establish a relationship. The fault in this sad story lies with the father and, in my opinion, the onus to seek further reconciliation was on his shoulders. The testator gave the appellant virtually nothing in an emotional or material way; the will was his last opportunity to do right by his son" (emphasis added)

For close to 90 years adult independent children have had the right for equity to be done, in appropriate circumstances, under the Wills Variation Act. The five actual cases discussed in this paper represent a small sampling of the legitimate claims brought under this Act by independent adult children.

If the current right to bring such actions is curtailed, it will particularly damaging to those already disempowered. It will eliminate the claims of the disempowered whether they be the daughters of Asian Canadian families, gays or victims of families abuse.

If you agree with the position in this article, then we encourage you to write to the Attorney General and to let your Provincial MLA know of your concern.

Copyright 2007, Trevor Todd.

The Notorious Knickerbockers Trust - by John Poyser

[My friend John Poyser, of the Winnipeg law firm of Inkster, Christie, Hughes, LLP, and Chair of the National Wills and Trusts Subsection of the Canadian Bar Association, has kindly contibuted this guest post.]

Very little is known about the Reverend John Gwyon, but a great deal is known about his estate plan – one of the most bizarre forays into succession planning known to English legal history.

Reverend Gwyon made his will on May 25, 1912, in the shadow of World War I. His will dedicated the whole of his fortune to the establishment of a foundation. That foundation was to exist for the sole purpose of providing boys who were resident of the Farnham district of England with one new pair of knickers each year. Also known as knickerbockers, knickers were a form of short pants gathered just below the knee that were in popular fashion for boys at the time. To be eligible for a pair of knickers from the foundation a boy had to be between the ages of ten and fifteen. To get a replacement pair, the boy had to turn in the old. Money from the foundation was to be used for “no other purpose whatsoever, whether educational or otherwise.” We can only speculate as to what the Reverend John Gwyon was thinking. We can presume he was a bachelor.

Not being content to leave his curious and questionable legacy unrefined, he then amended his will five times over the ensuing six years.

Fearful that he might not have been specific enough, his first amendment declared that the word knickers meant “ordinary strong and durable knickers such as were worn by boys every day, but no sporting or fancy knickers of any kind such as football knickers, cricket knickers, military knickers, boy scout knickers, etc.”

Worrying that the trustees of the foundation might be diverted from their work by war or other calamity, his second amendment made it clear that “in case of extreme national or local distress, cause, emergency, or other reason whatsoever the foundation should never be diverted by the trustees on the application of any person or public body to the relief or on account of such distress, emergency, cause or reason, but should always be applied as specified for boys only….” It was to be knickers or nothing.

Mindful of the lasting mark he felt he was about to make, his third amendment stipulated that the foundation was never to merge with any other foundation, and that it should forever remain unchanged and dedicated in his name as the “Gwyon’s Foundation for Clothing Boys.”

Making what he would have viewed as an important policy concession, his fourth amendment increased the age limit to eighteen, and declared “that each successful boy of not less than fifteen years and not more than eighteen years of age might, if he desired, choose a pair of trousers instead of kickers.”

Becoming more and more liberal in his largesse, his fifth amendment directed that the benefits of the foundation created under his will “should not only extend to the district under the jurisdiction of the Farnham District Council but should also extend to the points three miles or so outside of the boundary.”

Having perfected his plans he left the will untouched over the ensuing twenty years until his death in 1928.

His will was challenged in court. Two lawyers were dispatched from the Farnham District Council to argue that the will was valid and should stand. Lawyers were also sent by the Public Trustee, the Attorney General, and the Treasury Solicitor to argue the case. A substantial sum of money was in dispute. The five lawyers wrangled in court for three days, and at the end of those three days a Chancery Court judge ruled that the will failed and “Gwyon’s Foundation for Clothing Boys” never got off the drawing board.

THE MORAL OF THE STORY

Hidden and almost totally obscured in the bizarre detail of John Gwyon’s estate plan and the court case that followed is a legal lesson. It illustrates a point in the obscure law of trusts.

A trust can be set up in the common law countries of the world for the benefit of a group of persons, but generally not to further a purpose. There is a small group of exceptions, called permitted “purpose trusts.” Purpose trusts are permitted for the care of pets, for the care of graves and for the furtherance of charity. Thus, the argument over the last will and testament of the Reverend John Gwyon came to this: did the knickers trust serve a charitable end?

What is a charitable end? This was summed up by a decision in the English courts rendered by Lord Macnaghten in 1891. The law recognizes four groups of charitable purposes: the relief of poverty, the advancement of education, the advancement of religion, and miscellaneous activities beneficial to the community. This was the law at the time of the Reverend John Gwyon, and remains the law today.

The lawyers for the Farnham District Council almost succeeded in convincing the presiding judge that Gwyon’s Foundation for Clothing Boys was for the purpose of the relief of poverty. The judge pointed out another clause in the trust, however, one that made it clear that the poorest boys in the district would not qualify for knickers. Whatever Reverend John Gwyon had in mind, it certainly was not the relief of poverty. Having said that, with a few wording changes in the will, the knickerbockers trust might be alive today.

Copyright John Poyser