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.

Pelletier v. Pelletier

The case of Pelletier v. Pelletier, 2025 BCSC 43, is about allegations of financial abuse by a granddaughter of her grandfather’s wealth at a time when he was vulnerable and had been diagnosed by both a physician and a geriatric psychiatrist with dementia. The physiatrist wrote a letter in November 2018 opining that he was “no longer capable of making his legal and financial decision.” One of the interesting features of this case is that when this case went to trial about 5 and a half years after the diagnosis of dementia, and the grandfather gave evidence, the trial judge, Madam Justice Whately, found that he “displayed no outward signs of cognitive decline, nor any of the behaviours or symptoms associated with dementia or other mental disorders that featured so prominently in the evidence.”  What happened?

Dora and Claude had three children, two of whom had died. They were close to their granddaughter Brittany Adcock, who was married to Darryl Adcock.

Dora and Claude owned a 48-acre farm as well as a residential property at Graham Road near the farm. By 2018 there was tension between them over whether to continue to farm. Claude wanted to continue. Dora didn’t. They had both retired from their main employments. She was born in 1944 and he in 1938. She wanted to move into the Graham Road property, closer to Brittany and her family. He was buying new equipment for the farm, including a tractor for $45,000, a Power Harrow for $13,000 and an SUV for $40,000, and Dora didn’t think they could afford it.

In 2018, they sold the Graham Road property to Brittany and Darryl for less than fair market value. No claim was made in respect of this sale, nor was there any suggestion that Brittany and Darryl did anything improper in buying the property for the price they paid.

Claude’s mental functioning deteriorated. According to Justice Whately:

[11]         It is true that Claude suffered from serious health issues requiring medication. This medication led to catastrophic effects: his behaviour and personality changed, and I accept that he became cantankerous, less rational, and generally difficult to be around. Claude suffered from symptoms that mimic dementia, such as temporary cognitive and functional impairments, and he also likely suffered from increased impulsivity and paranoia.

In diagnosing Claude with dementia, his doctors and nurses relied in part on collateral reports from his granddaughter Brittany and Dora, which were inaccurate. Justice Whately wrote:

[175]     Brittany made various statements to Claude’s medical professionals later shown to be untrue, exaggerated, or misleading. Some of these include:

a)    As of November 2018, Brittany variously told different health care providers that Claude had spent $300,000, $350,000, or $400,000–$500,000 on farm equipment. She informed one doctor that she had “tallied” the spending, which totalled at least $300,000.

b)    As of November 2018, Claude had gone through all his and Dora’s savings and was starting to dip into their retirement fund. In fact, in November 2018, Dora and Claude were in a financially positive position.

c)     Claude had continued an affair for 37 years with a woman in Ontario.

d)    Claude was making paranoid and obsessive demands about accounting of his money and demanded $30,000 from the family to hire a lawyer to revoke the POA.

Claude had previously made an enduring power of attorney in 2011, appointing Dora as his attorney and Brittany as his alternate. After the diagnosis of dementia, Dora and Brittany effectively took over his affairs, and he lost access to his bank account. He did sell farm equipment and livestock, which he testified totaled over $240,000, and which he gave to Dora.

Dora reactivated a line of credit, which she used for the construction of a house for herself on the Graham Road property. She used the power of attorney to sell the farm in July, 2020, for $999,999. Out of those proceeds, she paid $335,000 owing on the line of credit and transferred $401,611 from her joint account with Claude to a joint account Claude held with Brittany. The same amount was then transferred into Brittany and Darryl’s joint account. Brittany and Dora testified that the funds represented a $200,000 payment to compensate Brittany and Darryl for building a guest suite on their property for Claude’s use and $200,000 was a gift from Claude and Dora for the benefit of the great-grandchildren’s education. Further funds were later transferred from Claude to Brittany and Darryl for further work on the guest suite.

Claude lived in the guest suite for approximately 20 months from April 2020 until October 14, 2021.

In October, 2021, after a dispute in which Claude demanded an accounting of his finances, he was apprehended under the Mental Health Act. While hospitalized, his medication was changed, and following further tests, another psychiatrist, “Dr. Schovanek found that Claude was capable of managing his basic finances, balancing a check book, and making simple meals safely. Dr. Schovanek concluded that “Claude is believed to be capable of re-designating a power of attorney.” Claude was released, and moved in with his son.

Claude signed a revocation of his power of attorney, which he mailed on December 20, 2021 to Brittany, and delivered to Dora on December 23, 2021.

Between October and December 2021, Dora negotiated a separation agreement with Brittany purporting to negotiate on Claude’s behalf as his alternate attorney, on the basis that Dora no longer had authority to act by virtue of their separation. The agreement was signed on December 29, 2021, and contained a provision recognizing a gift of $200,000 to Brittany and Darryl for the guest suite, and another $200,000 to them for their children’s education. Claude did not participate in the negotiations, and Brittany signed on his behalf.

Dora brought a family law claim against her Claude. They had been married for 60 years.  Claude brought a counterclaim in the family law proceeding against their granddaughter, Brittany and her husband Darryl.

The parties agreed that the separation date was November 3, 2021.

In the proceeding, Claude tendered a report by Dr. Passmore, who opined on his capacity to instruct counsel and did a retrospectively to December 2021. As set out in the reasons for judgment:

[90]         Dr. Passmore opined that, as of the date of his examination of him, Claude was capable of managing his financial affairs, instructing legal counsel, making a will, making a POA, and making a representation agreement.

[91]         Dr. Passmore also opined that Claude’s cognitive impairment and below normal MoCa (Montreal Cognitive Assessment) scores which led, in part, to his diagnosis of dementia, were primarily due to the side effects of medication.

Claude’s claims included breach of fiduciary duties, unjust enrichment, and knowing receipt of funds in breach of trust. He also sought to set aside the separation agreement.

Justice Whately found that both Dora and Brittany had fiduciary duties to Claude, and that they breached those duties. In addition to having fiduciary duties by virtue of holding a power of attorney, Brittany was also in an ad hoc fiduciary before she stepped into the role of an attorney following Dora’s separation from Claude.

Justice Whately’s decision includes a useful summary of ad hoc fiduciary relationships:

[200]     An ad hoc fiduciary relationship is one that arises out of the specific circumstances and dynamics of the particular relationship: Sledin Estate v. Rusin, 2011 BCSC 1207 at para. 65.

[201]     In Frame v. Smith, [1987] 2 S.C.R. 99, Justice Wilson (in dissent), identified three characteristics that are common to most relationships in which fiduciary obligations have been imposed:

1.     The fiduciary has scope for the exercise of some discretion or power;

2.     The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary's legal or practical interests; and

3.     The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power

(the “Frame Factors”).

[202]     The Frame Factors are still widely cited in the case law as “indicia” of an ad hoc fiduciary relationship. However, they are no longer considered to be the complete test for establishment of a fiduciary relationship. In Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, the Supreme Court of Canada restated the test for the existence of an ad hoc fiduciary relationship as follows:

…[F]or an ad hoc fiduciary duty to arise, the claimant must show, in addition to the vulnerability arising from the relationship as described by Wilson J. in Frame:

an undertaking by the alleged fiduciary to act in the best interests of the alleged beneficiary or beneficiaries;

a defined person or class of persons vulnerable to a fiduciary's control (the beneficiary or beneficiaries); and

a legal or substantial practical interest of the beneficiary or beneficiaries that stands to be adversely affected by the alleged fiduciary's exercise of discretion or control.

[203]     Fiduciary duties can arise without formal appointment as attorney, where an individual takes on the role of managing the financial affairs of a relative. For example, the addition of an adult child to an elderly parent’s bank account for the purpose of assisting with their finances may be sufficient to trigger fiduciary duties, regardless of the parent’s capacity and regardless of whether the child was actually acting as power of attorney for their parent: see e.g. Wedemire v. Wedemire, 2017 ONSC 6891, and Miller v. Miller, 2011 ONSC 7239.

Justice Whately found that both Dora and Brittany breached their fiduciary duties, but Dora did not benefit. Both Brittany and Darryl were unjustly enriched by the depletion of Claude’s funds from the sale of the farm and there was no juristic reason for them to retain a benefit.

The Court also held Brittany and Darryl liable for knowing receipt, the principles of which are summarized in the following passage:

[231]     The elements of a claim for knowing receipt have been set out in Citadel General Assurance Co. v. Lloyds Bank of Canada, [1997] 3 SCR 805 [Citadel], as follows:

a.              receipt of trust property for one’s own benefit (as opposed to as an agent for someone else); and

b.              knowledge or constructive knowledge that the property was transferred in breach of trust or fiduciary duty.

[232]     The threshold of knowledge required to satisfy the second element of the test is low. In Citadel, at para. 49, La Forest J. described the knowledge standard as follows:

…relief will be granted where a stranger to the trust, having received trust property for his or her own benefit and having knowledge of facts which would put a reasonable person on inquiry, actually fails to inquire as to the possible misapplication of trust property.

[233]     Liability for knowing assistance is imposed where a third party (1) assists in a breach of fiduciary duty with (2) actual knowledge that the fiduciary is in breach: Air Canada v. M&L Travel Ltd., [1993] 3 S.C.R. 787.

[234]     Brittany and Darryl knowingly received and personally benefitted from Dora’s breach of fiduciary duty.

[235]     Brittany knew, or ought to have known that the property was transferred in breach of Dora’s fiduciary duty. The evidence establishes that Brittany knew that Dora had a fiduciary obligation to Claude pursuant to the POA. Brittany knew, or ought to have known, that a gift of Claude’s money by Dora to Brittany and Darryl was not in not in Claude’s best interest and that he was either not aware or did not consent to such a gift. Alternatively, even if Claude did consent to some form of gift being made during the period of his incapacity, there are safeguards in place to prevent incapable persons from making gifts that are contrary to their best interests. (see s. 60.2 of the Adult Guardianship Act, R.S.B.C. 1996, c. 6 and s. 20 of the PAA and Regulations). Claude’s best interests, specifically with respect to his financial security, were entirely ignored by his fiduciaries in this case.

The separation agreement was set aside, and Justice Whately ordered Brttany and Darryl to pay damages as follows:

[242]     I order that Brittany and Darryl pay damages to Claude in the amount of $437,535.00. For clarity, I notionally base this amount on:

·                 50% of the 200,000 gift for the education fund ($100,000)

·                 50% of the 200,000 gift for the guest suite ($100,000)

·                 50% of the amount paid against Dora and Claude’s LOC from the Farm Sale proceeds,     which was ostensibly used to pay for the construction of Dora’s House on the Graham Road Property ($167,535)

·                 $70,000 to approximate the various amounts taken or used by Brittany during the period of incapacity, including the “extras” or other unexplained withdrawals from Claude’s funds.

Megan Vu Joins Sabey Rule as an Articling Student

I am pleased to announce that Megan Vu has joined our firm as an articling student. She has been with us since last fall. Megan is originally from Yellowknife and is a recent law graduate at Thompson Rivers University, where she was on the Dean's List. 

Parveen Shergill Joins Sabey Rule LLP

I am pleased to announce that Parveen Shergill has joined our firm. Parveen was called to the bar in 2015, after having served as a judicial law clerk for the Saskatchewan Court of Queen's Bench. She has extensive litigation experience with a leading regional full-service firm, and then with a leading insurance defense firm. She now practices primarily in estate planning and administration, estate litigation and dispute resolution. 

Parveen is also fluent in Panjabi. 

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.