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Succession CANs CHAPTER I“Succession” can cover:WillsIntestate succession (WESA provisions govern)Beneficiary designations under benefit plans/insurance policiesInter vivos dispositions that take effect on death (properties held in JT, remainder of benefits in a trustExecutor/Administrator (“personal representative” of will-maker) receives LEGAL title to everything in the will (can run off with them/distribute wrong)Administrator derives authority from court order that appoints them (if intestate situation) and grant of letters administration Heir (next of kin) with interest in intestate estate may apply for (Grant of Admin)where executor appointed in Will cannot/refuses to act, beneficiary/creditor who has interest in estate may apply for (Grant of Admin with Will Annexed)Exec has acted but resigns/dies/incapable of completion, beneficiary may apply (Gran of Administration de bonis Non)Will in dispute, ongoing litigation as to proper personal rep, independend 3rd party or beneficiary under competing will may apply (Grant of Admin Pendente Lite)Executor derives authority from will that appoints them, and a grant of letter probateRole: gather assets, prepare inventory; pay debts/taxes; distribute to proper beneficiaries (ITA – tax clearance before distribution, because CRA can come back and get you if you don’t and you’re personally responsible if you already distributed – do BEFORE get probate, so probate fees out of pocket by executor)(WESA variation – 180 days after wills variation limitation period expires); maintain accts, get approval of accts, dischargeProcessesGrant of Letter Probate Grant of Letters Administration Submit original will and proof it is last known willSubmit proof that no will existsInventory of assets/liabilities and valuesInventory of assets/liabilities and valuesNotice of will/probate to beneficiaries and potential claimantsNotice to intestate heirsPay 1.4% gross value of estate to province (probate fees)Consent of heirs/creditors to appointment of applicant seeking grantPosting of bond by applicantProbate feesTypes of Grants of ProbateCommon Form: administrative issuance of probate upon submission of will and related documentsSolemn Form: court confirmation, after review of evidence, that will is formally valid and substantively validWhen will is contestedSets aside common form grantValidity (may be invalid if….)not final last instrument – later will discoverednot validly executed/witnessed – must comply with WESA formal validity req’tsNot executed with testamentary capacity/knowledge/approval or free will (undue influence present) – req’s litigation and ct order findingContentious Issues in Admin of Estate – proof of will in solemn form; interpretation proceedings; wills variation claims; disputed acct passing/dischargeRemuneration (Exec entitled to remuneration)Will-maker can determine remuneration for Executor in advanceOtherwise, s. 88 Trustee Act applies: capital fee; income fee; care and maintenance feeFormal discharge of executor/administrator upon completion of estate administrationPriority system for who gets what from estate first – CRA has top priority I think, then debtors, THEN beneficiaries, entitlement doesn’t arise until stuff ready for distribution (gift of specific item(s) or cash proceeds)Civil law system – heirs become owners of the property (not executor)Lawyer has a professional responsibility to EVERYONE (testator, heirs… maybe even left-out beneficiaries who may benefit from the wills variation provisions) – Whittingham v Crease & CoWESAin force March 31, 2014; some amendments April 9. 2014repealed Estate Administration Act; Probate Recognition Act; Wills Act; Wills Variation ActSee Ch. 1 for definitions, partition and transitional provisions of WESA“will”; “will-maker’s signature”; “spousal home”s. 2 – “spouse” (at relevant time, were married to each other or in a marriage-like relationship for at least 2 years)s. 3 – “effect of adoption” – determine stuff re Adoption Act, child gets nothing from “pre-adoption” parent (probably birth parent, or parent before adoption by current adopted parent) unless through will, and vice versaFLAparentage provisions (see Ch. 1), and assisted reproduction provisionsat CL a child born outside marriage has no legal status, under law of intestacy, did not inherit from its parents nor its parents’ families, nor did parents/parents’ families inherit from itlaw changed throughout 20th Cstatus of children born other than through assisted reproduction now determined by s. 26(1) FLACHAPTER IIPresumption (of death)Presumption of Death Act (was PoD and Survivorship, WESA incorporated Survivorship)Can obtain a declaration of presumed death where no body located (see s. 3 below); person dead on on BOP (Re Cyr)If person found alive, s. 5(1) – if their stuff is properly distributed, lost to them; (2) but ct can make orders to contraryCan appoint curator to manage missing person’s property in meantime3 (1) If, on the application of an interested person under the Rules of Court, the court is satisfied thata person has been absent and not heard of or from by the applicant, or to the knowledge of the applicant by any other person, since a day named,the applicant has no reason to believe that the person is living, andreasonable grounds exist for supposing tha the person is dead,the court may make an order declaring that the person is presumed to be dead for all purposes, or for those purposes only as are specified in the orders. 1 “court” = Supreme Courts. 1 “interested person” – a) any person who is/would be affected by order made under this Act, b) next of kin of person in respect of whom order is made or for whom order is applied, and c) person who holds property of the person in respect of whom an order is made or for whom an order is appliedSurvivorship and Posthumous Births“commorient” – dying together/at the same timeWESA, Part 1, Division 2deals with persons dying in circumstances where order of death unknownlaw WAS that younger survived older, NOT ANYMORE (different than NS Survivorship Act)s. 5(1)- if 2+ persons die and order of death unknown, rights to property determined as if each had survived the other - to avoid unnecessary double probate and administration of 2 estatesEG – A and B die together, order of death unknownFor A’s estate, presumed that B died firstFor B’s estate, presumed that A died firstB would not inherit from A; A would not inherit from B (because they are already presumed dead… would go to other beneficiaries)s. 5(2)- if 2 JTs die together, each presumed to have held their interest in the property as tenants-in-common- each deceased person would dispose of their half-interest in their own estate, ordinary survivorship rule would not applyEG – A and B hold property as joint tenants; A and B die together and order of death unknownA’s estate includes a one-half interest in the propertyB’s estate includes a one-half interest in the propertys. 6- if property passes in event that beneficiary dies before/at same time as another person, or circumstances where order of death unknown, event (which triggers the operation of the disposition of the property) is assumed to have occurredEG – A and B die together and order of death unknownA’s will: My estate to C (my son) if B (my spouse) fails to survive A (me)Result: C takes gift, B is presumed to have died before A(remember, property wants to pass via intention of the testator)s. 9 - if gift conditional on death of person and order of death of will-maker and that person unknown, is presumed that person had died before the will-maker- ensure that condition for gift to be effective is met when order of death unknown EG – A and B die together and order of death unknownA’s will: To B (my son) if B (my son) survives A (me)B presumed to have died first, before A and B loses gift made by A (so it stays in the estate and can go to other people)s. 10 – 5 day Survival Rule- beneficiary must survive 5 days to take benefit- presumption only operates if will is otherwise silent, no contrary intention to this survivorship rule applying (will may say “if survives me by 30 days…”)- Will can provide for longer survivorship periodEG – Will-maker dies January 1, Beneficiary dies January 3Beneficiary loses gift as presumed to have died before Will-maker due to failure to survive will-maker by 5 dayss. 8 – Post Death Births- Child conceived before death of will-maker but born after death of will-maker and survives at least 5 days after death of will-maker inherits- EG – equally amongst my children (includes the pre-death conceived and post-death born child)s. 8.1 – Post Death Conceptions and Births- Descendants of deceased person conceived/born after deceased’s death inherits as if descendant was born/alive at deceased’s death if- Spouse of deceased gives notice of intention to use human reproductive material of deceased- descendant born within 2 years of deceased’s death, lives 5 days+- deceased is descendant’s parent under Part 3 FLAInsurance Act PresumptionsInsurance Act trumps WESA Part 1 Division 2 (s. 11 WESA)Beneficiary always presumed to have died before insured person (policy owner) where order of death unknown s. 83 IA (life), s. 130 IA (accident/sickness)If no alternate/other named beneficiary to policy survives, insurance proceeds fall to insured’s estate (will or intestate estate) s. 63 IA (life), s. 121 (accident/sickness)Re Law – case decided under old, old provisions…Responsibility for Disposing of Bodyrests with personal rep – s. 5(1) Cremation, Interment and Funeral Services Acts. 6 CIFSA – if possible/legal, to be done as deceased preferred, can be in a will or in a funeral contracts. 20 CIFSA – Ct may intervene, considerations under (2)subject to Crim Code of CAD sanctions – s. 182 Crim Code, indictable offence to (1) neglect to perform duty re burial of human remains, or (2) to improperly/indecently interfere with/offer indignity to dead human remainsdisposal places governed by legislation – s. 4 CIFSA illegal to scatter ashes just anywhere, like the ocean!CHAPTER IIIIntestate SuccessionRules that apply when no will made,(“wholly intestate”), will doesn’t dispose of property in entirety (“partially intestate”),EG – person leaves comprehensive list of things to give but does not leave “Residue Clause” for everything else Can just say “I leave the residue of my estate to my children in equal shares”Beneficiary of a testamentary gift is dead, does not survive testator by 5 days, no residue – issuewill does not validly dispose of property (“failed will”)testator did not have capacitylack of knowledge and approvalundue influencedoes not meet formal witness req’ts or formality req’ts (recently slackened by WESA, ct has “dispensing power” for formal req’ts)beneficiary of will is deadAmmunition - intestacy rules can be use to challenge a will if will is vastly different than what rules say (by someone with status to challenge)WESA Part 3 – When a Person Dies Without a Will19 – interpret uniformly with other provinces that have same provisions (or similar)20 – if spouse but no surviving descendants, estate all goes to spouse21 – “household furnishings” – personal property associated with enjoyment by spouses of spousal home. “net value of an intestate estate” – value of intestate estate after deducting from FMV, inside and outside BCvalue of household furnishings distributed to spouse under ss (2), andcharges, debts, funeral and admin expenses, and fees under Probate Fee Act, payable from estate21(2) – if person dies intestate leaving spouse and surviving descendants, must distribute to spouse:household furnishingspreferential share of intestate estate re ss (3) or (4)21(3) – if all descendants referred to in ss (2) are descendants of both intestate and spouse, preferential share of spouse is $300K, or greater if prescribed21(4) – If all descendants referred to in (2) are not common to intestate and spouse, preferential share to spouse is $150K, or greater if prescribed21(5) – if net value of estate is less than spouse’s preferential share under (3) or (4), estate must be distributed to spouse21(6) – if net value of estate same/greater than spouse’s preferential share under (3), (4)spouse has charge on estate for amount (under (3) or (4)) andresidue of intestate estate, after satisfaction of preferential share, distributed asone half to spouseone half to intestate’s descendants22 – (1) if 2+ spouses (married + CL), share spousal share as agreed or determined by ct; (2) agree or determined by court for who has priority to apply under this Act re estate23(1) – applies if person dies INTESTATE AND NO SURVIVING SPOUSE (2)(a) to intestate’s descendants24(1) (req’s per stirpes distribution) when distribution made to descendants, must be divided into number of equal shares equivalent to number of - (a) surviving descendants, and (b) deceased descendants who have left descendants surviving the person – in generation nearest to intestate that contains 1+ surviving members. (2) each surviving member of nearest generation containing 1+ surviving members must receive 1 share, and share distributed to each deceased member (to their descendants – in same manner as under this section)SEE TABLE OF CONSANGUITY(b) no surviving desc’s, to parents in equal shares or to surviving parent(c) if above dead, to siblings in equal shares(d) if none of above, (i) equal part to grandparents, but if none to aunts/uncles in equal shares of the part (ii) part determined by dividing estate by number of parents of intestate (A) who have surviving parent, or (B) who do not have surviving parent but whose deceased parents have a surviving descendant (so if people on only mom’s side, they all share whole estate, if people on both sides, each side shares 1/2, or more depending on modernity of family)(e) great-grandparents/descendants of them (see Table of C) (i) in equal part to each of them in equal shares of the part (ii) partition done at grand-parent level(f) to gov’t re Escheat Act(3) 5th degree and further too far, assumed to have predeceased intestate (Escheat)(4) I don’t understand this section…(5) how to calculate degrees of relationship ((a) count up from intestate to nearest common ancestor and his/her relative, then downward to relative, and (b) relatives of the half kinship inherit equally with those of whole kinship in same degree)25 – this division applies to part of estate that is not disposed of (“partially intestate”)“Laughing Heirs” – don’t know intestate, but get money as distantly related. Get money but not upset…Spouses (WESA Pt 1)2(1) unless (2) applies, 2 persons spouses for this Act if both alive immediately before relevant time andmarried to each other, orhad lived with each other in marriage-like relationship for at least 2 years2(2) No longer spouses if (a) in case of marriage, even toccurs causing interest in family assets, as defined in Part 5 – Property Division – of Family Law Act, to arise, or (b) in marriage-like relationship, one/both persons terminate the relationship2(2.1) For purposes of this Act, spouses not considered to have separated if, within one year after separation, (a) they begin to live together again, primary purpose to reconcile, and (b) continue to live together for 1+ periods totaling at least 90 days.Souraya v Kinch – 2012 BCSC CL Spouse? Look at: 1) subjective intent, 2) objective factors – but take “holistic” view of situationISSUE – whether Ms. Finch CL spouse of deceased. Consider definition of “common law spouse” in old ActHELD – not spouses, lack of objective indicia to accept relationship as spousalMs. Finch bears onus of proving she was “spouse”Look to: 1) subjective intention of parties to live in marriage-like relationship – relationship of psychological and emotional union that one associates with marriage; 2) objective factorsShelter (same house, sleeping arrangements, roommates?)Sexual and Personal Behaviour (sexual relations? Fidelity? feelings? Communication, meals, illness assistance, gifts)Service (meal prep, washing/mending clothes, shopping, household maintenance)Social (participate together/separately in social activities, relationship with one another’s families)Societal (attitude/conduct of community toward them as couple?)Support (financial arrangements, acquisition/ownership of property)Children Gosbjorn v Hadley – 2008 BCSCEnd of CL relationship? Look at intent and objective factors. Consider incentive for “spouse” still alive.12 year CL relationship. “Wife” (potentially) and her daughter lived in a basement for a bit near end of his life, took half of their stuff with them, then he committed suicide.ISSUE – had relationship ended before deceased died? Big financial incentive for potential “wife” to argue that it hadn’tHELD – Not a firm enough intention on part of deceased to say it was overLook to: intention of couple to terminate relationship (re current s. 2(2)(b)Factors in this case – not living together anymore; conflicting evidence on intention of parties to reconcile; deceased obviously had an unsettled mindLarge scope of factors that one may look at to determine what happened hereAdoption Adoption Actno rights as intestate heir against your biological parents if you’re adopted37(1) when adoption order made, (a) child becomes child of adoptive parent, (b) adoptive parent parent of child, (c) parents cease to have parental rights/obligations re child, except parent who remains under (2) jointly with adoptive parent37(2) If application for adoption order made by adult to become parent jointly with another parent of child… (a) adult joins parent as parent of the child, and, (b) any other parent ceases to have any parental rights or obligations re the child.37(3) If child adopted for 2nd/subsequent time, adoption order has same effect on child, new adoptive parent and parents/parent under (1) and (2)(4) no incest…laws don’t apply, (5) adoption to be determined by this section except other enactments (WESA), (6) adoption order does not affect interest in property or right of adopted child that vested in child prior to adoption order, (7) adoption order does not affect aboriginal rights of childWESA3(1) see Adoption Act for relationship of parent/child re adoption3(2) subject to (3), if child adopted – not entitled to estate of his/her pre-adoption parent except through will (pre-WESA, Clayton v Markolefas said this), - also, Re Peters’ Estate – stepchildren not descendants, don’t inherit through intestacy(b) pre-adoption parent not entitled to estate of child except through will3(3) adoption by spouse of pre-adoption parent does not terminate relationship of parent/child bw child and pre-adoption parent for succession….Re Kishen Singh – 1957 BCSCHalf siblings take as full siblings – children of half siblings take as though full nieces/nephews of the intestateGuy died, no relatives in CAD, had some siblings in Indian and a deceased half-sister who had 4 kids (living).ISSUE – Do the children of the half-sister take through intestacy provisions?HELD – yes.Re Forgie – 1948 Man KBRight of descendant or child to inherit under intestacy cannot be given to descendant’s spouse. Goes straight to kids (per stirpes), not through deceased parent’s estate where it would end up with unrelated spouse.Buddy died intestate, widow of brother seeing if any of it would go to her. Spousal HomeWESA Part 1 Div 2Re surviving spouse acquiring spousal home on intestacy, or when home is not subject of gift in. or otherwise not disposed of by will.General ThrustIf value of spouse’s interest in estate is equal to/greater than value of spousal home, spouse may elect to take home to satisfy, in whole or part, spouse’s share of estate – s. 26(2)If value of spousal home exceeds value of surviving spouse’s interest under s. 21, spouse pay elect to pay “estate” the difference in values and take spousal home – s. 31In circumstances provided for in Act, ct may, inter alia, make an order vesting deceased’s interest in the surviving spouse – ss. 33-35WESA s. 1“spousal home” parcel of land owned/owned in common by deceased person, not leased to another personshare owned/owned in common by deceased whose charter provides that building must be owned/operated exclusively for benefit of SHs in corp….manufactured home re Manufactured Home Act, situated on land not owned by owner of manufactured home…parcel of land on Nisga’a Lands or treaty lands that has as improvements situated on it building where deceased person and spouse were ordinarily resident.33(1) on application by surviving spouse, Ct may make order under ss. (2) ifa) surviving spouse ordinarily resident in spousal home at time of death of deceasedb) assets in estate not sufficient to satisfy interests of all descendants entitled to share in intestate estate or part of the estate to be treated as w/o disposing of spousal homec) ct satisfied that purchasing spousal home under s. 31 would impose hardship on surviving spoused) ….greater prejudice imposed on surviving spouse by being unable to reside on spousal home than would be imposed on descendants entitled to share in estatee) either (i) surviving spouse has resided in spousal home for sufficient pd of time to have established a connection to it or (ii) surviving spouse has sufficient connection with community or members of community in vicinity of spousal home to warrant order under ss (2)33(2) Ct may, subject to terms…. Make order doing one ofvesting same interest in spousal home in surviving spouse that deceased hadspecifying amount of $$ surviving spouse must pay to descendants towards satisfaction of their interest in estateconverting remaining unpaid interest of desc’s into registrable charge against title to surviving spouse’s interest in spousal homedetermining interest rate…. For amt desc’s entitled todetermining value of registrable charge re (c)…34 – Registrable Charges – due after death of surviving spouse or after they cease residing in spousal home.. mortgage rights…..35 – Registrable charge payable when…Per Stirpes/Per Capita Chapter VI Incapacity PlanningIncapacity – incapable of making decisions for yourselfKey Planning DocumentsPOA (power of attorney)Historic legal document, existed in CL, agency law, used in commercial transactions.“donor” appoints “attorney”, attorney acts on instructions of donor.-228600305435EPOA (enduring power of attorney)0EPOA (enduring power of attorney)when principal (donor) lost capacity, POA no longer effective.Creature of legislation – POA that continues after incapacity (POAA).Used for financial and legal affairs (NOT medical or personal).Agent is a trustee, donor is a beneficiary, trustee has a fiduciary obligation to act in best interests of beneficiary (thankless). No compensation for workPOAAs. 1 – definitions “adult” – 19+, “attorney” – POA, signed EPOS under s. 17, “personal care” - a) diet, dress and hygiene, b) health related activities, including medication, c) social, recreational, employment and educational activities, d) shelter, including admission to a care facility under the Health Care (Consent) and Care Facility (Admission) Act.“spouse” – a) married to another person, not living separate/apart, within meaning of Divorce Act (CAD) from other person or b) is living with other person in marriage-like relationship, including bw same sexWho May Makess 11-12 – Capable (s. 12) Adult (s. 11) may make EPOA. 12(2) – sets out capability test – you must know your property and its approx. value; must know potential impact of decisions on your property; be able to understand that POA, like will, can be revokedAttorneyss. 18 – who may be onea) individual, - NOT person who provides personal or health care unless child, spouse or parent of adult, NOT a minor, NOT an employee of health facilityb) PGT, c) financial institution authorized to carry on trust business under Financial Institutions Act- may be trustee/attorney18(4), (5) – if 2+ attorneys – may have same/different areas of authority, assumed co-attorneys for same stuff, if co-attorneys must act unanimously, if one is alternate the power must state limitationsMaking, Effectiveness, Changings. 16 EPOA must be: (GET CASES FOR THIS SECTION) FIXITa) in writingb) signed AND DATED by adult (donor) in presence of 2 witnesses- only one witness req’d if lawyer or Notary of BC- if donor cannot physically sign, another adult who may be a witness may sign if: a) donor is present and directs the power be signed, b) signature of person signing is witnessed as if it were that of the donorc) signed by both witnesses in presence of adult- NOT – attorney; spouse, child, parent, employee, agent of attorney; minor; one who cannot understand adult (language/mode of communication)- may be – employee of financial institution, lawyer, Notary of BC- if power to be used for purposes of Land Title Act, must comply with req’tss. 17 – Attorney Signing – Right to Act- a) must not exercise power until signed before 2 witnesses, needn’t be before donor; only one witness if lawyer, Notary of BC; b) if cannot witness donor’s signature, cannot witness attorney’s signature; c) person named as attorney who hasn’t signed power not obliged to give notice of not willing to act, nor does failure of one to sign affect authority of other attorney (subject to contrary intent in EPOA)ss. 26, 27 – When EPOA Effective26 – effective on latest of a) date by which attorney/adult signed, b) date stated in power c) occurrence of event specified in power (“springing power”) (McMullen v Webber) FIXITs. 28 – To Change EPOA- same procedure as to make it, plus notice to attorneys. Change binding on receiving attorney. Land Title Act has own procedures, must comply.Mandatory Provisions. 14 – Enduring POA must include provision for cont’d authority (during capacity, incapacity?)Powers of Attorney (general or specific)s. 13 – power to make decisions on behalf of adult/donor, anything lawfully done by an agent. GENERAL or SPECIFIC powers s. 15 – Nothing illegal (invalid)s. 21 – Cannot make a will for adult/donorSpecifically –s. 20(6), (7) – attorney may request adult/donor’s property returns. 32 – attorney may request information/recordss. 20(4), - attorney may retain qualified assistances. 23 – prohibits attorney from delegating “decision-making authority” except re investments if made in accordance with PGTA (if PGT is attorney)s. 20(1), (2), (3) – attorney may make “gift/loan/charitable gift” ifexpressly authorized by EPOA (general or specific authorization) ORi) sufficient property will remain to meet needs of adult, adult’s dependents, satisfy legal obligations, ii) adult when capable made gifts/loans of the type iii) total annual value not more than prescribed amt (lesser of $5K or 10% adult’s income from previous year)may be to attorney if EPOA permitss. 20(5) – Beneficiary designations (other than by will), may: a) change designation made by adult if ct authorizes, b) make designation in replacement instrument if same as that made by adult while capable, c) make new designation in new instrument if beneficiary is estate of adult.Authority of attorney to create trusts – Easingwood v Cockroft Duties of Attorneys. 19 – attorney must: a) act honestly/in good faith; b) exercise care/skill/diligence of reasonably prudent person; c) act within authority of EPOA and any applicable statute; d) keep prescribed records, produce at request of adult (NOTE – s. 2 Power of Attorney Reg = must make reasonable records in this regard); e) act in adult’s best interest, considering current wishes, known values, beliefs; f) give priority to meeting adult’s personal/health care needs; g) foster adult’s independence and involve adult in decision making that affects adult; h) re property – i) keep separate from own, except jointly owned things; ii) keep effects at disposal of adult; invest in accordance with Trustee Act; iii) unless necessary….don’t dispose of a testamentary gift.s. 33 – do not disclose info/records obtained while acting as attorney except to extent necessary to i) carry out duties, ii) report to, comply with req’t of PGT, iii) make application to/comply with order of ct.Privileges and Liabilitys. 24 – a) not entitled to pmt, unless authorized by EPOA, b) entitled to be reimbursed from adult’s property for reasonable expenses properly incurred. (EPOA must set amt if pmt happening)s. 25 – A may resign with written notice to adult/other attorneys (or spouse/relative of adult if incapable). Effective from date given.s. 22 – attorney not liable for loss/damage if complies with duties in s. 19/in power/imposed by law/under order of ctRevocation, Suspension, Terminations. 28 – capable adult may revoke EPOA, must give written notice to attorneys (s. 57 Land Title Act – may revoke re notice of revocation filed in Land Title Office…)s. 29 – authority suspended in circumstances provided for in EPOA. ENDS if:- a) EPOA terminated or provisions conferring authority revoked- b) If attorney (individual) becomes incapable, bankrupt, dead, convicted of prescribed offense against adult- c) attorney (corporation) dissolves, wound up, ceases to do business- d) attorney is spouse s. 30 – EPOA suspended – according to it’s terms, in accordance with Patients Property Act.- terminated i) according to terms, ii) if adult revokes, iii) if adult dies, iv) ct terminates under s. 36(5) POA, v) terminated under ss. 19, 19.1 Patients Property Act.Improper Exercises. 31 – attorney acts improperly if authority has ended… for whatever reason. This section provides protection to attorney/3rd parties re improper exercise of authority. Deemed authority if did not know/could not have reasonably known of lack of A, action otherwise valid; improper exercise binding on adult re persons who couldn’t have known exercise was improperExisting/Extrajurisdictional Powerss. 42 – existing EPOA made under repealed s. 8…. Still goods. 38 – subject to satisfaction of pre-conditions, foreign EPOA deemed under POA (s. 38 POA Reg)McMullen v Webber – 2006 BCSCPOA must be exercised w/ instructions of donor unless donor incapable. Attorney is: Agent if donor capable; Fiduciary if donor incapable. Kids were agents, had no authority.EPOA granted to children of man. Found second wife after their mother died, found interesting new lady, wanted to sell condo to support her and spend time with her. Kids transferred condo to themselves to stop him doing something silly. HELD – transfer null/void. No authority to do this while father capable, even if he was silly.“Removing an individual’s autonomy is extremely significant. Mr. McMullen is entitled to live his life as he wishes unless and until he is found to be incompetent to manage his own affairs”Easingwood v Cockroft – 2013 BCCAAttorneys can make inter vivos trust here because post-death distribution of trust mirrored will. Inter Vivos trust cannot make will for adult (would be against authority of attorney)Guy dying, kids made alter ego trust to maintain continuity in mgmt. of affairs, avoid probate and tax liability. Widow commenced variation proceedings. Marriage agmt to keep stuff separate.HELD – trust validly created, not a fraudulent conveyance (no fraud in trying to avoid probate/taxes). Std of reasonably prudent business person used. Ok if attorney advantaged as long as both adult and attorney get an advantage.(maybe not ok under POAA ss. 13 and 20 because 20(3), saying that to give gift to self (attorney) under 20(2) you need express permissions from donor)Houston v Houston, 2012 BCCAImplied revocation of POA must be done by a clear and unambiguous action of donorSecond marriage for both. EPOA to wife and son acting separately, 2nd EPOA to son only if wife unwilling. Son executed docs to sever JT of condo of father and stepmother, maybe on wish of father. ISSUE – Had 2nd EPOA revoked 1st one so son had no authority to act?HELD – No. Can impliedly revoke 1st will by express action (legislation now that would apply). Matters b/c sons/daughters want things varied.Intention rules! Father’s intent carried out, son was to have authority. All good.(probably same result under ss 28/29, would have needed written notice to A’s to revoke)NOTE – doctrine of implied revocation of EPOAs maybe killed by the sections, but NOT POAs! -1143002080260Representation Agreements0Representation Agreementsprovided for by Representation Agreement Act (RAA)provides for rep agmts where capable adult could appt “rep” to deal with personal/financial affairs if adult incapable. And monitor of rep (if A inc)2 types 1) s. 7 RAs, provide for personal care, health care and “limited” financial matters, 2) s. 9 RAs – personal/health care onlys. 1 Definitions- “adult” = 19+- “personal care” a) shelter, employment, diet and dress of adult, b) participation by adult in social, educational, vocational and other activities, c) contact or association by an adult with other persons, and, d) licenses, permits, approvals or other authorizations of an adult to do something- “registrar” = registrar of rep agmt registry established under s. 42(2)(b)- “spouse” – same as POAASECTION 7 AGREEMENTSWho May Make – ss 3, 4, 8capable adultadult presumed capable, unless contrary established. Test under s. 8s. 8 - Test of Incapability- (1) adult may make s. 7 RA even if incapable of a) making a contract, b) managing his/her health/personal care or legal matters, c) routine mgmt. of financial affairs- (2) to decide whether capable of s. 7 RA, consider relevant factors - (a) communication of desire to have rep make/help make decisions- (b) whether choice/preferences demonstrated, or can/can’t express approval/disapproval to others- (c) aware that making RA means rep is making decisions- (d) whether adult has trusting relationship with repScope of s. 7 RAs. 7 rep may be authorized to make/help make decisions re-1) personal care, including admission to care facility-2) “routine mgmt. of adult’s financial affairs”-3) major/minor health care as defined in Health Care (Consent) and Care Facility (Admission) Act, may NOT be authorized to:i) help with decisions on refusal of life-supporting treatmentii) refuse consent re matters under Mental Health Act s. 11(1)iii) consent to sterilization for non-therapeutic purposes(4) Legal matters, except divorceSECTION 9 AGREEMENTScapable adult may make (s. 4, 9)adults presumed capable, but test for incapability simpler than under s. 7.s. 10 – adult incapable if “incapable of understanding the nature and consequences of the proposed agreement”can be more specific and complex than s. 7 RAsimilar limitations to s. 7Execution/Effectiveness/Incapacitys. 13 – RA “executed” when req’ts met1) in writing2) signed by adult, signature witnessed by 2 witnesses3) signed by both witnesses in presence of adultonly one witness if lawyer/Notary of BCALL SAME REQ’TS AS FOR EPOA!But must be signed by the rep(s). if to act jointly must both sign, if independently only one must sign at a time. Needn’t be witnessed.Rep must not exercise authority granted by RA unless has signeds. 15 – RA effective on date executed or later event specified by RA. s. 5(4) – re s. 7 RA, each rep must complete certificate in prescribed form, else RA invalids. 32(4) – Court discretion - court may order RA not invalid despite improper execution s. 36 – capable adult may do anything rep authorized to do, RA not terminated because adult incapable (later) of making RARepresentativess. 5 – Adult or PGT may be rep; NOT (unless parent, spouse, child) a) personal/health care provider (for compensation), b) Ee of facility where adult resides, through which receive personal/health caress. 5, 6 – multiple reps can have same/different authority, alternate…s. 19.1 – rep may resign with written notice of adult, other reps and monitor. Effective when all notice given (or date on notice).Duties, Powers and Liabilities of Repss. 9.1 – authority of rep not terminated by adult incapacitys. 16 – (1) DUTIES OF REP a) act honestly/in good faithb) exercise care, diligence, skill of reasonably prudent person, andc) act within authority given in rep agreement(2) when doing duties, musta) consult adult where reasonable to determine wishesb) comply with those wishes… to extent reasonable, do stuff if RA says to, think of past wishes (3) if adult incapable (on basis of known beliefs/values/best interests) (4)NO DELEGATION, except to qualified investment specialist (6)Keep accounts (8)s. 19.01 – no making wills/changing themss. 17, 18, 19 – may retain qualified assistance, request 3rd party info re incapacity, actions taken binding on adults. 26 – expenses/pmts – entitled to reimbursements, not remuneration unless agmt says so, ct says so…. s. 23 – liability – rep who complies with s. 16 not liable for stuffs. 34 – advice/directions – may apply to PGT or ct for “guidance”Monitors (s. 12)adult decides whether to name one, mandatory if s. 7 RA and financial affairs dealt with (unless spouse of adult, PGT, trust co, 2+ reps acting unanimously)19+, willing to carry on duties, complete prescribed certificatemay resign by writing and notice, effective from date given or specified in notice.If dies, authority of reps suspended until new monitor appted under s. 21 (or ct says no monitor req’d) – PGT will appoint replacementDuties/Powers/Privileges of Monitors. 20 – (1) reasonable efforts to make sure rep complying with s. 16, (2) may visit/speak with adult, (3) no one must hinder this communication, (4) if monitor has reason to believe rep not complying with s. 16, may require production of accts etc., then (5) inform PGT if not satisfied s. 26 – same as rep, reimbursement but no remuneration s. 21 – not liable for default of RA if honest/good faith/care, diligence and skill of reasonably prudent personChanging, Revoking, Termination of RAs. 27 – capable adult may a) change RA by amendment, same execution as RA, b) revoke RA – written notice to all reps/monitor, effective when notice given or date in notices. 28 – routine mgmt. of financial affairs – if conferred on rep (7(1)(b)) canceled when – a) bankrupt adult or rep, b) conviction of rep for dishonest offence, c) rep is trust co/credit union, dissolves, d) provided in 19.1(3)(b) Patients Property Acts. 32 – RA terminates i) adult dies, ii) ct cancels it, iii) effective date of revocation iv) circumstances in Patients Property Act s. 19 happen AND i) if rep is spouse of adult, marriage ends, ii) rep incapable, resigns or dies UNLESS alternate rep-228600591185Advance Directives0Advance Directivesss. 30, 31, 33 – PGT may conduct investigation into improprieties, can do number of things, and refer matter to ct. Ct must give reasons and order in adult’s best interestsdirections to healthcare provider for while incapacitatedHealth Care (Consent) and Care Facility (Admission) Act FIXIT – TAB THE ACT! for definitionss. 1 Definitions“ADVANCE DIRECTIVE” – written instruction by capable adult that a) gives/refuses consent to health care for adult if adult not capable of giving instruction at time care req’db) complies with req’ts of Part 2.1adult must know health care may not be provided where directive refuses consent (19.2), and another person may not be give/refuse consent in respect of health care for which directive gives/refuses consent (19.4). Instruction to do anything illegal invalid (19.2). Directive must deal with other matters prescribed by regulation (19.4)“close friend” – other adult with long-term, close personal relationship involving frequent personal contact with adult, not including person who receives compensation for providing personal/health care to adult“health care” – done for therapeutic, preventative, palliative, diagnostic, cosmetic, or other purpose related to health, includesa) series/sequence of similar treatments/care administered to adult over time for health careb) plan for minor health care that i) developed by one+ health care providers, ii) deals with 1) health problems of adult, iii) expires 12 months or less from date of consentc) participation in med research program Who May Makes. 19.1 – capable adult may make (2) incapable of understanding nature and consequences if cannot understand a) scope/effect of health care instructions in AD, and b) that person will not be chosen under s. 16 to make decisions except re 19.816.1 – sub decision makers (who can make decisions)Scope19.2 – (1) give/refuse any health care, (2) illegal stuff invalidDirectives and RAs19.3 – both AD and RA – RA trumps s. 19.7, RA decisions = adult decisions (2) UNLESS RA states that AD governs, so 19.7 appliesExecution19.5 – in writing, signed/dated by adult… ALL SAME AS POAA AND RAAChange/Revoke19.6 can do while capable, in writing, signed, making new one, destroying it with intent to revokeUse of AD (When)19.7 – Providing Health care if adult has AD – (1) applies (subject to 19.8) when a) health care provider thinks adult needs health care, b) adult incapable of giving/refusing consent, c) health care provider i) does not know rep with authority, ii) aware adult has relevant AD, (2) a) may provide if consent in AD, b) must not if refusal in AD, (3) provide rnot req’d to make more than reasonable effort to find AD or rep(When NOT to use)19.8 if (1) health care provider believes a) AD does not address situation, b) unclear AD, c) adults wishes have changed, d) change in med knowledge, (2) a) 19.7 does not apply, b) must get sub consent, c) person giving sub consent must act re 19.3 (3) NO (2) re (1)(d) if adult stated preference regardless of med knowledge. (4) no effect on 12, 12.119.9 – Withdrawal of Health Care – care provided against AD w/o knowledge of AD, must be withdrawn when AD discovered19.91 – no mandatory AD – as condition of receipt of good/service…Bentley v Maplewood Seniors Care Society – 2014 BCSC (appeal dismissed) Adult’s AD must be express on refusal of personal care by non-artificial means of nourishment (RA must say “refuse personal/health care including nourishment”)Woman with advanced Alzheimers, family wanted caregivers to stop feeding her with a spoon. “Statement of Wishes” = no nourishment/liquids in current incapacitated condition (no reasonable expectation of my recovery from extreme physical or mental disability). Caregivers said death by starvation was cruelty/neglect: would constitute neglect/potentially criminal sanctions for assisted suicide. Woman actively swallows from spoon, no tube-feeding necessary. Argued spoon feeding = “personal care” for RAA, so RA could give subs consent to stop it.HELD – spoon feeding constitutes “personal care”, not “health care”, did not fall within “Statement of Wishes” (AD)health care rep/committee has no authority to discontinue nourishment/liquids administered by spoon (yes if tube)must obtain consent for personal care (tort law), none expressly given here to refuse this care, could put caregivers at liability risk (neglect, maybe crim sanctions, can’t say)considered factors: she “expressed preference” for flavours by opening/closing lipsdid not rebut legislative presumption of capacity4 ways for subbed consent: 1) Personal Guardian – none appointed, 2) Rep (of RA) – Statement of Wishes not clear enough for full RA, ct won’t impute one, 3) AD – Statement of Wishes not good enough – invalid by 19.8(1)(b) 4) Temp Sub Decision-maker (parent, child, spouse, s. 16) – can’t refuse health care necessary to preserve life against opinion of health care providers-342900-114300Committeeship Order0Committeeship OrderCt appointed rep for incapable person, powers can be limited to personal/estate or both, may need to provide bonding, can have 2+ appointed peoplemust report to PGT (Public Guardian and Trustee) – different from POAEntitled to fee approved by PGT (first lien for expenses – s. 14(4), compensation under 14(1)(2)(3)Revokes RA or POA, so fighting family members may apply for one to override those documents (costly, lengthy, PGT must be informed 19, 19.1s. 18 – Exercise of powers Must exercise power to benefit of patient AND patient’s family with regard to nature/value of property of patient and circumstances/needs of patient and patient’s family, (2) foster independence of patient, encourage involvement in decision making affecting patientO’HaganPGT is committee until order/appt made s. 6, ct may rescind 6(2)Stuff done by committee has effect on 3rd parties as if done by adult s. 21On death, committee still has powers until executor/administrator get authority papers – Re Langford – no powers of administrator, maintain status quo until letters grantedMust provide accts to personal rep of patientPatient’s Property Act (PPA)dates back to Lunacy Actprovides for two ways for person to be designated “patient” and appointment of “committee” to act on behalf of “patient”Adult Guardianship Act (AGA)Part 2 intended to replace PPA, never proclaimed in forcePPA s. 1“committee”a) person appointed as committee under s. 6(1)b) PGT under s. 6(3)c) statutory property guardian under Part 2.1 of the AGA“patient”(para (a) patient)a) person, described in certificate signed by director of mental health facility/psych unit as one who is incapable due to mental infirmitya.1) person who has a statutory property guardian under Part 2.1 AGA, or(admin process) – AGA s. 32“health authority designate” receives report form “qualified health care provider” and issues certificate of incapability.Doesn’t apply if adult has POAPGT then becomes statutory property guardian, must inform adult and spouse/near relativeMay be 2nd (para (b) patient)b) person declared under this Act by judge to bei) incapable of managing his/her affairsii) incapable of managing him/herself, oriii) incapable of managing self or affairss. 15(1)(a) – committee of para a patient has rights/powers re estate that patient would have if capable15(1)(b) – committee of para b patient has rights/powers of patient if capable (if can’t manage affairs)15(1)(c) - committee has custody of patient if patient can’t manage selfO’Hagan v O’Hagan – 2000 BCCAPlan approved that benefited committee more than adult. Test of reasonable and prudent person of business used, mirror plan of will… CA approved it.O’Hagan dying, $10M estate, came up with plan with son (who was named committee) to freeze estate (in a trust) so no taxes paid on death, right of encroachment to father during rest of life. Benefit to son more so than father (taxes don’t matter to dead people….).HELD – it’s fine. Business arrangements, done for reasons of avoiding tax, man wanted to do it for his son…. All good.EXCHANGE, not disposition, benefit to FAMILY (fits s. 18), “necessity” not necessary if it makes sense to do itALWAYS consider that patient can recoverBradley Estate v BC (Public Trustee) – 2000 BCCAWhere gift by committee (inter vivos) will reduce estate, loss of benefit to adult, may not be allowed (not allowed in this case)Family (husband was committee) wanted to give a bunch of gifts before mother died to save a lot of taxes (gifts to themselves). Similar to above case (reorganization of sorts) but this one reduced the value of the estate by approx. 1/3. Past gifts had been approved (smaller).HELD – Not approved. Transactions not prohibited re necessity (like O’Hagan) but would reduce estate by a whole lot, and patient may need more care or may parison to O’Hagan – similar cases, Bradley reduced the size of the estate while O’Hagan was more of an exchange situation (no benefit actually LOST to O’Hagan). Bradley younger, would probably need more during lifetime still.CHAPTER VTransfers Outside a WillWill Characteristics Revocable (inoperative until death, revocable until then)Ambulatory (applies to property acquired after will made)Avoid Using Will to:Avoid probate fees (apply to assets in estate); Avoid Wills Variation claims; Preserves privacy (probated will = public); Speedy/easy transfer of assets; Death certificate req’d for JT transfer, but that’s it.Inter vivos dispositions (non-testamentary – take effect immediately): inter vivos gift; mortis causa (in anticipation of death; effective on death, only personal property – NOT land) gift; inter vivos trusts (alter ego – 65+, no capital gains tax until death of settlor; Joint spousal trust – 65+, no capital gains tax until death of surviving spouse)Non-Will dispositions, operate on death (testamentary – take effect on death, must meet WESA req’ts for validity – in writing, signed, witnessed)JT (right of survivorship) – careful putting name on stuff, can be tenants-in-common, portion to ESTATE on death, req’s probate; ANY JT can sever itDirect Beneficiary Designation: Insurance policies (Insurance Act, s. 48); RRSP/RRIF/Pensions – WESA s. 85)Legal Presumptions re Transfer of Property/AssetsPresumption of Advancement (gift to recipient): husband wife; father child, NOT when woman gave – then resulting trust pres.Presumption of Resulting Trust (in favour of donor’s estate – stuff meant to be used by recipient but go back to estate at some point)Joint Tenancy – right of survivorship; can be jointly acquired or name put on (often box to tick “right of survivorship wanted”); Transferor’s intent re: interest passing now/on deathPecore v Pecore, 2007 SCCIntention of testator determines whether presumption of resulting trust is rebutted (onus on person denying the presumption – transferee, best evidence). Rebutted in this case.Father put bk accts/investments in JT with daughter, all $ put in by him (alter ego trust). Sends letter to advisors saying “no gift” to avoid capital gains tax, manages assets, daughter just uses with permission. Banking doc said “right of survivorship”. Daughter and ex-husband fighting over assets in Will b/c will gives some to ex-husband (disabled); daughter says pres. adv., ex says pres. res. TrustISSUE – Do presumptions of resulting trust and advancement continue in modern times?HELD – Presumption of resulting trust if parent puts assets into name of child, NO presumption of advancement re adult children (pres. of resulting trust). Presumption of resulting trust here, but rebutted by evidence of father’s intention regardless of letter saying “no gift”Presumption of advancement applies to mothers and fathers equallyPresumption of resulting trust if gratuitous transfer with no consideration paid (unless gift, then must find intent for gift)BOP for rebutting presumptionsAdmissible evidence re intent of transferor: 1) acts/statements of either party before/after transfer; 2) granting POA to transferee; 3) transferor’s cont’d control of property after transfer; 4) extent to which transferor paid capital gains tax on transfer, or pd taxes due after transfer; 5) Bank docs signed by parties; 6) statements of transferor when drafting will; 7) love & affection (father close to daughter); 8) dependency of adult child on testator; 9) BLOOD RELATION?Madsen Estate v Saylor – 2007 SCC (decided same day as Pecore)Daughter of testator added to accts after mother’s death, granted EPOA (most reliable). Father retained control of accts during life, paid all taxes on income made. Will provided ? estate to 3 children equally, ? to grandchildren equally. Jt accts large amount ($185K).ISSUE – Gift to responsible daughter or presumption of resulting trust?HELD – Resulting trust to estate, daughter not recipient of JT accts.Pres. of result trust applies b/c daughter not a minor, so she must rebut to get $$Conflicting evidence at trial… insufficient to rebut presumptionDifferences bw Pecore and Madsen – father in Pecore DID favour daughter over ex-son-in-law; no real evidence of favouritism in Madsen, only who was more responsible; ct didn’t seem to like Patricia in Madsen…Re Land Titles Act – see stuff in Ch. V pp 14-15 if necessary – TAB IT!!Trusts (alter ego, joint spousal – see above)Mordo v Nitting – 2006 BCSCTrusts = valid way to disinherit kidsMother made JT transfers and created trusts to disinherit son to benefit of daughter (no WVA claim available this way). Son challenged validity of alter ego trust to bring trust assets into estate to seek variation.HELD – Trusts were valid, disinheritance fine.1) Alter Ego trust was NOT sham – intent was there to create trust, purpose doesn’t matter - three certainties present – certainty of objects (clearly identifiable group of persons intended to benefit); certainty of subject matter – property subject to trust was clear, nature of interest due to each beneficiary clear- formal req’ts complied with (no writing req’d for trusts)2) Resulting Trust? Alter ego under seal…. Intent to transfer, no resulting trust3) Testamentary Disposition? – trusts intended to have immediate effect, so not testamentary, doesn’t matter that they don’t meet Will formality req’ts4) Void for Public Policy (avoidance of WVA claim and tax)? No, trusts are standard estate planning tools5) Agency Agreement (thus not a trust)? No, lawyer only undertook to deal with trust property re instructions in trust document, not direct instructionsInsurance and Plan Designationsassets you can designate upon death: RRSPs, RRIFs, Registered Savings and Pension Plans, and Insurance Policiesdon’t form part of estate, outside of will, don’t need formalities like in a will – just fill out a form and sign itcan make designation in willcan be made by attorney/committee (with ct’s approval)can be revoked (must tell insurer); can make irrevocable designation (good for contracts with people, child support obligations…)Retirement Plan Beneficiariesgoverning statutory provisions – ss. 46, 49-51 Law and Equity Act4 general categoriesi) application of CL and statutory rules in connection with testamentary dispositionsii) capacity to make a designationiii) creditor access during the lifetime of the planholder; andiv) creditors’ access subsequent to the death of the planholder Insurance Act (lower numbers – life insurance, higher numbers – sickness and accident insurance)s. 37 (92) – “declaration” (in this part) – instrument signed by the insured (a) with respect to which an endorsement is made on the policy, (b) that identifies the contract, or (c) that describes the insurance or insurance fund or a part of it…. in which the insured…(d) designates, or alters or revokes the designation of, the insured, the insured’s personal representative or a beneficiary as one to whom or for whose benefit insurance money is to be payable; (e) makes, alters or revokes an appointment under s. 62(1) (120(1)) or a nomination referred to in s. 68 (127)Designation of Beneficiarys. 59(1) (117) …insured may in K or by declaration designate the insured, the insured’s personal rep or a beneficiary to receive insurance money(2) subject to s. 60 (118), insured may alter or revoke the designation by a declaration.(3) A designation in favour of the “heirs”, “next of kin” or “estate” of a person, or the use of words like import in a designation, is deemed to be a designation of personal rep of the person.Designation of beneficiary irrevocables. 60(1) (118), Insured may in K or by declaration, other than declaration that’s part of a will, filed with insurer at head/principle office in CAD during lifetime of person whose life is insured, designate a beneficiary irrevocably, and in that event the insured, while beneficiary is living, may not alter or revoke the designation without the consent of the beneficiary, and the insurance money is not subject to the control of the insured or of the insured’s creditors and does not form part of the insured’s estate.(2) If the insured purports to designate a beneficiary irrevocably in a will or in a declaration that is not filed as provided in ss (1), the designation has the same effect as if the insured had not purported to make it irrevocable. (revocable)Designation in Wills. 61(1) (119) Designation in an instrument purporting to be a will is not ineffective by reason only of the fact that the instrument is invalid as a will, or that the designation is invalid as a bequest under the will.(2) Despite the Wills, Estates and Succession Act, a designation in a will is of no effect against a designation made later in the making of the will.(3) If designation is contained in will and subsequently the will is revoked by operation of law/otherwise, designation is revoked.(4) If designation is contained in an instrument that purports to be a will and subsequently the instrument if valid as a will would be revoked by operation of law/otherwise, designation revokedTrustee for Beneficiarys. 62(1) (120) Insured may in K or by declaration appoint a trustee for a beneficiary and may alter/revoke the appt by a declaration.(2) Pmt made by insurer to the trustee for a beneficiary discharges the insurer to the extent of the pmt.Beneficiary predeceasing Life Insured63(1) If beneficiary predeceases person whose life is insured, and no disposition of the share of the deceased beneficiary in the insurance money is provided in the K or by a declaration, the share is payableto the surviving beneficiary, orif 1+ surviving beneficiary, to surviving beneficiaries in equal shares, or,if no surviving beneficiary, to the insured or insured’s personal representative.(2) if 2+ beneficiaries designated otherwise than alternatively, but no division of insurance money made, insurance money payable to them in equal shares.WESA s. 1 “benefit” – re benefit plan, means benefit payable under benefit plan on death of participant“benefit plan”any one/more of following for benefit of Ees/former Ees of Er, agents or former agents of Er, dependents of any of them or designated beneficiary:pension plan or retirement planwelfare fund or profit-sharing fundtrust, scheme, contract or arrangementfund, trust, scheme, contract or arrangement for the pmt of an annuity for life or for a fixed or variable termretirement savings plan or retirement income fund registered under the ITAfund, trust, scheme, contract or arrangement described in Regs of this Act, ortax-free savings account within meaning of the ITAcreated before , on/after this definition comes into force….“participant” person who makes designation and, except when context req’s, includes atroney/committee making designation under s. 85“testamentary instrument” … designation is a testamentary instrumentFIXIT – print out at least definitions section of WESABeneficiary Designationss. 85 (1) A person entitled to a benefit under a benefit plan may(a) designate another person/persons to whom/for whose advantage the benefit is payable as a designated beneficiary, and(b) unless the designation is irrevocable under s. 87, alter or revoke the designation(2) A designation under this section(a) is only effective, and if the designation can be altered/revoked is only effective to alter/revoke the designation, if the designation(i) is in writing, and(ii) is signed by the person making it, or by another person in the presence of the person making it and by his/her direction, and the signature may be in the name of the person making it or the person signing.may be made in a will, but if it is,the designation is only effective if it relates expressly to a benefit plan, either generally or specifically, andDivision 3 [Designated Beneficiaries in a Will] of this Part applies to the designation, andis subject to s. 89 [when designations may not be changed].(3) A person granted power over financial affairs under(a) s. 8 [enduring power of attorney] or the POAA or(b) a committee acting under the Patients Property Actmay make a designation under this section only if expressly authorized to do so by the court and the designation is not made in a will.Irrevocable Designationss. 87 (1) participant may make irrevocable designation(2) irrevocable designation has effect as irrevocable designation only if, during lifetime of participant, it is filed with an office in CAD specified for that purpose by the benefit plan administrator.(3) if person(a) makes irrevocable designation by will, or(b) makes irrevocable designation that is not filed in accordance with ss (2)the designation takes effect as a revocable designation.Effect of Irrevocable Designation88 (1) While a designated beneficiary of an irrevocable designation is living, participant may not alter or revoke the designation w/o consent of the designated beneficiary.(2) benefit that is subject of an irrevocable designation(a) is not subject to the control of the participant or the participant’s creditors, and(b) does not form part of the participant’s estate90 committee, attorney, rep or person appointed under Indian Act can make a new designation of the designated beneficiary in order to renew, replace or convert a designation made by the participant while capable.91 If a beneficiary dies before participant and no disposition of that share is provided for in the designation, then it goes equally to the other beneficiaries designated or if non, then to the personal rep of the deceased participant. Trustee for Designated Beneficiary92(1) participant may, in same manner as a designation, appoint or alter or revoke the appt of a trustee for a designated beneficiary(2) pmt made by a benefit plan to the trustee for a designated beneficiary discharges the benefit plan administrator to the extent of the pmt95 benefit payable to designated beneficiary or to trustee appointed under s. 92 under benefit plan on death of participant does not form part of participant’s estate and is not subject to claims of participant’s creditors.Alteration or Revocation of Designation in Will96 Designation in a will may be altered or revoked by later designation that is not in a will97(1) revocation in a will of a designation revokes a designation that is not in a will only if the revocation in the will relates to the designation, either generally or specifically, and the designation is not irrevocable.(2) The revocation of a will revokes a designation in the will.(3) Revocation of a designation does not revive an earlier designation.Effect of Revival of Will on Designation98 Designation made in a purported will is valid even if instrument is invalid as a will99 Revival of a will by codicil does not revive a revoked designation in a will unless the codicil expressly provides for revival.Effective Date of Designation and Revocation100 Unless a designation is irrevocable, a designation or revocation of a designation in a will is effective from the time the will is made.National Trust v Robertshaw – 1986 BCSCRRSP deemed inter vivos trust, not revoked. Participant did not retain enough control for it to be testamentary instrument.Guy left designation to his ex-wife, revoked all previous “testamentary dispositions” several times after that (later RRSPs designated to children). Estate argued RRSP designation to ex-wife revoked by revocation clause in Will.HELD – inter vivos trust relationship in designation of RRSP, not testamentary in nature. Will revocation clause not sufficient to revoke designation. no clear dividing line bw revocable trust inter vivos and a testamentary disposition, CAD ct will settle it based on degree of control retained by the settlorRoberts v Martindale – 1998 BCCANo auto-revocation of insurance designation on divorce. Ct finds work-around (“remedial constructive trust”) because contract bw ex’s says neither has claim to stuff of other.Wife forgets to alter (revoke) beneficiary designation after divorce. Separation agmt said “full and final settlement of all rights of each against the other re the other’s property and esate”. Wife made new will to benefit sister, but ex-spouse claimed insurance proceeds.HELD – Spouse to return funds to estate based on constructive trust arising on principle of “good conscience”. - separation agmt (contract) made it not-in-good-conscience to permit husband to retain proceeds he had contractually relinquished by bargain.Wilson v Wysoski – 2014 BCSC Similar facts to above, no good separation agreement, no remedial trust found (no contract to base it on). No unjust enrichment, just operation of legal designation.CL spouses entered into property division consent order, gave up pension claims against other. Husband dies (commits suicide because she left for ex) w/o revoking designation under benefit plan. Husband’s executor claims death benefit for estate, Wife claimed benefit as designated beneficiary. “Wife” claimed money, executor (Husband’s brother) said she was unjustly enriched.HELD – no unjust enrichment, buddy should have changed plan, she gets $$.permitted to retain death benefit by operation of lawdistinguished Roberts v Martindale on basis that consent order bw spouses did not relinquish death benefit. No “good conscience” constructive trust.Unjust enrichment – 1) enrichment of person, 2) corresponding deprivation of another, 3) no juristic reason for enrichment and deprivation.Ct said there was a juristic reason (legal designation) Soulos v Korkontzilas – 4 conditions for “good conscience” constructive trustD must have been under equitable obligation, obligation of the type that cts of equity have enforced, in relation to the activities giving rise to assets in his hands;Assets in hands of Ds must be shown to have resulted from deemed/actual agency activities of D in breach of equitable obligation to D.Pl must show legit reason for seeking proprietary remedy, personal or related to need to ensure that others like the D remain faithful to their dutiesMust be no factors which would render the imposition of a constructive trust unjust in all circumstances of the case – eg the interest of intervening creditors must be protected.CHAPTER IV – NATURE OF A WILLWill needn’t say “last will and testament” to be a willGift in will different than inter vivos gift – takes effect on death, not actionable for beneficiary until death of donor (and distribution of estate)Fear that people may improvidently give away their property at death has left a legacy of formalism unmatched in other areas of law. Protect people from themselves (unlike commercial/contract transactions)Will effective on death, testamentary if takes effect only on death Bird v Perpetual ExecutorsCannot make irrevocable will (no citation, just said in class. KIND OF can with mutual wills but that’s a contract, not actually irrevocable)Jurisdiction-specific req’ts for witnesses, make sure to be applicable to most stringent jurisdictionDispensing power – s. 58Bird v Perpetual Executors and Trustees Assc of Australia – 1946 HC Aust.If document requires death of donor for vigour/effect = testamentary document. Must therefore be executed in accordance with Wills Act (WESA) formalities to be effective.Parker and wife resided with appellant for years, but no agmt to pay board/lodging. Parker wanted to provide for Mrs. Bird (appellant) so wrote out deed paying her $$ per week when he died. Signed/sealed, she sued on it upon his death.HELD:Starke – Doc made to depend upon event of death for vigour/effect and to consummate it IS a testamentary document. But not if it takes effect immediately upon execution though enjoyment of benefits conferred are postponed until after death of donor. Doc here not testamentary in form, but substance and effect that’s important. No obligation created upon execution of document – operation/effect depends upon death of Parker. Testamentary in character, must be executed in accordance with Wills Act.Dissent points – held by lawyer for Bird (so could constitute delivery), signed/sealed… irrevocable, good inter vivos gift. Covenant by Parker to pay (not revocable…)Hutton v Lapka Estate – 1991 BCCAContract that takes immediate effect, even if conditions for if death occurs, not testamentarySon promised to pay mom $$ in a note, note said that if son dies, wife will pay from estate, and if mom dies first no debt owed by son to mom. ISSUE – Contract or testamentary document?HELD – Contract, takes effect immediately, NOT on death.fact that there was no consideration for the forgiveness of the debt upon mom’s death doesn’t matter, so long as there was consideration for the CONTRACT. No req’t of separate consideration for contract’s different parts.Other documents that could end up being testamentary documents Shareholder Agreements (obligations to buy/sell shares in small group upon person’s death)Intended to be contractual even though certain rights rise upon death….wording matters though. In his practice, signed it up as Will to be used as such if necessaryConditional WillsRe Huebner – 1974 Man CAHolograph will written before trip, “if I die on this trip” held to apply upon return too. No condition that will only applied if died on trip.Holograph will – “In the event of my death (on this trip – to Russia) all my possessions and insurance moneys….”. Guy returned from the trip safely, died 2.5 yrs later. Family opposed will saying it was conditional upon him dying ON THAT TRIP.HELD – trip was reason for making the will, will not conditional on death happening on the trip.Re Green Estate – 2001 NLTDCondition found (will operable on death of both husband and wife). Wife not dead, so husband died intestate (will invalid/void).Holograph will by deceased says “in the event that something should happen to both of us”. Condition that both husband and wife die, not met.HELD – document clearly meant to apply to both signatories (husband and wife) on their deaths. Will operable only on both of their deaths, contingency did not occur, husband died intestate.settled law that extrinsic evidence should not be considered in construing whether a will is conditional on the happening of a specified event in the absence of ambiguity about the condition being found in the text of the will itself…. Cannot be used to establish that a will, unconditional on its face, is in fact conditionalTwo or More Testamentary Documentscan have for assets in different countriesbe careful… which executor has resources to pay tax influenced by tax impact of two dispositionsprobably really one will made up of two parts (can’t give away the same thing twice)Douglas-Menzies v Umphelby – 1907 – PC NSWWhile one may have separate wills governing separate properties, there is only ONE estate. If you disclaim one part of will, disclaim whole thing. Documents internally consistent.Will-maker had Scottish will and Ozzie will governing property in Australia. Beneficiary disclaimed interest under Scottish will. Intestacy provisions gave her a better mix of his property. ISSUE – Can spouse disclaim one will and not the other (to get a better result for herself?)HELD – No, if you disclaim for Scottish purposes, must disclaim for Australia purposes too. One person, one estate.Randel v Robinson Estate – 2011 ONCAStock revocation clause will revoke previous wills dealing with other stuff. Determine intention of T from words used in the will, not direct extrinsic evidence of intentWoman does will in Spain, then does one in CAD, doesn’t say anything about Spanish will. CAD will says “this revokes all previous wills”, cuts out sisters, gives money to current lover (Dr. Rondel).ISSUE – Did CAD will revoke the Spanish will? And can ct use evidence outside of will to determine testator’s intent?HELD – CAD will revoked Spanish will, ct sitting as a court of construction is only to construe evidence from will directly.PROBATE FEESwhen application to ct for grant of probate of will, probate fees payableexec can deal with some property w/o probate – shares in co may be transmitted on death of SH on production of original will (s. 118(c)(ii) BCBCA)no probate = no public documentchanges to WESA to authorize having 2 “wills” when only one needs probating in BC (to match Ont)Probate Fee ActDefinitions1 In this Act:“value of the estate” means the gross value, as deposed to in a Statement of Assets,Liabilities and Distribution executed to the affidavit leading to a grant or to aresealing, as the case may be, of(a) the real and tangible personal property of the deceased situated in BritishColumbia, and(b) if the deceased was ordinarily resident in British Columbia immediatelybefore the date of death, the intangible personal property of the deceased,wherever situated,that passes to the personal representative at the date of death.Probate fee2 (1) In addition to any fees payable under the Supreme Court Civil Rules tocommence a proceeding to obtain the issue of a grant or a resealing and to any feespayable under the Rules of Court to file documents within that proceeding, a feedetermined in accordance with this section must be paid to the government, before theissue of any grant or before any resealing, as the case may be, on behalf of the estateof a deceased by the personal representative of the deceased but is payable by thatpersonal representative in his, her or its representative capacity only.(2) No fee is payable under this Act(a) on a grant de bonis non, a cessate grant or a double probate, or(b) if the value of the estate does not exceed $25 000.(3) If the value of the estate exceeds $25 000, whether disclosed to the court before or after the issue of the grant or before or after the resealing, as the case may be, theamount of fee payable is(a) $6 for every $1 000 or part of $1 000 by which the value of the estateexceeds $25 000 but is not more than $50 000, plus(b) $14 for every $1 000 or part of $1 000 by which the value of the estateexceeds $50 000.(4) If, after the issue of any grant or after any resealing, the personal representativelearns of the existence of an asset of the deceased that was not disclosed in theStatement of Assets, Liabilities and Distribution exhibited to the affidavit leading tothe grant or to the resealing, determines that the value attributed to an asset in thatstatement must be revised or determines that an asset was otherwise not properlydisclosed, the personal representative must disclose to the court the existence andvalue of that asset and must pay to the government the difference between the fee paid before the issue of the grant or before the resealing and any greater fee that would have been payable under subsections (1) to (3) had the asset been disclosed or appropriately valued in the original Statement of Assets, Liabilities and Distribution.WESA (repealed similar section in Estates Administration Act)Application for grant of probate or administration – disclosure (asset/liability disclosure)122 (1) An applicant for a grant of probate or administration must(a) make a diligent search and inquiry to find the property and liabilities of the deceased person, and(b) disclose information as required under the Rules of Court concerning theproperty of the deceased person, irrespective of its nature, location or value, that passes to the applicant in his or her capacity as the deceased person’s personal representative, unless(i) the deceased person was not domiciled or ordinarily resident in British Columbia at the time of death,(ii) the property is situated outside British Columbia, and(iii) the property has been, is being, or will be administered by a foreign personal representative or otherwise under the law of a foreign jurisdiction.(2) For the purposes of subsection (1), “foreign personal representative” mayinclude the applicant.(3) The applicant for a grant of probate or administration must file with the registrar of the court a prescribed form with respect to complying with the requirements of this section.[Under WESA, the Probate Rules will be found in Part 25 of the Supreme Court Civil Rules. Paragraph 3 of the affidavit which an applicant for probate will be required to sign reads:Attached to this affidavit as Exhibit A is a Statement of Assets, Liabilities andDistribution that discloses(a) all the property of the deceased, irrespective of its location, natureor value, that passes to the applicant in the applicant’s capacity asthe deceased’s personal representative in accordance with section138 of the Wills, Estates and Succession Act,(b) the value of that property ;(c) the liabilities that charge or encumber that property.The reference to section 138 would seem to be an error.]“Delegation” of Will-making Power (power of appointment)“I, Darryl Wickstrom, hereby give Helen Low a general power over my property”general, special, or hybrid (from Tassone)general – recipient can appoint/transfer property to themselves to exclusion of others. Wide-ranging power, allows person to use however they want.Special – power to appoint from a specified, generally small group – eg children of donorHybrid (intermediate) – power to appoint in favour of anyone in the world, with a few exceptions – eg excluding donee, donee’s spouse and children.Tassone v Pearson – 2012 BCSCGeneral power of appointment in a will is ok in BC if ascertainableWill-maker gave everything to her son with the power to distribute as he saw fit to other potential beneficiaries. Then put in clause naming that executor as the beneficiary.ISSUE – is the granting of the power to the executor to distribute as he sees fit valid? If so, what is the correct interpretation of the will when she also named him as the beneficiary?HELD – general power of appointment is ok in BCCHAPTER VIII – Execution of WillsPractice Tipsmake will right in first place; fasten all pages of will together securely, all pages should say how many pages in will; don’t staple so can photocopy laterlawyer confirms testator has read will, understands contentsNO interested parties to sign will… less complexDO IT THE SAME WAY EVERY TIME (will execution)No holograph wills in BC (unless validated under s. 58 – ct validation), or by member of army/navy etcWESADefinitions and interpretation (s. 1(1)) “will-maker’s signature” includes a signature made by another person in the manner described in subsection (2).(2) A reference to the signature of a will-maker includes a signature made by another person in the will-maker’s presence and by the will-maker’s direction, and the signature may be either the will-maker’s name or the name of the person signing. How to make a valid will37 (1) To be valid, a will must be(a) in writing,(b) signed at its end by the will-maker, or the signature at the end must beacknowledged by the will-maker as his or hers, in the presence of 2 or morewitnesses present at the same time, ands. 1(2) includes signature made by another person in will-maker’s presence and by will-maker’s direction(c) signed by 2 or more of the witnesses in the presence of the will-maker.(2) A will that does not comply with subsection (1) is invalid unless(a) the court orders it to be effective as a will under section 58 [court ordercuring deficiencies],(b) it is a will recognized as valid under section 80 [validity of wills made inaccordance with other laws], orit is valid under another provision of this Act. Will by members of military forces38 (1) A member of the Canadian Forces while placed on active service under theNational Defence Act (Canada), or a member of the naval, land or air force of anymember of the British Commonwealth of Nations or any ally of Canada while onactive service may, regardless of his or her age, make a gift of property by will inwriting, signed by the will-maker at its end or by some other person in the presence of and by the direction of the will-maker.(2) If the will is signed by the will-maker, there is no need for a witness to be present to witness or to sign the will as a witness. (HOLOGRAPH ALLOWED)(3) If the will is signed by another person, the signature of that other person must be witnessed by the signature of at least one person, who must sign the will in thepresence of the will-maker and of the other person.Clarification of doubt about signature placement (superceded by s. 58)39 (1) A will is conclusively deemed to be signed at its end if the will-maker”ssignature is placed so that it is apparent on the face of the will that the will-makerintended to give effect to the will, including in, but not limited to, the followingcircumstances:(a) the will-maker’s signature is placed(i) at or after the end of the will, or(ii) following, under or beside the end of the will;(b) the will-maker’s signature does not immediately follow the end of the will;(c) a blank space intervenes between the concluding words of the will and the will-maker’s signature;(d) the will-maker’s signature(i) is placed among the words of a testimonium clause or of an attestation clause;(ii) follows or is after or under an attestation clause either with or without a blank space intervening, or(iii) follows or is after, under or beside the name of a witness who signed the will;(e) the will-maker’s signature is on a side or page or other portion of the will on which no disposing part of the will is written above the will-maker’s signature;(f) there appears to be sufficient space to contain the will-maker’s signature on or at the bottom of the side or page or other portion of the same paper on which the will is written and preceding that on which the will-maker’s signature appears.(2) A will-maker’s signature that confirms to this section does not give effect to(a) a gift or direction in the will that follows the will-maker’s signature, or (b) a gift or direction inserted in the will after the will-maker signed the will.Court order curing deficiencies58 (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 courtdetermines that a record, document or writing or marking on a will or documentrepresents(a) the testamentary intentions of a deceased person,(b) the intention of a deceased person to revoke, alter or revive a will ortestamentary 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, alteration or revival of a will does not comply with thisAct, the court may, as the circumstances require, order that a record, document orwriting or marking on a will or document be fully effective as though it had beenmade(a) as the will or part of the will of the deceased person,(b) as an alteration, revocation or revival of a will of the deceased person, or(c) as the testamentary intention of the deceased person.(4) If an alteration to a will makes a word or provision illegible and the court issatisfied that the alteration was not made in accordance with this Act, the court mayreinstate the original word or provision if there is evidence to establish what theoriginal word or provision was.George v Daily – 1997 Man CACurative provisions to cure imperfect compliance, or non-compliance, with will req’ts if there is testamentary intent. Cannot make will of document that will-maker never intended to have testamentary effect. A deliberate or fixed and final expression of intention as to disposal of his/her property on death.Client met with accountant, who sent letter to lawyer, who saw will-maker once about changes will-maker wanted to make to will. Will-maker died before changes made (lawyer wanted medical certificate re capacity), but accountant and lawyer knew about them. Motions court judge allowed changes in letter.ISSUE – Can the court “cure” the letter so as to give it testamentary capacity and thus carry out final wishes of the client?HELD – Not enough evidence to give testamentary effect to the letter. Testator’s change their minds, instructions can be misunderstood/misinterpreted…formalities of will provide ct with reliable evidence of testamentary intent, document in question MUST do the same thing“evidentiary” and “cautionary” functions re will req’tspurpose of the remedial provisions is to overcome the hardship and injustice – the consequences of the triumph of form over intentcuring provisions cannot make a will out of a doc which was never intended by the deceased to have testamentary effectoral evidence helpful in these cases… maybe more so than affidavit aloneEstate of Young – 2015 BCSC (effect of Manitoba authorities)Is the document authentic? Does the non-compliant document represent the deceased’s testamentary intentions, as concept explained in George?deliberate or fixed and final intention, not irrevocableburden of proof is BOP (that it embodies testamentary intent)factors – presence of deceased’s signature; deceased’s handwriting; witness signatures; revocation of previous wills; funeral arrangements; specific bequests; title of documentfurther a doc is from a “will”, harder to find testamentary intentRe Nerstine Estate – 2012 SKQBIn Sask, complete lack of signature (so lack of execution) cannot be cured by curing provision.No signature of will-maker or witnesses on document. Can it be cured?HELD – Sask law req’s at least some attempt at execution of a formal will- s. 37 (in Sask) cannot operate to validate an electronic signature for will. Will-Maker’s Signature or AcknowledgementRe Wagner (Sask) – Signature on an envelope ok. It was part of the document, and there was lots of evidence that the document was to be testamentary.Re Bradshaw Estate (NB) – strokes and mark clearly intended to execute the codicil. Testamentary intent found, codicil cured. (physical infirmity not to get in the way) Testator had pen in hand to sign codicil, made 2 diagonal strokes and a mark, died.Re White (NS) – Lawyer-assisted “mark” fine. Witnesses present, intent there.Peden v Abraham (BC) – Person took testator’s hand and signed, not requested to do so. Not curable.Acknowledgement – dangerous, stay away from37(1)(b) – testator can acknowledge a signature already madeRe Shafner – some relevant decisions re acknowledgment say1) testator, whether speechless or not, may acknowledge with gestures2) no sufficient acknowledgment unless witnesses saw/might have seen the signature3) when witnesses saw/might have seen signature, express acknowledgement of signature not necessary, mere statement that paper is will or direction to put names under his, or request by testator or person in their presence to sign paper is sufficient4) when signature seen/expressly acknowledged, not material that witnesses are not told that instrument is will.WitnessesWESA40 (1) Signing witnesses to a will-maker’s signature must be 19 years of age orolder.(2) A person may witness a will even though he or she may receive a gift under it, but the gift may be void under section 43 [gifts to witnesses]. (NOT GOOD)(3) A will is not invalid only because a witness was, at the time the will was signedby the will-maker, or afterwards became, legally incapable of proving the will.Re Brown (Ont) – Witnesses must witness testator signing, and then sign, or witness acknowledgement of signature, and then sign. BOTH. Not done here, invalid will.Testator signed in front of one witness, took will downstairs for other witness to sign.Re Wozceichowiecz (Alta) – Testator must watch witnesses sign will for validity.Testator signed while in hospital bed. Could not hold head up to see witnesses sign will, but knew they were doing it.Presumption of Due ExecutionYen Estate v Chan – 2013 BCCA – testator’s execution of will creates rebuttable presumption that he/she has knowledge of/approved contents of will (and duly executed). Will had all of the signatures, there was an attestation clause (“signed by x in the presence of us, both present at the same time….”), question was whether or not it was duly executedISSUE – Does the presumption of due execution apply?HELD – absence of attestation clause should not be fatal, should simply weaken the presumption of due executionif no presumption, dishonest, forgetful or dead witnesses could skewer attempt at making Willif evidence of non-due execution by people signingIncorporation by ReferenceRe Jackson – 1985 BCSCApplication to admit to probate, along with testatrix’s last will, memo signed by her on basis that memo is incorporated by reference in her last will. Memo fulfills s. 37 req’ts, current will makes reference to memo.HELDReq’ts to permit incorporation by reference into will of testamentary paper1) must be in existence at time of execution (of will);2) and must be described as then existing;3) and in such terms that it is capable of being ascertained; and4) the will must not state that the document is not to form part of it.… even though memo could be said to be codicil of earlier will and revoked by revocation clause in last will, nevertheless she reviewed its contents at time of execution of her last will, decided not to effect any changes in it, determined to le tit stand as memo referred to in will….Letter of Wishesnon-binding but morally persuasive docs (lists) left by testators to executors/beneficiarieseffective way of permitting will updates without formalities, need to trust people you tell the wishes too (not legally enforceable)useful – can be used for funeral arrangements, also good for trusts – give trustee guidance as to how what to do with stuff re intent of settlorSecret Trusts (safeguard privacy of will – public doc on probate)Fully Secret TrustsGive something to beneficiary in will, but tell them that it’s to be held on trust for REAL beneficiaries. Intent and acceptance (express or implied) can be oral or in writing. Must complete before death of will-makerSealed envelope of intent and acceptance upon death of testator fineRe intestacy – same rules apply, must communicate with intestate successorHalf Secret TrustsWill creates trust, terms of trust communicated outside of the will (trust known, not terms… half secret)Communication and acceptance MUST take place BEFORE EXECUTION of the will – Jankowski v Pelek EstateRationale – “Equity will not allow a statute to be used as an instrument of fraud” (would operate fraud on will-maker to take assets meant for a trust), or; execution req’ts exhausted when will passes title to intended trustee – then equitable issue.“Pour-Over” Willspeople will have family trusts (mostly in US); will says on death, property transferred to trustees of that rust. “pours over” into the trust; many states authorize that expressly, permits terms of trust to change over timein BC, trust must be in existence, cannot be subject to amendment (otherwise end-run around execution req’ts)If trust amended, doesn’t matter… terms are what they were when will madeBeneficiary of trust will get what’s in there when will-maker dies – regardless if it’s not what it says in the will. TERMS are unchanging, not contents of trust.Re Kellogg Estate – 2013 BCSC (appeal dismissed)Pour-over trusts do not work in BC unless trust in existence when Will made, and no amendments to be made to it (otherwise no compliance with s. 37 req’ts)Testator domiciled in Washington, left (by will) residue to Trustee of KF trust, held on terms of trust including amendments. If “pour-over clause” invalid, residue paid to trustee of trust to be held on terms as they stood at date of testator’s death.HELD – Gift cannot “pour over” to be held by trustee of KF trust on terms existing when Will executed, trustee now obliged to follow terms in Amendment. Would permit RPK to have effectively amended his Will without complying with Wills Act. Not enough formality1) non-testamentary docs may only be incorporated into wills if docs in existence at time will established2) testators cannot reserve right to make future unattested dispositions of trust property (would not conform with s. 37 WESA req’tsCodicils/Alterationscodicil = will re WESA, same req’ts apply for alteration etcHow to alter a will (WESA)54 (1) To make a valid alteration to a will the alteration must be made in the sameway that a valid will is made under section 37 [how to make a valid will].(2) Subject to subsection (4), an alteration to a will is valid if the signature of the willmaker to the alteration, and the witnesses to that signature of the will-maker are made(a) in the margin or in some other part of the will opposite or near to thealteration, or(b) at the end of or opposite to a memorandum referring to the alteration and written in some part of the will.(3) An alteration to a will that is not made by the will-maker in accordance with thissection is ineffectiveexcept to invalidate a word or provision that the alteration makes illegible, unless the court reinstates the original word or provision under section 58(4) [court order curing deficiencies], or58(4) – if an alteration to will makes a word/provision illegible and ct is satisfied that alteration not made in accordance with this Act, ct may reinstate original word/provision if evidence to establish what original word/provision was.(b) unless the court orders the alteration to be effective under section 58.(4) An alteration to a will that does not comply with subsection (2) is valid if(a) the alteration(i) does not substantively alter the effect of the will, and(ii) is in respect of form, style or numbering or is a typographical error, orthere is evidence to establish that the alteration was made before the will was executed, if the alteration substantively alters the effect of the will.In the Estate of Oates – 1946 EngPresumption that additions to wills happened after execution, can be rebutted with evidence of intent (then court can “cure” will)Person made alteration to her will without signatures etc (crossed out something, wrote something out). No evidence that words were seen in will before execution.In the Goods of Itter – 1950 EngIf alteration invalid, original will still standsTestator glued slips of paper over bequests in codicil. Slips had new amts on them. Initialed, not attested, invalid. HELD – Will still stands – without amendments.Witnesses as BeneficiariesGift to witnesses43 (1) Unless a court otherwise declares under subsection (4), a gift in a will is voidif it is to(a) a witness to the will-maker’s signature or to the spouse of that witness,(b) a person signing the will by the will-maker’s direction, or the spouse of the person signing, or(c) a person claiming under a person, other than the will-maker, referred to in paragraph (a) or (b).(2) For the purposes of subsection (1), the relevant time for determining whether one person is the spouse of another is the time when the will was made.(3) If a gift is void under subsection (1), the remainder of the will is not affected.(4) On application, the court may declare that a gift to a person referred to insubsection (1) is not void and is to take effect, if the court is satisfied that the willmaker intended to make the gift to the person even though the person was a witness to the will.(5) Extrinsic evidence is admissible for the purposes of establishing the will-maker’sintention under subsection (4).Re Cumming – 1963 Ont HCDisposition void/invalid because wife of beneficiary witnessed will.Whether disposition to buddy is void because his wife attested will of testator.Re Ray’s Will Trusts – 1936 Eng.If gift for benefit of community, and beneficiary witnessed will but is member of community, still valid.Nun, “to the person who, at the time of my death, shall be or act as abbess..”. Abbess at time of death was a witness to the will.Re Royce’s Will Trusts – 1959 EngWhen determining whether witness has beneficial interest, look to WHEN attestation happened. Can gain interest AFTER attestation (valid for solicitor in this case).Man attested will, and then became interested because was to claim solicitor fees from it. Invalid?Gurney v Gurney – 1855 EngGift to witnesses of codicils AFTER will made valid – questionable (codicil republishes will… should be different result)Not witnesses to will, but beneficiaries. Later attested codicils, one of which increase value of residue of estate.Anderson v Anderson – 1869Codicil witnessed by two persons NOT related to beneficiary cures issue wherein wife of beneficiary witnessed will. Beneficiary can take.Beneficiary’s wife witnessed will, codicil later made with different witnesses. Can he take?Jones v Public Trustee – 1982 BCSCIf witness to take from residue, residue divided as if witness pre-deceased testator (so goes through intestacy provisions).Daughter witnessed will, was beneficiary of 1/3 of residue of estate (also invalid because she witnessed).ISSUE – How to divide residue? Between remaining two siblings, or as if daughter pre-deceased testator, thereby portion passes on intestacy?Electronic Signatures?1 case where electronic text admitted to probate – Rioux v CoulombeT committed suicide, left note to find envelope containing diskette, file with will on it. Kind of like holograph will in this case? Was in Quebec (allowed there)Conflicts of Laws (WESA)Interpretation79 (1) In this Division, a reference to the law of a place other than British Columbiais a reference to the internal law only of that place and does not include its conflict of laws rules.(2) A requirement of the law of a place other than British Columbia that(a) certain formalities must be observed by will-makers of a particulardescription when making a will, or,(b) witnesses to wills must have certain qualificationsIs a formal requirement only that does not affect the essential validity of the will.Validity of wills made in accordance with other laws80 (1) A will is valid as to the formal requirements for making the will and isadmissible to probate if it is made in accordance(a) with the law of the place where the will is made,(b) with the law of the will-maker’s domicile, either at the date the will is made or at the date of the will-maker’s death,(c) with the law of the will-maker’s ordinary residence, either at the date the will is made or at the date of the will-maker’s death,(d) with the law of a country of which the will-maker was a citizen, either at the date the will is made or at the date of the will-maker’s death,(e) with the law of British Columbia, but the will is made outside British Columbia,(f) with the law of the place where the will-maker’s property is situated at the date the will is made or at the date of the will-maker’s death,(g) in the case of a will made on board a vessel or aircraft of any description,with the law of the place with which, having regarding to the registration, if any, of a vessel or aircraft, the vessel or aircraft is most closely connected, or(h) to the extent that the will exercises a power of appointment, with the lawgoverning the essential validity of that power.(2) If a will is not valid under subsection (1), it is deemed to be valid if a subsequentamendment to the law of the relevant jurisdiction before the deceased person’s death would have validated the will.(3) The formal validity of a will that revokes(a) a will that would be treated as formally valid under this Division, or(b) a provision of a will that would be treated under this Division as a formally valid provision, may be determined by reference to any law under which the revoked will or provision of the will would be treated as formally valid and that is relevant for that purpose under this Division.Resort to other aids to construction81 In the construction of a will to which this Division applies, the court may resort to the law of the place where the will-maker was domiciled or was ordinarily resident at the time the will was made.Interest in an immovable82 (1) If the value of a personal property consists mainly or wholly in its use inconnection with an interest in an immovable by the owner or occupier of the personal property, the right to an interest in the personal property under a will is governed by the law of the place where the immovable is located.(2) In subsection (1), “interest in an immovable” includes any estate or interest inland whether the estate or interest is real property or personal property, and includes a leasehold estate.CHAPTER XVI – Solicitors’ Responsibilities and LiabilitiesWilhelm v Hickson – 2000 SKCALawyer owes duty to EVERYONE – testator, beneficiaries etc. Can be found negligent. Negligent in this case because allowed property to be willed that was not owned.Will-maker willed away lands that he did not own personally, but through a company. Lawyer allowed will to be made in this way. All of the gifts failed. Lawyer negligent?Re Worrell – 1969 Ont Surr CtWhen doing will, TAKE DETAILED NOTES, TAKE INSTRUCTIONS DIRECTLY FROM TESTATOR, DON’T ASK LEADING QUESTIONSLawyer prepared will for someone he had never met, no knowledge of size/nature of estate, no notes, lots of stuff went to person who asked him to draw will.HELD – Solicitor did bad, should have:received instructions from testator himselfshould attend personally when will executedfind nature/extent of assets, any other wills?Make sure no capacity, undue influence, other intent issuesDon’t ignore written instructions of testatorCannot execute with beneficiary of will, must execute with testatorMake full docket entries (take full notes) re all details especially when testator elderlyDon’t draw will leaving substantial portion to person who consulted youWhittingham v Crease & Co – 1978 BCSCLawyer owes duty of care to beneficiary of will he/she executes, and must be aware that witness/spouse of witness cannot take under will.Pl sole beneficiary of will, him and wife present at will-signing, lawyer asked Pl’s wife to witness. Gift to Pl failed, will passed on intestacy. Pl sued in negligence. HELD – Lawyer did not exercise reasonable degree of skill, knowledge and care expected from a lawyer undertaking to supervise execution of a will. Owes a duty of care to beneficiary (in spite of Pl not acting on strength of rep made by DFixit – look at will-making checklistsCHAPTER VII – Capacity and Related Topics16 now (was 19) – persons 16-19 may have significant assets (MVA insurance recipients, trust fund kids)no age limitation if in Armed Forces4 topicsCapacity (must have)Knowledge and Approval (must have)Undue Influence (must NOT have)Fraud (must NOT have)CAPACITYWESAs. 36(1) person 16 or over and mentally capable may make will, (2) under 16 can’t38(1) A member of the Canadian Forces while placed on active service under theNational Defence Act (Canada), or a member of the naval, land or air force of anymember of the British Commonwealth of Nations or any ally of Canada while onactive service may, regardless of his or her age, make a gift of property by will inwriting, signed by the will-maker at its end or by some other person in the presence of and by the direction of the will-maker.(2) If the will is signed by the will-maker, there is no need for a witness to be present to witness or to sign the will as a witness.(3) If the will is signed by another person, the signature of that other person must be witnessed by the signature of at least one person, who must sign the will in thepresence of the will-maker and of that other person.Vout v Hay – 1995, SCCBurdens, onuses and presumptions surrounding capacity. Authority that capacity, knowledge and approval must be present for valid will, undue influence or fraud will invalidate.No doctrine of suspicious circumstances.Vout sought to establish validity of will of which she was beneficiary. Hay argued will invalid. Valid at trial, SCC reinstated CA overturning trial decision.person propounding will has legal burden of proof re due execution, knowledge/approval and testamentary capacityperson opposing probate has legal burden of proving undue influencestd of proof on each issue is balance of probabilities (BOP)to discharge burden of proof of knowledge/capacity, propounder aided by rebuttable presumption – proof that will was duly executed leads to presumption that testator knew/approved contents (see Yen Estate v Chan)presumption “simply casts evidential burden on those attacking willevidential burden satisfied by introducing evidence of suspicious circumstances (evidence, if accepted, which would negative knowledge/approval or testamentary capacity). Then burden reverts to propounder.Existence of suspicious circumstances does not impose higher standard of proof on propounder than BOP. But extent of proof req’d proportionate to gravity of suspicionWell-grounded suspicion of undue influence will not discharge burden of proving undue influence on those challenging will.Lazlo v Lawton – 2013 BCSCTest from Banks v Goodfellow with one added-on req’t. TEST FOR CAPACITYPoints about capacitytiming is key, must be capable when giving instructions, and must be capable when executing, but really only must be capable of comprehending that she/he was executing a will drawn in accordance with previous instructionsstandard of mental capacity does not exclude eccentric, frivolous, capricious, absurd or unfair willstestamentary capacity not a medical concept or diagnosis, it is a legal construct. (but can be informed by medical opinion)TEST (from Banks v Goodfellow)(don’t need a perfect mind to have testamentary capacity, can in fact be affected by delusions and still have capacity)testator must understand the NATURE OF THE ACT OF MAKING A WILL (disposes of person’s property after death)testator must understand THE EXTENT OF PROPERTY OF WHICH HE IS DISPOSING (must know approximate value of estate)must understand and appreciate THE CLAIMS SOCIETY EXPECTS HIM TO GIVE (are they thinking of family/friends etc – potential wills variations)(from Lazlo) there is a certain level of eccentricity that is acceptable before incapacity found (discussed Bohrman – British man upset with British authorities, left stuff to American charities, MUST have been nuts)Simon v Byford & Ors – 2014 EWCA – capacity depends on the potential to understand. Not to be equated with a test of memory.- knowledge/approval requires no more than the ability to understand and approve of choices that have already been made – can be found even when testator lacks testamentary capacity at date will executed.if client acting weird/suspicious, should elevate your normal caution routine and take careful notes of what’s going on.Hall v BennettRoyal Trust Co v Rampone – 1974 BCSCCapacity can FLUCTUATE. Even someone with a mental illness can have capacity at the relevant time. Evidence of persons who interact with testator will be taken into account.Guy left residue to three daughters and one of three sons. Executed codicil (second one) bringing in other two sons. Two daughters challenge his capacity when making second codicil. He had been declared incapable of handling his own affairs by reason of mental infirmity arising from disease. Differing accounts of his capacity during decision to make the change, seemed to fluctuate.HELD – codicil valid, don’t need to be lucid ALL the time to be lucid and have capacity at the relevant time. Evidence of a lot of people is helpful and will be taken into consideration.law doesn’t want to deprive people of ability to dispose of property if possiblereq’ts for testamentary capacity not same as those for running your own affairsRe Estate of Bohrman – 1938 EngHigh level of eccentricity that caused an unreasonable change in the will considered incapacity, affected part of the will was severed. No rational basis for the change.Man was very, very eccentric. Trial judge called him “most eccentric, very unreasonable, very spoiled and rather useless human being”. Was upset with London City Council, so replaced “British” with “American” charities in a codicil in his will.HELD – Codicil that makes the change is severed.Court discusses that a certain level of eccentricity is fine, but must take an objective look at what person is doing to determine whether or not required capacity was present in decision-making. Key & Anor v Key & OrsGOLDEN RULE for capacity – If testator is ill, make sure that a doctor sees the testator and gives a medical opinion on capacity.In period before making will, testator suffered from short term memory loss. Wife had just died and he was extremely bereaved. Lawyer did not consult doctor about capacity before taking instructions.HELD – Lawyer should have taken instruction from doctor/psychiatrist. Guy was too incapacitated following his wife’s death to exercise req’d decision-making powers.discusses depression as a mental condition, whether or not it can deprive you of testamentary capacity for a timenot enough known, still learning about it. COULD be a reason (was in this case)compliance with rule not LAW, but is a REALLY good idea if question as to capacitySharp and Bryson v Adam and Adam – 2006 EWCAObjectively irrational decision + question as to capacity = incapacity. While had cognition, not rational to leave daughters out of will.Man very physically incapacitated, could only communicate by blinking. Had will leaving everything to 2 daughters, had good relationship with both, and then 1.5 years before death made new will leaving everything to men who took care of business/personal care, left daughters out. Evidence taken from daughters, caregivers, friends, and experts who had not met testator.HELD – while cognitive functions (as seen by friends, caregivers, doctors) seemed to be fine, it was not RATIONAL to leave daughters out of will. On SPECTRUM of capacity, Boyse v Rossborough – “There is no possibility of mistaking midnight from noon, but at what precise moment twilight becomes darkness is hard to determine”Instructions to ExecutionParker v Felgate – 1883 EngAcceptable to have reduced capacity while executing will as long as you understand that you are executing a will that your lawyer made as per your instructions.Lady really ill, had made will but hadn’t been executed. Lawyer waved it in front of her face, said “This is your will. Do you wish this lady… to sign it?” and she said “yes”. ISSUE – did she have necessary capacity for the will to be duly executed?HELD – Yes.understand/remember instructions given to lawyer? (No)capable of understanding each clause if put to her? (No)capable of understanding that she was engaged in executing will for which she had given instructions to lawyer? (YES!)- capacity found.KNOWLEDGE AND APPROVALoverlaps capacity – CAN have circumstances where where testamentary capacity exists without knowledge/approval…Wintle v Nye – 1959 Eng (HL)Must be able to give evidence that testator knew/approved of what was in will. Respondent was solicitor, advised deceased (and family). Testator wanted to provide for sister. Solicitor said that at a certain point, will-maker decided to substitute hospital’s gift with gift to him, and delegate distribution of residual power to him. Said he recommended independent legal advice, but she didn’t want it. Further changes put more and more money into the residue.ISSUE – did the testatrix (testator) KNOW and APPROVE of the contents of the will and codicil? Solicitor req’d to prove this.HELD – There is more than enough doubt about whether she knew and approved of the contents of the will to make it invalid. Stuff passes on intestacy. (I assume)NOTE – if testator wants to give you something as a solicitor, DON’T make the will, get an independent lawyer to do it- no-no under the Code of Professional ConductRussell v Fraser – 1980 BCCAPropounder of will could not prove on BOP that will-maker knew EXTENT (approx. value) of her property. No knowledge/approvalIn this case, it’s a shady bank manager that is trying to take advantage of the testator. Lots of stuff being left to him (residuary was left to him, lots in it). Solicitor did not do a very good checking job (junior associate of associate of shady bank manager).HELD – Fraser (person propounding residuary clause of will) did not meet burden of proof (BOP – Vout v Hay) that knowledge/approval existed. Will-maker did not know nature and extent of her property.Residuary clause STRUCK OUTTestator must have approx. knowledge of gift they are giving away, testator did not know value of residual of Will that she was giving to Fraser (bank manager)Maddess v Estate of Johanne Gidney – 2009 BCCALack of English (or other specific language) skills does not negate knowledge/approvalClaim of “suspicious circumstances” req’ing that knowledge/approval be proved because will-maker did not have a great grasp of English language. Nor was she sophisticated in business.Hoffman v Heinrichs – 2013 MBQBTESTATOR NEED NOT KNOW TOTAL VALUE OF ASSETS FOR KNOWLEDGE/APPROVAL. (but good for lawyer to make inquiries for later questions)UNDUE INFLUENCEwill invalidate will if undue influence found, elusive conceptburden of proof on person alleging undue influence (Vout v Hay)hard to show – must be SUCCESSFUL influence for undue influenceWingrove v Wingrove – 1885 EngTo be undue influence under the law there must be coercion. Power over another person and exercise of that power to achieve a goal.is when will of testator is coerced into doing that which they do not want to domay be physical or psychological pressureBanton v Banton – influence imposed… so great and overpowering that the document reflects the will of the [influencer] and not that of the deceased. Will invalid in such a case.Ravnyshyn v Drys – some amount of influence is permissible so long as it does not amount to UNDUE influence (there is a spectrum…)Craig v Lamoureaux – 1920 PCBurden of proving undue influence is on person who claims it was present. (NOTE – WESA has reversed BOP when power present)Sister of testator claiming husband of testator unduly influenced her, and that he had burden of proving that that wasn’t the case.HELD – no undue influenceexpected that spouses will discuss what is in will, and perhaps some influence (short of undue) will occurWESA (onus shift re undue influence onto person in a position of power over one dependent on them)Undue influence52 In an action, if a person claims that a will or any provision of it resulted fromanother person(a) being in a position where the potential for dependence or domination of the will-maker was present, and(b) using that position to unduly influence the will-maker to make the will or the provision of it that is challenged,and establishes that the other person was in a position where the potential fordependence or domination of the will-maker was present, the party seeking to defend the will or the provision of it that is challenged or to uphold the gift has the onus of establishing that the person in the position where the potential for dependence or domination of the will-maker was present did not exercise undue influence over the will-maker with respect to the will or the provision of it that is challenged.BCLI ReportSome relationships will always give rise to a presumption of undue influenceParent/minor childSolicitor/clientGuardian/wardDoctor or caregiver/patientRelationships involving confidence and relianceSPECIFIC LEGISLATION that prohibits care people from being a beneficiary under a munity Care and Assisted Living Act – s. 18Hospital Act s. 4.1Law Society of British Columbia Code of Professional Conduct – 3.4-37, 3.4-38, 3.4-39Tabbed re random question (ie volunteer=“employee” in CCALA/HA)FRAUDCoffey (Estate) v Coffey – 2014 BCSCFraud must CAUSE the gift/bequest/disposition to be made to render the gift invalid.Daughter had defrauded her mother of millions of $$. Mother didn’t know, provided for daughter in her will. Daughter had attempted to give some $$ back, still owed $1.1M.HELD – Daughter is entitled to the disposition in spite of defrauding mother’s estate. The fraud did not CAUSE the bequest, nor did it coerce the mother into making the bequest. Unrelated fraud… not persuaded that had mother known about fraud that she would have disinherited daughterLawyer’s Duty to Prepare a Will?Hall v Bennett Estate – 2003 Ont CANo liability on lawyer because no retainer. Questionable decision, goes through lawyer’s duties.Guy dying in hospital, asks for lawyer to make will. Wants to make some specific bequests including leaving a store to his friend. Lawyer goes to him, never met before, tries to get instructions, but doesn’t make will because feels testator incapable, would be negligent. Guy dies intestate, potential beneficiary of the store sues lawyer. Lawyer argues no retainer, so no responsibility.HELD – Lawyer not negligent, didn’t have a retainergenerally, if no retainer given, no duty of care to testator or 3rd party beneficiariesgood for lawyer to inquire into capacity, not to make will if don’t think capacity thereprof – true in a technical sense that there was no retainer, but if you spent 12 hours talking to person about will, you are probably retained… MAKE IT CLEAR IMMEDIATELY THAT YOU DON’T ACCEPT RETAINER IF YOU WON’T!New Zealand Public Trustee v Gill – 2001 NZRe duty of lawyer to inquire into issue of capacitya) if duty is positive to ascertain testamentary capacity, solicitor has no special qualifications for that taskb) duty probably arises when reasonably competent solicitor has grounds to think issue exists about testamentary capacity. Who to inquire from? (friends/family/medical advisors)c) What if client doesn’t authorize inquiries? Lawyer probably can’t then.d) time constraints important – should prepare before client’s deathe), f) if capacity doubted, proceed with will unless coherent instructions cannot be obtained, or such mental defection that instruction impossibleg) keep notes on capacity/efforts to determine capacity etc.Feltham v Bouskell – 2013 EWHCCapacity case, strange result.Solicitor had been warned that step-daughter was trying to take advantage of testator, decided on basis of opinions of friends of testator and conversations with the testator that he would not do it because he did not feel testator wanted change in Will.HELD – succeeded in action of negligence against lawyer for not making will as he was instructed to. - seems like a weird result to me…CHAPTER IX – Revocation and RevivalWESAHow to revoke a will55 (1) A will or part of a will is revoked only in one or more of the followingcircumstances:(a) by another will made by the will-maker in accordance with this Act;(b) by a written declaration of the will-maker that revokes all or part of a willmade in accordance with section 37 [how to make a valid will];(c) by the will-maker, or a person in the presence of the will-maker and by the will-maker's direction, burning, tearing or destroying all or part of the will in some manner with the intention of revoking all or part of it;(d) by any other act of the will-maker, or another person in the presence of the will-maker and by the will-maker’s direction, if the court determines under section 58 that:(i) the consequence of the act of the will-maker or the other person isapparent on the face of the will, and(ii) the act was done with the intent of the will-maker to revoke the will in whole or in part.(2) A will is not revoked in whole or in part by presuming an intention to revoke itbecause of a change in circumstances.Revocation of gifts (marriage USED TO revoke will, does in other jurisdictions, not anymore)56 (1) This section is subject to a contrary intention appearing in a will.(2) If a will-maker(a) makes a gift to a person who was or becomes the spouse of the will-maker,(b) appoints as executor or trustee a person who was or becomes the spouse of the will-maker, or(c) confers a general or special power of appointment on a person who was or becomes the spouse of the will-maker,and after the will is made and before the will-maker's death the will-maker and his or her spouse cease to be spouses under section 2 (2) [when a person is a spouse under this Act], the gift, appointment or power of appointment is revoked and the gift must be distributed as if the spouse had died before the will-maker.(3) Despite section 2 (2.1), the operation of subsection (2) of this section is notaffected by a subsequent reconciliation of the will-maker and the spouse.(4) For the purposes of subsection (2), the relevant time for determining whether aperson(a) was the spouse of a will-maker is at the time the will was made, or(b) became the spouse of the will-maker is at any time after the will was made and before the spouses ceased to be spouses under section 2 (2).Court order curing deficiencies (s. 58- SEE PAGE 37)Re Lawyer – 1986 SaskRevocation clause can be deleted if intention of testator as determined by indirect evidence in the will(s)/document(s).Someone made holograph will (duly executed) and then made normal will with revocation clause in it. Someone wants both to be probated with the revocation clause struck out.HELD – no mention of mineral rights (dealt with in first will) in second will, only stuff she specifically wanted to deal with. Documents not contradictory, residue going to intestacy anyway (not dealt with). Satisfied that testatrix did not intend to revoke first will.normally, revocation clause will revoke all previous wills/codicilshowever, if can be shown that testator intended for old will to be valid, that will be respecteddirect evidence from the testator is inadmissible (for example, that testator told someone that he intended to revoke his will), but indirect evidence of intent admissible (evidence of surrounding circumstances – words and expressions used in document – for construction)Re Norris – 1946 BCSCTorn Will will not be revoked if no intention to revoke from testator found.Testator told new wife (not legal wife) where will was, and to fight if problems from old family. When he died, she found will in an envelope torn into 5-6 pieces, but easy to read still. ISSUE – did the act of tearing the will constitute intention to revoke it?HELD – No, Will valid. No intention to revoke.will torn but not completely destroyedfound to be torn unintentionally or in a moment of confusionRe Adams – 1992 EngCan revoke a will by intentionally destroying a will (or material parts of it) with the intent of revoking it. (scribbling/altering/scoring with pen can be enough)Testator asked solicitor to destroy her will (kept in safe-box at firm), they said she should do it. Discussion with other solicitor of new will being made but never happened. Testator died, old will found with heavy scoring/scribbling on it. HELD – material part of the will destroyed and will has been revoked by tesetatorpresumption that where will destroyed/found mutilated in place where testator would naturally put it…. that testator destroyed it, and it was destroyed with the intention of revoking itwhether there has been destruction of material part of will depends on whether original words of material part of will are/are not apparent as will stands at the momentif asked to destroy a will, don’t do it, ask client to do it themselvesMorton v Christian – 2014 BCSCDestroying a copy of the will not found to revoke it. Not enough to say intended to destroy.Lost WillsPolischuk Estate v Perry – 2014 BCSCIf will in testator’s possession not found, law presumes testator destroyed will to revoke it. Presumption can be rebutted with written or oral evidence. Factors to consider below.BOP on person saying will LOST unless mental incapacity of testator, then burden shiftsLots of evidence by solicitors and people who knew the will-maker that will had been made, but it could not be found after she died. Had Alzheimer’s, knew she’d made a will but didn’t know where it was at end of life. Solicitor found unexecuted copy in his files, and notes relating to the making of the will.ISSUE – Was the 2004 will (that solicitor found unexecuted) executed? What is Burden of Proof to Prove testator did not destroy will?HELD – Trial judge found will had been executed. BOP on person saying Will LOST, not destroyed, but the burden shifts when person is mentally incapable/instable. Not enough evidence to prove that she destroyed it with intent to revoke. Will stands.if will known to be in testator’s possession but can’t be found, law presumes testator destroyed will to revoke it – can be rebutted by written or oral evidenceFactors to considerwhether terms of Will reasonablewhether testator had good relationships with beneficiarieswhere personal effects of deceased were destroyed prior to search for Willnature/character of deceased re taking care of personal effects (anal or loose?)any dispositions of property that support/contradict terms of copy sought to be probatedstatements of testator that confirm/contradict terms of distribution set out in willwhether testator of character to store valuable papers, and whether they had safe place to store the paperswhether evidence existed that testator understood consequences of not having a Will, and effects of intestacywhether testator made statements to effect that he/she had a willLefebvre v Major – 1930 SCCTestator held will of high importance, on him at all times. Lost – no evidence that he intended to destroy and daughter could recite it. Recited will valid (presumption rebutted).Lost will. Daughter had read will to father several times before death, could remember it verbatim.ISSUE – execution established?, contents proved? Evidence to rebut presumption of destruction?HELD – presumption of destruction rebutted. Really… no evidence of intent to destroy/revoke, and will able to be recited.- assumed that will was with personal effects that were burned after his death.Sugden v Lord St. Leonards – if will partially able to be reconstructed and presumption of destruction rebutted, give effect to the remembered/reconstructed parts.Yazbek v Yazbek – 2012 NZElectronic will accepted, printed paper will not found but presumption of destruction rebutted because of testator's intentSuicide, made a will on his computer. Printed document could not be found. Court cured will (with equivalent provisions to WESA s. 58).ISSUE - Did deceased revoked will (printed, could not find, presumption of destruction).HELD – Testator saw printed document as equivalent of electronic one, no more. Not destroyed.testator confirmed document on the computer as his will a week before he diedlack of pre-eminence of printed document over electronic documentDependent Relative RevocationIn Re Jones, Decd – 1976 Eng CAMutilated will revoked, condition that new will be made not enough to make mutilated will valid (intent was there to revoke it).Testatrix tore off and mutilated ? of her will, left “Dryslwyn” to her nieces (Pls). ISSUE – intent to create new will? Condition of revocation?HELD – will revoked because of mutilation. Condition of making a new will irrelevant.Re Sorenson: Montreal Trust v Hawley – 1981 BCSCRevocation made on mistaken belief can be taken back if mistake found upon death of testator (and intent was for it to be a bequest).Woman changed will on mistaken thought that someone was dead to leave bequest to someone else. When will-maker died, old beneficiary still living (and many other beneficiaries were dead….).ISSUE – Is intended (before thought dead) beneficiary still entitled to bequest?HELD – intended (before mistake) beneficiary gets bequest. Revocation inoperative (revived)revocation shown to be made upon mistake of fact/law considered by Court not to be intended by testator except conditionally on mistaken assumption being correct, is inoperative.Joint and Mutual Willsstay away from these!Couple/spouses stuff to each other, and then to children equally, per stirpes in case of predeceasing (95% of what people want)Joint will = 1 document, 2 testatorsAnother option – spousal trust surviving spouse gets benefit of assets under their lifetime, but at end distribution terms are governed by first to die’s will. Good in mixed families, keeps control with testator.Option 3 – mutual will –SandersonParallel terms (for spouses), agmt not to revoke, contract fixing terms/overriding testamentary freedomDon’t lose right to make own will, but breach K if do so, advisable to have written K saying it’s all thereUniversity of Manitoba v Sanderson Estate – 1998 BCCAIf you breach terms of mutual will and beneficiary sues, they can get relief through constructive trust.Husband and wife executed mutual wills under seal (“Agmt”). Estate of first dead to be held in trust for other spouses, trustees granted discretion to employ income/capital for benefit of surviving spouse. Residue left to University of Manitoba in trust for bursary. When Mrs. died, Mr. changed his will, breached K. University wants funds declared held on constructive trust for them. Mrs.’ will was never probated (b/c most assets went to Mr. in JT).HELD – Express agreement made that mutual wills would not be revoked/altered during joint lives of parties to agmt and that after death of first, will of survivor would not be altered/revoked. Exchange of promises and Mrs. did not revoke her will, although she could have before death. University gets benefit of constructive trust here.RevivalWESARevival of a will57(1) A will or part of a will that has been revoked is revived only by a will thatshows an intention to give effect to the revoked will or the part that was revoked.(2) Unless a contrary intention appears in the will that revives a will under subsection (1), if a will that has been partly revoked and afterwards wholly revoked is revived, the revival does not extend to the part that was revoked before the revocation of the whole.(3) If a will has been revived by a codicil or has, by a codicil, been re-signed in thepresence of 2 witnesses, the will is deemed to have been made at the time it wasrevived or re-signed.(4) A will or part of a will that has been revoked may not be revived except(a) by an order of the court under section 58 if the court is satisfied that the will-maker intended to give effect to the will or part of the will that was revoked, or(b) in accordance with any other provision of this Act that recognizes the revival of a will.Re McKay – 1953 BCSCMust be clear testamentary intent to revive a revoked will. Second will, revocation clause. Codicil to second will revokes appointment of executor, but refers to first will (in error). ISSUE – does mistake in the codicil revive the first will?HELD – no, mistake does not revive it. Court cured the error… went on as if error had not been made.CHAPTER X – RectificationRectification – fixing a mistake in a will prior to probate, corrects errorvsConstruction – interpret provision in probated will, ambiguous on face of will or arising from administration of the estateAt Common Law:Court of Probate (Eccliastical)Court of Construction (Chancery)Cannot add words to will, only deleteCan add or delete words to give effect to provisionsCan admit extrinsic direct evidence of will-maker’s intentionsCannot admit extrinsic direct evidence of will-maker’s intentionsStatements made by will-maker as to intent are admissibleMust interpret on language in document and surrounding circumstances to infer meaning and will-makers intent…Ct could only rectify Will at knowledge/approval of wording stage of probateCt’s jurisdiction was limited to striking out words that will-maker did not know/approve of at executionWESA – court may now rectify will at probate or construction (after will proved/probated)WESARectification of a will59(1) On application for rectification of a will, the court, sitting as a court ofconstruction or as a court of probate, may order that the will be rectified if the courtdetermines 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).(3) An application for rectification of a will must be made no later than 180 days from the date the representation grant is issued unless the court grants leave to make an application after that date.(4) If the court grants leave to make an application for rectification of a will after 180days from the date the representation grant is issued, a personal representative whodistributes any part of the estate to which entitlement is subsequently affected byrectification is not liable if, in reasonable reliance on the will, the distribution is made(a) after 180 days from the date the representation grant is issued, and(b) before the notice of the application for rectification is delivered to thepersonal representative.(5) Subsection (4) does not affect the right of any person to recover from a beneficiary any part of the estate distributed in the circumstances described in that subsection.Clarke v Brothwood – 2006 EngCourt will rectify clerical/instructions/communication error. Court will avoid intestacy.Will left 1/10 to charity A, 1/10 to charity B, 1/20 each to each of four godsons. 60% on intestacy. Application to rectify will. Argued that solicitor misinterpreted instructions, or failed to realize the testator’s error, or typing error.HELD – will rectified, 1/80th to each godson, so 100% of will is disposed of.Marley v Rawlings – 2012 UKIn UK, if sign spouse’s mirror will by accident, court will rectify as “clerical error”. (Broad meaning of “clerical error”)Husband and wife made mirror wills leaving stuff to each other, and then to Terry. Accidentally signed one another’s wills, execution came to light when second one died. Two sons who would be intestate heirs.ISSUE – Can error in signature be rectified by importing wills into each other?HELD – Problem within “clerical error” in the UK legislation.PRE-WESALaw before WESARectification at probate allowed words deleted but not added if testator knew/approved the languageIn determining knowledge/approval all relevant evidence admissible, including direct evidence of testator’s intentRebuttable presumption that testator knew/approved words in will if testator read will or it was read to her/himIf solicitor misunderstood instructions/used wrong words to carry out testator’s instructions, court would not delete words used to rectify.Re Morris – 1971 UK ProbateCourts of probate and construction work together to fix an error.Testatrix wanted to revoke gifts to employee. Gifts made in clause 3 and 7(iv) of will. Codicil says “I revoke clauses 3 and 7 of my said Will”. CL Remedy at PROBATE – Delete #7 so codicil reads “I revoke clauses 3 and __ of my Will”CL Remedy at CONSTRUCTION – Read in “7(iv)” in interpreting Codicil that appears to have missing clause number between “and” & “of”Rondel v Robinson Estate (again)At construction stage, NO extrinsic evidence allowed to construe intention of testator. (NOTE PRE-WESA!)Same facts as before, lady made will in Spain and then one in Canada, question before was whether second will revoked first one and it was found that it did. Application at construction stage (after probate) to delete revocation clause revoking prior wills.ISSUE – Is the Spanish Will revoked? Or can court rectify revocation clause so that it is deleted?HELD – Spanish Will revoked. At construction stage CANNOT USE EVIDENCE DIRECTLY FROM TESTATOR, nor from others… can only look at will on its face.in spite of evidence that testator did not want to revoke Spanish Will, revocation clause standsBalaz v Balaz – 2009 ONSCModern court acts as BOTH probate and construction. Evidence of testator intent admissible (like WESA s. 59)Will created spousal trust to hold private co shares – tax deferral until surviving spouse’s death. Solicitor messed it up, spousal trust “tainted” and tax advantage gone. Husband wants will “Rectified” by having clauses deleted. No one opposed to application (MNR nor beneficiaries).HELD – rectifiable, error by solicitor.current court sits as single court, not probate/constructionevidence of circumstances around making of will and direct evidence of intent is admissibleMcPeake v Canada (AG) – 2012 BCSC on “Rectification” (inter vivos)equitable remedy, restorative (brings parties to original bargain, not to fix error of judgment), petitioner must establish1) written document does not reflect agreement of parties2) parties’ common intention existed throughoutonus of proof on party seeking rectificationCHAPTER XI – Constructionexercise, after probate, of interpreting will for ambiguitybased on language used in the willcourt may add words or delete to give will meaningEvidentiary RulesDirect evidence of testator’s intent NOT admissible except in limited circumstances whereambiguity relates to identity of beneficiaries (Doctrine of Equivocation); ofidentification of property being gifted (Doctrine of Falsa Demonstratio)Surrounding circumstances evidence is admissible to infer meaning of words used will but not testator’s own statement.WESAConstruction of instruments4 (1) If this Act provides that a provision of this Act is subject to a contraryintention appearing in an instrument, that contrary intention must appear in theinstrument or arise from a necessary implication of the instrument.(2) Extrinsic evidence of testamentary intent, including a statement made by thewill-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 regarding to surrounding circumstances, orextrinsic evidence is expressly permitted by this Act.However! As per s. 59 (see above) – court sitting as court of construction can use extrinsic evidence to carry out testator intentions if: a) error from accidental slip/omission; b) misunderstanding of will-maker’s instructions, or c) failure to carry out will-maker’s instructionsRe Theimer Estate – 2012 BCSCConstrual of the word “money” in the will re assets of testator. Apply broadly if no residuary clause, narrowly if there is one. Interpret ALWAYS TO GIVE EFFECT TO TESTATOR INTENT (over objective meaning of words)“To my spouse… balance of any money I may have…”money means”… Will establishes spousal trust for residue, spouse to benefit from income and 16 other beneficiaries to benefit from capital in trust. Spouse gets insurance policies, RRSPs and matrimonial home outside Will. ISSUE – consideration of the word “money”HELD – see below re what constitutes “money”. construe “money” narrowly if residuary clause, widely if there is noneINCLUDES: GIC, deposits in London (payable before death but not collected)EXCLUDES: mortgage, CPP death benefits (payable after death), income tax refunds, shares in private companies, shareholder’s loan.Talks about “armchair rule”entitles court to look to extrinsic evidence to identify surrounding circumstances known to testator at time will made which may influence testator re disposition.INTENT is most important. Residue should be big to provide for everyone, spouse got lots alreadyRe Lubberts Estate – Wills should be interpreted (different from a contract and laws) to give effect to will-maker’s intended meaning in choice of words used. SUBJECTIVE (not objective) enterprise.Haidl v Sacher – 1980 Sask CAOne approach to interpretation: 1) “ordinary meaning” rule of construction, 2) ordinary meaning in light of surrounding circumstancesTestator left will “share and share alike” to 7 named persons and “the children of Haidl”… (4 of them). Does estate go per capita or per stirpes (see p. 11)? 1/11th share to children of Haidl or 1/32nd share?HELD – it’s to be distributed per stirpes (1/32)Steps to construction approach1) apply ordinary meaning rule of construction first2) look at surrounding circumstances, which refers only to indirect extrinsic evidenceindirect evidence includes character and occupation of testator; amount, extent and condition of assets; number, identity and general relationship of family to testator; testator’s friends and other natural objects of testator’s bounty.prima facie rule that per stirpes distribution preferred over per capitaLaws v Rabbitt – 2006 BCSCOnly proceed with construction process if intention cannot be determined from plain meaning of words used in will. Apply “armchair approach” to construction – look at circumstances that existed & could reasonably be expected to influence will-maker at time to determine intent. (Re Theimer*)Wilson v Shankoff – 2007 BCSC“armchair approach” – Court must put itself in position of testator when made Will, construe language from vantage point to determine intent. Look to extrinsic evidence to ID surrounding circumstances which may reasonably have influenced testator. “Mistaken” Inclusion and OmissionRe Davidson – 1979 EngDirect extrinsic evidence admitted – exception to regular construction – principle of falsa demonstratio (where description of property partially accurate, partially not)Testator gave house “and lot on which it stands” to one daughter, and lot next door (vacant) to other. House edges onto second lot. Sister with house wants both lots.HELD – Judge draws illegal property line to divide Lot 1 and Lot 2 so that house-holder gets house and Lot 1 and other sister gets Lot 2.ppl at CL of falsa demonstration – direct evidence of will-maker’s intention is admissible on construction- adequate and sufficient description with convenient certainty of what was meant to pass, subsequent erroneous addition will not vitiate it.direct evidence of intent admissible to determine proper property to be givenWESA s. 4(b) – extrinsic evidence of intent, including direct evidence of will-maker’s statements is admissible if provision ambiguous (IS WHAT WOULD HAPPEN NOW)Re McEwen Estate – 1967 BCCAStrict approach used – no way to cure intestacy without going beyond clear language in the will, won’t do it.Provisions in will do not contemplate daughter surviving widow, so possible intestacy the way the will is read on it’s face.HELD – Residue falls on intestacy, ends up solely with daughter.there is a presumption against intestacy, but cannot completely re-create the will to cure every intestacy that arises of mistake. Cannot ignore perfectly clear language on will.PropertyWESAProperty that can be gifted by will41 (1) A person may, by will, make a gift of property to which he or she is entitled atlaw or in equity at the time of his or her death, including property acquired before, on or after the date the will is made.(2) Unless a contrary intention appears in a will, when a will refers to property, thewill, with respect to the property, is to be interpreted as if it had been madeimmediately before the death of the will-maker.(3) A gift in a will(a) takes effect according to its terms, and(b) subject to the terms of the gift, gives to the recipient of the gift every legal or equitable interest in the property that the will-maker had the legal capacity to give. Residue of estate44 If a will does not give or otherwise dispose of all of the will-maker’s property, theproperty that is not the subject of a gift or otherwise disposed of in the will(a) must be distributed to the persons who would be entitled if that property were an intestate estate, and(b) if there is no person who would be entitled under paragraph (a), passes to the government and is subject to the Escheat Act.Gift of land contemplating division45 If a gift of land in a will to 2 or more beneficiaries contemplates a physicaldivision of the parcel by subdivision or otherwise, the gift takes effect as a gift to thebeneficiaries as tenants in common in proportion to their interests, unless a contrary intention appears in the will.Property encumbered by security interest47 (1) In this section, “purchase money security interest” means a security interesttaken in land or in tangible personal property that(a) secures credit, including interest charges, provided to the will-maker toacquire, improve or preserve the land or tangible personal property, and(b) is registered under the Land Title Act or the Personal Property Security Act. (2) The interest of a beneficiary in a gift of property encumbered by a purchase money security interest is, as between the different persons claiming through the will-maker, primarily liable to pay the debt secured by the purchase money security interest to the extent that the debt is attributable to the acquisition, improvement or preservation of the property.(3) If a purchase money security interest applies to more than one gift of property in a will, each property is liable for payment of the purchase money security interestproportionally, to the extent that the debt is attributable to the acquisition,improvement or preservation of each property.(4) Subsections (2) and (3) are subject to a contrary intention appearing in the will, but a contrary intention is not signified by(a) a general direction in the will for the payment of debts, or(b) a charge of debts on the will-maker’s estate,unless the will-maker further signifies that intention by words expressly or bynecessary implication referring to all or some part of the debt secured by the purchase money security interest.(5) Nothing in this section affects the right of a secured party to obtain payment orsatisfaction either out of other property of the deceased person or otherwise.Re Meier (Estate of) – 2004 ABQBLand cannot be willed that one does not own.Testator gave brother farmland that was owned by co, testator was sole SH and director, rather than shares of the co. Evidence that testator treated co property like his own. HELD – Testator could not gift what he did not own, farmland owned by company.Helen says incompetent lawyer (see earlier – Lawyer’s Duties), should have done title search, asked testator more questions about ownership of propertyNo case decided on s. 59 rectification yetIreland v Retallack – 2011 NSWCan gift property not owned if intent very obvious and it’s easy to make it all happen.Testator owned 99% of shares of co, daughter owned other share. Testator gave daughter property that was owned by company.HELD – gift valid as executors controlled company, had the ability to convey the property to the daughter, bound by will to do so.PeopleAmyot v Dwarris – 1904 – PCEldest son means first born son.Gift to “eldest son of my sister…and his heirs”. Sister had 2 sons, but oldest had died. Younger, surviving son claimed gift over claims of brother’s estate. HELD – “eldest” means first child, even if only two children and first born is dead at date of death of testator. Gift lapsed, passed on intestacy.Specific Descriptions“Child” – see WESA Re Simpson Estate – 1969 BC“Son” can mean non-natural (but treated as natural) son if “armchair method” brings about that result (intent of testator)Left will to “my 6 children”. 5 natural children, and Robert, son of ex-wife, had been treated as son.HELD – based on interpretation of surrounding circumstances of testator’s family to determine testator’s intent, Robert to equally take.“Heir, next of kin, issue”Meaning of particular words in a will42 (1) This section is subject to a contrary intention appearing in a will.(2) A gift of property in a will to persons described as “heir” or “next of kin” of thewill-maker or of another person takes effect as if it had been made to the personsamong whom and in the shares in which the estate of the will-maker or other personwould have been divisible if the will-maker or other person had died without a will. (subject to contrary intention, gift of property in will to person described as “heir” or “next of kin” takes effect as if made to intestate heir, based on rules of intestacy)(3) In a gift of property in a will(a) the words(i) “die without issue”,(ii) “die without leaving issue”, or(iii) “have no issue”, or(b) other words importing either no descendants or no descendants in a person’slifetime or at the time of the will-maker’s death or a complete absence of descendants, are deemed to refer to no descendants or no descendants in the lifetime or at the time of death of that person and not to a complete absence of descendants of that person.(4) A gift of property to a class of persons that(a) is described as a will-maker’s “issue” or “descendants” or by a similar word, and(b) encompasses more than one generation of beneficiaries, must be distributed as if it were part of an intestate estate to be distributed to descendants. (gifts to person’s “issue” to be distributed per stirpes, not per capita)“Per-Stirpes”Re Karkalatos Estate – 1962 SCC“per stirpes in equal shares” is not a thing, equal shares connotes “per capita”, creates confusion…Guy had wife, 2 daughters, some grandchildren. Said “…distribute approx. ? estate to among and between my grandchildren, per stirpes, in equal shares – pay net profits of remainder of estate annually to surviving daughter until death.ISSUE – whether testator intended to designate grandchildren as “stirpes” or “stokes” so that each of the 4 of them would take equal share of portion of estate available for distribution by death of Evaggelia Gettas, or intended “stocks” repped by daughters so ? portion of portion of estate would go to infant appellant. (WHERE DOES THE PER STIRPES START? CHILDREN OR GRANDCHILDREN?)HELD – “per stirpes” in this case starts at daughters, so the one grand-daughter (daughter of dead daughter) gets half of amount distributed for these gifts.CLASS GIFTSgift to class of persons included under general description, bearing certain relation to testator or another personif class gift, if one+ of persons in class dies in testator’s lifetime, survivors in class takes gift equally amongst them (per capita distribution) – JOINT TENANCY in gifteg “to my grandchildren” – don’t know HOW MANY grandchildren will be born at date of death.Shorock Estate v ShorrockMilthorp v Milthorp – 2000 BCSC (test for whether class gift or not, and consequences)Lapsed gift to individual (failed one) passes on intestacy. Failed gift to member of a class is distributed among remaining members of the class. Class gift can be implied, but must be clear intent of testator. (was T looking to body as a whole rather than to the members constituting the body as individuals)Woman died, will says “to my daughter (named), my son (named) and to my husband’s children (each named) in equal shares per stirpes”. ISSUE – Does Richard’s share (deceased son of husband with no issue) fall into anf form part of residue to be divided among persons entitled to receive residue? Or gift specifically to him that fails and goes to intestacy?HELD – No class gift, Richard’s gift fails, passes on intestacy.if gift to individual fails, as general rule gift lapses and devolves on intestacyif gift to member of class fails, gift does not lapse, is shared by remaining members of class who survive the testatrixcan make it a class gift if that is obviously intent of the testator, but testator here said “per stirpes” (intent more towards to each person and their issue…)Re Hutton – 1983 O HCClass created, widow and grandchildren of potential (deceased) beneficiary do not take, class does“…in equal shares among my brothers and sisters, (then names each). If dead and leave issue, their child/ren shall take share to which parent, if living, would have taken, equally by rep”. When died, 2 sisters and children of 1 brother alive, widow and grandchildren alive from dead brother. Executed codicils after death of people naming new executor, affirmed rest of will.ISSUE – whether the ? share left for dead brother goes to rest of class or passes on intestacyHELD – Created a class (the named persons), stuff goes only to members of the classknew brother dead when executed codicil changing exec, republished will. Did not alter will to regardlessCLASS CLOSINGGeneral Rule: members of the class are determined prima facie, at will-maker’s deathException to Rule: Where conditional gift to class with legacy divisible at date of death of person, class is ascertained when first member in that class becomes entitled to pmt of his shareClass Closing Rules1) class closes at earliest opportunity, namely upon entitlement of member of class to call on the gift2) Rules apply to capital, probably not to gifts of income; 3) subject to contrary intention in document creating the gift4) When first member in class entitled to their share, subsequent members coming into existence thereafter are excluded from taking (VESTS ASAP!)all of above – Shorrock Estate v ShorrockIn Re Bleckley – 1951 Eng CAWhen class gift payable on attaining age or married, distribution when first person eligible to receive share, class closed after that (all in class will take share at that point).Income from $10k to G, wife of testator’s son, H, for her life while son’s wife or widow. Capital of fund for son’s children who attain 21 years in equal shares as tenants in common. Son has 2 children, 1 dies, daughter reaches 21, wants $$. G divorced H, still alive, could have more children, remarried but none born before daughter reached 21 years.ISSUE – Does H’s daughter take gift at age 21?HELD - …Rule of convenience: where gift of aggregate fund to children in a class, and share of each made payable on attaining given age or married, period of distribution is the time when 1st child becomes entitled to receive his share and children coming into existence after that period are excluded.Don’t want people to have to wait too long to enjoy giftsShorrock Estate v Shorrock – 1996 Man QB4 examples of operation of class closing rulesVested Gift, No Prior Interest“To all of the children of A”At date of death of testator, A alive and has child. Child could call for possession and close class to exclusion of further children. A may have. To exclude rule, Will should say “to the children of A whether born before or after the date of my death”At date of death of testator, A is alive but has no children. Outcome 1: class is closed as soon as A has first childOutcome 2 (likely): All of A’s future born children will takeVested Gift, Prior Interest“To B for life, remainder to children of A”if child of A alive at testator’s death, class will consist of that child and any children born during B’s lifeif no children of A alive at testator’s death, class will consist of children born during B’s life If no children of A alive at testator’s death, and none born during life estate to B, law is probably that all children born to A after B’s death will takeContingent Gift, No Prior Interest“To the children of A if they reach 21 years of agetestator’s death, A has child/ren over 21, none younger. Class will close in favour of existing child/rentestator’s death, A has one/some children over 21, one/some younger. Class will close in favour of existing children.Distribution immediately made to children 21+, those under 21 take only if reach 21 yearsIf don’t reach, their share shared by other members of classA’s children born between testator’s death and last of A’s children to reach 21 years do NOT take as class is closed on testator’s deathTestator’s death, A has children all of whom are UNDER 21 years. Class remains open until 1 child reaches 21, then closes. Any child born to A in that period is in class, will take provided reaches 21 yearsAt testator’s death, A has no children. Class open in favour of all children born before any child of A born after testator’s death reaches 21 years. Then class closes, existing children will take, provided they reach 21Testator’s death, A has no children. Then has child reaches 21, no other children in meantime. A’s only child can close class, take gift to exclusion of other of A’s children who are born thereafterContingent Gift, No Prior Interest“To B for life, remainder to those of A’s children who reach age of 21”Earliest date for closing of class is death of B, earliest date on which distribution could be made to members of class of remainder beneficiariesIf child of A reaches 21 while B alive, class closes at B’s death in favour of all children who werea) alive at date of testator’s death/born during B’s life estateb) who have reached/will reach 21 yearsif child reaches 21 during B’s life estate and then dies, child’s interest has vested, share paid to estate after death of BIf there are children of A alive at B’s death, but none reached 21, class closes upon first child of A to reach 21. Children born within that period in class if reach 21. Children born after first child of A to reach 21 outside of class, do no takeNo children of A at date of B’s death or A has children, but died before reaching 21 years, class will now close when any future child born to A after B’s death reaches 21 years.CHAPTER XII – Republication, Lapse and Ademptionconsequences of events that generally take place after making of will but before death of will-maker, though may take place before will madeREPUBLICATIONcts do not have to apply unless consistent with will-maker’s intent (armchair principle); talking about a validly executed will being updated with a codicil – NOT incorporation by referenceWESARevival of Will57(3) If will has been revived by codicil or has, by a codicil, been re-signed in the presence of 2 witnesses, the will is deemed to have been made at the time it was revived or re-signed.Re Hardyman – 1925 EngRepublication not to be automatically applied. Enough evidence of intent (somehow) here that “wife” = “any wife” of beneficiary.Left $$ to cousin Colonel William, his children and his wife. Widowed William re-married after testator died (before will distributed), will-maker made codicil knowing wife 1 dead. ISSUE: Does second wife take under will?HELD – Will-maker clearly aware first wife dead, didn’t change provisions re William. 2nd wife takes.republication not to be automatically appliedwill not substitute Christian name for term “wife”must have been will-maker’s intent for any wife of Colonel William to take.NOTE some artificiality in some of these cases. No actual discussion of “wife” here, ct trying to do the right thing. Think about flexibility/fluidity of republication depending on circumstancesRe Reeves – 1928 EngGave daughter interest in PRESENT lease of property, was to expire 1924, will-maker executed new lease on property 1923. Confirmed stuff in all other respects when made codicil in 1926. Died. ISSUE – do words “present lease”, unamended by codicils, refer to new lease in 1923, or restricted to initial 1921 lease?HELD – Yes, will was republished when in 1926, so “present lease” referred to newest one, daughter takes.NOTE – lots of evidence of bad drafting. Good drafting avoids all of these problemsRe Health’s Will’s Trusts – 1949 EngRepublication will not invalidate a provision that was valid in original will (leg change would have overridden provision in will, codicils done after it, provision not overridden)Residuary fund conveyed to trustees upon trust, 2/3 to pay income to daughter during her life “without power of anticipation during coverture”, after her death to hold capital/income for her children in such shares as SHE should appoint. Four codicils executed, none referred to restraint/affected interest attached, all confirmed will. Legislative change overrode restraint provision before last codicil executed. ISSUE – whether execution of codicils operated to invalidate the restraint on anticipation imposed by will because of the legislative overriding effect.HELD – NO – Testator wanted provision in there, it was valid when will initially made, republication will not invalidate that which was originally valid beyond intent of testator.if you use republication, will made 2 years after legislative change, would have defeated the provisionrepublication cannot invalidate that which was originally valid. Will-maker clearly intended restraint provision to apply (didn’t change it in later codicils)Re Estate of Ruth Smith: Smith v Rotstein – 2010 ONSCRepublication while lacking capacity does not invalidate will (look at whole picture).Will-maker left will + 4 codicils. Validity of will attacked on various grounds, court admitted will and first 2 codicils to probate (left 3 and 4 to deal with later if necessary). Order that no genuine issue triable re will and codicil 1 + 2. Argument that later codicils, executed while incapable, invalidated everything because of republication.ISSUE – does executing a codicil while incapable republish will and invalidate everything?HELD – No, great harm to will-maker. Don’t have to look backwards to last document, you can look at everything as a whole situation.A will is not altered by a codicil any further than is necessary to give effect to the intentions of the testator shown by the will and codicil taken togetherEffect of a confirmation “bringing dispositions of will down to date of codicil” is without prejudice to the original effect of will and intermediate codicilsNOTESnot great to be asked to make change to will you didn’t draft. Looooots of room for solicitor responsibility they don’t want to pay a lot because quick change, but you don’t know enough to be surealways advisable to make whole new willLAPSEunforgiving rule of law, cannot leave property to a deceased personanti-lapse provision for direct family, but otherwise gift falls to intestacy if you don’t have an alternate beneficiaryResidue of estate44 If a will does not give or otherwise dispose of all of the will-maker’s property, theproperty that is not the subject of a gift or otherwise disposed of in the will(a) must be distributed to the persons who would be entitled if that property werean intestate estate, and(b) if there is no person who would be entitled under paragraph (a), passes to thegovernment and is subject to the Escheat Act.When gifts cannot take effect (priority list)46 (1) If a gift in a will cannot take effect for any reason, including because abeneficiary dies before the will-maker, the property that is the subject of the gift must,subject to a contrary intention appearing in the will(this is a big out! – Re Wudel), be distributed according to thefollowing priorities:(a) to the alternative beneficiary of the gift, if any, named or described by thewill-maker, whether the gift fails for a reason specifically contemplated by thewill-maker or for any other reason; (good will has alternates and anti-lapse)(b) if the beneficiary was the brother, sister or a descendant of the will-maker, totheir descendants, determined at the date of the will-maker’s death, inaccordance with section 42(4) [meaning of particular words in a will]; (anti-lapse provision for family members – 46(1)(b))(c) to the surviving residuary beneficiaries, if any, named in the will, inproportion to their interests. (NOTE THIS ONE – will not go to intestacy if other residuary beneficiaries (opposite of Re Stuart Estate)(2) If a gift cannot take effect because a beneficiary dies before the will-maker,subsection (1) applies whether the beneficiary’s death occurs before or after the will ismade.Re Stuart Estate – 1964 BCSCResidual “equally divided among the following persons named and listed…” with 13 person list. One died before testator.ISSUE – where does her share go?HELD – passed on intestacy, not a class gift (everyone named)UNDER WESA – look to s. 46(1)(c) – would have gone to other 12 beneficiaries, equallyRe Mackie – authority that lapse will not apply if disposition in will made pursuant to a moral obligation that rested on maker of the will. If OWED something to beneficiary who pre-deceased (or something), gift may go to beneficiary’s estateRe Wudel – 1982 Alta QBContrary intent of will-maker trumps legislation re distribution of will.d) divide furniture equally among children alive at death, e) divide residue – i) 8% equally among grandchildren at death, ii) 28% divided equally among sons, iii) 64% divided equally among daughters. If anyone dies, direct that portion go to equally to their children. If no children, their share equally to her children alive at death. Survived by 4 sons, 3 daughters, predeceased by one daughter who had 4 children.ISSUE – Does Alta’s anti-lapse provision preserve Marion’s residue to be distributed to her children, or did contrary intention appear in will?HELD – Anti-lapse provision did not apply, contrary intent of will-maker trumps.will-maker wanted the share to go to other children equally, not to Marion’s children per-stirpesdid not accept that it was a class gift specifically anticipated by the legislation, went with “armchair principle”Re: The Estate of Stella West, Deceased – 1999 BCContrary intent found – “equal shares per capital for sole use absolutely” = right of survivorshipLeft $8000 trusts for each three grandchildren (2 children of deceased daughter, 1 child of alive son). Residue: “balance…. To my daughter and my son in equal shares per capita for their sole use and benefit absolutely”. Dispute bw son and children of dead daughter over who gets second half of residue.HELD – “in equal shares per capita for their sole use and benefit absolutely” means residue to two children with right of survivorshipanti-lapse provision in BC Act would mean that, unless contrary intent by will-maker, gift does not lapse and goes to children of dead daughterBUT, look to whole will to determine intent of testatrix, see if there is contrary intent“per capita” = contrary intent to legislated per stirpesNOTE LAPSES IN CLASS GIFTS, FURTHER BACKAnti-Lapse Provisions in a Will (consider 46(1)(a) WESA)Re Davison – 1979 NSBroad language in will, can be interpreted to be anti-lapse against lapse of gift to deceased’s children’s children. Specific language may have caused lapse.Testator had 14 children, 4 had predeceased when will executed, 2 of whom had children. Will to be divided among children, children of deceased children (grandchildren) to take by right of representation.ISSUE – divided by 10 (surviving children) or 12 (surviving children and 2 shares to be shared by children of deceased ones.HELD – divide 12 ways, to children of deceased children by representationone interpretation is that children had to survive testator to qualify for participation; other is that “my children” means all children, alive and deceased (to include grandchildren)decides that IN SPITE OF WORDS IN WILL, goes equally to all children alive and by representation to children of deceased children.Re Cousen’s Will Trusts – 1937 Eng Anti-lapse provision can be insufficient if all die before testator.Left share of residue to Ms. Alcock (sister) and if she died “held in trust for…her personal reps as part of her personal estate” (anti-lapse provision). She predeceased, her husband (her personal rep) predeceased, her daughter survived. Daughter says gift should pass to Alcock’s estate, pass to William’s estate. Reps of Cousen say gift to personal rep lapsed because Alcock AND her husband (personal rep) predeceased testatorISSUE – where does the gift go? Lapse?HELD – The anti-lapse provision did not go far enough, anti-lapse beneficiary lapsed (due to death).Re Greenwood – 1912 EngInterpreted will so that anti-lapse “to A or their heirs if A predeceases” held fine.Left stuff to family members, then provided series of anti-lapse provisions. Says “if they die before me, make as if they died right after me so it goes to their heirs” (essentially)HELD – Lapse is a rule of law, cannot just skirt it. But CAN say “to A and A’s personal representatives” which could include A’s heirs…. It’s fine.ADEMPTIONwhen property gifted by will-maker is no longer owned by will-maker at time of deathChurch v Hill – 1923 SCCSpecific property disposed of in a will that will-maker does not own at death is ADEEMED (cannot pass).Dura lex sed lex – the law is harsh but it is the law (this case has harsh result)4 children, leaves specific piece of real property to daughter, leaves balance to other children equally. Enters sale agreement for the property, paid in installments, installments not finished when he died (owed to estate). Doesn’t change will.ISSUE – What happens with specific gift of property that he no longer owns but is getting payments for?HELD – Gift adeemed. Will-maker no longer owned will on death, and it has changed in character so daughter not entitled to remaining payments coming in for the house.NOTE – draft better! – “I leave the property or the proceeds from any sale of the property to my daughter”. Danger of very specific items in a will! (except won’t be abated…)- emphasis the residue clause, easier to split upTrebett v Arlotti-Wood – 2004 BCCABank account moved around, monies “intermingled”, gift of specific bank account adeemed.Gave assets of particular accounts in CIBC, transferred accts after making will, including one referenced in will to another bank account.ISSUE – Had the account ADEEMED?HELD – Money intermingled with other monies, original gift no longer exists. AdeemedSPECIFIC legacy – I give to Harold my gold watch (possible to adeem)GENERAL legacy – I give to Harold a gold watch (residual funds can be used to buy Harold a gold watch)DEMONSTRABLE legacy (hybrid) – general legacy by nature (usually pecuniary) directed to be satisfied primarily (but not solely) out of a specified fund or a specified part of testator’s property.“tracing” – brief discussion, accounting exercise to trace asset back to source (what it was)Re Clement Estate – 2007 NSSCGift of cottage crystallized when testator died BEFORE cottage completely burned, so proceeds to beneficiary.Left cottage to daughter, it burned down with him in it. No more cottage, but there were insurance proceeds payable to the estate. HELD – Insurance proceeds payable to daughter, gift crystallized DURING burning when will-maker died, so daughter entitled to proceeds.–if strict attention paid to Church v Hill, she would not have gotten it, fancy construingRe Sweeting – 1988 EngSpecific gift on of property that testator gave someone else an option to purchase is beneficiaries until option declined; if option exercised, beneficiary gets nothing, proceeds go to residuary of estate (Lawes v Bennet)Extension on agreement for sale case (Church v Hill) Left property to daughter, but it was subject to an option to purchase. HELD – Follows Lawes v Bennet, sale was eventually completed, so daughter doesn’t get the property. Adeemed.if option not exercised, daughter gets gift. Gets it on will-maker’s death and continues to holdIf option exercised after will-maker’s death, Lawes v Bennet, the property has been changed into personal property, and is therefore adeemed. Flow of money goes to testator’s estate (not specific beneficiary)IF there had been no agreement to sell, and executors had gone out and sold her gift (their right to if they have to for taxes), she would get balance of proceeds of saleRe Dearden Estate – 1987 Man QBDeal for potentially adeemed gift must CLOSE for gift to be adeemed.Deal to be made on asset that was to be otherwise disposed of by will. Deal did not close.HELD – Asset still in will, regardless of later intent of the testator. No ademption.Re Pyle – 1895 EngClear intent of testator, even if not in will, can override ademption.Another case of court discerning contrary intent by actions of testator. Will-maker had devised specific real property, and later made codicil confirming will, grenated lease of real property with option to purchase. HELD – because two things happened on the say day, intention overrode the ademption.NEW PROVISION – if property disposed of under will disposed of by nomine (can be POA, committee, representative), beneficiary of gift entitled to receive amount equivalent to proceeds of the gift as if will had contained specific gift to beneficiary of that amount subject to 2 limitationsRelief from disposition of property48 (1) In this section, "proceeds" means the proceeds at the time of disposition, andincludes(a) non-monetary consideration, and(b) in the case of a gift, the fair market value of the gift.(2) If property that is the subject of a gift in a will is disposed of by a nominee thebeneficiary of the gift is entitled to receive from the will-maker's estate an amountequivalent to the proceeds of the gift as if the will had contained a specific gift to thebeneficiary of that amount.(3) Subsection (2) does not apply if(a) the disposition is made to carry out instructions given by the will-maker at atime when the will-maker was legally capable of giving instructions, ora contrary intention appears in the will.s. 1“nominee” – includes committee under PPA, attorney under EPOA, and a representative in an RACHAPTER XV: Claims Against Estates (Wills Variation)there has always been socially remedial legislation that says you can’t just cut dependents out of your will and leave them in the hands of the state. BC goes really far to provide for dependents.Division 6 - Variation of WillsMaintenance from estate60 Despite any law or enactment to the contrary, if a will-maker dies leaving a willthat does not, in the court's opinion, make adequate provision for the propermaintenance and support of the will-maker's spouse or children, the court may, in anaction by or on behalf of the spouse or children, order that the provision that it thinksadequate, just and equitable in the circumstances be made out of the will-maker'sestate for the spouse or children.NOTE – under this section it is “spouse” or “child” that can make a claim to vary the will, definitions in s. 2 “spouse” – married, CL, same or opposite sex; “child” – biological or adopted, minor or adult; financially dependent or independentTime limit and service61 (1) An action commenced by a person claiming the benefit of this Division mustnot be heard by the court unless(a) the action is commenced within 180 days from the date the representationgrant is issued in British Columbia,(b) a copy of the writ of summons has been served on the executor of the will no later than 30 days after the expiry of the 180 day period referred to in paragraph (a) unless the court, before or after the expiration of the 30 days, extends the time for service, and(c) if there are minor children of the will-maker, or if the spouse or a child of the will-maker is mentally incapable, a copy of the writ of summons has been served on the Public Guardian and Trustee. (Healthfield) (2) An action in respect of the will of a Nisga'a citizen or a treaty first nation membermust not be heard by the court at the instance of a party claiming the benefit of thisDivision unless a copy of the writ of summons has been served on the Nisga'a LisimsGovernment or the treaty first nation, as applicable.(3) If the Public Guardian and Trustee is served with a copy of the writ of summonsunder subsection (1), the Public Guardian and Trustee is entitled to appear, to be heardand to any costs that the court orders. (4) If an action has been commenced on behalf of a person under this Division, it maybe treated by the court as, and so far as regards the question of limitation isconclusively deemed to be, an action on behalf of all persons who might apply.(5) Within 10 days from the date of the issue of the writ of summons, a plaintiff in anaction under this Division may register, in the land title office in which the title to landsought to be affected is registered, a certificate of pending litigation against the land ina form approved under the Land Title Act.Evidence62 (1) In an action under section 60, the court may accept the evidence it considersproper respecting the will-maker's reasons, so far as may be determined,(a) for making the gifts made in the will, or(b) for not making adequate provision for the will-maker's spouse or children,including any written statement signed by the will-maker.(2) In estimating the weight to be given to a statement referred to in subsection (1), thecourt must have regard to all the circumstances from which an inference mayreasonably be drawn about the accuracy or otherwise of the statement.Court may make order subject to conditions63 The court may(a) attach to an order under this Division any conditions that it thinksappropriate, or(b) refuse to make an order in favour of a person whose character or conduct, inthe court's opinion, disentitles the person to the benefit of an order under thisDivision.Lump sum or periodic payments, transfer of property or trust64 In making an order under this Division the court may, if it thinks it is appropriate,order that(a) the provision for the will-maker's spouse or children is to consist of a lumpsum, a periodic or other payment or a transfer of property, or(b) a trust be created in favour of the will-maker's spouse or children.Payments fall rateably on estate65 (1) Unless the court otherwise determines, the incidence of the payments orderedby the court under this Division falls rateably on the will-maker's estate.(2) If the authority of the court does not extend or cannot, directly or indirectly, bemade to extend to the whole estate, subsection (1) applies to as much of the estate asis located in British Columbia.only stuff in BC is subject to BC Wills Variation claim, real estate in Hong Kong no goPower to suspend administration and exempt from order66 The court may, subject to any terms or conditions the court considers appropriate,make one or both of the following orders:(a) suspending, in whole or in part, the administration of the will-maker's estate;(b) exempting any part of the will-maker's estate from the effect of an orderunder section 60 [maintenance from estate].Power of court to allow commutation67 (1) The court may make an order that a periodic payment or lump sum is to bepaid by a beneficiary to represent, or in commutation of, the proportion of the sumordered to be paid that falls on the part of the estate in which the beneficiary isinterested, and that the part is released from further liability.(2) In making an order under subsection (1), the court may give directions concerningthe security and disposition of the periodic payment or lump sum under subsection(1).Effect of order68 On an order being made under this Division, the part of the estate comprised in itor affected by it must be held subject to the provisions of the order, but the order doesnot bind land unless the order is registered, in the land title office in which the title tothe land is registered, as a charge against the land affected.Registration of title69 (1) Title to property distributed by gift in a will to a beneficiary must not beregistered in a land title office except after the time set out in section 155 [distributionof estate] unless(a) the beneficiaries entitled under the will consent to the registration, or(b) a court approves the registration.(2) A registration under subsection (1) is subject to the liability of being subject to anorder under this Division.Mortgage in anticipation of order invalid70 (1) A person for whom provision is made under this Division must not anticipatethat provision.(2) A mortgage, charge or assignment of any kind of or over a provision referred to insubsection (1) is of no effect if it is made before the order of the court is made.(3) A mortgage, charge or assignment made after an order of the court referred to insubsection (2) is made is of no effect unless it is made with the court's permission.Court may cancel or vary order71 If the court has made an order under section 60 [maintenance from estate], thecourt may(a) inquire whether, at any subsequent date, changes in the circumstances of theperson in whose favour the order was made have resulted, in whole or in part, inthe person's entitlement to adequate provision separate from the order, and(b) cancel, vary or suspend its order, or make another order. Appeal to Court of Appeal72 A person who considers himself or herself prejudicially affected by an order underthis Division may appeal to the Court of Appeal.Who May Apply – see s. 60McCrea v Barrett – 2004 BCSCStep-child is not “child” under Act, cannot claim for Wills Variation. (only adopted/natural children)Section 2 “child” not discrimination under s. 15 Charter.Stepchild claiming under s. 15(1) Charter that he should be able to claim for a variation under step-father’s will.HELD – nope, step-child is not a child under WESAIt was in fact considered by the Legislature before creating new legislation, not allowed“while initial assessment of the Act’s definition may find it discriminatory, not based upon a listed or analogous groundTataryn v Tataryn – 1994 SCCLEGAL obligations, then MORAL obligations of testator to consider. (minor children/spouses owed both, adult children only moral unless helped amass estate)Independent adult child can make claim.43 year marriage, both frugal and built up finances together, all in his name. 2 sons, father disliked one. On death, father’s will gave trust to mother to be distributed by liked son, disinherited other son. Mother brought claim to have assets in her own right and wanted both sons to benefit from will.HELDtwo interests protected by Act: adequate, just and equitable provision for spouses/children of testators, and autonomy of testatornot necessary to establish financial need to secure award – discretionary exercise by judge after weighing various factors (“adequate, just and equitable” presumes more than just “adequate”2 forms of obligation that must be addressLEGAL obligations of testator (legal rights against testator re FLA, Divorce Act etc. Spouse should not be worse off by having stayed in marriage with testator than by leaving). Also unjust enrichment/other CL claimsMORAL obligations of testator (based on what “judicious spouse” would provide for spouse/child under “contemporary societal standards”. May increase beyond legal obligation or be foundation for award on its own. Minor children owed bothNOTE – independent adult children can make claim – Walker v McDermottBridger v Bridger Estate – 2006 BCCACompeting moral claims. Moral obligation owed to independent children does NOT trump moral obligation owed to spouse to cared for dying spouse. Moral obligation may raise entitlement of spouse over what is owed by legal obligation.Couple with some marital problems, wife waitress, husband welder. Both had significant amounts of money when he died (she had some properties, he had $300K). He had 2 children from previous marriage. Did some asset-selling while Mr. Bridger alive and she had EPOA, ended up with some of his assets going to her through JT. $$ all went to his daughters, wife sought to vary will in her favour. Got it.ISSUES – appellants say TJ failed to consider evidence of couple’s separation of financial affairs during marriage and intentions to leave estates to respective children. Means $$ that would go to them will end up with Mrs. Bridger’s children.HELD – award made in Mrs. Bridger’s favourmoral claims of independent adults (albeit ones treated parsimoniously by father during his lifetime) do not trump moral claims of spouse who cared for dying spouse in final years (MORAL OBLIGATION OWED TO BOTH)irrelevant that $$ will end up with Mrs. Bridger’s childrenSaugestad v Saugestad – 2008 BCCALegal obligation to spouse – look to FLA div of assets. Moral obligation dispute bw spouse and first marriage children – consider circumstances.Spouse (2nd wife) left $29,000 and life interest in ? of condo. She says inadequate ro fulfill testator’s legal/moral duties to her. Rest of will left to his sons from first marriage. He encouraged her to retire early, said they would live on his assets. She did however gain assets during the marriage.HELDAssessment of LEGAL OBLIGATION done as division of property exercise under FLA (then FRA), taking into account transfer of lots of assets to wife during life.After that, moral obligation owed to sons ranked higher than that of her.- First wife of husband had contributed to his estate, giving sons high claim, son’s had legitimate expectation that they would receive bulk of estate due to support from testatorALSO, RE TESTAMENTARY AUTONOMY, what the testator did was NOT unreasonableNOTE – CONTRAST WITH BRIDGER – sons had legit expectation while daughters did not really, in both spouse got some and others got some, difference was in value of moral obligation.NOTES FLA – no more difference bw married and CL spouses, property division all the sameMarriage agreements and waiver of wills variation rights – no can do, cannot oust Court’s jurisdiction under s. 60. They’ll probably consider it though.ADULT CHILDRENWaldman v Blumes – 2009 BCSCDiscussion of moral claim of adult children, see below.Issue between adult children of first marriage and claim of wife (33 yrs younger) and child of second marriage. Wife of second marriage left job as lawyer (or took less hours) to have child with him at his request. All left to her. Estate of 1st wife left to testator (not their children….issue)POSITION OF 1ST MARRIAGE CHILDREN – he did not take moral obligation to them into account, especially the one with financial needPOSITION OF 2ND MARRIAGE CHILDREN – some should go straight to them, not only to mother, legal obligation as they are dependent childrenPOSITION OF ESTHER – will should not be varied, she gave up work opportunities to have children with testator, legal obligation re agreement with herHELD – estate is big, give adult children $75,000 each, adjourn claims of dependent children to settle with motherLegal obligation – give spouse all assets for having children and not working full-time as per agreementMoral obligation – Esther cared for husband at home before deathNOTES from casemoral claim of independent adult children more tenuous than moral claim of spouses and dependent adult children, but size of state may permit all to be compensatedmoral duty for adult children: - disability on part of child, - assured expectation on part of adult child, or implied expectation from abundance of estate or adult child’s treatment during testator’s life, - present financial circumstances of the child, probable future difficulties of child- consideration of need still relevantClucas v Royal Trust Corp of Canada – Common Law Principles of Wills Variationmain aim is adequate, just and equitable provision for spouses and children of testators (objective test), with reference to contemporary community standardsother protected interest is testamentary autonomy“adequate” and “proper” can mean two things depending on size of the estate. Small gift may be adequate but not proper if estate is largeFIRST, court must consider LEGAL obligations to spouse/children, and SECOND, consider MORAL obligations to spouse/childrenMoral claim of adult independent children more tenuous than moral claim of spouses or dependent adult children, but if size of estate permits, and in absence of circumstances negating existence of obligation, some provision for adult independent children should be madeExamples of circumstances bringing for moral duty re adult children (SEE ABOVE)Circumstances that negate moral obligation of testator are “valid and rational” reasons justifying inheritance (see Tataryn). Must be based on true facts and logically connected to act of disinheritanceNeeds/maintenance test no longer sole factor, but consideration of needs still relevantMcBride v Voth – 2010 BCSCMcBride died and bulk of her estate was home, which she directed one daughter could live in “so long as she wishes during her lifetime” after which it was to be sold and distributed amongst her three children. ISSUE – other siblings have no idea when they would get their share, as Margot wanted to live there indefinitely. They sought wills variationHELD – 3 year occupation for Margot, net sale proceeds to be divided unequally amongst three children (most to Margot, vary will only to extent req’d to provide justice to other children)6 considerations that inform existence of strength of testator’s moral duty to independent children1) Contribution and Expectation (maybe unjust enrichment, expectation where actions of testator created bona fide expectation of benefit)2) Misconduct/poor character (refuse variation to person whose conduct disentitles them (s. 6(b))3) Estrangement/Neglect (if long period of estrangement, hard to get variation in your favour)4) Gifts and Benefits made by Testator during lifetime (moral duty may be diminished/negated entirely when made lots of inter vivos gifts to person)5) Unequal treatment of children (not enough for moral claim, but equal treatment is prima facie fair)6) Testator’s reasons for disinheritance/subordinate benefit (valid/rational)Healthfield v St. Jacques – 2015 BCSCProvision for minor children upon death of a parent who left everything to spouse (children’s other parent). When parents separated, trusts for kids. When parents together and AGREEMENT TO PROVIDE FOR CHILDREN, that’s fine.Father’s will leaves residue to mother if she survives, equally to all children if she does not. Father and mother separate, she is in CL marriage with someone else when he dies. Never formally changed the will, drew line through gift to mother and wrote “all to kids” on it, then dies. Mother gets $800,000 life insurance of father and all residue of his will. Mother’s will left half of everything to new partner, and half to her children. PGT acts for minor children in variation claim, says 100% of father’s will should go to them in case mother doesn’t provide for them.HELD – testamentary trusts for children of entire residue, mother keeps life insurancethere was no agreement bw the former spouses that survivor would take care of children from survivor’s estate (different from Cameron case, where there was such an agreement, AND parties were together at death of spouse, ct felt child would be provided for adequately)the interlineations (changes on will) reflect father’s wishes MINOR CHILDRENPROPERTY AVAILABLE TO SATISFY A CLAIMMawdsley v Meshen – 2012 BCCASpouse is not “creditor” under FCA, cannot take fraudulent conveyance claim. Also no intent of fraud on part of testator here. And no legislation preventing wills variation avoidance. Trusts/inter vivos gifts standard estate planning techniques.Will made alter-ego trust transferring assets to trust for benefit of children after death. Will maker also put assets into JT and made inter vivos gifts. No provision for CL spouse, but she was under impression that they had agreement that they would not leave stuff to each other, and he was present at meetings with lawyers.ISSUE – Husband sued for fraudulent conveyance after death as all assets went directly to JT, inter vivos gifts, and trust. Nothing left for wills variation claim.HELD – A spouse is not a “creditor or other” under the Fraudulent Conveyance Act, cannot take this claim. Also, no fraudulent intent whatsoever. Spouse gets small variation to get minimal residue. Court will not vary her other legal actions.test under act was whether it was fraudulent in purpose or in effect. Not done on purpose, not fraudulent in effectmoral claims do not give rise to action under FCA…not married, so no legal claim under FRA (would maybe now, but not then…)no legislation preventing avoidance of claims under WESA Wills Variation provisionsDISTRIBUTION BY EXECUTORDistribution of estate155 (1) The personal representative of a deceased person must not distribute the estateof the deceased person in the 210 days following the date of the issue of arepresentation grant except(a) with the consent of all beneficiaries and intestates entitled to the estate, or(b) by order of the court.(2) The personal representative of a deceased person must not distribute theestate of the deceased person after the period referred to in subsection (1) withoutconsent of the court if(a) a proceeding has been commenced to determine whether a person is or isnot a beneficiary or intestate successor in respect of the deceased person’sestate,(b) relief is sought under Division 6 [Variation of Wills] or Part 4 [Wills], or(c) other proceedings have been commenced which may affect the distributionof the estate.(3) Noting in this section(a) affects any right or remedy against a person to whom an estate has beendistributed in whole or in part, or(b)extends any applicable limitation period.CONTRACTUAL RESTRAINTSHarvey v Harvey – 1979 BCCAVery narrow reading given to restrictions to alienation of property.Testatrix and sons SHs in business, articles of association permitted transfer of shares from one SH to another but not to someone not already an SH if existing SH willing to buy shares (right of first refusal). Testatrix left 2 shares to one grandson, son of one of her two sons (Richard). HELD – Shares could be registered in the name of grandson’s father, articles could not preclude testatrix from gifting shares to grandson as Richard was SH and she could effectively do this by registration in Richard’s name (so son is equitable beneficiary of shares?)NOTE – STANDARD OF REVIEW FOR WILLS VARIATION – BASICALLY A TRIAL DE NOVO (don’t need to find error of TJ)BUSINESS CORPORATIONS ACT[SBC 2002] c. 57Powers of personal representative115 (1) Despite the memorandum or articles of a company, the personal or other legalrepresentative or trustee in bankruptcy of a shareholder, although not registered as ashareholder, has the rights, privileges and obligations that attach to the shares held bythe shareholder, if the appropriate evidence of appointment or incumbency within themeaning of section 87 of the Securities Transfer Act is provided to the company. (2) Subsection (1) of this section does not apply on the death of a shareholder forshares registered in the shareholder's name and the name of another person in jointtenancy.Documents for transmission118 The personal or other legal representative, or trustee in bankruptcy, of ashareholder of a company is entitled to become or to designate another person tobecome a registered shareholder of the company if the person provides to thecompany or its transfer agent(a) a declaration of transmission made by the personal or other legalrepresentative or trustee in bankruptcy stating the particulars of the transmission,(b) the share certificate, if any, and any assurances referred to in section 87 ofthe Securities Transfer Act that are required by the company,(c) in the case of a death,(i) the original grant of probate or letters of administration or a courtcertified copy of them, or(ii) the original or a court certified or authenticated copy of the grant ofrepresentation, will, order or other instrument or other evidence of thedeath under which title to the shares or securities is claimed to vest,(d) in the case of bankruptcy, a copy of the court order or of the assignment inbankruptcy and a copy of the instrument appointing the trustee in bankruptcy,and(e) in any other case,(i) if the person making the declaration of transmission referred to inparagraph (a) was appointed by a court, appropriate evidence ofappointment or incumbency within the meaning of paragraph (a) of thedefinition of "appropriate evidence of appointment or incumbency" insection 87 (3) of the Securities Transfer Act, and(ii) if that person was not appointed by a court, appropriate evidence ofappointment or incumbency within the meaning of paragraph (b) of thedefinition of "appropriate evidence of appointment or incumbency" insection 87 (3) of the Securities Transfer Act.Effect of documents provided119 If a personal or other legal representative, or a trustee in bankruptcy, of ashareholder of a company applies to the company or its transfer agent under section118 to become or to designate another person to become a registered shareholder ofthe company, provision to the company or transfer agent of the records required underthat section for the application is, despite the memorandum or articles, sufficientauthority to enable the company or transfer agent to register the applicant or theperson designated by the applicant, as the case may be, as a registered shareholder ofthe company.CHAPTER XIII: Disclaimer and Abatement for DebtsDISCLAIMER AND ACCELERATIONbeneficiary never forced to take a benefit, can disclaim before taking benefit, but not after taking some of itcan be used as device to wind up trustQuestion is whether disclaimer results in acceleration of remainder interests (vesting in next person in line right away? Or later? INTENT OF TESTATOR)In the Estate of Brennan – 1991 BCCAAcceleration granted if possible per words and intent of testator if interest disclaimed. Remainder vesting on re-marriage of life estate enough for acceleration. (ability of life estate to unilaterally terminate trust in favour of remainders)Wife left life estate in her estate to husband (or $400/mth) until his death, remainder to their sons. He disclaimed all interest in the estate with intent that it would go to their sons right away. Clause in wife’s will that should husband re-marry, remainder would vest in their sons immediately. Grandchildren take if child predeceased husband.ISSUE – What is effect of disclaimer?HELD – Option A – acceleration (sons take now)Option B – hold assets until father’s death or remarriage, then divide among sons alive and grandchildren if son deceasedGive full effect to testator’s intent as far as possible. “Armchair principle”CL – presumption that acceleration applies (preference for early vesting)Grandchildren clause was an anti-lapse provision, not to benefit as many grandchildren as possible.Small estate (not a huge legacy)Grandchildren born over Will-maker’s lifetime with no change to willHusband could unilaterally terminate trust through remarriagePower to encroach to sons but not remoter issues (benefit was to SONS, not later grandchildren)De la Giraudias v Louis De La Giroday Trust – 1998 BCSCIf no intent to distribute before death of disclaimer, and intent of testator to benefit future grandchildren, NO ACCELERATION.Life estate in trust upon death of testator to wife until her death. She disclaims. Acceleration to their children (will says they take their share at age 25)? If child dies without children, share goes to residue of estate, if with children, to them in equal shares per stirpes until last one reaches 21 then all take equal shares per stirpes.HELD – Settlor here wanted to benefit “and others” – grandchildren. No provision for trust to be distributed before wife’s death – NO ACCELERATIONno encroachment on capital during term of trust, no unilateral ability of Ruth to terminate itlanguage of legacy “wife, children and OTHERS”large value of estate – “dynastic concerns”trust included rule against perpetuities, intent that grandchildren might get vested estate.Re the Estate of Creighton – 2006 BCSCFactors to consider re acceleration from previous cases.Will leaves residue in trust for benefit of son (69) and daughter (68) and grandchildren. On death of last surviving child, residue divided among living grandchildren. If grandchild predeceased, great-grandchildren to share equally in deceased grandchild’s portion. Son/daughter want to disclaim in favour of their children. 9 great-grandchildren alive at time will made, 10 great-grandchildren alive at time of petition with more expected.HELD – further grandchildren extremely unlikely (both children nearing 70). Intent of testator to benefit grandchildren, great-grandchildren provision was anti-lapse. ACCELERATION APPLIESFactors re accelerationencroachment on capital permitted?Reference to succeeding generations?Trust value large?Rule against perpetuity? (80 years or a life in being) – use this in whatever way helps your caseABATEMENTwhen gifts fail because estate insufficient to give it after debts/expenses of administration are paidpro-rata reduction of amount/quantity of gifts made in willOrder of abatement sets out what types of gifts subject to pro-rata reduction prior to other types of giftsOrder of Abatement under WESA s. 50Rules if assets are not sufficient50 (1) This section is subject to a contrary intention appearing in the will. (2) If a will-maker’s estate is not sufficient to satisfy all debts and gifts, the debts andgifts must be satisfied or reduced in accordance with this section.(3) Land charged by the will-maker with payment of debts or pecuniary gifts, or both,is primarily liable for the debts and gifts, despite a failure of the will-maker toexpressly exonerate the personal property.(4) Land and personal property must be reduced together.(5) Subject to subsection (3), assets are reduced in the following order:(a) property specifically charged with a debt or left on trust to pay a debt;(b) property distributed as an intestate estate and residue;(c) general, demonstrative and pecuniary legacies;(d) specific legacies;(e) property over which the will-maker had a general power of appointment.Celantano v Ross – 2014 BCSCAt CL, order of abatement was 1) Residue (personal property) 2) Residue (real property) 3) General legacies (including pecuniary legacies to be paid from residue) 4) Demonstrative legacies 5) Specific bequests of PERSONAL property 6) Specific bequests of REAL property. FACTS: left number of cash gifts to named beneficiaries, and “to pay or transfer sum of $40,000 each in US funds (to be taken from US accounts) to these hospitals). Will maker had insufficient assets at death to pay for gifts in Will.ISSUE – what is characterization of legacies to hospitals in will?HELD – gift to hospital was demonstrative, at CL abated AFTER general giftsGeneral Gift: gift of type of property, commonly money, not from particular sourceDemonstrative Gift: Gift of type of property, from a specific source (usually $$)Specific Gift: Gift of a particular item, either personal or real propertyUNDER WESA S. 50- gift to hospitals would abate with general giftsNOTE – Specific GOOD for abatement, BAD for ademption, general BAD for abatement, GOOD for ademption. Demonstrative… alright for both (same as general for abatement though)CHAPTER XIV: Aboriginal EstatesINDIAN ACTDESCENT OF PROPERTY42. (1) Subject to this Act, all jurisdiction and authority in relation to matters andcauses testamentary, with respect to deceased Indians, is vested exclusively in theMinister and shall be exercised subject to and in accordance with regulations of theGovernor in Council.(2) The Governor in Council may make regulations providing that a deceased Indianwho at the time of his death was in possession of land in a reserve shall, in suchcircumstances and for such purposes as the regulations prescribe, be deemed to havebeen at the time of his death lawfully in possession of that land.(3) Regulations made under subsection (2) may be made applicable to estates ofIndians who died before, on or after September 4, 1951.43. Without restricting the generality of section 42, the Minister may(a) appoint executors of wills and administrators of estates of deceased Indians,remove them and appoint others in their stead;(b) authorize executors to carry out the terms of the wills of deceased Indians;(c) authorize administrators to administer the property of Indians who dieintestate;(d) carry out the terms of wills of deceased Indians and administer the propertyof Indians who die intestate; and(e) make or give any order, direction or finding that in his opinion it is necessaryor desirable to make or give with respect to any matter referred to in section 42.44. (1) The court that would have jurisdiction if a deceased were not an Indian may,with the consent of the Minister, exercise, in accordance with this Act, the jurisdictionand authority conferred on the Minister by this Act in relation to testamentary matters and causes and any other powers, jurisdiction and authority ordinarily vested in that court.(2) The Minister may direct in any particular case that an application for the grant ofprobate of the will or letters of administration of a deceased shall be made to the courtthat would have jurisdiction if the deceased were not an Indian, and the Minister mayrefer to that court any question arising out of any will or the administration of anyestate.(3) A court that is exercising any jurisdiction or authority under this section shall notwithout the consent in writing of the Minister enforce any order relating to realproperty on a reserve.WILLS45. (1) Nothing in this Act shall be construed to prevent or prohibit an Indian fromdevising or bequeathing his property by will.(2) The Minister may accept as a will any written instrument signed by an Indian inwhich he indicates his wishes or intention with respect to the disposition of hisproperty on his death.(3) No will executed by an Indian is of any legal force or effect as a disposition ofproperty until the Minister has approved the will or a court has granted probate thereofpursuant to this Act.46. (1) The Minister may declare the will of an Indian to be void in whole or in part ifhe is satisfied that(a) the will was executed under duress or undue influence;(b) the testator at the time of execution of the will lacked testamentary capacity;(c) the terms of the will would impose hardship on persons for whom the testator had a responsibility to provide; (variation provision? Or just void?)(d) the will purports to dispose of land in a reserve in a manner contrary to theinterest of the band or contrary to this Act;(e) the terms of the will are so vague, uncertain or capricious that properadministration and equitable distribution of the estate of the deceased would bedifficult or impossible to carry out in accordance with this Act; or(f) the terms of the will are against the public interest.(2) Where a will of an Indian is declared by the Minister or by a court to be whollyvoid, the person executing the will shall be deemed to have died intestate, and wherethe will is so declared to be void in part only, any bequest or devise affected thereby,unless a contrary intention appears in the will, shall be deemed to have lapsed.APPEALS47. A decision of the Minister made in the exercise of the jurisdiction or authorityconferred on him by section 42, 43 or 46 may, within two months from the datethereof, be appealed by any person affected thereby to the Federal Court, if theamount in controversy in the appeal exceeds five hundred dollars or if the Ministerconsents to an appeal.- Std of review is REASONABLENESS (deference to Minister)DISTRIBUTION OF PROPERTY ON INTESTACY (stops at nieces/nephews)48. (1) Where the net value of the estate of an intestate does not, in the opinion of theMinister, exceed seventy-five thousand dollars or such other amount as may be fixedby order of the Governor in Council, the estate shall go to the survivor.(2) Where the net value of the estate of an intestate, in the opinion of the Minister,exceeds seventy-five thousand dollars, or such other amount as may be fixed by orderof the Governor in Council, seventy-five thousand dollars, or such other amount asmay be fixed by order of the Governor in Council, shall go to the survivor, and(a) if the intestate left no issue, the remainder shall go to the survivor,(b) if the intestate left one child, one-half of the remainder shall go to thesurvivor, and(c) if the intestate left more than one child, one-third of the remainder shall go tothe survivor,and where a child has died leaving issue and that issue is alive at the date of theintestate’s death, the survivor shall take the same share of the estate as if the child hadbeen living at that date.(3) Notwithstanding subsections (1) and (2),(a) where in any particular case the Minister is satisfied that any children of thedeceased will not be adequately provided for, he may direct that all or any partof the estate that would otherwise go to the survivor shall go to the children; and(b) the Minister may direct that the survivor shall have the right to occupy anylands in a reserve that were occupied by the deceased at the time of death.(4) Where an intestate dies leaving issue, his estate shall be distributed, subject to therights of the survivor, if any, per stirpes among such issue.(5) Where an intestate dies leaving no survivor or issue, the estate shall go to theparents of the deceased in equal shares if both are living, but if either of them is deadthe estate shall go to the surviving parent.(6) Where an intestate dies leaving no survivor or issue or father or mother, his estateshall be distributed among his brothers and sisters in equal shares, and where anybrother or sister is dead the children of the deceased brother or sister shall take theshare their parent would have taken if living, but where the only persons entitled arechildren of deceased brothers and sisters, they shall take per capita.(7) Where an intestate dies leaving no survivor, issue, father, mother, brother or sister,and no children of any deceased brother or sister, his estate shall go to his next-of-kin.(8) Where an estate goes to the next-of-kin, it shall be distributed equally among thenext-of-kin of equal degree of consanguinity to the intestate and those who legallyrepresent them, but in no case shall representation be admitted after brothers' andsisters' children, and any interest in land in a reserve shall vest in Her Majesty for thebenefit of the band if the nearest of kin of the intestate is more remote than a brotheror sister.(9) For the purposes of this section, degrees of kindred shall be computed by countingupward from the intestate to the nearest common ancestor and then downward to therelative, and the kindred of the half-blood shall inherit equally with those of thewhole-blood in the same degree.(10) Descendants and relatives of an intestate begotten before his death but bornthereafter shall inherit as if they had been born in the lifetime of the intestate and hadsurvived him.(11) All such estate as is not disposed of by will shall be distributed as if the testatorhad died intestate and had left no other estate.(12) There is no community of real or personal property situated in a reserve.(13) and (14) [Repealed, R.S., 1985, c. 32 (1st Supp.), s. 9](15) This section applies in respect of an intestate woman as it applies in respect of anintestate man.49. A person who claims to be entitled to possession or occupation of lands in areserve by devise or descent shall be deemed not to be in lawful possession oroccupation of those lands until the possession is approved by the Minister.50. (1) A person who is not entitled to reside on a reserve does not by devise ordescent acquire a right to possession or occupation of land in that reserve.(2) Where a right to possession or occupation of land in a reserve passes by devise ordescent to a person who is not entitled to reside on a reserve, that right shall be offeredfor sale by the superintendent to the highest bidder among persons who are entitled toreside on the reserve and the proceeds of the sale shall be paid to the devisee ordescendant, as the case may be.(3) Where no tender is received within six months or such further period as theMinister may direct after the date when the right to possession or occupation of land isoffered for sale under subsection (2), the right shall revert to the band free from anyclaim on the part of the devisee or descendant, subject to the payment, at thediscretion of the Minister, to the devisee or descendant, from the funds of the band, ofsuch compensation for permanent improvements as the Minister may determine.(4) The purchaser of a right to possession or occupation of land under subsection (2)shall be deemed not to be in lawful possession or occupation of the land until thepossession is approved by the Minister. - how to deal with bequests of RESERVE LANDS50.1 The Governor in Council may make regulations respecting circumstances wheremore than one person qualifies as a survivor of an intestate under section 48.Issues from classmay want to go to court and not Minister, s. 44, can do this… Minister’s delgates will usually be fine with itwhat law applies? BC Law or Indian Act? Indian Act a complete code?Indian Act a complete code?s. 88 general laws that apply in province apply to Indians UNLESS law inconsistent with provision of Indian Act or already provision in Indian Act to deal with itDoes Banks v Goodfellow apply re Indian capacity? Indian Act deals with capacity…Note – Land Management Act – passed 5 years ago, allowed indigenous people to enter into treaty/land code that allows them to determine what happens on their reserve. Have to go TO THEM to know exactly what their code says.Practice point – ask client what law they are underProvonost v Canada (Minister of Indian Affairs and Northern Development – 1985 FCAAboriginal persons under Indian Act have same testamentary freedom as anyone, can leave life estate to wife with gift over to daughters of reserve land.Testator bequeathed reserve land to daughters (after life estate to wife). Minister exercised authority under s. 46. Declared gift void as contrary to interests of the Band and Indian Act. Appeal from that decision.HELD – under s. 45(1) of Indian Act, testator had same testamentary freedom as any other individual, so must be able to make gifts by substitution. Band interests can still be protected by Minister who can refuse to legitimize possession of person asking for it under the will and of substitute who will claim it later.TAX STUFFNote key tax areasProbate fees: 1.4% of FMV of property held by deceased person at date of death in BC – no deductions other than amount of registered mortgage on land included in total.Doesn’t apply to estate under $25,000, de minimusEXCEPTIONS – trust, JT, insurance policies etc (devises outside of will)Rates across country vary – 1.6% NS, $400 flat tax ABTo avoid probate feesAlter ego trusts, spousal trusts, MULTIPLE WILLS (shares in private corporation don’t need to be probated, have will for those and will for other stuff)No tax on beneficiary of CAD estate (windfall)Spousal rollover – usually, at date of death, DEEMED to dispose of assets at FMV (relevant for tax paid on sale by 3rd party buyer)If leave it to spouse, property goes tax free, spouse receives property at cost base to will makerPrinciple residence exception (for principle residence…)Be aware of US estate taxApplies if you own property in the USApplies if you are a US citizen, no matter what (ask clients about this)HIGH EXEMPTION ($5M)Exec/Administrator has responsibility to file all tax returns – GET CLEARANCE CERTIFICATE ................
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