Spousal Status in Estate Litigation: Who is a “Spouse” and Why Does it Matter?

A few weeks ago, I had an opportunity to speak to an audience of accountants about the issue of spousal status, and why it matters in estate litigation.  The following is a summary of my speaking notes from that presentation.

Spousal Status – Why Does it Matter?

A spouse has certain rights:

Wills Variation Rights:

Section 60 of the Wills, Estates and Succession Act (WESA“) provides that if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.

While most wills variation cases in the past focused on whether a will was fair, and what variation would be just and adequate, there are now many cases which deal with the issue of standing – you must be able to establish that you are a spouse, or you cannot make a wills variation claim.

Right to receive on intestacy:

If there is no will, then WESA sets out how an estate is to be distributed on an intestacy.  If there is a spouse and no descendants, then everything goes to the spouse.  If there is a spouse and descendants, then the spouse gets the preferred share ($300,000 if all children common to both, $150,000 if not), then half to spouse, half between descendants.  If there is no spouse, then the estate goes to the descendants, or the next closest relative(s).

Clearly, whether or not a person is a “spouse” will have significant consequences on the distribution of an intestate estate.

Other Potential Claims:

“Spouses” have attempted to make other claims which seek to challenge estate plans which move assets out of the estate to avoid wills variation claims:

  • Breach of fiduciary duty – arguing that there is a duty to notify your spouse that you have not made provision in your estate plan, so they can decide whether to initiate family law proceedings – Volovsek v Donaldson, 2019 BCSC 182;
  • Good conscience constructive trust – equitable remedy.

While these claims have not yet been met with a high degree of success, the first hurdle is proving spousal status.

Who is a Spouse – Importance for Executors:

One of the tasks for an executor is to determine if a person qualifies as a “spouse” and if notice under s. 121 of the WESA must be given to that person.  This is important to start the wills variation limitation period, and to protect an executor who seeks to distribute estate assets.

Who is a Spouse?

How is a “spouse” defined in WESA:

  • Section 2 – “when a person is a spouse under this act”
    • Two persons are spouses of each other if they were both alive immediately before a relevant time (usually the date of death of one of them), and
      • They were married; or
      • They had lived with each other in a marriage-like relationship for at least two years.
    • Two persons cease being spouses of each other for the purposes of the act if:
      • In the case of marriage, an event occurs that causes an interest in family property, as defined in Part 5 [Property Division] of the Family Law Act, to arise;
      • in the case of a marriage-like relationship, one or both persons terminate the relationship.
        • This is a determination that requires the court to consider both the expressed and implied intentions of each spouse and any available objective evidence.  The courts have interpreted this section broadly.
      • Two persons are not considered to have separated if, within one year after separation:
        • they begin to live together again and the primary purpose for doing so is to reconcile, and
        • they continue to live together for one or more periods, totaling at least 90 days.

So, there are number of potential issues when considering whether someone is a “spouse”:

  1. Whether there was a marriage-like relationship at all;
  2. If there was, whether it started more than two years before death;
  3. Whether someone terminated the relationship; and
  4. Whether there was a reconciliation, and if so whether it was long enough

There is also the potential for someone to have multiple spouses under the definition of “spouse.”

Whether a Marriage-Like Relationship Exists

There is no specific definition of whether a marriage-like relationship exists.  The precise definitions of the past are no longer valid in our changing world.  Such relationships are no longer defined by financial dependence, sexual relationships or the mingling of property and finances.  There is no “checklist” of characteristics that will invariably be found in all marriages.

The Courts in British Columbia often refer to the following passage from Yakiwchuk v. Oaks 2003 SKQB 124:

Spousal relationships are many and varied. Individuals in spousal relationships, whether they are married or not, structure their relationships differently. In some relationships there is a complete blending of finances and property- in others, spouses keep their property and finances totally separate and in still others one spouse may totally control those aspects of the relationship with the other spouse having little or no knowledge or input. For some couples, sexual relations are very important – for others, that aspect may take a back seat to companionship. Some spouses do not share the same bed. There may be a variety of reasons for this such as health or personal choice. Some people are affectionate and demonstrative. They show their feelings for their “spouse” by holding hands, touching and kissing in public. Other individuals are not demonstrative and do not engage in public displays of affection. Some “spouses” do everything together – others do nothing together. Some “spouses” vacation together and some spend their holidays apart. Some “spouses” have children – others do not. It is this variation in the way human beings structure their relationships that make the determination of when a “spousal relationship” exists difficult to determine. With married couples, the relationship is easy to establish. The marriage ceremony is a public declaration of their commitment and intent. Relationships outside marriage are much more difficult to ascertain. Rarely is there any type of “public” declaration of intent. Often people begin cohabiting with little forethought or planning. Their motivation is often nothing more than wanting to “be together”. Some individuals have chosen to enter relationships outside marriage because they did not want the legal obligations imposed by that status. Some individuals have simply given no thought as to how their relationship would operate. Often the date when the cohabitation actually began is blurred because people “ease into” situations, spending more and more time together. Agreements between people verifying when their relationship began and how it will operate often do not exist.

The parties’ intentions – particularly the expectation that the relationship will be of lengthy, indeterminate duration – may be of importance in determining whether a relationship is “marriage-like”. While the court will consider the evidence expressly describing the parties’ intentions during the relationship, it will also test that evidence by considering whether the objective evidence is consonant with those intentions.

When considering whether two persons are “spouses” the court will consider:

  • The parties’ intentions, particularly their expectation of whether the relationship would be lengthy and of indeterminate duration:
  • Objective evidence of the parties’ lifestyle and interactions supporting a finding that their interactions “closely resembled those typical of married couples;
  • Whether the parties treat themselves as a family unit;
  • Whether cohabitation was coupled with romantic and sexual relations;
  • Evidence of emotional interdependence, mutual commitment, and attachment;
  • Whether the parties co-mingled assets and shared expenses; and
  • Whether the parties treated themselves as single or cohabiting for income tax purposes 

Application of Spousal Status Considerations:

Very often, we are looking at cases where the deceased’s children (or siblings, or other family members) are denying that someone was a spouse.  We see wildly different versions of events.  The claimant says they were a spouse.  The children or other persons opposing may say that the alleged “spouse” was, in fact:

  • Previously in a relationship with the deceased, but the parties broke up, an ex-partner;
  • Casually dating, may have been one of several non-exclusive partners (the deceased said “would never marry again”);
  • Roommate;
  • Caregiver;
  • Friend; or
  • Complete stranger.

A person on the cusp of potentially being a “spouse” may take a shot at a claim, with the knowledge that most claims settle.

Evidence of Spousal Status:

The Courts want evidence of intentions AND objective evidence.  This may include:

  1. Evidence of the surviving “spouse” (concern it is self serving);
  2. Evidence of Opposing parties (again, concern it is self serving)
  3. Documents – tax returns, mail, next of kin, contact forms, direct beneficiary designations;
  4. Other third party witnesses – observed the relationship, statements made to them about relationship.  This may include friends, as well as professionals – solicitor/accountant/banker.

Available Claims if Not a “Spouse”

There are fewer available claims if a person is not a “spouse,” but there are still some remedies.  The claimant does not receive on an intestacy and has no wills variation rights.  However, there may be claims in unjust enrichment or promissory estoppel, claims based on ideas of unfairness and inequity.

What I’m Reading: Interesting Estate Litigation Articles for October 2022

The following is a round-up of noteworthy articles published this month on estate litigation and related issues:

  1. Stan Rule at Sabey Rule writes about a recent B.C. decision which considers whether an interest in a discretionary trust is “family property” that should be divided in a family law action: Rule of Law: Cottrell v. Cottrell (rulelaw.blogspot.com)
  2. Artur Adamian at Hull & Hull LLP (Ontario) posts about an Ontario case which awarded interest to a beneficiary when the administration of the estate took longer than the “executor’s year”: https://hullandhull.com/Knowledge/2022/10/interest-payable-when-the-executors-year-ends/
  3. Artur Adamian also posted about a recent Ontario decision in which a residual beneficiary was ordered to pay occupational rent for occupying estate property: H&H | No Such Thing as Free Rent (hullandhull.com)
  4. Oliver O’Brien at WEL Partners (Toronto) comments on an Ontario decision which held that BMO Nesbitt Burns did not have a duty to one spouse to disclose that the other spouse removed her as a designated beneficiary: https://welpartners.com/blog/2022/10/corroboration-and-material-facts-a-look-at-the-recent-case-of-fair-v-bmo-nesbitt-burns-inc/
  5. Elaine Yu at de Vries Litigation LLP (Ontario) writes about a case dealing with a familiar dispute: two siblings who cannot get along and act together for their parent pursuant to a power of attorney: https://welpartners.com/blog/2022/10/corroboration-and-material-facts-a-look-at-the-recent-case-of-fair-v-bmo-nesbitt-burns-inc/
  6. Robertson Stomberg (Saskatchewan) posts about a recent Saskatchewan court decision in which a challenge to the validity of a will (on the basis of lack of capacity or coercion) was summarily dismissed as there was no genuine issue raised: https://skestatelaw.ca/2022/11/01/saskatchewan-estate-litigation-update-bell-v-bell-2022-skqb-198/

Happy reading!

What I’m Reading: Interesting Estate Litigation Articles for September 2022

The following is a round-up of noteworthy articles published this month on estate litigation and related issues:

  1. Stan Rule at Sabey Rule comments on a recent B.C. decision on disgorgement – awarding profits to beneficiaries when a trustee or other fiduciary profits from a breach of their obligations: http://rulelaw.blogspot.com/2022/09/chung-v-chung.html
  2. Dairen Murray at Hull & Hull LLP (in Ontario) writes on making reasonable efforts to locate a will when a loved one has died: https://hullandhull.com/Knowledge/2022/09/where-to-look-for-a-will/
  3. Albert Oosterhoff at WEL Partners (Toronto) posts on the determination of whether a gift of real property for a limited time is a licence or a life estate: https://welpartners.com/blog/2022/10/life-estate-or-licence-a-continuing-conundrum/
  4. Karen Watters at de Vries Litigation LLP (in Ontario) writes on undue influence in inter vivos transfers: https://devrieslitigation.com/undue-influence-in-inter-vivos-transfers/
  5. Aanchal Bajaj, also at Hull & Hull LLP (in Ontario), comments on a recent Ontario decision on the issue of the treatment of a beneficiary designation for an RRSP when the account was converted to an RRIF (a reminder to update beneficiary designations if converting!): https://hullandhull.com/Knowledge/2022/09/what-is-the-requirement-for-the-designation-of-income-funds-to-beneficiaries/
  6. Of note to lawyers, James Steele at Robertson Stromberg (Saskatchewan) writes about a recent Saskatchewan decision which prohibits the practice of altering an affidavit (“slip-sheeting”) after it has been sworn.  The affidavit must be re-sworn: https://skestatelaw.ca/2022/09/08/saskatchewan-estate-litigation-update-peters-estate-re-2022-skqb-186/
  7. CBC reports on Western University asking the Ontario courts for permission to remove the name of a professor from six academic prizes funded by his estate, following criticism that he espoused radical, racist views: https://www.cbc.ca/news/canada/london/kenneth-hilborn-western-university-scholarship-1.6573668

Happy reading!

B.C. Case Comment: Vagueness in Will Invites (Unsuccessful) Challenge to Charitable Bequest

When making a will, you must take care to make sure that your intentions are clearly expressed and not left open for interpretation.  When a will is unclear or uncertain, this provides an opportunity for a disappointed beneficiary to (1) argue an interpretation which favors them over another party, or (2) argue that the will or some part of it is fatally uncertain and therefore void.

The more complicated that you make a will, the more likely these issues may arise.  These arguments tend to occur more in certain circumstances including:

  1. When a deceased decides to include a power of appointment – a power given to a person to select who shall receive an interest in property (instead of deciding who will receive the property and simply making a bequest to that person in your will); or
  2. When there is uncertainty with respect to a charitable bequest.

Both of these circumstances were present in the recent B.C. Supreme Court decision in Royal Trust Corporation Of Canada v. The Welfare Institution Of The Jews Of Athens 2022 BCSC 1454.

In her 1985 will, the deceased set up a trust for her daughter, to pay her the interest “as long as she shall live.”  The deceased further provided in her will:

If my daughter shall by her Last Will and Testament appoint sum [sic] reasonable charity within the country of Greece for such funds they shall be delivered in accordance with the directions made in such Last Will and Testament of my said daughter.

And further:

If my said daughter shall fail to so designate and appoint by her Last Will and Testament then such money shall be paid to the President for the time being of Estia of Constaninopolis, Artistiduu 7, Kolonike, Ahtens, Greece.

“Estia of Constantinipolis” is a non-profit association in Greece that operates nursing homes near Athens, Greece.

In other words, the deceased’s daughter could decide what charity she wanted to receive the rest of her trust fund after she died (the power of appointment), or the default would be Estia of Constantinipolis.

The daughter made a will in Greece in 2017, in which she explicitly exercised the power of appointment, by appointing The Welfare Institution of the Jews of Athens, dab Reston Elderly Care Centre as the beneficiary.  Then, the daughter made a will in Switzerland in 2018, in which she revoked the 2017 will, and left her entire estate to one person.  She failed to appoint a charity in Greece as the beneficiary of the trust property (i.e. she failed to exercise the power of appointment).

The trust property was approximately $500,000, and the issue was who receives it.

First, it was argued that the power of appointment was invalid.  The Court held that it was valid.  The Court then held that the 2017 will (which appointed a charity) was revoked by the 2018 Will (which didn’t appoint a charity).  As a result, the power of appointment had not been exercised, and so the default “Estia of Constantinipolis” would, on its face, receive the monies.

Next, it was argued that the Estia charity could not receive the gift because:

  1. The gift is to the President of Estia personally, or to his office on behalf of Estia;
  2. If the gift is to the President personally, it was unclear whether it was to the President in office at the time of the 1985 will (who was now dead – so the gift would have failed), or the president currently in office; or
  3. If the gift is to the current President by virtue of his office, and such is held in trust on behalf of the charity, the gift also fails because Greek law does not recognize trusts.

The Court did not accept any of these arguments.  The Court had “no hesitation” concluding that the deceased intended to make the gift to the charity.  There was no evidence that she had any relationship with the individual who was the president of Estia.  It logically followed that it was the charity, not the person, who was the intended beneficiary.

While the Court did not appear to have any difficulty interpreting the will, it is likely that the proceedings could have been avoided had the will and the power of appointment been more clearly drafted (or perhaps if no power of appointment had been included at all, and the deceased had simply named the charitable beneficiary in her will).

By drafting the will in the manner that she did, it permitted a disappointed beneficiary the opportunity to argue for an interpretation that would benefit them.  While the arguments were ultimately unsuccessful in this particular case, in some cases this may result in an interpretation that is not consistent with the deceased’s intentions, and in all cases will result in unnecessary expense to the estate.

Equitable Claims: Remedies when you expected to inherit but you didn’t

What if you expect to inherit something from someone’s estate, and when they die you discover that you were mistaken? What if you have acted to your detriment based on this expectation?

This seems to occur frequently in the case of farm properties. Someone works on a farm for little or no compensation, with an expectation that they will inherit the farm upon the owner’s death. Then, the owner leaves the farm to someone else.

It is always risky to provide services based upon an expectation, without setting the terms of the agreement or arrangement out in writing.  However, if the parties do not have a written agreement, the party who has provided services based upon an expectation to inherit, but has not ended up receiving the farm, may have potential remedies. A person in this situation may bring certain claims, including claims in:

  1. Proprietary estoppel;
  2. Unjust enrichment; and
  3. Breach of contract.

Proprietary Estoppel:

Proprietary estoppel is an equitable doctrine which enforces a promise that would not otherwise be enforced under the law. In order for proprietary estoppel to be available, the following three conditions must be present:

  1. A representation or assurance is made to the claimant, on the basis of which the claimant expects to enjoy some right or benefit over property;
  2. The claimant relies on that expectation by doing something, and that reliance is reasonable in all the circumstances; and
  3. The claimant suffers a detriment as a result of this reasonable reliance, such that it would be unfair or unjust for the party responsible for the representation or assurance to go back on their word.

There must be a promise one might reasonably expect to be replied upon by the person to whom it was made.

If these conditions are met and there is an equity which needs to be recognized, then the court must craft a remedy to do justice between the parties.

Unjust Enrichment:

Unjust enrichment is another equitable doctrine. A claimant must establish three elements:

  1. The respondent was enriched;
  2. The claimant suffered a corresponding deprivation; and
  3. The respondent’s enrichment and the claimant’s corresponding deprivation occurred in the absence of a juristic reason.

Breach of Contract:

Parties may enter into an agreement with a term requiring one party to make a will to the other party.  As long as the other elements of a contract are present (i.e. offer, acceptance, consideration, etc…), this type of agreement is enforceable in B.C. Further, the party expecting to benefit from such an agreement does not have to wait until the other party’s death before commencing an action, if the beneficiary becomes aware that the other party no longer intends to abide by the terms of the agreement. I previously wrote about a recent B.C. case on this issue, found here.

Recent B.C. Case – Party Expecting to Inherit Farm does not Receive it:

The B.C. Supreme Court recently considered a claim to a farm on the basis of proprietary estoppel and unjust enrichment in Kennedy v Marcotte Estate 2022 BCSC 1486.

In Kennedy, the plaintiff thought he would inherit the deceased’s farm for much of his life. The plaintiff’s family had been friends with the deceased for many years (the deceased never married, and did not have any children of his own). The plaintiff was a commercial fisherman, but when he was not fishing he would assist the deceased at the farm.

The deceased made comments which the plaintiff understood to mean that the farm would be his after the deceased’s death. However, the deceased in fact left the will to a neighbour and close friend. The plaintiff found out about this while the deceased was still alive. He tried to convince the deceased to change his will, but this did not happen.

With respect to the claim in proprietary estoppel, the plaintiff relied upon various representations which he said gave him an expectation that he would inherit the farm:

  • In the 1970s, the plaintiff’s mother told him that the deceased put the farm in the names of the plaintiff and his three siblings;
  • From 1979-2004, annually, the deceased said that anybody who works on the deceased’s farm will get a piece one day;
  • From 1980-2000 (every two years), the deceased mentioned a man who inherited a farm from a woman who willed the property to him as an expression of gratitude for the work he did on the farm;
  • In 2004, the deceased said that he was changing his will to provide that one individual will inherit the farm (the plaintiff wrongly assumed that this person was him);
  • 2004-2018 (yearly), the deceased says that he hopes that the plaintiff is ready “to fight for the farm one day”; and
  • 2015 or 2018, Mr. Marcotte made a non-verbal gesture (pointing) with a friend which suggested that the plaintiff would inherit the farm.

The court accepted that the above representations were made, and that the plaintiff interpreted them to mean that the deceased would give the farm or part of it to the plaintiff in his will. The court also found that the plaintiff took action motivated partly upon his reliance on these representations, by working on the farm, and refraining from seeking formal paid employment when he was working on the farm.

However, the fundamental question was whether the plaintiff’s reliance on the representations was reasonable. The court held that his reliance was not reasonable. None of the representations were unambiguous or “clear enough” to communicate an assurance that if the plaintiff worked for the deceased while he was not fishing, he would inherit all or part of the farm. The court referred to several other cases of proprietary estoppel and inheriting farms, where the representations were much more unambiguous.

The claim in unjust enrichment also failed. The plaintiff established that his unpaid labor was a benefit to the deceased, and that the plaintiff suffered a corresponding deprivation. However, the claim failed on third element, in that the plaintiff failed to show a lack of juristic reason for the enrichment. The juristic reason was “[the plaintiff’s] donative intention to gift his labour to Mr. Marcotte as a long-time friend, just as his father and others had done over the years.” He did not expect to be paid, although he appreciated the payments and other benefits that were provided by the deceased to express his gratitude for the assistance.

This case is an important reminder of why you should always reduce agreements of this nature to writing. If you have expectations based on representations, the representations must be clear and unambiguous, and you must be reasonable in your reliance on them. The court in Kennedy accepted that from 1979 until 2018, during the months that the plaintiff was not away fishing, he was working on the farm approximately four to six days a week, for several hours each day. However, he was not entitled to anything for this.

What I’m Reading: Interesting Estate Litigation Articles for August 2022

The following is a round-up of noteworthy articles published this month on estate litigation and related issues:

  1. I was asked to provide comments for a recent article in Investment Executive: Disinherited children win big in Alberta and B.C. courts  | Investment Executive
  2. This month, the lawyers at Hull & Hull LLP (in Ontario) posted several articles on settlement in the estate litigation context, including these two articles on the requisite elements of a settlement agreement, and enforcement of settlement agreements: H&H | The Requisite Elements of a Binding Settlement (hullandhull.com) and H&H | A Deal is a Deal: Enforcing a Settlement Agreement (hullandhull.com)
  3. Brett Book at WEL Partners (Toronto) wrote on the capacity to marry: Capacity to Marry – Tanti v. Tanti | WEL Partners Blog
  4. CBC News recently published an investigative report on a case of elder abuse: ‘Who can you trust?’ (cbc.ca)

Happy reading!

BC Case Comment – UPDATE: On Appeal, Surviving Business Owner Still not Entitled to Receive Partnership Property by Right of Survivorship

Estate litigation issues do not just arise as between family members of the deceased (although that is most common).  A death may also result in disputes with respect to the deceased’s business dealings and partnership holdings.  This is why a fulsome estate plan that addresses all interests, personal and business, is key.

In a previous post found here, I discussed what happens when your business partner dies, in particular when the assets of the business are held jointly.  I considered this in the context of the decision of the B.C. Supreme Court in Garland v. Newhouse 2021 BCSC 2021.

A fundamental characteristic of joint tenancy (i.e. registering assets in joint names) is the right of survivorship. When one joint tenant dies, their interest is extinguished, and the surviving joint tenant(s) take full ownership. For example, spouses often register title to their property in joint tenancy, so that the surviving spouse will receive the entirety of the property upon the other spouse’s death. This is accepted as a permissible estate planning tool.

However, where the property at issue is partnership property, there is a presumption that there is no right of survivorship as between partners. The death of a partner in a two-person partnership dissolves the partnership, and on dissolution each partner (including the estate of the deceased’s partner) is entitled to a proportionate share of the partnership assets after payment of debts.

In Garland, the deceased and the spouse of his close friend (“Ms. Newhouse”) purchased an apartment building together in 2003, with the intention of earning a profit from the rental income. They also opened an account to manage the finances associated with the apartment building. The building and the account were both registered in their joint names.

When the deceased died, Ms. Newhouse took the position that the deceased intended for her to receive the apartment building and account through right of survivorship. The deceased’s estate took the position that the deceased intended for the beneficiaries of his estate (his children) to receive his share of the business assets.

The matter proceeded to court by way of summary trial, in which there are no live witnesses, and the court determines the matter based only on affidavit evidence and argument by the parties.   The B.C. Supreme Court stated that in order for the right of survivorship to apply to partnership assets, “there must be evidence of a contrary agreement between the parties that is sufficiently clear and compelling to overcome the presumption that beneficial interest in partnership property does not transfer through the right of survivorship.”  The Court held that Ms. Newhouse was unable to provide this evidence.  The Court concluded that the parties did not intend and agree that on the death of one partner, the partnership property would transfer to the surviving partner for their personal benefit.

Ms. Newhouse failed to rebut the presumption against the right of survivorship in relation to the partnership property, and as a result she held legal title of the apartment building and the bank account in trust for herself and the deceased’s estate.

Ms. Newhouse appealed, and the B.C. Court of Appeal recently provided its decision, which can be found at Newhouse v. Garland 2022 BCCA 276.

A majority of the B.C. Court of Appeal dismissed the appeal, finding that:

  1. The lower court judge did not apply an incorrect legal test.  Ms. Newhouse argued that the lower court judge applied a higher legal burden, but the Court of Appeal disagreed.  They held that the lower court judge properly assessed whether the presumption had been rebutted, on a balance of probabilities, which was the appropriate standard;
  2. The lower court judge did not make a clear and overriding factual error, such as misapprehending the evidence, ignoring material evidence, or drawing inferences unsupported by primary facts.  While some judges may have made different findings, it is not the role of the Court of Appeal to reweigh the evidence and substitute their own findings; and
  3. The lower court judge did not err in exercising her discretion to proceed by way of summary trial instead of requiring a full trial with live witnesses.

The result reflects the role of the Court of Appeal.  The Court of Appeal does not simply re-hear cases and substitute their own decision.  The Court of Appeal may only interfere if there is a legal error, a clear and material factual error, or an error in the exercise of discretion.

One of the three-judge panel would have allowed the appeal, and delivered lengthy dissent reasons.  The judge would have referred the matter back to the B.C. Supreme Court for a full trial.  In the dissenting reasons, the judge notes the difficulties in determining these claims.  The dispute arises after the death of one of the partners, and so one of the parties to the original agreement will always be unavailable to give first-hand evidence.  The surviving partner will have an interest in the result, and so their evidence must be viewed with some caution.

It remains the case (as I noted in my previous post) that it is important to keep in mind business and partnership interests when making your estate plan.  Again, this this dispute likely could have been avoided if there was a written agreement reflecting the terms of the arrangement between the parties.

BC Case Comment – UPDATE: Plaintiff not a “Spouse” Entitled to Share of Estate – Denied Leave to Appeal to Supreme Court of Canada

I previously wrote about the B.C. Court of Appeal decision of Mother 1 v. Solus Trust Company Limited 2021 BCCA  461, in which “Mother 1” asked the Court of Appeal to overturn a decision by the B.C. Supreme Court that she was not a “spouse” of the deceased.  My post on the B.C. Court of Appeal decision can be found here.

The deceased died in 2015 without a will. His Canadian estate was estimated to be worth up to $21 million.  The B.C. Supreme Court held that Mother 1 was not a spouse, and so she was not entitled to a share of the deceased’s estate on an intestacy.  The B.C. Court of Appeal dismissed her appeal, concluding that the parties were never in a marriage-like relationship.

Mother 1 sought leave to appeal to the Supreme Court of Canada.

A party who is unsuccessful in the Court of Appeal does not have an automatic right to appeal to the Supreme Court of Canada.  The Supreme Court of Canada must agree to hear the appeal (it must grant leave).  The mandate of the Supreme Court of Canada is to deal with issues of law that are of public importance or of such a nature or significance as to warrant a decision from the Court.  They do not simply hear cases because one side believes that the Court of Appeal was wrong – there must be some national importance.

The Supreme Court of Canada recently dismissed Mother 1’s application for leave, which means that Mother 1 has exhausted her avenues of appeal with respect to this claim.  As is their usual practice, the Supreme Court of Canada did not give reasons for the dismissal.

Due to the salacious circumstances surrounding the death of the deceased, this decision to deny leave (and previous decisions in the case) resulted in some media attention, for example: https://www.cbc.ca/news/canada/british-columbia/supreme-court-murdered-multimillionaire-spouse-decision-1.6541276

Executor Relies Upon Presumption of Due Execution to Prove Validity of Will

When there is a challenge to the validity of a will on the basis that (1) the will-maker lacked testamentary capacity, or (2) the will-maker did not have knowledge and approval of the contents of the will, the person seeking to prove the validity of the will (the “propounder”) is assisted by the presumption of due execution.

The presumption of due execution provides that if a will is properly executed in compliance with the Wills, Estates and Succession Act (“WESA“), then it is presumed that the will-maker had knowledge and approval and testamentary capacity, subject to evidence of suspicious circumstances.  It then falls on the person challenging the validity of the will to rebut the presumption.

Section 37(1) of WESA sets out the formalities for making a will:

How to make a valid will

37   (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 be acknowledged by the will-maker as the will-maker’s signature, in the presence of 2 or more witnesses present at the same time, and

(c) signed by 2 or more of the witnesses in the presence of the will-maker…

If the will has been validly executed, then the propounder can seek to rely upon the presumption.

The importance of the presumption of due exectuion is illustrated by the recent decision of the B.C. Supreme Court in Grace Estate (Re) 2022 BCSC 1283.

In Grace, the deceased’s father was named as executor in the will.  The deceased’s mother challenged the validity of the will, arguing that the deceased (her daughter) did not read or know the contents of the will before signing it, that she signed the will under suspicious circumstances, and that she may have lacked capacity.

At the first hearing, the court held that there was not sufficient evidence to prove that the will was read by or to the deceased.  That meant there was no presumption of testamentary capacity (another presumption available to the propounder of a will), and the father must prove both that the deceased had capacity, and that she knew and approved of the contents of the will.  The father had failed to prove the will in solemn form by way of application (on affidavit evidence), and the matter was referred to the trial list for proof in solemn form.

However, neither counsel at the first hearing advised the court of the cases discussing the presumption of due execution.  In light of those cases, the father applied for a reconsideration of the original decision.  The order arising from the original decision had not yet been entered, which meant that the original judge could hear further submissions.  The father argued (and the court agreed) that had case authorities on the presumption of due execution been brought to the court’s attention, they would have substantially altered the result.

The court exercised its discretion to reconsider its decision, and concluded that the father has the benefit of the presumption of due execution, and has proven the will in solemn form.  The will had been validly executed in compliance with WESA, and so the facts gave rise to a rebuttable presumption that the deceased knew and approved the contents of the will.  There were no suspicious circumstances.  The mother swore in her affidavit that she asked her daughter whether she had read the will, and her daughter had said “no”.  However, this was not sufficient to rebut the presumption (and was inconsistent with all of the other evidence surrounding the deceased’s intentions)

What I’m Reading: Interesting Estate Litigation Articles for July 2022

The following is a round-up of noteworthy articles published this month on estate litigation and related issues:

  1. Stan Rule at Sabey Rule LLP (Kelowna) and Albert Oosterhoff at WEL Partners (Toronto) both discuss a recent Supreme Court of Canada decision which concluded that taxpayers could not rely upon equitable rescission of transactions to avoid unintended tax consequences: Rule of Law: Collins Family Trust (rulelaw.blogspot.com) and Rescission Not Possible to Avoid Adverse Tax Consequences | WEL Partners Blog
  2. This month, lawyers at at Hull & Hull LLP (Ontario) posted various articles about digital assets and death, including: https://hullandhull.com/Knowledge/2022/07/digital-assets-planning-considerations-for-the-drafting-solicitor/, https://hullandhull.com/Knowledge/2022/07/digital-assets-are-we-keeping-pace/ and https://hullandhull.com/Knowledge/2022/07/apple-digital-legacy/
  3. James Steele at Robertson Stromberg (Saskatchewan) discusses a recent decision of the Saskatchewan Court of Appeal which serves as yet another reminder to put something in writing when you add a family member on title to your property (in this case, a parent adding a child to title), so that your intentions are clear: Saskatchewan Estate Litigation Update: Martin v Martin, 2022 SKCA 79 | Saskatchewan Estate Law Blog (skestatelaw.ca)

Happy reading!