A Testator Cannot Override a Beneficiary’s Statutory Right to Vary a Will

A spouse or child of a deceased person may apply to vary the will of that deceased person, if they do not believe that it made adequate provision for them.  This is obviously frustrating to testators who wish to have the autonomy to distribute their estate as they see fit.

To discourage wills variation claims, testators have attempted to include clauses to discourage wills variation claims or threaten consequences for bringing such claims.  These provisions have been held to be contrary to public policy and void.

For example, in Bellinger v. Nuytten Estate 2003 BCSC 563, the deceased included a clause in her will which provided that if any of the beneficiaries contested the terms of the will, then that beneficiary shall forfeit any legacy they may be otherwise entitled to receive.  The clause was void since it was against public policy to allow a testator to override a beneficiary’s statutory claim (to vary a will) by a provision in her will.

In Ketcham v. Walton 2012 BCSC 175, the deceased left a will that disinherited his adult independent children and instead left his estate to several friends and charities.  The will instructed the executor to take an active role in defending the will if any of the children brought a wills variation claim. The will stated that the executor was authorized to deplete the estate, if necessary, to defendant against the wills variation action, taking as many appeals as necessary to ensure that the deceased’s intentions are carried out.

The court held that while this clause does not obviously prevent a beneficiary from an inheritance if they bring a wills variation claim, that possibility existed.  As a result, the clause was void as contrary to public policy, as it purported to deny the deceased’s children their recourse to the courts.  It was, in effect, the same as what the deceased tried to do in the Bellinger case.

The clause in Ketcham also offended the rule that the executor must remain neutral in wills variation proceedings.  An executor cannot choose sides and take an active role in a wills variation claim.

The courts will not permit a testator to override a spouse or child’s statutory right to apply to vary a will, and any attempt to do so will likely be held to be void.  If you are a testator seeking to avoid wills variation claims, there are other steps which ought to be taken instead.  If you are an executor, you should not take an active role in wills variation litigation.  If you are a disappointed beneficiary, you should not be dissuaded from pursuing your rights by such a clause.

Who Can Dispute the Validity or Provisions of a Will?

A will may be attacked on the basis that the will-maker had lacked the necessary mental capacity to make the will or the will was the result of fraud, coercion or undue influence from someone else.

Such claims may be made by anyone who would benefit from an earlier will if the contested will is set aside or by someone who would, according to Part 3 of the Will, Estates and Succession Act, [SBC 2009] Ch. 13 (“WESA”), benefit if the deceased had died without a valid will at all.

In addition, s. 60 of the WESA gives the spouse and children of a will-maker the right to claim a variation of the will if it does not make adequate, just and equitable provision for him or her. A will variation claim must be commenced within 180 days of the executor named in the will obtaining a grant of probate of the will.

A dispute as to the validity of a will may be started by filing a caveat to prevent the executor obtaining a grant of probate without first proving the validity of the will in solemn form to the satisfaction of the court. If the court is satisfied as to its validity the will may still be subject to a will variation claim.

In an action for proof of a will in solemn form, the court must be satisfied that it was signed in compliance with the statutory formalities (in writing, signed at the end by the will-maker in the presence of at least 2 witnesses who also signed), and the will-maker knew and approved of the contents of the will when signing and he or she had the necessary mental capacity to make a will at the time.

Although the need for strict compliance with statutory formalities has been relaxed by s. 58 of the WESA, the   need to prove that the will-maker knew and approved the contents of the will or other testamentary document or record and he or she had the necessary mental capacity when making the will remains firmly entrenched in the law.

Will-Making Capacity

The test for will-making capacity is not too onerous. Sufficient mental capacity may exist despite cognitive deterioration. The will-maker may have sufficient mental capacity even when his or her ability to manage other matters is impaired or compromised. Having a less than perfect memory is not sufficient to take away will-making capacity unless it is so great as to leave the person without a mind capable of making a valid will. The law recognizes that cognitive deterioration may still allow for short periods of lucidity when will –making capacity is present.

In order to make a valid will, the will-maker must have a “baseline level of mental acuity” or a “disposing mind and memory” which is sufficient to understand the nature and effect of making a will. This includes an understanding as to whether there are persons who would expect to benefit from the will-maker’s estate and the extent of the property of which he or she is disposing. The assessment as to whether the will-maker had possessed the needed mental capacity is a highly individualized question of fact to be determined in all the circumstances. A will-maker cannot be found not to have will-making capacity simply because the will leaves his or her estate in a manner that some people might think unkind.

The person trying to prove the validity of a will may be assisted by a presumption as to the validity of the will. If the will was signed according to the statutory formalities after it was read over by or to a will-maker who appeared to understand the meaning of the will, it may be presumed that the will-maker possessed will-making capacity and knew and approved of the contents of the will when making it.

What if there are Suspicious Circumstances?

The presumption of validity may be rebutted by evidence of well-grounded suspicious circumstances concerning the preparation of the will or tending to call into question the mental capacity of the will-maker at the time or tending to show that the free will of the will-maker had been overborne by acts of coercion or fraud or undue influence.

The standard of proof for establishing suspicious circumstances is a balance of probabilities (more than a 50% chance), which is the standard of proof that applies in civil (non-criminal) litigation.

In order to rebut the presumption of validity, persons attacking the will must demonstrate that there is some evidence which, if accepted, would tend to negate knowledge and approval or will-making capacity. It is important to remember that mere suspicion that something improper may have happened is not sufficient to rebut the presumption of validity; the evidence must raise a specific and focused suspicion. The absence of such evidence will be fatal to a suspicious circumstances argument.

Suspicious circumstances have been found in a wide range of situations which are not necessarily sinister in nature. There is no checklist of circumstantial factors that will invariably fit the classification. Commonly occurring themes include situations where a beneficiary is instrumental in the preparation of the will (especially where the beneficiary stands in a fiduciary position to the will-maker), or where the will favours someone who the will-maker had not previously provided for and does not fall within the class of persons that will-makers usually remember in their wills, namely next of kin.

The validity of a will does not stand or fall on the presence or absence of suspicious circumstances. If suspicious circumstances are established, the presumption of validity fails and the legal burden of proof reverts to the person trying to prove the will to establish the knowledge and approval of the will-maker as well as his or her will-making capacity if the suspicious circumstances had reflected on that capacity.

Wills Variation Claims in BC

Your last will and testament may represent your true intentions with respect to the administration and distribution of your estate.  You likely gave careful thought to what is fair and reasonable.  However, most people in British Columbia are aware that having a will is not necessarily the end of the matter.  After death, your spouse or children may apply to vary your will in certain circumstances.

These circumstances are set out in section 60 of the B.C. Wills, Variation and Succession Act.  That section provides as follows:

…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.

This section has resulted in many disputes, lawsuits and reported court decisions.  Every case has a unique set of facts, and raises a unique issues.  Even a will which may on its face appear fair may result in a (successful) variation claim.  A deceased parent, with no surviving spouse, who leaves their estate in equal shares to their children may seem fair.  But what if one child stepped up and took care of the parent for many years?  What if one child received a large gift before the parent died?

Some Common Issues that Inevitably Arise in Wills Variation Cases

Some issues which the court must consider in a wills variation case (there are many more) include:

  • What is “adequate provision for the proper maintenance of the will-maker’s spouse or children”? This is assessed in the context of legal norms and moral norms, and what a judicious person would do in the circumstances, by reference to contemporary community standards.  If this sounds vague and non-specific, this is because the concept of “adequate provision” is a flexible one, which turns on the particular circumstances of the case.  There is not necessarily a clear answer, and what is adequate may change over time as the views of society change, or may even vary from judge to judge.
  • Did the deceased leave evidence of his or her reasons for making certain gifts or not making adequate provision for his or her spouse or children? If so, the court may accept evidence of the reasons (but it doesn’t have to), and can decide how much weight to give this evidence in light of all the circumstances.
  • If there is to be a variation, what is adequate, just and equitable? This is as flexible as the idea of whether the will-maker made “adequate provision” in the first place.
  • To what degree should the court consider gifts made by the will-maker during his or her lifetime?
  • Did the will-maker take steps to arrange his or her affairs to attempt to avoid a wills variation claim, for example by putting assets in a trust or in joint ownership with right of survivorship? If so, was this effective or should the estate plan be unwound so that assets are returned to the estate?
  • What if the person named as executor is also a beneficiary and wants to vary the will?
  • What if the person named as executor is also a beneficiary and is happy with the will and wants to defend against a wills variation claim brought by an unhappy beneficiary?
  • Only a spouse or child of the deceased can apply to vary the will. Sometimes the parties cannot even agree that the applicant was the “spouse” of the deceased.

All of this is complicated by the fact that the parties to the litigation are family, and emotions run high.

The courts have broad discretion to vary wills.  The province had the opportunity to get rid of or put limits on this discretion when the Wills Variation Act was replaced with the Wills, Estates and Succession Act in March 2014.  They chose not to do so, and so you need to be aware of the possibility of a wills variation claim, whether you are a will-maker, an executor, an unhappy (or happy) beneficiary or a spouse or child of a deceased person.

Cultural Traditions and Making Adequate, Just and Equitable Provision in a Will

If a will-maker dies leaving a will that does not make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may 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.  What is “adequate, just and equitable” is determined in the specific circumstances, and in light of contemporary standards.

What place do the cultural traditions of the will-maker have in this consideration?

This issue arose in the recent case of Grewal v. Litt 2019 BCSC 1154.  The will-maker left each of his four daughters $150,000.  The residue of the estate (the total estate was valued at $9 million) was left to his two sons.  The court had to determine the extent to which this unequal distribution resulted from the will-maker’s East Indian cultural traditions.

The court was not persuaded that the father considered himself bound by any traditions, or that the sole reason for the unequal distribution was adherence to those traditions.  In fact, the court observed that to assume this was the case reflected stereotypical thinking about what “traditional” East Indian parents would do.  However, traditional cultural values had some influence on the father (and the mother) in how they treated their children, including in their wills.

The will was varied, but the estate was not divided equally between the siblings.  The court divided the estate 60 per cent in favour of the daughters and 40 per cent in favour of the sons. The daughters’ share was to be divided equally among the four of them. The sons’ share was to be divided equally between the two of them.

This can be compared to the facts in another case, Prakash v. Singh 2005 BCSC 1545 (which was cited in the Grewal case).  In Prakash, the will-maker adhered to her beliefs in the native Indo-Fijian tradition that sons should inherit all of their parents’ estate to the exclusion of daughters except for token amounts. It was common ground that the will-maker viewed the tradition as binding upon her testamentary choices, or at least highly influential.

The court varied the will to increase the gifts to the daughters, but also did not divide the estate equally between the siblings.  There was a rational and reasonable basis to favor the sons moderately regardless of her traditional values.  While these circumstances by no means rise to the level of her predominant reason for her choices (her traditions) they are compelling enough to recognize a measure of legitimacy in her will.

B.C. courts will not permit unequal treatment of children on the basis of cultural traditions.  However, they will not necessarily order that all siblings be treated equally.

Admitting to Probate a Document or Record That Does Not Meet the Requirements of a Will

One of the most anticipated changes to B.C. estate litigation legislation was the introduction of s. 58 of the Wills, Estates and Succession Act [“WESA”], which allows the court to “cure deficiencies” in a will.  This permits the court to admit to probate a document or record that does not meet the technical requirements of a will.

Prior to the passing of WESA, will-makers were required to comply strictly with certain formalities relating to the execution and attestation of a will.  If these formalities were not met, the will was not valid, and the will-maker’s testamentary intentions would be defeated even if those intentions were clear.

Section 58 of WESA provides that the court may determine that a document or record (including an electronic record) represents the testamentary intentions of a deceased person, and order that it is fully effective as though it had been made as the will or part of the will of the deceased person.

For an order to be granted, the court must be satisfied that (1) the document is authentic, and (2) the document represents the deceased’s testamentary intentions.  The section does not require any minimum level of execution or other formality, although the further a document departs from the formal requirements the harder it may be for the court to find it embodies the deceased’s testamentary intentions.  Regardless of form, the document may be admitted to probate: a handwritten letter, unwitnessed and unsigned, an email, a text message or other instant message, a scribbled “to do” note, a draft Word document.

By way of recent example, in Bizicki Estate 2019 BCSC 2142 the court admitted three notes left by the deceased in his room stating his wish that his girlfriend receive the money in his bank accounts and other personal property.  Two of the notes were undated.  Two of the notes were unsigned.

In Hubschi Estate (Re) 2019 BCSC 2040, another recent court decision, the court admitted an entry found on the deceased’s home computer that read “Get a will made out at some point. A5 – way assets split for remaining brother and sisters. Greg, Annette or Trevor as executor.”

As a result, even when there is no formal will there may be a document or record which sets out the deceased’s testamentary intentions, which may be admitted for probate.  It is important to conduct a careful search of a deceased’s records, including electronic records, to locate any such document.

“Spouse” or “Friend”? (or “Complete Stranger”?): Proving a Spousal Relationship to Make a BC Wills Variation Claim

A spouse or a child of a deceased person may bring a proceeding to vary the deceased’s will if they believe that the will does not make fair provision for them.  But before the court will consider whether the will was fair, the person making the claim must establish that they have standing:  was the person actually a child or spouse of the deceased?  Standing as a “child” is fairly straightforward.  Whether someone was a “spouse” can be more complicated.

A Hypothetical to Consider:  The Unexpected Spouse

Consider this:  Your father passes away. Your mother died a few years before him and your father did not remarry.  He leaves a will, naming you as executor, and dividing his estate equally between you and your siblings.  You start administering the estate, when you are suddenly served with a notice of civil claim:  someone has started a lawsuit claiming to be your father’s spouse at the time of his death, and this person is seeking a share of his estate.

Perhaps the claimant is someone you believed to be only a “friend” of your father;

Perhaps the claimant is someone that you believed to be a “girlfriend” of your father, and you are aware that they went on a few dates, but you don’t believe they had been dating for more than two years, or that they were living together;

Perhaps the claimant was a roommate or tenant of your father;

Perhaps the claimant was a resident at the same care facility as your father; or

Perhaps you have absolutely no idea who the claimant is – you’ve never even heard of her.

Whatever the case, you do not accept that this person was your father’s spouse at his death.  What do you do?

The Onus is on the Person Claiming to be a Spouse to Prove a Spousal Relationship

It is important to remember that the onus is on the person claiming to be a spouse to prove a spousal relationship.

Two people are “spouses” for the purpose of making a wills variation claim if, at the date of death of the deceased (1) they were married to each other; or (2) they had lived with each other in a marriage-like relationship for at least two years.  Whether #1 is met is usually obvious.  It is #2 that causes problems.

For common law spouses (not legally married), a claimant must establish: (1) that he/she was living with the deceased for at least two years; AND (2) that he/she lived with the deceased “in a marriage-like relationship.”  Simply living together (i.e. roommates, friends) is not enough to meet the test.

The Court will Delve into the Details of the Alleged Relationship

In this type of case, the court will almost always be presented with two very different versions of the relationship.  The alleged spouse will claim a close and intimate relationship.  The beneficiaries will claim that the alleged spouse was a friend, or a roommate (or even a stranger).

The parties will have to present evidence to support their version of events.  The court will be forced to consider the intimate details of the relationship.  For example:

(1)   SHELTER: Did the parties live under the same roof? What were the sleeping arrangements?

(2)   SEXUAL AND PERSONAL BEHAVIOUR: Did the parties have sexual relations? If not, why not?  Did they maintain an attitude of fidelity to each other?  Did they eat their meals together?  What, if anything, did they do to assist each other with problems or during illness?   Did they buy gifts for each other on special occasions?

(3)   SERVICES: What was the conduct and habit of the parties in relation to preparation of meals, washing and mending clothes, shopping, household maintenance, etc…

(4)   SOCIAL: What was the relationship and conduct of each of them towards members of their respective families, friends, and the community?  Were they perceived as a couple in the community?

(5)   SUPPORT (ECONOMIC): What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.) or the acquisition and ownership of property?  Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?

A fact-specific inquiry

Obviously, this is a very fact-specific inquiry – no two relationships are exactly the same, and different people have different views of what constitutes a “normal” common law spousal relationship.  Some factors may support a finding that there is a spousal relationship, while some factors may weigh against such a finding.  The court must weigh all of the evidence and make a determination.

Removal of Human Reproductive Material from a Deceased Person

There are some fairly typical claims that we see in estate litigation:  wills variation, lack of testamentary capacity, undue influence, resulting trust over jointly owned assets, and improper conduct by executors.  L.T. v. D.T. Estate 2019 BCSC 2130 [“L.T.”], a decision of the B.C. Supreme Court handed down on December 9, 2019, was not a typical estate litigation case.

In L.T., the petitioner wife applied for an order that her deceased husband’s sperm be removed from his body to be used for reproductive purposes by his wife.

The Assisted Human Reproduction Act and the Assisted Human Reproduction (Section 8 Consent) Regulations allow you to provide written consent to remove human reproductive material from your body after your death for the purpose of creating an embryo.

However, the deceased person had not provided his written consent in the L.T. case.  The deceased and his wife had never discussed the issue.  He had died suddenly and unexpectedly.  He had been in a long term relationship with his wife.  They had very recently become parents, and it was accepted that the deceased expressed while alive that he wished to have more children.

The wife argued that the requirement for written consent should only apply when a deceased person contemplated or anticipated their death, and should not apply when the death was unexpected.  The court rejected this argument.  The court also rejected the argument that the sperm removed and stored (pending a court ruling) was property which vested in the wife.

The application was dismissed.  The wife was not entitled to receive her deceased husband’s sperm for reproductive purposes because he had not provided his written consent during his lifetime.

As the court noted, most young couples do not put their minds to this set of circumstances.  But with ever-improving technologies and changing views of ethics and the family, this is likely a discussion that will continue in the home, in the legislature, and in the courts.

Testamentary Capacity – When is someone able to make a will?

Consider the following:  Your mother has always told you that she intended to leave her estate to you and your sister in equal shares.  However, when she dies a wills search reveals that she executed a will approximately one year before her death.  At that time, she was residing in a care facility, and was suffering from mild dementia (although her dementia got much worse in the period leading up to her death).  In this will, she leaves her entire estate to charity.  A noble act, but completely inconsistent with what she told you.  There is a previous will (before any degree of dementia), which distributes her estate equally between you and your sister.

A will-maker must have testamentary capacity

In order to make a valid will, a will-maker must have a baseline level of mental acuity sufficient to appreciate the nature and effect of the testamentary act, referred to as testamentary capacity.  If a testator lacks testamentary capacity at the time that he or she makes a will, then that will is invalid.

When it appears that a testator has left an unusual will, has excluded a beneficiary who ought to have been included, or has made changes to a previous will at a time when their level of capacity is questionable, then the issue of testamentary capacity should be considered.

If a will is held to be invalid because the testator lacked testamentary capacity, then the previous will – made when the testator still had capacity – would continue to be in effect (if such a will exists).

Test for testamentary capacity

The test for testamentary capacity is set out in Banks v. Goodfellow, a decision from the England Queen’s Bench from 1850.  This test continues to be applied today.  The test for testamentary capacity requires the following from the testator at the time the will is made:

  1. understanding the nature of the act of making a will and its consequences;
  2. understanding the extent of one’s assets;
  3. comprehending and appreciating the claims of those who might expect to benefit from the will, both those to be included and excluded;
  4. understanding the impact of the distribution of the assets of the estate; and
  5. that the testator is free of any disorder of mind or delusions that might influence the disposition of his or her assets.

If any of the above requirements are not met, then the testator lacks the capacity to make a valid will.

Otherwise incapable people may still have testamentary capacity

The issue of whether a testator has the capacity to make a will is a highly individualized and fact-specific inquiry, which will depend upon the circumstances of each case.

The test for testamentary capacity is a very specific test.  For example, it is not the same as the test for whether someone is incapable of managing their own affairs.  Although it is recognized that dementia can impair a testator’s mental powers such that he is not capable of making a will, a diagnosis of dementia, standing alone, does not automatically mean that a testator lacks testamentary capacity.  Similarly, a person who is declared incapable of managing his or her affairs pursuant to adult guardianship legislation or suffers a chronic psychotic illness such as schizophrenia may still have the capacity to make a valid will.  Isolated memory or other cognitive deficits on their own do not establish a lack of testamentary capacity.

The relevant considerations are those set out above, from the Banks v. Goodfellow case – the testator must appreciate the extent of her assets, the consequences of her will, and the effect of including and excluding certain persons who might expect to benefit from the will.

Timing is key when considering testamentary capacity

When considering whether a testator had testamentary capacity, timing is key.  The two relevant times are: (1) when the testator gives instructions to draft the will, and (2) when the will is signed.

There are cases in which a testator will have capacity to give instructions, but loses capacity before the will is signed.  In those cases, the will may still be valid so long as, at the time of execution, the testator was capable of comprehending that she was executing a will drawn in accordance with her previous instructions (when she had capacity).

Proof/evidence of testamentary capacity

How does one prove (or disprove) capacity?

Testamentary capacity is not a medical diagnosis; it is a legal threshold.  Accordingly, scientific or medical evidence – while important and relevant – is neither essential nor conclusive in determining the presence or absence of testamentary capacity.

The evidence of lay witnesses (such as the observations of family and friends at the relevant time) is often considered by the court when determining whether a testator had testamentary capacity.

Where available, the court will rely upon evidence from the solicitor who prepared the disputed will.  It is important that the drafting solicitor keep detailed notes when capacity is an issue – the will may not be disputed for many years after it is prepared, and the drafting solicitor may have prepared hundreds or even thousands of wills in the meantime, and he or she may have no independent recollection of the testator and the will that they prepared.  In that case, the drafting solicitor must rely upon the file and their notes.

If testamentary capacity is shown, that is not necessarily the end of the matter

Even if the requirements for testamentary capacity are met, there still may be other concerns surrounding the execution of the will.  In particular, where an individual’s mental capacity is diminished, he or she will be more vulnerable to undue influence.  A claim of undue influence can be made in addition to, or in the absence of, a claim that a testator lacked testamentary capacity.