Author: James Zaitsoff

DNA TESTING ORDERS IN ESTATE LITIGATION

February 2, 2026

Questions of parentage occasionally arise in estate litigation. A person may die intestate (without a will) and the status of a ‘descendant’ child may be questioned.  Alternatively, a deceased person may leave a will that excludes someone who makes a claim to be the will-maker’s child, prompting a wills variation claim. In both situations, whether the deceased is genetically related would be an important issue at trial.

The current state of the law in B.C. is that a “child” for the purposes of wills variation claims — and entitlement on an intestacy — is limited to natural or adopted children of a deceased (although the B.C. Court of Appeal in Peri v. McCutcheon, 2011 BCCA 401, has left open the possibility that a future case might justify a broader interpretation).

In two recent decisions of the Supreme Court of British Columbia — Morberg Estate (Re), 2025 BCSC 2265, and Hyslop v. Banks, 2024 BCSC 1848 — parentage was in issue and interlocutory (pre-trial) orders were sought for a plaintiff/beneficiary to undergo DNA testing. These decisions provide a useful overview of factors a Court will consider when asked to make this type of order in estate litigation cases.

Background

In Morberg, the deceased had raised two daughters and died without a will. One sister alleged the other was not the natural child of the deceased and sought a DNA testing order. She alleged her sister, mother (when in hospital dying) and her father (on his ‘deathbed’) had all made statements that the sister was not the deceased’s biological child. The deceased was named on the sister’s birth certificate and had acted as her father throughout her life.

In Hyslop, the deceased left a will naming four children as beneficiaries and excluding the plaintiff, who brought a wills variation claim. The deceased was married to the plaintiff’s mother at the time of her birth, was named as father on her birth certificate, and referred to himself as her father throughout her life, including shortly before his death. The defendants relied on various statements allegedly made by the deceased and the plaintiff’s mother suggesting he was not her biological father, as well as evidence that the plaintiff’s younger sister – who shared the same mother – had learned through genetic testing that she was not the deceased’s biological child.

Jurisdiction and Principles Governing an Order for DNA Testing

The Court in both cases confirmed that it has jurisdiction to order DNA testing under the Supreme Court Civil Rules – Rules 7-6(1) and (4) – which allow orders for medical examinations and inspection/preservation of property.

While neither decision sets out a rigid test, a court will look at the following factors on an application:

  • Whether a DNA test is relevant and will materially assist the court in narrowing and focusing issues. When biological lineage will be a central issue at trial, a DNA test can provide probative information and may be determinative;
  • Whether there is a sufficient evidentiary basis to make an order.  While hearsay is allowed on these applications, speculation, bare assertions, unsubstantiated family rumors and statements made without any context are unlikely to suffice;
  • The invasiveness of the mechanism of a DNA test (cheek swab); and
  • The privacy interests engaged.  A DNA sequence is intimate personal information. An order compelling DNA to be provided will lead to information being stored outside of a person’s control and potentially vulnerable to release (i.e. data breach).

In Hyslop the Court made the order for DNA testing. Although the evidence relied upon by the defendants was largely hearsay and contested, the Court was satisfied that there was a sufficient evidentiary foundation to justify testing (particularly with the sister learning she was not the deceased’s child). Given the minimal physical intrusion of the test and its potential to significantly narrow the issues for trial, the Court found it was in the interests of justice. Interestingly, the Court in Hyslop did not consider the privacy interests engaged by a DNA test.

In the November 2025 decision of Morberg, privacy considerations were central, and the Court noted that evidence supporting a DNA testing order had to be compelling enough to justify an ‘invasion of privacy.’ The Court in that case declined to order testing as the evidence was an ‘unsubstantiated family rumor’ and was an insufficient basis.

Key Takeaways:

  • B.C. Courts have jurisdiction to order DNA testing in estate litigation under the Supreme Court Civil Rules but such orders are discretionary and will be fact-specific.
  • Applicants must present a credible evidentiary foundation to justify testing – rumours and uncorroborated hearsay will likely not suffice.
  • Privacy interests are engaged with DNA testing and there must be a sufficient evidentiary basis to justify an ‘invasion of privacy.’
  • While a negative test may very well be determinative, the B.C. Court of Appeal has left open the possibility of making an argument that the definition of ‘child’ should be expanded.

B.C. CASE COMMENT – CAN AN EXECUTOR IN A CONFLICT OF INTEREST AVOID REMOVAL?

January 26, 2026

In my practice, I often hear from beneficiaries who are concerned about the person named as executor in the deceased’s will. A common situation arises where an executor managed the deceased’s finances during their lifetime – often under a power of attorney – and is later accused of misusing funds or benefiting personally to the detriment of the deceased and their estate. In these circumstances, beneficiaries frequently ask whether the executor can remain in that role, particularly where the beneficiaries are looking to recover estate assets from the person named as executor.

Under the Wills, Estates and Succession Act (“WESA”), s. 158(3), and at common law, beneficiaries may apply to the court to have an executor ‘passed over’ or removed for a conflict of interest (among other grounds) and appoint another person to administer the estate. When a new personal representative is appointed, they may investigate or take steps to recover assets from the former executor if doing so is in the best interests of the estate.

Section 151 of WESA provides a different option. It allows beneficiaries and other specified persons to apply to the court for permission to bring a claim on behalf of an estate where an executor will not act, including a claim against an executor personally. Importantly, s. 151 permits beneficiaries to pursue an estate claim without first seeking the removal of the executor.

In Chiu Estate (Re), 2025 BCSC 2196, the B.C. Supreme Court was asked to consider whether section 151 has overtaken or altered the common law approach to conflicts of interest in estate administration and whether it should now be the preferred method for dealing with certain executor conflicts instead of passing over or removing the executor.

Background

In Chiu, the deceased appointed one daughter as executor and the daughter’s husband as alternate executor. During the deceased’s lifetime, the daughter acted under an enduring power of attorney and appeared to have used the deceased’s funds and home for the benefit of herself and her husband.

Concerns about the management of the deceased’s finances became serious enough that the Public Guardian and Trustee (“PGT”) launched an investigation. The PGT identified transactions that were financially detrimental to the deceased and was ultimately appointed as committee of the deceased’s person and estate.

After the deceased’s death, a beneficiary applied to pass over both the executor and alternate executor under s. 158(3) of WESA, alleging a conflict of interest. The executor responded that if a conflict existed, it could be managed through s. 151.

Conflicts of Interests in Estate Administration

Section 158(3) of WESA provides the statutory basis for passing over or removing an executor. In addition, the court has inherent jurisdiction at common law to do so. I have written previously about the principles guiding a court in these applications, but the chief consideration is the welfare of beneficiaries.

Conflicts of interest – whether real or perceived – have long been recognized at common law as a basis for passing over an executor. As set out in Chiu, an executor owes a fiduciary duty to the estate and beneficiaries, meaning they must put the interests of the estate ahead of their own. A conflict arises where the executor is unable, or appears unable, to set aside their personal interests.

As the Court noted in Chiu, a clear example arises where beneficiaries may wish to recover assets from the executor personally. In such cases, the conflict is between the executor’s personal interest in retaining those assets and their duty to maximize the value of the estate. Simply put, an executor cannot pursue estate assets while simultaneously claiming those assets as their own.

That said, the Court emphasized that a conflict must be grounded in evidence. There must be a “viable claim” – or at least a claim requiring investigation – against the executor. A conflict cannot be manufactured simply to disqualify them.

The Role of WESA s. 151

I have written previously about applications for standing under s. 151 here.

In Chiu, the Court confirmed that s. 151 is remedial. It does not eliminate a beneficiary’s right to seek to pass over an executor who is in a disabling conflict of interest. Rather, it can provide a more convenient option in appropriate cases.
For example, s. 151 may be preferable where a conflict is limited to a discrete issue and beneficiaries are otherwise comfortable with the executor continuing, or where estate administration is almost complete and removal would cause delay.

Application of the Law

The executor argued that where a conflict is limited and manageable, s. 151 should be used instead of passing over an executor. The Court rejected that argument holding that “section 151 does not, and could not, derogate from the common law principle that an executor cannot act in the best interests of the estate beneficiaries if their personal interests are out of line with their duty to maximize the value of the estate.”

The Court held that it was the beneficiary’s choice whether to seek to pass over an executor under s. 158(3) or pursue a claim under s. 151.

The Court found that both the named and alternative executor were in a serious and disqualifying conflict of interest. The claims were not speculative; the PGT had identified multiple transactions giving rise to potential claims by the estate. An independent personal representative was therefore required to investigate and consider recovery of funds.

The Court ordered that both the executor and alternate executor be passed over and appointed an independent personal representative to administer the estate.

Takeaways

  • Chiu confirms that while section 151 of WESA can be a useful tool for beneficiaries seeking to pursue a claim against an executor personally, it does not require them to litigate around a conflicted executor.
  • Conflicts of interest remain a fundamental concern, and the court’s role in protecting estates and beneficiaries remains unchanged.

Case Comment: Testamentary Capacity Not Proven Where Will Executed After Diagnosis of Moderate to Severe Dementia

January 19, 2026

In our estate litigation practice we frequently hear from clients who are deeply concerned about a will made when a parent or loved one was experiencing cognitive decline. This was the situation in the recent decision of Lavictoire v. Schwartz, 2025 BCSC 2565, where the Supreme Court of British Columbia was asked to determine whether a will executed shortly after a diagnosis of moderate to severe dementia could be upheld. The Court concluded it could not.

When cognitive decline intersects with late-life testamentary change, courts are rightly cautious. As the Court observed in Lavictoire, testamentary capacity is a “thorny issue”—particularly where a will represents a sharp departure from a prior estate plan and is made in the shadow of declining cognition.

Background

The deceased executed a new will only weeks after her granddaughter commenced a committeeship petition seeking control of the deceased’s person and estate. That petition followed closely on the heels of specialist medical assessments diagnosing the deceased with moderate to severe dementia.

The deceased had two sons, both of whom predeceased her. One son left two daughters—the plaintiff and her sister—who were the deceased’s only grandchildren. The deceased also had a sister, two nieces, and a nephew.

Under a prior will, the estate was left to the deceased’s two sons, without a gift-over. On that footing, the estate would pass on intestacy to the two granddaughters in equal shares. The new will, executed after the dementia diagnosis, significantly altered that result. It divided the residue equally among six family members and included a gift-over clause among the residual beneficiaries. By the time of the deceased’s death, the practical effect was that four beneficiaries—including the plaintiff—would receive an equal share.

Medical Evidence and the Committeeship Proceeding

In the months leading up to the execution of the impugned will, the deceased experienced marked cognitive decline. She was hospitalized on multiple occasions and assessed by both a geriatric specialist and a psychiatrist. Each observed that she lacked meaningful understanding of her personal care needs and financial affairs.

Both physicians later swore affidavits in the committeeship proceeding. One diagnosed moderate to severe dementia due to Alzheimer’s disease or Lewy Body Dementia; the other diagnosed Lewy Body Dementia. Both found that the deceased was unable to answer basic questions concerning her finances.

The Will-Making Process

Shortly after service of the committeeship materials, one of the deceased’s nieces—later a beneficiary under the new will—contacted counsel to arrange for the preparation of a will.

The drafting solicitor, who was also named as executor, met with the deceased and the niece. The niece acted as a Polish interpreter and assisted with instructions. The solicitor was aware of the committeeship proceeding and that capacity was potentially in issue.

The solicitor completed a “master checklist” during the meeting and recorded conclusions under a heading titled “Testamentary Capacity Assessment.” However, he kept no notes of the questions asked or answers given that led him to believe the deceased had capacity, had no meaningful record of her assets or their value, and had no clear understanding of the terms of the prior will or the implications of the changes being made. Cross-examination left unclear whether dispositive instructions originated from the deceased or the niece.

A Polish-speaking colleague later reviewed the will with the deceased, reading it aloud paragraph by paragraph. The deceased indicated agreement or nodded but asked no questions. The colleague testified that he was satisfied the deceased understood the will.

The Law on Testamentary Capacity

The Court reaffirmed the classic test from Banks v. Goodfellow (1870). Testamentary capacity requires that a will-maker understand:
1. the nature and effect of making a will;
2. the extent of the property being disposed of;
3. the claims of those who might reasonably expect to benefit; and
4. that no disorder of the mind influences the dispositions.

Capacity is a legal, not medical, determination. A diagnosis of dementia—or even the existence of a committeeship—is not dispositive. That said, cognitive impairment sufficient to ground a committeeship demands careful and exacting scrutiny of the evidence.

Suspicious Circumstances and the Burden of Proof

At common law, a will that is duly executed with the required formalities (after a testator has read and appears to understand the terms of the will) gives rise to a rebuttable presumption of knowledge, approval, and testamentary capacity. That presumption, however, falls away where suspicious circumstances are present, shifting the burden of proof to the propounder to prove the will’s validity.

There is no closed list of suspicious circumstances, but beneficiary involvement in the preparation of a will is a familiar and powerful example.

Here, the Court identified several circumstances, including:
– a beneficiary’s instrumental role in arranging the will;
– recent medical diagnoses of moderate to severe dementia;
– medical evidence that the deceased could not answer basic financial questions shortly before the will was made; and
– a marked departure from the prior testamentary scheme.

Taken together, these circumstances displaced the presumption and placed the burden squarely on the propounder.

Failure to Establish Testamentary Capacity

The propounder did not meet that burden. There was no persuasive evidence that the solicitor asked questions capable of eliciting the deceased’s understanding of the nature and effect of the will, the extent of her assets, or the consequences of altering her prior estate plan.

The checklist the solicitor used did not track the Banks v. Goodfellow criteria. The evidence suggested reliance on closed, confirmatory questions. As the Court emphasized, the ability to give rational answers is not enough. A will-maker must be able to hold the essential elements of the testamentary act “in some degree of appreciation as a whole.”

Nor did the mere reading aloud of the will, without probing comprehension, assist in establishing testamentary capacity.

Conclusion

The Court declared the will invalid, concluding that testamentary capacity had not been proven by the propounder on a balance of probabilities.

Key Takeaways

– A diagnosis of dementia does not automatically negate testamentary capacity, but it may rise to the level of a suspicious circumstance.
– Wills made in the shadow of a committeeship application will attract close scrutiny. Drafting solicitors bear heavy responsibility in contexts where a testator is suffering from cognitive decline and should ask—and carefully record—open-ended questions that map onto Banks v. Goodfellow criteria; checklists and yes-or-no answers may not suffice.
– Beneficiary involvement in the will-making process remains one of the most potent suspicious circumstances in estate litigation

B.C. Case Comment: Court of Appeal Overturns Award Against Notary who Witnessed Signature to Land Transfer

June 14, 2024

What duties does a notary (or lawyer) have when witnessing a signature on a document, such as a land transfer document, to ensure that the person signing the document understands that document and is voluntarily signing it? What if you are only retaining this person for the limited purpose of witnessing your signature because the document must be notarized?

In Engman v. Canfield 2023 BCCA 56, a notary witnessed a signature on a Form A Transfer document, which transferred her 20-acre property to a third party. The notary only witnessed the signature (and was paid $50 for his services). It turned out that the transfer was part of an unconscionable purchase and sale agreement, and the transferor was “situationally vulnerable” when she signed the document. She was elderly, had health problems, and was feeling pressure to sell. She was also deprived of important information when she agreed to the sale, and the agreement was the product of unequal bargaining power and was an improvident bargain. However, the notary was not aware of any of this.

When the transferor was not paid for her property, she brought a claim against various defendants, including the notary (who she sued for negligence). At trial, the notary was held liable for $465,000 in damages, which was the fair market value of the property at the time of the transfer.

At trial, the Court found that the notary owed the transferor a duty to act with reasonable care when he witnessed her signature, and he breached that duty by not inquiring into the transferor’s capacity, her understanding of the form, the voluntariness of the transfer, or that she received independent legal advice.

The B.C. Court of Appeal allowed the appeal, and dismissed the action in negligence against the notary.

The notary argued that he was merely an “officer” witnessing a signature on a Land Title transfer form, and so he had very narrow responsibilities to confirm the identity of the person signing the form and confirm this was the person named in the form, and witness that person’s signature on the document.

The Court of Appeal did not accept this. The notary was acting in his role as a notary public, and there are standards established for his profession, including urging unrepresented persons to obtain independent legal advice, and if they fail to do so taking care to make sure the person is not under the impression that their interests would be protected by the notary. The Court of Appeal held that the Land Title Act and the notary’s professional guidelines required him to go beyond confirming the identity of the signatory and the fact that the signature on the document belongs to that person. For example, the guidelines provide that notaries should make sure the signature is given voluntarily, and the signatory is aware of the significance of the transaction.

The Court of Appeal upheld the finding of the trial judge that the notary breached his standard of care. However, the Court of Appeal allowed the appeal of the finding of causation. The trial judge found that had the notary insisted that the transferor receive legal advice before he witnessed the form (which he was supposed to do), she would have avoided the loss. The notary argued that this was conjecture, and that the loss would have been suffered in any event.

A defendant is not liable in negligence unless their breach caused the plaintiff’s loss. In some cases, causation can be established by inference, but it cannot be guesswork or conjecture. The Court of Appeal held that there were too many unknowns about what would have happened if the notary had met the standard of care, and that the transferor failed to establish on a balance of probabilities that had the notary made in proper inquiries and declined to witness the Form A because of the responses, the transferor would have acted in a different manner. The other evidence in the case showed that the transferor had capacity, and was not interested in seeking legal advice about the inherent risks.

The appeal was allowed that the claim in negligence against the notary was dismissed.

B.C. Case Comment: Court Awards Damages For Amount Received by Defendant from Deceased Days Before Death

June 7, 2024

If there are suspicions transfers during the deceased’s lifetime, these can be scrutinized and investigated after the death of the deceased. A personal representative ought to consider whether any large transfers should to be challenged, on the basis that a gift was not intended, or that the transfer is otherwise invalid (i.e. due to undue influence, lack of capacity).

In Schwab Estate v. Warriner 2023 BCSC 220, the deceased died from a fentanyl overdose at the age of 47. He had two children, aged 11 and 9. The deceased did not leave a will.

There was a dispute as to whether the defendant was living in a marriage-like relationship such that she was a “spouse” of the deceased. If she was a spouse, she would get a share of the estate under an intestacy. If she was not a spouse, then the children would get the entirety of the estate. It was held that the defendant was not a spouse. This is a highly fact-specific inquiry. I discuss the issue of consideration of spousal status in other posts, for example here.

The second issue in Schwab Estate related to a transfer of $350,000 from the deceased to the defendant four days before his death. The deceased sold his home five weeks before he died, received $800,000 from the sale, and provided a $350,000 bank draft to the defendant.

The defendant argued that the deceased owed her money, and the $350,000 draft was to pay her back. She said that the deceased owed her money for being the primary bread-winner for the years they were together. She gave evidence that there was an agreement between her and the deceased about the approximate amount of the debt and what he was to repay to her.

The court rejected this claim. The Court did not accept the defendant’s testimony, and the documents (in particular bank records) did not assist with her position. There was no evidence of an agreement to pay, and there was no evidence that the amount that would have been payable was $350,000. The Court relied upon the testimony of a witness who described a conversation which suggested that the deceased did not consider that he owed the defendant any money. The bank records also showed that the deceased attended to payment of other debts that he discussed with other parties (including a debt to his drug dealer).

As a result, the transfer was gratuitous and the presumption of resulting trust applied. The defendant failed to establish that the deceased intended to gift her the funds. The evidence was that the deceased intended to gift the funds, potentially with the deceased’s brother. There was also evidence that the deceased intended to shield the monies from the mother of his children.

The Court also held that the transfer was procured by undue influence. The deceased did not transfer the $350,000 of his own full, free and informed thought. The deceased was vulnerable as a result of his ongoing drug addiction, health condition, and paranoia about the mother of his children.

The funds had been spent without an accounting, and so they could not be simply returned. Instead, the court awarded the deceased’s estate damages in the amount of $350,000. The Court also awarded punitive damages in the amount of $50,000, for using her position for her own profit, and spending all of the money with no accounting.

What I’m Reading: Interesting Estate Litigation Articles for May 2024

May 31, 2024

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

  1. Kiran Sanghera at Hull & Hull LLP (Ontario) discusses a recent Ontario case in which the contents of the deceased’s journal were validated as a will: https://hullandhull.com/Knowledge/2024/05/finding-a-notebook-to-be-a-will/.   This can be contrasted with the B.C. decision in Hadley Estate (Re) 2017 BCCA 311, where the B.C. Court of Appeal concluded that an entry in a journal did not represent the deliberate and final expression of the deceased’s testamentary intentions.
  2. Gillian Fournie at de Vries Litigation LLP (Ontario) discusses the differences between renouncing, removing and passing over: https://devrieslitigation.com/renounce-remove-pass-over-difference/
  3. Venessa DeDominicis of Pushor Mitchell Lawyers (Kelowna) writes about the effect of marriage or divorce on a will: https://pushormitchell.com/2024/04/marriage-divorce-and-your-will/
  4. Ian M. Hull, also at Hull & Hull LLP, discusses the duty to disclose the transfer of estate assets during estate litigation:  https://hullandhull.com/Knowledge/2024/05/is-there-a-duty-to-disclose-the-transfer-of-estate-assets-during-estate-litigation/
  5. Michael McKiernan authored a post on advisor.ca which discusses a B.C. case in which the court refused to compel an unwilling senior to undergo a capacity assessment: https://www.advisor.ca/tax/estate-planning/court-refuses-to-force-capacity-assessment-on-unwilling-senior/

Happy reading!

Relying Upon Hearsay Statements of the Deceased to Establish Intention

May 24, 2024

In many estate litigation cases, the court may benefit from evidence of the intentions of the deceased. For example, whether an asset transferred by the deceased was intended to be gift or is held in resulting trust depends upon the intention of the deceased. As the deceased person cannot give evidence, the court is often asked to rely upon out-of-court statements of the deceased to other persons – hearsay evidence. The court is asked to consider the hearsay statements for the truth of their contents, despite the fact that the person making the statement is deceased and unavailable for clarification, expansion or cross-examination.

If an exception to hearsay doesn’t apply, then the court must consider whether a statement should be admitted under the principled approach to hearsay:

  • The hearsay rule provides that out-of-court statements are presumptively inadmissible to prove the truth of what was said, subject to traditional exceptions and the principled exception.
  • The party seeking to lead hearsay evidence must prove necessity and reliability.
  • Necessity is relatively easy to establish in this type of case – the person making the statement has died and cannot give evidence, and so it is necessary to introduce the evidence through hearsay;
  • Turning to reliability, the statement must meet the requirement of threshold reliability (whether the evidence is admissible) and ultimate reliability (the degree to which the hearsay evidence is accepted or relied upon).
  • A relevant factor is the presence of supporting or contradicting evidence.
  • With respect to threshold reliability:
    • First, procedural reliability is established where there is a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the statement because adequate procedural safeguards were present at the time it was made. For example, was the statement made under oath?
    • Second, substantive reliability arises from the circumstances in which the statement came about or was made. It may be established where there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy, or the statement was made in circumstances where cross-examination would add little or be unlikely to change it.

In the estate context, the approach is often to first determine whether a hearsay statement was even made. Once satisfied the statement was made, if the party giving evidence that the statement was made (i.e. to them) is a party interested in the outcome (i.e. the statement helps their position), then this is dealt with by determining the weight to be attributed to any particular statement. The weight to be given may turn on the credibility of the witness.

In Manhas v. Manhas 2024 BCSC 52, the deceased had three children. Two of them were equal beneficiaries of his estate. Approximately five months before his death, the deceased sold his home, and transferred the proceeds of sale to a bank account held jointly with one of his children. This transfer left his estate with virtually nothing. The issue was whether the transfer of sale proceeds into the joint account constituted a gift to the child who was a joint owner.

The donee testified that her father told her that he wanted her to have the sales proceeds from the house – the hearsay statements. The Court admitted the hearsay evidence. The done was a credibility witness, and the statements were consistent with his conduct (other evidence). This, and other evidence, established that the father intended to gift the proceeds of sale to his daughter.

B.C. Case Comment: Transfer of Property to Child Set Aside on Basis of Undue Influence

May 17, 2024

I have previously discussed that gifts are irrevocable, and so a donor cannot change their mind and seek to take back property that they have gifted. However, the Court may set aside a gratuitous transfer if it was procured by undue influence, whether that be intentional influence or unintentional influence.

In Sandu v. Sandu 2023 BCSC 323, the Court considered the transfer of property in 2016 from a husband and wife to their youngest son. The property was the parents’ only substantial asset. The transfer was purportedly a gift, and no consideration was paid by the son. The parents later requested that their son transfer title to the property back into their names, and he refused to do so.

In this case, the Court ordered that the transfer be set aside, and title be restored to the parents.

At the time of the transfer, the father was 91 years old and the mother was 88 years old. Neither of them received any formal education, neither of them spoke or read English, and both of them were functionally illiterate in their mother tongue of Punjabi. They had always been completely dependent on family members for assistance with written transactions. In fact, their eldest son was appointed as their litigation guardian for the trial of the action.

Equity presumes bargains over gifts. Where property is transferred to another without consideration, the presumption of resulting trust applies. The onus is on the transferee to rebut the presumption by demonstrating that a gift was intended.

In B.C., section 23(2) of the Land Title Act provides for a statutory presumption of indefeasibility – the idea that registration of title is conclusive evidence at law and in equity that the person named on title is indefeasibly entitled to an estate in fee simple in the land. In other words, the registered owner is presumed to be the true beneficial owner of the property.

However, the presumption of indefeasibility can be rebutted, including by the existence of a resulting trust, and also if the registered owner took their interest by the exercise of undue influence. There can be no gift where the transfer was made under undue influence.

There are two branches of undue influence for inter vivos transfers:

  1. intentional or actual undue influence; and
  2. unintentional or presumed influence.

The first branch is characterized by the influencer’s conduct, and may include:

  • “overt and violent threats (give me the house or I’ll beat you…);
  • “subtle forms of persuasion (give me the house or I don’t know if I’ll be able to look after you anymore…)”;
  • persistent requests for the property ultimately disposed of; or
  • exploitation of the donor’s desire to keep the family peace.

The second branch recognizes unintentional undue influence, which is to be presumed if:

  • there is a “potential for domination” given the nature of the relationship between the parties (this includes solicitor/client, parent/child, and guardian/ward relationships);
  • the defendant unduly benefited or the plaintiff was unduly disadvantaged, but only if the transaction is commercial.
  • If the plaintiff establishes circumstances that trigger the presumption of undue influence, the defendant has the onus of rebutting it. To rebut the presumption, the defendant must show that the plaintiff entered into the transaction with full, free and informed thought.

The receipt of independent legal advice may be a critical factor.

In Sandu, the Court observed that in the context of intergenerational relationships involving care, undue influence is a particular concern.

The Court held that it did not need to determine whether their was actual undue influence (the first branch), as there was a presumption of undue influence (the second branch) which had not been rebutted. The Court considered whether the parents received independent legal advice, and determined that what limited advice they received did not constitute adequate legal advice. The mere presence of legal advice is insufficient.

Finally, the presence of undue influence meant that the limitation period to bring the claim had not expired. In cases of undue influence, the time does not begin to run to bring a claim until the donor can be said to have been freed from the sphere of undue influence. As a result, while more then two years had passed since the transfer, in effect the limitation period was extended while the parents remained under the influence of their son.

B.C. Case Comment: Obtaining a Committeeship Order When You Have an Adult Guardianship Order in Another Jurisdiction

May 10, 2024

A person may be appointed as committee to manage an incapable person and/or their affairs.

The usual process is to bring an application under the Patients Property Act [RSBC 1996] Chapter 349 for an order declaring the person incapable, and the appointment of a committee.

A person applying for a committeeship order must provide affidavits of two medical practitioners setting out their opinion that the person who is the subject of the application is, because of mental infirmity arising from disease, age or otherwise, or disorder or disability of mind arising from the use of drugs, incapable of managing their person or their affairs. Without the two affidavits, the court cannot make the order under the act.

Sometimes, the applicant is unable to obtain the two medical affidavits. The patient may be in denial or otherwise refuse to submit to a medical examination. There are cases which discuss the limited circumstances where a person can be ordered to submit to a medical examination for this purpose (which is in conflict with rights to personal autonomy). See for example Temoin v. Martin 2012 BCCA 250.

In the B.C. Supreme Court case of Re Binder (Patients Property Act) 2022 BCSC 990, the Court dealt with a different issue. The petitioner sought orders declaring his father incapable and appointing the petitioner as committee. The father lived in a care home in Switzerland. There was evidence that two Swiss medical professionals assessed the father, and concluded that he suffered from severe cognitive impairment, and increasing signs of dementia. They also noted that the father had a negative attitude about undergoing further examinations. One of the doctors concluded that the father had a “lack of capacity to judge the necessity of supportive measures”, and “capable of judgment” had a specific meaning under Swiss law. The petitioner had been appointed in Switzerland to manage his father’s assets.

The petitioner argued that there was a gap in the Patients Property Act for admitting evidence from foreign medical practitioners and recognizing foreign adult guardianship orders. Due to the circumstances, including the father being in Switzerland had the evidence of his resistance to undergoing further medical assessment, the petitioner had no meaningful way to obtain the two medical affidavits to meet the requirements of the Patients Property Act.

The Court agreed, and was satisfied that pursuant to its inherent parens patriae jurisdiction, it could make the declaration and appointment of the petitioner as committee.

This case is helpful authority for a person who has obtained an adult guardianship order in another jurisdiction, and seeks a committeeship order in British Columbia but is unable to obtain the two medical affidavits.

What I’m Reading: Interesting Estate Litigation Articles for April 2024

May 3, 2024

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

  1. Gabriella Banhara of WEL Partners (Ontario) discusses the issue of pets and estates, with reference to a recent Ontario decision: https://welpartners.com/blog/2024/04/pets-and-estates-the-recent-decision-of-carvalho-v-verma/
  2. Ian Hull and Chigozie Enwereuzo of Hull & Hull LLP (Ontario) consider the concept of where an estate trustee “resides”, and why that matters: https://hullandhull.com/Knowledge/2024/04/where-does-an-estate-trustee-actually-reside/
  3. Onyx Law Group discusses a number of questions about family and separation, and estate issues: https://onyxlaw.ca/separated-but-not-divorced-inheritance/
  4. Estate litigation in the news: there have been a number of articles relating to O.J. Simpson’s estate, in particular whether the Goldman and Brown families will be able to collect on their civil judgment: https://www.cbc.ca/news/world/oj-simpson-estate-victims-explainer-1.7171644
  5. Doreen So, also of Hull & Hull LLP, writes about estate issues in the Netflix series “The Gentlemen” in a pair of posts: https://hullandhull.com/Knowledge/2024/04/the-gentlemen-primogeniture-and-intestacies-in-ontario/ and https://hullandhull.com/Knowledge/2024/04/the-gentlemen-enforceability-of-pre-death-contracts/

Happy reading!