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

February 11, 2020

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

February 9, 2020

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

February 7, 2020

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

February 5, 2020

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?

February 4, 2020

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.