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Law 320 (Succession & Estates) CAN
Author: Vivian Burton
Instructor: Deanna Rivers,
Table of Contents
Table of Contents
1. Survivorship and Presumption of Death
Common Law
Statutes
Survivorship and Presumption of Death Act, RSBC 1996, c 444
Insurance Act 2012
Estate of Missing Persons Act:
Re Law (1946) BCSC As per the Insurance Act, in common disaster w/ insured, beneficiary presumed to die first; Insurance Act takes precedence over seniority rule
Re Topliss & Topliss (1957) ON CARe Law was wrong; seniority rule takes precedence over Insurance Act Application:look to Insurance Act to determine where money goes, then Survivorship and Presumption of Death Act to see who inherits different purposes.
Re Cyr (2006) BCSC Courts have imposed the requirement to prove the death of a missing person, beyond the presumption set in the Survivorship and Presumption of Death Act An order under s. 3 requires proof on balance of probabilities that person is dead
The Body
Criminal Code, RSC 1985. C. C-46
Cremation, Internment and Funeral Services Act, SBC 2004, c. 35
Re Pop Estate (2001) BCCA Executors are required/entitled to control the disposition of remains provided (s)he does not act capriciously (irregular; whimsical; odd; unaccountable). Have a specific plan! Court will consider presence of “family hostility” and “capricious change of mind”
The Anatomy Act, RSBC 1996, c 13
Human Tissues Gift Act, RSBC 1996, c 211
Wing v Angrave (1860) HL The one trying to receive the benefits of a will has the burden of proof. Shows that the courts take language very seriously.
Leach v Egar (1990) BCCACanadian law of wills is strict about the application of law, not about policy.
Kartsonas v Stanoulous 2010 BCCA Plans filed with funeral homes can trump wills, but wills are often not obtained until after a funeral. In practice, it is better to file a specific plan with a funeral home.
2. Wills
Terminology
Inter vivos or Testamentary
Bird v. Perpetual Executors and Trustees Association of Australia (1946) HC of Australia If a document that purports to be testamentary takes effect before the testator’s death, it is merely a covenant and not a testamentary document (not a will and unenforceable as such).
Conditional Wills
***Test for a conditional will(Re Huebner) was the event the reason for making the will or a condition for the operation of the will?
Sifton 1938 ON If a condition subsequent fails due to uncertainty, it is struck down and the gift is absolute.
If a condition precedent fails due to uncertainty, the gift is invalid and the beneficiary gets nothing.
Re Huebner provided the test for a conditional will; If an event was the reason for making the will, it remains valid after the event occurs.
Joint Wills and Mutual Wills
Dufour v Perreria (1769) UK When one joint testator dies, the other joint testator becomes a trustee, bound to hold the property in trust for the beneficiaries of the joint will.
Re Gillespie A joint will converts property held in a joint tenancy to a tenancy in common (no right of survivorship) to bind survivor; the surviving joint testator becomes a trustee and is bound by the resulting trust instrument
Brynelsen Estate v Verdeck (2002 BCCA) All terms must be certain; “engagements of honour” are not binding.
Andruchow Estate v Seniuk, (2005) ABQB Dependent adults have the capacity to make wills, divest property, etc.
Edell v Sitzer (2001) ON SC A constructive trust will not be imposed unless there is an agreement between mutual testators not to change the scheme of disposition of their assets. An agreement to distribute an estate in a certain way is not an agreement to never change that distribution; an agreement to never change a mutual will must be explicit!
University of Manitoba v Sanderson EstateMutual wills create trusts to bind the surviving mutual testator
Pratt v Johnson Constructive trusts are imposed on the shared assets of mutual testators as soon as one of them dies. Anything acquired after one of the parties dies is not bound by the trust.
Holographic Wills
Bennett v Gray (1958) SCC A letter wholly written and signed by a deceased person may constitute a valid holograph will only if it contains a deliberate or fixed and final expression of intention as to the disposal of the writer's property upon his death. The burden is upon the party setting up such a paper as a will to show either by its contents or by extrinsic evidence that it is of that character and nature.
3. Formalities of Execution (formal and substantive validity)
Three Main types of wills in Canada:
Five requirements for an attested will in BC (as per the Wills Act)
*** Requirement 1: A will must be in writing
*** Requirement 2: A will must be signed by a testator, at its end.
Re McDermid Estate, 1994 Sask QB A will must be signed by the testator.
Re Bradshaw Estate (1988) NB Prob. Ct. A mark other than a signature can be considered a valid signature, if the testator’s intention was to execute a testamentary document.
Peden v Abraham (1912) BCSC A testator must be aware of/engaged in the process of signing a will for it to be valid.
Re White (1948) NS SC If a testator is assisted in signing/marking their will, and they adopt the mark as their signature, it will therefore be valid. A mark is allowed in lieu of a signature, when the testator is incapable of signing as per usual. A request for assistance to sign a will does not need to be verbal; a gesture will suffice.
Daintree v Butcher (1988) Witnesses to a testamentary document do not need to know the nature of the document. A testator does not have to sign in front of the witnesses to a document, as long as the testator’s signature is clear and undisputed (must sign or acknowledge in front of witnesses as per the Wills Act, but no dispute here so the codicil was granted probate)
Re Briggs (1985) Manitoba Queens Bench Intention rules and can be used to cure defects (will signed at the beginning instead of the end; intention rules so will admitted to probate)
Kuszak v Smoley (1986) Manitoba Queens Bench Intention rules and can be used to cure defects (defects here created by a “fill-in-the-blanks” wills kit, but intention ruled and the document was admitted to probate)
Re Wagner (1959) Sask. Surr. Ct.Signature on envelope containing will valid because it represented the testator’s intentions (even though signature placement must be at the end, intention rules)
In the Goods of Bean Contradicts Re Wagner’s decision that signing the envelope containing the will was sufficient; testator’s armchair/intention seems to have been considered; judge ultimately decided that T thought he had already executed the will prior to signing the envelope.
Re Fitzhaut Estate (1966) BCSC A person signing on behalf of the T may sign his own name OR the T’s name (In the Goods of Clark (1839) UK, and Re Deeley and Green (1930)). Computer (word processing) signatures are valid in the US if properly witnessed (Taylor v Holt (2003) Tenn, CA), but the Electronic Signatures Act does not yet allow for this in Canada. A testator may indicate agreement to a will with a gesture; valid if the witnesses saw or at least might have seen
Groffman A will is not valid if the testator acknowledges their signature to each of their witnesses separately; they must both be present at the same time.
Palan v Ponting HL A last page was incorporated by reference, even though the final page was not signed (intention cured signature defect)
*** Requirement 3: Two Witnesses, Present at the Same Time
Re Cumming (1963) ON HCJDirection for sale is a beneficial devise – therefore witnesses set to benefit from this devise invalidate their gift (or that to their spouse)
Re Rays’s Will Trusts (1936) CH.D. To be an invalid gift to a witness, the gift must benefit the witness personally (or their spouse; but a community of which they are a part can receive the gift for the shared good)
Re Royce’s Will Trusts (1959) A will is not invalid solely because witnesses become beneficiaries or spouses of beneficiaries sometime after the will was signed A beneficial interest conferred to witness must be evident at relevant time (i.e. attestation or death for a death-bed will) to invalidate gift; what happens after the signing is irrelevant
Gurney v Gurney (1855) In order to invalidate a gift, a witness must witness the document providing for the gift to the witness himself (witnessing a separate testamentary document will not invalidate a gift under a document the witness did not witness)
Anderson v Anderson (1869) HL A properly executed codicil can remedy an improperly executed will
Jones v Public Trustee (BCSC, 1982) When a witness’s share of residue is invalidated, the share passes on intestacy, not to other residual beneficiaries Where an invalid gift provides a life estate, the life estate is accelerated and the gift goes to the ultimate beneficiary
*** Requirements 4 and 5: The testator must sign or acknowledge in the presence of the witnesses, and the witnesses must sign in the presence of the testator
Re Brown (1954) ON Surr. Crt. A testator must sign or acknowledge their signature in the presence of both witnesses, at the same time.
Re Wozciechowiecz (1931) AB Appeals Division A testator must be able to see the witnesses sign his will; whether he chooses to watch/look is immaterial.
Other Case Law Re: Witness Signatures
Presumption of Due Execution
Ball v Taylor (1999) BCSC In the absence of evidence to the contrary, there is an inference that there has been compliance with the requirements of the stature with reference to execution Presumption of due execution applies and is not rebuttable by defective memory
Krause v Toni (1999 BCSC in Chambers) Applied the doctrine of substantial compliance, to say that there was no doubt as to the authenticity of the will and the defect could be cured.
Boulton v Tartaglia 2000 BCSC Judge said the doctrine of substantial compliance was invalid in BC; contradicts Krause v Toni.
Incorporation by Reference
Re Currie (1978) ON HC Provided a two step test for incorporation by reference
Re Jackson (1985) BCSC ***Current BC precedent on Incorporation by Reference Parol evidence CAN be used to explain which of several documents a will/codicil is referring to. Created a four-step test for incorporation by reference: The document 1. Must be in existence at time of execution; 2. Must be described as then existing; 3. And in such terms that it is capable of being ascertained; and 4. The will must not state that the document is not to form part of it.
4. Revocation and Revival of Wills
Revocation by Law
The Common Law:
The Wills Act:
BC Family Relations Act - Part 5: Matrimonial Property:
BCLI Report on Will Revocation by Marriage
Notes on Marriage & Dissolution of Marriage
Re Pluto Estate (1969) BCSC A contemplation of marriage clause must explicitly state that it is “in contemplation” and not merely imply that the marriage took place.
Maclean Estate v Christiansen (2010) BCCA A contemplation of marriage clause requires an express declaration; reference to the individual as a current spouse will not suffice.
Re Ratzlaff Estate (2002) SK CA Extrinsic evidence may be admitted to identify the person referred to in a contemplation of marriage clause.
Banton v Banton (1998) ON SC The “capacity” standard to enter into a marriage is lower than that required to manage other affairs (write wills, appoint POAs, divest property, etc.)
Allison v Allison (1998) BCSC Matrimonial, not testamentary domicile determines the validity of a will and whether or not marriage results in revocation. A change in domicile does not revoke a will.
Revocation by the Testator:
***Subsequent Instruments
Re Lawer (1986) SK Sirr Court Set out the general principles governing revocation clauses It is open to a court to inquire if there is sufficient evidence to establish that the testator did/did not intend to revoke
Re Estate of Blanca Esther Robinson (2010) ONSC Mistaken belief of the legal effect of provisions in a will does not render the will or the provisions inoperable.
***Declaration
***Destruction
Re Norris (1946) BCSC Tearing the will into pieces was insufficient to prove T’s intent to revoke; considered all circumstances
Re Adams (1992) EN Scoring of signatures rendering them no longer apparent is sufficient to revoke a will
Cheese v Lovejoy Intention to revoke a will by destruction is not sufficient; there must be an actual act of destruction
***Alterations
In the Estate of Oates (1946) PDA There is no formal presumption that additional words are added pre-execution ; the onus of proof is on the propounder to show that alterations were written before execution
In the Goods of Itter (1950) Alterations must be effective in order to actually change a will If you revoke a will or part of a will with the intention that your new will or new alteration will take effect in its place, and then the new will or new alteration turns out to be void, the old will or clause will remain
Lost Wills
Sugden v Lord St Leondards (1876) Eng CA Lost will not sufficient to revoke will – parol evidence used to re-create will and get probate – loose custody of the will, lower burden if lost (T had self-custody of his will).
Unwin Estate v Unwin () BCSC Presumption of revocation applied with consideration of surrounding circumstances; will was not revoked.
Lefebvre v Major (1930) SCC Lost will not sufficient to revoke will – parol evidence used to re-create will and get probate
Re Perry (1925) ON CA Lost will revoked will Court refused to admit a lost will to probate when only the name of the residuary legatee was known.
Re Broome (1969) MB CA Reverse onus applies if the testator becomes incapable/incompetent; the party alleging revocation has the burden of showing it was destroyed with the intention of revoking it
Sigurdson v Sigurdson (1935) SCC Only lost wills case where the presumption was not rebutted; the court here applied a different approach
Brown v Wooley (1959) BCSC Applied the presumption of revocation and considered the surrounding circumstances; will was not revoked.
Holst v Holst (2001) BCSC To rebut the presumption, the Plaintiffs must adduce “sufficient evidence that it was not destroyed by the testator animo revocandi”; Sigurdson v Sigurdson.If a will is lost or destroyed and a testator is later deemed incompetent, there is a presumption that the will was lost or destroyed while they were incompetent, and therefore not revoked.
Pidgeon Estate v Major (1930) SCC In determining whether the presumption of revocation applies, the Court should consider the following evidence:
Flaman Estate, Re, (1997) SK QB Defines when the presumption of lost wills applies: "when it is shown that the testator's will was last traced to his possession but cannot be found on his death."
Bolton and Hess v Toronto General Trusts Corporation (1961) MB CA In order for the doctrine of dependent relative revocation to apply, it must be clearly demonstrated that the destruction was “wholly and solely” dependent on the making of a new will; merely contemplating the making of a new will is not sufficient
Conditional Revocation
In Re Jones, Decd. (1976) Eng CA Where T mutilates or destroys a will with intention of making a new will but fails to make the new will, it does not necessarily follow that the mutilation or destruction was ineffective to revoke the will. Revocation is only ineffective where it appears that in such action the T’s intention was conditional - in that the revocation should only operate if a new will was actually executed.
Re Sorenson: Montreal Trust v Hawley (1981) BCSC True example of conditional revocationA revocation which is shown to be made upon a mistake either of fact or of law, and is considered by the Court not to be intended by the Testator except conditionally on the mistaken assumption being correct, is inoperative.
Doctrine of Revival
Wills Act
Re Mckay (1953) BCSCAs per s. 20 of the Wills Act in order to revive a will, a codicil must clearly express beyond a doubt an intention to do so; not met here
5. Rules of Construction and Problems of Mistake and Republication
Rules of Construction:
Re Williams Estate (2006) Nfld. Trial Division The whole will is to be read in context to determine the testator’s intention.
Middlebro v Ryan (1925) SCC Identical words in a will can be presumed to have the same meaning
Re Stark Give effect to all words and all letters within a will.
Di Bella v Kangas (2001) BCSC Defined Ejusdem Generis: Where a law lists specific classes of persons or things and then refers to them in general, the general statements only apply to the same kind of persons or things specifically listed.
Wagg v Bradley (1996) BCSC Testator’s intention and presumption against intestacy considered to cure a defect in a wills kit will.
Smith v Smith (2010) BCCA Last provision rule: if apparently contradictory provisions in a will cannot otherwise be reconciled, the last provision prevails
***Marks v Marks (1908) SCC Surrounding circumstances (extrinsic evidence) considered where a testamentary term has 2 possible meanings.
***Weir Estate v Weir (1998) BCSC Provided definitions for the term “issue”…
Property Law Act SBC
Summary of Approaches
Specific Rules and People
Perrin v Morgan (1943) HLThe context in which the word is used is the main guide to its interpretation Defined the “armchair” rule: the courts must put themselves in the testator’s position when they made their will, and construe the language from this vantage point.
Haidl v Sacher (1980) SK CA Consider the “ordinary meaning” of language simultaneously with evidence of the testator’s intention (admit extrinsic indirect evidence at the start)
Laws v Rabbitt (2006) BCSCCourts must consider the ordinary meaning simultaneously with evidence of the testator’s intention only when the testator’s intention is not readily clear on the plain meaning of the testamentary document.
***Admission of Armchair & Extrinsic Evidence
Wilson v Shankoff (2007) BCSCBC courts apply the “armchair” rule. Note: Procedure
***Illegitimate Children
Law and Equity Act
Illegitimate Children at Common Law
Re Jensen Estate (1989) BCSC“Children” only means legitimate children, unless expressed otherwise
***Technical Terminology
Re Karkalatos Estate (1962) SCC Ambiguity when using technical terms (per stirpes) improperly
Re Clark Estate (1993) BCSC Ambiguity when using technical terms (per stirpes) improperly
Evidence of Intent
Patent vs. Latent Ambiguity:
Re the Estate of Murray (2007) BCSC Where there is a patent ambiguity, direct evidence is inadmissible; but evidence of the circumstances surrounding T’s intention is admissible.
Millar v Travers (1832) Eng. Direct extrinsic evidence of T’s intention is inadmissible where there is no ambiguity on the face of the will.