Court of Appeal in the position of a Trial Court in Wills Variation Appeals

In Eckford v. Vanderwood, 2014 BCCA 261, the British Columbia Court of Appeal (the “Court”) was faced with an appeal of a wills variation action.  At trial, the application to vary the Will was denied.  On appeal, the Court dismissed the appeal and upheld the trial decision, thus refusing to vary the Will.

The common law spouse (“Ms. Eckford”) of the will-maker (“Mr. Vanderwood”) sought to vary the Will pursuant to section 2 of the Wills Variation Act (“WVA”, now repealed).  This section has remained unchanged in the new Wills, Estates and Succession Act (“WESA”); the relevant provision of WESA is section 60.  Ms. Eckford and Mr. Vanderwood had been living in a marriage-like relationship for approximately four years before Mr. Vanderwood died unexpectedly in a motor vehicle accident.

Ms. Eckford was not provided for in Mr. Vanderwood’s Will.  However, the Court noted that she did inherit Mr. Vanderwood’s half interest in their home through the right of survivorship.  The home was Mr. Vanderwood’s most valuable asset.

Of particular interest in this case is the Court’s discussion of how appeals in wills variation actions put the Court in the same position as a trial court.

The Court stated this directly at paragraph 40 of the judgment:

“An unusual feature of wills variation jurisprudence is that an appellate court is in the same position as the trial judge and is not required to defer to the trial judge’s discretion except on matters based on oral testimony.”

In this case, there was no oral testimony at trial.  The parties had agreed to a Summary Trial and, therefore, all evidence was provided by way of affidavits.  The Court noted that there were no previous decisions dictating the standard of review in a wills variation action where the evidence is limited to affidavits.  The Court stated that it could think of no principled reason why findings made on affidavit evidence should be dealt with differently in wills variation than in other actions.  In other actions (namely, actions other than wills variations), the Court’s general rule is that where evidence consists entirely of affidavits, the standard of review is that findings of fact should only be set aside if the finding was clearly wrong or was not reasonably supported by the evidence.

However, the respondents in this case did not raise the issue and, as a result, the Court did not decide the issue.  Instead, the Court accepted Ms. Eckford’s submission that the Court had an unfettered discretion to evaluate the evidence in this case.  The Court thus undertook the usual Tataryn analysis and considered the will-maker’s legal and moral obligations.  The Court ultimately concluded that Ms. Eckford had been adequately provided for, and refused vary the Will.

It remains to be seen whether or not a court would find that the standard of review should be different for wills variation appeals depending on whether the evidence at trial is from live witnesses or affidavits. This is an issue for another case.

Thank you to Cheryl Kornder for her assistance in drafting this blog post.

Revoking a Will – Destruction of a True Copy Not Sufficient

In Morton v Christian, 2014 BCSC 1303, the British Columbia Supreme Court (the “Court”) grappled with the issue of proper revocation of a Will.  It was determined that the destruction of a true copy of a Will does not satisfy the requirements for revocation when the original is known to be safely kept elsewhere.

In 1989, Mr. Christian and Ms. Morton became romantically involved.  The couple married in Quebec sometime before 1991 and moved to British Columbia, where they lived together until separating in 2009.  Before leaving Quebec, Mr. Christian executed a notarial Will naming Ms. Morton as the sole beneficiary and executrix.

Mr. Christian passed away in 2011.  In 1991, he had been given three true copies of his notarial Will, none of which could be found after his death.  Ms. Morton sought a grant of probate and a declaration that the original Will was valid.  Two cousins of Mr. Christian contested the application on several grounds, including: that the Will had been revoked by Mr. Christian’s tearing up a true copy and depositing the remains in the trash and that the presumption of revocation operated where no copy of the Will could be found after death.

It was argued by the defendant family members that Mr. Christian had torn up one of the true copies of his Will with the intention of revoking it.  The Court heard evidence to the effect that Mr. Christian had sought legal advice regarding the creation of a new Will, his divorce lawyer had suggested that he rip the Will in half so as to revoke it, and that Mr. Christian had made comments to his new partner that he had destroyed his Will by tearing it up and throwing it in the trash.

Section 14(1)(d) of the Wills Act (now repealed) applied to the Will because Mr. Christian died before the new Wills, Estates and Succession Act (WESA) came into force in British Columbia.  Section 14(1)(d) imposed two requirements to revoke a Will: there must be a physical act of destruction and there must be proof that the will-maker’s actions were intended to revoke the Will.

Problematic for the defendants was that the original Will remained unharmed with the Quebec notary. They relied on section 36(1)(a) of the Evidence Act for the proposition that a copy of a Quebec notarial Will has the same force and effect as an original and that a certified true copy can be received in evidence in place of the original.  Applied to the circumstances, the Court concluded that the Evidence Act does not provide that a copy of a notarial Will has the same status as an original for the purposes of its revocation.

The presumption of revocation arises when the Will of a deceased cannot be located after his or her death.  It is then presumed that the deceased destroyed the Will with the intention of revoking it.  The presumption can be rebutted by evidence to the contrary.  The Court determined that the presumption did not arise in the present matter because the original notarial Will was kept safely with a Quebec notary and this was known to the will-maker.  The way a will-maker deals with a copy of a Will, for the sake of the presumption of revocation, cannot equate to handling of an original.  For the presumption to apply to this case would be to equate the true copies with the original, something the court clearly refused to do.

Section 55 of WESA makes no changes to the formal requirements for revoking a Will.  However, a defective revocation can be cured through resort to the Court’s curative power under section 58 of WESA.  Despite the existence of section 58, individuals seeking to revoke existing Wills are advised to comply with the formal requirements as explicitly stated in section 55 to avoid defective revocations that may result in uncertainty which then require the Court’s attention to cure.

Thank you to Sean Tessarolo for his assistance with this blog post.

BC Court of Appeal considers validity of Conditional Donation made to Charity

In most situations, it’s clear when a charitable gift takes effect.  But in cases where the donor places a condition or restriction on a gift, it can be more difficult to determine when the gift became effective.  This was the issue before the British Columbia Court of Appeal in its recently released decision Norman Estate v. Watch Tower Bible and Tract Society of Canada. In the case, the Court had to decide whether a conditional gift made to a registered charity was an inter vivos gift (meaning it took effect during the lifetime of the donors) or whether it was testamentary in nature (meaning the gift was only effective on the death of the donors).

The donors, Lily and Lloyd Norman (the “Normans”), frequently donated money to the Watch Tower Bible and Tract Society of Canada (the “Society”). However, one of their gifts (for $200,000) included a letter referring to the donation as a loan and specifying that all or a portion of the donation should be returned to the Normans, at their request. The letter also provided that after the death of the Normans, the Society would be entitled to keep the funds. The Society confirmed this arrangement with the Normans in writing by sending them a “Conditional Donation Agreement” (the “Agreement”) which was signed by the Normans.

The Normans never requested the return of the donation during their lifetime. After the death of Lloyd (Lily had predeceased him), the Society issued a charitable donation receipt with respect to the donated funds. However, Lloyd’s estate (the “Estate”) claimed that the Society was not entitled to the funds. The Estate argued that since the Normans could compel the Society to return the funds during their lifetimes, the Agreement was testamentary in nature, and therefore had to meet the formal execution requirements in the Wills Act to be valid (which it did not). The Society argued that the Agreement created an inter vivos trust, which provided the Society with an immediate interest in the donation.

The BC Court of Appeal agreed with the trial judge and dismissed the appeal. The gift was not testamentary in nature because the Normans made the gift during their lifetime with the intent that the gift would be effective immediately.  The fact that the Normans had the power to require the return of the funds meant the gift was subject to a condition, but the Society still had an immediate interest in the donation. Further, the court noted that since the Normans did not have the power to take back or amend the Agreement itself, any refund request had to be in accordance with the terms of the Agreement, which indicated that the Agreement had immediate effect. Accordingly, the Society was entitled to keep the donation.