Based on the following three factors from the English Court of Appeal decision, In Re Tempest, (1866) 1 Ch. App. 485, the court found that Mr. Woodward was an appropriate trustee:

1)      The wishes of the author of the trust, expressed in or deduced from the trust instrument;

2)      The wishes of the beneficiaries, as held above all other interests; and

3)      The question of whether the appointment will promote or impede the execution of the trust.

Mr. Woodward was an appropriate trustee under the factors in Tempest because the trust allowed, and even promoted, the trustee to have a relationship with the beneficiaries, of which Ms. Cohen was one, and provided broad discretionary powers to the trustee.  Furthermore, the beneficiaries promoted Mr. Woodward as trustee and there was no evidence adduced that the execution of the trust would be impeded if Mr. Woodward was a trustee.

Despite the lack of evidence that the execution of the trust would be impeded by Mr. Woodward, the court still had to address whether Mr. Woodward’s friendship with Ms. Cohen barred him from being a trustee. The court concluded that friendship with a trustee or beneficiary does not impugn the independence of a trustee due to the presumption of good faith.  Mr. MacKenzie failed to provide cogent evidence to rebut the presumption of Mr. Woodward’s good faith.  Furthermore, Mr. MacKenzie failed to show that Ms. Cohen had tried to control the trust, as his evidence was rejected as insufficient to reach such a conclusion.  Due to these failures, Mr. MacKenzie did not demonstrate that friendship between Mr. Woodward and Ms. Cohen disqualified Mr. Woodward from being a trustee.

This case reminds us that a trustee does not have to be completely independent of other trustees or beneficiaries, as long as the trust instrument and the beneficiaries allow a relationship to exist, and the relationship will not impede the execution of the trust.  The court will give weight to the presumption of good faith, and it will not be rebutted based solely on a friendship between a trustee and his or her fellow trustees or the beneficiaries.

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Jesse began visiting the farm as a teenager and took dressage horseback riding lessons from Kim and Dietrich. Jesse was very close to the couple and eventually moved to the farm as a working student to assist with the horses and the maintenance of the farm. At the same time, he studied accounting in Bellingham and commuted back and forth between the farm in Canada and his school in the United States. Although Jesse did receive free boarding and some free groceries and dressage lessons, he was paid less than other students who worked on the farm.

Jesse challenged the will and his primary argument was based on the equitable principal of proprietary estoppel. In basic terms, a claim for proprietary estoppel can be made where three requirements are met: (1) one person makes a representation or promise to another; (2) the second person reasonably relies on the representation or promise; and (3) in relying on the promise or representation, the second person suffers some sort of detriment.

The court ultimately agreed that Jesse’s claim for proprietary estoppel was made out and that he was entitled to the farm. The court accepted Jesse’s evidence that he had been assured by Dietrich and Kim that the farm would one day belong to him. Jessie’s evidence was also supported by the fact that Kim had attempted to prepare a codicil to her will to change the gift of the farm from Burgi to Jesse, but the codicil was not properly executed and was therefore invalid. The court also found that Jesse relied on the statements made by Dietrich and Kim to his detriment since he organized his career choices and personal life around the farm in order to maximize his time available to work on the farm on the assumption that he would own the farm in the future.

This case is a reminder of how powerful a claim in proprietary estoppel can be, since a successfully established claim allows a court to ignore the provisions of the deceased’s Will. It is also interesting to note that if this case was decided under the Wills Estates and Succession Act (WESA), which is due to come into force on March 31st, 2014, it may have been possible for the court to give effect to the codicil. Under WESA, courts will have expanded powers to cure deficiencies in a will or codicil that was not executed in accordance with the technical requirements of the legislation.

In British Columbia, the office of the Coroners Service is responsible for the investigation of all unnatural, sudden and unexpected, unexplained or unattended deaths.  Once the death is reported to the Coroners Service, the Coroner begins a preliminary investigation. The preliminary investigation may lead to one of the following:

1.      Natural death. If the Coroner’s preliminary investigation reveals the death is a natural event, the Coroner will consult the deceased’s family doctor to ensure the nature of the death is consistent with the deceased’s medical history. Once confirmed that the death is natural, the family doctor completes the Medical Certificate of Death.

2.      Further Coroner’s investigation. The Coroner has the authority to conduct a full investigation, including collecting information, conducting interviews, inspecting and seizing documents, and ordering an autopsy. The result of Coroner’s investigation is released in a report, which may not be automatically sent to the family. However, the report is a public document, and is available by request from the Regional Coroner’s office.  

3.      Coroner’s Inquest. The Coroner may determine that it would be beneficial to hold a Coroner’s Inquest, which is a formal court proceeding held to publicly review the circumstances of a death. Normally, an inquest is held to assist in finding information about the deceased or circumstances around a death, to address community concern about a death or to draw attention to a cause of death if such awareness can prevent future deaths. Upon the conclusion of the Inquest, a written report is prepared.

Please note that the Coroner does not assign fault or liability, but conducts a fact-finding investigation into deaths that are unnatural, unexpected, unexplained or unattended. One of the most important purposes of a Coroner’s investigation is to identify risk factors to prevent future deaths.  As such, a written Coroner’s report includes, whenever possible, recommendations to prevent further deaths.

It was recently reported that BC has the lowest autopsy rate in Canada, raising concern amongst some experts that too many deaths in the province, and even possible homicides, are inadequately investigated. The funding cutbacks to the Coroners Service may have contributed to the concern. The Coroner obviously has some discretion in determining whether a full investigation is required for a particular case. With funding pressures, that discretion may be exercised more conservatively. As such, it is essential that family members be proactive and ensure that if a full investigation is warranted that their concerns be brought to the attention of the Coroner’s office.

Under the old Family Relations Act, unmarried spouses are excluded from the operation of the property division and pension division sections, which are available for married spouses only. This means there is no automatic property sharing provisions for unmarried spouses.

As such, under the old Act, a common-law spouse can only rely on common law remedies in order to claim a share of the other spouse’s assets. For instance, a common-law spouse may claim that he or she has made a direct or indirect contribution to the accumulation of the assets of the other spouse such that he or she is entitled to a share of the assets, failing which, he or she may not share the assets of the other spouse.

Under the new Act, the property and pension division sections apply to both married and unmarried spouses. This change may have some impact on estate litigation, and in particular, on Wills Variation Act claims brought by a common-law spouse.  The Supreme Court of Canada ruled in its landmark decision in Tataryn v. Tataryn Estate that the proper analysis of a Wills Variation Act claim should first start with the analysis of the legal obligations of the testator. The legal obligation that a testator owes his/her spouse is determined by examining the surviving spouse’s entitlement under the relevant family law legislation, on the notional circumstances that the parties separated or divorced just prior to the testator’s death.

 Given the legislative change in a common-law spouse’s entitlement to property and pension division upon separation, it will be interesting to see how it will affect the Court’s analysis of a testator’s legal obligations to a common-law spouse in a Wills Variation Act claim context.

Advance care planning has informal and formal components. Informally, a person should discuss his or her wishes with family members, including wishes with respect to palliative care. Formally, a person should engage a legal professional to discuss and prepare certain legal documents.

The Representation Agreement Act permits a person to choose a representative who will make decisions about his or her health care and personal care, among other things, if that person becomes incapable of making decisions independently. This is related to palliative care in at least two ways. Firstly, if a legally-competent palliative-care patient has a care plan in place that includes a representation agreement, an element of stress is removed from an already-difficult situation. Secondly, if a palliative-care patient becomes unable to make his or her own decisions, it is comforting to know that a representative of the patient’s choosing (and presumably a person with whom the patient has discussed this responsibility) is making decisions in the patient’s stead, including palliative-care decisions.

Let National Advance Care Planning Day serve as a reminder to ask the difficult questions: What will happen if I am incapable of making my own decisions? What will happen if my loved ones are unable to make their own decisions? These are not easy questions but they are nevertheless questions that should be asked.

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• The executor must provide a notice of intention to apply for a grant 21 days before filing the application. Assuming the deceased had a Will, notice must be given to:
  • Each person named as executor or alternate executor in the Will;
  • Each beneficiary under the Will; and
  • Each person who would have been an intestate successor (person who benefits from the estate) if the deceased had not left a Will.
• Procedures have been added to deal with curing formal defects in a Will. WESA gives the court discretion to cure formal defects in a Will, which is something the court does not currently have the power to do.
• The application forms have been redone. For example, when applying for a grant of probate under WESA, a person can use a short form or long form depending on the complexity of the application.
• There are new court documents that will allow the person who obtained the grant of probate (or other related grant) to obtain information about the assets and liabilities of the deceased from third parties.

The above is a summary overview of some changes. In future blog posts we will highlight in greater detail particular changes brought on by WESA and the corresponding amendments to the Rules. Thanks for reading.

There is no possibility of mistaking midnight for noon; but at what precise moment twilight becomes darkness is hard to determine.

Some 143 years later, the British Columbia Supreme Court released a comprehensive decision considering in detail the capacity of a woman who had executed a Will in the early stages of dementia.  While the Court expressly stated that “a diagnosis of dementia, standing alone, does not automatically correspond to testamentary incapacity”, it also confirmed that such a diagnosis, and its resulting manifestation in the testator, are relevant factors to be considered.  The court also considered the relationships the deceased had with the beneficiaries under the new (challenged) Will and her relationship with the beneficiaries in her previous Will.  Ultimately, in all of the circumstances, the Court found that the deceased did not have testamentary capacity, and therefore that the new Will was not valid.

While each case of testamentary capacity turns on its own unique facts, this decision is noteworthy for its extensive review of the caselaw since the 1870′s Banks v. Goodfellow.  I would expect to see this case referenced in most of the future British Columbia cases involving testamentary capacity.

In Neville v. National Foundation for Christian Leadership, two donations totaling $6,250 were made to the National Foundation for Christian Leadership (“NFCL”). In return for their donations, the donors received an official donation receipt, and their daughter received a bursary from the Christian Higher Education Assistance Fund (“CHEAF”), a scholarship program operated by the NFCL. The donation receipt included the following disclaimer:

Thank you for your gift.  Your gift has helped a student prepare for life in the real world where they can and do make a difference.  NFCL can only accept gifts that are unrestricted and undesignated and makes no representation or warranty as to the income tax deductibility of any donation made to NFCL.

The Canada Revenue Agency and the tax appeal courts disallowed the donors’ tax deduction claim on the basis that the donations were not a charitable gift for the purposes of the Income Tax Act because there was a benefit flowing to the donors in respect of their donations.

The donors decided to sue NFCL in order to recover the amount of their donation and argued that the failure of the gift to attract the intended tax benefit made the gift void. The BC Supreme Court in Neville rejected this argument and found that it was clear that the donors’ purpose in making the gift was to donate to a foundation that supported the education of Christian students attending Christian education facilities. Accordingly, although the tax benefit may have been a partial motivation for the gift, the primary purpose of the gift was fulfilled.

The donors also tried to argue that the donations were subject to either an express or implied trust, or a constructive trust, and were therefore liable to be repaid. The court also rejected these arguments on the basis that there was simply no evidence that the donations were anything other than absolute gifts, and there was no evidence or discussion of a trust relationship.

Under the current law, the FRA, a spouse is a person who: (1) is married to another person; or (2) lived with another person in a marriage-like relationship for a period of at least 2 years. Under the FLA, the same definitions apply, but a third category is created whereby a spouse is also a person who has lived in a marriage-like relationship (with no specified duration), if they have a child. This expansion only relates to spousal support obligations.

In the Estate law context, the Wills Variation Act’s definition of spouse includes only the first two definitions. At this time, there is no indication that the proposed new Estate legislation, WESA, will expand the definition of spouse. However, if there is  any broadening of the concept of spouse under the WVA will, the categories of people entitled to bring WVA actions.