ESTATE LITIGATION BASICS—2010 UPDATE
PAPER 7.1
Probate Actions
These materials were prepared by M. Scott Kerwin of Borden Ladner Gervais LLP, Vancouver, BC, for the
Continuing Legal Education Society of British Columbia, October 2010.
© M. Scott Kerwin
7.1.1
PROBATE ACTIONS
I.
Introduction .......................................................................................................................................................2
II.
General Principles .............................................................................................................................................3
A. Meaning and Purpose of Probate............................................................................................................................................ 3
B. “Proof in Solemn Form”................................................................................................................................................................ 3
III.
Challenges to Wills ............................................................................................................................................4
A. Burden of Proof and the Doctrine of “Suspicious Circumstances”....................................................................... 4
B. Non-Compliance with Formalities ......................................................................................................................................... 6
C. Testamentary Capacity................................................................................................................................................................. 7
1. Meaning of “Testamentary Capacity” ....................................................................................................................... 7
2. Other Considerations......................................................................................................................................................... 8
a. Testamentary Capacity is a Question of Fact............................................................................................ 8
b. Not a “Stringent Standard” ................................................................................................................................. 8
c. Declaration of Incapacity Not a Bar ............................................................................................................... 9
d. Testator Entitled to Be Capricious and Unfair.......................................................................................... 9
e. Testamentary Capacity is a Legal Question, Not a Medical Question ........................................ 9
3. Summary ................................................................................................................................................................................ 10
D. Knowledge and Approval......................................................................................................................................................... 10
1. General Principles.............................................................................................................................................................. 10
2. Relevant Factors................................................................................................................................................................. 11
3. Overlap with Rectification Issues.............................................................................................................................. 12
4. Leading Cases....................................................................................................................................................................... 12
a. Russell v. Fraser........................................................................................................................................................ 12
b. Lowery v. Falconer (2008) ................................................................................................................................. 12
c. Franks v. Sinclair ..................................................................................................................................................... 13
5. Summary ................................................................................................................................................................................ 13
E. Undue Influence ............................................................................................................................................................................ 13
1. General Principles.............................................................................................................................................................. 13
2. Relevant Factors................................................................................................................................................................. 14
3. Different Forms of Coercion........................................................................................................................................ 15
4. Presumption of Undue Influence ............................................................................................................................. 15
IV.
Procedural Steps and the Rules of Court ....................................................................................................16
A. The Supreme Court Civil Rules.............................................................................................................................................. 16
1. Caveats and Citations ..................................................................................................................................................... 16
2. Commencing a Probate Action................................................................................................................................. 16
3. Steps in a Probate Action.............................................................................................................................................. 17
B. Impact of the New Civil Rules ................................................................................................................................................ 18
C. The Draft Probate Rules ............................................................................................................................................................ 18
V.
Costs in Probate Actions................................................................................................................................19
A. General Principles ......................................................................................................................................................................... 19
B. Costs in Probate Actions........................................................................................................................................................... 20
1. Popular Misconceptions of the Rule....................................................................................................................... 20
2. Policy Considerations...................................................................................................................................................... 20
7.1.2
3.
4.
C.
D.
VI.
The Rule in Mitchell v. Gard........................................................................................................................................ 21
Application of the Rule .................................................................................................................................................. 22
a. The Testator is the “Cause”.............................................................................................................................. 22
b. Parties “Forced Into Litigation”...................................................................................................................... 22
c. Undue Influence Claims..................................................................................................................................... 23
Tailoring the Proper Costs Award ....................................................................................................................................... 23
1. What Issues Were Raised in the Litigation?......................................................................................................... 23
2. What Was the Result?..................................................................................................................................................... 24
3. Conduct of the Parties.................................................................................................................................................... 24
4. Settlement Offers .............................................................................................................................................................. 24
5. What Scale of Costs?........................................................................................................................................................ 24
6. Should There be Different Costs Awards for Different Phases/Issues? ................................................ 24
7. Source of the Costs Award........................................................................................................................................... 25
8. What Party? .......................................................................................................................................................................... 25
Summary............................................................................................................................................................................................ 26
Appendix A—Proposed Amendments to Supreme Court Civil Rules...................................................27
A. Supreme Court Civil Rules, BC Reg. 168/2009............................................................................................................... 27
1. Rule 21-4................................................................................................................................................................................. 27
2. Rule 21-5................................................................................................................................................................................. 28
B. Draft Rule 21-4 (BCLI Report) ................................................................................................................................................ 28
C. Wills, Estates and Succession Act, S.B.C. 2009, c. 13 ................................................................................................... 29
I.
Introduction
A probate action, or action for proof in solemn form, is the quintessential form of estate litigation. The central
issue in these actions relates to determining the true testamentary wishes of the deceased. There are intricate
legal principles to understand and, quite often, a complicated set of facts to uncover. This paper can only deal
with the subject in a general way. There are many sources on this subject that may be consulted, such as
various CLE papers.1 In terms of textbooks, the key source in BC is the Probate and Estate Administration
Practice Manual published by CLE. Other Canadian textbooks, such as Feeney’s Canadian Law of Wills and
Macdonnell Sheard & Hull on Probate Practice, are quite helpful although not specific to the law and practice in
BC. English texts such as Williams on Wills, Williams, Mortimer and Sunnucks on Executors, Administrators and
Probate and Tristram and Coote’s Probate Practice are excellent sources for the basic principles.
This paper will be divided into three parts. The first section concerns the substantive law in probate actions,
and reviews the four main challenges to the validity of wills. Next, I will provide a review of the procedural
aspects of a probate action with reference to the new Supreme Court Civil Rules, BC Reg. 168/2009. Finally, the
important issue of costs will be addressed. Throughout, I will make reference to expected changes to the law
and practice that will come about as a result of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”),
and will also refer to the draft Probate Rules recently published by the BC Law Institute.
1
Amy D. Francis, “Probate Actions” (CLE, November 2008); Rhys Davies, “Proof in Solemn Form” (CLE,
June 1992); Sandra K. Ballance, “Caveats, Pre-Grant Citations and Subpoenas” (CLE, June 1992); Janine
A.S. Thomas, “The Problem Will” (PBLI, 1998).
7.1.3
II.
A.
General Principles
Meaning and Purpose of Probate
“Probate” is derived from a Norman-French word meaning “proven,” and the Latin term probatus (“to prove”).
The BC Court of Appeal recently reviewed this (very) basic principle in Desbiens v. Smith, 2010 BCCA 394 at
para. 61:
Probate is, strictly speaking, the proof of the deceased’s will. In granting probate,
ecclesiastical authorities (and, later, common law courts) certified that a document
proffered as the deceased’s last will was what it purported to be. A grant of probate,
however, has always had ancillary purposes as well. A court granting probate examines not
only the authenticity of the will, but also its validity (both in terms of formalities of
execution and capacity of the testator) and the legal capacity of the person appointed as
executor to act as such.
Another helpful statement concerning the meaning and purpose of probate comes from the Supreme Court of
Canada in Re Eurig Estate, [1998] 2 S.C.R. 565 at para. 13:
The purpose of probate is to certify that a will and codicils have been duly proved and
registered in the court and that administration of the property of the deceased has been
committed by the court to the persons named in the will as executors.
It should be recognized that not every estate will require a grant of probate. An executor takes his or her legal
authority from the will itself, and these powers vest in the executor at the time of the testator’s death.2 This
situation would be contrasted with other types of personal representatives, such as administrators, who
require a grant of Letters of Administration from the court before dealing with the deceased’s assets.
Many testators plan their estate so that a grant of probate is not necessary. Taking such steps will avoid
probate fees and the legal costs of a probate application, as well as fulfilling other estate planning objectives.
A grant of probate will become necessary if the validity of the will is called into question. That is the subject of
this paper and will be considered in detail below. A grant of probate would also be required in situations in
which the validity of the will is not at issue but as a result of the nature of the assets of the estate. The
executor may need a grant of probate in order to deal with third parties: a prime example being the Land Title
Office, who will require a grant of probate before the executor can deal with real property owned by the
deceased.3
B.
“Proof in Solemn Form”
If a grant of probate is necessary, the next question is whether the executor will seek a grant of probate in
common form or a grant of probate in solemn form. The distinction between these two types of grants was
reviewed by the Supreme Court of BC in Romans Estate v. Tassone (2009), 47 E.T.R. (3d) 286, 2009 BCSC 194 (at
paras. 29, 48-49):
Probate in common form is the procedure by which a will is approved by the Court as the
last will of a testator. Probate in solemn form pronounces for the validity of the will. It also
confirms the appointment of the person named as executor in the will. The Court issues an
order, called the “letters probate,” as proof of his or her authority to deal with the estate. …
2
Romans Estate v. Tassone (2009), 47 E.T.R. (3d) 286, 2009 BCSC 194 at para. 30.
3
An executor who commences an action on behalf of the estate will also need a grant of probate before the court
can grant judgment: Romans Estate v. Tassone, 2009 BCCA 421, citing Chetdy v. Chetdy, [1916] 1 A.C. 603.
7.1.4
Often proof of a will in common form is all that is required for the administration of an
estate where there is a will. Proof in common form, however, does not conclusively
determine the will to be the valid last will of a person.
Proof of the will in solemn form provides some protection for the will, in that it will not
later be set aside, unless obtained by fraud or a later will is found: Tristam & Cootes Probate
Practice (27th Edition, 1989, p. 572). As noted by the authors of the British Columbia
Probate & Estate Administration Manual, 2nd Edition, 2008 Update, at 18-17, “[t]he
safeguarding effect of a grant in solemn form is an application of the principle of res judicata
to what is a judgment in rem.”
This decision was affirmed by the BC Court of Appeal: (2009), 51 E.T.R. (3d) 1, 2009 BCCA 421.
Section 56 of the Estate Administration Act, R.S.B.C. 1996, c. 122 provides that a will proved in solemn form “is
conclusive evidence of its validity and contents, other than in proceedings on appeal from, or to revoke, the
grant of administration.” A similar provision is not found in the WESA.4
III.
Challenges to Wills
A “probate action” is defined in Rule 21-4(1) of the Supreme Court Civil Rules as meaning an action for the
grant of probate (or letters of administration) of a will, or the revocation of such a grant, or “an order
pronouncing for or against the validity of an alleged testamentary paper.”
For the purposes of this paper, I will use the term “probate action” as shorthand reference for contested
litigation involving the validity of an alleged will. Some practitioners prefer the term “proof in solemn form
action.”
Various types of actions would fall within the meaning of a probate action, such as rare claims of forgery, or the
more common situation of a lost will and the presumption of revocation. This paper, however, will only focus
on the four primary challenges to the validity of a will: (1) lack of compliance with the formalities of willmaking; (2) testamentary capacity; (3) knowledge and approval; and (4) undue influence.
A.
Burden of Proof and the Doctrine of “Suspicious Circumstances”
A preliminary matter involves the burden of proof in probate actions. Mr. Justice Cullity of the Ontario
Superior Court of Justice, and a well-respected scholar on probate issues, commented in the case of Scott v.
Cousins (2001), 37 E.T.R. (2d) 113 (at para. 37) that the burden of proof has an “unusual importance” in
contested probate cases.
A person propounding a will has the legal burden of proof with respect to due execution, knowledge, approval
and testamentary capacity.5 The burden of proof is the civil standard of balance of probabilities.6 The
propounder of a will, however, is aided by a rebuttable presumption of validity in certain situations. Mr. Justice
Sopinka summarized this presumption in Vout v. Hay, [1995] 2 S.C.R. 876 at para. 26:
Although the propounder of the will has the legal burden with respect to due execution,
knowledge and approval, and testamentary capacity, the propounder is aided by a
rebuttable presumption. Upon proof that the will was duly executed with
4
See the commentary at §18.19 of the chapter “Probate Actions” by Roger Lee and Rhys Davies, QC in the
CLE practice manual.
5
Vout v. Hay, [1995] 2 S.C.R. 876 at para. 25; Maliwat v. Gagne, 2009 BCSC 1447 at para. 106.
6
Riach v. Ferris, [1934] S.C.R. 725; Vout v. Hay, [1995] 2 S.C.R. 876 at para. 25.
7.1.5
the requisite formalities, after having been read over to or by a testator who appeared to
understand it, it will generally be presumed that the testator knew and approved of the
contents and had the necessary testamentary capacity.7
In this respect, it should also be noted that there is a presumption of due execution that aids the propounder
of the will. The court proceeds on the (rebuttable) presumption that the will was properly executed if it
appears to have been properly executed when it is presented to the court.8
The rebuttable presumption “simply casts an evidential burden on those attacking the will.”9 The evidential
burden can be satisfied by introducing evidence of “suspicious circumstances.”
The term “suspicious circumstances” was described in Vout v. Hay as meaning “evidence which, if accepted,
would tend to negative knowledge and approval or testamentary capacity.” Mr. Justice Cullity in Scott v.
Cousins held that the evidence needed to excite the suspicion of the Court, and rebut the presumption of
validity, is akin to raising a “triable issue” in a summary judgment motion.10 The Supreme Court of Canada in
Vout v. Hay set out three general types of suspicious circumstances: (1) suspicious circumstances raised by
events surrounding the preparation of the will; (2) events tending to call into question the capacity of the
testator; and (3) coercion or fraud.11
Despite such guidance, it is often difficult to predict whether a court will find circumstances to be sufficiently
suspicious to rebut the presumption. The courts have stated that it is not sufficient that the circumstances
create a “general miasma of suspicion”—there must be “a specific and focussed suspicion.”12 Certainly, if the
primary beneficiary of the will had either prepared the will, or was intimately involved in its preparation, it
raises a cloud of suspicion which must be removed before the will can be probated.13
The effect of establishing that there are suspicious circumstances is that the legal burden of proof reverts to
the propounder. The presumption of testamentary capacity is “spent” and the propounder of the will must
affirmatively prove on a balance of probabilities that the testator had testamentary capacity to make a will and
knew and approved of the contents of the will.14
Evidence about “suspicious circumstances” can therefore be critical to the success or failure of a litigant’s case.
If a challenger cannot satisfy this initial step that there are any circumstances which should excite the
suspicion of the court, the claim is doomed to fail.15 Furthermore, the weight of any suspicion will have a great
bearing on the outcome of the case. The Supreme Court of Canada has held that, although the standard of
proof remains the civil standard of the balance of probabilities, the
7
See also Ravnyshyn v. Drys (2005), 15 E.T.R. (3d) 251, 2005 BCSC 561 at paras. 111-12; Andersson v. Khan
(2006), 23 E.T.R. (3d) 40, 2006 BCSC 521 at paras. 33-34, aff’d 2007 BCCA 532.
8
Jung v. Lee Estate, 2007 BCSC 1740 at paras. 46-48; Beaudoin Estate v. Taylor (1999), 27 E.T.R. (2d) 208
(B.C.S.C.).
9
Vout v. Hay, [1995] 2 S.C.R. 876; Brydon v. Sirgiandis Estate, 2008 BCSC 749 at para. 141.
10
Scott v. Cousins (2001), 37 E.T.R. (2d) 113 at paras. 41-43 (Ont. Sup. Ct. J.).
11
Vout v. Hay, [1995] 2 S.C.R. 876 at para. 25. See also Rufenack v. Hope Mission, 2002 ABQB 1055 at para. 66
for a list of suspicious circumstances.
12
Clark v. Nash (1989), 61 D.L.R. (4th) 409 at 425 (per Lambert J.A.) (B.C.C.A.); Watson v. Watson and Yelich,
2004 BCSC 1724.
13
De Araujo v. Neto (2001), 40 E.T.R. (2d) 169, 2001 BCSC 935 at para. 68; Hix v. Ewachniuk Estate, 2008
BCSC 811 at paras. 60-72.
14
Vout v. Hay, [1995] 2 S.C.R. 876 at paras. 22, 24; Peters Estate v. Ewert (2002), 48 E.T.R. (2d) 91 at paras. 7172 (B.C.S.C.); Lowery v. Falconer, 2008 BCSC 516 at para. 56.
15
Maddess v. Racz, 2008 BCSC 1550, aff’d 2009 BCCA 539.
7.1.6
burden of proof is “proportionate to the gravity of the suspicion.”16 In Brydon v. Sirgiandis Estate (2008), 41
E.T.R. (3d) 104, 2008 BCSC 749, the Court held that the assessment of the strength of the suspicion is therefore
of “great importance.” The gravity of the suspicion will determine the degree of probability to which
testamentary capacity or knowledge and approval must be proved. In Brydon, Mr. Justice Halfyard held (at
para. 158) that due to the gravity of the suspicion in that case, what was required was “a much higher degree of
probability within the civil standard, than a mere 51% probability.”17
The doctrine of suspicious circumstances does not apply to undue influence allegations. A person opposing
probate has the legal burden of proving undue influence. The standard of proof remains the civil standard of
proof on a balance of probabilities.18
B.
Non-Compliance with Formalities
The Wills Act, R.S.B.C. 1996, c. 489 provides that a will executed in BC is valid if the following criteria are
satisfied:
(1)
the will is in writing;
(2)
at its end it is signed by the testator or signed in the testator’s name by some other person in
the testator’s presence and by the testator’s direction;
(3)
the testator makes or acknowledges the signature in the presence of two or more attesting
witnesses present at the same time; and
(4)
two or more of the attesting witnesses subscribe the will in the presence of the testator.19
There are additional requirements relating to the age of the testator and witnesses. Section 17 of the Wills Act
governs alterations to a will. Such alterations must follow the same formalities as the execution of the original
will.20 Part 4 of the WESA contains similar requirements, with some changes such as the minimum age of the
testator (now termed the “will-maker”).
Although the formalities of will-making may seem overly technical, they have long been seen as a needed
bulwark against fraud and forgery. The formal requirements associated with the making of a will under the
Wills Act are absolute. Non-compliance with these formalities invalidates a will and can result in an intestacy.
The application of the “strict compliance” rule can be found in the cases of Bolton v. Tartaglia, 2000 BCSC 576
and Ellis v. Turner (1997), 43 B.C.L.R. (3d) 283 (C.A.).
As noted above, a propounder of a will is aided by a rebuttable presumption of due execution. Whenever a
will, regular on its face and apparently duly executed, is before the court, it will be presumed that there had
been compliance with the formalities of the statute.21
16
MacGregor v. Ryan, [1965] S.C.R 757 at 766; Vout v. Hay, [1995] 2 S.C.R. 876 at para. 24.
17
An Ontario judge recently queried whether the law regarding suspicious circumstances, as set out in Vout v.
Hay, is still valid in light of F.H. v. McDougall, 2008 SCC 53, in which the Supreme Court of Canada
emphasized that there is “only one” civil standard of proof: Re Henry Estate (2009), 96 O.R. (3d) 437 (Sup.
Ct. J.).
18
Vout v. Hay, [1995] 2 S.C.R. 876.
19
See also: Hix v. Ewachniuk Estate, 2008 BCSC 811 at paras. 55-59; Andersson v. Khan (2006), 23 E.T.R. (3d)
40, 2006 BCSC 521 at para. 29.
20
Jung v. Lee Estate, 2005 BCSC 1537 at paras. 51-52, rev’d on other grounds, 2006 BCCA 549.
21
Beaudoin Estate v. Taylor (1999), 27 E.T.R. (2d) 208 (B.C.S.C.).
7.1.7
One of the major innovations of the WESA will relate to compliance with the formalities of will-making.
Section 58 of WESA will introduce a “dispensing power” whereby the court may relieve against the
consequences of a breach of the formal requirements for execution and attestation of a will, and admit such a
will to probate. The court must be satisfied that, despite the non-compliance with the formalities of willmaking, the document contains the true testamentary wishes of the deceased. Such an amendment was first
recommended by the BC Law Reform Commission in 1981. A complete discussion of the issue can be found in
the 2006 report of the BC Law Institute: Wills, Estates and Succession: A Modern Legal Framework (BCLI Report
No. 45, June 2006) at 21-25.
Accordingly, it seems safe to say that, upon the introduction of the WESA, probate actions concerning whether
the formalities of will-making were met will quickly morph into applications under s. 58 to admit a will to
probate on the basis that, notwithstanding technical non-compliance, the document contains the true
testamentary wishes of the deceased.
C.
Testamentary Capacity
The majority of probate actions seem to involve the issue of testamentary capacity. With an aging population,
and increasing incidence of cognitive disorders such as Alzheimer’s Disease, this situation shows no sign of
changing.
There is no statutory requirement for testamentary capacity, but it has been required by English law “since time
immemorial.”22 The capacity required to execute a will, like other juristic acts, involves the capacity to
understand the nature and effect of the act.23 Another purpose of this rule in the testamentary context,
according to the England and Wales Court of Appeal in Perrins v. Holland, 2010 EWCA Civ. 840 at para. 40, is to
“prevent unsatisfactory or immoral disposals of accumulated wealth.”
1.
Meaning of “Testamentary Capacity”
In De Araujo v. Neto, 2001 BCSC 935, Mr. Justice Sigurdson provided the following discussion of the meaning of
testamentary capacity (at para. 127):
What is testamentary capacity? In Feeney’s Canadian Law of Wills, 4th ed. (Toronto:
Butterworths, 2000) at 2.5, J. MacKenzie describes the standards of mental acuity that must
be possessed by a testator in order to make a valid will:
To use the time-honoured phrase, a person must be “of sound mind,
memory and understanding” to be able to make a valid will. When a will is
contested on the ground of mental incapacity, the propounder must
prove that the testator understood what he or she was doing: that the
testator understood the “nature and quality of the act.” The testator must
be able to comprehend and recollect what property he or she possessed,
the persons that ordinarily might be expected to benefit, the extent of
what is being given to each beneficiary and, finally, the nature of the claims
of others who are being excluded.
The leading case of Banks v. Goodfellow (1870), 5 L.R. 5 Q.B. 549, [1861-73] All E.R. Rep. 47. described the test as
follows (at 565):
It is essential to the exercise of such a power that a testator shall understand the nature of
the act and its effect; shall understand the extent of the property of which he is disposing;
shall be able to comprehend and appreciate the claims to which he ought to give effect;
and, with a view to the latter object, that no disorder of the mind shall poison his affections,
pervert his sense of right, or prevent the exercise of
22
Perrins v. Holland, 2010 EWCA Civ. 840 at para. 13.
23
Hall v. Atherton (2004), [2005] W.T.L.R. 99 at para. 33 (per Peter Gibson L.J.).
7.1.8
his natural faculties—that no insane delusion shall influence his will in disposing of his
property and bring about a disposal of it which, if the mind had been sound, would not
have been made.
Banks v. Goodfellow has been consistently applied in Canada and remains the touchstone case.24 There have
been some attempts by Canadian courts to recraft the test and state it in more modern language: see Maliwat
v. Gagne, 2009 BCSC 1447 at paras. 111-13, aff’d 2010 BCCA 323. In the UK, the test in Banks v. Goodfellow was
“articulately updated”25 by the Court of Appeal in Sharp v. Adam, 2006 EWCA Civ. 449.
Another important decision on testamentary capacity is Leger v. Poirer, [1944] S.C.R. 151, in which Mr. Justice
Rand referred to the requirement of a “sound and disposing mind and memory.” He also warned of the
deceptive ability of individuals to answer certain questions and therefore give the impression that they are
capable, when they do not have a sound and disposing mind and memory.26
2.
Other Considerations
The concept of testamentary capacity is quite complex and I will not purport to be exhaustive in my review. For the
purposes of this paper, I will summarize some basic principles underlying this area of the law.
a.
Testamentary Capacity is a Question of Fact
Whether a testator possessed sufficient capacity is a question of fact. There is a wide range of capacity between
a “raving madman” and a testator perfectly in control of his or her faculties. The challenge for the Court was
succinctly stated by the House of Lords in Boyse v. Rossborough (1857), 6 H.L. Cas. 2, 10 E.R. 1192 (at 1210 of
E.R.): “There is no possibility of mistaking midnight for noon; but as to what precise moment twilight becomes
darkness is hard to determine.”27
Key evidence will come from the solicitor who drafted the will, and took instructions from the testator. Steps
that the solicitor took to be satisfied that the testator had capacity must be scrutinized. The presence or
absence of such evidence will significantly impact the outcome of the case.28 It should be noted that a court
may still find that a testator lacked testamentary capacity despite “painstaking and meticulous” notes of a
solicitor.29 The issue of medical evidence regarding testamentary capacity will be discussed below.
b.
Not a “Stringent Standard”
The courts do not require a “stringent standard” for testamentary capacity.30 This principle is somewhat
related to the concern of courts about taking away the right of the elderly to plan their estate. A testator’s
advanced age and diminished capacity does not disentitle her to make a will disposing of her property as she
sees fit.31
24
Ouderkirk v. Ouderkirk, [1936] S.C.R. 619; De Araujo v. Neto (2001), 40 E.T.R. (2d) 169, 2001 BCSC 935 at paras.
127-28; Peters Estate v. Ewert (2002), 48 E.T.R. (2d) 91 at paras. 76-8 (B.C.S.C.).
25
Coleman v. Coleman Estate (2008), 45 E.T.R. (3d) 117, 2008 NSSC 396.
26
Leger v. Poirer, [1944] S.C.R. 151 at 161-62.
27
See also: Bates v. Finlay Estate (2002), 43 E.T.R. (2d) 1 at para. 109 (B.C.S.C.); Bayne v. Bartlett (2004), 6 E.T.R. (3d)
171 at para. 95 (Nfld. S.C).
28
McLean v. Gonzalez-Calvo, 2007 BCSC 646 at paras. 53, 67, 69; Stanton v. Stanton Estate, 2006 BCSC 1574, aff’d 2008
BCCA 32; De Araujo v. Neto (2001), 40 E.T.R. (2d) 169, 2001 BCSC 935 at paras. 125-29.
29
Sharp v. Adam, 2006 EWCA Civ. 449 at paras. 27.
30
McLean v. Gonzalez-Calvo, 2007 BCSC 646 at para. 53; Hix v. Ewachniuk Estate, 2008 BCSC 811 at para. 74.
31
Re Cranford (1975), 8 Nfld. & P.E.I.R. 318 (Nfld. S.C.); Laramee v. Ferron (1909), 43 S.C.R. 391 at 409; Re Johnson
Estate, 2007 ABQB 461 at para. 54.
7.1.9
c.
Declaration of Incapacity Not a Bar
The fact that a person has been found to be incapable of managing his or her own affairs pursuant to adult
guardianship legislation such as the Patients Property Act does not lead automatically to a finding that she
lacked testamentary capacity at the time of preparing and executing a will. Diminished capacity does not
equate to lack of testamentary capacity.32
d.
Testator Entitled to Be Capricious and Unfair
Testators have the right to choose their beneficiaries without accountability to anyone, along with the right to
change their mind as many times as they want, so long as they have capacity to execute the will. The
propounders of the will do not have to justify the reasons.33 In other words, a testator is entitled to be
capricious and unfair. Sir James Hannen stated in Boughton v. Knight (1873):
The law does not say that a man is incapacitated for making a will if he proposes to make
disposition of his property more by capricious, frivolous, mean or even bad motives. … He may
disinherit, either wholly or partially, his children, and leave his property to strangers to gratify his
spite, or to charities to gratify his pride, and we must give effect to his will, however much we
may condemn the course he has pursued.34
There is some authority for the proposition that if there is no reasonable explanation for the terms of a will,
that may be the basis for finding that the testator did not have sufficient capacity. The ability of a testator to
be spiteful and capricious cannot cross the line to being delusional.35 On the issue of psychotic or insane
delusions that can invalidate a will, see: Brydon v. Sirgiandis Estate, 2008 BCSC 749 at paras. 201-19; Skinner v.
Farquharson (1902), 32 S.C.R. 58; Banton v. Banton (1998), 164 D.L.R. (4th) 176 at 198-99 (Ont. Sup. Ct. J.); Fuller
v. Fuller Estate, 2004 BCCA 218, aff’g (2002), 47 E.T.R. (2d) 228, 2002 BCSC 1571.
e.
Testamentary Capacity is a Legal Question, Not a Medical Question
Testamentary capacity is ultimately a legal, not a medical, issue. The opinion of a doctor that a person did or
did not have capacity does not involve the “ultimate issue,” and such opinion evidence is therefore
admissible.36
As with the evidence of solicitors, the evidence of medical practitioners about the testator’s capacity has a
great bearing on the outcome of the case.37 At the same time, the court may prefer the evidence of lay
witnesses, such as friends and family of the testator, over the evidence of a doctor.38 This point was
summarized by Madam Justice Gray in Maliwat v. Gagne, 2009 BCSC 1447 at paras. 114-15.
32
Royal Trust Co. v. Rampone, [1974] 4 W.W.R. 735 (B.C.S.C.); Lodge v. Royal Trust Corporation of Canada, 2003
BCSC 1416 at para. 49.
33
McLean v. Gonzalez-Calvo, 2007 BCSC 646 at para. 58; Rufenack v. Hope Mission, 2002 ABQB 1055 at para. 62, citing
Visnjak v. Jakovich, [1985] B.C.J. No. 1427 (QL) (S.C.) at para. 88.
34
Boughton v. Knight (1873), L.R. 3 P.D. 64; Bayne v. Bartlett (2004), 6 E.T.R. (3d) 171 at paras. 97-8, 117 (Nfld. S.C);
Re Culbert Estate (2006), [2007] 1 W.W.R. 121 at paras. 171-74 (Sask Q.B.).
35
Sharp v. Adam, 2006 EWCA Civ. 449 at paras. 64-65, 71-72, 78-79, citing Harwood v. Baker, 3 Moo. PC 282 at 291.
36
Woodward v. Roberts Estate, 2007 BCSC 1191.
37
De Araujo v. Neto (2001), 40 E.T.R. (2d) 169, 2001 BCSC 935 at paras. 125-29; Re Johnson Estate, 2007 ABQB 461 at
para. 118; Ritchie v. Royal Trust Corporation of Canada, 2007 SKCA 64 at para. 15.
38
O’Neil v. Royal Trust Company (1945), 61 B.C.R. 544 at 548-49, 554 (per Bird J.A.), aff’d [1946] S.C.R. 622; Scott v.
Cousins (2001), 37 E.T.R. (2d) 113 at paras. 76, 97 (Ont. Sup. Ct. J.); Peters Estate v. Ewert (2002), 48 E.T.R. (2d) 91 at
para. 79 (B.C.S.C.).
7.1.10
The weight given to medical evidence about testamentary capacity will depend upon whether the doctor had
actually assessed the testator, or whether the opinion is based solely on clinical records. In Blackman v. Man
(2007), [2008] W.T.L.R. 389, the Chancery Court noted at para. 113:
The Court must be wary of placing much reliance on the theoretical conclusions of medical
witnesses, however eminent, who have not seen the testatrix but base their views on
inferences from other evidence—inferences as to which ultimately it is for the Court and
not an expert witness to decide whether they should be drawn.
Similar comments are made in Re Kaptyn Estate (2008), 43 E.T.R. (3d) 219 at paras. 100, 137 (Ont. Sup. Ct. J.);
Coleman v. Coleman Estate, 2008 NSSC 396; Sharp v. Adam, 2006 EWCA Civ. 449 at paras. 43, 77.
3.
Summary
The issue of testamentary capacity is quite complex and may lead to very interesting medical and legal
questions. Keeping up-to-date with the findings of neuroscience may be one of the benefits of working in this
field. The Court in the recent UK case of Key v. Key, 2010 EWHC 408 noted at para. 95:
… it must be recognized that psychiatric medicine has come a long way since 1870 [i.e. the
judgment of Banks v. Goodfellow] in recognizing an ever widening range of circumstances
now regarded as sufficient at least to give rise to a risk of mental disorder, sufficient to
deprive a patient of the power of rational decision making, quite distinctly from old age and
infirmity.
D.
Knowledge and Approval
1.
General Principles
The requirement to prove that the testator knew and approved the contents of the will is a distinct and
separate requirement from the issue of testamentary capacity. A will that does not express the “true”
intention of the testator will not be admitted to probate even if the testator had capacity and was not subject
to undue influence.39
The caselaw on “knowledge and approval” is nowhere near as extensive as that on testamentary capacity or
undue influence, and the subject is consequently not as well-understood. If a testator lacked capacity, then
there is no need for the court to consider the issue of knowledge and approval.40 The development of the
caselaw was also hampered by a rule, followed for nearly a century, that evidence of knowledge and approval
would be “conclusive” if the will was duly executed by a testator having testamentary capacity, and the will had
been read over by or to the testator or the contents were otherwise brought to his attention.41 There was a
progressive erosion of the rule culminating in the English case of In re Morris (1969), [1970] 1 All E.R. 1057,
[1971] P. 62. The Court will now consider all of the circumstances to determine whether the testator knew
and approved the contents of the will.42 Nevertheless, the courts still show some reluctance to invalidate a will
solely on the basis of lack of knowledge and approval, due to the “inherent improbability” of a capable testator
not reading or understanding such an important document as their will.43 Courts will prefer to decide a case
based upon testamentary capacity or undue influence.
39
Hoff v. Atherton (2004), [2005] W.T.L.R. 99 at paras. 27, 33; Johnson v. Pelkey (1997), 36 B.C.L.R. (3d) 40 at
para. 107, 17 E.T.R. (2d) 242 (S.C.); Coleman v. Coleman Estate, 2008 NSSC 396 at paras. 41-42.
40
Perrins v. Holland, 2010 EWCA Civ. 840 at para. 31; Maliwat v. Gagne, 2009 BCSC 1447 at para. 134.
41
Vout v. Hay, [1995] 2 S.C.R. 876 at paras. 26 and 27.
42
In re Morris (1969), [1970] 1 All E.R. 1057, [1971] P. 62 at 74-79; Tanner v. Public Trustee (1972), [1973] 1 N.Z.L.R.
68 (C.A.).
43
Re Morgan Estate (2007), [2008] W.T.L.R. 73 (Ch.).
7.1.11
To some degree, the issue of knowledge and approval is closely tied to the doctrine of suspicious
circumstances referred to above. In the recent case of Perrins v. Holland, 2010 EWCA Civ. 840, the England and
Wales Court of Appeal referred to “knowledge and approval” as being a shorthand reference to the removal of
suspicious circumstances. The caselaw in BC would suggest that the doctrine is more expansive than that.
If there are suspicious circumstances relating to the issue of knowledge and approval, the propounder must
dispel the suspicion and prove “the righteousness of the transaction.” The court must be “judicially satisfied
that the paper propounded does express the true will of the Deceased.” In other words, the propounder must
affirmatively prove, on the balance of probabilities, that the testator knew and approved the contents of the
will, including the effect of the provisions of the will. The burden is on the propounder to show that the
testator’s “mind and will went with the deed of execution of the will.”44
Proving “the righteousness of the transaction” does not involve scrutinizing the terms of the will. The court
does not have to be satisfied that the testator chose the most deserving beneficiaries. There is “no overriding
requirement of morality.” This phrase only refers to dispelling the suspicion raised.45
2.
Relevant Factors
Whether there was “knowledge and approval” depends on the facts of each case. The following factors have
been held to be relevant to the analysis:
(a)
whether the testator had language problems or suffered from vision or hearing problems46;
(b)
whether the terms of the will were in simple language or was it prepared in dense,
impenetrable legal gobbledygook that the testator would likely not have understood47;
(c)
whether the terms of the will marked a radical departure from previous wills48;
(d)
whether there was a larger pattern of manipulative behavior by the main beneficiary of the
alleged will to obtain all of the deceased’s assets49;
(e)
the presence or absence of independent legal advice;50 and
(f)
whether statements or actions of the testator subsequent to the making of the alleged will
were fundamentally inconsistent with its terms.51
44
Wintle v. Nye, [1959] 1 All E.R. 552 at 557, 559 (per Viscount Simonds), at 561 (per Lord Reid) (H.L.);
Rycroft v. Cant, [1972] 3 W.W.R. 372 at 379 (B.C.S.C.); Russell v. Fraser (1980), 118 D.L.R. (3d) 733 at 739
(B.C.C.A.); Johnson v. Pelkey (1997), 36 B.C.L.R. (3d) 40, 17 E.T.R. (2d) 242 at paras. 111, 114 (S.C.); Lowery
v. Falconer, 2008 BCSC 516 at paras. 47, 50; Franks v. Sinclair, 2006 EWHC 3365 at para. 58 (Ch.).
45
Fuller v. Strum (2001), [2002] 2 All E.R. 87 at para. 32 (per Peter Gibson L.J.), at para. 65 (per Chadwick L.J.)
(C.A.).
Johnson v. Pelkey (1997), 36 B.C.L.R. (3d) 40 at paras. 116-21, 17 E.T.R. (2d) 242 (S.C.); Gaudet v. Knudsen,
[1985] B.C.J. No. 803 (QL) (S.C.), aff’d [1987] B.C.J. No. 2167 (QL) (C.A.); Re Uppal Estate, 2004 ABQB
412, [2004] A.J. No. 935 (QL); Wyniczenko v. Plucinska-Surowka, 2005 EWHC 2794 (Ch.).
46
47
48
49
50
51
Franks v. Sinclair, 2006 EWHC 3365 at paras. 65-66 (Ch.).
Lowery v. Falconer, 2008 BCSC 516.
Cooke v. Moore (1965), 52 W.W.R. 449 at 460 (N.S.) (B.C.S.C.); Lowery v. Falconer, 2008 BCSC 516.
Wintle v. Nye, [1959] 1 All E.R. 552 at 556 (H.L.); Franks v. Sinclair, 2006 EWHC 3365 (Ch.).
Cooke v. Moore (1965), 52 W.W.R. 449 (N.S.) (B.C.S.C.); Re Uppal Estate, 2004 ABQB 412, [2004] A.J.
No. 935 (QL); Bertolo v. Nadalini, [2007] O.J. No. 335 (QL) (Sup. Ct. J.).
7.1.12
3.
Overlap with Rectification Issues
Questions may be raised as to whether some fraud or trickery was involved, to induce a person to sign a will, or
perhaps some form of innocent mistake.52 In this regard, it should be noted that some caselaw involving
knowledge and approval—such as the leading case of Re Morris—arose due to the limited power of probate
courts to rectify the terms of a will even in clear cases of drafting errors. In Re Morris, the Court resorted to the
doctrine of knowledge and approval to invalidate a codicil containing a clerical error, since the Court did not
have the power to add words to the codicil to reflect the testator’s true intent. In the end, the entire codicil
was held to be invalid due to lack of knowledge and approval.53
One of the important reforms contained in the WESA will be a greater power of the court to rectify wills.
Section 59 of the WESA sets out the grounds upon which a will may be rectified, such as “a failure to carry out
the will-maker’s instructions.” In the future, litigants may decide that the route of rectification under the
WESA may be less complicated than seeking to have a will invalidated on the basis of the doctrine of
knowledge and approval.
4.
Leading Cases
It may be helpful to illustrate these general principles about knowledge and approval by reviewing leading case
authorities.
a.
Russell v. Fraser
The leading case on knowledge and approval in British Columbia is Russell v. Fraser (1980), 118 D.L.R. (3d) 733
(B.C.C.A.), aff’g [1979] B.C.J. No. 41 (QL) (S.C.). Anne Bailey made a will in 1974 leaving various gifts to family
and the residue of her estate to the manager of her credit union (the defendant Fraser). She had sought
Fraser’s assistance in regards to preparing a will. The legacies that she wanted to leave amounted to $76,000.
Fraser “facetiously” suggested that he receive the balance of the estate, and such a residuary clause was indeed
inserted. In the end, Mrs. Bailey’s estate was close to $200,000, and the gift of the residue therefore amounted
to about 2/3 of the estate. The trial judge held that the defendant Fraser could not remove the suspicions
about the will, and could not “satisfy the conscience of the Court that the testatrix knew and approved of the
contents of the will” (para. 39). The majority of the will was admitted to probate, but not the clause relating to
the residue. The Court of Appeal affirmed the judgment, although it varied the costs award. Anderson J.A.
commented that the trial judge (Legg J.) was correct in holding that “knowledge and approval” required that
Mrs. Bailey be aware of the value or magnitude of the residue of her estate. Knowledge and approval involved
whether Mrs. Bailey properly appreciated the effect of the will. The defendant Fraser was required to
“affirmatively prove” that Mrs. Bailey did in truth appreciate the effect of what she was doing (i.e., leaving the
majority of her estate to Fraser) and he did not discharge this onus.
b.
Lowery v. Falconer (2008)
Another important case is Lowery v. Falconer, 2008 BCSC 516 [sub. nom. Pollard Estate v. Falconer], which again
stresses the importance of the testator understanding the effect of the will, not just what it says. The testatrix
Mrs. Pollard was 78 years old. She had various siblings, including a brother with Downs Syndrome named Greig.
She had cared for Greig all her life, and was adamant that he be looked after. Her estate was valued at
approximately $1 million. The will in dispute was dated August 2005 and left everything to the Falconer
defendants (a grand-niece and her husband). The 2005 will was drafted by a lawyer who had never met the
testatrix prior to 2005, but had acted for the Falconers. Mr. Justice Macaulay held that the 2005 will was invalid
because the Falconers had failed to prove
52
Coleman v. Coleman Estate, 2008 NSSC 396 at paras. 42-47.
53
In re Morris (1969), [1970] 1 All E.R. 1057, [1971] P. 62.
7.1.13
“knowledge and approval.” It was clear that the testatrix wanted to leave something for her brother Greig. The
position of the defendants was that the testatrix would leave her entire estate to them, but on the
understanding that they would “look after” Greig. The lawyer was actually aware of this “understanding” but
did not insert it into the will. Mr. Justice Macaulay held that the omission of this understanding about Greig
could be enough to invalidate the 2005 will. He stated (at para. 50):
The evidence of [the solicitor] and Falconer does not satisfy me that Mrs. Pollard fully
appreciated that the effect of what she was doing when she made her 2005 will was to
disinherit Greig, leaving him, or anyone acting on his behalf, without any means of enforcing
a claim that he was to be maintained out of the proceeds of her estate. While Mrs. Pollard
may have believed that it was sufficient to have an oral agreement with the Falconers, it was
[the solicitor’s] obligation to review with her the obvious legal unenforceability of the
agreement. There is little or no evidence that he did so and I find that he did not.
In the alternative, the Court would have held the will to be invalid due to lack of testamentary capacity or due
to undue influence.
c.
Franks v. Sinclair
The UK case of Franks v. Sinclair, 2006 EWHC 3365 (Ch.) is also quite instructive. The plaintiff Franks was a
solicitor who prepared the will of his late mother in 1994. She was 90 years old at the time. The 1994 will
divided the estate between Franks and his sister. Franks had received little or nothing in previous wills made by
his mother, as she intended to leave most of her estate to her grandson Jonathan. The plaintiff Franks claimed
that his mother rang him at work and said that she wanted to make a new will, which he then prepared. The
witnesses to the execution of the will included another lawyer at the plaintiff’s firm. Franks read out the will to
his mother, in what the Court later found this to be a bit of a “performance” for the witnesses. She did not
comment on the change in the residuary clause. She may have scanned the will, but did not read it. Franks did
not provide a copy of the will to her. The Court held that there were clearly suspicious circumstances, as
Franks was instrumental in the preparation of the will and was also a substantial beneficiary. His mother did
not receive any independent legal advice. Further, Franks did not go through the will in “everyday language.”
The Court held that it was “very unlikely” that Mrs. Franks would have understood the effect of the clause
regarding the residue of the estate, as it was “impenetrable” and “gobbledegook” (para. 65). There is no
evidence that she understood the effect when it was read out to her. Given the history of the wills executed by
Mrs. Franks over the previous decades, the probability of changing her will in this manner was “very low.” The
plaintiff Franks therefore was unable to remove the suspicions about knowledge and approval.
5.
Summary
Challenging a will on the basis of “knowledge and approval” may be overlooked, but it is important to
remember that this is a distinct requirement for proving the validity of a will. A will may be invalid even
though the testator had capacity and was not subject to undue influence. Further, the doctrine of knowledge
and approval, especially as it has been developed in BC, is more extensive than merely raising suspicious
circumstances. It may be vital to your case that the testator did (or did not) understand the effect of the will.
E.
Undue Influence
1.
General Principles
In order to render a will void, undue influence must be an influence which caused the execution of a paper
which pretends to express the testator’s mind, but which really does not. In other words, evidence which
shows mere persuasion or advice from an interested person will not suffice. What is
7.1.14
required is proof that the testator’s assent to the will was obtained by influence such that, instead of
representing what he wanted, the will is a product of coercion on the part of the defendant.54
There is a distinction between knowledge and approval of a will and undue influence. A testator may be fully
aware of what he or she is doing but have his or her independence of will completely overborne.55
Undue influence must be affirmatively proven. The raising of “suspicious circumstances” is not sufficient to
prove undue influence. The onus of proof stays with the person attacking the will. The burden of proof is the
civil standard of the balance of probabilities.56
If the only evidence to disprove undue influence comes from the person who is alleged to have coerced the
will, the court must be vigilant in examining the evidence and test such evidence against the preponderance of
probabilities that rationally emerge out of all the evidence in the case.57 Lack of independent legal advice,
coupled with a dominating relationship, may lead to a finding of invalidity based upon undue influence.58
The stakes are high in an undue influence claim, as there is a potential for an adverse costs award being made
against the challenger. Due to seriousness of the allegations, which are akin to fraud, the court may order the
party to pay special costs if the allegations are unproven. (See the discussion on costs below.)
Proving undue influence is also very difficult. Due to the nature of the issue, a party is usually forced to rely
upon circumstantial evidence.59 The Supreme Court of Canada has stated that these cases require a
“meticulous examination” of the facts.60 At the end of the day, however, it may come down to an exercise of
“common sense,” or showing that there is no other equally plausible explanation other than undue influence.61
2.
Relevant Factors
In Scott v. Cousins (2001), 37 E.T.R. (2d) 113 (Ont. Sup. Ct. J.), Mr. Justice Cullity set out the following factors to
consider in an undue influence claim (at para. 114):
54
Lamoureux v. Craig, [1919] 3 W.W.R. 1101 (J.C.P.C.); Tribe v. Farrell (2003), 4 E.T.R. (3d) 288, 2003 BCSC
1758 at paras. 134-36, aff’d (2006), 21 E.T.R. (3d) 188, 2006 BCCA 38; Ravnyshyn v. Drys (2005), 15 E.T.R.
(3d) 251, 2005 BCSC 561 at paras. 99, 102ff; Bates v. Finlay Estate (2002), 43 E.T.R. (2d) 1 at paras. 115-16
(B.C.S.C.).
55
Hix v. Ewachniuk Estate, 2008 BCSC 811 at para. 87.
56
Vout v. Hay, [1995] 2 S.C.R. 876 at para. 28; Ravnyshyn v. Drys (2005), 15 E.T.R. (3d) 251, 2005 BCSC 561
at paras. 93, 110, 112.
57
Hix v. Ewachniuk Estate, 2008 BCSC 811 at paras. 90-92.
58
De Araujo v. Neto (2001), 40 E.T.R. (2d) 169, 2001 BCSC 935 at paras. 136-38; Hix v. Ewachniuk Estate, 2008
BCSC 811 at paras. 102-4.
59
De Araujo v. Neto (2001), 40 E.T.R. (2d) 169, 2001 BCSC 935 at para. 132; Hix v. Ewachniuk Estate, 2008
BCSC 811 at para. 88; Streisfield v. Goodman (2001), 40 E.T.R. (2d) 98 at para. 139, [2001] O.J. No. 3314
(QL) (Sup. Ct. J.), aff’d (2004), 8 E.T.R. (3d) 130 (Ont. C.A.); Callender v. Berde. [1996] B.C.J. No. 1042
(QL) (S.C.) at para. 32.
60
Geffen v. Goodman Estate, [1991] 2 S.C.R. 353 at 381.
61
Hix v. Ewachniuk Estate, 2008 BCSC 811 at paras. 106-14, aff’d (2010), 6 B.C.L.R. (5th) 85, 2010 BCCA 317
at para. 16; De Araujo v. Neto (2001), 40 E.T.R. (2d) 169, 2001 BCSC 935 at para. 139-140; Scott v. Cousins
(2001), 37 E.T.R. (2d) 113 at paras. 39, 123 (Ont. Sup. Ct. J.)
7.1.15
(a)
the willingness or disposition of the persons to have exercised undue influence;
(b)
whether an opportunity existed;
(c)
the vulnerability of the testator;
(d)
the degree of pressure that would be required;
(e)
absence of moral claims of the beneficiaries;
(f)
whether the will departs radically from the dispositive pattern of earlier wills.
Another helpful list was supplied by the Court in Ravnyshyn v. Drys (2005), 15 E.T.R. (3d) 251, 2005 BCSC 561
at para. 99.
3.
Different Forms of Coercion
Coercion can come in many forms. Conduct amounting to undue influence may be overt, such as threats by a
family member or caregiver to stop assisting an elderly person unless the will is changed in his or her favour.62
Undue influence can also be the result of “manipulation.” There is no requirement that the testator has been
terrorized or threatened by the beneficiaries procuring the will. Effective domination of her will by someone
else is sufficient.63 As seen in Lowery v. Falconer, 2008 BCSC 516 at para. 80, a testator may be “coerced” into
signing a will even if she is persuaded to do exactly what the will stated, despite the will not carrying out her
true intentions. In Hix v. Ewachniuk, 2008 BCSC 811, aff’d 2010 BCCA 317, the Court held that the undue
influence was exerted, not by threats or promises, but by the fact that the testatrix’s son had “worked on his
mother over an extended period of time.”
4.
Presumption of Undue Influence
The enactment of the WESA will have a significant impact on the litigation of undue influence claims. At this
time, there is some uncertainty as to whether the “presumption of undue influence” found in cases involving
inter vivos transfers also applies to wills. In other jurisdictions, there is clear authority that no such
presumption applies in testamentary cases.64 The caselaw in BC, however, is somewhat divided on this point.65
Section 52 of the WESA will remove this uncertainty in the law and provide for a “presumption of undue
influence” in certain cases. If a challenger to a will can establish that the testator was in a position “where the
potential for dependence or domination of the will-maker was present,” then there is a presumption of undue
influence. The party alleged to have perpetrated such undue influence would then have the onus of
establishing that he did not exercise undue influence. Future caselaw will reveal whether proving undue
influence is made any easier due to this presumption.
62
Gamache v. Gamache (2005), 22 E.T.R. (3d) 114, 2005 ABQB 944 at para. 58; Re Marsh Estate (1991), 104
N.S.R. (2d) 266 (C.A.).
63
Re Crompton, [1938] O.R. 543 at 583 (H.C.J.); Scott v. Cousins (2001), 37 E.T.R. (2d) 113 at paras. 114 (Ont.
Sup. Ct. J.); Streisfield v. Goodman (2001), 40 E.T.R. (2d) 98 at para. 138, [2001] O.J. No. 3314 (QL) (Sup.
Ct. J.), aff’d (2004), 8 E.T.R. (3d) 130 (Ont. C.A.).
64
Scott v. Cousins (2001), 37 E.T.R. (2d) 113 at paras. 112-13 (Ont. Sup. Ct. J.).
65
See D.R. Klinck, “Does the Presumption of Undue Influence Arise in the Testamentary Context?” (2005)
24 E.T.P.J. 125.
7.1.16
IV. Procedural Steps and the Rules of Court
A.
The Supreme Court Civil Rules
Rules 21-4 and 21-5 of the Supreme Court Civil Rules are the so-called “probate rules.” These rules had
formerly been numbered 62 and 61, respectively, in the old Rules of Court.
For the purposes of this paper, I will provide a brief review of how the Civil Rules may trigger a probate action,
and then provide a general overview of how other provisions of the Civil Rules would affect the litigation
process. A more complete review of this subject can be found elsewhere.66
1.
Caveats and Citations
In regards to the probate rules, it is important to understand how caveats and citations, now found in Rule 215, can be used, and how they may ultimately trigger a probate action.
The filing of a caveat effectively prevents the issuance of a grant of probate pending the determination of the
validity of the will. Initially, it has the practical effect of allowing time for a person to gather information about
the circumstances of the will and determine whether a challenge will be made. A caveat can always be
withdrawn. In Chang Estate v. Chang, 2010 BCCA 111, the BC Court of Appeal stated that a caveat is a notice
to the Court not to permit anything to take place without notice to the caveator. That is its “only purpose.”
Unless the caveat is voluntarily withdrawn, or cancelled due to a failure to file a notice of interest under Rule
21-5(47), a probate matter becomes “contentious” and an action to prove the will in solemn form must be
commenced.67
The use of citations may also be important to triggering a probate action. There are different types of citations
found in Rule 21-5, including a citation to bring in a will and a citation to propound an alleged will. They may
be used to determine the actual terms of the will, and identify the beneficiaries. Importantly, a failure to file an
answer pursuant to Rule 21-5(53) to a citation to propound an alleged will (Rule 21-5(51)) will result in the
document being treated as if it never existed.68
2.
Commencing a Probate Action
The filing of a caveat or citation will in many cases make it clear to the executor (or would-be executor) that
proof in solemn form will be needed. As noted in the Romans Estate case, where the validity of a will has been
called in question, it is the “duty” of the executors to prove the will in solemn form of law.69
Probate actions usually proceed by way of Rule 21-4 (the old Rule 62). The plaintiff in the case would typically
be the executor, and part of the relief sought would be an Order pronouncing in favour of the will in solemn
form of law. The defendants in the action would include all beneficiaries named in the will. It may be
necessary to name all intestate beneficiaries as well. If the will is not found to be valid, and the effect of such an
order would be that an earlier will is admitted to probate, then the beneficiaries of that earlier will should also
be named as parties.
66
See chapter 18 of Probate and Estate Administration Practice Manual; Janine A.S. Thomas, “The Problem
Will” (PBLI, 1998), at 2.17 to 2.20; Sandra K. Ballance, “Caveats, Pre-Grant Citations and Subpoenas” (CLE,
June 1992).
67
Chang v. Chang Estate, 2010 BCCA 111 at para. 57; Hetherington v. McLeod, 1991 BCSC 1 at paras. 18-23.
68
Re Trinder Estate, [1987] B.C.J. No. 1476 (QL) (S.C.).
69
Romans Estate v. Tassone (2009), 51 E.T.R. (3d) 1, 2009 BCCA 421.
7.1.17
A probate action may also be commenced by a party seeking to revoke a grant of probate in common form
issued to the executor. In that case, the parties would be the same except that the executor is now one of the
defendants, and would make a counterclaim for proof in solemn form of the will. The plaintiff may seek a
declaration of intestacy, or an Order that an earlier will be admitted to probate.
The case of Powell v. Powell (1987), 21 B.C.L.R. (2d) 109 (S.C.) stands for the proposition that a probate action
cannot be commenced for the sole purpose of invalidating a will. The Court in Powell also indicated that the
action would not extend back to numerous prior wills of the testator. A party also cannot commence an
action for proof in solemn form of a will if there exists a later will, and that later will has not been pronounced
invalid.70
Rule 21-5 (the old Rule 61) also contains provisions for a proof in solemn form proceeding commenced by way
of petition. Such a provision is rarely used, as it can only be used if the matter is not contentious.71 A
contested probate matter is ill-suited to be heard in a summary manner, and such a proceeding would
inevitably be transferred to the trial list and proceed as an action under Rule 21-4.
The provisions of Rule 21-5 also allow the Court to order that a will be proven in solemn form by way of a
probate action. Such a result arose in the intriguing case of Romans Estate v. Tassone, 2009 BCSC 194. This
case involved a dispute over the estate of Mr. Romans. A young caregiver named Carole alleged that Mr.
Romans left a will appointing her as executor and leaving her everything. She then commenced a legal action
in regards to an earlier transfer of property by Mr. Romans, and sought production of the file of the solicitor
who handled the real estate conveyance. The solicitor had serious concerns about the validity of the will being
presented by Carole, due to evidence of her abusive relationship with the elderly Mr. Romans. The solicitor
required that she obtain a grant of probate before he would produce his file to her. He also filed a caveat in
relation to the estate. The Court held that the caveat must be struck out, since the solicitor had no interest in
the estate, but that the solicitor was justified in requiring a grant of probate. The Court ordered that Carole
commence a probate action within 6 months, or her action concerning the property conveyance would be
dismissed. The BC Court of Appeal upheld this decision: 2009 BCCA 421. The suspicious circumstances of the
case justified the chambers judge’s decision in requiring that the will be proven in solemn form. It did not
matter that the solicitor had no status to seek an Order for proof in solemn form; once such concerns had
been brought to the attention of the Court, the chambers judge “had a duty to act upon the concern in an
effective manner.” The Court of Appeal held that the apparent intent of Rule 61(11)—now Rule 21-5(13)—
was to order that executors prove a will in solemn form if it has been called into question.
3.
Steps in a Probate Action
Once the probate action has been triggered, it will proceed through the typical phases of civil litigation:
document discovery, examinations for discovery, obtaining the evidence of witnesses (including experts), and
trial. Pre-trial resolution procedures, such as making offers to settle or conducting a mediation, may be
pursued. Some probate actions can be heard in a summary trial (now Rule 9-7),72 although many cases—in
particular, those involving undue influence—are not suitable for a summary trial.
Rule 21-4 also contains some provisions that are unique to probate actions. Rules concerning default
judgment and discontinuances do not apply: Rule 21-4(10). A probate action cannot be settled or
discontinued without the leave of the Court: Rule 21-4(11) and (12).
70
Hall v. Sullivan, 2007 BCSC 1143.
71
McNeill v. McKinley, [1998] B.C.J. No. 1821 (QL) (S.C.); Hetherington v. McLeod, 1991 BCSC 1.
72
See Gin v. King, 2006 BCSC 1610; Leech Estate v. Lynch, 2007 BCSC 639 at para. 23.
7.1.18
B.
Impact of the New Civil Rules
The new Supreme Court Civil Rules took effect on July 1, 2010. One of the objects of the new Rules is the same
as the previous version: “to secure the just, speedy and inexpensive determination of every proceeding on its
merits”. There is now the additional goal of “proportionality”. Rule 1-3(2) provides:
Securing the just, speedy and inexpensive determination of a proceeding on its merits
includes, so far as is practicable, conducting the proceeding in ways that are proportionate to
(a) the amount involved in the proceeding,
(b) the importance of the issues in dispute, and
(c) the complexity of the proceeding.
The objective of proportionality will guide the court during the case planning conference, and the issuance of a
case planning order (“CPO”) pursuant to Part 5 of the Civil Rules. The steps set out in a CPO for a probate
action involving an estate worth $200,000 will likely be much different than a CPO for a case involving a $10
million estate. Although the attitude of “champagne tastes with beer money”73 was never a proper way to
conduct litigation, the explicit objective of proportionality should ensure that this would be avoided.
One of the key reforms brought about by the Civil Rules relates to document discovery and other forms of pretrial discovery. The Peruvian Guano test is replaced by the much more circumscribed requirements of Part 7.
Parties will only be required to list documents within their possession or control that could be used by any
party of record to prove or disprove a material fact, or will be referred to at trial. Rule 7-1(11) also allows a
party to require production of documents that “relate to a matter in question in the action.”
This narrower scope of document production will have a big impact on all aspects of estate litigation, including
probate actions, since the Peruvian Guano approach could lead to thousands of documents being produced
(particularly if the testator was a pack rat). The scope of document discovery could be varied by way of the
CPO. As noted above, an undue influence case requires a “meticulous examination of the facts,” and a
challenger would probably want to cast a much wider net.
Another major reform in the new Civil Rules pertains to expert reports. The intent of the drafters is to weed
out the “hired guns” and ensure that all opinion evidence is reliable and assists the court. The court has the
authority to order that there be only one expert on a particular issue (Rule 11-3), or even appoint its own
expert (Rule 11-5). If both parties are allowed to retain their own experts under Rule 11-4, the court has the
power under Rule 5-3(1)(k)(iii) to order that the experts confer with each other. Such an approach may be
useful in probate actions, particularly involving testamentary capacity. As noted above, the courts have
questioned the value of expert reports based solely upon clinical records. Yet, only one side in the litigation
would be able to retain the testator’s treating physician. The use of a joint expert, or ordering that experts
confer, may be useful. Many probate cases from the UK, where similar rules on expert evidence were
introduced by the Woolf Reforms, involve joint experts.74
C.
The Draft Probate Rules
In May 2010, the BC Law Institute published a consultation paper prepared by the Probate Rules Reform
Project Committee concerning amendments to the Supreme Court Civil Rules. There had been few changes to
the Rules of Court concerning probate business (Rules 61 and 62 of the former Rules) as that was not
considered by the Civil Justice Reform Working Group.
73
Harrison v. Gollan (2004), 14 E.T.R. (3d) 60 (Ont. Sup. Ct. J.).
74
Key v. Key, 2010 EWHC 408 (Ch.) at para. 16; Gill v. Woodall, 2009 EWHC 834 (Ch.).
7.1.19
The reforms proposed by the Committee are quite extensive, and do not amount to mere tinkering with the
existing probate rules. Substantial changes are being proposed, many to reflect existing practice in the
province but also some that reflect the changes brought about by the WESA. The full report can be found on
the BCLI’s website: <www.bcli.org>.
Since these proposals are still in draft form, I will not set them out in detail, but have attached some of the key
proposals, as they relate to litigation, in the Appendix to this paper. Examples of these changes include
allowing for discontinuance, consent dismissal, and settlement without leave of the court. Probate actions
would be commenced within the existing court file by making an interlocutory application. The court, in
something akin to a case planning conference under Rule 5, would then give directions concerning the
procedure to be followed in the case, so that the procedure is “only as elaborate as necessary to resolve each
contested matter” (at 17 of the BCLI report). The procedure may range from a chambers application to a full
civil trial. A similar process is already found in Saskatchewan and Alberta and caselaw from those provinces
may be helpful.75
V.
A.
Costs in Probate Actions
General Principles
Costs in litigation are something of a regulatory device.76 The potential for an adverse award of costs imposes
discipline on the process, and helps to prevent frivolous or meritless claims. An award of costs may either
indemnify (partially or completely) a “successful” party, or be used to penalize a party who made claims devoid
of merit, depending upon the circumstances.
The general rule in civil litigation, as set out in Rule 14-1(9), is that costs follow the event unless the court
orders otherwise. An award of costs is always discretionary, but such discretion must be exercised judicially.
There are no strict guidelines for departing from the normal rule, but the court will consider matters such as
hardship, the conduct of the parties, and whether the award of costs would upset the balance achieved by the
award itself.77
It must be remembered that estate litigation is a subset of civil litigation, and is not immune from these
general principles. An Ontario judge recently commented that the discipline imposed by the costs regime has
particular importance in the emotionally-charged atmosphere of estate litigation.78 Accordingly, the general
rule of “loser pays” will also apply in estate litigation unless there is “good reason” to make a different award.79
For the reasons that follow, however, there is often “good reason” to depart from this rule in probate actions.
As noted by the BC Court of Appeal in Re Collett Estate (2005), 48 B.C.L.R. (4th) 102, 2005 BCCA 291, it is “not
uncommon” in estate litigation for the costs of all parties to be paid out of the estate.
It is important to understand these rules concerning costs awards in estate litigation, and ensure that your
client understands them as well. The possibility of an adverse costs award will bear upon litigation strategy. As
part of “client management,” it is necessary to fully advise the client at the
75
There is interesting caselaw on the evidence required at these initial applications, such as whether the
“challenger” can prove that there is any basis to require that the will be proven in solemn form. See: Dieno
Estate v. Dieno (1996), 147 Sask. R. 14, [1996] 10 W.W.R. 375 (Sask. Q.B.); Quaintance v. Quaintance Estate,
2006 ABCA 47.
76
Chalmers v. Uzelac, 2004 BCCA 533, aff’g (2003), 2 E.T.R. (3d) 22 (B.C.S.C.).
77
Gold v. Gold (1993), 82 B.C.L.R. (2d) 180 (C.A.).
78
Salter v. Sear Estate, 2009 CanLII 28403.
79
Carr v. Goodman Estate (1989), 35 B.C.L.R. (2d) 91 (C.A.).
7.1.20
outset of the file what types of costs awards could be made. Clients are often under the popular
misconception, discussed below, that there is no risk to bringing a probate action since all costs will eventually
be paid by the estate.
B.
Costs in Probate Actions
1.
Popular Misconceptions of the Rule
Two myths need to be debunked. First, there is a misconception that the “traditional rule” for costs in probate
actions has been that all parties obtain their costs out of the estate, regardless of the outcome of the case or
the merits of their claim. Ontario judges have characterized this belief as that the estate is “an ATM machine”
for the parties or that “battles over an estate [are] like banquets to be fully funded by the estate regardless of
[the] merits of the claims.”80
The second misconception, which is arguably more dangerous, is that there is nothing special about estate
litigation and, due to the increasing costs of litigation, the “normal” rule for costs (i.e., the loser pays) should
usually apply. This proposition, found mainly in obiter comments, has sometimes been called the “modern
approach.”81
Both views are erroneous. There has never been a “traditional rule” that all parties necessarily obtain their
costs out of the estate at the end of the day. The guidelines first developed by the probate courts in England,
and consistently applied by the courts in BC, have set out carefully-defined situations in which the court
should depart from the normal rule for costs, and award costs to “unsuccessful” parties. The so-called
“modern approach,” as recently noted by the New Brunswick Court of Appeal, is actually just an application of
the traditional rule.82
2.
Policy Considerations
The intricate rules for costs in probate actions are based upon important policy considerations, and it would
be unfortunate if the unique nature of these actions was overlooked by the courts. For a variety of reasons,
probate actions are unlike typical litigation. As noted above, they cannot be settled or compromised without
leave of the court.83 Further, a Court of Probate has always had an “inquisitorial role” to ensure that only the
valid wills of deceased persons are admitted to probate. In Otis v. Otis (2004), 7 E.T.R. (3d) 221 (Ont. Sup. Ct. J.),
Mr. Justice Cullity of the Ontario Superior Court of Justice commented on the probate jurisdiction of the
courts (at 227-29):
The role of the court is not simply to adjudicate upon a dispute between parties. The
judgment of the court granting probate does not bind only the parties to the proceeding.
Unless, and until, it is set aside, it operates in rem and can affect the rights of other persons.
For this reason—and perhaps more fundamentally—because the court is understood to
have, in a sense, a responsibility to the testator, it would not grant probate in solemn form
on an unopposed application without evidence: Widdifield, Surrogate Court Practice and
Proceedings (second edition, 1930), at 434 - 5. Nor, as a general rule, would it pronounce
against a testamentary instrument solely on the ground that all interested parties
consented to probate of an earlier will …
80
Salter v. Sear Estate, 2009 CanLII 28403; D’Urzo v. D’Urzo, [2007] O.J. No. 594 (QL) (S.C.J.) at para. 2.
81
Woodward v. Roberts Estate, 2007 BCSC 1549; McDougald Estate v. Gooderham (2005), 255 D.L.R. (4th) 435,
17 E.T.R. (3d) 36 (Ont. C.A.); Andruchow v. Seniuk (2005), 20 E.T.R. (3d) 123, 2005 ABQB 780.
82
Breau v. Onge Estate, 2009 NBCA 36 at para. 60. See also Re Foote Estate, 2010 ABQB 197.
83
Re Ireland (1983), 147 D.L.R. (3d) 480 (B.C.C.A.); Jung v. Lee Estate, 2007 BCSC 1740.
7.1.21
Accordingly, due to the importance of ensuring that the testamentary wishes of deceased persons are fulfilled,
and only valid wills are probated, persons should not be hesitant to bring their concerns to the court.84 The
possibility of an adverse costs award, or simply being out of pocket, can be a big disincentive. At the same time,
the bar should not be set too low, or that would encourage frivolous litigation which depletes the estate.85
3.
The Rule in Mitchell v. Gard
The guidelines for awarding costs in probate actions was first stated by the Probate Court in the 1863 case of
Mitchell v. Gard (1863), 3 Sw. & Tr. 275, 164 E.R. 1280 as follows (at 1281 of the E.R. report):
The basis of all rules on this subject should rest upon the degree of blame to be imputed to
the respective parties; and the question, who shall bear the costs? will be answered with this
other question, whose fault was it that they were incurred? If the fault lies at the door of the
testator, his testamentary papers being surrounded with confusion or uncertainty in law or
fact, it is just that the costs of ascertaining his will should be defrayed by his estate.
If the party supporting the will has such an interest under it that the costs, if thrown upon
the estate, will fall upon him, and he by his improper conduct has induced a litigation which
the Court considers reasonable, it is not unjust that the estate should bear the costs of the
litigation which his conduct has caused.
The rule in Mitchell v. Gard has been followed consistently by courts in England,86 BC,87 and elsewhere in
Canada.88 These principles were affirmed and restated by Mr. Justice Gow of the Supreme Court of BC in the
leading case of Morton v. Morton Estate, [1993] B.C.J. No. 1523 (QL) (S.C.) as follows (at paras. 39-41):
R. 57(9) [now Rule 14-1(9)] provides that costs of and incidental to a proceeding shall
follow the event unless the court otherwise orders. In probate actions that has been the rule
since 1907, subject however, to these provisos:
(1) Where the testator or the residuary legatees have been the cause of the litigation;
(2) If the circumstances lead reasonably to an investigation in regard to the propounded
document;
(3) The overriding discretion of the court.
If proviso (1) applies then ordinarily the court will grant the unsuccessful party costs out of
the estate. If proviso (2) applies then ordinarily the court will not make an order for costs
against the unsuccessful party. …
84
Dool v. Nazarewycz (2009), 2 Alta. L.R. (5th) 36, [2009] 7 W.W.R. 636, 2009 ABCA 70 at paras. 89-90.
85
Griffin v. Canada Trust, [1995] B.C.J. No. 2132 (QL) (S.C.); Breau v. St. Onge Estate, 2009 NBCA 36 at
paras. 3, 58, 66; Re Culbert Estate (2006), [2007] 1 W.W.R. 121 at para. 181 (Sask. Q.B.).
86
Twist v. Tye, [1902] P. 92; Spiers v. English, [1907] P. 122; Re Cutliffe, [1958] 3 All E.R. 642; Kostic v. Chaplin,
2007 EWHC 2909.
87
Trites v. Johnson (1945), 61 B.C.R. 397, [1945] 3 W.W.R. 100 (S.C.); Maben v. Urquhart (1968), 1 D.L.R. (3d)
413 (B.C.S.C.); Lee v. Lee Estate (1993), 84 B.C.L.R. (2d) 214, 50 E.T.R. (297 (S.C.).
88
Dool v. Nazarewycz (2007), 31 E.T.R. (3d) 57, 2007 ABQB 12, varied [2009] 7 W.W.R. 636, 2009 ABCA 70;
Manitoba (Public Trustee) v. Ballen (1992), 44 E.T.R. 279 (Man. C.A.); Re Olenchuk (1991), 43 E.T.R. 146, 4
C.P.C. (3d) 6 (Ont. Gen. Div.).
7.1.22
Provisos (1) and (2) are, however, subject to a fourth proviso that even if either is applicable,
but the unsuccessful party has advanced but failed to prove pleas of undue influence or
fraud, then he is condemned in the costs not only of that charge but of the whole action. …
The Morton decision was more recently approved by the BC Court of Appeal in Stanton v. Stanton Estate, 2008
BCCA 362.89
4.
Application of the Rule
If a party cannot persuade the court that he or she falls within the exceptions set out in Mitchell v. Gard, then
the normal rule for costs should apply. Indeed, the recent cases in which courts have trumpeted a “modern
approach” to costs in estate litigation, and ordered that costs follow the event, were simply cases in which the
unsuccessful challenger to the validity of a will could not fall within one of these exceptions.
a.
The Testator is the “Cause”
The first proviso in Mitchell v. Gard concerns the testator being the “cause” of the litigation. The courts have
held that in such situations the costs of the parties are properly payable by the estate since they were forced to
deal with the confusion created by the testator.90 Such a situation could arise in various ways, and this
determination is therefore fact-specific. One recent development is that it seems to be fairly well-accepted
now that if a testator executes a will when there are serious questions about his or her capacity, then this
proviso will be triggered. In other words, the testator “caused” the litigation by failing to execute a will while in
better health.91
b.
Parties “Forced Into Litigation”
In many other cases, a court will find that the challengers to a will were “forced” into the litigation due to
highly suspicious circumstances surrounding the execution of the will, and/or by the actions taken by the
primary beneficiaries of the will.92 Until such suspicions are swept away, the challengers should not be
penalized for bringing their concerns forward. Even if the will is ultimately found to be valid, the court should
consider the situation from the perspective of the party based upon their knowledge of events at the time.
There is always an imbalance in knowledge at the outset of these cases, with disinherited family members
unable to understand or accept how the will could represent the deceased’s true testamentary wishes. The
question is whether their ultimately mistaken belief was based upon reasonable grounds, or was it just spite?
Suspicions about a will can be increased by “stonewalling” on the part of those involved with the making of the
will.93 In this regard, it should be
89
See also: Fuller Estate v. Fuller, 2002 BCSC 1703, aff’d (2004), 7 E.T.R. (3d) 1, 2004 BCCA 218; Re Kemp
Estate; Strain v. Kemp (2006), 22 E.T.R. (3d) 105, 2006 BCSC 58; Bates v. Finlay (2002), 43 E.T.R. (2d) 1,
2002 BCSC 159; Maliwat v. Gagne, 2009 BCSC 1447 at paras. 137-40.
90
Re Kemp Estate; Strain v. Kemp (2006), 22 E.T.R. (3d) 105, 2006 BCSC 58; Maliwat v. Gagne, 2009 BCSC
1447 at para. 141.
91
Alexander v. Fiedler, [2004] O.J. No. 5498 (QL) (S.C.J.); Kostic v. Chaplin, 2007 EWHC 2909 at para. 9;
Fuller Estate v. Fuller, 2002 BCSC 1703, aff’d (2004), 7 E.T.R. (3d) 1, 2004 BCCA 218; Babchuk v. Kutz, 2007
ABQB 88 at para. 11.
92
Ram v. Prasad (1998), 25 E.T.R. (2d) 119, 24 C.P.C. (4th) 383 (B.C.S.C.); Dool v. Nazarewycz (2007), 31
E.T.R. (3d) 57, 2007 ABQB 12, varied 2009 ABCA 70; Hix v. Ewachniuk Estate (2008), 43 E.T.R. (3d) 113,
2008 BCSC 1258.
93
Dool v. Nazarewycz (2007), 31 E.T.R. (3d) 57, 2007 ABQB 12, varied 2009 ABCA 70; Re Coughlan Estate,
2003 PESCTD 75; Weinar v. Elman, [2001] O.J. No. 4940 (QL) (S.C.J.).
7.1.23
noted that the so-called rule of Larke v. Nugus, often cited by UK courts, provides that an executor is under an
obligation to provide full and frank information to persons who might have an interest in attacking the will, so
as to avoid costly litigation if possible.94
It is not always clear when the first proviso in Morton should apply, so that the unsuccessful party is entitled to
costs out of the estate, or when the second proviso should apply so that there is simply no costs award being
made against that party. As will be discussed further below, this distinction may be more relevant when
reviewing different phases of the litigation.
c.
Undue Influence Claims
The Court in Morton stated that if the unsuccessful party made allegations of undue influence, he or she may
be condemned in costs not only of the undue influence or fraud charge but of the whole action. Such an
award has indeed been made in many cases, and should serve as a warning to parties (and their counsel) to
fully consider whether such an allegation should be made. A prime example of this situation can be found in
Ravnyshyn v. Drys, 2005 BCSC 561, reasons on costs at 2005 BCSC 1216, which was described as a “civil murder
case” due to the plaintiffs not only challenging the will on the basis of undue influence, but also insinuating
that the defendants killed the testator. There are many other cases in which the court held that an award of
special costs, to be paid personally by the unsuccessful challengers in an undue influence case, was justified.95
Will unsuccessful allegations of undue influence always lead to an award of special costs being made against
the party, or some form of adverse costs award? There could be situations in which it was reasonable to
pursue such a claim. The Court in Mitchell v. Gard suggested that an adverse costs award is not always
appropriate in undue influence cases. It should also be noted that allegations of undue influence were not
proven in Vout v. Hay, but the Supreme Court of Canada awarded solicitor/client costs to all of the parties, for
each level of the case.96 The enactment of the “presumption of undue influence” in s. 52 of the WESA may also
affect this analysis. If a party can prove that the presumption arises, and there were reasonable grounds for
making a claim, perhaps they can avoid an adverse costs award even though the presumption is ultimately
rebutted.
C.
Tailoring the Proper Costs Award
The trend in the caselaw, particularly seen in cases arising from Alberta, is that courts will more carefully
scrutinize each case to determine the appropriate costs award. The courts have a great deal of discretion, and
costs awards can fall along a very wide spectrum: at one end, there would be the costs award in Vout v. Hay (all
parties obtain special costs out of the estate for three levels of court) and at the other end would be a case like
Ravnyshyn v. Drys (the unsuccessful challengers pay special costs to the estate).
Recent caselaw on this subject indicates that the following eight factors should be considered.
1.
What Issues Were Raised in the Litigation?
The costs award in a case involving testamentary capacity may be much different than one involving undue
influence. As noted earlier, unproven allegations of undue influence often lead to adverse costs consequences
due to the serious nature of this claim.
94
Larke v. Nugus (1979), 123 Sol. Jo. 337, [2000] W.T.L.R. 1033 (C.A.); Jarom v. Sellars, 2007 EWHC 1366.
95
McLean v. Gonzalez-Calvo, 2007 BCSC 648; Stanton v. Stanton Estate, 2008 BCSC 470; Bates v. Finlay (2002),
43 E.T.R. (2d) 1, 2002 BCSC 159 at paras. 120-26.
96
Cullity J. makes this point in Mitchell v. Mitchell (2001), 57 O.R. (3d) 259 at paras. 56-59 (S.C.J.).
7.1.24
2.
What Was the Result?
It may be obvious that the actual result in the case will bear upon the appropriate costs award; nevertheless, it is
worth noting that the resulting costs award in a case where there was “not a shred of evidence” to support the
claim will be quite different than a case where the outcome was always in doubt.
3.
Conduct of the Parties
A significant factor for the court to consider when tailoring a costs award concerns the conduct of the parties
during the litigation. Was there stonewalling by the executor or primary beneficiaries for information about the
will?97 Did such actions prolong the litigation? As noted earlier, there is always an imbalance in knowledge at the
outset, and cooperation amongst the parties could help remove any suspicions and resolve all questions at an
early stage. In contrast, if the executor or primary beneficiaries stonewall each request for information, and such
matters need to be “pried out” of them, or if they force opposing parties to obtain a court order every step of the
way, there should be costs consequences.98
4.
Settlement Offers
The court will review any offers to settle made by the parties during the litigation to assess the proper award of
costs.99 It is sometimes awkward to make a settlement offer in a probate action, depending upon factors such
as the nature of the beneficiaries, but it can sometimes have costs consequences.100
5.
What Scale of Costs?
It is not uncommon for the court to make an award of special costs in a probate action, rather than the normal
rule found in Rule 14-1(1) that costs be assessed as party and party costs. Special costs are generally 80-90% of
what could be obtained at a Legal Profession Act review, but can also equate to full indemnity.101 An award
that is more like full indemnity would be more consistent with the principle that a party should not be
rendered “out of pocket” by raising concerns about the validity of a will.102
For the purposes of tailoring a costs award to suit the circumstances, the court can also order that party and
party costs are appropriate, rather than special costs, or that parties just bear their own costs.103
6.
Should There be Different Costs Awards for Different Phases/Issues?
As part of the general trend of the courts scrutinizing the progress of the litigation, it is not uncommon to see
a different costs award for different phases of the litigation, or for different issues that were litigated. A
“challenger” to a will may have had reasonable questions at the outset but, by the time the discovery process is
complete, such questions may have been answered and it should be
97
Weinar v. Elman, [2001] O.J. No. 4940 (QL) (S.C.J.); Re Barrett Estate (2003), [2005] 2 W.W.R. 262 at 27374, 2003 ABQB 986; Babchuk v. Kutz, 2007 ABQB 88 at para. 8; Dool v. Nazarewycz (2007), 31 E.T.R. (3d)
57, 2007 ABQB 12.
98
Dool v. Nazarewycz (2009), 2 Alta. L.R. (5th) 36, [2009] 7 W.W.R. 636, 2009 ABCA 70 at para. 92.
99
Babchuk v. Kutz, 2007 ABQB 88 at paras. 59-69, 80-84.
100 Hix v. Ewachniuk Estate (2008), 43 E.T.R. (3d) 113, 2008 BCSC 1258. On the difficulties of making a formal
Offer to Settle under the old Rule 37, see: Woodward v. Roberts Estate, 2007 BCSC 1549.
101 Re Starko Estate, 2009 BCSC 1423, Marshall v. Ruffolo, 2008 BCSC 170 at paras. 67-74.
102 Davey v. Gruyaert, 2006 BCSC 1812; Re Sear Estate, 2010 BCSC 339.
103 Brammell v. United Kingdom of Great Britain and Northern Ireland, [1997] B.C.J. No. 2383 (QL) (S.C.);
Morash v. Morash Estate, [1997] N.S.J. No. 403 (C.A.); Wamboldt v. Wamboldt, 2010 NSSC 228.
7.1.25
apparent that a challenge to a will cannot succeed.104 Taking the case all the way to trial in light of
overwhelming evidence to the contrary is indicative of ulterior motives and “revenge” or spite, and can result
in an adverse award of special costs.105 Accordingly, it is possible that the court may order that a party obtain
special costs from the estate for the first portion of the litigation, if the exceptions in Mitchell v. Gard are met,
but then order that the party either bear their own costs or pay costs to the other parties for the remaining
portion of the litigation if it was unreasonable to continue.
If a party is successful in some, but not all claims, the costs award may be adjusted accordingly. In Hix v.
Ewachniuk, the plaintiffs were successful in proving that the will was invalid as a result of the defendant’s
undue influence, but did not succeed in other claims such as lack of testamentary capacity. The Court
awarded the plaintiffs 80% of their special costs: 2008 BCSC 1258.
7.
Source of the Costs Award
The court will always consider the size of the estate and the effect of a costs award when tailoring a proper
award. In other words, who will ultimately pay? It would be a pyrrhic victory for the residuary beneficiaries of
the estate to successfully defeat an unreasonable challenge to a will, but then be ordered to indemnify
themselves from the capital of the estate. They would essentially be paying the legal costs themselves. In such
a situation, the more likely award would be to obtain costs from the unsuccessful challenger personally.106
When awarding costs, the court may also order that costs be payable out of specific components of the estate
in order to do justice amongst the parties.107
8.
What Party?
Applying these factors will lead to different results depending upon the identity of the party under
consideration. In probate actions, there are generally four (overlapping) categories of characters involved: (1)
the executor of the will ultimately admitted to probate; (2) the “successful” defender of the will or the
successful challenger; (3) the unsuccessful challenger/defender; and (4) the would-be executor of an invalid
will.
The usual rule in estate litigation is that the personal representative is entitled to be indemnified by the
estate.108 It is a cost of administration that is properly incurred, and the quantum of costs may be considered
at a passing of accounts.109 Depending upon the circumstances of the case, the court may order that such
costs be paid by an unsuccessful challenger to the will, rather than out of the estate.
It would be an unusual case for an executor to be denied costs entirely, as opposed to the question of whether
the costs are reasonably incurred. If the executor acted unreasonably during the litigation, and “stonewalled”
reasonable requests for information, therefore inviting the litigation to take place,
104 Chalmers v. Uzelac (2003), 2 E.T.R. (3d) 22 (B.C.S.C.), aff’d 2004 BCCA 533; Sanguinetti v. Korpiel, [1998]
B.C.J. No. 2669 (QL) (S.C.); Re Bermingham Estate, 2007 CanLII 31776; Kostic v. Chaplin, 2007 EWHC
2909 at paras. 27, 30; Bates v. Finlay (2002), 43 E.T.R. (2d) 1, 2002 BCSC 159.
105 Babchuk v. Kutz, 2007 ABQB 88 at para. 19; McLean v. Gonzalez-Calvo, 2007 BCSC 648.
106 Atwal v. Atwal Estate, 2010 BCSC 1261; Todd v. Walker, 2009 BCSC 537; Booth Estate v. McGowan, [1998]
O.J. No. 5261 (QL) (Gen. Div.); Ram v. Prasad (1998), 25 E.T.R. (2d) 119, 24 C.P.C. (4th) 383 (B.C.S.C.);
George Estate v. Gabriel, 2009 BCSC 198 at para. 127.
107 Abercrombie Estate v. Abercrombie, 2008 BCSC 389; Wiest v. Jopp-Shelton, 2004 SKQB 222.
108 Re Kemp Estate; Strain v. Kemp (2006), 22 E.T.R. (3d) 105, 2006 BCSC 58 Johnson Estate v. Forbes (2007),
[2008] 2 W.W.R. 494, 2007 MBQB 302, citing Thompson v. Lamport, [1945] S.C.R. 343.
109 Milwarde-Yates v. Sipila, 2009 BCSC 277.
7.1.26
there should be costs consequences. It may be an issue for the executor’s compensation, but may also be
grounds for ordering the executor to pay costs out of his or her own pocket.110
The typical costs award for a party who successfully challenges the validity of a will, or who successfully defends
such a challenge, would also be special costs. The question would usually be whether it is more appropriate that
those costs come from the estate or from an opposing party. The various factors set out above would also be
considered to tailor the appropriate award.111
It is the issue of the unsuccessful challenger or defender to the will that is the focus of cases like Mitchell v. Gard
and Morton Estate: should the normal rule in civil litigation (the “loser pays” rule) be departed from, and should
this party obtain their costs out of the estate? If so, should there be full indemnity, or should the party only
receive a portion of their costs from the estate? The long list of factors set out above will be considered. If there
were baseless allegations of undue influence made by this party, it is more likely that he or she will be denied costs
out of the estate, and actually be ordered to pay special costs to the other parties. If the party was “forced” into
the litigation, due to serious questions about the validity of the will that needed to be resolved by a court, then it
would be appropriate for this party to obtain special costs out of the estate.
A more intriguing question concerns the “unsuccessful would-be executor.” This person would have put forward
a document that was ultimately found to be invalid. Should he or she be treated in the same manner as an
executor/trustee, and be indemnified out of the estate? It should be remembered that there is no duty to
propound a will, especially if there are serious questions about its validity. Further, it may have been apparent
following the discovery process that the will could not be admitted to probate, yet the would-be executor
pushed the matter to trial.
The issue of whether such a party should be entitled to any costs was thoroughly canvassed by Mr. Justice Burnyeat
in Ram v. Prasad (1998), 25 E.T.R. (2d) 119, 24 C.P.C. (4th) 383 (B.C.S.C.). There are three general situations in which
potential but unsuccessful executors should be disentitled to costs: (1) if they put forward a document they knew
could not be supported; (2) he or she was also a beneficiary of that alleged will; (3) some other inequitable
conduct.112 For instance, if the would-be executor was intimately involved in the making of a will, and coerced the
testator into making it, that person should not be entitled to any costs out of the estate, and would likely be ordered
to pay special costs to the estate. If the role of the would-be executor was more innocent, and he or she took the
position that the question of the will’s validity should properly be resolved by a court, then the result would be
much different. In Fuller Estate v. Fuller, 2002 BCSC 1703, aff’d (2004), 7 E.T.R. (3d) 1, 2004 BCCA 218, the Court drew
an analogy between the would-be executor and an interpleader, and allowed costs out of the estate.
D.
Summary
The determination of the appropriate award of costs in a probate action is therefore much more complex than
ordering that all parties obtain their costs out of “the estate ATM,” or that “the loser pays.” It is important to
have a complete understanding of the costs regime for probate actions to properly plan your litigation strategy,
while also keeping your client’s expectations in check. The increased scrutiny on the conduct of the litigation,
when tailoring a costs award, should only increase with the objective of “proportionality” found in the Civil Rules
of Court.
110 An adverse costs award was recently made against an executor (in a different set of circumstances) in
MacLean Estate v. Christiansen, 2010 BCCA 374.
111 Bates v. Finlay (2002), 43 E.T.R. (2d) 1, 2002 BCSC 159; McLean v. Gonzalez-Calvo, 2007 BCSC 648; George
Estate v. Gabriel, 2009 BCSC 198 at para. 127; Stanton v. Stanton, 2008 BCSC 470; Ravnyshyn v. Drys (2005),
19 E.T.R. (3d) 81, 2005 BCSC 1216.
112 Ram v. Prasad (1998), 25 E.T.R. (2d) 119, 24 C.P.C. (4th) 383 (B.C.S.C.). See also: Twist v. Tye, [1902] P. 92;
Brydon v. Malamus (2009), 45 E.T.R. (3d) 103, 2009 BCSC 80; Andruchow v. Seniuk (2005), 20 E.T.R. (3d)
123, 2005 ABQB 780.
7.1.27
VI. Appendix A—Proposed Amendments to Supreme Court Civil Rules
The following is an excerpt from Consultation Paper on New Probate Rules, prepared by the Probate Rules Reform
Project Committee (British Columbia Law Institute), released as a work in progress on May 17, 2010.
A.
Supreme Court Civil Rules, BC Reg. 168/2009
1.
Rule 21-4
Interpretation
(1) In this rule, “probate action” means an action for
(a) the grant of probate of the will of, or letters of administration of the estate of, a
deceased person,
(b) the revocation of a grant, or
(c) an order pronouncing for or against the validity of an alleged testamentary
paper,
but does not include a proceeding governed by Rule 21-5.
Dispute as to the validity of a testamentary paper
(2) In an action in which the validity of a testamentary paper is questioned, all persons having
an interest in upholding or disputing its validity must be joined as defendants.
Start of action
(3) A probate action must be started by notice of civil claim, and Part 1 of the notice of civil
claim must contain a statement of the interest of the plaintiff and of each defendant in the
estate of the deceased.
Parties
(4) Each person who is entitled or claims to be entitled to administer the estate of a deceased
person under or by virtue of an unrevoked grant of probate or letters of administration must
be made a party to any action for revocation of the grant, and by leave of the court a person
interested in the estate, but not named as a defendant, may defend the action as if the person
were a defendant.
Action for revocation of grant
(5) In an action for the revocation of a grant of probate or administration,
(a) if the action is started by a person to whom the grant was made, the person
must file the grant within 7 days after the filing of the notice of civil claim, or
(b) if a defendant to the action has the grant in his or her possession or under his
or her control, the defendant must file it within 7 days after the service of the
notice of civil claim on him or her,
and the person to whom the grant was issued must not act under it without leave of a
registrar.
Failure to lodge grant on action for revocation
(6) If a person fails to comply with subrule (5), a registrar may issue a citation in Form 90
calling on the person to bring the grant into the registry, and a person against whom the
citation is issued must not take any step in the action without leave of the court until the
person has complied with the citation.
Counterclaim
(7) A defendant to a probate action who alleges that he or she has a claim or is entitled to
relief in respect of a matter relating to the grant of probate or letters of administration must
serve a counterclaim in respect of that claim or relief.
7.1.28
Failure to serve notice of civil claim
(8) If the plaintiff fails to serve a notice of civil claim, a defendant may, with the leave of the
court, serve a counterclaim, and the action must then proceed as if the defendant were the
plaintiff.
Response to civil claim limited to proof in solemn form
(9) In a probate action, a response to civil claim may state that
(a) the defendant merely requires that the will be proved in solemn form, and
(b) the defendant only intends to cross-examine the witnesses produced in
support of the will,
and, in that event, the defendant is not liable for costs unless the court determines that there
was no reasonable ground for requiring proof in solemn form.
Certain rules not to apply
(10) Rules 3-8 (1), (2), (9) and (10) and 9-8 do not apply to a probate action.
Order for discontinuance or dismissal
(11) At any stage of a probate action, the court may order the action be discontinued or
dismissed, and may order that a grant of probate or administration be made to the person
entitled.
Compromise
(12) A probate action must not be compromised without leave of the court.
2.
Rule 21-5
Proof in solemn form
(13) If the circumstances appear to justify the direction, the court may direct that proof of
the will be made in solemn form.
Petition required
(14) A proceeding for proof of a will in solemn form must be started by petition in Form 66
and Rule 16-1 applies.
Service
(15) After a proceeding is started under subrule (14) for proof of a will in solemn form, copies
of the petition must be served by personal service on all persons having an interest in
upholding or contesting the validity of the will.
B.
Draft Rule 21-4 (BCLI Report)
Rule 21-4 – Probate and Related Matters
(91) Despite Rules 2-1(1) and 2-1(2)(a) and (b), a person may apply by notice of application
or, if Rule 17-1 applies, by requisition for an order
(a) under subrule (7); [abridgement of time]
(b) for proof of a will in solemn form, whether or not a grant of probate in
common form has been made in respect of the will;
(c) granting administration with or without will annexed in circumstances where the
right to the grant is contested;
(d) revoking a grant of probate or administration;
(e) removing or substituting a personal representative;
(f) discharging a personal representative;
(g) terminating the authority of a declarant;
(h) passing over an executor;
(i) removing or renewing an estate caveat;
(j) that a foreign grant of probate or administration not be resealed;
7.1.29
(k)
(l)
(m)
(n)
(o)
(p)
(q)
(r)
requiring security for the administration of an estate;
varying or substituting security for the administration of an estate;
directing that security be assigned to a person named in the order;
that a record or document or writing or marking on a will or document be fully
effective as though it had been made as
(i) a will of a deceased person,
(ii) a revocation, alteration or revival of a will of a deceased person, or
(iii) as the testamentary intention of a deceased person;
rectifying a will;
for the passing of accounts;
fixing and approving the remuneration of a personal representative;
respecting any other matter concerning a grant of probate or administration
with or without will annexed, resealing, a small estate declaration or the office
of personal representative, other than a question or matter covered by Rule 21(2)(c) or (d).
…
(94) The court may direct that a will be proved in solemn form, without an application
having been made for an order under paragraph (b) of subrule (91) and before or after a grant
is made respecting the will or the estate, if the circumstances appear to justify the direction.
(95) The court may give directions concerning the procedure to be followed in any matter
under this rule, including without limitation:
(a) the issues to be decided;
(b) who the parties will be, including directions for the addition or substitution of a
party;
(c) how evidence is be to presented;
(d) summary disposition of any or all issues;
(e) trial of any or all issues in the matter;
(f) pleadings;
(g) examinations for discovery and discovery of documents;
(h) service of a notice, process, order or document on any persons;
(i) dispensing with service;
(j) representation of any person or interest.
(98) Rule 3-8 does not apply to a proceeding for revocation of a grant of probate or
administration with or without will annexed, and an order revoking the grant must not be
made solely because of default in filing an application response or, if the court orders service
and filing of pleadings in an application under paragraph (d) of subrule (91), a response to
civil claim.
(99) If the court awards summary judgment in a proceeding for probate in solemn form by
reason of failure to file an application response or notice of civil claim, the registrar must issue
a grant of probate in common form.
C.
Wills, Estates and Succession Act, S.B.C. 2009, c. 13
Who can make a will
36(1) A person who is 16 years of age or older and who is mentally capable of doing so
make a will.
(2) A will made by a person under 16 years of age is not valid.
How to make a valid will
37(1) To be valid, a will must be
(a) in writing,
may
7.1.30
(b)
(c)
signed at its end by the will-maker, or the signature at the end must be
acknowledged by the will-maker as his or hers, in the presence of 2 or more
witnesses present at the same time, and
signed by 2 or more of the witnesses in the presence of the will-maker.
(2) A will that does not comply with subsection (1) is invalid unless
(a) the court orders it to be effective as a will under section 58 [court order curing
deficiencies],
(b) it is a will recognized as valid under section 80 [validity of wills made in
accordance with other laws], or
(c) t is valid under another provision of this Act.
Clarification of doubt about signature placement
39(1) A will is conclusively deemed to be signed at its end if the signature of the will-maker is
placed so that it is apparent on the face of the will that the will-maker intended to give effect
to the will, including in, but not limited to, the following circumstances:
(a) the will-maker’s signature is placed
(i) at or after the end of the will, or
(ii) following, under or beside the end of the will;
(b) the will-maker’s signature does not immediately follow the end of the will;
(c) a blank space intervenes between the concluding words of the will and the willmaker's signature;
(d) the will-maker’s signature
(i) is placed among the words of a testimonium clause or of an attestation
clause,
(ii) follows or is after or under an attestation clause either with or without a
blank space intervening, or
(iii) follows or is after, under or beside the name of a witness who signed the
will;
(e) the will-maker’s signature is on a side or page or other portion of the will on
which no disposing part of the will is written above the will-maker’s signature;
(f) there appears to be sufficient space to contain the will-maker’s signature on or
at the bottom of the side or page or other portion of the same paper on which
the will is written and preceding that on which the will-maker's signature
appears.
(2) A will-maker’s signature that conforms to this section does not give effect to
(a) a gift or direction in the will that follows the will-maker’s signature, or
(b) a gift or direction inserted in the will after the will-maker signed the will.
Witnesses to wills
40(1) Signing witnesses to a will-maker’s signature must be 19 years of age or older.
(2) A person may witness a will even though he or she may receive a gift under it, but the gift
may be void under section 43 [gifts to witnesses].
(3) A will is not invalid only because a witness was, at the time the will was signed by the willmaker, or afterwards became, legally incapable of proving the will.
Undue influence
52 In an action, if a person claims that a will or any provision of it resulted from another
person
(a) being in a position where the potential for dependence or domination of the
will-maker was present, and
(b) using that position to unduly influence the will-maker to make the will or the
provision of it that is challenged,
7.1.31
and establishes that the other person was in a position where the potential for dependence or
domination of the will-maker was present, the party seeking to defend the will or the
provision of it that is challenged or to uphold the gift has the onus of establishing that the
person in the position where the potential for dependence or domination of the will-maker
was present did not exercise undue influence over the will-maker with respect to the will or
the provision of it that is challenged.
How to alter will
54(1) To make a valid alteration to a will the alteration must be made in the same way that a
valid will is made under section 37 [how to make a valid will].
(2) An alteration to a will is valid if the signature of the will-maker to the alteration, and the
witnesses to that signature of the will-maker, are made
(a) in the margin or in some other part of the will opposite to or near to the
alteration, or
(b) at the end of or opposite to a memorandum referring to the alteration and
written in some part of the will.
(3) An alteration to a will that is not made by the will-maker in accordance with this section is
ineffective
(a) except to invalidate a word or provision that the alteration makes illegible,
unless the court reinstates the original word or provision under section 58 (4)
[court order curing deficiencies], or
(b) unless the court orders the alteration to be effective under section 58.
Court order curing deficiencies
58(1) In this section, “record” includes data that
(a) is recorded or stored electronically,
(b) can be read by a person, and
(c) is capable of reproduction in a visible form.
(2) On application, the court may make an order under subsection (3) if the court determines
that a record, document or writing or marking on a will or document represents
(a) the testamentary intentions of a deceased person,
(b) the intention of a deceased person to revoke, alter or revive a will or
testamentary disposition of the deceased person, or
(c) the intention of a deceased person to revoke, alter or revive a testamentary
disposition contained in a document other than a will.
(3) Even though the making, revocation, alteration or revival of a will does not comply with
this Act, the court may, as the circumstances require, order that a record or document or
writing or marking on a will or document be fully effective as though it had been made
(a) as the will or part of the will of the deceased person,
(b) as a revocation, alteration or revival of a will of the deceased person, or
(c) as the testamentary intention of the deceased person.
(4) If an alteration to a will makes a word or provision illegible and the court is satisfied that
the alteration was not made in accordance with this Act, the court may reinstate the original
word or provision if there is evidence to establish what the original word or provision was.
Rectification of will
59(1) On application for rectification of a will, the court, sitting as a court of construction or
as a court of probate, may order that the will be rectified if the court determines that the will
fails to carry out the will-maker’s intentions because of
(a) an error arising from an accidental slip or omission,
(b) a misunderstanding of the will-maker's instructions, or
(c) a failure to carry out the will-maker's instructions.
7.1.32
(2) Extrinsic evidence, including evidence of the will-maker's intent, is admissible to prove the
existence of a circumstance described in subsection (1).
(3) An application for rectification of a will must be made no later than 180 days from the
date the representation grant is issued unless the court grants leave to make an application
after that date.
(4) If the court grants leave to make an application for rectification of a will after 180 days
from the date the representation grant is issued, a personal representative who distributes
any part of the estate to which entitlement is subsequently affected by rectification is not
liable if, in reasonable reliance on the will, the distribution is made
(a) after 180 days from the date the representation grant is issued, and
(b) before the notice of the application for rectification is delivered to the personal
representative.
(5) Subsection (4) does not affect the right of any person to recover from a beneficiary any
part of the estate distributed in the circumstances described in that subsection.