SUCCESSION OUTLINE

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					                                                              SUCCESSION OUTLINE
                                                                     Spring Term 2004
                                                                     Marnelle Dragila


INTESTATE SUCESSION-EAA PART 10 ........................................................................................................ 3
   HOW MINOR CHILD STATUS EFFECTS INTESTATE INHERITANCE-S. 75EAA........................................................... 5
   HOW CHILD’S INTESTATE INHERITANCE IS EFFECTED BY ADVANCEMENT .......................................................... 5
   WHEN D WANTS ESTATE TO GO TO SPOUSE NOT KIDS ........................................................................ 7
   WHEN D WANTS ESTATE TO GO TO KIDS AND NOT SPOUSE ............................................................... 7
WEALTH TRANSFER OUTSIDE OF A WILL............................................................................................... 8
   STAGE 1-INTER VIVOS OR TESTAMENTARY DISPOSITION? ................................................................................ 9
   STAGE 2-REQUIREMENTS FOR VALID SPECIFIC INTER VIVOS TRANSFER METHOD & RESULTING DISTRIB ....... 9
   I. DESIGNATED BENEFICIARY: .................................................................................................................. 10
   II. TRUST INCLUDING VALIDITY, ALTER EGO, IR/REVOCABLE ........................................................................... 12
   III. JOINTURES ............................................................................................................................................... 13
   IV. MUTUAL WILLS & CONTRACTS MADE PRIOR TO DEATH TO BENEFIT ANOTHER ............................... 16
   V. DONATIO MORTIS CAUSA ..................................................................................................................... 17
MAKING A WILL ............................................................................................................................................. 18
   CAPACITY IN GENERAL ...................................................................................................................................... 18
   CAPACITY FOR WILLS -STEPS: ......................................................................................................................... 18
   1. CONTRACTUAL CAPACITY TO ENTER LEGAL CONTRACT WITH LAWYER ............................... 18
   2. STATUTORY REQUIREMENTS MET ...................................................................................................... 18
   3. BANKS V GOODFELLOW TEST ................................................................................................................. 18
   4. POLICY ........................................................................................................................................................ 18
CAPACITY FOR POWER OF ATTORNEY & REPRESENTATION AGREEMENTS .......................... 19
   CAPACITY FOR POWERS OF ATTORNEY: 2 KINDS ............................................................................................... 19
   CAPACITY FOR REPRESENTATION AGREEMENTS (STANDARD AND ENHANCED AGREEMENTS) ......................... 19
UNDUE INFLUENCE & SUSPICIOUS CIRCUMSTANCES ...................................................................... 20
   PROPOUNDER OF WILL HAS ONUS OF PROOF & REBUTTABLE PRESUMPTION .................................................... 20
   SUSPICIOUS CIRCUMSTANCES ............................................................................................................................ 20
   UNDUE INFLUENCE OR FRAUD .............................................................................................................................. 21
SCOPE OF TESTAMENTARY GIVING-HOW OTHERS CAN CONTEST THE
WILL/TESTAMENTARY TRUST .................................................................................................................. 22
   I. CONTRACT TO COMPENSATE FOR SERVICES PROVIDED .............................................................................. 22
   II. MUTUAL WILLS ........................................................................................................................................ 22
   III. WILLS VARIATION ACT CLAIMS ............................................................................................................. 23
   IV. VARIATION OF TRUSTS-4 WAYS TO BUST A TRUST ................................................................................ 26
CONFLICT OF LAWS & WILLS.................................................................................................................... 27
CHARTER OF RIGHTS & PUBLIC POLICY .............................................................................................. 27
FORMALITIES OF MAKING A WILL ......................................................................................................... 27
   1. T’S SIGNATURE .............................................................................................................................................. 27
   2. WITNESSES SIGNATURES................................................................................................................................ 28

                                                                                                                                                                      1
   3. OBLITERATIONS, INTERLINEATIONS, CANCELLATIONS & ALTERATIONS-S.17 ................................................ 28
LEGACIES & THE EQUITABLE DOCTRINES (HOW TO PAY OUT WILL, IN WHICH ORDER & GIFT FAILURES).. 29
   A.   LAPSE (COMMON-APPLIES IF BENEFICIARIES IN WILL DON’T WORK OUT) ..................................................... 29
   B.   ADEMPTION & CONVERSION (APPLIES IF BEQUEST DOESN’T WORK OUT)..................................................... 30
   C.   ABATEMENT (COMMON) .............................................................................................................................. 30
   D.   ELECTION (RARE) ........................................................................................................................................ 30
   E.   SATISFACTION & PERFORMANCE ................................................................................................................. 31
REVOCATION ................................................................................................................................................... 32
   I. INTENTIONAL REVOCATION ............................................................................................................................ 32
   A. REVOCATION BY INSTRUMENT (EXPRESS OR IMPLIED REVOCATION) ........................................................... 32
   EXPRESS REVOCATION IN SUBSEQUENT WILL OR OTHER WRITING ................................................................... 33
   IMPLIED REVOCATION BY SUBSEQUENT WILL W/NO REV CLAUSE .................................................................... 34
   B. REVOCATION BY DESTRUCTION .................................................................................................................... 34
   C. PRESUMPTION OF REVOCATION BY DESTRUCTION W/ INTENTION TO REVOKE FOR LOST WILLS ................... 34
   II. CONDITIONAL REVOCATION .......................................................................................................................... 35
   III. REVOCATION BY MARRIAGE & GIFT LAPSE BY END OF MARRIAGE ............................................................ 35
REVIVAL & REPUBLICATION ..................................................................................................................... 35
CONSTRUCTION .............................................................................................................................................. 36
   A. PRESUMPTION: THE WILL SPEAKS FROM DATE OF DEATH ABSENT A CONTRARY INTENTION ...................... 36
   B. OTHER WA STATUTORY PRESUMPTIONS ....................................................................................................... 37
   C. GENERAL PRINCIPLES .................................................................................................................................... 38
   D. EXTRINSIC EVIDENCE .................................................................................................................................... 38
   E. AMBIGUITIES ................................................................................................................................................. 38
   F. SUPPLYING MISSING WORDS ......................................................................................................................... 39
   G. WORDS & PHRASES....................................................................................................................................... 39
INCAPACITY PLANNING ............................................................................................................................... 40
   I. COMMITTEES .................................................................................................................................................. 40
   ELDER ABUSE ................................................................................................................................................ 40
   II. POWERS OF ATTORNEY ................................................................................................................................. 41
   III. REPRESENTATION AGREEMENTS .................................................................................................................. 42
   IV. ESTATE PLANNING FOR INCAPACITATED ADULTS........................................................................................ 43
   V. DEFAULT-WHAT HAPPENS IF YOU DON’T HAVE ANY PLANNING IN PLACE? ................................................... 44
INCORPORATION BY REFERENCE, SECRET TRUSTS & POUR OVER WILLS ............................. 45
   I. INCORPORATION BY REFERENCE (THE LAW) .................................................................................................. 45
   II. SECRET & SEMI-SECRET TRUSTS .................................................................................................................. 46
   III. POUR OVER WILLS....................................................................................................................................... 46




                                                                                                                                                                    2
INTESTATE SUCESSION-EAA Part 10
There’s a STRONG presumption against Intestacy, so if doc purports to be a will, examine it/do legal analysis

DEFINITIONS:
   Issue
        o All lineal descendents, e.g., children, grandchildren, i.e., whole blood line going down, more
            than just children
   Per Stirpes
        o If any one of T’s children predeceases T, that child’s per stirpal share will be passed on in equal
            shares to that child’s children, i.e., the T’s grandchildren.
   Per Capita “by head”
        o Differs for per stirpal division. Divides estate evenly between all living issue, children and
            grandchildren alike.
   Probate- names last will, invests power in exec, & approves of distribution subject to WVA
        o Probate Fees-1.4% of gross estate

PROPERTY DIVISION:

Estate Administrative Act Part 10 (EAA)
    Sets out statutory distribution
    Deals with estate if D dies without a will OR If a will didn’t dispose of the whole estate, then portion not
       dealt w/ in will distributed as if D died intestate & had no other estate-s. 94

Steps: Use EAA Part 10 to Determine How to Divide Property Upon Intestacy

   1. Determine who Qualifies as Deceased’s (D’s) Spouse-EAA Definition of Spouse (see page 4 for process)
   2. Determine who Qualifies as D’s Issue/Child-EAA Definition of Child (see bottom of pg 4)
          If spouse or issue, skip to #7

   3. IF No Issue, THEN determine if D’s Parents Are Alive-EAA s. 86(1)EAA
   4. IF No Issue or Living Parents, THEN determine if D has living Brothers or Sisters-s. 87.1EAA
   5. If No Issue, Living Parents or Brothers/Sisters, THEN determine if D has living Nephews or Nieces-s. 88
   6. IF no Issue, Parents, Siblings, Nephews or Nieces, THEN determine Next of Kin-s. 89EAA
               Half blood kin inherit the same as whole blood-s. 90(1)EAA
   7. Determine Distribution Using EAA Part 10 (see pg. 5)

EAA & Common Law Definition of Spouse (Subjective & Objective Indicia of “Marriage-Like”)

                                                          EAA Definition of Spouse
        A.   Legally married -as long as not separated for over a year-s. 98(1); subject to a common intention to separate (Tuomo)
        B.   Common law marriage (maybe ab customary marriage, those living in jungle, etc, NOT CL spouse)
        C.   “marriage-like relationship”-defined below

         1. A person who has lived or     2. in a marriage      3. incl same    4. for a period of    5. immediately before the other person’s
         cohabited with another           like relationship,    sex             at least 2 years,     death

            “Marriage-like”-no guidance in leg as to what this means: Use Subjective Intention & Indicia of Objective Intention
            Hard to give solicitor advise, must ask personal questions




                                                                                                                                                 3
Indicia of Common Law Spouse (Walsh/Gostlin/Molodovich) (use for EAA/WVA to determine “marriage-like”, NOT WA)
   1. Subjective Intention of Deceased (Walsh/Gostlin)
   2. If subjective intention not clear, then use objective criteria (Gostlin)
   3. Objective Criteria-7 part Test (Molodovich)-*these are just factors, don’t need all
           a. Shelter-did they live under same roof
                   i. Sleeping arrangements
                  ii. Did anyone else share house with them?
           b. Sexual behavior
                   i. Did they have sex?
                  ii. Fidelity
                 iii. Feelings?
                 iv. Gifts on special occasions?
           c. Services
                   i. Who prepared meals
                  ii. Domestic services?
           d. Social
                   i. Did they participate in activities together
                  ii. How did families behave toward parties
           e. Societal
                   i. How did community look at them
           f. Economic support
                   i. Financial situation-did they share expenses
                  ii. Special financial relationship that they agreed to
           g. Children
                   i. What was attitude towards any children of relationship or step-children?

Separated Spouses
        Separation= Withdrawal from matrimonial obligation with the intention of destroying the
           matrimonial consortium (Tuomo)
        Separation ends CL spouse status, separation full stop, not for “less than 1 year” (Einfield)

                  A. BOTH parties intended to separate (Tuomo/Lewis)
                        a. Problem-D is dead, can’t testify and “spouse” is self-interested
                  B. Separation for not less than 1 year (can live in same house and be separated)
                        a. I.e. separated for at least 1 year
                        b. Unless CL-then just need separation full stop (Einfield)
                  C. Court has DISCRETION to order otherwise-s.98(1)EAA
                        a. E.g., if spouse is in need
                        b. Can also try pleading unjust enrichment separately

Who Qualifies as Child for Property Division?-EAA Definition of Child

      Dead Child-apply per stirpal division (EAA s. 84)
      Unborn Child-in vitro child qualifies as a child (EAA s. 91)
      Half-Blood Child- Half blood takes same as full blood (EAA s. 90)
      Surrogate Child-No provision dealing with surrogacy, i.e., whether surrogate child treated the same.
       May be covered under s. 91.
      Illegitimate Child-No distinction between legitimate and illegitimate child. See Interpretation Act.
      Adopted Out Child-if child has been adopted OUT, then child is no longer entitled to distribution. Child
       no longer deemed child of D.
                                                                                                                 4
How Minor Child Status Effects Intestate Inheritance-s. 75EAA
        o Minor is under 19 in BC
        o Since intestacy, D has not provided a trustee for minor’s inheritance in will
        o Minor doesn’t have legal authority to receive funds.
        o Can’t sign off for money received
        o Share in Estate paid to PGT of BC instead
        o Difficult to get $ out of PGT for needs of child.
        o Prior to age 19, PGT will give child money for extraordinary expenses
        o At age 19, child receives lump sum payment of estate

How Child’s Intestate Inheritance is Effected by Advancement
   Use EAA s. 92 for intestacy, NOT Hotchpot
   Only applies if D dies WHOLLY intestate, not partially-s. 92(1)EAA

   Proving Advancement-s. 92(1)EAA
       Attacker of intestate division has burden of proving advancement, UNLESS:
              o D expressed that D made advancement to child OR
              o Child has acknowledged advancement in writing
       Amount of Advancement-Deemed to be the amount expressed by the D or acknowledged by the
          child in writing-s. 92(4)EAA
              o if neither available then “value of the portion when advanced” (amount attacker can prove)
       Evidence-What was the purpose of D helping Child?
              o Was it about Improving the Child’s Condition in Life/Loan OR
              o Was it a gift, including paying off a non-life advancement debt, e.g., gambling
                       Gift = NOT advancement
                       Loan = IS an advancement
                       Debt-(Taylor) depends on purpose, i.e., to advance in life = advancement (business
                          debt, characterized as a loan if paying it off will lead to business advantage) OR to
                          just get rid of flat, non-life advancement debt, characterized as a gift = NO
                          advancement (gambling).

       A. IF the advancement was EQUAL to or GREATER than the share of the estate the child would be
          entitled to under intestacy, THEN the child and the child’s descendents must get no part of the
          estate-s. 92(2)
       B. IF the advancement is LESS than the share of the estate the child would be entitled to under
          intestacy, then child and child’s descendents only get as much of the estate as is sufficient to make
          all the shares of the children of the estate & advancement equal as nearly as can be estimated-s. 92(3)

Determining Property Distribution Using EAA Part 10

   A. Any Spouses?
         a. Using EAA & Common Law subjective & objective intention (above)
         b. If, immediately prior to D’s death, spouse and D were separated for at least a year, spouse is
              disqualified from inheriting
    For purposes of the following division, all “spouses” must adhere to EAA & CL definition of Spouse
      AND if legally married, not separated from D for over a year under s. 98 (CL can’t be separated for any
      amount of time immediately prior to D’s death). Otherwise, “spouse” does NOT inherit (as set out below)

   B. Any Issue? (Lineal Descendents)


                                                                                                                  5
C.   IF ISSUE, but NO SPOUSE, then issue collect using per stirpal division-s.84 (per stirpes-see definition pg 3)

D. IF NO SPOUSE OR ISSUE, then
       a. Estate goes to D’s parents in equal shares-s. 86(1)EAA
       b. If no parents, then estate goes to D’s siblings in equal shares-s.87(1)EAA
       c. If no siblings, then estate goes to D’s nephews and nieces in equal shares-s. 88EAA
       d. If no nephews or nieces, then to next of kin of equal degree of consanguinity, including half
          bloods of same degree-s.89 & s. 90(2)EAA

E. If SPOUSE, but NO ISSUE (s. 83EAA)
       a. Spouse gets whole estate
       b. *S. 83- where no issue BUT multiple Spouses, has not been judicially considered whether court
          will split whole estate btwn spouses (only s. 85.1 applies to multiple spouses splitting $65,000 + residue)

F. If SPOUSE & ISSUE-spousal share:
 If more than 1 spouse & there are ISSUE
                i. Court determines the “just” division of estate (as set out below) between the spouses-s. 85.1
       b. Subtract the Total Cost of all charges against estate, funeral expenses, administration expenses,
          and probate-s.85(1)
       c. Determine the value of the estate
       d. After payment of above costs, If estate’s net value is $65,000 or less, then spouse gets whole
          estate-s. 85(3)
       e. If estate is over $65,000, then spouse gets $65,000 + share of residue depending on how many
          children D had-s. 85(4) (5) EAA
       f. RESIDUE-
                i. If D had one child, then Spouse gets ½ of residue-s. 85(5)(a)EAA
               ii. If D had more than one child, then Spouse gets 1/3 of residue-s. 85(5)(b) EAA
              iii. IF D’s child predeceases D, BUT:
                       1. Leaves issue who is alive at D’s death, then
                       2. Spouse takes same share as if the child did not predecease D-s. 85(6) EAA
                       3. SO, if predeceased child left NO LIVING ISSUE, then D’s child does NOT count
                           as a child for division
              iv. After Spouse gets share of residue, then rest goes to issue per stirpes

         g. HOUSEHOLD FURNISHINGS-Spouse gets household furnishings-s. 96(2)(b) EAA

         h. LIFE INTEREST or OWNERSHIP OF HOME-If D owned a home: s. 96 EAA
    Definition of Spousal Home-building where D AND spouse were ordinarily resident, owned or jointly
     owned by the D AND NOT leased to another person-s.96(1)(a)(ii) EAA
    Can include a strata condo owned by a corporation, but D was shareholder, so long as D & spouse were
     ordinarily resident AND not leasing it to another person-s. 96(1)(b) EAA
                  i. If Spouse & D owned home jointly, then by right of survivorship, spouse gets the home
                     free & clear
                 ii. If only D’s name was on title, then spouse gets a life interest in home
                         1. Remainderman (incl spouse) must hold home in trust for spouse, for as long as spouse
                             wishes to retain life interest-s. 96(2)(a) (Spouse entitled to part of remainder as residue)
                         2. If spouse gives up life interest, spouse has no residual interest and is therefore not
                             entitled to get paid out for giving it up (Case law)
                         3. In Practice, ask if you need to negotiate a settlement payment to spouse to get her
                             to give up life interest
                         4. Issue/Spouse gets remainder of home per stipes (after spouse gets share of it)-s.84EAA
                                                                                                                          6
WHEN D WANTS ESTATE TO GO TO SPOUSE NOT KIDS
   If D has a small estate (worth is costs + $65,000) and wants everything to go to spouse and not to kids,
    then it is better to not have a will

WHEN D WANTS ESTATE TO GO TO KIDS AND NOT SPOUSE
   Have a will stating everything to go to kids
       o Will is better because a spouse is entitled to property (shown above) in an intestacy
       o WVA applies, but client can sign a declaration stating why he is not providing for surviving
           spouse in will
   Leave Nothing in the Estate
       o Best way to ensure spouse doesn’t collect is to make sure D leaves nothing when D dies.
       o METHODS of leaving nothing in estate:
                Designated beneficiaries in pension and life insurance.
                Joint ownership of assets, or
                Holding assets in trust
       o Problem-Clients often don’t want this because it is not simple.
   Do NOT have D & spouse agree not to collect by:
           o Cohabitation Agreement or Mutual Will (see “Wealth Transfer Outside Will”)
                    What if they separate before death?
                    Effect-opting into FRA asset division if you have co-habitation agreement
                    Court has discretion to vary agreement. Risky.




                                                                                                               7
WEALTH TRANSFER OUTSIDE of a WILL
Benefits of Transferring Wealth Outside of Will:
    Potentially avoids WVA claim (& spouse/issue intestacy rights) & potentially creditor proof
    Potentially avoids Probate & Tax BUT CAUTION:
           o Person with legal claim during D’s lifetime, i.e., spouse or minor child, may have a good chance
               at challenging outside will wealth transfer as being part of the estate/TD/theirs (Stone)
           o Feds may claim it’s a probate substitute. Potential result-transfer method=TD/tax
           o If “estate” is beneficiary, then subject to probate

Definitions

Deemed Disposition-determined to be a transfer, tax applies even if property is not sold

Testamentary Disposition-
         o Includes wills and failed attempts at jointures, trusts, beneficiary designations, etc
Mutual Will
         o Wills, contained in one or more documents that confer mutual benefits on 2 or more testators
         o Must be contractual in nature, i.e., one person agrees to confer benefits by will on another person
             only if that person agrees to confer like benefits by his or her will
Will
 Under Wills Act, includes codicils and other Testamentary Dispositions
 Can be revoked
      o Most wills include revocation clause revoking all other wills

   Disposes of T’s Estate
       o If property passed some other way, then estate is diminished

   Must adhere to formalities under Wills Act
   Ambulatory
      o Doesn’t have any present effect over property that comprises estate at time of making will, only at
           death
      o Can change assets in between will and death. Usually leave most assets in Residue, i.e., not certain
           amount. This way you don’t have to change will all the time.

   Subject to Probate Fees and validity testing




                                                                                                               8
STAGE 1-Inter Vivos or Testamentary Disposition?

    1. Is Transfer Method an INTER VIVOS INSTRUMENT or TESTAMENTARY DISPOSITION?
           a. Inter Vivos Instrument-Look at instrument. Can it be characterized as an immediate interest that
              is just contingent on death? (if so, not a TD)

               b. Testamentary Disposition-is transfer method dependent on death for its vigor & effect? (TD) (Cock)
                     Don’t look at T/S’s intention here. Look at degree of control T/S had over transfer method (Robertshaw)

    2.   DEGREE of CONTROL-Analyze Instrument’s terms to determine T/S’s degree of control (Robertshaw/Boucher)
           a. More Control = more like a testamentary disposition

         Indicia of Degree of Control (Boucher):
                       Most Important-Did T have the right to encroach on capital of the fund?
                       Did T/S retain life interest or right to income from property until death?
                       Did T/S have right to change the beneficiaries?
                       Did T/S have right to control the investments that were made?
                       Did T/S have the right to revoke the trust
                            1. Especially if revocation meant that T/S got complete control back
                            2. An inter vivos trust CAN be a valid non-testamentary transaction even though the
                               power of revocation is retained (Robertshaw)
                            3. BY ITSELF, a revocation clause (power to revoke) doesn’t create a TD (Corlet)
*No clear line btwn revocable inter vivos trust & TD. Revocable inter vivos trust may or may not be characterized as TD.

    3. If INTER VIVOS INSTRUMENT
           a. Revocation clause in will doesn’t revoke it WITHOUT a clear intention
           b. Not required to adhere to the same strict formalities as a will to make it valid
           c. BUT-Did it comply with requirements for the specific transfer method, i.e., is it valid?
                    If so, its good & not subject to probate

BUT Remember: Person with legal claim during D’s lifetime, i.e., spouse or minor child, may still have a good chance
at challenging inter vivos transfer as being part of the estate/TD/theirs by Fraudulent Conveyance Act (see Stone)

    4. If TESTAMENTARY DISPOSITION:
           a. Did revocation clause in will revoke it? (Boucher)
           b. Burden of Proof is on those who want revocation clause to apply
           c. Look for evidence of intention to revoke the specific TD by will revocation clause
                    Language in will must show clear intention to revoke it (Boucher)
                    As a general rule, direct evidence with respect to intention is NOT allowed
                         1. E.g., Statements of instructions to lawyer
                         2. Exception-when a will is revoked by destruction
Insurance Designations-HARDER to show that T clearly intended to revoke it with revocation clause because under IA
must designate beneficiary by declaration. A revocation clause is NOT a declaration within IA meaning (Hurzin).

               d. Does revocation instrument comply with Wills Act & formalities required for a TD?
                                      Requirements for Valid Will (see pg 27 for details)
          1.    WA formalities:
                   a. T’s signature-s.4WA
                   b. 2 Witnesses signatures
          2.    Capacity (k’l capacity to enter k w/lawyer, Banks mental capacity, & age of majority unless
                            married/military)
          3.    Knowledge & Approval of Will’s Contents
                         Can Any of the Above be Challenged w/ Suspicious Circumstances, Error, etc?                       9
STAGE 2-Requirements for Valid Specific Inter Vivos Transfer Method & Resulting Distribution

Methods of Transferring Wealth Outside of Will (i.e., not Testamentary Dispositions)
    Designate a Beneficiary (including:)
          o RRSP
          o Insurance
          o Pension
    Inter Vivos Trusts
    Jointures
    Contracts or Promise Made Prior to Death to Benefit Another
          o Contract to Compensate for Services Provided (restitution)
          o Mutual Will

I. DESIGNATED BENEFICIARY:
    A. RRSP
          a. Governed by the Law & Equity Act
          b. Can designate a beneficiary under RRSP-s. 49LEA
          c. Designation is validly executed if its in writing & signed by employee-s.46(2)(a)LEA
          d. RRSP Benefit does not form part of the estate-s.49(2)LEA
                        1. UNLESS will is specific
          e. RRSP benefits may not be protected against creditors (Copet Man CA)
                        1. Not decided yet in BC
                                a. Stat interpretation may see Act’s omission of protection against creditors
                                    as significant, i.e., RRSP proceeds not intended to be protected
                        2. Exception-Life Insurance RRSPs are protected against creditors under IA
          f. Spousal rollover-S can designate spouse so that S’s RRSP rolls into theirs to avoid tax

   B. LIFE INSURANCE
         a. Governed by the Insurance Act (IA)
         b. Insured makes Designation through contract or declaration-s. 48(1)IA
                         1. IA doesn’t say what constitutes a declaration, but s. 49(1) says it must be filed w/
                             insurer’s office to be irrevocable-s.49
                         2. A will revocation clause is NOT a declaration within IA meaning (Hurzin)
         c. If “estate” is beneficiary then probate applies
                 i. Why designate estate as life insurance beneficiary?
                         1. If estate is going to charity, it has tax benefits
                         2. If beneficiary is spendthrift/disabled, creation of trust likely easier by will
                                 a. Although, insured may appoint trustee for beneficiary-s. 51 IA
         d. IA protects against creditors
                   i. Policy Rationale-people need ability to provide support to dependents free from claims of estate
                      or creditors
           e. If Life Insurance beneficiary designated, then not part of will unless will is specific
           f. Designation:
                    i. Can be revocable or irrevocable-s. 48/49IA
                   ii. Can be made via will
                 iii. In will is ineffective if a subsequent designation is made after will is signed
                  iv. Regardless whether designation was made in a valid or invalid last will, designation
                       revoked if the will is revoked-s. 50(3)(4)IA
                          (where no subsequent designation has been made after will is signed)


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IA DISTRIBUTION

           g. IF NO JOINT DISASTER
                  i. If beneficiary predeceases and no provision is made, then beneficiary’s share is divided
                     among surviving beneficiaries or if none, to insured or insured’s personal rep-s. 52 IA

           h. IF JOINT DISASTER-i.e., named beneficiary & settlor die together; can’t tell who died 1st
                   i. Insurance Act s.183-proceeds don’t go to beneficiary, instead goes to S’s estate
                  ii. Survivor & Presumption of Death Act s.2(1)-younger person died first
                 iii. Acts conflict-Case Law suggests more than one possible outcome:
                          1. Beneficiary is deemed to have predeceased the settlor
                                 a. Effect-Life Insurance passes to S’s estate (IA, Re: Law BCSC 1946]) OR
                          2. Read Acts together. IA determines where proceeds go at moment of death,
                             Survivor & Presumption of Death Act determines estate distribution. (Re: Topliss
                              Ont. CA 1957)
                                  a. Proceeds go back to estate, then beneficiary takes the share they would
                                     have received if they had survived
                                  b. Effect-beneficiary’s heirs get the proceeds

                  iv. Arguments:
                                  a.   If you want S’s estate to get proceeds (Law)
                                             i. Should use a purposive approach to stat interpretation
                                            ii. Giving assets to a dead person doesn’t make sense-Law
                                           iii. Use this especially if S’s estate would benefit S’s issue & using
                                                Topliss would result in estate going to someone not related to S
                                                   1. S did NOT likely intend unrelated person to benefit

                                  b. If you want Beneficiary’s estate to get proceeds (Topliss):
                                          i. Better chance at success if :
                                                1. S has no children/issue
                                                2. If alternate designated beneficiary was the estate, Currie
                                                     BCSC 1963, a later case than Law, supports this

                   v. SO if it’s NOT a case about an Insurance Designation, then S & PD Act applies & the
                      deceased who was younger is deemed to have died first

   C. PENSION (goes to Spouse)
        a. Governed by Pensions Benefits Standards Act
           Pre-Retirement Benefits
                i. Surviving Spouse (incl CL & same sex) has stat right to pre-retirement benefits
               ii. Even if the settlor dies before the pension kicks in-s.34(1)(a) UNLESS:
                      1. Surviving Spouse waived this right in the prescribed form-s.34(1)(b)
           Post-Retirement Benefits
             iii. Post-retirement benefits are payable to both settlor & spouse jointly-s.35(1)(a)
              iv. When one dies the other collects full payment-s.35(1)(a) UNLESS:
                      1. Non-plan holding spouse:
                              a. Formally waives their right to joint benefit
                              b. Is aware of entitlements

Result: Settlor (plan holder spouse) can’t designate his kids, spouse has right to pension


                                                                                                                    11
II. TRUST including validity, alter ego, ir/revocable

   1. A revocable or irrevocable trust creates a present interest that takes effect during the settlor’s lifetime
              (i.e., does not depend on death for its “vigor and effect” & is therefore not a TD)
   2. Settlor is deemed to have disposed of property into trust, i.e., “deemed disposition”
                Transfer of assets to an inter vivos trust usually = a deemed disposition & thus capital gains tax
   3. Includes Alter Ego/Joint Partner Trusts
              Can avoid tax w/ an alter ego/joint partner trust, but must be 65-see below

To Find a Trust Valid, there must be:
   1) Capacity – Both the settlor & trustee must have full legal capacity

   2) The Three Certainties:
      a) Certainty of Intention - T’s written or oral conduct showing intention to create a trust; no special
         words required but be wary of words "I wish", "it is my hope that.." (bc by itself not enough to estb trust)

       b) Certainty of Subject-Matter: (i) identity of the property
                                        (ii) identity of the amount or portion B’s entitled to receive
       c) Certainty of Objects – identity of the beneficiaries

   3) Constitution – the settlor must do everything in their power to transfer and deliver the
                     property; Declaration of interest and a valid conveyance of property (trustee only has to
                     know about secret/semi-secret trust)

   4) Formalities - any formalities must be complied with (like what? Clarify)

   5) Illegality/Public policy - is there a reason why trust should not be found valid (see Charter section of outline)

Benefits of Trust in General:
            Avoids some tax-Freezes assets at amount you put in trust
                   i. Freezing often achieved through irrevocable trusts
            Trust assets are not subject to probate
            Easy access to assets upon death, i.e., they aren’t frozen
            No publicity given to these assets, only probate assets are public knowledge

Trusts can be REVOCABLE or IRREVOCABLE or COMBINATION

Revocable Trust
          o Property may be reconveyed to the settlor.
          Problems:
          o No Tax Avoidance-
                  Because property generally retains control over the property
                  For tax purposes, the settlor is treated as having not alienated the property, thus the
                    income and capital remain the settlor’s. Any income arising in the trust may be deemed to
                    accrue to the settlor.
          o Hard to Distinguish from Testamentary Dispositions-
                  Leaving a power of revocation in an inter vivos trust is problematic
                         Any time the settlor tries to have control over the trust they run risk of being
                            assessed for tax
                         May be deemed a testamentary disposition

                                                                                                                      12
                              An inter vivos trust CAN be a valid NON-testamentary transaction even though
                               the power of revocation is retained (Robertshaw)
                              BUT, it may be treated as a testamentary disposition instead
                                   o Court determines by looking at the degree of control T has
                                   o The more control, the more like a testamentary disposition
Irrevocable Trust-
           o Property cannot be reconveyed to settlor
           o More tax savings are possible
           o Trustees commonly follow the settlor’s wishes even though not legally obligated to

Combination Trust = Revocable for period of time & then irrevocable after that or vice versa

"ALTER EGO" TRUSTS

Use and Purpose: An alternative to wills, which potentially negates problems of cost and delay of
                 probate, Wills Variation Act actions and creditor claims

Created by: Amendments to Income Tax Act, which allow individuals to transfer assets to
            "alter ego" trust on a tax-deferred basis

Benefit: Whereas the transfer of assets to an inter vivos trust usually triggers a disposition of the
         assets & thus capital gains tax, the transfer of assets to an "alter ego" trust doesn’t trigger such gains &
         income earned by the trust during the settlor’s lifetime continues to be taxed in the hands of the settlor

Requirements for Alter Ego Trust:
   1)         Individual must transfer property to an inter vivos trust settled after 1999 under which he/she is
      entitled to receive all of the income of the trust prior to his/her death, and no one, other than the
      individual, may receive or otherwise obtain the use of any income or capital of the trust prior to that
      individual's death
   2)         Individual must be at least 65 years old and be a Canadian resident when the "alter ego" trust is
      created (S.73 of the Income Tax Act)

III. JOINTURES
     Joint Tenancy
          o Both owners own an equal interest in the whole. Due to right of survivorship, when JT 1 dies, JT
             2 automatically gets whole. Not a transfer, but an extinguishment of JT 1’s right in favor of JT 2.
          o Presumption of JT for Personal Property, IF no indication that co-owners own “shares”
          o Severance-evidence of severance converts JT to a TIC. Bequeathing in will doesn’t count

      Tenancy In Common (TIC)
           o Both owners own a ½ interest in the whole. When TIC 1 dies, their ½ share of the whole forms
               part of their own estate.
           o Presumption of TIC for Real Property due to Property Law Act s. 11 & Torrens system
                    Since court will presume land is owned as TIC, MUST say land is jointly owed
Result of TIC or JT
           o TIC-property becomes part of D’s estate
           o JT-property passes to other JT outside of the estate
                    JT frustrates WVA claims since not part of estate
                    JT Avoids probate tax


                                                                                                                   13
  If against JT:
       WVA claimants must say:
              o D had no intention of JT (so JT w/ legal interest doesn’t have beneficial interest too)
                    Characterize the jointure as a failed attempt at a TD & not duly executed OR
                    Argue JT is really a TIC, i.e. interest had been severed OR
                    If spouse or minor child, then can argue attempt to avoid “creditors” (i.e., them, since
                       they had legal obligation during T’s life) under Fraudulent Conveyance Act

  JOINTURES-PROPERTY DISTRIBUTION
      Upon D’s death, JT Donee (& NOT estate) gets joint property (e.g., money in joint account), if Donee has both
       legal AND beneficial interest in property (Edwards)

                  1. LEGAL INTEREST-
STEP 1                    Must look at the jointure agreement to see if it grants legal title. i.e., JT
                          Upon execution of agreement, donee has an immediate vested legal interest in account
Legal &           2. BENEFICIAL INTEREST-despite legal interest, application of the equitable doctrine of
Beneficial           resulting trusts says that the Donee may or may not have a vested beneficial interest
Interest?
                               Benef’l interest determined by D’s intention & if none shown then presumption of advancement

                          ESTABLISH D’s INTENTION
                  1. In practice, document D’s intention
STEP 2
                  2. Relevant time to determine D’s intention is the time the jointure was set up (Dredger)
Determine                 May have just intended to avoid probate, to pay funeral expenses, i.e., no Benef’l Interest
D’s               3. Court will get evidence in all at once. If it can’t find intention on facts of the case, it will use
Intention;           presumption of advancement
using facts       4. Court really just uses advancement to determine onus of proof
of case
                               BY FACTS of the CASE-Intention determined by facts of the case
STEP 3                               1. Just because donee promised donor that he would not draw on account until
                                        after donor’s death, does NOT prevent beneficial interest from vesting
Can’t find D’s                       2. Against JT?
intention?
                                        c. Argue that D just intended to avoid probate or
Use
Presumptions                            d. To pay funeral expenses with this account or for JT to split with siblings

                          APPLY PRESUMPTION of ADVANCEMENT or RESULTING TRUST:
                  1. Presumptions apply to all jointures
                  2. In considering evidence wrt these presumptions, only acts and statements made around the same
                     time as the jointure was set up will be considered (Edwards)

  A. Familial Context = Presumption of Advancement (Edwards)
     a. If a parent (father or mother-Dredger)
     b. Creates jointure with child or wife (likely not CL wife),
     c. Presumption that he intended to gift the beneficial interest in the jointure to the child or wife
     d. Presumption Rebutted by evidence that D intended to keep beneficial interest for himself
     e. If Rebuttal is successful, then resulting trust found
             a. Not a resulting trust if donee deposited their own $ into joint account
                  b.   If no resulting trust, JT gets property. Makes it hard for kids of 1st marriage to claim 2nd wife shouldn’t get JT

  Policy Consideration: The force of the presumption of advancement will depend on the child’s circumstances
       Where child is Adult, who is financially well off, & there is no reason why child should be preferred over other
              siblings, then presumption is weak & requires only slight evidence of contrary intention to displace (Dredger)
                                                                                                                                            14
B. Non-Familial Context = Presumption of Resulting Trust
   a. If deceased
   b. Creates a jointure with someone other than child or wife
   c. Presumption that D intended to Create a Resulting Trust & keep Beneficial Interest for himself
          a. Not a resulting trust if donee deposited $ into account
   d. Presumption Rebutted by evidence that D intended to gift beneficial interest to the non-family JT
   e. If Resulting Trust-estate gets money: jointure holder holds legal title, but holds beneficial title for D’s estate

Practical Problems of Jointure
    If joint ownership, can argue that it is a gift.
    Consequence of gift-
            o Lose control of asset, e.g., you decide to sell house, you must get permission to sell it.
            o Someone else owns piece of your asset & they may have creditors/FRA claim
            o Capital Gains-when you transfer asset you are disposing of it. If principle residence its fine, but,
               e.g., if JT with daughter, it may not be HER principle residence & she’ll pay tax
    Recommend against it except:
            o   When T is dying
            o   When parent/child relationship almost like spouse. E.g., old kid living at home, not married, no other kids

        Consequences:
    o   Unity of Ownership-whichever Joint owner survives gets whole property
    o   Messy for Tax reasons
    o   Must be clear that land is held jointly
    o   T may intend that other joint owner share land w/ others at T’s death, but other JT owner doesn’t have to
    o   Tricky when T only intends other JT owner to have beneficial interest in property NOT legal ownership
    o   A bad attempt at Joint Ownership can be interpreted as a TD by courts (Hill)
    o   Joint bank accounts are not TD’s. Legal ownership vests upon opening account (Edwards)
                    This may not always be the case, but can argue Edwards.




                                                                                                                              15
IV. MUTUAL WILLS & CONTRACTS Made Prior to Death to Benefit Another

Definitions:

Joint Will-
     Single document, executed by 2 testators, usually husband and wife, that operates as 2 wills
     Can be probated twice, once after death of each (Re Stanley)

Mutual Will-
   Wills, contained in one or more documents that confer mutual benefits on 2 or more testators
   Must be contractual in nature, i.e., one person agrees to confer benefits by will on another person only if
      that person agrees to confer like benefits by his or her will

               A. Contract to Compensate for Services Provided
                     a. T is bound by bona fide contract to leave property to specific person (Shaeffer)
                     b. WVA will not allow court to shift burden to contracted party to redistribute estate
                         (Shaeffer)-bc not getting part of estate, getting restitution
                     c. Restitution (quantum meriut) paid for services rendered, not part of estate (Deglman)
                              i. Restitution shouldn’t be treated as debt, it’s separate/not part of estate (Garnet)
                             ii. No contract needed for restitution claim

               B. Mutual Wills
                    a. Effect of Mutual Will (Sanderson Estate 1998 BCCA)
                             i. Once one of the T’s dies, the survivor is bound by the terms of the agreement
                                and
                                    1. Except agreement not to revoke. Will is always revocable. Last will is
                                        accepted to probate (Re Kerr)
                           ii. Must dispose of the property covered by the deceased’s will in a manner
                                consistent with the terms of the will
                           iii. Survivor held to specific performance through constructive trust in favor of
                                beneficiaries of D’s will (Brynelson)
                          iv. Survivor can’t make another will that is inconsistent with the trust (Brynelson)

                      b. Effect of Notice of Alteration to Terms of Mutual Will
                             i. The Survivor, who has NOTICE of T’s new will/alteration on T’s death, can’t
                                 have the new will set aside.
                            ii. The survivor is NOT entitled to performance of old mutual will’s terms
                                  (Knysh)

                Proof Required for Mutual Will (Re Gillespie)
                         Mere existence of mutual wills is not by itself sufficient evidence of an agreement
                          between the testators
                         Court must be able to:
                              o Determine with clarity and precision
                              o Either from the terms of the will or another document incorporated by
                                  reference
                              o That an agreement was made

Problem- Potential for solicitor negligence claims


                                                                                                                  16
V. DONATIO MORTIS CAUSA
   1. A person may, in expectation of his/her imminent death &
   2. On condition that they actually die
   3. Make a gift transferring legal & beneficial ownership of
   4. Personal property to a donee

Policy-
             Donor must deliver gift while still alive (or symbol of gift, like car keys)
             Prior to death, donee holds it in trust for donor
             If donor doesn’t die, donor gets gift back
             If they do die, donee gets gift retroactive to the time of giving it
             Does NOT form part of D’ estate
             Does NOT need to adhere to formalities under Wills Act
             Problem-
                    i. Capacity may be tested, susceptible to fraud and beneficiaries may challenge
                   ii. In case of a challenge, good to have documents stating it was an actual gift
                  iii. Don’t need witnesses to sign, but better for evidence reasons.




                                                                                                      17
Making a Will
Apply Test to Determine if it is a Testamentary Disposition (Cooke, Robertshaw, Boucher)

Capacity in General
    Test for capacity changes with context, i.e., for wills, power of attorney, contract, etc
    May have capacity to deal with one thing, but not another (Banks)

Capacity for Wills -STEPS:

1. CONTRACTUAL CAPACITY TO ENTER LEGAL CONTRACT WITH LAWYER
        a. Must have legal capacity to enter into a contract with lawyer to write will
              i. Must understand the nature of the contract or lawyer can’t take will instructions
        b. Even if had capacity at time of instruction, still needs to be capable at time of signing (Parker)
              i. Banks criteria determines signing capacity, BUT Parker signing capacity criteria useful:
                       Did T know & recollect what she had done with lawyer wrt instructions?
                       Even though T did NOT, is T able to approve each provision of will when it is
                          read to them?
                              a. “Yes, that’s what I want, I remember now”-beware of Alzeimers
                       If can’t do either of above, BUT T knows gave instructions & relied on lawyer
                              a. Problematic-not sure if this would suffice today

2. STATUTORY REQUIREMENTS MET
        c. Must be age of majority to have capacity to make will s.7-UNLESS
              i. Wills Act s. 7(1)(a)-married
             ii. Wills Act s. 7(2)-in active military service

3. BANKS V GOODFELLOW TEST
       Did the Testator:
    A. Understand the nature and effect of their undertaking, i.e., to make a will & it’s effects
    B. Know the nature and extent of their property and that they are disposing of it in will
           Can T identify the property, etc
    C. Understand the claims that they ought to give effect to
           Does T know who their next of kin are, including any adoptions (for future claim)?
           Other people who may have claims against the estate?
    D. Have no disorder of the mind that would poison their affections or pervert their sense of right
           Banks had delusions, but still passed bc irrelevant to his understanding of what he was doing
           This prong is now sometimes not used if T on appropriate medications
           This element can be from old age or mental delusions

4. POLICY
      Cases suggest-courts are more interested in using Doctors opinion over lawyers to assess capacity
            o Question is left open whether a Doctor’s opinion will trump the Banks test (James BCCA)
            o Don’t ask Doctor if T has will capacity, that is legal decision, ask if T has mental disability
            o If doctor says no capacity, then it’s a legal determination. Weave doctor info into Banks
      If change to will was simple, then more likely that capacity will be found (Royal Trust)

                                                   In Practice: Beware of Solicitor’s Negligence wrt capacity

      If T is incapable don’t take instruction/recommend another lawyer       Alzeimer’s clients are skilled at fooling you wrt their capacity
      Ask/ascertain what they own-for will prep & capacity test                        Use standard test to determine mental status
      Children estranged from client?                                                  What day is it, what country is this, etc?
      CL Relationship?                                                                 Talk to doctor-need to get T’s permission, say it’ll help bolster will
      Any contractual agreements in place?                                             Talk to Power of attorney-they are T’s agent, so don’t need T’s          18
      Record everything                                                                 permission.
Capacity for Power of Attorney & Representation Agreements
Capacity for Powers of Attorney: 2 Kinds
   Power of Attorney
   A. General Power of Attorney
          a. Agent Relationship-if capacity is lost, can’t instruct agent, so agency is over
   B. Enduring Power of Attorney
          a. Continues even after lost mental incapacity
          b. Only has power over financial matters NOT personal or health care issues
   C. Capacity Required for Enduring Power of Attorney-(Godelie aff’g Re K)
                        1. DOESN’T matter that donor isn’t capable of doing all acts PoA will do
                        2. In BC, likely does NOT have know nature/extent of property (not will capacity)
                 ii. TEST: At the time of PoA agreement execution does donor understand the nature
                     and effect of the power being given? I.E. that attorney will be able to:
                        1. Assume complete authority over donor’s affairs
                        2. Do anything with donor’s property that donor could have done
                        3. Continue having authority if donor becomes mentally incapacitated, i.e., power is
                            IRREVOCABLE after infirmity

Capacity for Representation Agreements (Standard & Enhanced Agreements)
    Contractual agreement
    Much broader overall powers than just basic financial powers of PoA
          o Broader financial powers than PoA
          o Unlike, PoA, can make personal and health care decisions
          o Set up so that Rep can help donor make decisions, not just make decisions for them
   A. Standard Agreement-s.7RAA
          a. No need for lawyer
          b. Limited powers:
                   i. Routine management of finances
                  ii. Minor and major health decisions
                 iii. Obtaining legal advice for an adult representee, except divorce
                 iv. Arrange for qualified care facilities
          c. Capacity Test-low threshold-S. 8RAA
                   i. Can make agreement even if incapable of:
                         1. Making a contract
                         2. Managing personal or health care, legal or financial matters, or asses
                  ii. Relevant Factors
                         1. Communicates a desire to have rep make/help or stop making decisions
                         2. Demonstrates choices/preferences-can express feelings of approval & disapproval
                         3. Aware that making, changing, revoking RA means rep may make/stop making
                             decisions affecting adult
                         4. Whether adult has relationship with rep characterized by trust
      Policy: Independence given to a person who would otherwise not have a voice
    Weird that adult incapable of entering a contract with a lawyer can enter RA/safeguard = ltd powers

   B. Enhanced Agreement-s. 9RAA
        a. Must consult lawyer before entering agreement
        b. Broader powers than standard agreement
        c. Capacity Test-higher than standard agreement
               i. Must have CONTRACTUAL CAPACITY-understands nature & effect of creating RA

                                                                                                          19
Undue Influence & Suspicious Circumstances
Propounder of Will has Onus of Proof & Rebuttable Presumption

On a Balance of Probabilities, Propounder of the Will Must Prove:
      1. T had capacity (a disposing mind and memory)
      2. The will complied with formalities (duly executed)
      3. T knew and approved of the contents of the will.

Rebuttable Presumption:
At this stage, IF the Propounder proves that:
             The will complied with formalities and
             The T read or had been read the will and appeared to understand it
THEN it will be presumed that the will was duly executed, T had capacity, and knew and approved of the
contents of the will.

Suspicious Circumstances

Evidentiary Burden on Attacker of Will
IF attackers of the will can:
     Point to some evidence of suspicious circumstances;
     Which would negate the T’s testamentary capacity or knowledge and approval of the contents of the
        will, such as:
                a. Circumstances surrounding the preparation of the will
                b. Circumstances tending to call into question of the capacity of the T or;
                c. Circumstances tending to show that the free will of the testator was overborne by acts of
                    coercion or fraud.
THEN the propounder reassumes the legal burden of proving knowledge and approval of the contents of the
will…AND testamentary capacity IF the suspicious circumstances relate to mental capacity.

Legal Burden Reassumed by Propounder of Will

Knowledge & Approval-If suspicious circumstances go to T’s knowledge and approval of the contents of the
will then Propounder must affirmatively prove:
               a. That T appreciated the effects of the will including:
                        Value or Magnitude of the Gift AND
                        Factors that could cause gift to change in value/ magnitude
                        T’s State of mind must be analyzed as of date will was drawn
               b. Quality of Ts understanding of the contents is relevant (Wintle)

Note-Positive proof of the T’s appreciation of the effect of the will is required
    A lawyer must make necessary inquiries to show T fully appreciated the effect of what they were doing
      when they made their will (Russell)
    In practice, be thorough and ask a lot of questions, so you can confirm client’s estate

Testamentary Capacity-If suspicious circumstances go to T’s capacity then propounder must prove:
             a. T complied with statutory capacity requirements-Wills Act s.7
             b. T had a disposing mind and memory by using the Common law Banks v Goodfellow Test
      See outline page 17 for specific Banks/Wills Act wills capacity requirements


                                                                                                               20
Remember:
    Suspicious Circumstances go to Weight of Evidence, weight of evidence required varies w/ degree of suspicion
    The fact that a propounder participated in the drawing and preparation of the will and took benefit, is just another
     suspicious circumstance, albeit a significant one.
    Specific suspicious circumstances do not necessarily need to be proven away, so long as the propounder proves
     due execution, capacity, knowledge & approval on a balance of probabilities.
    Court can sever one part of will without invalidating the rest (Russell/Vout)

Undue Influence or Fraud

Burden of Proof in Wills
    The attackers bear the legal burden of proving undue influence/fraud on a balance of probabilities
Note-With inter vivos gifts (Goodman v Giffen)
    Attacker of the gift must establish the relationship between donor & donee as having the potential for influence in
       order to trigger the presumption of undue influence
    Once attacker has established this, burden shifts to propounder to prove there was no undue influence
    Propounder must show that donor had full, free and informed thought

Policy Behind Burden of Proof
     The fact that the burden of proving undue influence or fraud is placed on the attackers rather than on the
        propounders of the will reflects the policy in favour of honouring the wishes of the testator where it has been
        proven that the formalities have been complied with and knowledge and approval as well as testamentary capacity
        have been established.
     If the court were to place this burden on the propounders, the propounders would not only have to prove capacity,
        knowledge and approval and due execution, but would also have the burden of disproving any undue influence or
        fraud. The result could be that by the attackers simply raising a suspicion of fraud or undue influence, the wishes
        of the testator could be defeated in many cases where no fraud or undue influence actually exists.

Difference Between Undue Influence/Fraud & Capacity, Knowledge and Approval
     A testator can have capacity & appreciate what they are doing, but do it as a result of coercion or fraud.
     If proved that T had capacity & knew/approved of will’s contents, slim chance of showing coercion/undue infl
     In practice, attacker wouldn’t just raise some evidence of undue influence/fraud & wait to prove it on a balance of
        probabilities if the propounder successfully proves their case. Attacker puts all their evidence in at once
     So if attacker can’t prove undue influence/fraud on a balance of probabilities, that evidence may still be admitted
        to raise suspicious circumstances, which will go to weight of evidence

What is Needed To Prove Undue Influence
    1. To have undue influence must have coercion – not just persuasion. (Wingrove)
    2. Coercion comes in different forms, i.e., violence/confinement, pressure on weak/sick person (Wingrove)
    3. Requires proof of the existence of an influence acting upon the mind of the testator so to cause the will
       to express something that, although seemingly represents the testator’s intentions, does not in reality
       represent the testator’s true intentions. (Craig/Harmes)
    4. Not sufficient for person to only have the power to overbear testator, must prove power was exercised
       and that as a result of that power, the will was produced. (Wingrove/Craig/Harmes)

Indicia of Undue Influence (O’Brien’s Encyclopedia of Forms)
     Whether someone has an opportunity to control the Testator
     Whether a confidential relationship exists
     Whether someone else initiates procuring the will
     Whether someone else unduly profits
     Whether the client suffers from mental or physical disorders
     Whether someone facilitates subversion of the client’s free will
     Whether provisions of the proposed will are inconsistent generally/radically different from previous will
                                                                                                                        21
Scope of Testamentary Giving-how others can contest the Will/Testamentary Trust
Mutual/Joint Wills
Joint Will-
     Single document, executed by 2 testators, usually husband and wife, that operates as 2 wills
     Can be probated twice, once after death of each (Re Stanley)

Mutual Will-(Potential for solicitor negligence claims)
   Wills, contained in one or more documents that confer mutual benefits on 2 or more testators
   Must be contractual in nature, i.e., one person agrees to confer benefits by will on another person only if
      that person agrees to confer like benefits by his or her will

I. CONTRACT to Compensate for Services Provided
                    T is bound by bona fide contract to leave property to specific person (Shaeffer)
                          o Hard to enforce when contract was between 2 parties, who are now dead,
                              to benefit a 3rd party, if no evidence that contract wasn’t to be revoked
                    WVA will not allow court to shift burden to contracted party to redistribute estate
                              (Shaeffer)-
                             Restitution paid for services rendered, not part of estate/debt (Deglman/Garnet)

II. MUTUAL WILLS
                          A. Elements of Mutual Will/Proof Required (Re Gillespie)
                                a. Made pursuant to a definite agreement
                                        i. By terms of the will or another document incorporated by
                                           reference
                                b. Agreement has clarity and preciseness
                                c. Survivor has taken advantage of benefit
                                        i. Likely element satisfied if survivor allows party who was first to
                                           die to think they had good contract upon death

                          B. Effect of Mutual Will (Sanderson Estate 1998 BCCA)
                                 a. Once one of the T’s dies, survivor bound by the terms of the agreement &
                                         i. Except agreement not to revoke. Will is always revocable. Last
                                             will is accepted to probate (Re Kerr)
                                 b. Must dispose of the property covered by the deceased’s will in a manner
                                     consistent with the terms of the will
                                 c. Survivor held to specific performance through constructive trust in favor
                                     of beneficiaries of D’s will (Re Kerr)
                                 d. Survivor can’t make another will that is inconsistent w/ the trust (Re Kerr)

                          C. Effect of Notice of Alteration to Terms of Mutual Will
                                 a. The Survivor, who has NOTICE of T’s new will/alteration on T’s death,
                                     can’t have the new will set aside.
                                 b. Survivor NOT entitled to performance of old mutual will’s terms (Knysh)

                          D. Grant of Life Estate: 2 possible outcomes:
                                             Look to contract terms to see if LE holder can encroach:
                                a. Contract terms let LE holder to dispose of whole without leaving
                                    remainder (Ohorodnyk-Ont CA)
                                b. Must leave remainder or equity will intervene (Birmingham-Australia)
                                                                                                                 22
III. Wills Variation Act Claims
WVA S. 2-
   Act ensures proper maintenance & support of T’s surviving spouse(s) and/or children by will variation
   If court finds T’s will did NOT allow for proper support, has discretion to vary will to provide division,
     which is adequate, just and equitable.

STEPS:
1. Is the action to vary the will commenced within 6 months of grant of probate?-S. 3(1)(a)WVA
               *If not, over time, claim is invalid. S. 3(1)(a) WVA

2. Determine who qualifies as “spouse”
             a. S. 1 WVA -Definition of Spouse
                  Married or
                  Living/cohabitating in “marriage-like” relationship, incl same-sex, for at least 2 years
**Unlike EAA, WVA seems to allow claim despite separation (for both married and CL spouses)

Indicia of Common Law Spouse (Walsh/Gostlin/Molodovich) (use for WVA, etc, to determine “marriage-like”)
    1. Subjective Intention of Deceased (Walsh/Gostlin)
    2. If subjective intention not clear, then use objective criteria (Gostlin)
    3. Objective Criteria-7 part Test (Molodovich)-*these are just factors, don’t need all
            a. Shelter-did they live under same roof
                    i. Sleeping arrangements
                   ii. Did anyone else share house with them?
            b. Sexual behavior
                    i. Did they have sex?
                   ii. Fidelity
                  iii. Feelings?
                  iv. Gifts on special occasions?
            c. Services
                    i. Who prepared meals & provided domestic services?
            d. Social
                    i. Did they participate in activities together
                   ii. How did families behave toward parties
            e. Societal
                    i. How did community look at them
            f. Economic support
                    i. Financial situation-did they share expenses
                   ii. Special financial relationship that they agreed to
            g. Children-What was attitude towards any children of relationship or step-children?

   3. Determine who qualifies as “child” (natural & adopted, but not adopted “out”)

   4. Determine if T has left “proper maintenance & support” to spouse(s) &/or children
            o Proper Maintenance and Support is Not limited to the bare necessities of existence (Walker)

                       To determine what’s “proper maintenance & support” & what court will grant as
                        “adequate, just and equitable provision” for spouse/kids, if proper support not found,
                        court will consider T’s legal & moral obligations (Tataryn)



                                                                                                              23
       a. Legal Obligation-to spouse(s) &/or minor children (Tataryn)
             A. What would spouse/kids have been legally entitled to at death of T?
             B. For Spouse
                     Legal obligation overrides testamentary freedom, moral obligation to allow
                       spouse independence of spirit (Erlichman BCCA 2002).
                1) Use FRA as a guide
                     Starting point is half of estate free & clear
                     Life estate in half of estate is insufficient, doesn’t matter if spouse is old &
                       unsophisticated in financial matters, ½ estate, w/encroachment NOT enough
                           (Erlichman BCCA 2002).
                       While court is guided by FRA principles, this isn’t family law. Courts don’t tend
                        to use reapportionment & don’t look at whether funds were used for family
                        purpose (see Westman v Horne)
                            o Could try a reapportionment argument, but Mark Horne hasn’t seen it used
               C. For Children-
                      T only has a legal obligation to MINOR children, but may have moral obligation
                        to adult children.
                      Try Unjust Enrichment argument or contribution, but not the normal situation

       b. Moral Obligation-to spouse(s) &/or children of any age (Tataryn/Walker)
                1. Spouse-must be allowed “independence of spirit” (Erlichman)
                       a. May be able to argue against this if marriage was short
                2. Level of Duty to Spouse & Kids-considered in light of the circumstances (Tataryn)
                3. Factors to Consider:
                       a. What family relationship was like
                       b. Length of marriage
                       c. Obligation to kids reduced by long periods of time apart (Price)
                       d. Size of Estate (Tataryn)
                               i. If the size of the estate is big enough, then all claims of the estate
                                  should be met.
                              ii. If the size of the estate is not big enough to meet all claims, then legal
                                  obligations take precedent over moral obligations
                       e. Whether Kids contributed to estate (can also argue unjust enrichment)
                       f. Situation of the Children (i.e., need likely comes into play)
                       g. T’s intentions, but doesn’t override other factors

                 Disinheriting Children
                       a. T is under an obligation not to disinherit any child EXCEPT where estate is
                          small OR compelling reason to disinherit, especially IF there is a spouse (Price)
                       b. Result in each case often depends on the judge’s sense of the fitness of things
5. Policy Considerations
      a. CANNOT contract out of Wills Variation Act claim, BUT if spouse had independent legal advice &
           agreed to contract out via sep k then MAYBE court will consider that no further provision is required
              i. Try arguing (weak) presumption against benefiting twice (under Satisfaction-equitable doctrines)
             ii. Also, Courts are now less likely to vary separation agreements
       b. Court will disregard clause in the will purporting to disinherit any beneficiary claiming WVA
       c. Court may consider T’s statement/rationale for not providing adequately for spouse/kids -WVA s. 5
              i. Rational doesn’t have to be written, but better if it is written & kept separate from will
             ii. Court will take into account all circumstances to draw inference re accuracy of statement
            iii. Make sure its accurate statement of factual concerns or it will just help P attack will &
                 lead to additional family strife.
                                                                                                              24
6. Ways to Avoid WVA Claim
     a. Die Intestate
     b. Contracting out of WVA by:
             i. Mutual Wills-e.g., spouses in 2nd marriage agree that on death of the 2nd of them the estate will
                   be divided 50/50 between his/her kids from 1st marriages. W brought in way more $. W’s kids cry
                   unfair bc mom’s $ came from their dad. But if H #2 dies carrying out his part of k then bound.
                ii. Bona fide contract wrt certain property distribution = defeats WVA (Sherman)
               iii. As a policy matter, cannot contract out of WVA through Separation Agreement (Wagner), BUT
                   IF spouse got independent legal advice & signed sep k, courts less likely to vary agreement now.
                       A. Also argue Satisfaction-weak presumption against benefiting twice
       c. Transfer Wealth Outside of Will via Inter Vivos Instrument
       d. Disadvantages of methods of avoiding WVA claim:
               i. Tax disadvantages (except disadvantages don’t apply to spousal rollovers)
              ii. JT-lost control and potentially risky, successful claim of resulting trust = $ to T’s estate
             iii. Spouse/Kids may claim unjust enrichment
             iv. Spouse (esp one who could claim under FRA), may claim transfer into inter vivos instrument or
                  JT is fraudulent under Fraud Conveyance Act (i.e., transferred $ to delay or hinder creditors).
                      A. Adult kids CANNOT argue fraud bc only spouse has legal right to $ prior to T’s
                          death, BUT minor child could potentially argue this bc of support obligation




                                                                                                                 25
IV. Variation of Trusts-4 ways to bust a trust
   A. Capital Encroachment to empty out trust
         a. Most restrictive method of exhausting a trust-even w/ power to encroach, not ok to pay out all at once
         b. Can be used whether power to encroach given or not, so long as it benefits beneficiaries its ok
         c. Trustee must get residual beneficiaries ok to avoid claims that Trustee didn’t balance between
            LE holder & remainderman/breach of trust
         d. Used for very old trusts and very small trusts          OLD & SMALL
                                                                            TRUSTS;
                                                                      No agreements needed
    B. Rule in Saunders v Vautier                                     from remainder benes
          a. Use this if NO CONTINGENT INTERESTS
          b. IF all benes are ascertained, have capacity & agree, they can terminate trust                NO
                                                                                                      CONTINGENT
                  i. Must have closed class, i.e., NO contingent interests outstanding
                                                                                                       INTERESTS
Policy-Courts agenda is protecting beneficiaries, so if they agree, no need to keep trust going

   C. Capital Acceleration (McGavin v National Trust BCCA 1998)
         a. Use-if there are CONTINGENT INTERESTS & you want to collapse trust/settlement tool
         b. Acceleration-Shortens time for vesting in possession of remainderman’s expectant interests
         c. There is a Presumption of Early Vesting, i.e., the settlor intended an acceleration
                 i. If LE holder disclaims/forgoes her benefit &                                 1 LAYER of
                ii. Residual beneficiaries know and agree to it,                               CONTINGENT
               iii. Then result is that:                                                        INTERESTS;
                        1. The vesting of capital interests is accelerated &                     No minor or
                        2. Contingent interests are extinguished, i.e., class is closed         undetermined
                                                                                                    benes
         d. UNLESS there is a contrary intention in the will (there usually isn’t)
                 i. Burden is on those who are AGAINST early acceleration to prove (usually PGT)
                ii. To show contrary intention, must prove S had dynastic concerns:

Dynastic Concerns: i.e., S intended to leave benes class open until LE holder actually died
                            1. Hard to Prove
                                            i. If more than 1 layer of contingent benes then maybe
                                           ii. IF a very large estate then maybe
                            2. Proof AGAINST Dynastic Concerns:
                                    If S contemplated LE ending early by having it end if LE holder remarried
                            3. IF DYNASTIC CONCERNS
                                    E.g., no remarriage provision, big estate, more than 1 layer of contingent
                                       interests –can use Trust Variation Act to bust trust
In Practice-ask if there are undue influence concerns. Don’t have to go to court if Trustee agrees to collapse.

   D. Trust Variation Act
            a. Court can collapse trust on behalf of unborn or incapacitated beneficiaries-s. 1
            b. For court to do this, collapsing trust must benefit the unborn/incapacitate beneficiary-s. 2
            c. Test to see if collapsing would benefit the beneficiary:
                   i. Is the benefit such that a prudent adult motivated by intelligent self-interest & sustained
MORE THAN 1            considerations of expectancy would likely consent? I.e., is it a good deal? (Re Irving 1975)
  LAYER OF
CONTINGENT        ii. 2 ways to benefit beneficiaries:
 INTERESTS;                1. Take a contingency fund out of the capital to benefit unborn benes/grandkids
 When Minor or             2. Take out life insurance, using funds from trust capital, upon death of X to benefit
Contingent Benes               unascertained beneficiaries
Involved & Need
Court’s Approval

Policy-Court will not allow PGT to use this test to obtain a ransom settlement by withholding consent
                                                                                                                     26
Conflict of Laws & Wills
    1. Is there a foreign element?
    2. Can you characterize the element as something other than testamentary in nature? (Allison)
            a. E.g., matrimonial property-
                    i. In BC, will is invalid after marriage (WA does NOT include CL spouse!) if it doesn’t say its made in
                          contemplation of marriage. If married, outside of BC, & that prov doesn’t make will invalid upon marriage
                          then will is valid in BC. Domicile at time of marriage governs matrimonial property, i.e., determines if will
                          is invalid due to marriage w/o a clause (Allison)
    3. Apply Appropriate Choice of Law-using domicile, determine applicable law for moveables or immoveables
          a. Renvoi-apply the jurisdiction’s domestic law &conflicts law-but argue only domestic law makes sense to apply

Domicile-Part 3 WA-Where did T consider his permanent home?
                   i. Immovables (land) governed by law of the place where land is located
                  ii. Moveables-Validity of a “moveables” gift determined by law of T’s domicile or also
                      place where will was made for formal validity (Jewish National Fund 1965 SCC)
           b. A will made outside of BC, which deals w/ Moveables complies & is valid if: (s.40WA)
                   i. Formal Validity-(signatures, etc) If will was valid in either the place where:
                           Will was made
                           T was domiciled when will was made OR
                           T was originally domiciled (birth place likely)
                  ii. Essential Validity-(capacity, WVA law) determined by law of T’s domicile at time of death
*Place of Intimate Relationship/place where residing with spouse = strong indicator of domicile

Charter of Rights & Public Policy
    1. If charitable trust discriminates and offends public policy, trust will not fail. Use Cy-Pres doctrine to
       bring trust into accord with public policy (Canada Trust Co.)
            a. E.g., if says only white 3.5. G.P.A students get $, then read out whites
    2. If law violates Charter, read in words which will bring provisions into accord with Charter (Rosenberg)

Formalities of Making a Will (Governed by the Wills Act)
Requirements of a Valid Will = T complied w/ formalities, had capacity, knew/approved of contents, & no undue influence/fraud

1. T’s Signature
           a. Presumption of Proper Execution-if it looks like T intended signature to execute will, then its ok (supported
                 by s.6, also see Beniston)
            b. S.4WA-T or someone directed by T, in T’s presence, must sign T’s signature at “end of will” BUT
                   i. S.6WA-gives liberal interpretation for what counts as the “end of the will”
                  iii. Must be apparent on the face of the will that T intended to give effect by signature-s.6
                  iv. Signature conforming w/WA doesn’t give effect to directions in will below signature OR
                       direction inserted after signature was made-s.6(3)WA
                   v. Examples of Deemed Ok signatures:
                           1. Signing envelope may be enough (Wagner)
                           2. Only half a signature may be enough (Chalcraft)
                           3. Directed signature must be T’s name, not person’s name who is signing-s.4(a)

            c. Factors indicating that court will find valid signature
                   i. Will makes sense, i.e., gives to all those that it should, etc (see Chalcraft/Wagner, etc)
                  ii. Balanced with court’s caution of fraud (See Wagner)
                           If signature on separate piece of paper, then surrounding circs must show T intended signature to
                                   execute will (Wagner)
                                                                                                                                    27
2. Witnesses Signatures
          a. Exception-Active Service Military. No witness signatures required, only T’s signature-s.5 WA
          b. T or person signing on T’s behalf, must have 2 or more witnesses present at the same time-s.4(b)
          c. 2 or more Witnesses must sign in presence of T-s.4(c) WA
                       1 witness MAY be ok-technicality shouldn’t stop court from giving effect to will, IF will
                         makes sense (Simpkins BCCA)
                        If ill, T may not have to see witnesses sign, as long as T knew they were signing (Chalcraft)

          Witness Capacity
           a. If Witness becomes incompetent after signing will, it does NOT make will invalid-s.10 WA
           b. S.12/13-creditor/spouse of creditor &/or executor are competent witnesses for valid execution

         c. If a witness is beneficiary or (legal) spouse of beneficiary, then beneficiary’s gifts in will are void
         (gift “lapses”), BUT witness is held to be competent witness of will’s valid execution-s.11(1) WA
      WA does NOT include CL spouse, RESULT = CL spouse may be able to witness & get bequest

           d. Beneficiary and/or spouse of beneficiary CAN sign & beneficiary’s gifts will be valid, so long as
              2 other people, who aren’t beneficiaries sign too. Redundant yes, invalid gift, no-s.11(2) WA
Policy-
     AS LONG AS in any part of process, including a later codicil, there are at least 2 witnesses who are
        NOT beneficiaries, the witness beneficiary’s gift will be valid
     Basically, if will substantially, but not completely complies (wrt signature & witnesses) & it makes
        sense, its probably ok (supported by Sisson Ont. HC/Krause 1999 BCSC)
     BUT maybe not in BC, (see Ellis BCCA 1997/Bolton 2000 BCSC)-strict formalities required, despite T’s intention
     Arguments in favor of validity are fair game, especially if justice is on your side

3. Obliterations, Interlineations, Cancellations & Alterations-S.17
           a. Made PRIOR to Will Execution-are wholly EFFECTIVE

           b. Made AFTER Will’s Execution-are wholly INEFFECTIVE; EXCEPT
                  i. If it Complies with regular will requirements, i.e., duly attested by 2 witnesses OR
                              Initials of witnesses are enough even though WA calls for witnesses signature

                   ii. To the Extent that it renders the words or meaning no longer effective on its face
                              E.g., if bequest to John scratched out (obliterated), but obliteration is too good and you
                               can’t make out John’s name anymore, then John is no longer getting bequest. But if you
                               can make out John’s name, then bequest is good
                              Must be clear on its face, can’t use intra red technology to find bequest (Itter)

               iii. Conditional Revocation-If obliteration was successful, BUT T intended obliteration to be
                    a substitution, and the substitution fails, then court will use original will to avoid entirely
                    failed gift. So court finds success of obliteration is conditional on a successful
                    substitution (result-person who was obliterated gets bequest-Itter)
                         If original bequest & substitution are similar in size, more likely to have above
                            outcome, i.e., obliterated person gets bequest.
                         If original bequest & substitution are different, more likely that court will find T
                            intended to revoke gift, i.e., result = obliterated person does not get bequest
**Problem-Must prove when alterations were made to see if made prior or after execution

Policy-tension between strict compliance & bending rules to ensure justice in a particular case

                                                                                                                        28
Legacies & the Equitable Doctrines (How to pay out Will, in which order & gift failures)
Equitable doctrines give us a guide re: how to administer then estate after the will is probated, but gifts fail

Kinds of Gifts that can be given in Will
Pecuniary Gift-an specific cash amount

Specific Gift-a bequest of a specific thing, e.g., a specific bank account to X

Demonstrative Gifts-a hybrid of specific & pecuniary gifts, specific cash amount from a specific fund, e.g.,
                     “$100 from TD bank account #1, to Jane”

General Gift-given without any specificity, e.g., “a” car to X, Exec must buy X a car that doesn’t exist yet

Residue-What’s left over in estate after the above are paid out
                     Order that Gifts/Wills are Paid Out
                            1. Debt paid first out of residue
                            2. Assets-if enough $ in estate then gifts are paid in this order:
                                    a. Specific, Demonstrative, Pecuniary-all paid first
                                    b. General Gifts, then
                                    c. Residue

When Gifts Fail:
A. Lapse (common-applies if beneficiaries in will don’t work out)
   1. If beneficiary predeceases
             a. BUT If predeceased bene is T’s issue or sibling, then gift given to B’s next of kin -s.29 WA

                           1.   Per stirpes, as if B died intestate w/o spouse or debt (so goes to issue)-s.29(1)WA
 DIVISION if B
                           2.   If B has no issue, then to B’s spouse as if intestacy w/o debt-s.29(2) WA
 Is issue/sibling
                           3.   If no spouse, THEN and only then, the gift lapses
 & Predeceases                  i. UNLESS contrary intention in will, i.e., T provides alternative/gift over in will (see Wudel)
                                      1. Child predec’d T by 16yrs. T wanted gc to split not child’s spouse (redundant in BC)
   2. If beneficiary is a charity, which doesn’t exist
          a. Apply Cy Pres-If charity doesn’t exist/amalgamated, then Trustee/Court can give gift to similar charity.

   3. Where one of the two witnesses, or their spouses, to the will is also a beneficiary-s.11 WA

   4. If will drafted while married, but subsequent judicial separation or divorce pre death & beneficiary or
      exec is former spouse, then former spouse treated like they predeceased-their power/gift fails-s.16 WA
          a. Problem-no provision in WA for CL spouse. T’s estate may be in trouble bc CL may get gift
                   i. But s. 16 says it applies to person T consider their spouse-so argue this
   5. Result of Lapse
          a. If Specific, Demonstrative, Pecuniary, or General gift fails, the gift goes into Residue-s.21 WA
                   i. UNLESS contrary intention in the will
          b. If Residue lapses, then intestacy
       Lapse applies, unless CL or statutory exception under WA or contrary intention in will, i.e., gift over

   6. CL Exception to Lapse
         a. If gift made to class of beneficiaries (benes aren’t individually listed), then gift does NOT lapse
                 i. E.g., “Nieces alive at my death” =nieces are class. If 1 dies, other nieces get gift
                ii. But if T says, “ to my nieces, Jane and Ann”, but Ann is dead, then Ann’s gift lapses
                                                                                                                             29
B. Ademption & Conversion (applies if bequest doesn’t work out)
   1. Problem stems from will’s ambulatory nature-speaks from death, but estate changes over time
   2. When the subject matter of the gift no longer exists/T no longer owns it/its nature has radically changed,
      then specific gift adeems (fails)
           a. E.g., T leaves house to 1st child & residue to other 3 kids, then sells home, gift of home adeems (Church)
                   i. If gift is to child or spouse argue WVA. If not, argue moral duty under WVA or unjust enrichment
                  ii. To avoid ademption, don’t give specific big gifts to specific people
   3. Only specific gifts adeem (Re Plowright)
           a. E.g., B given X amount of co. stock shares, but company taken over, court found general gift (Plowright)
          b. By its nature, general gifts cannot adeem
   4. If you can trace adeemed asset to other assets, then can claim. But if assets co-mingled to the point that
      that they can’t be separated out, then gift adeems, i.e., bequeathed property so altered it can’t be traced (Stevens)
           a.   E.g., bank account left in will was depleted, court found it had adeemed (Re Dupont)
           b. Use tracing a settlement tool, other party likely wants to avoid court cost

Conversion (rare)
   5. If asset is converted from realty to personalty, gift of realty fails bc it no longer exists, i.e., it adeems
                           Tracing does NOT apply here
   Gift Adeems IF:
           a.   T’s property is owned in partnership-Partnership Act says land owned by partnership is personalty
           b.   T gives leasee option to buy it, even if leasee doesn’t opt to buy until post death (Bennett)
           c.   T leaves condo to B, but sells pre death. Adeems, despite T’s intention that sale payments go to B
           d.   UNLESS contrary intention in will, even if will does not explicit state contrary intention (Pyle)
                     i. Does timing of will suggest that T intended to give realty to B as personalty? (Pyle-will dated same
                        day as lease/option to purchase = T intended that realty should pass as personalty)
           e. Beneficiaries can agree to ignore conversion
           f. Conversion applies in BC but not in Ontario, NB, Alta, NWT or Nunavut.

C. Abatement (common)
   1. When there is insufficient funds in estate to pay all debts
        a. Debts paid from
                 i. Residue first, but if not enough then from:
                ii. General, but if not enough then
               iii. Specific & demonstrative, but if not enough then
                             1.   All specific bequests are reduced pro rata, i.e., debt divided/everyone loses even amount
                  iv. Pecuniary, &
                   v. & last to go… Gifts of Land
                          1. S. 30 WA-Bene receiving land is responsible for debt assoc’d w/ land, i.e., mortgage
                                  a. UNLESS contrary intention in will
D. Election (rare)
       1. Where T gives away something to 3rd party that a B under the will actually owns (e.g., JT), either by
       mistake or on purpose, & then gives B something else under the will.
               c. T must be giving away property of B’s that’s freely alienable (so not life estate bc of
                   remainder rights)
               d. Both gifts must be in same instrument e.g., not 1 gift in will & another in inter vivos instrument
Policy-unclear from case law whether T must know what he’s doing for election to count

B has 3 choices:
                   Either take the thing that was already his and forgo the bequest or
                   Take the bequest and forgo their property that T gave away to 3rd party or
                   By agreement, take both & pay out other 3rd party beneficiary
                   I.e., if B wants to benefit from the will, he has to agree to its terms
                                                                                                                          30
 E. Satisfaction & Performance

   A. Weak Presumption against benefiting twice-includes Advancement
   B. Includes 2+ situations:
          a. Creditor repaid debt prior to T’s death & then gets repaid equal or higher amount in will too OR

             b. T makes advancement to child (or person for whom T stands in place of parent) to help estb child in life
                   i. Whether court finds advancement depends on T’s purpose for giving B benefit

                              ADVANCEMENT: What was T’s purpose in Helping Their Child?

     Gift = NOT advancement
             Paying off a flat non-life advancement debt, e.g., gambling = Gift

     Loan = IS an advancement
             Improving the Child’s Condition in Life = Loan
                 o E.g., Business debt, characterized as a loan if paying it off will lead to business advantage

     Debt = whether its characterized as gift or loan depends on purpose; see above (Taylor)

                    ii. If Advancement, then use HOTCHPOT to adjust estate distribution
                            1. Advancement is brought into account during distribution so child gets less from
                               estate to the extent that they were given funds by T beforehand
                             2. In practice, say in will that T made loan to B & it should/shouldn’t be taken into account

                         Limits to Advancement:
                        If advancement is made prior to will & will gives gift to child/B, its presumed that B takes both
                        If advancement was promised to child but child wasn’t paid prior to T signing will, then child has
                         choice: take the bequest in will OR advancement promised, but NOT both.

Policy-Court does not like to apply satisfaction & will find an exception if they can:

   C. REBUT claim of Satisfaction/Advancement with:
        a. T gave child inter vivos gift not loan, i.e., NOT an advancement (Taylor)
               i. If advancement, it was made prior to will, so child/B should get both gifts
        b. T intended to give this child/B more than sibs, e.g., more shares in partnership business (Lacon)
        c. Restitution/Unjust Enrichment (Garnet)
               i. Restitution/Quantum Meruit is NOT “satisfaction” of a debt (Garnet)
        d. Inter vivos gift differed in nature or amount from testamentary gift, so satisfaction doesn’t apply
               i. E.g., in life paid child’s $100,000 mortgage, in death left child $100,000 cash-no satisfaction/B takes both
               i. E.g., T left charity 10000lbs in life for building & 10000lbs in will for “capital improvement”= satisfaction
                         (Corbett)


                                      HOTCHPOT-from Wexler Article
     ADD HERE-profs said no need to know specifics, i.e., not doing math on exam




                                                                                                                             31
REVOCATION

Definitions

Direct Evidence-statements or writings made by T not contained in testamentary docs, e.g., instructions to lawyer
                             Only allowed for revocation by destruction/lost will & latent ambiguity
Indirect Evidence-surrounding circumstances
                             T’s character & job, amount, condition, extent of property, relationship w/family
                             Usually this is the only kind of admissible evidence


Steps to Interpret Will

PROBATE COURT-stage 1
   All About Determining T’s intention
    Probate Court rules on what T intended as last will
       o Many documents put together may constitute T’s last will (Lemage) SO:
              Last will may not be the only one admitted to probate & found to be last will (Lawer)
              If multiple wills & no rev clause in later will, if not inconsistent can be 1 will (Phalen-below)
Problem-when last will has a revocation clause, but 1st will no good, if effective, leads to intestacy (Lawer-below)

CONSTRUCTION COURT-stage 2
     Last will is identified by probate, if more problems Construction court interprets & determines it’s effect
     Construction court is stuck with what probate determined was the last will; only looking at that doc
Policy-that this court doesn’t look at T’s intention is eroding. Court may go outside of will to get T’s intention

Modes of Revocation: s. 14 WA
  1. Intentional Revocation
         a. Revocation by Instrument (express or implied revocation in new will)
         b. Revocation by Destruction (& lost will)
  2. Conditional Revocation (impute intent)
  3. Revocation by Marriage (intent irrelevant)

      Will is NOT revoked by a presumption of intention to revoke due to change in circumstances-s.14(2) WA
          o Although, change in circumstances can be used as some evidence to show T’s intention

I. Intentional Revocation

Intention is REQUIRED to successfully REVOKE will by:

Revocation by Instrument
               1. Express declaration of intention to revoke in instrument (writing or later will), s. 14(1)(c)WA
               2. Subsequent will w/ no express revocation clause; implied intention must be affirmatively proven
Revocation by Destruction
               3. Showing intention to revoke by destruction/lost will, s. 14(1)(d)WA OR

A. Revocation by Instrument (Express or Implied Revocation)

Express Revocation in Subsequent Will-Includes revoking by express declaration in writing or subsequent will
Implied Intention to Revoke-Subsequent Will w/ NO revocation clause (implied intention must be proven)

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Express Revocation in Subsequent Will or Other Writing
   1. Must comply with Will Formalities (Durance) BUT doesn’t have to be will, i.e., dispose of anything (Fraser)
         a. In practice, if the express revocation is contained in a letter (revoking doc) & not a subsequent
             will, file it on public record, so someone else can’t claim the will that the letter revoked is valid
   2. The word “revoke” not required, must just show intention to revoke (Durrance)

    3. Burden of Proving T had NO intention to revoke is on those attacking revocation clause (Lawer)
          a. IF express revocation clause, HIGH BAR to get over to disregard clause: (Test set out in McCarthy)
                  1. T did not intended revocation
                  2. A mere mistake of inserting a revocation clause is not itself enough to eliminate the clause (McCarty)
                         a. Mere mistake unlikely to eliminate clause BUT argue T lacked understanding of contents/no
                              knowledge or approval as set out in later case (Phalen)
                                   i. T executed 3 wills at same time all w/rev clauses-obvious lack of knowledge (Phalen)
                  3. If will has an express rev clause, P has heavy burden to show T didn’t intended to revoke
                  4. Indirect Evidence admitted wrt T’s intention must be around time will/rev clause was made.
Policy-hard to get around an express rev clause drafted by a lawyer

Admissible Evidence to Prove No Intention = Indirect Evidence only
        Evidence should go to T’s intention around time revocation clause was made (McCarthy)
        In practice, be strategic and throw in direct evidence anyway-judges are human, hard to totally disregard.

3 ways Probate Court can Eliminate Express Revocation Clause:
                          1. If effect of revocation clause would lead to intestacy (Lawer)
                                 a. Assume T did not want to die intestate
                                 b. Strong presumption against intestacy
                          2. Clear Mistake (Phalen)
                                 a. Bc T did not know & approve of will’s contents
                          3. Conditional Revocation (see below)
   a. If 2nd will failed & you can prove that revoking 1st will was conditional upon 2nd will’s effectiveness

Problem-Must impute intention, but T may not have had intention wrt revoking 1st will on basis that 2nd will valid

                                                     Spectrum of T’s Intention:
    Intention to Revoke to Disinherit                       Revoking but:                         Revoke & Immediately Draft New
        >No Conditional Revocation                          T Plans to Make New                   Will w/ few changes
    Express Revocation/2nd will stands                      Will Eventually                                >Conditional Revocation
                                                           Not enough for Conditional             Impute T’s intention that if 2nd will
                                                            Revocation by itself                   fails, T wants 1st will to stand

BACKGROUND: Some Canadian authority for applying conditional revocation, but authority is weak. UK case says that Express
Revocation clause in 2nd will stands UNLESS a lot of evidence that “revocation clause was wholly & solely referable to effectiveness
of new instrument” (RE Jones) ALTHOUGH: Merely contemplating making a new will is not enough to get over an express revo
clause (Re Jones). Partial conditional revocation for failed obliterations/alterations can also be found (Itter). In Canada, the ability of
the court to apply conditional revocation seems severely curtailed by Freel, where the court stated that if there is no ambiguity or
absurdity in the express revo clause itself, then it stands. However, there is room to develop this area of law in Canada (e.g., Service)

                 Factors: To get a Conditional Revocation (or partial) = T’s intention was to Disinherit

To Get Conditional Revocation/uphold 1st will or gift                  To Uphold Express Revocation Clause/2nd will
    Show T’s predominate intention was to disinherit                      A lot of time elapsed between 1st & 2nd will
    1st & 2nd will are very similar & made close in time                       1st/2nd wills= very different/suggests intent to disinherit
    No change in relationship btwn T & Benes                                   Relationship Change btwn T & B from 1st-2nd will
Remember-Strong presumption that Express Revocation applies (Freel) & weak authority for applying cond’l revo in Canada
                                                                                                                                           33
Implied Revocation by Subsequent Will w/no Rev Clause
    Situation comes up where there are 2 or more wills without a rev clause in later will

    Steps:
             1.   More than will can be admitted to probate & together constitute last will (Lemage)
             2.   Probate judge will determine whether later will implied a revocation of earlier wills
             3.   To find answer: Ask if wills are mutually exclusive/inconsistent: (Phalen)
             4.   Admissible Evidence-indirect only but good strategy to throw in direct evidence

3 Possible Results:
                   a. If not inconsistent, then all admitted to constitute one will
                   b. If wills are partially inconsistent, then later one is admitted & earlier wills are admitted
                      only to the extent they are consistent
                   c. If wholly inconsistent, then only last will is admitted
Factors:
                           If legacies in 1st/2nd will are mostly to same people, in mostly same amount, e.g., when
                                  adding up 1st/2nd will, gift basically doubled, then inconsistency likely. If both were
                                  allowed to stand, abatement likely as not enough in estate to cover all gifts (Jenner)

B. Revocation by Destruction
                        Need intention to destroy + sufficient destruction

3 requirements to successfully destroy a will-S.14(d) WA
    1. Physical Act of Destruction (burning, tearing or other destructive act)
                    Even if intention is clear, Act of Destruction must be sufficient (Bell v Matthewman)
                                 Crumpling it up and throwing it away is insufficient
                                 Writing the word cancel is insufficient (Bell)
                         Only destroyed part of the will is revoked, so whatever can be reassembled is in (Re Nun)
                         **Destroying the signature section destroys the WHOLE will (Re Jones)

    2. Done by T or someone in T’s presence at T’s direction
              Destruction must be done in T’s presence regardless of T’s instructions (Re Dodd)

   3. T had Intention to Revoke
                  Symbolic destruction is not enough, must have both INTENTION + Act of Destruction (Lovejoy)
*Compare w/ obliteration….no intention required (can argue its obliteration if no intent/you want will to fail)

C. Presumption of Revocation by Destruction w/ Intention to Revoke for Lost Wills
              NO will at probate BUT copy of will available = will deemed to be destroyed (Lajoie)
                    o In Absence of Contrary Evidence (presumption rebutted w/ T’s statements & circumstances)
Policy: Weak presumption & easily displaced; e.g., non-fatal mutilation still requires proof of intent (Re Norris)
     I.E., If nothing indicating dissatisfaction with will or beneficiaries, then unlikely presumption will stand

      Factors:
                     Look at whether T had intention to revoke by destruction
                          o   Direct & Indirect Evidence admissible
                          o   T suffering from mental problems when he tried to destroy? May rebut intention (Re Norris)
                          o   Has relationship btwn T & benes changed? If not, maybe no intent to destroy (Lajoie)
                     Is the effect that T would die intestate?
                          o   Presumption against intestacy
                     Copy will be admitted to probate if greater probability that T did not intend to revoke
                                                                                                                            34
Reconstructing Original Will w/o a Copy of Will
    HIGH BAR-If person can reconstruct what was in the will, then MAY be admissible (Re Perry)
           o   Must be free from suspicious circumstances & certain, i.e., w/o leaving any legacies out; despite intestacy

Policy-Unlike opposite UK position, In Canada, court found it is NOT better to give effect to T’s primary
intention IF it means leaving legacies out (Re Perry)

Admissibility of Evidence-Direct & Indirect Evidence are admissible for destruction & lost wills

II. Conditional Revocation
     Remedy for Express Revocation and failed obliterations/alterations. See Above under Express Revocation

III. Revocation by Marriage & Gift Lapse by End of Marriage

       B. Legal Marriage revokes will UNLESS will says it is made “in contemplation of the marriage”s.15 WA
             1. INTENTION is IRRELEVANT-Whether T obviously intended to include new spouse is
             irrelevant; MUST comply with strict wording/express declaration in will (Re: Pluto)
             2. A reference to fiancé is NOT enough
             3. WA does not take account of CL spouses, so CL relationship may/may not revoke will
                     a) Can argue Charter
Policy-
*Maybe will should not be revoked by marriage, just left as is and adjusted for spouse in interpretation
*Also, maybe birth of child is more significant and should serve to revoke (Mark’s thoughts)

       C. GIFT LAPSE to FORMER SPOUSE-Where will refers to spouse, but T & spouse have a judicial
       separation (separation k’s don’t count) or divorce, then former spouse is treated as if they predeceased &
       any gift to former spouse lapses-s. 16 WA
               1. Must be court ordered separation, not just separation k. Gift stands if not judicially separated
               2. Can opt out of this by expressing contrary intention in will, i.e., gift is valid despite s. 16.

REVIVAL & REPUBLICATION

Republication and Revival = Doctrines involving codicils  almost never amend a will by codicil now that
wills are electronic, and can be easily changed and reprinted.

Codicils still used where testator may be losing capacity and may not want to deal with the dispositions in the
whole will, and instead just with the isolated incident. If the codicil fails, Wills still stands.

REPUBLICATION – brings the whole will forward to the date of the codicil – significance in s. 20 WA – if
will is revived or re-executed, deemed to be dated as at date of codicil.
    BUT principle that republication makes the will speak as if it had been re-executed at the date of the
        codicil is not a rigid formula or technical rule, it’s a useful & flexible tool for ascertaining T’s intentions
        down to latest date they were expressed (Re Hardyman’s Trust)
            o T knew that B’s spouse was dead, but didn’t elect to remove the bequest ot her, so gift was held
                to apply to B’s 2nd wife, even though T didn’t know her. (Re Hardyman’s Trust)

REVIVAL  governed by s. 18 WA and often forgotten. (McNab)
           A will or part of a will that has been in any manner revoked is revived only:
           o a) by a will made in accordance with this Act; or
           o b) by a codicil made in accordance with this Act
           o that shows an intention to give effect to the will or part that was revoked.
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CONSTRUCTION
I. Probate Process
      A. Occurs before Construction Court
              1. Through Probate, estate’s assets transmitted to executor & then to beneficiaries
      B. Purpose is to Determine What Constitutes T’s last Will
      C. Whole Question is Intention (LeCras)
              1. T’s general intention & T’s specific intention to revoke
              2. Before court admits a testamentary doc to probate, must be satisfied that it reflects T’s wishes
              3. Ask: Error in will resulting in T having no knowledge/approval of will’s contents? (LeCras)
                                            Knowledge & Approval (Morris)
     If will complied w/formalities & T read will (or had it read to him) then court presumes knowledge & approval,
      capacity, duly executed absent contrary evidence –
          o Such as error, capacity, undue influence, fraud, etc
   Knowledge & approval are imputed & T is bound by will if:
          o T delegates drafting & executed the will created by the draftsman, acting inside authority BUT
    IF ERROR-draftsman must bring it to T’s attention for T to have knowledge & approval of contents
    Signing the will after reading it is NOT necessarily knowledge & approval. T must consciously understand the
      contents before signing to be held to have knowledge & approval of will’s contents
    Determine whether it was error or just an ambiguity, i.e., section of will should stand after correcting ambiguity (Cargill)
    Court can sever one part of will without invalidating the rest (Russell/Vout)
   REMEDY:
       If T had no knowledge & approval bc of error, court CANNOT add words to the will to fix it (Haidl), esp if
          error is apparent from words in will (Sturn SCC) BUT it can OMIT words & the leave it to Construction
          Court to sort out.
       Court can swap names for reciprocal wills signing errors (Brander/Re Knott)

 Two Kinds of Probate:
     Common Form-Probate granted thru exec’s ex parte application to BCSC registry-no formal court procedure
     Solemn Form-Probate granted in BCSC as final decree, after all parties give notice

*Once it determines T’s last will, matter goes to Construction Court if further problems
       D. Crucial to Interpretation because Construction Court can only work w/ what it gets from probate
              1. Fact that doc admitted to probate doesn’t stop Construction Court from finding it has no
                  operative effect (LeCras)

       E. Differs from Construction
              1. Construction tries to find out what Will really means (interprets)

       F. Interpretation in Construction Court
              1. A will should be construed so as to give effect to T’s intentions. Ascertain T’s intentions from
                  language of will read in light of circumstances & context in which the will was made (Perrin)
              2. Surrounding Circumstances (indirect evidence) is admissible from start to determine T’s
                  intention, even if there’s no ambiguity in will. (Haidl)
              3. Rules of construction should be applied in reasonable way in context of T’s intentions
              4. BUT Court can’t redraft the will bc it thinks T didn’t mean to do what Will plainly states
                   Language of Will +T’s intentions = Interpretation of Will’s Meaning

II. Applications to Construe the Will
A. Presumption: The Will Speaks from Date of Death Absent a Contrary Intention
               1. S.20(1) WA-“Unless a contrary intention appears in the will, a will speaks & takes effect as if
                   it had been made immediately before the death of the T wrt property”
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     Exception- Description of B’s: Presumption that person who fits the description in the will on the date
      the will was made takes the gift even if the description later becomes inaccurate UNLESS words used
      create a contrary intention (Re Strombeck)
            o    T left gift to all employees who worked at hotel for 6 months-use date of will to determine who qualifies
                 as B (Re Strombeck)

     Onus is on the attackers of the gift to show a contrary intention (RE Sikes)

Result of Contrary Intention = will speaks from day its made not date of death. (Re Sikes)

What Constitutes a Contrary Intention?

     Potentially property described in the will, which increases/decreases or changes after the will is made

Generic Gift-If increased/decreased property described is generic, a contrary intention must be clearly stated (Goodlad)
    Just because the word “my” comes before gift does NOT mean it is a specific gift (Goodlad)
            o    “My” annuities held to be all the T’s annuities that she held at her death (Goodlad)

Specific Gift-By its nature, this property is incapable of increase or decrease in amount (e.g., “my piano”)
    I.e., T intended to give this particular item to B & no other, e.g., old piano, not newer, more expensive piano (re Sikes)
    Specific gift = a contrary intention & will speaks from date of the will (Re Sikes)

To distinguish Specific v Generic Gift-ask if the gift was capable of increase or decrease v specific item

Admissible Evidence-where gift described is specific; court may take into consideration all circumstances
relating to the property that is relevant to identifying the thing described & determining T’s intention. (Re Bird)
       T left B property w/specific address. At death, house torn down, but T still had new houses w/ diff address on lot.
        Change in description didn’t override T’s intention to give lot. Court looked at extrinsic evidence (RE Bird)

B. Other WA Statutory Presumptions

     Below presumptions are subject to contrary intention in will & not contrary intention found by extrinsic evidence.
      SO technically can’t use evidence outside of will to construe away presumptions BUT REGARDLESS
         o Court will LIKELY use extrinsic evidence to determine T’s intention & not start w/ narrow
             presumption to determine meaning (Re Bird/Haidl) More likely to apply by default if T’s will is silent

BUT Presumptions can have significant force (Goodlad)
   Description of “new annuities” not enough to make gift specific, so presumption that will spoke from death meant
      all annuities. (Goodlad)
                   a. Wills speaks from death-s.20(2)WA
                   b. Land = leaseholds and freeholds-s.22 WA
                   c. Real & Personal Property = includes any real or personal property to which the
                       description extends & incl property covered by power to appointment-s. 23(1)WA
                   d. W/o words of limitation, Real Property passes in fee simple/whole of T’s interest-s.24WA
                   e. Lapsed bequests fall into residue-s.21WA
                     f. If T bequests to T/other’s “heir/next of kin”= goes to same people & shares as if intestate-s.25WA
                     g. Meaning of dying without issue-(means all issue dead before T, not dead after T)-s.26WA
                     h. Unless ltd by finite # of years, Real Property passed to Trustee = fee simple/whole interest-s.27WA
                     i. Unlimited devise to Trustees of any property not expressly disposed of in will-s.31WA
                     j. Gifts to predeceased issue/sibling of T don’t lapse if B has issue/pass as if B was intestate-s.29WA
                     k. Mortgage on land gifted to B gets paid out of B’s land interest despite general debt clause-s.30WA
                     l.   Executor is trustee of the Residue-s.31WA
                                                                                                                             37
C. General Principles

Presumption Against Intestacy-if T made a will can presume he didn’t want to die intestate

The Latter of Irreconcilable Gifts Prevails-E.g., to husband for use absolutely then to kids for their use absolutely-kids win

Presumption in Favor of Early Vesting-To avoid gift failure, court will find that gift vested when T died. Doesn’t matter
that contingent/remainder B didn’t survive a life tenant. Now court may supply missing words to remedy

Give Effect to T’s Intentions

D. Extrinsic Evidence

     Court may consider extrinsic evidence regardless of whether there is an ambiguity or not (Haidl)
     Court should ascertain all facts known to T at date of will & put itself in T’s place to determine language
      he uses (Haidl)

     Difference between Direct & Indirect is the intended function of the evidence

Indirect Evidence-
   a. Surrounding circs known to T at date of will. Used to explain what T actually wrote NOT what he intended to write
   b. Can include T’s non-testamentary statements & writings, but not direct declarations of T’s intent

Direct Evidence-Direct evidence of T’s intentions, e.g., declarations made to lawyer

E. Ambiguities

     If there is an ambiguity in will, determine if it is a patent or latent ambiguity
     Difference is significant because it determines whether you can get direct evidence in or not

    If will reads “one of John’s sons” then know there is more than one son and ambiguity = PATENT (indirect only)
    If will reads “John’s son”-knowing T has more than 1 son req’s extrinsic evidence = LATENT (both direct & indirect)

Direct Evidence-ok when T’s ambiguous about which person or thing he meant to express (Hiscocks)

Indirect Evidence-court will look at language in will + surrounding circumstances (Re Newman)

Patent ambiguity = ambiguity arises on the face of the instrument
    Only indirect evidence is admissible
    I.e., explaining intention through words in the will as explained by the circumstances

Latent ambiguity = ambiguity arises ONLY by reference to extrinsic circumstances
    Direct evidence + Indirect evidence is admissible if you can establish a latent ambiguity
    I.e., can refer to T’s statements + surrounding circumstances to establish T’s intentions

Result if Court Cannot Determine who gift Goes to = Void for Uncertainty; court doesn’t like this so even if one
person is only a hair more likely to be the B, it will give to this B rather than find whole gift void (Re Newman)

Error v Ambiguity = determine if problem in will is error or ambiguity. If error, section of will may fail; if
ambiguity, will may stand after clarification.
    T left parcel 2 to B, but he really owned #1. Gift failed, no ambiguity. Strict approach, court likely more liberal now (Cargill)

                                                                                                                                    38
F. Supplying Missing Words

     Remember: probate has omitted words as remedy for error, etc. Construction Court works w/ what it has

Can “add words” to get to T’s intended meaning (really just interpreting words certain way not adding) IF intention can
be gleaned from words of will w/o extrinsic evidence (Re Sturn 1979 SCC /Douet 1980 BCCA) BUT:
         Indirect evidence (surr circs) IS admissible immed to construe meaning of will/T’s intention (Haidl Sask CA 1980)

Policy-bc of Haidl, despite earlier SCC/BCCA rulings, in practice, court will likely have relevant evidence before it

Factor: If T drafted his own will, court likely will take more liberal approach (Douet 1978 BCCA)

G. Words & Phrases

Cardinal Rule of Construction: A will should be construed so as to give effect to T’s intentions. Ascertain T’s
intentions from language of will read in light of circumstances & context in which the will was made (Perrin)

Ask:
    What is the ordinary popular/legal meaning of the term & is there more than one meaning?
    Considering the context & circumstances, what did T mean by the term he used in the will? (Perrin)
    Only rely on definitions of terms from cases if you can’t determine T’s intended meaning of word (Perrin)
     T’s intention is determined by situation of the reasonable person in T’s position (Re Brannon)
     Technical legal words construed liberally when homemade will or T has no significant legal knowledge (Weir)

“Money”
     STEPS to Defining:
          2. Start with Rule in Shelmer’s = Money is cash or choses in action/debt-stocks excluded
          3. If gift description in will doesn’t fit this, move to more flexible approach in Perrin
                  a) Attempt to Ascertain T’s Intention- “Money” should be informed by context of the will
                          (1) Does Shelmer’s strict construction lead to intestacy? Presumption against Intestacy
                          (2) Any indication that T intended “money” to mean more than cash or debt?
                          (3) Other Factors to Consider to Determine T’s intention:
                                                  T’s Age & Education
                                                  T’s relationship w/Bs
                                                  Provisions made for other Bs
                                                  Ordinary meaning of term in question at date of will
                                                  Whether T drafted their own will w/o lawyer (i.e., $ means more than cash)
          *If these factors suggest T intended more that cash, etc then construe “money” more liberally to include more

                                  (4) If you can’t ascertain T’s intention, THEN look to cases for definitions of words
                                  (5) Money has both popular & legal meaning. Scope of “money” definition not yet
                                      defined. Could include all of T’s personal estate, although probably doesn’t include
                                      real property, but it depends on circs (Perrin)

“Issue”
     Don’t give “issue” technical meaning, determine meaning from whole will (Hamel aff’d in Weir)
     Interpretation of “issue” is modified by other word and/or phrases (Weir)
     Primary meaning of “issue” in will is descendents to the remotest degree & determined per capita (Re Gardner)
     Secondary meaning of “issue” = children/children only where will makes it clear that’s what T intends (Linklater)
          o Where modified by “parent” in clause requiring construction, possible to conclude T intended “issue” to
              mean children (Re Spencer)
     Must be clear intention by T to displace primary meaning & phrase in which “issue” is modified by “parent” must
      be examined in the context of the will as a whole (Re Chilver)
                                                                                                                           39
INCAPACITY PLANNING
*Presumption of Capacity (until shown otherwise) underlines all of these methods

I. Committees
     Governed by the Patients Property Act (PPA) & impacted by the Mental Health Act
     PPA allows court appointment of Committee= Someone to whom a person/charge is committed
    A. Two types of committees:
          o Committee of the Estate – to take over financial affairs, etc.
          o Committee of the Person – to take over personal affairs, health care, etc.
                  Parties who can apply to become Committee are Next of Kin & PGT
                  Usually both are done by 1 person, but can be done by 2 different people
    B. PPA procedure – Applicant seeking Committeeship must:
                  Secure 2 affidavits from medical professionals swearing that they have examined patient
                     & determined person is incapable of managing their affairs or themselves
          o Incapacity must be from mental infirmity arising from disease, age, drugs or otherwise
                  Provide family details; Next of Kin + PGT must be served/given notice.
     PGT may be appointed as Committee of Estate & can be Committee of the Person (but unusual).
          o PGT can become Committee through regular channels, OR
          o Under s. 6(1) – if a Mental Health Act certificate has been issued, then PGT is automatically
              made Committee of Estate until:
                  Certificate is removed or another person is appointed the Committee
     Committee CANNOT change T’s will
     Downside of Committee: onerous procedure, high cost-$3000 if uncontested, takes time-8-12 weeks.

Problem = lose ALL rights – cannot make any decisions about yourself or your finances, but sometimes person
can do some things but not others. Also doesn’t deal very well with care of person – more concerned with
patients’ property.
NOTE: if Court makes Committee Order, a PoA OR RA is terminated unless court otherwise orders-s. 19.1 PPA

Alternatives: POA or RA: New leg was designed to replace this. Adult patient now involved in decisions.
__________________________________________________________________________________________
ELDER ABUSE
Governed by the Adult Guardianship Act Part 3
    o BC Provincial Court has jurisdiction

Definitions: *Contemplates that nothing has happened yet, but risk is enough

abuse - deliberate mistreatment of an adult that causes physical, emotional or other harm, including damage or
loss of assets. Includes intimidation, humiliation, over-medication, withholding meds, etc.

neglect - failure to provide necessary assistance or care or attention that adult would need that would cause
serious harm to self or assets.

self-neglect - includes living in grossly unsanitary conditions, suffering from malnutrition, suffering from
untreated illness, creating hazardous situations.

S. 2 Guiding Principles-shows tension in law
    o Entitles adult to live in manner they wish, so long as capable. BUT provides safety net if things get too bad
    o Presumption of capability
    o Person should receive most effective but least intrusive form of support

                                                                                                                      40
Procedures available when Elder is at risk of abuse: (AGA part 3)

        A. Person can make anonymous report to VIHC (Health Authority)
        B. If you report, VIHC must determine if adult needs help. If so, VIHC has many options.
        C. Can refer adult to services, get PGT involved, or conduct thorough investigation.
        D. Investigations:
               1. Include interviewing anyone and VIHC can enter premises by court order.
        E. Imp-section 59-allows emergency assistance, where designated agency believes adult is abused, to
        prevent serious danger or serious loss to asset, can enter without court order & remove adult to safety.
        F. Mental Health Act provision applies-doctor can certify that person is incapable for short period of
        time (48 hrs followed by 30 days to be repeated as nec).
               1. When MHA certificate signed, PGT becomes Committee of Estate. Automatic/No court process
        G. What VIHC can do after Investigation-
               1. Can get interim order to restrain abuser from contact with adult after notice to both parties
               2. Can propose support & care plan, which can be approved by court.
               3. Court can issue restraining order for 6 months.

Problem-FOI-lawyers can’t get E’s confidential info or standing in court w/o Committee giving ok. So if no Committee
& trying to help elderly-go to BCSC (takes time) to apply for restraining order using court’s Parens Patriae jurisdiction.
Don’t go under AGA bc can’t get standing unless VIHC, provincial court has jurisdiction over AGA= no Parens Patriae .

II. Powers of Attorney
     Governed by Power of Attorney Act
General Power of Attorney
              1. Agent relationship
              2. ONLY covers LEGAL and FINANCIAL decisions
              3. Principal must have capacity to instruct agent, once lost, then POA no longer effective.

Enduring Power of Attorney
             1. Does NOT lapse after incapacity of principal-Enduring PA dies when principal dies
             2. POA can make decisions for you after incapacity
             3. ONLY covers LEGAL and FINANCIAL decisions NOT health & personal care
                     a. POA can do anything that you can do wrt legal and financial decisions
                                                      Downside of PoA

       1.    Don’t know yet in BC what counts “triggering event”, which will cause springing PA to kick in
       2.    No check & balance to ensure PA doing what they’re supposed to (but fiduciaries/PGT can investigate)
       3.    Doesn’t cover health care matters
       4.    PA may frustrate T’s testamentary wishes (this is why PA should have copy of will)

Problem-PA can clean out your bank account. PA not allowed to convert $ for PA’s benefit. POA is fiduciary,
so although not in PA law itself, will be held to account as fiduciary (Fraser)

                 4. Agreement MUST state that it endures after incapacity
                 5. SPRINGING-Until recently couldn’t say it became effective only AFTER incapacity. It was effective
                 from time it was signed. BUT “springing” Enduring PA’s are now legitimate. Becomes effective when
                 signed BUT stipulate that exercise of it is suspended until infirmity arises (Goodrich 2004 BCCA)
                         a) PROBLEM-What triggers PA springing into action? Not worked out in BC law.
                                 (1) In NY, the PA contract itself refers to what qualifies as triggering event, e.g., “when you
                                  receive completed attached form from DR” RA can be springing too- See RAA s. 15

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In Practice-
     Have signed, kept w/ lawyer w/ instructions not to release UNLESS confirmed by DR that client incapacitated.
             o Exception-where PA is spouse, they are deemed trustworthy, so EPA held by them in safety deposit-not
               legal scheme, spouse just trustworthy
     Good idea to put in PA contract that attorney can use all T’s assets in T’s lifetime for T’s benefit-protects attorney
        from having “even hand” to protect remainder
     PA can have copy of T’s will (not original bc of fraud concerns), some lawyers won’t bc of privilege-but its ok,
        BUT cannot change T’s will.

Policy-self-determination, planning in case of incapacity, clear guidelines, rights to advocacy for all adults, etc.

Limitations of PA led gov’t to enacted new laws: Representation Agreement Act & Health Care Act, Adult Guardianship Act, and
amended PGT Act. Designed to bring new ways of dealing with substitute decision making to the law.

III. Representation Agreements
     Contract between 2 parties, so not “appointing” Representative
Purpose-to provide mechanism to allow adults to arrange in advance how, when & by whom decisions about
their health & personal care, finances or other matters will be made if they become incapable of making
independent decisions. Avoids need for court to appoint someone-s. 2 RAA

Starting Point-Presumption of Capability-we are all presumed to be capable unless we show we aren’t-s3 RAA

Representative’s Duties:
      General duty under s. 16(1)RAA to act honestly and in good faith; exercise care, diligence and skill of RP;
      and act within authority of RA (reflects common law rules)

        When Rep is making decisions:
                  Must, under s. 16(2) RAA consult with adult to extent reasonable and comply with adult’s
                     wishes to extent reasonable (HUGE CHANGE).
                          Limitation on this under 16(2.1) – if person is incapacitated, wishes may be
                            reasonable, but not consistent from day to day  RA may include provision that
                            says Rep can just rely on wishes expressed while adult was capable.
                  If adult’s wishes are unknown, there is nothing in the RA and have no ability to comply
                     since unreasonable, then can consider what adult’s wishes were at time they were
                     capacitated – s. 16(3) RAA
                  If don’t know adult’s wishes, then can look back to expressed wishes & beliefs-s. 16(4) RAA
                  Obligated to follow living wills
                  Also general CL duty to act in their best interests

2 Kinds of Representation Agreements
       A. S.7-Standard Agreement
                   For people with limited capacity.
                   Rep can make decs about restricted things: Personal care, financial matters (routine), payment of
                         bill, purchase of food, accommodation, investments, health care (ltd), legal services.

Capacity Required for s. 7 Agreement-s.8 RAA (see pg. 19)
                     b) Adult can enter s.7 agreement even though incapable of making contract!
                             (1) BUT if incapable of entering a contract then can’t enter a PA, so fills gap.
Problems-
    Basics of Undue Influence are included as factors being ok to enter agreement.
          o SO NO PROTECTION from undue influence

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                   i. Although, NOW-Ability for PGT to investigate RA and PA.
       Not required that lawyer or notary make these agreements
           o For s. 9 agreements you do HAVE to see a lawyer
       No statutory form of agreement required

Policy-concerns re limited capacity requirement are balanced w/ giving some control to people who normally would have
no control over their lives

        B. S.9 Agreements (Enhanced Agreements)
               1. Adult can authorize someone to do certain things listed in s. 9.
               2. Now after leg amendment, S. 9 Rep can do anything that PA can do + medical decisions
               3. S. 9 not valid unless adult consults w/ lawyer

RA s. 9 Problems
   Historically, Rep Authority to act on financial matters wasn’t as great as POAs
   Enormous Formalities-compared to POA, many pages to fill out, etc. Protection overkill for s. 9.

Result-Lawyers use POA for financial & legal decision making. RA for medical & personal care decisions

How do living wills fit in?
   LW is something for clients who want end of life decisions-e.g., no tubes, breathing apparatus, etc.
   Incorporated into RA-so RA Rep must follow, legally binding
   Doctors are also supposed to follow, but they fear getting sued, so send it to court. *Problem with just a
      LW-no one appointed that agrees to follow it. So may have to go to court to get Committee appointed.

See RA Act s. 16 & 30(1)-Also Termination provisions: If spouse divorces, void.

IV. Estate Planning for Incapacitated Adults

Committees/PA/RA Limits on Estate (tax) Planning for Incapacitated Adults:
   Until recently, case law said Committees couldn’t do anything to diminish value of T’s estate unless absolutely necessary :

BUT now apply NEW TEST:
Would a reasonable & prudent business person think the transfer in question was beneficial for patient
& their family given the circumstances known at time & possibilities that may arise in future (O’Hagan)

Factors:
   Look at age, size of estate, was transfer risky? Is there a chance that E will recover from infirmity, i.e. if
   they recover, will they be negatively affected if estate diminished?

KEY Limit-CANNOT alienate settlor’s money. Settlor must be able to get it back, e.g., revocable trust

Example: Protecting E’s Assets from Gold digger New Spouse
CAN put money into trust w/E as beneficiary BUT must be a revocable trust so E can get his assets back.
DESPITE the fact that PA is following T’s will by adhering to testamentary wishes by giving gift over to B’s in
will. IMP-marriage revokes a will. PA cannot alienate E’s assets. Intestate rules must still be able to apply.
**TO DO:
     PAs should instead create revocable trust & say it should follow intestacy distribution-although
        spouse would still get something SO: ALSO Argue marriage contract was unconscionable. Court
        may buy this, especially if marriage only lasts 5 months prior to death

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V. Default-What happens if you don’t have any planning in place?
   o Ideal world = Committee/Real world = decisions have to be made sooner

Health Care Act (fills gap for medical decisions if no one is appointed)
HCA S. 3-presumption of capability.
HCA S. 16-Confirms CL position that Consent is not required for medical emergencies.

Under Health Care Act-Health Care Professionals
    Can appoint a temporary decision maker for the patient for that particular medical intervention, i.e., a
      dentist, can appoint for dental decisions, not for broken leg-s.14-18 HCA
    Appointment only lasts for 21 days-then must reappoint
         o Unclear-whether treatment has to occur within 21 days or just appointment
    Priority of Choice for appointed decision maker is based on family connections, i.e., Dad, mom, etc.
         o Health Care professional can pick E’s son who brought E in, BUT must give notice to other next
              of kin & wait 72 hours to see if objections come in.
PROBLEMS:
         o Non-life threatening case may become life threatening.
         o What happens if objection? Big gap-no board set up anymore.
         o Fine line between emergency (life threatening) v non-emergency




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INCORPORATION by REFERENCE, SECRET TRUSTS & POUR OVER WILLS
I. Incorporation by Reference (the Law)
        A. A will or codicil not duly executed (fails for lack of formality) OR another document (Allen/Currie)
        B. Can be validly incorporated into T’s will by a later, duly executed codicil/will IF:
              1. The doc in question, existed prior to the will seeking to incorporate it (Currie)
              2. The doc in question, as described in the will is capable of identification (Allen)
              3. The doc in question is beyond doubt the doc referred to in the will (Allen/Currie/Re M)
              4. Oral evidence is admissible to prove that there is no doubt as to the doc’s identity (Allen)
              5. Oral Evidence will NOT be admissible IF: (Allen aff’d in Re M)
                      a) It’s clear the doc was NOT in existence at time of will OR
                      b) The description is too vague to identify a specific document as the one will referred to
              6. Factors relieving doubt as to testamentary doc’s identity: (Allen)
                      a) T wrote the doc in question
                      b) Doc found locked up in T’s possession at death
                      c) If its in sealed envelope with “T’s will” written on it
                      d) After a diligent search no other testamentary doc is found
                      e) Could have had another testamentary doc if it is destroyed (doesn’t cause id problem)
              7. Onus is on person seeking incorporation to prove compliance w/ above conditions (Re M)

    E.g., “This is a codicil to my last will”, should suffice if only 1 not duly executed will found (Allen)

STEPS Person seeking incorporation must use to prove incorporation:
  1) Has will/codicil purporting to incorporate another doc been DULY EXECUTED? If so, move on;
  2) List date of will & date of doc-Did doc in question exist prior to will/codicil referring to it? If so, move on;
  3) Is the doc sufficiently described in the will/codicil so that it is identifiable & not too vague? If so, go on;
  4) Is the doc in question beyond a doubt the doc referred to in the will/codicil? TO Prove;
          a. Can use oral evidence
          b. See factors from Allen above
   IF you can Prove these Steps, then doc is Not an attempt by T to reserve power to make future
     dispositions in unattested & unsigned instrument contrary to the Wills Act, i.e., not void for uncertainty

Two ways to use Incorporation by Reference:

   1) Legally Ineffective Memorandum
             Testator provides explicit knowledge that incorporation cannot be effective
                   i. Only imposes a moral obligation on the executor/trustee
                  ii. May be useful for the small things, knick-knacks and other such trivial matters
             T must make it clear in Will that the memo is NOT incorporated into the will
              “Without imposing any legal obligation, I hope my exec will dispose of X, Y and Z in accordance w/ these my wishes”

   2) Formal Memorandum (Must Comply with Wills Act to be Valid bc Part of Will)
       Properly & validly incorporated by reference
          Strictly construed document
          For items of significant value (ie: piano, artwork)
       T likely needs to make the reference very specific, i.e., :
              “In accordance with the memo signed by me on X (prior) date & attached to this will,”
              Memo should also identify itself as the memo referred to in the will
Policy-
Doc not yet in existence can’t be incorporated bc it would let T change will w/o complying w/formalities (Currie)

    IF IT IS NOT A VALID INCORPORATION, ASK IF IT IS A SECRET TRUST
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II. Secret & Semi-Secret Trusts
*Even if formalities of WA are not met, equity may give effect to T’s intention to use Secret/Semi-Secret Trusts

      A. Requirements to Establish a Secret/Semi-Secret Trust
   1. Terms/purpose of Trust must be communicated to devisee in T’s lifetime (Re M/Hayman)
   2. Devisee, expressly or by conduct, must agree to it prior to will execution (Re M/Hayman)
                     “It is my wish that…” wording insufficient to show Ts intention to create a trust (Hayman)
                            o If these words, w/o more, are used, B is free to do whatever she wants w/ $ (Hayman)
                     Not ok to just give instructions to trustee in envelope marked “open after my death”
                     Trust sought must be consistent with the terms of the will (Re M)

BASIC PRICIPLE: If a property owner makes a gift of that property based on a promise by the donee that he
will deal with the property in a particular way, there is a resulting obligation on the donee to deal with that
property in the way anticipated which can be enforced by the court – a form of trust. (Re Gardner)
     Applies to inter vivos, intestacy & wills (Re Gardner)

       B. Secret Trust
             i.      On face of will, looks like T passed both legal & beneficial interest to “B”, BUT actually
                  only passed legal interest so that “B”, who has agreed to really be the trustee, can hold it for
                  benefit of secret B.

    Used to hide illegitimate children from spouse & provide for their benefit & keep actual items owned by
     T out of public spotlight

                 Semi-Secret Trusts
               i.        When it’s apparent on the face of the will that the recipient is not intended to receive the
                     beneficial interest in the property, but the identity of the beneficiaries or the purposes of the
                     trust are not disclosed in the will, i.e., details are in document outside of the will

Difference between Secret & Semi-Secret Trusts:
    Appearance of Legal & Beneficial Interests
          o Secret Trusts-it looks like the beneficial interest is vested in person holding legal interest
          o In Semi-Secret Trusts, its obvious that there is a trust & beneficial interest is going to someone
              else, but not listed who or what trust’s purpose is.
    IMP Distinction-
          o Secret Trusts only require that T communicate & trustee agrees to trust prior to T’s death
          o Semi-Secret Trusts require T communicate trust to Trustee PRIOR to trust’s creation/will (Johnson)

Policy-Johnson has been held up in Canada, BUT ask if this distinction makes sense!

*Semi-Secret Trusts are NOT usually enforced in Canada, but Secret Trusts are usually valid

III. Pour Over Wills
       A. Gives money or property in will (usually the residue of the estate) to an existing trust
       B. If the trust is revocable:
                    ii. Can’t be used as a mechanism to make future dispositions, which don’t have to comply
                        w/WA
                             1. I.e., T can’t change amounts or beneficiaries in trust
                   iii. If trust revocation power only leaves the T power to destroy the trust it’s ok (Re Schintz)

RESULT if NO VALID Incorporation, Secret Trust, OR Pour Over = Void for Uncertainty
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