Case law regarding estate litigation procedures, claims and remedies is increasingly coming to the forefront of the Court’s docket, given the aging population and the ever-increasing value of land. Simply put, owning a mortgage-free home now creates (at least) a 1 million dollar estate, and with that amount of money involved it is important to know your legal rights.
The last half of 2022 provided us with many decisions involving the practice of estate litigation. Here are the highlights of those cases:
Legal Concepts
- Pinsonneault v. Courtney, 2002 BCSC 120 – The legal concepts of “resulting trust” and “constructive trust.”
- A “resulting trust” was explained when the title to property is in one party’s name, but that party, because he or she is a fiduciary or gave no value for the property, is under an obligation to return it to the original title owner.
- A “constructive trust” operates as a remedy, where good conscience requires it, and may be imposed by the court after finding that one party has been unjustly enriched. As such, it does not delve into intention, but rather focuses on after-the-fact fairness.
Procedural Issues
- Simpson v. Zaste 2022 BCCA 208 – You have 180 days from Grant of Probate to act.
- The court stated “The proper tool to remedy any concern … their father failed to make adequate provision for their support, was a wills variation claim under Division 6 of WESA, which would allow for a proper balancing of interests in all of the circumstances. That tool, however, was lost due to the expiry of the statutory limitation, leading to the present application.”
- The court stated “The proper tool to remedy any concern … their father failed to make adequate provision for their support, was a wills variation claim under Division 6 of WESA, which would allow for a proper balancing of interests in all of the circumstances. That tool, however, was lost due to the expiry of the statutory limitation, leading to the present application.”
- Hoggan v Silvey 2022 BCCA 176 – Beneficiaries to a Will have the ability to bring/pursue claims.
- Beneficiaries can remove executors for not doing their duties or the removal of an executor for their involvement in manipulating a Will.
- Berlinguette Estate (Re) 2022 BCSC 1098 – The best interest of the estate is the only factor to consider when removing an executor.
- When the executor applied to have this notice side aside, the Court stated “the only consideration on an application to remove a notice of dispute is whether to do so is in the best interests of the estate.” Specifically, whether the current executor can act with detachment and even-handedness and without animosity.
- Siegerist v. Siegerist, 2022 BCSC 1427 – Application for solicitor Will drafting file.
- The court noted that there can be an implied waiver:
- If a party advances a state of mind defence and relies on legal advice to justify their conduct (Soprema Inc. v. Wolrige Mahon LLP, 2016 BCCA 471 at para. 22;);
- The content of a conversation where the existence of a conversation between a client and solicitor is adduced as evidence of the client’s good faith conduct (Schwartz Estate v. Kwinter, 2008 ABQB 123 at para. 19.);
- A party may waive the privilege by directly raising in a pleading or proceeding the legal advice that they received, thereby putting that advice in issue (McDermott v. McDermott, 2013 BCSC 534 at para. 116.);
- A party may waive the privilege by denying that they gave certain instructions to their lawyer: (York v. Gilligan (1996), 19 B.C.L.R. (3d) 40 (S.C.) para. 14.); and
- A waiver may be found to have occurred more generally where fairness and consistency require this result due to selective but limited disclosure by the party resisting production. The court summarized the applicable principles in this respect in United States v. Meng, 2020 BCSC 1461.
- The court noted that there can be an implied waiver:
Marriage-Like Relationships
- Coad v. Lariviere 2022 BCCA 222 – Marriage like relationship is not a formulaic, check-list type approach.
- The lower court, when tasked to assess what a “marriage-like” relationship is, the judge followed a very formulaic, checklist-like approach to this concept. The Court of Appeal disagreed, noting “there is no specific definition of whether a marriage-like relationship exists. The precise definitions of the past are no longer valid in our changing world. Such relationships are no longer defined by financial dependence, sexual relationships or the mingling of property and finances.”
- Razafsha v. Heidary 2022 BCSC 1357 – “Marriage-like relationship” is what the parties intended and what their relationship looked like to the outside world.
- The takeaway from this aspect of the decision is the importance of further evidence such as financial documents that say they were common law, and the casual conversations they would have with others about their relationship status.
Challenges to a Will
- Pascuzzi v. Pascuzzi 2022 BCSC 907– Even with independent and adult children, the testator is still expected to make adequate, just, and equitable provisions that coincide with their moral obligations and legal obligations to this adult child.
- The relevant factors to consider are:
- The relationship between the testator and claimant, including abandonment, neglect, and estrangement by one or the other;
- The size of the estate;
- Contributions by the claimant;
- Reasonably held expectations of the claimant;
- Standard of living of the testator and claimant;
- Gifts and benefits made by the testator outside the Will;
- Testator’s reasons for disinheriting;
- Financial need and other personal circumstances, including disability, of the claimant;
- Misconduct or poor character of the claimant; and
- Competing claimants and other beneficiaries.
- The relevant factors to consider are:
- Grace Estate, 2022 BCSC 1283 –Presumption of due execution still stands
- The proposition that the presumption of due execution applies where the evidence establishes that the testator signed the Will in accordance with the requisite formalities. If a Will can be shown to meet the requirements of being in writing, signed, and witnessed, then the Will maker was presumed to have the capacity, and the Will is valid. It is now up to those challenging that Will to rebut/disprove by way of suspicious circumstances surrounding the making of the Will.
- The proposition that the presumption of due execution applies where the evidence establishes that the testator signed the Will in accordance with the requisite formalities. If a Will can be shown to meet the requirements of being in writing, signed, and witnessed, then the Will maker was presumed to have the capacity, and the Will is valid. It is now up to those challenging that Will to rebut/disprove by way of suspicious circumstances surrounding the making of the Will.
- Jung Estate v. Jung Estate, 2022 BCSC 1298 – How to rebut the presumption of capacity/presumption of due execution.
- Essentially the court wants credible and reliable evidence surrounding the making of the Will, what sort of capacity the Will maker had (despite it being presumed, it still can be challenged), and that the Will maker did have a free choice in the matter. Again, a presumption of capacity does not mean capacity is accepted to be true, it just means it has to be challenged for the court to consider it not true; the one challenging must convince the court of it on the standard of “The standard of proof is a balance of probabilities; however, the case law makes clear that the evidence is to be scrutinized in accordance with the gravity of the suspicions raised.”
Costs, Remedial Measures, and Participants’ Conduct
- Kolic v. Kolic, 2022 BCSC 1448 – “Misconduct is deserving of reproof and rebuke.”
- The applicants were seeking special costs against Mary (the beneficiary) given her conduct in the litigation. Counsel describes her conduct as that of a “poster child” for bad behaviour. The applicants seek an order that such costs be payable from Mary Kolic’s share of the estate.
- Lee v Chau, 2022, BCSC 1676 – Collateral attack is the concept of taking a second kick at the can for judgment and re-litigating issues.
- The court stated, in dismissing her FLA claim, “the law seeks a finality to litigation. For this reason, litigants must put their best foot forward when first called upon to establish a claim. In subsequent proceedings, a litigant may not attack an order pronounced by a court of competent jurisdiction except as provided by law for that express purpose. In other words, generally speaking, litigants are entitled to only one “bite at the cherry” when they bring a claim.”
- Cowper-Smith v. Morgan, 2022 BCSC 2070 – Costs when it comes to litigation raised by a beneficiary against the estate.
- Because executors are required to participate in litigation, the executor is generally indemnified through a special costs award against all reasonable litigation costs incurred in the fulfilment of their role.
- Angelis v. Siermy, 2022 BCSC 31 – The doctrine of clean hands.
- The concept is simple but important; “a person who seeks an equitable remedy must come to court with clean hands. If they have engaged in misconduct and rely on it to make their claim, they will be barred from equitable relief.”
If you need help determining what your rights are regarding an estate dispute and how to put your best case forward, contact LK Law to help you better understand your options.
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Scott Somers Lawyer | Estate Planning & Litigation Langley |
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing