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Mussio Goodman LLP Wins Again in the British Columbia Court of Appeal

Posted on by Mussio Goodman

Mussio Goodman LLP is proud to announce a successful appeal by lawyers Karol Suprynowicz and Brian Alcaide of a ruling with respect to our client’s entitlement to her stepmother’s estate. This decision was featured in the Take Five BCCA Case Summary Digest.

The exact limits of the Court’s curative power under s. 58 of the WESA, in allowing records, documents or writings that contain a Deceased’s fixed and final intention to have testamentary effect, despite falling short of WESA’s formalities under s. 37, have been stretched and put to the test since becoming law on March 31, 2014.

The facts of Paige v. Noel, 2025 BCCA 358 are striking because of how the chambers judge in Kissel Estate (Re), 2025 BCSC 260 was willing to stretch the application of this curative provision to text messages exchanged between the Deceased and her appointed executor.

Text messages have traditionally been viewed as a medium for casual communication between individuals, which prior to 2014 ran contrary to the rigid methods of execution required to ensure the validity of a will.

The chambers judge initially found that this informal method of communication was enough for the curative provisions of WESA to kick in and disinherit our client, the Deceased’s stepdaughter, from her share of 50% of the residue of the Estate.

The chambers judge held that the words “Jennifer is out” communicated by the Deceased to her executor by text message, along with extrinsic evidence of her limited engagement with legal professionals and a falling out between her and her stepdaughter, were enough to represent her fixed and final intention to disinherit our client.

Importantly, the Deceased explicitly communicated to her executor via email that “the current will that you have will stand until I get a new one”.

While the chambers judge was focused on the Deceased’s intended disinheritance, she failed to take into account the Deceased’s awareness and respect for the formal process of executing a new will.  In other words, although she expressed an intention to leave her stepdaughter out of her new will at one point, she clearly expressed her desire for her will to stand until a new one was executed.

A key consideration applied by the Court of Appeal was the “further departure” principle: “the further a document departs from formal requirements, the harder it is for a court to find it represents a Deceased’s testamentary intention” – Estate of Young, 2015 BCSC 182.

The Court of Appeal’s characterization of text messages and how they should be treated in the context of fixed and final intention was aptly summarized in para. 43 of the judgment:

“Here, had the deceased’s communications with Michelle on October 6 and 15, 2022 taken place by telephone or in person, no application under s. 58 would be possible. The fact that these communications were recorded in an electronic record does not transform a casual conversation into a legally operative testamentary record unless the content of that conversation demonstrates a fixed and final intention to effect a testamentary disposition.”

The Court of Appeal held that although the chambers correctly identified the principles relevant in making a s. 58 determination, it was her application of those principles that revealed a fundamental misconception of the meaning of “fixed and final intention” in the context of the Court’s curative powers.

The Court of Appeal discusses how the chambers judge appears to have considered a fixed and final intention to be equivalent to an unwavering stated intention rather than an intention that the document represents the testamentary intention of the Deceased at the material time.

The Respondent argued unsuccessfully that s. 58 does not require an intention that the document itself be testamentary. At para. 48 the Court of Appeal applied the modern approach of statutory interpretation to the words of s. 58(2) and determined that the document itself needs to reflect the Deceased’s fixed and final testamentary intention. Otherwise, there would be no basis on which the document could be admitted into probate.

The Court held that the Deceased’s intention could not be considered fixed and final because it was clear that she intended to effect any alteration by making a new will, and until she did so, the 2014 will was to remain operative.

Ultimately, the Court of Appeal unanimously ruled that the chambers judge made a palpable and overriding error by failing to conclude that the Deceased intended the old will to stand until a new will was carried out, which in turn ensured our client’s entitlement to her 50% share of the estate as expressed in the old will.

Mussio Goodman Successfully Removes an Executor in a Conflict of Interest with the Estate

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Mussio Goodman is pleased to announced our success in removing an executor who is in a conflict of interest with the administration of the estate.

The deceased mother was survived by six children who were named as equal beneficiaries to her estate. Two of the siblings were named co-executors under the will, with one of them eventually renouncing his executorship due to a conflict of interest.

We were recently successful in an application put forth by our client and her sister to remove the remaining executrix as a result of her disqualifying conflict of interest and inability to act in the best interests of all beneficiaries.

This case involved a complicated and acrimonious family history, with severe mistrust in place between the siblings. Prior to the passing of the mother, her estate was being managed by Solus trust as a result of a previous court order. The executrix and 3 other siblings then commenced an action attempting to subvert Solus’ authority and power to sell the estate property.

A certificate of pending litigation was placed on the property and our client and her sister were named defendants in that action, along with Solus. This action was later abandoned but not discontinued or withdrawn.

We argued that the executrix was a in a disqualifying conflict of interest because if she discontinued the action, she would be under a duty to recover costs from herself and her co-plaintiffs.

Justice Girn agreed, writing:

[56] I conclude that by commencing actions against the Estate, Gail could be liable to pay for costs to the Estate. This puts Gail in a disabling conflict of interest.

There is no way to get around this conflict of interest.

We also argued that the executrix’s position with respect to unpaid rent from one of the siblings demonstrated her bias towards that particular beneficiary. Again, the Court agreed with our position:

[57] As well, Gail’s steadfast position relating to debts owed by Thomas to the Estate have demonstrated that she is not capable of being neutral in order to act in the best interests of all of the beneficiaries and not just Thomas. As executrix of the Estate, she must consider whether rent is owing by Thomas to the Estate. By refusing to even look into this, in my view, Gail’s position endangers the administration of the Estate to the detriment of all of the beneficiaries.

[58] While Gail may believe that Hazel wanted Thomas’ work in maintaining and improving the Dewdney Trunk Property to be compensated, the evidence does not support this and is not consistent with the position of two of the beneficiaries, Susan and Patricia. In particular, the evidence reflects Gail’s strong animosity towards Patricia for her decision to seek Solus’ appointment.

[59] I note that Hazel’s will is silent on the issue of rent payable by Thomas. She could have considered Thomas’ contribution to the farm but chose not to. Gail

cannot impose her views of what Hazel’s wishes were in respect of Thomas living on the property and his contributions.

Removing an executor is never easy. However, this case demonstrates Mussio Goodman’s steadfast commitment to resolving estate matters that involve complicated family dynamics and difficult emotions. Mussio Goodman pays careful attention to detail and employs creative strategies to ensure we develop strong legal arguments while obtaining the best evidence to support them in court.

 

Mussio Goodman Successful at Varying Will at Trial

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Mussio Goodman’s latest case Webber v. Sullivan, 2019 BCSC 1522 involved a deceased mother who disinherited her two daughters in favor of her two sons.

The will left the entire estate to one of the sons, the other having been provided for with a substantial gift before the mother passed away. The estate was valued at $434,000.

The case dealt with lengthy and difficult family history, with a number of complicating dynamics including allegations of child abuse. The defendant sons denied that our clients were entitled to anything from the estate. The defendants made allegations of estrangement and relied on the deceased’s will that indicated our clients were “uninvolved”.

At trial we argued that the will did not make adequate provision to our two disinherited clients. Evidence of continued contact with deceased through phone calls and visits was adduced. It was argued that the deceased had not met her moral obligation to provide something for our clients, and there was no credible evidence to suggest that our clients had done anything that would justify the deceased cutting them completely out of the will.

Madam Justice Horsman agreed, writing:

[172] Tataryn instructs that, if the size of the estate permits and there are no circumstances negating an obligation, a testator should make some provision for adult children in a will. In the present case, the size of Betty’s estate does permit some provision for the plaintiffs, and I conclude that there are no circumstances which would negate Betty’s moral obligation to the plaintiffs. In particular, the evidence does not establish any wrongful conduct on the part of the plaintiffs, or an estrangement with Betty that would justify their complete disinheritance.

As a result the will was varied 15% to provide for our clients. This case highlights that even where there is a difficult relationship between child and parent, there are moral obligations on a will-maker to provide for his or her children in the will. If you have been disinherited unfairly by your parent contact Mussio Goodman to seek your portion of the estate.

Mussio Goodman Breaks New Legal Ground With Latest Court Decision

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Mussio Goodman is pleased to announce our success with the judgment of Terezakis v. Ekins, 2018 BCSC 249. This application involved the plaintiff applying for leave under s.151 of the Wills, Estates and Succession Act, SBC 2009 c. 13. to secure standing to bring an action on behalf of the Estate of Aikaterini Terezakis, the deceased.

This decision is the first successful case in British Columbia where a beneficiary or intestate successor has been granted leave, based on necessity alone, to bring an action on behalf of an estate to sue for a resulting trust over a property that was transfered by the deceased before death.

Mussio Goodman successfully argued in Terezakis that the plaintiff had fulfilled the requisite criterion to obtain standing. The criterion being:

  1. the beneficiary made reasonable efforts to cause the personal representative to commence or defend the proceeding;
  2. the beneficiary gave notice of the application to the personal representatives and any other beneficiaries;
  3. the beneficiary is acting in good faith; and
  4. it is necessary or expedient for the protection of the estate or the interest of the beneficiary or intestate successor for the proceeding to be brought or defended.

The Honorable Madam Justice Morellato opined at paragraph 31 in Terezakis that the court can grant leave under s. 151 on the criterion of necessity alone:

“[31]        Ms. Ekins is in a difficult position.  She is the executor of the Estate, a beneficiary under the Will and also the owner in fee simple of the Richmond Property which Mr. T. Terezakis claims she holds in trust for the Estate, an allegation which Ms. Ekins vigorously disputes.  Ms. Ekins deposed in her affidavit sworn January 31, 2017 that, “in her capacity as Executor” of the Estate, she intend to take a neutral position” in the Action.  By taking a “neutral position”, Ms. Ekins is clearly unwilling to prosecute the claims articulated by Mr. T. Terezakis, on behalf of the Estate,  since a key issue in this suit would challenge her ownership interest in the Richmond Property.  Further, because of her asserted interest in the Richmond Property, she is in a conflict of interest, making her effectively “unable to proceed” on behalf of the estate.  In this light, given that I have found the other pre-conditions of s. 151 have been satisfied, I conclude that I may exercise my discretion to grant leave under s. 151 on the criterion of “necessity” alone.”

This precedent setting judgment shows that obtaining legal counsel with experience, knowledge, and expertise in estate litigation can get you results previously unheard of. At Mussio Goodman, we provide our Wills and Estates clients with the requisite experience, knowledge, and expertise.

Mussio Goodman Obtains Court Costs For Client After Successful Verdict at Trial

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In what may be the final instalment of the Sharma estate litigation matter, Wes Mussio and Anthony Eden recently appeared before Madame Justice Griffin to argue our clients’ entitlement to costs in the recent successful decision. In the trial decision, which can be found here, Madame Justice Griffin ordered a variation of the Deceased’s will in favour of our clients, totalling 67% of the residue of the estate. The lawsuit was vigorously defended by Victor Sharma, the youngest brother of our clients.

Typically, costs are ordered by the Court from the unsuccessful party to the successful party. However, Victor Sharma argued that the Plaintiffs’ cost should come from the whole of the estate, and not from him personally, because he was only following his mother’s wishes in defending the lawsuit. To the contrary, we argued that the normal costs rule should apply, given that the lawsuit was defended so vigorously defended by Victor Sharma, and did not benefit the estate in the traditional sense.

Madame Justice Griffin agreed with our rationale. She noted that if costs were awarded from the estate in such a proceeding, they would essentially come from the plaintiffs’ entitlement. This would be most unfair, given that Victor Sharma was the party who defended the action all the way to an 11 day trial. Therefore, Madame Justice Griffin decided in our clients’ favour, awarding costs to our clients from the Defendant, personally.

 Any litigation is a daunting task that requires a skilled team. Estate litigation can be even more nuanced. Mussio Goodman has the skill and experience to handle all varieties of Estate issues. If you have, or think you may have a potential estate dispute, give Mussio Goodman a call or submit an online inquiry for a free consultation.

Mussio Goodman Obtains Another Successful Result in Court

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Mussio Goodman is pleased to announce our success in the British Columbia Supreme Court case of Ciarniello v. James, 2016 BCSC 1699. The case involved a BC wills variation claim by the Plaintiff, who was the second wife of a Vancouver dentist and businessman. 

The Plaintiff sued her husband’s estate, claiming that he did not adequately provide for her in his will. The deceased had five children, two with the Plaintiff and three from a previous marriage. The will split the estate equally between his five children but left out the Plaintiff.

In this case, Wesley Mussio and Anthony Eden of Mussio Goodman represented the Defendants, the three children from the first family.

British Columbia Wills and Estate law is very unique when compared to other jurisdictions, as it features legislation which allows adult children or spouses to apply to the Court to vary the will of a deceased person. 

A Court will overturn a will of a deceased person and vary it with terms it deems to be “just, adequate, or equitable”, if a variety of criteria are met. However, the criteria which warrants variation of a will is routinely a point of contention between the parties, especially when there are millions of dollars at stake.  

The BC wills variation regime often pits family members against each other in lengthy and contested litigation. A particularly common family dynamic in BC wills variation claims involve blended families. Where the deceased has multiple children with different spouses, there is typically an increased possibility for animosity between family members. This age-old problem can lead to some fairly complex litigation. The lawyers at Mussio Goodman are well versed in the legal and practical aspects of such situations and the impact on Wills and Estate law in British Columbia.

The first family disagreed that the deceased’s will ought to be varied in the Plaintiff’s favour, mainly because their father had transferred significant assets to the Plaintiff before his death. Furthermore, they argued that their father relied on complicated tax planning reasons for leaving the Plaintiff out of his will.  

Mr. Justice Sigurdson heard arguments from all the parties over four days of trial. The evidence revealed that the estate was over $11M in total, and that the Plaintiff had been transferred significant assets prior to the death of the Deceased. In spite of this, the Plaintiff argued that she should have received half of the marital assets on the death of the Deceased, as would have been required on a divorce. Furthermore, the Plaintiff argued that she had not been maintained by the deceased to continue a standard of living to which she had grown accustomed.

On the other hand, we argued on behalf of our clients that the court should give due consideration to the considerable assets already transferred to the Plaintiff, and the taxes paid by the estate for which the Plaintiff was not responsible.

Of importance, it was revealed through the course of litigation that a company transferred to the Plaintiff before the death of the deceased owed debts of close to $1.5M dollars to the deceased’s estate. This key evidence was uncovered through the discovery process of the litigation by the efforts of the Mussio Goodman team. 

After reviewing all the evidence, Mr. Justice Sigurdson ordered that the will be varied so that the Plaintiff is entitled to 25% of the Estate. In making his decision, Mr. Justice Sigurdson placed a great deal of weight on the fact that without a variation of the will, the Plaintiff would be unable to re-pay the debt to the Estate. So while the Plaintiff will receive an increased share from the estate, the practical consequence is that the she must use her increased share to satisfy the debt owing to the estate. 

This case demonstrates how complicated BC Wills and Estate litigation can be. There are often significant investigations in the course of litigation as well as complicated practical issues to take into account, such as tax planning consequences. Litigation can be a very risky endeavour and there are very rarely “slam dunk” cases. At Mussio Goodman, we provide our BC Wills and Estate litigation clients with the experience, knowledge, and expertise to deal with any situation that may arise throughout the course of a lawsuit.