The Wills Estates and Succession Act (WESA) has been in force since March 31, 2014. It overhauled the existing legislation by repealing six different acts to form a unified piece of legislation for this area of law. The hope behind the new legislation was to streamline the process by affording greater clarity to those dealing with wills and estate issues, from people drafting wills to those acting as executors of an estate.
Specifically in the context of making wills variation claims, the WESA did not make substantial changes and mirrors the older Wills Variation Act. However, some changes have been made that will have an impact as more cases are tried under the new legislation. Section 2 of the WESA acknowledges both marriages and “marriage-like” relationships of at least two years including same sex marriages. There is also no reference to “co-habitation” in the WESA. Spouses end their common law relationships when one or both persons terminate the relationship. The supposed termination of a marriage, after a two-year separation where only one party’s intention is to live separate and apart, has a major impact as it means the loss of a married spouse’s right to vary a will. Additionally, the WESA has not included a definition of children for the purposes of wills variation claims and also extended the limitation period to bring a claim to 180 days.
Here are some further general changes that the WESA introduced:
For a will to be considered valid, the WESA outlines the following formal technical requirements must be met (s.37 (1)):
The WESA further outlines who can witness a will:
Witnesses to wills
40 (1) Signing witnesses to a will-maker’s signature must be 19 years of age or older.(2) A person may witness a will even though he or she may receive a gift under it, but the gift may be void under section 43 [gifts to witnesses].
(3) A will is not invalid only because a witness was, at the time the will was signed by the will-maker, or afterwards became, legally incapable of proving the will, unless the witness was not 19 years of age or older at the time the will was signed by the will-maker.
After the introduction of the WESA, a higher degree of mental capacity is needed to revoke a will. A will can only be revoked if a person (s. 55):
Prior to the introduction of the WESA the requirements for a valid will were absolute and the Courts could not circumvent them. However, with the introduction of section 58 in the WESA, judges have the power to order a document, record, writing or marking on a will to be fully effective as a person’s last will.
Prior to the introduction of the Wills Estates and Succession Act, the previous Wills Act had very strict statutory execution requirements for the creation of a will with no provisions that the courts could use to get around these requirements. The WESA has introduced, through section 58, the ability for the courts to show more leniencies with finding a will valid where it otherwise may be invalid due to a failure to conform to the strict execution requirements. This is a beneficial section for those that believe a record that was drafted after the will by the will-maker more accurately reflects their intentions.
58 (1) In this section, “record” includes data that
(a) is recorded or stored electronically,
(b) can be read by a person, and
(c) is capable of reproduction in a visible form.
S. 58 goes on to state that the courts can use the curing powers to order that the document, record, writing or marking on a will represents:
The strict formal requirements of making a will that include having it signed at the end by the will-maker, being witnessed by two people and having it in writing can thus be negotiated around through the use of this section. Section 58 gives the courts power to recognize such documents or writings as being fully effective:
(3) Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made
(a) as the will or part of the will of the deceased person,
(b) as a revocation, alteration or revival of a will of the deceased person, or
(c) as the testamentary intention of the deceased person.
The final part of section 58 allows illegible words or provisions to be ignored and the original provisions or word to be reinstated. There does need to be evidence to establish what the original word or provision was before courts can order this.
Rectification of a Will
Section 59 deals with the rectification of wills, allowing the courts to essentially fix a will. By application the courts can rectify a will in three situations:
An application to rectify a will must be made within 180 days from the date of the grant being issued unless leave is granted by the court to make an application after this date. Extrinsic evidence of the will-maker’s intent is permitted to shed light on the Will not accurately being drafted to reflect the intentions.
Section 60 of the Wills, Estate and Succession Act states that the courts may vary a will in favour of a child or a spouse of the deceased. Prior to the new legislation being drafted, the BC Law Institute recommended changes to remove adult children as claimants and allow contracting out of spousal rights. These radical recommendations were not adopted, but some changes were made. Under the old Act, a married spouse retained the right to make a wills variation claim, even if the couple has lived separate and apart for a significant period of time. The WESA now clearly defines the term spouse:
When a person is a spouse under this Act:
2 (1) Unless subsection (2) applies, 2 persons are spouses of each other for the purposes of this Act if they were both alive immediately before a relevant time and
(a) they were married to each other, or
(b) they had lived with each other in a marriage-like relationship for at least 2 years.
(2) Two persons cease being spouses of each other for the purposes of this Act if,
(a) in the case of a marriage, an event occurs that causes an interest in family property, as defined in Part 5 [Property Division] of the Family Law Act, to arise, or
(b) in the case of a marriage-like relationship, one or both persons terminate the relationship.
(2.1) For the purposes of this Act, spouses are not considered to have separated if, within one year after separation,
(a) they begin to live together again and the primary purpose for doing so is to reconcile, and
(b) they continue to live together for one or more periods, totaling at least 90 days.
(3) A relevant time for the purposes of subsection (1) is the date of death of one of the persons unless this Act specifies another time as the relevant time.
Children are not specifically defined in the WESA but can include a natural child and an adopted child. The WESA in section 3, details that the relationship of parent and child arising from the adoption of a child must be established at any generation in order to determine succession in accordance with the Adoption Act, respecting the effect of adoption. Further, a child is not entitled to inherit from the estate of his/her pre-adoption (natural) parent except if stated in the Will and vice versa.
Under the Wills, Estate and Succession Act a 180 day time limit after probate is issued applies for commencing a wills variation action.
Time limit and service
61 (1) A proceeding commenced by a person claiming the benefit of this Division must not be heard by the court unless
(a) the proceeding is commenced within 180 days from the date the representation grant is issued in British Columbia,
(b) a copy of the initiating pleading or petition has been served on the executor of the will no later than 30 days after the expiry of the 180 day period referred to in paragraph (a) unless the court, before or after the expiration of the 30 days, extends the time for service, and
(c) if there are minor children of the will-maker, or if the spouse or a child of the will-maker is mentally incapable, a copy of the initiating pleading or petition has been served on the Public Guardian and Trustee.
Note that the time limit does not apply to claims of unjust enrichment and constructive trusts. However, time is usually of the essence as the estate proceeds may well be distributed and no longer available for a judgment. It is thus important to seek legal advice as soon as possible.
When a wills variation claim is commenced, the court will look at whether or not the Will provided for the spouse or child in a way that is “adequate, just and equitable”. It is unnecessary for the claimant to show financial need but rather, the court looks at the legal and moral obligation of the deceased to provide for the child or spouse. A wills variation application is made under s. 60 of the Wills, Estates and Succession Act:
Maintenance from estate
60. Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.
Legal norms involve obligations that law would impose during the lifetime of a deceased if the question of provision were to arise. Moral norms are society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards. Legal claims take precedence over moral claims but if the size of the estate permits, all claims should be met.
The leading authority on a testator’s duty to make adequate provisions for the proper maintenance and support of a spouse or child is Tataryn v. Tataryn Estate (1994), 3 E.T.R. (2d) 229. The Court in this case identified two competing interests:
The testator’s testamentary freedom is subordinate to the moral and legal obligations to ensure that the spouse or child is adequately, justly and equitably provided for in the Will. The court will apply an objective test, meaning that it will consider what others in society would do in the same circumstances, based on societal norms – legal and moral norms.
The moral claim of independent adult children is more tenuous than the moral claim of spouses or dependent adult children. Examples of circumstances which bring forward a moral duty of a testator to recognize claims of adult children are (Dalziel v. Bradford, (1985) B.C.J. No. 2754 and Price v. Lypchuk, (1987), 11 B.C.L.R. (2d) 371 (C.A.):
When examining whether an adult child has a claim to their parent’s estate when they have been disinherited, the Court looks for the following factors to determine whether a variation of the will should be made on behalf of the adult child claimant Dunsdon v. Dunsdon, 2012 BCSC 1274:
Circumstances that will negate the moral obligation of a testatrix are “valid and rational” reasons for disinheritance. To constitute “valid and rational” reasons justifying disinheritance, the reason must be based on true facts and the reason must be logically connected to the act of disinheritance.
Some contemporary cases highlight the application of the law regarding factors that are taken into consideration when adult children are disinherited. In BH v JH 2015 BCSC 1551, no reasons for disinheritance were provided for an estate worth $671,000. The defendant child lived with the deceased, caring for him in the years before her death and had no career. The disinherited children had their own careers and supported their families through modest means. Evidence showed positive relationships between the two children and father leading to an award of $50,000 each to the two disinherited children.
In Gordienko v. Gordienko, 2005 BCSC 1855 a son wanted to vary his father’s Will. The reasons for disinheritance were that “… I had not heard from him for 15 years, possibly, and do not know where he is. Therefore, I do not feel he deserves mention in my last will and testament.” The Court found that these reasons were not valid or rational. On the issue of companionship, it was said that just because the defendants provided companionship to the deceased before he died it was not of a magnitude that would preclude provision for the plaintiff. The disinherited child was awarded 40% of the Estate.
For practical purposes it is important that a claimant keep track of all the above factors and how they apply to their particular circumstance. An in-depth reflection of the relationship between parent and child is needed to evaluate whether there were long periods of estrangement and the reasons for these estrangements (fault of the Testator/ Testatrix).
There are various sections with the Wills, Estates and Succession Act that give courts power to determine who can control an estate when there are legal proceedings involved. The purpose of such sections is to ensure that the estate assets are being safeguarded during this time. With section 103 of the WESA, courts may appoint an individual as the administrator of the estate when there is pending legal proceedings. This is to guard against estate funds being used by defendants in defending legal actions brought against the estate. The difference from older legislation is that the wording of the section is interpreted more broadly and can relate to an action, suit, cause, matter, preliminary motion, petition proceeding or requisition. A simple application for an estate grant may now also be included under this definition.
103 (1) The court may appoint a person as the administrator of the estate of a deceased person pending a proceeding
(a) in which the validity of the will of the deceased person is in issue, or
(b) to obtain or revoke a representation grant.
(2) The administrator of an estate
(a) has all the rights, powers and duties of a personal representative, other than the right to distribute the estate,
(b) is subject to the control of the court and must act under its direction, and
(c) is entitled to reasonable compensation under the Trustee Act or as otherwise determined by the court.
There is always a presumption in favour of appointing a neutral third party to step in to administer an estate but in smaller estates there can be agreements made in relation to co-administrating and agreeing that no funds are to be used from the estate during this time.
Section 132 – Special Circumstances
The WESA also includes section 132 relating to special circumstances in which the courts can make an appointment of an administrator of an estate:
132 (1) Despite sections 130 and 131, the court may appoint as administrator of an estate any person the court considers appropriate if, because of special circumstances, the court considers it appropriate to do so.
(2) The appointment of an administrator under subsection (1) may be
(a) conditional or unconditional, and
(b) made for general, special or limited purposes.
The less favorable aspect of this section as opposed to section 103 is that the courts in that section can determine the administrator’s remuneration and are not forced to comply with the Trustee Act.
Section 151 – Derivative Lawsuits for the Estate
Another section in the WESA that allows a person other than the executor to have some control over the estate is section 151. This allows a beneficiary to take leave from the court to take over part of the estate relating to derivative lawsuits on behalf of the estate. This scenario usually arises where the executor declines to pursue or defend a legal claim for the estate. If the court grants this, the beneficiary has the power to litigate on behalf of the estate. The scenarios where the courts can grant leave relate to actions pertaining to:
Cases that this remedy is more likely to be utilized are in situations where the executor refuses to pursue possible assets of the estate. If the executor was also the power of attorney for the deceased while they were alive they might not wish to pursue an accounting of the estate prior to the death. Further, the executor might not want to pursue a claim of a resulting trust where they were a joint tenant with the right of survivorship. If a presumption of resulting trust is found, the property would make up part of the estate’s assets for distribution.
Apart from satisfying the formal requirement for a valid will, the will-maker must have the requisite testamentary capacity to make a will. Thus, one way of overturning the Will is to show the deceased lacked testamentary capacity at the time the Will was made.
Banks v. Goodfellow (1870 LR 5 QB 549), sets out four criteria for the test of mental capacity to make a Will.
In Leger v. Poirier (1944 3 D.L.R. 1 SCC), the Supreme Court of Canada said that a “disposing mind and memory” is:
…capable to comprehend, of its own initiative and volition, the essential elements of Will making, property, objects, just claims to consideration, revocation of existing disposition, and the like.
In Bates v. Finley (2002 BCSC 159), the court held:
…[The testator] ought to be capable of making his will with an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, of the persons who are the objects of his bounty, and the manner in which it is to be distributed between them. It is not necessary that he should view his will with the eye of a lawyer, and comprehend its provisions in their legal form. It is sufficient if he has such a mind and memory as will enable him to understand the elements of which it is composed, and the disposition of his property in its simple forms.
The burden of proving testamentary capacity is on the party trying to support the Will, but there is a presumption of capacity where the Will has been duly executed, with the requisite formalities, after having been read by or to a testator who appeared to understand it. That presumption may be rebutted by evidence of suspicious circumstances, in which case the burden reverts to the party supporting the Will to prove testamentary capacity on the balance of probabilities (Vout v. Hay, SCC 1995).
The “suspicious circumstances” must do more than create “a general miasma of suspicion;” they must create “a specific and focused suspicion that the testator may not have known and approved of the contents of the will.” (Clark v. Nash BCCA 1989)
Circumstances that courts have found to be suspicious include:
Ultimately, medical evidence regarding the capacity of the testator at the time the Will was made is important as is the impression of family and friends that knew the testator at the time of the Will.
Prior to the Wills, Estate and Succession Act it was extremely difficult to successfully challenge the validity of the Will on the grounds of undue influence. The burden of proof was on the person challenging the Will and they would then have to pay special costs when they failed in proving any such fraud. However, under s.52 of the WESA, the onus of disproving undue influence has shifted to the person who has received the gift under the Will:
52. In a proceeding, if a person claims that a will or any provision of it resulted from another person
(a) being in a position where the potential for dependence or domination of the will-maker was present, and
(b) using that position to unduly influence the will-maker to make the will or the provision of it that is challenged, and establishes that the other person was in a position where the potential for dependence or domination of the will-maker was present, the party seeking to defend the will or the provision of it that is challenged or to uphold the gift has the onus of establishing that the person in the position where the potential for dependence or domination of the will-maker was present did not exercise undue influence over the will-maker with respect to the will or the provision of it that is challenged.
Thus, once a relationship of dependence on another person is established the party supporting the validity of the Will then has to prove that he or she did not exercise undue influence. Section 52 may therefore allow for a greater number of cases alleging undue influence to be successful.
A further effect of section 52 is that lawyers who are drafting wills must be especially aware of potential concerns at the time of making a will that could include:
Where an individual is not able to seek a variation of the Will or the validity of the Will cannot be challenged, there is potentially an unjust enrichment case.
In Pettkus v. Becker ( 2 S.C.R. 834), the Supreme Court of Canada held that:
In any unjust enrichment claim, the plaintiff must establish three elements: an enrichment of or benefit to the defendant, a corresponding deprivation of the plaintiff, and the absence of a juristic reason for the enrichment
The Court in Kerr v. Baranow (2011 SCC 10) explained these elements as follows at paras. 38-40:
 For the first requirement — enrichment — the plaintiff must show that he or she gave something to the defendant which the defendant received and retained. The benefit need not be retained permanently, but there must be a benefit which has enriched the defendant and which can be restored to the plaintiff in specie or by money…
 Turning to the second element — a corresponding deprivation — the plaintiff’s loss is material only if the defendant has gained a benefit or been enriched… That is why the second requirement obligates the plaintiff to establish not simply that the defendant has been enriched, but also that the enrichment corresponds to a deprivation which the plaintiff has suffered…
 The third element of an unjust enrichment claim is that the benefit and corresponding detriment must have occurred without a juristic reason. To put it simply, this means that there is no reason in law or justice for the defendant’s retention of the benefit conferred by the plaintiff, making its retention “unjust” in the circumstances of the case…
In Kawana v. Shemal (2011 BCSC 377), the court elaborated on what is required at the first stage of the analysis:
At the first stage of the juristic reason analysis, the plaintiff must show that none of the established categories of juristic reasons for the enrichment apply to deny recovery. The established categories of juristic reasons include: contract, a disposition by law, donative intent, and other valid common law, equitable or statutory obligations.
If the court finds that there has been an unjust enrichment and the subject matter of the dispute is a particular property, the court may impose a constructive trust. This means that the claimant will get legal ownership over part or all of the property. Otherwise, the court considers the contribution of the claimant and makes an educated guess on the value of the services provided.
Is a Gift a Gift?
A frequent occurrence in estate litigation cases is whether an inter vivos, gratuitous transfer of an asset from a deceased was a gift or simply property of the Estate held in trust. The former means the person receiving the property keeps it regardless of the terms of the Will. The latter means that the property has to be returned to the estate and is distributed through the Will. Common Law has developed two rules to assist the courts when there is not enough evidence to show the intention of the transferor:
Equity presumes that a transferor would not deliberately give property away. Thus, when property is transferred for little or no money or “consideration”, equity presumes a trust (i.e. it presumes the transferee holds the property in trust for the transferor). The transferee or recipient of the property bears the onus of proving otherwise. In other words, the transferee must prove the property was actually intended to be a gift.
The Supreme Court of Canada case of Pecore set the rule that the onus is on the person receiving the property to prove on a balance of probabilities that the transfer was a gift.
The critical time for looking at whether or not the transaction was a gift is around the time it was made. The presumption of resulting trust may be rebutted by declarations made by the deceased at or before the date of transaction, or by the surrounding circumstances. That is, if there is evidence that shows that the intention of the transaction was to provide a gift then the presumption of resulting trust has been rebutted.
Evidence of dependence by the transferee on the deceased would be considered as strong evidence to rebut the presumption of resulting trust. Evidence about the relationship between the transferee and the deceased can be used to rebut the presumption of resulting trust. Evidence subsequent to the transfer is often considered in rebutting the presumption of resulting trust, although it is reviewed with caution.
Until the decision of Pecore, transfers to a minor child or a spouse were most often considered gifts. Other transfers are viewed with caution. Following Pecore, there must be evidence to establish the transfer was clearly intended to be a gift where a minor child or spouse is not the person receiving the gift.
A significant concern before starting a lawsuit is who will pay the legal fees and disbursements of the court case at the end of the case.
In most litigation, the general rule applies that costs are awarded to the successful party. The costs would be a small portion of the actual legal fees based on the amount of work completed in the lawsuit. The disbursements usually amount to most of the lawyer’s expenses such as photocopies, court filing fees, facsimiles, etc. In estate litigation, the Courts have departed from this general rule where the cause of the dispute stems from the testator’s actions (entirely or partially).
In wills variation or unjust enrichment lawsuits, costs usually flow to the successful litigant only. The reason being, there are no doubts to be settled. The remedies provided by such legislation are directed to the maintenance and support of the dependents of the testator and are based on public policy. The legislation does not invalidate the Will, it merely permits the Court to vary the provisions made by the testator. Therefore, an unsuccessful action under such legislation cannot be said to have been caused by a testator, or to have been necessary to enable the estate to be distributed.
The Court in many instances can order that the legal costs associated with a wills variation claim be paid out of the estate in certain scenarios. Romaine v. Romaine, 2000 BCSC 1379 outlined some of these cases including where the validity of a will, the capacity of the testator to make a will or the meaning of the will is at issue. Even in scenarios where the primary beneficiaries’ conduct is the cause of the litigation, costs can be ordered to be paid by the estate. Further, in estate litigation there can be an award of costs in favour of a completely unsuccessful party against a completely successful party. In proceedings for the construction of a will, some examples are:
Awarding costs to the unsuccessful litigant is based on grounds of fairness. Where the matter in question must be litigated to remove all doubts, then all interested parties must be joined and are entitled to be heard and should not be out of pocket if the litigation does not conclude in their favour. The estate must bear the cost of settling disputes as a cost of administration. This is the reasoning which underlies such cases as Re Dingwall (1967), 65 D.L.R. (2d) 43 (Ont. H.C.); and McNamara v. Hyde,  2 W.W.R. 344 (B.C.C.A.); and Re Lotzkar Estate (1965), 51 W.W.R. 99 (B.C.C.A.). The question to be asked in such a case is whether or not the parties were forced into litigation by the conduct of the testator or the conduct of the main beneficiaries.