Until a grant of probate is issued, the executor does not have any legal right to deal with the assets of the testator. In order to obtain a grant of probate of a will, the will must be proved to the court.

Probate actions are actions to prove a will in solemn form.

The vast majority of wills are proved in common form under Rule 61 of the Rules of Court. This process does not involve the commencement of any action. The grant of probate is issued on the basis of affidavit evidence filed with the court by the executor. Once the grant is issued, the executor can proceed to administer the estate. A will proved in common form can later be subject to an action to revoke the grant of probate on the basis that the will was not valid.

Proof in solemn form protects a will from later attack, as once a will has been proved in solemn form it is protected under the principle of res judicata (meaning a matter which has already been conclusively decided by a court and is thus conclusive as between the parties). A will proved in solemn form can only be attacked if the will is later found to have been revoked or if it is proven that the grant in solemn form was obtained by fraud..

The necessity for proof in solemn form most of the time arises in circumstances of factual controversy. A will is usuallyproved in solemn form by commencement of an action. There are two ways in which probate actions generally arise:

1. A beneficiary files a caveat or otherwise makes known to the executor that they take issue with the validity of the will and the executor is therefore required to commence a proof in solemn form action;or
2. The executor obtains proof in common form and someone commences an action for revocation of the grant of probate. The executor is them required to counterclaim for proof in solemn form.

Parties to the Action

Rule 62(2) dictates that all persons having an interest in upholding or disputing the validity of a testamentary paper shall be joined as defendants. Pursuant to Rule 62(3), the writ of summons or statement of claim must contain a statement of the interest of the plaintiff and each defendant in the estate of the deceased.

The executor must also be named as a party. A person interested in the estate who is not named as a party may enter an appearance and defend the action as if they were a defendant (Rule 62(4)).

A person “interested in the estate” would likely include the executor(s), beneficiaries under the will, beneficiaries under the prior will if there is a prior will and intestate heirs if there is no prior will.

The Law Relating to Validity of Wills

When an action is brought to prove a will in solemn form, a court must determine the validity of that will. The following are possible grounds for invalidating a will:

1. invalid execution;
2. lack of knowledge and approval;
3. testamentary incapacity; and
4. undue influence and fraud.

Burden of Proof

The onus of establishing the validity of a will is on the propounder of the will, insofar as they must show that the will was validly executed, that the testator had knowledge and approval of the contents of the will, and that the testator had testamentary capacity. The propounder of the will is aided in this regard by a rebuttable presumption.

Upon proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity. In those circumstances the burden shifts to the attacker of the will to prove lack of knowledge and approval, lack of capacity or undue influence.’

The Doctrine of Suspicious Circumstances

If suspicious circumstances are established, the burden of proof shifts again and there is no presumption of validity where the will is executed with the requisite formalities and read to or by the testator.

Suspicious circumstances may be:

1. circumstances surrounding the preparation of the will;
2. circumstances tending to call into question the capacity of the testator; or
3. circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud.

In Vout v. Hay, the Supreme Court of Canada held that any of the above three categories of suspicious circumstances would affect the burden of proof with respect to knowledge and approval. The burden with respect to testamentary capacity would also be affected if the suspicious circumstances reflected on the mental capacity of the testator to make a will. Where suspicious circumstances exist, the burden of proof shifts to the propounder of the will with regard to knowledge and approval and testamentary capacity.

Suspicious circumstances will arise whenever a “will is prepared under circumstances which raise a well grounded suspicion that it does not express the mind of the testator.” Suspicious circumstances “are not circumstances that create a general miasma of suspicion that something unsavoury may have occurred, but rather circumstances which create a specific and focused suspicion that the testator may not haveknown and approved of the contents of the will.”

Evidence of suspicious circumstances does not impose a higher standard of proof on the propounder of the will than the civil standard. With respect to allegations of undue influence, suspicious circumstances do not give rise to a shift in the burden of proof. In other words, even where there are suspicious circumstances, the burden remains on the attacker of the will to prove undue influence or fraud.

Nature of a Committeeship

A committeeship is a way of protecting the interests of a dependent adult who is incapable of managing his or her affairs (the “patient”). The Patients Property Act of British Columbia (“the Act”) legislates how a committee is appointed and how the personal and financial affairs of the patient is managed.

Committeeship appointments require the court to declare that patients are:

a. incapable of managing their affairs;

b. incapable of managing their selves; or

c. incapable of managing both their affairs and their selves.

The Act makes this distinction between individuals’ inability to manage their affairs versus and inability to manage their selves, since many individuals who are incapable of handling their financial and legal affairs, particularly where their estate is complex or large, may still be capable of exercising choices on matters such as personal care, where and with whom they wish to live, and what kind of medical treatment they wish to receive. Therefore it is possible to have someone appointed solely as the committee of a patient’s estate or of a patient’s person, rather than of both. It is also possible to have someone appointed committee of a patient’s person, while someone else – most often a trust company – appointed as committee of that patient’s estate.

Material in support

Because the appointment of a committee encroaches on a person’s freedom, the court requires that the declaration be clearly warranted by the circumstances. The materials provided to the court for examination must include the following:

1) The affidavits of two doctors sworn within a reasonable time of the application (one to two months), that indicate the patient is, for stated reasons, incapable of managing him or her self or his or her affairs by reason of mental infirmity arising from disease, age, or otherwise, or by reason of disorder or disability of mind arising from the use of drugs;

2) Notice of the application has been served on the patient or, where applicable, that service on the patient would be injurious to the patient’s health or otherwise inadvisable for stated reasons;

3) The names and addresses of the patient’s next of kin;

4) The Public Guardian and Trustee of British Columbia (the “PGT”) has been notified of the application and the PGT’s recommendations are before the court in the form of a letter of response; and

5) A specific listing of the patient’s assets, liabilities, income and expenses that includes, wherever possible, current balances, account numbers and the names and addresses of the various banking institutions.

Notice of the Application

Notice of the application for the order must be served at least ten days before the date of the application on the following people:

a) the patient,

b) the PGT,

c) any person whose rights may be affected by the order.

The Patient

The court will dispense with service of notice on the patient only when satisfied that service would injure that person’s health, or would for any other reason be inadvisable in the interests of the patient. A request to dispense with service on the patient must be supported by the medical evidence, stating not only the physician’s opinion that service would be injurious to the patient, but also how service would be injurious, with related clinical findings.

The PGT

Notice to the PGT obligates that office to critically review the application. The PGT’s role is to review the application with the protection of the patient’s rights in mind. The PGT provides comments to the applicant and to the court before the hearing. If the PGT’s recommendations are not acceptable to the applicant, the applicant must respond to give the PGT sufficient time to arrange for representation at the hearing. The areas in which the PGT generally makes specific recommendations on are:

a) Whether the patient should be notified,

b) What restrictions, if any, should be placed on the sale of any real estate owned by the patient,

c) Whether a bond, or other form of security to the patient for their estate, should be posted.

Other Parties

Other persons whose rights may be affected by a committeeship order are generally the next of kin or holders of a power of attorney.

Security by Posting of a Bond

In practice, the PGT recommends that a bond be posted for the security of the patient’s estate.

Generally the PGT is willing to waive this requirement if the applicant is a near next-of-kin and a primary beneficiary of the patient’s Will.

Effect of the Order

Once the order is granted, and if the applicant has been appointed committee of both the estate and the person of the patient, then the committee has all the rights, privileges and powers with regard to the estate of the patient as the patient would have if he or she was of full age and sound and disposing mind, and as well the custody of the person of the patient and the patient’s medical welfare. This power must be exercised for the benefit of the patient and the patient’s family, having regard to the nature and value of the property of the patient and circumstances of the patient and the patient’s family. This power is restricted only by such conditions as the court imposes on the committee. The committee’s power also does not extend to contracting marriage for the patient, drawing up a Will, or changing the designation of beneficiaries under insurance policies, pension plans, or registered retirement savings plans.

Duties of the Committee

The committee must present his or her accounts to the PGT for approval at intervals set by the PGT’s office. These intervals will be referred to in letters received from the PGT.

The first reporting period will usually be for one year after the court order is made.

Upon the appointment of a committee, it is the practice of the PGT to provide the committee with a handbook which sets out the committee’s obligations and responsibilities, as well as guidance on how to administer the money entrusted to the committee. The PGT also provides a draft form of reporting, known as a Summary of Accounts, to assist the committee in satisfying those obligations.

Costs and Remuneration

A committee is entitled to recover from the estate of the patient all reasonable legal fees and disbursements relating to the committeeship application. These disbursements extend to the fees charged by the PGT and by the physicians in producing the affidavits in support of the application. All costs incurred by the committee on behalf of the patient will be reviewed by the PGT when the committee provides the required accounting.

The committee is also entitled to be compensated from the estate of the patient for services provided to the patient at a reasonable rate, which is fixed on the passing of the accounts. A committee is not entitled to employ a professional person, at the expense of the estate of the patient, to do work not usually requiring professional assistance.

For further information, see the PGT’s website at http://www.trustee.bc.ca

Capilano Golf & Country Club
President’s Room
420 Southborough Drive
West Vancouver, BC
RSVP to Susan at susan@bcheritagelaw.com or 778-786-0615 ext. 112

Capilano Golf & Country Club
President’s Room
420 Southborough Drive
West Vancouver, BC

RSVP to Susan at susan@bcheritagelaw.com or 778-786-0615 ext. 112

Law Day 2009 will provide the public with the opportunity to learn about the law, the legal profession and the legal institutions that form the cornerstones of our Canadian democracy.

On Saturday, April 25th from 10AM to 3PM all residents of the Greater Vancouver area are invited to come down to the Central Vancouver Public Library, located at 350 West Georgia Street (between Homer, Hamilton and Robson Streets). At Law Day, the public can learn what the justice system is doing to keep us safe on the streets and in our homes while upholding the rights of all Canadians under the Charter of Rights and Freedoms.

The Law Day activities will include a public forum featuring CBC broadcaster Ian Hanomansing as the moderator and a panel consisting of:
•    The Honourable Chief Justice Brenner, Supreme Court of British Columbia
•    The Honourable Chief Judge Stansfield, Provincial Court of British Columbia
•    Superintendent Warren Lemcke, Vancouver Police Department
•    Assistant Commissioner Peter German, RCMP
•    Peter McKnight, Columnist, The Vancouver Sun

The panel will not only provide open and frank presentations, but they will also answer the questions put to them by the members of the public in attendance.

The Law Day Open House will also include informative displays from a variety of legal organizations, free law classes courtesy of the People’s Law School, and a Citizenship Ceremony presided over by Chief Justice Finch.

On Law Day, the Canadian Bar Association British Columbia Branch will also hold its province-wide “Dial-A-Lawyer” as part of Law Week. Lower Mainland residents are invited to call 604.687.3221 between 10:00 am and 2:00 pm to speak with a lawyer for up to 15 minutes at no cost.

For more information about BC Law Week, visit: www.bclawweek.org

The BC Court of Appeal handed down its decision in the Gill v Bucholtz case involving real estate fraud.  The Court found that a charge granted by a registered owner who is not the true owner of the title, is invalid.

An excerpt from the judicial reasoning reads as follows:

On its plain meaning, the exception in s. 23(2)(i) to the indefeasibility of title applies and the phrase “void instrument” in s. 25.1(1)  includes a mortgage taken from a person who obtained her title by fraud or forgery, as occurred in this case.  The Act preserves the nemo dat rule with respect to charges – even where the holder has relied on the register and dealt bona fide with a non-fictitious registered owner.  The mortgagees in this case did not acquire any estate or interest in Lot 4 on registration of their instruments because having been granted by a person who had no interest to give, those instruments were void, both at common law and under s. 25.1(1).  With respect, I conclude that the chambers judge erred in law in his interpretation of the scope and nature of indefeasibility in the context of the scheme, and in “applying a principle in favour of indefeasibility … [by assuming] the answer to the … question presented for decision.”  (Vassos, supra, at 322.)

[27]      It may be that in a perfect Torrens system, any person lending money bona fide on the security of a mortgage granted by the registered owner, would have a valid charge.  But there are sound policy arguments on both sides of the question.  The Legislature of British Columbia would appear to have adopted the policy that the cost of frauds perpetrated against mortgagees and other chargeholders should be borne not by the public (as the funders of the Assurance Fund) but by lenders and  other chargeholders themselves.  Whether this policy choice is a good one or not is not for us to decide.  We must give effect to the language of the statute in its ordinary and grammatical meaning.

[28]            I would allow the appeal and order that the mortgages be cancelled as encumbrances against the plaintiff’s title.  In view of the fact that this was in some ways a ‘test’ case which the Authority wished to have decided by this court, I would order that the parties bear their own costs.