Mediation is particularly well-suited for estate disputes because it provides for the consideration of factors outside the adversarial arena. Very often in estate disputes there is a multiplicity of interests and motivations.  Mediation provides a forum to not only identify those interests and motivations, but to respond to them.  When a dispute arises in the family context, mediation allows for consideration of the factors that might contribute to the dispute or interfere with its resolution.  For example, family dynamics, suspicion of abuse or undue influence, blended families with opposing views on testamentary entitlement, and interpretation of the testator’s, donor’s or settlor’s wishes can be more effectively considered in the mediation context than during the course of litigation.

Where family is involved, there is often a natural reticence towards litigation.  While the disputants want the opportunity to settle their disputes behind closed doors, they often need the assistance of a neutral third party to reach an appropriate resolution.  Mediation allows for the leveling of the playing field because each party has a voice and can participate in the process.  Each party has the right to have counsel present and the ability to influence the discussion and eventual outcome.  If there is a desire to repair relationships, mediation provides an opportunity for this reparation.  Parties can more readily move from a position-based stance to an interest-based stance.  It is possible that, once the discussion moves to one of interest, the parties will discover that they have common interests that can be brought to bear in resolving the dispute.

It is interesting to note that of the 31 millions people currently residing in Canada, 12.5% (3.9 million) are age 65 or older.  By 2040, it is predicted that 25% of Canadians will be over 65.  While there are currently only 150,000 people in Canada over 90 years of age, by 2026, there will be 400,000.  We are living longer and accumulating greater wealth.  This gives rise to the potential for even more disputes arising on either incapacity or death.  Mediation will be an important tool in resolving some of these disputes, including, but not limited to:

• challenges to the validity of a will (e.g. , preparation, execution or interpretation of a will, capacity to make a will, holograph wills, and will kits);
• personal injury claims (where the incapable or deceased person is injured or causes a third party injury);
• discrimination claims (including age and disability discrimination, and accessibility rights);
• elder abuse claims (including physical, psychological and financial claims, and civil and criminal remedies);
• dependants’ relief claims (where the deceased or incapable person is either the dependant or the provider);
• parental support claims (where the parent is in need and the child is capable of providing assistance);
• variation of trusts (the terms of any proposed variation, subject to court approval);
• grandparent access claims;
• long-term care issues (including consent to treatment and admission);
• power of attorney disputes (including capacity, and use and abuse issues);
• guardianship plans;
• access to health care issues; and
• housing issues (including tenancy issues, house-sharing arrangements and assisted living).

Find out more about our mediation services here.

You are not alone if you panic when you have to bring on a chambers application for short leave notice under Rule 3(3.1) of the Rules of Court.

A short leave application sounds simple but it is not. It is an application made either without notice to the opposing party or when the parties have not reduced the usual time limits set out in Rule 51A (11 days if under Rule 18A or 8 days otherwise). The applicant has the onus to apply to the Court and explain why the usual time limits are not appropriate and why the nature of the application is urgent.

There are many reasons for urgency, such as an adjournment of a trial, production of various records, an independent medical examination that is scheduled on short notice, restraining orders or injunctions. One counsel may need to get the time limits reduced in order to bring on a cross application that has already been set down.

The materials to be prepared for a short leave application are:

 The Notice of Motion for the original relief you are seeking;
 An Affidavit in support of the original relief;
 An Affidavit in support of the short leave application (if not included in the first Affidavit); and
 Short Leave Requisition requiring that leave be granted to reduce the time requirements.

Once these materials are prepared, counsel must take the documents to the Court registry for filing. Short leave applications are generally placed on the chambers list on the same day as they are filed in the court registry.

It is a good practice to notify opposing counsel of your intention to seek short leave and provide the materials to them before attending in Court. Also, try to obtain opposing counsel’s available dates for the hearing of the main application and their position with respect to any of the proposed new time limits set out on the Short Leave Requisition.

If you seek short leave without notice to opposing counsel, the Court will want to know what attempts you have made to contact the Respondent(s) and why no notice was given. These items should be set out in your Affidavit supporting the short leave application.

The Judge/Master or Registrar will make a decision on the facts whether urgency allows an application to be heard in chambers on short notice. If the short leave application is granted, the Court will then fix a date and time for the main application to be heard. The Court will also complete and sign the Order by Endorsement on the Short Leave Requisition. The Order sets out conditions and new time limits for delivery of the Notice of Motion, Affidavit(s), Response(s), reply Affidavits, Outlines and when the Chambers Record should be filed.

When short leave has been granted, the time limits set out in Rules 10, 44 and 51A do not apply. In addition, Rule 3(3.1)(iv) also states that the Court can “give such other directions as may be appropriate”.

Finally, you must prepare additional materials including:

• A Notice of Hearing;
• The original Short Leave Requisition; and
• the usual contents in the Chambers Record.

Once all the filed documents come back to the office, it is a priority to ensure that all the chambers materials, including the Order by Endorsement, are delivered according to the new time limits. Make sure that you retain proof of service of the documents upon all parties.

A good idea is to place the service confirmation documents in a separate tab at the back of the counsel’s chambers binder for their easy reference. When counsel attends for the hearing of the main application, they will need to advise the Court that all delivery conditions set out in the Order of Endorsement have been met.

Once you have completed one short leave application by following the above steps, any future urgent applications should proceed without any surprises.

• Determine who will act as executor or administrator of estate;
• Maintain a record of all decisions made, steps taken and financial transactions;
• Contact funeral service provider to make funeral arrangements;
• Consider publishing an obituary (Vancouver Sun and Province, tel: 604-605-2254);
• Locate estate assets and safety deposit box, if applicable;
• Secure estate assets and ensure adequate insurance coverage is in place;
• Notify post office to redirect mail, if applicable;
• Obtain a death certificate and conduct wills search by contacting BC Vital Statistics Agency, tel: 604-660-2937;
• Review will, if applicable;
• Obtain probate or letters of administration from court, if required;
• Call Service Canada to notify of the death and to obtain information regarding Canada Pension Plan, Old Age Security and related benefits, tel: 1-800-277-9914;
• If the deceased received pension benefits, extended health and dental benefits from a pension plan, contact the pension plan administrator to advise of the death and to determine eligibility for continued benefit coverage for dependents;
• Contact Passport Canada to cancel deceased’s passport, tel: 1-800-567-6868;
• Contact Social Insurance Registration to cancel deceased’s Social Insurance Number, tel: 1-800-206-7218;
• Notify Canada Revenue Agency of the death and cancel benefit payments in the name of the deceased, tel: 1-800-959-8281;
• If the deceased was receiving veteran’s benefits, call Veterans Affairs Canada, tel: 1-866-522-2122;
• If the deceased was receiving the Seniors supplement or disability benefits for seniors, call the BC Seniors Line, tel: 1-800-465-4911;
• Cancel deceased’s Driver’s License at local ICBC Driver Licensing Office, tel: 604-661-2800;
• Contact local ICBC Autoplan broker, or private insurer if applicable, to cancel or change car insurance;
• Contact life insurance company to obtain benefits, if applicable;
• Contact financial institutions to remove deceased’s name from joint accounts or to transfer accounts held solely by the deceased into the name of the Estate;
• Contact credit card companies to remove deceased’s name from accounts or to cancel accounts;
• Notify phone and utility companies to change the name on bills or change the service;
• Contact Land Title Office regarding removing deceased’s name from title to property, tel: 604-660-2595;
• Contact BC Gazette (and local newspaper) to arrange for publication of notice to creditors, tel: 1-800-663-6105;
• Examine claims against estate and defend any legal action against estate of deceased;
• Contact an accountant to file tax returns and apply for clearance certificate;
• Pay debts;
• Prepare detailed accounting of assets as well as receipts and disbursements during administration of the estate;
• Obtain approval of financial statement from beneficiaries or court;
• Distribute personal and household effects;
• Pay legacies and make partial distribution to beneficiaries according to terms of the will or Estate Administration Act of BC, as applicable (ensure have signed release from each beneficiary first);
• Obtain clearance certificate from Canada Revenue Agency;
• Complete final distribution; and
• Contact a lawyer regarding general estate questions and procedures for probate or letters of administration, if required.

What to do When Someone Has Died: A Checklist

Cremated remains may be scattered in cemetery gardens especially created and dedicated for this purpose. The location of where the cremated remains have been scattered can be identified by name on a special memorial plaque or marker. Some cemeteries have rose gardens that are designed specifically for the scattering of cremated remains.

There are no provincial regulations that prohibit the scattering of cremated remains on land, sea or by air. However, municipal by-laws may dictate otherwise. You may wish to check with your local city hall to ensure that scattering is not prohibited in your area.

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.

Estate Administration: The Essentials
Presented by: Nicole Garton-Jones

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West Vancouver, BC