Estate Litigation & Wills – Problems if Provisions are Unclear

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A Will that contains unclear provisions may be found to be invalid or the particular gifts that are the subject of the unclear provisions may fail. People attempting to write their own Wills may be unaware that the Will is unclear. However, there may be more than one possible interpretation that the Will-maker did not anticipate which may make the provision seem unclear.

If a gift is unclear, a Court may be asked to interpret the Will to determine the Will-maker’s true intention. This will result in significant legal expenses for the Estate and the Court may not be able to determine the Will-maker’s true intent. An unclear Will may result in an intestacy (i.e., when a person dies without having a Will) which, in turn, could result in an unintended person receiving a gift or benefit by virtue of the default provisions of the British Columbia Wills, Estate, and Succession Act (WESA).

“Fixing” Ambiguities in a Will

Just because a Will contains an unclear provision, does not necessarily mean that the Will will be found to be invalid or that the gift containing the unclear provision must fail. Under WESA, there are provisions that can cure certain errors contained in a Will. However, these provisions cannot fix a Will where the Will-maker did not have the required mental capacity or the Will-maker was unduly influenced when making the Will.

Under WESA, a Will that is not in a typically acceptable form may be found to be valid if the Court determines that the Will represents the intentions of the deceased person. For example, the Court may consider whether a journal/diary entry represents the testamentary intention of the deceased.

Alternatively, a Court may also be able to fix an error in a Will if it appears that there is uncertainty because of a simple mistake made by the Will-maker or the person who drafted the Will or because the person who drafted the Will misunderstood the Will-maker’s intention. In these circumstances, the court may choose to look to evidence of the Will-maker’s intention to determine what his or her true intention was regarding the unclear provision. An application to fix an error contained in a Will must generally be made within 180 days of probate being granted.

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Small Claims Court – Filing a Notice of Withdrawal by Mistake

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A Court action is started in Small Claims Court when the Plaintiff files a Notice of Claim with the Court Registry. When a Small Claim Court action is concluded by settlement, the Plaintiff will file a Notice of Withdrawal. When a Notice of Withdrawal is filed, it stops the action and any associated Court processes. However, if this document was filed by mistake, is it possible to make a Court application to allow you to continue with the Court action?

Small Claims Court, unlike the Supreme Court, only has the ability to provide orders explicitly allowed in the Small Claims Court Rules. Upon review of the Rules, it is not clear where the Court would get ability to reinstate an action after a Notice of Withdrawal has been filed.

Rule 8(4) of the Small Claims Court Rules states:

Withdrawal of claim or other filed document

(4)A party may withdraw a claim, counterclaim, reply or third party notice at any time by

 (a) filing a copy of the notice of withdrawal at the registry, and

 (b) promptly serving the notice on all the parties who were served with the claim, counterclaim, reply or third party notice.

Nothing in this rule would allow a Judge in Provincial Court to reinstate a claim after a Notice of Withdrawal has been filed. This rule only discusses the withdrawal of a “claim, counterclaim, reply, or third party notice”. Accordingly, there is a question as to whether the Provincial Court has the ability to reinstate an action once a Notice of Withdrawal is filed.

However, the Courts have determined that they do have the ability to withdraw a Notice of Withdrawal in the proper circumstances. In Pacific Centre Ltd. V. Micro Base Development et al, 49 BCLR (2d) 218, 43 CPC (2d) 203 the Court determined that it is within the Small Claim’s Court’s own jurisdiction to address this procedure. The Court in Wilson & ANJ Corp. v. Regoci & Global Securities, 2009 BCPC 170 cited Pacific Centre Ltd. and noted the need for a good reason to allow the withdrawal of the Notice of Withdrawal. Generally this reason appears to focus on a genuine mistake made on behalf of one of the parties. The Court in Wilson found that “in the absence of the establishment of any reason for the filing the notice of discontinuance, such as inadvertence, mistake or misapprehension, or of ‘other grounds’ which would be of a compelling nature, the discretion should not be exercised to set aside a notice of discontinuance” (Wilson, para 7). That is, it is not enough for the appellant to merely have a change of heart (Wilson, para 7).

It appears that a Court will recognize a true mistake when allowing Plaintiffs to continue with a Court action. However, given the need to prove a mistake (or something similar), it is necessary to be careful when filing a Notice of Withdrawal.

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Family Law – Who qualifies as a Spouse?

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In BC, “spouses” are entitled to certain rights upon separation including support and a shared interest in “family property”.  Two people will qualify as spouses in BC if they live in a “marriage-like relationship” for a period of two years.

Whether or not two people qualify as one another’s “spouses” under the Family Law Act requires a legal analysis.  In the recent case of CFM v. GLM, 2018 BCSC 815 [CFM], Justice Baird adopted Dey v. Blackett, 2018 BCSC 244 for the principles used to determine whether a couple is in a marriage-like relationship:

[192]     The determination of whether a relationship was marriage-like requires a “holistic approach”, in which all of the relevant factors are considered and weighed, but none of them are treated as being determinative of the question: Austin v. Goerz, 2007 BCCA 586 at paras. 58 and 62.

[193]     While a “checklist” approach to this question is not appropriate, it can still be helpful during the analysis to consider the presence or absence of commonly-accepted “indicators of the sorts of behaviour that society, at a given point in time, associates with a marital relationship”:  Weber v. Leclerc, 2015 BCCA 492 at para. 25. A frequently-cited authority has identified these indicators as including “shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple”: M. v. H., [1999] 2 S.C.R. 3 at para. 59, citing Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 at para. 16 (Ont. Dist. Ct.).

[194]     While financial dependence was at one time considered an essential aspect of a marriage-like relationship, this is no longer so: Austin at paras. 55-56.

[195]     The intentions of the parties, particularly whether they saw the relationship as being “of a lengthy, indeterminate duration”, will be important to the determination of whether the relationship was marriage-like. However, evidence of their intentions must be tested against objective evidence of their lifestyle and interactions, which will provide direct guidance on the nature of the relationship: Weber, at paras. 23, 24. In other words, “subjective or conscious intentions may be overtaken by conduct such that whilst a person living with another might not say he or she was living in a marriage-like relationship, the reality is that the relationship has become such”: Takacs v. Gallo (1998), 48 B.C.L.R. (3d) 265 (C.A.) leave to appeal to SCC ref’d, [1998] S.C.C.A. No. 238, at para. 53.

[196]     In weighing the various factors, it is also an error to give undue emphasis to the future plans of a couple, in contrast to the current realities of their respective situations: Takacs at para. 58.

Applying these principles, Justice Baird found the Claimant and Respondent did not qualify as spouses because:

  • The parties’ relationship was a tumultuous liaison frequently interrupted by sometimes lengthy hiatuses brought on by illicit infidelities and betrayals that were divisive and hurtful;
  • The parties did not live together for a period of two years;
  • The Respondent had a “leading female” in his life who was not the Claimant in the two years prior to the parties’ final separation.

Noteworthy is that the Claimant sought that certain corporations in which the Respondent had an interest be considered “family property” in which the Claimant could also claim an interest.  As a result of the decision, the Claimant was incapable of advancing her claim against the property of the Respondent.

If you would like to book an appointment with any of our family law lawyers, namely Kathleen Sugiyama, Christopher Murphy or Nathan Seaward, please contact Heath Law LLP at 250-753-2202.

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Estate Planning – Consequences of Faulty Estate Planning

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Consequences of Faulty Estate Planning

Wills are intricate instruments where details matter.  The preparation of a Will requires care and diligence.  If improper care is taken, certain gifts may not be received by the person or entity that the Will-maker intended.  This article will canvas two areas where the gifts in a Will may not be distributed in accordance with the Will-makers wishes.

A gift could be deemed ineffective for many reasons including the beneficiary of a gift pre-deceasing the Will-maker or if the beneficiary mistakenly signs the Will as a witness to the Will.  British Columbia has enacted legislation found in s. 46 of the Wills Estates and Succession Act (“WESA”) to deal with these ineffective gifts.  A Will can provide for alternative beneficiaries to the gift, in which case, if the gift was deemed ineffective for any reason, the gift would go to that alternative beneficiary.  There is also a special rule if the ineffective gift was made to a special class of person.  The special class under the WESA consists of siblings of the Will-maker or descendants of the Will-maker.  In that scenario, the ineffective gift would go to that special class member’s descendants.  If there are no alternative beneficiaries mentioned and the gift is not to a special class of person, the ineffective gift will go to the surviving residuary beneficiaries in proportion to their interests.

Ademption is another consideration for the Will-maker.  Ademption arises when a “specific gift” is no longer part of the Will-makers estate or has been converted into something else.  This often happens when a Will-maker has gifted a car (or some other specific piece of property) to someone many years earlier but before the death of the Will-maker the car is sold to someone other than the person designated under the Will.  In that scenario, the gift under the Will would fail.  However, as stated in the seminal British Columbia authority on ademption, Trebett v Arlotti-Wood, 2004 BCCA 556, ademption will not occur where the specific property in question has been changed “in name or form only” so that it “exists as substantially the same thing, although in a different shape.”  What is considered a change “in name or form only” has been a litigious matter where answers vary considerably.

In regards to ademption, if the specific gift was sold by a nominee (attorney or representative) before the death of the Will-maker, the beneficiary of the gift is entitled to receive from the Will-maker’s estate an amount equivalent to the proceeds of the gift as if the will had contained a specific gift to the beneficiary of that amount.  In other words, the beneficiary will not receive the exact gift stipulated in the Will but will receive the cash proceeds of the sale of that specific gift.  This scenario is governed by s. 48 of the WESA.

“It has often been said that the other bank of the river Styx is lined with the shades of dissatisfied testators waiting to receive their judicial parsonages from those who have misconstrued their wills”  

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Real Estate – Limitations Act of British Columbia – Mortgage Debts

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BC Limitations Act

In 2013 the new BC Limitation Act (“BCLA”) came into force.  There are many differences between the BCLA and the old BC Limitation Act.  Two of these differences are in relation to s. 14 and s. 15 of the BCLA.

S.14 of the BCLA relates to the limitation period for demand obligations. S. 14 states: “A claim for a demand obligation is discovered on the first day that there is a failure to perform the obligation after a demand for the performance has been made.” In other words, the countdown period for the limitation period does not start until the borrower under an agreement fails to pay an obligation once a demand has been made.  The old BC limitation act had a six year limitation period for demand obligations in which the countdown period for the limitation period would start from the date the initial obligation arose.

S.15 of the BCLA relates to the limitation period for realizing or redeeming security.  S. 15 states: “A claim to realize or redeem security is discovered on the first day that the right to enforce the security arises.”  This is a marked difference from the old BC Limitation Act which had a six year limitation period for bringing action on collateral that was not in the secured party’s possession.  Lenders in secured transactions need to be aware of this striking change.

These two provisions of the BCLA were judicially scrutinized for the first time since their enactment in the recent British Columbia Court of Appeal decision Leatherman v 0969708 BC Ltd., 2018 BCCA 33.  This case is illustrative of the wariness lenders should have in regards to the new BCLA.

In Leatherman a mortgage was granted to secure a debt.  Under the mortgage the loan was payable on demand, with payments of interest to be paid annually.  The Mortgagor failed to make a required interest payment on Oct 31, 2013.  This is effectively the date of default.  No further action was taken by the mortgagees until Nov, 2015.  At that time correspondence was exchanged between the parties in relation to the debt and its repayment.  A demand was made by the mortgagees on Nov 9, 2016.

The Court stated “This Mortgage, like most mortgages, includes both a covenant to pay and security for the debt. The covenant to pay the principal, considered on its face, and alone, is a demand obligation. With respect to it, s. 14 applies; that is, it is not payable until demand. The obligation to pay interest, however, is not a demand obligation because it was payable without demand on October 31 of each year. The Mortgage also provides that the property mortgaged is security for the debt. With respect to security for the debt, s. 15 of the Act applies. The right to realize on the security arises upon discovery of that right.”  In other words, the mortgage became enforceable as of the date of default, Oct 31, 2013, and would be statute barred two years later.  However, the mortgagor was still liable for his personal covenant as two years has not elapsed since demand for payment was made.

Going forward, where there is a default on a mortgage a lender must foreclose within two years of that default even if the loan, which is supported by the mortgage, is payable on demand, and no demand has been made.

The limitation period could be extended beyond two years after default where a mortgagor acknowledges liability.  This is governed by s.24 of the BCLA.  S. 24(1)(a) states “If, before the expiry of either of the limitation periods that, under this Act, apply to a claim, a person acknowledges liability in respect of the claim, the claim must not be considered to have been discovered on any day earlier than the day on which the acknowledgement is made.”

Acknowledgement under s .24 includes a debtor’s performance of an obligation under or in respect of a security agreement (s. 24(8)).  In other words, for a conventional mortgage where there are specified payments, when the mortgagor under a mortgage makes a payment after their initial default this will postpone the date of discovery to the date on which the mortgagor made the after default payment.

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Estates – Dying without a Will

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Dying Without a Will – Intestacy Distribution

When a person dies in British Columbia without a valid Will they are deemed to have died “intestate”.  Since the person who died does not have a Will that distributes their property, there has to be a mechanism for the distribution of that property.  That mechanism is found in the Wills, Estate and Succession Act of British Columbia (“WESA”).

Intestacy distribution depends on the intestate’s “next of kin”.  If the intestate has a spouse (which includes legally married spouses and those common law spouses that meet the definition under WESA) but no other descendants (which means all lineal descendants through all generations), the spouse would receive the entire estate from the intestate.  This is governed by s. 20 of the WESA.

S.21 of the WESA covers the scenario of an intestate leaving a spouse and descendants.

21(2) If a person dies without a Will leaving a spouse and surviving descendants, the following must be distributed from the intestate estate to the spouse:

(a) the household furnishings;

(b) a preferential share of the intestate estate in accordance with subsection (3) or (4).

(3) If all descendants referred to in subsection (2) are descendants of both the intestate and the spouse, the preferential share of the spouse is $300,000, or a greater amount if prescribed.

(4) If all descendants referred to in subsection (2) are not common to the intestate and the spouse, the preferential share of the spouse is $150,000, or a greater amount if prescribed.

(5) If the net value of an intestate estate is less than the spouse’s preferential share under subsection (3) or (4), the intestate estate must be distributed to the spouse.

(6) If the net value of an intestate estate is the same as or greater than the spouse’s preferential share under subsection (3) or (4),

(a) the spouse has a charge on the intestate estate for the amount of the spouse’s preferential share under subsection (3) or (4), and

(b) the residue of the intestate estate, after satisfaction of the spouse’s preferential share, must be distributed as follows:

(i) one half to the spouse;

(ii) one half to the intestate’s descendants.

The last scenario that will be discussed in this blog will be if the intestate leaves no spouse but leaves descendants or relatives.  This scenario is governed by s.23 of WESA.

When there is no spouse the intestate’s estate shall be distributed firstly to the intestate’s descendants.  If there are no descendants then the estate will be distributed to the intestate’s parents.  If there are no parents then the estate will be distributed to the descendants of the intestates parents which will include brothers and sisters of the intestate and then to the nieces and nephews of the intestate.  If there are no descendants of the parents of the intestate the estate shall be distributed to the grandparents of the intestate.  If there are no grandparents, the estate shall be distributed to the great-grandparents of the intestate and, finally, if there are no relatives of the intestate living, the estate shall be distributed to the government.

As the above indicates, intestacy distribution can be intricate and convoluted.  If you have any questions regarding the law surrounding estates feel free to contact Heath Law LLP.

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Commercial Law – Modifying Contracts and Consideration

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Can You Modify a Contract Without Consideration?

Imagine that you lend $100.00 to a friend named Sally, so that she can buy a car. You are a good friend and you agree to lend Sally the money interest-free. You ask to be paid back the full amount within a year. When the year is up, you ask for your money back from Sally. However, Sally is still in a tight spot and she asks if she can have another year to pay you back. Due to your gracious nature, you agree to the extension of the loan. This cycle happens for another few years, where Sally always asks if she can pay you back next year. Finally, after Sally refuses to pay you back the loan, you become frustrated and sue Sally to get your money back. In her defence, Sally says that you have waited too long, and that your claim for your money is barred as the limitation period has expired.

Sally’s argument in Court is that the limitation period started to run after the first year was up, since this is when you first demanded the loan back. This means, that since you waited longer than two years to sue, the limitation period has expired and consequently you cannot sue. Further, Sally is arguing that because she did not give you any fresh consideration (i.e. some benefit for modifying the terms of the contract), that her promises to pay you back in the following years do not modify the original terms of the loan.

This is exactly what happened to the Plaintiff in the recent BC case of Rosas v Toca, 2018 BCCA 191. When Rosas sued Toca in the BC Supreme Court, the Court found that Rosas was barred from pursuing her claim against Toca, as the limitation period had expired. Further the Court found that because Ms. Toca was already under an obligation to pay back to the loan, her further promises to pay were not enforceable. Ms. Rosas appealed to the British Columbia Court of Appeal.

The BC Court of Appeal found that Ms. Rosas could rely on the promises of Ms. Toca to pay back the loan. This case is interesting, as it signals an important change in the law. The Court found that there was an evolution in the law regarding the doctrine of consideration in the context of contract modifications. The Court found

[176]  In the final analysis, I am persuaded that the legitimate expectations of the parties in the case of a modification to a going transaction should be protected. This is the motivating premise in the many cases where courts have struggled to find “consideration” so as to do justice between the litigants. It is but an incremental evolution of the law to say that in these cases, in the absence of duress, unconscionability or other proper policy considerations, such modifications should be enforceable…             

[emphasis added]

Specifically, the Court held that Toca’s promises to pay back the loan every year were made in the absence of duress, unconscionability or other proper policy considerations. For this reason, the Court found that the promises to pay back the loan were enforceable, in spite of the fact that Toca did not give Rosas any further consideration for the extension of the loan. The last promise that Toca made to Rosas was inside of the limitation period, which means that the terms of the original loan were modified and Rosas could rely on the promises to pay back the loan.

Overall, the implications of this case could be far reaching, as it means that contracts are able to be modified without fresh consideration between the parties. In the words of the Court, “in absence of duress, unconscionability or other proper policy considerations”, such modifications to a contract should be enforceable.

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Litigation – Filing and Removing a Certificate of Pending Litigation

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What is a Certificate of Pending Litigation and How it is Removed?

What is a Certificate of Pending Litigation?

A certificate of pending litigation (CPL) is available to a party to a proceeding where that party claims an estate or interest in land.  The party may register a CPL against the land in the land titles office in the same manner as a charge is registered.  The CPL burdens the land and warns the public of the pending litigation.

What is the Effect of a Certificate of Pending Litigation?

Once the CPL has been properly registered on the land, the Registrar of the land titles office must not make any entry in the register that has the effect of charging, transferring or otherwise affecting the land described in the certificate until registration of the certificate is cancelled.

How to Remove a Certificate of Pending Litigation?

  • S.252(1) of the BC Land Title Act states: “If a certificate of pending litigation has been registered and no step has been taken in the proceeding for one year, any person who is the registered owner of or claims to be entitled to an estate or interest in land against which the certificate has been registered may apply for an order that the registration of the certificate be cancelled”.
  • S.253 of the BC Land Title Act states: “If an action in respect of which a certificate of pending litigation is registered has been discontinued, the registrar must cancel the registration”.
  • S.254 of the BC Land Title Act states: “If an action in respect of which a certificate of pending litigation is registered has been dismissed, the registrar must cancel the registration as provided in the regulations”. This section is of course subject to any appeals that the parties to the action may bring.
  • S.255 of the BC Land Title Act allows for the cancellation of a CPL by a written request from the party who filed the CPL or a written request from the solicitor of the party who filed the CPL.
  • S.256 of the BC Land Title Act provides another way of cancelling a CPL which is based on the hardship and inconvenience suffered by the owner of the land which is subject to the CPL. If the owner can prove that they are experiencing a particular hardship and inconvenience by virtue of the CPL, the court has the ability to cancel the CPL.

To summarize, once a CPL has been registered against a particular piece of land the BC Land Title Act supplies five different ways in which that CPL can be cancelled.

In addition to a CPL being cancelled through the BC Land Title Act, a CPL can be removed on the basis of having been improperly applied or filed (NextGen Energy Watervliet TWP, LLC v. Bremner, 2017 BCSC 2096).

A valid CPL requires the plaintiff in the hypothetical action to claim an interest in land.  The plaintiff must demonstrate that there is an arguable case or a triable issue.  If there is a prima facie case for an interest in land on the pleadings, a CPL may be registered, and the court should not embark upon a consideration of the merits of the claim (Quigley v. Robison, 2009 BCSC 1296 (B.C. S.C.) at para. 27).  If the owner of the lands who have been burdened by the CPL can show that the plaintiff has no merits to his or her claim, the CPL can be cancelled.

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Litigation – Vexatious Litigants in the Courts?

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Under Section 18 of the Supreme Court Act of British Columbia and Section 29 of the Court of Appeal Act of British Columbia, a person can be deemed a vexatious litigant.  Section18 of the Supreme Court Act is stated below and Rule 29 is nearly identical.

18   If, on application by any person, the court is satisfied that a person has habitually, persistently and without reasonable grounds, instituted vexatious legal proceedings in the Supreme Court or in the Provincial Court against the same or different persons, the court may, after hearing that person or giving him or her an opportunity to be heard, order that a legal proceeding must not, without leave of the court, be instituted by that person in any court.

In a recent BC case, Hoessmann Estate v. Aldergrove Credit Union, 2018 BCSC 256, a litigant was deemed by the Court to be a vexatious litigant.  The circumstances of this case and the litigant are as follows.

The litigant was designated as the Executor of her father’s estate and proceeded to take legal action in regards to property that was devised in the Will.  The property had a mortgage that the litigant defaulted on which resulted in a subsequent foreclosure and sale.  The litigant sued the bank who foreclosed on the property as well as the purchaser of the property.   The litigant alleged fraud, bad faith and a multitude of other causes all without grounds to do so.  This commenced an over five year process of proceedings in which the litigant brought any possible proceeding she could even if the claim had no merit.

During all of this time, the other beneficiaries under the Will sought for a variation of the Will which was granted removing her as the Executor under the estate which meant that she no longer had standing to bring action on behalf of the estate with regard to the foreclosed property.

The Court stated at paragraph 57 of the decision: “As a result of the foreclosure and the choices she made in depleting the advances she received from the estate, the litigant is now destitute and lives in a women’s shelter.”  This is a very unfortunate result.  It is hard to know exactly what motivated the litigant to pursue so many frivolous claims, but it may be a lesson learned for her and other persons with similar proclivities.

When all was said and done, over 23 Masters and Judges had heard applications resulting in costs of over $200,000 being awarded against the litigant.  The costs awarded against her were more than three times the value of the mortgage on the property that was the subject of all the litigation.

The litigant was deemed a vexatious litigant which meant that she would be unable to bring action against the bank or the purchaser of the property without first seeking leave form the court.

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Family Law – Spousal Support as Compensation for an Economic Advantage or Disadvantage

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In BC, a Court can award spousal support to provide redress to a recipient spouse for an economic disadvantage arising from the marriage or for conferring an economic advantage on a payor spouse.  This is known as “compensatory support.”

In the recent case of Wilson v. Garbella, 2018 BCSC 864 [“Wilson”], the Court adopted the BC Court of Appeal case Chutter v. Chutter and summarized the principles which inform compensatory support, writing:

[50]      The compensatory basis for relief recognizes that sacrifices made by a recipient spouse in assuming primary childcare and household responsibilities often result in a lower earning potential and fewer future prospects of financial success…

[51]      In addition to acknowledging economic disadvantages suffered by a spouse as a consequence of the marriage or its breakdown, compensatory spousal support may also address economic advantages enjoyed by the other partner as a result of the recipient spouse’s efforts…the doctrine of equitable sharing of the economic consequences of marriage and marriage breakdown underlying compensatory support “seeks to recognize and account for both the economic disadvantages incurred by the spouse who makes such sacrifices and the economic advantages conferred upon the other spouse.”

In Wilson, the Court found that the Claimant experienced disruption of her employment by moving to Halifax while the Respondent trained for submarine service and acted as primary caregiver for the parties’ child for the last five years of the relationship.  In the circumstances, the court found that the claimant suffered a loss of income earning potential by subordinating her needs to those of her family, and, by assuming primary responsibility for the parties’ child, assisted the Respondent in furthering his career.

The Court therefore found the Claimant was entitled to compensatory support of $450.00 a month for four years.

If you would like to book an appointment with any of our family law lawyers, namely Kathleen Sugiyama, Christopher Murphy or Nathan Seaward, please contact Heath Law LLP at 250-753-2202.

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