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Professional Legal Training Course 2016

Practice Material
Wills
contributors: practice material editor:
Kirsten Jenkins and Raphael Tachie: Bull Housser & Alexis Kazanowski
Tupper LLP
Hugh McLellan: McLellan Herbert
Sadie Wetzel: Davis LLP

Printed May 2016

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 (i)

WILLS
CONTENTS

WILLS AND INTESTATE SUCCESSION

[§1.01] The Estate 1

[§1.02] Disposition of Property by Will 2
[§1.03] Disposition of Property on Intestacy 3
[§1.04] Further Reading 5

FORMAL VALIDITY OF WILLS AND INTERPRETING WILLS

[§2.01] Formalities 6
[§2.02] Curing Formal Deficiencies in a Will 7
[§2.03] Conflict of Law 7
[§2.04] First Nations Wills 7
[§2.05] Revoking a Will 7
[§2.06] Altering a Will 8
[§2.07] Republishing and Reviving a Will 9
[§2.08] Special Types of Wills 9
1. Mutual Wills 9
2. Conditional Wills 9
3. Holograph Wills 9
[§2.09] Testamentary Gifts – Lapse and Ademption 10
1. Types of Gifts 10
2. Ademption 10
3. Lapse 10

TESTAMENTARY CAPACITY

[§3.01] Introduction 11
[§3.02] Minors 11
[§3.03] Test for Mental Capacity 11
[§3.04] Types of Cases 12
1. Delusions 12
2. Dementia 12
[§3.05] Knowledge and Approval 13
[§3.06] Burden of Proof—Testamentary Capacity 14
[§3.07] Suspicious Circumstances 16
1. Test 16
2. Burden of Proof 17
 (ii)

[§3.08] Undue Influence 18

1. Test 18
2. Burden of Proof 18
[§3.09] Further Reading 19

PREPARING A WILL

[§4.01] Introduction to Preparing a Will 20

[§4.02] Taking Instructions 20
1. Taking Instructions Directly 20
2. Making Notes of the Meeting 20
3. Obtaining Background Information 21
4. Ascertaining the Assets and Liabilities 21
5. Providing Basic Information to the Client 22
6. Naming Executors and Trustees 22
7. Naming Beneficiaries 24
8. Tax Considerations 25
9. Naming Guardians 26
10. Enduring Powers of Attorney, Representation Agreements and
Adult Guardianship Legislation 26
11. Using a Memorandum 28
[§4.03] Circumstances Requiring Special Consideration 28
1. Homestead or Dower Legislation 28
2. Restrictions on Alienation 28
3. Life Insurance Declarations 28
4. Registered Retirement Savings Plans and Similar Assets 28
5. Charitable Gifts 29
6. Understanding the Rule against Perpetuities 29
7. Termination, Revocation and Variation of Trusts 29
8. Beneficiaries who are Receiving Disability Assistance 30
[§4.04] Practical Tips for Drafting the Will 31
1. Planning for Contingencies 31
2. Language Use 31
3. Numbering, Headings and Order 32
4. Organizing the Contents of the Will 32
5. Drafting Dispositive Clauses 33
6. Capital and Stirpital Distributions 34
7. Clauses Benefiting the Executor and Trustee 36
8. Common Drafting Pitfalls 36
[§4.05] Will Execution Procedures 37
[§4.06] Post Execution Procedures 37
1. Wills Notices 37
2. Wills Storage 37
3. Reporting to the Client 38
4. Destroying Prior Wills and Will Files 38
5. Releasing a Will from Safekeeping 38
6. Releasing a Wills File 38
[§4.07] Further Reading 38
 (iii)

CLAIMS MADE AGAINST AN ESTATE

[§5.01] Introduction 39
[§5.02] Challenges to a Will 39
[§5.03] Claims against an Estate on Intestacy 39
[§5.04] Claims Against an Estate by Unrelated Parties 40
[§5.05] Unjust Enrichment and Quantum Meruit 40

SOLICITORS’ DUTIES AND RESPONSIBILITIES

[§6.01] Duty of Care when Taking Instructions 42

[§6.02] Duty of Care towards Beneficiaries 42
[§6.03] Common Errors 44

APPENDICES – NOT AVAILABLE IN WEB VERSION

Appendix 1 – Special Testimonium Clauses 46
Appendix 2 – Execution Instructions Letter 52
Appendix 3 – Will Planning Information Sheet 54
Appendix 4 – Sample Specimen Trust Will 61

PROBATE AND ESTATE ADMINISTRATION

INITIAL ADVICE TO PROSPECTIVE PERSONAL REPRESENTATIVE

[§7.01] Introduction 66
[§7.02] Identification of the Personal Representative 66
[§7.03] Deciding Whether to Act as a Personal Representative 66
[§7.04] Immediate Responsibilities of a Personal Representative 67
1. Disposition of Remains 67
2. Care and Management of Assets 67
3. Dealing with Liabilities 68
4. Preparing to Administer the estate 68
5. Accounting and Expenses Prior to the Grant 68
6. Safety Deposit Boxes 68
[§7.05] Preparing to Make the Application for Probate or Administration 68
1. Gathering Information 68
2. Reviewing the Will and Advising on its terms 70
3. Intestacy, Lapse and Ademption 70
4. Choice of Applicant for Letters of Administration 70
5. Other Grants of Administration 70
6. Murder 70
7. Survivorship 70
8 Presumption of Death 70
9 Other Duties and Powers of Executors and Administrators 70
10. Scope of Solicitor’s Retainer 72
 (iv)

11. Insolvent Estates 72

12. First Nations
[§7.06] Public Guardian and Trustee as Official Administrator 73
[§7.07] Public Guardian and Trustee 73

ASSETS AND LIABILITIES: VALUATION AND INVENTORY

[§8.01] Introduction 74
[§8.02] Purpose of the Inventory 74
[§8.03] Assets and Liabilities 74
1. Property that Passes to the Personal Representative 74
2. Property that Does Not Pass to the Personal Representative 74
3. Liabilities 75
[§8.04] Form of Inventory 75
[§8.05] Valuation 75
[§8.06] Authorization to Obtain Information 76

DEVOLUTION OF ASSETS

[§9.01] Types of Assets 77

[§9.02] Assets that do not pass to the Personal Representative 77
1. Joint Tenancies 77
2. Life Insurance Policies and Proceeds 77
3. Pensions and Retirement Plans 78
4. Imminent Death Donation 78
5. Powers of Appointment 78
6. Employment Benefits 79
7. Contractual and Other Obligations 79
8. Insolvent and Bankrupt Estates 79
9. Statutory Benefits 79
10. Voluntary Payments 79
11. Family Property 79
12. Community of Property 79
13. Interests in Trusts 79
[§9.03] Assets that Pass to the Personal Representative 79
[§9.04] Conflict of Laws 79
1. Immovables 79
2. Movables 80
[§9.05] Location of Assets 80
 (v)

APPLICATIONS FOR PROBATE AND ADMINISTRATION

[§10.01] Introduction 81
[§10.02] Jurisdiction 81
[§10.03] Practice 81
[§10.04] Place and Time of Application 82
[§10.05] Probate Applications 82
1. Documents Required for a Typical Probate Application 82
2. Other Affidavits that May be Required 82
3. Procedure 83
4. Probate Fees 83
5. Notice Required under WESA 84
6. Variations of Normal Grant when the Executor is Unable to Act 86
7. Special Forms of Probate 87
[§10.06] Administration Applications 88
1. Documents Required for a Typical Administration Application 88
2. Procedure 88
3. Intestate Successor Not Consenting to Application 89
4. Other Grants of Administration 89
5. Security for Grant of Administration 89

OTHER APPLICATIONS IN THE COURSE OF ADMINISTRATION

[§11.01] Introduction 91
[§11.02] Rectification and Construction of Wills 91
[§11.03] Probate Jurisdiction: Rectification of Will 91
1. Addition of Words 91
2. Application of WESA Section 59 91
3. Procedure 91
[§11.04] Construction Jurisdiction: Interpretation/Construction of Will 92
1. General 92
2. Ascertaining the will-maker's intent 92
3. Judicial approaches 92
4. Rules of construction 93
5. Procedure 93
[§11.05] Curing Deficiencies 93
[§11.06] Application for Advice and Directions 94
[§11.07] Dispute Resolution 94
1. Disputes among executors and trustees 94
2. Removal of an executor or trustee 94
[§11.08] Other Applications 95
1. Giving trustees new powers 95
2. Cy–près 96
[§11.09] General Supervisory Jurisdiction of the Court 96
 (vi)

TRANSMISSION AND TRANSFER OF ASSETS

[§12.01] Introduction 97
[§12.02] Executor’s Year 97
[§12.03] Legislation Affecting Transfer of Assets 97
1. Wills Variation Act 97
2. Income Tax Act 98
3. Estate Administration Act 98
[§12.04] Transmission and Transfer Procedures 98
1. General 98
2. Real property 99
3. Personal property 99

CREDITORS

[§13.01] Introduction 102

[§13.02] General 102
1. General Duties of the Representative Relating to Creditors’ Claims 102
2. Types of Creditors’ Claims 102
3. Defences to Creditors’ Claims 103
[§13.03] Liabilities of the Deceased 103
1. Contingent or Continuing 103
2. Unenforceable or Statute–barred 103
3. Family Creditors 103
4. Pledges 103
5. Spousal and Child Support 104
6. Creditor or Debtor a Beneficiary or Executor 104
[§13.04] Liabilities Relating to the Death: Funeral Expenses 104
[§13.05] Liabilities Incurred by the Personal Representative 105
[§13.06] Administering the Liabilities 105
1. Instructions and Retainer 105
2. Searches and Inquiries 105
3. Proof of Claims 106
4. Compromise of Claims 106
5. Payment of Liabilities 106
6. Distribution under Direction of Court 107
7. Insolvent Estates 107

TAX CONSEQUENCES RESULTING FROM THE DEATH OF A TAXPAYER

[§14.01] Duties of Executors, Administrators and Trustees 108

1. Returns 108
2. Prior year’s Returns not Filed 110
3. Clearance Certificates 110
 (vii)

[§14.02] Beneficiaries 111

1. General 111
2. RRSPs 111
3. Death benefits 111
[§14.03] Exceptions to the General Rules 111
1. Spouses and Spousal Trusts 111
2. Farm Property 112

ACCOUNTS

[§15.01] Introduction 114

[§15.02] Duty to Account 114
[§15.03] Requirement to Pass Accounts 114
[§15.04] The Accounts 114
[§15.05] Tax Considerations 115
[§15.06] Approval of Accounts 115
[§15.07] Discharge of Personal Representative 115

REMUNERATION OF PERSONAL REPRESENTATIVES AND TRUSTEES

[§16.01] Introduction 116

[§16.02] Entitlement to Remuneration 116
[§16.03] Amount of Remuneration 116
[§16.04] Procedure 116
[§16.05] Expenses 117

LAWYER’S REMUNERATION

[§17.01] Introduction 118

[§17.02] Entitlement to Remuneration 118
[§17.03] Lawyer’s Services 118
[§17.04] Assessment of Account 119
[§17.05] Further Reading 119

PROBATE ACTIONS

[§18.01] Introduction 120

[§18.02] Actions and Procedures before the Grant 120
1. Notice of Dispute 120
2. Citations 120
3. Subpoena For Testamentary Document or Grant 121
4. WESA Section 123 121
5. Curing Deficiencies in the Execution, Alteration, Revocation or Revival 121
6. Proof in Solemn Form 122
 (viii)

[§18.03] Actions and Procedures after the Grant 122

1. Revocation Applications 122
2. Rectification 123

VARIATION OF WILLS

[§19.01] Introduction 124

[§19.02] Jurisdiction 124
1. Requirements 124
2. Forum 125
3. Limitation period 125
[§19.03] Procedure 125
1. Commencement 125
2. Parties 125
3. Representative actions 126
4. Special Considerations with Respect to Land 126
5. Settlement 126
6. Evidence 126
7. The Order 126
8. Appeals, Variations and Rescissions 126
[§19.04] Role of the Executor 126
[§19.05] Duty to Make Adequate Provision 127
1. Generally 127
2. Factors to Consider 127
3. Relevant Date for Determining Adequacy of Support 131
[§19.06] Circumstances Precluding Relief 131
1. General 131
2. Actions by Spouses 132
3. Actions by Children 133
[§19.07] Determination of Quantum 134
1. General 134
2. Factors to Consider 134
 1

Chapter 1 A narrative overview and the full text of WESA appears

in the 2010–2011 edition of Annotated Estates Practice
(CLEBC, 2010). In November 2010, CLEBC also
1 published a WESA Transition Guide.
Wills and Intestate Succession
The Practice Material: Wills is divided into two main
parts. The first part deals principally with wills—what
Succession laws are concerned with the transfer of real they are, their formalities, their planning and drafting. It
and personal property from one person to a successor. also includes a discussion of the planning techniques that
The area of succession law can include gifts, inter vivos can be used when dealing with clients who have a
trusts, wills and intestate succession. Effective estate mental incapacity. The second part deals with probate
planning involves organizing a client’s affairs so as to and administration of an estate.
realize the goals of the client, both personal and for The Lawyers Insurance Fund cautions that wills practice
dependents, during his or her lifetime, and after death. and estate planning is a challenging area of the law, with
The Practice Material: Wills deals only with wills and many pitfalls for the “dabbler.” The inexperienced
succession. lawyer who tries to bring a few thousand dollars in by
The whole area of wills and estates is undergoing a doing some wills may see those dollars (and more)
significant revision since the Wills, Estates and disappear as the lawyer’s deductible when a negligence
claim is made. Lawyers should only undertake wills
Succession Act, S.B.C. 2009, c. 13 (“WESA”) came into
practice and estate planning when they have the
force on March 31, 2014. appropriate knowledge of the law and the requisite
WESA repealed and replaced the Estate Administration drafting skills to do a good job. In other words, do not
Act, R.S.B.C. 1996, c. 122; the Probate Recognition Act, practice in this area of the law unless you are prepared to
R.S.B.C. 1996, c. 376; the Wills Act, R.S.B.C. 1996, c. apply the same degree of diligence and care that you
489; and the Wills Variation Act, R.S.B.C. 1996, 490. would apply to any other.
The revisions to law and procedure captured in the
[§1.01] The Estate
provisions and structure of WESA reflect acceptance of
many of the recommendations of the British Columbia Only property that forms part of the deceased’s estate
Law Institute contained in its Report on Wills, Estates will be distributed under the terms of the will or under
and Succession, B.C.L.I. Report No. 45 (June 2006). the scheme of intestate succession. Thus, to advise a
client properly on his or her plan and to draft the will,
Among many other changes to practice, WESA requires the lawyer must have a clear understanding of how the
substantial changes to probate procedures. New Supreme client owns property and whether that property will form
Court Civil Rules and forms dealing with probate and part of the client’s estate upon death.
administration have been added as Rule 25. Note also that sections 42 through 50 of the Indian Act,
For a summary of the new probate rules, see R.S.C. 1985, c. I-5, may apply to “matters and causes
www.ag.gov.bc.ca/courts/other/supreme/2010SupRules/i testamentary” when the deceased is a registered Indian
nfo/index_probate.htm. who was “ordinarily resident” on reserve or Crown land.
Division 3 of WESA also deals with some First Nations
and Nisga’a property.
Property that is subject to the terms of a will is said to
“pass” by the will and generally will include all assets
over which the client has complete dominion, control,
and beneficial interest. Such assets might include:
1
Updated by PLTC in January 2016. Helen Low of Fasken
Martineau DuMoulin LLP kindly reorganized and revised this
(a) the client’s tangible personal effects (for
chapter in March 2005. Reviewed and revised annually from example, furniture, artwork, jewellery and
April 1994 to February 2001 by Ross Tunnicliffe of Clark automobiles);
Wilson, Vancouver. Reviewed for content relating to the Indian
Act, in January 2002, by Roger D. Lee, Davis & Company,
(b) intangibles (for example, stocks, bonds,
Vancouver. Reviewed for content relating to persons with investment certificates, bank accounts, choses
disabilities, in January 2002, by Halldor Bjarnason, Vancouver. in action); and
Prepared for PLTC in February 1990 by a committee consisting
of Gordon B. MacRae, Mark Horne, Ross Tunnicliffe and (c) real estate interests (for example, fee simple or
Sandra K. Ballance, drawn in part from articles written for CLE leasehold).
by Professor Donovan W.M. Waters, Q.C., J. Albert Bruce,
Q.C., Peter Bogardus, Q.C., William C. Bice, and Sandra K.
It is important to distinguish property that a client owns
Ballance. directly from property that the client owns indirectly.

Wills
 2
For example, a client may purport to gift a parcel of land regime may pass to the surviving spouse
in her will, yet the land is held by a company owned by directly.
her. In this case, the client may only direct that the
(g) Property that is subject to an equitable claim,
shares of the company be bequeathed under the will,
such as that under a constructive trust pass
because she has no authority, in her personal capacity, to
according to the finding of claim. See for
directly transfer ownership of the land itself.
example, Clarkson v. McCrossen (1995), 3
Property that does not “pass” by a will, or is not subject B.C.L.R. (3d) 80 (B.C.C.A.) where a stepchild,
to the scheme of intestate distribution, is property that who was treated as a child by the deceased for
the client may own, but which is nevertheless distributed over 40 years, received a very significant
by operation of law upon death. Such assets do not form portion of the deceased’s estate by way of
part of the deceased’s estate upon death and are constructive trust. The stepchild’s claim was
distributed in accordance with the applicable overriding based on unjust enrichment arising from the
legal rule. on-going domestic services rendered by her to
the deceased and her efforts of generally
(a) Subject to the 5 day survival rule in section 10
nursing and caring for the deceased. The fact
of WESA, property held in joint tenancy passes
that the stepchild’s services arose from a
to the surviving joint tenant by operation of the
familial relationship did not preclude her
right of survivorship. (Caution—judicial
claim. The stepchild could only rely on the
decisions have shown that the particular
constructive trust remedy because she lacked
circumstances surrounding funds being held in
the status of “child” under the Wills Variation
joint tenancy bank accounts between the
Act (Hope v. Raeder (1995), 2 B.C.L.R. (3d)
deceased and a surviving party may rebut the
80 (B.C.C.A.)) to vary the terms of the
presumption of the right of survivorship held
deceased’s will which virtually left his entire
in favour of the surviving party or resulting
estate to his second wife who was not the
trust held in favour of the surviving party. See,
stepchild’s mother.
for example, Taylor Estate v. Taylor (1995), 9
E.T.R. (2d) 15 (B.C.S.C.), Hammond v. (h) Cultural property of a Nisga'a citizen, which
Hammond (1995), 7 B.C.L.R. (3d) 25 may be subject to a proceeding under WESA.
(B.C.S.C.) and Oolup v. Canada 2004 DTC
This subject is discussed in more detail in §9.02.
2142 (TCC)).
(b) Proceeds of a life insurance contract pass to [§1.02] Disposition of Property by Will
the beneficiary designated under that contract
because of the Insurance Act, R.S.B.C. 2012, In order for a will to be effective the will-maker must
c. 1. have:
(c) A refund of premiums contributed to a RRSP, (a) intended the will to have a dispositive effect;
RRIF, or pension plan pass to the beneficiary
(b) intended that the will not take effect until after
designated under that plan because of the Law
death and to be entirely dependent on death
and Equity Act, R.S.B.C. 1996, c. 253.
for its operation;
(d) Property otherwise subject to contractual
(c) intended for the will to be (and in fact is)
obligations which limit the client’s right to
revocable; and
alienate the property (for example, a marriage
agreement, separation agreement, or (d) executed the will in accordance with the
shareholders’ buy-sell agreement) pass under requirements of WESA (see Chapter 2 for a
the terms of that contract. See Butterfield v. more detailed discussion of these
Todd Estate (1996), 12 E.T.R. (2d) 318 requirements).
(B.C.C.A.), which confirms the general rule
Dying with a will (also referred to as dying testate) does
that contractual promises are enforceable
not necessarily mean that the will-maker’s property will
against a promissor’s estate.
be distributed in accordance with the wishes set out in
(e) Gifts of property that are conditional on death that will. A properly executed, unrevoked will may or
(donatio mortis causa) pass to the donee. See may not govern how the will-maker’s estate will be
Costiniuk v. Cripps Estate (2000); E.T.R. (2d) administered on death. In some cases, a will may fail to
199, 2000 BCSC 1372, affirmed 2002 BCCA dispose of all of the will-maker’s property, and the
125, which discusses what circumstances must omitted property will pass by intestacy. In other cases, a
be met for an effective donatio mortis causa. court may find that all or a portion of a will is invalid for
some reason, and the rules of intestacy will dictate the
(f) Property subject to division under the Family
distribution of the affected property.
Law Act or some other matrimonial property
Wills
 3
In some situations, a variation claim might be brought Section 24 deals with distribution to the descendants of a
and a court may agree to vary the terms of the will. For person. “Descendant” is defined as all lineal descendants
more information see chapter 19. of that person through all generations so it seems to have
the same legal meaning as “issue.” Section 24(1) sets
[§1.03] Disposition of Property on Intestacy
out how the number of shares is determined:
When a person in British Columbia dies without a will, (1) When a distribution is to be made under
that person is said to have died intestate. When the this Part to the descendants of a person,
person dies leaving a will that does not fully dispose of the property that is to be so distributed
his or her estate, he or she is said to have died partially must be divided into a number of equal
intestate and the rules about who is entitled to share in shares equivalent to the number of
that deceased’s estate are determined by statute. In (a) surviving descendants, and
British Columbia Part 3 of WESA sets out the mandatory (b) deceased descendants who have
legislative scheme for distribution. left descendants surviving the
PART 3 person,
Section Dies Leaving Distribution in the generation nearest to the intestate
that contains one or more surviving
20 spouse and no entire estate to spouse. members.
descendants
21(2) & spouse and to spouse: first $300,000, Section 24(2) describes how those shares are distributed:
21(3) descendants of household furnishings and
Each surviving member of the generation
intestate and right to purchase spousal
spouse home from estate for 180 days nearest to the person that contains one or
after representation grant. more surviving members must receive
Residue: one-half to spouse; one share, and the share that would have
one-half to intestate’s been distributed to each deceased
descendants pursuant to member if surviving must be divided
section 24. among that member's descendants in the
same manner as under subsection (1) and
21(2) & spouse and to spouse: first $150,000, this subsection.
21(4) descendants of household furnishings and
intestate but not right to purchase spousal When the estate is that of a deceased registered Indian,
spouse home from estate for 180 days there is a separate regime governing intestate succession
after representation grant. under s. 48 of the Indian Act.
Residue: one-half to spouse;
one-half to intestate’s
DISTRIBUTION OF PROPERTY ON INTESTACY
descendants pursuant to Surviving spouse’s share
section 24. 48. (1) Where the net value of the estate of an
intestate does not, in the opinion of the
22 more than one spousal share divided as the Minister, exceed seventy-five thousand
spouse spouses agree or as dollars or such other amount as may be
determined by the court. fixed by order of the Governor in Council,
the estate shall go to the survivor.
23 descendants but equally among the
no spouse descendants pursuant to Idem
section 24. (2) Where the net value of the estate of an
intestate, in the opinion of the Minister,
23 mother or father equally to surviving parents. exceeds seventy-five thousand dollars, or
such other amount as may be fixed by order
23 brother and equally to the descendants of of the Governor in Council, seventy-five
sisters the intestate’s parents. thousand dollars, or such other amount as
may be fixed by order of the Governor in
24 nephews and equally to their deceased Council, shall go to the survivor, and
nieces parent’s share. (a) if the intestate left no issue, the
remainder shall go to the survivor,
For situations where the intestate is not survived by a (b) if the intestate left one child, one-half of
spouse, descendants, parents or descendants of parents the remainder shall go to the survivor,
sections 23(2)(d)(e)and (f) set out the distribution and
scheme.

Wills
 4
(c) if the intestate left more than one child, band if the nearest of kin of the intestate is
one-third of the remainder shall go to more remote than a brother or sister.
the survivor, Degrees of kindred
and where a child has died leaving issue and that (9) For the purposes of this section, degrees of
issue is alive at the date of the intestate’s death, kindred shall be computed by counting
the survivor shall take the same share of the estate upward from the intestate to the nearest
as if the child had been living at that date. common ancestor and then downward to the
Where children not provided for relative, and the kindred of the half-blood
(3) Notwithstanding subsections (1) and (2), shall inherit equally with those of the whole-
(a) where in any particular case the blood in the same degree.
Minister is satisfied that any children of Descendants and relatives born after intestate’s
the deceased will not be adequately death
provided for, he may direct that all or (10) Descendants and relatives of an intestate
any part of the estate that would begotten before his death but born thereafter
otherwise go to the survivor shall go to shall inherit as if they had been born in the
the children; and lifetime of the intestate and had survived
(b) the Minister may direct that the survivor him.
shall have the right to occupy any lands Estate not disposed of by will
in a reserve that were occupied by the (11) All such estate as is not disposed of by will
deceased at the time of death. shall be distributed as if the testator had died
Distribution to issue intestate and had left no other estate.
(4) Where an intestate dies leaving issue, his No community of property
estate shall be distributed, subject to the (12) There is no community of real or personal
rights of the survivor, if any, per stirpes property situated in a reserve.
among such issue.
(13) and (14) [Repealed, R.S., 1985, c. 32 (1st
Distribution to parents Supp.), s. 9]
(5) Where an intestate dies leaving no survivor
Equal application to men and women
or issue, the estate shall go to the parents of
(15) This section applies in respect of an intestate
the deceased in equal shares if both are
woman as it applies in respect of an intestate
living, but if either of them is dead the
man.
estate shall go to the surviving parent.
(16) [Repealed, R.S., 1985, c. 32 (1st Supp.), s. 9]
Distribution to brothers, sisters and their issue
(6) Where an intestate dies leaving no survivor For the purpose of determining succession under this
or issue or father or mother, his estate shall scheme, anyone who is legally adopted or adopted
be distributed among his brothers and sisters according to Indian custom is treated as if he or she was
in equal shares, and where any brother or related by blood to the adoptive relative. Before the child
sister is dead the children of the deceased can inherit, there must be a finding of adoption by
brother or sister shall take the share their custom.
parent would have taken if living, but where
the only persons entitled are children of Under WESA section 2, “spouse” includes persons who
deceased brothers and sisters, they shall take have lived together in a marriage-like relationship for at
per capita. least 2 years. This includes persons of the same gender.
Next-of-kin This definition grants common law and same-sex
(7) Where an intestate dies leaving no survivor, spouses the same entitlements as legally married
issue, father, mother, brother or sister, and no spouses. Section 22 addresses the situation where there
children of any deceased brother or sister, his are two or more spouses. If there is more than one
estate shall go to his next-of-kin. spouse, the spouses share in proportions they agree to or,
Distribution among next-of-kin if they cannot agree, in proportions determined by the
(8) Where an estate goes to the next-of-kin, it court to be just.
shall be distributed equally among the next-
Part 3, Division 2, provides some special devolution
of-kin of equal degree of consanguinity to the
rules regarding a spousal home when a spouse dies
intestate and those who legally represent
intestate. A surviving spouse is no longer entitled to a
them, but in no case shall representation be
life interest in a spousal home. Instead, he or she has a
admitted after brothers' and sisters' children,
right to purchase the spousal home from the estate for a
and any interest in land in a reserve shall
period of 180 days after the representation grant is
vest in Her Majesty for the benefit of the
issued.

Wills
 5
In addition to this scheme of devolution, the following have assets of more than $5,000 ($10,000 for a person
rules apply. with one or more dependants), they become ineligible
for disability assistance. As a result, for a person who is
(a) The descendant or relative of the intestate born
dependent on this financial assistance for survival even a
after the intestate’s death but conceived before
distribution from a small estate can have catastrophic
inherits as if he or she were alive at the
consequences. Consequently, when you are dealing with
intestate’s death provided he or she lives for 5
an intestacy, it is crucial to confirm that none of the
days (s. 8).
beneficiaries are receiving disability assistance before
(b) If a will-maker’s estate is not wholly disposed distributing the estate. In situations where a beneficiary
of by will, the part not disposed of devolves as is receiving disability assistance, it is important to
if he or she had died intestate with no other discuss the option of a disability related trust with the
estate (s. 25). beneficiary before the assets are distributed. Disability-
related trusts, as permitted under s. 12 of Employment
(c) Section 2(2) sets out when a person ceases to
and Assistance for Persons with Disabilities Regulation,
be a spouse for purposes of intestate
are discussed in §4.03.
succession:
“Two persons cease being spouses of each [§1.04] Further Reading
other for the purposes of this Act if, CLE publications of interest to general practitioners and
(a) in the case of a marriage, an event legal assistants with some wills and estates work, as well
occurs that causes an interest in family as for legal assistants and lawyers specializing in the
property, as defined in Part 5 [Property area are:
Division] of the Family Law Act, to
arise, or BC Estate Planning and Wealth Preservation (updated)
(b) in the case of a marriage-like BC Probate and Estate Administration Practice Manual
relationship, one or both persons (updated)
terminate the relationship.”
Wills, Estates and Succession Act Transition Guide
(d) Section 2(2.1) provides that: (updated to June 1, 2014)
Wills Precedents—An Annotated Guide (updated)
“For the purposes of this Act, spouses are not
considered to have separated if, within one Regarding intestacy under the Indian Act, see also, the
year after separation, papers, “Aboriginal Estates—policies and procedures of
(a) they begin to live together again and INAC, BC Region” and “Estates under the Indian
the primary purpose for doing so is to Act” in Practice Points: Aboriginal Law,
reconcile, and available on the CLEBC website at
(b) they continue to live together for one or http://www.cle.bc.ca/PracticePoints/ABOR/Aboriginalla
more periods, totalling at least 90 w.html.
days.” Regarding wills for First Nations persons see “Wills for
(e) Children born inside and outside of marriage First Nations persons” in Practice Points: Aboriginal
are treated equally when determining their Law, available on the BC Continuing Legal Education
rights to a share in an intestate’s estate. website http://www.cle.bc.ca. See also, Chapter 20 in
The British Columbia Probate & Estate Administration
When a person dies leaving no intestate successors, his Practice Manual, (Vancouver: CLEBC) and Chapter 27
or her estate escheats to the provincial Crown under in Wills Precedents—An Annotated Guide.
section 23(2)(f). Nevertheless, Section 23(4)(b) permits
a person to apply to the Lieutenant Governor in Council
under the Escheat Act, R.S.B.C. 1996, c. 120 for the
return of all or a portion of such real or personal property
on the basis of a legal or moral claim, or as a reward for
discovering the right of the provincial Crown to the
property.
One often overlooked consequence of dying without a
will is the effect of distribution of the estate on
beneficiaries who are receiving assistance under the
Employment and Assistance for Persons with
Disabilities Act and Regulation – disability assistance or
supplement. Under the Employment and Assistance for
Persons with Disabilities Regulation, if single persons
Wills
 6
Chapter 2 Estate v. Simkins (1992), 5 W.W.R. 418
(B.C.S.C.) where the court found that a will
was validly executed where it was signed by
the testator in the presence of one witness, then
Formal Validity of Wills and signed by that witness, then signed in the
Interpreting Wills1 presence of the testator and first witness by a
second witness brought into the room. See
Morris v. Morris (24 December 1993)
[§2.01] Formalities Smithers Doc. 7133 (B.C.S.C.) where the court
discussed the nature of evidence necessary to
The Wills, Estates and Succession Act, R.S.B.C. 2009, c. meet the burden of proof imposed on an
13 (“WESA”) sets out the formal requirements that are executor to propound the validity of a will by
necessary to make a will valid, including: proving that it was properly executed. See Ball
v. Taylor (1999), 27 E.T.R. (2d) 208 (B.C.S.C)
(a) The will must be in writing (s. 37(1)(a)).
where the court found that it is permissible for
(b) The will must be signed at its end by the the witnesses not to see the actual execution by
will-maker or by another person in the will- the testator, provided that the testator
maker’s presence and by the will-maker’s otherwise identifies the signature.
direction in either the will-maker’s name or
(d) Two or more witnesses must subscribe the
the name of the person signing (ss. 1, 37(1)
will in the presence of the will-maker
and 39). See Ellis v. Turner (1997), 43
(s. 37(1)(c)). An exception to this rule exists
B.C.L.R. (3d) 283 (B.C.C.A.) where the Court
for wills of individuals on active service as a
of Appeal determined that the s. 4(a) and (b)
member of the Canadian forces or a member of
requirements of the former Wills Act were not
the naval, land or airforce of the British
satisfied and the will was invalid because the
Commonwealth, or any ally of Canada. Such
testator did not sign while in the presence of
wills do not require attestation unless signed
the witnesses (the witnesses signed a document
by another person at the request of the will-
without seeing the testatrix sign it and the
maker, in which case only one witness is
testatrix’s signature did not actually appear at
required (s. 38).
the end of the document). While some of the
case law on this issue seemed to allow a degree (e) The will-maker must be at least 16 years old
of latitude as to the required formalities under unless he or she is in the armed forces as
the former Wills Act, the court in Bolton v. described above (s. 36).
Tartaglia (2000), 33 E.T.R. (2d) 26 (B.C.S.C.),
With respect to the witnesses subscribing their names to
following Ellis, confirmed that it had no
a will, note the following:
discretion to find a will valid if it had not been
executed in complete compliance with the (f) A signing witness to a will-maker’s signature
former Wills Act. In Bolton, a witness forgot to must be at least 19 years of age (WESA, s.
sign the will, although the evidence amply 40(1)).
showed that the witness had intended to place
(g) A will is not invalid as a result of the
her signature on the will. The court held the
incompetence of the witness at the time of
will invalid. See also, Toomey v. Davis et al.,
execution of the will or if the witness later
2003 BCSC 1211. It is yet to be determined
becomes incompetent (WESA, s. 40(3)).
how the courts will apply s. 58 of WESA to
improperly executed wills. (h) A will is not invalid by reason that a
beneficiary, or a spouse of the beneficiary, is
(c) The will-maker’s signature must be made or
an attesting witness. Subject to (j) below, any
acknowledged by him or her in the presence
bequest or appointment in favour of such a
of two or more witnesses both present at the
beneficiary/witness or his or her spouse will,
same time (s. 37(1)(b)). See, however, Simkins
however, be rendered void (WESA, s. 40(2),
43(1)). See Hammond v. Hammond (1992), 72
1
Updated by PLTC in January 2016. Sadie Wetzel of Davis LLP B.C.L.R. (2d) 141 (S.C.), and see s. 43(2).
updated this chapter in December 2012 in expectation of (i) A will is not invalid by reason that one of the
WESA. Douglas Graves further updated this chapter in 2014.
witnesses is the executor/executrix (WESA,
Helen Low of Fasken Martineau DuMoulin LLP reorganized
and revised this chapter in 2005. Reviewed and revised s. 40(2)). If the will also contains a “charging
annually from April 1994 to 2002 by Ross Tunnicliffe of Clark clause” which permits an executor to charge
Wilson, Vancouver. Reviewed for content relating to the Indian professional fees in addition to any
Act, in January 2002, by Roger D. Lee, Davis & Company, remuneration to which he or she may be
Vancouver. entitled, and the executor/ executrix or his or
Wills
 7
her spouse acts as a witness, then the charging  to the extent that the will exercises a power of
clause, treated in the nature of a gift, will be appointment, the law governing the essential
void under s. 40(2) or 43(1) of WESA. validity of that power.
(j) Under s. 43(4), the court may, on application, The classification of the estate into moveable and
declare that a bequest, appointment, or immoveable property will still be relevant for
charging clause in favour of a witness who is a determining the essential validity of a will.
beneficiary or his or her spouse is not void, if
Other conflict of law issues relating to probate and estate
the court is satisfied that the will-maker
administration are discussed in Chapters 11 and 12 of
intended to make the gift to the person even
these materials.
though the person was a witness to the will.
[§2.04] First Nations Wills
[§2.02] Curing Formal Deficiencies in a Will
The Indian Act governs the requirements of wills for
If there are deficiencies in a will or other document
registered Indians and provides that they need not
representing the deceased’s testamentary intentions or
comply with the formality provisions of WESA.
the intention of the deceased to revoke, alter or revive a
Subsection 45(2) allows the Minister to “accept as a will
will or testamentary disposition, such as not following
any written instrument signed by an Indian in which he
the formal execution requirements as set out in s. 37(1)
indicates his wishes or intention with respect to the
of WESA, a person may apply for an order under s. 58 of
disposition of his property on his death.”
WESA curing the deficiencies and declaring that the
document is effective as a will, revocation, alteration or Section 15 of the Indian Estates Regulations provides
revival of the will or testamentary disposition (see that: “Any written instrument signed by an Indian may
§11.05). be accepted as a will by the Minister whether or not it
conforms with the requirements of the laws of general
[§2.03] Conflict of law
application in force in any province at the time of the
WESA considers requirements of foreign jurisdictions death of the Indian.”
that certain formalities be observed by will-makers or
Consequently, while it would be good practice to
that witnesses have certain qualifications, to be formal
comply with the statutory formalities when drawing a
requirements only that do not affect the essential validity
will for a registered First Nations person, it may not be
of the will (s. 79(2)).
necessary for the signature on the will to be witnessed in
The formal validity of a will, insofar as it relates to both compliance with the provisions of WESA, or at all. For
moveable and immovable property, is governed by the more detail, see the British Columbia Probate and
law of any of the jurisdictions listed in s. 80(1) under Estate Administration Practice Manual §20.9.
which the will is valid. Counsel will have to work his or
her way through the following options until finding one [§2.05] Revoking a Will
that works:
A properly executed will is revocable even if the
 the law of the place where the will is made; language of the instrument states that it is irrevocable
 the law of the will-maker’s domicile, either at and even if the will-maker covenants not to revoke the
the date the will is made or at the date of the instrument. When a will is revoked in breach of a
will-maker’s death; contract or a covenant not to revoke it, the will-maker
and his or her estate may be liable in damages or subject
 the law of the will-maker’s ordinary residence, to some other equitable remedy for the breach. The
either at the date the will is made or at the date equitable remedy may be in the form of an order for
of the will-maker’s death; specific performance, a declaration of trust or an award
 the law of a country of which the will-maker based on unjust enrichment in favour of the party with
was a citizen, either at the date the will is made whom the will-maker had covenanted. However, the will
or at the date of the will-maker’s death; itself is revoked by the subsequent valid action of the
will-maker in making the revocation.
 the law of British Columbia, even if the will
was made outside British Columbia; Section 55 of WESA provides that a will may be
formally revoked by
 the law of the place where the will-maker’s
property is situated at the date the will is made (a) a later will made in accordance with WESA
or at the date of the will-maker’s death; (s. 55(1)(a)). (See Judge Estate v. Judge Estate
[1994] B.C.J. No. 123 (Q.L.) (B.C.S.C.) where
 in the case of a will made on board a vessel or a subsequently discovered letter purportedly
aircraft, the law of the place with which the signed by the deceased and two witnesses was
vessel or aircraft is most closely connected; or found to be merely a letter of intention and not
a valid will). However, even if the document
or writing did not meet the formal
Wills
 8
requirements for a will under s. 37, the court (c) a power of appointment granted in favour of a
may order that the document or writing be person who was or becomes the spouse of the
fully effective as a revocation of the will, will-maker.
provided that the court is satisfied that the
is void if, after making the will and before the death of
document or writing represents the deceased’s
the will-maker, the will-maker and his or her spouse
intention to revoke the will (ss. 58(2),(3));
cease to be spouses under s. 2(2) and s. 2(2.1) of WESA.
(b) a writing which declares an intention to revoke
Thus, the will-maker and his or her spouse ceasing to be
the will, executed in accordance with WESA
spouses under s. 2(2) of WESA, will only invalidate
(s. 55(1)(b));
certain will provisions made in favour of the will-
(c) destruction of the will by the will-maker or any maker’s spouse, unless a contrary intention appears.
other person acting in the presence of the will- Ceasing to be spouses will not invalidate the will as a
maker and by his or her direction, with the whole.
intention to revoke it (s. 55(1)(c)). (See Allen
Under s. 2(2) of WESA, persons who are legally married
(Committee of) v. Bennett (31 August 1994),
cease to be spouses when an event occurs that causes an
Kamloops 21231 (B.C.S.C.), which confirms
interest in family property, within the meaning of the
that a committee appointed under the Patients
Family Law Act, to arise (i.e. separation). Two persons
Property Act has no authority to revoke a will-
in a marriage-like relationship cease to be spouses when
maker’s will. There is a rebuttable presumption
one or both of them terminate the relationship (s. 2(2)).
that a will last known to have been in the
hands of the will-maker but which cannot be [§2.06] Altering a Will
found at death has been destroyed with the
intention to revoke it (Re Wherry (1991), 41 The client can alter his or her will by
E.T.R. 146 (B.C.S.C.) and Kumari v. Kumari
[1993] B.C.J. No. 108 (Q.L.) (B.C.S.C.)); or (a) executing a new will with desired changes (this
will usually revoke the earlier will);
(d) a court under s. 58 of WESA, if the court
determines that the consequence of the act of (b) executing a codicil; or
burning, tearing or destroying all of part of the (c) making an interlineation.
will is apparent and the will-maker intended to
revoke all of part of the will (s. 55(1)(d)). A codicil is an amending instrument to the existing will,
which is prepared and executed like a will but refers
Revocation of a will by destruction or by subsequent only to those provisions being altered. An interlineation
will or codicil may be conditional. If the revocation is involves a physical change to the existing will by the
subject to a condition that is not fulfilled, the revocation deletion or addition of words.
does not take effect. For example, the will-maker
destroys a will intending to make a new valid one, then By far the most preferable way of effecting an alteration
makes a second will but the second one is not valid for to a will is through a new will or a codicil.
some reason. In these circumstances the first will has not Interlineations should be avoided as their legal validity
been revoked. can be questioned as follows:
A revocation that does not strictly comply with the (a) Interlineations made before the execution of a
formal requirements in s. 55 can be “cured” by the court, will are technically not an addition to the will
as long as the court determines that it represents the and thus need not be separately executed by
intention of the deceased to revoke the will (ss. 58(2), the will-maker and two witnesses.
(3)). (b) Interlineations made after the execution of a
There is a common misconception that separation, which will are, technically, an addition to the will and
would trigger a division of family property under the thus must be attested to by the will-maker and
Family Law Act, or divorce would also revoke a will. the subscribing witnesses. Attestations are
WESA is actually much more limited in its application in usually in the margin or some other part of the
this regard. will near the interlineation or at the end of a
memorandum referring to the interlineation
Section 56 of WESA provides that unless a contrary and written in some part of the will. Unless the
intention appears in the will interlineation is attested to in this manner, s. 57
(a) an appointment of a person who was or of WESA provides that the interlineation will
becomes a spouse of the will-maker as have no effect except to invalidate a word or
executor or trustee; provision that the alteration makes illegible,
unless the court re-instates the original word or
(b) a gift of an interest in property to a person who provision under s. 58(4). An example is a
was or becomes a spouse of the will-maker; phrase which is blacked out and thus
and unreadable with the naked eye (Re Springgay
Wills
 9
Estate [1991] B.C.J. No. 984 (Q.L.) (S.C. imposed on the personal representative and to the
Master)). If an alteration to a will makes a extent possible, the court will direct the property
word or provision illegible and the court is that is subject to the trust in accordance with the
satisfied that the alteration was not made in agreement reached between the two will-makers
accordance with WESA, the court may reinstate although the surviving will-maker may have altered
the original word or provision if there is his or her will.
evidence to establish what the original word or
For there to be a valid mutual wills agreement, there
provision was (s. 58(4)).
must be:
(c) The law presumes that any interlineations to a
(a) the mutual agreement itself not to revoke
will were made after its execution. Thus, even
the individual will; and
if interlineations are made before the actual
execution of the will, those interlineations (b) the first will-maker to die must have done
should be formally attested to so this so without having revoked or changed his
presumption will not need to be rebutted when or her will in breach of the agreement.
probate of the will is sought. There is some case law regarding the possibility
that the surviving will-maker must have been
[§2.07] Republishing and Reviving a Will unjustly enriched as a result of the will-maker’s
breach of the agreement after the death of the first
Revival restores a revoked will: republication confirms a
will-maker.
valid will, while making it operate as if it were executed
on the date of republication. The proof of a mutual will require evidence apart
from an inference from the mere fact of making the
Republication can occur when a will-maker re-executes
mutual wills containing identical terms. A separate
his or her will with the intention of it operating as of that
agreement not to revoke must be found from all the
new date. Also, when someone makes a codicil and
circumstances in order to establish that there was a
refers to the codicil as being to an existing will, an
mutual agreement not to revoke the wills.
inference can be drawn that the will-maker wants to have
the codicil considered as part of the will, such that the 2. Conditional Wills
existing will is considered to exist as at that later date. A will that is made conditional on the occurrence of
A will or a part of the will that has been revoked can be some event, or to be effective only during the
revived by a later codicil made in accordance with continuance of a temporary state of affairs, is said
WESA so long as the wording of the codicil shows the to be a conditional will and probate of the will will
testator’s intention to give effect to the will or the part of be denied if the conditional event has not yet
the will that was revoked (WESA, s. 57(1)). To revive a occurred or the temporary state of affairs has altered
will, the will must exist (that is, not have been or passed. When determining whether the will is
destroyed). conditional, the circumstances surrounding the
making of the will and evidence of the intention of
Sometimes a document exists that is completely separate the will-maker is admissible to construe the will and
from the will and is unexecuted. The doctrine of the conditions.
incorporation by reference may apply, such that the
document is considered as part of the duly executed will. 3. Holograph Wills
To qualify as part of the will, the document must have A holograph will is a will made wholly in the will-
existed at the time the will was executed, and must be maker’s handwriting and not witnessed. Holograph
referred to in the will in a reference clearly identifying wills are recognized in other jurisdictions (for
the document (See Re Marshall Estate (2001), 39 E.T.R. example, Alberta) without restriction. Holograph
(2d) 87 (Nfld. Gen. Div) and Tucker v. Tucker (1985), wills are recognized in British Columbia only under
56 Nfld. & P.E.I.R. 102)). very limited circumstances (for example, the
[§2.08] Special Types of Wills military forces exception in WESA, s. 38).
The curative provision in s. 58 may, however, allow
1. Mutual Wills
a holograph will to be recognized in British
Mutual wills (two wills which contain a covenant Columbia. Even if the holograph will does not meet
not to alter the provisions) remain revocable the formal requirements for a will under s. 37(1),
notwithstanding the terms of the mutual wills. the court may find that the document represents the
However, the mutual wills may give rise to a deceased’s testamentary intentions and order that it
constructive trust that cannot be revoked. It is the be effective as the deceased’s will (ss. 58(2), (3)).
agreement within the mutual will made by the will-
makers not to alter or revoke the provision without
the other’s consent that gives rise to a constructive
trust that will not be revocable. That trust will be
Wills
 10
[§2.09] Testamentary Gifts - Lapse and A gift is said to have lapsed where, subject to a
Ademption contrary intention in the will, the beneficiary of the
gift predeceases the will-maker. Consequently,
1. Types of Gifts
(a) gifts which fail to take effect because of lapse,
A will-maker may make a conditional gift in his or will be distributed according to the following
her will. Such a gift may be subject to a condition priorities:
precedent (that is, the condition must be satisfied in
order for the gift to take effect), or subject to a (i) to the alternate beneficiary of the gift, if
condition subsequent (that is, the gift may take any (s. 46(1)(a)); or
effect, but will terminate on the happening of the (ii) if the beneficiary was the brother, sister
condition). or a descendant of the will-maker, to
2. Ademption their descendants (s. 46(1)(b)); or
An ademption arises where a will contains a (iii) to the surviving residuary
specific or demonstrative gift but the will-maker beneficiaries, if any, in proportion to
has disposed of the subject matter of that gift before their interests (s. 46(1)(c)).
death. When a gift adeems it means it fails and is of (b) a gift of the residue that lapses, passes on
no effect. Thus, if a will-maker leaves a particular intestacy under section 44.
painting to a beneficiary but sells the painting
during the beneficiary’s lifetime, the beneficiary
does not receive that painting on the will-maker’s
death.
In Koski v. Koski Estate (1994), 3 E.T.R. (2d) 314
(B.C.S.C.) the court found that closing a bank
account and transferring the funds in it to another
bank account did not result in an ademption of the
gift of funds held in the original bank account.
However, in Trebett v. Arlotti-Wood (2004), 134
A.C.W.S. (3d) 937 (B.C.C.A.), the Court of Appeal
found that in a situation where the will-maker had
transferred an investment account from one
brokerage firm to another, the will-maker caused
the subject matter of the gift to cease to conform to
the description in the will and therefore, the gift had
adeemed. Whether or not the will-maker intended
the gift to adeem was irrelevant.
Note that s. 48 of WESA provides that if a
“nominee” (committee, attorney, or representative)
disposes of the subject matter of the gift during the
will-maker’s lifetime, the beneficiary is entitled to
receive from the estate, an amount equivalent to the
proceeds of the gift, unless there is a contrary
intention in the will or the disposition was made in
accordance with the will-maker’s instructions given
at the time the will-maker had capacity.
3. Lapse
Wills should be drafted with a view to the future. A
competent legal drafter will take account of
contingencies and events, which the client might
not think about.
Because circumstances change between the time a
will is executed and the time of the will-maker’s
death, the following rules (which may give rise to
an intestacy) are important to note.

Wills
 11
Chapter 3 The leading case of Banks v. Goodfellow (1870), L.R. 5
Q.B. 549 at 567, suggests the test is one of a “sound and
disposing mind and memory”:

Testamentary Capacity1 In other words, he 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
[§3.01] Introduction dispose of, the persons who are the object of
his bounty, and the manner in which it is to be
In addition to satisfying the formal requirements set out distributed between them. It is not necessary
in WESA, in order to make a valid will, a will-maker that he should view his will with the eye of a
must have the requisite testamentary capacity to make a lawyer, and comprehend its provisions in their
will. This requisite mental element can be categorized legal form. It is sufficient if he has such a
into two components: mind and memory as will enable him to
(a) the will-maker must understand the nature of understand the elements of which it is
the act in which he or she is engaged, that is, composed and the disposition of his property
making a will. By this it is meant that he or in its simple forms.
she should intend by his or her act to make a Note that there are four separate components to the test.
disposition of property, effective on death; and As a practitioner, you should ensure that you are in a
(b) the will-maker must be free of mental disorder. position to satisfy the court as to the presence of each of
those elements. Your notes ideally will deal with those
When the will-maker has testamentary capacity as points under separate headings so that it is clear that you
described above, the will-maker must also exercise have canvassed the will-maker on all points.
genuine free choice in the making of the will in order to
have the requisite intention. With respect to the second requirement from the Banks
test—the recollection of the property the will-maker
[§3.02] Minors means to dispose of—the will-maker need not recall
every item of, say, an extensive portfolio of stock or real
In British Columbia, a person is capable of making a estate which passes under the will. The expression
valid will if he or she has reached the age of 16 (WESA, “persons who are the object of his bounty” refers not
s. 36). Certain exceptions apply to this general rule. An merely to those who are the actual beneficiaries in the
individual who is younger than 16 years of age may will, but those who might be considered as having
make a valid will if he or she is on active service in the “moral claims” on the will-maker. The courts have
armed forces. restricted the class of those who have moral claims for
this purpose to spouses, children and those to whom the
[§3.03] Test for Mental Capacity will-maker stood in loco parentis. Murphy v. Lamphier
(1914), 31 O.L.R. 287 (H.C.) at 317, aff’d (1914), 20
Case law shows that medical evidence is persuasive but D.L.R. 906 (Ont. C.A.) stands for the broader
not conclusive, because the question of whether the will- proposition that the will-maker “must understand the
maker has a sound and disposing mind “so far as extent of what he is giving to each beneficiary and the
evidence based on observation and experience is nature of the claims of others whom he is excluding.”
concerned, may be answered as well by laymen of good The cases show that the courts are engaged in a
sense as by doctors.” (See Re Price, [1946] O.W.N. 80 balancing act which does not set the test of soundness of
(C.A.); Candido v. Ciardullo (1991), 45 E.T.R. 99 mind too high, thus discouraging attacks on wills, or too
(B.C.S.C.) and Kournossoff Estate v. Chapman, (2000), low, thus preventing probate of absurd instruments.
34 E.T.R. (2d) 262; 2000 BCSC 1195). For an example However, the cases are not altogether consistent.
of a case where medical evidence was persuasive, see Contrast the statement of Sir James Hannan in Boughton
Heron Estate v. Lennox (2000), 35 E.T.R. (2d) 224; v. Knight (1873), L.R. 3 P.D. 64 that:
2000 BCSC 1553.
whatever degree of mental soundness is
1
Updated by PLTC in January 2016. Sadie Wetzel of Davis LLP required for crimes, contract, marriage, to give
updated this chapter in December 2011. Helen Low of Fasken evidence, the highest degree of all is required
Martineau Dumoulin LLP kindly reorganized and revised this
chapter in April 2005. Reviewed and revised in April 1994
in order to constitute the capacity to make a
with the assistance of Raquel Goncalves, by Professor Donovan testamentary disposition.
Waters, Q.C. and Gordon B. MacRae, Vancouver. Reviewed
and revised annually from March 1996 by Gordon B. MacRae,
until 1999 and subsequently by Genevieve N. Taylor and
Gordon B. MacRae, both of Legacy Tax & Trust Lawyers,
Vancouver.
Wills
 12
with the more measured observation of Cockburn, C.J. brother, his nearest relative, had defrauded him of
in Banks v. Goodfellow, supra: an inheritance. In Royal Trust Co. v. Ford, [1971]
S.C.R. 831, the will-maker’s delusion that his son
In deciding upon the capacity of the will-
was illegitimate was found to be only a cover for
maker to make his will, it is the soundness of
not wishing to leave more of his wealth to the son.
the mind, and not the particular state of the
The delusion, if it existed at all, was not the cause
bodily health, that is to be attended to: the
of the limited bequest.
latter may be in a state of extreme imbecility,
and yet he may possess sufficient The most difficult cases involve an aversion to
understanding to direct how his property shall spouse or children, as opposed to more obvious
be disposed of; his capacity may be perfect to delusions. For example, in Re Barter (1939), 13
dispose of his property by will, and yet very M.P.R. 359 (N.B.S.C.), the will-maker believed the
inadequate to the management of other daughter had wired his chair to give him electric
business, as, for instance, to make contracts for shocks. At what point does a harsh or eccentric
the purchase or sale of property. For most view of an object of bounty become sufficiently
men, at different periods of their lives, have irrational to constitute an incapacitating delusion? A
meditated on the subject of the disposition of will leaving property to strangers will stand where
their property by will, when called upon to the will-maker, apart from his or her delusions
have their intentions committed to writing, find about the will-maker’s family, simply does not care
much less difficulty in declaring their for them and had no intention to provide for them
intentions than they could in comprehending (Beal v. Henri, [1950] O.R. 780 (C.A.)).
the business in some measure new.
2. Dementia
[§3.04] Types of Cases Lack of testamentary capacity is often alleged in
situations where the will-maker suffered from
Most cases attacking a will on the ground of incapacity dementia, which includes an increasing number of
can be divided into two groups. First, those in which it diagnoses of Alzheimer’s disease (all ages), those in
is alleged that the will-maker suffered from delusions the advanced stages of AIDS, and those with other
that affected him or her in making the will; second, those terminal illnesses. Although certain types of
in which it is alleged that the will-maker suffered from dementia have been associated with aging, neither
dementia. In the latter situation, the will-maker’s mental advanced age nor the existence of a disease is itself
capacity is so reduced by advanced illness that he or she evidence of a lack of capacity. At some point in the
is incapable of making a will. progression of some diseases, however, the will-
maker’s testamentary capacity may be affected.
1. Delusions
The existence of some mental impairment is not
Dew v. Clark and Clark (1826), 3 Add. 79 defines a fatal according to Re Cranford’s Will (1975), 8 N.
delusion as a belief in the existence of something & P.E.I.R. 318 (Nfld. S.C.):
which no rational person could believe, and which
In these cases it is admitted on all hands
cannot be eradicated from the will-maker’s mind by
that though the mental power may be
reasoned argument. It is clear, however, that where
reduced below the ordinary standard, yet
the delusion does not affect either the will-maker’s
if there be sufficient intelligence to
property or the object of the will-maker’s bounty, it
understand and appreciate the
will not prevent him or her from making a valid
testamentary act in its different bearings,
will. There is also authority (although criticized)
the power to make a will remains (Banks
which supports the view that delusional disorder
v. Goodfellow, supra).
may affect only part of the testamentary act. Only
those parts that are gravely affected are struck out On the other hand, the leading case of Leger v.
(Re Estate of Bohrmann, [1938] 1 All E.R. 271). Poirier, [1944] S.C.R. 152 established that the
understanding displayed by a will-maker of
For example, in Banks v. Goodfellow, supra the
diminished mental capacity must be genuine:
will-maker was subject to certain fixed delusions
that he was molested by evil spirits. Because of the There is no doubt whatever that we may
absence of any reasonable connection between the have testamentary incapacity
delusions and the dispositions made by the will- accompanied by a deceptive ability to
maker to his niece to whom he was close, the answer questions of ordinary and usual
English Court of Appeal upheld the will. On the matters: that is, the mind may be
other hand, in Smee v. Smee (1879), 5 P.D. 84 the incapable of carrying comprehension
will-maker’s will leaving his estate to strangers was beyond a limited range of familiar and
set aside as the will-maker falsely believed that his suggested topics. A ‘disposing mind
Wills
 13
and memory’ is one able to comprehend, It is important to note that while a will-maker who is
of its own initiative and volition, the incapacitated cannot “know and approve” of the contents
essential elements of will making, of the will, it is possible to have a will-maker who does
property, objects, just claims to satisfy the test for capacity, and nevertheless does not
consideration, revocation of existing “know and approve.”
dispositions, and the like…
Knowledge and approval means simply that the will-
Merely to be able to make rational maker realizes what is in the will, and agrees that is what
responses is not enough, nor to repeat a he or she wants. The term “knowledge” does not exactly
tutored formula of simple terms. There mean “understand” what is in the will. So far as legal
must be a power to hold the essential terms are concerned the will-maker takes the risk that he
field of the mind in some degree of or she knows what each of them means. By employing
appreciation as a whole. them, he or she adopts them, and here he or she is
relying upon the skill and experience of the lawyer who
A lawyer must also take special care when taking
explains how they convey his or her intentions.
instructions from clients suffering from dementia.
Preferably instructions will be taken from the client The lawyer will normally explain clauses that dispose of
before the onset of dementia; however, if not, the the will-maker’s property to intended beneficiaries
solicitor should be concerned particularly with carefully. Yet the cases lead one to wonder how often
when the instructions are taken (that is, during lucid the same treatment is given to the so-called boilerplate
intervals) and in whose presence those instructions clauses. For instance, why does the will-maker want
are received. that clause that grants the power to retain original assets?
Is it because he or she wants the executors and trustees
In Oates v. Baker Estate, [1993] B.C.J. No. 406
to have the means to wait and sell at the best possible
(B.C.S.C.), the will-maker, who suffered from the
moment? Or does he or she want the assets retained
AIDS virus, made out a new will one month before
indefinitely as a permanent investment, income return,
his death. The solicitor took “exemplary” care while
and capital gain or loss arising for the beneficiaries as
taking instructions and when executing the will,
fate would have it? On the other hand, so far as the non-
both of which were significant factors in ensuring
technical language is concerned, matters which a non-
proof of testamentary capacity.
lawyer should be able to understand, “knowledge” could
reasonably be equated with understanding.
[§3.05] Knowledge and Approval
The lawyer will usually meet the requirement of
Though a full discussion of knowledge and approval is “knowledge and approval” by reading or explaining the
beyond the scope of this chapter, the distinction between will to the will-maker before execution. Even if a draft
capacity and knowledge and approval is important. of the proposed will has been mailed to the will-maker
for perusal before the execution interview, he or she
Despite a will-maker having the capacity to make a will,
should preferably follow a copy of the will as it is being
one or more of these vitiating elements may have been at
read or explained. Voice inflection with the proper
work upon him or her. For this reason, the lawyer
stress, language and sentence structure will bring greater
should always interview the will-maker personally. Even
understanding to the more literate will-maker if he or she
reliance upon instructions taken by an employee of the
has a copy to follow. Particularly with wills involving
lawyer is to be avoided in these circumstances. At the
trusts (as opposed to outright distributions) it is most
very least, the lawyer should interview the will-maker
advisable to have the will-maker actually convey his or
when execution is to take place, in order that the lawyer
her understanding to the lawyer by describing the effect
may satisfy himself or herself that the provisions in the
of the provisions rather than simply acknowledging as
will do in fact represent the free determination and
the will is reviewed. Needless to say, the lawyer will
choice of the will-maker. When conducting any
have carefully proofread the final typed original of the
interview for instructions or execution, the lawyer
will before the lawyer and the will-maker meet for the
should be alone with the will-maker.
execution, and will have checked off the provisions of
Apart from whether or not fraud, force, fear or undue the will against the instructions.
influence has been brought to bear upon the will-maker,
The solicitor should always express himself or herself
the person propounding the will, in addition to proving
clearly and maintain a moderate speed when explaining
compliance with the formalities of WESA, must establish
the will’s provisions. When reading those provisions to a
both:
client who is blind, less literate or illiterate, the lawyer
(a) that the will-maker possessed the requisite may need to be even more aware of his or her delivery.
capacity; and As for the will-maker whose first language is other than
English, the wisest course, if the solicitor does not speak
(b) that the will-maker knew and approved of the
the client’s first language, is either to send the client to a
contents of the will.
solicitor who does speak that language, or if that is not
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 14
possible, to employ an interpreter. If the will-maker is If the solicitor has doubts about the existence of
deaf consider referring the client to a lawyer who is deaf, testamentary capacity, he or she should have a medical
or if that isn’t possible, employ an interpreter. If you doctor, preferably the attending doctor or hospital
take the latter course, it is better to avoid having a physician, give an opinion as to capacity. If possible,
member of the will-maker’s family act as interpreter, if the doctor should also be present when the will is
that is at all possible. executed (Re Kaufman (1961), 27 D.L.R. (2d) 178 (Ont.
C.A.)).
When there are suspicious circumstances, the particular
importance of these procedures increases. When While the doctor’s opinion or presence when a will is
examined, the circumstances may reveal that force, fear being executed (even his or her witnessing the will) does
or undue influence were present and deprived the will- not mean that there can be no attack later upon the will-
maker of a genuine intent. Even if those elements are maker’s capacity, in practice it will make it much easier
absent, the circumstances may be enough to show that for the propounder to discharge the burden of proof that
there was “no approval.” For instance, if the person who the will-maker had capacity.
conveys the instructions to the lawyer is a beneficiary,
The test for testamentary capacity is ultimately a legal
especially if he or she is a substantial beneficiary, and
and not a medical one. Thus, it is important for the
the lawyer does not personally speak with the will-
solicitor to focus the physician’s attention on the
maker, there is a grave danger that the real intentions of
requisite elements for testamentary capacity. For
the will-maker will not be reflected in the will. The
instance, if asked simply whether an individual has
courts have consistently stated that it is the duty of the
capacity, a doctor may provide a general opinion based
solicitor to flush out and to examine suspicious
on the apparent understanding of the will-maker, without
circumstances by way of personally interviewing the
adverting to the possibility of any incapacitating
will-maker. Consider the difficult position of the
delusions. A declaration of incapability as to the
propounder seeking to discharge the burden of proving
management of one’s affairs, which doctors are
there was “approval”, if this talk between the solicitor
accustomed to provide in committeeship proceedings,
and the will-maker did not take place. See the Litman
will not be conclusive of a lack of testamentary capacity.
and Robertson article at (1979), 4 E.T.R. 136 in which
the authors suggest that the solicitor who fails to It may also be advisable to obtain a mental status
discharge his or her duty in suspicious circumstances examination (W.G. Estate v. T.G., [1998] B.C.J. No.
may be liable to disappointed beneficiaries under the 2369 (B.C.S.C.)). An examination is particularly
failed will. Consider also the comments of Sopinka J. in desirable in cases of progressive dementia, such as
Vout v. Hay, [1995] 2 S.C.R. 876 at §3.07. Alzheimer’s disease. A medical specialist who is
knowledgeable about diseases that impact memory and
[§3.06] Burden of Proof—Testamentary Capacity understanding can often provide useful objective
evidence. However, the evidence of lay people as to
Notwithstanding the various “tests” enunciated in the their conclusions may be accepted (Re Schwartz (1970),
cases, the question of testamentary capacity will always 10 D.L.R. (3d) 15 (Ont. C.A.); aff’d (1971), 20 D.L.R.
be one of degree and the lawyer will need to use (3d) 313 (S.C.C.).
judgement.
The following cases illustrate some further steps a
No particular type of evidence as to incapacity is likely solicitor may pursue in order to substantiate
to be conclusive, except in the “extreme cases” referred testamentary capacity.
to earlier. For instance, the mere fact that a will-maker 1. Re Carvell (1977), 21 N.B.R. (2d) 642 (N.B.
has been declared “incapable of managing his affairs” in Prob.Ct.).
a committeeship proceeding does not preclude him or
her from having testamentary capacity (Royal Trust Interview the will-maker with sufficient depth;
Company v. Rampone, [1974] 4 W.W.R. 735 make enquiries about the possibilities of specific
(B.C.S.C.)). It may be, as in Rampone, that the will- assets being given to specific relatives, friends or
maker has “good days and bad days.” A will may be charities.
made during a lucid interval. The nature of the mental Ensure that the enquiries are not too general
health issue may not be sufficient to affect the will- regarding the nature and extent of the will-maker’s
maker’s memory and understanding (O’Neil v. Royal property.
Trust Co., [1946] S.C.R. 622). With respect to Ascertain the value of the will-maker’s main assets
incapacitating delusions, the question is not “could the and whether those assets are encumbered.
delusions possibly have an influence upon the
disposition to be made, but rather “did the delusions in Discuss with the will-maker the effect of the
fact influence or affect the disposition actually made?” purported will and the legislation which might have
(McIntee v. McIntee (1910), 22 O.L.R. 241 (Ont. H.C.)). an effect on the proposed disposition.

Wills
 15
Take reasonable steps to ascertain the existence of solicitor’s notes (either of the solicitor’s own
suspicious circumstances; for example, determine observations of the will-maker, or of his or her
whether the will-maker’s proposed will departs discussions with the will-maker’s doctor, relatives or old
substantially from previous express testamentary friends), could deprive the court of extremely pertinent
intentions. contemporary evidence if capacity were later called in
question. See also Re Worrell, [1970] 1 O.R. 184 (Surr.
2. Re Schwartz (1970), 10 D.L.R. (3d) 15 (Ont. C.A.);
Ct.).
aff’d (1971), 20 D.L.R. (3d) 313 (S.C.C.):
Drugs and alcohol may deprive a person of testamentary
Be sensitive to the existence of suspicious
capacity. While inebriation is a condition most can
circumstances. Here the will-maker was a 78-year-
recognize, this is by no means as true in the case of
old man who was seriously ill and exhibiting signs
drugs. The practical problem most likely to confront the
of mental dysfunction. The court stated:
lawyer is the prospective will-maker who is receiving
The solicitor appeared to treat the matter medication. Before taking instructions, the lawyer
as if he was acting for a man in good should ask the attending physician about what effect the
health and in full command of all particular treatment may have upon the mind and
faculties, although he knew or became memory of the patient. If there is any possible effect, the
aware of the sensitive situation into lawyer should ask that such treatment be suspended for
which he had been introduced. the necessary time before the giving of instructions. In
this way, the mind of the will-maker will be as free as
3. Eady v. Waring (1974), 43 D.L.R. (3d) 667 (Ont.
possible of any drug influence during the instruction
C.A.)
giving period. If the lawyer is medically advised that the
Obtain reliable information upon which an drug treatment cannot be suspended, he or she may still
objective assessment of mental capacity can be proceed if satisfied on the advice of the physician that
made. Ensure that an interested party is not present testamentary capacity will not be adversely affected.
during the interview. More considered judgment is called for if the drug has
an influence that cannot be avoided at any time during
4. Slater v. Chitrenky, [1981] 4 W.W.R. 421 (Alta.
the medication cycle.
Surrogate Ct.), aff’d [1982] 3 W.W.R. 575 (Alta.
C.A.) The lawyer may encounter an extreme situation where
the will-maker had capacity at the time when he or she
It is best to meet personally with the will-maker for
gave instructions to a lawyer, but has only limited
the will’s execution, particularly where the will-
powers of understanding at the time of execution.
maker is ill and hospitalized when he or she signs
Provided the will-maker is capable of understanding on a
the will.
later occasion that the document before him or her
A lawyer should keep notes, not only of the will-maker’s contains the instructions that were given earlier, that will
instructions, but also of any observations the lawyer be sufficient. Even though the will-maker may not be
made concerning the will-maker’s capacity while able to repeat or comprehend the instructions on a later
instructions were being given. These notes should be occasion, nor ascertain that the document for execution
kept on file after the will has been executed (and even does indeed represent those instructions, the rule in
after probate of the will). If the lawyer hasn’t recorded Parker v. Felgate (1833), 8 P.D. 171 requires only that
observations while with the will-maker, the lawyer the will-maker should be able to think thus far:
should do so immediately afterwards. The lawyer
I gave my solicitor instructions to prepare a
should also record his or her observations of the will-
will making a certain disposition of my
maker’s state of mind at the date of execution.
property. I have no doubt that he has given
The lawyer should also do a memorandum to file of all effect to my intention, and I accept the
medical advice sought and received and of the document which is put before me as carrying it
circumstances in which the instruction taking and out.
execution took place. If time permits, the lawyer should
The rule is narrowly construed to prevent abuse; it may
obtain a letter of opinion from the physician
not apply to a situation other than one in which
substantiating his or her views. Alternatively, the lawyer
instructions have been given directly to the lawyer and it
should have the physician endorse the patient’s chart. In
is that lawyer who himself or herself attends on
extreme circumstances, the lawyer may wish to
execution (Battan Singh v. Amirchand, [1948] A.C. 161
electronically record his or her interview with the will-
(P.C.) and commentary by M.M. Litman at (1979), 4
maker (Re Wright Estate (1981), 13 Sask. R. 297 (Surr.
E.T.R. 136). For an application in British Columbia of
Ct.)). It is part of the solicitor’s duty, as the judge said
Parker and Battan Singh, see Re Mcphee (1965), 52
in Murphy v. Lamphier, supra, “to satisfy the Court that
D.L.R. (2d) 520.
the steps he took were sufficient to warrant his
satisfaction.” The lack of a mental status report, or of
Wills
 16
Where the will-maker possesses the required powers of 1. Test
understanding and memory when he or she gives
Circumstances that courts have found to be
instructions to the solicitor, but there is a possibility of a
suspicious include:
later and rapid decline of mental condition before
execution of the prepared will can take place, it is wise (a) physical or mental deterioration;
for the solicitor to have the will-maker sign the
(b) secret preparation of a will;
instructions and witnesses attest that signature. Even the
limited capacity required by the rule in Parker v. (c) “unnatural” dispositions;
Felgate, supra may have gone by the time the lawyer is
(d) involvement of beneficiaries in will
ready with the prepared will.
preparation;
Those propounding the will must establish that the will-
(e) lack of control of personal affairs by the will-
maker knew and approved of its contents. In ordinary maker;
circumstances (as opposed to suspicious circumstances),
the knowledge and approval of a will by the will-maker (f) drastic changes in the personal affairs of the
will be sufficiently established by proof of capacity and will-maker;
proper execution. (g) isolation from friends and family;
A review of the case law suggests that there are the (h) drastic changes in the testamentary plan of the
following rules with respect to the burden of proof of will-maker; and
testamentary capacity:
(i) physical, psychological or financial
1. The primary burden lies with the propounders who dependency on the beneficiaries.
“must satisfy the conscience of the court that the When suspicious circumstances exist, it is not
instrument so propounded is the last will of a free enough for the lawyer simply to have the will-
and capable [will-maker]” (Barry v. Butlin, [1838] maker confirm his or her instructions. If the will-
2 Moo. P.C. 480). maker’s mental health is deteriorating, it is
2. If the will is rational on its face, it is presumed that particularly important to ensure that the will-maker
the will-maker was capable at the time when it was is not simply responding to a series of leading
made. questions about the contents of the will. The will-
maker may be very practised at anticipating and
3. If the person attacks the will on grounds that rebut providing the desired response through picking up a
the presumption, the burden is on the propounder to combination of verbal and non-verbal cues. Even
establish that notwithstanding that general experienced practitioners are surprised to find
incapacity, there was adequate capacity at the time difficulties in comprehension when the will-maker
the will was made. is asked to explain the disposition scheme in his or
her own words. Judicial determinations make it
4. If the will is irrational on its face, there is a clear that the conduct of the lawyer’s enquiries and
presumption that the will-maker did not have the responses to those enquiries will be closely
adequate mental capacity so that those propounding examined to determine whether the mind of the
must satisfy the court of the will-maker’s capacity will-maker was free and unfettered.
at the time the will was made. It may of course be
The lawyer must explore in detail such matters as:
moot whether a will displays mere eccentricity as
opposed to irrationality. (a) Is the will rational on its face?
5. The burden is an evidentiary one in accordance (b) Have any potential beneficiaries of equal
with the civil standard. degree been excluded or forgotten?
(c) What did the previous will provide?
[§3.07] Suspicious Circumstances
(d) What precisely are the reasons for the changes
A lawyer must be particularly vigilant for “suspicious at this time?
circumstances.” Practitioners must develop a “sixth (e) Do those reasons dispel any suspicion arising
sense” to alert them to any circumstances surrounding from the circumstances?
the execution or preparation of a will which
“individually or cumulatively” casts doubt upon the will- (f) What assets comprise the overall estate?
maker’s capacity to make a will or his or her knowledge (g) Where does the will-maker bank?
and approval of the will’s contents.
(h) Does he or she own any real property?

Wills
 17
(i) What is the estimated size of the residue after have concluded that testamentary capacity was
the payment of debts and legacies? absent (Hall v. Bennett Estate (2003), 50 E.T.R.
(2d) 72 (Ont. C.A.)).
(j) Can the will-maker give an outline of his or
her family tree? In some circumstances, the lawyer may be
convinced that to draw a will for the client would
(k) Does the family tree disclose the existence of
only lay the groundwork for a lengthy probate
someone who would be a natural object of the
action at the expense of the estate. The lawyer may
will-maker’s bounty?
think that by drawing a will, he or she would simply
(l) Has he or she considered and does he or she be charging a fee for an act that he or she believes
appreciate the provisions of WESA? would be void. If the solicitor is convinced (on
strong evidence) that no testamentary capacity
(m) Is the will-maker taking any medication?
exists he or she can reasonably refuse to draw a will
(n) Has anyone suggested the scheme of for the client.
disposition?
In difficult cases it may be appropriate to retain a
(o) Has the will-maker discussed the scheme of second lawyer with experience in the wills area to
disposition with any beneficiary? provide a second opinion. If a will is ultimately
prepared, both lawyers should attend on execution
(p) If the will-maker has become alienated from a
of the document. It can only assist the court in its
previous beneficiary, what are the
ultimate determination to have not only the medical
circumstances surrounding that alienation?
evidence available, but also the evidence of two
(q) Can the circumstances surrounding alienation practitioners mindful of the legal principles
be objectively verified? involved.
(r) If the will-maker is making dispositions on the 2. Burden of Proof
basis of care and assistance provided to him or
When a will is prepared under circumstances that
her, is his or her memory sufficient to evaluate
raise a well-grounded suspicion that it does not
that assistance in the context of assistance
express the mind of the will-maker, the propounders
previously given by others?
of the will face a burden of proof to remove the
(s) Is there someone with whom the solicitor can suspicion by proving knowledge, approval
speak to verify the family relationships? testamentary capacity, or both. The evidence must
be carefully evaluated in accordance with the
The particular circumstances will suggest what
gravity of the suspicion raised (Barry v. Butlin (per
additional enquiries should be made.
Sopinka J. in Vout v. Hay, [1995] 2 S.C.R. 876)).
When the solicitor comes to the conclusion after
In Vout v. Hay, the Supreme Court of Canada
seeking out and considering all the evidence,
examined the doctrine of suspicious circumstances
especially an unambiguous medical opinion, that
and what effect it has upon the burden of proof.
the will-maker lacks testamentary capacity, and the
This has become the leading decision on the issue.
will-maker (whether with or without this
information) remains anxious to make a will, the The will-maker, Hay, was an unmarried 81 year old
solicitor is clearly placed in a difficult professional man who was murdered while living alone on his
position. The situation seems to call for the farm. The appellant, Vout, the executor named in
solicitor’s own reasoned judgement in the particular the will, was a 24-year-old woman who was
circumstances. The solicitor must consider that to unrelated to the will-maker. Apparently, the
refuse to take instructions may cause considerable appellant and the will-maker had been friends for
distress to the would-be will-maker that all several years, as the appellant had helped Hay on
evidence of incapacity is opinion until a court has the farm. There was no evidence that the friendship
ruled on the matter, and that he or she should give was any more intimate. None of Hay’s relations
the benefit of any doubt to the will-maker. was made aware of Vout, despite their frequent
contact with the deceased.
The trial judge in Hall v. Bennett Estate (2001), 40
E.T.R. (2d) 65 found a lawyer to be negligent when Under a will dated in 1985 (three years before his
he failed to draw a will for a will-maker who death), Vout inherited one farm and the residue of
frequently drifted into unconsciousness, as the the estate, while the respondents, Hay’s relations,
lawyer attempted to obtain instructions from him. inherited another farm and some minimal cash. The
The lawyer successfully appealed the decision. The respondents challenged the validity of the will dated
Ontario Court of Appeal held that the relevant 1985, putting forward a previous will, dated 1966,
question to ask on the issue of solicitor liability is and raised the question of Vout’s involvement in
whether a reasonable and prudent solicitor could preparing the will (which she had lied about
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according to an interpretation of the evidence). pointing to some evidence which, if
Moreover, they challenged the veracity of Vout’s accepted, would tend to negative knowledge
testimony as there were discrepancies between what and approval or testamentary capacity. In
she had told the police when questioned while a this event, the legal burden reverts to the
suspect to the murder and her testimony at the trial. propounder.
Witnesses testified as to Hay’s self-reliance, It might have been simpler to apply the same
independence and to the fact that he was not easily principles to the issue of fraud and undue
influenced. On this basis, the trial judge concluded influence so as to cast the legal burden onto
that the will-maker had the requisite capacity, that
the propounder in the presence of suspicious
the will had been duly executed, and that there was
circumstances as to that issue . . .
no undue influence. The Court of Appeal set aside
the trial judge’s decision stating that the trial judge Nevertheless, the principle has become
erred by considering only the mental competence of firmly entrenched that fraud and undue
the will-maker and failing to determine whether influence are to be treated as an affirmative
“suspicious circumstances” existed. If there had defence to be raised by those attacking the
been a finding of suspicious circumstances, the will. They, therefore, bear the legal burden
burden would have shifted to Vout to disprove of proof . . . Accordingly, it has been
undue influence. A new trial was ordered. Vout authoritatively established that suspicious
appealed to the Supreme Court of Canada. circumstances, even though they may raise a
suspicion concerning the presence of fraud
Sopinka J. for the majority held that the Court of
Appeal had erred and that the trial judge had or undue influence, do no more than rebut
properly considered the doctrine of suspicious the presumption to which I have referred.
circumstances. In so doing the Court states at, supra This requires the propounder of the will to
paragraphs 26, 27 and 28: prove knowledge and approval and
testamentary capacity. The burden of proof
. . . The burden with respect to testamentary with respect to fraud and undue influence
capacity will be affected as well if the remains with those attacking the will. . . . It
circumstances reflect on the mental capacity should be noted that the challenged will had
of the [will-maker] to make a will. Although been prepared by the legal secretary to a
the propounder of the will has the legal lawyer who had previously acted for Vout’s
burden with respect to due execution, parents: although executed in the lawyer’s
knowledge and approval, and testamentary office and witnessed by another secretary,
capacity, the propounder is aided by a the lawyer was not involved.
rebuttable presumption. Upon proof that the
will was duly executed with the requisite [§3.08] Undue Influence
formalities, after having been read over to or
by a [will-maker] who appeared to 1. Test
understand it, it will generally be presumed
The intention of the will-maker to make a will
that the [will-maker] knew and approved of
includes the requirement that his or her intention is
the contents and had the necessary genuine. If any provision of the will was due to
testamentary capacity. force, fraud, fear or undue influence brought to bear
Where suspicious circumstances are present, on the will-maker by another person, this genuine
then the presumption is spent and the intention does not exist.
propounder of the will reassumes the legal
burden of proving knowledge and approval. 2. Burden of Proof
In addition, if the suspicious circumstances The propounder of the will must prove that the
relate to mental capacity, the propounder of formalities of making the will were followed, that
the will reassumes the legal burden of the will-maker possessed the requisite capacity to
establishing testamentary capacity. Both of make the will, and that the will-maker knew and
these issues must be proved in accordance approved the contents of the will.
with the civil standard. There is nothing A party alleging undue influence in a proceeding
mysterious about the role of suspicious must show only that a person other than the will-
circumstances in this respect. The maker was in a position where there was the
presumption simply casts an evidentiary potential for dependence or domination of the will-
burden on those attacking the will. This maker. The propounder then has the onus of
burden can be satisfied by adducing or
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 19
showing that the person did not exercise undue Refer to Rodney Hull’s articles at 1 E.T.Q. 122 and 3
influence over the will-maker (WESA, s. 52). E.T.R. 74 for a practical discussion of case organization,
and to Chapter 15 of the B.C. Probate and Estate
No presumption arises because of any particular
Administration Practice Manual, (Vancouver: CLEBC)
relationship between the will-maker and a
which sets out the procedure in British Columbia for
beneficiary. Note, in the words of Sir J.P. Wilde in
proof in solemn form.
Hall v. Hall (1868), L.R. 1 P & D 481: “persuasion
is not unlawful, but pressure of whatever character,
if so exerted as to overpower the volition without
convincing the judgment of the will-maker, will
constitute undue influence.” The attack will fail if
there is insufficient affirmative evidence of undue
influence to displace proof of knowledge and
approval by the propounders (which must only meet
a balance of probabilities test). For this reason those
alleging undue influence will almost invariably also
put testamentary capacity in issue.
Allegations of undue influence, like those of fraud
in other proceedings, should not be made lightly
and if made on insufficient evidence, may result in
the attacker (and perhaps his or her solicitor) being
penalized in costs.
In the case of the estate of a First Nations person, the
Minister has the power to declare a will void if he or she
is satisfied that there was undue influence or that the
deceased lacked capacity at the time the will was signed:
s. 46(1)(a) and (b). For more on the voidance of wills of
First Nations persons see §20.10 of the CLEBC, BC
Probate and Estate Administration Practice Manual.

[§3.09] Further Reading

For a more detailed analysis of testamentary capacity

consult texts, manuals and journal articles on wills, such
as:
Feeney’s Canadian law of wills. 4th edition.
Toronto: Butterworths, 2000 (loose-leaf).
Gillese, The Law of Trusts. 2nd edition and digital
edition. Concord: Irwin, 2005.
Hull, Ian M., Challenging the Validity of Wills.
Scarborough: Carswell, 1996.
Mellows, A.R. The Law of Succession. 5th edition.
London: Butterworths, 1993.
Sherrin, Chris H., R.F.D. Barlow and R.A.
Wallington, Williams on Wills. 9th edition.
London: Butterworths, 2008.
Waters, Donovan, The Law of Trusts in Canada.
3rd edition. Toronto: Carswell, 2005.
For a general discussion of various types of dementia,
the mental status examination, and mini-mental status
examinations, see K.I. Shulman, “Medical Conditions
that May Affect Testamentary Capacity” (1995) 14 Est.
and Tr. Journal 347.

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 20
Chapter 4 understands the needs and circumstances of his or her
family but the lawyer must advise the client of the legal
and practical implications of meeting those needs. The
lawyer must also assist the client in developing a will
Preparing a Will1 plan that will deal with contingencies and avoid pitfalls
that the client might not have foreseen.

[§4.01] Introduction to Preparing a Will [§4.02] Taking Instructions

Although a will is merely one component of a client’s 1. Taking instructions directly

overall estate plan, preparing it constitutes one of the When taking instruction for the preparation of a
most difficult and challenging aspects of a lawyer’s will, it is important that the lawyer take the
practice in the estate planning field. To begin with, the instructions directly from the client. In addition it
lawyer needs an understanding of a broad range of legal is preferable to meet with the client in person to
principles. In addition, the drafting skills necessary to receive those instructions. As well, where possible
produce a will present at least three unique difficulties. the lawyer should meet with the client alone. If this
First, unlike practice in commercial transactions, will is not possible, the lawyer should obtain
drafting has no aspect of the bargain between competing confirmation of the instructions from the client
individuals that results in the careful scrutiny of the legal directly, and alone or at least in a setting that is
documents by parties opposed in interest. Second, it is conducive to the client being able to freely and
necessary to take into account contingencies that are not fully describe his or her circumstances and express
ordinarily apparent to non-lawyers (for example, an his or her wishes. Generally it is not prudent to take
unexpected order of deaths). Third, and most will instructions in the presence of a beneficiary.
significantly, difficulties arise from the fact that wills are In circumstances where a couple want to make
interpreted by the court only after the will-maker dies. wills at the same time and wish to be present with
Under s. 58 of WESA, the court has the power to order each other for the entire process, the lawyer must
that a document or “record” be effective to make, alter, inform both that there is no solicitor-client privilege
revoke, or revive a will even if the formal requirements between the lawyer and each of them and that the
for making, altering, revoking, or reviving a will have lawyer is obliged to inform both of any information
not been complied with. In addition, under s. 59 of or instructions that the lawyer receives or gives to
WESA, the court has the power to rectify errors in a will either. The lawyer should communicate this from
so as to meet the will-maker’s intentions. Practitioners the outset and determine if the couple would prefer
should preserve correspondence, notes, instructions, and to retain separate lawyers.
other evidence of their client’s intentions. Practitioners The lawyer, rather than the paralegal, should be
should also warn their clients of the danger that notes, e- involved in the direct taking of instructions because
mails, or other expressions of thought may inadvertently part of the will preparation process involves not
alter or revoke a will and that such “musings” should be only obtaining the client’s information and wishes
clearly marked a “draft.” but also providing legal advice from the lawyer as
Proper will planning requires a delicate balance to be to how best to effect those wishes and the legal
maintained between implementing a client’s instructions consequences of the particular objectives.
and advising the client on how his or her real, as In some circumstances, it may be prudent for the
opposed to perceived, estate planning goals can be best lawyer to obtain the client’s consent to secure
achieved. The unique difficulties of will drafting require information and to review the will plan with the
close coordination between the lawyer and the client. client’s other advisors (e.g. accountant, financial
The lawyer is not a mere scribe. The client usually planner, foreign lawyer, etc.).

1
2. Making notes of the meeting
Updated by PLTC in January 2016. Sadie Wetzel of Davis LLP
updated this chapter in December 2011. Helen Low of Fasken Making complete notes of will instructions and
Martineau Dumoulin LLP kindly reorganized and revised this retaining them as part of the permanent will file is
chapter in April 2005. Reviewed and revised in March 1994 good practice. The extent of the notes that are
with the assistance of Raquel Goncalves, PLTC and Gordon B.
MacRae, Vancouver. Reviewed and revised annually since made may depend on whether certain issues are
March 1995 by Gordon and since 1999 by Genevieve N. Taylor identifiable at the time the lawyer meets with the
and Gordon B. MacRae, both of Legacy Tax & Trust Lawyers. client. If the client is elderly or ill at the time the
Reviewed for content relating to the Indian Act, in January instructions are taken, the lawyer should consider
2002, by Roger D. Lee, Davis & Company, Vancouver. whether the client has testamentary capacity and
Reviewed for content relating to persons with disabilities, in
January 2002, by Halldor Bjarnason, Vancouver. reflect that evaluation in his or her notes. If the

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dispositions contained in the will are likely to be comprehensiveness of the will as the estate
contentious amongst the client’s family, the planning vehicle. For clients whose death is more
lawyer’s notes should record the client’s intentions imminent, it is even more critical for the lawyer to
and rationale for the particular distribution scheme. be aware of the nature of the assets and liabilities
The recording of the client’s intentions are also and their values in order to ensure that the
important in the event that there is subsequent dispositions under the will are effective to achieve
litigation where the evidence of the will-maker’s the will-maker’s wishes.
intention is admissible. The practitioner’s notes will
The starting point is to understand what the client
also be important if an application is required under
owns, what the nature of the interest owned is, and
s. 58 of WESA because the will-maker dies after
whether that asset would form part of the estate on
giving instructions but before executing the will, or
death. To do this, it is advisable for the lawyer to
if an error in the will needs to be rectified under s.
review original documentation regarding the asset
59.
ownership (for example, brokerage statements,
3. Obtaining background information insurance designation forms) or conduct an
investigation (for example, company or title
It is important to understand the family of the will-
search). Understanding title ownership to assets,
maker and the relationships he or she has in order
direct beneficiary designations that might apply to
for the lawyer to determine which persons might
assets and legislative schemes that govern
have legal claims against the estate. For example, a
disposition of assets (such as pensions) is necessary
client may not appreciate that he or she is in a
to determine what a client has to dispose of under
common law spousal relationship or that there is a
his or her will. This will better ensure that the
child who has been dependent upon the client who
lawyer is able to create an estate plan that reflects
could assert a claim for maintenance and support
all of the client’s testamentary wishes. For the
from his or her estate.
same reason, having a clear picture of the
It is important to consider not only the will-maker’s testamentary liabilities, including contingent
family structure at the time of the taking of the liabilities such as guarantees, is also a useful part of
instructions but also into the future if death clearly this exercise.
is not imminent. This affects the provisions that
Knowing the scope and ownership of assets and the
might be made in respect to whether certain trusts
extent and nature of liabilities is necessary in order
should be established, who should be
to provide tax advice on the manner by which the
remaindermen of a life interest in the estate or part
client is seeking to arrange his estate under his will.
of it and what contingencies might need to be
For example, where the client wishes to make
considered.
specific bequests of personal assets or devises of
Often it is helpful to review the earlier will of the real property that are encumbered (for example,
client, if available, to identify provisions that the mortgaged) or subject to tax on disposition (for
client wishes to keep and to alter. example, RRSP) then knowing the liabilities
ensures that the lawyer addresses with the client
If the client is a First Nations person, the lawyer
whether the recipient of a specific gift or the estate
should consider carefully whether a particular asset
is to bear the responsibility for the debt associated
is located on reserve. This fact could have
with the asset.
significant repercussions for tax planning and
transmission, especially if it is real property. Under In circumstances where a client is reluctant to
s. 50 of the Indian Act, land on reserve cannot be disclose information about his or her wealth, and
left to a person who does not have a right to reside the lawyer cannot convince the client otherwise, the
on the reserve. For more information about the lawyer should inform the client that the will may
special status of real property, see the CLEBC, not end up reflecting the client’s testamentary
British Columbia Probate and Estate wishes and that the lawyer cannot provide relevant
Administration Practice Manual §20.13. See also S. legal advice. Qualification should be expressly
Evans, “Aboriginal Estates—Policies and communicated to the client and noted in the
Procedures of INAC, BC Region”, published in the lawyer’s client file.
Practice Points area of the CLE website at
www.cle.bc.ca.
4. Ascertaining the assets and liabilities
It is important to know the client’s present financial
circumstances, even though the will may not take
effect until long into the future. This enables the
lawyer to determine the appropriateness or
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 22
5. Providing basic information to the client many people are reluctant to act as an
executor. The will-maker should approach
It is good practice for a lawyer to discuss with the
them before the will is executed.
client some administrative matters relating to the
use of a will as an estate planning tool at the same A typical will-maker may find his or her
time the lawyer is taking instructions for preparing choice of executors to be one or more of the
a will. Areas that should be discussed, depending following:
on the sophistication of the client and the particular
(i) One or more of the residuary beneficiaries
circumstances and testamentary wishes, might
include: This is appropriate in most circumstances
as they are the recipients of the estate,
 the application and calculation of probate
except possibly where:
fees;
 a beneficiary resides outside of
 the availability and purpose of the
the province;
registration of the will with the Department
of Vital Statistics;  the residuary beneficiary is a
charity or a minor;
 the alternatives available for the storage of
the original will;  there is an anticipated dispute
amongst beneficiaries; or
 the basis upon which the fee to the client
will be charged;  the estate is of a complex nature
requiring special expertise on the
 the possible preparation of other estate and
part of the executor.
personal planning tools, such as a power of
attorney, representation agreement, inter (ii) Spouse
vivos trust, deed of gift, property transfer
This is usually the appropriate choice
documents;
when the whole of the client’s estate is left
 the general probate process; and to the surviving spouse.
 the advisability of informing third parties When the spouse is the life tenant of a
about the will or its contents. trust, the client should consider naming
the spouse to act as one of the co-trustees.
6. Naming executors and trustees
The advantage of appointing the spouse to
(a) Appointment act as one of the co-trustees of a spouse
trust is that he or she has a role in the
Clients will generally have a person(s) in mind
exercise of any discretion, particularly
for this role, although they may not fully
where there is a right to encroach on
understand the role themselves. The lawyer
capital in favour of the spouse. The
should explain to them that the executor is
disadvantage may be the possibility of
responsible for the administration of the estate
actions taken to frustrate the other co-
and the trustee is responsible for administering
trustees, which could be eliminated by an
any trusts created under the will. The two
odd number of trustees, with a direction
positions are usually held by one or more
that the spouse’s views be considered by
persons acting in both roles but in some cases
the trustees, together with a majority rule
it may be prudent or appropriate to name a
provision to avoid a deadlock.
different person as trustee of some special trust
created under the will. Also, if the will Note that, under s. 56 of WESA, the
provides for more than one testamentary trust, appointment of a spouse as trustee or
different persons may be appointed as trustees executor is revoked if the will-maker and
for the different trusts. his or her spouse cease to be spouses as
set out in s. 2(2) of WESA, unless a
An executor’s duties include arranging for the
contrary intention appears in the will.
funeral and disposition of remains, collecting
and protecting estate assets until distribution, (iii) Adult Children
conversion of assets to money where
It may be advantageous to name children
appropriate, payment of debts of the estate and
who are beneficiaries as a way of reducing
distribution of estate to the beneficiaries or
the costs of administration. However, the
trustees as directed under the will.
appointment of a number of children, or
Because of the risk of personal liability and the children and a spouse who is not the
onerous and time-consuming nature of the job, parent of the children, can be problematic.
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 23
It is a rare case where step-children and would place the lawyer in a conflict in
spouses can happily work together as co- respect of the estate in the future; and the
trustees of spousal trusts. remuneration that the lawyer would be
entitled to receive. Since, ordinarily, the
(iv) Close relatives and friends
law prohibits a witness to a will from
When the client is concerned about receiving a benefit under the will, a lawyer
avoiding acrimony among the appointed as executor who also witnesses
beneficiaries, one option is to appoint a the will cannot be remunerated under a
person or persons close to the family but charging clause in the will that permits the
who is not a beneficiary. The lawyer lawyer to receive remuneration on the
should ask the client about possible basis of the lawyer’s professional charges
conflicts of interest between the suggested for providing legal services to the estate;
executor and the beneficiaries and avoid unless the court orders otherwise, pursuant
an appointment where potential conflicts to s. 43 of WESA. In that case, the
exist. lawyer’s remuneration will be limited to
the amounts set out in the Trustee Act.
(v) Business associate or professional advisor
Law firm partners are similarly
The choice of a business associate, lawyer, prejudiced.
accountant or other professional to act
(vii) Corporate Executor
alone or together with a beneficiary is
often appropriate where additional In some cases, it will be appropriate for
expertise is required or where the presence the client to appoint a trust company either
of a neutral party may be of assistance in to act alone or as one of the
the administration of the estate or trust. executors/trustees. This is especially so
When the client chooses a professional as when:
one of the executors or trustees, the lawyer
 the nature and complexity of the
should talk with the client about what they
assets require the experience,
would like to do regarding remuneration
expertise and skill of a trust
for the professional. As well, it is usually
company;
helpful to canvass the professional to
determine his or her willingness to act on  the duties of the administration are
that basis. Many professionals will prefer likely to be too onerous for
that they be compensated based on their individuals;
normal professional fees and not on the
 there are assets to be held over a
basis prescribed by the Trustee Act.
period of years and continuity in the
Clients need to be fully and properly administration, which can be
informed regarding succession of provided by a trust company, is
executorship. Ordinarily this is best required;
addressed through providing for the
 the will-maker wishes to take
appointment of an alternate executor in the
advantage of the security (for
will. Where a professional is being
example, retaining valuables),
appointed as one of the executors, the
protection against default (for
client may wish to specifically provide for
example, negligence) that is offered
the appointment of a replacement
by a trust company; and
professional. Depending upon the nature
of the estate, the complexity of the will  there is a high probability of a
and the particular wishes of the will- dispute or conflict due to the
maker, the executor appointment clause particular makeup of the family
can be quite complicated. members.
(vi) Lawyers The lawyer should also advise the client of
the limitations of appointing a trust
Lawyers, and in particular the solicitor
company over an individual who is
preparing the will, are often asked by
familiar with the will-maker and the will
clients to be their executor and trustee.
maker’s family, which may include the
Before doing so, the lawyer should
following:
consider the extent of his or her liability
coverage for performing the duties of  trust companies may be limited in
executor and trustee; whether acting how they can deal with decisions that
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 24
require the exercise of discretion in (b) Compensation
relation to the administration of a
It is important to advise the client that an
discretionary trust and the joint
executor/trustee is entitled to statutory
appointment of a family member or
compensation, even if the will is silent, on the
close friend to give guidance to a
basis set out under the Trustee Act, unless the
corporate trustee may be appropriate;
will expressly provides otherwise or there is a
 trust companies will have demands contractual arrangement between the will-
as to their fees before they will agree maker and the executor separate from the will.
to act and these arrangements should The compensation of executors and trustees is
be, where possible, secured when the paid out of the residue of the estate and,
will-maker is making his will; and therefore, any estate accounting and claim for
remuneration is to be approved by the
 the statutory limits for remuneration
residuary beneficiaries unless there is a
under the Trustee Act may make it
governing contract between the will-maker
difficult to have both a trust company
and the executor.
and other individuals appointed
together to act as trustee. When the executor or trustee is also a
beneficiary of the estate, the lawyer should
(viii) Specific executors for foreign assets
confirm with the client whether the client
When the client owns assets in foreign intends that the executor or trustee receive
jurisdictions which pass under the British remuneration in addition to the gift made to
Columbia will, it is important to consider the person under the will. In some
whether the executor named in the will is circumstances, the law will presume that the
the appropriate person to deal with the gift under the will to the executor or trustee is
foreign assets or whether it is better to to compensate the executor or trustee for
appoint an executor in that foreign acting, unless the will provides otherwise.
jurisdiction to deal specifically with the
The lawyer may also alert the client to the
foreign assets.
possibility of securing a fee agreement (which
(ix) Numerous executors can be set out in the will or in a separate
document incorporated by reference in the
There is no legal limit on the number of
will) that provides for the amount of
executors that may be appointed.
remuneration and the timing for payment of
However, there is a practical consequence
remuneration. This fee agreement may be
to the efficiency, cost and effectiveness of
agreed to by the executor/trustee during the
having more than one executor and
will-maker’s lifetime or on death if the
trustee. With respect to executors who do
executor/trustee accepts the appointment and
not need to act unanimously (except with
commences acting under the will.
respect to matters concerning real
property), the actions of one executor 7. Naming Beneficiaries
binds the other, even if that action has not
(a) Spouse and children. If the client informs the
been approved by the others. With respect
lawyer of intended beneficiaries of his or her
to trustees, they are required to act
estate, and they do not include the client’s
unanimously on all trustee matters, unless
married or common law spouse (of the same
the will provides otherwise. The potential
or opposite sex) or children, the lawyer needs
for lack of agreement and conflict
to inform the client of the possible legal and
amongst the executors/trustees is a
moral obligations owed to those persons and
practical consideration for not having too
their entitlement to apply for a variation of the
many act at one time. Even the largest of
will pursuant to WESA (see chapter 19). If the
estates do not warrant more than five
client’s exclusion of his or her spouse and
executors and generally three is sufficient
children is intended, then the lawyer should
in circumstances where more than one or
consider whether the will is the appropriate
two executors are thought to be required.
planning tool for the client or whether the
The appointment of alternates is a possible
client’s interests are better met with planning
answer to the problem of excessive
devices that are not subject to judicial
numbers of trustees.
variation. If the will remains the appropriate
planning tool, then the lawyer should consider
preparing a memorandum of the client’s
reasons, which may be used to clarify the will-
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 25
maker’s rationale if an application for practice, the Public Guardian and Trustee may
variation is ultimately brought. provide for those needs where they cannot be
otherwise met, without undue hardship, by the
(b) Separated spouse. If there is provision in a
minor’s guardians or some other source.
will for a spouse and the will-maker and his or
her spouse cease to be spouses under s. 2(2), (e) Charities. Many clients, who want to leave a
the gift is automatically revoked. If the client gift to charity, do not have the proper legal
does not intend this result, then the lawyer name of the charity. The lawyer should advise
must draft a provision that expresses a the client that the lawyer will research the
contrary intention; namely, that the benefit is proper name and the lawyer should discuss
conferred notwithstanding the occurrence of any confusion where there are similar charities
the events under s. 56 of WESA that would with similar names and make provision for the
revoke the gift. gift in the event that the particular charity is no
longer in existence at the time the will takes
(c) Complex families. If the client’s family
effect. The lawyer should also advise the
involves complex arrangements (such as a
client regarding including a clause in the will
second spouse and children from a first
to protect the executor in respect of whom at
spouse, children from separate spouses,
the charitable organization the benefit may be
stepchildren, common law relationships,
paid.
married but separated spouses), the lawyer
should make sure that the lawyer advises the (f) Solicitor. If the client informs the lawyer that
client as to the various problems that certain the lawyer is to be named as a beneficiary, the
dispositions can create. For example, having lawyer should not prepare the will and have
the children from a first marriage as the the client seek another lawyer to assist. The
trustees of the spousal trust for a second wife lawyer who drafts a will when another lawyer
might create practical problems. Children to is the beneficiary should inquire into the
whom the will-maker stood as parentis in circumstances of the bequest and clearly
loco, though they may have rights against the record the will-maker’s explanation in order to
will-maker in the event of a relationship ensure that the wishes of the will-maker in
breakdown, do not have rights to seek a share making such a bequest is upheld in the event
of the will-maker’s estate, notwithstanding of a future challenge.
that they have been supported by the will-
8. Tax considerations
maker.
The will drafting lawyer should inform the client of
(d) Minors. If the client names beneficiaries who
those general tax implications arising from death
may be minors at the time the will takes effect,
and arising from the manner that the client is
the lawyer should advise the client as to the
disposing of his or her estate under their will. In
implications of this. The client may wish to
addition, the lawyer should also advise the client to
create a trust for any gifts to minors such that
seek specific tax advice from a tax lawyer or tax
the minor does not take the gift until he or she
accountant where the circumstances warrant. The
reaches a certain age. If that age is beyond the
will drafting lawyer should know of the general tax
age of majority, the minor can, on reaching the
issues (see chapter 14).
age of majority, seek to collapse the trust and
receive the whole of the gift under the The will drafting lawyer should inform the client
principle established in Saunders v. Vautier, that while there are no succession taxes per se
unless the will provides for a gift-over in the applicable in British Columbia, assets that pass on
event that the minor does not survive until the death under the client’s will may be subject to
age that he or she is entitled to the whole of capital gains tax and other taxes arising from the
the gift. deemed disposition of assets on death, including
potential double taxation (unless proper planning is
If no trust is created and no provision is made
effected) on certain assets such as shares in a
to permit the executor to pay the gift to the
company.
minor’s guardian, the gift must be paid to the
Public Guardian and Trustee, who will retain If the client is a First Nations person with assets
the funds, as trustee, until the minor reaches located on a reserve, the tax situation in such an
majority. During the period of minority, the estate will be different and the will drafting lawyer
Public Guardian and Trustee may authorize needs to seek, or have the client seek, specific tax
payment of all or part of the money for the advice.
maintenance, education or benefit of the child
(s. 14 of the Infants Act). However, in

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9. Naming guardians The main advantage of an enduring power of
attorney is that it is much less costly and time-
In British Columbia a person under the age of 19 is
consuming than an application for the appointment
legally an “infant.”
of a committee under the Patients Property Act. It
A parent can appoint a guardian of his or her can be also less costly and simpler than preparing a
children by deed or by will (s. 53 of the Family representation agreement. Also, an enduring power
Law Act). A guardian may appoint a successor can be used if the individual’s mental incapacity is
guardian. If no guardian is named in a will and no not of a degree requiring appointment of a
individual is appointed by the court under the committee. Some drawbacks of an enduring power
Family Law Act, s. 51 of the Infants Act provides of attorney are:
that the Director of Child, Family and Community
(a) the agent (i.e. the donee of the power)
Services is the personal guardian of the minor and
cannot be compelled to act;
the Public Guardian and Trustee is the property
guardian of the minor. (b) the principal is unable to supervise the
attorney’s actions or revoke the power of
Appointment of a guardian by a parent under a will
attorney following the onset of mental
might not necessarily be effective on the will-
incapacity; and
maker’s death, for instance if the will-maker has
ceased to be a guardian as a result of a relationship (c) subject to an express contrary direction
breakdown. The inclusion of such a provision, contained in the power of attorney, the
nevertheless, means that the court will take into attorney cannot use the principal’s assets
account the will-maker’s wishes. for the benefit of the attorney or the
principal’s family.
10. Enduring powers of attorney, representation
Generally, an enduring power of attorney is
agreements and committees
effective when it is signed by the person and the
Except where caused by a physical trauma or an attorney. A “springing” power of attorney, however,
accident, the onset of mental incapacity seldom just becomes effective only if certain events occur (s. 26
happens. Sometimes, a diminished capacity exists Power of Attorney Act).
for a long time. Sometimes a mental incapacity
In Parnall (Attorney of) v. B.C. (Registry of Land
occurs over time and is characterized by alternating
Titles) 2002 BCSC 599, reversed 2004 BCCA 100,
periods of incapability and lucidity. When
the Court was asked to consider “whether a
discussing a will with a client, it is useful to discuss
‘springing’ power of attorney which provides that
whether the client would like to plan for these
the power ‘may only be exercised during any
circumstances.
subsequent mental infirmity on [the donor’s] part’,
It may be appropriate for the client to authorize without establishing how that status may be
other people to make decisions about the client’s established, is an enduring power of attorney under
financial and other affairs in the event the client s. 8(1) [the former enduring power of attorney
loses capacity, by executing a special power of section] of the Power of Attorney Act, R.S.B.C.
attorney called an “enduring power of attorney” and 1996, c. 370, and thus within s. 56(3) of the Land
a “representation agreement.” Title Act, R.S.B.C. 1996, c. 250.” The chambers
judge held that the Registrar was correct not to
Enduring powers of attorney are the primary tool
register the documents, drawing a distinction
for advance planning in financial and property
between enduring powers of attorney under s. 8 and
matters. Representation agreements can be used for
springing powers of attorney. The Court of Appeal,
advance planning around personal, health-care, and
however, held (paragraphs 25, 26) that:
some limited financial decisions. A brief
description of each tool follows. While the learned trial judge concluded that
the word “continue” in s. 8(1) precluded the
In an enduring power of attorney, the person
power becoming operative upon mental
appoints a family member, trust company or other
infirmity, in my view s. 8 was intended to
trusted individual(s) as his or her attorney. This
address termination of the power of attorney,
power of attorney is said to be enduring because the
and does not deal with a power of attorney that
attorney’s authority endures or continues despite
springs into effectiveness upon the happening
any mental incapacity. At common law, a power of
of an event. The issue under s. 8(1) is not the
attorney terminates when the principal becomes
word “continue”; rather it is that which
mentally incompetent. However, under Part II of
continues - the “authority.” The authority, in
the Power of Attorney Act, R.S.B.C. 1996, c. 370,
my view, is created at the moment of execution
an enduring power of attorney can be created.
although on the words of the power of attorney

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 27
the condition on which it may be exercised provincial mental health or psychiatric unit, the
may not yet exist. Although the analogy with power will not automatically terminate.
contract law is far from perfect, it is not unlike
When an adult person is incapable (or has
the suspension effect of the condition
diminished capacity) and significant health
discussed by Dickson J. in Dynamic Transport
decisions need to be made, those decisions can be
Ltd. v. O.K. Detailing Ltd., [1978] 2 S.C.R.
made by:
1072.
 a representative under a representation
Just as a power of attorney may provide as a
agreement;
condition that “this power of attorney may not
be exercised so long as I am resident in British  a committee under the Patients Property Act; or
Columbia”, a power of attorney may provide
 a temporary substitute decision maker under the
“this power of attorney may not be exercised
Health Care (Consent) and Care Facility
while I am not mentally infirm.” In my view
(Admission) Act, R.S.B.C. 1996, c. 181.
there is no conceptual difference between the
latter condition and the language of the power The client may not want decisions made by the
of attorney in this case. The reservation in this persons that qualify under the Health Care
power of attorney is, effectively, a restriction (Consent) and Care Facility (Admission) Act (s.
as to its use. 16). The client may not want his or her health care
decisions made by a committee because of the
Section 26 of the Power of Attorney Act confirms
delays and costs involved with court proceedings,
that an enduring power of attorney can be made
or for other reasons. For this client, a representation
effective when a specified event occurs. In other
agreement may be an option for planning around
words, the date on which the enduring power of
health care decisions.
attorney becomes effective may be deferred until
the occurrence of a specified event, such as a There are benefits and imperfections to the
statutory declaration from a physician that the representation agreement as a tool. Perhaps one of
person is incapable of managing his or her affairs the more serious imperfections is that these
by reason of mental or physical infirmity. If the agreements are complex. The complexity can lead
effectiveness of the power of attorney is to be to increased costs both for preparing and advising
deferred until a specified event, the power of about the agreement. Instead, the client may want
attorney must provide “how and by whom the event to deal with health-care decisions by nominating a
is to be confirmed.” committee, which can be less complicated and less
expensive.
If the person’s spouse is the attorney and their
marriage or marriage-like relationship ends, the Also, the client may wish to make an advance
authority of the attorney under an enduring power directive to clearly give or refuse consent to any
of attorney ends unless it states that the authority health care described in the directive, including life
continues regardless of whether the relationship support and life-prolonging medical intervention.
ends (ss. 29(2)(d)(i) and (3), Power of Attorney Unless signing in the presence of a lawyer or a
Act). For the purposes of s. 29, a marriage or notary public, the client must sign and date the
marriage-like relationship ends when the parties to directive in the presence of two witnesses who both
the relationship are separated within the meaning of sign in the presence of the client. Only one witness
section 3(4) of the Family Law Act (ss. 29(4) and is required if the witness is a lawyer or a notary
(5), Power of Attorney Act). public. If the client has an advance directive and is
incapable of giving or refusing consent to the health
Section 19 of the Patients Property Act, R.S.B.C.
care, a health care provider may provide health care
1996, c. 349 purports to terminate all powers of
in accordance with the directive. See Health Care
attorney once the person becomes a patient.
(Consent) and Care Facility (Admission) Act, Part
Section 30(4)(d) of the Power of Attorney Act says
2.
that an enduring power of attorney terminates:
(d) …if the enduring power of attorney is
Some lawyers recommend and prepare
representation agreements or advance directives for
terminated under section 19 or 19.1 of the
their clients for the limited purpose of giving others
Patients Property Act.
authority over health-care decisions and prepare
Section 19 deals with a committee appointed by enduring powers of attorney for their financial
court order. If the committee is appointed by court affairs. Before discussing options with the client,
order, the power of attorney cannot be saved. the lawyer should make sure that the lawyer
However, if the Public Guardian and Trustee is understands the benefits and imperfections of each
appointed as a result of a certificate issued by a approach. A discussion of the options is beyond the

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scope of this chapter. For more information and may have on his or her ability to alienate his or her
precedent material for both enduring powers of property freely.
attorney and representation agreements, see
2. Restrictions on alienation
Chapters 28 and 30 in Wills and Personal Planning
Precedents—An Annotated Guide (Vancouver: Are there restrictions on alienation of either
CLEBC). movables or immovables under the applicable law
or by personal covenant?
Under s. 51 of the Indian Act, the Minister of
Aboriginal Development and Northern Affairs Consider, for example:
Canada has exclusive authority in relation to the
(a) community of property;
property of a registered Indian who is mentally
incompetent. Provincial statutes govern the process (b) joint tenancies;
by which the person would be declared
(c) limited interest, e.g., estates for life or years,
incompetent, but administration of the person’s
partnership property;
estate would be in the hands of the Minister or
whomever the Minister appoints. (d) corporate shares with limitations on transfer;
11. Using a Memorandum (e) franchises;
When there are many specific items to be gifted, (f) currency controls;
the lawyer should advise the client to consider the
(g) laws restricting absentee ownership of
use of a separate memorandum. There are two
property;
types of memoranda: one that forms part of the
will, and one that does not. (h) rules of professional or business associations;
For the document to be a valid testamentary (i) agreements relating to any of the client’s
document, it must be in writing and the will-maker assets;
must sign it before the will is executed and it must
(j) property subject to a lien or charge; and
be specifically incorporated in the will by
reference. The lawyer should advise the client that (k) property located on reserve.
it is necessary for the assets to be clearly identified
3. Life insurance declarations
in any memorandum incorporated by reference
because the memorandum, as a testamentary Any written and signed document is sufficient to
document, is subject to the same strict rules of effect the beneficiary designation under a life
construction that apply to a will. Any changes to insurance policy (Insurance Act, R.S.B.C. 2012, c.
such memoranda require an amendment to the will 1, s. 59). If the will is the instrument used to make
and therefore, the lawyer should advise the client of a direct beneficiary designation, the lawyer should
the limitations of the use of such memoranda. advise the client to provide the insurance company
with notice of the designation in the will. For that
It is also possible to create a memorandum that is
reason, it may be prudent to draw the declaration in
not intended to be a legally binding testamentary
a separate instrument from the will. Further, if the
document, which the will-maker can freely amend
designation is made in the will, any alteration
as he or she desires, without the involvement of a
would require an amendment to the will itself and if
lawyer. These memoranda can be provided to the
the will is revoked, intentionally or not, the
trustees to guide them in the exercise of their
designation would be revoked.
discretion in respect to the distribution of assets in
specie. Such memoranda can go beyond guidance 4. Registered retirement savings plans and similar
about dealing with distribution of specific assets, assets
such as advising as to the principles that could be
A person may designate, by will, a beneficiary of a
used on the exercise of the power of encroachment
registered retirement savings plan, a tax-free
on income or capital for the benefit of a
savings account or a registered retirement income
beneficiary.
fund (ss. 1 and 84 of WESA). Designations may be
made by will by specifically identifying the plan(s)
[§4.03] Circumstances Requiring Special
or by using general wording to cover all plan(s) (s.
Consideration
85 WESA).
1. Homestead or dower legislation
A person may designate, by will, a beneficiary of
If the client is domiciled in a jurisdiction in which an employee pension, retirement, welfare or profit
there is homestead or dower legislation (there is sharing fund, trust or plan (s. 84 WESA). However,
none in British Columbia), consider what effect the a designation by will may not be possible in all
rights conferred by such legislation on a spouse circumstances (s. 84(2)). For example, the Pension
Wills
 29
Benefits Standards Act restricts, in some cases, the The Perpetuity Act did not repeal the common law
right of the will-maker to dispose of pension rule against perpetuities but enacted a number of
benefits as certain pre and post-retirement benefits saving provisions to ameliorate the harsh
are statutorily provided to a surviving married or consequences of breaches of the common law rule.
common law spouse, including a former spouse, The Act permits a “wait and see” approach to
unless there is a specific waiver by the spouse in whether the vesting in fact occurs within the time
respect of the statutory entitlements. allowed by the common law rule. If the vesting
occurs within the time, the provision is effective; if
5. Charitable gifts
the vesting does not occur within the time, the gift
If the client wants to benefit a charitable falls into the residue of the estate. Future or
organization, be sure that the organization is contingent interests, at the outset, are presumed
registered with the Canada Revenue Agency. Be valid until the actual events establish that the gift
sure also that the correct name of the organization did not vest within the perpetuity period.
is used in the will, to avoid the expense and Additionally, the Act permits an 80 year perpetuity
inconvenience of an application to court for advice period if the will expressly or by necessary
and directions. See the discussion in §11.08 on cy- implication provides that the 80 year period is to
pres applications. govern.
It is also prudent to include a clause that: The Perpetuity Act, [R.S.B.C. 1996] c. 358, applies
only to property devolving under the law of British
(a) exonerates the personal representative if the
Columbia and not to real property situated outside
gift is paid to a person professing to be an
of the province. Therefore, it is not prudent in most
authorized representative of the organization;
circumstances to create contingent interests that
(b) relieves the personal representative of any may vest outside of the perpetuity period permitted
obligation to see to the application of the gift under common law if there are out of province
by the charity; and assets in the estate. However, if provisions are
being drafted that may offend the common law rule,
(c) where the client wishes, a provision that a gift
you may be well advised to provide that the interest
to a charity may be paid to a successor
will vest, if it has not vested at the expiration of the
organization.
80 year period permitted under the Act or the period
6. Understanding the rule against perpetuities permitted by common law, whichever is shorter.
The common law rule against perpetuities is that 7. Termination, revocation and variation of trusts
any provision that creates a future interest in
A trust may be varied or prematurely brought to an
property is void ab initio if it is not absolutely
end in one of two ways: under the rule in Saunders
certain at the outset of the creation of the provision
v. Vautier (1841), 41 E.R. 482 (Ch.) or under the
that the vesting of the interest would occur before
Trust and Settlement Variation Act, R.S.B.C. 1996,
the later of either 21 years from the death of the
c.463.
will-maker or 21 years from the death of a “life in
being” (any person alive at the date of the (a) Termination under Saunders v. Vautier
deceased’s death expressly or by necessary
The rule in Saunders v. Vautier may defeat a
implication mentioned in the will). Examples
trust created by will or by inter vivos grant, in
follow.
certain circumstances. The rule applies if the
A will-maker leaves her estate in trust for her son trust meets the following conditions:
with a right for him to receive capital and income
(i) it gives the beneficiary or beneficiaries an
during his lifetime, with the remainder on his death
absolute vested gift in the whole of the
to be paid to his children who reach the age of 21
trust property that is payable at a future
years. This provision does not offend the rule
event (usually the beneficiary reaching a
against perpetuities.
stipulated age), and
A will-maker leaves her estate in trust for her son,
(ii) it directs the trustee either to pay the
with a right for him to receive capital and income
income to the beneficiary or to
during this lifetime with the remainder to be paid to
accumulate it and pay it with the capital.
his children who reach the age of 25 years. This
provision offended the common law rule against
perpetuities because it was not absolutely certain
that the capital would vest within the requisite time
(being son’s life plus 21 years).

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 30
In such a case, the beneficiaries, if they all For example, a common application brought
agree, are of the age of majority, and have under the Trust and Settlement Variation Act
mental capacity, may require the trustee to is to seek a revocation of a trust to entitle an
distribute the capital of the trust regardless of adult beneficiary to acquire the capital of a
the will-maker’s or settlor’s direction not to trust immediately by acquiring life insurance
pay out until the stipulated event has taken on the beneficiary’s life to provide for the
place. contingent beneficiaries in the event that the
beneficiary were not to survive to the
For example, the rule in Saunders v. Vautier
stipulated date under the trust provision.
would operate in the following situations:
The Act permits the court the discretion to
 where a legacy of $50,000 is made
approve trust variation based on the standard
payable to A on his 25th birthday,
of a “prudent adult motivated by intelligent
with the income to be payable to him
self-interest and sustained consideration of the
annually until he attains that age.
expectancies and risks of the proposal would
In this case, A (assuming he is be likely to accept” (Russ v. British Columbia
mentally competent) could require the Public Trustee (1994) 89 BCLR (2d) 35
trustees, as soon as he reaches the age (CA)). The preservation of the “basic
of 19, to pay him the whole of the intention” of the will-maker does not form part
$50,000. of the consideration.
 where $80,000 is payable to the Little can be done to avoid the Trust and
children of T (the will-maker), the Settlement Variation Act applications but the
capital to be divided equally between lawyer should inform the client of the
them on the youngest attaining the possibility that the trust arrangement may not
age of 25, with the power of ultimately be effected as he or she has
maintenance in favour of the class in instructed. This is most likely to arise where
the meantime, and surplus income to trusts are created for children either for their
be accumulated and added to the lives or with a distribution date far into the
capital. future.
In this case, as soon as the youngest 8. Beneficiaries who are receiving disability
child of T reaches the age of 19, as assistance
long as all the children are in
The use of a testamentary trust to provide for
agreement and have capacity, they
people with disabilities is relatively common.
can require the trustee to divide the
However, special considerations arise that the
capital among them.
lawyer should discuss with the client. If the person
If this rule applies, without a doubt, the is receiving or may be entitled to receive BC
trustees should on request terminate the trust disability assistance, a trust can be established in a
without requiring a court order to that effect, way that the maximum benefits are preserved for
provided that they are fully indemnified from the beneficiary who is disabled. This is important
those having a beneficial interest. In case of given that certain asset levels will disentitle a
doubt, however, it is proper and advisable to person who is disabled from receiving those
apply for construction of the will. benefits. A fully discretionary trust (one in which
the beneficiary has no vested entitlement to the
(b) Revocation and variation under the Trust and
receipt of any income or capital from the trust and
Settlement Variation Act
where the beneficiary is not the sole trustee) does
A trust that cannot be terminated pursuant to not qualify as an asset of the beneficiary and
the rule in Saunders v. Vautier, can possibly therefore, is not taken into the calculation of the
be varied or terminated pursuant to the Trust disabled person’s assets.
and Settlement Variation Act. This requires
The Planned Lifetime Advocacy Network, at 604-
notice to the Public Guardian and Trustee and
439-9566, is a superb resource for further
the court’s approval of the proposed variation
information on estate planning for situations
or termination on behalf of the non-sui juris
involving family members with disabilities.
beneficiaries (generally, the contingent
interests of unborn or minor children or
incapable adults). In addition, all of the sui
juris beneficiaries must agree to the proposed
variation or termination.

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[§4.04] Practical Tips for Drafting the Will chattels being paid out of the residue of the
estate; whereas the use of “gift” will leave the
1. Planning for contingencies
burden of such costs on the specific legatee.
When there are a number of consecutive interests The words “between” and “among” are also
created under the will, or when there are many often misused.
beneficiaries, it is useful to draw a chart
(e) Avoid redundancies
summarizing the client’s dispositive instructions
before beginning the first draft of the will. A chart There is a tendency in legal drafting to use
of this kind will ensure that: multiple words and expressions which have
the same meaning. The use of couplets such
(a) no intestacies will arise in the event of an
as “have and hold” in legal documents arose
unexpected sequence of deaths;
for historical reasons. Uncertainty as to which
(b) all the assets have been distributed; and English word was preferable when translating
a Latin or Norman French law term led to such
(c) during periods in which the distribution of
redundancies. Moreover, the practice of
capital is postponed, the income is directed
paying for legal documents according to their
either to be accumulated or paid out.
length also led to wordy wills. Why, for
2. Language use example, should one use the phrase
“nominate, constitute and appoint”, when
The use of clear and precise language and proper
appointing the executor of the will? The word
explanation is important to ensure that the
“appoint” by itself would be sufficient. Other
testamentary wishes are reflected in the will.
common redundancies include the following:
Lawyers drafting wills should refer to the numerous
sources for drafting clauses. (i) for and during the period;
(a) Be consistent (ii) release and discharge;
Do not, for example, refer to an interest in the (iii) sole and exclusive;
estate as a “share” in one place in the will and
(iv) then and in that event;
then later in the will refer to the same interest
as a “portion.” Using different words to mean (v) order and direct;
the same thing is inadvisable because the court
(vi) known and described as;
may conclude that the change in language was
intended to reflect a change in meaning. (vii) full force and effect;
(b) Avoid ambiguity (viii) all and every;
The phrase “for the use of ‘A’ exclusively for (ix) from and after; and
general farm purposes” may mean that the
(x) rest, residue and remainder.
asset is to be used by ‘A’ exclusive of others
or, alternatively, may mean that the asset is to While brevity is good, do not be so abrupt as
be used exclusively for farm purposes. to obscure the will-maker’s intended meaning.
Repetition may be the best way to express the
(c) Use technical words correctly will-maker’s true intention.
One example will illustrate this point. (f) Punctuate with care
“Devise” refers to a gift of real property;
Although proper punctuation assists in
“bequeath” refers to a gift of personal
clarifying meaning, its careless inclusion has
property. The two verbs were confused in the
resulted in much unnecessary litigation. One
will considered in Patton v. Toronto General
way to test for clarity of meaning is to have
Trust Corporation, [1930] A.C. 629 (P.C.) at
another lawyer read the will before it is
633. Likewise, do not interchange the words
presented to the will-maker for execution.
“issue” and “children”: the former
encompasses all lineal descendants, whereas (g) Beware of interlineations
the latter encompasses the first generation of
While sometimes unavoidable, interlineations
descendants only.
should be avoided whenever possible. A
(d) Avoid ambiguities in the meanings of non- document is more presentable to your client,
technical words to the beneficiaries, and to a court, if changes
are incorporated in the original form rather
The use of the word “deliver” will likely result
than by handwritten corrections.
in shipping costs for specifically gifted

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3. Numbering, headings and order (iii) a direction to the executor and trustee to
pay debts, funeral and administration
For clarity number the paragraphs and
expenses. Where appropriate, a direction
subparagraphs of the will. Headings may be useful
may be given to pay all duties, probate
in organizing a will and in assisting the reader (and
fees, and estate taxes payable in respect
the client) to locate a particular paragraph.
of the provisions of the will or arising as
Always try to insert the various provisions of the a consequence of the death of the will-
will in a logical sequence. For example: maker in respect of gifts made by the
will-maker during his or her lifetime,
(a) all specific gifts should be inserted before the
interests in life insurance policies on the
clause containing the executor’s power to
life of the will-maker or property held
convert unauthorized investments into money;
with the will-maker in joint tenancy. If a
(b) a specific gift of money should logically specific beneficiary is intended to bear
follow the power to convert unauthorized any income tax or other costs payable
investments into money; and relative to an asset gifted to that
beneficiary, the will must so provide;
(c) gifts out of residue should follow specific
gifts. (iv) payment of cash legacies;
4. Organizing the contents of the will (v) provision for surviving spouse, perhaps
outright, or in a trust (if desired, a trust
Determine which numbering system you are
qualifying as a “spousal trust” for
comfortable with and so long as it is clear, simple
purposes of the Income Tax Act);
and typical, routinely use that system. Descriptive
headings can also be useful in drafting, in particular (vi) provision for children if the spouse fails
for long, complex wills. The various provisions in to survive or, in the case of a trust, on the
the will should also be ordered in a logical fashion. death of the spouse. If the children are
A typical, well organized will, might be structured minors or have not attained the age for
as follows: distribution chosen by the will-maker,
then further trusts should be established
(a) preamble identifying the will-maker and
for their benefit; and
confirming his or her intention that the will is
intended to be his or her last will; (vii) provision for the disposition of the estate
if the spouse and children all fail to
(b) revocation of all former wills and codicils;
survive the will-maker or, having
(c) appointment of the executors and trustees and, survived, if they die before their interests
where appropriate, alternatives if the first under their trusts have indefeasibly
appointed are unable or unwilling to act or to vested in interest.
continue to act;
(h) administrative powers, which might include,
(d) appointment of a guardian or guardians for
(i) a power of sale, if not contained earlier in
minor children of the will-maker;
the will;
(e) RRSP or RRIF beneficiary designations, if
(ii) a power to compromise claims of
any;
creditors;
(f) life insurance beneficiary designations, if any;
(iii) a power to value and distribute property
(g) gift of the will-maker’s property to the in specie;
executors and trustees upon the trusts
(iv) a power to pay monies for minors to their
specified in the will, which might include,
guardian;
(i) gifts of specific assets;
(v) a power of investment;
(ii) a trust for the executor and trustee to use
(vi) a power to carry on and invest in any
his or her discretion in converting into
business conducted by the will-maker;
money any assets which are not in the
form of investments approved by the (vii) a power to borrow, secured by mortgage
executor and trustee, and, if desired, a or pledge;
separate and substantive power to retain
(viii) a power to manage, lease or option real
the assets in the form in which the
estate; and
executor and trustee receives them;

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(ix) a power to make income tax elections period, it is unlikely that he or she has died as a
and designations. direct result of the common accident. If the
survivorship period is not too long it will not cause
5. Drafting dispositive clauses
undue inconvenience to the beneficiary nor delay
Because of the virtually unlimited number of ways the administration of the estate unduly. It usually
that the assets of an estate can be distributed, the takes at least a month before an inventory of assets
dispositive clauses of the will must be specifically and liabilities can be prepared and probate
drafted to reflect the will-maker’s instructions. obtained. A longer survivorship period is seldom
Where the scheme of distribution is complex, desirable because of the inconvenience to the
ensuring the accurate drafting of the dispositive beneficiaries, particularly if the spouse of the
provisions is a common problem. At times, the deceased is the only beneficiary. If a survivorship
complexity arises from the instructions of the client period is not specified in the will, s. 10 of WESA
and for practical reasons you may want to imposes a mandatory 5 day survival period.
encourage your client to simplify the distribution
The drafter should always consider, and where
scheme to make the administration of the estate
appropriate deal in the will with, the possibility of a
more efficient and less likely to result in problems
beneficiary predeceasing the will-maker.
or disputes.
The drafter should also be aware of the implications
When drafting the dispositive provisions, clearly
of s. 5 of WESA, which provides that if two or more
identify the beneficiary by using the full legal name
persons die at the same time, or in circumstances in
and the beneficiary’s relationship to the deceased.
which it is uncertain as to who died first, rights to
Where there is a class gift, describe the class with
property will be determined as if each person
particularity. For example, a gift to “my nephews
survived the other. Consequently, if persons hold
and nieces” raises an ambiguity as to whether the
property jointly, they will be deemed to have held
class refers only to the will-maker’s siblings’
the property as tenants in common and each
children or includes the will-maker’s spouse’s
person’s estate will receive that person’s respective
siblings’ children.
share in the property (rather than all of the jointly
Many clients will provide instructions based on held property going to the estate of the youngest
their family arrangements that exist at the time. In joint tenant).
advising your clients, you should review with them
When creating ongoing trusts, consider including
how they would want their estate distributed in the
provisions dealing with the following matters,
event of:
namely:
(a) unusual sequence of deaths, including the
(a) The distribution or accumulation of income
beneficiary predeceasing the will-maker;
For example, the income may be payable to
(b) marriage or marriage breakdown;
the beneficiaries in fixed proportions or as
(c) adoption or birth of children; determined by the trustees in their discretion.
On the other hand, the trustees may have the
(d) other potential future beneficiaries; or
discretionary power to accumulate some or all
(e) minor, incapable or financially immature of the income as well as to distribute it
beneficiaries. unequally among the beneficiaries.
Consider whether it is desirable to provide for a (b) The distribution of the capital
survivorship period in the case of outright gifts.
The capital may be held intact for a fixed
Without a survivorship period, if both the will-
period after the death of the will-maker. For
maker and the beneficiary are involved in a
example, it might be held intact until the
common accident
youngest child attains the age of majority or
(a) additional duties, probate fees and estate taxes age 21. Alternatively, the capital may be
and additional administrative expenses will be divided immediately into shares for the
incurred because the same assets will be beneficiaries. The individual shares might then
administered twice; and be held for a fixed period—for example, until
the beneficiary attains a specified age.
(b) an unintended distribution may occur if the
provisions of the survivor’s will are not the If the capital is to be divided among several
same as those of the first to die. beneficiaries it is usually better to divide it
into “shares” or “parts” rather than
The most common survivorship periods are 10
percentages. This practice makes it easier to
days, 30 days or 60 days. The assumption is made
avoid an inadvertent intestacy if one of the
that if a person survives for at least the survivorship
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beneficiaries predeceases the will-maker or Because the distribution is per capita, each of
survives the will-maker but dies before the Mr. Bates’ four surviving children receives
date of distribution. When the beneficiaries $25,000. Denise, Elizabeth, and Frank, Craig’s
are young, consider distributing their shares of next of kin, receive nothing.
capital in several stages, for example, at ages
(b) Per stirpes distribution
25, 30 and 35. It is also prudent to give the
trustees a discretionary power of Per stirpes (“by the root”) is used to reflect a
encroachment on the capital during the period scheme of distribution that recognizes each
they are holding it. The power of line of lineal descendants of a named
encroachment may be unlimited or may be beneficiary as a root. If the beneficiary
limited to a specific amount to a percentage of predeceases the will-maker, his or her share of
the value of the capital or for specific purposes the estate passes on to his or her lineal
(for example, medical or other emergencies). descendants (i.e. issue).
Whenever an ongoing trust is created, the Consider again the Bates fact pattern and
lawyer must ensure that he or she has assume that Mr. Bates has distributed the
provided, to the extent reasonable, for a gift residue of his estate to “my issue in equal
over in case the trust property fails to vest shares per stirpes.” In such a case, the 1/5 or
absolutely in interest. $20,000 that would have gone to Craig, had he
survived the will-maker, passes to Craig’s
6. Capital and stirpital distributions
issue: Elizabeth and Frank each receives
Ensure that you secure the client’s understanding, $10,000, being 1/2 of Craig’s share or 1/10 of
instructions and approval as to whether a the residue. Denise, because she is not issue of
distribution is to be per stirpes or per capita. Mr. Bates, receives nothing. If Craig had died
before the will-maker, and had no children
As the following explanation shows, the concepts
who survived him, then there would be only
are not complex. (See the chart on following page).
four shares to distribute. Accordingly, each of
(a) Distribution per capita Mr. Bates’ four surviving children would
receive $25,000.
Per capita (“by the head”) is used to reflect a
scheme of distribution where the beneficiaries The phrase “per stirpes” does not of itself
must be alive at the time of the death of the specify the generation in which the stirp (root)
will-maker in order to take their shares of the should commence. For example, if Mr. Bates
estate. If any of the beneficiaries predeceases was not survived by any of his five children,
the will-maker, that deceased’s beneficiary’s but did have eight grandchildren who survived
share passes to the other beneficiaries who are him, then it would not be clear whether there
living at the time of the will-maker’s death should be five shares or eight shares. In order
and does not fall into the estate of the to prevent this ambiguity, the will should
deceased beneficiary and does not pass to the specify whether the lineal line should
intestate heirs or wills beneficiaries of the commence in the first generation of
deceased beneficiary. descendants or in the first generation in which
there is at least one living descendant.
For example, Andrew Bates, a widower,
makes a will leaving his estate to his children For a discussion of case law and drafting tips on the
per capita. At the date he makes his will, Mr. use of the phrases per stirpes and per capita see
Bates has five children, all over the age of C.S. Thériault, “Hamel Estate v. Hamel: Should
majority. Will Drafters Abandon the Use of ‘Issue Per
Stirpes’?” (1998) 18 Est. and Tr. Journ. 127.
At the date of his death, Mr. Bates leaves an
estate worth $100,000. One of his children,
Craig, has died before him. Craig leaves
behind a wife, Denise, and two children,
Elizabeth and Frank. Mr. Bates’ other four
children survived him.
Mr. Bates’ will contains a clause that directs
his Trustee “to divide the residue of my estate
among my children who are living at my death
in equal shares per capita.”

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 35

The two schemes distribution can be graphically illustrated as follows:

1. Capital Distribution
Andrew Bates (Will-maker)

Residue
$100,000

Child 1 Child 2 Child 3 (Craig) Child 4 Child 5

$20,000 $20,000 $20,000 $20,000 $20,000

$5,000 $5,000 $5,000 $5,000

Denise $0

Elizabeth Frank
$0 $0

2. Stirpital Distribution

Andrew Bates (Will-maker)

Residue
$100,000

Child 1 Child 2 Child 3 (Craig) Child 4 Child 5

$20,000 $20,000 $20,000 $20,000 $20,000

Denise

$10,000 $10,000

Elizabeth Frank

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 36
7. Clauses benefiting the executor and trustee 8. Common drafting pitfalls
(a) Purchasing assets The following are illustrations of some of the
problem areas which can, in great measure, be
If the will-maker wants the executors and
avoided by a combination of obtaining proper
trustees to be able to purchase assets from or
instructions and careful drafting.
sell assets to the estate, he or she must
specifically empower them to do so. The will- (a) Class gifts
maker must also provide for how the terms of
It is very important to ensure that the class is
the sale will be determined. In the absence of
clearly defined. For example, suppose the
such a power, the executors and trustees could
residue of the estate is given to “my nieces and
only purchase assets from or sell assets to the
nephews.” In addition to the problem of
estate if all of the beneficiaries beneficially
determining when the class is to close, it may
interested under the will were sui juris and
be unclear whether the phrase “nieces and
agree.
nephews” was intended to mean only the
(b) Remuneration children of the will-maker’s brothers and
sisters, or to include children of the will-
If the will-maker intends the executor and
maker’s spouse’s brothers and sisters.
trustee to receive remuneration calculated on a
different basis than under s. 88 of the Trustee (b) Ademption
Act, R.S.B.C. 1996, c.464, then this should be
Ademption occurs when the subject matter of
set out in the will. Provisions which you may
a gift is disposed of during the lifetime of the
wish to consider include:
will-maker. Consider, for example, a
(i) a provision that any pecuniary legacy is provision which states “To my friend, John, if
given in addition to any remuneration to he survives me all my shares in the capital of
which the executor and trustee may be ABC Company Ltd.” If at the death of the
entitled, if appropriate; will-maker, the will-maker owns no shares in
the ABC Company Ltd., the gift adeems and
(ii) a payment of a lump sum in lieu of other
John receives nothing. Is this what the will-
remuneration; and
maker wants? If not (and only by discussing it
(iii) a provision for a minimum level of with the will-maker will you find out), perhaps
remuneration. some form of substitution can be made, such
as: “To my friend, John, if he survives me all
(c) Employment of experts
my shares in the capital of ABC Company
Consider including in the will a power for lay Ltd., but if I do not have any shares in the
executors and trustees to employ and delegate capital of ABC Company Ltd. at my death, I
discretionary powers to trust companies, give to him if he survives me the sum of
solicitors, accountants, investment counsel or $1,000.”
other experts to assist in the administration of
Note that s. 48 of WESA provides that if a
the estate, and an exoneration of the executor
“nominee” (committee, attorney, or
and trustee for following or failing to follow
representative) disposes of the subject matter
any advice received.
of the gift during the will-maker’s lifetime, the
(d) Gifts to executor and trustee beneficiary is entitled to receive from the
estate, an amount equivalent to the proceeds of
It is prudent to provide that any gift to an
the gift, unless there is a contrary intention in
executor and trustee is not given conditional
the will or the disposition was made in
upon his or her so acting and is to be enjoyed
accordance with the will-maker’s instructions
beneficially.
given at the time the will-maker had capacity.
(c) Gifts to infants
It is rarely sensible to hold up completion of
the administration of an estate by compelling
the executors and trustees to retain small gifts
in specie to infants until they attain the age of
majority. Unless a will otherwise provides, an
executor must transfer all property in which a
minor has an interest to the Public Guardian

Wills
 37
and Trustee in trust for the minor (WESA, s. necessary). If the client has special needs (e.g. blind,
153). Two alternatives should be considered: illiterate, is unable to read the English language and
requires translation), the testimonium clause should be
(i) include a provision in the will that the gift
amended to reflect the circumstance in which the will
may be paid or delivered to the guardians
was executed so as to record compliance with WESA.
or guardian of the infant to hold for the
See Appendix 1 for examples of special testimonium
benefit of the infant until he or she is of
clauses.
age. Couple this with a direction that
upon such payment or delivery the
[§4.06] Post Execution Procedures
executor and trustee is discharged from all
liability in respect of the gift; or
1. Wills notices
(ii) specifically provide for the executor to
After the will is executed, a wills notice should be
purchase an asset, such as a bond, which
filed with Vital Statistics, setting out the full name,
will mature when the infant is entitled to
address, occupation, date and place of birth of the
his or her money.
will-maker and the date of execution and location
It is also important to set out what access of the will. Since a wills notice search must be
should be permitted to property being held in conducted before a grant is applied for, this filing
trust for an infant during his or her minority. though not mandatory, is recommended as a useful
In the absence of specific provisions in the protection for the client and also for the lawyer if
will, s. 24 of the Trustee Act allows access to the lawyer is storing the will for the client.
income for “maintenance and education” only
2. Wills storage
and s. 25 permits access to capital only with
the court’s approval. Wills should be kept in safekeeping in a place
where they can be readily located and retrieved
[§4.05] Will Execution Procedures when required and free from risk of accidental loss
or destruction. If you are retaining the will as the
You must thoroughly familiarize yourself with the solicitor, you must ensure appropriate storage of the
formalities for the execution of a will as required by original will, and deal directly with your client
WESA (see chapter 2). Because of the very strict regarding any storage expenses and the delineation
formalities in British Columbia, it is always best to of responsibilities. If the client is retaining the will,
personally attend on execution or have another lawyer or you should advise the client to store it in a safety
notary do so. When the will is being executed in your deposit box.
absence, you must ensure that the directions to the will-
Best practice indicates that if you retain the will in
maker and the witnesses are complete and clear or
safekeeping, you should:
otherwise you could face liability in negligence (Ross v.
Caunters, [1980], Ch. 297 (Ch.D.)). See Appendix 2 for (a) ensure that the will is stored in an appropriate
a sample of instructions for out of office execution of place and that you have a copy in another
wills. location;
If you have not taken instructions from the will-maker (b) insist on filing a wills notice;
directly, then you must attend on execution, or meet with
(c) ensure that you have negated in writing any
the will-maker prior to the execution of the will, in order
obligation to the client that might be implied
to confirm the will-maker’s wishes or later risk a claim
by retaining the will to keep the client
that the will did not reflect the will-maker’s intentions.
informed of any changes to the law that might
When confirming the instructions from an elderly or
affect the estate planning effected under the
possibly incapacitated client who has not given you the
will or otherwise; and
instructions directly, you should not ask the person to
indicate his or her agreement to the provisions, but (d) maintain a wills index system to readily
rather, ask the person to inform you what his or her ascertain the location of the will when
dispositive intentions are, to ensure that he or she has required, which should include the following
knowledge and approval of the will you have drafted (Re information:
Worrell (1969), 8 D.L.R. (3d) 36)).
(i) name and address of will-maker;
There is a presumption that the execution requirements
(ii) index number of the wills file;
have been complied with where there is a proper
attestation clause, unless there is evidence to the (iii) name and address of executor;
contrary. Nevertheless it is still important to engage in a
(iv) date of execution of will; and
consistent practice for the execution of wills and the
selection of witnesses (who may be available to testify if (v) exact location of will.
Wills
 38
3. Reporting to the client [§4.07] Further Reading
After the will has been executed and a wills notice
For more detailed information on drafting wills, refer to
has been filed, you should report to your client in
the following publications:
writing. If you have not already done so, this is the
time to provide the client with a copy of the will Bogardus, Peter W. and Mary B. Hamilton,
and to confirm the location of the original. You Wills Precedents—An Annotated Guide.
might also take the opportunity to recommend Vancouver: CLE (loose-leaf).
periodic reviews of the will to ensure it is up to date
Histrop, Linda Ann, Estates Planning
as the will-maker’s circumstances change.
Precedents, A Solicitor’s Manual. Toronto:
4. Destroying prior wills and will files Carswell (loose-leaf & computer disks).
Once a will has been revoked unconditionally by a McIntyre, W.A., Practical Wills Drafting.
later valid will the client or the lawyer under Toronto: Butterworths, 1992.
express written instructions of the client, may
O’Brien’s Encyclopedia of Forms. 11th edition.
safely destroy it.
Division V. Wills and Trusts. Aurora: Canada
A lawyer should not destroy a wills file in respect Law Book (loose-leaf, computer disk & CD-
of an unrevoked will until after the will-maker has ROM).
died and the limitation period for claims by
Scott Butler, Alison, Tax Planned Will
disappointed beneficiaries against the solicitor has
Precedents, 4th edition. Toronto: Carswell
expired. Note that if the distribution date under the
(loose-leaf & digital).
will is postponed, the limitation period could be
many years after probate is obtained. Sheard, Hull and Fitzpatrick, Canadian Forms
of Wills. 4th ed. Toronto: Carswell, 1982.
5. Releasing a will from safekeeping
The Encyclopaedia of Forms and Precedents.
A will should only be released by a lawyer from
5th ed. London: Butterworths.
safekeeping in accordance with and on receipt of
written instructions from the client or from the In addition, refer to the appropriate checklists from the
executor named in the will, after receiving Law Society’s Practice Checklists Manual found on the
satisfactory proof of death of the client and identity website at Quicklinks > Publications and Resources
of the executor. In all circumstances, a copy of the >Practice Resources > Practice Checklist Manual,
executed will and written receipt should be placed www.lawsociety.bc.ca/page.cfm?cid=359&t= Checklist-
on the file. Where appropriate, the obligation to Manual. A few precedents are appended to Chapter 6 of
verify these matters may be asked, on undertaking the Practice Material: Estates.
if necessary, of the lawyer acting for the client or
For commentary and strategy for estate planning issues
the executor.
relating to wills, see BC Estate Planning & Wealth
6. Releasing a wills file Preservation. Vancouver: CLEBC.
During the period of the will-maker’s life, the file
may be released to the client at his or her request.
The law provides that the solicitor-client privilege
with respect to a wills file passes to the executor on
the death of the will-maker. There is a general
common law exception to solicitor-client privilege
that permits the admission of solicitor-client
communications dealing with the existence,
execution, tenor or validity of wills.
If after death of the client, you are asked to release
your wills file, you should give consideration to the
law regarding the release of solicitor-client
communications in the context of the particular
legal issue that has given rise to the request for the
file.
For a detailed discussion of this see M. A. Laidlaw,
“Solicitor - Client Privilege: to Disclose or Not to
Disclose . . . Remains the Question, Even After
Death” (1995) 15 Est. and Tr. Journ. 56.

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Chapter 5 [§5.03] Claims against an Estate on Intestacy
On intestacy, the deceased’s property will devolve in
accordance with the fixed statutory scheme of WESA. In
Claims Made Against an Estate1 certain circumstances, however, contentious issues may
arise concerning the entitlement of separated spouses or
where there are two or more eligible spouses.
[§5.01] Introduction Under WESA, a spouse has the meaning given to it in s.
2. Subsection 2(1) provides that two people are spouses
Before preparing a will, the lawyer must have some for purposes of WESA if they were married to each other
knowledge of the types of claims that can be made or lived together in a marriage-like relationship for at
against the will and the estate. The most common types least two years. Same-sex couples that lived together in a
of claims are introduced in this chapter. marriage-like relationship for at least two years are
spouses for the purposes of WESA.
[§5.02] Challenges to a Will It is possible for more than one eligible spouse to survive
an intestate. Section 22 of WESA addresses this
Under WESA, a child or spouse of the deceased may possibility. If two or more persons are entitled to a
seek a redistribution of the will-maker’s estate if it can spousal share of an intestate estate, they share the
be established that “adequate provision” has not been spousal share in the portions to which they agree, or if
made for the “proper maintenance and support” of the they cannot agree, as determined by the court (s. 22(1)).
claimant. If two or more persons are entitled to apply or have
priority as a spouse under WESA in respect of an
Part 4, Division 6 of WESA, which deals with variation intestate estate, they may agree on who is to apply or
of wills, is described in more detail in Chapter 19. who is to have priority, but if they do not, the court may
If the dispute is over the will or estate of a First Nations make the decision (s. 22(2)).
person registered under the Indian Act, s. 46 of the Regarding the position of separated spouses, subsection
Indian Act gives the Minister of Indian Affairs and 2(2) of WESA provides that two persons cease to be
Northern Development the ability to declare the will spouses if:
void in whole or in part under specified circumstances
set out in s. 46. However, both the Minister and, with (a) in the case of marriage, an event occurs that
the consent of the Minister, the party contesting the will causes an interest in family property, within the
or estate can apply to transfer the proceedings to a meaning of the Family Law Act, to arise, or
provincial superior court (s. 44). There are advantages to (b) in the case of a marriage-like relationship, one or
each process and the decision will depend on the nature both persons terminate the relationship.
of the dispute and the preferred remedy being sought. Under WESA, once a person ceases to be a spouse, the
For example, under s. 46, the Minister may declare the person no longer has a right to claim variation of a
will of an Indian void if its terms would impose undue deceased former spouse’s will under Part 4, Division 6.
hardship on persons for whom the will-maker had a The person would also not be able to claim a spousal
responsibility to provide, a class that seems broader than share of the estate under Part 3 if his or her former
the class of children and spouses entitled to seek spouse died without a will.
variation of a will under WESA, or it purports to dispose Since separation is an event that causes an interest in
of land on a reserve contrary to the Act. Unlike the court family property to arise, for family law purposes it is
under WESA, the Minister cannot create new provisions particularly important to determine whether a couple
or reword the will. If the Minister declares a will or a truly separated before the death of one of them. If the
gift in a will void, the estate or the gift passes on an couple has truly separated, the surviving former spouse
intestacy under s. 48 of the Act. For details about may be able to make a claim under the Family Law Act
proceedings under the Indian Act, see s. 46 of the Indian or a claim for unjust enrichment, but not under WESA.
Act and CLEBC, British Columbia Probate & Estate This is an evolving area of the law which the courts may
Administration Practice Manual, §20.05, §20.06 and clarify in due course.
§20.11.
Section 48 of the Indian Act governs intestacy for First
1 Updated by PLTC in January 2016. Sadie Wetzel of Davis LLP Nations people whose estates fall within the process set
updated this chapter in December 2011. Helen Low of Fasken out by the Act. The Act defines “survivor” in relation to a
Martineau DuMoulin LLP kindly reorganized and revised this deceased individual, as his or her surviving spouse or
chapter in March 2005. Reviewed and revised in February 2000 common-law partner. A “common-law partner” is
and 2001 by Helen H. Low. Reviewed for content relating to the
defined as “a person who is cohabiting with the
Indian Act, in January 2002, by Roger D. Lee, Davis &
Company, Vancouver. Reviewed and revised in February 1997 individual in a conjugal relationship, having so
and 1998 by Allan P. Seckel of Fasken Martineau DuMoulin, cohabited for a period of at least one year.”
Vancouver.
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 40
The law remains unclear regarding the degree of kinship a much broader range of circumstances than the
that has status to inherit under ss. 48(6) and (8) of the presumption would suggest. See the comment on Re
Indian Act. Does the right to inherit the right of Mandryck (1980), 6 E.T.R. 104 (Sask. Q.B.). See also
possession to reserve land stop at brothers and sisters or Guzzo v. Scarcelli (1986), 23 E.T.R. 186 (B.C.S.C.);
extend to nieces and nephews? In Wilson v. Bonneau varied (1989), 33 E.T.R. 163 (B.C.C.A.), in which a
(sub nom. Okanagan Indian Band v. Bonneau), 2002 daughter provided substantial services to her mother
BCSC 748, affirmed 2003 BCCA 299, the court held over a long period of time, in reasonable expectation that
that the right to possess land vests in Her Majesty for the she would receive benefits on her mother’s death. In
benefit of the Band because the right to inherit land did
Guzzo, Houghton J. suggests that, depending on the
not extend to nieces and nephews.
circumstances, either a constructive trust or a quantum
[§5.04] Claims against an Estate by Unrelated meruit assessment of services may be used as part of the
Parties “equitable weighing” by the court of the plaintiff’s
efforts, the advantage which accrued to the deceased, the
In both testate and intestate estates, creditors and tort deprivation which accrued to the plaintiff, and the value
victims of the deceased may make claims, subject to of everything which she received or might receive from
certain limitations set out in s. 150 of WESA. This the deceased. The case stands for the proposition that a
section, among other things, excludes claims by the claim in trust may be joined with a variation action. If
estate of a deceased person for damages for pain and successful, the trust claim would reduce the size of the
suffering, loss of expectation of life, and expectancy of estate available for redistribution. In varying Justice
earnings after death. Houghton’s decision, the Court of Appeal determined
that because there was no link between the contributions
Maintenance obligations of the deceased in his or her provided by the respondent to the deceased and the
lifetime may be enforceable against the estate provided assets of the estate, it was inappropriate to make a
such an intention can be gleaned either from the court declaration of constructive trust against the assets of the
order or an agreement. estate. However, the Court of Appeal instead ordered a
There may be cases where the deceased has money judgment which would constitute a debt of the
contractually obligated himself or herself to devise a estate, payable before legacies.
specific property by will, or to make certain testamentary Peter v. Beblow (1993), 77 B.C.L.R. (2d) 1 (S.C.C.) is
dispositions in consideration of reciprocal dispositions the leading case on the principles to be applied when
being made by another, usually the spouse. This is the determining if a constructive trust should be imposed.
so-called mutual wills doctrine, which is noted for its The Supreme Court of Canada held that domestic
complexity and uncertainty; see Albert H. Oosterhoff, services can meet the basic test of a claim in constructive
“Mutual Wills” (2008), 27 Est. Tr. & Pensions J. 135, trust (that is enrichment, a corresponding deprivation,
Keith B. Farquhar, “Mutual Wills: Some Questions and the lack of juristic reason for the enrichment) if there
Recently Answered” (2000), 19 Est. Tr. & Pensions J. is a demonstrated link between the domestic services
327, T.G. Youdan, “The Mutual Wills Doctrine” (1979), provided and the property in which the trust is claimed.
29 U.T.L.J. 390 and “Some Comments on Re Ohorodnyk See Crick v. Ludwig (1994), 95 B.C.L.R. (2d) 72 (C.A.),
and the Mutual Wills Doctrine” (1979), 4 E.T.R. 249; for a subsequent application of these principles; see also
and see Feeney’s Canadian Law of Wills, 4th ed. CLE Annual Review of Law & Practice (March 2008),
(Butterworths, looseleaf), Chapter 1.E.). for a discussion of unjust enrichment and constructive
trusts.
[§5.05] Unjust Enrichment and Quantum Meruit
Clarkson v. McCrossen Estate (1995), 3 B.C.L.R. (3d)
Note also the area of contractual and quasi-contractual 80 (C.A.) deals, among other things, with the issue of
claims against the estates of deceased persons for when a successful claim of unjust enrichment entitles the
services rendered. See, for example, the decision of claimant to a monetary award rather than to the
Dhillon v. British Columbia (Official Administrator), imposition of a constructive trust.
[1993] B.C.W.L.D. 1749 (B.C.S.C.), where the claimant In Clarkson, the plaintiff stepdaughter succeeded in her
successfully proved an oral contract to receive the entire claim based on unjust enrichment for care she had
estate in return for providing services to the deceased. provided, first to her deceased mother, and later to her
Those who are members of the deceased’s family and stepfather. To adequately care for each of her mother
allege a specific contractual arrangement will be met and her stepfather, she had reduced the number of hours
with the presumption from Balfour and Balfour, [1919] where she had been employed elsewhere. It had been her
2 K.B. 571, that legal consequences do not normally understanding that the property owned by her stepfather
attach to familial arrangements. However, the law of would be left to her in recognition of her devotion. The
restitution and unjust enrichment allows for recovery in
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 41
stepfather remarried subsequent to the death of the be made in accordance with common sense and the goal
claimant’s mother but not long before he himself died. of a fair result. This flexibility in choice of valuation
approach “permits all factors relevant to the acquisition
In determining the appropriate remedy the trial court
and maintenance of property to be brought into account,
held that, because the claimant had contributed little
while it enables the trial judge to reflect in the award the
toward the property in question directly, and because she
reality of current market value.”
hadn’t attached any particular significance to the actual
property (which had been sold), she was entitled to a The Court observed that the value survived approach
monetary award rather than to the imposition of a will usually be the best choice for long term
constructive trust. The Court of Appeal held that while marriage-like relationships, because contributions in
the appropriate remedy in the circumstances was a these partnerships cannot be measured with precision
monetary award, if it were to decide the case at first and because that approach is consistent with the
instance, it would also have found (unlike the trial court) expectations of both parties in this type of relationship,
that there were adequate circumstances to have imposed barring evidence of a contrary understanding. Where the
a constructive trust. unjust enrichment is an uncompensated but measurable
contribution to the will-maker’s general estate that is not
In Antrobus v. Antrobus 2009 BCSC 1341, varied 2010
reflected in a particular property, the value received
BCCA 356, the court held that the defendant parents
approach will be appropriate.
were unjustly enriched by the plaintiff, their eldest
daughter. As a teenager, the plaintiff performed the The Court in Pickelein stated that courts should always
majority of the household work, such as housecleaning, factor in contributions made by third parties and the
after-school childcare, cooking, laundry, and grocery capital brought into the relationship in determining
shopping. She also worked at her parents’ business whether a constructive trust is the appropriate remedy
without compensation. Her parents promised her that and in determining the amount of compensation. The
they would leave their entire estate to her in return for all first step in determining the appropriate compensation
the work she had done for them. Because of their for unjust enrichment will be assessing the net
promise, the plaintiff continued to assist her parents by appreciation of value during the relationship that is
purchasing a rental property on their behalf and taking attributable to the contribution of the parties.
responsibility for the mortgage. She was their mainstay
for at least 20 years. The court found that the volume of
work performed by the plaintiff as a teenager and young
adult was outside of the usual exchange that is part of
family life, and the fact that her parents made the
promise of their estate suggested that they recognized
what they had asked their daughter to do was unusual
and worthy of compensation.
The court awarded monetary compensation to the
plaintiff. The court declined to impose a constructive
trust because there was not a strong link between the
services the plaintiff performed and the real property
owned by her parents and there was no evidence that her
parents would be unable to pay an award of damages.
Consider also R. v. Anderson Estate (1994), 6 E.T.R.
(2d) 251 (T.C.C.) where the imposition of a constructive
trust resulted in the property escaping the deemed
disposition on death provisions of s. 70(5) of the Income
Tax Act, R.S.C. 1985 (5th Supp.), c. 1.
See Pickelein v. Gillmore, [1997] 5 W.W.R. 595
(B.C.C.A.), in which the Court of Appeal recognizes that
trial courts may adopt a “value received” or “value
survived” approach in making monetary awards to
compensate for unjust enrichment. The “value received”
approach does not factor in value conferred on the
property in the course of the relationship, while the
“value survived” approach does consider that
contribution of value. The choice of measuring stick is to
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Chapter 6 (c) keep detailed notes of the client’s assets and
next of kin;
(d) keep detailed notes of the advice that the
Solicitors’ Duties and lawyer has given;
Responsibilities1 (e) confirm the nature of the client’s interest in his
or her real property (i.e., joint tenancy or
tenancy in common) and in special assets such
[§6.01] Duty of Care when Taking Instructions as a business, particularly where these assets
are specifically bequeathed or devised or
Lawyers who practise in this area continue to be exposed represent a substantial portion of the client’s
to liability for professional negligence long after they estate; and
stop drawing wills or retire from practice altogether. (f) confirm any “unusual” instructions by letter.
Under the current Limitation Act, S.B.C. 2012, c. 13 the Office procedures and organization should be
basic limitation period for a disappointed beneficiary to established to avoid problems in this area. For instance,
bring a claim begins two years from the date that the what is the practice in the office when instructions are
cause of action is “discovered”, as that term is defined in taken from a very elderly client late on Friday afternoon?
s. 8 of the Act. What practice is followed after instructions are taken at a
The ingredients of a cause of action in negligence are as sick bed? In either of these instances should a short will
follows: be handwritten and executed on the spot, the longer
office generated will to follow later? In a busy office
(a) a duty; what arrangements have been made to ensure that will
(b) a breach of that duty; and instructions do not sink to the bottom of the “to do” list?
(c) injury. What is the office procedure in place when the
unilingual lawyer is about to take instructions from a
In the case of a disappointed beneficiary, the duty arises client who has only a limited knowledge of English, or
when the lawyer undertakes to prepare the will. The has an accompanying close relative who advises that he
breach occurs when the lawyer commits the error. The or she is there to translate the client’s wishes and will
injury occurs when the will comes into force. assist at execution?
Consequently, the cause of action will arise when the
disappointed beneficiary “discovers” the lawyer’s error. In addition to understanding the laws of wills, trusts and
An example will illustrate the enduring nature of the estates, the lawyer will need to understand the laws
risk. A 26 year old lawyer makes an error in the concerning income tax, property, conflict of laws,
preparation or execution of a will for a 30 year old insurance and corporations. Taking advantage of
client. The client dies 45 years later at age 75. According available courses assists the lawyer in keeping up with
to the Limitation Act, the right to sue begins to run when changes in the relevant law.
the error is “discovered.” Assume that this happens
shortly after the will-maker’s death, when the lawyer is [§6.02] Duty of Care towards Beneficiaries
71 years old. The limitation period does not expire, at The starting point so far as the liability of the lawyer to
the earliest, until the lawyer reaches 73 years of age. The the third party is concerned, is the judgment of Aikins J.
basic two-year limitation period may be extended under in Whittingham v. Crease & Co. (1979), 88 D.L.R. (3d)
the discovery, disability or confirmation provisions of 353 (B.C.S.C.). In that case, the solicitor prepared the
the Limitation Act, to a maximum of 15 years from the will, was present at the will-maker’s house for the
date the cause of action arose. execution of the will, and allowed a beneficiary’s spouse
Lawyers can take steps to protect themselves. In addition to act as a witness of the signing of the will. Aikins J.
to carrying adequate errors and omissions insurance held the solicitor’s firm liable to the disappointed
coverage, lawyers should beneficiary on the grounds that Hedley Byrne & Co. Ltd.
v. Heller & Partners, [1964] A.C. 465 (H.L.) applied.
(a) use checklists when taking the client’s Hedley Byrne has three components:
instructions;
(a) a negligent misstatement;
(b) record the client’s instructions carefully;
(b) reliance by a third person who could have been
foreseen as one who would rely upon the
1
statement; and
Updated by PLTC in January 2016. Helen Low of Fasken
Martineau Dumoulin LLP kindly reorganized and revised this (c) injury.
chapter in March 2005. Original chapter prepared by Donovan
Waters, Q.C., Associate Counsel, Bull Housser and Tupper,
Vancouver.

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In order to succeed, the third party (the disappointed could have no doubt in a will case where the solicitor
beneficiary) must show that he or she has relied on the knows the name of the third party to whom the duty is
skilled, though negligent, solicitor. How does a will owed, and the amount of the loss is quantified by the
beneficiary show reliance? Aikins J. focused on the will itself.
specific facts of the case he was trying, what he called
The difficulty with Ross v. Caunters’ duty of care is that
“the practical realities of the situation.” In this case, the
it opens up an ambit of possible liability of lawyers to
disappointed beneficiary had been instrumental in
third parties, the borders of which cannot be described
securing the solicitor’s services for the will-maker, and
with any certainty, and which triggers causative liability
was present at the execution. He was “keenly interested
of what today are unknown dimensions.
in the will being effective”, and he “relied on the
solicitor to see to it that it was effective.” Aikins J. The House of Lords in White v. Jones, [1995] 3 All E.R.
concluded by emphasizing that he was indeed deciding 691 (H.L.), subsequently differed from the views
the case on the particular facts and that he was making expressed in Whittingham v. Crease and Ross v.
no pronouncement on the general issue of a solicitor’s Caunters. In White v. Jones, the client died before the
liability for negligence to a third-party will beneficiary. solicitor had drawn the will. While the will-maker’s
daughters had been excluded from his previous will, the
In the English case of Ross v. Caunters, [1979] 3 All
will-maker had since reconciled with his daughters and
E.R. 580 (Ch.D), a will was sent to the client by his
had instructed the solicitor to give legacies to them in his
solicitor for execution. The will was accompanied by
new will. The disappointed beneficiaries sued the
instructions as to how the will should be executed. The
solicitor in order to recover their losses.
will was duly executed and returned to the solicitors.
However, one of the witnesses was a spouse of a The trial judge held that the solicitor’s conduct towards
beneficiary; the will-maker had not been warned of the his client was wrongful, but distinguished Ross v.
statutory prohibition against any such person witnessing, Caunters as he found that there had been no reliance
the instructions did not refer to it, and the solicitors here. The will-maker, he concluded, was not intending to
neither checked the will for such an error on its return to create a relationship between the solicitor and any
them, nor discovered the error in the two years which proposed beneficiary. Indeed, whether any beneficiary
then elapsed before the will-maker’s death. The would have become or remained a legatee (and therefore
beneficiary, who was unknown to the solicitors except have suffered loss) at the will-maker’s death was
by name, sued the solicitors to recover her loss, and speculative and uncertain.
succeeded.
The decision was reversed by a unanimous Court of
In a carefully reasoned judgment, Megarry V.C. Appeal. The Court considered whether the 1979 decision
concluded that the true basis of a solicitor’s liability to in Ross v. Caunters was correct in going beyond
third parties is the duty of care which he or she owes negligent misrepresentation and reliance in order to base
under the principles of Donoghue v. Stevenson, [1932] liability on a solicitor’s duty of care towards both his
A.C. 562 (H.L.): client and a third party to carry out properly the client’s
instructions to confer a benefit on the third party. The
A solicitor who is instructed by his client to
Court concluded that Ross v. Caunters remains good
carry out a transaction that will confer a
law, despite later House of Lords decisions.
benefit on an unidentified third party . . . owes
a duty of care towards that third party in The solicitor (or rather his professional insurer) appealed
carrying out that transaction, in that the third to the House of Lords. This was the first time the issue
party is a person within his direct of solicitor’s negligence in the drawing or execution of
contemplation as someone who is likely to be wills had come before the House and the appellant took
so closely and directly affected by his acts or the opportunity to mount a major argument in favour of
omissions that he can reasonably foresee that the position that solicitors can only be liable in breach of
the third party is likely to be injured by those contract. Any liability in tort was contested, but in
acts or omissions. particular the argument that a solicitor has a duty of care
under the rule in Donoghue v. Stevenson, supra. In other
The judge was prepared to concede that the same result
words, the appellant argued that the decision in Ross v.
can be reached by the route of Hedley Byrne and
Caunters was wrong.
negligent misstatements, but he did not see the necessity
for invoking the doctrine, of which reliance and injury The House divided narrowly 3:2 with the majority
consequent upon that reliance are required elements. holding that the solicitor was liable to the would-be
beneficiaries. The narrowness of the decision appeared
Megarry V.C. also decided that, though the matter is still
surprising considering the history throughout the
one of some judicial debate, an action may be brought
Commonwealth countries in favour of those suing
on the basis of Donoghue v. Stevenson even though the
negligent solicitors. While all members of the House
damage suffered is purely financial. And, if there is a
expressed sympathy for the disappointed would-be
doubt as to the duty of care in some situations, he said he
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 44
beneficiary in these cases, they divided over the circumstances it is justifiable to “extend” the principle of
doctrinal justification for holding the solicitor liable. tort liability in Hedley Byrne, which would give the
would-be beneficiary a remedy. By contrast, Lord
Two members of the majority were of the view that Ross
Nolan, though he accepted the “extension”, was of the
v. Caunters ought not to be followed. A duty of care
opinion that the tort liability of a solicitor was already
under the Donoghue v. Stevenson principle, they
otherwise established in their Lordships’ own recent
reasoned, gives rise to too many conceptual problems.
precedents.
For example, is a solicitor to be liable for financial loss,
albeit caused by his negligence? Further, must the It is important to remember, however, that the courts are
plaintiff have suffered loss, or instead failed to obtain a merely asking for the level of attainment of the normally
benefit? Following a Donoghue v. Stevenson duty of competent lawyer. It may well be that those
care means that the solicitor is to be liable to anyone, professionals who also advertise or otherwise hold out to
despite the fact that he or she may never have spoken to the public their skills in some particular field of legal
or corresponded with the third party (Hedley Byrne). practice will be required to perform at that level (see
Indeed, the solicitor is unlikely even to know of the Fales v. Canada Permanent Trust Co., [1977] 2 S.C.R.
would-be beneficiary’s existence, except through the 302, and Bartlett v. Barclays Bank Trust Co., [1980] 1
will-maker’s instructions. Lords Goff and Browne- All E.R. 139 (Ch.D.)). That being said, the courts appear
Wilkinson found the Ross v. Caunters duty of care too to be stressing that it is only when the lawyer falls below
uncertain as to the circumstances in which, and the the level of normal efficiency that he or she will be
persons to whom, it would apply. denied the opportunity to disclaim responsibility for the
injury that he or she causes.
Lord Nolan alone (the third member of the majority) was
prepared to support the Court of Appeal’s decision to
[§6.03] Common Errors2
follow Ross v. Caunters. It is to be noted, however, that
neither of the other two majority members was prepared
In 1993, the Law Society of British Columbia published
to rule that the decision in Ross v. Caunters is wrong.
a summary of claims and potential claims brought
Instead, they noted that the duty of care remedy
against lawyers for negligence in the wills and estates
available to the would-be beneficiary has existed for 15
area. The acts of alleged malpractice include the
years without apparently causing any difficulty, and that
following:
in fact other jurisdictions, including Canada, had
adopted Ross v. Caunters. They cited Peake v. Vernon & (a) failure to determine what close relatives were
Thompson (1990), 49 B.C.L.R. (2d) 245, and Heath v. alive at the time of making the will so that they
Ivens, supra. As a result, having considered Ross v. could either be provided for in the will or
Caunters, the House merely declined to apply it to the expressly excluded;
facts at hand.
(b) failure to determine the share structure of the
Nevertheless, the injustice to the would-be beneficiary’s will-maker’s corporate interests so as to draw a
position, if nothing were done, was such that Lords Goff will which reflected the will-maker’s
and Browne-Wilkinson were prepared to “extend” the intentions;
principle in Hedley Byrne, supra, so as to give a remedy,
(c) failure of the lawyer to proof-read a revised
and Lord Nolan, unable to persuade them to apply Ross
will before execution;
v. Caunters, agreed with them.
(d) failure to draft a will and have it executed after
The Hedley Byrne principle does not strictly apply to the
receiving instructions from the will-maker to
solicitor and the disappointed beneficiary, because the
draft the will; and
solicitor who receives instructions and fails through
dilatory behaviour to draft a will before the client dies (e) failure to determine that the ownership of an
has made a misrepresentation to no one, let alone the asset was not as the will-maker thought when
third party of whom the solicitor knows nothing save by he gave instructions for the will.
report. On the other hand, the solicitor who takes
instructions knows who it is the will-maker wishes to
benefit, and also knows the property the intended
beneficiary is to have. In the view of the majority
members of the House, the solicitor, like any other agent
in receipt of instructions from the principal, can be said
to be subject to an “assumption of responsibility.” The
remedy against the solicitor would ordinarily be an
action for breach of contract, but the deceased client has
2
Taken in part from a paper entitled “A Lawyer’s Liability to
Disappointed Beneficiaries” prepared for CLE in December
suffered no loss, so no action can be brought by the 1989 by Madam Justice Sandra K. Balance, then of Legacy Tax
estate. It seemed to the majority members that in those & Trust Lawyers, Vancouver.

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It is not only the drafting of wills, but their formal first glance, appears routine and repetitive, while on
execution that has caused litigation. The statutory rules closer examination reveals an area fraught with traps and
for formal execution are easily capable of mastery by a liability risks. These risks are not justified from a
competent lawyer, and what the courts appear to be business perspective—in other words by the fee
demanding is that in the process of execution the lawyer received. By paying close attention and charging
be both knowledgeable and alert. realistic fees, or by passing the work to a will specialist,
lawyers will educate the public and each other about the
The following are instances of technical faults:
value of a properly drawn will. Perhaps more
(a) will-maker not signing in the presence of importantly, they may avoid the eventual cost of an
witnesses; improperly drawn one.
(b) witnesses not signing in the presence of the
will-maker, or of each other;
(c) a witness not in the physical presence of the
will-maker, but only by telephone;
(d) the spouse of a beneficiary or a beneficiary
witnesses the will;
(e) informing a client in British Columbia that
divorce will revoke the will (WESA, s. 55);
(f) writing “null and void” across a will which the
will-maker intends to revoke; and
(g) receiving telephone instructions to “tear up” a
will, and carrying out the act without being in
the presence of the will-maker.
Under section 58 of WESA the court now has the power
to declare that a will or a gift in a will is valid in spite of
technical faults such as failing to meet the statutory
formalities for execution.
Other difficulties can arise when the will-maker is
devising real estate in a jurisdiction other than British
Columbia, especially when the jurisdiction is not in
Canada. Does the situs require any formalities different
from those required in this province before British
Columbia will recognize the will? American
jurisdictions differ as to the number of witnesses
required, though many have enacted legislation that
gives effect to instruments that are formally valid
according to the law of the place of execution. This
information can be discovered by standard research
techniques.
The public has expectations of the lawyer, but the fees
charged by lawyers for preparing wills are not reflective
of the responsibility assumed nor the time, skill and care
that must be taken. For this reason, lawyers are tempted
to reduce their costs. They rely heavily on precedents
and paralegals. They spend as little time as possible
drafting wills and reviewing prepared wills. The better
approach is for lawyers to spend an appropriate amount
of time obtaining instructions and preparing the will.
They should charge an appropriate fee for such service.
Alternatively, lawyers should consider referring will
clients to solicitors with the necessary expertise in the
area. This is to approach will preparation in the same
way as one would approach conveyancing, where few
solicitors are willing to “dabble” in an area which, at
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Chapter 7
The personal representatives under a will are the
executor and trustee appointed in the will. The executor
must apply for probate of the will, collect the assets of
Initial Advice to Prospective the deceased, pay all of the debts (including taxes) of the
Personal Representative1 deceased and the estate, and distribute the assets in
accordance with the terms of the will. The trustee must
hold, administer, and distribute assets governed by the
[§7.01] Introduction terms of any trust established in the will in accordance
with those terms. Often one person acts both as executor
This second part of the Practice Material: Estates is and trustee under a will. The source of authority for the
designed to provide a general introduction to practice in
executor and trustee is the will.
the area of probate and estate administration. The
materials summarize the following:
The person to whom the court grants letters of
(a) principles of law relating to administration of administration or letters of administration with will
estates, executors and trustees, probate actions, annexed becomes the deceased’s personal representative
and claims that can be made against the estate; and is known as the “administrator” of the estate. The
(b) procedural rules relating to grants of probate source of the administrator’s authority is the order of the
and administration, probate actions, and claims court awarding letters of administration to the
for a variation of a will under Division 6 of administrator.
Part 4 of WESA;
(c) practice guidelines relevant to substantive and [§7.02] Identification of the Personal
procedural matters; and Representative
(d) areas of potential liability and other pitfalls. Ordinarily, a will expressly appoints one or more
executors, with an alternate or alternates in case a person
This chapter offers an overview of the initial advice that initially named is unable or unwilling to act or continue
should be given to a prospective personal representative to act.
and the initial steps that should be completed in
preparing to make the application for probate or In some cases, particularly with “home-made” wills, no
administration. Not all of the material in this chapter will executor is named but some person is directed to
be relevant in each case. What issues should be perform some or all of the duties that would ordinarily
discussed with the client and when they should be raised be performed by an executor. In these situations, that
are matters of judgement in each case. person may be able to apply for probate as “executor
according to the tenor” of the will (see §5.75, British
Probate is the court-based procedure used to establish Columbia Probate and Estates Practice Manual,
the validity of a will, if one exists, and to appoint the Vancouver, CLEBC).
personal representative who will then have the authority
to act on behalf of the deceased’s estate. When a person If there is no will, an administrator must be appointed by
in British Columbia dies without a will, or with a will the court to administer the estate. The persons who are
that only partially disposes of the estate, that person is entitled to apply for letters of administration are
said to have died intestate, or partially intestate as the generally those entitled to share in the estate.
case may be, and the person seeking to be the personal If there is a will but no effective appointment of an
representative of the deceased must apply to court for executor, the person seeking to be administrator would
letters of administration. If a person dies with a will but apply for letters of administration with the will annexed.
failed to appoint an executor or the executor predeceased Sections 130 to 132 of WESA set out to whom the court
the will-maker or is unwilling or unable to act, the may grant administration when there is no will, or a will
person seeking to be the personal representative of the with no executor, and in what priority (see §7.05(4)).
deceased must apply to court for “letters of
administration with will annexed.” [§7.03] Deciding whether to Act as Personal
Representative
1 The client should consider a number of factors before
Updated by PLTC in January 2016. Hugh S. McClellan of
McLellan Herbert updated this chapter in February 2014.
deciding to act as a personal representative. Some of the
Revised in June 2006 and January 2005 by Kirsten H. Jenkins of more significant factors are as follows:
Bull Housser & Tupper LLP. Reviewed and revised in February (a) the potential for personal liability arising from
2000 and 2001 by Helen H. Low of Fasken Martineau
DuMoulin, Vancouver. Reviewed in February 1997 and 1998 by
a breach of trust in the course of administering
Allan P. Seckel of Fasken Martineau DuMoulin, Vancouver. the estate; also the potential personal liability
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arising by statute and for omissions when intermeddling. If there has been no intermeddling, the
acting as an executor; client should be advised that he or she cannot be
compelled to act as the personal representative.
(b) the terms of the will if there is one (e.g.,
whether there are ongoing trusts which must be An infant has no capacity to apply for a grant or to
administered and whether the client is a renounce, and a renunciation cannot be obtained from an
beneficiary); infant’s guardian. In the case of a patient, as defined in
the Patients Property Act, R.S.B.C. 1996, c. 349, a
(c) the nature of the deceased’s assets (e.g.,
renunciation can be signed by the patient’s committee.
whether the client has the requisite expertise to
deal with unusual assets; whether the estate is A renunciation must be in Form P17 and in the case of a
solvent); renunciation by an individual, should be witnessed by an
adult who does not have an interest in the estate. Once
(d) any conflicts of interest that are apparent or
an executor has renounced, his or her rights in respect of
may arise in the administration of the estate;
the executorship terminate unless the Court otherwise
(e) the personal relationship of the client with the orders (WESA, s.104).
beneficiaries or intestate successors; and
[§7.04] Immediate Responsibilities of a Personal
(f) the time involved and remuneration payable. Representative
The client should also be made aware of the onerous Once the client has decided to act as a personal
duties associated with acting as a personal representative, the lawyer should advise the client about
representative. Although they can be prescribed by a the client’s immediate responsibilities.
will, the duties almost invariably include the following
1. Disposition of Remains
matters:
Section 5 of the Cremation, Interment and Funeral
(a) taking possession or control of the deceased’s
Services Act, S.B.C. 2004, c. 35, sets out the
assets;
hierarchy of persons who are entitled to control the
(b) paying debts and making provision for other disposition of remains. At the top of the list is the
liabilities; personal representative named in the will of the
deceased. The right of the executor takes priority
(c) notifying beneficiaries;
over the right of a spouse or other close relative. As
(d) acting personally, although delegation may be a matter of practice, the family of the deceased
allowed in certain circumstances; typically makes the funeral arrangements. If the
executor or another individual has the duty to or
(e) ensuring that investments are authorized;
undertakes to dispose of the remains, but neglects to
(f) insuring against perils; do so without lawful excuse, he or she is guilty of
an indictable offence under s. 182 of the Criminal
(g) continuing or bringing and maintaining actions
Code.
on behalf of the estate; and
Under s. 6 of the Cremation, Interment and Funeral
(h) keeping proper accounts.
Services Act, the deceased’s written preference
An executor who does not wish to act, and who has not contained in a will or in a pre-need cemetery or
intermeddled can renounce the appointment. A co- funeral services contract as to disposition is
executor who does not wish to act can either renounce or binding, as long as compliance with the preference
allow another co-executor to proceed while reserving the is consistent with the Human Tissue Gift Act,
right to apply for probate later (if, for example, the R.S.B.C. 1996, c. 211, and would not be
proving co-executor later is unable or unwilling to unreasonable or impracticable or cause hardship.
complete the administration).
2. Care and Management of Assets
The client appointed as an executor should be warned
As soon as possible after death, the personal
not to deal with the assets or otherwise intermeddle in
representative should take steps to safeguard the
the estate until he or she has decided to accept the
deceased’s assets. The lawyer should advise the
appointment. Such actions may compromise his or her
personal representative that he or she is not entitled
ability to renounce the executorship and may attract
to make personal use of estate assets. Some of the
personal liability. Payment of funeral expenses, acts of
important steps are as follows:
necessity and inquiries into the deceased’s assets and
liabilities do not by themselves amount to intermeddling, (a) searching for cash, securities, jewellery and
but collecting or releasing debts due to the deceased, or other valuables and arranging for
taking possession of a legacy given in the will or holding safekeeping;
oneself out as an executor have been held to amount to

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(b) locking up the residence and, if it is not of all expenses incurred by the personal
under proper supervision, advising the representative. The personal representative is
police and making arrangements with a entitled to be indemnified out of the estate for all
security firm to patrol the residence; expenses properly incurred.
(c) ensuring that there is sufficient insurance However, money expended before the grant of
coverage for the deceased’s assets, probate or of letters of administration is potentially
checking the insurance expiry dates and at risk. This is particularly true for an administrator,
notifying the deceased’s insurance agent or who cannot bind the estate, except with regard to
company; reasonable funeral expenses, until the letters of
administration have been issued. And although an
(d) arranging for interim management of the
executor may bind the estate immediately after the
deceased’s business until distribution of the
death of the deceased, there are many
estate or sale of the business;
complications. For example, the will may not be the
(e) notifying financial institutions of the death; last will or may not be enforceable, and many
financial institutions and other third parties holding
(f) arranging for redirection of the mail, if
assets of the deceased may be reluctant to deal with
necessary;
the personal representative until probate has been
(g) checking mortgages and agreements for issued.
sale; arranging for payment of instalments
6. Safety Deposit Boxes
as and when due;
If a safety deposit box is leased in the name of a
(h) checking maturity dates on bonds and
deceased person, solely or jointly with another
expiry dates of warrants and share
person, the custodian may not allow any of its
conversion rights;
contents to be removed until the personal
(i) checking leases and tenancy agreements, representative or joint lessee attends to make an
arranging for payment or collection of rent, inventory of the contents of the box in the presence
and giving notice if appropriate; of the custodian (WESA, s. 183). The will may then
be removed, but the custodian normally will permit
(j) preparing an inventory of personal assets,
other contents to be removed only after production
e.g., furniture, furnishings, jewellery,
of the grant of probate or letters of administration.
artwork; consider taking photographs; and
[§7.05] Preparing to Make the Application for
(k) arranging for appraisals for the deceased's
Probate or Administration
assets such as real property, personal
assets, jewellery and other valuables. 1. Gathering Information
3. Dealing with Liabilities The personal representative should assemble and
bring to his or her lawyer all relevant information
The personal representative should review the
and documents, including testamentary instruments,
deceased’s debts and liabilities (e.g., mortgages,
information concerning the deceased, information
leases, income and property taxes, guarantees),
concerning the beneficiaries and other persons
check all payment due dates, and decide what
interested in the estate, and documents and
arrangements can and should be made for payment
information concerning the deceased’s affairs.
or release.
The lawyer should use client information forms and
4. Preparing to Administer the Estate
checklists (see the Probate and Administration
The personal representative must identify the checklists in the Practice Checklists Manual at
beneficiaries and next of kin, including potential www.lawsociety.bc.ca/page.cfm?cid=359&t=Check
claimants for a variation of a will under Division 6 list-Manual and the Probate and Estate
of Part 4 of WESA (if there is a will), including any Administration Practice Manual by CLEBC) to
common law spouse of the same or opposite ensure that no essential information is overlooked.
gender. A list of names, addresses, ages, guardians,
There are a large number of documents and types of
and Social Insurance Numbers for these people
information that may be relevant. The following
should be made. The representative should open a
few paragraphs highlight some of the important
bank account for the estate.
documents that may be applicable.
5. Accounting and Expenses Prior to the Grant
(a) Testamentary Instruments
The personal representative has a duty to keep
The will itself is not necessarily a single
proper records and to be ready to account to the
instrument. For example, it may consist of a
estate. These records should include full particulars
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will and codicils, a will with documents Sometimes, even though a wills notice search
incorporated by reference, or several wills indicates that a will was executed, the original
which, when read together, comprise one will. document cannot be found. In those
circumstances, it may be possible to probate a
Because, under WESA s. 58, the court may
copy, a draft, or a reconstruction of its
order that data recorded or stored
contents.
electronically (a “record”) may be a will or a
revocation, alteration or revival of a will or (b) Income Tax Returns
state a testamentary intention, searches of a
The lawyer should check previous income tax
deceased’s electronic records need to be made
returns of the deceased to discover assets of
in case there is a document that might be
the deceased. He or she should also ensure that
determined to be such a record.
the deceased’s return for the year preceding
Order a wills notice search. A lawyer or a death is properly filed.
member of the Society of Notaries Public of
(c) Canada Pension Plan
British Columbia upon written application in
the prescribed form, or any other person upon The lawyer should also advise the personal
written application with a certificate of death, representative on Canada Pension Plan death
may ascertain from the registrar general benefits, surviving spouse’s benefits and
whether or not a wills notice has been filed in orphan’s benefits, if applicable.
respect of the deceased person (WESA, s. 77).
(d) Life Insurance
The registrar general issues to the applicant a
The lawyer should obtain full particulars of
certificate of wills notice search. The
any insurance on the deceased’s life, and
certificate annexes copies of all notices, if any,
determine that there is no conflict between a
which have been filed in the name or names
beneficiary designation in the will and a
specified in the application. The certificate
designation made in the insurance policy.
must be filed with the application to court for a
representation grant. A beneficiary designation may be revocable or
irrevocable. Generally, a later designation
The wills notice search and the resulting
supersedes a prior designation unless the prior
certificate of wills notice search and the style
designation was irrevocable. An irrevocable
of proceeding of the probate or administration
designation cannot be altered or revoked
documents must, at a minimum, include all
without the consent of the beneficiary as long
names used by the deceased in his or her
as that beneficiary is alive. A designation in a
lifetime. This is particularly important if the
will is revoked when the will is revoked
assets of the estate include real property. If title
(Insurance Act, R.S.B.C. 1996, c. 226,
to real property is registered in a name which
s. 50(3)).
the deceased used, but which is not identical
with the name by which the deceased was The personal representative or the lawyer
described in the testamentary documents, then should provide a copy of the Certificate of
a statutory declaration for the name appearing Death to the life insurance company, obtain
in the land title records may be inadequate to forms for claiming the proceeds of the policy,
transmit real property in some land registries. and request confirmation in writing of the
Consequently, wills notice searches should be death benefit, including dividends, and
done after land title searches are done and the determine whether the deceased had borrowed
name on title should be included in the wills against the policy. Also, the cash value on any
notice search. policies owned by the deceased on the lives of
others must be determined.
Applications for wills notice searches should
be sent to: See §2.18 of the Probate and Estate
Administration Practice Manual (Vancouver:
Vital Statistics Agency
CLEBC) regarding irrevocable designations.
PO Box 9657 Stn. Prov. Govt.
See Practice Material: Family regarding
Victoria, BC
Family Law Act, S.B.C. 2011, c. 25 issues.
V8W 9P3
(e) RRSPs and RRIFs
The fee (at the time of writing) is $20, plus
$5.00 for each additional alias named, payable The lawyer should review any designation of
to the Minister of Finance. A search can also beneficiaries made in respect of Registered
be done using BC Online (see Retirement Savings Plans (RRSPs) and
www.bconline.gov.bc.ca/). Registered Retirement Income Funds (RRIFs).
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If a designation has been made by will, the decides whom to appoint as administrator of the
plan must be checked to ensure that the estate. A spouse or, with the consent of a majority
designation was made in accordance with the of the deceased’s children, a child of the deceased
plan. If a valid designation is made, the benefit may nominate a person to be the administrator. The
does not form part of the estate. applicant for letters of administration must list in
the Submission for Estate Grant (SCCR, Form P2)
2. Reviewing the Will and Advising on its Terms
all such persons as well as any other person entitled
After a search of testamentary documents has been to receive all or part of the intestate’s estate, and
conducted, and after the lawyer has ensured that the any creditor with a claim exceeding $10,000 and
will has not been revoked (in the ways described in deliver notice of the application to all of those listed
Chapter 2 of these materials), the lawyer should (Supreme Court Civil Rule 25-2 (2)((b)(ii)).
review the will and advise the client of its terms.
WESA, s. 131 sets priorities for persons applying for
The will should be checked for formal validity to grants of Administration with Will Annexed when
ensure, for example, that it was properly attested. there is a will but the executor has renounced, is
The lawyer may have to ensure that the will is unable or unwilling to act, or where the will does
formally valid in a place outside of British not name an executor.
Columbia, that is, if the will was made outside of
The court may, because of special circumstances,
British Columbia, if the will relates to land outside
such as the insolvency of the estate, appoint a
of British Columbia or if the will-maker was
person the court considers appropriate to be
domiciled outside of British Columbia at the time of
administrator other than one normally entitled
death. These matters are discussed in Chapter 2.
(WESA, s. 132).
The will should be checked carefully for any
To have each person entitled to an interest in the
indications that documents have been attached (e.g.,
estate and each person with an equal or prior right
staple marks,) and that any alterations or erasures
to apply for letters of administration provide written
have been properly executed and attested (see
consent to the application is prudent to eliminate the
Supreme Court Civil Rule 25-3(20-23)).
risk of competing applications and minimize the
The lawyer should review the gifts for any that may risk of the court requiring the administrator to
be void, revoked or lapsed. A gift to an attesting provide a bond or other security.
witness or to his or her spouse is usually void if
A committee may consent on behalf of a mentally
there are not two other witnesses who are not
incompetent person. Neither the Public Guardian
beneficiaries, but the Court may declare that the gift
and Trustee nor the guardian of an infant can
is not void if satisfied the will-maker intended to
consent on the infant’s behalf.
make that gift (WESA, s. 43). When a beneficiary
of a specific gift under a will predeceases the will- A consent must be in writing and, if it is signed by
maker, the gift to that beneficiary may lapse and fall an individual, should be witnessed by someone who
into residue or may devolve to the beneficiary’s does not have an interest in the estate. Although
next-of-kin (WESA, s. 46). Rule 25-3 does not address this, the consents are
filed with the other documents when an application
A gift can be made to an executor or trustee.
is made for a grant of letters of administration.
However, the will must be clear that the executor
intended to take the gift beneficially and not just A consent can be withdrawn up until the time an
legally in his or status as trustee of the estate. application is heard.
Further, if a will contains a gift to an executor or
In some situations, it is prudent to ensure that the
trustee, the law presumes that the gift is in lieu of
applicant is bondable before proceeding with the
executor remuneration, unless the will shows a
application. The court may require a bond or other
contrary intention.
form of security if there is an infant or mentally
3. Intestacy, Lapse and Ademption incapable beneficiary or on the application of
another beneficiary (WESA, s. 128) (the factors and
If there is no will or the will does not dispose of the
procedure are outlined in §10.06.5), An executor is
entire estate, the personal representative must be
appointed by the deceased and thus is not required
advised regarding intestacy. The provisions in
to post security. The Public Guardian and Trustee,
WESA dealing with the devolution of property are
the Official Administrator and trust companies are
discussed in Chapters 1 and 2.
also exempt from this requirement.
4. Choice of Applicant for Letters of Administration
Division 11 of WESA provides that where a person
When a person dies without a will, s. 130 of WESA died intestate or where there is no executor, the
sets an order of priority for the court when it Public Guardian and Trustee may be granted,

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administration. The Supreme Court has held that the for all purposes, or for those purposes specified in
general discretion of the court is not overridden by the order. The order constitutes proof of death. It
the predecessor section of this Division (Re Roberts enables the personal representative of the person
Estate (1987), 26 E.T.R. 71 (B.C.S.C.)). presumed to be dead to administer the estate.
Determining the actual date of death is not a matter
5. Other Grants of Administration
of presumption; it is determined on the basis of the
Special circumstances can give rise to special grants evidence presented (Re Schmit (1987), 12 B.C.L.R.
of administration that cause variations in the (2d) 186 (C.A.)). Subject to s. 4 of the Presumption
ordinary powers of the administrator and the of Death Act, any distribution of property made in
ordinary procedure, such as when reliance on such an order is deemed to be a final
distribution. The property is deemed to be the
(a) an administrator dies leaving part of an estate
property of the person to whom it has been
unadministered;
distributed as against the person presumed to be
(b) an estate is small (i.e., under a prescribed dead (s. 5(1)).
amount); or
Circumstances which the court will wish to
(c) an estate needs interim administration until a consider before making such an order include:
pending or commenced action against the
(a) the age and health of the missing person;
estate has been concluded.
(b) the circumstances in which he or she went
These special grants are described in §10.06.4.
missing;
6. Murder
(c) whether he or she has relatives whom he or she
A person convicted of murder or manslaughter is might be expected to contact;
barred from inheriting any property or acting as a
(d) the likelihood of such contacts being made;
personal representative of the victim (Dhaliwall v.
and
Dhaliwall (1986), 6 B.C.L.R. (2d) 62 (S.C.)).
(e) what efforts have been made to locate the
7. Survivorship
missing person.
The general rule regarding survivorship is outlined
See Re Burgess 2004 BCSC 62, Re Kalinski Estate
in WESA, s. 5 which provides that if two or more
(1990), 42 C.C.L.I. 127 (B.C.S.C.) and Roderick v.
persons die at the same time or in circumstances
Supreme Tent of Knights of the Maccabees (1903),
that make it uncertain which person survived the
2 O.W.R. 493.
others, unless a contrary intention appears in an
instrument, each person is presumed to have 9. Other Duties and Powers of Executors and
survived the others. WESA, s. 10 provides further Administrators
that a person must survive by five days in order to
The statutory and common law powers of an
receive a gift under an instrument.
executor may be restricted or widened by the will.
However, situations arise where this general rule is The principal powers of personal representatives are
overridden by other statutory presumptions. For briefly summarized below.
example, ss. 83 and 130 of the Insurance Act,
(a) Where there are two or more personal
R.S.B.C. 2012, c. 1 provide that if the life insured
representatives
and the beneficiary die at the same time or in
circumstances in which the order of death is not Where there are two or more personal
clear, the beneficiary is treated as having representatives, acts done for purposes of the
predeceased the insured, unless a contract policy administration of the estate with respect to real
provides otherwise (WESA, s. 11). If a situation estate require unanimity. However, acts done
arises which creates conflict between two Acts (that by one respecting personal property are
is, where the beneficiary is younger than the life deemed to be the acts of them all (that is, each
insured and both die at the same time), it may be of the personal representatives has joint and
prudent to seek the advice and directions of the entire authority over the whole of the personal
court before distributing the estate. estate (see Williams, Mortimer and Sunnucks
Executors, Administrators and Probate, 17th
8. Presumption of death
ed., 1993, at 690)). Use caution when advising
If a person is missing and reasonable grounds exist the personal representative of this power to
for supposing that he or she is dead, an application bind the others, for example, regarding the
can be made to the court for an order under s. 3 of possibility of a conflict of interest.
the Presumption of Death Act, R.S.B.C. 1996, c.
444, that the person is presumed to be dead, either
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Where the personal representatives become the resign as personal representative or discontinue
trustees of a trust in a will, the rules regarding his or her involvement as a plaintiff in the
trustees apply and unanimity is required in action.
respect of all trust property unless the trust
However, WESA now allows a beneficiary to
instrument (for example, the will) provides to
prosecute an action without the need to replace
the contrary.
the personal representative first (WESA, s.
(b) Duty to convert unauthorized or wasting assets 151).
and investments
10. Scope of Lawyer’s Retainer
Subject to the terms of the will, there is a duty
The lawyer must ascertain the scope of his or her
to examine each asset and investment with a
instructions. Is the lawyer only to obtain a grant of
view to maintaining and preserving its value
probate or letters of administration, or is he or she
and, in general, to convert, in a reasonable and
also to attend to transmission of assets, to make
timely fashion, assets that do not qualify as
claims under insurance policies, to prepare income
investments for the estate (for example,
tax returns, and to perform other duties? It is
wasting, speculative, unauthorized, or
important to clarify which duties of the client as
reversionary assets). Subject to the terms of the
personal representative, if any, are to be delegated
will, the proceeds of converted assets must be
to the lawyer. If the lawyer has been paid from the
invested in the manner provided in ss. 15.1 to
estate for services that the personal representative
15.6, and 17.1 of the Trustee Act, R.S.B.C.
should have performed, the payment will be
1996, c. 464.
deducted from the personal representative’s
(c) Power to sell assets remuneration (Re Lloyd Estate (1954), 12 W.W.R.
(N.S.) 445 (Man. C.A.)).
At common law, a personal representative has
power to sell personal estate in order to pay It is prudent for a lawyer to set down in writing to
debts. This power is extended to real estate by the personal representative both his or her duties
statute (WESA, s. 162). In this case, however, and his or her understanding of the scope of the
the power must be exercised jointly by all instructions. The retainer should advise the client of
personal representatives. It is unclear whether the right to have the lawyer’s bill reviewed under
there is a power of sale if the sale of assets is the Legal Professions Act.
not required to pay debts and not authorized
11. Insolvent Estates
under the will.
Bankruptcy and insolvency are in the exclusive
(d) Payments for infants
legislative jurisdiction of the federal government.
A Trustee may make payments for the Consequently, in an insolvent estate, the executor
maintenance or education of a minor may be ousted by the appointment of a trustee in
beneficiary out of the income of the trust bankruptcy at the instance of creditors. The
property held contingently upon the minor personal representative who undertakes to
attaining 19 or on any earlier event, such as administer an insolvent estate under Division 12 of
marriage (Trustee Act, s. 24). Payment may WESA therefore runs the risk of losing the right to
only be made out of the capital property with a remuneration. He or she should be advised to
court order: Trustee Act s. 25. Payment may be observe the order of priorities for payment of debts
made to the guardian, but there is no obligation laid down in WESA, s. 170, which is similar to
to do so. As well, most wills provide the s. 136 of the Bankruptcy and Insolvency Act, R.S.C.
personal representative with authority to pay 1985, c. B-3.
amounts to a guardian on behalf of a minor.
12. First Nations
(e) Defending actions in representative capacity
If the deceased was a First Nations person, an
A personal representative may defend actions officer appointed by the Minister of Indigenous and
brought against himself or herself in his or her Northern Affairs may administer the person’s
representative capacity and, if the action did estate. If the deceased was a member of a Treaty
not arise out of the personal representative’s First Nation, reference should be had to Division 3
wrongful act, is entitled to a full indemnity out of WESA dealing with the devolution of certain
of the estate in respect of all expenses incurred. property.
A personal representative cannot maintain or
defend an action where he or she and the estate
are on opposite sides. If such a conflict arises,
the personal representative will either have to
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[§7.06] Public Guardian and Trustee as Official
Administrator

The death of persons whose estates the Public Guardian

and Trustee might administer are often reported to the
Public Guardian and Trustee’s office by coroners, police
and hospitals. If the deceased has a “fixed place of
abode” in British Columbia or died outside British
Columbia leaving British Columbia assets, and there is
no other person willing and competent to administer the
estate, the Public Guardian and Trustee acting in its role
as Official Administrator may do so (WESA, s. 165).
This may be advantageous where the net value of the
estate is small, the estate is insolvent, or there are other
problems in administering the estate. Relatives and other
persons interested in estates of this kind should be
advised of this option.
The Public Guardian and Trustee charges fees which are
paid from the estate. Section 167 of WESA provides that
the Public Guardian and Trustee has certain authority to
act as personal representative if it intends to apply for a
grant.

[§7.07] Guardians and Committees

If a minor is named sole executor under a will, the court

must grant letters of administration with will annexed to
the minor’s guardian or, if the guardian does not apply,
to another person the court considers appropriate,
including the Public Guardian and Trustee (WESA, s.
134).
A committee, including the Public Guardian and
Trustee, has the rights, powers and privileges that would
be exercisable by the patient as the personal
representative of a person, the committee may obtain
letters of administration of the person’s estate (s. 17
Patients Property Act). The committee of a patient who,
but for mental incapacity, would be entitled to
administer an estate, would then complete the
administration of the estate in his or her capacity as
committee.

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Chapter 8 The inventory should be kept up to date throughout the
administration of the estate by recording sales,
distributions, investments, and other changes.

Assets and Liabilities: Valuation and [§8.03] Assets and Liabilities

Inventory1 The inventory should include every asset and liability of
the deceased, although the final disclosure document
that is submitted to the probate registry need not include
assets passing outside the estate.
[§8.01] Introduction
This chapter discusses, in general terms, the valuation of 1. Property that passes to the personal representative
assets and liabilities and gives some guidelines on the
The inventory must include all real and personal
preparation of an inventory. Preparing an inventory to be
property that devolves to the personal
used in the administration of an estate can be
representative, whether the deceased held the
complicated. Please refer to Chapter 3, Parts III to V, of
property beneficially or in a representative capacity.
the Probate and Estate Administration Practice Manual
(Vancouver: CLEBC) for examples of an accepted
2. Property that does not pass to the personal
format for the inventory and for accurate descriptions of
representative
particular assets.
Property that does not pass to the personal
[§8.02] Purpose of the Inventory representative includes the following:

The personal representative will require an inventory (a) property of which the deceased was a joint
and valuation of the deceased’s assets and liabilities at tenant and that passes by law to the surviving
the date of death. The inventory may be used by the joint tenant;
personal representative for a number of purposes, (b) property that by contract or will passes directly
including the following: to a beneficiary other than a personal
(a) to assist in the preparation of the Affidavit of representative; for example, insurance payable
Assets and Liabilities (often referred to as the to an assignee for value or a named
“disclosure document”) submitted with the beneficiary. Also included are the proceeds of
application for a grant of probate or a pension plan, RRSP, or RRIF payable to a
administration; named beneficiary (see Granovsky below);

(b) as a checklist to ensure that the assets are (c) property that, although apparently belonging to
gathered in, administered, and distributed; the deceased, was the subject within his or her
lifetime of division under the Family Law Act
(c) to comply with the duty to pay debts; or a community property regime; and
(d) to file an income tax return to the date of death (d) property held by the deceased as trustee.
and subsequent income tax returns until the
estate is distributed; The devolution of these forms of property is
discussed in §9.02.
(e) to assist when preparing the personal
representative’s accounts; Note also that estate-planning vehicles may
influence greatly what assets are included in the
(f) to consider the implications on the estate of disclosure statement. For an interesting
claims for the variation of a will under development in this area see a decision of the
Division 6 of Part 4 of WESA; and Ontario Court of Justice (General Division):
(g) to assist in determining the solicitor’s fees and Granovsky v. Ontario (1998), 156 D.L.R. (4th) 557.
the personal representative’s remuneration. The will-maker, Granovsky, died leaving two wills:
the “primary” will distributed the bulk of the estate
and explicitly excluded corporate shares and
1
capital; the “secondary” will directed the
Updated by PLTC in January 2016. Hugh S. McClellan of
disbursement of the shares or capital in which the
McLellan Herbert updated this chapter in February 2014.
Updated in June 2006 and January 2005 by Kirsten H. Jenkins
will-maker held an interest. The primary will was
of Bull Housser & Tupper LLP. Revised by Margaret H. submitted to probate and received the grant, subject
Mason and Kirsten Jenkins, Bull, Housser & Tupper, in to the condition that the trustee bring an application
January 2001. Reviewed annually from January 1995 to regarding the status of the second will. The main
January 2000 by Diana R. Reid of Lang Michener Lawrence & issue was whether the second will had to be
Shaw, Vancouver. submitted for probate at all such that the value
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inherent in the assets distributed under it would be prepared, it can be of great help in preparing the
included in the assessment of the value of the disclosure document.
whole estate and subject to probate fees. Greer J.
held that there was no need to prove the second will [§8.05] Valuation
or pay probate fees on the related assets; the
directors of the companies in which the testator Valuation is part of the process of preparing the
held shares or other interest were able to decide not inventory. The assets of an estate should be valued for
to require a formal grant from the court and were several reasons, including the following:
able to deal with the distribution of assets. (a) to determine capital gains and losses for
Accordingly, probate fees were not payable on income tax purposes;
these assets.
(b) to calculate foreign taxes arising as a result of
As well, the increased use of alter ego and joint the death of the deceased;
partnership trusts has resulted in many assets that
would traditionally form part of an estate falling (c) to resolve questions arising in the course of
outside the estate. Accordingly, these assets are not administration (for instance, regarding buy/sell
required to be included in the disclosure document, agreements, the sale or distribution of assets,
nor are probate fees payable in respect of them. insurance against fire and other perils, and
determination of option prices);
Property that does not pass to the personal
representative need not be accounted for by the (d) to comply with the requirement to disclose
personal representative. Disbursements for dealing value in the disclosure document;
with that property should be kept separate from (e) to calculate the amount of probate filing fees
those associated with the administration of the payable in an application for a grant; and
estate and should not appear in the personal
representative’s accounts. It may be necessary for (f) to determine what property transfer tax, if any,
the solicitor to be separately instructed and retained is payable.
by persons, other than the personal representative, This list is not exhaustive.
who have an interest in the property.
Valuation may be difficult and complex, depending on
3. Liabilities the nature of the assets and the particular circumstances.
For instance, the value of a business interest may be
A personal representative may be personally liable affected by the terms of a partnership agreement, the
for the debts of the deceased to the extent of assets articles of association, or a buy/sell agreement existing
coming into the hands of the personal at the date of death.
representative. Therefore, it is extremely important
that the debts are properly listed and valued in the If valuation is a problem, and if the estate is of
inventory of assets and liabilities. Debts should significant value, it may be prudent for the personal
include not only those immediately payable, but representative to employ a professional appraiser or, in a
also deferred debts, contingent liabilities, and case of company valuation, an accountant or other
guarantees outstanding. If the debt is or may be expert. Even in simple estates, a personal representative
disputed, then it should be indicated that the may be well advised to establish the asking price on a
validity of debt has not yet been determined. sale by means of one or more appraisals by experts. For
Particular care is necessary in describing liabilities example:
in an application for a grant of administration (a) in a proposed distribution of personal goods to
because consents from creditors may be required or beneficiaries, it may be advisable to have an
the existence of creditors may affect bonding auctioneer’s appraisal; and
requirements.
(b) if a house is going to be sold or distributed in
specie, it may be appropriate to get an
[§8.04] Form of Inventory
independent appraisal and valuation report
There are many acceptable formats for inventories, but from one or more real estate agents.
the form used should be simple and easy to read. It is
The general rule is that the relevant date for purposes of
also important to include in the inventory all assets
valuation is the date of death, although there may be
passing within and without the estate.
other dates on which valuation is required for tax
The inventory is used primarily as an accounting record purposes.
for the estate and the personal representative, and is not
usually the document that will be submitted as a
disclosure document with the application for the grant.
If, however, the inventory is complete and carefully
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[§8.06] Authorization to Obtain Information
One of the difficulties encountered at this stage,
particularly where there is no executor applying for
probate, is that third parties, such as banks, will
sometimes refuse to provide the information necessary
to complete the Affidavit of Assets and Liabilities (Form
P10 or P11) needed for the estate grant application. The
Supreme Court Civil Rules have addressed this problem
by allowing a person to apply to the court registry for an
Authorization to obtain estate information. The
applicant would submit all of the required documents for
a normal grant application to the registry except for the
Affidavit of Assets and Liabilities of the estate (see Rule
25-4, and Form P18). SCCR 25-8 deals with the effect
of the issuance of an Authorization to obtain estate
information. If a third party refuses to provide the
requested information within 30 days of delivery of the
Authorization, the court may make orders compelling
the production of the information and other orders it
considers appropriate including costs. Once the
applicant has obtained the necessary information and
filed the Affidavit of Assets and Liabilities, the
application for probate or administration may proceed.

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Chapter 9 Holding legal title in joint tenancy is not always

conclusive proof that there is a joint tenancy in
equity. The parties may intend to hold equitable
title in a different manner—for example, as tenants
in common or for some other person. It is important
Devolution of Assets1 to make the necessary inquiries to determine
ownership. Only when there is a joint tenancy in
equity will the beneficial interest pass to the
survivor.
[§9.01] Types of Assets For example, an elderly parent and an adult child
This chapter divides assets into two categories: may open a bank account in their joint names using
the parent’s funds, with the intent that the child be
(a) assets that were property of the deceased and able to use the account to deal with the parent’s
pass by will or on an intestacy to the personal day-to-day expenses. As a result of the Supreme
representative; and Court of Canada decision in Pecore v. Pecore, 2007
(b) assets that may or may not have been the SCC 17, there no longer is a presumption of
property of the deceased but to which another advancement (that is, of a gift in advance of the
person may become entitled either by parent’s death) in favour of an adult child; rather
operation of law (for example, joint tenancy), there is a presumption of a resulting trust. In a
by statute (for example, survivors’ benefits resulting trust situation, legal title to the account
under the Canada Pension Plan) or by contract passes to the child upon the parent’s death;
(for example, insurance proceeds, RRSPs). however, equitable ownership of the account
remains in the parent’s estate.
It is important to distinguish the two types of property
because, generally speaking, only assets that pass to the As a result of Pecore, a parent who owns property
personal representative are subject to the claims of jointly with a child and who intends the child to
creditors or to actions regarding the will (for example, become the sole owner of the property on the
variation of wills proceedings under Division 6 of Part 4 parent’s death, should clearly express that intention
of WESA). in writing to rebut the presumption of a resulting
trust.
[§9.02] Assets That Do Not Pass to the Personal A joint tenancy that appears to exist may in fact
Representative have been severed. Severance of a joint tenancy
1. Joint Tenancies converts it into a tenancy in common. There are a
number of ways of severing a joint tenancy. The
In a tenancy in common, the share of the deceased three main ones are by express or implied
tenant in common passes to his or her estate. In the agreement, by a joint tenant transferring property to
case of a joint tenancy, the surviving joint tenant himself or herself or to another person, and by a
becomes the absolute owner of the property. separation under the Family Law Act, S.B.C. 2011,
With personal property, if there is no indication c. 25.
that the parties own the property in shares, the Also note that a joint owner must survive for at least
common law presumes a joint tenancy. If the five days after the death of the other joint owner, in
parties have taken shares, the presumption is of a order to receive the whole asset by right of
tenancy in common. In the case of land, a tenancy survivorship (WESA s. 10(2)).
in common is presumed unless a contrary intention
appears in the instrument (Property Law Act, 2. Life Insurance Policies and Proceeds
R.S.B.C. 1996, c. 377, s. 11). The proceeds of an insurance policy may pass by
designation outside the will, rather than passing to
the personal representative (Insurance Act,
R.S.B.C. 2012, c. 1, ss. 59, 60, 65, 68). While the
1
ownership of the policy may also pass outside the
Updated by PLTC in January 2016. Hugh S. McClellan of will pursuant to s. 68, ownership will generally
McLellan Herbert updated this chapter in February 2014.
Updated in June 2006 and January 2005 by Kirsten H. Jenkins pass through the will. In each case, proceeds
of Bull Housser & Tupper LLP. Reviewed and revised since payable to a designated beneficiary, other than the
February 1995 by Margaret H. Mason of Bull, Housser & deceased insured’s estate, do not form part of the
Tupper, Vancouver. Revised by the author in January 2001 deceased’s estate and are not subject to claims of
with the assistance of Kirsten Jenkins, Bull, Housser & Tupper. the deceased’s creditors.
Reviewed for content relating to the Indian Act, in January
2002, by Roger D. Lee, Davis & Company, Vancouver.

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3. Pensions and Retirement Plans property order is filed with the administrator which
act affects the pension or payment of the pension
The owner of a retirement savings plan (RRSP)
commenced before January 1, 1993.
registered under the Income Tax Act, R.S.C. 1985,
c. 1 (5th Supp.) or a retirement income fund The Canada Pension Plan provides for three kinds
registered under that Act (RRIF) may designate a of benefits:
person to receive a benefit under the plan upon the
(a) death benefits that are payable to the
owner’s death (WESA Part 5).
personal representative and become the
Such a designation: property of the estate;
(a) must be made in accordance with the (b) survivor’s benefits that are payable to the
requirements of the plan; contributor’s spouse or common law
spouse and do not form part of the estate;
(b) may be made by written declaration or by
and
will, and, if by will, only where
authorized by the plan; and (c) survivor’s benefits that are payable to
children under the age of 18 or children
(c) is revocable.
over 18 and under 25 in full-time
If a valid designation is made, the benefit does not attendance at school. These benefits do
form part of the estate (WESA, s. 95). not form part of the estate.
An employee who participates in an employee
4. Imminent Death Donation
benefit plan may designate a person to receive a
benefit payable under the plan upon the employee’s A person may, in expectation of his or her imminent
death (see WESA, s. 85). death and conditionally upon it occurring, make a
gift transferring the legal and beneficial ownership
Section 8 of the Pension Benefits Standards Act,
of personal property to a donee. Such a gift is
S.B.C. 2012, c. 30 (the “PBSA”), requires every
known as a donatio mortis causa, and such a gift
pension plan to provide for benefits and
does not form part of the donor’s estate. No gift
entitlements on the death of a member or former
mortis causa of land is possible.
member of the plan. Section 29(1) of the PBSA
provides that an employee, at a minimum, may The gift must be delivered to the donee or there
become a member of the plan after the completion must be some indication made that title to the
of two years of continuous employment with the property has changed.
participating employer. Plans may have more
For a case on this issue, see Costiniuk v. Cripps
generous vesting provisions.
Estate (Official Administrator of), 34 E.T.R. (2d)
The PBSA provides for both pre- and post- 199; 2000 BCSC 1372.
retirement death benefits. With respect to pre-
retirement benefits, a form of pension is available 5. Powers of Appointment
to a surviving spouse who meets the definition in
A person (the “donee”) given property with the
the PBSA (includes same sex partners). If there is
power to appoint the property to whomever the
no surviving spouse, or the spouse executes a
donee pleases (including him or herself), is said to
spousal waiver, then a lump sum benefit will be
have a “general power of appointment.” The
payable to the deceased member’s designated
property subject to the general power of
beneficiary or to the personal representative of the
appointment forms part of the donee’s estate. A
deceased member’s estate.
“special power of appointment” is restricted to
With respect to post-retirement benefits, the appointing property to a particular class of persons
pension payable to a member must be a joint that excludes the donee. The property subject to a
pension payable during the joint lives of the former special power of appointment does not form part of
member and the spouse (if the member has one). the donee’s estate. If a will-maker has been given a
After the death of either the member or the spouse, general power of appointment and exercises it by
the pension continues to be payable to the survivor will, the property subject to the power forms part of
for life. The joint pension for the survivor must not the will-maker’s estate. On the other hand, property
be decreased by more than 40%. Section 35 of the over which the will-maker exercises a special
PBSA provides that the joint option must be chosen power of appointment in a will does not form part
unless the spouse executes a spousal waiver. The of the estate. If the will-maker grants a power of
waiver is a prescribed form and each pension plan appointment to a donee under a will, then the
will have a version of it. The obligation to choose property forms part of the will-maker’s estate.
the joint pension does not apply if a matrimonial

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6. Employment Benefits with the surviving spouse, or possibly a set
distribution will be imposed on the asset. Watch for
The spouse of a deceased employee who was
situations such as the following:
subject to the Workers Compensation Act is entitled
to claim from the employer not more than three (a) a deceased who resided in British
months unpaid salary or wages (WESA, ss. 175 to Columbia but was married in a
180). Such wages do not form part of the community of property jurisdiction;
employee’s estate and are not liable for the
(b) a non-resident deceased with assets in
satisfaction of debts.
British Columbia who lived in a
community property jurisdiction before
7. Contractual and Other Obligations
death; or
The deceased’s estate is subject to rights and
(c) a deceased who resided in British
obligations under court orders and contracts entered
Columbia and had property in a
into during the lifetime of the deceased, provided
community property jurisdiction.
that the obligations survive the death. Examples of
the kind of obligations that could survive death In such cases, it may be necessary to obtain legal
include support orders, marriage contracts, advice in the relevant jurisdiction to find out the
separation agreements and buy-sell agreements. rules on devolution.

8. Insolvent and Bankrupt Estates 13. Interests in Trusts

If a receiving order is made against the deceased’s If the deceased was a trustee or a beneficiary under
estate after death, the assets vest by operation of a trust, the terms of the trust should be reviewed.
law in the trustee in bankruptcy; the personal The trust documents may indicate whether the
representative has no further standing. deceased’s executor will replace the deceased as
trustee. If the deceased had a beneficial interest, the
9. Statutory Benefits trust document may indicate whether the
deceased’s estate will receive a benefit.
Statutory benefits that may become payable to the
spouse, children or other dependants, such as
compensation under the Family Compensation Act, [§9.03] Assets That Pass to the Personal
R.S.B.C. 1996, c. 126, compensation for spouses Representative
under the Workers Compensation Act, R.S.B.C.
At common law, personal property devolved at death
1996, c. 492 in fatal cases, and I.C.B.C. “no fault”
upon the personal representative, but real property
death benefits, do not form part of the estate.
devolved upon the heir. WESA, s. 162, provides that real
property devolves to and vests in the personal
10. Voluntary Payments
representative.
An employer may make voluntary payments
If there is a will appointing an executor, the devolution
directly to a person in recognition of the deceased
takes effect from the moment of death, subject to the
employee’s services. These payments do not form
executor’s right to renounce.
part of the estate.
If a person dies intestate, his or her estate vests in the
11. Family Property court until an administrator is appointed. When the court
appoints an administrator, the appointment relates back
The Family Law Act, S.B.C. 2011, c. 25, creates a
to the death (WESA, s. 135). The devolution of property
tenancy in common in family property as defined in
on an intestacy is described in Chapter 1 of these
s. 84 of the Act upon the separation of spouses. The
materials.
portion that belongs to the deceased’s spouse does
not form part of the deceased’s estate but a portion [§9.04] Conflict of Laws
of the surviving spouse’s assets may ultimately
If there is a grant of probate or letters of administration
form part of the deceased’s estate once the property
in British Columbia and some of the estate assets are
division issues under the Family Law Act have been
located outside of the province, the personal
determined.
representative must obtain control of and administer
those foreign assets.
12. Community of Property
The most frequently encountered community of 1. Immovables
property jurisdictions are Washington, California
Generally, immovable property (such as an interest
and Quebec. Assets that may appear to be part of
in land) passes pursuant to the law of the
the deceased’s estate may be subject to division
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 80
jurisdiction where the land is situated—the lex insurance company is licensed to carry out business in
situs. It is necessary first to consult the foreign law British Columbia, the policy is situated in British
to see if the British Columbia personal Columbia.
representative has an entitlement to that property.
At common law, the location of bank accounts and
This may vary, depending on whether the personal
similar deposits is the place where the accounts are kept.
representative is an executor or administrator.
The location of simple contract debts is the deceased
When there is a will that is recognized in the debtor’s residence at death. The location of stocks is
foreign jurisdiction, the British Columbia executor generally the place where they can be transferred at
will need either to get an ancillary grant or to reseal death (or if they can be transferred in more than one
the British Columbia grant in the foreign place, where the deceased would have been most likely
jurisdiction in order to deal with the immovable to transfer them). For an interesting recent decision on
assets in that jurisdiction. The law that applies to the common law rules as they relate to the location of
the application and to the administration of the uncertificated securities, see Bernstein v. British
immovable assets is the law of the foreign Columbia 2004 BCSC 70 (Re Bloom Estate), discussed
jurisdiction. at §10.05.4. The location of interests in trusts is the
place where they are being administered. The location of
When there is an intestacy in British Columbia, or a
an interest in a business, trade or profession is the place
will made in British Columbia that is not
where it is principally carried on.
recognized in the foreign jurisdiction, the
immovable assets in that jurisdiction will devolve
Canada Savings Bonds (and likely treasury bills) are
according to the law of that jurisdiction. In those
“specialty debts”, that is, debts due from the Crown
circumstances, the personal representative in
pursuant to statute. Such securities are sited in the
British Columbia will have to apply under the law
province where their existence is documented (Royal
of that jurisdiction for an ancillary grant.
Trust Co. v. Attorney General of Alberta, [1930] 1
D.L.R. 868). This case was argued successfully such
2. Movables
that Canada Savings Bonds held by the deceased at an
Generally, movable property (all property that is institution outside British Columbia were “without” the
not immovable) passes under the law of the province for the purpose of the probate filing tax
deceased’s domicile. The foreign jurisdiction may applicable in British Columbia.
or may not require the personal representative in
British Columbia to do something in order to Under the Probate Fee Act S.B.C. 1999, c. 4, probate
administer the movable asset in that jurisdiction fees are based on the “value of the estate”, which
(e.g., to obtain an ancillary grant, to reseal a grant, includes: (a) real and tangible personal property of the
to obtain a tax clearance). In some cases, a foreign deceased situated in B.C. and (b) if the deceased was
financial institution may allow the personal ordinarily resident in B.C. immediately before death, the
representative to gather in the foreign asset on the intangible personal property of the deceased, wherever
basis of the British Columbia grant. Practice differs situated that passes to the personal representative. The
in different jurisdictions and for different types of Probate Fee Act permits the Lieutenant Governor in
assets. If personal property relates to immovable Council to make a regulation defining “situated in
property, the personal property may be governed by British Columbia” for the purposes of levying the
the law of the jurisdiction where the immovable probate fee. While awaiting the passing of regulations,
property is located (WESA, s. 82). the registry has issued guidelines for personnel to
follow. These guidelines do not have the authority of
regulations, and in some instances do not comply with
[§9.05] Location of Assets
the common law location rules.
The location (the “situs”) of an asset may be important
in determining other matters besides its devolution. For If there are assets on First Nations’ reserve land, there
example, an asset will generally be liable for any death may be tax implications and other complications,
duties or probate filing fees that apply in the jurisdiction especially if the asset is real property.
in which it is located.
At common law, the location of tangible personal
property, (bearer securities, debts under seal, bonds and
debentures, and insurance policies under seal) is the
place where they are physically located at death. The
location of insurance policies that are not under seal is
the place where they are payable, except that if the
deceased was resident in British Columbia and the

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 81

Chapter 10 Domicile is a question of mixed law and fact. An

individual who has mental and legal capacity can
acquire a domicile of choice by residing in a jurisdiction
with the intention of residing there permanently or
indefinitely. Residence alone is not sufficient to create a
Applications for Probate and domicile of choice; it must be accompanied by the
intention to reside permanently or indefinitely in the
Administration1 new jurisdiction. If the domicile of choice is abandoned
and no new domicile of choice arises, the domicile of
origin revives. A domicile of choice, once abandoned,
may only be acquired again on the same terms as it was
[§10.01] Introduction originally acquired.
This chapter deals with the procedures and documents to Section 28 of the Infants Act, R.S.B.C. 1996, c. 223
obtain grants of probate and administration when the contains rules for determining the domicile of an infant.
matter is not contentious. This chapter focuses on Typically, the domicile of origin of an infant will be the
situations in which the validity of the will is not in issue. domicile of the parent or parents with whom the infant
Contentious probate matters are discussed in Chapter resides.
18.
Section 1 and Part 6 of WESA give the Supreme Court
This chapter deals only with grants for residents. See jurisdiction for administration of estates. Note that
Chapter 8 of the British Columbia Probate and Estate masters have jurisdiction to hear all interlocutory
Administration Practice Manual (Vancouver: CLEBC) applications under the Supreme Court Civil Rules as
for procedures on grants for estates of non-residents well as certain final orders, including orders in non-
where a foreign grant has been issued. contentious matters under SCCR, Part 25 (Rules 25-1 to
This chapter uses the terminology and procedure 25-16).
mandated by the Supreme Court Civil Rules (the
“SCCR”). [§10.03] Practice
Part 25 of the Supreme Court Civil Rules governs the
[§10.02] Jurisdiction procedure and documents required for administration
The first step is to determine whether the court has and probate of estates. WESA sets out the substantive
jurisdiction and which law will apply. The courts in procedures and individual sections make references to
British Columbia assume jurisdiction if the deceased the Rules to provide details and forms.
was domiciled in British Columbia or had assets in While WESA does codify much of the law and practice
British Columbia at the date of death. The exception to that was previously found only in the jurisprudence,
this is if the deceased was a First Nations person, there are still some situations that are not covered by
registered as an Indian, in which case the estate may be WESA and Part 25 of the Supreme Court Civil Rules.
probated through the procedure set out in the Indian Act, When WESA, the SCCR or other enactments do not
R.S.C. 1985, c. I-5. provide the necessary law or procedure to deal with the
In most circumstances, probate is applied for first in the non-contentious matter, the court commonly refers to
place of domicile of the deceased. The domicile of the the practice and procedure described in Tristram and
deceased at the date of death is important to determine Coote’s Probate Practice, 27th ed., 1989, MacDonell,
several issues, including: Sheard and Hull on Probate Practice, 3rd ed. Toronto:
Carswell, 1981.
(a) applicability of tax legislation;
(b) devolution of movables (typically personal Students who undertake work in this area are urged to
property); and review the British Columbia Probate and Estate
(c) Proceedings to vary wills under Division 6 of Administration Practice Manual (Vancouver: CLEBC),
Part 4 of WESA. Chapters 5 and 6. These chapters include some
directions for document preparation. The comments in
1
Updated by PLTC in January 2016. Hugh S. McClellan of these chapters are very specific, and of great help when
McLellan Herbert updated this chapter in February 2014. dealing with applications when the standard documents
Kirsten H. Jenkins of Bull Housser & Tupper LLP, need to be modified.
substantially revised this chapter in June 2006 and January
2005. Reviewed for content relating to the Indian Act, in
January 2002, by Roger D. Lee, Davis & Company,
Vancouver. Reviewed and revised in January, 2000 by Peter
W. Bogardus, Davis & Company, Vancouver. Revised in
January, 1996 by Peter W. Bogardus and Mary B. Hamilton,
Davis & Company. Revised in February 1995 by Mary B.
Hamilton.
Wills
 82
[§10.04] Place and Time of Application (i) all assets and liabilities of the deceased,
regardless of their nature, location or value,
An application for a grant of probate or administration
which pass to the applicant as the
may be made in any registry of the Supreme Court,
deceased’s personal representative (WESA,
regardless of the residence of the deceased or the
s. 122); and
personal representative. Second and subsequent grants
of probate or administration are done by amendment or (ii) all property in which the deceased had a
revocation of the original grant and must be made in the beneficial interest, not merely those assets
registry where the original grant was issued (SCCR, in which the deceased had both a legal and
25-5). beneficial interest. Note although this form
refers to the “Distribution” in the title, it is
not necessary for the applicant to set out the
[§10.05] Probate Applications
proposed distribution.
1. Documents Required for a Typical Probate
Assets of the deceased that do not pass to the
Application
personal representative do not need to be
For the purposes of this section, a “typical” probate shown on the disclosure document;
application is one in which the executor named in
(f) Affidavit of Delivery (Form P9) of notice in
the will is making the application and the deceased
Form P1 given under WESA, s. 121, and
is domiciled in British Columbia.
SCCR 25-2 with a copy of the notice attached
The documents required for a typical application as an exhibit.
are set out in SCCR 25-3 as follows:
(g) Cheque for probate filing fees.
(a) Submission for Estate Grant (Form P2). This
Some additional documents that will be required
is a comprehensive form setting out the type
with certain types of applications are as follows:
of grant being sought, information about the
deceased, information about the applicant, the (h) When, for example, a beneficiary cannot be
documents filed with the Submission, and located or dies subsequent to the deceased’s
further details depending on whether the death but prior to the application for the grant,
application is for probate, administration, an order pursuant to SCCR 25-2(14)
administration with will annexed or in relation dispensing with notice.
to a foreign grant.
(i) When, for example, the attestation clause in
(b) Certificate of wills notice search. Both the the will is incomplete or missing altogether,
certificate and Form P2 must set out all names an affidavit of execution of the will (SCCR
of the will-maker used in the will and any 25-3(2)(b)(i)(B) and the appropriate affidavits
additional names or aliases in which interests referred to in Form P4 paragraph 6(a)).
in real property are registered. The applicant
To ensure that the probate registry accepts an
must file a certificate of wills notice search,
application, it is important to include in each
even if the results of the wills notice search
document all the information that is required by the
are negative.
registry, and to use the prescribed forms.
(c) Affidavit of Applicant. The affidavit is in
Form P3 for straightforward situations and 2. Other Affidavits That May Be Required
Form P4, P5, P6, or P7, for other applications.
Additional affidavits in support of an application
The affidavit requires a number of statements,
for probate may be required, notably those referred
including that a diligent search for a
to in Form P4, such as the following:
testamentary document of the deceased has
been made and the will is the last known will (a) an affidavit to explain missing attachments to
of the deceased. a will or codicil (Form P4,paragraph 7(c));
(d) Original will, any codicils, and any documents (b) an affidavit to explain alterations to a will or
that have been incorporated into the will by codicil made before or after execution (Form
reference. These are submitted separately with P4, paragraph 7(a));
the application (do not undo the staples on an
(c) an affidavit to explain erasures and
original will for photocopying or any other
obliterations made to a will or codicil before
reason, or staple the will to any document).
or after execution (Form P4 paragraph 7(b));
(e) An Affidavit of Assets and Liabilities (Form
(Missing attachments, alterations, and erasures
P10) attaching as an exhibit a Statement of
can affect the validity of the will, and students
Assets, Liabilities and Distribution (the
who undertake any work in the estates area are
“disclosure document”) disclosing:
Wills
 83
urged to review the relevant sub-rules of the registrar. If not, then the matter must be dealt
SCCR, Part 25 and the provisions of WESA, with by the court under SCCR 25-9. The applicant
Divisions 1, 4 and 5 of Part 4); must file a requisition, a draft order, the material
supplied by the registry (i.e. the notice of rejection)
(d) An affidavit of execution, sworn by one or
and affidavit or other evidence supporting the
more of the subscribing witnesses or by a
application. The court may proceed by issuing a
person present at the execution or by a person
desk order, direct that the matter be spoken to in
setting out the circumstances of execution. The
chambers, or direct that an application be made to
purpose of such an affidavit is intended to
prove the will in solemn form. If the court approves
raise a presumption of proper execution, to
the application, the registrar will issue the grant.
show that the will was executed in accordance
with the requirements set out in Division 1 of
4. Probate Fees
Part 4 of WESA, when
Probate filing fees must be paid to the court registry
(i) there is no attestation clause;
before a grant will be issued. These fees can be
(ii) the attestation clause does not adequately fairly substantial, depending on the value of the
or clearly set out that the will or codicil estate. It is important to determine, in advance, how
has been executed in accordance with the fees will be paid. In most cases, the financial
WESA; or institution where the deceased had his or her bank
accounts will release the appropriate amount. Upon
(iii) there is some doubt about the due
the registrar providing a statement confirming the
execution of the will (for example, the
amount required to be paid, the financial institution
will-maker printed his or her name or
(assuming it is holding sufficient funds to the credit
only signed with initials).
of the deceased) may issue a cheque, payable to the
(Form P4 paragraph 6(a)). Ministry of Finance, for the amount. Alternatively,
the executor or one of the beneficiaries may be
(e) If the attestation clause does not deal with the
prepared to lend the money to the estate to enable
special circumstances noted below, an
the grant to be issued.
affidavit (Form P4, paragraph 6(c)) to show
that the will was read over, or otherwise to Section 1 of the Probate Fee Act, S.B.C. 1999, c. 4
establish the will-maker’s knowledge of the provides that probate fees are payable on the gross
contents of the will and how the will was value, as deposed to in the Statement of Assets,
executed: Liabilities and Distribution, of:
(i) when the will-maker was blind or (a) the real and tangible personal property
illiterate or did not understand English; or of the deceased situated in British
Columbia, and
(ii) when the will-maker signed by a mark or
directed another person to sign on his or (b) if the deceased was ordinarily resident
her behalf. in British Columbia immediately
before the date of death, the intangible
(f) An affidavit to establish the date when there is
personal property of the deceased,
doubt as to the date on which a will was
wherever situated,
executed (Form P4, paragraph 6(d)), or doubt
as to when the deceased died. that passes to the personal representative at the date
of death.
3. Procedure
In other words, if the deceased was “ordinarily
Pursuant to WESA s. 129(3) and SCCR 25-4 (1), resident in British Columbia immediately before
application for most grants, if unopposed and the date of death”, all of the deceased’s assets,
compliant with the Rules, including applications for except for real and tangible personal property
a grant of letters of administration, need not be physically located outside of British Columbia, will
spoken to if the documents filed in support of the be subject to probate fees.
application are in order; in that case the Registrar
Practitioners have criticized the inclusion of
issues the grant in Form P19 upon payment of the
intangible personal property outside of B.C. (e.g.
probate fees.
securities without certificates transferable at a
If the matter does not fall in the above category, the location outside of B.C.) in the calculation of
registrar will issue a notice identifying why the probate fees because under it the same assets can be
application has been rejected (SCCR 25-4(4)). In subject to probate fees in more than one province,
some cases, the applicant may be able to correct the and unlike some provinces, B.C. has no upper limit
application or supply additional material to satisfy on probate fees despite the fact the work of the
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probate registry is similar whether an estate is (iii) persons entitled on an intestacy or a
worth $100,000 or $100,000,000. partial intestacy, even if there is a will
and no apparent intestacy;
The fees payable are
(iv) if there is no will, to creditors of the
 $6 for each $1,000 or part of $1,000 of estate
deceased whose claims exceed $10,000;
value in excess of $25,000, up to $50,000; plus
(v) if the deceased was a Nisga’a member
 $14 for each $1,000 or part of estate value in
or a member of a treaty first nation, the
excess of $50,000 together with a $208 fee
Nisga’a or treaty first nation;
payable to commence the application for the
grant. (vi) to any person the court orders should
get notice; and
For example, if an estate has a gross value of
$124,200, the total fee payable will be: (vii) to any person that served a citation on
the applicant.
Basic Fee 208.00
Additional Fee Generally, it is prudent to resolve any doubt as
(a) (50,000-25,000) ÷ 1,000 x $6 150.00 to whether someone should be given notice
under SCCR 25-2 in favour of giving notice,
(b) ($125,000–50,000)÷1,000 x $14 $1,050.00
even if the will-maker has been out of touch
Total $1,408.00 for a long time or it appears that a gift will
probably fail, or if the identity of the
Generally, probate fees will not be payable on beneficiary is unclear from the will but the
assets that were situated on reserve lands, if owned beneficiary is arguably intended to be
by a registered Indian at the time of his or her death included. As well, because a “spouse”
(the Indian Act, R.S.C. 1985, c. I-5). includes persons living in a marriage-like
relationship and since spouses are entitled to
5. Notice Required under WESA notice, anyone who could be considered a
spouse should be given notice, even if a court
Section 121 of WESA requires that notice of an
has not yet formally determined his or her
application for a grant must be provided to
status as a spouse. Similarly, if there is any
specified parties who are or may be beneficially
doubt if a spouse was separated, notice should
interested in the estate as set out in the Rules.
be given. (See WESA, s. 2, for the definition
Section 121 applies to nearly every application for
of a “spouse”, and when persons cease to be
a grant, including a grant of probate or letters of
spouses.)
administration. The notice must be provided at least
21 days prior to the application for probate (SCCR If there is a survivorship clause in the will and
25-2(1)). The Public Guardian and Trustee is not the survivorship period is reasonably short, or
required to provide the notice (SCCR 25-2(15)). the five day survivorship rule in WESA s. 10
Notice is not required if the will has been proven in applies, it may be advisable for the applicant
solemn form in an application for that purpose and to wait until its expiry. Otherwise it would be
the required persons were served with the proof in necessary to send notices to two different sets
solemn form application (SCCR 25-2(16)). Failure of beneficiaries based upon whether or not the
to give the notice required by s. 121 may be event contemplated in the survivorship clause
grounds for having a grant set aside, and may also occurs.
affect the limitation period for bringing a
The court, on application, has the power to
proceeding to vary wills under WESA Division 6 of
vary the class of persons entitled to notice and
Part 4 (see Desbiens v. Smith Estate, 2008 BCSC
to dispense with the requirement of notice
696 and Shaw v. Reinhart 2004 BCSC 588).
(SCCR 25-2 (14)).
(a) Entitlement to notice
(b) Methods of giving notice
Under SCCR 25-2(2), notice must be given to:
SCCR 25-2(1) requires that the notice
(i) executors and alternate executors named required under section 121 of WESA be
in the Will and any person that has a “delivered” to each person who is entitled to
prior or equal right to make an it. Delivery may be by personal delivery,
application for a grant; ordinary mail to the person’s residential or
postal address or email, fax or other electronic
(ii) beneficiaries under the will, including
means to the address provided by the person
both residual and contingent
for that purpose. Delivery of the notice occurs,
beneficiaries;
if the form of notice is sent by ordinary mail,
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on the date of mailing, and if the form of representative of the deceased person but if
notice is sent by email, fax or other electronic the personal representative is not known, the
means, on the date it is transmitted, but applicant must apply for directions and the
delivery by email, fax or electronic means court may order that delivery is dispensed
only occurs if there is a written with or provide other directions for delivery.
acknowledgment of receipt (SCCR 25-2(5) to
(iv) Missing persons
(7)). There is no requirement to prove receipt
of a notice that has been mailed. However, If the whereabouts of a person entitled to
before mailing, the executor must make notice are unknown, the applicant must apply
reasonable efforts to verify that the address is to court under the general provision for an
current, even when the will-maker has long order varying the class of person entitled to
been out of touch, and if it is not, undertake notice or dispensing in whole or in part with
some research as to the person’s likely address notice (SCCR 25-2(14)). To obtain such an
(Desbiens v. Smith Estate, 2008 BCSC 696). order, the personal representative must
disclose in an affidavit what efforts he or she
Delivery of the notice to a person other than
has made to locate the missing person. The
the person ordinarily entitled to delivery may
extent of the efforts that must be made
be required in certain situations:
depends on the circumstances.
(i) Minors (SCCR 25-2(8) and (9))
(v) Unborn and unascertained contingent
Where a beneficiary who is entitled to notice beneficiaries
is or may be a minor, notice must be given as
The Probate Registry practice appears to
follows:
require that notices be sent to the Public
(a) if the minor resides with all of the Guardian and Trustee on behalf of unborn and
minor’s parents, to all parents; unascertained contingent beneficiaries,
although there is no apparent authority for this
(b) if the above does not apply, to the
practice.
minor’s parent or guardian
responsible for financial decisions; When notice is delivered to the Public
Guardian and Trustee, contact information for
(c) if the above does not apply, to the
every other person entitled to notice must
address(es) where the minor resides;
accompany it (SCCR 25-2(13)).
and
Also, if a notice of application for a grant was
(d) to the Public Guardian and Trustee.
delivered to the Public Guardian and Trustee,
However, notice is not required to be sent to the court must not issue a grant until the
the Public Guardian and Trustee if the written comments of the Public Guardian and
applicant is executor or alternate executor and Trustee are provided, unless the court
the minor is not a spouse or child of the otherwise orders (WESA, s. 124).
deceased and the deceased’s will creates a
trust for the minor and there is a trustee (c) Formal requirements
(SCCR 25-2(9)).
SCCR 25-2(3) specifies that the notice be
(ii) Persons with a mental disorder (SCCR given in Form P1. If there is a will, codicil, or
25-2(10) and (11)) other testamentary document, a copy of it
must accompany the notice. In addition to
Where a person who is entitled to notice is or
identifying information, the form of notice
may be mentally incompetent or has a
also provides recipients with some
committee (or the equivalent of a committee
information on their rights in relation to
appointed outside of B.C.), the notice must be
challenging the grant, making spousal claims,
given both to the committee where there is
seeking to vary the will, seeking legal advice,
one, unless the committee is also the
applying for security for administration,
applicant, and to the Public Guardian and
obtaining an accounting, as well as
Trustee. If there is no committee or
information statements that a grant may be
extraprovincial equivalent, delivery of the
made after 21 days and no further notice may
form of notice to the person is also required.
be given to the person.
(iii) Deceased persons (SCCR 25-2(12))
If there is a will or a foreign grant, a copy of
If a beneficiary survives a will-maker but dies the testamentary instrument and foreign grant
before the grant is applied for, an applicant (if there is one) must also be delivered (SCCR
must deliver the notice to the personal 25-2(1)(b)).
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If a notice must be sent to the Public Guardian There are three different kinds of situations.
and Trustee (for example, whenever a minor is
(a) If the will deals with a specific situation
entitled to notice), the notice must be
and names an alternate executor, the
accompanied by copies of all documents filed
alternate executor can apply for a grant of
with the court in respect of the application
probate.
(SCCR 25-3(11)), together with a cheque for
the fee to review the documents. (b) If the will does not deal with a specific
situation but names more than one
SCCR 25-3(2)(f) requires an Affidavit of
executor, one or more of the executors
Delivery in Form P9 be filed with the
can apply for a grant of probate stating
application for an estate grant. The person that
why the remaining executor cannot apply
actually does the delivery (e.g., a staff
(e.g. deceased) or reserving the right of
member of the applicant’s law firm) must
that person to apply at a later date for a
swear the affidavit. More than one Affidavit
grant (e.g. just unavailable)( SCCR
of Delivery can be filed if appropriate.
25-4(8)).
While the Affidavit of Delivery confirms
(c) If the will does not deal with a specific
notice was sent to the named persons, it is the
situation and does not name another
form of Submission for Estate Grant (Form
executor, then a person may apply for
P2) that sets out the names of the deceased’s
administration with will annexed.
spouse, children, beneficiaries, intestate heirs,
and citors to be provided with the notice. The Although the Submission for Estate Grant (Form
Affidavit of Applicant (Form P3, P4, P5, P6, P2) and the several forms of Affidavit of Applicant
or P7) includes a statement that the affiant (Forms P3, P4, P5, P6, and P7) allow for these
believes the P2 Submission to be correct and situations, additional affidavits might be required.
complete. Also note that SCCR 22-3(1) allows prescribed
forms to be varied as the circumstances require.
The form of notice does not include a
sentence referring to the rights of a spouse Events taking place after the grant may also affect
with respect to a spousal home as defined in the identity of the personal representative. In some
section 1 of WESA, even though section 27(1) situations, the executor may continue; in other
of WESA requires the applicant to give the cases, another person may obtain a grant. The
spouse such notice if a spousal home is following are examples of special situations arising
passing on an intestacy or, if the deceased left after the grant has issued.
a will, is not disposed of by the will. In those
(a) Surviving Executor
circumstances, a separate notice to the spouse
informing the spouse of the right to acquire If two or more executors prove the will
the spousal home must be given. There is no and one of them dies, and no alternative
form specified for this notice. executor was named, the surviving
executor(s) will continue unless the will
6. Variations of Normal Grant when the Executor is requires a minimum number of executors
Unable to Act greater than the number surviving.
Events may have taken place since the execution of (b) Chain of Executorship
the will that make it impossible for the executor
If the sole or last surviving executor dies
named in the will to apply for the grant. For
before completing the administration of
example, the executor may predecease the will-
the estate, and no alternate was named,
maker, renounce, be disqualified, or be missing. An
the executor of that deceased executor
individual may be disqualified from making an
will become the executor of the original
application for several reasons, including infancy,
will-maker once the deceased executor’s
incompetence, ceasing to be a spouse (WESA,
will has been proved (WESA s. 145). This
s. 56), conflict of interest, and criminal conviction.
rule is referred to as a chain of
executorship. It applies only if the
executor named in the will has been
granted probate of the will before his or
her death and each will in the chain has
been probated.

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(c) Second Grant (b) Proof of a Copy of a Will
If a grant has issued, and the sole If an original will or codicil has been lost,
executor dies, wishes to be discharged or mislaid, destroyed or is not available, the
is unwilling or unable to act, and an applicant should use Form P4 to address the
alternate was named to succeed the problem. The registrar may require the matter
executor, a “second grant” may issue. to be dealt with by application to the court
under SCCR 25-9.
(d) Failure of Executorship
If the original will was last known to be in the
If the sole or last surviving executor dies
possession of the will-maker and it cannot be
leaving no will, wishes to be discharged,
found, the executor, if he or she wishes to
or is unable or unwilling to act before the
probate that will, must rebut the presumption
estate has been fully administered, an
that the will-maker destroyed it with the
application may be made for a grant of
intention of revoking it.
letters of administration de bonis non
with will annexed to a new personal (c) Proof of a Copy of a Will Retained by an
representative. Official in Another Jurisdiction
(e) Double Probate On an application for an ancillary grant, when
a grant of probate or the equivalent was issued
An executor who has reserved the right to
in a foreign jurisdiction, making the original
apply for a grant may, at any time after
will unavailable, court certified copies of the
the initial grant and before the
foreign grant and the will are required (SCCR
administration of the estate is completed,
25-3(3)(b)).
either renounce or prove the will by
applying for a grant. The registry will (d) Cessate Grant (Limited in Duration)
issue an additional grant. No additional
If an original grant is limited for a specific
fee is required.
period of time or until the happening of a
In all of the above situations, the applicant must certain event (such as, for example, the
apply to the court to amend the grant (SCCR executor named in the will attaining the age of
25-5(3)). The application for an amended grant majority) then, upon the expiration of that
must be made at the registry where the original time or the happening of the event, the
grant was issued using the original probate file. original grant will cease to have any effect and
Notice of the application is required to be given to a second grant, referred to as a cessate grant,
the person in possession of the grant and that is made (WESA, s. 134). It appears that an
person must deliver the original grant to the application to court under SCCR 25-5(3) may
probate registry at least one day before the hearing be required to revoke or amend the initial
of the application. grant.
(e) Grant Save and Except Caeterorum (Limited
7. Special Forms of Probate
as to Powers)
Some examples of special forms of probate follow.
A will-maker may appoint one executor for a
The several forms of Affidavit of Applicant (Forms
special purpose in respect of a specific portion
P3, P4, P5, P6, and P7) allow for these forms of
of the estate (for example, as the executor of a
probate, but additional affidavits might be required.
specific property or fund), and another
Also note that SCCR 22-3(1) allows prescribed
executor for all other purposes.
forms to be varied as the circumstances require.
If the two executors apply for a grant at the
(a) Executor According to the Tenor of a Will
same time, a single grant issues in which the
When a person is not expressly named in the powers of each executor are distinguished. If
will as an executor but is directed by the will the general executor applies for a grant first, a
to perform some duties which an executor grant will issue to the general executor “save
would typically perform, that person may be and except” that portion of the estate in
able to apply to become an executor according respect of which the limited executor is
to the tenor of the will. For example, the will appointed.
names as executor, a partner in a specified law
If the limited executor applies for a grant first,
firm. The registrar might require the matter to
a grant will issue to the limited executor
be dealt with by application to the court under
stating the specific purpose or part of the
SCCR 25-9.
estate over which that executor has authority.

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The general executor will then take probate (e) Affidavit of Delivery (Form P9)(SCCR 25-2).
“caeterorum” (i.e., of the balance of the
(f) Notice in Probate Form P1, attached as an
estate).
exhibit to the Affidavit of Delivery.
(f) Grant Limited as to Subject Matter
(g) Cheque for probate fees.
If the executor will only receive certain of the
Some additional documents that will be required
assets passing to the personal representative of
with certain types of applications, are the
the deceased, then the executor’s powers to
following:
administer the estate are limited to those
assets. For example, the deceased may have (h) While a consent of all persons having a prior
one will in respect of property situate in or equal right to apply for letters of
British Columbia, naming one person as administration, to the appointment of the
executor, and another will in respect of administrator (with or without bond) is not
property situate in another country, naming required, it is still good practice to obtain
another person as executor. these consents in case someone later denied
consent was given. The consent document is
not filed with the application, but would be
[§10.06] Administration Applications retained by the applicant. Reference should be
made to WESA, s.130, to determine priority. A
1. Documents Required for a Typical Administration spouse has the highest priority and may
Application nominate a person to be administrator and this
For the purposes of this section, a “typical” nominated person also takes priority over the
application for letters of administration deceased’s children. The children follow the
contemplates a situation in which the deceased died spouse in priority and the child nominated by
intestate, an intestate successor is making the the majority of the children has next priority,
application, there are no infants or mentally followed by another person nominated by the
disordered persons beneficially interested in the majority of the children. After this comes a
estate, and all other persons beneficially interested child that does not have the consent of a
have consented to the appointment of the majority of children. This is followed by the
application without bond. deceased’s next of kin having the consent of a
majority of the intestate successors, followed
The documents required for a typical application by the deceased’s next of kin not having the
are the following: consent of a majority of the intestate
(a) Submission for Estate Grant in Form P2. successors. Finally, the court may appoint any
other person the court determines is
(b) Certificate of wills notice search. appropriate, including the Public Guardian
(c) Affidavit of Applicant for Grant of and Trustee, with consent.
Administration Without Will Annexed (Form (i) If applicable, an order, of the court, made on
P5). Among other things, in the Affidavit the application, that varies the class of persons
applicant must swear that he or she has made entitled to notice and dispenses with the
a diligent search and believes that the requirement of notice (SCCR 25-2 (14)).
deceased died without having left any will,
codicil, or testamentary document. Supreme For direction on the preparation of the documents
Court Civil Rule 25-3(14) requires the for a grant of administration, consult the British
applicant make a search in all places that Columbia Probate and Estate Administration
could reasonably be considered a place where Practice Manual (Vancouver: CLE) §6.5 to §6.24.
a testamentary document may be found, It is important to ensure that each document is
including where the deceased usually kept his prepared in accordance with the guidelines to
or her documents. ensure acceptance of the application by the court
registry.
(d) Affidavit of Assets and Liabilities (Form
P10). A Statement of Assets, Liabilities and 2. Procedure
Distribution (commonly referred to as the
“disclosure document”), is exhibited to this The procedure for applying for a grant of letters of
affidavit. Note that although the title of the administration is the same as the procedure for
exhibit refers to distribution, it is not required applying for a grant of probate of a will (see
that the applicant set out the proposed §10.05(3)) as is the payment of probate fees (see
distribution. §10.05(4)).

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The applicant must give notice to various persons (c) Administration Ad Colligenda Bona
as required by WESA and the Supreme Court Civil
If there is a delay in the appointment of an
Rules in order to complete the Affidavit of Delivery
administrator and it is necessary to appoint
(see §10.05(5)).
someone to collect the assets and to protect
the estate, the court may appoint an
3. Intestate Successor Not Consenting to Application
administrator ad colligenda bona and give the
If there are intestate successors who have a prior or administrator whatever powers the court
equal right to apply for the grant and who have not deems necessary.
consented, the applicant should apply to the court
(d) Administration Pendente Lite
for the estate grant under SCCR 25-9 and, in
accordance with SCCR 4-3, should serve the When an action touching the validity of a will
documents for the application on those not or for obtaining, recalling, or revoking a
consenting The usual time limits for service probate or grant of administration is pending
allowed under the Supreme Court Civil Rules for or has been commenced, the court may
an application under SCCR 8-1 must be observed appoint an administrator pendente lite. The
before the court can hear the matter. administrator pendente lite has all of the rights
and powers of a general administrator other
4. Other Grants of Administration than the right to distribute the estate and is
subject to the control of the court (WESA, s.
The documents and procedures are similar for all
103).
forms of administration, except for small estates.
Additional affidavits might be required, depending (e) Administration by Attorney
on the situation. Note that SCCR 22-3(1) allows
When a person entitled to administration
prescribed forms to be varied as the circumstances
resides outside British Columbia, probate or
require.
administration with will annexed may be
(a) Small Estate (WESA, Division 2 of Part 6) granted to that person’s attorney acting under
a power of attorney, limited to the deceased’s
For estates less than a value set by Regulation
estate located in British Columbia (WESA,
(anticipated to be $50,000) an executor or a
s. 139).
proposed qualifying administrator may obtain
a grant of probate or administration upon (f) Administration de Bonis Non
filing a “small estate declaration” in a
When an administrator dies leaving part of the
prescribed form (yet to be published). No
estate unadministered, a grant in respect of the
security need be posted and the personal
unadministered estate will be issued to a new
representative need not provide a formal set of
personal representative to enable the
accounts. This part of WESA has not been
administration to be completed. The new grant
proclaimed yet.
is called administration de bonis non.
(b) Administration with Will Annexed
5. Security for Grant of Administration
When a person dies with a will but there is no
executor willing and able to act, someone Under section 128 of WESA, an administrator is not
must apply for a grant of administration with required to provide any security for acting as
will annexed. The procedure in this situation administrator unless there is a mentally incapable
is similar to an application for a grant of beneficiary without a nominee (i.e. a court
probate as the standard forms (P1, P2, P3, P9 appointed committee, an attorney or a
etc.) have boxes to tick where the application representative for financial and legal affairs) or a
is for administration with will annexed. minor beneficiary, or if the court, on application of
Section 131 of WESA establishes the priority a person interested in the estate, requires it. If
of who may be appointed the administrator security is required, the applicant must apply to
with will annexed as follows: first, a court to determine the security required and the
beneficiary who has the consent of the court may impose a form of required security or
beneficiaries having a majority interest in the impose a restriction on the powers of the
estate; second, a beneficiary that does not administrator (WESA, s. 128(1.1)).
have the consent of the beneficiaries with a
A trust company or credit union may not be
majority interest in the estate; third, any other
required to post a bond for the administration of an
person, including the Public Guardian and
estate (Financial Institutions Act, R.S.B.C. 1996,
Trustee, with consent.
c. 141, s. 73(4)).

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If the court orders that the applicant post a bond as
security, liability under the bond continues until the
administrator has fully accounted to the
beneficiaries and the bond has been cancelled.
Before the grant of administration is issued, the
bond must be prepared, executed by the
administrator and sureties, if any, and filed with the
registry, together with the affidavit of any sureties
if they are individuals.
The filing of the bond is by way of requisition.
When bonding companies are involved, the bond
premiums are charged against the estate and are
usually payable annually. There may be a minimum
fee.
When the administration of the estate is complete,
an application must be made to deliver the bond for
cancellation.
If a notice of application for a grant was delivered
to the Public Guardian and Trustee, the court must
not issue a grant until the written comments of the
Public Guardian and Trustee are provided, unless
the court otherwise orders. (WESA, s. 124).

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Chapter 11 In the exercise of its construction jurisdiction, the court
interprets or construes the contents of the testamentary
documents that have been approved by the court in the
exercise of its probate jurisdiction. The court of
construction can only interpret the words that validly
Other Applications in the Course of constitute the will, as determined by the court of
Administration1 probate.
Therefore, if there was a problem with a will, such as
the mistaken inclusion of certain language, it was wise
[§11.01] Introduction to bring an application for rectification to clarify the
issue before proceeding to probate. Otherwise, the relief
This chapter is a general review of applications other available would be restricted to the more limited
than the conventional proceedings for grants of probate jurisdiction of a court of construction to interpret the
or letters of administration. wording contained in the will. However, WESA s. 59
This chapter uses the terminology and procedure specifically allows an application for rectification to be
mandated by the Supreme Court Civil Rules, B.C. Reg. made by a court of probate or a court of construction
168/2009 (the “SCCR”). within 180 days of a grant of probate being issued.

Refer specifically to the Supreme Court Civil Rules,

[§11.03] Probate Jurisdiction: Rectification of Will
Part 25 (Estates) and Rule 8-1 (Applications and setting
down for hearing). Refer to Chapter 9 of the British
1. Addition of words
Columbia Probate and Estate Administration Practice
Manual (Vancouver: CLEBC) for further information on The traditional jurisdiction of the court to rectify at
this topic. the time of a grant of probate did not extend to
adding words. The wording of WESA s. 59 is broad
These applications are not available for the will of a
enough to allow the court to rectify the will by
First Nations person, unless there had been consent by
adding as well as deleting words (s. 59(1)).
the Minister of Indigenous and Northern Affairs Canada
under s. 44 of the Indian Act, R.S.C. 1985, c. I-5 to
2. Application of WESA S. 59
transfer the matter to the provincial superior court.
Remember, however, if transferred to provincial A person may apply to the court for rectification of
jurisdiction there may be consequences such as payment a will under s. 59 of WESA if the will fails to give
of probate fees or enforcing orders relating to land on effect to the will-maker’s intention because of:
reserve. For more information, see the British Columbia
(a) an error arising from an accidental slip
Probate and Estate Practice Manual, (Vancouver,
or omission;
CLEBC), Chapter 20.
(b) a misunderstanding of the will-maker’s
[§11.02] Rectification and Construction of Wills instructions; or

Traditionally, the Supreme Court of British Columbia (c) a failure to carry out the will-maker’s
sat as either a court of probate or a court of construction. instructions (s. 59(1)).
Once probate of a will has been granted, the court has
jurisdiction to interpret the will. The section expands the relief beyond the situation
that would apply if the will-maker read the will, or
In its exercise of the probate jurisdiction, the court if its contents were brought to the will-maker’s
certifies that the will is valid and that the personal attention. In that case, there was a presumption that
representative named in the grant is entitled to the will-maker knew and approved of the language
administer the estate. The court also traditionally had a in the will.
limited power, confined to deleting words, to rectify the
wording of a will to accord with what it determines to 3. Procedure
have in fact been the will-maker’s intention.
If there is an existing probate proceeding, the
application is brought by Notice of Application in
1
Updated by PLTC in January 2016. Hugh S. McClellan of Form P42. If there is no existing probate
McLellan Herbert updated this chapter in February 2014. proceeding, the application is brought by
Updated in June 2006 and January 2005 by Kirsten H. Jenkins
of Bull Housser & Tupper LLP. Reviewed and revised annually requisition in Form P43 (SCCR 25-14(2)(d) and (e)
from February 1995 to 2002 by John F. Coupar, Horne Coupar, or (f)).
Victoria. Reviewed for content relating to the Indian Act, in
January 2002, by Roger D. Lee, Davis & Company, WESA s. 59 provides that the rectification
Vancouver. application must be made prior to the grant of

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probate being issued or within 180 days of the grant If, however, there is some doubt as to whether all
of probate being issued, unless the court extends conceivable potential beneficiaries have been
that date. Therefore a personal representative identified, some of the beneficiaries are minors or
would not want to distribute the estate for at least mentally incompetent, or if it appears imprudent to
180 days after the grant is issued. In any event, rely on an indemnification by the parties to the
pursuant to WESA s. 155, distribution is not arrangement, it may be necessary to obtain court
allowed for 210 days following the issuance of the approval of the arrangement.
grant, without the consent of all beneficiaries or a
Section 40 of the Infants Act, R.S.B.C. 1996,
court order. But, even if all of the beneficiaries at
c. 223, provides for the making of an agreement by
the time consent to early distribution, a rectification
the guardian of an infant subject to the approval of
order might also change the beneficiaries, so there
the Public Guardian and Trustee for amounts under
may be a risk that all beneficiaries have not
$10,000, and for court approval in other cases.
consented. Since a rectification order could
possibly be made after 180 days following the grant With respect to mentally incompetent beneficiaries,
of probate, s. 59 also provides that the personal unless there is a committee or attorney for the
representative is not liable if a distribution takes incompetent, no one has jurisdiction to bind the
place after 180 days and before getting notice of an incompetent to any particular distribution and a
application to rectify the will. When distribution court application will be required.
has occurred in those circumstances, however, a
person may still recover any part of the estate from 2. Ascertaining the will-maker’s intent
a beneficiary.
In construing a will, the court attempts to ascertain
The section also provides that extrinsic evidence the will-maker’s intent when that intent is not clear
including that of the will-maker’s intentions is on the face of the will or when, even though the
admissible. language appears to be clear, problems emerge at
the time the facts are ascertained when preparing
[§11.04] Construction Jurisdiction: for distribution.
Interpretation/Construction of Will Uncertainty may result from ambiguity or mistake
and can arise from poor use of language, clerical
1. General error, a misunderstanding of the will-maker’s
The terms “interpretation” and “construction” are instructions, a failure to carry out the will-maker’s
used interchangeably. Both refer to the court’s instructions, a failure by the will-maker to
interpretation or construction of the contents of a appreciate the effect of the words used, and from
testamentary document that the court has approved other causes.
in the exercise of its probate jurisdiction. The court, in its exercise of jurisdiction as a court
An application for construction is made in a of construction, can ignore words and has a limited
separate proceeding after probate has been applied power to add or substitute words. However, the
for and granted. court can only add or change words if, from reading
the will, it is satisfied that a mistake has been made
It is not always necessary to bring on an application and it is clear what the words are that the will-
for construction of a will in order to protect an maker omitted.
executor who is making a distribution in uncertain
circumstances. The executor may proceed with 3. Judicial approaches
distribution when all those having interest or
potential interest: The case law shows that there are two general
approaches to the construction of wills. The two
(a) are ascertained; approaches are:
(b) are sui juris; (a) The Literal Construction of Meaning (that
(c) consent to a particular distribution (which is, the objective approach)
may be reached by compromise or In this approach, determination of the
reflected in a deed of arrangement); and will-maker’s intention is based on the
(d) indemnify the executor for that words in the will itself, and extrinsic
distribution. evidence of circumstances known to the
will-maker at the time he or she made the
An example of a typical compromise is the division will (that is, “armchair” evidence) is only
of a legacy between two charities when the examined if the words of the will have a
description in the will may be taken to apply to latent ambiguity when the words are
both. applied to the facts.
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(b) The Circumstantial Construction of the may be necessary for the personal representative to
Language of the Will (that is, the retain separate counsel.
subjective approach)
Notice of the application must be served on all
In this approach, determination of the persons whose interests may be affected by the
will-maker’s intention is made by order sought. Interested parties might include
admitting the “armchair” evidence at unascertained persons as well as those who have a
once, and interpreting the language of the vested future or contingent interest in the subject
will and its sentence structure in the light matter of the application and may entail service
of that evidence. upon intestate successors. It may also be necessary
to serve the Public Guardian and Trustee if minors
The strong trend of Canadian and B.C. courts is to or unborn beneficiaries are involved (Infants Act,
favour the subjective approach (see: Re: Thiemer s. 49).
Estate 2012 BCSC 629).
[§11.05] Curing Deficiencies
4. Rules of construction
WESA should be reviewed at the outset to In an application for probate (see Chapter 7), the probate
determine whether any statutory provisions dealing registrar will usually recognize instances of non-
with the construction of wills are determinative of compliance under WESA, and either require further
the matter such as ss. 41, 42, 44, 45, 46, 47 48, 50 evidence, as in the case of an unattested alteration, or
and 51. It should be kept in mind, however, that reject the application completely as, for example, when
many of these sections are subject to “a contrary only one witness has signed the document.
intention appearing in the will”, and a court
application may still be necessary. If a purported will does not satisfy formal requirements,
There are also common law rules of construction section 58 of WESA gives the court the discretion to
which may assist when interpreting a will. “cure” the formal deficiencies. The court must first
determine that a “record, document or writing or
Some examples of common law rules of marking on a will or document” represents the
construction are as follows: testamentary intentions of the deceased (s. 58(2)). A
(a) technical terms are given their technical “record” includes data that is recorded or stored
meanings in the absence of contrary electronically, can be read by a person, and is capable of
intention; reproduction in visible form (s. 58(1)). The key issue is
to determine whether the record, document etc. records a
(b) if possible, the court will avoid deliberate or fixed and final intention as to the disposal
construing a will in such a way that it of the deceased’s property on death. If the record,
creates an intestacy; and document etc. represents the deceased’s testamentary
(c) when particular words are followed by intentions, even if it does not satisfy the formal
general words, the latter may be restricted requirements of WESA, the court may, as the
in meaning by the former (the ejusdem circumstances require, order that it take effect as though
generis rule). it had been made as the deceased’s will or part of it, a
revocation, alteration, or revival of the will, or as the
5. Procedure deceased’s testamentary intention (WESA, s. 58(3)).
Although the circumstances the court will consider will
An application for construction is brought by be unique in each case, they could include presence of
petition or requisition (SCCR 2-1(2)(c)). Under the deceased’s signature, handwriting of the deceased,
SCCR 22-1, the matter is heard in chambers. witness signatures, revocation of previous wills, funeral
The personal representative usually brings the arrangements, specific bequests, and the title of the
application, but a beneficially interested party other document. (See George v. Daily, [1997] M.J. No. 51
than the personal representative can bring on an (Man. C.A.), Estate of Young, 2015 BCSC 182, In Beck
application for construction if the personal Estate (Re), 2015 BCSC 676, Lane Estate, 2015 BCSC
representative is asked to do so but refuses. 2162.)
In the course of this procedure, the personal The court may reinstate words that have been altered or
representative’s function is normally limited to obliterated if the alteration or obliteration is not made in
ensuring that matters are properly placed before the compliance with WESA (s. 58(4)).
court, including all relevant evidence. However, if
the personal representative has an interest in the Under s. 58 the court may waive strict compliance with
estate (for example, he or she is a beneficiary), it the formal requirements to make a valid will set out in

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WESA s. 37. For example, if one witness initialed all discretionary decision, a s. 86 application is probably
pages but forgot to sign the last page of a document that inappropriate.
would otherwise qualify as a will, the court could order
The application is usually brought by petition under
it to be effective as the deceased’s will. As well, other
s. 86 of the Trustee Act.
documents, such as an electronic will, may be held to be
valid wills. In general, the personal representative has a right of full
indemnity for all costs properly incurred by him or her
Section 58 may have broad application potentially to in the due administration of the trust, including costs
permit a document that does not comply with WESA to incurred in s. 86 proceedings. However, when common
be effective as a will nevertheless. Although similar sense and business prudence should have dictated the
provisions exist in other provinces of Canada, it is new proper course of action, the personal representative may
to British Columbia and will require judicial be denied his or her own costs and penalized with the
interpretation to determine the circumstances under costs of the other parties to the proceeding.
which an order will be granted.
[§11.07] Dispute Resolution
An application under WESA s. 58 is made in accordance
with SCCR 25-14(2)(c). If there is an existing probate 1. Disputes among executors and trustees
proceeding, the application is brought using a Notice of
Application in probate form P42. If there is no existing Disputes may arise among executors during the
probate proceeding, the order may be sought by administration of an estate, or among trustees
requisition in probate form P43. subsequently in the execution of the trusts of the
will. Since trustees must act unanimously unless the
Section 58 cannot be used to uphold a will that is invalid will otherwise provides, a method of resolving such
for substantive reasons such as lack of testamentary
disputes is necessary. One method is to have a well-
capacity or undue influence.
drawn “majority rule” clause in the will, which may
exonerate a dissenting trustee.
[§11.06] Application for Advice and Directions
The court has jurisdiction to intervene in the
An application may be brought under s. 86 of the exercise by trustees of their discretion if:
Trustee Act, R.S.B.C. 1996, c. 464, for the “opinion, (a) such discretion is exercised in bad faith;
advice or direction of the court on a question respecting
the management or administration of the trust property (b) there is a failure to consider exercising
or the assets of a will-maker or intestate.” A trustee, such discretion; or
executor, or administrator is, by s. 87 of the Trustee Act, (c) there is a deadlock between the trustees
deemed to have discharged his or her duty by acting on as to the exercise of their discretion,
the advice given by the court. WESA s. 143 expressly
states that s. 86 of the Trustee Act applies to a personal but the court should only intervene when failure to
representative. do so would be “manifestly prejudicial” to the
interest of the beneficiaries (Re Blow (1977), 2
The scope of s. 86 is not as broad as it appears to be. E.T.R. 209 (Ont. H.C.)).
Many applications brought under this section ought
more correctly to be brought under a different head, The court will not substitute its discretion for that
particularly those that require interpretation of the will. of trustees who are acting unanimously and
properly under their powers. It may step in to
Applications under s. 86 have been found to be compel execution of the trusts of the will in the
appropriate in the following circumstances: case of a deadlock between trustees.
(a) when guidance was needed as to the proper The court will not intervene when the trustees are
disposition of interest on a reserve of income in agreement to sell an estate asset but are not in
that was being held toward the executor’s agreement as to the price because price is a less
compensation; important matter than the decision whether to sell
(b) when direction was needed on whether to (Re Wright (1976), 14 O.R. (2d) 698 (H.C.)).
exercise a statutory power to compromise an 2. Removal of an executor or trustee
action; and
Misconduct on the part of a trustee is not a
(c) in construing the extent of a discretion or necessary prerequisite to the court removing a
power given to trustees. trustee “when the continued administration of the
If there is a dispute between the parties, a need for trust with due regard for the interests of [the
extensive evidence, or a blatant desire to shirk a beneficiaries] has by virtue of the situation arising
between the trustees become impossible or

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improbable” (Re Consiglio Trusts (No. 1), [1973] 3 (i) Repairs
O.R. 326 at 328 (C.A.)).
Under s. 11 of the Trustee Act, a
The court will grant an application for removal of a trustee may apply to expend money
personal representative if the personal for the purpose of “repair or
representative’s duties are in conflict with his or improvement of the land, or for the
her personal interests, estate assets have been erection on the land of a building”
endangered by the personal representative’s (or addition or improvement). The
conduct, or the personal representative has court must be satisfied that the
benefitted at the expense of the estate. Other bases repairs or improvements are
on which the courts have removed personal necessary or expedient to prevent
representatives include bankruptcy, conviction of a deterioration of the value of the land
felony, taking up permanent residence outside the or to increase its productive power.
jurisdiction, incapacity, and breach of trust in his or
(ii) Investments
her own favour.
Sections 15.1 to 15.6 of the Trustee
The court will remove a trustee for a breach of trust
Act, give trustees unlimited powers
in failing to maintain an even hand between the life
of investment as long as the
tenant and the remaindermen.
investment is in a form of property
The court’s jurisdiction to remove a trustee is based or security in which a prudent
on s. 30 of the Trustee Act, R.S.B.C. 1996, c. 464 investor might invest, the “prudent
and its inherent jurisdiction. The court’s investor” rule. A will-maker can
jurisdiction to remove a personal representative is restrict or limit the trustee’s powers
based on s. 158 of WESA, which sets out a number to deal with funds held in trust, and
of specific, but non-exhaustive, grounds for may specify in a will the type of
removal of a personal representative. If the person investments the trustee may make for
sought to be removed is both a personal the estate, and prohibit the trustee
representative and a trustee, applications must be from making others.
made under both acts. An application to remove a
(iii) Sale of an infant’s property
trustee would be made under SCCR 16-1, but
SCCR 25-14(1)(d) governs the application When the income from the property
procedure within the existing probate proceeding held for an infant is insufficient for
for removing a personal representative. his or her maintenance and
education, a trustee may apply under
[§11.08] Other Applications s. 25 of the Trustee Act for an order
authorizing the sale of any portion of
1. Giving trustees new powers the property so that the trustee may
apply the proceeds of sale for or
A trustee has only the powers given by law and by towards the maintenance and
the terms of the will, and the courts have only a education of the infant.
very limited inherent jurisdiction to enlarge these
powers. This inherent jurisdiction has been (c) Trust and Settlement Variation Act
supplemented by the Trustee Act and the Trust and Under s. 1 of the Trust and Settlement
Settlement Variation Act, R.S.B.C. 1996, c. 463. Variation Act, the court has jurisdiction to
(a) Inherent Jurisdiction enlarge the powers of the trustee. The
court considers whether the benefit to be
The court will exercise its inherent obtained is one “that a prudent adult
jurisdiction in limited circumstances. It motivated by intelligent self-interest and
will not rewrite the trust, but will support sustained consideration of the
the will-maker’s basic purpose when it expectancies and risks and the proposal
has been overtaken by an unforeseen made, would be likely to accept” (Russ v.
event that would otherwise severely British Columbia (Public Trustee) (1994),
prejudice the beneficiaries. 89 B.C.L.R. (2d) 35 (C.A.)). If there are
(b) Trustee Act minor or mentally incapable beneficiaries,
notice of the application must be provided
Under the Trustee Act, the court has the to the Public Guardian and Trustee. The
power to approve the following specific Court may approve the variation on
applications: behalf of the minor or incapable
beneficiaries.
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 96
2. Cy-près
If a trust for a charity or a gift to a charity
discloses a general charitable intention, it will
not fail for uncertainty or impossibility of
performance, but the trust property or the gift
will be applied for other charitable purposes
cy-près, that is, as nearly as possible to the
original purpose that cannot be carried out.
The Attorney General, by virtue of his or her
parens patriae jurisdiction over charities, is a
necessary party.

[§11.09] General Supervisory Jurisdiction of the

Court

Even the broadest privative clause, such as one

empowering the trustee to make binding decisions at his
or her absolute discretion, cannot completely oust the
jurisdiction of the court to monitor the performance of a
trust or the administration of an estate.

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Chapter 12 the expiry of the 180 day period, unless the court
extends the time for service (WESA, s. 61(1)(b)).
Section 155 of WESA provides that the personal
representative must not distribute any portion of
Transmission and Transfer of the estate to the beneficiaries under the will until
210 days following the issuance of a grant except
Assets1
(a) with the consent of all beneficiaries
and intestate successors entitled to the
estate, or
[§12.01] Introduction (b) if authorized by order of the court.
This chapter deals with the procedures and documents Further, if a wills variation proceeding is
required for transmission of assets from the name of commenced, a distribution may only occur with
the deceased into the name of the personal the consent of the court (WESA, s. 155(2)). If real
representative or, if applicable, into the name of the property is transferred to a beneficiary within the
surviving joint tenant, and transfer (distribution) of 210 day period without either the court’s
assets from the personal representative to the authorization or the required consents, the title
beneficiaries or heirs. will be endorsed as being “subject to the liability
of being charged by an order made under the
[§12.02] Executor’s Year Wills, Estates and Succession Act.” If the
beneficiary wishes to sell the property within the
An executor is allowed one year from the will- 210 day period, the Land Title Office must be
maker’s death to gather in the assets and settle the satisfied that no wills variation proceeding will
affairs of the estate. This is commonly known as the be commenced before the 210 days have expired,
executor’s year, and an executor cannot be compelled otherwise it will not remove the endorsement.
to pay a legacy before the expiry of the one-year
period. Further, except where specifically provided in At the end of the 210 day period, if the personal
a will, a legacy carries interest only after one year representative does not know whether or not a
from the will-maker’s death. The rate of interest on a wills variation proceeding has been commenced,
legacy is 5% (Interest Act, R.S.C. 1985, c. I-15, s. 3) it is good practice for the personal representative
unless otherwise provided in a will. to conduct a search of court registries in the
province because the court may extend the period
for service without the knowledge of the personal
[§12.03] Legislation Affecting Transfer of Assets representative. The search may not be justified
depending on the size of the estate if other
1. Wills Variation inquiries can be made. Also, land title searches
Under section 60 of Division 6 of Part 4 of can be made to ascertain the existence of a
WESA, a spouse or child may commence a certificate of pending litigation, but the filing of
proceeding to vary a will if he or she feels that a certificate of pending litigation against estate
the will does not adequately provide for his or real property in such a proceeding is optional
her proper maintenance and support (see Chapter (WESA, s. 61(5)). The lawyer should explain the
19). The proceeding must be brought within 180 matter to the client and seek instructions.
days from the date of the issue of probate of the In all cases, the solicitor for the personal
will (WESA, s. 61(1)). representative should advise a person entitled to
A copy of the originating process must be served apply for a wills variation to seek independent
on the personal representative within 30 days of legal advice before signing a waiver or consent
to distribution within the 210 day period.
The 210 day bar against the transfer of real
1
Updated by PLTC in January 2016. Hugh S. McClellan of property contained in WESA applies only to a
McLellan Herbert updated this chapter in February 2014. transfer to a beneficiary, not to a sale by the
Updated in June 2006 and January 2005 by Kirsten H. personal representative, although filing of a
Jenkins of Bull Housser & Tupper LLP. Reviewed and certificate of pending litigation may preclude a
revised annually since January 1997 by Noreen V. Brox,
McCarthy Tetrault, Vancouver. Current to February 2001.
sale. The sale proceeds remain, however, subject
Reviewed for content relating to the Indian Act, in January to the 210 day restriction on distribution to the
2002, by Roger D. Lee, Davis & Company, Vancouver. beneficiaries (WESA, s. 155).
Reviewed and revised in April 1995 by Owen Dolan Q.C.,
and Noreen Brox, both of McCarthy Tetrault, Vancouver.
Reviewed in March 1996 by Marie-Louise Fast, Fast &
Company, Richmond.
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 98
2. Income Tax Act (c) Common Law Spouses and Multiple
Spouses
If a personal representative transfers estate assets
before he or she has received a certificate from Section 2 of WESA provides that two
the Canada Revenue Agency certifying that all persons are spouses of each other if, (a)
taxes, interest, or penalties that have been they were married to each other, or (b)
assessed under the Act and are chargeable they had lived with each other in a
against the assets of the estate have been paid marriage-like relationship for at least 2
(commonly called a “clearance certificate”), the years.
personal representative is personally liable for
the unpaid taxes, interest, and penalties (Income
Tax Act, R.S.C. 1985, c.1 (5th Supp.), ss. 159(2) If two or more persons are entitled as a
and (3)). spouse, they split the spousal share in
an intestate estate in the proportions
To avoid personal liability, the personal they agree upon, or failing agreement,
representative should either postpone distribution as determined by the court (WESA,
until he or she has received the clearance
s. 22(1)).
certificate, or reserve from the distribution
sufficient estate assets to cover the charges. In
the latter case, the lawyer should advise the [§12.04] Transmission and Transfer Procedures
personal representative to obtain advice and
written confirmation from the personal 1. General
representative’s tax adviser as to the amount of
the reserve required to cover unpaid taxes, The legislation, procedures, and documents
interest, and penalties. It may be advisable for required to transmit various assets of the
the personal representative to postpone interim deceased to the surviving joint tenant, the
distribution and calculation of the reserve personal representative and the beneficiaries (if
amount until the representative has received a tax any) of the estate are described in the Probate
clearance certificate to the date of death. A final and Estate Administration Practice Manual
tax clearance certificate may be obtained on final (Vancouver: CLEBC), §10.20 to §10.117.
distribution. Generally, subject to the statutory restrictions
noted above, when the grant is issued, the
3. Intestacies process of transmission and transfer can begin,
although transfer to beneficiaries may be delayed
(a) Delay in Distribution
until the personal representative has obtained a
The same provision regarding the clearance certificate from the Canada Revenue
period of time before an estate can be Agency, obtained approval of his or her accounts
distributed applies where there is a and published notices to creditors (see §13.06).
grant of administration with no will.
Section 155 of WESA requires that the When preparing the documents for transmission
personal representative must not and transfer, if there is any doubt as to the
distribute the estate until after 210 days requirements, contact the appropriate agency,
following the date of issue of the grant. corporation, or office (for example, a transfer
agent for stocks or bonds, the Land Title Office,
(b) Advances to Children banks, etc.).
The concept of “hotchpot” is based on Transmission or transfer of assets frequently
the legal presumption that a will-maker requires filing of copies of court documents. If
who leaves a gift to a child in the will, copies have not been obtained at the time of
and then after the making of the will application for the grant, the procedure for
gives the child a sum of money, does obtaining them is as follows:
not intend to give the child’s portion to
him or her twice. This presumption is (a) to obtain a court-certified copy of the
rebuttable. Wills may contain a grant, submit a request to the registry
“hotchpot” clause either making the (the registry prefers to make its own
presumption expressly applicable or photocopies). The fee is $40 for the
expressly negating the presumption. first ten pages and $6 for each page
thereafter.
The Estate Administration Act used to
provide a hotchpot provision for (b) to obtain an office copy of the real
intestate estates, but this was not property portion of the Statement of
carried over in WESA. Assets, Liabilities and Distribution (the
“disclosure document”), submit a
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request to the registry. The registry Documents required for the transmission of
will certify that it is an office copy. various interests in land are set out in the British
There is a photocopy charge but no fee Columbia Probate and Estate Administration
for this. Practice Manual (Vancouver: CLEBC) §10.24 to
§10.41.
For tables summarizing the documents needed
for transfer or transmission of certain assets, see
3. Personal Property
the British Columbia Probate and Estate
Administration Practice Manual (Vancouver: (a) Safety Deposit Box
CLEBC) §10.113 to §10.117.
After the contents of a safety deposit
box have been listed, the safety deposit
2. Real Property box lease can be transferred. It is the
lease, not the contents, that is
Sections 260 to 270 of the Land Title Act,
transferred. A transfer to the surviving
R.S.B.C. 1996, c. 250 govern the transmission
joint tenant of the safety deposit box is
and transfer of interests in real property. There
effected by providing the financial
are other sections of the Land Title Act, as well
institution with the original or a
as sections in the Strata Property Act, R.S.B.C.
notarially certified copy of the death
1996, c. 43, the Trustee Act, R.S.B.C. 1996, c.
certificate. (Note that some banks may
464 and Division 10 of Part 6 of WESA that are
not allow a surviving joint tenant to
relevant to interests in land. The practice
close out a safety deposit box without
authorized in the Land Title Office for estate
producing a grant in respect of the
matters is set out in the Land Title Practice
deceased joint tenant). A transfer to the
Manual (Vancouver: CLEBC).
personal representative is effected by
If the deceased was a First Nations person who sending a notarially certified copy of
had real property located on reserve, there is a the grant, with appropriate instructions.
completely different process to follow, as set out
(b) Accounts with Financial Institutions
in the Indian Act, R.S.C. 1985, I-5 (see British
Columbia Probate and Estate Administration To transmit a joint account to the
Practice Manual (Vancouver: CLEBC) §20.13). surviving joint tenant, the financial
institution will require the original or a
The Property Transfer Tax Act, R.S.B.C. 1996,
notarially certified copy of the death
c. 378 imposes a tax on all land transfers unless
certificate.
the transfer comes within one of the exemptions
listed in s. 14. Among the exemptions are: To transmit an account to the personal
representative, the financial institution
(a) a transfer by operation of law to the
will require a notarially or court-
surviving joint tenant (s. 14(3)(m));
certified copy of the grant (it may also
(b) a transfer to a person in that person’s require a signature card and new
capacity as personal representative, if account agreements). Once the account
the land transferred is part of the is in the name of the personal
deceased’s estate (s. 14(3)(q)); and representative, if it is then to be
transferred to the beneficiary, a letter
(c) a transfer from a trustee of a deceased’s
of direction to the financial institution
estate to a beneficiary who is a “related
should suffice. Alternatively, the
individual” (that is, related to the
account may be closed and the funds
deceased) if the land transferred is a
forwarded to the estate lawyer on
family farm, a principal residence, or a
production of a notarially certified
recreational residence (s. (14)(3)(c)).
copy of the grant and a letter of
“Related individual”, “parent”, “spouse”, direction from the personal
“child”, “family farm”, “principal residence”, representative.
and “recreational residence” are all defined terms
(ss. 1(1), 14(1)). Only one recreational residence
may be claimed for exemption purposes in
respect of the deceased’s estate (s. 14(5)).
The surviving joint tenant, not the deceased’s
personal representative, must arrange for
transmission of his or her interest and bear he
legal fees and costs of transmission.

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(c) Insurance, RRSPs and RRIFs endorse the debenture or bond
certificates rather than having the client
If there is an insurance declaration or
take the certificates to the financial
RRSP/RRIF beneficiary designation in
institution for signature and guarantee.
the will, the insurance company or plan
Transfer documents are not required
administrator should be notified and
for bearer bonds and debentures (which
provided with a notarially certified
are transferred by delivery) except
copy of the will. In some cases the
perhaps a notarially certified copy of
insurance company or plan
the grant for the account (broker)
administrator may require a notarially
identification and authority purposes.
certified copy of the grant to validate
the will. Since a designation of a (f) Shares
beneficiary under a RRSP or RRIF can
Documents required for the
only be made in accordance with the
transmission of shares are set out in the
terms of the plan (Part 5 of WESA), it
British Columbia Probate and Estate
will be necessary to confirm that the
Administration Practice Manual
plan permits designation of a
(Vancouver: CLEBC) §10.69 to
beneficiary by will. It should also be
§10.74. Sections 115 to 119 of the
confirmed that the deceased did not file
Business Corporations Act, S.B.C.
a change of beneficiaries with the
2002, c. 57, and section 51(7) of the
insurer or plan administrator after
Canada Business Corporations Act,
signing his or her will.
R.S.C. 1985, c. C-44, set out the
If there is no declaration or beneficiary requirements for share transfers. Note
designation in the will, the lawyer that companies whose shares are not
should contact the insurance company traded on a recognized stock exchange
or plan administrator to see what may, by their articles, restrict the
documents are required. If there is a transfer of shares. A shareholders’
named beneficiary, instructions from agreement may also restrict the transfer
that person to obtain payment to him or of shares. The lawyer should check
her will be required. If the estate is the with a non-trading company as to the
beneficiary, a notarially or court- requirements for transfer and whether
certified copy of the grant will be there are any restrictions on transfer.
required. Again, as a safety precaution against
losing the certificates, it is advisable to
(d) Pensions
use a separate stock power of attorney
The comments regarding RRSPs and to endorse the share certificates rather
RRIFs apply to pensions except that than take the certificates for
where a designation has been made in a endorsement and guarantee. Transfer
pension plan pursuant to the terms of documents are not required for shares
that plan, the designation cannot be in street form.
affected in any way by a will executed
(g) Motor Vehicles
after making the designation (Part 5 of
WESA). Transfers of motor vehicles are
governed by Motor Vehicle Act,
(e) Bonds and Debentures
R.S.B.C. 1996, c. 318, ss. 17 and 18;
Documents required for the Insurance (Vehicle) Act, R.S.B.C.
transmission and transfer of bonds and 1996, c. 231; and Social Service Tax
debentures are set out in the British Act, R.S.B.C. 1996, c. 431.
Columbia Probate and Estate
For details on the transmission and
Administration Practice Manual
transfer procedures, refer to the British
(Vancouver: CLEBC) §10.60 to §10.68
Columbia Probate and Estate
(see also that in that publication
Administration Practice Manual
precedents FP 122 and 124). Note that
(Vancouver: CLEBC) §10.75 to
the transfer requirements for Canada
§10.86.
Savings Bonds and other bonds issued
by the Bank of Canada are somewhat
different than for other bonds. As a
safety precaution against losing the
certificates it is advisable to use
separate bond powers of attorney to
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 101
(h) Furniture and Personal Possessions
Transfer documents are not normally
required to transfer furniture and
personal possessions, but the personal
representative may require a receipt.
(i) Debts Due to the Deceased
Bills of exchange (including
promissory notes) should be endorsed,
without recourse, in favour of the
transferee. For any debt other than a
bill of exchange or a mortgage of real
property, the personal representative
should execute an assignment and send
notice to the debtor (Law and Equity
Act, R.S.B.C. 1996, c. 253, s. 36).
(j) Other Property
§10.87 to §10.112 in Chapter 10 of the
British Columbia Probate and Estate
Administration Practice Manual
(Vancouver: CLEBC) outline
procedures for the transmission of
various assets including mining claims,
annuities, mobile homes, vessels,
aircrafts, and assets in foreign
jurisdictions.
(k) Nisga’a Cultural Property
If cultural property of a Nisga’a citizen
is in issue, there may be a dispute as to
whether it can pass by the will (see
Division 3 of Part 2 of WESA).

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Chapter 13 responsibility of the personal
representative.
The creditor who brings an action
against the personal representative
Creditors1 pleads as the cause of action the
liability contracted by the deceased
before death, in the same manner as
if the deceased were still alive, but
names as defendant the personal
[§13.01] Introduction representative (Supreme Court Civil
This chapter is intended to introduce the lawyer to Rule 20-3(10)). Judgment on such a
advising the personal representative with respect to claim establishes the status of the
creditors’ claims. claimant as a creditor of the
deceased. The assets of the estate
For further discussion of this topic see Chapter 11 of the are liable for payment, but the
Probate and Estate Administration Practice Manual judgment is not a personal liability
(Vancouver: CLEBC). of the personal representative.
(ii) Liabilities incurred in respect of
[§13.02] General death
The personal representative likely
1. General duties of the Representative relating to will incur, and is entitled to incur,
Creditors’ Claims liabilities while administering the
The personal representative has the following estate. The personal representative is
general duties: entitled to be indemnified out of the
assets of the estate for proper
(a) to ascertain the liabilities of the estate and testamentary or administration
to retain sufficient assets to pay those expenses.
liabilities before distributing the balance (iii) Liabilities incurred in administering
of the estate among the beneficiaries; the estate
(b) to perform all contracts made by the The personal representative likely
deceased and enforceable against the will incur, and is entitled to incur,
deceased’s estate; and liabilities while administering the
(c) to pay the liabilities with due diligence as estate. The personal representative is
is appropriate to the assets and, so far as entitled to be indemnified out of the
the beneficiaries are concerned, in assets of the estate for proper
accordance with the terms of the will. testamentary or administration
expenses.
2. Types of Creditors’ Claims (b) Claims based on improper performance of
duties
(a) Liabilities
A creditor may also bring an action
As in any civil case, creditors in an estate
against the personal representative for the
administration case may be classified as
improper performance of his or her
secured, preferred, or unsecured. Claims
duties.
may arise in three ways.
(i) Breach of trust
(i) Liabilities incurred by the deceased
If the personal representative is
Liabilities that were incurred by the obligated under the terms of a trust,
deceased and were enforceable express or implied, to pay a liability,
against the deceased immediately but fails to apply the assets to make
prior to death become the such payment, the personal
representative is personally liable to
1
Updated by PLTC in January 2016. Hugh S. McClellan of the creditor for breach of trust. For
McLellan Herbert updated this chapter in February 2014. example, if a will directs the
Updated in June 2006 and January 2005 by Kirsten H. Jenkins executor to pay a specific debt or to
of Bull Housser & Tupper LLP. Reviewed and revised pay just debts, funeral expenses, and
annually from February 1997 to 2002 by Linda J. Yardley, burial expenses and the executor
Miller Thomson LLP., Vancouver. Reviewed for content fails to do so, this is a breach of
relating to the Indian Act, in January 2002, by Roger D. Lee, trust.
Davis & Company, Vancouver.
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 103
(ii) Devastavit (Mismanagement) (c) a claim against the deceased that was
If the personal representative fails to threatened or contemplated but not
administer the estate with due admitted by the deceased or the personal
diligence, he or she is personally representative.
liable to creditors or beneficiaries Examples of continuing liabilities include the
who sustain a loss as a result. following:

3. Defences to Creditors’ Claims (a) liability under a separation agreement to

pay spousal or child support;
The personal representative is entitled to deny the
liabilities on any ground the deceased could have (b) a lease under which the deceased is a
used if he or she was still alive. lessee in occupation;

The personal representative can also plead as a (c) liability of the deceased on a mortgage
complete or partial defence that, even if the date-of- (depending on the terms of the mortgage);
death creditor’s claim is held to be valid, the and
deceased had no (or insufficient) assets at the date (d) guarantees. At common law, death of a
of death, or that the personal representative has surety does not of itself terminate his or
duly administered the estate and no longer has any her liability under a continuing guarantee
(or sufficient) assets. This plea is known as plene for advances made afterwards by the
administravit. creditor to the principal debtor. The
In addition, s. 96 of the Trustee Act, R.S.B.C. 1996, creditor must have notice, actual or
c. 464 empowers the court to relieve the personal constructive, of death in order for the
representative from personal liability arising out of estate to avoid liability for such advances.
breach of trust or devastavit. The court must The terms of the contract of guarantee
conclude that the trustee acted honestly and may vary the common law rule. The
reasonably and ought fairly to be excused for the personal representative should therefore
breach and for failing to obtain directions from the examine the terms of any guarantees to
court. The leading Canadian case is Fales v. determine whether there is a legal right to
Canada Permanent Trust Company, [1977] 2 terminate liability for future advances.
S.C.R. 302 at 319, 1976 CanLII 14 (S.C.C.), where Failure to do so will amount to devastavit.
the following questions were considered relevant:
2. Unenforceable or Statute-barred
(a) was the personal representative paid for
his or her services? A claim that is unenforceable (e.g., a guarantee not
in writing or an illegal contract) or barred by the
(b) was the personal representative a one- statute of limitations should not be admitted or paid
time volunteer or a professional estate by the personal representative.
administrator?
(c) was the breach of duty merely technical 3. Family Creditors
or was it a minor error in judgment? Often, a relative or household member who
provides domestic services to the deceased will
[§13.03] Liabilities of the Deceased assert a claim under a contract with the deceased.
That creditor must prove that a contract existed. For
1. Contingent or Continuing example, the creditor may have to satisfy the court
that the claim is an honest one and rebut the
The personal representative must provide for all presumption that service was rendered out of
liabilities, including those that are contingent and affection or familial duty rather than in
continuing, before distributing the estate. Examples consideration of a contractual promise. A relative
of contingent liabilities include the following: or household member who is unable to establish an
(a) a personal guarantee made by the enforceable contract may still be able to recover on
deceased that is outstanding at the time of the basis of an implied contract, quantum meruit or
death; unjust enrichment.

(b) a pending lawsuit against the deceased in 4. Pledges

which the deceased had disputed liability;
and An outstanding commitment by the deceased to
make a gift or donation is unenforceable and must
be dishonoured by the personal representative
unless it is under seal or supported by such
Wills consideration as to make the commitment a
 104
contract. For a case on enforceability of pledges Where this presumption applies, the
see Brantford General Hospital Foundation v. personal representative must pay the
Marquis Estate, [2004] O.J. No. 1705 (C.A.), legacy but not the debt. Where the
affirming (2003), 67 O.R. (3d) 432 (Sup. C. J.), presumption does not apply, the personal
where a charitable organization unsuccessfully representative must pay both the debt and
attempted to enforce payment of the balance of a the legacy.
one million dollar pledge that the deceased had
Subject to a contrary intention appearing
made but had only paid partially.
in the will or otherwise, section 53(3) of
WESA abrogates the common law
5. Spousal and Child Support
presumption that a debt owed by the will-
If the deceased was, immediately prior to death, maker is satisfied by a legacy to the
liable for payments to an estranged spouse or child creditor equal to or greater than the debt
under a separation agreement or a court order, any so that the legacy takes effect and the
arrears outstanding immediately prior to death will debt continues to be a claim against the
be a debt payable out of the estate. The personal estate.
representative will also have to determine whether
(b) Debtor a beneficiary
the estate is liable for ongoing support in respect of
the period following death. If so, the estranged A bequest by a creditor to a debtor does
spouse or child will rank as an ordinary creditor of not give rise to a presumption that
the estate for the future installments, and the satisfaction was intended. However, if it
personal representative will be obliged to provide appears that the will-maker intended
for that claim before distribution to beneficiaries. satisfaction, the debtor is entitled to
Failure to do so will render the personal receive the gift and the debt obligation is
representative personally liable to the claimant for extinguished. Such intention may be
devastavit. expressed in the will, implied in the will,
or proven by evidence from other sources.
The general rule was that liability to pay support is
a personal obligation that does not survive the (c) Creditor an executor
death of the payor, so each case was determined by
A personal representative who is also a
interpretation of the separation agreement or court
creditor of the deceased is entitled to
order. Pursuant to s. 171(1) of the Family Law Act
retain out of the estate full payment of
SBC 2011, c.25, a deceased’s estate may be liable
any debt that was owing to him or her by
for child or spousal support. The personal
the deceased.
representative may also apply to suspend, terminate
or change a support order (s. 171(2)). If the original However, if a defence exists against the
support order or agreement was silent as to what creditor/executor that would be valid as
happens after the payor dies, an application may be against a creditor at arm’s length, the
made by a person receiving support to have the personal representative must reject his or
support continue and be a debt of the estate her own claim.
(s. 171(3)). As there does not appear to be a
(d) Debtor an executor
limitation period for a person to seek this order, the
personal representative ought to consider using the Appointment of a debtor as executor
Notice in WESA s. 146 to take advantage of the extinguishes the debt but leaves the
180-day statutory limitation period for claims executor liable to account as if the debt
against an estate (see §13.06(3)). had been collected.

6. Creditor or Debtor a Beneficiary or Executor [§13.04] Liabilities Relating to the Death: Funeral
(a) Creditor a beneficiary Expenses
At common law, if a debtor bequeaths to The personal representative named in the will bears
a creditor a legacy equal to or greater than primary responsibility and financial liability for the
the debt, the legacy is presumed to have disposition of the remains (see §7.04(1)). There is no
been intended to satisfy the debt, subject similar provision for an administrator, but in reality, an
to the contrary being shown. If the legacy administrator would rarely be appointed before the time
is less than the debt, the presumption does of the funeral.
not apply and there is no partial In any event, the personal representative should decide
satisfaction. For the presumption to which expenses are funeral expenses, then decide what
apply, the debt must exist when the will is is a reasonable amount for each expense in the
made. circumstances by, taking into account the size of the
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 105
estate, the deceased’s station in life, and similar factors. [§13.06] Administering the Liabilities
The person who instructs the funeral director is
personally liable to pay all expenses incurred but is 1. Instructions and Retainer
entitled to recover reasonable expenses from the estate. The initial meeting between the personal
If contention is foreseeable, the personal representative representative and lawyer usually includes a listing
should be advised to seek approval, however informal, of all of the deceased’s liabilities and the liabilities
of the residuary beneficiaries (and perhaps senior relating to death (see Chapters 7 and 8 of these
creditors) or an indemnity from next of kin who are materials). The lawyer should ask the personal
eager to arrange a ceremony more costly than what representative to bring to that meeting as much
might be considered reasonable. information as is then available.

2. Searches and Inquiries

[§13.05] Liabilities Incurred by the Personal
Representative It is important that the personal representative be
A personal representative likely will incur, and is diligent in attempting to identify all of the
entitled to incur, liabilities while administering the deceased’s liabilities as well as keeping track of his
estate. or her own costs relating to the death and the
administration of the estate. There are various
A personal representative is personally liable on methods that the personal representative and the
contracts he or she makes to carry out the lawyer should use. Each should share the results of
responsibilities of the position. For example, the his or her inquiries with the other.
personal representative is personally liable for the full
amount of his or her lawyer’s proper account even if the (a) Lawyer’s inquiries
assets of the estate are insufficient to provide the Inquiries made by the lawyer are best
personal representative full indemnity. handled by letter unless personal
The personal representative is entitled to be indemnified attendance is considered necessary or
out of the assets of the estate for proper testamentary or advisable.
administration expenses. The indemnity takes priority (b) Searches
over all liabilities of the deceased except funeral
expenses and in rem claims by secured creditors. In certain circumstances it may be
appropriate to search registries of record
In anticipation of the indemnity, the personal for liabilities, such as the Personal
representative usually pays liabilities incurred during Property Registry (for car loans and
administration out of the assets of the estate. evidence of a company’s indebtedness or
Nevertheless, the personal representative must account personally guaranteed corporate
for each such payment to the satisfaction of all residuary liabilities) and the court registry (pending
beneficiaries or, on a formal passing of accounts, to the lawsuits, maintenance orders, outstanding
court. judgments).
Although personally liable for new business debts, the (c) Advertising for claimants
personal representative is entitled to indemnity out of
the assets of the estate provided that he or she was Under s. 154 of WESA, the personal
authorized (i.e., directed or empowered by instrument or representative may publish a notice in the
law) to carry on the business. BC Gazette requesting claimants against
the estate to send their claims to him or
Issues of liability and indemnity similar to those in her before a specified deadline, being not
business situations may arise in non-business situations. less than 30 days from the date of
For example, the deceased may have been engaged in a publication. If notice of a claim is not so
personal project (e.g., construction of a home or a boat) given, and the personal representative
that was incomplete at his or her death. The personal distributes the estate after the deadline,
representative must decide whether to finish the project the claim is not enforceable against the
and dispose of the finished product or to find a buyer on personal representative unless
an as-is basis.
(i) the personal representative had
The lawyer advising the personal representative must be actual or constructive notice of the
particularly careful in the advice he or she gives in this claim (that is, the advertisement does
area. not free the personal representative
from responsibility to make all
searches and inquiries that would
normally be made in order to

Wills
 106
determine the liabilities of the The limitation periods do not apply to a claim
deceased); or against the estate by a beneficiary or intestate
successor, or to a will variation claim or proceeding
(ii) the claim in question is not for a
under Division 6 of Part 4 of WESA (s. 146(5)).
liability of the deceased (for
example, a claim by lawful next of
4. Compromise of Claims
kin that the will naming the executor
is invalid due to testamentary Often, the terms of a will give the executor the
incapacity). authority to compromise claims against the
deceased or the estate. Otherwise, WESA s. 142,
A date-of-death creditor who claims after
impliedly authorizes a personal representative to
the advertised deadline but before the
compromise a claim against the deceased. The risk
claim is statute-barred can still enforce
involved in compromising a claim is that, on
the claim
approval or passing of accounts, a beneficiary may
(iii) against the assets of the estate if they object to the payment as being entirely unnecessary
are still held by the personal or more than is necessary. In anticipation of a
representative; dispute, the personal representative’s lawyer should
record the advice given regarding the validity of the
(iv) if the estate was, or would by the
claim, the projected costs of contesting the claim,
claim have been rendered, insolvent
and the projected delay in distribution that would
by suing the other creditors to refund
result if the claim were litigated.
ratably the amount each received in
excess of the rateable payment that
5. Payment of Liabilities
would have been payable if the claim
had been known to the personal (a) Power to sell assets
representative; or
An executor’s authority to sell is usually
(v) if barred against the personal a trust for sale or a power of sale
representative by the advertising expressly set out in the will. A personal
procedure, by suing the overpaid representative also has statutory authority
beneficiaries or intestate successors. to raise money to fund payment of lawful
claims of creditors pursuant to the general
Under s. 8 of the Indian Estates
power to manage the deceased’s assets
Regulation, C.R.C., c. 954, the
(WESA, s. 142).
superintendent must give notice to
creditors, heirs and other claimants to file (b) Assets charged with payment
claims against the deceased or the estate
WESA s. 47 provides that, subject to a
with the superintendent. To be allowed,
contrary intention appearing in the will, a
the superintendent must receive a claim
security interest taken in land or tangible
within eight weeks of giving the notice
personal property used to acquire,
unless the Minister otherwise orders.
improve or preserve the asset registered
under the Land Title Act or the Personal
3. Proof of Claims
Property Security Act follows the gift of
WESA s. 142 provides that a personal representative that asset into the hands of the
has the same authority over estate assets as the beneficiary. Therefore the beneficiary is
deceased would have if alive. This authority primarily liable to pay the debt that goes
includes dealing with the deceased’s debts. with the asset. This does not limit
Therefore, a personal representative may pay or creditor’s rights, as the secured party can
allow any liability or claim on any evidence he or still seek payment out of other property of
she thinks sufficient and the personal representative the deceased.
must act in a reasonable and prudent manner and
If the secured party obtains payment from
with the fidelity expected of a trustee.
other assets, the personal representative
Where the personal representative does not admit a should be advised to seek a covenant
claim, WESA s. 146 provides a method for limiting from the beneficiary to assume and pay
the time in which the creditor or other claimant can the debt and to indemnify the estate. If
bring an action to enforce the claim to 180 days this is not possible, an adjustment may
after giving notice, if part or all of the debt is due at have to be made in the estate accounts or
the time of the notice, or to 180 days after the debt an action may have to be commenced
or a part of it falls due. If the claimant does not against the beneficiary to recover the
commence an action within that period, the claim is debt.
forever barred. Wills
 107
Although WESA s. 47(4) provides that the
beneficiary’s liability for the debt is
subject to a contrary intention appearing
in the will, a general direction in a will
for payment of liabilities does not signify
a contrary intention.
(c) Time for payment
Both interest-bearing and non-interest-
bearing liabilities should be paid as soon
as reasonably possible. There is no fixed
rule that such liabilities must be paid
within one year (Tankard, Re, [1942]
Ch. 99).

6. Distribution under Direction of Court

Section 39 of the Trustee Act, R.S.B.C. 1996,
c. 464, permits the personal representative to apply
by petition for an order that the personal
representative
(a) be at liberty to distribute the estate having
regard only to claims that he or she has
been able to ascertain; and
(b) shall have no liability with respect to any
claims of which he or she had no notice at
the time of distribution.
A notice of hearing should be given to all persons
determined by the personal representative to be
entitled to share in the estate who have not
otherwise consented to the distribution.
The order provides the personal representative with
protection against claims of which he or she had no
notice; however, the protection does not extend to
undisclosed claims of which the personal
representative knew or should have known.

7. Insolvent Estates
If the estate’s liabilities exceed its assets, it can be
handled as an insolvent estate either under WESA
Division 12 of Part 6 or under the Bankruptcy and
Insolvency Act, R.S.C. 1985, c. B-3. Under WESA,
the personal representative administers the estate.
Under the Bankruptcy and Insolvency Act, a trustee
in bankruptcy administers the estate. However, if
the Bankruptcy and Insolvency Act is applied (for
example, if a receiving order is made at the instance
of a creditor), the federal statute will apply and the
provincial statute will be pre-empted. Lawyers
should be cautious in advising clients to undertake
the administration of insolvent estates as there is a
specified hierarchy of priority of payments from the
estate and personal liability can attach to the
personal representative (and perhaps passed on to
the lawyer) if the hierarchy is not strictly followed.

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 108

Chapter 14 In certain cases, as indicated below, the

legal representative may elect to file more
than one income tax return for the year of
death. The advantage of spreading the
income of the deceased in the year of
Tax Consequences resulting from death over several returns is that certain
personal tax deductions and credits may
the Death of a Taxpayer1 be duplicated and lower marginal tax
rates may be achieved (Interpretation
Bulletin IT-326R2 and s. 114.2).
This chapter provides a basic overview of the tax
consequences arising upon the death of a taxpayer. A separate return may be filed, upon an
Although it highlights areas of concern commonly election by the legal representative, if the
encountered by practitioners, it should not be relied on taxpayer operated a business as a
as a comprehensive analysis of all tax matters arising proprietorship or was a member of a
upon death. When you encounter actual problems in partnership having a fiscal year other than
practice, refer to the provisions of the Income Tax Act, a calendar year. The election is applicable
R.S.C. 1985, c.1 (5th Supp.). in respect of the amount of income that
the deceased, as a member of a
Different tax consequences may or may not arise upon partnership or the proprietor of a
the death of a First Nations person who was registered business, would be deemed under the Act
(or was entitled to be) under the Indian Act, R.S.C. to have received from the partnership or
1985, c. I-5: the consequences will vary depending upon business during the period before the date
the deceased’s particular circumstances. A discussion of of death and after the end of the last fiscal
tax consequences relevant to particular circumstances is period of the partnership or business. In
beyond the scope of this chapter: seek expert tax advice. the case of a partnership, this election
will only be applicable when the death of
[§14.01] Duties of Executors, Administrators and the partner causes the fiscal period of the
Trustees partnership to end (s. 150(4) and
Interpretation Bulletin IT-278R2, para. 2).
1. Returns The legal representative may also elect to
(a) What and When to File file a separate return if the deceased
taxpayer was an income beneficiary of a
The legal representative of the deceased testamentary trust which had a taxation
has a responsibility to file a terminal year other than a calendar year. This
income tax return for the deceased. The return includes only income of the
fiscal period covered by the terminal deceased from the trust which arose after
return extends from January 1 of the year the end of the last taxation year of the
of death up to and including the date of trust and before the date of death of the
the deceased’s death. The terminal return taxpayer (s. 104(23)(d)).
is the ordinary T-1 return for the year of
death and generally must be filed by the The above-noted separate returns must be
later of six months from the date of the filed by the later of April 30 of the year
deceased’s death or April 30 of the year following death or six months following
following death. The exception to this the date of death.
general rule is when the deceased’s will Finally, an election may be made to file a
contains a “spousal trust” as described in separate return in respect of the value of
§15.03 of the next chapter. In such “rights or things” owed to the taxpayer at
instances, the time for filing a return for the time of death (s. 70(2)). Generally,
the year of death is extended to 18 “rights or things” include items of income
months from death, but interest on any which have been earned and which the
unpaid tax will accrue from the date the taxpayer has an absolute right to receive
return would have been due had there as of the date of death, but which have
been no such trust (s. 70(7)(a)). not been received by that time. Examples
of “rights or things” are matured
1 uncashed bond coupons, dividends which
Prepared in March 1988 for PLTC by Frank W. Quo Vadis of
Koffman Kalef, Vancouver. Revised annually by the author.
have been declared but are not yet paid at
Last revised April 2004. the time of death, and unpaid salaries

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 109
relating to pay periods ending before the as a business location. The entire gain
date of death. A “rights or things” return realized on this type of property is
must be filed by the later of one year from included in income as business income.
the deceased’s date of death and 90 days Again, there is no deemed disposition
after the mailing of any Notice of when such land is transferred to a spouse
Assessment in respect of tax assessed on or spousal trust (s. 70(5.2)(d)).
income of the deceased for the year of
Principal Residence
death (s. 70(2) and Interpretation Bulletin
IT-212R3). The principal residence of a deceased
taxpayer is deemed to be disposed of
(b) Taxation of Property Held at Death
immediately before death for its fair
Non-Depreciable Capital Property market value. No gain or loss will arise,
(s. 70(5)(a)) however, since the normal exemption
with respect to principal residences
Non-depreciable capital property (for
applies (ss. 40(2)(b) and 40(4)).
example, land or shares that are not
inventory or the subject of an adventure Other Properties
in the nature of trade) is deemed to have
Sections 70(5.1) and 70(5.2) contain
been disposed of at its fair market value
additional provisions concerning any
immediately before the time of the
eligible capital property (for example,
deceased’s death. Accordingly, subject to
goodwill and intellectual property rights)
specific exceptions, all accrued gains and
or resource property of the deceased
losses on non-depreciable capital property
taxpayer. Consult these provisions when
of the deceased at the time of death are
the taxpayer holds these types of property
realized. Transfers of non-depreciable
at the time of death.
capital property to a spouse or spousal
trust, and transfers of non-depreciable Joint Tenancies
farm property to a child, are specific
The Canada Revenue Agency considers
exceptions which partially or totally
any property held in a joint tenancy to be
abrogate the general rule of deemed
held 50% by each joint tenant. While
realization of accrued gains and losses
probate fees can be avoided by holding
(ss. 70(6), 70(9) to (9.8)).
property as joint tenants, the same is not
Depreciable Capital Property true of income tax unless one's spouse or
(s. 70(5)(a)) common-law partner is the joint tenant.
Depreciable capital property will be (c) Deductions
deemed to have been disposed of by the
Capital Losses (s. 111(2))
taxpayer at its fair market value
immediately before death. This deemed If the deceased’s allowable capital losses
disposition may produce recapture of (that is, 50% of his or her capital losses)
capital cost allowance previously claimed for the year of death exceed his or her
and capital gains or could result in the taxable capital gains (that is, 50% of his
realization of a terminal loss. Once again, or her capital gains) for that year, any
there are specific exceptions to the such excess may be deducted against the
deemed realization rules when deceased’s income from other sources
depreciable capital property is transferred (for example, employment or business
to a spouse or spousal trust or depreciable source income). This is an exception to
farm property is transferred to a child the usual rule that capital losses of a
(ss. 70(6), 70(9) and (9.1)). taxpayer may only be deducted against
capital gains. If the net capital losses are
Land Inventory (s. 70(5.2)(c))
not completely utilized in the year of
Any land which is part of an inventory of death, any excess may be carried back to
a business owned by the deceased the year preceding the year of death and
taxpayer is deemed to have been disposed applied against the taxpayer’s income in
of immediately before death for proceeds that year.
equal to its fair market value at that time.
An additional limitation on the utilization
Land inventory includes properties held
of these net capital losses is that they are
on speculation as opposed to land held for
only deductible in the subject years
the production of rental income or for use
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against sources of income other than claimed by the deceased taxpayer had he
taxable capital gains to the extent that the or she survived.
losses exceed the total of the capital gains
When amounts receivable are not
deduction previously claimed by the
transferred to a spouse or spousal trust, it
taxpayer (s. 110.6).
is not possible to defer the recognition of
Charitable Donations sale proceeds and such proceeds must be
included in income in the year of death
The deduction limits provided for a
even though they are not actually payable
deceased taxpayer in the terminal return
until later years.
in respect of charitable donations are
100% of the decedent’s income for the
2. Prior Year’s Returns Not Filed
year of death (s. 118.1).
When a taxpayer has not filed returns for the year
If however the charitable donation cannot
before the year of death, the personal representative
be deducted in the year of death due to
also has the responsibility of preparing and filing
insufficient income, the charitable
those returns within six months of the date of death
donation may be carried back to the
when death has occurred prior to May 1. The six-
taxation year immediately prior to death
month extension for filing the prior year’s returns
and used to offset up to 100% of the
does not apply when death occurred after April 30
decedent’s income in that year.
(s. 150(1)(b)).
(d) Personal Exemptions
3. Clearance Certificates
In the terminal returns of a deceased
taxpayer, full personal tax credits may be A clearance certificate certifies that all tax, Canada
claimed regardless of when the taxpayer Pension Plan contributions, unemployment
died during the year. Additionally, if an insurance premiums, interest and penalties payable
election has been made to file separate by the deceased have either been paid or have been
returns for each business, trust or “rights secured to the satisfaction of the Minister. A legal
or things” income, a limited number of representative is required to obtain a clearance
personal tax credits set out in s. 118 may certificate in respect of the deceased’s obligations
also be deducted on those returns under the Act before distributing any property
(s. 118.93). under his or her control (s. 159(2)). Provided all
returns have been filed and all tax, interest and
(e) Reserves
penalties have been paid, the Canada Revenue
A reserve for tax purposes is, in rather Agency will issue a certificate for final distribution
simplistic terms, an amount which is kept of all property in the estate. If the legal
back or “reserved” from the income representative distributes the assets of the estate
reported by a taxpayer. Reserves are without obtaining an income tax clearance
permitted under the Act in only very certificate, he or she is personally liable for any tax,
limited circumstances. For example, upon interest or penalty that remains payable (s. 159(3)).
the disposition of a capital property, a
Provided acceptable security is furnished to the
taxpayer faces a potential immediate
Minister, the legal representative may file an
inclusion in income. When the full
election to pay tax arising on death by installments
amount of the proceeds of disposition is
(s. 159(5)). A maximum of ten equal consecutive
not immediately due, however, an amount
annual payments are allowed, with interest payable
may be deducted, in certain
from the day the tax would otherwise have been
circumstances, as a reserve for those
payable on the balance of tax outstanding. Not all
proceeds not yet due.
sources of income may be paid by installment but
No reserve is allowed as a deduction in “rights or things” included in the deceased’s
the taxpayer’s terminal year except when income, recapture or capital cost allowance in
an amount receivable is transferred in excess of terminal losses, capital gains in excess of
consequence of the taxpayer’s death to capital losses and income in excess of expenses
the taxpayer’s spouse or spousal trust and from deemed dispositions of resource property and
the appropriate election is made (ss. 72(1) land inventory qualify for this treatment.
and (2)). When an election is made by the
personal representative and the spouse or
spousal trust, a reserve may be claimed to
the extent the reserve could have been

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[§14.02] Beneficiaries 3. Death Benefits
Death benefits are included in income and taxable
1. General
to the recipient (s. 56(1)(a)(iii)). Death benefits are,
A beneficiary must include in his or her income any in general, defined to mean the aggregate of
portion of the estate income which is paid or amounts received by a “taxpayer” in a taxation year
payable to him in the year, with certain exceptions upon or after the death of an employee in
for amounts which have been paid to the recognition of the employee’s service in an office
beneficiary but designated by the estate or employment. When the surviving spouse of the
(ss. 104(13.1) and (13.2)). In general, an amount is employee receives death benefits, no benefit is
deemed under the Act to be payable by the estate if brought into the spouse’s income to the extent the
it is actually paid to the beneficiary or if the death benefit received is less than $10,000
beneficiary is entitled to enforce payment of the (s. 248(1)).
amount (s. 104(24)). In order to prevent double
If the taxpayer receiving a death benefit is not the
taxation on such income, the estate is allowed to
surviving spouse of the employee, the tax
deduct from its income the amounts that are taxable
provisions are not as generous. Once again, there is
to the beneficiary. If the beneficiary is taxed on an
a $10,000 allowance, but this is reduced by any
amount which is payable but not yet received, there
death benefits received by the surviving spouse of
is no additional tax when the amount is actually
the employee and the remaining exemption is then
received.
apportioned among all taxpayers, other than the
The Act contains provisions that permit certain surviving spouse of the employee, receiving death
types of income to the estate to retain their benefits.
character when they are “flowed through” to the
beneficiaries. This conduit principle applies to
[§14.03] Exceptions to the General Rules Outlined
such income as dividends from taxable Canadian
Above
corporations, non-taxable dividends, taxable capital
gains and certain types of foreign income
1. Spouses and Spousal Trusts
(ss. 104(19) to (22)). If there were no “flow
through” provisions, then these sources of income (a) Result when capital property of deceased
would lose their original character in the estate and passes to a spouse or spousal trust
would be received by the beneficiary as ordinary
As noted earlier, the rules regarding the
income. A notable exception to the “flow through”
deemed realization of capital gains and
provisions is losses, as losses realized by the estate
recapture on death are modified when
cannot be flowed through to the beneficiaries.
capital property owned by the deceased
passes to a spouse or a spousal trust
2. RRSPs
(s. 70(6)). In these circumstances, the Act
When a refund of premiums from a registered provides for a “rollover” of the cost base
retirement savings plan is paid to the estate of the of the capital property from the deceased
deceased, the refund may be jointly designated by to the spouse or a spousal trust with a
the personal representative and the beneficiary as result that tax on capital gains and
the income of the beneficiary and not the income of recapture is deferred until the surviving
the deceased (s. 146(8.1)). A refund of premiums spouse or otherwise disposes of the
is defined as an allowable portion of an amount property. The “rollover” of the cost base
paid from a RRSP before its maturity (for example, is automatic in such situations and there
upon the annuitant attaining the age of 71) to a is no requirement for an election to be
spouse of the annuitant as a consequence of the filed. However, as outlined below, it is
annuitant’s death or, any amount paid out of the possible for the legal representative of the
RRSP to a child or grandchild of the annuitant, who deceased to elect not to have these
was, at the time the annuitant died, financially rollover provisions apply to one or more
dependent on the annuitant for support (s. 146(1)). capital properties of the deceased.
A spouse, financially dependent child, or
grandchild may then transfer the refund of
premiums into their own RRSP and defer any
immediate tax liability on that amount. Or, if the
surviving spouse is aged 71 or over, a transfer of
the refunded premiums may be made tax-free to an
annuity for the spouse (s. 60(1)).

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(b) Conditions necessary for rollover to apply (d) Land inventory
The requirements necessary for the Land that was held as inventory by the
spousal “rollover” provisions to apply are deceased may also be rolled over to a
as follows: spouse or spousal trust (s. 70(5.2)(d)).
The requirements for this automatic
(i) the deceased must have been resident
rollover to occur are the same
in Canada immediately before death;
requirements as outlined with respect to
(ii) if the recipient is a spouse or capital property.
common-law partner, he or she must
(e) Reserves
have also been resident in Canada
immediately before the deceased’s When property subject to a reserve is
death; transferred to a spouse or spousal trust on
the death of the taxpayer, the legal
(iii) the property must have been
representative and the spouse or spousal
transferred as a result of the
trust may jointly elect to claim a reserve
deceased's death (for example by
in the terminal return of the deceased
will, intestacy, joint tenancy, etc.);
(s. 72(2)). The amount of the reserve
(iv) if the recipient is a trust created by claimed is then included in the income of
the deceased’s will: spouse or spousal trust in the first
taxation year ending after the death of the
 the trust must be resident in
taxpayer. The spouse or spousal trust may
Canada immediately after the
then, in turn, claim a reserve to the extent
property vests in it,
the taxpayer could have claimed it had he
 the spouse or common-law or she survived.
partner must be entitled to
receive all of the trust’s income 2. Farm Property
during his or her lifetime,
(a) Result
 no person other than the spouse
In addition to the spouse or spousal trust,
or common-law partner may
a rollover with respect to specified farm
receive or obtain use of any of
property is allowed to a farmer’s child,
the capital or income of the trust
either directly or through a spouse trust
during the spouse’s or common-
(ss. 70(9) and (9.1)). The Act also
law partner’s lifetime; and
provides for the rollover of interests in
(v) the property must vest indefeasibly family farm partnerships and shares in
in the spouse, common-law partner, family farm corporations (ss. 70(9.2) and
spousal trust or common-law partner (9.3)).
trust within 36 months of the
The definition of “child” includes child,
taxpayer’s death or within such
grandchild, and great-grandchild, as well
longer period as the Minister
as a person who, at any time before he or
considers reasonable.
she attained the age of 21, was wholly
(c) Electing out of the rollover dependent on the taxpayer for support and
of whom the taxpayer had, at that time,
It is possible for the legal representative
the custody and control (s. 70(10)(a)).
to elect not to have the rollover provisions
The specified farm property rollover is
apply when capital property is transferred
also available to the parents of a taxpayer
to a spouse or spousal trust (s. 70(6.2)).
when the personal representative has so
Such an election would be beneficial
elected (s. 70(9.6)).
when the deceased had loss
carryforwards, which could be used to (b) Conditions necessary for rollover
offset any gains having accrued on the
If a taxpayer’s land in Canada or
property of the deceased. When the
depreciable property in Canada of a
election is made, the adjusted cost base of
prescribed class
the capital property acquired by the
spouse or spousal trust is “stepped up” for (i) is transferred or distributed on or
the purposes of determining future gains after the taxpayer’s death and as a
realized by the spouse or spousal trust. consequence of death to his or her
child; and
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(ii) can be shown within 36 months of
death, or such longer period as the
Minister considers reasonable in the
circumstances, to have vested
indefeasibly in the child;
and if
(iii) the property was used immediately
before the taxpayer’s death by the
taxpayer, his or her spouse or
common-law partner, or any of his or
her children in the business of
farming; and
(iv) the child was resident in Canada,
immediately before the taxpayer’s
death,
then the property is deemed to have been
disposed of by the taxpayer and acquired
by the child at its adjusted cost base or
undepreciated capital cost, as the case
may be, to the taxpayer immediately
before death (s. 70(9)).
If property which would otherwise
qualify for the farm property rollover to a
child has passed to a spousal trust on
death, a rollover of the property from the
spousal trust to a child of the taxpayer in
whom it vests indefeasibly will result,
provided the property is transferred on the
death of the beneficiary spouse and as a
consequence of the death (s. 70(9.1)). In
addition, the other conditions necessary
for a rollover to occur, as mentioned
above, must be met.

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Chapter 15 [§15.03] Requirement to Pass Accounts

The Trustee Act, R.S.B.C. 1996, c. 464 provides a brief
statutory scheme for requiring a personal representative
to pass accounts.
Accounts1 Section 99(1)
The personal representative must pass the first accounts
within two years from the date of the grant of probate or
letters of administration, and thereafter as instructed by
[§15.01] Introduction the court, unless all beneficiaries consent or the court
One of the hallmarks of the fiduciary duty imposed on orders otherwise.
the personal representative is the duty to account to Section 99(2)
persons who have a beneficial interest in the estate and
to creditors of the estate. While this duty arises at Any person beneficially interested in the estate may
common law, the exact procedure and method of passing require a personal representative to pass his or her
accounts is derived from common law principles, a few accounts annually within one month from the
statutory references, and general custom and practice. A anniversary of the grant or the personal representative’s
complete analysis of this topic can be found in Chapter appointment.
15 of the British Columbia Probate and Administration Section 99(3)
Practice Manual (Vancouver: CLEBC).
If the personal representative fails to comply with
ss. 99(1) or (2), or if the accounts are incomplete or
[§15.02] Duty to Account inaccurate, the personal representative may be required
The personal representative owes a duty to account to: to attend before the court to show cause why the
the beneficiaries of the estate (including income and accounts have not been passed.
capital beneficiaries, whether vested or contingent), The delay and expense of passing accounts formally
legatees (that is, recipients of specific bequests), unpaid before the court can be avoided by obtaining the
creditors of the deceased, successor trustees, and other approval of the accounts by all persons to whom the
persons who have an interest in the deceased’s assets. duty to account is owed (Re Mitchell Estate (1997), 46
The common law requires a personal representative to B.C.L.R. (3d) 383 (C.A.)). This consensual procedure
keep proper books and be ready at all times to account, will not be available if approval is withheld or is not
although this responsibility does not mean that a otherwise available (for example, if a beneficiary is
complete set of accounts must be maintained on a unascertained, has unknown whereabouts, or is suffering
constant basis or that a formal passing of accounts will from a disability, or where there are infant
necessarily ever be required. beneficiaries).
Essentially, the personal representative must give to
anyone to whom he or she owes a duty to account such [§15.04] The Accounts
information as that party reasonably requires. Thus, the While there is no prescribed form of preparing accounts,
residuary beneficiary would be entitled to a full and they typically consist of a statement of receipts and
complete summary of estate assets whereas a legatee disbursements with a list of the assets on hand at the
would be entitled only to information showing whether beginning of the accounting period and a list of the
his or her legacy will be paid. assets on hand at the end of the accounting period. The
accounting period must be specified; it will run either
from the date of death or from the end of the last period
for which the accounts were prepared.
Accounts usually contain the following schedules:
(a) an opening inventory of assets and liabilities at
the commencement of the accounting periods;
(b) capital receipts and disbursements;
1
Updated by PLTC in February 2014. Updated in June 2006 and (c) income receipts and disbursements;
January 2005 by Kirsten H. Jenkins of Bull Housser & Tupper.
Reviewed from January 1996 to 2000 by Margaret H. Mason of (d) the closing inventory of assets and liabilities at
Bull, Housser & Tupper, Vancouver. Revised by the author in the end of the accounting period;
January 2001 with the assistance of Kirsten Jenkins, Bull,
Housser & Tupper.

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(e) a reconciliation of the above four statements; [§15.07] Discharge of Personal Representative
and
A personal representative may be discharged from his or
(f) a statement of proposed distribution allowing
her duties informally or by application to court.
for remuneration of the personal
representative. A personal representative is informally discharged once
he or she has
To prepare a proper set of accounts, it is necessary to
maintain detailed records of all transactions. The (a) paid and settled all debts and claims;
personal representative must be able to produce proper
(b) distributed the estate to the beneficiaries;
vouchers for all receipts and payments and to provide
full explanations for the administration of trust assets. (c) provided accounts to all those to whom the
The preparation of accounts will be simplified if all duty to account is owed;
funds are consolidated into a single estate bank account
(d) obtained releases from the persons to whom
and if the personal representative maintains complete
the duty to account is owed;
notes in the form of a diary recording all steps taken,
including the exercise of all discretionary powers. (e) advertised for creditors, if necessary;
(f) obtained a clearance certificate for distribution
[§15.05] Tax Considerations under the Income Tax Act; and
(g) where an administration bond has been posted,
It is important to note that accounting statements
obtained an order for its cancellation.
prepared for tax purposes may have significant
differences to those prepared for trust purposes. For
If the personal representative wishes to be formally
example, certain types of property that would normally
discharged by application to the court, the representative
be considered capital assets for trust purposes are not
must apply under s. 157 of WESA.
capital properties for purposes of the Income Tax Act,
R.S.C. 1985, c. 1 (5th Supp.). Similarly, the payment of One of the advantages of obtaining a formal discharge is
a stock dividend may be treated as a capital receipt for that a court order discharging the personal representative
trust purposes but as an income receipt for tax purposes. releases the personal representative from all claims in
respect of the administration, except those arising from
“undisclosed acts or omissions” (WESA s. 157(5)). An
[§15.06] Approval of Accounts
order made under s. 157 of WESA does not discharge or
remove a personal representative as a trustee or release
As mentioned previously, generally it is preferable to
the person from liability for acts or omissions made as a
have all those to whom the duty to account is owed
trustee (s. 157(6)).
approve the accounts. If approval is probable, all those
entitled to a full accounting should be sent the accounts
together with a suitable form of release and consent to
any remuneration being sought by the personal
representative. In the case of specific or pecuniary
legatees, releases should be obtained in exchange for
their legacies, but no obligation arises to provide
accounts unless the legacies have not been fully
satisfied.
If consent cannot be obtained, the personal
representative or a person interested in the estate may
apply under Rule 25-13 of the Supreme Court Civil
Rules for a formal passing of accounts.

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Chapter 16 [§16.03] Amount of Remuneration
If remuneration is fixed by the terms of the will or by an
agreement, the personal representative will be limited to
Remuneration of Personal claiming the remuneration so specified or agreed to.
Representatives and Trustees1 If the amount of remuneration is not fixed by the will or
by agreement, s. 88 sets an upper limit on the amount of
remuneration to:
[§16.01] Introduction
(a) 5% of the gross aggregate value of the capital of
Three principal issues arise when considering the
the estate (gross aggregate value is the realized
remuneration of personal representatives and trustees:
value of the original assets of the estate, without
entitlement, amount and procedure. For further
deduction of the value of any mortgages against
elaboration on these issues, refer to Chapter 16 of the
the assets, and the value at the date of
British Columbia Probate and Administration Practice
distribution of any original assets distributed in
Manual (Vancouver: CLEBC).
specie to the beneficiaries) (s. 88(1));
[§16.02] Entitlement to Remuneration (b) 5% of the income earned during the
At common law, a personal representative is not allowed administration (s. 88(1)); and
to profit from his or her office, unless authorized by the (c) an annual “care and management fee” of 0.4%
terms of the will or trust. However, this rule has been of the average market value of the assets (s.
relaxed by statute. Section 88 of the Trustee Act, R.S.B.C. 88(3)).
1996, c. 464 provides for remuneration to a personal
representative based on the gross aggregate value of the It is important to realize that s. 88 imposes a ceiling on the
estate, including capital and income, and also provides for maximum remuneration which can be claimed. In an
an annual care and management fee. The provision is estate of average complexity, the personal representative
applicable in the absence of any remuneration provisions will generally be entitled to 3% of the income and capital,
in the will, or on an intestacy. as well as the care and management fee. A court or
registrar reviewing a personal representative’s claim for
Often, the will outlines the remuneration to which the remuneration determines the amount taking into account
personal representative is entitled and in such the s. 88 ceiling and the following criteria derived from
circumstances, s. 88 is inapplicable and the will governs. case authorities:
It is important to carefully review the terms of the will
when the personal representative is also a beneficiary (a) the magnitude of the estate;
because there is a presumption at common law that if a (b) the care and responsibility involved;
legacy, other than a residuary bequest, is made in favour
of a personal representative, that legacy is intended to be (c) the time occupied in the administration;
in lieu of remuneration. The will may expressly provide (e) the skill and ability displayed; and
that the personal representative can take both the legacy
and the remuneration. (f) the success achieved in the final result.

In addition, a personal representative’s entitlement to When there are two or more personal representatives, the
remuneration may be fixed by an agreement between the total remuneration is determined in the same manner as if
testator and the personal representative, or an agreement there had been one personal representative.
between the personal representative and the estate When a personal representative retains someone (for
beneficiaries. example, a lawyer or trust company) to do administration
work that should have been done by the personal
representative, the resulting fees should be borne by the
personal representative and not charged against the estate
as a disbursement of the personal representative.
With respect to the annual “care and management fee”,
the case of Re Pedlar (1982), 34 B.C.L.R. 185 (S.C.) sets
out the following principles:
(a) the care and management fee allowed under s.
1
Kirsten H. Jenkins and Raphael Tachie of Bull Housser & 88(3) is an allowance for remuneration in
Tupper LLP updated this chapter in February 2014. Updated in addition to the allowance under s. 88(1);
June 2006 and January 2005 by Kirsten H. Jenkins of Bull,
Housser & Tupper LLP. Reviewed and revised in February 1995
and January 1996 by Gary J. Wilson of Ladner Downs,
Vancouver.
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 117
(b) some of the factors that should be taken into applicant is someone other than the personal
consideration in determining what, if any, fees representative, the applicant must file an affidavit
should be allowed are explaining why an accounting is required (Supreme Court
Civil Rules 25-13(6)(b)).
(i) the value of the assets being administered,
Unless the court on application otherwise orders, the costs
(ii) the nature of the estate assets being
of fixing the remuneration of a personal representative,
administered,
either on a s. 89 application or a passing of accounts, shall
(iii) the degree of responsibility imposed upon be assessed as special costs and paid from the estate
the trustee including the length or duration (Supreme Court Civil Rules 25-13 and 14-1(6); Re Kanee
of the trust, Estate (1991), 41 E.T.R. 263 (B.C.S.C.); and
Szpradowski (Guardian ad litem) v. Szpradowski Estate
(iv) the time expended by the trustee in the care
(1992), 4 C.P.C. (3d) 21 (S.C.)).
and management of the estate,
(v) the degree of ability exhibited by the [§16.05] Expenses
trustee, In addition to remuneration, a personal representative is
(vi) the success or failure of the trustee, and entitled to recover such out-of-pocket expenses as he or
she has properly and reasonably incurred in the
(vii) whether or not some extraordinary administration.
services has been rendered by the trustee;
A personal representative may employ a lawyer and pay
(c) the trustee should give the court a general the lawyer’s bill for fees and disbursements from the
summary of both the estate and his or her estate provided the legal services were necessary and
services, including information on the factors proper with regard to the administration of the estate.
above; However, services that the personal representative should
(d) the court has discretion to determine the amount have performed while administering the estate and
of the annual care and management fee, up to a charges for services rendered in advising the personal
maximum of 0.4%; representative on his or her right to remuneration cannot
be charged against the estate.
(e) the average market value of the estate is
calculated by determining the market value of A personal representative may retain an accountant to
the assets at the commencement of the twelve prepare the accounts (except when the estate is small and
month period, adding the market value at the simple) and to prepare income tax returns.
end of that period, and dividing by two; A personal representative may be required to establish the
(f) the usual practice is to charge the care and reasonableness of the expenses he or she has incurred
management fee two-thirds to capital and while administering the estate. If any expenses are
one-third to income; and determined not to be reasonable on a passing of accounts,
the personal representative will be required to reimburse
(g) the application for the care and management fee the estate.
need not be made within the period for which it
is claimed.

[§16.04] Procedure
The remuneration may be fixed by the approval of the
estate beneficiaries of the amount claimed by the personal
representative. If the approval of all the beneficiaries who
have a vested or contingent interest in the residue of the
estate (it is from the residue of the estate that the
remuneration is usually paid) cannot be obtained (i.e.
because some beneficiaries are minors, are mentally
incompetent, or are unascertained), the remuneration
must be fixed by court order obtained on application
under s. 89 of the Trustee Act or on a passing of accounts
under Supreme Court Civil Rule 25-13(1). Supreme
Court Civil Rule 25-13(1) provides that the personal
representative or a person interested in the estate can
initiate a passing of accounts by filing an application. An
application for remuneration may be brought separately
or together with an application to pass accounts. If the

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Chapter 17 An example of a charging clause is as follows:
Any executor or trustee of my Will who
is a lawyer shall be entitled to charge and
Lawyer’s Remuneration 1
be paid all usual professional fees for all
legal services provided by him or her, or
[§17.01] Introduction by his or her firm, in connection with the
probate of my Will and any codicil to it
The following summary reviews issues relating to a and the administration of my estate and
lawyer’s remuneration for services rendered in the trusts of my Will, in addition to any
connection with probate and estate administration. remuneration for acting as an executor
Specifically, these issues relate to entitlement, nature of and trustee.
work for which legal fees may be claimed, the mechanics
of rendering a bill and, if necessary, having that bill A charging clause in a will is considered a legacy and as
formally assessed. such is void by operation of s. 43 of WESA if the lawyer is
an attesting witness to the will. However, under s. 43(4)
Rule 14-1(3) of the Supreme Court Civil Rules sets out of WESA a court can declare that such a gift is not void if
the criteria that are considered for fees charged for legal the court is satisfied that the will-maker intended to make
work in the administration of estates. the gift to the lawyer even though the lawyer acted as a
witness.
[§17.02] Entitlement to Remuneration
In the absence of a charging clause, the lawyer who is a
When a lawyer is retained to provide legal services in the personal representative may engage the services of his or
administration of an estate, the lawyer’s client is the her partners and the fees for their services may be paid
personal representative and not the estate. Accordingly, from the estate provided the lawyer who is the personal
the personal representative is personally liable for the representative does not share in or otherwise benefit from
lawyer’s fees, but is entitled to be indemnified from the the fees (Re Lohn Estate (1994), 98 B.C.L.R. (2d) 26).
estate for those lawyer’s fees provided that the legal costs
have been reasonably and properly incurred and do not [§17.03] Lawyer’s Services
relate to work that the personal representative should
have performed himself or herself (i.e. work within the A lawyer’s range of services could include:
competence of a layperson). The personal 1. Services relating to a non-estate asset (for example,
representative’s personal liability exists even if the assets life insurance payable to a named beneficiary or joint
of the estate are insufficient to fully indemnify the property being transmitted to the surviving joint
personal representative for legal fees properly charged. tenant). In this case, the lawyer’s fees for these
When the lawyer also acts in the capacity of personal services are not a proper expense for which the
representative, the lawyer cannot be paid for legal personal representative may claim indemnification
services rendered in the administration of the estate from the estate because the estate obtains no benefit
unless a “charging clause” in the will authorizes such a from these services.
payment or unless all the beneficiaries are sui juris and 2. Services relating to a personal representative’s
otherwise consent. This rule derives from the general rule responsibilities. Such services might include
under fiduciary law that a fiduciary, such as a personal locating the will, arranging the funeral, ascertaining
representative, cannot personally benefit from his or her the names and addresses of beneficiaries and
position as fiduciary (that is, by claiming fees for acting creditors, collecting assets, paying off debts,
in the capacity of estate lawyer). distributing assets and rendering accounts. Fees paid
to the lawyer for doing work that the personal
representative could have done should be borne by
the personal representative and not charged against
the estate as a disbursement of the personal
representative.
A lawyer may charge fees for this type of work either
on a time basis at the lawyer’s hourly rate), or as a
portion of the fee to which the personal
representative would be entitled if the personal
representative had done the work himself or herself.
1 The personal representative should bear the fees for
Updated by PLTC in January 2016. Kirsten H. Jenkins and
Raphael Tachie of Bull Housser & Tupper LLP updated this this type of work. In practice, the estate pays the
chapter in February 2014. Updated in June 2006 and January lawyer’s bill and the portion of the bill that relates to
2005 by Kirsten H. Jenkins of Bull Housser & Tupper LLP. work of the personal representative is taken into
Reviewed and revised in February 1995 and January 1996 by account or set off against the personal
Gary J. Wilson of Ladner Downs, Vancouver. Wills representative’s remuneration.
 119
3. Legal services. These include reviewing the will and
advising on its provisions, advertising for creditors,
searching the title of assets, preparing all
documentation necessary to obtain probate or letters
of administration, transmitting and transferring
assets, and passing accounts. Reasonably and
properly incurred fees for legal services are payable
from the estate.

[§17.04] Assessment of Account

In preparing his or her account, the lawyer should
distinguish work that relates to the personal
representative’s responsibilities and true legal services.
Accounts are usually in the form of lump sum bills that
contain a description of the nature of the services and the
matters performed which would permit a client to
ascertain the reasonableness of the charges incurred.
The procedure for reviewing a lawyer’s bill is set out
under s. 70 of the Legal Profession Act, S.B.C. 1998, c. 9
and Rule 14-1 of the Supreme Court Civil Rules.
As noted earlier, the reasonableness of a lawyer’s fee is
determined by criteria set out in Supreme Court Civil
Rule 14-1(3). These criteria are
(a) the complexity of the proceeding and the
difficulty or novelty of the issues involved;
(b) the skill, specialized knowledge and
responsibility required of the lawyer;
(c) the amount involved in the proceeding;
(d) the time reasonably expended in conducting the
proceedings;
(e) the conduct of any party that tended to shorten,
or to unnecessarily lengthen the duration of the
proceeding;
(f) the importance of the proceeding to the party
whose bill has been assessed and the result
obtained; and
(g) the benefit to the party whose bill is being
assessed of the services rendered by the lawyer.
In addition to fees claimed on an assessment, the registrar
will also allow a reasonable amount for expenses and
disbursements necessarily or properly incurred (Supreme
Court Civil Rule 14-1(5)).

[§17.05] Further Reading

A detailed discussion of lawyer remuneration is found in
Chapter 17 of British Columbia Probate and
Administration Practice Manual (Vancouver: CLEBC).

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Chapter 18 may be amended once without leave of the court.
Any further amendments require a court order
(SCCR 25-10(4), using SCCR 6-1(2) and (3)).
Probate Actions1 A notice of dispute must be in Form P29. The person
filing the notice of dispute (the “disputant”) must
declare in the notice of dispute the address for
[§18.01] Introduction service of the disputant, which address for service
must be an accessible address that complies with
This chapter discusses various probate actions and SCCR 4-1, and must disclose that the disputant is a
procedures. It is divided into two parts: person to whom documents have been or are to be
(a) before grant: notice of disputes, citations, delivered under SCCR 25-2(2), and the grounds on
curing of deficiencies and proof in solemn which notice of dispute is filed (SCCR 25-10(3)).
form; and The court may renew a notice of dispute before or
(b) after grant: citations, curing of deficiencies and after it expires (SCCR 25(6)). A disputant must give
revocation of grant. notice of an application to renew a notice of dispute
to an applicant for the an estate grant or resealing,
This chapter uses the terminology and procedure any other person who has filed a notice of dispute,
mandated by the Supreme Court Civil Rules, B.C. Reg. and any other person to whom the court directs
168/2009 (the “SCCR”), as amended by Regulation notice to be given (SCCR 25-10(7)).
149/2013.
A disputant may file a withdrawal of notice of
Be aware that if there is a dispute over the will or estate of dispute in Form P30 (SCCR 25-10(9)).
a First Nations person, a completely different regime
governed by the Indian Act, R.S.C. 1985, c. I-5 may A person who intends to apply for an estate grant or
apply. For more detail, see the British Columbia Probate for the resealing of a foreign grant, or who claims an
and Administration Practice Manual (Vancouver: interest in an estate with respect to which a notice of
CLEBC), Chapter 20. dispute has been filed, may apply, on notice to the
disputant, for an order removing the notice of
[§18.02] Actions and Procedures before the Grant dispute (SCCR 25-10(10)). The court may remove a
notice of dispute if the it determines that the filing is
1. Notice of Dispute not in the best interests of the estate (SCCR
25-10(11)). The phrase, “in the best interests of the
Section 106 of the Wills Estates and Succession Act,
estate” will likely need judicial interpretation.
S.B.C. 2009, c. 13 (“WESA”) allows a person to
oppose the issuance of a representation grant in A notice of dispute expires after one year from the
accordance with the SCCR. date of filing unless
A person who is entitled to notice of an application (a) the court renews it,
for an estate grant or resealing of a foreign grant
(b) the notice is withdrawn,
under Rule 25-2 may file a notice of dispute after
death, but before the earlier of the issuance of an (c) the will is proved in solemn form, or
estate grant or resealing a foreign grant. An estate
(d) the court orders the notice of dispute
grant includes a grant of probate, a grant of
removed (SCCR 25-10(12)).
administration, and ancillary grant of probate or
administration (SCCR 25-1(1)). When the deceased has a will, if the intended
applicant for an estate grant or person claiming an
A notice of dispute once filed prevents the issuance
interest in the estate cannot convince the disputant to
of an estate grant and the resealing of a foreign grant
withdraw the notice or persuade the court to remove
(SCCR 25-10(8)).
it, he or she will have to apply to prove the will in
A person entitled to file a notice of dispute may only solemn form.
do so once (SCCR 25-10(2)). A notice of dispute
2. Citations to apply for probate
When the person named as an executor in a
1
Updated by PLTC in January 2016. Kirsten H. Jenkins and testamentary document fails to apply for probate,
Raphael Tachie of Bull Housser & Tupper LLP updated this any person interested in the estate may serve a
chapter in February 2014. Updated in June 2006 and January
2005 by Kirsten H. Jenkins of Bull, Housser & Tupper LLP. citation in Form P32 on the executor to require the
Reviewed from February 1997 to February 2001 by Jane D. Dardi executor to apply for a grant of probate in relation to
of Legacy Tax & Trust Lawyers, Vancouver. Reviewed for the testamentary document (SCCR 25-11(1)). Each
content relating to the Indian Act, in January 2002, by Roger D. alternate executor must also be served if an event
Lee, Davis & Company, Vancouver.

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occurs that entitles the alternate executor to assume document; (b) an authorization to obtain estate or
the office of an executor (SCCR 25-11(2)). resealing information; (c) an estate, foreign or
resealed foreign grant; and (d) a certified or notarial
A person who is served with a citation must within
copy of such a document. Before applying the
14 days of service, do one of the following:
applicant has to have asked the person to whom the
(a) if the person has obtained an estate grant subpoena is to be addressed to provide the document
then serve a copy of the grant to the citor sought. If the registrar is satisfied that the document
by ordinary service (SCCR-25-11(4)(a)); is required for a matter under SCCR Part 25 and that
the person cited has failed to comply with the
(b) if the person has yet to receive a grant of
applicant’s request for production, the registrar may
probate:
issue the subpoena. The person cited in the subpoena
(i) and has filed a submission for must, within 14 days of service of the subpoena (the
estate grant, then serve a copy of time limit set in Form P37), deliver to the registrar
the filed submission for estate the document or an affidavit indicating that the
grant to the citor by ordinary document is not in the person’s possession or control
service (SCCR 25-11(4)(b)(i)); and what knowledge the person has respecting the
document.
(ii) and has not filed a submission
for estate grant, but has delivered If the person cited in the subpoena and served with it
a notice of intended application fails to comply with it, the court may issue a warrant
for an estate grant in accordance for the person’s arrest (SCCR 25-12(6)).
with 25-2(1) that the cited
A person served with a subpoena issued under
person intends to pursue
SCCR 25-12 may apply to have it set aside on
concerning the testamentary
grounds that it is unnecessary or that compliance
document, then the notice of
would work a hardship on the person (SCCR
intended application and other
25-12(8)).
documents must be served on the
citor by ordinary service (SCCR 4. WESA S. 123
25-11(4)(b)(ii));
Section 123(1) of WESA provides that the court may
(iii) or has not taken any step in order a person having control or possession of the
relation to the estate, then serve following to produce and bring all or any of them to
on the citor by ordinary service, the court or to a place directed by the court:
an answer in Form P33 stating
(a) a testamentary instrument or purported
the cited person will apply for a
testamentary instrument, including a
grant of probate or refuses to
record as defined in s. 58 (1) (court order
apply for a grant of probate
curing deficiencies);
(SCCR 25-11(4)(b)(iii)).
(b) a document relating to an estate;
A cited person is deemed to have renounced his or
her executorship in relation to the testamentary (c) property belonging to an estate; and
document if he or she (a) serves an answer stating
(d) a representation grant.
that he or she refuses to apply for a grant of probate;
(b) does not comply with one or more parts of SCCR
The court may also order that a person with
25-11(4); or (c) does not obtain a grant of probate
knowledge of the documents or property referred
within six months after the date of service of the
to above attend for examination (WESA,
citation unless the court on application has extended
s. 123(2)).
this time (SCCR 25-11(5)).
When there is a deemed renunciation of the right to WESA s. 123 has a broader, less specific, ambit
apply for probate, a citor or another person than SCCR 25-12. If the subpoena process under
interested in the estate, may apply for probate in SCCR 25-12 cannot be used to produce a
place of the person named as executor (SCCR document, or if production of estate property is
25-11(6)). sought, applying under WESA s. 123 pursuant to
SCCR Part 8 or SCCR 25-14(1) may succeed.
3. Subpoena For Testamentary Document or Grant
Under SCCR 25-12, a person may apply by 5. Curing Deficiencies in the Execution, Alteration,
requisition (Form P35), supported by affidavit, for a Revocation or Revival of a Will
subpoena (Form P37) requiring a person to deliver
If there are deficiencies in a will or other document
to the registry one or more of (a) a testamentary
representing the deceased’s testamentary intentions
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 122
or the intention of the deceased to revoke, alter or of grant or, if the grantee has died, an application for a
revive a will or testamentary disposition, a person grant of letters of administration de bonis non (see
may seek an order under s. 58 of WESA to cure the §10.06). If the problem is that the original grant was in
deficiencies and have the document declared error, an action for revocation of grant is probably
effective as a will, revocation, alteration or revival of inevitable.
the will or testamentary disposition (see §11.05 for a
fuller analysis). Such an application is brought 1. Revocation Applications
pursuant to SCCR 25-14 (2)(c) either by a notice of
One relatively common contentious matter arising
application or a requisition.
out of events after a grant is a beneficiary’s
allegation that the grantee is guilty of misconduct in
6. Proof in Solemn Form
the administration of the estate. Usually the most
When there is a dispute or the potential for a dispute appropriate course is for the beneficiary to apply to
as to the validity of a will, the will should be proved the court to have the grantee removed as trustee and
in solemn form as opposed to common form. Probate to have a judicial trustee appointed under s. 97 of the
in common form issues upon the application of the Trustee Act, S.B.C. 1996, c. 464.
executor without notice and is supported by affidavit
When the existing grant was obtained after proof in
evidence. Proof in solemn form, on the other hand,
solemn form, an action for revocation of grant is
requires proof of the will in a hearing or trial, after
only available in restricted circumstances such as the
notice has been given to all interested parties. The
following:
court must be satisfied, upon the evidence, that the
will-maker knew and approved of the contents of the (a) a later will is discovered;
will, had testamentary capacity, and that the will was
(b) after the grant in solemn form is issued, it is
properly executed. A will may be proved in solemn
discovered that a valid marriage not
form by notice of application if there is an existing
contemplated by the will was contracted by the
proceeding within which it is appropriate to seek that
will-maker after the execution of the will(This
order under SCCR 25-14(4). If there is no
basis for setting aside a will proved in solemn
proceeding that exists at the time, a will may be
form will likely change under WESA’s abolition
proved in solemn form by commencing a proceeding
of the automatic revocation of a will by
by petition under SCCR 16-1.
marriage.); or
A grant of probate of a will proved in common form
(c) the grant pronouncing for the force and validity
can subsequently be revoked if, for example, the will
of the will was obtained by fraud.
is shown to be invalid (because the will was not
properly signed or contains another formal defect, or A grant of probate or of letters of administration may
because the will-maker lacked testamentary capacity be revoked when a grant properly made has
or was the victim of undue influence, among other subsequently become ineffective or when the grant,
reasons). When a will has been proved in solemn if allowed to subsist, would prevent the proper
form, it generally is protected by the doctrine of res administration of the estate. These circumstances
judicata from attack in subsequent legal proceedinga arise, for example, when:
so that the grant cannot be later set aside, unless it is
(1) a grantee has disappeared leaving the estate
shown that it was obtained by fraud, or a later will is
unadministered; or
found. A will proved in common form is not so
protected. (2) a grant has issued by mistake after the grantee,
having applied for the grant, died before it was
The executor under the will or any person taking a
sealed by the court.
benefit under the will has standing to commence a
proceeding. However, if a person’s only interest is to The person applying for revocation of an estate grant
invalidate the will the person is unlikely to must satisfy the following conditions (SCCR
commence a proceeding for proof in solemn form of 25-5(5):
a will; there are other procedures available.
(a) If the person applying for the revocation is the
person to whom the grant was issued,
[§18.03] Actions and Procedures after the Grant
concurrently with filing the notice of
A grant of probate or letters of administration may have to application, that person must provide the
be replaced if the grantee dies, goes missing, or becomes registry with the original of the document and
incapacitated, or if facts come to light that indicate that all certified and notarial copies of it. The person
the earlier grant was made in error. When events after the must also not act under the grant until the
grant make it impossible to complete the administration, application is decided.
the solution may take the form of an action for revocation

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(b) If the person applying for the revocation is not
the person to whom the estate grant was issued,
the person who has possession or control of that
document must file it within seven days after
being served with the notice of application for
the revocation. That person must not act under
the estate grant without leave of the registrar
until the application is decided.

The registrar has the discretion to grant leave to the

person to whom the estate grant was issued to act under
the grant before the revocation application is decided if
the registrar is satisfied that the harm that will occur if
leave is granted is less than the harm that will occur if
leave is not granted (SCCR 25-5(6)(b)). In order to apply
for leave, the person must file a requisition in Form 17
and affidavit or other evidence in support of the request
(SCCR 25-5(6)(a)).

If revoked, that authority to act passes as if the person had

never been appointed executor (WESA s. 141). A former
personal representative must give a new personal
representative all property and records relating to the
estate and administration in his or her possession or
control within 30 days of the order of substitution, and
sign all documents necessary for the administration of the
estate. A failure to sign any document will not affect
vesting of the estate in the new personal representative
(WESA, s. 161).

2. Rectification
Under section 59 of WESA, if a will fails to give
effect to the will-maker’s intention because of an
accidental slip or omission, a misunderstanding of
the instructions or a failure to carry out the
instructions, the court may rectify the will no later
than 180 days after the representation grant is issued
unless the court grants leave to make an application
after that date (see §11.02 and §11.03).

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Chapter 19 adequate, just and equitable in the
circumstances be made out of the will-maker’s
estate for the spouse or children.
Variation of Wills1
[§19.02] Jurisdiction

[§19.01] Introduction A number of conditions must be satisfied before the court

has jurisdiction to make an order under WESA.
This chapter deals with applications under Division 6 of 1. Requirements
Part 4 of the Wills Estates and Succession Act, S.B.C.
2009, c. 13 (“WESA”) to vary a will. In particular this (a) A valid will
chapter discusses the provisions of sections 60 to 72 The first condition precedent to the court’s
which replace the Wills Variation Act, R.S.B.C. 1986, c. jurisdiction is that a valid will must exist
(the “WVA”). While the WVA was repealed by WESA, the (Hammond v. Hammond (1995), 7
provisions in section 60 to 72 incorporate substantially B.C.L.R. 3(d) S.C.). If from a construction
the same terms as the WVA, but do make some procedural of the will it is possible that there may be
changes of importance. In light of the fact that WESA did an intestacy as to any part of the estate, the
not substantially change the provisions of the WVA, the proper course is to have the will construed
common law principles and the commentary established by the court before proceeding with an
under the WVA will continue to be applicable. All statute action under WESA (although, given the
references are to WESA unless otherwise noted. short limitation period, a proceeding
This chapter uses the terminology and procedure would likely be combined, at the very
mandated by the Supreme Court Civil Rules, Part 25 least).
(B.C. Reg. 149/2013 (the “SCCR”), SCCR Rule 21-6, as Section 1 of WESA defines a will to
amended, and WESA. include: a will; a testament, a codicil; an
Be aware that if there is a dispute over the will or estate of appointment by will or by writing in the
a deceased First Nations person, a completely different nature of a will in exercise of a power;
regime governed by the Indian Act, R.S.C. 1985, c. I-5 anything ordered to be effective as a will
may apply. For more detail, see §20.11 in the British under section 58 [court order curing
Columbia Probate and Estate Administration Practice deficiencies], or any other testamentary
Manual (Vancouver: CLEBC). disposition except a designation under
WESA Part 5 (Benefit Plans), a designation
For more detailed information on wills variation claims, of a beneficiary under Part 3 or 4 of the
see Chapter 19 of the Probate and Estate Administration Insurance Act, or a testamentary
Practice Manual (Vancouver: CLEBC) and Leopold disposition governed specifically by
Amighetti, Q.C., The Law of Dependents’ Relief in another enactment or law of British
British Columbia (Toronto: Carswell, 1991). Columbia or of another jurisdiction in or
Under WESA, a spouse or child may commence an action, outside Canada.
within 180 days from the date of the representation grant, (b) Qualifying assets
if he or she feels that the will does not adequately provide
for his or her proper maintenance and support. In general, if the will-maker was domiciled
in British Columbia at death, WESA
Section 60 of WESA provides that: applies to all real property and personal
Despite any law or enactment to the contrary, if property of the will-maker to which the
a will-maker dies leaving a will that does not, in authority of the courts in British Columbia
the court’s opinion, make adequate provision extends or can be made to extend. If the
for the proper maintenance and support of the will-maker was domiciled outside British
will-maker’s spouse or children, the court may, Columbia at death, WESA applies to all of
in a proceeding by or on behalf of the spouse or the will-maker’s real property within
children, order that the provision that it thinks British Columbia but not to the
will-maker’s personal property.
1
Updated by PLTC in January 2016. Kirsten H. Jenkins and Assets that are not part of the estate within
Raphael Tachie of Bull Housser & Tupper LLP updated this
chapter in February 2014. Reviewed and revised annually since
the meaning of s. 60 usually includes
March 1995 by Lynn Waterman of Fasken Martineau DuMoulin property held in joint tenancy, assets held
LLP. Reviewed for content relating to the Indian Act, in January in a trust settled in the lifetime of the
2002, by Roger D. Lee, Davis & Company, Vancouver. will-maker, pension funds, insurance

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policies and RRSPs declared to be payable parent except through the will of the
to designated beneficiaries, as well as any natural parent. Section 3(3) provides that
assets that may be impressed with a claim adoption of a child by the spouse of a
for a constructive trust. However, assets natural parent does not terminate the
that pass outside the estate can be relationship of parent and child between
considered in an application made under the child and the natural parent for
WESA in assessing what the will-maker, as purposes of succession.
a judicious person, would have considered
The Nisga’a Lisims Government can
adequate and just for the claimant (Viberg
commence proceedings under WESA for
v. Viberg, 2009 BCSC 27).
the will of a Nisga’a citizen if that will
(c) Qualified applicant provides for devolution of cultural
property (s. 13).
A qualified applicant under s. 60 of WESA
is the spouse or a child of a will-maker. 2. Forum
Section 2 of WESA provides a definition of The court that has jurisdiction to make an award
spouse as follows: under WESA is the Supreme Court of British
Columbia (WESA s.1(1)). A proceeding can be
2 (1) Unless subsection (2) applies,
commenced in any registry of the Supreme Court in
2 persons are spouses of
the province; it does not have to be commenced in
each other for the purposes
the registry in which probate was granted.
of this Act if they were both
alive immediately before a 3. Limitation Period
relevant time and
An action must be commenced within 180 days from
(a) they were married to
the date the representation grant is issued
each other, or
(s. 61(1)(a)). There is no provision in WESA for
(b) they had lived with each
extension of this time limit.
other in a marriage-like
relationship for at least 2 The commencement of an action by one claimant in
years. so far as limitation periods are concerned is deemed
to be a proceeding for all who may apply (s. 61(4)).
(3) A relevant time for the
purposes of subsection (1) is the [§19.03] Procedure
date of death of one of the
1. Commencement
persons unless this Act specifies
another time as the relevant Supreme Court Civil Rule 21-6(1) provides that a
time. proceeding under s. 60 of WESA must be
commenced by a notice of civil claim. All further
Two persons cease being spouses of each
proceedings will follow the usual procedure set out
other for the purposes of WESA in the case
in the Supreme Court Civil Rules (SCCR 21-6(4)).
of a marriage, if an event occurs that
causes an interest in family property, Originating process must be served on the executor
within the meaning of the Family Law Act, within 30 days after the expiration of the limitation
[SBC 2011] c. 25 to arise. period unless the court grants a time extension
(s. 61(1)).
In the case of a marriage-like relationship,
two persons cease being spouses if one or 2. Parties
both persons terminate the relationship.
Parties to a proceeding include the surviving spouse,
The former spouse has no status to apply. children, all beneficiaries whose interest may be
The status of a spouse is fixed once and for affected, the executor and any other person the court
all at the date of the will-maker’s death; may order are parties (SCCR 21-6(2)).
therefore, the spouse’s remarriage after the
The court has jurisdiction to make an award to
will-maker’s death does not bar a claim
persons who made no claim for relief but who are
under WESA.
included in the proceeding as a party and have status
The WESA does not include a definition of under WESA to seek an award pursuant to s. 61 of
children. However, section 3(2)(a) WESA (Tomlyn v. Kennedy, 2008 BCSC 331).
provides that an adopted child is not
entitled to the estate of his or her natural

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3. Representative Actions not making adequate provision for the spouse or
children (s. 62(1)). The British Columbia Court of
Section 60 of WESA states that a proceeding may be
Appeal considered this evidentiary issue in some
brought on behalf of the spouse or children. This
detail in the cases of Bell v. Roy (Estate) (1993), 75
contemplates the situation where a person entitled to
B.C.L.R. (2d) 213 (B.C.C.A.) and Kelly v. Baker
bring an action in his or her own name is for some
(1996), 15 E.T.R. (2d) 219. The Supreme Court has
reason unable to do so (for example, as a result of
considered it more recently in Atwal v. Atwal, 2010
infancy or a mental disorder).
BCSC 1261.
A litigation guardian may bring an application on
Such evidence may include statements made by the
behalf of an applicant who is under legal disability
will-maker during his or her lifetime or a
(Re Wong Estate, 2007 BCSC 1189). Proceedings
memorandum recording as objectively as possible
may also be brought on behalf of persons who have
the will-maker’s reasons for disposing of the estate
died before or during the course of the proceedings
in a particular way. An advantage of the
(Currie Estate v. Bowen (1989), 35 B.C.L.R. (2d) 46
memorandum, as opposed to expressing the reasons
(S.C.); McGavin Estate v. McGavin Estate, [1992]
in the will, is that it preserves the confidentiality of
B.C.W.L.D. 899 (S.C.) and Pelletier v. Erb Estate,
the remarks if there is no challenge to the will.
2002 BCSC 1158).
7. The Order
4. Special Considerations with Respect to Land
The court may order a lump sum, a periodic or other
Sections 60(5), 68, 69 and 70 of WESA contain
payment (or a transfer of property or the
special provisions with respect to land in BC. Under
establishment of a trust (s. 64)).
s. 60(5), a plaintiff in an action may register a
certificate of pending litigation in the land title office The court may also order, in whole or in part, the
within 10 days of the issue of the initiating suspension of the administration of the will-maker’s
proceeding or petition. Under s. 69, if real property is estate (s. 66).
transferred to a beneficiary within the 210 day period
For how orders and costs are dealt with under WESA
referred to in s. 155 of WESA, without either the
and how the burden of payment of an order falls on
court’s authorization or the required consents, the
the estate see ss. 66, 67, 71, and on the question of
title will be endorsed as being “subject to the liability
costs, see SCCR 14-1(9), 14-1(15) and 14-1(16)).
of being subject to an order under this Division”
The general rule is that costs follow the event in
(Division 6 – Variation of Wills).
WVA (now WESA) matters (Vielbig v. Waterland
5. Settlement Estate (1995), 6 E.T.R. (2d) 1 (B.C.C.A.) and
followed in Hall v. Picketts, 2007 BCSC 1278 and
A consent order cannot be obtained under WESA
affirmed in 2009 BCCA 329). However, in several
because relief is a matter for the discretion of the
wills variation cases the court did not follow the
judge. However, when all interests are vested and all
general rule and has ordered that the parties’ costs be
parties are sui juris, the parties may enter into a
paid out of the estate on the basis that the executor
settlement agreement. When all interests are not
was obliged to defend the will and the parties were
vested or some party is under a disability, an order of
drawn into the action by the provisions of the will
the court is required because of the discretionary
(Wilcox v. Wilcox, 2000 BCCA 491 and Mazur v.
nature of the relief sought and there can be no
Berg, 2010 BCSC 109). See also Anna Laing, Estate
assurance that the court will make the order sought
Litigation – 2011 Update, “Estate Litigation
by all parties.
Potpourri,” the Continuing Legal Education Society
Any party to a Supreme Court proceeding may of British Columbia, November 2011.
require other parties to attend a mediation session
8. Appeals, Variations and Rescissions
under the Notice to Mediate process (Notice to
Mediate (General) Regulation, BC Reg. 4/2001). Appeals are provided for in WESA under s. 72.
Mediation in WESA proceedings in which all Variation and rescission of orders are provided for
interests are not vested, or in which some party is under s. 71.
under a disability, is restricted. The results of
mediation in these actions would be subject to court [§19.04] Role of the Executor
order.
Section 61(1)(b) of WESA provides that a proceeding
6. Evidence
commenced by a person to vary a will must not be heard
WESA provides that “the court may accept the by the court unless a copy of the notice of civil claim has
evidence it considers proper…” of the will-maker’s been served on the executor. Once the executor has
reasons for making the dispositions in the will or for notice that a proceeding has been commenced, or if a

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proceeding could be commenced, the executor may [§19.05] Duty to Make Adequate Provision
proceed with the normal duties of an executor, subject to
1. Generally
certain restrictions.
The court may interfere in the disposition of an
The executor may pay duties, taxes, debts, and
estate when, in the court’s opinion, the will-maker
testamentary expenses (Re Simson, [1949] 2 All E.R. 826
has failed to make adequate provision for the proper
(Ch. D.)). However, a personal representative is
maintenance and support of a spouse or child (s. 60).
prohibited from distributing the estate after the 210-day
The requirement that the provision be just and
waiting period referred to in section 155(1) without a
equitable is an important feature of WESA in British
court order if (1) proceedings have been commenced as to
Columbia, as that wording is not found in most other
whether a person is a beneficiary or intestate heir; (2) a
Canadian jurisdictions that have dependent relief
variation claim has been brought; (3) other proceedings
legislation.
have been brought which may affect distribution (s. 155).
The leading authority on the basis upon which the
To avoid the possibility of personal liability, the executor
court is to determine the extent of a will-maker’s
should not distribute any of the assets of the estate to any
duty to make adequate provision is the Supreme
beneficiary in the 210 days following the date of the issue
Court of Canada’s decision on Tataryn v. Tataryn
of a representation grant, unless all persons who would be
Estate (1994), 93 B.C.L.R. (2d) 145 (S.C.C.).
entitled to apply under WESA consent, or unless the
distribution is authorized by court order (s. 69 and s. 155). In Tataryn the court held that if the will does not
make adequate provision for the proper maintenance
If an executor distributes any of the estate within the 210
and support of a spouse or a child, the court may
day period, or thereafter if an action has been
order whatever it thinks to be “adequate, just and
commenced, and does so without the consent of all
equitable.” Furthermore, in determining what is
persons who would be entitled to apply under WESA, he
“adequate, just and equitable”, two societal norms
or she may be personally liable for any loss resulting from
must be considered and in the following order of
that distribution.
significance: first, the legal obligations of the
The court cannot direct an executor to make a distribution will-maker to his or her spouse and children; and
before the executor’s year has expired (Nielsen v. Nielsen, second, the moral duties of the will-maker to his or
[1990] B.C.D. Civ. 4163-02 (S.C.)). her spouse and children.
The court may authorize payment of legacies or bequests The test for determining what constitutes “proper
notwithstanding a pending claim under WESA, when the maintenance and support” is a question to be
risk is remote that the variation order will encroach on the determined with reference to the test set out in
funds needed to satisfy the legacies or bequests (Hecht v. Walker v. McDermott, [1931] 1 D.L.R. 662 (S.C.C.).
Hecht Estate (1990), 39 E.T.R. 165 (B.C.S.C.)). The court should proceed “from the point of view of
thejudicious father of a family seeking to discharge
Throughout the proceedings and at the trial of the action,
both his marital and his parental duty; and would of
the executor should take a neutral position. The executor
course (looking at the matter from that point of
should be prepared to provide the court with particulars of
view), consider the situation of the child, wife or
assets and liabilities or with any other assistance the court
husband, and the standard of living to which, having
may require. The executor should neither support nor
regard to this and the other circumstances, reference
oppose the provisions of the will. To save costs, it is not
ought to be had.”
uncommon for the executor and his or her counsel to ask
to be excused from the trial of such a proceeding after 2. Factors to Consider
providing such financial particulars of the estate as are
(a) Station in life
required from him or her.
Circumstances the court may consider
If a personal representative wants to bring an action under
include the plaintiff’s station in life, the
WESA, he or she must step down as personal
standard of living to which the will-maker
representative, and should not apply for a grant because
has allowed the plaintiff to become
one person cannot be both plaintiff and defendant in an
accustomed, and the aspirations that are
action under WESA (Berry Estate v. Guaranty Trust, Co.
reasonable for persons with that standard
of Canada [1980] 2 S.C.R. 931 and Harrison v. Harrison
of living (Re Fraser Estate (1964), 50
(1982), 40 B.C.L.R. 143 (S.C.)).
W.W.R. 268 (B.C.C.A.)). The will-maker
cannot lower this standard by depriving
the plaintiff during the will-maker’s
lifetime (Re Berger (1978), 2 E.T.R. 275
(B.C.S.C.)).

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The general principle that the plaintiff an award equal to the sibling (Lainf v.
should continue to be maintained in the Jarvis Estate, 2011 BCSC 1081).
manner to which he or she has become
(iv) The only daughter of the will-maker’s
accustomed must be considered in light of
first marriage was held to be entitled
the estate’s ability to meet such a claim
to $75,000 of a $435,000 estate,
(Spinney v. Royal Trust Co. (1973), 19
although she was married to a
R.F.L. 191 (N.S.S.C.)).
dermatologist who earned a
In the case of Sawchuk v. MacKenzie “relatively good income from his
Estate (1999), 26 E.T.R. (2d) 193 practice” (Re Holt (1978), 85 D.L.R.
(B.C.C.A.), the court in increasing the (3d) 543 (B.C.S.C.) at 546).
award made by the lower court took into
A review of the cases indicates that failure
consideration the status in life (expensive
on the part of the plaintiff to show need
house in a high income neighbourhood) of
may not be fatal when the estate is large
the deceased rather than the lifestyle of the
and
applicant daughter.
(i) the plaintiff had contributed to its
(b) Disabled Applicants
acquisition (Re Sleno (1977), 78
In Woods v. Davy, 2002 BCSC 569, the D.L.R. (3d) 155 (B.C.S.C.));
court varied a will in consideration of the
(ii) the will-maker had preferred one
health and mental capacity of the
child over another (Re Horvath
dependents. However, where a plaintiff
Estate, [1978] B.C.D. Civ. - Wills,
adult independent child did not establish
Trusts & Estates (S.C.); Re Tornroos
that her health disabled her from working,
Estate, [1976-77] B.C.D. Civ. (S.C.));
the court did not vary a will on the basis of
physical disability (Gould v. Royal Trust (iii) a second wife or children of a second
Corp. of Canada, 2009 BCSC 1528 at marriage were preferred over the
paras. 113 to 116). children of the first marriage (Re Holt
(1978), 85 D.L.R. (3d) 543
(c) Financial need of the plaintiff
(B.C.S.C.));
In Tatyrn, the Supreme Court of Canada
(iv) the will-maker left most of the estate
set out that financial need does not have to
to her brother, with only a small
be proved if the claimant can establish that
provision for her husband (Hurst v.
the will-maker owed a legal obligation or a
Benson (1981), 9 E.T.R. 274
moral obligation to the claimant that was
(B.C.S.C.));
not met in the terms of the will (See also.
Sawchuk v. MacKenzie Estate, supra). (v) persons falling outside the class
enumerated in the WVA
While financial need is not essential for a
(grandchildren) were preferred by the
plaintiff to succeed on such an application,
will-maker (Re Tiernan Estate,
need is certainly a factor to be considered.
[1976-77] B.C.D. Civ. (S.C.); Re
For example:
Michalson Estate, [1973] 1 W.W.R.
(i) The court has taken into account not 560 (B.C.S.C.)); or
only the present financial needs of a
(vi) the will-maker disinherited his only
plaintiff but the future needs
child without adequately weighing
(Klingstal v. Arend, [1980] B.C.J. No.
the impact of the child’s deteriorating
144 (QL) (S.C.).
health (Marsh v. Marsh Estate
(ii) The court balanced the relative (1997), 19 E.T.R. (2d) 184
financial circumstances of an infant (B.C.S.C.)).
child applicant with that of the
(d) Restrictive conditions in the will
surviving common law spouse in
determining priorities (B. (K.D.M) v. Support may not be adequate if there are
Taylor, 2008 BCSC 1498). conditions in the will that restrict the
surviving spouse’s or child’s access to the
(iii) An adopted child with greater
support. For example, when a dependent is
financial and health needs than the
required to rely on an executor’s discretion
preferred child beneficiary received
as to whether to resort to the corpus of a

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life estate, the courts have generally held (f) Foreign applicants
that adequate provision has not been made.
The adequacy of the will-maker’s
In these conditions, the plaintiff need not
provision will generally be determined
apply to the executor for relief before
with regard to a standard appropriate to the
invoking the provisions of WVA (Re Kirk
applicant’s country of domicile.
Estate (1963), 42 W.W.R. 510
(B.C.S.C.)). (g) Type of dependent
However, when the will-maker makes (i) Spouse
additional provision for the surviving
Tataryn appears to have elevated the
spouse so that the spouse can also maintain
position of a spouse. Moreover, this
the children of the marriage, the court will
decision may have modified the
interfere to make independent provision
approach to be taken, generally, when
for the infant children only in “very special
the claimant is the surviving spouse
circumstances” (Re Little Estate, [1953]
of the deceased.
O.W.N. 865 at 866 (Surr. Ct.)).
The Supreme Court of Canada in
(e) Claimants maintained by the state
Tataryn suggested that a surviving
There are conflicting lines of authority as spouse ought not to be in any worse
to the extent of the will-maker’s duty to position than he or she would be in
make provision for a dependent who is had the parties divorced as opposed to
being maintained at the expense of the one of them dying. It has been said by
state. some, in the aftermath of Tataryn,
that the Supreme Court of Canada has
Even when the will-maker’s duty has been
made death another “triggering
held to have been mitigated by
event” [the reference to a triggering
government benefits, the will-maker may
event is to BC’s former family law
have a duty to make provision for
legislation, Family Relations Act,
additional needs, as, for example, in the
RSBC 1996, c. 128 (“FRA”) – which
following situations:
has now been repealed]. Under the
(i) when the money would provide a few new family law legislation – the
comforts in addition to those Family Law Act, [SBC 2011] c. 25,
provided by the institution (Re Taylor which came into effect on March 18,
Estate, [1950] 1 W.W.R. 1055 2013 the analysis may be modified to
(B.C.S.C.)); reflect the changes in the Family Law
Act as to quantifying what a spouse is
(ii) when a plaintiff who was capable of
entitled to.
appreciating certain luxuries would
be more comfortable in a private Some lower court decisions since
institution than a public one (Re Tataryn looked to the FRA (before its
Brousseau Estate (1952-53), 7 repeal) and included at least some
W.W.R. (N.S.) 262 (B.C.S.C.)); and analysis of the assets to determine if
they are family assets in an attempt,
(iii) when there was a possibility that the
presumably, to ensure that the
disabled applicant would eventually
surviving spouse receives at least
be discharged from the institution,
50% of the value of the family assets.
and the applicant was responsible for
This analysis sometimes required that
other persons (Re Pfrimmer Estate
the court “claw back” (for the
(1969), 66 W.W.R. 574 (Man. C.A.)).
purposes of the analysis only) assets
Will-makers frequently provide their that the surviving spouse may have
executors with a discretion to use as much received outside of the estate (such as
of the income and capital of a fund as they jointly held assets) that would
consider advisable for the use of a otherwise be family assets. This is a
mentally disabled child. The Public clear departure from the approach
Guardian and Trustee may not consider taken by our courts prior to the
that to be adequate provision and in such decision in Tataryn.
cases may commence proceedings on
It may be that when considering legal
behalf of the disabled person.
obligations to provide for a spouse

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under a will-maker’s will, the court will, although she was in no apparent
will now look, for example, to what a financial need. On the other hand, the
surviving spouse would have son who was the beneficiary had a
received if the relationship had been history of unemployment.
terminated by separation under the
The will-maker had prepared a WVA
Family Law Act instead of death.
memorandum at the time she drew
In at least some instances the British her will, which accurately set out her
Columbia Court of Appeal has not reasons for excluding two of her
whole-heartedly adopted the children.
approach set out in the Tataryn
The Court of Appeal unanimously
decision. For example, in Crerar v.
upheld the trial judge’s ruling that the
Crerar Estate (1998), 24 E.T.R. (2d)
daughter’s claim be dismissed. The
1 (B.C.C.A.), the will-maker had
court confirmed that a will-maker can
directed that out of an estate of about
disinherit a child for good cause. It
$2,000,000 the widow of a very
rejected the principle that the
long-term marriage receive the
executor has a burden to displace the
income only from a fund of $500,000.
prima facie right on the part of the
The lower court, adopting the
disinherited child to share in the
reasoning in Tataryn, directed that the
estate. Rather, the panel of three
widow receive half the residue
appellate justices concluded that it is
outright. On appeal, the Court of
the claimant who has such a burden of
Appeal, while clearly sounding a
proof. Furthermore, the trial judge has
victory for testamentary freedom,
a duty, when no adequate provision
directed that while the widow ought
has been made for an applicant (and
to have the benefit of half the residue,
when need is not an issue), to
she should only receive the income
consider all the evidence of intention
from the half, not the capital outright.
permitted under s. 2(3) of the WVA
If the rationale underlying the
[now s. 62(1) of WESA] in order to
Tataryn decision had been applied,
determine whether the reasons
the lower court award for the widow
disclosed are rational and valid.
would surely have been upheld.
When the answer to this inquiry
However, the Tataryn approach was supports the will, the court ought to
applied in Erlichman v. Erlichman favour those intentions.
Estate (2002), 45 E.T.R. (2d) 215.
Bell v. Roy represents a departure
Saunders J.A. for the Court of Appeal
from the “reasonable will-maker”
emphasized the legal obligation when
approach. Some members of the
analyzing what is adequate, just and
Court of Appeal favour honouring the
equitable, concluding in this case that
principle of testamentary freedom to
the surviving widow had a “strong
the greatest extent possible with the
claim” to at least one-half of the
limits imposed by the WVA (now
estate.
WESA) and decided case law. This
(ii) Children2 case also highlights the importance,
when drawing a will for a client, of
The right of a will-maker to prefer
preparing a memorandum which
one child over another in the
accurately sets forth the will-maker’s
disposition of his or her estate was
reasons for excluding potential
reexamined by the British Columbia
claimants.
Court of Appeal in Bell v. Roy, 1993
CanLII 1262. In that case, the While such memoranda can prove
will-maker left her estate to only one very useful, in light of Tataryn, it will
of three adult children. One of the not operate so as to displace the rights
disinherited children challenged the of a surviving spouse.
In the case of adult children,
2
The summary of Bell v. Roy is borrowed from an analysis by Allardice v. Allardice (1910), 29
Shelley Bentley in SectionTalk in the January 1994 issue of N.Z.L.R. 959 (S.C. & C.A.) at 969-70
BarTalk. (C.A.), is often quoted:

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A child, however, who had quantify each of their contributions.
maintained her or himself, Given the size of the estate, the
and had perhaps daughter was not adequately provided
accumulated means, might for. The unequal distribution did not
well be expected to be able provide for the proper maintenance
to fight the battle of life and support of the daughter. An
without any extraneous aid. adequate, just and equitable
But even in such a case, if distribution was to give the daughter
the fight was a great an equal share of the residue of the
struggle, and some aid might estate.
help, and the means of the
For a case in which the will-maker’s
testator were great, the Court
reasons for disinheriting an adult
might properly give aid. The
child were honoured, see Berger v.
whole circumstances have to
Clark, [1999] B.C.J. No 2904 (QL).
be considered.
The Court of Appeal, in dismissing
In Brauer v. Hilton (1979), 15 the appeal, held that the stated
B.C.L.R. 116 at 122 (C.A.) the court reasons for the deceased having
noted that the will-maker’s previous disinherited the daughter were solidly
ill- treatment of the children is not a based on the facts and were not
factor to be considered in determining unreasonable or irrational.
whether adequate provision has been Furthermore, the estate was small and
made. However, see Re Stubbe there was no evidence that either the
Estate, [1973] 1 W.W.R. 354 daughter or the beneficiary was in
(B.C.S.C.) and McGhie v. need. It was appropriate and within
Muzylowski Estate. Certainly, the the discretion of a judicious parent for
will-maker’s prior ill-treatment of the the deceased to have left his estate to
applicant may well weigh in a a companion, who had provided him
determination of whether or not the with companionship and comfort.
will-maker has discharged his or her
3. Relevant Date for Determining Adequacy of Support
moral obligation to the applicant, but
an award made in such proceedings is Because a spouse’s or child’s circumstances may
not intended to be on account of change over time, it is important to determine the
damages for such ill-treatment. relevant date for assessing the adequacy of the
support provided for by the will-maker.
In Ryan v. Delahaye Estate (2003), 2
E.T.R. (3d) 107, the will-maker The courts have expressed a number of different
mother set out clear reasons for views on this subject. Recent cases in British
providing unequally for her adult Columbia show a tendency to adopt the view that
children, stating that the son had been adequacy is to be tested at the date of the
of great assistance to her, while the will-maker’s death, on the basis of the circumstances
daughter seldom visited. She also that existed then, and those that were likely to occur
stated that the daughter had received a in the future and were reasonably foreseeable.
legacy from the grandmother who had
raised the daughter and for whom the [§19.06] Circumstances Precluding Relief
daughter had cared until she died.
1. General
Smith J. (following the principles set
out in Kelly v. Baker (1996), 82 The court has discretion to refuse relief under WESA.
B.C.A.C. 150) held that while the
63. The court may
mother had given reasons for the
unequal distribution the reasons were (a) attach to an order under this Division
inaccurate and therefore were not any conditions that it thinks
valid and rational at the time of the appropriate, or
mother’s death. The parents had
(b) refuse to make an order in favour of a
provided some compensation to the
person whose character or conduct, in
son for his devotion during their lives.
the court’s opinion, disentitles the
Both children were of great assistance
person to the benefit of an order under
to the parents. It was not possible to
this Division.

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The “character or conduct” refers to the character Ceasing to be a spouse under section 2(2)
and conduct of the plaintiff before the will-maker’s of WESA also terminates a spouse’s right to
death (Burns v. Burns, [1937] 2 W.W.R. 673 vary a will under the wills variation
(B.C.S.C.), aff’d [1938] 4 D.L.R. 513 (P.C.)). The provisions.
plaintiff’s conduct subsequent to the death of the
Marriage and separation agreements often
will-maker is immaterial (Dale v. Crosby, [1981]
include provisions that one or both parties
B.C.D. Civ. 4223-08 (S.C.)).
agree to forego rights under the WVA and
Once the plaintiff shows that adequate provision has now WESA. An agreement cannot remove
not been made in the will, the onus of proving the court’s jurisdiction under WESA. The
disentitling conduct is on the person alleging it (Re court will, however, consider the
Suddaby, [1958] O.W.N. 391 (C.A.)). provisions of an agreement as one of the
circumstances to be weighed when
2. Actions by Spouses
determining whether adequate provision
The following principles apply equally to actions by has been made for the plaintiff (Boulanger
widows and widowers. However, a number of cases v. Singh (1984), 59 B.C.L.R. 383 (C.A.)).
suggest that actions by widowers will not be The moral duty of a will-maker to provide
entertained as readily as those of widows and for a needy spouse must be assessed by the
children. court as of the date of the will-maker’s
death, not at the time of the separation
Consider the following comments as they relate to
agreement (Wagner v. Wagner Estate
common law spouses including same sex spouses
(1991), 44 E.T.R. 24 (C.A.)). In this case,
(Grigg v. Berg (2000), 31 E.T.R. (2d) 214).
the claimant under the WVA had released
(a) Duration of Marriage all claims against the will-maker and had
been consistently represented by counsel in
The fact that a marriage is of very limited
reaching a separation agreement, five years
duration does not bar a claim under WESA.
before the will-maker died. The Court of
Rather, it is a circumstance going to the
Appeal allowed the appeal and varied the
quantum of the award.
will to give a significant portion of the
(b) Marriage of convenience estate to the separated spouse. Some judges
give much more weight to a separation
The fact that the marriage was one of
agreement than others; see the compelling
convenience does not disentitle the
dissent of Gibbs J. in Wagner, supra, and
plaintiff spouse. However, in such cases
the Supreme Court decision of the same
the obligation of the will-maker may be
case (1991), 39 E.T.R. 5 (B.C.S.C.), in
minimal (Montgomery v. Flood (1979), 5
which Lysyk J. stated (at 21):
E.T.R. 16 (B.C.S.C.)).
Agreements freely negotiated and
(c) Adultery
with the advice of independent legal
Adultery is not a bar to relief but may be a counsel should, as a general rule, be
factor taken into consideration. respected. The parties to such an
agreement ought to be able to rely
(d) Separation
with some confidence upon its
Section 2(2) of WESA provides as follows: terms in ordering their affairs. The
notorious uncertainty surrounding
(2) Two persons cease being spouses
application of the Wills Variation
of each other for the purposes of Act tends to spawn protracted
this Act if, litigation. When spouses, through
(a) in the case of a marriage, an their lawyers, have been at pains to
event occurs that causes an reach a permanent settlement, it
interest in family property, would seem appropriate for a court,
as defined in Part 5 as well as the parties, to respect their
[Property Division] of the agreement in the absence of
Family Law Act, to arise, or compelling reasons to the contrary.
(b) in the case of a marriage-like
relationship, one or both
persons terminate the
relationship.

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(e) Desertion neglect of the children, and it may not
disentitle them to an award (Re Osland
Desertion by the plaintiff is generally
(1977), 1 E.T.R. 128 (B.C.S.C.) Re
considered to be conduct disentitling the
Magdell Estate, [1978] B.C.D. Civ.
plaintiff from relief under the WVA and
(S.C.)); and Rampling v. Nootebas (2003),
will likely continue to be so under WESA.
4 E.T.R. (3d) 86).
3. Actions by Children
While WESA is not intended as a means to
(a) Estrangement compensate for family abuse, where a
parent has treated a child unfairly, a
Adult children are not generally disentitled
judicious parent would recognize a moral
to relief under WESA by reason of the fact
obligation to make amends through
that they have been separated from the
provisions in his or her will and if not so
will-maker for an extended period of time
done, the court may vary the will to do so
and have never been financially dependent
(Doucette v. McInnes, 2009 BCCA 393).
on the will-maker. In Pattie v. Standal
Estate (1997), 20 E.T.R. (2d) 192, the son Children have been entitled to claim under the
had been three years old when his parents WVA when
separated, his mother had the right to apply
(i) the will-maker and her son were
for maintenance but never did, the son had
estranged because she disapproved of
no contact with the will-maker, his father,
his wife’s ethnic background (Lowres
from the age of seven when mother and
v. Lowres (1984), 17 E.T.R. 281
son moved to Alberta, he later changed his
(B.C.S.C.);
name, and he was an independent adult at
the time of the application to vary. The (ii) a will-maker transferred his
Supreme Court held that no special animosity toward his first wife to a
circumstances existed to displace the daughter of that marriage (Re Holt
parent’s moral obligation to provide for his (1978), 85 D.L.R. (3d) 543
child. However, in Hall v. Hall, 2011 (B.C.S.C.));
BCCA 354, the court found that a lengthy
(iii) a will-maker disinherited her son as a
and serial estrangement that was not the
result of unfounded suspicions as to
fault of the will-maker did not give rise to
his handling of his father’s estate in
a moral obligation to provide for the
his capacity as executor (Re Preston
estranged adult child.
Estate, [1974] B.C.D. Civ.); and
(b) Unhappy relationship with or neglect of
(iv) an alcoholic mother terminated
the will-maker
relations with her daughter when she
The court may consider the relationship refused to drink with her (Re Cater
between the will-maker and his or her Estate, [1976-77] B.C.D. Civ. (S.C.)).
children when determining the moral
(c) Misconduct
obligation. The will-maker’s neglect of a
child may be relevant in determining Only the most severe misconduct on the
whether a moral duty is owed to the child part of a child will disentitle that child
(Gray v. Nantel, 2002 BCCA 94). from the benefits of WESA. The character
or conduct subject to review is the
When the relationship between a
character or conduct of the child at the
will-maker and his or her children is an
time of the will-maker’s death (McBride v.
unhappy one, the children may be
Voth, 2010 BCSC 443).
disentitled to relief if their conduct has
been the cause of the breakdown in The following circumstances constituted
relations: for example, Bell v. Roy, supra. such misconduct under the WVA and
But see Re Harding, [1973] 6 W.W.R. 229 warranted disinheritance:
(B.C.S.C.) and Re Schurman (1965), 54
(i) a son provided no explanation of his
D.L.R. (2d) 77 (N.S.S.C.).
inability to save money (Dech v.
Even when the children are shown to have Ewan Estate, 2003 BCSC 1585);
neglected the will-maker for a number of
(ii) a son became belligerent towards the
years, such treatment must be considered
parents, culminating in the father
in the light of the will-maker’s previous
punching the son in the mouth and the

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son having no subsequent contact the courts in each jurisdiction depends on the
with his parents (Kelly v. Baker wording of the relevant legislation.
(1996), 15 E.T.R. 2(d) (B.C.C.A));
Regardless of the particular jurisdiction, however,
(iii) a daughter had sued the will-maker the task of fixing an appropriate amount is a very
after the death of her father in an discretionary matter involving consideration of a
attempt to deny the will-maker’s variety of circumstances.
inheritance of her husband’s estate
2. General Relevant Factors to Consider
(Gieni v. Richardson Estate, [1995]
B.C.J. No. 1227); (a) Application of Family Law Act
(iv) a daughter who was verbally abusive, In light of Tataryn, what the surviving
and who had effectively prevented spouse would have been entitled to, had
her two siblings from inheriting there been a separation rather than a death,
anything from their father’s estate by is probably relevant. In fact, Tataryn
using substantially all of the father’s probably goes further; what the surviving
estate to purchase a property in her spouse would have received on a
sole name (LeVierge v. Whieldon separation under the FLA is only a starting
Estate, 2010 1462); and point.
(v) a son was shiftless, moving from one (b) Will-maker’s estate
ill-fated business venture to the next
This factor takes on greatest significance
and having “a difficult time in
when the plaintiff is unable to show
fighting the battle of life” (Re
financial need.
Radcliffe (1977), 2 B.C.L.R. 220 at
222 (S.C.)). There are a number of “small estate” cases
involving the competing claims of the
The following circumstances did not constitute
will-maker’s widow and the adult children
such misconduct under the WVA to warrant
of that marriage or of a previous marriage
disinheritance:
of the will-maker. The tendency in such
(i) a daughter had separated from her cases is to award the whole of the estate to
husband and was living in a common law the widow.
relationship (Re Fornataro Estate,
A second category of “small estate” cases
[1976-77] B.C.D. Civ.-Test. Main.
involves the competing claims of a widow
(S.C.)); and
and a beneficiary who has an apparent
(ii) a daughter who was a disappointment moral claim on the will-maker but who
and who allegedly took objects from the was not a dependent within the meaning of
home of the will-maker (Sawchuk v. the WVA. When the widow is in financial
MacKenzie Estate (1998), 24 E.T.R. 2(d) need, she is generally awarded the whole
66 B.C.S.C.) appeal allowed as to of a small estate. This principle was
quantum 2000 BCCA 10). extended to widowers in Tweedale v.
Tweedale Estate (1995), 1 B.C.L.R. (3d)
[§19.07] Determination of Quantum 167 (C.A.), where Cumming J.A. applied
Tataryn, and stated that “. . . an adult
1. General
independent child is entitled to less
The court in Walker v. McDermott, [1931] S.C.R. 94 consideration where the size of the estate is
at 96 (B.C.) (per Duff J.) states: modest. And indeed, the estate in the case
at bar is extremely modest” (at 173).
If the court comes to the decision that
Cumming J.A. concludes that the wife did
adequate provision has not been made,
not make “adequate, just and equitable”
then the court must consider what
provision for her husband; consequently,
provision would be not only adequate,
the will should be varied to pass the entire
but just and equitable also.
estate to the husband.
This underscores an important feature of
(c) The size of the will-maker’s family
WESA—that is, the requirement that the provision be
just and equitable. Statements from other When there are a large number of
jurisdictions must be treated with caution; the role of claimants, the question of what constitutes
a “just and equitable” provision must be

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viewed in light of reality. Unless the estate tendency to examine the wishes and
is very large, it is clear that each claimant animosities of the will-maker to determine
would likely receive a smaller award than whether they were justified in the
if the will-maker had left just one or two circumstances. Thus, in Re Serra Estate,
dependents. [1978] B.C.D. Civ. (S.C.), the court
accorded little significance to the views of
(d) Length of marriage
the will-maker who was “European in his
While there is authority for the proposition outlook,” felt that “land ownership was for
that the fact that a widow was the second men,” and wanted the property to remain
wife or even the third wife of the in his family.
will-maker is irrelevant in determining her
(i) Cultural Practices
entitlement under the WVA, there are cases
that would qualify this broad principle. The wishes of the will-maker with respect
Small inter vivos contributions by the to the distribution of his or her estate must
will-maker to his wife have been held to be not fall short of the moral standards of
sufficient to discharge the duty when the Canadian society. For example, “a
marriage was short and unhappy or was tradition of leaving the lion’s share to the
one of convenience. sons [of a will-maker] may work agreeably
in other societies with other value systems
(e) The station in life of the will-maker and
that legitimize it, but in our society, such a
the applicants
disparity has no legitimate context. It is
The will-maker’s station in life and that of bound to be unfair, and it runs afoul of the
the applicants may be relevant to quantum. statute of this province” (Prakash v. Singh,
2006 BCSC 1545 at para. 59).
(f) Widow’s accustomed standard of living
The courts have also found that
In the case of a widow, the court in Re
“homosexuality is not a factor in today’s
Lawther Estate, [1947] 1 W.W.R. 577 at
society justifying a judicious parent
587 (Man. K.B.) held that quantum may be
disinheriting or limiting benefits to his
affected by “the kind of maintenance to
child.” (Peden v. Peden Estate, 2006
which she had been accustomed during the
BCSC 1713 at para. 55).
life of the testator, or to which she would
have been accustomed if her husband had (j) Omission or oversight of the will-maker
then done his duty to her.”
Evidence may show how the will-maker
(g) Gifts by the will-maker outside the will wished to provide for the plaintiff but
failed to perform his or her duty because of
In determining quantum, the court may
an omission or oversight, and this evidence
consider inter vivos benefits that the
may affect quantum.
will-maker has made to an applicant and
other beneficiaries or those that pass by the (k) Inter vivos gifts by the will-maker to
operation of law at time of death outside of applicants
the will, including assets held in joint
In determining quantum, the court will
tenancy and assets for which there is a
consider benefits that the will-maker had
beneficiary designated to receive them
bestowed on the plaintiff and other
upon death of the will-maker (See
beneficiaries in his or her lifetime, or at
DeLeeuw v. DeLeeuw, 2003 BCSC 1472
least within a few years of death (Re Worts
and Wilson v. Lougheed Estate, 2010
(1977), 3 B.C.L.R. 55 (S.C.)).
BCSC 1868).
By dissipating the estate during the
(h) Character and views of the will-maker
will-maker’s lifetime, a will-maker may
The question of the extent to which the limit the assets subject to WESA. However,
wishes of the will-maker should be the courts may set aside inter vivos
respected is perhaps the most difficult transfers (including to a trust) if the
problem faced by the courts in dealing transfer constituted a fraudulent
with actions under the WVA and now conveyance. Whether a transfer can be set
WESA. The courts often overlook entirely aside depends on whether a person falls
the manifest wishes of the will-maker. within the class of people contemplated by
Moreover, the courts have shown a the Fraudulent Conveyance Act, RSBC

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 136
1996, c 163 (“FCA”). It is clear that if the the court increased the widow’s share
only basis for setting aside a transfer is the when there were “no competing
right of a child to commence a proceeding claims”; the plaintiff alone fell within
to vary a will under WESA, that is not s. 2(1) of the WVA [now s. 60 of
sufficient to void the transfer (See Hossay WESA] (Klingstal v. Arend, [1980]
v. Newman, 5 C.B.R. (4th) 198, 1998 B.C.D. Civ. 4223-03 (S.C.)).
CanLII 15139 (B.C.S.C.)). When it comes
(ii) When the will-maker had left a
to a spouse attacking an inter vivos
portion of his estate to his nephew,
transfer, there are more considerations
the court found that the relationship
involved and such a transfer could be
between the will-maker and the
potentially set aside (see Mawdsley v.
nephew was “irrelevant” because the
Meshen, 2012 BCCA 91 for a more
nephew was, insofar as the WVA was
detailed discussion).
concerned, a stranger (Re Berger
(l) Competing moral claims on the bounty of (1978), 2 E.T.R. 275 (B.C.S.C.)).
the will-maker
However, this approach has been expressly
The moral claims of the various claimants rejected in other cases. For example:
may be considered in determining
(i) A bequest to the only daughter of the
quantum (See Re Allen, [1922] N.Z.L.R.
will-maker was increased only
218 at 220 (S.C.)):
marginally when the nieces and
The Act is . . . designed to enforce nephews of the will-maker were
the moral obligation of a testator to found to have had “some claims upon
use his testamentary powers for the the bounty of the will-maker” (Re Gill
purpose of making proper and Estate, [1941] 3 W.W.R. 888 at
adequate provision after his death 891-92 (B.C.S.C.)).
for the support of his wife and
(ii) The application of the sole surviving
children, having regard to his
daughter of the will-maker was
means, to the means and deserts of
dismissed when a bequest to a
the several claimants, and to the
grandson was found to be
relative urgency of the various
“appropriate”, given the close and
moral claims upon his bounty. The
happy nature of his relationship with
provision which the Court may
the will-maker (Re Reid Estate,
properly make in default of
[1974] B.C.D. Civ. (S.C.)).
testamentary provision is that which
a just and wise father would have The courts are more likely to refuse a
thought it his moral duty to make in plaintiff’s claim when the beneficiaries
the interests of his widow and under the will have contributed
children had he been fully aware of substantially to the acquisition of the
all the relevant circumstances. will-maker’s estate, or played a significant
role in maintaining or caring for the
The leading case in Canada, to the same
will-maker during his or her life.
effect, is Walker v. McDermott.
In Tataryn, the Supreme Court of Canada,
The cases are conflicting as to whether the
in commenting on the issue of competing
“moral claims” the court must consider are
claims and addressing the question of
restricted to those of persons enumerated
others (that is, individuals who have no
in s. 60 of WESA. Comments in Tataryn
status under the WVA, but who have some
certainly suggest that no such restriction is
sort of claim on the will-maker), suggested
warranted. The fact that there are no
that the court ought to take a much broader
competing claimants falling within the s.
view of a will-maker’s moral obligations.
60 enumeration has often been used to
justify an award to a plaintiff who might Hinds J.A. considered the moral duty of a
otherwise be expected to take very little. will-maker in Vielbig v. Waterland Estate
For example: (1995), 1 B.C.L.R. (3d) 76 (C.A.). Having
concluded that the will-maker had no legal
(i) When a will-maker had left a
obligation to the claimant, he noted that a
substantial portion of his estate to his
will-maker who directed an equal
brothers and sisters and to his niece,
distribution between children, none of

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 137
whom were disabled or dependent, would (r) Whether the plaintiff has or may have
demonstrate on a moral basis “prima facie dependents
compliance with the requirements of the
The plaintiff’s responsibility toward
Act” (at p. 85).
dependents may be a relevant factor in
(m) Relative needs of the claimants determining quantum.
“[T]he court must consider what provision (s) Health and mental capacity of the
would be not only adequate, but just and applicants
equitable also; and in exercising its
Quantum may be affected by the physical
judgment upon this . . . the situation of the
and mental health of the applicants,
others having claims upon the will-maker
including illness that was not made known
must be taken into account” (Walker v.
to the will-maker (Re Dunn Estate (1944),
McDermott, at 96).
60 B.C.R. 457 (S.C.)).
The relative needs of the various claimants
(t) Contributions by the plaintiff
are most significant when the estate is a
small one, incapable of providing With the declining emphasis on the need of
adequately for the needs of all of the the applicant under WESA, the relative
will-maker’s dependents. In the case of a contributions of claimants in building up
small estate, the burden is on the plaintiff the estate during the will-maker’s lifetime
to demonstrate “comparative need” (Re have become an increasingly important
Oxbury Estate, [1978] B.C.D. Civ. (S.C.)). factor in determining the quantum of the
award in recent cases. In Tataryn the
(n) Personal income of the applicants
Supreme Court of Canada held that the
The property and income of the applicants applicant’s contribution to the estate goes
may be relevant to quantum. to his or her legal claim to the estate. An
applicant’s contribution to the estate may
(o) Financial circumstances of beneficiaries’
affect the moral obligations owed by the
spouses
will-maker as well (Hammond v.
The financial circumstances of Hammond (1995), 7 E.T.R. (2d) 280
beneficiaries and their spouses are relevant (B.C.S.C) at para. 29).
(Jones v. Jones, [1985] B.C.D. Civ.
This development is most marked in the
4223-05 (C.A.)).
case of actions by healthy adult children.
(p) Possibility of change in existing
This emphasis on contribution to the estate
circumstances
is illustrated by the case of Harris v.
Substantial changes in circumstances of a Harris (1980), 21 B.C.L.R. 145 (S.C.),
claimant under WESA or a beneficiary where the adult son and daughter of the
under the will between the date of death of will-maker brought actions under the
the will-maker and the date of trial may be WVA. The son, who had contributed to the
taken into account when determining will-maker’s estate, was awarded $20,000;
quantum (Landy v. Landy (1991), 44 the daughter received just $10,000
E.T.R 1 (B.C.C.A)). although she had led a difficult life and
was in an unstable financial situation.
In considering possible future changes in
circumstances, the courts have held that Contribution also played a role in a
when the applicant demonstrated no successful counterclaim by one of three
present need, the court considered the adult child beneficiaries in Bellinger v.
applicant’s needs for the rest of her life, Nuyetten Estate (2002), 45 E.T.R. (2d) 10
including factors such as death, illness, maintaining, in her favour, an unequal
and loss of income (Frinskie v. Frinskie, division.
[1979] B.C.J. No. 51 (QL) (S.C.) and Re
Contribution is also significant in the case
Berger (1978) 2 E.T.R. 274 (B.C.S.C.)).
of actions by widows. When a wife had
(q) Future value of money and interest rates contributed substantially to the estate of
the will-maker and had at times been the
Factors in the economy, such as the future
family “breadwinner”, she was held to be
value of money and interest rates, may be
entitled to the whole of the estate (Gieni v.
relevant to quantum.
Romaniuk, [1980] B.C.D. Civ. 4223-04

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 138
(S.C.)). Even in the absence of financial
contribution, courts have considered work
as a homemaker “a contribution that far
exceeded the value of the estate”
(Davidson v. Allen (1976), 28 R.F.L. 74 at
76 (N.B.S.C.), and “care and attention” to
will-maker over a 12-year marriage in Re
Ferster Estate, [1974] B.C.D. Civ. (S.C.)).
Actions by widowers have also been
successful on the ground that the husband
was instrumental in the acquisition of the
deceased’s estate (Re Mould Estate,
[1976-77] B.C.D. Civ. (S.C.) and Re Yager
Estate, [1973] B.C.D. Civ. (S.C.)).
There are a number of cases in which
actions have been dismissed on the ground
that the beneficiaries under the will
contributed to the estate of the deceased,
even if the plaintiff is the only claimant
within the meaning of s. 2 of the WVA
(now s. 60 of WESA).
On an application by a widow, the will was
disturbed as little as possible when the
brothers and sisters of the will-maker had
contributed substantially to the building of
the estate (Re Phillips Estate, [1974]
B.C.D. Civ. (S.C.)). Petitions by the
daughters of a will-maker were dismissed
when the will-maker had properly
recognized an obligation to his grandson
arising from his contributions to the
deceased’s farming business (Re Dawson
(1945), 61 B.C.R. 481 (S.C.)).
A provision to an adult daughter was
increased only to a limited extent, in
recognition of the assistance given to the
will-maker by a friend who was the major
beneficiary under the will (Re Slater
Estate, [1976] B.C.D. Civ. (S.C.)). By
contrast, see Re Magdell Estate, [1978]
B.C.D. Civ. (S.C.), where adult children of
the will-maker, who were in comfortable
financial circumstances, received
provision out of the estate at the expense of
a friend of the will-maker who had worked
hard and spent money on the will-maker’s
property. Although the friend was
deserving, the court was influenced by the
fact that he was a “stranger.” He fell
outside the framework of the WVA.

Wills