Application of the - Cloud Storage — AWS-+Wills+CA… · Web viewYoung v Holloway) Legal Personal Rep ... = X does not get the new piano because T did not have that piano at time

Table of ContentsApplication of the WSA..................................................................................................................................4

Relationship w Other Acts (Dower, MPA).......................................................................................................4Dower and Homestead Succession...........................................................................................................................4Matrimonial Property Act (MPA)..............................................................................................................................5

Roles of the Court (QB)..................................................................................................................................5Probate = “What is the Will?”...................................................................................................................................6Court of Construction = “What does it mean?”.........................................................................................................6

Probate..........................................................................................................................................................7Grants......................................................................................................................................................................7

Grant of Probate...........................................................................................................................................................7Grant of Administration................................................................................................................................................8Different types of Grants:.............................................................................................................................................8Executors and Administrators......................................................................................................................................8

Application for Probate..........................................................................................................................................10Grants in Common Form:...........................................................................................................................................10Grants in Solemn Form:.............................................................................................................................................10

Intestate Succession.....................................................................................................................................11General..................................................................................................................................................................11Distribution on Intestacy (Interstate Succession)....................................................................................................11

Spouse or Partner.......................................................................................................................................................11Descendants (or issue)................................................................................................................................................12Ascendants and Collaterals.........................................................................................................................................13No Surviving Spouse or Dependents...........................................................................................................................14

Contracting out of Statute (WSA)............................................................................................................................14

Nature of Testamentary Dispositions...........................................................................................................15Nature of a Will......................................................................................................................................................15Contract to Make/Revoke Will................................................................................................................................16

Joint Will.....................................................................................................................................................................17Mutual Will.................................................................................................................................................................17

Incorporation by Reference....................................................................................................................................18Conditional Wills....................................................................................................................................................19Delegation of Testamentary Power.........................................................................................................................20Limits.....................................................................................................................................................................20

On the Power of Testation..........................................................................................................................................20On Distributing Parts of the Body...............................................................................................................................21

Formal Validity of Wills................................................................................................................................21General..................................................................................................................................................................21

General Requirements – s. 14 WSA:...........................................................................................................................21Signatures – ss. 14(b) and 19 WSA..............................................................................................................................21Witnesses to the Signature – s. 15, 20 and 21 WSA:...................................................................................................22

Formal Will.............................................................................................................................................................23Holographic Will.....................................................................................................................................................23Military Will...........................................................................................................................................................24Non-Compliant Will................................................................................................................................................24

Conflict of Laws............................................................................................................................................24General..................................................................................................................................................................24

Administration of Estates.......................................................................................................................................24Administration of Intestate Estate..............................................................................................................................25

Succession..............................................................................................................................................................25Intestate Succession...................................................................................................................................................25Testate Succession (WSA – s. 41)................................................................................................................................25

International Wills..................................................................................................................................................26

Testamentary Capacity, Undue Influence, Fraud and Mistake......................................................................26Contesting Onus.....................................................................................................................................................26Testamentary Capacity...........................................................................................................................................27

General Lack of Capacity – Disease, Congenital Defect, Advancing Age.....................................................................27Insane Delusions.........................................................................................................................................................28

Suspicious Circumstances.......................................................................................................................................28Undue Influence.....................................................................................................................................................29Fraud......................................................................................................................................................................29Mistake..................................................................................................................................................................29

Patent Mistake...........................................................................................................................................................30Execution of the Wrong Instrument...........................................................................................................................30Cases...........................................................................................................................................................................30

Alteration, Revocation and Revival (WSA ss. 22-25).....................................................................................31Revocation.............................................................................................................................................................31

Conditional Revocation...............................................................................................................................................31Making Another Will...................................................................................................................................................32Writing Revoking Will.................................................................................................................................................32Burning/Tearing/Destroying.......................................................................................................................................32

Lost Will.................................................................................................................................................................33Alteration...............................................................................................................................................................34Revival...................................................................................................................................................................34

Interpretation of Wills..................................................................................................................................35Statutory Rules.......................................................................................................................................................35

Definitions (WSA s. 1) and Remaining Interest (WSA s. 1, 10 and 21)........................................................................35Timing of Will (WSA s.27)...........................................................................................................................................36Survivorship (WSA s. 5)...............................................................................................................................................36WSA ss 29, 30, 33 and 34............................................................................................................................................36

Interpreting Words used by T.................................................................................................................................37Partial Intestacies...................................................................................................................................................37Principles of Construction.......................................................................................................................................37Rules of Construction.............................................................................................................................................38

Meaning of Certain Phrases/Terms:...........................................................................................................................38Gifts to 2+ Persons......................................................................................................................................................39Multiple Gifts..............................................................................................................................................................39Gift of “house and the contents therein”....................................................................................................................39Power of Selection......................................................................................................................................................39Inability to locate Ben.................................................................................................................................................39Options and Rights of First Refusal.............................................................................................................................39

Testamentary Gifts.......................................................................................................................................40Types of Testamentary Gift:....................................................................................................................................40

Specific........................................................................................................................................................................40General.......................................................................................................................................................................42Demonstrative............................................................................................................................................................43Residuary....................................................................................................................................................................43

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The hierarchy for paying debts...................................................................................................................................44Possession of Gift...................................................................................................................................................44

Appurtenances...........................................................................................................................................................45Lapse......................................................................................................................................................................45Advancement (WSA s. 109).....................................................................................................................................45Equitable Doctrine of Conversion...........................................................................................................................46

Effect of Statute (s 10, WSA).......................................................................................................................................46Effect of Republication...............................................................................................................................................47

Alberta Reversion of Equitable Presumptions: Election, Satisfaction and Rule against Double Portions...................47Denial of Benefits...................................................................................................................................................47

Maintenance & Support...............................................................................................................................48Temporary Occupation of Family Home (WSA s. 75- 79)..........................................................................................48Order for Maintenance/Support.............................................................................................................................49

General.......................................................................................................................................................................49Requirements:............................................................................................................................................................49Successful App............................................................................................................................................................52

Liability of Personal Representative........................................................................................................................52Role of Public Trustee (PT)......................................................................................................................................52

Solicitor’s Duties..........................................................................................................................................52Duty to Client (Taking Instructions for Will)............................................................................................................53Duty of Care Towards Beneficiaries........................................................................................................................54

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Application of the WSAs. 8 WSA applies to:

- Wills made on/after February 1, 2012- ss 26, 37 – 40 (“saving provisions”) apply to Will/writing/marking/oblit regardless of when Will was made, if

death was after February 1, 2012 o Old Act will normally apply to these Wills except when ss 26, 37-40 would apply o Ex: Will made in 1942, but T died in March 2012 any Will/marking/oblit/writing is treated under WSA

ss 26, 37-40 if applicable, rest of the Will falls under the old leg.

Relationship w Other Acts (Dower, MPA)

Dower and Homestead Succession “Homestead” = any privately owned residence that either of the spouses have lived in since the time of their marriage

- Do not have to live together- Do not have to stay long - In an Urban area, cannot be more than 4 lots – vs – Rural area = the home quarter

Dower ActThe rules in the Dower Act are an example of non-testamentary succession (not true possession rights, but life estates)

- s. 1(c) – “dower rights” = all rights given by this Act to the spouse of a married person in respect of the homestead, including:

o Right to prevent dispositions of the homestead by withholding consent (= must have dower consent for sale of land)

o Right of action for damages against the married person if a disposition occurs, resulting in the registration of title in the name of any other person, w/o the spouse’s consent

Can obtain payment from the General Revenue Fun of an unsatisfied judgment against the spouse for improper disposition w/o consent

Judgment quantum is large (50% of the sale of the homestead, OR 50% of the actual value of the homestead if sold for less than value)

o Right to life estate in the homestead of the deceased married person Can be multiple homesteads, BUT the surviving spouse only gets a life estate in one homestead

(he/she can choose which) If a spouse applies for adequate support and maintenance under the WSA, the Court can make it

a condition of the Order that the spouse give up their dower rightso Right of a life estate in the personal property of the deceased married person

So long as it is exempt from seizure under writ proceedings

Note: These provisions mean that any gift to a beneficiary other than the surviving spouse, is frustrated and delayed until the death of the surviving spouse

- s.1 (d) a “homestead” means a parcel of land on which there is a dwelling house occupied by the owner and that consists of:

o not more than 4 adjoining lots in one block in a city, ORo not more than one quarter section of rural land (the home quarter)

- Can be multiple homesteads if the owning spouse has lived in multiple properties which have remained in his name

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Related provisions from the WSA - s. 75 – Can make an application for temporary possession of the family home

o Either a spouse or a partnero Lasts for a period of 90 days commencing on the date of the death

- s. 72(a) – “family home” meanso A house of part of a house that is a self-contained dwelling unito Part of a business premises used as living accommodationo A mobile homeo A residential unito A suiteo Must have been occupied by the deceased and his or her spouse or partner at deatho Must have been wholly or in part owned or leased by the deceased but not by the spouse or partner

Note: Surviving spouse may have to CHOOSE btwn Dower and M/S Order

- s. 93 (c)(i) allows Courts to consider Dower Rights when deciding on M/S Order

Matrimonial Property Act (MPA)

MPA sets out WHO may make an application for division of matrimonial prop:- must be separate at time of death for surviving spouse to get a division - Hopp dislikes – but spouses can live in the same house and still be deemed to be living “separate and apart” by

the Court o Depends on circumstances o BUT to make an application, Spouse must be living separately from D when died

Note: NOTHING in MPA affects the right of a surviving spouse to make an app for M/S under s. 88 WSA- Right of applicant to division of matrimonial prop is something considered by court under s. 93

Roles of the Court (QB)Note: Appeals from QB acting as either Court (Probate or Construction) go to the CA

- A person is only bound by the decision in proceedings establishing a Will if he/she could have intervened and taken part in the proceeding

o i.e not knowing was named as Ben, even if in close proximity from a suit regarding the same Will would allow you to contest (Young v Holloway)

Legal Personal Rep = Executor and/or Administrator

Requirements to Act as Court (as Probate OR Construction):- Jurisdiction there must be PROOF that T had prop within the juris at time of death

o Leg and Court of AB have juris over prop located in AB- Proof of Death

o Burden = BOP (Re Kreutzweiser and Taylor; also Re Weinmeyer Estate is an example) o If presumed death, but cannot be confirmed, the interested ind must get an order from court allowing

applicant to swear that T is dead – then in subsequent app must swear T is dead Re Butterworth Estate – “presumed death” is not enough

o If time of death is important – onus is on ind interested in establishing time

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Probate = “What is the Will?”

Function of the court = to prove a Will (whether doc = T’s Will) - Questions:

o 1) is the document testamentary in nature ? Testamentary = take effect/in contemplation of death Note: must also be necessary (Re Blow – memo attached to Will was testamentary in nature but

giving possible options to executor wasn’t “necessary”) Rule: No doc will be admitted to probate (even if all requirements are met) if it has NO

purpose o 2) if Yes, should it be admitted to probate?

Needs purpose - Evidence considered:

o direct evi of T’s intentions i.e earlier Wills/codicils, drafts and solicitor notes

o Evi of surrounding circumstances known to T - Sometimes Probate has to interpret what is before it i.e in order to determine testamentary capacity

o BUT COC interpretation trumps Probates if they are different - Examples:

o A friendly letter can contain clauses that are testamentary in nature

Note: Probate will STRIKEOUT parts of Will (i.e in determining what IS the Will) - BUT even though Probate can technically “rectify” the provisions of the Will (bcse s. 39 just says “Court”) they

won’t add/delete words bcse of a Mistake (unless determining testamentary capacity) bcse it’s beyond their function of merely determining what the Will is.

- *remember – COC’s interpretation trump any interpretations done by Probate

If determining testamentary capacity Court of probate may strike out passages inserted by mistake (Re Morris), but cannot substitute (that is Court of Construction (COC)) UNLESS it is an issue of rectification (WSA s. 39)

- Where there is a Mistake, Probate can Rectify the mistake by adding or deleting words/provisions/characters (WSA s. 39)

o WSA – ss. 1(1)(d) (Definition of “Court), 26 (Interpretation and Evidence) and 39 (Rectification) s. 1(1)(d)

defines “Court” as Queen’s Bench (which includes both COC and Probate) s. 26

refers to the “Court’s” powers to hear evidence – includes evidence of meaning or words, phrases and provisions in the Will, include evidence of the T’s circumstances at the time of making the Will and the T’s intentions re matters in the Will

s. 39 allows the “Court” to rectify a Will by adding or deleting provisions/characters/words

when satisfied on clear and convincing evidence that Will does not reflect T’s intention due to:

o accidental slip, omission or misdescription, or o a misunderstanding or failure to give effect to T’s intentions by person who

prepared the Will

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Court of Construction = “What does it mean?”Function of the court = interpret T’s Will (that has been probated)

- *can also rectify a Will = crossing out or inserting words so that Will reflects T’s intention - Evidence considered:

o Old Rule may only consider the words of the Will and surrounding circumstances that T knew at time the Will was made

o Now under WSA s. 26 COC may consider direct evidence to interpret the Will WSA – ss. 1(1)(d) (Definition of “Court), 26 (Interpretation and Evidence) and 39 (Rectification)

Where there is a Mistake, can Rectify the mistake by adding or deleting words/provisions/characters (WSA s. 39)

WSA – ss. 1(1)(d) (Definition of “Court), 26 (Interpretation and Evidence) and 39 (Rectification) - s. 1(1)(d)

o defines “Court” as Queen’s Bench (which includes both COC and Probate) - s. 26

o refers to the “Court’s” powers to hear evidence – includes evidence of meaning or words, phrases and provisions in the Will, include evidence of the T’s circumstances at the time of making the Will and the T’s intentions re matters in the Will

- s. 39 o allows the “Court” to rectify a Will by adding or deleting provisions/characters/words when satisfied on

clear and convincing evidence that Will does not reflect T’s intention due to: accidental slip, omission or mis-description, or a misunderstanding or failure to give effect to T’s intentions by person who prepared the Will

Probate

Grants

If Courts get involved, they can provide the authority to administer the estate in three forms:1. Grant of Probate – used where T names executer through Will2. Grant of Administration w Will annexed – used if T failed to name an executor OR named an executor that died

or renounced before completing taska. Ind appointed has to admin estate in accordance w Will

3. Grant of Administration – used if the deceased died intestate

Grant of Probate A Grant of Probate is NOT required for every Will

- Because Executor gets power from Will rather then Grant – therefore executors have authority to deal w prop w/o obtaining Grant

- Examples of Grant not being needed:o Joint tenancy

H/W own all prop together as joint tenants (survivor would take via survivorship) Note: jointly owner (i.e bank account) is not the same as joint tenants

o Prop already in possession of ben i.e furniture in home shared w ben

o where estate is small financial institutions might recognize executor’s authority w/o requiring formal evidence of the authority (Grant)

Note: often Bank will get agreement that if there is an issue re the funds, the person obtaining them will pay bank the bank

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Court CAN still protect Bens where no Grant of Probate has been obtained- Court has power to remove executors who misuse authority - Note: no action can be commenced against executor w/o grant of probate UNLESS court appoints a litigation rep

on app (prevented by Rules of Court - *although loose – might be able to sue and retroactively get lit rep appointed)

Purpose of Grant of Probate = evidence of authority of executors, but not source.

Grant of Administration(Surrogate Rules of AB Court) – unless on application, the Court CANNOT have grants of admin to more then 3 ppl at the same time.

- Note: Grants of Probate are unlimited

Different types of Grants:Section 10 Surrogate Rules of Court (not exhaustive):

a) Grants that are unlimited and unrestricted (apply to all of T’s prop):a. Probateb. Admin w Will annexed c. Admin d. Supplemental

i. = for special things admin can’t look after (appoints someone else) i.e farm/businesse. Double Probate

i. = Will names 2+ personal reps, but 1+ don’t apply for Grant (and didn’t renounce appointment) and others do – those applying get Grant and then those who didn’t can apply later

b) Grants that are limited to part of D’s prop:a. Admin of administered prop

i. i.e T has famr that has to be tendered to immediately while other parts of the estate wait b. Re-seal Probate re prop in AB

i. Note: “re-seal” = sealing previously granted grant in each of Juris T had prop in (order made in one and approved/made in others) – only ind who obtained original Grant can apply

c. Re-seal Admin re prop in ABd. Admin limited to specific prope. Admin of prop not in another grant f. Ancillary

c) Grants that are for a limited time (= cessate Grant – when time complete/condition reached Grant no longer has effect)

a. Admin until Will is found i. Grant most likely has clause for what happens if Will not found within period of time

b. Admin during minority, absence or mental incompetence of personal repd) Grants that are for limited purpose (= Grant of admin during period of conflict)

a. Admin when the validity of Will is in Q b. Admin for the purpose of litigation c. Admin for preservation of propertyd. Admin limited to a specific matter

Point of all of these = to ensure that estates are administered - Court’s power also cannot be limited to just these because they need to be able to adapt to something unique

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Executors and Administrators Executor Normally court cannot refuse an appointed executor UNLESS conflicts of interest (maybe) or legal disability:

o mental incapacityo infancyo person named caused T’s death (unless self-defense, temporary insanity or automatism)) o Note: in ON insolvency might disqualify

- Court’s role = basically rubber-stampingo T picked him so court has to give deference to that (Re Agnew)

Note: Executor de Son Tort = person w/o authority of personal rep who intermeddles w estate anyways (taking upon himself functions of executor)

- Obligations BUT NOT rights of a personal rep - May be sued by ben, creditor or any other person harmed by actions (vs Administrator/Executor who would be

protected)

Administrator Court has discretion to choose btwn competing applicants when: 1) no executor is named in a Will, 2) the executor named is unwilling or unable to act, OR 3) the deceased died intestate

- Court may consider the person’s ability to properly exercise his duties o i.e Re Androws

Facts: Ind died intestate. 3 apps were made for grant of administration: one by D’s largest creditor, one by a small creditor and one by Public Trustee

o i.e Muttart Estate when deciding btwn applicants w equal degree of kinship – Qs to ask:

Does either have a personal interest that would conflict w duty? Which as the greatest interest i.e the support of the legatees entitled to the greatest

proportion of the estate? Should application of non-resident be granted over app by someone within the juris? Are they capable of the proper admin of the estate? Which is older? Who applied first?

- A creditor is entitled to administration only in order to realize his claim, and only failing any other representative w/o personal interest that could conflict w his duty to administer the estate

Administrator vs Executor - Administrator has NO power W/O Grant of Administration

o Power comes from the Grant and nothing else o Need Grant from the province commencing action/ administering proper

i.e McAfee Estate v Carrier Facts: Administrator obtained Grant in ON, then commenced and action in AB w/o

having Grant resealed in AB Court: Action was commenced w/o authority. Need Grant in AB.

Note: if Admin had been sued in AB, could file a defense saying is not the Admin in AB because no Grant.

- Executor HAS POWER w/o Granto Gets power from within the Will

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o Doesn’t always have to get Grant of Probate i.e can initiate an action w/o applying for Probate first (Chetty v Chetty) BUT cannot get a decree before probate

Application for Probate

When making an app for probate, the executor MUST ESTABLISH that:1. The T met the age requirement to make a Will,

a. (AB = 18, unless married, military or authorized by court under s. 30 – WSA s. 13) i. WSA – s. 30 allows the court to authorize certain minors to make/alter/revoke a Will if satisfied

that the person understands the nature of the act, that it reflects their intention, and it is reasonable to make the order.

2. The Will was executed in accordance w statute and was not revoked,3. The Will was not effected by mistake,4. The T had testamentary capacity.

Contesting: If probate is contested, those opposing may allege that the Will fails on one or more of the above, but they do not have to prove their allegation (ONUS on proponent of Will)

- An individual contesting probate may also allege:o Undue influence, or o Fraud o Note: the individual alleging does have the ONUS of establishing these allegations.

- Anyone with an interest can challenge the validity of a Will – usually this is done by filing a CAVEAT o “caveat” = doc which informs ppl that someone is challenging the validity of the Will & for what reasons o One of purposes of caveat = allow a reasonable time for investigation

Has effect of putting the estate in “holding pattern” Usually lasts 3 mths or until removed

o Once investigation has taken place – ind filing the caveat should proceed w this claim or discharge the caveat

Court may order costs if does not- *for more on caveat see handout w ss 11-18 if the Administration of Estates Act

Presumption that T knew and approved of contents once the proponents prove that the Will was properly executed

Age Requirement ( WSA – ss. 13 and 30) - s. 13 – AB = 18, unless:

o married, o military, or o authorized by court under s. 30

- s. 30 – allows the court to authorize certain minors to make/alter/revoke a Will if satisfied:o that the person understands the nature of the act, o that it reflects their intention, ando it is reasonable to make the order.

Grants in Common Form: =proponent of Will applies for Grant of Probate and tries to prove the Will – the Court decides where or not to Grant

- Court’s decision is NOT binding o Appealable to the CA

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o Can be challenged by interested parities

Grants in Solemn Form: = proponent of Will applies for Grant of Probate and all interested parties are given notice of the application

- Will is proven/disproven in a trial-like setting - All interested parties can provide evidence - Court’s decision IS BINDING on all parties that we given notice (cannot be appealed)

o Can ONLY be challenged if the challenging party was NOT given notice

Treated like stages:- First = Grant in Common Form (no challenge is being made)

o Once clear there will be a challenge, second step- Second = legal personal rep (same as submitted common form) submits Grant in Solemn Form

o *note can submit a Grant in Solemn Form from beginning if know will be a challenge

Intestate SuccessionGeneral A person who dies without leaving a valid will disposing of the deceased’s estate dies “intestate” (s. 58 defines)

- COMPLETE or INCOMPLETE INTESTACY o COMPLETE = all assets disposed by intestacy o INCOMPLETE = only some assets disposed of intestacy

Occurs when a person fails to dispose of entire estate either intentionally, inadvertently or because residuary gifts of the will are void

= the person dies “partially intestate” In these circumstances the Will governs distribution to the extent that it is valid and

effective, and statute governs the remaining.

All jurisdictions have abolished the CL concepts of dower and curtesy Dower still a think under MPA and AIP

Distribution on Intestacy (Interstate Succession)

Spouse or Partner AB allows a spouse/AIP of the interstate to share in the estate.

- Wills and Succession Act incorporates the definition of AIP’s into the definition of spouses. The definition of AIP’s is taken from s.1(1)(a) of the Adult Interdependent Relationships Act SA 2002, c A 4.5.

o Whether an individual is an AIP entitled to to share on D’s intestacy is fact specific, including if [Nelson v Balachandran, 2015 ABCA]:

They lived together for more than 3 yrs; the D was listed on the person’s health benefits plan and received financial benefits under it;

and the parties designated each other as beneficiaries under their RRSPs.

A) NO Descendants = entirety of estate ( WSA 60 ) When the interstate is not survived by dependents the entire estate goes to the surviving spouse, CL partner or both (s. 60 WSA)

- s. 61(1)(a) WSA if there are descendants but they are also the descendants of the surviving spouse/CL partner, the entire estate foes to the surviving spouse/CL partner.

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B) AND Descendants = S/AIP get entirety of estate (if child of union) (WSA s 61(1)(a)) OR S/AIP gets prescribed amount or 50% of net value of estate w residual split equally among children (if some children not of union) (WSA s 61(1)(b))

Preferential Share Where the interstate is survived by a spouse/partner as well as descendants, if the net value of the estate is less than the amount of the preferential share, the surviving spouse is entitled to the entire estate

- Preferential Share = if the descendants are not all the descendants of the surviving spouse or AIP, the surviving spouse/AIP receive the greater of the preferential share of $150,000 or 50% of the estate (WSA, s 61(1)(b)(i) and Alta Reg 217/2011).

Distributive Share In AB the surviving spouse/AIP receives the greater of the prescribed amount ($150,000) or 50% of the estate (WSA, s 61(1)(b)(i) and Alta Reg 21/2011).

C) Spouse AND Partner = estate split btw S and AIP (if no descendants) (WSA 62(b)) OR S/AIP split the prescribed amount or 50% (if descendants) (WSA 62(a))

If the interstate is survived by both a spouse and a AIP, each receives one-half of the preferential share or 50% of the estate if the intestate left descendants who are not descendants of the spouse or the AIP. If the intestate is not survived by descendants, the spouse and the AIP each receive one-half of the estate (WSA, s 62)

Under homestead legislation, a surviving spouse is entitled to a life estate on the homestead (Dower Act, RSA 2000, D-15; WSA s 2).

- Orders for division of assets or for exclusive possession of the matrimonial home in favor of one spouse under family law legislation take precedence over the rights of the beneficiaries of the deceased’s estate (Matrimonial Property Act, RSA 2000, c. M-8, s 190-1).

Note: Spousal Disentitlement WSA, s 63 – Spouse is NOT entitled to share in the deceased’s intestacy if:

1. They were living separate and apart for 2 yrs2. There was a judicial order of irreconcilability 3. There was an agreement to finalize independence after break-up

Relationship btwn s. 58(1)(b) & s 61(1)(b)(i) WSA s. 58(1)(b) – “net value of intestate estate” = total value of all prop in all juris

s. 61(1)(b) – Where ind dies leaving spouse and 1+ descendants, if any of the descendants are NOT descendants of the surviving spouse/partner

i) the spouse is entitled to the greater of the prescribed amount, or 50% of the net value of the intestate estate

Example: Ind left 200,000 in other Provs; 100,000 in AB = spouse gets the 100,000 in AB

Descendants (or issue)After the surviving spouse’s shares have been paid, the interstate’s descendants (or issue) are entitled to the balance of the estate.

- Statues treat children conceived before but born after death as though they were born before death and therefore entitled to inherit. (WSA, s 58(2))

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Division amongst descendants Per stirpes division, only if the descendants are of different degrees. If the descendants are all of equal degrees then per capita division. (WSA, ss. 65-66).

- Steps for per capita division :1. Identify the issue in the nearest degree who survived the deceased;2. Divide the estate into as many shares as there are living issue in the nearest degree and issue of the nearest

degree who predeceased the intestate but left issue who survived her; and 3. Give a share to each of the living issue of the nearest degree and divide a share among the issue of that

degree who predecease the deceased as if the latter had died intestate.

[Note: This means that a descendant can only share in the intestate’s estate if the descendant’s ancestor did not survive the intestate i.e for a grandchild to share in the grandmothers intestacy, the child of the grandmother must be deceased, otherwise the share would go to them. Even the case where the child is otherwise disqualified for killing the grandmother (Re DWS, 2001 All ER)]

Example: 1) At the time of I’s death, his child A is alive, as are his grandchildren from his child B (D and E) and his grandchildren from his child C (F, G and H). (Per stirpes)

- In dividing the estate, the balance is first divided for I’s children (into 3). A receives 1/3. The shares that would go to B and C if they were alive are divided amongst their children. B’s 1/3 is divided into 1/6 each for D and E, and C’s 1/3 is divided into 1/9 each for F, G and H.

2) If A had also predeceased I. The estate would be divided equally amongst the grandchildren (D, E, F, G and H) at 1/5 each. (Per capita).

Ascendants and Collaterals If the intestate is not survived by a S or descendants (DSN) other blood relatives (ascendants and collaterals) become entitled to inherit the estate. Entitlement depends on how close their relationship was to the intestate.

- Ascendants (ASN) = direct ancestors of the intestate - Collaterals (COL) = descendants of the ASNs other than the intestate and his DSN

Note: If no descendants or S the estate goes to the descendant’s of the intestates parents (siblings) – if none, then to intestates grandparents, etc.

Distribution among ASN and COL is done through the PARENTELIC SCHEME - The parentelic scheme ensures that a close relative will be considered over a remote relative and includes both

sides of the intestate’s family. This is because the leg. requires that the line of the closest common ancestor be exhausted before moving to remote relatives.

Note: s. 67(2) states that people of the 5 th degree or greater are deemed to have predeceased the intestate and any part of the estate that would have went to them must be distribute to a closer relationship, if any.

Parentelic Distribution under the WSA

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Note: counting “degree” - count up from the deceased to the relative he/she has w the claimant; then, count back down from that number to the claimant. Whichever claimant has the lower number is entitled to the estate

- Example: The deceased and claimant one have a great-grandmother in common- so the number is 6. The deceased’s great-grandfather and claimant two’s grandfather are the same person. The number is 5. Claimant two gets the estate.

No Surviving Spouse or Dependents Section 67, WSASection 67 lists how the estate is to be divided when an intestate leaves behind no surviving spouse or descendants.

a) equal shares go to the parents of the intestate, or the entire estate goes to the surviving parent if there is only one

b) (b) if there is no surviving parents, the intestate’s estate goes to the descendants of the parents (siblings, nieces, nephews, etc.)

c) (c) if there is no surviving descendant of the parents, the estate goes to one or more surviving grandparents or descendants of the grandparents (grandparents, aunts, uncles, cousins)

(i) half the intestate estate goes in equal shares to the surviving grandparents or their descendants on one side(ii) half the intestate estate foes in equal shares to the surviving grandparents or their descendants on the other side

i. Unless there is only surviving grandparents or their descendants on one side in which case that side gets the entire estate

d) (d) if none of the above, the intestate estate goes to any surviving great-grandparents or their descendants(i) half the intestate estate goes in equal shares to the surviving great-grandparents or their descendants on one parent’s side(ii) half the intestate estate goes in equal shares to the surviving great-grandparents or their descendants on the other parent’s side

i. Unless only one side has surviving great-grandparents or their descendants, in which case that side gets the entire estate

Unclaimed Personal Property and Vested Property Act If an intestate dies w no heirs, the Unclaimed Personal Property and Vested Property Act applies to the intestate estate – but individuals who are of the 5th or greater degree are still able to make claims to the estate under Part 6.

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Contracting out of Statute (WSA)Can a separated wife contract out of the intestacy legislation?

- Yes, but the K is read very narrowly It needs to clearly and unambiguously apply to intestacy - Re Winter the court decides that in the circumstances that it only means alimony, etc. and things done

between spouses going through a separation or a divorce. So claim for estate was upheld.- Note: Hyman v Hyman found this was not against public policy.

Nature of Testamentary Dispositions Nature of a Will

Will as an “instrument”- A Will includes all of the T’s valid testamentary instruments that remain unrevoked at the time of death - Although there can be only 1 Will it can contain several instruments

o i.e the Will, a codicil and any docs incorporated by reference

Disposes of T’s Property - Will should dispose of some property (not necessarily the T’s) but it may also deal with:

o the appointment of a personal representative, o the appointment of a guardian,o and the exercised of a power of appointment.

- If the Will only deals with other matters it is not valid. o i.e burial of the T, because executors control over this matter is contained in Statuteo i.e direction concerning conduct of a beneficiary, or their religious upbringing, is only effective if the gift

is conditional - i.e a testamentary instrument which merely appoints an executor = a will; however, a doc which merely

appoints a guardian is NOT entitled to probate- i.e a doc that revokes an existing will but does not contain any dispositive provisions and does not appoint an

executor is NOT entitled to probate - i.e a doc which appoints a executor, but the included dispositions are deemed invalid, executor still has power to

administer estate, but cannot follow the distribution set out in the Will.

Only takes effect upon death - T retains full control of prop while living, and may dispose of it how he chooses (even differing from the Will)

while alive - If the T directs that the instrument will take effect some time after his death, then doc is not a Will UNLESS

language demonstrates a mere postponement of possession- Beneficiaries only have a “hope of succeeding” (spes succesionis or expectancy) until such a time as the T

actually passes

Will = instrument which disposes of the testator’s property, that is:o only taking effect upon the testator’s death;o is revocable until the testator’s death;o is made amnio testandi (= the intention of making a will); ANDo is executed in accordance w specified formalities (s. 14- 20 WSA)

Court may validate a non-compliant Will if clear/convincing evi that writing (s. 27 WSA):

Sets out testamentary intention of T, and Was intended by T to be his Will or a revocation of Will

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Revocable until death - Until T’s death the doc is ambulatory (=revocable (in this context)) - T can revoke the Will and make another, or W can revoke the Will in part by altering it - An instrument claiming it is irrevocable is not a Will

Made “amnio testandi” = testamentary intention- T must have intended to give upon death

o This is not so if they were: Induced by undue influence, fraud or duress; If the T lacks the required mental capacity; If the language is merely precatory;

i.e “I hope that X gets….” If the doc is merely preparatory (stm of intention to make a future Will);

i.e “If I plan to see a lawyer, then this is the set of instructions to give…” HOWEVER – if this doc is properly executed and it can be proved that it was intended to

have effect until the formal doc was made, it will be given affect- s. 26 WSA (re interpretation of a Will) = court may consider:

a) evidence as to the meaning of the words/phrases in the Will b) evidence as to the meaning of provisions of the Will in the T’s circumstances, at the time of making

the Will (surrounding circumstances may be considered when the intention of the T is not clear)

o Purpose of s.26 = to allow the court to consider everything relevant to the T in saying what he did - Note: ** if intention is present, it doesn’t matter if the testator intended to make a Will itself, all that matter is

the demonstrated intention to give on his/her death

Executed in Accordance w WSA- s. 13 = who can make Will- s. 14-21 = how to make Will - s. 37 = court may validate a non-compliant Will

Contract to Make/Revoke WillGeneral

- T can make/revoke any Will – however, there can be consequences if he doesn’t make a Will/revokes all/part of a Will (that there was an agreement about)

o This is because a contract, if otherwise valid, is not affected by the revocation of a Will the contract will be enforced outside the Will

o i.e Mutual Wills agreement to make & agreement not to revoke w/o reasonable notice to the other

- In cases where the T has deviated from the contract and given a 3 rd party the property, the 3rd party = “volunteer” – because no consideration was exchanged for the prop (unlike the other party to the contract)

o 3rd party’s rights come second to (are subject to) the rights of the party to the contracto Note: ** if the 3rd party has given consideration, the party to the contract only has a claim against the

estate

Remedy Proprietary Estoppel - Proprietary estoppel can be relied upon by an individual who was promised all or part of an estate and has acted

to his/her detriment in reliance on that promise - Requirements:

o P must believe the promise o T must have made, or encouraged the belief

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o P must have acted to their detriment o In reliance on or as a result of the belief

Frye v Frye Estate ONCA: The executors could not transfer the shares to the sister because of the shareholder agreement, but the gift itself was not void.

Synge v Synge Facts: H promised to leave life estate to W, if she married him. She did however, H did not leave her the life estate. Court found a valid contract – the rights of the 3rd party (given life estate by H) were subject to W’s rights to that property

Re BashamFacts: P assisted T in business for years w/o remuneration. P and husband thought about moving several times, but stayed because T led them to believe that they would get the estate when he passed. When he died P claimed the estate. Court: found that P met all of the requirements of doctrine of proprietary estoppel:

1) She believed at all material times that she would receive the estate 2) T encouraged this belief 3) P acted to her determinant 4) The acts done by P were done in reliance on or as a result of her belief.

Agreement to Make / Agreement to Revoke - If there is a general agreement btw parties (i.e spouses) that both will leave to each other and survivor will leave

to the children the survivor has the right to change their Will after the death of the other, so long as there was not also an agreement not to revoke.

- Agreement Not to Revoke = agreement not to revoke w/o giving “reasonable” notice to other party o idea that are giving them reasonable time to change their Will

i.e notice can be telling other party, or party learning upon other’s death that had made new will o Note: informing someone who no longer has capacity does not qualify o Gift in a new Will which is contrary to an agreement not to revoke can be taken away because the bens

are volunteers (gave nothing or the gift) Volunteers always take subject to prior equities

- Mutual Wills require both: 1) an agreement to make a Will, and 2) an agreement not to revoke - The agreement must be proven from either the Will itself or extrinsic evidence

o Practice Note: Hopp recommends signing a contract either in the Will or separately stating agreement to make/agreement not to revoke

Joint WillJoint Will = single testamentary instrument signed by 2+ parties, which disposes of their property on their respective deaths

- No requirement to have agreement not to revoke, but Court will NOT give significance unless do - Apply only to property owned by the parties up to the death of the 1st party

o Does not affect property acquired after

Mutual Will Mutual Will = 2+ persons making separate Wills that are similar in terms – as a result of an agreement to 1) make the Wills, AND 2) not to revoke them

- The Wills can be “mirror” Wills, but they do not have to be

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- Typically involves parties agreeing to make the Will and not revoke it, where they give to each other, with the remainder going to a 3rd party, or if the other does not survive, the prop will go to the third party

- Note: cannot give “reasonable notice” of revocation if one party is dead/ has lost capacity - Example of enforcing:

o Assuming Will was made pursuant to agreement to make and agreement not to revoke, a 3 rd party who is allocated the remainder (as part of the agreement) will be able to enforce the agreement

The court will raise a constructive trust in favor of the 3rd party to enforce

University of Manitoba v Sanderson Estate Facts: H and W made mutal wills. W died w/o changing hers. Most of prop jointly owned. H changed his will after W’s death.

- UofM was ben under original Will.- H argued that because he didn’t benefit from W’s Will (because prop joint owned) he wasn’t bound

Court: Doesn’t matter whether the party actually benefits. All that matters is that an agreement was made, therefore must abide by it. [= H not allowed to change agreed upon beneficiary under 1st will because unable to give notice to deceased W that was revoking (as she had died w/o revoking hers)]

Divorce in AB = Revocation of Gift - WSA includes provision that on divorce, any to AIP or Spouse is revoked UNLESS contrary intention by T

o i.e Re Brechin T left residue of estate to W. In his Will he specifically named her by name. After making will, T became incompetent. W divorced him and remarried. Where T has a definite person in mind, that person will take even if circumstances have changed (different if had just said W) (Note: this is not in the context of a mutual Will)

- Does divorce still reverse gift btwn ex-spouses if gift was made in a Mutual Will? (w agreement NOT to revoke w/o notice)

o Arguable One Side:

Divorce = notice to revoke therefore spouse can change Will/revoke w/o repercussions Other Side:

Mutual Will/ agreement not to revoke = a contract separate from WSA o Agreement not to revoke should satisfy the “unless contrary intention”

requirement of s. 25 – keeping the gift to the spouse Making a Mutual Will now (when WSA and divorce provision has been in place for 5+

yrs) = acceptance that agreement not to revoke = contrary intention agreement not to revoke trumps divorce

Note: Under WSA, divorce = revocation of the gifts to ex-spouse NOT a revocation of the Will

itself o However, also note – Mutual Will typically leaves everything to spouse w

remainder to 3rd party. Revoking gift to ex-spouse is essentially revoking Will – but not technically/officially

*likely to be very circumstance dependant: i.e H makes new Will after divorce gifting to ex-W. Does this equal a “contrary

intention”? Questions:

Is survivor entitled to make claim against ex-spouses estate? Does Divorce = notice of intention to revoke?

o If divorce = notice of revocation, does not actually revoke = contrary intention? Does revoking matter or only notice?

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Incorporation by Reference Incorporation by reference = doctrine where existing, unattested docs can be incorporated into a Will

- Requirements:o The unattested doc must be in existence at time the Will is executed (made)

The Will must refer to the doc as an existing doc (= cannot refer to a future doc or a doc subject to change in the future) Note: codicil = way around – brings Will up to date of codicil

o The Will must describe the doc with sufficient certainty so that is can be identified (only parole evidence is admissible to identify the doc – evidence of the T’s intention is not

admissible unless there is more than one doc that could be it) o Intention to incorporate

- Onus on those seeking incorporation - Note: if Will is a Holographic Will problems arise where the doc incorporated by reference is not wholly in T’s

writing - Problem spot = requirement #1– that the doc be in existence at the time Will is created

o Doctrine of Republication may assist If doc is re-executed as is or a later codicil is executed at which point the doc is in existence – the

doc CAN be incorporated bcse codicil’s update the execution date of the Will to the date of the codicil

In The Goods of Smart Facts: in T’s Will T used language indicating that doc would be a future do. Doc came into existence later. Court found there was no valid incorporation by reference because the doc did not exist when the Will was executed.

- Even if there had not been parole evidence indicating when the doc was made, language of future existence is enough to invalidate incorporation

Conditional Wills General:

- Condition Precedent = condition that renders a disposition ineffective UNLESS the stated event occurs/does not occur

- Condition Subsequent = condition that renders a disposition void upon a stated event - The Will itself may also be revoked upon a specified condition, or conditional in the sense that it is not effective

until a stated situation (Will subject to a condition precedent) - Many expressions make a Will prima facie conditional, but the courts choose to construe them as merely

showing a motive for making the Will, such that the Will will not be held as conditional. o Occurs where ambiguity re whether T meant to refer to an event as his reason for making a will, or as

limiting the operation of the Will o If T clearly identifies that the Will is only to take effect in the occurrence/lack there of, of a specified

event = conditional o If T says that was led to make the Will by XYZ it is NOT conditional o If it is unclear which, look to the language of the whole doc and surrounding circumstances

ExampleProvision of Will: “To A on condition that the land continues to be used for farming, failing which to B”

- A = condition subsequent (farming) o A gets land immediately, but may lose it if he ceases farming. (A’s rights are subject to CS)

- B = condition precedent (A failing to farm) o B does not acquire any rights (at all) on T’s death. B only gets rights if A ceases to use the land for

farming. (B’s rights are subject to CP)

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Parsons v Lanoe T intended to go to Ireland, before leaving he made a Will re if died before returning, etc. T died after returning, the Court did not enforce the Will. *Note: Hopp disagrees with this reasoning – perhaps language was very strong (we don’t know), but seems more likely that would be as above, where trip was merely catalyst for making Will.

Re Govier Facts: T and W made joint will stating that if they died, their estate would be disposed of in this way. Will did not provide for what would happen if one survived the other. W survived T. Court: considered surrounding circumstances (in WWII – evidence showing that based on idea may die together in bombing) and found that Will was conditional. Evidence of the circumstances in which the Will was made was admissible to determine the intention of the parties re the gift

Note: relates to s. 26 WSA o “A Will must be interpreted in a manner that gives effect to the intent of the testator…. Court may

consider: Evidence of the meaning of words/ phrases; evidence to meaning of provisions; evidence of the

T’s intent

Re Huebner (affirmed by SCC)Facts: T made holographic Will before trip to USSR. Will stated: “In the event of my death (on this trip) ….”. A month after returning from the trip, T died. Court found that the language “on this trip” = occasion for making the Will, rather than a condition

Delegation of Testamentary Power You CAN:

1) delegate your testamentary power, and/or 2) give someone else the right to dispose of your property after you die as he/she sees fit

Section 1 (1)(k)(ii)(c) WSA:- “writing on the death of the T confers or exercises a power of appointment

o General Power of Appointment = power to distribute T’s property to anyone named, including appointer himself

(basically = ownerships – so allows for disposal) o Special Power of Appointment = power to distribute T’s property to a specified/ described person/class

of people which may include the distributor o Hybrid Power of Appointment = power to distribute to anyone except named persons/class of people

Re Nicholls = permissible to allow unfettered discretion for disposition of T’s property through power of appointment, even to the appointee him/herself

Limits On the Power of Testation Court may invalidate a bequest if 2 conditions are satisfied:

1) If the safety, economic or social well-being of the state and its people as a whole are jeopardized; AND 2) If the harm to the public is incontestable

McCorkill v McCorkill Estate

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Facts: T left his entire estate to his executors in trust, to pay the net amount to the National Alliance. His sister brought an application declaring the disposition void because the National Alliance was a neo-nazi white supremacist group that promotes genocide, ethnic cleansing, etc. Court: found that allowing the disposition was contrary to public policy. The court defined public policy = the interests of society as expressed in the morals of the time, the CL and legislation. And rested on the premise that the organization violated the hate speech provisions of the criminal code, and to allow a violation of the criminal code was contrary to public policy.

On Distributing Parts of the Body Not possible to have property in a corpse therefore directions in a Will re T’s remains are not legally binding. The executor has the right to determine the place and manner of the burial.

Formal Validity of Wills General

General Requirements – s. 14 WSA : 1) Must be made in writing;2) Must contain a signature of the T that makes it apparent on its face, that the T intended, by signing, to give

effect to the writing as the T’s will; AND3) Must be made in accordance with

1) s. 15 (Formal Will) 2) s. 16 (Holographic Will)3) s. 17 (Military Will)

NOTES:- “in writing” doesn’t = words only. Symbols and shorthand’s are allowed. - No requirement that the Will be on paper i.e napkin, truck fender, etc. are all acceptable - UNCLEAR whether Electronic Wills would be considered valid – could apply signing principles from contract law

but issues of W’s, etc. o Little case law and no statutory provisions

Signatures – ss. 14(b) and 19 WSA (Note: does not apply to holographic Wills)s. 14(b) - Must contain a signature of the T that makes it apparent on its face, that the T intended, by signing, to give effect to the writing as the T’s will

- Notes:o Signature = whatever T intends it to be (i.e mark, full name, initial, etc.) o Party can change mind re what want signature to be while writing it

Re Chalcraft Facts: W dying, begins signing draft Will. Dies before completing signature. Court upheld the signature. Signature = whatever T intended it to be.

s. 19 – Signature:a) T may authorize another to sign on his behalf, at T’s direction and in T’s presence. b) A Will with NOT be found invalid simply because the signature is not at the end of the Will – so long as it is clear

that the T intended to give effect to the Will c) T presumed not to have intended to give effect to writing before signature d) T’s signature doesn’t give effect to any disposition/direction added after Will was made

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Re Hornby Faces: T died w holograph Will written on one side of paper. 2 W’s signed at bottom but no room for T so T signed on side in box. Court: signature was valid

NOTES:- Person authorized to sign on behalf of T can sign with their own name - Person signing on behalf of T CANNOT be a W (s. 20(2))- No requirement re what the T sign i.e can be initials, can be full name, etc. - Courts have found signatures valid where they were on separate pieces of paper, the envelop containing the

Will, at the bottom of the 1st of 2 pages (were no room on second) etc. - Signature at beginning (i.e I signature…) have been found invalid because unclear if goes to intention to sign Will

or merely to identify him/herself

Witnesses to the Signature – s. 15, 20 and 21 WSA: - s. 15 – T may either sign or acknowledge his signature in presence of 2 W’s at the same tie. T cannot sign in

presence of 1 W and acknowledge in the presence of the other o Note: even if this is not met, the court may still validate via s. 37

- s. 20:1) an individual may be a W so long as they have mental capacity

a. Note:i. rules re mental capacity come from CL

ii. Will will not be invalid only because W lacked capacity – must be showed that T knew (see s. 20(4))

2) an individual who signs on behalf of the T CANNOT be a W3) a W is not disqualified from validating the Will simply because they are:

a. an executor,b. a beneficiary, or c. the spouse

4) the Will itself is not invalid simply because:a. the W did not know at the time of signing the doc was a Will,b. at the time of signing or afterwards the W became incapable of proving the Will, (= mental

capacity) or c. 2+ W’s signed.

- s. 21:1) A gift in the Will is void against the individual if:

a) the individual acted as W to T’s signature,b) the individual signed for the T,c) the individual was an interpreter in the making of the Will, ord) the individual is the spouse or AIP of the T (measured at time Will was made (s. 21(4))

2) The gift is not void if:a) It is a charge/direction for payment of a remuneration, b) If Will made under s. 16 (Holographic Will) or s. 17 (Military Will) re if individual is W, OR if

the T’s signature is witnessed by 2+ others, ORc) If the Court validated the gift under s. 40.

NOTES:- If a beneficiary or spouse signs as a W, the gift to the beneficiary/spouse is deemed void, BUT the Will itself is

not invalid o The court still has power to validate this gift if it is satisfied that the spouse/ben did not exercise undue

influence over T (WSA s. 40) and T intended to make the disposition knowing the W was named

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o Note: only benefitical gifts are void i.e gift to monastrary signed by sister (nun) who at the time of signing wasn’t the monastrary rep is NOT void

Must be a gift meant to benefit the ben/W themselves - Executor of Will can be a W- Nothing in WSA requiring W to be over 18- If both Ws have died/lack mental capacity, Will may still be valid if, on the face of the Will, it is clear that T

intended to follow the formal requirements o “Presumption of Regular” if Will seems to indicate that it was executed in keeping with s. 15, 16, or

17, the court will accept the validity of the Will UNLESS there is evi to the contrary

Cullen v CullenFacts: T signed Will in absence of W’s. Lawyer explained to W’s what had been done and confirmed w T that doc was her Will and she signed it. W’s didn’t hear her reply but signed when asked. Court: W’s signature was invalid – W’s must know what a Will is for there to be proper acknowledgement

Hindmarsh v Charlton Facts: T signed Will in A’s presence. A signed but forgot the cross so F looked liked T. T acknowledged his signature in the presence of A and B. B signed and A fixed the F. Court found Will valid – because acknowledged to both Ws.

Formal Will Formal Will = doc signed by testator and 2 witnesses

Additional Requirements – s. 15 WSA:a) T makes/acknowledges his signature in presence of 2 W’s (present at the same time); AND b) Each W signs the Will in the presence of the T

May be amended by a Holograph Codicil – as long as includes a present intention to change the Will

Holographic Will Additional Requirements:

- s. 16 WSAa) Made wholly in T’s own handwriting, AND b) Signed by T without presence/signature of a W or any other formality

CANNOT by signed by someone other then the T (this is an exception to s. 19 which applies to Formal and Military Wills)

Printed Wills:- i.e “Do it yourself Wills” (where fill in blanks)- Do not meet the requirements of holographic Wills (as not wholly in T’s own writing)

Notes:- Holograph Codicil may amend a formal Will as long as there is a present intention to change the Will.- Non-holographic doc probably not incorporated by reference into holographic Will because does not meet the

statutory requirements of a holographic Will (wholly in T’s handwriting)

Re Forest Facts: T filled in blanks of “do it yourself will.” T signed Will but it was not attested.

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Court dismissed appeal – the Will could not be admitted as it was not wholly in the deceased’s handwriting. Admitting only the handwritten portions in this case was incomplete (T did not appoint an executor and did not dispose of the residue of the state).

- In order for the handwritten portions to be severed from the prewritten, they must form a complete expression of the testator’s intentions on their own.

Military Will Additional Requirements – s. 17 WSA:

- T = member of Canadian Forces, or any other naval, land or air force - Made while on active duty,- Signed by T (w or w/o W or any other formality)

NOTES:- Will remains valid even after the active duty ends

Non-Compliant WillWSA s. 37 – 38 = give Court the power to validate a non-compliant testamentary instrument/its revocation or alteration ONLY if the court is satisfied on “clear and convincing evidence” that the writing sets out the testamentary intentions of the T and that the T intended it to be a Will/revocation or alteration.

Conflict of LawsGeneral Issues

1) If 2 or more juris, which courts deal with the administration of Estates? AND 2) What laws govern the distribution of an estate (succession)?

Note: May not be same juris who handles both - i.e Man died intestate. He domiciled in ON but owned land in Germany. Court in ON will hear the matter and

apply own law to distribute deceased’s moveable property, BUT it will determine succession under German law.

Administration of EstatesIf Courts get involved, they can provide the authority to administer the estate in three forms:

1. Grant of Probate – used where T names executer through Will2. Grant of Administration w Will annexed – used if T failed to name an executor OR named an executor that died

or renounced before completing task3. Grant of Administration – used if the deceased died intestate

Only a single grant is required if everything falls within 1 jurisdiction, however if the estate crosses borders, authority must be obtained from every court/juris involved.

- Grant must be sought in judicial center where deceased resided if resided outside AB app may be made in any judicial center where deceased had property at time of death

o If deceased had property in multiple juris, then app must be made in each.

A Grant of Principle Administration is obtained from a court in the juris the T was domiciled OR had a fixed home at time of death.

- Allows for the administration of all of the T’s prop within that juris

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Authority to administer prop located elsewhere obtained through:1. Default Process requires Grant of Ancillary Administration = operates to assist the Principle grant by

allowing for the admin of local assets a. For efficiency/simplicity – typically granted to person who received Principle grant

2. Alternative Process (where grant was obtained somewhere else and you want to distribute local assets) Re-Sealing Original Grant

a. Then operates as if the principle (original) grant was obtained locally

Administration of Intestate Estate WSA s. 58(1) – definition of “net value” of property includes property outside AB

- This gives ABQB juris to deal w property outside AB- This is done to ensure a fair division of the intestate estate

SuccessionSteps:

1. Was the individual intestate or testate?a. (if testate and dispute comes form T’s will) Issue may be formal validity, essential validity or

construction. . i. Formal validity = creation of Will

ii. Essential validity = instrument’s contents iii. Construction = interpretation of the Will

2. Type of Property ? (APPLIES ONLT WHERE FOREIGN ELEMENT) a. Immoveable = all interests in land

i. including things only useful in connection with land i.e tv receivers, etc.b. Moveable = all other property (generally personal property)

3. Law Governing Succession?a. Lex fori (law of the forum) = juris where court sits b. Lex situs (law of the place) = juris asset is c. Lex domicilii (law of the domicile) = juris deceased resided w fixed intention to remain

i. (note – can be assessed at different time i.e time will was made, time of death, etc.)

Questions:1. Compliance w WSA 2. Where was Will made?3. Where was T born?4. Where has T been domicile?

Intestate Succession Rules:

- Moveables = governed by deceased’s domicile at time of death - Immoveables = governed by where the asset is (lex situs/law of the place)

Criticisms of allowing lex situs (where the asset is) govern immoveables:- The lex domicilii (deceased’s personal law) is more naturally interest in the disposition of the assets- Certain individuals (i.e spouse) stand to benefit more by claiming preferential share

Testate Succession ( WSA – s. 41) Rules:

1. Manner and formality of making Will and its validity/effect re:a. Immoveables = governed by where the asset is (lex situs/law of the place)

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b. Moveables = governed by deceased’s domicile 2. WSA s. 42 Will re moveables is admissible for Probate if it is made in accordance with the law in force at the

time of its making in the place where:a. The Will was made,b. The T was domiciled when Will was made, orc. T’s domicile of origin.

Notes:- The above is in reference to manner and formality of the Will NOT its interpretation - WSA s. 37 – may give validity to non-compliant Will dealing with moveables BUT cannot give effect for

immoveables o This is because law governing immoveables = place where immoveables is located (s. 41(2))

- Any Will dealing w immoveables MUST comply w WSA ss. 14-18 regardless of whether there is a foreign element.

o However, an invalid Will w a foreign element will be valid in so far as it deals w the disposition of moveables (subject to WSA s. 42)

Note: under WSA marriage does not revoke, BUT this may not be the case for another country, need to check their laws Re Bishop Facts: T’s domicile of origin = Austria. T died leaving holographic will which was not recognized in ON at the time, but complied w Austrian law at the time that the Will was made. Court found the Will valid re moveables as under Austrian law, BUT was invalid for immoveables.

Re Martin Facts: At time Holographic Will was made English law made W’s domicile the same as her H and holo Wills were invalid. English law also stated that Will was revoked upon marriage. H’s domicile was in France. She died only owning moveables. Court: Since her domicile of origin was France, her holo Will was valid.

- Holo Will’s allowed under French law and was not revoked because was subject to French law which did not allow for revocation upon marriage.

International Wills WSA ss. 46-57 integrates the 1973 Convention Providing a Uniform Law on the Form of a International Will, which Canada ratified.

- As long as the Will satisfied the requirements and the Convention was ratified in the effected jurisdictions, the testamentary doc will be formally valid regardless of the place of execution, the T’s domicile/nationality/residence, or location of the assets

Testamentary Capacity, Undue Influence, Fraud and Mistake

Contesting OnusIn addition to failing to meet the other requirements, an individual contesting probate may allege that the Will fails because:

- The T lacked Testamentary Capacity,o (Onus on proponents of Will BOP)

- It was effected by Mistake, o (Onus on proponents of Will)

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- There was Undue Influence, oro (Onus on contester)

- Fraud o (Onus on contester)

Note: - the contester of the Will may fail to prove undue influence or fraud, but still call sufficient evidence to rise

suspicion that Will was not made freely/voluntarily

Testamentary Capacity If there is no challenge = there is a presumption of capacity

Rule = person of unsound mind cannot make a valid Will- Issue – What qualifies as “unsound” so as to invalidate a Will?

o Fact Dependant

Elements of Testamentary Capacity Banks v Goodfellow and Re Schwartz:“sound disposing mind” requires the T to appreciate:

1) The nature and effect of making a Will, 2) the extent of his property, 3) the nature of the claims of others he is excluding,4) no insane delusions are influencing his disposition.

Evidence proving these elements:- observable matters re the conduct/condition of the T,- expert opinion evidences as to T’s capacity,- nature of dispositions made by T

If the gifts are of the kind that a ordinary man in the T’s position would make = some evidence of mental capacity

Note: a personal w little capacity may make a valid Will if they only have a little property, where as a person w the same capacity but a lot of property/bens, the Will may be found invalid.

- This because the more complex the estate, the more capacity that is required in order for T to properly comprehend the repercussions of Will

Two recognized categories of of “unsound mind”:1) General Lack of Capacity – due to disease, congenital defect, or advancing age, and 2) Insane Delusions

Note: lack of capacity may also come from other reasons i.e alcohol or drugs

General Lack of Capacity – Disease, Congenital Defect, Advancing Age Leger v PoirierIn deciding T’s capacity, the court considered the testamentary of a person who knew her well, rather then the doc/ lawyer.

- The girl testified to what was going on w T at the time when Will was altered. - Court – if such deviations go unexplained they may provide some evi of incapacity (but were explained in this

case)

Re Davies Relevant facts: diagnosis, changed behavior, earlier wills, irregularity of disposing to non-existent organizations.

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Court preferred the testimony of lay witnesses re changed behavior, over doc/lawyer because their information was vague.

- Note: Court will normally consider the testimony of the lawyer who took part in drafting/altering Will o normally, lawyers will be more helpful then in this case, because they will take notes during client

meeting about past Wills, the intended changes and why.

Relevant time for capacity = when instructions are given (Re Bradshaw Estate)- Examples:

o T has capacity, instructs solicitor to make Will. When solicitor seeks signature T no longer has capacity to instruct, but has enough capacity to understand that he had previously instructed his lawyer to make the Will.

o Will drafted/executed during lucid interval of longstanding mental illness Onus on individual alleging capacity

- Criticism of this rule – it is an exception to the requirement that the T must know and approve of the contents of the Will at the time that the Will is executed

- Applied w caution in cases where T and lawyer communicated through an intermediary (Calderaro v Meyer)

Insane Delusions Insane delusion = irrational belief in state of facts that is not true

Banks v GoodfellowFacts: T had previously been confined to asylum. Was discharged but still suffered delusions. Despite suffering numerous delusions there was evi that he managed his money/affairs competently and that he was capable when he executed his Will. Ratio: Insane delusions are only relevant if they could effect the Will

O’Neil v Royal Trust CoFacts: in H’s Will, he asked W(T) to leave her estate to certain individuals. She made Will 1 doing so, but later revoked the Will and made a 2nd Will w different provisions. She then revoked 2nd Will and made a 3rd Will keeping H’s wishes. Before making the 3rd Will the court declared her incapable of managing her affairs due to age, and insane delusions re taste and smell. Ratio: Insane delusions do not invalidate a Will unless they brought about the Will or were an actual and impelling influence in the making of. Court should consider:

1) nature and subject matter, and 2) relation in the mind of T to the matters material to disposition

Re Bohrmann Court rejected part of instrument because T lacked capacity only in regards to that part. - Hopp disagrees if insane delusions exist and are relevant, you CANNOT say that the person had the capacity

for other giftso Hopp’s View: lacking capacity due to insane delusion = lacking capacity to make a Will even for other

elements not effected on face

Suspicious Circumstances Normally, when Will is executed by capable T, complying w formal requirements = presumption that T knew/approved of the contents where Will challenged and has been prepared in suspicious circumstances there is an additional burden on the proponent to dispel the suspicion

Suspicious Circumstances = where party writes or prepares an instrument which he takes a benefit from OR where the instrument was prepared under circumstances that arise suspicions that it does not reflect the intentions of the T

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Rule: the court must closely examine the evidence in support of the instrument and must not pronounce unless the suspicion is removed and they are satisfied that the instrument expresses the intentions of the T

- = if suspicious circumstances NOT disproved – Will will NOT be admitted to Probate = treated as died intestate

Onus = on proponent of the Will EXCEPT any undue influence issues (where onus on individual discrediting Will) - Normally satisfied upon proof of capacity, facts of the execution (including T’s knowledge and assent) - Weight of suspicious circumstance to be countered depends on facts (Burden = BOP but threshold dependant on

facts)

Principles from Vout v Hay : 1) Proponent of the Will has the legal burden of proof re execution, knowledge, approval and testamentary

capacity. 2) Person opposing probate has the legal burden of proving undue influence 3) Standard of Proof = BOP 4) In discharging the burden for knowledge, approval and testamentary capacity, the proponent of the Will is aided

by the “rebuttable presumption” a. [“rebuttable presumption = where Will has been executed under the required formalities and was read

over by T who appeared to understand there is presumption that T knew and approved of contents and had testamentary capacity]

5) The presumption casts an evidentiary burden on those attacking the Will 6) This burden can be met by evi of suspicious circumstances reverts burden of disproving to proponent7) Suspicious circumstances don’t impose a higher standard of proof (still BOP) BUT extent of proof required is

relative to the suspicion 8) Suspicion of undue influence will not, in itself, discharge the burden of proving undue influence

Barry v Butlin Facts: Will was prepared by solicitor. In Will T left prop to the solicitor, butler and friend. T’s son was left nothing. Son contested Will, alleging lack of capacity and fraud by solicitor. Ratio: Court ought not to pronounce in favor of the Will unless the suspicion is removed

Undue Influence Rule re Undue Influence = T can be led, but not driven. His Will must be of his own volition and not the record of someone else’s.

- T needs free agency – anything short of = undue influence- Undue influence is more then inducing/persuading, there must be coercion.- The person who committed undue influence does not have to be the one who benefited from it

o The existence of undue influence (no matter who from) is enough for intervention - Cost might be awarded against the claimant if an allegation of undue influence is unsuccessful

Where gift/contract favorable to one party = rebuttable presumption of undue influence

Fraud Fraud = lie by which the speaker persuades the T to believe are in “facts” that are false.

Rule: If T is induced to make a Will/disposition in it because of fraud, the Will/disposition is invalid - Must be shown that the Will/disposition would not have been made w/o the fraud

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MistakeCourt of probate may strike out passages inserted by mistake (Re Morris), but cannot substitute (that is Court of Construction (COC)) UNLESS it is an issue of rectification (WSA s. 39)

- Where there is a Mistake, Probate can Rectify the mistake by adding or deleting words/provisions/characters (WSA s. 39)

o WSA – ss. 1(1)(d) (Definition of “Court), 26 (Interpretation and Evidence) and 39 (Rectification) s. 1(1)(d)

defines “Court” as Queen’s Bench (which includes both COC and Probate) s. 26

refers to the “Court’s” powers to hear evidence – includes evidence of meaning or words, phrases and provisions in the Will, include evidence of the T’s circumstances at the time of making the Will and the T’s intentions re matters in the Will

s. 39 allows the “Court” to rectify a Will by adding or deleting provisions/characters/words

when satisfied on clear and convincing evidence that Will does not reflect T’s intention due to:

o accidental slip, omission or mis-description, or o a misunderstanding or failure to give effect to T’s intentions by person who

prepared the Will s. 39(2) – re omission of T’s signature

o court can correct on evi of intention to sign more then mere existence of Will is needed use s. 26 re admissible evi to find intention

- The Court can add or delete words even if to do so will not completely correct mistake its sufficient if amendments merely get us closer to that intention

NEITHER Court can “rectify” a mistake T made about the law = CANNOT rectify words that T deliberately included but had improperly understood their legal effect

- this is a mistake made by T himself vs a mistake made by lawyer/person drafting on his behalf – when they make mistakes about law they can be rectified even when T knew/approved of them

Court of Probate has the juris to correct errors when:- There is a patent mistake,- A drafting error occurred,- T has executed the wrong instrument

Patent Mistake Patent mistake = prima facie mistaking where T make an error about an existing fact

o i.e making gift to X because W and children died, but unknown to T they are alive (Re Wright) - Must prove that the existence of the Will/gift was made in reliance upon the mistaken belief, then the affected

disposition/Will is ineffective and denied probate- Hopp says unlikely if reliance was proven that Court today could do anything to amend – would be refused

probate

Execution of the Wrong Instrumenti.e Problem when T and spouse give instructions for reciprocal Wills and then H signs W’s and W signs H’s.

WSA – s. 39 (Rectification) - Allows this error to be fixed, by classifying it as an accidental slip or omission – under which Court of Probate can

add or delete words, characters or provisions if it is that the Will does not reflect the T’s intentions

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CasesNote: cases are helpful re when mistakes can arise/law BUT it is very fact dependant so not so much rules as examples of how applied

Collins v Elstone Facts: T reassured by friend that signing Will stating “I hereby revoke all other Wills” would not revoke her previous Will. Court had no power to strike out clause even though she was mistaken about legal effect. Now under WSA – Court would be able to strike out using direct evi of T’s intention and s. 39(1)(b)

Re Morris Facts: Solicitor accidently deleted the wrong provision from T’s Will. T read and signed the codicil w/o noticing.At time, Court of Probate could not add words at time to correct mistake, only delete. BUT NOW under WSA the court can.

Re Brander Facts: H and W signed others Will by accident. Court ordered that the H’s name be changed to the W’s and vice versa. THIS WAS INCORRECT – at time Court did not have this power. NOW does under the WSA

Alteration, Revocation and Revival (WSA ss. 22-25)

Revocation Must comply w statute in order to be valid s. 23(1) = A Will may only be revoked by:

a) T making another Will,b) T writing a valid writing declaring intention to revoke the earlier will,c) T burning/tearing/destroying Will w intention to revoke (need to coincide) d) T having another individual burn/tear/destroy the Will in T’s presence and at direction of T w intention to revoke.

Note: INTENTION to revoke is required, therefore T must have testamentary capacity to intend to revoke the Will - Re Brassington’s Goods – destroying while drunk doesn’t count

Note: making another Will DOES NOT revoke on own – there must be provision expressing intention to revoke previous Wills, or inability for the provisions to coincide (which on revokes those specific provisions)

A Will is not revoked by marriage/AIP (s. 23(2)(a))

No other change in circumstance revokes a Will except DIVORCE (s. 23(2)(c) & s.25)- s. 25 = divorce nullifies all gifts to the former spouse/partner UNLESS there is a contrary intention in the Will that

the gift should survive the Will o …any beneficial interest in property, general or special power of appointment, or appointment of ex-

spouse to executor/trustee/guardian, is deemed revoked and the provisions are interpreted as if the ex-spouse had pre-deceased the T

- Arguable what effect would be on Joint Will (where condition not to revoke) – see that section for more

Note: revocation of a Will DOES NOT revive any earlier Will UNLESS dependant relative revocation

Wills ARE revocable until death BUT there may be consequences (see contracts regarding Wills)

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Conditional RevocationIncludes:

1. T destroys an existing Will when wrongly thinking it is invalid a. i.e Campbell v French

2. T destroys an existing Will under mistaken impress of the effect of his act

QUESTION for the Court = what would a reasonable T have done “but for” the mistake?

Campbell v French Facts: In Will, T gave gifts to 2 grandchildren of sister, In codicil the T wrote “… I revoke…they being all dead.” The grandchildren were actually alive. Court: = conditional revocation. Must be clear:

- from Will that there was a mistake,- what the T would have done “but for” the mistake.

Re Sorenson; Montreal Trust Co v Hawley Facts: T made will leaving estate toe her sister’s in law. T later wrote solicitor to change the Will believing they both had died. One sister actually survived the T. Court = condition for revocation. There was a clear mistake and “but for” the mistake the T would have kept the one sister in the Will.

Dependant Relative Revocation = T destroying Will only because he intends to make/revive another

- T wishing to make new Will to replace the existing one and revokes the existing one in anticipation of the new one, the revocation may or may not be effective:

o = effective if the T intends the revocation to be effective whether or not the new will is made,o = not effective – if the T tends that the revocation shall not be effective unless/until the new will takes

effect Doctrine of “ Dependent Relative Revocation” allows old Will to remain effective if the new one is not made/fails, as long as can show that the T’s intention was conditional upon the new Will taking effect

Note: Also applies to parts of a Will

Re Jones Facts: T mutilated Will by cutting out parts, including her signature. Evidence that did this because she thought it was necessary in order to make a new Will, but she never actually made a new Will. Court: = conditional revocation (dependant relative revocation). Revocation was conditional on making new will so revocation not effective.

Re OttFacts: T made 1st will and revoked. Made 2nd Will and revoked it, believing that by doing so he was reviving the 1st Will Court: revocation of Will does not automatically revive 1st Will. However, because that was the T’s intent then = a conditional revocation applied Doctrine of Dependant Relative Revocation to save the latest Will

Making Another Will- To validly revoke it must be clear that the second Will is intending to revoke

o i.e a statement saying I revoke all previous Wills or the second Will must be inconsistent w the first Will Note: it is a matter of interpretation whether the Wills can be read together

- Includes codicil

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Writing Revoking Will= T may write up/have someone else write up doc revoking Will

- Note: formal/holographic rules apply depending on who drafts the revocation

Burning/Tearing/Destroying = T may burn/tear/destroy Will or T may instruct someone else to burn/tear/destroy the Will in T’s presence

- *T must have the intention to revoke Willo Accidental does not count

- The act used to destroy the Will must be the actual act that T intended - Normally must be complete destruction

o Where incomplete there is a presumption that was done by T, but the burden of proving that it was done w the intent to revoke is on the person alleging revocation

- Cutting out portions of the Will only revokes the portions removed UNLESS the rest of the Will cannot stand w/o the removed portions

- *A Will that has not been properly revoked by a T, even if destroyed must still be used if there is sufficient evidence as to it’s contents (proved by the proponent of the destroyed Will)

Delack, Hickey and Camp v Newton Facts: T sent 1st Will to sister for safe keeping. Then sent second Will and asked sister to destroy first. Sister destroyed the first Will, but 2nd Will later found invalid. Court:

- Was the first Will validly revoked?o No because wasn’t destroyed in T’s presence.

Lost Will Nothing in WSA re lost Wills BUT absence of is important

- Will can only be revoked according to ways set out in s. 23 (Revocation of a Will)o there is nothing in this section re lost Wills BUT there is also nothing requiring T to inform someone that

was destroying to revoke - Presumption: if Will is traced to possession of T and CANNOT be found = presumption that will was destroyed by

T to revoke o Rebuttable

When deciding the court must consider ALL relevant facts i.e custody of Will in lifetime of T, nature and character of T (i.e whether kind to die w/o Will), relationship w Bens, access by interest ppl, etc.

Burden = BOP Onus = on interest ind intending to prove it was lost

- IF prove it WAS LOSTo Onus on proponent of the lost Will to prove:

Contents Evi of interested party will be sufficient to prove contents of Will Codicils may also assist

Testamentary capacity Compliance w formalities Note = same elements as grant of probate + contents

o If only part of the contents can be proven there may be issue of whether those parts can be given effect (Hopp thinks they should just give effect to the part)

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Sugden v Lord St LeonardsFacts: Daughter would have only received estate if had Will (would have gone elsewhere if intestate). Evi that Lord was obsessed w having a Will, talked about it all the time, including changes, contents, etc. Court: J suggested that need to prove the balance of the Will which can be proven is the residual clause

- Note – not really the case, part proven may be given force (depends on the circumstances)

Beils Facts: T kept her Will in a piano bench w a large amount of cash. Will was still there when T was taken to the hospital but was gone when she died. Had to prove that it was not destroyed:

- Will was not kept in a secure location; Was kept w a large amount of cash; Many ppl know about it and the cash; She was still friendly w her bens

Court: there was no reason for her to have destroyed her will – it was likely taken.

Alteration Alteration of a Will is presumed to have been made after the Will was made (s. 22)

- Must comply w statute in order to be valid s. 22(1)(b) is only valid if:o it is made in accordance with the formatting requirements of the type of Will (formal, holographic,

military – ss 14-18), ORo the Court makes an order under s. 38 validating it via evidence of T’s intention (not ability to look at via

voce evi to determine intention = s. 26(c)

s. 22(2) – if the writing/marking/oblit renders part of original Will illegible, but has not been made in accordance w s. 22(1), the court may allow them to be restored or determined by the court UNLESS there is contrary evidence

Re Douglas EstateFacts: T covered some words in Will w white out. Could still read the words underneath. Court: Alterations were not made in accordance w requirements. Olc**New Law (s. 22(2)) = court can use means to remove the whiteout

Note: Alteration = form of revocation i.e s. 22(3) – a Will may be altered by another Will (new Will can revoke all or part of previous Will)

*presumption that any changes to Will were made after execution = onus on those alleging changes existed at execution to prove it

*Note: example for alteration a gift in a Will can be altered by the gift of the same property in a codicil

Re Davis Facts: T devised all land in a county to X, after drafting he acquired another land in the same county and devised to Y. Court: Gift to Y failed because codicil wasn’t property executed so didn’t revoke Will.

Revival Revoking Will does NOT in itself revive the previous Will (s. 23(c)) need dependant relative revocation Will/part can ONLY be validly revived by:

- s. 24 :o making a new Will,o re-execution,

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o or otherwise in accordance w Part 2 of the WSA) showing intention to give effect to Will/part previously revoked

i.e codicil (Will revived as of date of codicil) Note: NOT enough to simply refer to earlier Will – must have INTENTION to revive

o deemed made at time of re-execution - doctrine of dependant relative revocation (if circumstances allow – see Ott)

Re OttFacts: T made 1st will and revoked. Made 2nd Will and revoked it, believing that by doing so he was reviving the 1st Will Court: revocation of Will does not automatically revive 1st Will. However, because that was the T’s intent then = a conditional revocation applied Doctrine of Dependant Relative Revocation to save the latest Will

Interpretation of Wills

Statutory Rules Definitions ( WSA s. 1) and Remaining Interest ( WSA s. 1, 10 and 21) s. 1 = definitions:

1(d) – “Court” = QB (as court of construction OR court of probate) 1(e) – “Descendants” = lineal descendants through all generations

o includes adoption and birth not adopted children will be considered descendants of the adoptive parents, but not

descendants of the bio parents. T could exclude adopted children from taking if uses the right language

o RELATES TO s. 28 - references to child or descendants 1(g) – “Kin” = relative by blood or adoption NOT marriage

o i.e sister = yes; sister-in-law = no 1(i) – “Property”

o 1(i)(iv) – includes any right including contingent or future right (= chose in action) to be paid or receive prop.

o 1(i)(v) – includes any cause of action relating to prop or resulting from an order to pay o RELATES TO s. 10 = where T has left ben prop, but disposes of the prop before death, ben inherits any

remaining interest that T has at time of death i.e Ben entitled to remaining monies owed from sale of prop – if no money outstanding the gift

adeems Note – wording of s. 10 is important:

Requires Will disposing of prop and AFTER making Will, but BEFORE death, disposal of the prop/interest

i.e if T sells prop in morning and makes Will in afternoon – then T’s intention is to give whatever interest he still has in the house (don’t need s. 10)

s. 21 is related *see below Note: relates to property, not contracts

i.e proceeds from sale of the house vs. insurance monies for house that burned down o Proceeds from sale of the house = remaining interest/right in the prop being

gifted = Ben WOULD get o Insurance monies for house = money from contract/happening of an event, not

from the prop itself – is not an interest/right in that prop, but something separate = Ben would NOT get on the basis of Will worded re house (insurance bens is separate)

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s. 21(1) WSA = no more Equitable Doctrine of Conversion = B given a house would take whatever fractional interest T still had in home at time of death

s. 21(2) WSA = ben will take whatever chose in action arising out of sale/disposition T had at time of death.

Re ChurchFacts: T bequeathed house to D. Before death T agreed to sell home. At time of death T was still owed part of price. Issue: Is D entitled to outstanding monies? Court: no because of Equitable Doctrine of Conversion (house was immediately converted and D wasn’t left value of house, etc.)

- Note: WSA changes thiso effect of s. 21 = D entitled to received the balance of price owed. Bens right ends if the purchase price

was paid to T during lifetime. o s. 1(i)(4) = “property” includes any right including right to be paid

Timing of Will ( WSA s.27) s. 27 WSA = Will interpreted as if made immediately before death (unless contrary intention)

- BUT Note: Bens take from prop at the time the Will was made o i.e T makes Will in which he leaves his Piano to X. After making his Will, T sells the Piano and acquires

another. No amendments/codicils are made. = X does not get the new piano because T did not have that piano at time made Will.

o i.e T makes Will in which he leaves everything to W. W dies and he remarries. = new W does not get everything, because was not the W at time made the Will.

o BUT if CODICIL was made after acquiring the new prop/new wife then Will read from that date so X would get piano, second W would take, etc.

- In-class example: T gives gift in Will to his brother-in-law, Bubba. T then divorces W, but does not change Will. Is Bubba entitle to take?

o Depends on what it written If identifies Bubba = yes If just says brother-in-law = no If identifies my brother-in-law Bubba = depends on intention (if condition = no; if describing =

yes) - Note: important because man in poverty at time of making Will is not found to have gifted property when he

becomes loaded

Survivorship ( WSA s. 5) WSA - s. 5 = where circumstances unclear who died first, treat as if each had predeceased the other (so neither benefits from the others estate)

- corrects problem from old law where prop would go to the younger person (and their family) rather then going to the family of both

- simpler

Insurance Act – ss 685 & 737- when ben named in Insurance policy, or the insured, die together (or unsure who died first) = deems insured to

have survived the ben WSA – s. 5(2) = when both owners of Joint prop die together = treat as TOC

WSA ss 29, 30, 33 and 34

s. 29 = references to having “no issue” (i.e die w/o issues, and words referring to complete absence of descendants, etc.) is deemed to refer to having no surviving descendants at the time of death (not a complete absence of descendants)

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s. 30 = (unless contrary intention) disposition of prop in Will to “heir” or “next of kin” is distributed as if T died intestate

s. 33 = if disposition in Will is void or contrary to law, unless court finds contrary intention (or saved by s. 37-40), the prop will be distributed to:a) alternate ben b) if not a) and intended ben was a descendant of T, then to the intended bens surviving descendants c) if neither a) nor b) then to surviving residuary bens d) if none of a), b) or c) then as if had died intestate

- example of “void” gift = s. 21 gift to ben/spouse/partner who was also W o Note: s. 33(3) = gifts void under s. 21 CANNOT be saved by s. 38-39 CAN validate under s. 40

- example of “contrary to law” gift = conditional gift in Will, on condition that X kills Y- Note: same order for gifts that are “disclaimed”

o i.e ben refusing to accept/take gift i.e Trudeau refusing land in west transferred to him by disgruntled citizen (in hopes of making him care more about the West

s. 34 = property not disposed of by Will is held in trust for those entitled to take on intestacy - Note: T can prevent someone from taking by including info in Will

o i.e Will stats “I do not want Sammy to have any prop when I die”. If T hasn’t disposed of all prop, the remainder is treated as intestate, BUT any prop that would go to same through intestate succession does not. Sammy is excluded from taking I the Will

o T direct that 1+ of persons entitled to take on intestacy (but not all) = implied gift to the other persons entitled on intestacy (Re Wynn)

Interpreting Words used by TStarting Point – words used by T are initially read as if T had used their ordinary/common/prima facie meaning

Perrin v Morgan = modern approach to ascertaining meaning of words/expressions Facts: issue re meaning of the word “money” – T left “all moneys of which I die possessed...”Court: not limited to the dictionary meaning, but should look at the circumstances/evi in order to give effect to T’s intention

*Court can use evi about surrounding circumstances (armchair evi) in EVERY case, NOT just when the ordinary meaning of the words is unclear (Haidl v Sacher)

- s. 26(c) = court may hear direct evi about matters referred to in Will o before WSA, court could only hear when a) the language used equally referred to 2+ ppl; or b) the

language used equally referred to 2+ pieces of property (includes equal descriptions as a result of inaccuracy)

o NOW – can hear oral evi re intention whenever

Court can use evi of special meaning of words and expressions used by groups T was involved in (s. 26(a))

Sometimes word used by T has special meaning, and T’s can provide the meaning of the word in Will Re HelliwellFacts: T included J in a group he later referred to as “nieces and nephews” even though J was the illegitimate daughter of his sister. The sister died and left a daughter, S. Issue was whether or not she could take. Court: T included illegitimate daughter in the list indicating that he does not use the term “nieces and nephews” in the strict legal sense. Therefore, S can take.

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Partial Intestacies Issue: whether the next of kin are determined as of the date of T’s death, or as of the date that partial intestacy occurs

- Rule (rule in Bullock v Downes) = next of kin determined at the death of T (unless contrary intention)

Principles of Construction Where T’s intention is not clear in Will, use the Principles of Construction:

1. T’s intention is collected from reading the Will as a Whole a. Example: Re Williams Estate

i. Facts: T left residue of his estate in trust for his W. Directed that on her death/remarriage the capital was to be distributed among his living sons, w a gift over to their children. Will included direction that “if there are less than 3 remaining, the youngest son shall take ½. At T’s death there was 5 living sons. At W’s death, there were 2 living sons and 2 children of a deceased son.

ii. Court interpreted “less than 3 remaining” to mean the number of living sons at his W’s death. Youngest son got ½, other son got ¼ and children of deceased son got ¼.

2. Identical words are presumed to have the same meaning a. can have different meaning if the intention is clear, but where there is uncertainty to use of term in one

section, and clear meaning when used in the other section, there is presumption that the meaning is the same for both

3. Effect to be Given to All Words a. when court is interpreting an ambiguous/uncertain clause, they will strive to give effect to all the words

used by the T unless to do so would be contrary to the T’s clear intention b. Example: Re Stark

i. Court interpreted used of term “nephews” to include half blood nephews, based on circumstances at time of drafting only had one nephew and was clear wouldn’t have any more whole blood nephews

4. Ejusdem Generis a. Ejusdem generis = restricting meaning of a general word, that is included with specific words, to the

meaning of the specific words5. General over specific

a. If T expresses a general and specific intention re a certain gift and the two are inconsistent, or the specific cannot legally be given effect, the general is given effect over the specific

i. The court will disregard, modify or restrict the specific in order to in force the general6. Presumption against Intestacy

a. Where Will is capable of two intentions, the one which more fully disposes of T’s property will be advanced

b. UNLESS evi to the contrary i.e clear intention that T intended to leave some prop undisposed c. i.e “money cases” where T leaves “ all the rest of my money to X” – “money” is interpreted as

meaning “estate” so as to avoid being partially intestate 7. Presumption of Rationality

a. Presumed that T did not intend capricious, arbitrary, unjust or irrational consequences to flow from dispositions

8. Presumption of Legality a. Traditional approach to properly determining intention = the Will must first be read w/o regard to

consequences of rules of law b. If Will is ambiguous and one possible interp offends a rule of law while another does not – go with the

interp that does not offend rule of law 9. Presumption against Disinheritance

a. Unless there is a clear contrary intention, the court will adhere to the construction that benefits the T’s heirs/immediate next of kin over others.

b. Where decision is btwn equal next of kin – court normally distributes equally

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10. Irreconcilable Dispositions a. If Will has gifts that are irreconcilable, the court will attempt to interpret in way that avoids the

inconsistencies b. **check class notes

Rules of Construction *All of the following yield to a contrary intention

Meaning of Certain Phrases/Terms:- Gift to H/W prima facie = gift to spouse at time Will was made - Family members:

o “Children” = direct children of the deceased, including adopted children, however it does not include step children unless the deceased has no children of his own

a. “Next of Kin” = person(s) that are the T’s (or person named’s) nearest blood relations. i. Does not include ppl who would take on those relations intestacy

ii. i.e “to the next of kin of my son” where son was survived by 2 sisters, and a nephew and niece = only the sisters would take

b. “Family” = children, therefore parents wouldn’t take unless they are expressly identified. i. i.e “to my brothers and their families” = the brothers and their children, not the Wife if the

brother is deceased c. “Nieces/Nephews” = brother and sister’s children of whole and half blood. Can include grand

nieces/nephews if context allows i. However, if contrary intention i.e can include sister’s step-daughter if evi allows

d. “Cousins” = first cousins (share aunt/uncle, rather then second cousins (share great-grandparents))

Gifts to 2+ Persons Issue = distribution

- Under property law, devises to 2+ persons take effect as tenancies in common, unless contrary intention. - Prima facie rule that beneficiaries take “per capita”

o per capita = “by the head” means that all bens get an equal amount, even though they may be different generations

- However, T can direct that the property be distributed “per stirpes”o per stirpes = “by stocks or families” each family/stock takes an equal amount which is distributed

within that stock/family

Multiple Gifts T can make more then one gift to the same ben, through different instruments Prima factie rule = the gifts are cumulative (ben gets all) – however, T can have demonstrated intention that they be substitutionary (i.e gift in codicil meant to replace gift in Will)

Gift of “house and the contents therein” = all choses in possession in the house, including a car in the adjoining garage Does NOT include: choses in action, cash in cash box inside the house, etc.

Power of SelectionWhere T leaves prop to 1 ben, and another of the same description to another ben, the court resolves who gets the prop by giving the ben whose prop was clearly identified first pick

- ex: T owned farm and leaves 30 acres thereof to her son, J, and in the next clause, conveyed 20 acres of it to T. J was given the right to select which 30 acres he wanted.

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Inability to locate BenWhere unable to locate ben name in Will, after extensive inquires, court can make a Benjamin Order = presuming the ben dead, and to have died before the T

- i.e. applies where exec/admin cannot determine whether the ben has died, and/or whether predeceased the T

Options and Rights of First Refusal Options = confers an equitable property right on the optionee – optionee is entitled to purchase the prop upon the specified terms if wishes, optionor cannot prevent her

Right of First Refusal = does not confer a property interest, only confers a contractual or donated right to acquire prop – right can only be exercised when T dies – at that time, the person may exercise the right by meeting the price that another person is willing to pay for the prop

Testamentary Gifts

Types of Testamentary Gift:T cannot dispose of property where his ownership was:

o Joint tenant – goes to surviving tenant o Life estate – goes to next person entitled in remainder or reversion o Personal contingent interest that hadn’t been satisfied (conditional – i.e T give X on marriage but never

married) o An expectancy (something T hoped to receive but hadn’t at time of death)

Types of Testamentary Gifts:1. Specific 2. General 3. Demonstrative 4. Residuary

- Type is important because: o Goes to whether or not gift of prop which has ceased to exist in whole/part, or has come into existence

since Will was made, are effectiveo Determines the order that property is distributed o Whether the gift adeems or abates

- Determined by: T’s intention (often via language)

Note: Court does not like to find specific gifts, where to do so will result in ademption - Will try and interpret as something other than specific gift or something than “that” specific gift

o i.e gift of funds – allows for tracing

Bens = volunteers - Volunteers always take subject to equities (i.e creditors get paid first)

Celantano Estate v Ross (Specific vs. General in reality but J classified as specific vs demonstrative) Facts: T gave 2 gifts to be paid out of his US bank accounts. There were sufficient funds to pay both but there was insufficient funds to also pay the other gifts. Court needed to classify to deterring who had right of 1st priority

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SpecificSpecific Gift = gift of a particular thing described so as to distinguish it from all other things of the same kind

- i.e “I bequeath my 1969 Firebird motor vehicle to X” BUT even “my car” or “any car which I die possessed” would suffice because identifies/distinguishes it from cars in general

If Insufficient - if all/part of the specific gift does not form part of the T’s estate at time of his death = adeem / partially adeem

o Adeem = ben gets nothing o Partially adeem = whatever interest remained at time of T’s death

i.e T gifts house to S but sells ½ before death – S gets the ½ interest retained by T

Advantage:- Bens have 1st claim to the gift (ben gets gift even if not enough left in estate to cover other gifts)

Disadvantage:- If the gift doesn’t exist at the time of death, the ben gets nothing (gift fails/adeems)

Re Sikes Facts: T bequeathed piano to friend. After making the Will T sold the piano and acquired a new one. Court: there was a specific gift in the first piano. The gift adeemed when the piano was sold Note: Could have saved the piano if:

- T had given friend “any piano of which she died possessed”- If T had executed a codicil after acquiring the new piano

Types of specific gifts: 1. Gift of chose in action

a. Ends w the right to action i. i.e bank account closing (Re Puczka Estate)

2. Gift of funds a. Can be transferred does NOT adeem so long as the money can be traced (Re Cudeck)

i. Adeems when money has become so intermingled w other money that the fund losses it identity

1. i.e putting money from proceeds of sale into account with rest of money, then lots of transfers/withdrawals

2. i.e Culbertson v Culberton; Re Rod Estate

Re BrittFacts: T sold prop and took back a mortgage in part payment of the purchase price. In her Will, T directed that all money owed be paid to named Bens. The purchaser defaulted on the mortgage. T obtained a judgment against the purchaser for the money still owed on the mortgage but made no attempt to enforce and the land was not sold. Court: Bens have chose in action re enforcing the judgment

- Gift would have adeemed if:o the land had been sold because there would have been no mortgage o the money had been repaid.

Re CudeckFacts: T gifted friend “the proceeds of a Term Deposit of $28,000 purchased from a certain bank in 1973”. After making Will, T cashed the deposit and purchased another. This was repeated several times. The proceeds from the various sales were deposited in his bank account which had little else. The last time, T deposited the proceeds from the sale in a safety deposit box obtained for that purpose. Court: = specific gift of proceeds that could be raced. No lapse, did not adeem.

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AdemptionOccurs when prop that is the subject of a specific gift that is not in the T’s estate at his death, although it was in existence at the date of the will

- When gift fully adeems – ben receives nothing o This is true even if the T retains other prop into which the prop has been converted (unless there is

statute to the contrary) i.e insurance for destroyed property; new prop exchanged for the gifted prop; mortgage taken

back on sale of the property.

Re HunterFacts: T left house to B. The house was destroyed in the fire that killed T. T had insurance on the house. Issue: Does B get the proceeds of the insurance?Coutr: If T died before house was destroyed = gift adeems; if T died after = ben gets money. Note: * this is different for contract for sale of house because no chose in action – insurance = money on the happening of an event

Re Rod Estate Facts: T directed executors to sell house and divide proceeds among children. After making Will T lost capacity. Power of attorney sold house while alive and deposited funds in account for that purpose. I: Did the gift adeem?Court: Gift = gift of funds – didn’t matter when the house was sold, so long as as the proceeds were still in the estate and had not be intermingled so as to loose their identity (traceable)

- Note: if some of the funds were co-mingled – gift would partially adeem

GeneralGeneral Gift = gift (usually money or things easily converted into money (i.e stocks)) payable out of the general estate. Is NOT an identifiable item or direction to pay out of a specific fund

A Pecuniary Gift is usually a type of general gift = gift of money payable out of the general assets of the estate o Note: may = demonstrative where the funds are identifiable – i.e “I give bank account 12345 at the

Mayfield branch of BMO to X”

If Insufficient:- if there is insufficient funds available to the estate, all/part of the of the gift will abate / partially abate

Abate = ben. gets nothing o Partially abate = the reduction of gift

Advantage:- The gift foes not depends on specific prop remaining part of the estate

Disadvantage: - If there is not enough property in the estate (after specific and demonstrative gifts) the gift abates

Note: A gift of SHARES = prima facie a general gift (Re Millar; Re Willcocks) - UNLESS there is a contrary intention

o i.e A gift of 10 shares in a particular company that my father gave me = specific (because the shares are identified and distinguished)

- Gift of share is essentially a gift of the value of the shares o Ben can ask for the monetary value rather than the shares

UNLESS the thing is inalienable i.e gifting a Canada savings bond (inalienable)

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o If estate does not have the number of shares identified = a direction for the estate to go out and buy the shares

sometimes problem in determining their value (Re Millar) i.e T owned one watch and directed that each of 20 grandchildren receive a watch –

how much does executor spend?

Abatement Abatement = the reduction of amounts or quantities of gifts when the estate is insufficient to pay the debts and gifts in full

- Applies to general gifts and demonstrative when there are insufficient funds in the estate - Abatement = the pro-rata reduction of amounts/quantities of the testamentary gifts when the estate is unable

to pay the debts and gifts in full - CL order of abatement (which gifts abate first):

o Residual personal propo Residual real propo General legacieso Demonstrative legacies o Specific bequeaths of personal propo Specific bequeaths of real prop

- *this order applies unless there is a contrary intention in the Will

Note: example – if T directs sale of prop for not less then specific amount, and specifies a gift from that specific amount with remainder to ben, both gifts = specific gifts and will abate pro rata with other if the prop is sold for less

Lindsay v Waldbrook Facts: T directed that farm be sold on death, and for executors to payout to grandson first. Farm was sold for less then what would cover all gifts bequeathed. Issue: Whether grandson’s legacy took priority over the other gifts/didn’t abate Court: working not specific enough to =priority; prima facie, all bequeaths stand on equal footing – words of will cannot leave doubt, it must be clear

DemonstrativeDemonstrative Gift = gift of a specified amount/quantity from an identified source

- HYBRID of general and specific (best of both w/o the bad) o GENERAL – in that gift can be paid out of general estate o SPECIFIC – in that specified amount or quantity out of a particular fund or asset

- i.e “I give X $500 to be paid out of my bank account 12345…”

Advantage: - Even if gift does not exist/ insufficient funds in source, gift does NOT ABATE as long as sufficient money can be

raised from other sources (after paying out specific gifts) o If insufficient money from fund and other sources when will Abate

- Ben gets 1st crack at that specific account order to get gift (can’t be used for a general gift unless the demonstrative gift has first been paid)

Example:T left 2 bens a quantity of wheat to come out of Bin 1. There was insufficient wheat in Bin 1 to satisfy the gifts. There was not sufficient wheat in other bins to satisfy these claims and the claims to other bens. What happens?The 2 bens scoop what can from Bin 1. Rest comes from the residual estate and abates if insufficient.

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ResiduaryResiduary gift = gift of the remainder of the T’s estate that has not been disposed of

- Includes all property after general, demonstrative and specific gifts are satisfied AS well as all gifts which have failed

- Can be real or personal prop - Can include up to the net prop of the estate (if no other gifts) - i.e “balance of my estate” or “all my property”

If a gift/part of a gift of residue FAILS it passes on intestacy

Disadvantage- if demonstrative or general gifts have abated/partially abated there is NO residuary gift

The hierarchy for paying debts- creditors then Bens. (bens are “volunteers” – take subject to the rights of the creditors) - creditors take from estate in this order:

o 1) residuary; 2) general; 3) demonstrative; 4) specific

Possession of Gift Will speaks as of the date of the death, unless contrary intention is indicated (s. 27 WSA)

- For specific giftso The courts have regarded a gift of a specific item that is incapable of increase/decrease as sufficient

contrary intention so not subject to s. 27 i.e “my piano” or “my house at 500 Richmond st”

o Regular approach for those capable of increase/decrease i.e “my real property in London” - at time drafted Will T owned a house, but at time of death

owned a condo (doesn’t matter) - For general gifts gift is that possessed at time of death - *note: NOT limited to property

o can include the description of the beneficiaries i.e T gives a gift to the spouse of B. B’s spouse dies and B remarries before T’s death. B’s spouse

at time of death is entitled to the gift (Re Cameron) If predeceases and no remarriage = lapse

i.e gift to daughter’s Husband Johnathan. Even if daughter divorces before death the gift is probably still good because it identifies a persona alive at the time of death

- Temporal Words i.e “now” and “then” = problems determining what they mean need to consider circumstances

o i.e Re Forbes - in circumstances “now” = date Will was executed as compared w other language used i.e “at the date of my decease”

Re Rutherford Facts: T gifted house and premises on Merton St to his widow for life or until she remarried and thereafter to his living children. He gave the residue of his estate to his widow. After making his Will, T acquired the lot next door and joined both lots in use (without changing subdivision/title). T had both lots at time of death. I: Was second lot part of “house and premises”?

- Note: Widow would want it to be residue because then gets absolutely vs if part of premises then she only gets life estate

Court: Second lot was merely an enlargement of existing premises = included in premises

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Note: Similar situations: - Tearing down house and building new on same premises (see Re Bird); painting car, etc.

Re Bird Facts: T gave son the “house and premises 14 Mitchell Ave, Toronto,” but after making the Will T demolished the house on 14 Mitchell ave and replaced it w 2 semi-detached houses known was 14 and 16 Mitchell ave. Both houses were on lot 14. I: is the son entitled to both houses?Court: Son gets both – essentially treated as improvement/enlargement. Son gets entire lot regardless so how could he not get 16 which is on the land?

Appurtenances Appurtenances = things that belong to another thing – pass under a testamentary gift as part of the gift

- i.e easements, rights of way - another way at looking at Re Rutherford - the adjourning prop was a appurtenances that the T used

Lapse If beneficiary predeceases T and T does not provide for a substitutionary gift to another person, the gift “ lapses” (falls into residue) UNLESS the statue applies:

- S. 32 WSA: (order A, than B, than C) a) If B predeceased T then prop. is distributed to the alternative B provided UNLESS there is a contrary

intentionb) If A does NOT apply then if the deceased B was a descendant of T, and the deceased B has living

descendants, then the prop is distributed to those descendants (in the same manner as if the deceased B had died intestate w/o a spouse/partner) a. “descendant” = children, grand and great

c) If A and B do NOT apply then the prop is distributed to the surviving residuary B’s of the T if any a. *only applies if the gift is NOT a gift of residue*

d) If NONE of the above apply then distributed as if had died intestate.

If the gift lapsing is a residuary gift = distributed as if died intestate (unless contrary intention) - i.e T leave residuary in equal shares to X & Y. X predeceases T. X’s share does NOT go to Y = that share is

treated as if T died intestate

Re Stewart Facts: T left residue to be divided among 13 Bs. 1 B predeceases T. I: Does that share of the residue get divided among the surviving 12 B’s? Court: gift = intestate where residue lapses UNLESS B was a descendant / has living descendants

Re Greenwood Facts: General rule at time that if B predeceased gift would lapse. But T had provision in Will deeming any predeceasing B be treated as if died immediately after T died (allowed their share to go to their ben.) Court: it is acceptable for T to make an alternate plan from the general rule = example of contrary intention

Advancement (WSA s. 109)An inter vivos gift (of money or prop) given with the intention that the gift shall be taken into account in determining the individual’s share in the estate = Advancement

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- Rule: advance is SUBTRACTED from the share of the estate that that ben may have gotten OR held in trust for the estate

o This applies to ANYONE who can make a claim (“prospective beneficiaries”) - Application:

o Applicant cam make an app claiming that there was an advance o 6 mths to make the app o see s. 109(5) for estate division if advance found o Court needs to determine: a) intention, b) value of the advance. o Need to Prove:

INTENDED advancement show that it was advanced against intestacy (the burden is on the person making the claim of advancement)

Be supported by evidence: Intestate’s oral stm at time of transfer Intestate’s written stm anytime Prospective ben’s oral or written stm anytime

s. 109(3) = factors to be considered (not exhaustive) Example: T has 3 children. T gave 1 child $100,000 to buy business. T dies intestate w estate

valued at $200,000. Leg prevents one child from getting more then others. If the advance is more then what each child would get then the child gets nothing (so child 2 and 3 get $100,000 each).

Note: Fact giving $100,000 to child mean nothing unless an intention to advance is proved

- Value of Advancement = value assigned in writing by intestate/child or if not value assigned it is the value of the property WHEN GIVEN

o Note: no min value is required – but money for these things is more likely to be considered an advance then clothes etc.:

House, tuition, business, investment, etc.- Equation for distribution:

o (Estate + Advancement) / Beneficiaries Ben who received advancement will only receive additional to make him equal with bens of the

same degree

If Intestate – Presumption that, if T dies intestate, predeceased by the ben, the transfer was not intended to be an advance

s. 110 abolished CL rules re Advances- CL rules = presumption that T acting in this way = and advance - NOW have to PROVRE intention was an advance

Equitable Doctrine of Conversion “equity deems that as done which ought to be done”

T has not concluded the disposition of the prop (the gift) at time of death, but has entered into agreement to sell prop still technically part of the estate BUT absent statute the gift will adeem.

- Equity deems there to have been a notional or equitable conversion of the prop into another kind of prop as soon as contract is made

Church v Hill Facts: T devised prop to his daughter. Directed that the balance of the prop be divided equally to remaining children. Before death, T entered into contract to sell the prop.

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Court: Daughters gift adeemed, but remaining children’s claim to the purchase moneys was successful as they were bequeathed the remainder of the estate.

Note: SAME SITUATION applies where T has granted an option on the prop that bequeathed/devised by Will, and the option is exercised after death (before death = actual conversion)

Effect of Statute (s 10, WSA ) To counteract the equitable doctrine, statute was developed: s. 10 & s. 1(1)(i)(iv), WSA:

- s. 10:o where T makes a Will disposing of prop, but disposes of an interest in that prop before his death, the

ben inherits any remaining interest the T had at the time of death UNLESS contrary intention s. 1(1)(i)(iv) - remaining interest includes chose of action

i.e ben gets ant unpaid portion of sale price, right to sue, etc.

DiMambro Estate v DiMambroFacts: T left house and contents to 2 grandchildren. Will divided residue among T’s children. After making Will T signed agreement to sell house, but died before the transaction closed. Court: statute = bens entitled to same right T had in house = entitled to receive the proceeds of sale

Effect of Republication Republication (new date to Will when T re-executes Will/executes a codicil) may avoid the application of the equitable doctrine of conversion

- i.e Re Reeves; Reeves v Pawson o Facts: T drafted will while under 7 yr lease, leaving interest in lease to daughter. 6 yrs later T renewed

lease for 12 yrs. 3 yrs later T made codicil affirming Will. T died with lease still active for 7 more years. o Court: codicil republished will = confirming gift of interest in 12 yr lease.

Alberta Reversion of Equitable Presumptions: Election, Satisfaction and Rule against Double PortionsWSA s. 110

- s. 110(1) and (2) abolish the rule against double proportions:1) any presumption that T making a substantial transfer to T’s child during lifetime (but after Will) = an

advancement of portion of child’s share in estate;2) any requirement that any transfer to child during life time, must be deducted from child’s share of estate, if

T dies intestate; - s. 110(3) abolishes the doctrine of satisfaction:

3) any requirement that T making disposing to creditor in Will an amount close to the amount owed in debt = T’s intention to clear that debt;

- s. 110(4) abolishes the doctrine of election: 4) any presumption that T’s transfer of money equal or greater to amount bequeathed to the same person in

his Will = T’s intention for the transfer to = a revocation of the disposition in his Will

Denial of BenefitsInd CANNOT take as a result of his WRONG DOING (i.e murder, criminal negligence, etc.)

- prevented by public policy o i.e Re Medaini – decision not to allow murder to ben from victim’s estate is justified in public policyo *point is to prevent ind from benefiting from wrong doing WILL NOT take away rights that were

acquired before wrongful act

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i.e Schobelt v Barber – H and W owed land as joint tenants. H had right of survivorship which couldn’t taken cause killed W. BUT he got to keep his half of the land that he owned previously as joint tenant (now joint tenant with W’s next of kin)

- BUT where ind commits suicide after murder, etc. CANNOT assume that his estate is disentitled form taking o Need to know purpose of committing murder – if not to obtain benefit from victim’s death then estate

can still take (Re Gore) - applies to:

o gifts under Will o rights on intestacyo rights under survivorship of joint tenancy o life insurance proceedso social security benefits o pension and death benefits o etc.

- Note: this is the case even when the ind didn’t intend to cause death

Ind ALSO CANNOT ADMIN ESTATE after wrongdoing (Re Noble Estate) - Ind and anyone acting for him CANNOT be executor/admin estate

HOWEVER – to be disentitled, the ind MUST be guilty of CULPABLE homicide - Ind WILL NOT be deprived if:

o Legally insaneo Automatism o Self defence o Or simply negligent

- Onus on those alleging insanity, etc. - Standard = BOP (civil standard)

BUT the person can make a civil app for benefits (even someone who was convicted) - The conviction IS admissible as evi – BUT it is not in and of itself conclusive

o Because – public policy – not everyone who pleads guilty is guilty o Similarly, trial/ conviction does NOT determine capacity

i.e ind criminally convicted of manslaughter is not enough to rule out criminally responsibility for civil apps (Re Charlton)

- For the most part After an acquittal evi of guilt is NOT admissible (Re Emerle) o Because – standard in Crim is higher o Note: Hopp agrees, BUT this is still an open-ended question (i.e OJ – found liable in tort)

Scenarios 1) H and W had 1 child and he had a son. The child murdered the parents. They were intestate. Does his son

take?a) NO – the Child was still alive when his parents died, so doesn’t pass to his descendants via intestate

distribution (s. 66 WSA), and the child couldn’t take from his parent’s estates. 2) H and W left estates equally to their 2 kids w a gift over to the children of a deceased child. One of their kids

murdered them. The disentitled child (the murderer) had 3 children of his own. Are they entitled to take? a) NO – they cannot take under the Will because the disentitled child didn’t predecease. The gift to

that child fails, so treated as intestate which is same situation as #1 (still don’t take) 3) H and W were joint owners of a life insurance policy naming the “survivor” as be. H murdered W. Is anyone

entitled to take?a) NO – W’s estate doesn’t get because she died before H. Only ben = survivor = murdering H =

disentitled

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4) H, W and Y own real prop as joint tenants. H murdered Y. How is Y’s property distributed?a) *Remember – Right of Survivorship: normally H and W would take half of Y’s portion. b) Because H murdered Y he is disentitled to half of Y’s. Result: H keeps his original 1/3, W has 2/3 (her

original plus all of Y’s)

Maintenance & Support

Temporary Occupation of Family Home (WSA s. 75- 79) General Rules:

- spouse/CL partner normally have right to occupy for a limited time (90 days – but can be reduced/extended on app) (s. 75) and use “household goods” (s. 76)

o if renting/mortgage payments, estate obligated to provide in interim (s. 79) o applies to prop owned by T solely or as TOC w spouse (title would pass to spouse via right of

survivorship) not joint tenants (or spouse w life estate – gets it automatically)

- s. 2 & 3 = Dower Act prevails over WSA if conflict o i.e T leaves house to kids, but W has dower W gets to use house for life and kids will get on death

s. 78 – spouse/CL partners can sign agreement to waive claims to house and household goods under ss 75 and 76, upon one/both of their deaths

- this agreement survives the death of the spouse and binds the estate

Order for Maintenance/Support

Generals. 88 WSA

- individual can make an application to the Court for support and maintenance if dies testate without making adequate provisions for the proper maintenance and support of a family member

o OR dies wholly or partly intestate and the share to which a family member is entitled to under a will or Part 3 or both is inadequate for the proper maintenance and support of that family member

- Issues:o If multiple family members make application for support and maintenance

i.e w small estate, an order might overwhelm the estate this is a great limitation on the individual’s ability to dispose of his/her property as he/she sees

fito In allowing an application the court still has to consider the rights and needs of other family

i.e child a day over 18 is not legally able to make an application, but the child is still morally entitled to support

o Individual has the right to include in while why they are or are not giving their property to a specific person BUT the court while the court will consider this, that will also balance it

Designed to enforce the moral obligation of T to provide for familyTataryn v Tataryn (SCC, 1994) The SCC approved the legal and moral dichotomy constructing the obligation of an estate to provide support to a dependant. The SCC found that the deceased’s moral duty towards his/her dependants is a relevant

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consideration on a dependant’s relief application, and that judges are not limited in conducting a needs-based economic analysis in determining what dispositions to make.

Note: A family member CANNOT contract out of his rights to maintenance/support - any attempts to do so are void - to allow this would be contrary to public interest (re ensuring family members are supported) - Note: that court can consider the existence of an agreement when making a decision on an order for M/S

Requirements: 1) Can ONLY be made by a “family member”

s. 72 = who is a “family member” children under 18 (at time of death – Alberta (Public Trustee) v Buchholz Estate)

o normal child is entitled to M/S until attains age of 18 children over 18 who are unable to earn living because of mental/physical disabilities children between 18-22 who are unable to w/draw from parent’s charge because is a

full time student (under FLA) grandchild (under 18) for whom T acted as a parent at time of death

o s. 73 - criteria: grandchild for whom T acted as a parent at time of death (and at least 2

yrs before) Considerations:

primary home, financial support, duration of relationship, child’s perception (re consider grand-parent like a parent), where T considered applying for guardianship

s. 90 = WHO can make the application on their behalf i.e Public trustee has right to make app and appear/make representation, BUT is not

obligated to o is not liable if does not

Note: ALL family members and bens MUST be served AND app is treated as if on behalf of all family members/bens (s. 91 & 92)

2) T can have died testate or intestate 3) Issue is where funds left to family member are enough to provide “proper maintenance and support” (s. 88

– Order for Maintenance and Support) “maintenance and support”

sometimes impossible to satisfy both sometime gift can be inadequate, but proper given the circumstances

o i.e T leaves his small estate to 12 children the gifts are proper because only has this much, even though it is inadequate (cant do anything about it)

“proper” is NOT what is proper in regards to the style of life family member was living at time of T’s death

proper = lifestyle family member should have had if treated properly o Court in Bosch v Perpetual Trustee Co – “court must place itself in the position

of the T and consider what he ought to have done” varies in the circumstances court considers s. 93 factors – note: both economic and

moral factors are considered (Cummings v Cummings)o courts discretion is unfettered – court decides on the basis of ALL of the

circumstances of the case (Re Willian Estate) Qs = 1) is it adequate? If yes, 2) is it proper?

4) Order MUST be sought within 6 mths of grant of probate (s. 89)o If late, order can only be made out of what remains in estate o s. 106 = no early distribution of T’s estate w/o consent of family member or Court order

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Personal rep MUST wait 6 mths from Grant of Probate/Admin to distribute to any bens Personal rep who distributes early w/o consent/order IS PERSONALLY LIABLE for amount equal

to any maintenance/support payable under an order, that would have been paid from the amount that was distributed early

NOTE: definition of “family member” protects party that doesn’t take on intestacy when T has both a spouse and a partner

- BOTH can make app under s.88

s. 93 – matters to be considered by court: Not exhaustive list – see last line: “and any other matter the Court considers relevant” Consider all family members and bens and weigh the circumstances/needs

o Nature and duration of the relationship between the deceased and the family membero The age and health of the family membero The family member’s capacity to contribute to his or her own support

Which includes any entitlement to support from another persono Legal obligations of the deceased or the estate to support any family membero The deceased’s reasons for making or not making a disposition to the family membero Any relevant agreement or waiver made between the deceased and the family membero The size, nature, and distribution of

The deceased’s estate And any property or benefit that a family member or other person is entitled to receive by

reason of the deatho Any property that the deceased, during life, placed in trust in favour of a person or transferred to a

person Under an agreement or Order or as a gift or otherwise

o Any property or benefit that an individual is entitled to receive under the Matrimonial Property Act, the Dower Act, or Division 1 of the Wills and Succession Act

Re William Estate Facts: T owned farmland. He kicked wife off of property and paid her support but minimal (especially in comparison to his lifestyle). T included clause in his Will to leave gift of cash to W, rather than allow her the property/income from its sale (gave reasons in Will). Left balance of estate to charity. W argued that she should receive the prop, as she would have if he was intestate. Court: was allowed to consider the reasons left by T. s. 93 also gives court power to “consider any other matter” it considers relevant. Court considered her dower rights and made her agree to give up her dower rights in exchange for larger support paid to her from estate.

SUBJECT of Maintenance/Support Order- Prop affected by M/S order = only prop T had at time of death (i.e Dower v Public Trustee)

o WSA does not give court power to prevent ind from disposing of prop during lifetime However, under Matrimonial Property Act, spouse CAN get order preserving matrimonial prop

until resolution of dispute - s. 102 prop disposed of by contract during T’s life IS NOT subject to order for M/S

- EXCEPT where the value of the prop exceeds the consideration received by T = VALID consideration required

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o i.e T has 2nd wife and son from previous marriage. T and son CAN enter into contract to leave farm to son if a) the son agrees to pay FMV of farm to the W BUT UNLIKELY that scenario b) (contract where son agrees to spend 1 day a yr helping w harvest) would be acceptable

Note: if in b) order made order against farm land – the personal rep of the estate would have to pay out son for the value of consideration he put in (= duty owed)

o Way around the valid consideration requirement make contract w consideration as performance, but set timing on death (= transferred by act rather then Will)

- Note: contract in these cases is something separate from Will

s. 95 disclosure of financial information - In deciding whether to grant order, court may request financial information of ANY family member or personal

rep- If ind refuses to comply, the court may a) order compliance; b) dismiss the app; c) hear the app and draw

adverse inferences about non-disclosure

Successful App- Allows court to change the disposition of prop set out in Will/intestate regulations (including varying succession

rules) o Effectively = court to rewrite the Will to extent necessary to give effect to the order

- Can terminate/limit period of temp possession under s. 75 (right of surviving spouse) if/to the extent that court considers the limit necessary for adequate maintenance/support

- s. 98 Effect of the Order o Unless otherwise ordered, an order for maintenance/support is charged against the whole of T’s estate

(or whole of what court has juris over (i.e what’s in AB – although may still consider the value of the whole estate)

Note: normally order taken against whole of estate but court may order that only made against part of the estate or out of 1 gift

o s. 100 order effects as if made immediately on death of deceased

Liability of Personal Representative

Personal Rep WILL be LIABLE where:- DISTRIBUTES EARLY (before 6 mth hold time) w/o the consent of family members/ court order (s. 106)

o Rep is PERSONALLY liable for amount court orders as maintenance and support, that would have been paid from the amount he distributed

- DISTRIBUTES INCORRECTLY estate in contravention of the court’s order for maintenance/support (s. 106) o Rep is PERSONALLY liable for the amount that should have been paid out of the amount that he

improperly distributed/disposed ofo Note: if did so Wilfully (contravenes order) – personal rep is guily of an offence (see s. 106(3) for more)

Role of Public Trustee (PT)Public Trustee acts for:

- Infant children- Children over 18 but w/o mental capacity, etc.

Will receive notice for Grant of Probate/Admin on their behalf NO Grant can be made until the PT responds re will/no appear

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Public trustee is given rights under sections re maintenance/support (s. 91(3), 104 & 104) – BUT he is NOT OBLIGATED to exercise those powers

- NO action can be taken against Public trustee or any person for anything done/omitted to be done in GOOD FAUTH

o Includes decision not to make an app on behalf of a family member (s. 105)

Solicitor’s Duties 1. Duty to Client - in taking instructions for a Will

a. Includes:i. Advising client,

ii. Taking instruction,iii. Ensuring Will is drafted in accordance w client’s wishes. iv. Ensure T knows and understands the testamentary act, v. Ensure T has capacity,

vi. Ensure T is not under undue influence. 2. Duty to Bens

Duty to Client (Taking Instructions for Will)

Lawyer has obligation to ensure that T has capacity, has knowledge and approval of the contents of the Will, and is not subject to undue influence/fraud.

- Even more so when:o T is elderly, appears to suffer from an insane delusion or lack of capacity, if the instructions differ

substantially from a previous Will or if the instructions are not received directly from the T. - Extent of Duty VARIES in circumstances (Murphy v Lamphier)

Q’s to ask T/keep notes of response (signed by T):1. Does he know what a Will is? 2. Generally, how much prop does he have? (How much is he worth) 3. What relationships does he have? (i.e wife, children, grand-children, employees, etc.) 4. What does he want to do w prop?

a. If leaving someone out, why?Purpose = owe T more then just a duty to draft Will, but also to ensure that what he wants is upheld (to best of ability)

Re Worrell Facts: T left basically entire estate to a friend and his family. One of which prepared the letter of instructions that the T signed, and was the one that took the letter to the lawyer. The lawyer prepared the Will, gave it to the same friend and told him to have it executed by the T. W’s and doc testified to T’s competency, but no evi that the Will was ever even read to T/that he had read it. Court: denied probate – the suspicious circumstances around Will were not sufficiently negated. J’s Discussion of the Conduct of the Lawyer: Reckless and showed no indication that what he had done was improper.

- Should be no occasion where lawyer should prepare Will w/o taking direct instruction from the T and then attending them personally when the Will is executed.

- Any lawyer drafting a Will should make full docket entries re the details

Scenarios:1) Can solicitor refuse to draft Will if believes T lacks capacity?

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a. When “doubtful” – Hopp says NO – he might actually have capacity so can’t deprive him of his rights. Just make notes, get Doc assessment, etc.

b. When clearly crazy – YES 2) Does solicitor’s duty to client end when Will is executed?

a. NO – duty is more then preparing Will, includes taking steps to see that Will is upheld. 3) Can you videotape/ record signing of Will when there is a concern about capacity?

a. YES – Hopp says consent would normally be implied as part of duty to ensure capacity, but ask for consent to be cautious.

4) Does solicitor have duty to inform clients (that made Wills for) of changes in the Law?a. Ideally yes, but practically there is execution problems. i.e How do we discharged? Lawyer’s don’t

constantly review Wills. 5) Is a lawyer liable for disappointed recipients of inter vivos gifts?

a. Not unless lawyer was responsible for making the inter vivos gift. Generally, there is no right to gifts until death

6) Do bens harmed by lawyer’s negligence have right to recover from the people who benefited from the negligence?a. NO – a ben entitled under old Will or change in statute should not compensate.

7) How would a ben confirm a solicitor’s negligence caused him damages?a. Discovery – notes, talked to someone that knew T’s instructions hadn’t been followed, etc.

Duty of Care Towards Beneficiaries

Historically, bens claims to recover damages for solicitor negligence (re drafting Will) were rejected because of the doctrine of privity of contract (= lawyer liable for negligent only to a client (the person with whom the lawyer is contracted))

NOW bens can make tort claims for negligence against drafting lawyer - Many of the cases are where the lawyer failed to observe well-known formal requirements of Wills - Routed in the Hedley Byrne Principle if the P seeks info from a D who possesses special skill/knowledge, if

the P trusts the D to exercise due care, and if the D knew/ought to have know of that reliance, then the D owes a DOC to the P

- RESULT = solicitor may be liable in damages to someone who I deprived of a benefit because of solicitor’s negligence

o Note: Possible WAY AROUND = if result of intestacy would be the same result as the failed gift (no damages so can’t sue)

White v JonesFacts: D = lawyers. T instructed lawyer to prepare Will disinheriting his 2 daughters because of a fight. When they later reconciled, T sent a letter to the firm asking to make a new Will that included both. The firm received the letter, but nothing was done for a month, at which time the lawyer asked another department to handle while on vacation. Lawyer had T made appointment to execute new Will, but T died before appointment. Daughters brought action for damages for negligence. R: the Hedley Bryne Principle can be extended to a disappointed Ben who, at the relevant time, was unaware that the T had engaged a lawyer to create a Will

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Documents

Application of the - Cloud Storage — AWS-+Wills+CA… · Web viewYoung v Holloway) Legal Personal Rep ... = X does not get the new piano because T did not have that piano at time