In Canada, section 2 of the Assisted Human Reproduction Act sets out that “No person shall remove human reproductive material from a donor’s body after the donor’s death for the purpose of creating an embryo unless the donor has given written consent”. In considering cases under section 2, the Supreme Court of Canada has made it clear that the ability of an individual, either living or deceased, to control the use of their reproductive material is of fundamental importance as it relates to human autonomy.
In the recent case of L.T. v. D.T. Estate (Re), 2019 BCSC 2130, the BC Supreme Court had to consider the proper application of section 2 in difficult circumstances. A young couple had been a long-term relationship for several years before marrying and having their first child together. Sadly, the husband passed away suddenly and unexpectedly 3 years into their marriage. After his death, the wife requested that a fertility clinic retrieve his sperm for future use. In the absence of a clear directive from the decreased, the fertility clinic required a court order before extracting the sperm. The wife then applied to the court for such an order.
Given the urgency of the matter and application, the Court ordered that the reproductive material be harvested and stored by the fertility clinic in order to give the parties time to present evidence and make detailed submissions.
At that hearing, the Court heard testimony from the deceased’s wife, several family members, and close friends each of whom testified that the deceased wanted to have more children; did not want his daughter to be an only child; and took great joy in being a parent. There was no evidence that the deceased would not have wanted his reproductive material to be used after his death. Frankly, he and his wife had not considered it at any time before he died and the court accepted that young couples do not commonly turn their minds to such matters. In summation, the wife asked the Court to consider the entirety of the situation when considering consent and allow the reproductive material to be maintained for future use by her.
Although the Court was highly sympathetic and agreed that the deceased wished to have more children prior to his death, the law clearly prohibited the use of his reproductive material without clear written consent and that consent could not be inferred from prior statements of the deceased on the general topic of having more children. The Court ruled that the deceased’s reproductive material was to be destroyed within 30 days of his order to allow the wife the opportunity to consider an appeal.
Johnston Franklin Bishop is pleased to announce that Alexa Zimmer has been called to the bar, finishing her articles, and is now a lawyer. She will continue to practice law in the practice areas of real estate, wills and estates, and litigation with Johnston Franklin Bishop.
The recent decision of Grewal v. Litt, 2019 BCSC 1154 looks at the factors the Court will consider when deciding to vary a will that treats independent adult children unequally. The potential influence of cultural traditions and customs on the parents’ decision-making was a central issue in this matter.
In this case, Nahar and Nihal Litt passed away in February and March of 2016 respectively, leaving six adult children and an estate worth approximately $9 million dollars. The family’s wealth was accumulated through real estate; particularly farmland. The Litt’s mirror wills made in December 1993 left $150,000 be each of their four daughters with the residue of their estate to be divided equally between their two sons. The result was that the daughters, collectively, received $600,000 or 6.6% of their parents’ estate whereas the sons together received $8.4 million dollars representing 93.4% of the estate.
The four daughters applied to vary their parents’ wills and sought an equal distribution of the estate among all six children. While all parties to the proceedings agreed that their parents failed to meet their moral obligations to their daughters and that the wills should be varied, the sons were not agreeable to an equal division among all six children.
In support of their claim, the daughters pointed to traditions and customs within the Sikh culture that favour sons and, as a result, discriminate against daughters. They claimed that their parents felt bound to follow these customs, which were not in keeping with contemporary standards and resulted in the unequal division of their estate. They also gave evidence relating to their contributions to the farmland that made up a large part of the estate; their relationships with their parents; and the care they provided to their parents at the end of their lives.
In deciding that the daughters’ collective share of the parents’ estate should be increased from 6.6% to 60%, leaving the remaining 40% to be shared between the sons, the Court considered: gifts and benefits made to the children during the parents’ lifetime; the parents’ reasons for the distribution; the reasonably-held expectations of the children; the children’s contribution to the estate; the children’s relationship with their parents and contribution to their care; and the children’s personal circumstances. The Court also looked at the size of the estate, which was sufficient to provide for all of the independent adult children.
Throughout their lives, all children had assisted with and worked on the farm to varying degrees. The sons’ use of the farmland and receipt of revenue was considered both as a benefit received by the sons, which heightened the parents’ moral obligation to their daughters, and evidence in support of one son’s reasonable belief that he would receive a greater share of the estate. There were no circumstances that the Court found would negate the parents’ moral obligation to their daughters. They did consider a period of estrangement between the parents and one daughter, but as the parties had reconciled prior to the parents’ deaths, this was not a circumstance that would negate the parents’ moral obligation to that daughter.
In considering whether the parents were “bound” by culture and tradition, the Court accepted that the sons and daughters were treated unequally during their lifetime and by the wills, and that culture and tradition may have influenced the parents’ decisions with respect to distribution of their estate. The Court did not accept that this influence amounted to the parents believing they were bound with respect to decisions relating to their estate. The Court pointed to the fact that despite being estranged from her parents at the time the wills were made, one daughter was still treated in an equal manner as the other daughters.
This decision highlights that variation of a will to create an adequate, just, and equitable division will not always result in an equal division. The Court’s role is not to re-write the will, but only to vary it as necessary to create an adequate, just, and equitable result. In upholding the parents’ testamentary autonomy, the court chose to give equal portions of the estate to the daughters and equal portions to the sons, as opposed to equal division among all six children.
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In the 2018 decision of Enns v. Gordon Estate, 2018 BCSC 705, the Court considered estrangement between adult parents and children, and when estrangement can be sufficient to establish a circumstance that negates a parent’s moral obligation to provide for their child in their will.
This case involves a claim by Norma Enns and Elizabeth Gordon to vary the will of their mother, Mary Gordon. Mary was predeceased by her husband, Albert Gordon, and Norma and Elizabeth were the couple’s only children. Section 60 of the Wills, Estates, and Succession Act provides that the Court may vary a will in favour of a spouse or child in such amount as the Court thinks is adequate, just, and equitable in the circumstances.
Mary’s estate was approximately $1,000,000. Under Mary’s will, each of her daughters were to receive just $10,000. Additional cash gifts to other beneficiaries totaled $55,000 with the residue left to the Delta Hospice Society and the BC Children’s Hospital Foundation. Mary left several memos explaining her reasons for the distribution set out in her will, and for leaving only a nominal amount to her daughters.
Both daughters experienced periods of estrangement from their parents. While Norma’s estrangement was relatively short at 2 years, Elizabeth’s estrangement lasted for approximately 14 years. Nevertheless, both daughters reconciled with their parents in 2011 after being informed that their mother had been diagnosed with cancer.
In examining the family history, the Court found that the parents were strict and controlling. The estrangements between the parents and their daughters arose from disputes relating to real property that the daughters resided in with their respective spouses. In each case, the parents assisted with the purchase of the real property, but the terms on which the assistance was provided was not clear, resulting in the disputes.
Mary and Gordon made their wills in 2009 shortly after their falling-out with Norma. They were also estranged from Elizabeth at this time. The provisions of their wills relating to their daughters were not updated after their reconciliation in 2011. While at least one of the memos written by Mary acknowledges the reconciliation, she indicated that she did not want to change the terms of her will.
The Court held that the provision made for Norma was not adequate, just, and equitable in the circumstances, and was not within the range of what society would expect. The will was varied to provide 60% of the residue to the named charities, and the remaining 40% to Norma.
In reaching this decision, the Court considered the following:
- The 2-year period of estrangement between Norma and her parents was relatively short, and the parties reconciled prior to the parents’ deaths.
- The estrangement was, in part, based on a misunderstanding with respect to the terms of ownership of a property;
- The reasons set out in the memos left by Mary were not rational. The Court found that they were spiteful and did not reflect the parties’ relationship at the time of Mary’s death.
In arriving at its decision, the Court exercised its discretion to consider evidence beyond the parents’ statements or expressed reasons for their treatment of their children in their wills. The Court also put weight on the fact that there were no competing claims by parties with moral obligations. The Plaintiffs were not seeking to vary the specific gifts of $55,000 and the Court found that the there was no evidence of the parents having a particular connection to the charities that stood to receive the residue of the estate.
Unlike Norma, the Court did not make an order to vary the will to increase the gift of $10,000 left to Elizabeth. This was due to the significant period of estrangement between Elizabeth and her parents and the lack of evidence relating to the estrangement. Elizabeth died about 6 months after her mother and, as such, there was minimal evidence available to the Court to explain her reasons for the long-term estrangement. On the evidence available, the Court found that the estrangement negated any moral duty owed to Elizabeth by her parents.
When considering whether estrangement between a parent and adult child amounts to a circumstance that negates a parent’s moral obligation to their child, the Court will consider the length of the estrangement, the reasons for the estrangement, and who took steps to reconcile.
The 2012 decision of Dunsdon v. Dunsdon, 2012 BCSC 1274 is frequently cited in cases involving claims by adult children to vary a parent’s will.
Under section 60 of the Wills, Estates, and Succession Act, the Court may vary a will in favour of a spouse or child in such amount as the Court thinks is adequate, just and equitable in the circumstances. Because a will-maker has both legal and moral obligations to their spouse and dependent children, claims by those parties will be periodized over claims by independent adult children, who are only owed a moral obligation.
In this case, the Court summarizes the test established in the seminal case of Tataryn v. Tataryn; a 1994 decision of the Supreme Court of Canada, which continues to be the leading case on wills variation in British Columbia. The Court in Dunsdon supplemented that test with a list of considerations that can be applied when the Court is considering claims by independent adult children.
The test established in Tatyrn looks at whether the provisions made for a spouse or child are adequate, just, and equitable. The adequacy of the provisions is measured by considering whether, in the view of current social, legal, and moral norms, the will-maker acted as a judicious parent or spouse would be expected to act.
The Tatyrn decision also confirms that, while testamentary autonomy should be protected to the extent possible, it is outweighed by the requirement that adequate, just, and equitable provisions be made for spouses and children. The decision also indicates that if a will-maker’s estate is large enough, an amount should be provided to satisfy moral claims by independent adult children.
In Dunsdon, the Court follows the test set out in Tatryn and provides a list of considerations that have been accepted as evidence to inform the extent of a will-maker’s moral obligation to their independent adult children. These are the:
- size of the estate;
- contributions by the claimant;
- reasonably held expectations of the claimant;
- standard of living of the testator and claimant;
- gifts and benefits made by the testator outside the will;
- testator’s reasons for disinheriting;
- financial need and other personal circumstances, including disability, of the claimant;
- misconduct or poor character of the claimant;
- competing claimants and other beneficiaries.
Both the Tatryn and Dunsdon decisions confirm that there is no single correct way to divide an estate and that an adequate, just, and equitable division will not necessarily be an equal division between beneficiaries.
Although Dunsdon was decided under the former Wills Variation Act, which was replaced by the Wills, Estates, and Succession Act in 2014, the principles still apply.
Following the death of her common-law spouse, Graeme Livingston, Vicki Gibbons sued to vary his will, which left his entire estate to his son and left nothing to Ms. Gibbons. The primary asset passing through the estate was the home in which the couple resided valued at approximately $308,000.
On his death, assets passed outside Mr. Livingston’s estate to both his son and Ms. Gibbons. His son was the beneficiary of an RRSP of approximately $125,000, while Ms. Gibbons received a life insurance policy of $350,000 and approximately $3,000 per month as the beneficiary of Mr. Livingston’s pension.
The parties agreed to settle Ms. Gibbons’ claim at mediation and, as such, her claim to vary Mr. Livingston’s will was not considered by the court.
After failing to comply with the terms of the settlement agreement, Ms. Gibbons amended her lawsuit to claim that the settlement agreement was unjust, unfair, and inequitable, and advanced a claim for property division under the Family Law Act. The basis of the new claim was, believe it or not, that she and Mr. Livingston had separated as a result of his death, triggering her entitlement as a separated spouse under the Family Law Act. In her submission, the settlement agreement was only meant to address her claim for variation of Mr. Livingston’s will under the Wills, Estates and Succession Act, and that it was not meant to address her rights with respect to a family property claim under the Family Law Act.
In the initial application, the Supreme Court did not accept Ms. Gibbons’ claim, and confirmed that the Family Law Act is meant to address rights between living spouses on the breakdown of a relationship. The Wills, Estates, and Successions Act is meant to address a spouse’s rights upon death of their spouse. As such, it was that law that governed.
The Court also declined to overturn the settlement agreement on the grounds that Ms. Gibbons did not understand the terms due to her mental state. As there was no evidence of fraud, duress, lack of capacity or mutual mistake, the Court had no alternative but to enforce the agreement.
Ms. Gibbons appealed that decision. The Court of Appeal refused to interfere with the trial judge’s decision. Importantly, the Court of Appeal rejected Ms. Gibbon’s claim that the Supreme Court erred in finding that the death of a spouse does not constitute separation. The Court confirmed that, while family law principles are considered, the Wills, Estates, and Succession Act is the legislation under which a surviving spouse may advance a claim.
The Court of Appeal also highlighted the fact that a separated spouse is still able to commence family law proceedings after the death of their spouse, provided they are within the limitation period. While separation is an event that occurs between living spouses, a claim can still be advanced after the death of a separated spouse.
The 2017 decision of Boer v. Mikaloff, 2017 BCSC 21 addresses the rights of a child who has been adopted, but is named as beneficiary in their biological parent’s will.
Section 3 of the Wills, Estates, and Succession Act clearly states that a child who has been adopted is not entitled to a share of their biological parent’s estate. Under this provision, unless a biological or “pre-adoption” parent specifically names a child that has been adopted as a beneficiary in their will, the child that has been adopted is not entitled to a share of their pre-adoption parent’s estate.
In this case, the Plaintiff, Gary Boer was adopted approximately one year after his birth. Twenty-nine years later, he reunited with his biological mother, Deloreen Mikaloff, and developed a loving and caring relationship with her, and she ended up naming him as a beneficiary under her will.
Following Ms. Mikaloff’s death, Mr. Boer applied under section 60 of the Wills Estates an Succession Act to vary her will. Under this section, the Court may vary a will in favour of a child in such amount as the Court thinks is adequate, just, and equitable in the circumstances.
Mr. Boer acknowledged that, had he not been named as a beneficiary, he would not have had standing to vary Ms. Mikaloff’s will. However, he claimed that section 3 of the Wills , Estates, and Succession Act only applies to intestacy, when a biological parent dies without a will, or to situations where the biological parent does not name the adopted child as a beneficiary in their will.
He claimed that the wording of the section, in stating “that the adopted child is not entitled to the estate of his or her pre-adoption parent except through the will of the pre-adoption parent” specifically contemplated situations like his where the adopted child and biological parent have reunited.
Mr. Boer acknowledged that section 37(1) of the Adoption Act states that, when an adoption order is made, the child becomes the child of the adoptive parent; the adoptive parent become the parent of the child; and the biological parent ceases to have any parental rights or obligations with respect to the child. However, he submitted that his specific situation is an exception that should be governed by section 37(5) of the Adoption Act, which states that the family relationships of one person to another are to be determined in accordance with that section unless this or another enactment specifically otherwise provides or distinguishes between persons related by birth and persons related by adoption. Mr. Boer said that the Wills, Estates, and Succession Act was such another enactment and that he should be viewed as a child for the purposes of section 60, which would give him standing to apply to vary Ms. Mikaloff’s will.
Unfortunately for Mr. Boer, the Court rejected his claim and found that the wording of section 3 of the Wills, Estates, and Succession Act was not ambiguous. The Court held that the act clearly adopts the effect of the Adoption Act meaning that, following an adoption, the adopted child ceases to have any rights with respect to their biological parent.
This decision confirms that the act of a biological parent including an adopted child as a beneficiary in their will does not give the adopted child standing to bring a wills variation claim.
Prior to the introduction of the Wills, Estates, and Succession Act (WESA) in 2014, a document could only be accepted as a will if it met certain formal requirements: it must be in writing and signed by the will-maker in the presence of two witnesses who also must sign the document in the presence of the will-maker.
While these formal requirements were carried over in the new WESA, the legislature introduced a new power to cure deficiencies in documents or records purporting to be a will. Essentially, if the Court determines that a document or marking on a document represents the testamentary intentions of a deceased person, the Court may order under section 58 of WESA that the document or marking be fully effective as a will or part of the will.
Since then, the Court has been called on to consider whether handwritten notes can be accepted as a will or testamentary document. Bizicki Estate, 2019 BCSC 2142 is a recent addition to that line of cases.
This case follows the death of Alex Bizicki who died on September 18, 2016. Following his death, his girlfriend, Eva Chow, found three notes in the hotel room in which he resided. The notes provided the following instructions:
- Note #1, referred to by the Court as the “Information Note,” was dated November 23, 2019, and was titled “Information.” The note states that: “In the event of death, nothing to be disturbed in this room #24 by anyone, but whom I give permission to, and that is to the following: Yuet Ngor Chow (Eva).” It listed Ms. Chow’s address and phone number, and stated at that “Eva knows about this”;
- Note #2, referred to by the Court as the “Executor Note,” was titled “Executor” and stated that: “I leave my personal property, clothing, etc. to Yuet Ngor Eva Chow; she may do whatever she wishes with it.” This was followed by Ms. Chow’s name, address, and phone number. Following this, Mr. Bizicki had written the names of “Fred and Nancy A. Leak” followed by their address and the word “Executor” and a question mark. He then wrote the name and address of his brother, Mike Bizicki; and
- Note #3, referred to by the Court as the “Money Note” stated: “as to my personal estate- (all moneys) I wish this done”, after which Mr. Bizicki instructed that his funeral expenses and debts be paid, confirmed that he didn’t have debts or own property, and indicated that he wished that all his remaining monies be left to Yuet Ngor Chow (Eva). He also made reference to the Bank of Nova Scotia with an asterisk, which is where his accounts were held.
Only the Money Note was signed by Mr. Bizicki and only the Information Note was dated. None were witnessed. They obviously did not meet the formal requirements for a will.
Ms. Chow applied to the Court for an order under section 58 that the three notes be given testamentary effect. Tracey Bizicki, the personal representative of Mike Bizicki, the deceased’s brother and next of kin, opposed the order sought.
After reviewing the evidence and the applicable law, the Court came to a split decision.
The Court found that the Moneys Note and part of the Executor Note had testamentary effect as both notes expressed Mr. Bizicki’s deliberate or fixed intention with respect to the distribution of his personal property and bank accounts. The Court placed weight on the fact that the two notes were consistent in that they addressed different subjects: Mr. Bizicki’s bank accounts and personal possessions. One did not contradict the other. The language of the Executor Note expressed a clear intention with respect to Mr. Bizicki’s desire that Ms. Chow receive his personal possessions. While he used the word “wish” with respect to the distribution of his bank account, the Court found that it was more likely than not that he intended the Moneys Note to determine the disposition of his bank accounts.
However, the Court did not give effect to Mr. Bizicki’s appointment of an executor in the Executor Note. The terms of this note, which included a question mark, were not a clear expression of testamentary intention with respect to appointment of an executor.
The Court also did not find that the Information Note had testamentary effect. It did not include a statement of testamentary intention nor did it address distribution of Mr. Bizicki’s property on his death.
In reaching its decision, the Court considered Estate of Young, 2015 BCSC 182, which established that the “core issue is whether the notes record a deliberate or fixed and final expression of intention as to the disposal of the Deceased’s property on death.
The Court distinguished Bizicki from Lane Estate, 2015 BCSC 2162, in which the deceased had left seven handwritten notes on scrap paper. Mr. Bizicki’s notes were written on note paper, not scrap paper, which was not seen to be “suggestive of impermanence” as the notes in Lane Estate, were.
Bizicki serves as yet another example of the circumstances in which the Court will and will not recognize the testamentary effect of handwritten notes.
The recent decision of Mayer v. Mayer 2018 BCSC 2225 highlights the importance of clarity in estate planning and the limitations of section 60 of the Wills, Estates, and Succession Act, which permits spouses and children to seek an order varying a will.
This decision involves a claim by the daughter of one Otto Mayer seeking, among other things, a 50% interest in the real property held by Mr. Mayer and his common law spouse, Ursula Breidt.
Upon Mr. Mayer’s death, the real property, held in joint tenancy with Ms. Breidt, passed to Ms. Briedt as the surviving joint tenant. The two had been in a common-law relationship for 35 years and had purchased the home together in 1986.
Under Mr. Mayer’s will, he left half of his estate to Ms. Briedt and the other half to his daughter from a previous marriage, Erika Mayer. The will included a provision that, should Ms. Briedt predecease him, the real property or any replacement property was to be transferred to Ms. Mayer and Ms. Briedt’s son, with the balance of his estate was to pass to Ms. Mayer. Ms. Briedt executed a will that mirrored the terms of Mr. Mayer’s will, with the balance of her estate going to her son if Mr. Mayer predeceased her.
As the real property passed outside of Mr. Mayer’s estate, his actual estate only consisted of bank accounts totaling less than $17,000. Mr. Mayer’s financial assets had diminished significantly in the years prior to his death as a result of his gambling.
Following Mr. Mayer’s death, his daughter brought a claim seeking a 50% interest in the real property. She also sought an order declaring that the joint tenancy had been severed and a declaration that the property was held in trust for the estate.
In advancing her claim that joint tenancy had been severed and that the property was held on a resulting trust, Ms. Mayer relied on the mirror wills executed by Mr. Mayer and Ms. Briedt. She also relied on statements made by her father during his lifetime in which she alleged he had told her that 50% of the real property was to go to Ms. Mayer.
The Court declined to find that the mirror wills were mutual wills, holding that wills did not meet the standard of expressing a clear and unequivocal intention as to what was to be done with the property. The terms of a mutual will are binding on the parties; alternatively, a party can revoke and alter the terms of a mirror will at any time. As such, executing mirror wills did not constitute a course of dealing that would sever joint tenancy. In addition, the Court found that he statements relied upon by Ms. Mayer were found to be too vague and uncertain to be given weight.
Ms. Mayer advanced additional resulting trust claims based on unjust enrichment and good conscience. These, too, failed. The Court found that Ms. Mayer had made no contribution to the property and that the intention for the property to pass to the surviving spouse on death was a juristic reason for Ms. Briedt to receive the property. The Court did not accept Ms. Mayer’s claims that Ms. Briedt did not contribute to the purchase of the property and mortgage payments.
Ms. Mayer also sought an order varying her father’s will to increase her share of the estate. Had the Court found that Ms. Briedt held Mr. Mayer’s interest in the real property in trust, this interest would have formed part of his estate.
As Ms. Mayer’s claims relating to the property failed, the amount to be divided between Ms. Mayer and Ms. Briedt under Mr. Mayer’s will was less than $17,000. The Court declined to make an order varying the equal distribution of the estate between Ms. Mayer and Ms. Briedt, holding that while Mr. Mayer had both a moral and legal obligation to provide for his spouse, he had only a potential moral obligation to provide for his independent, adult daughter under his will.
As this decision highlights, only assets that pass through an estate can be subject to a wills variation claim. This provision cannot be used to advance a claim relating to assets that pass outside an estate through, for example, joint ownership. Claimants wishing to advance claim for assets that pass outside of an estate must rely on other areas of law such as the law of trusts.