People, being people, will sometimes make errors in communicating.  They may use unclear language, or use words that have a special reference known only to themselves, or will do any one of number of things that would cause other people to turn to them politely and ask, “What?”
When the time comes to follow the instructions of a will, however, if there is an ambiguity in it, the best person, and the best witness, is no longer available to question.
Interpreting ambiguous language, whether in a Will or other document, is called “construction”.  Courts are very careful when asked to “construe” a Will.  They want to follow the instructions of the deceased, and don’t want to invent or create those instructions or get them wrong.  But there are tests that need to be followed in determining what the testator meant to say.  You can use a court proceeding to translate a will that is unclear.
The primary rule, of course, is that the words used in a Will need to be given their plain and ordinary meaning.  If your Will provides your “bed” to someone, that word almost certainly means the piece of furniture that you sleep on.  It would be a weak argument for someone to point out that “bed” could also refer to that part of your garden where flowers are planted.  The ordinary meaning will obviously win.
However, sometimes the ordinary meaning won’t help you.  In his own Will, William Shakespeare famously left his “second best bed” to his wife, Anne Hathaway.  It has been a controversial bequest for centuries – what did he mean by that?  Which bed?  How was his executor supposed to choose?
For resolving ambiguities, two schools of interpretation exist.  The first is what’s known as the “four corners” rule, which declares that the only information you are entitled to use to interpret a Will must come from within the document itself.  The second is called the “armchair” rule.  This permits you to imagine yourself, subjectively, in the position of the deceased – to see what he or she saw, use evidence of their surroundings or circumstances in an effort to figure out what they really meant when they wrote their Will. 
In British Columbia, after much judicial debate and consideration in case law, we employ a sort of restricted, commonsense armchair approach.  That approach, essentially, directs a court to:

1.      Read the will.  If it is not ambiguous, then there is no problem.  The Court ought not to admit any extraneous evidence to clarify language that doesn’t need clarification.

2.      However, there is also no need to operate in a vacuum.  If there is some information that is obviously required to define a term or that would have some effect on the plain meaning of the Will, then that would be acceptable.

3.      Finally, if the Will is truly ambiguous, Courts may look to outside circumstances for help, and admit any extraneous evidence as needed.

This approach is in accord with section 4 of the Wills, Estates and Succession Act, which provides in part:

Extrinsic evidence of testamentary intent, including a statement made by the will-maker, is not admissible to assist in the construction of a testamentary instrument unless

(a)              A provision of the will is meaningless,

(b)             A provision of the testamentary instrument is ambiguous

(i)                         On its face, or

(ii)                        In light of evidence, other than evidence of the will-maker’s intention, demonstrating that the language used in the testamentary instrument is ambiguous having regard to surrounding circumstances, or

(c)              Extrinsic evidence is expressly permitted by this Act.

At the end of the day, if no-one can figure out what the Deceased meant to say, then the Courts will be able to look at whatever they need to look at in an effort to figure it out.  This means they can take evidence from the lawyer who helped draft the will, financial or other advisors, family members who may have heard the Deceased talking about his or her intentions, and even the habits and practices of the Deceased person.  Other than asking the Deceased themselves to clarify, this is the best we can do.
By the way, with respect to Shakespeare, although there is still debate on the subject, sympathetic scholars tend to agree that that leaving his “second best bed” to his wife was not intended to be an insult, but was rather intended as a gesture of affection.  The best bed in the house was the guest bed.  The second-best bed was the one she was used to, the one that Shakespeare and his wife actually shared. 
Andrew Powell practices a wide range of civil litigation with a focus on business or commercial disputes, including breach of contract, lease and land use issues, corporate disputes including liquidations and shareholder issues, and realization and enforcement. Andrew also practices estate litigation, including wills variation claims.

Written by: Krystin Kempton, Associate
Most people think they have plenty of opportunities to write a will at some point in the future, but what if you don’t get the chance? 
If you die without a will, it’s called dying “intestate”. Without a will, someone (usually a close family member) will have to apply to the court to be appointed administrator of the estate if probate is needed to release and distribute your assets. If you have minor children and the other parent is not alive, the court will also have to appoint a guardian. 
Assets are distributed according to an established formula under the Wills, Estates and Succession Act.

If you die leaving:

1. a spouse and no children, your entire estate passes to your spouse;
2. a spouse and children, where your children are also the children of your spouse:

   a. your spouse receives

   i. the first $300,000;
   ii. ½ of the residue of your estate;
   iii. household furnishings; and
   iv. the right to acquire the spousal home (if it was not held jointly at the time of your death) to satisfy his or her spouse’s interest in the estate (i.e., $300,000 + ½ of the residue of the estate). If the value of the home exceeds your spouse’s share of the estate, your spouse may purchase the balance of the interest in the spousal home from the estate; and

   b. your children receive ½ of the residue of your estate, in equal shares;

3. a spouse and children, where your children are not the children of your spouse, the distribution is the same as 2(a) above except your spouse will only receive the first $150,000, plus the balance of the items under 2(a)(ii) through (iv);
4. no spouse, but children and/or descendants, the estate passes equally among your children. If a child has died before you, their share passes equally to their children, if any;
5. no spouse and no children, the estate passes equally to your parents or your surviving parent; or
6. no spouse, no children and no parents, the estate passes equally among your parents’ descendants (i.e., their children, grandchildren and great-grandchildren). 

There are further formulas to deal with situations where the individual dies leaving no surviving spouse, children, parents or descendants of parents.
There are some obvious problems with dying intestate:
• Maybe you want your entire estate to pass to your spouse. A “spouse” includes a person married to the deceased and a person who lived common-law with the deceased for at least 2 years. If the value of the spousal home exceeds your spouse’s preferential share of your estate and your spouse can’t afford to pay the difference in value to your children, your spouse may lose the family home.
• Maybe you don’t want that much of your estate to pass to your spouse. Is it a relatively new relationship? Do you your children to receive a larger share?
• If you die leaving minor children and no living parent, the court will need to appoint a guardian without your input.
• A child’s share will be held in trust until they reach the age of 19. The child’s parent or guardian will have to apply to the Public Guardian and Trustee for any money needed for the child’s care, maintenance or benefit, such as living expenses or tuition.
• You lose the ability to set a later age for a child to receive a share of your estate, like 21 or 25 when the child may be more financially responsible or mature.
• Death is stressful enough on a family. Hunting for a will that does not exist adds undue stress.
• An intestate distribution is often more time consuming and costly.
• A court-appointed administrator may sell off items that you otherwise would have kept in the family.
You don’t know when you’re going to die. Every adult who owns assets or has a spouse or young children should have a will. Planning ahead can save your loved ones a great deal of time, stress and money.
See https://www.nixonwenger.com/blog/article/preparing-for-your-estate-planning-meeting.html for more information on estate planning. 

Written by Krystin Kempton, Associate

Joint tenancy is a form of ownership by two or more parties. In general, full ownership of assets held jointly passes to the surviving joint owner by operation of the right of survivorship when one owner dies. For example, if married couple Bob and Mary have a joint bank account and Bob dies, Mary is now the sole owner of that bank account. However, the right of survivorship does not always apply and there may instead be a presumption of resulting trust. The determination of true joint tenancy is dependent on the relationship of the parties and the circumstances in which joint ownership is created. In Pecore v. Pecore, 2007 SCC 17, the Supreme Court of Canada confirmed that the presumption of resulting trust applies to a gratuitous transfer from a parent to an adult child, such as adding a child to a bank account without the child providing money or other consideration to the parent for that asset. It is presumed that the bank account was not intended to be gifted to the child – although legal title passes to the child, the beneficial owner is the parent alone. After the parent’s passing, the child is presumed to hold that asset in trust for the parent’s estate.  
The presumption of resulting trust places the onus on the adult child added as a joint owner to that asset to prove that it was in fact intended to be a gift. There are a number of factors courts will consider when determining the actual intention of the transferor and deciding whether the presumption of resulting trust has been rebutted. A non-exhaustive list of factors courts consider include evidence of the deceased’s intention at the time of the transfer, bank documents, control and use of the funds in the account, whether a power of attorney was granted and the tax treatment of joint accounts. Unless the child provides sufficient evidence to rebut the presumption on a balance of probabilities, the asset is treated as an estate asset and is distributed in accordance with the terms of the deceased’s Will or, when there is no Will, in accordance with sections 20-24 of the Wills, Estates and Succession Act, SBC 2009, c. 13 (“WESA”). If you wish to rebut a presumption of resulting trust, we recommend you seek legal advice.
Often an elderly parent will add a child to his or her bank account to help manage day to day finances. If the parent intends for that account to pass to that child on death and not in accordance with the terms of his or her Will or in accordance with sections 20-24 of WESA, it is important that the parent execute a deed of gift or provide clear intentions in writing that the account is intended to be a gift to ensure that the presumption of resulting trust does not affect that gift. If the child has been added for convenience only and the elderly parent wishes for the account to be shared with all of his or her children on death, this should also be clearly expressed.
If you are the personal representative of an estate of a person who added a child as a joint owner to an asset, you will need to make inquiries as to whether the deceased intended the asset to be a gift to the surviving joint tenant(s) and not for the benefit of the estate (i.e., were bank accounts intended to be gifted solely to one child or to be distributed equally among all of the deceased’s children pursuant to their last Will or in accordance with sections 20-24 of WESA?). The personal representative ought to review any documentation which would demonstrate the deceased’s intent. If the presumption of resulting trust applies, the accounts will need to be listed as assets in the application for a Grant of Probate for the estate of a deceased.
While the presumption of resulting trust applies to gratuitous transfers from a parent to an adult child, there is a presumption at law that the right of survivorship applies to joint assets between spouses and between a parent and minor children.

Written by Andrew Powell, Partner

There isn’t really a definition of estate litigation – mostly, it is just litigation that involves estates.  Almost any kind of litigation can involve an estate.  Estate representatives are allowed to start or defend actions that a deceased could have started or defended.  On the other hand, sometimes the estate isn’t involved in the dispute at all: the dispute is over the estate.  It is a misnomer to say an estate itself is involved in litigation – an estate is not itself a legal entity.  An estate is just a collection of stuff – money, land and personal property – that once belonged to a Deceased person.
Very broadly, estate litigation can be slotted into five broad categories.

1. The Will is Invalid
Chances are strong that if there is a will, it is a valid one.  The deceased had to go to a lawyer or notary who would assess their capacity, and take instructions, and then have it signed and witnessed.  In particular cases, however, there may be a serious question as to whether a will is valid.

The action to have a will declared valid is called proving the will “in solemn form”.  The action proceeds like a normal Supreme Court action and the evidence has to call into question, for instance, the capacity of the person, or whether there was undue influence, or whether the will is otherwise legally problematic. 

Also, there may be a question of whether the will comprises a violation of an agreement made between the deceased and another person, usually another deceased person.  If, for instance, the deceased person had made mirror wills with a spouse, and there was a term that the wills were irrevocable and expressed the joint desires of both parties, then they create a testamentary contract so if one spouse dies, the surviving spouse is no longer free to dispose of all of her property as she sees fit.  Any will that is drawn up after that would be invalid, because the property wasn’t hers to give away except as per the terms of the original will.

If a will is invalid, then the estate may be distributed based on a previous will, or the estate may go by way of intestacy.

2. The will is unfair
This is probably the most common type of actual estate litigation, and it occurs when a spouse or child feels that they have not been remembered appropriately by the Deceased.  Taking an example from folklore, assume that a miller had two sons.  In his will, he left his mill to his first son and to his second son he left only his cat.  All other things being equal, the second son would very likely have a strong claim that he was treated unjustly, and would have a case to vary his father’s will.  (Of course, in that story, as it turned out, the cat was far more valuable than the mill.)

There is a statutory cause of action under the terms of the Wills, Estates and Succession Act (or “WESA”).  WESA provides that a spouse or child of a deceased person can, even where a will is valid, challenge it because it violates a legal or moral duty owed to that spouse or child.

3. The will is irrelevant or non-existent
Not all property devolves by will.  Sometimes people go to great lengths to avoid having property pass within their estate by creating trusts or jointures.  Litigation can frequently arise when you have someone who would have been a beneficiary discover that property or accounts owned by the Deceased were put jointly into the names of the Deceased and some other sibling years previously.  That potential beneficiary may well complain that the joint interests created were not an honest-to-goodness transfer of title, but were only a transfer of the legal interest, and the now-hated sibling actually holds the property or account in trust for the estate.

This is often a two-prong problem – anyone who transfers property in this way may also have disinherited the unfortunate plaintiff.  So the plaintiff would have to bring a trust claim and a wills variation claim at the same time.

4. The will is incomplete or imperfect
A major problem with estate litigation is that the one person who would be the perfect witness to explain or interpret the will is no longer available to testify.   But what if the solicitor drawing the will misunderstood instructions?  What if something was left out?  What if the testator changed his mind but that change of mind isn’t reflected in the will?
WESA introduced a new chapter in the ability of Courts to tweak imperfect wills.  That act has provisions which govern the correction (or “rectification”) of wills, and also recognizes other documents, videos, emails, letters, or notes on napkins as testamentary documents that can become part of a will.  Also, the WESA provides litigants the ability to bring the solicitor’s file into evidence, open it up and see if the will truly reflects the instructions of the testator.

5. Other
There seems to be no end of ways that people can get into fights when an estate is in the balance (and usually paying the bills).  Other common ones are cases where one party claims that another is not fit to be an executor, or where a party appears and claims to be the spouse of the Deceased, much to the surprise of other parties.  Disputes can develop over ill-defined beneficiaries or where beneficiaries cannot be located, over property whose value changes in different circumstances, over mistakes made in the management of an estate, and more.  Estate litigation is a complex and growing area where both emotions and stakes can run high.