Young v. Veselic

2022 BCSC 697 Young v. Veselic IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Young v. Veselic, 2022 BCSC 697 Date: 20220502 Docket: S6077 Registry: Golden Re: The Estate of Kristina Veselic Between: Ivana Young Plaintiff And Stanislav Veselic Defendant Docket: S-S-130115 Registry: Kelowna Between: Stanislav Veselic, as Executor of the Estate of Kristina Veselic Petitioner And Ivana Young Respondent Corrected Judgment: The date of the judgment was corrected on the front page on May 6, 2022. Before: The Honourable Justice Branch Reasons for Judgment Counsel for the Plaintiff/Respondent: B. Fairley The Defendant/Petitioner, appearing in person: S. Veselic Place and Date of Trial: Golden, B.C. February 22-25, 28 and March 1-2, 2022 Place and Date of Judgment: Golden, B.C. May 2, 2022 Table of Contents I. INTRODUCTION.. 5 II. BACKGROUND.. 5 A. Family History. 5 B. The Daughter's Use of Drugs and Alcohol 6 C. The Execution of the First Will 6 D. The Testatrix's Transfer to Kelowna. 7 E. The Relationship Between the Daughter and the Testatrix While in Kelowna. 8 F. The Testatrix's Gifts, Transfers, and Expenditures. 9 G. The Unwinding, the Second Will, and the Second Transfer 11 H. The Son's Conduct and the Testatrix's Discharge from KGH.. 15 I. The Testatrix's Final Month. 17 J. The Testatrix's Assets at Death. 18 K. Litigation History. 18 III. ISSUES. 19 IV. LEGAL PRINCIPLES. 20 A. Evidentiary Issues. 20 B. Undue Influence. 23 C. Resulting Trust 27 D. Misappropriation of Funds. 28 V. ANALYSIS. 28 A. Evidentiary Issues. 28 B. Undue Influence. 29 1. Presumption of Undue Influence. 29 2. Factors Rebutting the Presumption of Undue Influence. 30 a. Opportunity to Influence, and Actual Influence. 31 b. Ability to Resist Influence. 31 c. Knowledge and Appreciation of the Effect of Her Decision. 34 d. Independent Legal Advice. 35 i. Presence of the Recipient When Instructions were Given to Counsel 37 ii. Provision of Instructions to Counsel 37 iii. Proportion of Estate at Issue. 37 iv. Discussion of the Transaction with the Daughter or other Family Members. 37 v. Discussion of Other Options with the Donor 37 vi. Counsel's Efforts to Ensure that the Transfer was Voluntary. 38 vii. Discussion of the Merits or Wisdom of the Disinheritance and Second Transfer with the Donor 38 viii. Counsel's Efforts to Ensure that the Transfers were Right and Proper 38 ix. Conclusion on the effect of the Legal Advice and Application of the Coish Factors. 39 3. Case Law Guidance on the Application of the Undue Influence Test 40 4. Conclusion on Undue Influence. 42 C. Resulting Trust 43 D. Misappropriation of Funds. 44 VI. CONCLUSION.. 47 I. INTRODUCTION [1] Kristina Veselic (the "Testatrix") executed a will in 2018 distributing the residue of her estate equally between her son and daughter (the "First Will"). In 2019, she executed a new will leaving the residue of her estate solely to her son (the "Second Will"). At the same time, she transferred her home into joint tenancy with her son (the "Second Transfer"). [2] The son seeks pronouncement of the Second Will in solemn form. [3] The daughter seeks to challenge the Second Will and Second Transfer on the basis of undue influence. The daughter also challenges the Second Transfer on the basis that it was a gratuitous transfer and hence the son's title was subject to a resulting trust. [4] Each party also alleges that the other misappropriated the Testatrix's funds. II. BACKGROUND A. Family History [5] The Testatrix was born in Czechoslovakia, as it then was. She immigrated to Canada and moved to Golden, B.C. The Testatrix and her husband purchased a home in Golden, with an address at 1221 11th Street South (the "Home"). The Testatrix's husband died July 31, 2010, leaving the Testatrix as the sole owner of the Home. [6] The Testatrix has two children, the plaintiff daughter and the defendant son. They each now have their own children. [7] The daughter lives in Golden where she works as a senior employee at a local chartered bank. The daughter visited and spoke with the Testatrix frequently while they both lived in Golden. [8] The son lives in Kelowna, where he works as a respiratory therapist at Kelowna General Hospital ("KGH"). He visited his family in Golden from time to time. B. The Daughter's Use of Drugs and Alcohol [9] Several years ago, prior to the execution of either Will, the daughter developed a cocaine addiction that lasted for several years. She says that her ex-husband introduced her to the drug, but that she only used on weekends. She never missed work because of her addiction, nor was she ever disciplined for drug use. The daughter says that she was able to quit approximately four years ago. She asserts that the Testatrix was proud of her for having done so. [10] Several witnesses testified to the daughter's more recent misuse of alcohol, including drinking at KGH while the Testatrix was present. The daughter denies these allegations. Several witnesses also noted friction in the daughter's relationship with the Testatrix because of the Testatrix's concerns about her daughter's suspected ongoing drug use. C. The Execution of the First Will [11] In May 2018, the Testatrix fell ill and was diagnosed with cancer. After initially being admitted to Golden & District Hospital, she was transferred to the East Kootenay Regional Hospital in Cranbrook for tests on May 18, 2018. The daughter stayed with the Testatrix while she was in Cranbrook. [12] The Testatrix granted power of attorney to her daughter on May 23, 2018 but revoked it a week later. During the stay in Cranbrook, the daughter says that the Testatrix decided that she should put her affairs in order. I find that this hearsay evidence should be accepted, as it was corroborated by documentary evidence, as well as by the evidence of the counsel who prepared the First Will, Bruce McKenzie (the legal basis for the admission of this and other hearsay evidence of the Testatrix is described below). The daughter says she contacted Mr. McKenzie on behalf of the Testatrix to arrange for him to prepare the First Will. The Testatrix and her husband had previously used Mr. McKenzie's firm for other legal work. [13] After the Testatrix returned to the Golden & District Hospital, she met with Mr. McKenzie to provide instructions for the First Will. Mr. McKenzie assured himself that the Testatrix had capacity, and he received her instructions to prepare a will that shared her estate equally between the son and daughter. He also recommended the Testatrix transfer the Home into a joint tenancy between herself, her daughter, and her son in order to avoid probate fees and to minimize taxes upon her passing. On May 24, 2018, the Testatrix executed the First Will in the presence of Mr. McKenzie. In the First Will, she named her daughter as executrix and trustee, and divided the residue of her estate equally between her children. At the same time, she executed the documents necessary to transfer the Home into a joint tenancy. The daughter and son signed documentation to accept the transfer of their joint interest. This transfer was registered on June 5, 2018 (the "First Transfer"). [14] At the time of the First Will, the Testatrix had savings and chequing accounts which were held jointly with the daughter, as well as a line of credit which the Testatrix held alone. She also owned her Home. D. The Testatrix's Transfer to Kelowna [15] The Testatrix was moved to KGH when her condition worsened. Since she was in the same city as her son, he began to visit her more regularly. The Testatrix also had several friends visit regularly, many of whom testified at trial--specifically, Carole Phillips, Elizabeth Folino, Manjit Aaurnyad, Sheri Charest, Tatjana Bosche, Melissa Landau, and Ian Bates. The first three witnesses testified during the daughter's case, and the balance as part of the son's case. [16] The daughter asserts that after the Testatrix's move to Kelowna, the Testatrix abided by whatever the son said. She says the Testatrix was even afraid to give her birthday money without the son's approval. [17] By November 2018, the Testatrix's condition had improved to the point that she was able to move out of KGH and into the son's home. The Testatrix lived with the son until the end of March or early April 2019, when her health deteriorated again, and she returned to KGH. Save for one overnight, she remained at KGH until July 26, 2019, when she went into hospice care. Shortly thereafter, she moved back into the son's home, where she passed away on August 27, 2019. E. The Relationship Between the Daughter and the Testatrix While in Kelowna [18] At the outset of the Testatrix's time in Kelowna, the daughter visited the Testatrix frequently. She generally made the trip from Golden on a weekly basis until the winter months made driving difficult, at which point she reduced the frequency of her visits. However, the evidence suggests that she and her mother continued to stay in touch by phone. Specifically, there was evidence from witnesses--Ms. Phillips, Ms. Aaurnyad, and Ms. Folino in particular--confirming the daughter's visits and phone calls. The telephone records admitted into evidence show 356 telephone calls between the daughter and the Testatrix between March 11, 2019, and August 2019. The hospital records also support there having been frequent visits by the daughter, although the visits were less frequent in the winter of 2018 and thereafter. That said, Ms. Phillips testified that she saw the daughter visiting with the Testatrix on four or five occasions in July and August 2019. In terms of telephone contact up to the execution of the Second Will, the records show that there were calls on July 7, 14, and 15, 2019, each of which lasted about 15 minutes. Indeed, on the day the Testatrix executed the Second Will which stated that the daughter "no longer makes any attempt to contact me or be part of my life", the daughter phoned the Testatrix three times. [19] While some of the son's witnesses, such as Ms. Charest, reported minimal contact between the daughter and the Testatrix, this can be explained by the fact that they were not always present with the Testatrix. Visits and calls could obviously have occurred when these witnesses were absent. [20] In terms of the character of their contacts, Ms. Folino and Ms. Aaurnyad described a healthy relationship. Ms. Phillips stated that the Testatrix and plaintiff got along "for the most part". Other witnesses described the phone calls between the daughter and the Testatrix as often being tense and difficult. The daughter herself acknowledges that she had disputes with the Testatrix. Specifically, in November 2018, the Testatrix discovered that her chequing account had gone into overdraft when she tried to buy something at the pharmacy with the son. The Testatrix called the daughter with the son present and blamed the daughter for this situation. The daughter asserts that the reason the account went into overdraft was that the son was paying for too many personal expenses out of the accounts, an allegation discussed in greater detail below. [21] There was also an overarching tension over whether the daughter owed the Testatrix money. This alleged debt between the Testatrix and the daughter arose from the daughter's residency in the Home over the winter of 2018-2019. The daughter says that the Testatrix had said that she could stay there, but agrees that the Testatrix later demanded rent. There were also concerns raised about whether the daughter was paying the household bills. The son, Ms. Charest, and Ms. Bosche each testified that the Testatrix was concerned that the daughter was stealing from her. Ms. Bosche testified that the Testatrix was upset that the daughter was not paying rent for the Home. [22] The daughter says that, at the end of the day, she made sufficient transfers into the Testatrix's account to cover any reasonable rent allocation, as well as to repay the Testatrix for any loans or other expenditures from the Testatrix's accounts made by the daughter or for the daughter's benefit. [23] The daughter seeks to explain away most of the points of tension on the basis that they must have been the result of the son speaking ill of her to the Testatrix. F. The Testatrix's Gifts, Transfers, and Expenditures [24] While the Testatrix was at KGH, there were transfers or expenditures made from the Testatrix's accounts, either through withdrawals by the parties, or through use of her debit and credit card. These expenditures included spending on meals, groceries, ski resorts, hardware, electronics, and auto supplies. There were also cash transfers to the parties. [25] There was testimony from virtually all the witnesses that the Testatrix frequently lent out her debit and credit cards to visitors while she was at KGH so they could purchase food, gifts, or clothing. [26] The daughter admitted to certain transfers, loans, and expenditures to or by her from the Testatrix's accounts. However, she says that they were either loans that she eventually repaid, or gifts authorized by the Testatrix. The daughter was able to show repayment of substantial sums back into the Testatrix's accounts which more than offset any transfers received. [27] The son says that he sat down with the Testatrix before her death, and she went through her accounts and told him what amounts spent by the daughter she had not approved. Given the other witnesses' corroboration of her concerns, I find that this hearsay is admissible. However, in terms of its weight: a) the son did not test, or seek an explanation for, the tally provided to him by the Testatrix; b) the son was unable to isolate the specific transactions with which the Testatrix took issue; and c) the son was unable to say whether the Testatrix accounted for any repayments by the daughter. [28] In terms of transfers to the son, or expenditures made by or for him, the son says: a) Several of the expenditures sought to be attributed by the daughter to him were not his, but rather may have been made by or for the Testatrix's other visitors. b) Any expenditures that were properly attributed to him were authorized by the Testatrix. For example, the Testatrix did not like the food at KGH, so she frequently authorized him to use her credit or debit card to purchase meals and groceries. She also approved specific gifts, such as electronics and ski passes for his children and himself. She also purchased alcohol so that people could socialize at her son's home while she was there. c) In relation to the largest transfer in his favour, being the proceeds of sale of the Testatrix's 2017 Nissan Rogue, the son says that the Testatrix instructed him to trade in this vehicle and buy a new one for himself. He stated the Testatrix told him to use the proceeds to purchase a smaller vehicle that she could more easily use while she was at the son's home. The daughter agreed that the son's first vehicle would not have worked for the Testatrix given her condition. The son says he would not have purchased a new vehicle with the proceeds of his mother's vehicle absent her instructions, as the vehicle eventually chosen was too small to properly launch his boat. He testified that this transaction also explains the other auto-related expenses noted in the Testatrix's accounts. d) In terms of opportunity for the son to transfer funds for his benefit, he agreed that he was the person who set the Testatrix up with electronic banking and that although she was able to login, the Testatrix often asked him for assistance. For her part, the daughter suggested that the Testatrix was not familiar with computers and would have been unable to operate the banking website without assistance. [29] There were certain large cash transfers for which the son was unable to provide any explanation. These are discussed in greater detail below. G. The Unwinding, the Second Will, and the Second Transfer [30] Ms. Landau testified that on or about May 31, 2019, the Testatrix advised her that she had become concerned about the status of the title to the Home upon seeing a property tax statement showing that it was held in a joint tenancy with her children. The Testatrix told Ms. Landau that she did not recall making the First Transfer, and she wanted the Home back in her own name. Ms. Landau says there was no indication that this decision was the son's idea. [31] I find that Ms. Landau's evidence was both credible and reliable, and I accept it as a basis for the admission of this hearsay evidence. Ms. Landau has no interest in the outcome of this proceeding. As a long-time friend of the entire family, I did not perceive any effort to shade her evidence to favour the son. Furthermore, the daughter herself gave evidence that when her mother received the property tax notice, she claimed not to recall that her children had been added to the title. [32] The Testatrix decided to unwind the First Transfer and gave instructions to this effect to Mr. McKenzie. Mr. McKenzie agreed that it made sense to transfer it back to her given that she now expressed an intention to sell the Home as unwinding the transaction could help reduce the capital gains tax. On June 3, 2019, Mr. McKenzie sent a letter confirming his retainer to unwind the First Transfer. On June 7, 2019, Mr. McKenzie sent the parties a letter asking them to sign the Form A Transfer to transfer their joint interest in the Home back to the Testatrix (the "Unwinding"). However, the Unwinding was not registered until July 25, 2019. [33] The son says that as part of the discussions with her doctors in June 2019 about where she would be going next, the Testatrix raised the issue of her estate planning. Ms. Bosche testified that the Testatrix spoke about her intention to leave everything to her son because he was actively taking care of her, and she was concerned that the daughter might use any inheritance to fund her possible drug addiction. Ms. Charest reported on similar discussions. Ms. Bosche and Ms. Charest never saw any indication of the son pressuring the Testatrix in this respect. I accept this evidence, and place particular weight on the evidence from Ms. Bosche. She was probably the most independent witness of all those that testified, as she was never in a relationship with the son and did not work directly with him. I found her evidence to be credible, careful, and reliable. She made reasonable concessions, such as confirming the extent to which the daughter visited the Testatrix and accepting there was no obvious animosity between the Testatrix and the daughter during any visits she observed. [34] Ms. Landau testified that the Testatrix raised concerns about her daughter not visiting as much as she had when she was in Golden. Ms. Landau also said that the Testatrix advised her that the reason she was changing the First Will was, in part, because of her opinion that the daughter was at fault for the First Transfer. Again, I accept this hearsay evidence given Ms. Landau's reliability and credibility. [35] Ms. Charest says that the Testatrix asked her who she should use as her lawyer to change her will. Ms. Charest recommended Christopher Wendell, a lawyer in Kelowna whom she had used in the past. I accept this hearsay evidence given that Ms. Charest had no financial interest in the outcome of the proceeding, and had no obvious "axe to grind". Ms. Charest and the son worked together and were romantically involved for about a year, but their relationship came to an end well before the subject events. In spite of this relationship, I still found her to be both reliable and credible. [36] The Testatrix agreed to retain Mr. Wendell and the son contacted his office. Mr. Wendell's assistant advised Mr. Wendell that the son had requested that Mr. Wendell come meet with him and the Testatrix at KGH. On July 24, 2019, Mr. Wendell visited KGH and initially met with the son alone. According to Mr. Wendell's memo to file, the son "explained that [the Testatrix] was recently estranged from [the daughter], who continues to reside in Golden and that [the Testatrix] had concerns with respect to the amounts that she had provided to [the daughter] during the course of her lifetime and that she was concerned that [the daughter] may have misappropriated funds from [the Testatrix's] accounts by way of a Power of Attorney appointing [the daughter]." The son says neither he nor the Testatrix would have used a word like "estranged", but his understanding was that the Testatrix felt that her relationship with the daughter had at least changed in character. [37] After the initial meeting with the son, Mr. Wendell and the son proceeded to attend at the Testatrix's room. The son did not stay while Mr. Wendell was taking instructions. Mr. Wendell says that he pressed the Testatrix on whether she truly wished to write her daughter out of her will. He says he warned her of the risk of a wills variation challenge. Nonetheless, given that he had no concerns about the Testatrix's capacity and saw no evidence of coercion, he felt that he had no choice but to accept her instructions. [38] Mr. Wendell did not inquire as to whether: a) the Testatrix already had a will; b) the Testatrix had grandchildren, other than the son's children; or c) the Testatrix's expressed bases for disinheritance were factually accurate. [39] Mr. Wendell had no specific recollection as to whether the daughter's alleged drug or alcohol addiction or her alleged financial misconduct came up in his discussions. [40] After his meeting with the Testatrix, Mr. Wendell prepared the following documentation: a) The Second Will, appointing the son as the executor and, after payment of just debts and funeral and testamentary expenses, providing that the residue of the Testatrix's estate go to the son. If the son predeceased the Testatrix, the Second Will provided that the residue of the estate was to be divided equally among the son's issue. No provision was made for the daughter's issue. The Second Will specifically addresses the exclusion of the daughter, stating as follows: I HEREBY DECLARE after due deliberation and consideration I have reached the conclusion that under the circumstances of my estate I have excluded my daughter Ivana Young from any benefit under this Will. With respect to this exclusion I have been fully advised by my lawyer of the possibility that my daughter may apply to a court after my death to vary my Will and the disposition of my estate however I wish it to be known that I have made the decision to exclude my daughter based on the significant contributions that I have made to her during her lifetime and the fact that we have become estranged and that she no longer makes any attempt to contact me or be a part of my life. I also believe that my daughter is of sufficient financial means such that no hardship will befall her for the fact that she has been excluded from my estate. b) The Second Transfer documents effecting a transfer of the Home from herself to joint ownership with the son. c) An enduring power of attorney appointing the son as her attorney, pursuant to the Power of Attorney Act, R.S.B.C. 1996, c. 370. d) A representation agreement appointing the son as her representative, pursuant to the Representation Agreement Act, R.S.B.C. 1996, c. 405. [41] On July 25, 2019, Mr. Wendell re-attended at KGH. When Mr. Wendell arrived, the son was also in the room. However, he left after introducing Ms. Charest, who was going to witness the Second Will at the son's request. Mr. Wendell says he again pressed the Testatrix on whether she really wished to disinherit her daughter. Satisfied that these were her true wishes, Mr. Wendell proceeded with the execution of the documents. Mr. Wendell says that he read the Second Will to the Testatrix and Ms. Charest. Neither the Testatrix nor Ms. Charest identified any inaccuracies in the documents. [42] The Second Transfer was registered the following day. Mr. Wendell was asked about the fact that the Unwinding and the Second Transfer were registered one day after the other, and why the two transactions would not have been blended into a single transaction. He recalled some discussion that the Unwinding documentation had already been drafted, and the Testatrix simply wanted to get those documents back to the original lawyer who had prepared the earlier material. H. The Son's Conduct and the Testatrix's Discharge from KGH [43] Given the allegations of undue influence, the son's conduct was front and centre at trial. [44] Ms. Phillips testified that she once observed the son berating one of the Testatrix's nurses until the nurse cried. She also said that the Testatrix's demeanour changed when the son was present. She changed from happy to quiet, "almost like she was afraid". [45] Ms. Aaurnyad testified to an aggressive "dressing down" of the daughter by the son while the Testatrix was in the room. She says that the Testatrix just rolled and shifted her eyes while the son was yelling at the daughter. She also described an incident when they were discussing the fact that the daughter was going to live in the Home and the Testatrix initially expressed support for the plan. Then when the son came in and started yelling about this arrangement, the Testatrix started to "not say much" and to "somewhat agree with him". [46] The daughter also sought to rely on a variety of notes from the Testatrix's KGH medical records to establish the son's poor conduct. Specifically, the daughter relied on the following notes, among others: a) On September 5, 2018, the son is reported as yelling and swearing over the telephone at one of the hospital caregivers. b) On October 18, 2018, the records report that the son refused a transfer to the short-stay unit in favour of the Testatrix remaining on the rehabilitation floor. c) On October 29, 2018, the records state the "[Testatrix] and [the son] refus[ed] MRI and CT until they speak with Dr. Wall". d) On November 8, 2018, the son is reported as stating "I want you to get the doctor on the phone now and I want you to get it restarted before I leave now!" in a "raised/angry tone and volume", and then refusing to confirm when or if the Testatrix would be returned to the hospital after a day pass. e) On July 4, 2019, the Testatrix directed a caregiver to speak with the son concerning the potential for placement in the short-term stay unit. f) On July 11, 2019, the Testatrix's care team expressed concerns over the son's refusal to consider a move to the short-term stay unit. g) On July 11, 2019, the Testatrix said she was "scared to go to [the son's] place because [she would] have no help if [she] need[ed] to go to the washroom." The son was insisting on the Testatrix being discharged from KGH, while her medical team was concerned that such a move was premature and that the son would be unable to handle her needs. A physician reported that the Testatrix is "'d[e]ferential' [to the son] who was insistent on her leaving hospital." The physician also notes that the son "has become insistent that he should take her home." An attending nurse counseled the Testatrix that she did not have to go to which Testatrix is reported to have stated, "I don't have a choice." h) On July 25, 2019, the Testatrix is reported to have stated that she was going home in the morning, and she was unsure how it would play out. It should be noted that the records for this period also show Dr. Kevin Wade recording that the Testatrix "has had several emotional conversations with her caregivers and with [the son] over the past few days. They understand that she has a palliative diagnosis and is unlikely to improve beyond her current state. Her goal is to get out of hospital and have some minimal quality of life, pain-free and relatively symptom free." [47] Ms. Charest testified that she had a conversation with the Testatrix the day before her discharge, and that the Testatrix did not express any fear or reservations about returning to the son's home. Ms. Bosche and Ms. Landau's evidence was to similar effect. I. The Testatrix's Final Month [48] As it turned out, the Testatrix's condition worsened the day she was set to be transferred to the son's home, such that everyone agreed that a move to hospice was the safer option, at least initially. The daughter spent an evening or two in hospice with the Testatrix. [49] The Testatrix was then moved into the son's home in Kelowna, initially on a trial basis, and then permanently. Ms. Bosche confirmed that this was the Testatrix's wish. The Testatrix resided with her son until her death. The son installed an array of medical equipment to assist in the Testatrix's care. He also called upon his friend, Mr. Bates, who is a nurse, to assist until adequate home care services could be arranged. [50] A week or so after the Testatrix's move to the son's home, the daughter came to Kelowna and stayed with them until the Testatrix's death. J. The Testatrix's Assets at Death [51] After the Testatrix's death, the daughter and the son agreed that they could each withdraw $10,000 from the Testatrix's account. The son received the $10,000 and the daughter withdrew $9,000. [52] At the time of her passing, the Testatrix owned the Home and bank accounts totalling approximately $60,000. The Home was sold on or about December 2, 2019, and yielded proceeds of about $316,000, which are being held in trust (the "Home Proceeds"). There remains about $56,000 in the Testatrix's bank accounts. K. Litigation History [53] Following the Testatrix's death, the daughter learned of the existence and general content of the Second Will, although it took some time for the daughter to receive a copy of same. On September 30, 2019, the daughter commenced the present action, seeking to set aside the Second Will or alternatively seeking a wills variation under s. 60 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [WESA]. [54] On February 9, 2021, the son commenced the within petition, seeking proof in solemn form of the Second Will. [55] The son brought an application for summary judgment on January 27, 2021. On March 22-23, 2021, Justice Crerar heard the application along with submissions on several other case management issues. He delivered oral reasons for judgment on the application on March 23, 2021, which are indexed as Young v. Veselic, 2021 BCSC 1106. Justice Crerar dismissed the summary judgment motion. He also gave leave to the daughter pursuant to s. 151 of WESA to advance a misappropriation claim against the son in the name of the estate. Finally, Justice Crerar directed that the daughter's request for a wills variation be adjourned until it was determined which will was valid. [56] At trial, I became concerned that there was substantial overlap between the evidence that might be heard during any subsequent wills variation trial. I gave the following directions to minimize potential inefficiencies: a) I would remain seized of a second phase trial considering the wills variation claim, if it is necessary; and b) any evidence in this first trial would be admissible at any second phase trial. [57] The son filed a counterclaim on June 21, 2021, in which he sought a declaration that funds misappropriated by the daughter from the Testatrix are held in a resulting trust. III. ISSUES [58] The daughter seeks the following relief, among other things: a) that the Second Will be declared void and of no effect for all purposes; b) that the Second Transfer be set aside and legal title to the Home Proceeds be declared in the name of the Testatrix until the settlement of the estate; c) that, on behalf of the estate derivatively, the son be required to return funds misappropriated from the Testatrix or her estate; and d) in the alternative, a declaration that the Home Proceeds are held in a resulting trust by the son for the benefit of the Testatrix's estate. [59] The son seeks proof in solemn form of the Second Will, and a declaration that there were misappropriations made by the daughter. [60] I note that although the daughter initially put the Testatrix's capacity in issue, that basis for relief was abandoned. [61] As noted, the daughter's request for a wills variation was adjourned until the results of this first trial were known. [62] Hence, the issues that must be addressed in these reasons are as follows: a) Was the Second Will or the Second Transfer executed as the result of undue influence? b) Are the Home Proceeds held by the son on a resulting trust? c) Did either party misappropriate funds from the Testatrix? IV. LEGAL PRINCIPLES A. Evidentiary Issues [63] Both parties sought to rely on hearsay statements allegedly made by the Testatrix. In McMaster Estate v. McMaster, 2021 BCSC 1100, the court adopted the following approach to such statements: [24] The evidence led at trial included many hearsay statements, including an alleged "CRA Gift Note". Hearsay evidence is an out of court statement tendered for the truth of its contents and is presumptively inadmissible: R. v. Bradshaw, 2017 SCC 35 at paras. 20-21. There are two exceptions. First, hearsay may be admitted for the truth of its contents if it fits into an established common law category of traditional exceptions considered sufficiently necessary and reliable, such as a dying declaration: Bradshaw, at para. 22; R. v. Khelawon, 2006 SCC 57, at para. 42. Evidence of a statement made by a deceased person as to their state of mind or emotional state, and not for its truth, may also be admissible: Boughton v. Widner Estate, 2021 BCSC 325 at para. 191. [25] Counsel have not submitted that any of the statements fall within any traditional exceptions to the hearsay rule. The plaintiff has abandoned the capacity argument but submits that any of the hearsay statements, as part of the narrative, may assist my assessment of Brad's credibility. [26] The second category is the principled exception to the hearsay rule. Under this exception, hearsay may be admitted into evidence for its truth when the party tendering it, on a balance of probabilities, demonstrates that the criteria of both necessity and reliability have been met: Bradshaw, at para. 23. Even when these criteria are met, the judge may exclude the evidence if its prejudicial effect outweighs its probative value. [27] Statements attributed to Doreen are hearsay. Since she is not available to testify, the criterion of necessity is met. The admissibility of the statements rests on whether threshold reliability has been met. A strict application of the principled approach requires the trier of fact to assess the two criteria on a threshold basis (to determine admissibility), before assessing the statement's ultimate reliability (the reliance or "weight" I give it), having regard to the entirety of the evidence: Bradshaw, at para. 39; Boughton, at para. 195. [28] Counsel agreed at the start of the trial that I can determine threshold and ultimate reliability after hearing the testimony at trial. [29] In Anderson v. Anderson, 2010 BCSC 911, Justice Dardi articulated the principles relating to hearsay in similar circumstances to the case before me. In Anderson, the primary issue was whether the deceased gifted to the defendant the legal and beneficial interest in a property through an inter vivos transfer. Justice Dardi articulated the hearsay principles as follows: [57] The reporting of some of the Deceased's statements by interested parties raises a concern regarding the reliability of those statements. This evidence must be carefully scrutinized. Adopting the approach in Stephens v. Austin, 2003 BCSC 341, I have nevertheless determined that the Deceased's statements adduced in evidence meet the threshold requirement of reliability. I conclude that the fact that some of the witnesses relating the statements are interested parties may be adequately dealt with in the determination of the weight to be attributed to any particular statement. [58] In my view, the real issue with some of the evidence and the weight to be accorded to it is whether the statements were in fact made by the Deceased. The Court must first find on a balance of probabilities that the statement was made before it goes on to determine the treatment and weight of such evidence: Creutz v. Winther Estate, 2007 BCSC 1463. In essence, this assessment turns on the reliability of the various witnesses: Halfpenny v. Holien (1997), 37 B.C.L.R. (3d) 186 (S.C.). [30] In Anderson, Dardi J. admitted into evidence the reported statements of the deceased from some of the interested parties. Once a statement was accepted as being made, the fact the statements came from interested parties could be dealt with by determining the weight to be attributed to any particular statement. She found that the weight to be attributed to the admissible statements turned on the credibility of the various witnesses. [31] I agree with the approach of Dardi J. In this case I identify which statements I accept as being made, and which I do not, on a threshold basis. The ultimate reliability of the admissible statements will be assessed to determine what weight, if any, I give that evidence. Even if I do not accept the statements for the truth of their contents, they may be accepted as part of the broader narrative: Modonese v. Delac Estate, 2011 BCSC 82 at paras. 82-85, aff'd 2011 BCCA 501. [32] Credibility is a central issue in this case. I heard conflicting testimony from the witnesses about relationships, various events, meetings, and telephone calls. Each sibling painted a picture of their relationship with Doreen that tended to support the outcome they seek. As a result, in accordance with the above principles, I must approach the testimony with particular scrutiny. [33] I will consider which witness is making statements attributed to Doreen and whether I have found the witness to be credible. I will consider whether the purported statements are self-serving, and whether they were or could have been corroborated by others. Ultimately, I cannot accept the out of court statement unless it is consistent with other evidence I heard or it harmonizes with the preponderance of the probabilities and is otherwise reasonable: Faryna v. Chorny, [1952] 2 D.L.R. 354 at 357 (B.C.C.A.). [Emphasis added.] [64] The parties agreed that I should adopt the same approach here. [65] The court in McMaster Estate also addressed the proper approach to medical records in such cases, another evidentiary point at issue here: [40] Justice Burnyeat in McTavish v. Boersma, (1997) 38 B.C.L.R. (3d) 306 (S.C.) summarized the principles from Ares at 311-12: 1. The notes taken must be made contemporaneously. 2. The notes must be made by someone having a personal knowledge of the matters being recorded. 3. The notes must be made by someone who has a duty himself or herself to record the notes or to communicate the notes to someone else to record as part of the usual and ordinary course of their business. 4. The matters which are being recorded must be of the kind that would ordinarily be recorded in the usual and ordinary course of that business. 5. A statement in the records of the fact that a certain diagnosis was made will be admissible. 6. Recorded observations, diagnosis and opinions will be admissible providing they are recorded in accordance with points 1 through 4. 7. The fact that the referring doctor relied upon another doctor's opinion to assist in coming to his or her own diagnosis and opinion is only evidence of that fact so that the other opinion does not become evidence unless it is otherwise admissible. Accordingly, it is only evidence of the fact that the referring doctor wished or required that opinion to be received before forming his or her own opinion. 8. Statements made by parties or by experts which are recorded in the usual and ordinary course of business but which lie outside the exception to the hearsay rule are hearsay and will not be admitted into evidence unless they can be brought within Section 14 of the Evidence Act which allows for the admissibility of such statements if it can be shown that they are proof of a prior inconsistent statement. B. Undue Influence [66] In Geffen v. Goodman Estate, [1991] 2 S.C.R. 353 at 377-379, 389-390, Wilson and Cory JJ. explained the test for undue influence as follows: What then is the nature of the relationship that must exist in order to give rise to a presumption of undue influence? It seems to me rather that when one speaks of "influence" one is really referring to the ability of one person to dominate the will of another, whether through manipulation, coercion, or outright but subtle abuse of power. I disagree with the Court of Appeal's decision in Goldsworthy v. Brickell, supra, that it runs contrary to human experience to characterize relationships of trust or confidence as relationships of dominance. To dominate the will of another simply means to exercise a persuasive influence over him or her. The ability to exercise such influence may arise from a relationship of trust or confidence but it may arise from other relationships as well. The point is that there is nothing per se reprehensible about persons in a relationship of trust or confidence exerting influence, even undue influence, over their beneficiaries. It depends on their motivation and the objective they seek to achieve thereby. [ ] What then must a plaintiff establish in order to trigger a presumption of undue influence? In my view, the inquiry should begin with an examination of the relationship between the parties. The first question to be addressed in all cases is whether the potential for domination inheres in the nature of the relationship itself. This test embraces those relationships which equity has already recognized as giving rise to the presumption, such as solicitor and client, parent and child, and guardian and ward, as well as other relationships of dependency which defy easy categorization. Having established the requisite type of relationship to support the presumption, the next phase of the inquiry involves an examination of the nature of the transaction. [I]n situations where consideration is not an issue, e.g., gifts and bequests, it seems to me quite inappropriate to put a plaintiff to the proof of undue disadvantage or benefit in the result. In these situations the concern of the court is that such acts of beneficence not be tainted. It is enough, therefore, to establish the presence of a dominant relationship. Once the plaintiff has established that the circumstances are such as to trigger the application of the presumption, i.e., that apart from the details of the particular impugned transaction the nature of the relationship between the plaintiff and defendant was such that the potential for influence existed, the onus moves to the defendant to rebut it. As Lord Evershed M.R. stated in Zamet v. Hyman, supra, at p. 938, the plaintiff must be shown to have entered into the transaction as a result of his own "full, free and informed thought". Substantively, this may entail a showing that no actual influence was deployed in the particular transaction, that the plaintiff had independent advice, and so on. Additionally, I agree with those authors who suggest that the magnitude of the disadvantage or benefit is cogent evidence going to the issue of whether influence was exercised. [ ] Given that the trial judge found that there was very little contact between the brothers and the deceased at the relevant time, that the deceased was not in fact relying on her brothers to advise her, and that the prime motivation of the brothers was to advance their sister's welfare, it is difficult to conclude that the appellants have not successfully rebutted the presumption of undue influence. In addition to these findings it is also relevant that the evidence establishes that the deceased received some independent advice from Mr. Pearce and that the agreement ultimately concluded was in accord with her wishes. I acknowledge that in other situations the fact that the brothers took a leading role in the initial meeting with Mr. Pearce might militate against a finding of independent advice. However, after the departure of the brothers for their respective homes, Mrs. Goodman continued on her own initiative to seek Mr. Pearce's advice. It does cause me some concern that the solicitor did not inquire in any detailed way into Mrs. Goodman's financial position. In particular, his failure to find out that the estate bequeathed to her was her only asset of any value and that she did not have the benefit of steady employment raises questions as to whether she fully appreciated the economic effect of the trust on her personally. However, any imperfection in the legal advice obtained is not, in my view, fatal to the appellant's case. [Emphasis added.] [67] While there were several sets of concurring reasons in Geffen, Wilson and Cory JJ.'s analysis has proven to be the most influential in British Columbia: see e.g., Lorintt v. Boda, 2014 BCCA 354 at para. 75. [68] In British Columbia, the assessment of this issue is also governed by statute. Section 52 of WESA states: In a proceeding, if a person claims that a will or any provision of it resulted from another person (a) being in a position where the potential for dependence or domination of the will­ maker was present; and (b) using that position to unduly influence the will-maker to make the will or the provision of it that is challenged, and establishes that the other person was in a position where the potential for dependence or domination of the will-maker was present, the party seeking to defend the will or the provision of it that is challenged or to uphold the gift has the onus of establishing that the person in the position where the potential for dependence of domination of the will-maker was present did not exercise undue influence over the will­maker with respect to the will or the provision of it that is challenged. [69] McMaster Estate is a helpful illustration of the application of these principles. In that case, a deceased mother purchased a home and registered it in joint title with one of her sons. While the deceased's will provided for her estate to be split evenly between her children, the transfer had already taken nearly all of the deceased's assets out of her estate. In terms of the applicable legal principles, the court stated: [47] Undue influence is an equitable doctrine to prevent individuals from being taken advantage of by others. It addresses abuses of trust, confidence, and power spanning a range of transactions, including gifts, bequests, and commercial dealings. Transactions induced by undue influence may be set aside. [48] Vulnerability and dependency are the hallmarks of undue influence. [49] In order to trigger a presumption of undue influence, the first question to address is whether the potential for domination inheres in the nature of the relationship. The second phase of the inquiry involves an examination of the nature of the transaction: Geffen v. Goodman Estate, [1991] 2 S.C.R. 353 at paras. 40-44. [50] A relationship of dependency involving a potential for domination may arise among family members: Geffen. A gratuitous transfer from a parent to an adult child does not automatically create a presumption of undue influence. In Wood v. Porter, 2015 BCSC 2354, this Court found a relationship of dependency and domination did not exist between an independent, active, and competent mother and her son. To establish the presumption of undue influence, the plaintiff must establish the existence of a relationship of potential dominance between the parent and the adult child: Modonese at para. 111. [51] The second phase of the inquiry involves an examination of the nature of the transaction. [52] To rebut the presumption of undue influence, the defendant must establish that the transferor entered into the transaction of her own "full, free and informed thought": Geffen at para. 45. [ ] [55] Undue influence does not depend on proof of reprehensible conduct or malicious intent: Modonese at para. 99. The transferee may have acted in the sincere belief of their honesty: Ogilvie v. Ogilvie Estate, (1998) 106 B.C.A.C. 55 (C.A.). It is sufficient to establish that the deceased was reliant on a person and that person exercised dominance over the deceased's transactions through persuasive influence: Halliday v. Halliday Estate, 2019 BCSC 554 at paras. 215-216. [Emphasis added.] [70] In Cowper-Smith v. Morgan, 2016 BCCA 200, rev'd on other grounds 2017 SCC 61, the trial judge found that a presumption of undue influence existed as between a mother and daughter, and that the presumption had not been rebutted. These findings were upheld on appeal. The legal advice given to the mother was found to be inadequate to rebut the presumption. On appeal the daughter did not challenge the existence of the presumption but argued that she had rebutted it based on the legal advice the mother had received. The Court of Appeal affirmed the trial judge's finding on this issue but allowed the appeal in part on a separate point. The court adopted a list of factors to be considered in the assessment of undue influence, which included an assessment of the legal advice received: [50] Factors to be considered in determining whether the donor acted of her own "full, free and informed thought" in entering the transaction include: (i) the lack of actual influence or opportunity to influence the donor; (ii) the receipt of or opportunity to obtain independent legal advice; (iii) the donor's ability to resist any such influence; and (iv) the donor's knowledge and appreciation about what she was doing. See Stewart v. McLean, 2010 BCSC 64 at para. 97. [51] The following considerations have also been identified as relevant to the assessment of the legal advice provided to the donor (Fowler Estate v. Barnes (1996), 142 Nfld. & P.E.I.R. 223, Green J., adopted in Coish v. Walsh, 2001 NFCA 41 at para. 23): 1. Whether the party benefiting from the transaction is also present at the time the advice is given and/or at the time the documents are executed; 2. Whether, though technically acting for the grantor, the lawyer was engaged by and took instructions from the person alleged to be exercising the influence; 3. In a situation where the proposed transaction involves the transfer of all or substantially all of a person's assets, whether the lawyer was aware of that fact and discussed the financial implications with the grantor; 4. Whether the lawyer enquired as to whether the donor discussed the proposed transaction with other family members who might otherwise have benefited if the transaction did not take place; and 5. Whether the solicitor discussed other options whereby she could achieve her objective with less risk to her. [52] The respondents also rely on jurisprudence that identifies two branches for assessing the adequacy of the independent legal advice given where an allegation of undue influence is raised: (i) advice as to understanding and voluntariness (attendance on execution); and (ii) advice as to the merits of a transaction (the wisdom of entering into the transaction). The first branch of the test requires that the independent advisor is satisfied the donor understands the transaction and enters into it freely and voluntarily. The second branch of the test requires something more than the independent advisor being satisfied that the donor understands the effect of the transaction and wishes to make the gift; it also requires that the independent advisor is satisfied that "the gift is one that is right and proper in all the circumstances of the case, and if he cannot so satisfy himself he should advise his client not to proceed." [Citations omitted.] [53] Assessing the adequacy of the legal advice given is a fact-specific inquiry. It does not reduce to any precise test. In some circumstances, it may require advice on only the nature and consequences of the transaction. However, where concerns or allegations of undue influence arise, generally there will be a need to give "informed advice" on the merits of the transaction. [Citations omitted.] [ ] [65] Moreover, neither lawyer reviewed with Elizabeth: (i) any concerns she may have had in giving an equal share of her estate to Max or Nathan; (ii) her reasons for taking such drastic steps that would effectively disinherit her sons (surprisingly neither lawyer recorded any reasons given by Elizabeth for making this decision); and, most significantly, (iii) the merits or wisdom of her doing so when other options might have better alleviated the risk of future litigation if she was intent to give more of her estate to Gloria. It appears neither lawyer gave Elizabeth the type of "informed advice" that is required when there is a concern about undue influence, namely that Elizabeth should have carefully considered proceeding with this course of action, which in the absence of any rationale reasons, might be found after her death not to be just and fair to the respondents. [66] In the result, there was in my view reliable evidence accepted by the judge on each of the "Coish" factors to support her finding that the presumption of undue influence was not rebutted by the legal advice obtained by Elizabeth either from Ms. Iverson, Mr. Easdon or both. I find no error in law or fact in that finding. Accordingly I would not accede to the appellant's submission that the presumption of undue influence and the presumption of resulting trust were rebutted on the evidence. [Emphasis added.] C. Resulting Trust [71] As noted above, the daughter also challenges the Second Transfer based on the resulting trust principles applied to gratuitous transfers. [72] In Di Giacomo v. Di Giacomo, 2021 BCSC 2313, Justice G.C. Weatherill described the proper approach to assessing gratuitous transfers of real property between a parent and an independent adult child: [40] In a case involving, as here, a gratuitous transfer of an interest in land to an independent adult child, it does not follow as a matter of law that an immediate irrevocable gift was made. Rather, the donee must rebut the legal presumption of a resulting trust: Schouten Estate v. Swagerman-Schouten, 2014 BCSC 2320 at paras. 2-3; Pecore at paras. 24-26; Bergen at para. 5. If, on a balance of probabilities, the donee establishes that the donor's intention was to make an irrevocable gift, a resulting trust will not be found: Pecore at paras. 43-44, 55; Schouten Estate at para. 7. [41] The actual intention of the donor at the time of the transfer is the governing consideration in the assessment of whether the presumption of resulting trust has been rebutted: McKendry at para. 31 [73] When assessing the donor's intention, the court considers both direct and circumstantial evidence, as well as the surrounding circumstances: McMaster Estate at para. 45. D. Misappropriation of Funds [74] Each of the parties alleges that the other misappropriated funds from the Testatrix. Although not particularly well plead, I find that these claims are properly treated as claims in unjust enrichment. To make out such a claim, a plaintiff must demonstrate that: (i) the defendant was enriched; (ii) the plaintiff suffered corresponding deprivation; and (iii) there was no juristic reason for the deprivation: Kerr v. Baranow, 2011 SCC 10 at paras. 36-40. V. ANALYSIS A. Evidentiary Issues [75] I find that the non-party witnesses were generally credible and reliable, and hence their recounting of the evidence of the Testatrix is generally admissible. I have addressed the effect that this conclusion has on admissibility of specific statements in my factual review above. [76] I found it necessary to exercise some caution with Mr. Bates' evidence however, as he is a very close friend of the son and appeared to have an interest in advancing the son's case wherever possible. As will be seen above and below, I was able to support my conclusions without having to rely on his evidence in any event. [77] Both the daughter and son aggressively advanced their own positions. I find that each ran into isolated credibility problems, but I was still able to generally accept their evidence, and their hearsay evidence as to statements made by the Testatrix in particular. [78] I found that I was able to rely generally on the hospital records, as explained further below. The real issue in relation to these records is their weight, rather than their admissibility. B. Undue Influence [79] The first step in assessing a claim of undue influence is determining whether an initial presumption applies. If there is a presumption of undue influence, the recipient must establish, on a balance of probabilities, that the donor entered into the transaction on their own "full, free and informed thought": Geffen at 378-379, 381; Cowper-Smith at para. 49. 1. Presumption of Undue Influence [80] As noted above, a presumption of undue influence is established where the plaintiff demonstrates the "potential for domination inheres in the nature of the relationship" between the donor and recipient: Geffen at 378. The relationship between an independent adult child and an elderly, ailing parent has been recognized as one which may elicit such dependency: Modonese v. Delac Estate, 2011 BCSC 82 at paras. 104-106, aff'd 2011 BCCA 501. [81] In the present case, I am satisfied that the presumption applies, both at common law and under s. 52 of WESA. The Testatrix was relying heavily on the son near the end of her life. In particular, the son played a central role in managing her healthcare, her living situation, and her estate planning. Without attributing any actual undue influence at this juncture--indeed, many of these activities could be expected from any dutiful child--there was a clear opportunity for the son to exert undue pressure on the Testatrix. Given her advanced age and health, she was undoubtedly vulnerable and dependent on the son at the time of the Second Will and Second Transfer. Hence, it falls to the son to rebut the presumption. 2. Factors Rebutting the Presumption of Undue Influence [82] As noted, in Cowper-Smith at paras. 50-52, the court listed the following key factors to consider: a) the lack of actual influence or opportunity to influence the donor; b) the donor's ability to resist any such influence; c) the donor's knowledge and appreciation about what she was doing; and d) whether the donor received independent legal advice. [83] In assessing the last factor, being the quality of the legal advice, the court will consider the following subfactors (the so-called "Coish" factors): i. whether the recipient was present at the time the advice was given and/or at the time the documents were executed; ii. whether, though technically acting for the donor, the lawyer was engaged by and took instructions from the recipient; iii. in a situation where the proposed transaction involves the transfer of all or substantially all of the donor's assets, whether the lawyer was aware of that fact and discussed the financial implications with the donor; iv. whether the lawyer enquired as to whether the donor discussed the proposed transaction with other family members who might otherwise have benefited if the transaction did not take place; v. whether the lawyer discussed other options whereby the donor could achieve their objective with less risk; vi. whether the lawyer confirmed the donor's understanding of the transaction and their voluntariness to do so; vii. whether the lawyer advised the donor as to the merits or wisdom of the transaction; and viii. whether the lawyer was satisfied the transfer was right and proper, in all the circumstances of the case. [84] I apply this analytical structure below. a. Opportunity to Influence, and Actual Influence [85] The son certainly had the opportunity to influence the Testatrix to execute the Second Will and the Second Transfer. The Testatrix was ill in hospital and the son was visiting her regularly. It is also clear from the evidence of the independent witnesses that the Testatrix was extremely close with the son and that she trusted him. I accept that there was a degree of dependency and vulnerability, the so-called "hallmarks of undue influence": McMaster Estate at para. 47. [86] However, in terms of "actual influence", I have found that the son has overcome the presumption that there was undue influence. I address this point more directly within my analysis of the next factor, being the ability to resist influence. b. Ability to Resist Influence [87] I find that the Testatrix maintained the ability to resist any influence, notwithstanding her illness and plans to move into the son's home. [88] The daughter relies on the Testatrix's medical records, among other things, to establish both that the son was applying undue influence, and that the Testatrix was unable to resist such influence. In particular, the daughter says the medical records demonstrate the son's aggressive behaviour and the Testatrix's corresponding fear. The daughter also relies on the witness testimony which suggested the Testatrix took on a demure or submissive demeanour in the son's presence. [89] I find that this evidence is not as damaging to the son's efforts to rebut the presumption as the daughter suggests. As discussed further below, the medical records are often ambiguous in their meaning, and the witness testimony does not corroborate the daughter's concerns. In fact, the non-party witnesses generally described the Testatrix as a strong woman who could not be told what to do. As Ms. Landau stated: "You can't force [the Testatrix] to do anything; she would have spoken out 100%." Ms. Charest's evidence was to similar effect, that she was a "tough Czech woman" who would "tell people what to do" rather than being told what to do. [90] With respect to the medical records, while I accept their admissibility, I find they have limited probative value. The records qualified as business records under s. 42 of the Evidence Act, R.S.B.C. 1996, c. 124, as they were made and contain statements of facts that were recorded in the usual and ordinary course of business and are not necessarily adduced for the truth of their contents: Singh Estate (Re), 2019 BCSC 272 at paras. 48, 51. The records are, at a minimum, admissible to help establish the number of visits by the daughter, the Testatrix's state of mind, and her emotional state generally: Burkett v. Burkett Estate, 2018 BCSC 320 at para. 195. [91] While third party statements recorded in medical records are generally admissible if they were "within the observation of the doctor or person who [had] a duty to record such observations in the ordinary court of business", I have some concerns about their reliability as it relates to precise quotes relied upon by the daughter: Singh Estate at paras. 50, 53; Cambie Surgeries Corporation v. British Columbia (Attorney General), 2016 BCSC 1896 at para. 10. The people who took the notes were not called to confirm the accuracy of the reporting, nor whether their notes reflected direct quotes. [92] Further, and in any event, I find that many of the attributed statements relied upon are ambiguous, as they could be interpreted in several ways. For example, the statement that the Testatrix did not "have a choice" about moving into the son's home could mean that that she was of the view that her options were limited given her condition, not that the son was forcing her into a particular option. Indeed, the evidence of the other witnesses suggests that the Testatrix would not have been upset about returning to the son's home, as they were close to and cared for each other. As a second example, the daughter purports to rely on the fact that the Testatrix said she was "scared to go to [the son's] place". However, this assertion omits the second part of the statement, which puts a very different perspective on the evidence. In full, the medical records state the Testatrix had said she was scared to move into the son's home "because [she would] have no help if [she] need[ed] to go to the washroom". This reflects anxiety about her personal care, not a fear of the son. [93] When read in context, the medical records simply do not demonstrate the Testatrix was unable to resist the son nor do they support the daughter's position that the son bullied the Testatrix into making the Second Will and Second Transfer. [94] In terms of Ms. Phillips' assessment that the Testatrix may have been afraid of her son, this was largely derived from the Testatrix's purportedly subdued demeanour in the son's presence. I find this inference to be too much of a leap. The fact that she was quiet could just as easily be reflective of calm, agreement, or respect. Much the same can be said for the incident reported by Ms. Aaurnyad. [95] Any suggestion of fear is undercut by the evidence of Ms. Charest, who was perhaps the Testatrix's most frequent visitor other than the son. She testified that she would never say the Testatrix was afraid of her son. Rather, she cared deeply for her son. [96] The medical records and witnesses' evidence do support that the son was at times aggressive towards hospital staff. The son did not deny this behaviour. Rather, he sought to justify his response as necessary in light of the mistakes and poor judgment of the Testatrix's healthcare team. It appears that there were at least some legitimate complaints. For example, the staff improperly disposed of all the Testatrix's art and birthday cards, and Ms. Bosche testified that there were problems because the cleaning was not being done properly. [97] I find that the son's conduct provides little support for a finding of undue influence. The daughter relies on the fact that bullying supported a finding of undue influence in Burkett. However, in Burkett, the bullying was directed towards the donor, and there was a specific finding that the donor was afraid of the recipient. Here, the son's conduct was directed towards hospital staff, not his mother, and there is little evidence that the Testator was afraid of her son. [98] It is not surprising that the son would lead the discussion of the Testatrix's medical treatment plan. Just as the Testatrix initially trusted the daughter to have joint control of her bank accounts, presumably given her position as a banker, it is reasonable she would trust her son to advocate for her healthcare given his status as a medical professional. Moreover, the Testatrix had language challenges, further justifying and explaining the required assistance from her son. [99] Furthermore, the son's aggression appears to have been largely directed to medical issues, rather than financial. There is little evidence of the son aggressively pressing the Testatrix for particular results on financial issues. He appears to have largely "stayed in his lane", although perhaps driving those medical issues more aggressively than he should have. But his aggression does seem to have been directed towards advancing the Testatrix's best interests, as he saw them. [100] The daughter seeks to rely upon the fact that the son was, or was shortly to be, in a fiduciary relationship with the Testatrix through the execution of the power of attorney. However, this only goes to the extent of the son's opportunity to exercise undue influence, but bears little relevance to the question of whether the Testatrix had the ability to resist any possible influence from the son. c. Knowledge and Appreciation of the Effect of Her Decision [101] The evidence suggests that the Testatrix had knowledge and appreciation about what she was doing. Again, the daughter does not advance a capacity argument. The daughter's witness, Ms. Phillips, testified that the Testatrix's mental state was solid until shortly before her death. Other witnesses gave similar evidence. [102] Ms. Charest, in particular, has a specific recollection of discussing the decision to exclude the daughter with the Testatrix. She advised Ms. Charest that she was concerned that the daughter's purportedly erratic behaviour indicated she was still using drugs. The Testatrix also expressed frustration that the daughter had not paid for anything while she was living at the Home. The Testatrix felt that she had already paid more to the daughter than was necessary. All of this suggests that the Testatrix carefully thought out her plan. Whether that plan was fair is largely an issue for any subsequent wills variation trial. [103] The daughter argues that the Testatrix was in a state of "emotional turmoil" as she was executing the Second Will, given that she was set to depart from hospital for palliative care. While undoubtedly a difficult time, I see little evidence that the Testatrix was unable to make her own decisions. Many wills are made in situations where an individual has a terminal illness. That unavoidable reality alone is insufficient to invalidate the Testatrix's decision-making. d. Independent Legal Advice [104] The presence of independent legal advice is an important factor in rebutting the presumption of undue influence. Here, the Testatrix received independent legal advice from Mr. Wendell before executing the Second Will and Second Transfer. [105] However, the daughter suggests that the weight of this factor is undercut by Mr. Wendell's failure to take proper steps to ensure that the Testatrix was not being subjected to undue influence: McMaster Estate at paras. 139-140. [106] The daughter also argues that the timing of the Unwinding, and the change in counsel from Mr. McKenzie to Mr. Wendell, undercuts the weight of the legal advice and suggests undue influence, relying on Burkett. [107] I find that the timing of events does not warrant such an inference. The Testatrix initially became concerned about the daughter and son being joint tenants to the Home, which lead to her seeking to unwind the First Transfer. Some time later, the Testatrix started taking steps to exclude the daughter as a beneficiary of her estate. [108] The daughter also seeks to make something of the Testatrix's change in counsel. I find that the change does not undercut the son's efforts to rely on the legal advice. The Testatrix naturally returned to the lawyer who prepared the First Transfer to arrange the Unwinding. A month later when the Testatrix decided to take steps to exclude the daughter from her estate, she used counsel in Kelowna. This makes sense, as she was residing at KGH at the time, and would want to meet counsel in person to provide comprehensive instructions on the Second Will. It was in her consultation with Mr. Wendell that the Testatrix was recommended to transfer joint title to her son to reduce probate fees. [109] It is not clear from the timing that the Testatrix had even decided to exclude the daughter from her estate at the time of the Unwinding. Indeed, Mr. McKenzie understood that the Testatrix was unwinding the First Transfer largely because she wanted to sell the Home, not as part of any estate plan. [110] As it turned out, the Unwinding and the Second Transfer were registered close in time, but they were really two separate transactions which the evidence suggests were separated in both time and purpose. [111] The daughter seeks to make something of the fact that the documentation prepared by Mr. Wendall referred to a spouse when the Testatrix no longer had a spouse. I find that this was more likely simply an oversight in the use of redundant boilerplate language, rather than the result of any negligence on the part of the Mr. Wendell or a failure on the part of Ms. Charest to object to such language. [112] From this general discussion, I turn now to the specific sub-factors applied in assessing the quality of the independent legal advice (i.e., the "Coish" factors). i. Presence of the Recipient When Instructions were Given to Counsel [113] The son was not present at the time Mr. Wendell advised the Testatrix or when the Second Will was executed. However, the weight of this evidence is undercut somewhat by the fact that son first met Mr. Wendell at the hospital and then introduced Mr. Wendell to the Testatrix. ii. Provision of Instructions to Counsel [114] Mr. Wendell was formally engaged by, and took instructions from, the Testatrix. However, the weight of this factor is mitigated somewhat by the fact that the son set up the meeting with Mr. Wendell and purported to provide Mr. Wendell with a "preview" of what the Testatrix wanted to do. iii. Proportion of Estate at Issue [115] The Second Will and the Second Transfer involved virtually all of the Testatrix's assets, which raises greater concerns about undue influence. iv. Discussion of the Transaction with the Daughter or other Family Members [116] There is no direct evidence that the Testatrix discussed her proposed change in approach with the daughter or her children. The son initially suggested that such a conversation with the daughter had taken place, but later admitted that he had not been present to know exactly what was discussed during the meeting to which he was referring. This factor undercuts the weight of the independent legal advice to some extent. v. Discussion of Other Options with the Donor [117] Mr. Wendell did not discuss other options whereby the Testatrix could achieve her objective of reducing the risk of the daughter dissipating any bequest for improper purposes. There was also no evidence of him discussing how the Testatrix could still benefit all her grandchildren, even if she had concerns about the daughter's choices. This also reduces the weight to be applied to the legal advice. vi. Counsel's Efforts to Ensure that the Transfer was Voluntary [118] Mr. Wendell was satisfied that the Testatrix understood the effect of the Second Transfer and Second Will, and that she was executing the documents freely and voluntarily. He did not speak with her physicians, and he did not know that she was effectively in palliative care. However, he said that this was not unusual, and there was no evidence to the contrary. vii. Discussion of the Merits or Wisdom of the Disinheritance and Second Transfer with the Donor [119] Mr. Wendell discussed the reasons for the decision to disinherit the daughter and effect the Second Transfer. These reasons were expressly noted within the Second Will. Mr. Wendell also pressed the Testatrix on the wisdom of entering into the Second Transfer and the execution of the Second Will over both days of meetings. He specifically warned the Testatrix about the possibility of litigation. [120] However, Mr. Wendell did not make any effort to determine whether the bases given for the disinheritance were accurate. While not suggesting that a lawyer has such an obligation, this lack of investigation and discussion about the merits of the bases does reduce the weight of the legal advice factor somewhat. viii. Counsel's Efforts to Ensure that the Transfers were Right and Proper [121] Mr. Wendell's efforts satisfy himself that the Second Transfer and the Second Will were "right and proper in all the circumstances" left something to be desired. Mr. Wendell suggested that it was not his role to test the accuracy of the bases for disinheritance expressed by the Testatrix. He cautioned the Testatrix about the risks associated with a disinheritance, but stated that, on his view of his duties, he would carry out the transaction if so instructed by a competent party. [122] As one example of Mr. Wendell's lack of inquiry, he did not inquire whether the daughter had children that the Testatrix also intended to be excluded from the benefit of the Second Will. [123] Mr. Wendell's failure to probe into the merits of the Testatrix's disinheritance of the daughter and to determine if the disinheritance would affect other parties--such as the daughter's children--weighs against the effect of the legal advice provided. ix. Conclusion on the effect of the Legal Advice and Application of the Coish Factors [124] While several of the Coish factors undercut the weight to be applied to Mr. Wendell's legal advice, I conclude that on balance, it still supports the son's efforts to overcome the presumption of undue influence. [125] The subfactors undermining the weight of this factor are as follows: a) the daughter was not consulted about the disinheritance and neither were her children; b) Mr. Wendell failed to discuss other options with the Testatrix or determine if the daughter's disinheritance would affect others--such as the daughter's children; and c) Mr. Wendell did not inquire into whether the Testatrix's reasons for disinheriting the daughter had any merit to them, as he did not view this as his role. [126] Subfactors which are evenly balanced include the following: a) while the son was not present when the Testatrix instructed Mr. Wendell, he was the first person to greet him at the hospital; and b) while Mr. Wendell was formally engaged and instructed by the Testatrix, the son did give him a "preview" of what the Testatrix would be instructing him to do. [127] The key factor which weighs in favour of the son's position is the fact that Mr. Wendell took material steps to ensure that the Testatrix understood the nature of the transactions and was pursuing them freely and voluntarily. 3. Case Law Guidance on the Application of the Undue Influence Test [128] In McMaster Estate, the testatrix never received any legal advice. Furthermore, the court found that the deceased had become isolated from her other children while living in the home with the son. In fact, the son "refused to allow his mother to advise her other children of her address (or at minimum did not persuade her to provide it), limited her telephone contact with them, and did not advise them when she was ill and later dying": McMaster Estate at para. 134. I do not find that any of those factors exist here. [129] In Davy v. Davy, 2019 BCSC 1826, the testatrix transferred joint title in her home to one of her sons. The court found the son had exerted undue influence. The mother was financially unsophisticated and relied heavily on her son. The court concluded that the testatrix did not understand the nature of the transaction. When consulting counsel about the transfer, the testatrix had discussed her desire to ensure her will bequeathed gifts to her other children. Likewise, the will provided that the residue of the estate would be shared equally amongst the siblings. However, the home effectively made up the entirety of her estate, such that transferring it to her son amounted to disinheriting her other children. The court found that she could not have intended such an outcome. [130] I find Davy to be distinguishable on the facts. In the present case, there was no evidence that the Testatrix actually wished to make provision for the daughter at the time of the Second Will and Second Transfer. Indeed, the evidence suggests disinheriting the daughter was the entire point of the Second Transfer and Second Will. [131] In Cowper-Smith, the testatrix transferred title in her home and her investments to her daughter. The transferred assets made up the vast majority of the testatrix's estate. The testatrix's will provided that her estate would be shared equally between her three children. The court found the daughter had unduly influenced the testatrix by convincing her that her two sons were trying to take her home. The court noted that, while the testatrix had legal advice, counsel had failed to: (a) address the incongruity of gifting equal shares of the estate between her children while giving a right of survivorship for all her major assets to her daughter; (b) determine the reasons for disinheritance; and (c) discuss the merits of the decision and other options which carried less risk. Accordingly, the court found that the testatrix had not received "informed advice" prior to the transactions: Cowper-Smith at para. 65. [132] In different respects, Cowper-Smith is both distinguishable and analogous to the present case. First, it is distinguishable insofar as I have not found that the son was the source of the Testatrix's concerns about the daughter and her ultimate desire to disinherit her. Conversely, it is somewhat analogous insofar I also have also identified certain reservations about the quality of the legal advice provided to the Testatrix prior to the Second Transfer and the Second Will. As in Cowper-Smith, Mr. Wendell failed to explore other options with the Testatrix. [133] That being said, it is of particular moment that there is no incongruency between the Second Will and the Second Transfer in the present case, nor was there any question as to the Testatrix's intent. Accordingly, any concerns relating to the quality Mr. Wendell's legal advice do not rise to the same level as in Cowper-Smith. [134] Finally, in Trudeau v. Turpin Estate, 2019 BCSC 150, the testatrix altered her will from benefiting each of her four children equally, to allocating 60% of the estate to one daughter alone. After her death, the other children challenged the will, asserting the daughter had unduly influenced the testatrix. The court dismissed the claim, finding that the testatrix was a "stern, strong-willed, no-nonsense, and domineering woman" who was unlikely to be influenced: Trudeau at para. 116. The court also noted the daughter had never acted aggressively towards the testatrix with regard to her testamentary intentions. Rather, the testatrix had independently decided she was unhappy with her other children and wished to bequeath the lion's share of her estate to her daughter. [135] I find Trudeau to be closely analogous to the present case, particularly insofar as the evidence indicates the Testatrix was also a capable and strong-willed woman. Moreover, as in Trudeau, there was no evidence the son acted aggressively towards the Testatrix regarding her testamentary intent. 4. Conclusion on Undue Influence [136] As noted above, the presumption of undue influence exists in the present case. Accordingly, the question is whether the presumption was rebutted. I am satisfied the son has met his burden. [137] Although the question of whether the presumption has been rebutted is not a matter of simply counting up the various factors, I begin by noting that the only factor which clearly favours the daughter's position is the son's opportunity to exert influence. Otherwise, I am satisfied that the Testatrix had the ability to resist any possible influence by her son, that there was no such influence in relation the Second Will and the Second Transfer, and that she clearly understood the consequences of her decision. [138] With respect to the legal advice factor, while I have certain reservations about its overall quality and depth, I find that it also supports the son's position. It simply does not carry the same weight that it would have had the identified concerns not existed. [139] I accept that the son did little to correct any misunderstandings between the daughter and the Testatrix. However, there is little evidence that he used undue influence to secure a result in his favour. While there does not need to be malicious intent behind any undue influence, I find that the son has shown that there simply was not undue influence in relation to the Second Will or Second Transfer. Rather, the evidence demonstrates that the Testatrix was capable and firm in her views when she decided to disinherit the daughter. She did not need the son whispering in her ear, as she had formed her own view of the daughter and her conduct, and the wisdom of her decision to disinherit. The conclusions the Testatrix reached may have been unfair and misguided (which may be relevant to any subsequent wills variation proceeding), but I cannot find that they were the result of undue influence by the son. Accordingly, weighing all the evidence and factors above, I find the son has rebutted the presumption of undue influence. C. Resulting Trust [140] The daughter also seeks to set aside the Second Transfer of the Home into a joint tenancy between the son and the Testatrix, invoking resulting trust principles. [141] The son did not argue that he provided any consideration for the Second Transfer. [142] As noted, when a gratuitous transfer is made from a parent to an independent adult child, there is a presumption of a resulting trust. To rebut this presumption, the son must prove the Testatrix's actual intent at the time of the Second Transfer was to make an irrevocable gift of joint title in the Home. [143] I find that my analysis above relating to the Testatrix's knowledge of the effect of her decision establishes her donative intent. The Testatrix clearly intended to arrange her affairs such that the son would receive the fruits of the Home on a gratuitous basis. The plan was to give it to her son in the Second Will, and the only reason it became an inter vivos transfer was Mr. Wendell's advice as to the most cost-effective way to arrange a transfer. [144] The Testatrix's concurrent disinheritance of the daughter in the Second Will is relevant context which serves to establish her donative intent in relation to the Transfer. The consistency indicates the Testatrix had decided to leave her entire estate to her son. [145] Accordingly, I find the son has rebutted the presumption of a resulting trust with respect to the Second Transfer of the Home and the resultant Home Proceeds. D. Misappropriation of Funds [146] Each party submits the other used the Testatrix's funds to purchase various items for themselves or transferred the Testatrix's funds into their own accounts. [147] With respect to the impugned transactions made by the parties that were not repaid, there is no question that the parties were enriched and the Testatrix was correspondingly deprived. Rather, my analysis focuses largely on whether there was a juristic reason for these transactions. In particular, the key question is whether the evidence shows that the Testatrix intended for any such transfers to be gifts. [148] Subject to certain limited exceptions noted below, I find that neither party established the other was unjustly enriched. The evidence was overwhelming that the Testatrix was generous with her money during her period in Kelowna. Accordingly, it is my view that the juristic reason for the majority of the impugned transactions was the Testatrix's donative intent. [149] For example, the Testatrix gave money to the daughter for legal fees, and so it is not surprising that she would also have given money to the son for this same purpose. She gave her bank cards to various friends and visitors to buy meals, groceries, and clothing, so it is not surprising that she would have given her card to her son or daughter for similar purposes. She gave money to the daughter for gas, so it is not surprising that she would have given money to the son for auto parts. I also accept that the Testatrix would have wanted to purchase presents for their children. [150] I accept the son's explanation for the automobile transaction, as it is consistent with the Testatrix's general conduct during this period that she would not have wanted the son to have to use his own funds to purchase a vehicle designed to ease her entry and exit. The son's explanation was supported by Ms. Charest and Ms. Bosche. The fact that the son says that this vehicle was not ideal for his own purposes further supports a conclusion that this transaction was driven by the Testatrix rather than himself. [151] The daughter raised the fact that the son held a power of attorney for the Testatrix after July 25, 2019. However, the daughter acknowledged that the Testatrix retained the power to manage her affairs while she remained mentally capable. As noted, the daughter no longer puts the Testatrix's capacity in issue. As such, the Testatrix had the ability to make as many gifts as she wanted through the relevant period. [152] However, there are certain large cash transfers to the son for which I have been unable to find a juristic reason. The following are cash transfers shown to have been paid to the son out of the testator's accounts: December 5, 2018 $2,500 March 19, 2019 $1,000 March 25, 2019 $2,000 April 26, 2019 $2,000 June 17, 2019 $3,000 July 18, 2019 $1,500 August 16, 2019 $3,000 August 23, 2019 $2,000 TOTAL $17,000 [153] The son was unable to provide any adequate explanation for why these transfers were made to him. He baldly asserted that the Testatrix must have approved the transactions. However, given the size and nature of the transfers, this is difficult to accept. Several were also made very close to the Testatrix's passing when she was not doing well, making it less likely that she would have been interested or engaged in approving such financial transfers. [154] There was little evidence that the Testatrix was in the habit of making large cash gifts to either of the parties absent a specific reason--such as the payment of their respective legal fees. The son clearly had access to the Testatrix's bank accounts. Accordingly, I find there was no juristic reason for the son's enrichment with respect to these transfers. [155] As the Supreme Court of Canada noted in Kerr, a monetary award is always the first remedy to consider and should be granted in preference to a proprietary award when the enrichment and deprivation are amenable to calculation: paras. 46-47. This is the case here. I find the son must return $17,000 to the Testatrix's estate. [156] With respect to certain additional withdrawals raised by the daughter, I find that there is no evidence in the record demonstrating that these funds were paid to the son, as there were no recorded deposits into the son's accounts which corresponded with these alleged improper transfers.[1] [157] In final argument, the daughter also sought a positive credit for amounts she alleges she overpaid as part of her repayments to the Testatrix. However, since this remedy was not sought in her claim, I decline to make such an award. [158] In terms of the son's allegations against the daughter, much the same analysis applies. The Testatrix had sufficient trust in the daughter to make her a joint account holder. Moreover, the daughter was able to provide explanations for the transfers made to her. More importantly, even if not originally authorized, the daughter was able to walk through an accounting exercise with the court that showed that she repaid more than she received, even accounting for a reasonable amount for rent for the period she stayed in the Home. The son did nothing to undercut the accuracy of the daughter's accounting. [159] As noted above, the son says that he sat down with the Testatrix and that she went through her accounts and told him what transfers to the daughter she did not approve. However, the son did not test--or seek an explanation for--the final figure provided to him by the Testatrix. This created a serious evidentiary weakness in the son's misappropriation claim. It is simply not possible to perform the necessary analysis to determine which payments or withdrawals were in fact unauthorized. [160] Furthermore, the Testatrix's apparent bitterness towards the daughter by the end of her life may have clouded her recollection of the earlier explanations for the various transfers. [161] Finally, the daughter was able to establish how and when she repaid any loans or unapproved transfers, and the son was unable to say whether the Testatrix's math accounted for such repayments. [162] Accordingly, I find that the improper transactions attributed to the daughter were either freely given as gifts, or were subsequently repaid, such that the daughter was not unjustly enriched. VI. CONCLUSION [163] I conclude that: a) The Testatrix was not subject to undue influence when she executed the Second Will and Second Transfer, and the Second Will has been proven in solemn form. b) The Testatrix intended to gratuitously transfer joint title in the Home to the son and thus, the presumption of resulting trust is rebutted. c) Neither claim for unjust enrichment has been established, save for the sum of $17,000 repayable by the son to the estate. [164] If the parties cannot agree on costs, they shall provide written submissions as follows: a) the daughter may make written submissions of no more than 10 pages within 30 days of this judgment; b) the son shall file any responsive submissions of no more than 10 pages within 30 days of receiving the daughter's submission; and c) the daughter may file a reply argument of no more than 5 pages within 15 days of receiving the son's response. [165] Should the daughter decide to proceed with her request for a wills variation after considering these reasons, she should take steps to secure a further trial date before this Court as soon as possible, so that any further delays in the settlement of this estate are kept to a minimum. "The Honourable Mr. Justice Branch" [1] These additional impugned payments were as follows: September 12, 2017 for $5,000; December 15, 2017 for $1,500; January 3, 2019 for $1,000; March 22, 2019 for $1,200; April 3, 2019 for $1,500; May 9, 2019 for $2,000; and August 9, 2019 for $1,000.