Chung v. Chung

2022 BCSC 1396 Chung v. Chung

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Chung v. Chung, 2022 BCSC 1396 Date: 20220815 Docket: S209737 Registry: Vancouver Between: May Lau Chung and Belinda Tam Chung Plaintiffs And Ken Chung Defendant Corrected Judgment: The text of the judgment was corrected on the front page on August 16, 2022 Before: The Honourable Justice Majawa Reasons for Judgment Counsel for the Plaintiffs appearing by videoconference: M. Gianacopoulos Counsel for Defendant appearing by videoconference: J. Dubas Jennifer Chung, a "specified person" under WESA: Appearing on her own behalf Written Submissions of the Applicants and Jennifer Chung June 3, 2022 Written Submissions of the Respondent June 10, 2022 Place and Dates of Hearing: Vancouver, B.C. March 7-11, 2022 and May 18-19, 2022 Place and Date of Judgment: Vancouver, B.C. August 15,2022 Table of Contents OVERVIEW.. 3 BACKGROUND. 4 THE LEGAL FRAMEWORK FOR LEAVE TO BRING AN ACTION IN THE NAME OF THE ESTATE. 9 The Appropriate Way to Seek Leave. 10 The Test for Leave to Bring or Maintain an Action. 13 THE APPLICANTS HAVE MET THE REQUIREMENTS FOR LEAVE TO BE GRANTED. 16 The Applicants Made Reasonable Efforts to Cause the Executor to Commence the Proceedings. 16 The Applicants are Acting in Good Faith. 17 The Applicants have Raised an Arguable Case that the Assets are Held by Ken in Trust for the Estate. 19 The Presumption of Resulting Trust Arises on the Facts. 20 Ken has not Conclusively Rebutted the Presumption of Resulting Trust 23 The Action is Necessary or Expedient for the Protection of the Interests of a Number of Specified Persons. 33 DISPOSITION. 35

OVERVIEW [1] In this application, two sisters apply for leave to pursue a claim in which they seek to have certain assets that were transferred to their brother by their father before his death included in their father's estate. [2] In 2008, Raymond and Helen Chung completed new wills. At the same time, they added their adult son, Ken Chung, to the title of their condominium as a joint tenant. Sometime after Helen's death in 2012, Ken was added as a joint account holder to a number of Raymond's bank accounts. Around the same time, Ken was also listed as the designated beneficiary of some of Raymond's registered investment accounts. [3] Raymond died in 2018. His will provided for the residue of his estate to be distributed equally between Ken and his three sisters, May Lau Chung, Belinda Tam Chung and Jennifer Chung. Canada Trust Company, the third-party professional executor of Raymond's estate, eventually took the position that the condominium and financial assets on which Ken was listed as a joint tenant passed to him by right of survivorship and did not form part of Raymond's estate. [4] May, Belinda, and Jennifer take the position that the condominium and financial assets were not gifted to Ken by their father. Rather, they assert that Ken held them in trust for Raymond's estate, and therefore, those assets form part of the estate that is to be divided amongst the four

siblings. May and Belinda seek leave under s. 151 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [WESA], that they be permitted to proceed with this action in the name of the estate of Raymond Chung for the purposes of seeking recovery of those assets that they allege belong to Raymond's estate. Jennifer supports May and Belinda's application. Canada Trust takes no position. Ken says that Raymond intended to gift him the assets and he opposes May and Belinda's application. [5] For the reasons that follow, I have determined that May and Belinda should be granted leave to proceed with the litigation in the name of Raymond's estate and that they should have conduct of those proceedings. In coming to this conclusion, I have determined that May and Belinda have appropriately applied for leave in these proceedings. I have also determined that in bringing this application to proceed with the action, May and Belinda are acting in good faith; that they have raised an arguable case that the assets are held in trust by Ken for Raymond's estate; and that the action is necessary or expedient for the protection of the interests of a number of "specified persons", as that term is defined in s. 151 of WESA. [6] I have also concluded that the presumption of resulting trust arises on the facts of this case. I have considered the evidence tendered by Ken to rebut this presumption and have nonetheless determined that May and Belinda's action is not bound to fail; and thus, leave should be granted. [7] Given that all of the interested parties share the same last name, I will refer to the Chungs by their first names throughout these Reasons. I mean no disrespect in doing so.

BACKGROUND [8] Raymond and his wife, Helen, were born in China in 1913 and 1922, respectively. Raymond and Helen are the parents of Ken, May, Belinda and Jennifer, all of whom were also born in China. Raymond also fathered other children from other relationships. The Chungs immigrated to Canada at various times beginning with Raymond and May in the early 1960s, followed by Belinda in 1969 and Helen, Ken and Jennifer in 1979. The Chungs settled in Vancouver. Ken returned to China in 2000 and came back to Vancouver in 2008 and has remained here since. Helen died in 2012 and Raymond died on December 16, 2018, at the age of 105. [9] Raymond developed a successful Tai Chi studio in Vancouver. By the late 1970s, he operated this business from a building he purchased located near Commercial Drive in Vancouver (the "Studio Building"). The Studio Building was sold by the executor of Raymond's estate in 2020 for approximately $2.8 million. [10] In 1996, Helen and Raymond purchased a condominium located on Patterson Avenue in Burnaby, British Columbia (the "Condo"). Helen and Raymond resided in the Condo from the time they purchased it until shortly before each of their deaths. At the time of Raymond's death in 2018, the Condo had an assessed value of $618,000. The assessed value as of 2021 was $660,000. [11] During the course of his life, Raymond accumulated a few hundred thousand

dollars which were held in various financial instruments and institutions. Although it is not entirely clear, it appears that at the time of his death, he had accounts at HSBC, RBC and TD. The proper value of these assets at the time of Raymond's death is in dispute. [12] In 1999, Helen and Raymond executed wills in which they gift the estate residue to their four children (and their spouses) in equal shares. [13] In June 2008, shortly before Ken returned to Canada, Helen and Raymond went to the law offices of Chen and Leung where they met with a lawyer by the name of Grace Lai. Helen and Raymond each executed a will, a power of attorney and a representation agreement. On the same day they executed their wills, Helen and Raymond transferred the Condo into joint tenancy with Ken. At this time, Helen and Raymond were 84 and 93 years old, respectively. [14] Helen and Raymond had been referred to Ms. Lai by a representative of the TD Canada Trust Wealth Management Group, Teresina Beretta, in April 2008. In early April 2008, Helen and Raymond met with Ms. Beretta and signed a number of documents relating to their estate planning including an executor and trustee services agreement and a power of attorney compensation agreement. Shortly after their meeting, Ms. Beretta wrote to Ms. Lai to advise her of the documents the Chungs had signed and of their desire to execute new wills and

powers of attorney. Helen and Raymond had an in-person meeting with Ms. Lai on April 25, 2008, and three phone calls up to the time they met with her in person and signed the new wills and transferred the Condo on June 5, 2008. The 2008 wills provided that Ken, May, Belinda, and Jennifer would share the residue of the estate equally. Helen and Raymond named each other as executors of their respective estates and Canada Trust Company was named as the alternative executor in each of their wills. [15] According to Ken, after he moved back to China in 2000, he would visit his parents in Vancouver periodically. It appears that he travelled to Vancouver around the same time that Helen and Raymond met with Ms. Beretta. Ken says that sometime in or around 2007, Helen and Raymond asked him to come back to Canada to live near them and that is why he returned to Canada. Belinda, May, and Jennifer dispute this and say that he had always wanted to return to Canada for other reasons. By the end of 2008, Ken had moved back to Canada and lived in a rental apartment close to the Condo where Raymond and Helen lived. Raymond and Helen paid the rent for Ken's apartment. [16] Helen died on April 22, 2012. At that time, Raymond was 98 years old and was still involved with the instructing at the Tai Chi studio. By this time, Ken had taken over the day-to-day operations of the studio. Ken is alleged

to have received remuneration for assisting Helen and Raymond with the management of the Condo, the Studio Building and their financial assets. [17] In 2013, Ken became a joint account holder on some of Raymond's TD bank accounts including general chequing accounts and non-registered investment accounts (the "TD Non-Registered Accounts"). Ken was also named as the designated beneficiary on two of Raymond's registered TFSA accounts also held at TD (the "TD Registered Accounts", collectively the TD Non-Registered Accounts and TD Registered Accounts will be referred to as the "TD Accounts"). [18] In 2015, Raymond moved out of the Condo and into a care facility. Shortly thereafter, Ken moved into the Condo. [19] Raymond died on December 16, 2018. Given that Helen pre-deceased Raymond, Canada Trust became the executor of Raymond's estate. Warren Yee, a Trust Officer with Canada Trust, took carriage of the administration of Raymond's estate. Citing the Supreme Court of Canada's decision in Pecore v. Pecore, 2007 SCC 17, Mr. Yee initially took the position that the Condo and the TD Accounts, having been gratuitously transferred to Ken, were subject to the presumption of resulting trust and that they should return to Raymond's estate. In May 2019, Canada Trust's legal counsel wrote to Ken to advise him of this position and invited Ken to provide evidence which showed that Raymond

intended to pass both legal and beneficial title to the Condo and TD Accounts to Ken upon Raymond's death. [20] On June 20, 2019, Ms. Lai, the lawyer who prepared the 2008 wills and conveyed the Condo into joint tenancy, swore a three-paragraph affidavit in which she stated that it was Raymond and Helen's "intention that the [Condo] be transferred to Ken, resulting in Ken having the sole legal and beneficial ownership of the [Condo]" upon Raymond and Helen's death (the "First Lai Affidavit"). [21] Also, in June 2019, Johanna Harte swore a statutory declaration in which she declared that Raymond told her that the Condo was gifted to Ken and that he expected Ken to take the balances of the TD Accounts when he died by right of survivorship. In the statutory declaration, Ms. Harte describes herself as being a personal friend of Raymond's for "decades" and having been his accountant "for about a decade until his death". What Ms. Harte did not mention in the statutory declaration, among other things, is that she was Ken's ex-wife and that she and Ken have an adopted daughter who is a beneficiary in the 2008 will. Despite being advised of Ms. Harte's relationship to Ken in July 2019, on September 10, 2019, Mr. Yee advised Belinda and May that Ms. Harte had provided the statutory declaration and referred to Ms. Harte as an "impartial witness, with non-self-serving interest". [22] In

August 2019, Canada Trust was granted administration of Raymond's estate. The gross value of the estate was stated to be approximately $2.8 million, not including the Condo or the TD Accounts. [23] On October 22, 2019, Mr. Anderson, on behalf of Canada Trust as executor of Raymond's estate, advised May, Belinda and Jennifer that Canada Trust would not be taking legal action and would not seek a determination that the Condo and TD Accounts were held by Ken in trust for Raymond's estate. Presumably, Canada Trust considered the First Lai Affidavit and Ms. Harte's statutory declaration in coming to its conclusion. Shortly thereafter, the sisters advised Mr. Anderson and/or Mr. Yee that they would seek legal advice in respect of how to proceed. [24] Soon thereafter, a number of legal proceedings were commenced. On January 21, 2020, Jennifer commenced proceeding S-200706 seeking, among other things, a just and equitable division of the estate residue including the Condo and the TD Accounts. It is not entirely clear whether this proceeding is brought under the Wills Variation Act, R.S.B.C. 1996, c. 490, or WESA or both. Responses and a counterclaim have been filed in that proceeding, but no further steps have been taken. [25] On February 13, 2020, May and Belinda commenced proceeding S-201726 seeking an order pursuant to s. 60 of WESA for an adequate, just and equitable division of

the estate residue. Responses and a counterclaim were filed in that proceeding, but no further steps have been taken. [26] On September 9, 2020, the proceeding in which this application was brought was commenced (S-209737). No response has been filed by Ken as he takes the position it is a nullity. [27] The application currently before me was originally set to be heard on December 4, 2020, but was adjourned. In this application, May and Belinda seek leave under s. 151 of WESA that they be permitted to proceed with this action in the name of the estate of Raymond for the purposes of seeking recovery of the Condo and the TD Accounts which they allege belong to Raymond's estate and are being held in trust by Ken. Jennifer supports May and Belinda's application. Canada Trust, as executor, wishes to remain neutral and takes no position. Ken says that Raymond intended to gift him the Condo and the TD Accounts upon Raymond's death and he opposes May and Belinda's application. [28] This application has been set for hearing on seven occasions. The parties have placed an unusually large number of documents before the Court for a leave application of this nature. Up to April 2021, there was only one affidavit filed in respect of this application. However, between then and the time the matter came on for hearing before me on March 7, 2022, more than 25 affidavits have been filed and the record before me consists of approximately 2,000 pages. Ms. Lai has been cross-examined on the First Lai Affidavit and an affidavit that she swore subsequently. Similarly, it is unusual for a leave application of this nature to take seven days of court time as this application did.

THE LEGAL FRAMEWORK FOR LEAVE TO BRING AN ACTION IN THE NAME OF THE ESTATE [29] Section 151 of WESA provides the mechanism by which a beneficiary may seek leave to proceed with an action in the name of a deceased's estate to recover property, enforce a right, or obtain damages. Section 151(3) provides the test that the Court must apply in determining whether leave should be granted. Section 151(1.1) specifies how a person may apply for leave. Both the way in which a person is to apply for leave and whether leave should be granted is at issue in this application. The relevant parts of s. 151 of WESA read as follows: Who may sue with leave of court 151 (0.1) In this section, "specified person" means a beneficiary, an intestate successor or a person who may commence a proceeding claiming the benefit of Division 6 [Variation of Wills] of Part 4 [Wills]. (1) Despite section 136 [effect of representation grant], a specified person may, with leave of the court, commence proceedings in the name of the specified person and on behalf of the estate of the deceased person (a) to recover property or to enforce a right, duty or obligation owed to the deceased person that could be recovered or enforced by the personal representative, or (b) to obtain damages for breach of a right, duty or obligation owed to the deceased person. (1.1) A specified person may apply for leave of the court under

subsection (1) in the proceedings described in that subsection. (3) The court may grant leave under this section if (a) the court determines the specified person seeking leave (i) has made reasonable efforts to cause the personal representative to commence or defend the proceeding, (ii) has given notice of the application for leave to (A) the personal representative, (B) any other specified persons, and (C) any additional person the court directs that notice is to be given, and (iii) is acting in good faith, and (b) it appears to the court that it is necessary or expedient for the protection of the estate or the interests of a specified person for the proceeding to be brought or defended. (4) On application by a specified person or a personal representative, the court may authorize a person to control the conduct of a proceeding under this section or may give other directions for the conduct of the proceeding. The Appropriate Way to Seek Leave [30] As beneficiaries of the 2008 will, there is no dispute that Belinda and May are "specified persons" as that term is defined in s. 151(0.1) of WESA and that they are entitled to seek leave to bring an action such as that contemplated in s. 151(1)(a) or (b). What is in dispute is whether Belinda and May have followed the correct procedure. For the reasons that follow, I have determined that they have. [31] Belinda and May filed the

notice of civil claim ("NOCC") in the within proceedings on September 9, 2020. In the NOCC as filed, May and Belinda are the plaintiffs and Ken is the only named defendant. May and Belinda seek declarations that Ken holds the Condo and TD Accounts on a resulting trust for Raymond's estate. They seek damages for breach of trust, an accounting and tracing, and other enumerated relief. In the relief sought, they also seek leave pursuant to s. 151(1) of WESA to "maintain the proceeding" on behalf of Raymond's estate. The NOCC as filed does not list Raymond's estate as a plaintiff to the action. Belinda and May have tendered an amended NOCC (the "ANOCC") in which the "Estate of the Late Raymond Yam Man Chung" is listed as a plaintiff which they intend to file if this application is granted. The application that is before me is brought within the same action as Belinda and May's NOCC. [32] Ken takes the position that it was improper to proceed in the way in which Belinda and May have proceeded. He argues that s. 151 of WESA requires that an application for leave to commence an action in the name of the specified person and on behalf of the estate of the deceased must be brought in advance of the NOCC being filed. He argues that the proper approach is to bring the s. 151 leave application in the probate proceeding under R. 25-14 of the Supreme Court Civil Rules, B.C. Reg. 168/2009.

Alternatively, he argues that a leave application should be brought by way of petition. Having filed the NOCC and naming themselves as plaintiffs, Ken submits that Belinda and May's application for leave to proceed in the name of the estate should be dismissed and that the NOCC should be declared a nullity or struck because it was filed without leave of the Court and is an abuse of process. While Ken's argument is appealing, I am not persuaded that it is correct. [33] In 2019, s. 151 of WESA was amended and the form of leave under s. 151(1) was changed (see discussion in Mortimer v. Bender, 2020 BCSC 483 at paras. 96-97). Prior to the amendment, s. 151(1) provided the process for leave to commence proceedings "in the name of and on behalf of the personal representative of the deceased". As referenced above, the amended version of WESA (which was in place when Belinda and May filed the NOCC) provides the process for leave to commence proceedings "in the name of the specified person and on behalf of the estate of the deceased person". Section 151(0.1) which defines "specified persons" for the purposes of s. 151, may have been added because of this Court's holding in Sharma v. Sharma, 2018 BCSC 1262, where "a disinherited sibling was not permitted to claim under s 151, as she was not "a beneficiary or an intestate successor": Young v. Veselic, 2021 BCSC 1106, at paras. 71-72. [34]

It is less clear to me why the 2019 amendments added s. 151(1.1) which provides that a specified person may apply for leave to commence the proceedings described in s. 151(1) "in the proceedings described in that section". [35] After careful consideration of the arguments advanced by the parties, in my view, s. 151(1.1) provides that a specified person may commence a proceeding described in s. 151(1) in the name of the specified person and then seek leave to maintain that proceeding in their name and the name of the estate of the deceased person by way of application within that same proceeding. [36] Ken points out that, in Mortimer, Justice Tucker commented that "seeking leave to commence a proceeding by commencing a proceeding and then seeking leave within it seems a circular proposition". However, Justice Tucker explicitly stated that she was not addressing the proper interpretation of s. 151(1.1) because counsel did not make submissions on it and because the claim in that case was based on a legal theory that leave was not required at all: Mortimer at paras. 99-101. The case before me is different than the case that was before Justice Tucker. Having the benefit of the parties' arguments in this case, I am not persuaded that the obiter in Mortimer compels me to find that 151(1.1) does not permit Belinda and May to proceed in the way they did. [37] Admittedly, the proper

interpretation of s. 151(1.1) is not readily apparent and the wording, in my view, is less than clear. I agree with Justice Tucker that s. 151(1.1) appears to be somewhat circular. However, some meaning must be attributed to s. 151(1.1) because the legislature is presumed to avoid superfluous or meaningless words or speak in vain: McDiarmid Lumber Ltd. v. God's Lake First Nation, 2006 SCC 58 at para. 36; Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed (Vancouver: Butterworths, 2002) at 158. As Justice Tucker observed at para. 99 of Mortimer, s. 151(1.1) does not refer to proceedings referenced in s. 151(0.1), i.e. proceedings commenced to vary a will under s. 60 of WESA. Rather, s. 151(1.1) refers to proceedings commenced under s. 151(1). [38] Thus, the only meaning of s. 151(1.1) that I am able to discern is that it permits a specified person to bring an application for leave within an already commenced action described in the amended s. 151(1); i.e. within a claim in which a declaration of resulting trust is sought. That is what is sought in Belinda and May's NOCC. However, s. 151(1.1) does not negate the need for Belinda and May to obtain leave to pursue the claim on behalf of the estate: they still require leave to bring an action in their own names and in the name of Raymond's estate. As leave is required, the plaintiffs would not be permitted

to take any further steps until, and if, such leave was granted. [39] It seems to me that the appropriate approach contemplated by s. 151(1.1) would be to file a NOCC in which the specified persons are named as plaintiffs and to clearly indicate in the relief sought section that the plaintiffs are seeking leave under s. 151(1) of WESA. It would be inappropriate for a lawyer or a self-represented litigant to file the NOCC on behalf of the specified persons and the estate because they would be acting on behalf of a party (i.e. the estate) without that party's authorization to do so. There are obvious ethical concerns with doing so in addition to the possibility of exposing the estate to costs when not authorized to act on its behalf. As May and Belinda have done here, the plaintiffs can provide a proposed amended NOCC naming the estate as a plaintiff in their application for leave. As stated earlier, no further steps would be permitted to be taken by the specified persons until, and if, such leave was granted. [40] For the above reasons, I conclude that it was appropriate for May and Belinda to commence the proceeding by filing the NOCC in their capacity as "specified persons" and then seeking leave of the Court within that proceeding to maintain that proceeding on behalf of Raymond's estate before taking any other steps in the litigation. The Test for Leave to Bring or Maintain

an Action [41] Under s. 151 of WESA, May and Belinda, as beneficiaries in Raymond's 2008 will, may be granted leave to commence proceedings in the name of Raymond's estate if certain preconditions are met. Those preconditions are set out in s. 151(3)(a): making reasonable efforts to cause the executor to commence the proceedings, giving proper notice, and acting in good faith. There is no dispute that proper notice of this application has been provided to the required persons under s. 151(3)(a)(ii). However, Ken appears to take issue with whether reasonable efforts have been made to cause the executor to commence the proceedings. Ken is also of the view that May and Belinda are acting in bad faith. [42] If the pre-conditions are met, the Court must then determine whether it appears necessary or expedient to grant leave in order to protect the interests of the estate or the specified person: s. 151(3)(b). The analysis under s. 151(3)(b) also requires the court to determine whether the applicants have raised an arguable case in respect of the claim they seek to advance on behalf of the estate. Ken argues that none of the conditions of s. 151(3)(b) are satisfied in this case. [43] In Hoggan v. Silvey, 2022 BCCA 176, the Court of Appeal recently clarified the approach to be taken in respect of s. 151(3)(b). Hoggan was released after the hearing of this matter concluded and I gave

the parties the opportunity to provide me with their written submissions on its application to the case at bar. [44] In Hoggan, the Court of Appeal considered this court's decision in Bunn v. Bunn Estate, 2016 BCSC 2146, for the first time. Bunn was the first case in which this Court considered s. 151 in depth and it has been relied upon by this Court on numerous occasions since it was pronounced in 2016. The Court of Appeal described the factual matrix of the Bunn case as being complex as it involved an estate dispute that included an action against a company controlled by the brother of the deceased's daughter which challenged share transfers that had been made by the deceased as well as foreign disposals of property: Hoggan at para. 36. [45] The court in Bunn relied heavily on the symmetry between a claim being made on behalf of an estate under s. 151 of WESA and a derivative action under ss. 232 and 233 of the Business Corporations Act, S.B.C. 2002, c.

57. After a thorough analysis of the relevant case law under both regimes, Justice Gray concluded that s. 151(3)(b) requires that, in addition to establishing an arguable case, an applicant must show that the potential relief in the action is sufficient such that it justifies the cost and inconvenience to the estate of being involved in the action. The court also concluded that the proceeding must be in the best interests of the estate and determining this requires a consideration of the costs of the proceeding and may include a consideration of the strength of the proposed claim based on a limited weighing of the evidence: Bunn at para. 51. [46] In Hoggan, the Court of Appeal agreed that a petitioner must establish an arguable case but held that it is not always necessary to consider whether the potential relief justifies the cost and inconvenience to the estate or whether the proposed action is in the best interests of the estate. The Court came to this conclusion based on its interpretation of s. 151(3)(b) which requires the following for leave to be granted: (b) it appears to the court that it is necessary or expedient for the protection of the estate or the interests of a specified person for the proceeding to be brought or defended. [47] At paras. 45 and 46 of Hoggan, the Court emphasises that the use of "or" in this provision is disjunctive and that the section should be

read as follows: it appears to the court that it is necessary or expedient for the protection of the estate or that it is necessary or expedient for the protection of the interests of a specified person for the proceeding to be brought or defended. [48] Consequently, the Court concluded that while the best interests of the estate may be considered, it does not necessarily need to be considered when a specified person's interests are raised: Hoggan at para.

47. The relevant factors may vary and are dependent upon the nature of the application before the court: Hoggan at para. 58. [49] The Court summarized the applicable factors of s. 151 of WESA at para. 58 of Hoggan. I agree with the applicants that the Court's summary can be fairly restated as follows. Leave may be granted if the court determines that the party seeking leave: a) has standing as a "specified person"; b) has made reasonable efforts to cause the personal representative, or executor, to commence or defend the action; c) has given the necessary notice; d) is acting in good faith in bringing the action; and e) has an arguable case, the pursuit of which: i. may be necessary to protect the interests of the estate; or ii. may be expedient to protect the interests of the estate; or iii. may be necessary to protect the interests of the specified person; or iv. may be expedient to protect the interests of the specified person. [50] For the reasons that follow, I conclude that the conditions for leave have been satisfied and that leave should be granted.

THE APPLICANTS HAVE MET THE REQUIREMENTS FOR LEAVE TO BE GRANTED The Applicants Made Reasonable Efforts to Cause the Executor to Commence the Proceedings [51] I have no trouble concluding that the applicants made reasonable efforts to cause Canada Trust, as executor of Raymond's estate, to commence the proceedings in which the Condo and TD Accounts are sought to be included in Raymond's estate. [52] By October 2019, the executor had advised the applicants that it would not proceed with legal action and would not seek a determination that the Condo and TD Accounts were held by Ken in trust for Raymond's estate. [53] On September 3, 2020, counsel for May and Belinda wrote to the executor describing the proposed proceeding and the grounds on which the claim is alleged and asked the executor if they would be willing to commence legal proceedings. That same day, the executor replied that it intended to remain neutral and would not be commencing proceedings as contemplated by May and Belinda. The executor confirmed this position after being served with the NOCC. Consistent with this position, Canada Trust as executor takes no position on this application. [54] The September 3, 2020, letter advised the executor of the specific allegations being made by May and Belinda and requested that the executor commence specific remedial action to remedy the situation; in this case to commence a

legal proceeding to recover the Condo and TD Assets for the estate. Thus, the applicants have complied with the reasonable efforts requirement of s. 151(3)(a)(i) of WESA: Fry v. Fry, 2018 BCSC 1018 at paras. 57-58. The Applicants are Acting in Good Faith [55] Ken argues that May and Belinda are not acting in good faith in commencing the action for a number of reasons. Ken submits that Canada Trust's decision, in its capacity as executor of Raymond's estate, to not proceed with the proposed action is evidence that May and Belinda's legal action is a "bad faith exercise". He further argues that May and Belinda's correspondence to the executor in July 2019 is an admission that their claim is weak and is an indicator of bad faith. He also says that, during the course of this litigation, Belinda and May have conducted themselves in a manner that suggests bad faith motives. There are other references in Ken's submissions to bad faith motives he attributes to the applicants, and I have considered them to the extent I can discern their relevance to the case at hand. [56] Having considered all of these arguments, I am unable to conclude that May and Belinda are acting in bad faith in proceeding with their action. To the contrary, I find that the evidence supports that they have met the good faith requirement of s. 151(3)(a)(iii) of WESA. [57] In Jiang v. Piccolo, 2020 BCSC 1584 at para.

69, Justice Verhoeven discussed the requirement of good faith in the context of a leave application under s. 151 of WESA. Justice Verhoeven concluded that the requirement of good faith is to be considered in light of the other aspects of s. 151; and in particular the question of whether it appears to the court that commencing the proceeding is necessary or expedient for the protection of the interests of the estate or a specified person under s. 151(3)(b). Consequently, he concluded that a specified person who is genuinely in pursuit of those objects, even if doing so out of their own self interest, is doing so in good faith. In my view, this is consistent with the Court of Appeal's decision in Hoggan, regarding the disjunctive use of "or" in s. 151(3)(b). [58] May and Belinda have both sworn affidavits in which they have stated they are pursuing the legal action in good faith. They both depose that the sole reason they have brought the proceeding is to have assets returned to Raymond's estate which they believe belong to it. They both depose that they genuinely believe the Condo and the TD Accounts belong to Raymond's estate and that having these assets returned to the estate will accord with their parents' wishes. In my view, May and Belinda's conduct has been consistent with their assertions. The fact that, if successful, the value of the estate will increase as will their

share, is not a bar to finding that they are acting in good faith. Rather, having regard to the purposes of WESA, it is demonstrative of a good faith purpose: Jiang at para. 71. [59] I do not agree with Ken that Belinda and May's conduct during the litigation suggests that they have bad faith motives. In particular, disputes about whether they or Ken would pay for the production of banking and other documents does not indicate that they are motivated by bad faith. Similarly, disagreeing about the way in which a cross-examination on an affidavit would be conducted and/or who would pay for it and then ultimately reconsidering their position is not indicative of bad faith. It seems to me that the behaviour Ken complains of is not unexpected given the way in which this litigation has unfolded. Moreover, the record before me indicates that Ken has engaged in conduct that Belinda and May could be equally critical of. [60] I also do not find that correspondence in which Belinda and May indicated a willingness to acknowledge that the Condo may not form part of Raymond's estate to be indicative of bad faith on their part. These communications may be subject to settlement privilege; however, that was not argued before me. In any event, these comments were made before May and Belinda filed the NOCC, they expressly reserved the right to change their position in this respect, and at that

time they did not yet know what position the executor would take with respect to the Condo and the TD Accounts. [61] A specified person must be able to express a willingness to compromise at a point in time and then change their mind and proceed with the pursuit of litigation without it being indicative of bad faith. There are many reasons why this could happen which are not inconsistent with good faith intentions. If one was not permitted to do this, specified persons would be very reluctant to express any desire to compromise for fear of not being permitted to pursue litigation later. This would have a detrimental effect on the willingness of parties to settle matters without the need for the Court's intervention. [62] I am also unable to accept Ken's submission that Canada Trust's decision, in its capacity as an independent third-party executor of Raymond's estate, to not proceed with the proposed action is evidence that May and Belinda's legal action is a "bad faith exercise". Ken's counsel has provided no authority in the jurisprudence or in the legislation in support of this proposition. The obvious problem with accepting this position is that a specified person would always be precluded from pursuing litigation on behalf of an estate if a third-party independent executor had decided not to. If the Legislature had intended this, it would have said so. The Applicants have

Raised an Arguable Case that the Assets are Held by Ken in Trust for the Estate [63] The parties agree that Belinda and May must establish that they have an arguable case that the Condo and the TD Accounts are held in trust by Ken for Raymond's estate in order to be granted leave under s. 151 of WESA. The arguable case requirement is part of the necessity and expediency consideration under s. 151(3)(b) because, as Justice Bennett put it, "a meritless case would be neither necessary nor expedient to protect the interests of the estate or the specified person": Hoggan at para. 58. [64] Ken argues that May and Belinda have failed to raise an arguable case that the Condo and the TD Accounts are held by Ken in trust for Raymond's estate. He argues that the presumption of resulting trust has been rebutted and that the only conclusion that I can reach on the evidence before me is that the Condo and the TD Accounts were intended to pass to Ken as a gift by way of survivorship. [65] It is well settled that the arguable case requirement is not a high bar. The requirement has been described as the case having "a reasonable prospect of success" or being "not bound to fail": Hoggan at para.

42. To this I would add the converse such that, where a defence is relevant, that defence must be "bound to succeed" in order to demonstrate that a specified person does not have an arguable case. On a limited weighing of the evidence before me, I am satisfied that Belinda and May have an arguable case, their case is not bound to fail and that Ken's defence is not bound to succeed. The Presumption of Resulting Trust Arises on the Facts [66] In the circumstances of this case, Belinda and May rely upon the presumption of resulting trust as the basis for their claim that the Condo and the TD Accounts are being held in trust by Ken for Raymond's estate. It is well accepted that where a transfer of property is made by a parent gratuitously to an adult child, the presumption of resulting trust arises such that the beneficial title of the property transferred is held by the child in trust for the transferor. In such circumstances, the onus is on the transferee to demonstrate that a gift was intended: Pecore, at para. 24-26. [67] In this case, the onus is on Ken to rebut the presumption of resulting trust because he, as transferee, is in the best position to bring evidence about the circumstances of the transfer since the transferor is deceased and Belinda and May were not present at the time the transfers were made: Pecore at para. 26. [68] The presumption of resulting trust is

applicable to gratuitous transfers of both personal and real property in British Columbia, despite the statutory presumption of indefeasible title provided for in s. 23(2) of the Land Title Act, R.S.B.C. 1996, c. 250: Suen v. Suen, 2013 BCCA 313 at para. 34; Fuller v. Harper, 2010 BCCA 421 at para. 43; and Bajwa v. Pannu, 2007 BCCA 260 at paras. 12-14. Thus, the Condo and TD Non-Registered Accounts are subject to the presumption. [69] The law in Canada is not settled in respect of whether naming someone as a designated beneficiary to a registered account is a transfer that would give rise to the presumption of resulting trust. I am not aware of any cases in which the British Columbia Court of Appeal has considered this issue. The Manitoba and Saskatchewan Courts of Appeal have come to opposite conclusions. In Dreger (Litigation Guardian of) v. Dreger, [1994] 10 W.W.R. 293, 97 Man. R. (2d) 39 (M.B.C.A.), the Manitoba Court of Appeal held that an adult beneficiary under his mother's RRSP annuity contracts and life insurance policies held the proceeds of those instruments for the benefit of his mother's estate under a resulting trust. In Nelson v. Little Estate, 2005 SKCA 120, the Saskatchewan Court of Appeal held that the presumption of resulting trust did not apply in relation to a beneficiary designated under a RRIF. [70] The Ontario Superior Court of Justice has decided both

ways. In Calmusky v. Calmusky, 2020 ONSC 1506, the court applied the presumption of resulting trust to a RIF. However, Calmusky was not followed in Mak Estate v. Mak, 2021 ONSC 4415. Recently, the trial courts in Nova Scotia and Alberta have not applied the presumption of resulting trust to beneficiary designated assets: Fitzgerald Estate v. Fitzgerald, 2021 NSSC 355 and Morrison v. Morrison, 2015 ABQB 769. [71] However, it appears that this Court has applied the presumption of resulting trust to designated beneficiary assets. The presumption of a resulting trust was applied to a RRIF where the deceased's brother was listed as the designated beneficiary in Neufeld v. Neufeld, 2004 BCSC 25. Justice Warren came to a similar conclusion in Stade Estate (Re), 2017 BCSC 2354, where she held at para. 94: "the presumption of resulting trust in favour of the estate applies equally to assets with respect to which a specific beneficiary has been designated such as RRSPs, RRIFs, and insurance policies." In Williams v. Williams Estate, 2018 BCSC 711, Justice Marzari applied the presumption of a resulting trust to an RRIF, RIF, and TFSA for which the deceased's son was listed as the designated beneficiary. Most recently, this Court has applied the presumption of resulting trust to a RRIF and a TFSA with designated beneficiaries in Simard v. Simard Estate, 2021 BCSC 1836. [72] I am not aware

of any decision in British Columbia that has considered whether s. 95 of WESA would operate to displace the presumption of a resulting trust in the designated beneficiary context, and given the scope of this leave application, it is not necessary for me to decide. Section 95 reads: Benefit not part of estate 95 A benefit payable to a designated beneficiary or to a trustee appointed under section 92 under a benefit plan on the death of a participant does not form part of the participant's estate and is not subject to the claims of the participant's creditors. [73] Based upon this Court's jurisprudence, it is, in my view, arguable that the presumption of resulting trust arises in respect of the TD Registered Accounts for which Ken was named as the designated beneficiary here in British Columbia and it is therefore appropriate to grant leave. Whether or not the presumption applies in this case will be an issue for the trial judge to determine. [74] I disagree with Ken's argument that the presumption of resulting trust only arises "if it makes sense". Ken argues that it does not make sense that Raymond and Helen transferred joint ownership of the Condo and TD Accounts as a means of estate planning to avoid probate taxes, reduce executor fees and/or aid in the management and administration of those assets, as is alleged in the NOCC. In my view, the validity of the alleged estate

plan, or if it "makes sense", does not go to whether or not the presumption of resulting trust arises. The presumption arises when a gratuitous transfer is made to an adult child. The presumption is an evidentiary burden which may be rebutted with evidence of the transferor's intention. The cogence of the alleged estate plan may be part of the evidence tendered by the respondent in an effort to rebut the presumption. [75] There is no real dispute that the Condo and the TD Accounts were transferred to Ken gratuitously; nothing of value was exchanged at the time of the transfer. The Form A document that added Ken as a joint tenant to the Condo title states that the consideration was valued at "$1.00 and other good and valuable consideration." The market value of the Condo is listed as being $357,000 at the time of the transfer. Although Ken suggests that the Condo was gifted to him in exchange for assistance he provided to his parents in their latter years, May and Belinda have tendered evidence which suggests that Ken was remunerated for this assistance in other ways. Resolving this conflict in the evidence would require more than the limited weighing that I am permitted to do in this leave application. Similarly, there is no indication that Ken provided any consideration for his addition as a joint tenant or designated beneficiary to the TD Accounts. On the evidence before me,

the transfers were made gratuitously and the presumption of resulting trust is applicable to the Condo and the TD Accounts. [76] Consequently, I must determine whether the evidence that has been provided by Ken in support of his position that his parents intended to gift him the assets is bound to be accepted by a trial judge following a hearing of the matter if I am to find, at this preliminary stage, that the presumption has been rebutted such that May and Belinda's case would be bound to fail: Bunn at para.

44. Ken has not Conclusively Rebutted the Presumption of Resulting Trust [77] I am permitted to perform a limited weighing of the evidence tendered by the parties when considering the deceased's intention with respect to the transfer and whether the presumption of resulting trust has been rebutted. However, I am not to attempt to try the case on its merits: Bunn at para. 47. [78] As referenced earlier, the parties have tendered a very large volume of evidence on this leave application. I am aware that despite the volume of evidence before me, the entirety of the evidence that would be before the trial judge is not presently before me. This Court's ultimate decision on May and Belinda's action will likely rely heavily on findings of credibility. Much of the evidence tendered before me has not been subject to cross-examination and it is likely that discovery of particular individuals is needed. Given my conclusion that May and Belinda should be granted leave to maintain the action, I am mindful of not appearing to bind the future trial judge. As such, I should not, and will not, comment on the evidence more than is necessary to explain my decision that May and Belinda have satisfied the requirement of having an arguable case. [79] While I have considered the affidavits provided by Ken in support of his position, including those provided by friends many years after the transfers

took place, I have focused my examination on the evidence that is most contemporaneous to the time of the transfers. I agree with May and Belinda that the contemporaneous evidence is the best evidence of Raymond and Helen's intentions because of the possibility of self-serving statements being created after the fact: Pecore at para. 56. [80] Much of the non-contemporaneous evidence that has been tendered is irrelevant to the issues before me. Where it is relevant, much of it is self-serving and presumptively hearsay and has not been subject to cross-examination. This comment is equally applicable to evidence tendered by the applicants and the respondents. Much of this evidence consists of assertions made by the parties, their friends, and others relating to statements allegedly made by Raymond and Helen more than ten years earlier. Much of the evidence tendered by Ken is in conflict with that of May, Belinda and Jennifer. Resolving these conflicts would require much more than a limited weighing of the evidence and, in my view, is not possible on the evidence before me. [81] Some examples of conflicting evidence that I am unable to resolve are as follows: a) Ken says he returned to Canada at the request of his parents who desperately wanted him to return to take care of them and that in exchange they told him that he would be "taken care of". However, his sisters say that he

always planned to return to Canada so his children could have the benefit of a Canadian education and upbringing. b) Ken alleges that Raymond and Helen discussed the fact that they gifted the Condo to Ken at a dinner in 2008 at which Belinda, May and Jennifer were present. Ken alleges that his sisters expressed their contentment with the situation. Belinda, May and Jennifer all deny that this dinner ever took place. c) The parties disagree as to the extent that Ken was taking care of Raymond and his affairs after Helen died. There is conflicting evidence about whether Ken was remunerated for the care he did provide by using the Studio Building, by other payments, or by an interest in the Condo. d) The parties disagree as to the nature and extent of the sisters' relationship with Raymond and Helen both before and after Ken returned to Canada. The sisters allege that they had a warm and loving relationship with Raymond and Helen whereas Ken says that they did not have a good relationship and that they saw each other very infrequently. [82] My limited weighing of the above-mentioned evidence, and the other non-contemporaneous evidence tendered in this application does not lead me to conclude that the presumption of resulting trust has been rebutted such that Ken's defence is bound to be accepted or that Belinda and May's action has no reasonable prospect of success. [83] As

mentioned above, evidence that is contemporaneous with the time that the transfers were made is the best evidence of the transferor's intention. The question that will have to be determined is what was Helen and Raymond's intention when Ken was added to the Condo's title? Was this transfer intended as a gift as Ken alleges, or did Raymond and Helen intend for the Condo to be held in trust by Ken for the estate as part of the Chungs' estate plan as Belinda and May allege? At this point, the presumption of resulting trust puts the onus on Ken to prove that the transfers were intended as a gift. [84] In this case, the contemporaneous evidence consists of the TD and Canada Trust files and three files from the estate planning lawyer's office, Ms. Lai. The three files from Ms. Lai's office were referred to as "Raymond's will file", "Helen's will file" and "the conveyance file in respect of the Condo" and consist of various documents relevant to the transactions as well as Ms. Lai's notes (collectively, the "Estate Planning Files"). Belinda and May are of the view that they do not have all of the documents from TD and the Estate Planning files. That is something that they may seek to explore as the litigation proceeds. [85] In my view, the contents of these files do not lead me to conclude that Ken has rebutted the presumption that Helen and Raymond intended that the Condo was to be

held in trust for the estate at the time the transfer was made to Ken. There is no mention in the Estate Planning Files that Helen and Raymond intended to gift the Condo to Ken. There is no mention in any of the Estate Planning Files of adding Ken's name onto the TD Accounts so that he may inherit them in full to the exclusion of his sisters. In fact, the only mention of Helen and Raymond's bank accounts in the Estate Planning Files is a listing of their assets which includes the TD Accounts and a reference to accounts at RBC and HSBC. [86] The correspondence between Ms. Lai and Ken regarding the transfer of the Condo does not reference a gift being made. Rather, Ms. Lai states that "as part of their estate plan, the Chungs will be adding your name to the title." In his reply, Ken states "my mother and father are simply adding my names to the title". [87] Ms. Lai made a note when she opened the Estate Planning Files which states that Helen and Raymond intended to appoint TD Bank as executor because they "don't want kids arguing". Despite this, there is no deed of gift letter regarding the Condo in the Estate Planning Files. However, Ms. Lai was aware of the need to document such anomalies as evidenced by the fact that she did prepare a Wills Variation Act Memorandum (the "Wills Variation Memorandum") to explain why Raymond's children from his previous relationship were to

receive considerably less under the will than his and Helen's biological children. [88] Ms. Lai's notes with respect to Helen and Raymond's estate reference that there is no safety deposit box, there are bank accounts at HSBC, RBC and TD and there are two properties (those two properties being the Condo and the Studio Building). On the same page, Ms. Lai's notes state that the distribution of the assets is "all to spouse. 4 kids. 8 grand kids". There is no reference of the Condo being treated in a different manner or separately from the rest of Raymond and Helen's assets. [89] It is not necessary for me to decide whether the Estate Planning Files are supportive of Raymond and Helen's intent to transfer the Condo to Ken in trust. That is a decision for a future time. It is sufficient for me to find, as I have, that the Estate Planning Files, which are the only contemporaneous evidence of Helen and Raymond's intention at the time of the transfer, do not lead to a conclusion that Ken is bound to succeed in rebutting the presumption that the Condo was held in a resulting trust. [90] As referenced earlier, Ms. Lai swore the First Lai Affidavit on June 20, 2019. She swore a second affidavit on August 4, 2021, (the "Second Lai Affidavit"). While these affidavits are sworn by someone who was present at the time of the estate planning (including the transfer of the Condo to Ken in joint

tenancy), it is not contemporaneous evidence; the affidavits were sworn more than ten years after Ms. Lai met with Helen and Raymond to assist with their estate planning. [91] Presumably, Ms. Lai swore the First Lai Affidavit at the request of Ken, or his then counsel, in response to the executor's request for evidence that the Condo was intended to be a gift. It was likely relied upon by the executor in deciding to not proceed with an action to recover the assets for the estate. The circumstances of the preparation of the Second Lai Affidavit are not clear. Given when it was sworn, it was presumably prepared in the context of this litigation. The record does suggest that Ken's current counsel provided Ms. Lai with a draft affidavit which she declined to swear. The contents of that draft affidavit are not before me. At some point, Ms. Lai retained her own counsel. [92] While they are worded differently, both of Ms. Lai's affidavits state that she explained to Helen and Raymond the effect of transferring the Condo to Ken in joint tenancy and that it was Helen and Raymond's intention for Ken to have sole legal and beneficial ownership upon their death. She says she specifically recalls that Helen and Raymond intended to gift the Condo to Ken; she states that this was "very clear" to her. In the Second Lai Affidavit, Ms. Lai states that she swore the first Lai Affidavit after

reviewing the Estate Planning File. She deposes that she further considered the matter and reviewed the Estate Planning File again before swearing the Second Lai Affidavit. Ms. Lai was cross-examined by Belinda and May's counsel on these affidavits in February 2022. It appears that the contents of the Estate Planning Files may have been incomplete when Ms. Lai swore the affidavits as certain documents were only disclosed later such as the wills themselves and the Wills Variation Memorandum. It is not clear to me what documents Ms. Lai reviewed prior to her cross-examination but it may have been more than the contents of the Estate Planning File. [93] On their face, Ms. Lai's affidavits might be considered to be strong evidence that would rebut the presumption of resulting trust. However, it is my view that, when considered in their proper context, they do not persuade me that Ken is bound to succeed in his position. [94] Ms. Lai practiced exclusively as a wills and estates lawyer for approximately three years between 2006 and 2009. During that time, she met with two to five new wills clients each week; consequently, she would have met with more than 500 wills and estates clients during her practice. Her clients were primarily of Asian heritage and spoke Cantonese or Mandarin. Many of her clients had the last name Chung or similar names. Other than a recollection of the athletic

pursuits of one of the Chungs' granddaughters, there is little explanation as to how Ms. Lai recollects Helen and Raymond's intentions so clearly more than ten years later. Recall the contents of the Estate Planning Files and the fact that no mention is made of a gift or any intention to keep the Condo out of the estate which is arguably not consistent with Ms. Lai's later evidence. [95] In her cross-examination, Ms. Lai stated that the Chungs had formulated the intention to gift the Condo to Ken before they met with her, and even before they met with Ms. Beretta at TD. However, there is no mention of this intention during the meetings she had with Raymond and Helen including in her initial in person meeting with them. The notes from that initial meeting do not mention a "transfer" or "conveyance" and do not reference a condo or any "gift" of any kind to Ken or any special treatment to be afforded to Ken. [96] While Ms. Lai was cross-examined on her affidavits and maintained her assertion that she recalled that Helen and Raymond intended to gift the Condo to Ken, the way in which the cross-examination proceeded leaves me with questions as to whether or not it elicited probative evidence in the same manner that would be elicited during a cross-examination at trial before a judge. Ms. Lai was represented by counsel at the cross-examination and Ken's counsel was also present. Both

Ms. Lai's counsel and Ken's counsel made objections during the cross-examination upon which no ruling was made because a judge was not present. There were numerous interruptions by counsel throughout the examination. Numerous breaks were taken. [97] This is not to say that Ms. Lai's evidence has no weight. It certainly does. Ms. Lai is the only living person who was present at the time that the wills were prepared and the Condo was transferred to Ken in joint tenancy. However, I do not agree with Ken that this means that a trial court would be bound to accept her evidence. [98] I should also not be taken to be saying that Ms. Lai has provided misleading or false evidence in either of her affidavits or in her cross-examination. I am not making such a finding and nor should I make findings of credibility at this stage: Hoggan at para.

51. However, in light of the circumstances which I have discussed above, I would have to go beyond the limited weighing of the evidence that I am permitted in order to resolve the questions that arise with respect to the reliability of Ms. Lai's recollection. A trial judge will be in a much better position to do so. On the limited weighing of the evidence that I am permitted to undertake at this stage, I am unable to conclude that Ms. Lai's evidence rebuts the presumption of resulting trust to the point that May and Belinda no longer have an arguable case or that their case is bound to fail. [99] Ken also argues that the inclusion of para. 5(n) in Raymond's 2008 will is supportive of an intention to gift the Condo to Ken outside of the estate. Paragraph 5(n) is a provision against ademption by advancement and provides that Ken's beneficiaries are not required to bring into the estate, any property or interest which has already been paid or transferred to them. The common law presumption this clause addresses was later abrogated by statute when WESA was enacted: s. 53. [100] Ken points out that para. 5(n) did not appear in the 1999 version of Raymond's will. This, combined with the fact that Ken was added as a joint tenant to the Condo on the same day that the 2008 will was prepared which included a provision against ademption by advancement is indicative of Raymond and Helen's

intention to gift the Condo to Ken outside of the estate. Given the lack of reference to gifting the Condo to Ken in the Estate Planning File, I am not persuaded that the addition of para. 5(n) is specifically in reference to the Condo. [101] It appears that Ken started to assist his parents with the management of their finances in late 2008 until Raymond's death in 2018. During this period, the balance in the TD Accounts was as much as $275,000. By the time Raymond died, the balances were approximately $150,000. Belinda and May allege there are, or were, other bank accounts held by Raymond and/or Helen at HSBC and RBC but there are no documents with respect to these financial institutions before me. Ken was added as a joint account holder or designated beneficiary to the TD Accounts in or around 2013. [102] In the NOCC, Belinda and May seek an accounting and tracing with respect to the funds in the TD Accounts. They also seek that the TD Accounts be included in Raymond's estate on the basis that they are held by Ken in trust for the estate. The evidence tendered before me does not persuade me that the presumption of resulting trust has been rebutted such that May and Belinda's claim is bound to fail. I have been pointed to no evidence which would conclusively rebut the presumption and, other than signature cards, there does not appear to be any evidence contemporaneous with

Ken's addition as joint account holder or designated beneficiary. Those signature cards say nothing explicitly of Raymond's intention. Moreover, Ken's evidence of his parents' intent with respect to the TD Accounts is contrary to the evidence provided by Belinda and May. [103] My review of the transactions in the TD Account during the period that Ken was assisting his parents with the management of their finances suggests that Belinda and May have an arguable case to seek an accounting and tracing of those funds. There were a number of large transactions that occurred during that period, including deposits, transfers and withdrawals of up to $100,000 on an occasion. These accounts were used by Raymond to collect rent from tenants, to pay expenses and for other matters. Ken's evidence with respect to the use of these funds leaves a number of questions to be answered. [104] Moreover, the potential discrepancy of funds in the TD Accounts during the period of time that Ken assisted his parents with the management of those funds and the balance at the date of death is a relevant factor in considering whether the applicants have established an arguable case for an accounting and tracing of those funds: Hoggan at paras. 52 and 55. [105] Ken relies on this Court's decision in Malecek v. Young, 2021 BCSC 1052, in support of his position that Belinda and May's application for leave

should be dismissed. However, Malecek is distinguishable from the case at bar and I find that it does not assist Ken. In Malecek, the four daughters of their deceased father alleged that the father and his wife of 37 years, Carol, had separated before he died. The executor, Carol's son from a previous relationship, took the position that there was no evidence that Carol and the deceased had separated. The daughters brought an application under s. 151 of WESA in which they sought leave to file a family law claim on behalf of their father's estate against Carol for a division of family property. Justice Giaschi dismissed the daughters' application for leave. In doing so, he considered the evidence tendered in respect of whether their father and Carol had formed the intention to separate prior to the father's death. The court found that the daughters' evidence was wholly inadequate to establish that there was an intention to separate on behalf of either Carol or the father. To the contrary, Justice Giaschi found that there was overwhelming direct and indirect evidence that neither had the intention to separate. [106] Unlike in the case at bar, the Court in Malecek had direct evidence from one of the parties whose intention was relevant and whom was alive at the time of the application: Carol provided direct evidence that she never intended to separate from the father and continued

to love him until his death. In addition, there were other factors that indicated that Carol and the father had remained in a committed relationship until the father's death. Meanwhile, the daughters' evidence was, for the most part, completely unsubstantiated and based on speculation. [107] The case before me is different. There is no direct evidence from Raymond himself of his intention with respect to the gratuitous transfers made to Ken. Rather, the evidence tendered by Ken consists primarily of statements made to others and attributed to Raymond which are presumptively hearsay. Admittedly, May and Belinda have not tendered direct evidence of a statement made by Raymond that he did not intend to gift the Condo and TD Accounts to Ken. However, unlike in Malecek the presumption of resulting trust operates to put the onus on Ken to rebut the presumption. As discussed above, the evidence before me, and particularly the contemporaneous evidence, does not conclusively lead me to determine that the presumption has been rebutted. [108] For the above reasons, I have concluded that Belinda and May have met the relatively low threshold of establishing an arguable case that the Condo and the TD Accounts are held in trust by Ken for Raymond's estate. The presumption of resulting trust is operative and, on the limited weighing of the evidence before me, Ken has not rebutted that

presumption such that I could conclude that he was bound to succeed or that May and Belinda's action is bound to fail. I have also concluded that Belinda and May have established an arguable case for a tracing and accounting of Raymond's financial assets. The Action is Necessary or Expedient for the Protection of the Interests of a Number of Specified Persons [109] I have concluded that May and Belinda have met the requirements of s. 151(3)(b) of WESA. I do not accept the argument advanced by Ken's counsel in oral submissions that s. 151 of WESA is somehow only intended for situations where a family member is an executor. As I understand it, Ken's position is that I should give considerable weight to a third-party professional executor's decision not to pursue legal action contemplated by a beneficiary and conclude that such a legal action is not necessary to protect the interests of the estate. He argues that similar weight should not be afforded to a family member executor who had a personal interest in the estate and made a similar decision to decline to take legal action. Ken has not provided me with any legal authority in support of the proposition that a proceeding under s. 151 of WESA will be necessary only when a family member is an executor. Nor do the words of s. 151 of WESA suggest such an interpretation. Section 151(3)(b) makes no distinction between estates that

have professional executors or family members as executors [110] As discussed above, in Hoggan the Court of Appeal held that it is not always necessary to consider whether the potential relief to be obtained by proceeding with the action outweighs the inconvenience to the estate and whether litigation is in the best interests of the estate. Rather, s. 151(3)(b) can be met where the action "may be necessary to protect the interests of a specified person; or it may be expedient to protect the interests of a specified person": Hoggan at paras. 47 and 58. [111] In my view, this is a case where the Court need only find that May and Belinda's action is necessary or expedient for the protection of their interests as beneficiaries under the will. The possible inconvenience to the estate and a justification of the cost of proceeding need not be considered. In my view, the situation in this case is more similar to the situation in Young than it is to the situation in Bunn where the interests of the estate were considered. [112] Like in Young, the situation in the case at bar is not particularly complex. It would not inconvenience multiple parties through the delayed resolution of the will. The other actions that have been commenced are in the early stages. Many of the issues overlap. It is possible that those actions and the within action will proceed and be heard together; Belinda and

May have indicated that they will seek to do just that if successful on this application. There are no corporate defendants to be brought into the within litigation as there was in Bunn. Rather, as discussed in Young at paras. 82-84, the within litigation is effectively a "binary contest" between two groups of relatives. In these circumstances, and on the authority of Hoggan, I do not agree with Ken that a detailed litigation plan to justify the costs of proceeding with May and Belinda's action is necessary to satisfy the requirements of s. 151(3)(b) of WESA. [113] In my view, the discrepancy in the value of the estate when the TD Accounts and the Condo are excluded is an indicator of the necessity of proceeding with the action to protect May and Belinda's interests as beneficiaries under the will. The value of Raymond's estate excluding the Condo and the TD Accounts is approximately $2.3 million. The value including the disputed assets is approximately $3.2 million, depending upon what the value of the TD Accounts and the Condo were at the date of Raymond's death. Given that Raymond's will divides the residue of the estate equally amongst the four siblings, there is a significant difference in what each will receive if these assets are excluded or included. If the disputed assets are not included, Ken could effectively receive $200,000 to $300,000 more than each of his siblings. While that may be the end result after a full hearing of the matter, at this stage I find this discrepancy, combined with the executor's refusal to proceed with the action, to be indicative of the necessity of proceeding with May and Belinda's action pursuant to s. 151 of WESA as the only way to protect their interests as specified persons: Hoggan at para.

55.

DISPOSITION [114] It was appropriate for May and Belinda to commence the action to include the Condo and TD Accounts in Raymond's estate by filing the NOCC in their names as specified persons and then seeking to maintain that proceeding in their names and the name of the estate. I have also concluded that reasonable efforts were made to have the executor commence the proceedings and that May and Belinda were acting in good faith in commencing the proceedings themselves. [115] May and Belinda have made out an arguable case that the TD Accounts and the Condo are held in trust by Ken for Raymond's estate. In the circumstances of this case, the presumption of resulting trust arises. I find that Ken has not rebutted this presumption such that May and Belinda's case is bound to fail or that his position is bound to succeed. A trial is necessary to resolve the many conflicts in the evidence tendered before me. [116] In my view, the leave provision found in s. 151 of WESA could not have possibly contemplated a seven-day hearing, more than 25 affidavits and 2,000 pages of documents. In essence, the parties have invited me to decide on the merits of May and Belinda's action. That is not the role of the court in hearing a leave application under s. 151 of WESA. Although I have not referenced the entirety of the record before me in these Reasons, I have considered the evidence and

arguments relied upon by counsel in their submissions. Referring to the entirety of the record would effectively result in me going beyond the limited weighing of evidence that I am permitted and deciding the merits of their respective cases. Despite the voluminous evidence that was put before me, none of the findings I have made in coming to my conclusion that May and Belinda should be granted leave to proceed with their action should be taken to bind a future trial judge hearing this matter. [117] May and Belinda are granted leave pursuant to s. 151 of WESA to maintain the within action in the name of Raymond's estate and they shall have conduct of those proceedings under s. 151(4). The remaining relief sought in the notice of application is adjourned generally. [118] The costs of this application will be in the cause of the action. In my view, it would be appropriate for the judge who ultimately hears the action to assess whether costs going forward should be borne by the parties in their personal capacities or by the estate: Hoggan at para. 62. "Majawa J."