Mayer v. Mayer Estate

2018 BCSC 2225 Mayer v. Mayer Estate

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Mayer v. Mayer Estate, 2018 BCSC 2225 Date: 20181214 Docket: S52628 Registry: Vernon Between: Erika Mayer Plaintiff And The Estate of Siegfried Otto Mayer and Ursula Breidt Defendants Before: The Honourable Mr. Justice Crossin Reasons for Judgment Counsel for the Plaintiff: E. Woolley Counsel for the Defendant Ursula Breidt: C. Caldwell D. Montgomery Place and Date of Trial/Hearing: Vernon, B.C. July 31, August 1-3 and 7-8, 2018 Date of Written Submissions: August 27, 2018 Place and Date of Judgment: Vancouver, B.C. December 14, 2018 Introduction [1] In 1980 Siegfried Otto Mayer and Ursula Breidt began living together in a rented house located at 1636 East 37th Avenue, Vancouver British Columbia. In September 1986 the couple purchased the home together and were registered as joint tenants. [2] Over the next almost 30 years, Mr. Mayer and Ms. Breidt lived in the home until Mr. Mayer's death on March 16, 2015. Upon the death of Mr. Mayer the home passed to Ms. Breidt on survivorship. Ms. Breidt lives in the home to this day. [3] Ms. Breidt had a son from a previous marriage; Ronald Breidt. Mr. Mayer had a daughter from a previous marriage. It is his daughter, Erika Mayer, that has commenced these proceedings. [4] In April 2002 Mr. Mayer made his last will bequesting one-half of his estate to Ms. Breidt and the other half to the

plaintiff. In the event Ms. Breidt predeceased him, he directed that the property or any replacement property, be transferred to the plaintiff and Ronald Breidt with the balance of his estate to the plaintiff. Ms. Breidt, at the same time, executed her will that mirrored these provisions, with Ronald Breidt standing in the place of the plaintiff concerning the provisions of Ms. Breidt's will. [5] Shortly after the death of Mr. Mayer the plaintiff brought this suit seeking to invoke the equitable jurisdiction of the court to secure a one-half interest in the property as referenced in the will, namely the home at 1636 East 37th Avenue in Vancouver. The claim rests upon the principles that have emerged from the law of trusts. [6] Ms. Breidt takes the position that she is free to do with her home as she pleases; unencumbered and unaffected by a trust or otherwise. The Circumstances [7] Ms. Ursula Breidt is 81 years of age. She was born in Germany and escaped to West Germany as a child and subsequently arrived in Canada at the age of 18. [8] She arrived in British Columbia as a young woman and entered into her previous marriage with Edgar. Her son Ronald was born in 1958. [9] She stayed home with her child for some years but then began employment in 1965. Although trained in typing and shorthand in Germany, the fact that she didn't speak English in those early days in Vancouver

caused her to take a job as a packer with Noxall Products Ltd. There she stayed for the next 30 years. [10] Ms. Breidt ceased employment in 1994 after the company went out of business. She was then 56 years of age and although she looked for work, there was simply nothing available. [11] Her marriage to Edgar ended with separation in about 1975. [12] She met the deceased in approximately 1977 and began a relationship. They moved into the subject home initially as renters in 1980 but purchased it together in 1986 for $100,000. The evidence of Ms. Breidt, which I accept, is that each of Ms. Breidt and Mr. Mayer paid $20,000 as a down payment and each equally serviced the remaining mortgage indebtedness until it was fully paid some years later. [13] Ms. Breidt contributed her share of the mortgage payment by writing a cheque payable to Mr. Mayer and Mr. Mayer would then make the mortgage payment. [14] Ms. Breidt testified that she and Mr. Mayer decided to purchase the house in joint tenancy as security for their old age knowing that the survivor would get the house. [15] In particular, Ms. Breidt testified that the intention concerning the house as between herself and Mr. Mayer, was that it was to be in joint tenancy and the survivor would have the house and the estate would be shared between the plaintiff and her son Ron. [16] Mr. Mayer worked as a sales manager at Emco

Industries. He spoke English and German. [17] Mr. Mayer separated from his first wife, the plaintiff's mother, in 1974, when the plaintiff was approximately four years of age. Thereafter, the plaintiff did not reside with her father and in fact contact between father and daughter for many years was sporadic at best. The plaintiff describes the relationship as "strained". [18] The plaintiff was employed with the RCMP and a few years prior to the death of her father became a licensed professional nurse working at the in-patient psychiatric unit at Vernon Jubilee Hospital. She resides in Vernon, British Columbia. Her husband, Dan Cocks, is an RCMP officer. Prior to the relationship with Mr. Cocks, Ms. Mayer gave birth to a daughter Julia in and around 1999. It is clear on the evidence that the birth of the granddaughter softened and rejuvenated the relationship between Mr. Mayer and the plaintiff. [19] It is the evidence of the plaintiff that when Mr. Mayer (and Ms. Breidt) first came to see the newborn granddaughter, Ms. Mayer "laid down the law". She testified that she told Mr. Mayer that if he wanted Julia to be in his life he had to treat her much better than he had treated the plaintiff over all these years. This, it appears, had the desired effect and the reconciliation between the two evolved over the years. In addition, the plaintiff testified that after this point Ms.

Breidt appeared to her to be a warm and caring person and thereafter there was a good relationship between the plaintiff and the defendant until after the death of Mr. Mayer. [20] It was in and around 2002 Mr. Mayer was diagnosed with early onset of Parkinson's disease. He lived with the disease for many years but ultimately succumbed in 2015. [21] In relation to the wills, Ms. Breidt testified that Mr. Mayer made the appointment and they met together with the notary. Although Ms. Breidt does not remember a great deal about the particular discussion, she does recall the notary confirming that the house didn't have to go in the will. [22] The notary that met with Ms. Breidt and Mr. Mayer did not give viva voce evidence but, instead, with the agreement of the parties, filed an affidavit. The pertinent portion of the affidavit is as follows: 4. I used a wills instruction checklist that I used for my clients. I reviewed my files and found that I had used my wills instruction checklist for Siegfried Otto Mayer and Ursula Breidt.

7. My checklist indicates that I asked Siegfried Otto Mayer and Ursula Breidt whether their property was held in joint tenancy, and recorded that it was held in joint tenancy.

8. It was my standard practice to advise clients that property held jointly would not flow through the estate, but would pass according to right of survivorship, and that assets such as RRSP or insurance products with named beneficiaries would not form part of the estate, but would flow directly to the named beneficiary.

9. The wills that I drafted for Siegfried Otto Mayer and Ursula Breidt had the same terms; household furnishings, motor vehicles and personal effects passed to the spouse; the cash assets were divided between spouse and testator's child; and if the spouse predeceased, the real property' was to go to Siegfried's daughter Erika Mayer and Ursula's son Ronald Breidt in equal shares.

10. I did not make any notes indicating that the parties intended to make mutual wills. It was my standard practice to advise clients making mirror wills that there had to be a fair degree of trust between the parties, because either party could change his or her will at any time.

14. When I prepared mirror wills for couples, it was my standard practice to tell both testators that mirror wills required a certain amount of trust, because either testator could change the will at a later date. [23] In so far as finances were concerned, Ms. Breidt and Mr. Mayer kept independent track of their own affairs. It appears that one of the main accounts used by Mr. Mayer for the purpose of his finances was a joint account at RBC. These and other financial records were produced as part of the evidence at trial. It is the evidence of Ms. Breidt that although it was a joint account opened at the time they moved into the home, it was never used by her. She testified that she had forgotten all about it until recent events leading up to the passing of Mr. Mayer. [24] In fact, it would be determined that Mr. Mayer had surreptitiously gambled away his savings kept in this and other accounts. It was ultimately conceded by the plaintiff that it appeared the deceased, in the final years of his life, gambled away his life savings and investments in excess of $200,000. [25] By 2010/2011 the Parkinson's had advanced and Mr. Mayer was beginning to hallucinate from time to time, shuffle, and have difficulty with his speech. He began to have problems swallowing and Ms. Breidt would have to assist him with his meals. Mr. Mayer and Ms. Breidt stopped having friends over and Mr. Mayer

began to not want to leave the house at all. [26] Ms. Breidt testified his difficulties finally came to a head on March 6, 2015 and Mr. Mayer was checked into the emergency ward at St. Joseph's Hospital. [27] Mr. Mayer did not want anyone else contacted, but it was determined he wasn't going to go home and so a decision was made between he and Ms. Breidt to phone the family; including the plaintiff. [28] The plaintiff drove down to Vancouver on March 8 and ultimately Mr. Cocks and Julia arrived as well. [29] On March 16, 2015, Ms. Breidt, Mr. Mayer, the plaintiff and the counsellor had a discussion about palliative care. [30] At some point on March 16 the plaintiff left the hospital to return to Vernon. Similarly, on March 16 Ms. Breidt returned to her home. Shortly thereafter however, Ms. Breidt was phoned by the hospital and advised that Mr. Mayer had fallen and as a result Ms. Breidt returned to the hospital later that day. [31] Upon returning to the hospital Mr. Mayer was seen sitting in front of the TV and was incomprehensible. The staff were helping him into the bed when he suffered a medical emergency. Ms. Breidt left the room to allow the staff to deal with it. Shortly thereafter it was announced Mr. Mayer had passed away. The Evidentiary Focus [32] There is an overarching issue of credibility. The plaintiff submits that to the degree that credibility of the parties

informs the ultimate analysis, that issue should be resolved against Ms. Breidt. [33] A evidentiary underpinning of the plaintiff's claim rests on alleged statements made by the deceased concerning the plaintiff receiving an interest in the matrimonial home. [34] An additional evidentiary feature of the claim are alleged statements made by Ms. Breidt relevant to this issue. [35] I will deal with these evidentiary matters in that order. Credibility [36] In argument, Mr. Wooley invited the court to reject the evidence of the defendant: In her evidence at trial, the Defendant contradicted previous evidence given in affidavits and at the Examination for Discoveries on several occasions. It is the Plaintiff's position that wherever her evidence conflicted with that of the Plaintiff or other witnesses, the Defendant's evidence should not be relied up [sic]. Similarly, where the Defendant has made claims or statements that are not otherwise supported on the evidence, little weight should be given to this evidence. [37] In my view, the credibility of the defendant was left comfortably intact at the end of the day. [38] I will address some aspects of the challenges to credibility raised by the plaintiff, in the particular, by way of example. [39] It was put to the defendant in cross-examination that she in fact did not contribute the amount of $20,000 to the initial purchase of the

house; and did not contribute to the mortgage payments. The theory being, it appears, although not clearly expressed, that it was the deceased's money that paid for the house. [40] An additional feature to this position was the suggestion put to the defendant that she could not have had the funds to so contribute given her employment history. [41] I observe immediately that there was no evidence tendered by the plaintiff in support of this challenge. [42] The suggestion that the defendant did not have the funds to provide the down payment; nor the funds to service the mortgage, was denied by the defendant. The defendant testified that her employment income and savings serviced the mortgage. She also recalled, in re-examination, that she had received $20,000 as a result of the breakdown of her first marriage and it was those funds that were in fact the source of the down payment for the purchase of the home. [43] It was put to the defendant in cross-examination that while she had testified at trial her employment ceased in 1994; she had stated at her examination for discovery that she thought she had stopped working "in the 80s". [44] This change in evidence, it was suggested, was a fabrication. The theory being, I assume, that she would have had less savings to service the mortgage if in fact she had stopped work in the 80s rather 1994. [45] Ms. Breidt testified she knew she

worked for 30 years because she had subsequently "found a piece of paper" that confirms she had stopped work in 1994. Plaintiff's counsel did not seek to have this evidence produced for the purposes of cross-examination. [46] An additional area concerning the credibility of the defendant is captured in the pleading of the plaintiff as follows: 12. The removal of the real property from the estate and the disappearance of assets, including financial assets, appears to have resulted in a completed (sic) disinheritance of the Plaintiff and a failure by the deceased to provide for the Plaintiff following his death.

13. Ursula represented to the Plaintiff that there were no assets and no investments remaining. The records have been removed from the home or destroyed by Ursula or her agents. [47] The plaintiff testified that in her role as executrix she searched the home to gather the pertinent information in relation to the estate. The plaintiff testified that she searched filing cabinets of the deceased in the basement where he tended to keep all his financial documents and there were no financial documents to be found. [48] The defendant was cross-examined concerning the defendant's knowledge of the whereabouts of some of the financial records of the deceased. [49] Ms. Breidt gave evidence about the home office and indicated that usually Mr. Mayer kept it quite tidy but in the last three months everything was out of the cabinets. She said it was a mess. [50] Ms. Breidt testified that she didn't take, or destroy, any records. While the plaintiff alleged that the financial records were removed from the home or destroyed by Ms. Breidt or her agents; this theory was never put to Ms. Breidt in cross-examination. [51] The fact is, there is not a scintilla of evidence to support the pleadings as referenced above. [52] In addition, the defendant was cross-examined in relation to inconsistencies between her evidence at trial; her examination for discovery; and her evidence contained in her

previously sworn affidavit in support of a summary trial application. [53] I find any conflicts in her evidence were not consequential and, in any event, wholly explained by the defendant in an understandable and straightforward manner. Ms. Breidt dealt with these inconsistencies with aplomb, grace, and logic. It is my view any inconsistencies in her evidence were innocent and not the product of mala fides that adversely impacted the defendant's credibility. Her evidence sounded a distinct ring of truth. [54] I respectfully reject the invitation of the plaintiff regarding the credibility of the defendant. The Alleged Statements of Mr. Mayer [55] The plaintiff, and witnesses called by the plaintiff, testified to certain discussions that took place with the deceased. [56] These statements were admissible and potentially relevant, not for the truth of the contents but for the fact they were made, exhibiting the deceased's then contemporaneous state of mind. [57] I begin with this conclusion. In my view, even accepting the statements were made and accurately recited, they do not provide, on their own or as a part of the overall evidentiary matrix, a safe or logical foundation upon which to rest an inference in support of the position of the plaintiff. [58] The motives of the deceased in allegedly making these statements are unknown, but the statements do not, in my view, advance

the cause of the plaintiff. These statements are simply too vague and uncertain in that regard. [59] In any event, and in addition, I have grave doubts concerning the reliability of some of this evidence. The 2002 Discussion [60] The first discussion that is alleged to have occurred was in 2002. The plaintiff and her father had attended at a lawyer's office in Vernon to execute a power of attorney. This meeting apparently was shortly after Mr. Mayer and Ms. Breidt had executed their wills. [61] It was after this meeting that Ms. Mayer and her father had supper and the discussion apparently turned to the topic of his affairs. The plaintiff gave evidence that her father said if he died 50% of the house to me and 50% to Ursula or Ron depending on who passed and everything else 50% to Oshi and 50% to me (Oshi is the nickname of the defendant). [62] Sometime later in her direct examination, the plaintiff returned to this discussion but stated it somewhat differently, indicating, if he died 50% of the investments to Ursula and 50% to me and his one-half interest in the house to me and 50% to Ursula or if she passes than 50% to Ron. [63] There is little evidentiary context to this alleged statement. It may be Mr. Mayer was attempting to reiterate the contents of his will; but that is speculation. There is scant indication in the evidence why this statement might have been made by Mr.

Mayer. [64] In addition, Ms. Mayer, within minutes during her examination, gave somewhat different versions of the statement. [65] In all the circumstances, I place little or no weight on this evidence. [66] There were, according to the plaintiff, other occasions where her father made statements of this nature to her as outlined below. She described these other occasions as joking. A Deck Conversation [67] On one of these occasions it is the evidence of the plaintiff that she and her father were sitting on a deck. It is not clear on the evidence when this discussion took place or where this deck was situated. [68] The plaintiff testified the deceased said "oh just wait until I die, 50 to you and 50 to Oshi". Again, the plaintiff and the deceased were alone. [69] The plaintiff has testified that the deceased said these very words to her on other occasions but the circumstances of those occasions were not revealed in the evidence. A Second Deck Conversation [70] Mr. Cocks is the husband of the plaintiff. Mr. Cocks related a discussion he had with the deceased concerning this topic; also on a deck. [71] Mr. Cocks testified this discussion was in 2009. The two men were discussing an investment opportunity that Mr. Mayer had missed out on in Golden, British Columbia. In the course of this discussion Mr. Cocks testified Mr. Mayer said he had written in his will that his half of the

house was to go to Erika. The Alleged Discussion between Ms. Donald and Mr. Mayer [72] An additional statement by the deceased that was proffered in evidence in this vein was elicited in the evidence of Ms. Donald. Ms. Donald is the mother of the plaintiff and the ex-wife of the deceased. [73] It appears from the evidence that Ms. Donald resided in Vernon as well. The birth of the grandchild Julia, also had the effect of softening the relationship between the deceased and his ex-wife. Consequently there is evidence that the deceased and his ex-wife would, from time to time, have discussions on the phone over the years. [74] In one such telephone discussion, Ms. Donald testified that she said to Mr. Mayer that she was going to make a will. Mr. Mayer, according to Ms. Donald, stated he either had made a will or was going to make a will and was going to leave half to Erica and half to Ursula. Again, it is unclear what precisely Mr. Mayer was referring to in the particular. The Hospital Discussions [75] Certain statements are alleged to have occurred in the hospital in Vancouver during the final days of Mr. Mayer's life. Mr. Mayer had been admitted to the hospital on March 6, 2015 and he never left; passing away on March 16, 2015. [76] On March 8, 2015, Ms. Mayer arrived at the hospital from Vernon. It appears Mr. Cocks arrived at the hospital on March 9, 2015. [77] The plaintiff

testified to an occasion when certain statements were made by the deceased. The evidence as to the particular day when this occasion took place is vague. [78] The plaintiff did however testify that Mr. Cocks was present during this discussion (but not Ms. Breidt). Mr. Cocks gave evidence that he left to go back to Vernon on the evening of March 10, 2015 and did not return to the hospital prior to the passing of Mr. Mayer. It is to be taken from this that the alleged comments by the deceased as testified to by the plaintiff, in the presence of Mr. Cocks, took place then on March 9 or 10, 2015. [79] The plaintiff testified that Mr. Mayer said to the plaintiff "to make sure 50% of the house to you"; and to "find his money"; to "find his blue book"; and "to get a lawyer". [80] The "blue book" as referenced above apparently may have been the RBC bank book used by the deceased. [81] The medical evidence demonstrates the deceased was physically and mentally compromised during his final stay in the hospital. His mental state would fluctuate. It is recorded in the medical records that he suffered from delirium during his hospital stay. He had poor short term memory, and various tests indicated he had moderate cognitive impairment at this point. [82] In addition, during his stay, the deceased was prescribed and received Ativan for agitation. According to the plaintiff, his mental state

would deteriorate under the influence of Ativan. The plaintiff testified she believed Mr. Mayer was cognizant during this discussion but she was generally concerned due to delirium caused by the Ativan. At some point he stopped taking the Ativan during the day. [83] I place no weight on the evidence in relation to these statements at the hospital as testified to by the plaintiff. His physical and mental challenges were significant. While these statements, if they occurred, may reflect his state of mind in relation to these matters, I am not persuaded it reflected a wholly rational state of mind. [84] In addition, I am not satisfied the evidence of the plaintiff is reliable in this regard. This conclusion, in relation to the evidence concerning the hospital statements on this occasion, is linked to my analysis and conclusion concerning the evidence of Mr. Cocks. [85] Mr. Cocks testified to an alleged statement he was party to in the hospital. It appears this discussion took place, according to Mr. Cocks, on March 10, 2015, the day he left to return to Vernon. [86] Mr. Cocks testified that Ms. Mayer and Ms. Breidt were present for this statement. The evidence of Mr. Cocks is that the deceased simply said, again, of the plaintiff "my half to you; you get half the house". This is the extent of the evidence of Mr. Cocks in relation to any statements made by the deceased at the

hospital on this topic. Once again, there is no context provided. [87] It is to be noted that Mr. Cocks did not confirm the evidence of the plaintiff relating to the plaintiff's evidence concerning the deceased's statements in the hospital. [88] What the state of the evidence amounts to is either there exists different testimonial versions of allegedly the same event; or the evidence relates to different events. In either case however, neither Mr. Cocks nor the plaintiff confirms or corroborates the evidence as testified to by the other. [89] In addition, Ms. Breidt denies being present for any such alleged statements by the deceased. I have found Ms. Breidt to be a credible witness in all respects. [90] Again, in the circumstances, I give no weight to this evidence. [91] The evidence in this area suffers from an additional weakness; namely the credibility of Mr. Cocks. [92] The plaintiff testified to a discussion, on a different topic, that took place in the hospital on the last day of the deceased life; namely March 16, 2015. The plaintiff testified that she, Ms. Breidt, hospital staff, and the deceased, were present for this particular discussion. [93] The discussion concerned the prospect of having to place Mr. Mayer into palliative care as briefly referenced earlier in these reasons. The plaintiff testified that Ms. Breidt said she wouldn't visit the deceased if he were in

palliative care in Vancouver and that he would be better off in Vernon. [94] Ms. Breidt denied saying these things. [95] Mr. Cocks however gave evidence that he was privy to this discussion. [96] In cross-examination Mr. Cocks was forced to resile from this evidence given the fact that he had departed for Vernon on March 10 and had not returned to the hospital. Therefore, it became obvious, he could not have been present for this alleged discussion. [97] I do not find the evidence of this discussion important or even particularly relevant to the issues before me but it did provide an insight into the credibility of Mr. Cocks. In my view, the error of his evidence was not the product of a simple lapse of memory. In my view, it was a purposeful attempt, albeit clumsy, to support the evidence of the plaintiff. I did not find Mr. Cocks to be a credible witness. Alleged Statements of the Defendant [98] There was a discussion sometime after the funeral of Mr. Mayer that was testified to by the plaintiff. The plaintiff gave evidence that she and Ms. Breidt were discussing the fact that the funds of Mr. Mayer had been dissipated prior to his death. It is alleged by the plaintiff that in the course of this discussion Ms. Breidt said that after she (Ms. Breidt) died, half the house would go to Ms. Mayer. This was not put to Ms. Breidt; either in direct or cross-examination. [99] In

addition, the plaintiff testified to a discussion between herself and Ms. Breidt in the summer of 2016. The litigation was well under way by then. The plaintiff had filed a CPL on the property and Ms. Breidt had phoned the plaintiff to try and persuade Ms. Mayer to remove it. In the course of that discussion it is alleged by Ms. Mayer that Ms. Breidt said "you know I love you, you will get half". This exchange was not put to Ms. Breidt either in direct examination or cross-examination. Consequently, I do not know Ms. Breidt's position on this evidence. [100] The final evidence in this area relates to the evidence of Mr. Shane Dugas and Ms. Debbie Breidt. [101] Mr. Dugas was retained by the plaintiff to prepare and issue the statement of civil claim in this matter and as well he took on the role of solicitor for the estate. Ms. Debbie Breidt is Ms. Breidt's daughter in law, married to her son Ron. [102] The claim in this matter was filed in April 2015. Ms. Breidt apparently retained counsel in relation to this in the late fall of 2015. [103] Mr. Dugas testified that between the issuance of the claim and Ms. Breidt retaining counsel, Mr. Dugas received a telephone call from Debbie Breidt. [104] Mr. Dugas does not have a note of the discussion but testified that Debbie Breidt said she was calling on behalf of her mother-in-law to ask how this agreement impacted the estate. Mr.

Dugas' gave evidence that he indicated to Debbie Breidt that there wasn't anything really happening on the estate and that nothing would happen on the estate for some months. Mr. Dugas was then asked by counsel on behalf of the plaintiff whether or not Debbie Breidt ever voiced an objection concerning the existence of an agreement. Mr. Dugas testified that Ms. Debbie Breidt did not. [105] Ms. Debbie Breidt testified. It was her evidence that the defendant appeared confused about the claim. Ms. Debbie Breidt offered to call the plaintiff's lawyer to make inquiries on behalf of the defendant. [106] It is my understanding of the evidence that the defendant in fact brought her materials to the home of Ms. Debbie Breidt and Ms. Debbie Breidt called Mr. Dugas. [107] The evidence of Ms. Debbie Breidt more or less tracks the recollection of Mr. Dugas except she testified there was no discussion about any kind of agreement. [108] The defendant also gave evidence on this point. She had little recollection of the call. [109] The fact is the defendant was not really a party to the discussion in any event. The call was not on speaker and the defendant heard but one side of the conversation. I don't see anything turns on this evidence. The Claim [110] The claim of the plaintiff, as reflected in the amended notice of civil claim, seeks relief resting on an expansive set of legal remedies. The

material facts pled in support of the relief are not expansive. [111] The statement of facts contained in the claim are brief and can be reproduced in their entirety: 6. At all material times the deceased, represented, promised and assured the Plaintiff that she would receive his interest in the home located at 1636 East 37th Avenue, Vancouver, British Columbia. In addition, she would receive half of his estate by virtue of the will.

7. The deceased had significant investments and assets which had been the subject of numerous discussions between the deceased and the Plaintiff. The deceased retained records of all of his assets in the home and had numerous records relating to his assets.

8. Following receipt of a copy of the will and upon a search of the title to the Property it was discovered that 1636 East 37th Avenue, Vancouver, British Columbia, was held in joint tenancy between Ursula and the deceased.

9. The deceased expressly provided in the will that the Plaintiff would receive half of his estate and half of his interest in 1636 East 37th Avenue, Vancouver, British Columbia. Following his passing, the title to the following property is held in trust for the Plaintiff. The Plaintiff claims that the property legally described as followed is held in trust and she is entitled to a half interest in the legal and equitable title to the property: P1D 005-262-747 LOT 13 BLOCK 5 DISTRICT LOT 702 PLAN 2554 10. The Plaintiff has discovered that Ursula has determined that she would not receive any of the property of the estate including the real Property. The Plaintiff has been advised by Ursula that she will not be probating the estate and it appears that there are no assets to be distributed to the Plaintiff.

11. The deceased, by his words, actions and conduct, caused the joint tenancy of the Property to be severed.

12. The removal of the real property from the estate and the disappearance of assets, including financial assets, appears to have resulted in a complete disinheritance of the Plaintiff and a failure by the deceased to provide for the Plaintiff following his death.

13. Ursula represented to the Plaintiff that there were no assets and no investments remaining. The records have been removed from the home or destroyed by Ursula or her agents. [112] The relief sought in relation to the house is as follows: (1) a constructive trust in favour of the plaintiff; (2) a resulting trust in favour of the plaintiff; (3) a declaration that the joint tenancy was severed; (4) a statement that the plaintiff relies "on the doctrine of unjust enrichment". The particular in support of this relief states that the defendant contributed nothing to the cost of the purchase of the house or to the cost since the date of purchase; (5) contract; and (6) a statement as follows: "the deceased has failed to provide for the plaintiff in breach of his obligations. The plaintiff relies upon the provisions of the Wills Variation Act. Law and Analysis [113] At trial, Ms. Mayer's submissions centered on the following claims: a) The property was not held on a true joint tenancy and as such it is held by Ms. Breidt on a resulting trust for Ms. Mayer or the deceased's estate; or b) The joint tenancy was severed prior to the deceased's death, such that at his death, title to the property was held by the deceased and Ms. Breidt as tenants in common and the deceased's one-half interest fell into his estate to be disposed of according to the terms of his will. Ms. Mayer submitted

that the joint tenancy was severed by the deceased and Ms. Breidt entering into a mutual will agreement that is binding on Ms. Breidt; c) The court should impose a constructive trust over title to the property in favour of Ms. Mayer or the deceased's estate based either on the doctrine of unjust enrichment or the doctrine of "good conscience" described by the Supreme Court of Canada in Soulos v. Korkontzilas (1997), 146 D.L.R. (4th) 214 (S.C.C.). [114] If the court finds that the deceased's one-half interest in the property falls into the estate, Ms. Mayer applies for an order that further provision be made for her from the estate pursuant to s. 60 of the Wills, Estates and Succession Act, S.C.B.C. 2009, c. 13, which was the legislation in force at the time of the deceased's death. [115] I will address each of Ms. Mayer's arguments in turn. Joint Tenancy with respect to the Property [116] In Zeligs v. Janes, 2016 BCCA 280, the British Columbia Court of Appeal undertook a detailed review of first principles concerning joint tenancy and severance in relation to real and personal property. Madam Justice Dickson discussed the characteristics of joint tenancy: [38] Joint tenancy and tenancy in common are the two most common forms of concurrent property ownership in Canada. In a joint tenancy, the "four unities" of title, interest, time and possession are present and co-owners hold

an equal interest in the property as a unified whole. The common law treats joint tenants as a single tenant: each holding the whole for all, with no distinct shares held by anyone. In contrast, in a tenancy in common one co-owner may hold a greater proportionate interest in the property than the other co-owner(s): Hansen Estate v. Hansen, 2012 ONCA 112 at paras. 29-30; Felske Estate v. Donszelmann, 2007 ABQB 682 at para. 31, aff'd 2009 ABCA 209; Rathwell v. Rathwell, [1978] 2 S.C.R. 436 at 459. [39] Unity of title means the title of each joint tenant arose from the same act or instrument. Unity of interest means their holdings are perfectly equal in nature, extent and duration. Unity of time means all the interests vested simultaneously. Unity of possession means each joint tenant has a right to present possession and enjoyment of the whole property, but no right to exclusive possession of any individual part of the whole. Assuming all four unities are present, the question of whether a joint tenancy or a tenancy in common has been created is determined by the intention of the grantor: B. Ziff, Principles of Property Law, 6th ed. (Toronto: Carswell, 2014) at 336; Felske Estate at para. 31. [40] Joint tenancy is often the chosen form of concurrent ownership for family holdings, usually for estate planning purposes. This is unsurprising. The legal fiction of a unified

singularity composed of more than one person may fit comfortably in a family context. Unfortunately, however, unity can be fragile and families are not always happy. As Abella J. remarked in Pecore, when divisions arise that unhappiness often finds its painful way into a courtroom. [41] The principal and distinguishing characteristic of joint tenancy is the right of survivorship, the jus accrescendi. When one joint tenant dies, his or her interest in the property is extinguished and passes to the surviving joint tenant(s). The right of survivorship is, however, a revocable expectancy that manifests only upon success in the so-called "ultimate gamble" - survival - and then only if the joint estate has not been previously destroyed by an act of severance: Estate of Propst, 788 P.2d 628 at 631 (Cal. Sup. Ct. 1990). When given inter vivos, a gift of survivorship rights is to what is left, if anything, when the gamble is won: Simcoff v. Simcoff, 2009 MBCA 80 at para. 64. [42] The interest of a tenant in common is different with respect to survivorship. Unlike that of a joint tenant, a tenant in common's interest in property remains intact upon death and passes into his or her estate: Fuller v. Harper, 2010 BCCA 421 at para. 53. [117] In her pleadings, Ms. Mayer claimed that the property is held on a resulting trust for her or the estate. The inference being that the property was not

held as a true joint tenancy. [118] Ms. Mayer did not specifically address the resulting trust claim at trial other than to assert that Ms. Breidt had not made any financial contributions to the acquisition of the property and as such she holds beneficial title to the property on trust. [119] The circumstances in which a resulting trust may arise were discussed in Pecore v. Pecore, 2007 SCC 17, and recently by the British Columbia Court of Appeal in McKendry v. McKendry, 2017 BCCA 48 as follows: [35] In summary, a resulting trust arises when title to property is held in the name of a party who gave no value for it. In such circumstances, that party is obliged to return the property to the original title owner unless he or she can establish it was given as a gift. In the case of a gratuitous transfer, a rebuttable presumption of resulting trust applies when the transfer is challenged. The judge commences the inquiry with the presumption, weighs all of the evidence, and attempts to ascertain the actual intention of the transferor. The governing consideration is the transferor's actual intention. The presumption of resulting trust determines the result only where there is insufficient evidence to rebut the presumption on a balance of probabilities: Pecore at paras. 20, 22-25, 44; Kerr v. Baranow, 2011 SCC 10 (CanLII) at para. 18. [120] The evidence is clear in the case at

bar. [121] I find that at the time the property was purchased, the deceased and Ms. Breidt intended to hold title as true joint tenants with the right of survivorship. The two had already been living in a common law spousal relationship in the property for some years. I find they purchased it together, each contributing funds to the down payment, and each being indebted under the mortgage and equally contributing to mortgage payments. The two continued to live together in the property as their home for nearly 30 years. [122] I accept the evidence of Ms. Breidt that the intention was that if one of them died, the survivor would receive the house as security for their old age. There is no evidence that the deceased had a contrary intention at the time of the purchase of the property. [123] I find that there was no gratuitous transfer of title to Ms. Breidt. The deceased's estate is not entitled to return of the property based on the doctrine of resulting trust. Ms. Mayer herself has no personal claim to the property based on resulting trust principles. She made no contributions of value to the property and has never been a title holder. [124] As the property was held as a true joint tenancy, the result is that unless the joint tenancy was severed prior to the deceased's death, or unless another equitable remedy is available to Ms. Mayer, Ms. Breidt received full title by right of

survivorship. Severance of Joint Tenancy [125] Ms. Mayer claims that the joint tenancy in relation to the property was severed prior to the deceased's death such that title was held as a tenancy in common and the deceased's one-half interest fell into his estate. [126] Again, in Zeligs, Dickson J.A. comprehensively discussed the ways in which a joint tenancy may be severed: [45] Like any owner, a joint tenant is entitled to deal freely with his or her interest in property. Accordingly, a joint tenant may sever a joint tenancy, with or without the consent or knowledge of the other joint tenant(s) and subject to contrary statutory provision. After a joint tenant dies, however, severance is no longer possible because death extinguishes the joint interest. For this reason, a testamentary disposition cannot sever a joint tenancy: Bergen v. Bergen, 2013 BCCA 492 at para. 40; Hansen Estate at para. 63; A.J. McClean, "Severance of Joint Tenancies" (1979) 57 Can. Bar Rev 1 at 2, 38-41. [46] When a joint tenancy is severed, the joint tenancy is converted into a tenancy in common and the right of survivorship is extinguished. In consequence, each affected co-owner becomes entitled to a distinct share rather than an undivided interest in the whole: Bergen at para. 40; Flannigan v. Wotherspoon (1952), 7 W.W.R. (N.S.) 660 at 665 (B.C.S.C.). In joint tenancies composed of more than two

persons, a blend of interests may be present. For example, if A, B and C are joint tenants a severance of A's interest will convert it into a tenancy in common, however, B and C will continue to be joint tenants with rights of survivorship between themselves: McClean at 6; Law Reform Commission of British Columbia at 5. [47] Severance is typically effected in one of three ways: by one person's acting unilaterally upon his or her own share so as to destroy the four unities (for example, by selling it); by mutual agreement (for example, by written contract); or by "any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common" (for example, by conduct which demonstrates all tenants mutually dealt with their interests as several). Other possible modes of severance include bankruptcy, partition or an order made under matrimonial property legislation: Williams v. Hensman (1861), 70 E.R. 862 (Eng. Ch.); Tessier Estate v. Tessier, 2001 SKQB 399 at para. 8. [48] Vice-Chancellor Wood described the three primary modes of severance, now known as the "three rules", in Williams at 867: A joint-tenancy may be severed in three ways: in the first place, an act of any one of the persons interested operating upon his own share may create a severance as to that share. The right of each joint-tenant is a right by survivorship only

in the event of no severance having taken place of the share which is claimed under the jus accrescendi. Each one is at liberty to dispose of his own interest in such a manner as to sever it from the joint fund - losing, of course, at the same time, his own right to survivorship. Secondly, a joint-tenancy may be severed by mutual agreement. And, in the third place, there may be a severance by any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common. When the severance depends on an inference of this kind without any express act of severance, it will not suffice to rely on an intention, with respect to the particular share, declared only behind the backs of the persons interested. You must find in this class of cases a course of dealing by which the shares of all the parties to the contest have been effected, as happened in the cases of Wilson v. Bell [(1843), 5 IR. Eq. 501 (Eng. Eq. Exch.)] and Jackson v. Jackson [(1804), 9 Ves. 591 (Eng. Ch.)] [127] The onus of proof rests on the party asserting the severance: McKee v. National Trust Co. Ltd. et al. (1975), 7 O.R. (2d) 614 (C.A.). [128] Ms. Mayer has not met the onus of proving that the joint tenancy was severed. [129] Ms. Mayer relies on the third mode of severance, namely that there was a course of dealing by both the deceased and Ms. Breidt sufficient

to intimate that they intended to mutually treat their interests in the property as constituting a tenancy in common. [130] In Hansen Estate v. Hansen, 2012 ONCA 112, the Ontario Court of Appeal considered the issue of what may constitute a "course of dealing" sufficient to establish that a joint tenancy in property was severed with the result that the co-owners' interests in the property are held by way of tenancy in common. [131] In Hansen Estate Winkler C.J.O. stated as follows: [7] A proper application of the course of dealing test for severing a joint tenancy requires the court to discern whether the parties intended to mutually treat their interests in the property as constituting a tenancy in common. It is not essential that the party requesting a severance establish that the co-owners' conduct falls into a formulation found to have had the effect of severing a joint tenancy in other cases. The court's inquiry cannot be limited to matching fact patterns to those in prior cases. Rather, the court must look to the co- owners' entire course of conduct -- in other words, the totality of the evidence -- in order to determine if they intended that their interests were mutually treated as constituting a tenancy in common. This evidence may manifest itself in different ways. Each case is idiosyncratic and will turn on its own facts. [132] The Chief Justice further stated: [38]

The phrase in rule 3 -- "the interests of all were mutually treated" -- requires that the co-owners knew of the other's position and that they all treated their respective interests in the property as no longer being held jointly. Such knowledge can be inferred from communications or conduct. The requirement that the co-owners knew that their interests in the property were being mutually treated as held in common was emphasized in Williams v. Hensman, at p. 867 E.R.: [I]t will not suffice to rely on an intention, with respect to the particular share, declared only behind the backs of the other persons interested. [39] While the determination under the course of dealing test is an inherently fact-specific assessment, the underlying rationale for rule 3 is that it is a means of ensuring that a right of survivorship does not operate unfairly in favour of one owner (or owners) where the co-owners have shown, through their conduct, a common intention to no longer treat their respective shares in the property as an indivisible, unified whole. For example, in the context of negotiations between spouses who are in the midst of a marriage breakdown, even failed or uncompleted negotiations can lead to a severance because "the negotiation of shares and separate interests represents an attitude that shows that the notional unity of ownership under a joint tenancy has been abandoned"

(emphasis in original): Principles of Property Law, at p. 347. [133] It is clear I must look to the totality of the evidence in order to determine if the deceased and Ms. Breidt intended to mutually treat their interests in the property as constituting a tenancy in common and no longer a unified whole. It is not enough to simply find that one of the two co-owners intended to treat their interest as a tenancy in common without the knowledge or acquiescence of the other. [134] It is apparent the deceased and Ms. Breidt were not in the midst of a marriage breakdown or negotiation of property division at the time of the deceased's death. To the contrary, the evidence is that the two had a stable and supportive spousal relationship. Generally, their conduct prior to the deceased's death is not indicative of a course of dealing to mutually treat their interests in the property as tenants in common. [135] The pleadings of Ms. Mayer make no reference to mutual wills or of the deceased and Ms. Breidt having entered into a mutual will agreement. [136] In her final submissions, however, Ms. Mayer argued that the mirror wills made in 2002 were in fact mutual wills, because, it was submitted, Mr. Mayer and Ms. Breidt entered into binding mutual promises to dispose of the property only as provided in the wills. [137] There is authority for the proposition that joint tenants of a property who

form a common intention to leave their several interests in the property to the survivor for life and the remainder to a designated beneficiary, and then execute mutual wills to that effect, may, by their conduct, sever the joint tenancy, and convert it into a tenancy in common: Szabo v. Boros et al., [1967] 60 W.W.R. 754 (B.C.C.A.) at para. 4. [138] In Huculak v. Kallenberger, 2005 BCSC 239, Barrow J. summarized the main principles underlying this type of claim: [14] It is the plaintiff's contention that Fred and Jean had an agreement to the effect that following the death of one of them, the survivor would not revoke or alter his or her will. Should such an agreement be proven, equity provides a remedy. The basis of the remedy is succinctly explained in University of Manitoba v. Sanderson Estate et al. (1998), 155 D.L.R. (4th) 40, 47 B.C.L.R. (3d) 25 (B.C.C.A.) by Rowles J.A., who observed at para. 46: The guiding principles to be applied in this case are to be found in Dufour v. Pereira, supra, in which the enforcement of an agreement in a joint will was held to be within equity's jurisdiction to prevent fraud. Equity considers it a fraud upon the deceased, who has acted upon and relied upon the mutually binding nature of the agreement, for the survivor to change the will and break the agreement. As the deceased cannot intervene to enforce the obligation, equity will enforce

the survivor's obligation, despite the survivor's subsequent intentions. [15] Although these observations were made in relation to joint wills, they are equally applicable to mutual wills. [16] In Dolby v. DeSantis Estate, [1989] B.C.J. No. 297 (B.C.S.C.) Huddart J. (as she then was) said that "[e]vidence of an agreement not to revoke one's will must be clear and unequivocal". There is a distinction between an "honourable engagement" and a binding agreement. The former is not enforceable and the latter is. It is, in part, because of this that the law requires "clear and unequivocal" evidence of an agreement not to revoke. Southin J.A. in Brynelsen Estate (Official Administrator of) v. Verdeck (2002), 165 B.C.A.C. 279, 2002 BCCA 187, at para. 20 quoted with approval the following remarks of Lord Loughborough in Lord Walpole v. Lord Orford (1797), 3 Ves. 402, 30 E.R. 1076 (L.C.) at p. 418 - 420 (Ves.): From the co-existence of the instruments and the execution at the same time I do infer, that they had agreed to make, the one a codicil, the other a will. I conclude with the bill, that both considered it an honourable engagement. I cannot direct the execution of an honourable engagement; that leaves the party to dispose, as he pleases; which rests upon nicer points, than a Court of justice can decide upon. I must say, they meant to impose upon each other a legal and binding

obligation; that that was their intention But for this Court to execute an agreement it is always necessary, that the terms should be clear. Here it is uncertain, whether they meant it to amount to a legal obligation. There is no evidence, nothing, upon which I can obtain a clear and defined solution of that; and I lay it down as a general proposition, to which I know no limitation, that all agreements in order to be executed in this Court must be certain and defined: secondly, they must be equal and fair; for this Court, unless they are fair, will not execute them: and thirdly, they must be proved in such manner as the law requires. [139] A mutual will agreement imposes an onerous obligation on the surviving testator, who is left unable to deal freely with their property during the remainder of their lifetime and is compelled to dispose of it in a certain way at their death. For this reason, in order for the court to find the existence of an enforceable agreement, there must be clear and unequivocal evidence, including clarity of the terms. [140] Ms. Mayer placed a great deal of reliance in this regard on the decision of Mr. Justice Bracken in Brewster v. Lenzi, 2010 BCSC 1488. The facts as found by the court are important. [141] Mr. Lenzi died leaving his spouse, Mrs. Lenzi, and the plaintiff, a daughter from a previous relationship. Mr. and Mrs. Lenzi were in their mid 60s

when they married. They purchased a condominium, each contributing funds, and registered title in joint tenancy. They lived in the condominium for five years before the deceased's death. Shortly after purchasing the condominium, they prepared wills. Each will contained a clause directing that upon the first of them to die, the survivor was to transfer the deceased's one-half interest in the condominium and one-half of the contents and household effects to the designated beneficiary of the other: Brewster at para. 5. [142] After Mr. Lenzi's death, Mrs. Lenzi advised her solicitor that she and Mr. Lenzi had an agreement that the condominium would be transferred into her name alone and upon her death, the property would be divided equally between her family and Mr. Lenzi's family in accordance with the terms of the wills. On Mrs. Lenzi's instructions, the solicitor wrote to the estate solicitor, advising of Mrs. Lenzi's interpretation of the agreement. Mrs. Lenzi then took further steps through her solicitor that were consistent with the terms of the agreement. Later, Mrs. Lenzi made a new will in which she left her entire estate to her relatives. [143] The plaintiff commenced an action against Mrs. Lenzi seeking an order that she held a one-half interest in the condominium in trust for her. Mr. Justice Bracken found the existence of an agreement as alleged by the plaintiff. [144]

The learned trial judge noted that the "authorities establish the existence of mutual wills is by itself not sufficient to establish a trust, but the wills provide some evidence of a common intention and agreement respecting the property in issue" (para. 41). On the facts of the case before him, Bracken J. found the terms of the agreement between Mr. and Mrs. Lenzi to be "clear and certain." [145] Ms. Mayer submits that the facts of the case at bar are similar to those in Brewster and urges the court to find a binding agreement between the deceased and Ms. Breidt by which Ms. Breidt is obliged to hold the deceased's one-half interest in the property in trust for her until her death pursuant to the terms of the deceased's 2002 will. [146] Ms. Mayer asserts that Ms. Breidt breached the mutual will agreement in 2016 when she made a new will, leaving her entire estate to her son, Ron. [147] Ms. Mayer states that the relevant evidence in support of an implied agreement includes the wording of the 2002 wills; the fact that Ms. Breidt and the deceased lived as common law spouses for 35 years, both contributed to the property and kept other finances separate; and that the deceased and Ms. Breidt both made statements to the effect that Ms. Mayer would receive one half of the property. [148] In the case at bar the evidence drives me to the view expressed by the court in Huculak. I find

that the facts cited by Ms. Mayer regarding length of the marriage, contributions to the property and finances, and the existence of mirror wills do not amount to clear and unequivocal evidence. [149] I find the statements in issue are vague and ambiguous and do not assist in establishing the existence of a mutual will agreement. [150] In addition, some of the evidence concerning the statements allegedly made by Mr. Mayer I find to be unreliable for the reasons previously outlined. [151] Consequently, the alleged statements of the deceased, in their entirety, are unhelpful in supporting the existence of a mutual will agreement. [152] I also find that none of the statements attributed to Ms. Breidt assist in establishing a binding agreement in this regard. [153] In relation to the wording of the 2002 wills, with respect, I do not agree that, when placed in context, the wording supports the existence of a binding obligation. [154] The wording of the wills is consistent with Ms. Breidt's view of the couple's intention at the time the wills were made. The deceased's will provides that upon his death, the "rest and residue" of their estate is to be divided between Ms. Breidt and Ms. Mayer. As the property was held in joint tenancy, it would not be caught by the will and would devolve to the survivor. Ms. Breidt testified that she recalled the notary confirming that the property did

not have to go in the will. Further, there is no evidence that the deceased did not understand the meaning of joint tenancy. [155] The terms of the will that would govern the estate of the last to die, at most, indicate that at the time they made the wills the deceased and the defendant contemplated a situation where the survivor would own either the property or a replacement property at their death, and if so, they wished that it be divided between their children. There is no reference in the will to an agreement that the property was to be held in trust during Ms. Breidt's lifetime or that Ms. Breidt was prohibited from altering the terms of her will after the deceased's death. [156] Upon a review of the totality of the evidence, I find that it does not reach the "clear and unequivocal" threshold required to declare the existence of an enforceable mutual will agreement. The plaintiff has not discharged the onus of proving that the joint tenancy ownership of the property was severed during the deceased's lifetime, and her claim in this regard is dismissed. Constructive Trust [157] In the event the joint tenancy remained intact at the deceased's death, Ms. Mayer has also sought a declaration that one half of the property is subject to a constructive trust in favour of either her or the estate; either on the basis of unjust enrichment or on the basis of "good conscience" as set

out by the Supreme Court of Canada in Soulos v. Korkontzilas, [1997] 2 S.C.R. 217. unjust enrichment [158] Ms. Mayer submits that Ms. Breidt was enriched by her receipt of title to the property by way of the right of survivorship, which resulted in a corresponding deprivation of Ms. Mayer in the form of a loss of inheritance, with no juristic reason for Ms. Breidt's enrichment. [159] I find that there is no merit to the claim in unjust enrichment. [160] In order to prove unjust enrichment, a claimant must establish three elements: an enrichment of or benefit to the defendant, a corresponding deprivation of the plaintiff, and the absence of a juristic reason for the enrichment: Kerr v. Baranow, 2011 SCC 10 at para. 32. [161] In other words, a claimant must show that he or she gave something to the defendant, which the defendant received and retained, and which enriched the defendant. The enrichment must correspond to a deprivation which the plaintiff has suffered. The benefit and corresponding deprivation must have occurred without a juristic reason. That is, there must be no reason in law or justice for the defendant's retention of the benefit conferred by the plaintiff: Kerr at paras. 38-40. [162] In relation to her personal claim, Ms. Mayer cannot establish the first and second element of the test. She made no contribution of any relevant value to the property either by money

or otherwise, which enriched Ms. Breidt or the deceased and caused a corresponding deprivation to her. Disappointment regarding an expected inheritance is not a deprivation that corresponds to any enrichment. [163] In relation to her claim on behalf of the estate, even if Ms. Mayer in her capacity as personal representative could establish that the deceased made contributions to the property, which enriched Ms. Breidt and which led to a corresponding deprivation of the estate, the claim fails on the third element. [164] There was a juristic reason for enrichment of Ms. Breidt, namely the legal disposition of the property to her by right of survivorship. As a result, neither Ms. Mayer nor the deceased's estate is entitled to a remedy based on unjust enrichment. [165] I pause to note that the claim brought by Ms. Mayer seeking a remedy on behalf of the deceased's estate is not properly constituted. Ms. Mayer is not named as a plaintiff in her capacity as personal representative. The merits of the claim render this procedural point moot, but, nevertheless, should not pass without comment. "good conscience" constructive trust [166] The submission of the plaintiff in this regard rests upon the decision in Soulos, and in particular the decision of McLachlin J. (as she then was) writing for the majority. [167] It was held that a constructive trust remedy is available at law not only

in relation to unjust enrichment but also to hold persons in different situations to high standards of trust and probity and prevent them from retaining property which in "good conscience" they should not be permitted to retain. The constructive trust imposed in the second category serves to do justice between the parties as good conscience requires, but also to hold fiduciaries and persons in positions of trust to high standards of trust required to ensure effective functioning of commercial and social institutions. [168] Ms. Mayer argues that Ms. Breidt has not engaged in wrongful conduct, but states that Ms. Breidt has been unjustly enriched by her retention of the property to Ms. Mayer's detriment, and that it would be unconscionable for her to retain the property in light of the deceased's conduct indicating that he wished Ms. Mayer to receive a one-half interest. This argument is very similar to the one made in support of her unjust enrichment claim. [169] Madam Justice McLachlin identified four conditions which are prerequisites for a constructive trust based on "good conscience" as follows: [45] (1) The defendant must have been under an equitable obligation, that is, an obligation of the type that courts of equity have enforced, in relation to the activities giving rise to the assets in his hands; (2) The assets in the hands of the defendant must be shown to have

resulted from deemed or actual agency activities of the defendant in breach of his equitable obligation to the plaintiff; (3) The plaintiff must show a legitimate reason for seeking a proprietary remedy, either personal or related to the need to ensure that others like the defendant remain faithful to their duties and; (4) There must be no factors which would render imposition of a constructive trust unjust in all the circumstances of the case; e.g., the interests of intervening creditors must be protected. [170] These principles are helpfully discussed by Mr. Justice Melvin in Berry v. Berry, 2001 BCSC 358. [171] In Berry, the plaintiff, who was the deceased's daughter and administratrix of the estate, brought a claim against the deceased's widow seeking a declaration that she held real property in trust for the deceased's estate pursuant to a good conscience constructive trust as articulated in Soulos. The real property was registered in the joint names of the deceased and the widow, and there was a mortgage on title in their joint names. In dismissing the claim, the court held: [23] As to the applicability of these principles to the case at bar, it should be noted that there is no breach of fiduciary obligation or breach of duty of loyalty in the context of the relationship between the deceased and the defendant. The defendant's interest in the property as a joint tenant at

the time of acquisition of the property by herself and the deceased did not occur as a result of a wrongful act. Obtaining title to the property to the exclusion of all others as a surviving joint tenant occurs by operation of law not a wrongful act. As to the second category, where the defendant may not have acted wrongfully in obtaining property but where the defendant would be unjustly enriched to the plaintiff's detriment by being permitted to keep the property, in my opinion, that is equally not applicable. The acquisition of the property by the deceased and the defendant as joint tenants was as a result of their joint financial efforts over the years of their relationship. [172] Similar to Berry Estate, none of the four factors set out by McLachlin J. in Soulos apply here. [173] Ms. Breidt is not a fiduciary or under any duty of loyalty to Ms. Mayer or the deceased's estate with respect to the property. Ms. Breidt did not receive title to the property via any deemed or actual agency activities in relation to Ms. Mayer or the deceased. Ms. Mayer has not shown any legal basis for a proprietary remedy in relation to the property, either in her personal capacity nor in her capacity as the deceased's personal representative. The imposition of a constructive trust in favour of either Ms. Mayer or the estate would therefore be unjust in the circumstances. [174] Further, I do not

read the decision in Soulos as opening up constructive trust remedies to situations where there has been no wrongful conduct and the claimant cannot satisfy the elements of an unjust enrichment claim. Application to Vary the Will [175] If the court determined that the deceased's interest in the property fell into his estate, Ms. Mayer applied for an order under s. 60 of the Wills, Estates and Succession Act, S.C.B.C. 2009, c. 13 that the deceased's will be varied to make further provision for her. [176] I pause to note again that in my view Ms. Mayer should not have brought a wills variation action while she is also acting as a personal representative. The "estate" has been named as a defendant. The estate is not a legal entity capable of being sued. The proper defendant, in relation to a wills variation action, is Ms. Mayer as a personal representative. [177] In any event, at trial, it was conceded by the plaintiff in argument that if I find, as I have, that the deceased's interest in the property passed outside the estate to Ms. Breidt by right of survivorship, then there would be no practical purpose in varying the will as the value of the estate is otherwise negligible. The estimated gross value of the estate as at date of death was $16,936.06. [178] However, as Ms. Mayer did not formally abandon her claim, I set out my reasons regarding her application below. [179] Under the will, Ms. Mayer and Ms. Breidt are each entitled to 50% of the residue of the estate. [180] The deceased had a legal and moral obligation to provide for his spouse, Ms. Breidt, and a potential moral obligation to provide for Ms. Mayer, an independent adult child: Tataryn v. Tataryn Estate, [1994] 2 S.C.R.

807. There is no evidence that the deceased had a legal obligation to provide for Ms. Mayer. [181] Where there are conflicting claims and where the size of the estate permits, all claims should be considered. Where the size of the estate is small, legal claims generally take precedence over moral claims: MacKinlay v. MacKinlay Estate, 2008 BCSC 994 at paras. 30, 39. [182] In the circumstances, given the value of the estate and the deceased's primary responsibility to provide for Ms. Breidt as his spouse, I find that the provision made for Ms. Mayer in the deceased's will was within the range of possible dispositions that was adequate, just and equitable. [183] I therefore dismiss Ms. Mayer's application to vary the deceased's will. Final Evidentiary Issue [184] Finally, an evidentiary issue arose at the conclusion of evidence in this case that requires comment. [185] Upon completion of the viva voce evidence on behalf of the defendant, counsel read in portions of the questions and answers of the examination for discovery of the plaintiff. [186] One such question and answer was as follows: 724 Q Okay, So I want you to exhaust your memo and tell me everything that you recall your father telling you in these many discussion about his investments and assets? A His investments were at the RBC. He opened up an account at the credit union. That there was a will; that he and Ursula had

an understanding if my dad would have died after Ursula, half the house would have went to Ron. So it was held basically -- there was an agreement between them. Anyway, go on, next question. [187] Counsel advised that the purpose of tendering this portion of the examination was to demonstrate an inconsistency in the evidence of the plaintiff at trial and the examination for discovery and, in the result, impact the plaintiff's credibility. [188] I expressed my reservation to counsel about the propriety of such an approach given the fact that this portion of the transcript had not been put to the plaintiff in cross-examination. [189] Counsel then sought to withdraw this portion of the examination as read into the record. [190] In my view, this is not admissible as an inconsistent statement for the purposes of potentially impacting the credibility of the plaintiff. It was not put to the plaintiff in cross-examination. In the circumstances of this case, as a matter of fairness, this failure forecloses the use for which it was proffered. [191] I conclude the court has a discretion to grant leave to the defendant to withdraw this portion of the examination. I do not perceive any prejudice or unfairness inuring to the plaintiff in granting such leave. Indeed no prejudice is asserted by the plaintiff. [192] I grant leave to the defendant to withdraw this portion of the examination for

discovery transcript. [193] Counsel on behalf of the plaintiff submitted that it is admissible in support of the merits of the plaintiff's case as evidence of an agreement or understanding in relation to the house. [194] Counsel for the plaintiff submitted it ought to remain as part of the record, to be weighed, for this purpose. [195] Even if the evidence was before me as urged by the plaintiff it does not impact my analysis and conclusions on the issues. [196] Frankly it is unclear whether the transcript is purportedly evidence of the words spoken by the deceased, or the plaintiff's characterization of what her father told her. [197] The evidence, even if before the court, does not impact the overwhelming weight of the evidence demonstrating that the circumstances fall well short of establishing these issues in favour of the plaintiff. Conclusion [198] The plaintiff's action is dismissed in its entirety. The Certificate of Pending Litigation registered on the property shall be removed. [199] The defendant shall have her costs of the action. "Mr. Justice Crossin"