Yen Estate v. Yen-Zimmerman

2013 BCSC 1620 Yen Estate v. Yen-Zimmerman

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Yen Estate v. Yen-Zimmerman, 2012 BCSC 1620 Date: 20121031 Docket: S103318 Registry: Vancouver Between: Barbara Hsia, Executrix of the Will of Chester Hugh Yen also known as Yen Ching Hai, Deceased Plaintiff And Shirley Margaret Yen-Zimmerman also known as Margaret Chow, Mary Yen Chang, Michael Chan, Stephen Yan also known as Wen Yan and Christopher Chan Defendants Corrected Judgment: The text of the judgment was corrected at paragraphs 10, 44 and 47 on December 19, 2012, and the short style of cause and the text of the judgment at paragraphs 11 and 45 were further corrected on October 15, 2013 Before: The Honourable Mr. Justice Barrow Reasons for Judgment Counsel for the Plaintiff: H.S. McLellan Counsel for the Defendants, M. Chan and C. Chan: R.A. Kasting Appearing on her own behalf: M.Y. Chang Place and Date of Trial/Hearing: Vancouver, B.C. November 15-18, 2011 Place and Date of Judgment: Vancouver, B.C. October 31, 2012 [1] This action is brought by Barbara Hsia in her capacity as executrix of the putative will of Chester Yen. She seeks to prove the will in solemn form and, if proven, asks that it be admitted to probate. The action is opposed by Michael Chan and Christopher Chan. They are brothers and the grandsons of the Mr. Yen. They filed a caveat after Mr. Yen's death, and as a result this action was started. [2] Mr.

Yen had four daughters. His second oldest daughter, Lily, was the mother of Michael and Christopher. She was murdered in August 1972. The putative will divides Mr. Yen's estate equally between his three surviving daughters and makes no provision for Michael or Christopher. In their statement of defence, the defendants have pleaded that Mr. Yen "suffered from an insane delusion that in order to erase the pain and anguish from his mind of the murder of his daughter, he had to abandon his relationship with the children of his murdered daughter, which abandonment included their exclusion from his Will." [3] The propounder of a will must prove three things: first, the formalities of execution as required by the Wills Act, R.S.B.C. 1996, c. 489; second, that the testator knew and approved of the contents of the will; and third, that the testator had testamentary capacity when the will was signed. All three of these requirements are in issue in this case. [4] At the conclusion of the plaintiff's case, the defendants brought a no evidence motion arguing that there was no evidence on the first two issues noted above. I dismissed that motion giving oral reasons for doing so on November 18, 2011. In what follows, I will first set out the pertinent facts and then deal with the issues. In doing so, I will reiterate much of the legal analysis I dealt with in my ruling on the no evidence

motion. I do that for ease of reference and because while I concluded there was some evidence on the formalities of execution and knowledge and approval of the contents of the putative will, the issue of whether that evidence is sufficient remained extant. Facts [5] Chester Hugh Yen ("the deceased") died on February 11, 2010. He was 98 years old. His wife died in March 2001. She was 90. The Yen's had five children, four of whom survived to adulthood. Of the four that survived, the oldest was Mary Chang. She was born in February 1933. Lily was the second oldest and she was born in April 1935. Margaret Yen-Zimmerman is Mr. Yen's third daughter; she was born in July 1938. All three of these daughters were born in Shanghai. The fourth and youngest child is the plaintiff, Barbara. She was born in Hong Kong in December 1949. The Yen's fifth child was a son who was born in 1940 and died two years later. In addition to these children, Mr. Yen had a son, Stephen, who was born to a woman with whom Mr. Yen had an affair. Stephen was raised by Mr. Yen's brother and his wife. He lives in China. [6] The Yens lived in Shanghai during the 1930s. In the latter part of that decade, Mrs. Yen left Shanghai with Lily and went to Hong Kong. While they were gone the Japanese invaded Shanghai, and as a result Mrs. Yen and Lily could not return to the city. They went instead to Hong Kong where they

remained until the end of the war. Mr. Yen left Shanghai and found his way to Bombay where he remained until the end of the war. Margaret and Mary lived with Mr. Yen's brother and their half‑brother Stephen until the family reunited in the late 1940s. [7] After the war, the family settled in Hong Kong where Mr. Yen pursued a career with Cathay Pacific Airways as a sales representative. Lily met her future husband, Anthony Chan, in Hong Kong in 1953 when they were both medical students. They married in 1960 or 1961 and went to England to pursue further studies in 1962. They returned to Hong Kong briefly and in 1967 immigrated with their two sons to Canada. They settled in Vancouver. Lily qualified as a psychiatrist and Anthony Chan qualified as a surgeon. By 1972, Mr. Yen had retired from Cathay Pacific. In 1970, Mary Chang moved to the District of Columbia where she lived until 1975. In 1968, Barbara Hsia came to Vancouver to attend the University of British Columbia where she studied pharmacy. With two of their daughters in Vancouver and another in Washington, D.C., and no children in Hong Kong, the Yens decided to immigrate to Canada. Lily sponsored their immigration. They arrived in the late winter of 1972 and lived for several months with Lily and her family until they could arrange an apartment of their own. [8] In April 1972, the Yens moved into an apartment in the west

end of Vancouver. Barbara, who graduated from U.B.C. the following month, moved in with them. [9] One of Lily's patients began bothering her in 1971 or early 1972. He followed her to her home in North Vancouver. The Chans were concerned about this, so much so that they sold their house and moved to Shaughnessy. On August 14, 1972, the patient waited for Lily at her office, and when she emerged he shot her, killing her instantly. He then took his own life. I will deal with Mr. Yen's reaction to this tragedy later in these reasons. [10] In May 1973, Mr. and Mrs. Yen purchased a house on West 23rd Street and moved there with Barbara shortly after. On August 13, 1973, a day before the first anniversary of Lily's death, Mr. Yen made the putative will ("the will"). [11] The Chans had three children: the defendants, Michael and Christopher, and a daughter, Cathy. At the time of Lily's death, Michael was 9 years old, his brother was 6, and Cathy was not quite 3. The children were raised by their father in the home in Shaughnessy. Michael is now a police officer in Vancouver and Christopher works in the film industry. Sadly, Cathy committed suicide in 1982. [12] Mary Chang trained as a teacher in Hong Kong. She married in 1961 and moved with her husband to Washington, D.C., in 1970. Her husband died in 1974, and she and her four small children moved to Seattle to be closer to her

parents and siblings. She lives in the Seattle area today. Margaret Yen-Zimmermann also immigrated to North America settling first in Washington, D.C. In April 1973, she separated from her husband and together with her young children moved to Seattle. She remained there until 1976 when she moved to Germany where she resides today. [13] When Mr. Yen retired from his fulltime association with Cathay Pacific and moved to Vancouver, he was not ready to stop working entirely. He arranged a part‑time job with the company prior to moving to Vancouver. His position was that of "resident representative" for the airline which did not, at that time, have a significant presence in Vancouver. He continued to work for the airline in that capacity until 1984 when he retired completely. [14] In September 1975, Mr. and Mrs. Yen purchased a home on McBain Avenue in Vancouver. They lived there together until Mrs. Yen's death in 2001. Mr. Yen continued to live there until the end of January 2010 when he was taken to the hospital. He died in the hospital on February 11, 2010. Analysis [15] As noted above, there are three issues. I will deal with the issue of due execution and knowledge and approval of the contents of the will first and together, and then I will turn to the question of testamentary capacity. a) Due Execution and Knowledge and Approval of the Contents [16] Section 4 of the Wills Act

sets out the requirements for execution of a will. It provides in part that: 4 Subject to section 5, a will is not valid unless (a) at its end it is signed by the testator..., (b) the testator makes or acknowledges the signature in the presence of 2 or more attesting witnesses present at the same time, and (c) 2 or more of the attesting witnesses subscribe the will in the presence of the testator. [17] The impugned will is dated August 13, 1973. There are three signatures on the last page of it. The two signatures purporting to be those of witnesses to the testator's signature are legible. One reads "Frank McGinley"; the other reads "Ethel Strachan". They appear under an attestation clause which reads: SIGNED, PUBLISHED AND DECLARED by the above-named Testator, CHESTER HUGH YEN, as and for his Last Will and Testament, in the presence of us, both present at the same time, who at his request, in his presence, and in the presence of each other have hereunto subscribed our names as witnesses: [18] Mr. McGinley was a lawyer in Vancouver. He died in 2006. His signature has been proven by a certificate from the Law Society. The signature of Ethel Strachan has not been proven. Her identity is unknown. There is no evidence that she was known to the deceased or to any member of his family. [19] The third signature on the last page of the will appears beside the attestation clause. I am

satisfied it is the signature of Mr. Yen. His daughter, the plaintiff Barbara Hsia, identified it as such. Further, Mr. Yen wrote to his eldest daughter, Mary, on August 13, 1973, the day the will purports to have been signed, advising her that he had gone to a lawyer and had his will prepared. He named Frank McGinley has his lawyer and explained that he put his will in his safety deposit box at the bank. Ms. Hsia testified that she found her father's will (and her mother's) in his safety deposit box at the bank. [20] What is lacking, the defendants argue, is any evidence as to the third signature and any evidence that the subscribing witnesses were present together and actually witnessed Mr. Yen sign the document. It is this lack of evidence to which the defendants point in support of their contention that the plaintiff has not proven due execution. [21] The plaintiff argues that there are common-law presumptions applicable in these circumstances, the effect of which is to shift the burden of proof to those who challenge the will to adduce evidence that casts either the due execution of it or the knowledge and approval of its contents by the testator into doubt. In the alternative Mr. McLellan, counsel for the plaintiff, argues that s. 10 of the Wills Act should be read to apply to these circumstances. That section provides: 10 If a person who attested a will was at the time

of its execution or afterward has become incompetent as a witness to prove its execution, the will is not on that account invalid. The plaintiff's position is that it would be incongruous if a will witnessed by a living but incapacitated witness is not invalid, but a will witnessed by someone now deceased is. Because I am satisfied that the common-law presumptions are sufficient to dispose of the issue, I will not deal with this latter argument. [22] The defendants argue that while there may be presumptions which aid the plaintiff in establishing some aspects of due execution, her position amounts to layering presumption upon presumption. If that is a legitimate exercise, there would be little need for any affirmative evidence to establish the validity of testamentary instruments. [23] The common-law principles applicable in these circumstances were summarized and explained in, among other cases, Re Laxer, [1963] 1 O.R. 343; [1963] O.J. No. 659 (C.A.). In that case, Schroeder J.A. began his analysis by noting at para. 25 (cited to [1963] O.J. N. 659) that: The Courts have shown a decided tendency to lean towards an effectuation of the expressed wishes of persons if satisfied that they really are their testamentary wishes, and when a testamentary document appears to be regular on its face and apparently duly executed, the evidence as to some defect in execution must be clear,

positive and reliable [citations omitted]. At paragraph 27, he wrote that "[i]t is well settled that if a will on the face of it appears to be duly executed the presumption is that all acts have been done rightly". This presumption is a particular instance of the more general presumption or inference that Lindley L.J. explained in Harris v. Knight (1890), L.R. 15 P.D.170 (C.A.), where at pp. 179-180 he wrote: ...The maxim, "Omnia praesumuntur rite esse acta," is an expression, in a short form, of a reasonable probability, and of the propriety in point of law of acting on such probability. The maxim expresses an inference which may reasonably be drawn when an intention to do some formal act is established; when the evidence is consistent with that intention having been carried into effect in a proper way; but when the actual observance of all due formalities can only be inferred as a matter of probability. The maxim is not wanted where such observance is proved, nor has it any place where such observance is disproved. The maxim only comes into operation where there is no proof one way or the other; but where it is more probable that what was intended to be done was done as it ought to have been done to render it valid; rather than that it was done in some other manner which would defeat the intention proved to exist, and would render what is proved to have been done of no

effect... It is a presumption or inference that is "stronger or weaker according to any material facts connected with the case" (Laxer at para. 32). The underlying purpose of the presumption, in the context of proving due execution of a testamentary instrument, was explained by Schroeder J.A. at para. 33: The authorities supporting the application of the presumption favouring due execution of a testamentary instrument lay down a very sound and salutary principle, since a contrary rule would make the rights of devisees and legatees depend not only upon the honesty, but also upon the frail and slippery memory of witnesses. No man could be sure of dying testate, since the dishonesty or forgetfulness of a witness could frustrate all his precautions to comply with the requirements of the law. [24] Save to the extent that Vout v. Hay, [1995] 2 S.C.R. 876, may do so, I am not aware of any authority that questions the validity of the principles expressed in Laxer. In fact, those principles have been applied consistently in this province in cases to which I will advert in a moment. [25] It is the defendants' position that Vout v. Hay swept away the presumptions explained in Laxer. As I understand it, the argument rests on the comment by Sopinka J., who wrote for the court, at para. 26: [26] Upon proof that the will was duly executed with the requisite formalities, after having been read

over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity. [26] The defendant points to a number of cases, including De Araujo v. Neto, 2001 BCSC 935, which have applied Vout. In De Araujo, Sigurdson J. wrote at para. 53: [53] If it is proven that the will satisfied the formalities and was read over to or by the testator, who appeared to understand it, testamentary capacity and knowledge and approval of the contents is generally presumed. Suspicious circumstances, if present, tend to negate either knowledge and approval or testamentary capacity, and the burden reverts to the person seeking to prove the will. Similar statements appear in other cases. [27] I am unable to agree that Vout does away with the presumptions summarized and explained in Laxer. I reach that conclusion for several reasons. First, the case does not say that the presumptions are no longer valid. It says that "upon proof" of due execution and that the will was read over by the testator who appeared to understand it, certain consequences follow. It does not say anything about what the proof may or may not consist of. [28] Second, the issue of due execution and whether the will was read over by the deceased arose only tangentially in Vout. The witnesses to the will both testified at trial.

Although their evidence was inconsistent in some respects, they both said that they were present when the deceased signed the will. Given that evidence, there was no need to have recourse to any presumptions and, not surprisingly, they were not mentioned either at trial or in the brief endorsement by the Ontario Court of Appeal, or by the Supreme Court of Canada. As Lindley L.J. put it "[t]he maxim is not wanted where such observance is proved". [29] Third, I am not prepared to conclude that the Supreme Court of Canada cast aside long standing propositions without mentioning them or explaining why they were doing so, particularly when it was unnecessary to resolve the issue before them. [30] Next, as noted above, the presumptions have been relied on in at least three cases in this court since the judgment in Vout was handed down. Beniston Estate v. Shepherd, [1996] B.C.J. No. 2480 (S.C.) was an action brought to prove a will in solemn form. One of the issues was whether the impugned will had been signed by the deceased in the presence of two witnesses. The will, on its face, bore the signatures of two witnesses below an attestation clause in the same terms as in the matter at hand. The two witnesses testified and both denied that the document was signed by the deceased in their presence. Vickers J. rejected their evidence and found that the will had been properly executed. In

doing so, he held at para. 19: [19] Evidence of some defect in execution must be clear, positive and reliable, where a testamentary document appears to have been properly executed. The maxim Omnia praesumuntur rite esse acta applies and all things are presumed to have been rightly and duly performed: Re Laxer... He also cited with approval the decision of Dalziel v. Bradford, [1985] B.C.J. No. 2754 (S.C.), where McEachern C.J.S.C. (as he then was) wrote at para. 41: [41] Re Laxer, supra, particularly lays down the principle at p. 206 that apparent due execution is sufficient to cause the Court to presume that everything was done right. That authority also explains that the presumption of due execution is a salutary principle since a contrary rule would make the right of beneficiaries depend as much upon the honesty and reliability of witnesses as upon the language of the testamentary instrument. In addition, for some obscure reason, an attestation clause is said to be a significant factor supporting this presumption, and there is such a clause in this codicil. Thus, in the absence of any credible evidence by the witnesses to the will, indeed in the face of their evidence to the contrary, the court in Beniston Estate held the will was properly executed relying on the presumptions in Laxer. [31] In Beaudoin Estate v. Taylor, [1999] B.C.J. No. 770 (S.C.), the witnesses to a will

testified that the deceased did not sign the will in their presence. Further, they could not recall if, when they signed the will, the deceased's signature was on the document. The issue was whether the deceased had acknowledged his signature in the presence of the witnesses. At para. 11 Burnyeat J. wrote: [11] ...Where there is a regular attestation clause, it can be presumed that the will was duly witnessed by a person who knew the requirements of the Wills Act. The court will not assume that a person has signed his or her name to the attestation knowing it to be untrue... He then applied that presumption in the context of the other evidence and found that the will had been properly executed. [32] Six years later in Jung, Re Estate of Horace Lee, 2005 BCSC 1537, Burnyeat J. was faced with a somewhat different issue. He was asked to find that a will had been proven in solemn form. The witnesses to the will gave evidence that it was signed in accordance with the requirements of the Wills Act. The difficulty was that the deceased had signed in the midst of the attestation clause as opposed to where he should have signed. Burnyeat J. referred to Laxer and specifically adopted the following statement from para. 32 of that judgment: [32] Where the circumstances point to the fact that a testator intended a document to be his will and thought that he was complying with the statutory

requirements as to execution the Court will presume that everything was right, so that where there is any doubt about the recollection of the attesting witnesses, or where for any reason it cannot be relied upon, and where upon the evidence viewed in its entirety it can fairly be concluded that the will ought to be held good, the Court may say that it is satisfied that the will was duly and properly executed. Jung was appealed and Burnyeat J.'s decision was overturned but not on this point. When the matter came back for a second trial, Silverman J. relied on Laxer (2007 BCSC 1740). At paragraph 46, he cited it as support for the following proposition: When probating wills, the court proceeds on the presumption that the will was properly executed, if it appears to be properly executed when it is presented to the court. This is a rebuttable presumption that may be defeated if, after considering all the evidence and relevant circumstances, it is probable that all the formalities of execution were not met. The presumption of valid execution can be stronger or weaker depending on any material facts connected with the case... [33] The defendants point out that Vout v. Hay is not mentioned in any of these cases, and they argue that, as a result, they are of no particular assistance. Rather than conclude that Vout v. Hay was simply overlooked by all involved in these cases, I think it

more likely that it is not referred to because it is not helpful in deciding questions of due execution. [34] Finally, the underlying rationale for the presumptions remains as compelling now as it was 50 years ago when Laxer was decided or 100 years ago when Harris v. Knight was handed down. [35] In conclusion, I am satisfied that the presumptions or inferences summarized and explained in Laxer, and the cases cited therein, remain available in resolving issues of due attestation and proving knowledge of the content of testamentary instruments. [36] I turn now to the facts and the application of the law to those facts. As Lindley L.J. pointed out in Harris, the maxim omnia praesumuntur rite esse acta "expresses an inference which may reasonably be drawn when an intention to do some formal act is established; when the evidence is consistent with that intention having been carried into effect in a proper way; but when the actual observance of all due formalities can only be inferred as a matter of probability". I am satisfied that the deceased, in signing the impugned document, intended to do a formal act, namely, make his last will. The evidence that supports that inference is that he signed a document styled "Last Will and Testament" and that he did so in the presence of a lawyer who, in all likelihood, drew the document. [37] There is a second presumption which may be a

particular or specific instance of the more general maxim embodied in the Latin expression set out above. It arises from the presence of the attestation clause. It was explained in Wright v. Sanderson (1884), 9 P.D. 149: ...If the attesting witnesses were both dead, then, on proof of their handwriting, the codicil would, if there was no other evidence, be admitted to probate, not only the presumption omnia rite esse acta, but in consequence of the presumption that what was stated, in the clause immediately above the signature of the witnesses, to have been done in their presence, had in fact been so done... [38] What is lacking in the matter at hand is proof of one of the "due formalities", namely, the signature which reads "Ethel Strachan". That Ms. Strachan signed as a witness and did so in the presence of Mr. McGinley and Mr. Yen can only be inferred as a matter of probability. I am satisfied that it is open to the court to draw that inference from the proven facts. Further, there is no evidence which casts due execution into doubt; indeed, what surrounding evidence there is tends to support the due execution of the will. I am, in the result, satisfied that the will was signed in the manner required by s. 4 of the Wills Act. [39] The next issue is whether there is evidence that the testator knew and approved of the contents of the will. In Musgrove (Re), [1927] P. 264, Lord

Hanworth M.R. cited Guardhouse v. Blackburn (1866), L.R. 1 P. & D. 109, for the following propositions: ..."First, that before a paper so executed is entitled to probate, the Court must be satisfied that the testator knew and approved of the contents at the time he signed it. Secondly, that except in certain cases, where suspicion attaches to the document, the fact of the testator's execution is sufficient proof that he knew and approved the contents." In short, it may be inferred from the fact that the document was duly signed that the testator knew and approved of its contents. For the reasons set out above, I am satisfied that the impugned will was properly executed. There is no evidence on the basis of which it might be said that "suspicion attaches" to the document or to Mr. Yen's ability to understand what it was he was doing, and thus there is some evidence that he knew and approved of the contents of the will. [40] All of the presumptions noted above are just that, presumptions. Their probative force will be stronger or weaker depending on the surrounding circumstances. In the context of this case, among the myriad of material circumstances, which may make the force of the presumption stronger, is the presence of other writings by the deceased making reference to the will (Riva (Re) (1978), 3 E.T.R. 307 at 324 and 325 (Ont.Surr.Ct.)). As noted above, the deceased wrote

to his oldest daughter, Mary Chang, the same day that the impugned will is dated, namely, August 13, 1973. Mary is named in the will as an executrix should Mr. Yen survive his wife. In the letter he wrote: ...I have been waiting year after year to write my will...I finally did it today at a lawyer's office. And the original will is in my safety deposit box at the bank... He also included a detailed list of his assets, their values, and where they could be found. [41] In conclusion, based on all of the evidence and aided by the presumptions noted above, and in the absence of any evidence that calls the due execution of the will into doubt, I am satisfied that the will was duly executed and that the deceased was aware of and approved its contents. b) Testamentary Capacity [42] Ms. Hsia, as the propounder of the will has the burden of proving testamentary capacity. The test for testamentary capacity has been variously expressed. A comprehensive and frequently cited explanation of what it entails is that of Laskin J.A. (as he then was) in Schwartz (Re), [1970] 2 O.R. 61 (C.A.) at p. 79, where he wrote: ...The testator must be sufficiently clear in his understanding and memory to know, on his own, and in a general way (1) the nature and extent of his property, (2) the persons who are the natural objects of his bounty and (3) the testamentary provisions he is making; and he must,

moreover, be capable of (4) appreciating these factors in relation to each other, and (5) forming an orderly desire as to the disposition of his property... [43] In proving testamentary capacity, the propounder has the benefit of a rebuttable presumption. Sopinka J. held at para. 26 of Vout v. Hay: [26] Although the propounder of the will has the legal burden with respect to testamentary capacity, the propounder is aided by a rebuttable presumption. Upon proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity. [44] I have concluded that the will of Mr. Yen was "duly executed with the requisite formalities" and inferred that he knew and approved of its contents. Subject to the question of "suspicious circumstances", it is presumed that he had the necessary testamentary capacity. [45] The presumption of testamentary capacity is rebuttable, and as Rothstein J. pointed out in Pecore v. Pecore, 2007 SCC 17 at para. 22: [22] rebuttable presumption of law is a legal assumption that a court will make if insufficient evidence is adduced to displace the presumption. The presumption shifts the burden of persuasion to the opposing party who must rebut the presumption... [46]

To rebut this presumption the defendants must establish suspicious circumstances that tend to call into question the capacity of the testator. As Sopinka J. put it in Vout v. Hay at para. 27, the force of the presumption will be spent, or the burden it imposes will be met, by those attacking the will: adducing or pointing to some evidence which, if accepted, would tend to negative testamentary capacity. In this event, the legal burden reverts to the propounder. [47] Thus, the issue is whether there is some evidence which, if accepted, tends to call into question the capacity of Mr. Yen to make a valid will. [48] The defendants have pleaded that: 4. The mother of these Defendants, who was the daughter of the Deceased, was murdered in August 1972. This caused mental pain and anguish to the deceased.

5. These Defendants say that the Deceased suffered from an insane delusion that in order to erase the pain and anguish from his mind of the murder of his daughter, he had to abandon his relationship with the children of his murdered daughter, which abandonment included their exclusion from his Will. [49] The defendants correctly state that the first issue that arises in these circumstances is whether the evidence is such that it should "excite the suspicion of the court" to the degree necessary to spend the persuasive force of the presumption and cause the onus of proving capacity to revert to the plaintiff. The second issue is, assuming the presumption is rebutted, whether the evidence establishes on a balance of probabilities that the testator had the necessary capacity. [50] The notion of an "insane delusion" was considered by Cockburn C.J. in Banks v. Goodfellow. It has remained a part of the law of testamentary capacity since. According to Feeney's Canadian Law of Wills, 4th ed., "a delusion is a belief in a state of facts which no rational person would believe" (at para. 2.9). In Banton v. Banton (1998), 164 D.L.R. (4th) 176 (Ont.C.J.), Cullity J. adopted the following definition of "insane delusion" at para. 32: [32] "delusion is insanity where one persistently believes supposed facts (which have no real existence except in his perverted imagination) against all evidence

and probability and conducts himself however logically upon the assumption of their existence." [51] Not any insane delusion will be sufficient to support a finding of lack of testamentary capacity. The delusion must bear some rational connection to the bequests in the will. [52] On the evidence, there can be no doubt but that Mr. Yen was a rational and functioning member of society in 1973. He was working as a representative of his long-time employer, Cathay Pacific. Ms. Hsia, who was living with her parents in 1973, testified that her father was, in all respects, functioning rationally and interacting appropriately with all those that he came in contact with. He and his wife purchased a house several months before they made their wills. Ms. Chang spoke with her father by telephone at least monthly throughout the 1970s. She saw her parents on annual visits. He played chess with Ms. Chang's son during those visits. She said his memory, both short and long-term, was intact. [53] The defendants do not take issue with these conclusions. Their position is narrower. It is that Mr. Yen was unable to deal with the loss of his daughter other than to avoid everything that reminded him of her. Perhaps the most powerful reminders were her children, the defendants. They theorize that his need to eliminate them from his thoughts and his life extended to leaving them out of his will. That,

it is said, amounts to an insane delusion or at least to suspicious circumstances sufficient to rebut the presumption of capacity. [54] The defendants point to a number of matters which, they say, support their position. First, they argue that the manner in which he grieved (or did not grieve) the loss of his daughter supports their theory. Second, they say that the deceased had a close and loving relationship with them prior to their mother's death and even briefly afterwards. Over time, he withdrew from them and ultimately severed all contact with them for no reason apparent to them. Next, they say it is significant that he executed his will one day before the first anniversary of their mother's murder. Finally, Mr. Yen is reported to have said to several people that Lily's children reminded him of his daughter, and thus he chose not to see them. [55] I will deal first with the manner of Mr. Yen's grieving. The defendants argue that Mr. Yen did not speak about his daughter's death to his friends or to his surviving daughters and that he was back to his "old self" fairly shortly after his daughter's funeral. Barbara Hsia was living with her parents when her sister was killed. In fact, she was present when her father received word of the murder. She said that he did not grieve with her; in fact, he never mentioned her sister's death to her after that first night. She said that

she did not raise the subject with him. She did, however, hear him discuss the matter with her mother but never with anyone else. She thought that he tried to deal with the tragedy by not speaking about it and trying not to think about it. She said that her parents observed the Chinese festival of Ching Ming in 1973 and for many years afterwards by visiting Lily's grave. She said that she usually went with them on these visits. [56] Mary Chang was very close to both of her parents. She was their oldest child. She saw her father on the night of Lily's funeral. She said that he was sad and very quiet. She said that he did not want to discuss Lilly's death with her either that night or, with rare exceptions, at any time thereafter. She said that he did speak about it with her mother. [57] I think it likely that Mr. Yen tried not to think about Lily's death. I accept that he did not discuss it with his children but that he did discuss it with his wife. I also accept that by the following summer, that is, the summer of 1973, he was, to outwards appearances at least, back to his "old self". People react differently to tragedies. For some, it is an intensely private matter. Culture has an influence on how grief is expressed. Different generations within the same culture may express grief differently. All of these variables make it difficult to draw conclusions from, or ascribe meaning

to, the manner in which a particular person appears to react to the death of a family member. I am not prepared to conclude that Mr. Yen's reaction is suggestive of an insane delusion or some pathological denial of his daughter's death. [58] As to Mr. Yen's relationship with Lily's children following her death, the evidence establishes that it waned. It did not end abruptly, but over time it diminished to the point where it was almost non-existent. Neither Michael nor Christopher was responsible for that; they were but young children. Dr. Chan said that Mr. and Mrs. Yen visited him and the defendants three times in the first three months following Lily's death. They brought gifts. He thought the visits were strained, and when he asked Mr. Yen whether there was a problem, Mr. Yen told him it was "very difficult". He, that is, Mr. Yen, did not associate that difficulty with the death of his daughter but that is what Dr. Chan surmised. Dr. Chan began dating his second wife four or five months after Lily's death. They married in February 1973, just short of six months after Lily's death. The last contact he had with his former father-in-law was a telephone call about the time he remarried. In that telephone call, he told Mr. Yen he was remarrying and asked his feelings. Mr. Yen said that he approved provided the children would be properly cared for. [59] Peter Waitt is retired. He

was a public relations manager for Japan Airlines in Vancouver. He first met Mr. Yen in Hong Kong in 1965. Although their relationship originated in their professional endeavours, they became friends and socialized regularly until the early 1980s when Mr. Yen retired. Mr. Waitt and his wife went to Lily's funeral. He said that Mr. Yen was very sad and remained visibly so for three or four months, but thereafter he seemed to recover his natural joie de vivre. He said that Mr. Yen expressed concern that he, that is, Mr. Yen, was not seeing Lily's children as often as he would have liked. He expressed concern that his visits to their house were not welcomed. In May or June 1973, he told Mr. Waitt that Dr. Chan had remarried. Mr. Yen said that he was upset about that, as he thought it was too soon after Lily's death. Victor Chan, Anthony's brother and the defendants' uncle, said that although Mr. and Mrs. Yen initially visited the defendants at their father's house, the visits were difficult in part because of "the changing domestic circumstances". [60] Although Mr. Yen did stop visiting the defendants at their father's home, he did not stop seeing them entirely. Ms. Chang thought her parents had a good relationship with Lilly's children prior to her death. She thought that continued at least initially following her death. She and her father spoke regularly on the telephone, and in

those conversations, he told her of his visits with the defendants. Ms. Chang moved to Seattle in 1975, and thereafter she visited her parents about once a month. On several of those visits, Lilly's children were at her parents' house and they all had dinner together. [61] When Michael was a teenager, he lived for a period of time with his uncle, Victor. During that time, Michael took his uncle to visit with Mr. Yen. According to Victor, the visit was cordial and pleasant. In 1980, Michael was asked to leave his father's home. As Mary Chang put it, he was "kicked out". He stayed with his Aunt Mary in Seattle for a time and then took an apartment in Vancouver. Ms. Chang and Mr. Yen visited him in that apartment; in fact, she thought her father assisted Michael in a small way financially at that time. [62] As to the timing of the making of the will, a day short of the first anniversary of Lily's death, I am unable to take anything from that. It may have been no more than coincidence. The most likely explanation is that which Mr. Yen himself provided. In his August 13, 1973 letter to Mary he wrote: ...I have been waiting year after year to write my will...I finally did it today at a lawyer's office... [63] I am not persuaded that Mr. Yen was suffering from a delusion of the kind alleged by the defendants. I think it more likely than not that his decision to divide his estate among

his living children was based on a combination of at least two things. First, his surviving children had greater material needs than did the defendants. The defendants' father was a successful surgeon. He was living in an upscale Vancouver neighbourhood. Margaret was separated from her husband and was a single mother living in Seattle with her son. Mary had three children and was pregnant with a fourth. She was a stay-at-home mother. Ms. Hsia said her father said that he thought Mary's situation in 1973 was difficult. Ms. Hsia was living with her parents having graduated from university the year before. Second, it may well be that Mr. Yen was disappointed that the defendants' father remarried so shortly after Lily's death. He expressed that view to Mr. Waitt. The timing of the diminishment of his visits with his grandsons corresponds with the onset of Dr. Chan's relationship with his second wife. While not providing for his grandchildren because of their father's decisions might be viewed as unkind, it is not a basis for concluding he lacked testamentary capacity. [64] I am satisfied that Mr. Yen had testamentary capacity at the time he signed the will. I do not find that there were "suspicious circumstances" of the kind necessary to displace the presumption of testamentary capacity. I would, however, have reached the conclusion that Mr. Yen had the requisite capacity without

regard to the presumption and regardless of who bore the onus of proof. Further, I note the evidence of Dr. James Sheldon, the geriatric psychiatrist, who examined Mr. Yen's medical history and assumed circumstances that correspond to the evidence given by his daughters, as well as Michael Chan's examination for discovery evidence. He concluded that it was unlikely that Mr. Yen was suffering from any delusional disorder in 1973. I have reached the conclusions I have without recourse to that evidence. I am satisfied that Mr. Yen, who was a careful and deliberate man, determined how he wished to distribute his estate. His decision in that regard was not the product of or influenced by any delusion, insane or otherwise. Conclusion [65] In the result, I find that the will has been proven in solemn form. The caveat is cancelled and letters probate will be issued to the Ms. Hsia. Both parties have asked for liberty to address the issue of costs. They may do so at a time to be arranged through Supreme Court Scheduling. I will hear them by telephone and outside of regular court hours. "G.M. Barrow, J." The Honourable Mr. Justice Barrow