Canada Case Law

Wols v. Funk

Court

Supreme Court of British Columbia

Because the plaintiff was substantially successful in a wills variation claim, the defendants opposed the claims in their personal capacities as beneficiaries, and no responsive submissions were filed, the court exercised its discretion to order blended costs: tariff costs on Scale B payable personally by the defendants and the balance of the plaintiff's reasonable legal costs payable from the estate on a full indemnity basis; the earlier settlement offer did not warrant double costs and supported a blended order.

Source excerpt

• Wills variation
• Costs awards
• Offers to settle
• Litigation guardian
• Tariff costs
• Blended costs

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Peckover v. Wall

Court

British Columbia Court of Appeal

The Court of Appeal dismissed an appeal from rectification of a will, holding the judge correctly applied s. 59 of WESA and the Simpson v. Zaste test.

• Will rectification
• Wills, estates and succession act s.59
• Testamentary intention
• Solicitor error/negligence
• Simpson v. zaste test
• Will-rectification

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Wilson Estate (Re)

Court

Supreme Court of British Columbia

The court proved Joan Gwendoline Wilson’s 2021 will in solemn form, finding testamentary capacity and no undue influence, and declined to convert the petition to an action.

• Testamentary capacity
• Proof of will in solemn form
• Undue influence
• Conversion of petition to action
• Costs of probate proceedings
• Testamentary-capacity

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Baylis Estate

Court

Supreme Court of British Columbia

The court referred a will dispute to the trial list after finding bona fide issues on undue influence, testamentary capacity, and whether the will was understood and approved.

• Undue influence
• Testamentary capacity
• Rectification of wills
• Proof of will in solemn form
• Conversion to trial
• Interim administration

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Girgis v. Mansour

Court

Court of Appeal for Ontario

The application judge correctly identified an ambiguity in paragraph III(d) of the will that produced a result inconsistent with the testator's plain intention; rectification to add the phrase 'or upon the death of YVONNE NASSIF' was warranted to give effect to that intention and the Court of Appeal found no basis to interfere with that result, thus directing that the Bedford Road sale proceeds be treated as passing to Shoukry's estate as ordered by the application judge.

Source excerpt

• Will interpretation
• Rectification of wills
• Costs
• Estate administration

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Re Estate of Church

Court

Supreme Court of British Columbia

The court rectified a 2019 pour-over will so it applied only to California assets, finding the deceased did not intend to alter his British Columbia estate plan.

• Rectification of will
• Pour‑over will
• Domicile and applicable law
• Admissibility of extrinsic evidence
• Costs
• Rectification-of-will

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Hill Estate

Court

Supreme Court of Nova Scotia

On the evidence the proponent discharged the onus on a balance of probabilities: the lawyer’s contemporaneous capacity assessments and corroborating witness evidence established that the unexecuted document reflected the deceased’s fixed and final testamentary intentions; speculative assertions and absence of medical evidence did not rebut that proof, therefore the document is admissible to probate in solemn form.

Source excerpt

• Proof in solemn form
• Testamentary capacity
• Animus testandi
• Admissibility of third-party documents
• Burden of proof

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Shearer v. Hoegg Estate

Court

Supreme Court of Nova Scotia

The plain and contextual reading of clauses 7(a) and 7(b) — which expressly bequeath the deed 'to be hers absolute' — demonstrates a donative intent to grant Applicant fee simple title; clause 7(e) contains precatory language and does not convert the gift into a life estate; the will complied with formalities, the testator had testamentary capacity, and there is no evidence of undue influence, therefore the Estate must effect the transfer of the deed to the Applicant absolutely.

Source excerpt

• Will interpretation
• Testamentary capacity
• Undue influence
• Life estate vs fee simple
• Precatory language
• Probate formalities

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Chippett v. Seguin

Court

Supreme Court of British Columbia

The court upheld Donna Marie Wright’s August 15, 2022 will, found testamentary capacity, rejected undue influence, and ordered full indemnity costs from the estate.

• Testamentary capacity
• Undue influence
• Formal execution of wills
• Rebuttable presumption of knowledge and approval
• Suspicious circumstances
• Costs in estate litigation

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Walker Estate (Re)

Court

Supreme Court of British Columbia

The court found a handwritten note by Alice Elizabeth Walker was authentic and effective under WESA to revoke a codicil and revive part of her earlier will.

• Revocation of will
• Revival of will
• Testamentary capacity
• Undue influence
• Handwriting authentication
• Costs

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