In the BC case, Henderson v. Myler the BC Supreme Court dealt with a bequest. The case deals with a dispute as to how an estate should be divided as there was a will, but also a note which some thought should result in changes to the will.
The person who died was 99 and had no children. She had nephews and godchildren. She made a will in 2013 leaving money to some relatives and leaving the residue of her estate to the BC SPCA.
What lessons can be learned and some general points about bequests?
- Make sure that you have an updated will, especially if you are leaving funds to a charity. The will should be clearly drafted by a professional who really knows about wills and estates and also bequests.
- If you want to make changes to your will usually best to redo your will in its entirety – don’t use codicils or memos etc. They can make things more confusing and with memos, it may not be clear that it is a testamentary document.
- If you own real estate by the time you die the real estate may have appreciated significantly in value and the residue of the estate may be far greater. The larger the estate (and the more that some relatives feel they are not receiving a fair proportion of the estate) the more there is a likelihood that some relative will want to challenge your will.
- What is not discussed in the case is the significant legal cost of challenges to the will. That is often being borne largely by the estate and then the residual beneficiary – in this case, a charity.
- A lawyer’s notes can be important if a will is ever challenged. It is for the benefit of the charity that any will prepared, or changes to a will, are done by a legal professional who is very knowledgeable about wills and estates. This is not a time to skimp on time and paying for a lawyer. The costs of a will challenge will be hundreds of times greater than the cost of preparing a will properly.
- If you wait too long to make changes to your will you may not have the testamentary capacity to change your will.
- Another final point – if you have assets far greater than what you need in life, consider giving funds not only in your will but before you die. That way there is less in your estate to argue over. You also get to see the benefit of your funds being used during your lifetime and perhaps enjoy some recognition if you want that.
- Don’t be perturbed or reluctant to leave money to a charity by the very lengthy case. Few bequests to charities are challenged. For many middle-class people a bequest is an excellent way to make a large gift to a charity that you might not feel comfortable making during your lifetime.
We have more articles on planned giving and bequests in our planned giving directory.
Here is the text of the decision:
IN THE SUPREME COURT OF BRITISH COLUMBIA
| Citation: | Henderson v. Myler, |
| 2021 BCSC 1649 |
Date: 20210820
Docket: S185758
Registry: Vancouver
Between:
Brian Henderson, Kenneth Smith in his capacity as the Executor of the Estate of Daniel Henderson, deceased, Gina Hancock also known as Gina Bernier, and Carla Hancock also known as Carla Leversage, in their capacity as named Executrixes of the Estate of Verna Hancock, deceased, and Ron Tekano
Plaintiffs
And
Joyce Myler, Elizabeth Jones in her capacity as remaining named Executrix of the Estate of Eleena Violette Murray, deceased, Gina Hancock also known as Gina Bernier, Carla Hancock also known as Carla Leversage, Timothy Henderson, Don Murray, Constance Kennedy, Julia Hawkes, The British Columbia Society for the Prevention of Cruelty to Animals and John Basich
Defendants
Before: The Honourable Madam Justice MacNaughton
Reasons for Judgment
| Counsel for the Plaintiffs: | J. Richter A. James |
| Counsel for The British Columbia Society for the Prevention of Cruelty to Animals: | R. Lee S. Ovens |
| Place and Date of Trial/Hearing: | New Westminster, B.C.
January 25–29, February 1–2 and 5, and April 26–28, 2021 |
| Place and Date of Judgment: | New Westminster, B.C.
August 20, 2021 |
Table of Contents
ADDITIONAL UNCONTESTED FACTS BASED ON THE TRIAL EVIDENCE
THE HISTORY OF MS. MURRAY’S ESTATE PLANNING
The Circumstances of the Preparation and Execution of the 2013 Will
Ms. Murray’s Income and Other Assets
The Suspicious Circumstances Relied on by the Plaintiffs
Credibility of Ms. Deprez’ Evidence
Other Suspicious Circumstances
Conclusion on Ms. Murray’s Knowledge and Approval of the 2013 Will
THE DECLINE IN MS. MURRAY’S HEALTH
Hospitalization in December 2016
Meetings with Ms. Deprez in January and February 2017
Execution of Power of Attorney and Representation Agreement
Hospitalization in January 2017
Appointment to Change the 2013 Will
Hospitalization in March to April 2017
Ms. Myler and Ms. Crawford Visit Vancouver in May 2017
Lunch at the Breka Café and the Discussion about the Note
Formal Requirements for a Valid Will
The Court’s Curative Power under s. 58 of WESA
Presumption of Due Execution Not Applicable to the Note
CAN THE NOTE BE CURED BY S. 58 OF WESA?
Introduction
[1] Eleena Violette Murray died on October 4, 2017, at 99 years of age. Her closest relatives were a niece, Verna Hancock, and three nephews, Brian Henderson, Daniel Henderson, and Ron Tekano. Brian and Daniel Henderson were also Ms. Murray’s godsons.
[2] In these reasons, I refer to Ms. Murray’s family members by their first names to avoid confusion. In doing so, I mean no disrespect.
[3] Verna, Brian, Daniel, and Ron, or in the case of Verna and Daniel, who are now deceased, the executors of their estates, are the named plaintiffs in this action.
[4] Ms. Murray left a will dated January 25, 2013 (the “2013 Will”), prepared by Hilde Deprez, a notary public. Under the terms of the 2013 Will, the BC Society for the Prevention of Cruelty to Animals (“SPCA”) receives the remainder of the residue of Ms. Murray’s estate, after payment of certain specific gifts to certain members of Ms. Murray’s extended family. The gifts to family members, and to the BC SPCA, are all contained in provisions in the 2013 Will titled “Rest and Residue”.
[5] The 2013 Will was located after Ms. Murray’s death in a lockbox in her home. It was accompanied by a handwritten note written on a page from a yellow notepad (the “Note”), and some jewelry that is not in issue in this case.
[6] The Note purported to increase the specific amounts payable to certain of the family members named in the 2013 Will; delete gifts to other family members; add a specific gift to John Basich, one of Ms. Murray’s friends; and change the gift to the BC SPCA from the remainder of the residue, estimated to be $1.4 million, to $100,000. The specific gifts reflected in the Note did not exhaust Ms. Murray’s estate. As a result, if the Note is a valid testamentary instrument, the balance of Ms. Murray’s estate passes on an intestacy to the four plaintiffs.
[7] The plaintiffs argue that the Note was finalized by Ms. Murray, at a meeting on May 4, 2017, with Joyce Myler, her friend of 60 years and her named co-executrix, and in the presence of Kim Crawford, another good friend. Ms. Myler and Ms. Crawford did not receive anything under the 2013 Will or the Note.
[8] The issue originally pled was whether the Note is a valid testamentary document which had the effect of changing or altering the disposition of Ms. Murray’s estate under the 2013 Will.
[9] However, shortly after hearing Ms. Deprez’ trial evidence, the plaintiffs sought leave to amend their pleading to allege that Ms. Murray did not know or approve of the residual gift to the BC SPCA in her 2013 Will. In reasons cited as Henderson v. Myler, 2021 BCSC 354, I set out the three paragraphs that the plaintiffs sought to amend, referred to as the “Further Amendment”, and permitted the Further Amendment on terms. I permitted the BC SPCA to reopen their case to lead new evidence as a result of the Further Amendment.
The Issues in Dispute
[10] Based on the pleadings as they now stand, the questions to be addressed are:
- Was Ms. Murray aware of, and did she approve of, the residual bequest to the BC SPCA under the 2013 Will?
- Pursuant to s. 58 of the Wills, Estates & Succession Act, S.B.C. 2009, c. 13 [WESA], does the Note represent the fixed and final intention of Ms. Murray to change or alter her 2013 Will such that the Note is fully effective as a valid codicil or alteration to it?
- Did Ms. Murray have the requisite testamentary capacity in May 2017 to confirm the Note as a codicil altering the dispositions in the 2013 Will?
- Did Ms. Murray know, understand, and approve of the amendments to the 2013 Will made by the Note?
The Agreed Statement of Facts
[11] On January 25, 2021, at the commencement of the trial, the parties filed an agreed statement of facts. It provided as follows.
[12] Eleena Violette Murray, known to her family and friends as Lynn, was born on May 4, 1918. She did not have children and was predeceased by her husband Tom in about 2002.
[13] Ms. Murray lived in her own home at 2327 Collingwood Street (the “Collingwood Home”) in Kitsilano until March 2017, when she was 98 years old.
[14] In 2013, the British Columbia Assessment Authority assessed Ms. Murray’s Collingwood home at $1,007,900.
[15] On or about January 25, 2013, after meeting with Ms. Deprez, Ms. Murray made the 2013 Will, appointing her friends Joyce Myler and Elizabeth Jones as co-executrixes and leaving the following bequests:
- $60,000 to her niece Verna;
- $60,000 to her grandniece Gina Hancock (now Bernier);
- $60,000 to her grandniece Carla Leversage (neeand now Hancock);
- $60,000 to her grandnephew Timothy Henderson (“Tim”);
- $40,000 to her nephew Ron Tekano;
- $40,000 to her nephew Daniel Henderson;
- $40,000 to her deceased spouse’s brother, Don Murray;
- $40,000 to her deceased spouse’s niece Constance Kennedy;
- $40,000 to her deceased spouse’s niece Julie Hawks; and
- the residue to the BC SPCA.
[16] In or about December 2016, Ms. Murray developed health issues.
[17] On or about January 10, 2017, Ms. Murray signed a power of attorney and a representation agreement, before Ms. Deprez, appointing Tim and Verna as her powers of attorney and representatives.
[18] Brian moved from the Kootenays into Ms. Murray’s Collingwood Home for January, February, and March 2017.
[19] Brian’s son, Tim, who worked as a clinical nurse educator at Vancouver General Hospital (“VGH”), moved into Ms. Murray’s Collingwood Home to help take care of her.
[20] On or about April 13, 2017, Ms. Murray moved into the Haro Park Community Care facility at 1233 Haro Street in Vancouver, also known as Haro House.
[21] On May 4, 2017, Ms. Murray’s 99th birthday, Ms. Myler, Ms. Murray’s executrix and friend, and Ms. Crawford, another friend, took Ms. Murray to lunch at the Breka Bakery and Café at 812 Bute Street in Vancouver (the “Café”).
[22] At lunch, Ms. Myler discussed with Ms. Murray the changes to her 2013 Will as reflected in the Note. If a valid testamentary instrument, the Note does the following:
- Increases the gifts to Verna, Gina, Carla and Tim from $60,000 to $100,000;
- Revokes the gifts to Ron, Daniel, Don Murray, Constance Kennedy and Julie Hawks;
- Reduces the gift to the BC SPCA from the remainder of the residue to $100,000;
- Adds a gift of $40,000 to Ms. Murray’s friend John Basich; and
- Because it is silent with respect to the residue of her estate, has the effect of leaving it to pass on an intestacy in four equal shares to Brian, Daniel, Ron, and Verna, her closest living relatives. In 2017, the British Columbia Assessment Authority assessed the Collingwood Home at $1,978,700.
[23] On July 15, 2017, Ms. Murray moved from Haro House to Delta View Life Enrichment Centre (“Delta View”) at 9341 Burns Drive in Delta.
[24] On October 4, 2017, Ms. Murray died at the age of 99 ½ years old.
[25] On April 12, 2018, Verna died. Administration of her estate was granted to her daughters, Gina and Carla.
[26] On September 1, 2018, Daniel died. Administration of his estate was granted to a lawyer, Kenneth Smith.
[27] On October 11, 2019, the Supreme Court appointed Elizabeth Jones, Ms. Murray’s other executrix under the 2013 Will, administratrix during litigation of Ms. Murray’s estate.
[28] On March 28, 2020, Ms. Jones sold the Collingwood Home for $1.9 million.
[29] As at October 16, 2020, Ms. Murray’s estate lawyer Bruce Preston held approximately $72,234.25 in trust and $1,901,434.42 in a term deposit, for a total of $1,973,668.67.
[30] Ms. Murray’s estate is subject to accounting fees, legal fees, probate fees of approximately (1.4% of $1,973,668.67 = $27,631.36), and remuneration of approximately (3.5% of $1,973,668.67) = $69,078.40), for an estimated total of $125,000, leaving a net estate available for distribution of approximately $1.85 million.
The Trial Evidence
[31] At trial, on behalf of the plaintiffs, I heard evidence from Ms. Murray’s family members Brian, Tim, Gina, and Carla. I also heard evidence from Ms. Murray’s friends, Mr. Basich and Ms. Crawford. Due to her failing health, Ms. Myler had her evidence taken by deposition. Her video deposition was played at the trial and a transcript of it was marked as Ex. 6.
[32] Brian, Tim, Ms. Crawford, Ms. Myler, and Mr. Basich had previously filed affidavits in this proceeding, and they were in the record before me and were included in Ex. 1.
[33] In addition, the plaintiffs subpoenaed Craig Daniell to give evidence as a part of their case. Mr. Daniell is a lawyer who trained and practiced in South Africa. After a few years with the Ontario SPCA, he joined the BC SPCA in 2002 and has been its Chief Executive Officer since about April or May 2003.
[34] On behalf of the BC SPCA, I heard evidence from Yolanda Benoit, its Senior Manager of Wills and Estate Gifts; Ms. Deprez; and Dr. Nadeesha Fernando, a geriatric psychiatrist, who observed Ms. Murray while she was at VGH in March 2017. Dr. Fernando did not provide an expert report and was not called as an expert.
Additional Uncontested Facts Based on the Trial Evidence
[35] Based on the uncontested evidence of the witnesses who knew Ms. Murray, the following paragraphs describe Ms. Murray’s personality.
[36] Ms. Murray was clearly remarkable for her age. She was a distinct personality, a “character”, who was loved and cared for by her friends and family despite having strong opinions, being bossy, and knowing her own mind. She loved the theatre and the arts and enjoyed dressing up. Ms. Myler testified at her deposition that Ms. Murray was a good sport and game for anything. She enjoyed spending time with family and friends. Her birthdays were important celebrations. She was planning her 100th birthday when she died and had been doing so since she turned 96.
[37] Ms. Murray was fiercely independent and was not someone to tangle with. She was not afraid to disagree with people and was described as feisty. She made friends, and kept them, but could be unforgiving if someone crossed her.
[38] Ms. Murray never drove, she walked or took the bus to meet most of her needs. For a number of years, she relied on Mr. Basich to drive her to different places.
[39] Ms. Murray loved animals, wild and domesticated. She was a dog owner and welcomed her friends’ dogs into her home. For many years, and well into her nineties, each morning, she walked from her Collingwood Home to the duck pond at Jericho Beach to feed the birds, particularly the ducks, and the rabbits and squirrels. A round trip took her between one and a half hours to two hours. After she moved into Delta View, where she spent the last months of her life, Ms. Murray visited a horse that lived behind the home and fed it carrots. She asked Brian to buy a small block of salt for the horse.
The History of Ms. Murray’s Estate Planning
The 2010 Will
[40] On November 5, 2010, Ms. Murray executed a formally valid will prepared by a lawyer, Gerrit J. Te Hennepe (the “2010 Will”). After payment of the estate’s debts, expenses, taxes, and probate fees, the 2010 Will divided the residue of Ms. Murray’s estate into 14 equal parts, with a share going to each of Ron, Tim, Verna, Gina, Carla, and the BC SPCA. The other beneficiaries were extended family members of Ms. Murray’s deceased husband. Brian and Daniel were not included in the 2010 Will.
The 2013 Will
[41] Ms. Murray’s most recent, formally executed will was drafted by Ms. Deprez, and was executed on January 25, 2013 (the “2013 Will”). Ms. Deprez and her husband, Filip de Sagher, witnessed the 2013 Will. The 2013 Will provides for various monetary gifts to Ms. Murray’s extended family, and the “rest and residue” of her estate is to go to the BC SPCA.
[42] There is no issue as to Ms. Murray’s capacity in January 2013 when she executed the 2013 Will.
[43] The plaintiffs’ Further Amendment raises an issue about Ms. Murray’s knowledge and approval of the remainder of the residue going to the BC SPCA. Thus, if the Note is not cured by s. 58 of WESA, the plaintiffs argue that just the gift of residue to the BC SPCA should be set aside as Ms. Murray did not know and approve of the residue clause. I propose to deal with this issue first.
The Legal Burden
[44] The legal burden of establishing the validity of a will is on its propounder. A rebuttable presumption aids the propounder in this task. If there is proof 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 is generally presumed that the testator knew and approved of the contents and had the necessary testamentary capacity: Vout v. Hay, 1995 CanLII 105 (SCC), [1995] 2 S.C.R. 876 at para. 26.
[45] The presumption that the testator possessed the requisite knowledge, approval and capacity to execute a will in accordance with statutory formalities is rebutted when there is evidence of well-grounded suspicions, relating to one or more of the following circumstances, set out in Vout at para. 25:
- Suspicious circumstances surrounding the preparation of the will;
- Suspicious circumstances that call into question the capacity of the testator; or
- Suspicious circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud.
[46] For the doctrine of suspicious circumstances to apply, the party challenging the testamentary document must point to “some evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity”: Vout at para. 27. Once this is done, the presumption of capacity and knowledge and approval no longer applies. The propounder of the document reassumes the legal burden of establishing both approval and capacity, which necessitates that they dispel the existence of suspicious circumstances. The standard of proof is on a balance of probabilities, with the evidence examined in accordance with the gravity of the suspicion.
[47] In this case, the BC SPCA is the propounder of the 2013 Will. If the BC SPCA can prove that the 2013 Will was duly executed with the requisite formalities, after having been read over by Ms. Murray who appeared to understand it, then it will be presumed that Ms. Murray knew and approved of the contents of the 2013 Will and had the necessary testamentary capacity.
[48] Pursuant to s. 37 of WESA, the 2013 Will is in writing, signed by Ms. Murray, and signed at its end by two or more witnesses in the presence of Ms. Murray. As a result, Ms. Murray is presumed to have known and approved of the contents of the 2013 Will and to have had the necessary testamentary capacity.
[49] Absent suspicious circumstances, the plaintiffs’ claim must fail based on the presumptions. Although it could be argued that the onus is on the plaintiffs to establish Ms. Murray’s lack of knowledge and approval of the residue clause, the BC SPCA does not advance that specific argument in this case.
[50] The BC SPCA concedes that if the plaintiffs are able to establish suspicious circumstances which “raise a well grounded suspicion” that the 2013 Will does not “express the mind of the testator”, the presumption is spent. The BC SPCA would then have to provide some evidence to show that Ms. Murray knew and approved of the residue clause in her 2013 Will.
[51] The plaintiffs argue that the circumstances of the preparation and execution of the 2013 Will establish suspicious circumstances.
The Circumstances of the Preparation and Execution of the 2013 Will
Hilde Deprez’ Evidence
[52] The 2013 Will was drafted by Ms. Deprez. It was executed by Ms. Murray on January 25, 2013, and witnessed by Ms. Deprez and her husband, Filip de Sagher. As set out in the agreed facts, the 2013 Will provides monetary gifts to various members of Ms. Murray’s extended family and the remainder of the residue is to be paid to the BC SPCA. Brian was not named as a beneficiary in the 2013 Will. Tim, Brian’s son, was.
[53] Ms. Deprez and her husband came to Canada from Belgium in 1996. They were both practicing lawyers in Belgium. Ms. Deprez obtained a Master’s of Law degree in Belgium and then articled and was called to the Bar. On her arrival in Vancouver, she worked as a legal assistant/paralegal for a sole practitioner and enrolled in the University of British Columbia’s Notary Preparatory Course. After graduation, in 2001, she opened her notary practice in Kitsilano where she works with her husband, who is also a notary. She initially focused on real estate conveyancing but gradually developed a practice in wills and personal planning.
[54] Ms. Deprez met Ms. Murray on or about January 23, 2013 for the purpose of obtaining instructions regarding preparation of the 2013 Will. Ms. Murray came alone. She brought a completed checklist, which Ms. Deprez had given to her earlier. It set out her personal particulars; her intended beneficiaries; her executors; her assets and liabilities; her funeral arrangements; and the location of her 2010 Will.
[55] Ms. Murray also brought the original 2010 Will, on which she made notes of changes she proposed to make. Ms. Murray gave Ms. Deprez a copy of her previous lawyer’s cover letter, the wills notice he prepared, and his invoice. She also gave Ms. Deprez documents regarding her funeral arrangements and an information sheet about “Naming the BC SPCA in Your Will” that, presumably, she obtained when she signed the 2010 Will.
[56] On the checklist completed by Ms. Murray, regarding her assets, she indicated that she had the Collingwood Home and assets (presumably accounts) with TD Canada Trust and the Canadian Western Bank.
[57] At trial, Ms. Deprez had an independent recollection of Ms. Murray, describing her as a person that one “cannot forget”. She was clearly impressed by Ms. Murray whom she described as determined, feisty, and strong. She said she enjoyed working for and with Ms. Murray.
[58] Ms. Deprez did not recall details about her discussions with Ms. Murray in January 2013. Her complete file was produced and the full extent of her notes about the meeting consisted of a few annotations on the checklist completed by Ms. Murray and two pages of undated notes. The first page of Ms. Deprez’s notes briefly outlines Ms. Murray’s family tree. The second records that Ms. Murray has a house with clear title. Next to the information about the house, there is a note recording “+ $1,000,000”. There are four other points. Three are with respect to who is going to deal with Ms. Murray’s personal belongings, Ms. Murray’s funeral arrangements, and a power of attorney. The fourth is important to this dispute. It says “as per the bequests stated – if not enough pro-rated”. When Ms. Deprez was asked about the content of her notes, she could not specifically recall them. The notes were of little assistance to Ms. Deprez in refreshing her memory or providing independent evidence of the events recorded in them.
[59] Ms. Deprez testified that her usual practice is to make meeting notes on her computer but, when she meets with older clients, she finds that doing so is distracting, and detracts from her engagement with the client, so she engages in a conversation and makes notes immediately or shortly afterwards. In cross-examination, she agreed that the two pages of handwritten notes in her file were made while Ms. Murray was in her office on January 23, 2013.
[60] Ms. Deprez testified about her normal practice when discussing residual clauses with will makers. She would have discussed each change from the 2010 Will with Ms. Murray, including “how much was going to go to each of them”. Ms. Deprez recalled that Ms. Murray was clear in what she wanted.
[61] Ms. Deprez testified that, in contrast to the terms of the 2010 Will, Ms. Murray’s instructions for the 2013 Will were that she wanted to “rein in” the bequests left to family members, which is why Ms. Murray—contrary to Ms. Deprez’ recommendation—changed the gifts to her family to specific amounts, as opposed to shares in the residue. Ms. Deprez typically does not recommend that clients include specific gifts in their wills, due to “inflation” and what the “sum of money represents over time”; however, Ms. Murray wanted specific gifts.
[62] Ms. Deprez testified in examination-in-chief that she discussed with Ms. Murray the beneficiaries she had named in the 2010 Will and the changes Ms. Murray wished to make to the beneficiaries. She had no recollection about what Ms. Murray said with respect to those changes but said that Ms. Murray was clear in what she wanted. They discussed how much was going to go to each of the beneficiaries as reflected in the 2013 Will.
[63] Ms. Deprez testified that, in her experience, it was not uncommon for clients like Ms. Murray, who had no spouse or children, to be very charitable, sometimes leaving their entire estates to charity.
[64] Ms. Deprez recalled discussing with Ms. Murray the intended residual gift to the BC SPCA and whether it should go to more than one shelter or to a different animal welfare organization. Ms. Murray kept it as a gift solely to the BC SPCA.
[65] Ms. Deprez was absolutely certain that she discussed what it meant to leave the residue of her estate to the BC SPCA, including what it meant if the value of Ms. Murray’s property went up. Ms. Deprez testified that, although Ms. Murray was more concerned about what would happen if property values went down, both increases and decreases were part of their conversation.
[66] Ms. Deprez recalled discussing what would happen if there was “less money or no money left” in Ms. Murray’s estate, and also what would happen if there was “more money” left. Ms. Deprez testified that:
As you will appreciate, the main reason why [Ms. Murray] stepped away from her previous Will, which referred to shares, was she no longer wanted to work with shares and despite my reservation wanted to work with mainly specific gifts to family members. And so, as you will appreciate the increase and the ever changing value of property especially where we are, it’s a reality for everybody and everyone is very aware of it, right. So one was less worried about it going up because that was a reality that we had been dealing with for — for at least 10 — 10 years, I would say. My concern as the will is drafted was more with speaking to her [about] what would happen if it were to go down. But for sure both aspects were part of the conversation.
[67] In cross-examination, Ms. Deprez said that Ms. Murray was concerned about there not being enough in her estate to pay out the specific bequests to her family members. To address that concern, Ms. Deprez included the following provision in the 2013 Will, which she acknowledged was unusual:
IN THE EVENT THAT at the time of my death, my estate is not large enough to satisfy the specific bequest [sic] granted to my named beneficiaries, then I direct my Trustees to divide my estate in pro-rate [sic] shares between the afore-named family-member beneficiaries.
[68] In cross-examination, Ms. Deprez agreed that, apart from the notes that she made at the time she met with Ms. Murray, she had no independent recollection of discussing the value of Ms. Murray’s estate with her. Instead, Ms. Deprez testified as follows:
- Her practice is to discuss real estate values, given she and her clients are in Vancouver—she typically does not “focus so much on the cash” because people give cash away or use it for their care, but the house is usually the “last thing to go”. Accordingly, her practice is to “look at everything” but to “zoom in on … the value of the property”.
- She could not recall exactly what she meant by her note “+$1,000,000”, next to her note about Ms. Murray owning clear title to her home. She interpreted it as meaning either that Ms. Murray had at least $1,000,000 in other assets (in addition to the Collingwood Home), or that there was at least $1 million in Ms. Murray’s total estate, home and financial assets included.
- In cross-examination, Ms. Deprez was unable to say whether the value of Ms. Murray’s estate was $1 million or $2 million.
[69] In cross-examination, Ms. Deprez did not recall adding up the specific amounts to be paid to family members out of the residue. She agreed that if Ms. Murray’s estate was worth $1 million, after paying the specific residual gifts to family members, totalling $440,000, the remainder of the residue for the BC SPCA would have been in the neighbourhood of $560,000. If her estate was worth $2 million, the remainder of the residue to the BC SPCA would have been in the neighbourhood of $1.56 million.
[70] Ms. Deprez testified that doing the math is not how she explains “residue” to her clients because the numbers change between the date she meets with a client and the date of death. Rather, she discusses the concept of a residue in terms of the clause she calls the “rest and residue” because clients understand what is meant by the “rest” of their estate.
The Execution of the Will
[71] Two days after Ms. Murray attended at Ms. Deprez’ office, she signed the 2013 Will in Ms. Deprez’ and Mr. de Sagher’s presence.
[72] Ms. Deprez testified that while she did not have a specific recollection of Ms. Murray executing the 2013 Will, her normal practice with older clients, is to:
- meet with the client, and print out two copies of the will, placing one in front of the client, and one in front of her;
- she and the client then go over the will together, and with each significant paragraph, she explains what the paragraph means;
- she stops on the paragraphs about executorship and explains what they mean;
- she also stops on the gifts and discusses what they mean with the client; and
- she then asks the client if they are comfortable signing the document, and if they say yes, she has the will printed on wills paper, and typically calls her assistant in to be the second witness.
[73] In Ms. Murray’s case, the second witness was, Ms. Deprez’ husband, Mr. de Sagher. Ms. Deprez recalled that she asked her husband to witness the execution because at her first appointment, Ms. Murray commented on how handsome he was.
[74] At the same time, Ms. Deprez also prepared a power of attorney for Ms. Murray, naming Ms. Myler as her attorney. On the evidence, it was not clear that Ms. Myler ever signed the power of attorney. No signed copy of it was in evidence.
[75] Ms. Deprez billed Ms. Murray for her services at less than her usual rate because Ms. Murray did not want to pay more than her lawyer had charged for the 2010 Will.
Ms. Murray’s Income and Other Assets
[76] From January 2013 until her death, Ms. Murray’s monthly income was about $2,000 CAD. Because she worked in the United States, she received:
- a social security pension of about $1,000 USD. It was paid into her USD TD Account *9260;
- between $550–583 in Old Age Security. It was paid into her TD Account *1130; and
- between $405–$427 from Veterans Affairs Canada. It was also paid into her TD Account *1130.
[77] On the records, and as at January 23, 2013, Ms. Murray had a bank balance in her TD Account *9260 of $30,812.14 USD and in her TD Account *1130 of $15,625.50 CAD.
[78] As indicated on the checklist she prepared for Ms. Deprez, Ms. Murray also held GICs at the Canadian Western Bank. Records are not available for the balances as of January 2013. Balances were available for later dates as follows:
- GIC Account No. *5758 – $21,472.08 as at October 29, 2016;
- GIC Account No. *1583 – $82,081.87 as at November 12, 2016;
- GIC Account No. *9622 – $31,966.44 as at November 19, 2016; and
- GIC Account No. *8281 – $43,304.13 as at April 4, 2017.
The Suspicious Circumstances Relied on by the Plaintiffs
Credibility of Ms. Deprez’ Evidence
[79] The plaintiffs submit Ms. Deprez’ evidence is not credible. In part, they rely on Rose v. Bloomfield, 2010 BCSC 315 [Rose], in which Justice Cohen did not place great weight on the accuracy of Ms. Deprez’ recollection because it was inconsistent with evidence supporting a different version of events. In my view, there is a significant difference between not placing great weight on a witnesses’ evidence and finding them not credible. The first is not a finding that goes to the character of the witness. The second does, and might result in greater scrutiny of a witness’ evidence.
[80] The lack of weight given to Ms. Deprez’ evidence in Rose does not raise and red flags about her evidence in this case.
[81] I also did not find that Ms. Deprez’ credibility was affected because she spoke to the BC SPCA’s counsel, but did not return phone calls from the plaintiffs’ counsel. Ms. Deprez explained in cross-examination that the BC SPCA’s counsel made a formal request for her file, and it is her practice only to respond to written requests. Finally, she said that her firm’s voicemail explains that the best way to contact them during COVID was by email. There is nothing to suggest that Ms. Deprez would not have responded to plaintiffs’ counsel had he made a written request to speak to her.
[82] Overall, I found Ms. Deprez’ evidence to be credible. She responded to the questions she was asked in direct and in cross-examination carefully.
[83] Flemish was her first language and she did not work in English until she arrived in Canada. Her manner of responding, by occasionally expressing certainty by using words like “exactly”, “for sure”, “definitely”, and “obviously”, did not detract from her credibility. She was not shaken in cross-examination. At times, she appeared to be frustrated by the way the questions were formulated in cross-examination but she tried her best to respond.
[84] Finally, I accept that Ms. Deprez’ evidence was a recreation of what happened based on her recollection, her notes, the content of her file, and her usual practices. That is what I would expect with respect to events that occurred eight years before in a busy and specialized practice.
Other Suspicious Circumstances
[85] The plaintiffs relied on the fact that Ms. Deprez had no specific recollection of totalling the specific bequests to Ms. Murray’s family members in the 2013 Will and deducting that total from the then-value of her estate, to advise Ms. Murray of the amount the BC SPCA was to receive from the remainder of the residue.
[86] The plaintiffs submit that to have knowledge and approval of testamentary dispositions, it is necessary for the will-maker to be aware of the contents of the will she is executing. The will-maker must also be aware of the magnitude of the residue of her estate and appreciate the effect of the disposition of her estate. The state of mind of the testator must be analyzed as of the date the will is drawn, as that is when the testator must be aware of the magnitude of the gift of residue: Russell v. Fraser (1980), 1980 CanLII 737 (BC CA), 118 D.L.R. (3d) 733 (B.C.C.A.) at para. 8.
[87] In Halliday v. Halliday Estate, 2019 BCSC 554 at para. 178, Chief Justice Hinkson cites John Poyser’s text Capacity and Undue Influence (Toronto: Carswell, 2014) and its explanation, based on authorities, of the distinction between testamentary capacity and knowledge and approval:
[T]estamentary capacity includes the ability to make choices, whereas knowledge and approval requires no more than the ability to understand and approve the choices that have already been made.
[88] That quote was relied on by Justice Francis in Geluch v. Geluch Estate, 2019 BCSC 2203, a case relied on by the plaintiffs. In Geluch, at para. 117, Justice Francis found a number of suspicious circumstances surrounding a January 20 Will, a Declaration of Trust, and a Property Transfer, which all related to the deceased’s estate. At para. 125, Justice Francis concluded that the deceased, while capable of making choices with respect to her testamentary dispositions, did not know or approve of the choices she purportedly made. The suspicious circumstances in Geluch were set out at para. 117. They were:
- a) all wills instructions that were communicated to Mr. Hansen between January 12, 2016 and January 20, 2016 came from Carol or Ted. There is no evidence that Mr. Hansen communicated at all with Jean during the period between the execution of the January 12 Will and January 20, 2016;
- b) Hansen did not read the January 20 Will to Jean, nor did he explain it to her before she signed it. He simply gave it to her to read and sign;
- c) Hansen did not review the Property Transfer with Jean before she signed it;
- d) there is no evidence that Jean ever saw the Declaration of Trust or even knew it existed;
- e) Hansen did not ask any questions of Jean at the January 20, 2016 meeting that would assist in ascertaining her capacity;
- f) prior wills in evidence show that Jean had historically wished to benefit her husband’s nieces and nephews, to whom she was very close. Large gifts to Ted and Carol were not consistent with her prior testamentary dispositions; and
- g) the January 20 Will was made four days before Jean died, while she was in palliative care in the hospital.
[89] The facts in this case are not similar to the facts in Geluch. Here, the plaintiffs make one argument in support of suspicious circumstances—their submission that Ms. Deprez did not calculate the remaining residue to which the BC SPCA would be entitled. Nor did she explain the value of this gift to Ms. Murray.
[90] In support of their argument, the plaintiffs point out that Ms. Deprez was unable to determine, based on her notes, whether Ms. Murray’s estate was worth approximately $1 million or $2 million. In the 2010 Will, the BC SPCA was entitled to 1/14 of the total estate, whereas in the 2013 Will the gift is closer to 60 percent. The pro rata clause was unnecessary since the estate was increasing in value and there was a substantial cushion for fulfilling the specific bequests. Finally, Ms. Crawford said that Ms. Murray described the gift to the BC SPCA in the 2013 Will as “way too much”.
[91] Based on the evidence and my assessment of Ms. Deprez’ evidence, I do not agree that the plaintiffs have established that there were suspicious circumstances in this case. The BC SPCA therefore benefits from the presumptions.
[92] In any event, based on my conclusions with respect to the evidence, I find that Ms. Murray knew and approved of the term of the 2013 Will giving the remainder of the residue to the BC SPCA.
[93] In particular, in my view, the most reasonable inference to be drawn with respect to Ms. Deprez’ “+$1,000,000” note is that it reflected the value of the Collingwood Home as of that date, which was slightly more than $1,000,000. I reach that conclusion because the note is a second indented asterisk under the heading “House”, following the first indented asterisk referring to the home as being “Clear Title”.
[94] That inference is consistent with Ms. Deprez’ evidence that her practice is to focus on real estate values rather than on cash because people give cash away or use it for their care, while a person’s home is usually the last to go.
[95] That inference is also consistent with the 2013 BC Assessment value of the Collingwood home of $1,007,900. Further, in his evidence, Tim testified that, “many years ago”, Ms. Murray told him that the assessed value of her home was approximately $900,000. In his affidavit, Tim said that the conversation about the value of the home was in 2013 when Ms. Murray did the 2013 Will.
[96] Finally, Ms. Deprez was familiar with the neighbourhood real estate market because she set up her practice in the Kitsilano neighbourhood, her husband was involved in real estate conveyancing, and she lived near UBC. She agreed with the suggestion, put to her by plaintiffs’ counsel in cross-examination, that the value of the Collingwood home was “about a million dollars” at the time of the 2013 Will.
[97] Presuming that, in January 2013, Ms. Murray’s GICs were worth approximately what they were on the dates in the available Canadian Western Bank records, and based on the January 2013 TD account records, Ms. Murray’s financial assets were likely worth about $200,000 in 2013. She had regular monthly cash flow to meet her expenses while continuing to live in her home.
[98] That Ms. Murray had cash assets of about $200,000 is consistent with Mr. Basich’s recollection of what Ms. Murray told him about her assets after her husband died in about 2002. In his affidavit, he said Ms. Murray told him that she was financially “fine” as she had “the house, a pension, and about $200,000.”
[99] It is clear that when she met with Ms. Deprez, Ms. Murray was aware of the assets in her estate. Although she did not assign values to them in the checklist, she accurately listed the Collingwood Home and the financial institutions at which she had accounts.
[100] Ms. Deprez’ handwritten notes evidence that she and Ms. Murray discussed the size of Ms. Murray’s estate at their meeting. Extrinsic evidence supports that the Ms. Deprez’ note of “+$1 million” accurately reflected the size of Ms. Murray’s estate in January 2013, before payment of estate fees and taxes.
[101] The plaintiffs do not challenge that Ms. Murray knew and approved of the round numbers of the nine cash gifts she gave to her extended family members. Ms. Deprez testified that she purposefully grouped the gifts into their two amounts, for ease of calculation: the beneficiaries of the $60,000 gifts were listed together, as were those receiving $40,000 gifts. Based on her standard practice, once the specific cash bequests would be calculated to equal $440,000, the “rest and residue” clause follows, which she would calculate. Based on an estate of about $1.2 million, the gross residue would be about $760,000 although taxes and fees would be payable. Totalling the specific gifts would have been relatively straight forward.
[102] The pro rata clause, and Ms. Deprez’ note, indicate that she and Ms. Murray discussed what was to happen if the value of her estate went down. It is reasonable to infer that they also discussed what was to happen if the value of Ms. Murray’s estate went up, which would increase the gift to the BC SPCA.
[103] While Ms. Deprez did not have an independent recollection of adding up the specific gifts in the 2013 Will and calculating the residue, she agreed it is her standard practice to do so, and it is part of her “job” to add up the numbers and discuss them with a testator. Given Ms. Deprez’ standard practice, and the form of the 2013 Will, I find it is more probable than not that she calculated the amount of the residue with Ms. Murray.
[104] As described above, Ms. Deprez’ normal practice is to review the contents of the will with clients and discuss the impact of the dispositions in the will. She would have discussed with Ms. Murray the effect on the distribution of her estate in the situation where the value of her estate went up as well as down.
[105] Ms. Deprez also testified that she uses the phrase “rest and residue” in the wills she drafts to help clarify for her clients what residue means, a term that many of them do not understand.
[106] I do not agree that Ms. Deprez’ lack of specific recall establishes suspicious circumstances. This is particularly true where Ms. Deprez repeatedly said she was sure she would have discussed it with Ms. Murray, that it was part of her professional role, and that it was part of her normal practice, and where the discussion took place over eight years ago.
[107] Testators are not required to be accountants, or to have an accountant’s knowledge and understanding of their estate: indeed, if such a meticulous standard were required, “many testators would be unable to meet it.” An approximate value of one’s estate is required, and a testator is not required to know its exact make-up. After reviewing the common law in BC, the Court in Laszlo v. Lawton, 2013 BCSC 305, summarized what was necessary as follows:
[249] The principles to be taken from the authorities are that testators are not expected to know the exact composition of their estate assets and their value with the metronomic precision of an accountant. An appreciation of the general nature of the estate assets and an understanding of their extent, meaning their approximate value or the approximate value of the estate at large, expressed either in terms of dollars or quantitatively (eg. “a lot of money” or “a substantial fortune”), will suffice.
[108] At the time of signing the 2013 Will, Ms. Murray knew the residue of her estate would largely be impacted by the value of her major asset, the Collingwood Home, and that its value was subject to housing market forces.
[109] In Maddess v. Racz, 2008 BCSC 1550, aff’d (sub nom. Maddess v. Estate of Johanne Gidney) 2009 BCCA 539, leave to appeal ref’d (sub nom. Gidney Estate v. Maddess) [2010] S.C.C.A. No. 72, the testator executed a will in 1993, about 11 years before she died. At the date of her death, her estate was worth about $8 million. Her will provided that the residue of her estate was to be divided among her three children, although one of her children was also gifted the deceased’s interest in commercial real estate. The other two children sought to declare the will as void: at paras. 2–4.
[110] The lawyer who drafted and witnessed the will testified about his standard practice, which was to put a copy of the will in front of the client and go through each paragraph with them explaining the meaning. He testified that he was sure he followed this practice in this instance. He believed he read out the paragraphs regarding the distribution of the estate. Given the few, but valuable assets in the deceased’s estate, the residue was primarily comprised of her shares in a corporation and a property. The lawyer’s notes demonstrated the deceased understood the residue would consist of the shares and the property. The court held this was sufficient knowledge of the residue for the purpose of the deceased’s 1993 will: at paras. 138, 308.
[111] In Russell, the testator gifted the residue of her estate to the manager of a credit union at which she kept an account. She asked his advice on many matters, including drafting her will, and made him executor. She told him she was unsure what to do with the residue of the estate. He “partly facetiously” suggested she gift him the rest of the estate, and she agreed to do so. On her death, the residuary bequest was approximately $130,000 out of approximately $200,000. There was no evidence that the solicitor who drafted the will or anyone else had discussed the value of the residue with the testator. It was insufficient to show she was alert and aware of the amounts in her bank accounts. She may have approved of the clause in the abstract, but the trial judge found she did not appreciate the effect of her gift. The Court of Appeal upheld the decision to delete the residuary clause.
[112] In this case, given the correlation between the checklist Ms. Murray prepared before her meeting with Ms. Deprez, and the assets she had at her death, Ms. Murray’s assets likely remained about the same from the date of the 2013 Will until her death. Ms. Murray knew that her estate consisted of the Collingwood Home and her financial assets at TD Canada Trust and Canadian Western Bank.
[113] Based on what Ms. Murray said was the value of the Collingwood Home in 2013, as recorded in Ms. Deprez’ notes (+$1,000,000), it is likely that she was aware of what the residue of her estate would consist of at the time of the 2013 Will, once the cash bequests were made to her extended family.
[114] This case differs from Russell, where there was no evidence the testator knew of or appreciated the magnitude of the residual bequest. Ms. Deprez’ notes show that she discussed the approximate value of Ms. Murray’s estate with her. Ms. Murray discussed her estimate of the value of the home with Tim around 2013 and again in 2017 with Brian. Similar to Maddess, the evidence indicates that Ms. Murray was aware of the assets making up the estate and of their approximate value, and thus appreciated and approved of the magnitude of the residual bequest.
Conclusion on Ms. Murray’s Knowledge and Approval of the 2013 Will
[115] I found Ms. Deprez’ evidence to be credible. She was doing her best to recall what had happened more than eight years before. I accept that she followed her usual practice with respect to Ms. Murray. Based on my assessment of the surrounding facts and Ms. Deprez’ evidence, Ms. Murray knew the size of her estate in January 2013, knew that the specific gifts to her extended family amounted to $440,000, and knew and approved of the “rest” of her approximately $1.2 million estate being gifted to the BC SPCA.
The Decline in Ms. Murray’s Health
[116] Ms. Murray’s health began to decline in late November and December 2016.
[117] Brian testified that in about November and December 2016, Ms. Murray told him things on the phone and he did not understand what she was talking about. She was confused about which aisle she had left her shopping cart in at the grocery store. At some point in the same timeframe, Brian said Ms. Murray also left a pot burning on the stove.
Hospitalization in December 2016
[118] In mid-December 2016, Ms. Murray was not answering the phone, and Tim, who is a nurse, went to check on her. He found her on the kitchen floor, delirious. She was taken to VGH where Tim was told that she had suffered a stroke and had a urinary tract infection.
[119] Ms. Murray was at VGH from December 17–28, 2016. When she was released, Tim testified that she was close to her normal self. She was weak physically but had improved from when she was admitted. Tim took the last part of December off work and moved into the Collingwood Home to care for Ms. Murray. When Tim returned to work in January 2017, he continued to reside in the Collingwood Home. His father, Brian, moved from the Kootenays into the Collingwood Home to care for Ms. Murray when Tim was at work. When he arrived, Brian found cheques that Ms. Murray had not cashed and bills she had not paid.
[120] Brian was concerned about Ms. Murray. She fell a couple of times and left the house late at night, once because she believed she had a doctor’s appointment and once to get wine. Brian put a latch on the door to the Collingwood Home but removed it for safety reasons when asked to do so by a social worker.
[121] Brian also described incidents of Ms. Murray being confused. Once, she came into the kitchen looking for a paring knife. He asked her if she wanted to pare an apple, and she responded that she wanted it to feed her dog, Topaz. Topaz had been dead for about 20 years. On another occasion, Ms. Murray went to eat something from the fridge that was mouldy. Her attention to her personal hygiene declined, and she was occasionally incontinent.
Meetings with Ms. Deprez in January and February 2017
Execution of Power of Attorney and Representation Agreement
[122] On about January 10, 2017, Ms. Murray attended at Ms. Deprez’ office for the purpose of signing a power of attorney and a representation agreement. She was accompanied by Brian, Tim, and Verna.
[123] Brian testified that Gina and Carla were also there, but they stayed in the waiting room while the others met with Ms. Deprez. Brian’s evidence in that regard is probably incorrect. Carla and Gina testified that they did not attend.
[124] Ms. Deprez’ notes do not include that Brian was present at the meeting. I accept that Brian went to Ms. Deprez’ office but find that he likely waited in the waiting room as he was not a signatory to either the power of attorney or the representation agreement, and he testified that he was not present when the representation agreement was signed.
[125] Ms. Deprez made file notes with respect to the visit. In them she described Ms. Murray as “just as feisty and as determined” as when she met her before. She noted that Ms. Murray was a “very determined lady with strong will and optimistic outlook” who did not want to depend on anyone. Ms. Deprez notes that Ms. Murray realized that having Ms. Myler as her attorney, someone she trusted with her life, did not make practical sense as she needed someone who was “here”. Ms. Deprez ended her note, summarizing her impression that Ms. Murray was in great spirts but “obviously (maybe for the first time) realized that she may not live to be 100 years as she said”.
[126] Ms. Murray appointed Tim and Verna as her attorneys and representatives.
[127] Tim said that, during their meeting, Ms. Murray told Ms. Deprez that she wanted to change her will and was told she needed another appointment. Brian recalled the same conversation and that Ms. Murray brought her will, in an envelope in her purse, to the meeting.
[128] Ms. Deprez did not independently recall Ms. Murray saying that she wanted to change her will at the meeting, and she does not record that in her notes. Her standard practice is to inform a client that a separate appointment is required to change a will. I accept on the weight of the evidence that Ms. Murray did express her wish to change the 2013 Will in January 2017.
Hospitalization in January 2017
[129] On or about January 20, 2017, Tim observed that in conversation, Ms. Murray was non-responsive for “a minute or so”. Her eyes did not focus on him. He was concerned and drove her to VGH. Ms. Murray had another non-responsive episode in emergency when she was being seen by a neurology resident. Ms. Murray was admitted. Tim was told that she had a seizure.
[130] Ms. Murray was hospitalized until January 25, 2017. Tim described Ms. Murray as appearing sedated, perhaps due to the Dilantin she was prescribed. She recognized Tim each time he went to see her and knew where she was. Tim testified that he had no concern about Ms. Murray’s cognition.
[131] On her discharge, Brian and Tim decided to move Ms. Murray’s bed to the main floor dining room of the Collingwood Home so that she would not have to use the stairs.
Appointment to Change the 2013 Will
[132] Brian said in his affidavit that shortly after Ms. Murray returned from VGH, she said words to the effect of “I have got to go in and make changes to my will.”
[133] Ms. Deprez was away from her office from February 6–16, 2017. Ms. Deprez testified that her office received a call from Tim who said that Ms. Murray wished to change her 2013 Will. A note made by a member of Ms. Deprez’ staff recorded:
Call from Tim Henderson [phone number omitted]
Informing that Eleena Murray wants to change the Will
Value of the property has changed significantly and more money should now go to family instead of charity.
Appointment for FEB 22 at 10:30 at Eleena’s house ►2327 Collingwood Street, Vancouver.
[134] Ms. Deprez testified that Tim called her office more than once in early 2017 to book an appointment to change Ms. Murray’s 2013 Will. On one occasion, she returned Tim’s call and spoke to him.
[135] There is no evidence to support that Ms. Murray made the appointment with Ms. Deprez.
[136] On the date and time of the appointment, Ms. Deprez attended at the Collingwood Home. She testified that she was met by two men at the gate. She believed they were Brian and Tim whom she met earlier when Ms. Murray signed the power of attorney and representation agreement.
[137] Ms. Deprez went into the Collingwood Home to speak to Ms. Murray. Ms. Deprez recalled that she introduced herself to Ms. Murray, but Ms. Murray “did not … hesitate one moment to basically say that she had nothing to say, and there was nothing for Ms. Deprez to do there”. Ms. Deprez recalled that Ms. Murray then “apologized for wasting [her] time”. Ms. Deprez thanked her and left.
[138] Ms. Deprez’ recollection of events accords with notes she made of the meeting, dated the same day. She recorded that she went to the Collingwood Home and was “met at the gate by Tim and his dad.” When she went into the house, Ms. Murray said “I know why you are here and I have no business for you”. She described that Ms. Murray was in “no mood to change anything or discuss anything”, and that Ms. Murray apologized to her for “wasting” her time. Ms. Deprez recorded Ms. Murray’s “resolute approach as she remembered” from her meeting with Ms. Murray when doing the 2013 Will and the Power of Attorney.
[139] Ms. Deprez recorded that, as she left, she told the two men, who were still outside on the sidewalk, that Ms. Murray did not have anything to say. They commented that Ms. Murray was stubborn but that the 2013 Will made “no sense” given the value of the property. She said she told them that it was “totally up to [Ms. Murray] and if she does not want to make changes [then] she does not want to.”
[140] During cross-examination, Tim denied calling Ms. Deprez’ office to make an appointment for Ms. Murray and denied saying the value of the property had changed significantly and more money should be going to the family instead of to a charity.
[141] In his direct evidence at trial, referring to his earlier affidavit, Brian testified that when Ms. Deprez arrived at the Collingwood Home to meet with Ms. Murray, he left to buy a loaf of bread because he wanted to give Ms. Murray and Ms. Deprez their space. He said that Ms. Deprez left before he returned. When he returned, and came into the house, Ms. Murray told him that she had sent the notary away because she had plenty of time to make changes to her 2013 Will. Brian also said in cross-examination that Tim was at work when Ms. Deprez arrived.
[142] At his examination for discovery on November 27, 2020, Brian said that he did not ask Ms. Murray about the meeting with the notary and she did not talk about what happened. At question 357, he was asked, “So she didn’t talk about what had happened?” He responded, “No. I – I had no business – that didn’t interest me at all. What she wanted to do was up to her.” He then said that he could not recall whether Ms. Murray, or the notary, told him that Ms. Murray said she had plenty of time to make changes to her will.
[143] At trial, Brian said that he now recalled that it was Ms. Murray who said she had plenty of time to change the 2013 Will. He denied that Tim was there and that either of them told Ms. Deprez that Ms. Murray was stubborn and that the will did not make sense given the value of the Collingwood Home.
[144] In cross-examination, Tim said that he was working when Ms. Deprez arrived at the Collingwood Home to meet with Ms. Murray. When Ms. Deprez’ evidence was put to him, he denied any conversation with Ms. Deprez at the gate. His work record for February 22, 2017, was not in evidence before me.
[145] In all the circumstances, on a balance of probabilities, and although the staff member who recorded the telephone call to Ms. Deprez’ office did not testify, I find Tim most likely made the call to set up the appointment with Ms. Murray. As I have said, there was no evidence that Ms. Murray did so. It is not probable that the person recording the telephone call, and setting up the appointment, inaccurately recorded the caller and the reason for the call.
[146] I also find that it is most likely that Brian and Tim were at the Collingwood Home when Ms. Deprez arrived. Ms. Deprez had met both men before. They were both living with Ms. Murray at the Collingwood Home. Their presence would be consistent with their stated concern about leaving Ms. Murray alone in the home. It is a common sense inference that the only two men who would be there to greet Ms. Deprez were Brian and Tim. Finally, Ms. Deprez had no reason to create an inaccurate note, date it, and put it in her file recording the events of February 22, 2017.
[147] On all the evidence, I accept Ms. Deprez’ evidence over Brian’s and Tim’s about how the appointment was arranged and what happened on February 22, 2017.
[148] In doing so, I do not suggest that Brian and Tim were doing anything wrong or trying to orchestrate a change to the 2013 Will in their favour. I suspect that they were reluctant to give evidence which they thought might cast them in a negative light.
[149] In any event, not much turns on a finding in that regard because, on all the evidence it is clear that Ms. Murray did not instruct Ms. Deprez to change her 2013 Will.
[150] Ms. Deprez’ notes also cast doubt on Tim and Brian’s assertions that, in 2017, they were unaware of the content of the 2013 Will. Brian testified that in about February 2017, around the time of the scheduled meeting with Ms. Deprez, he discussed with Ms. Murray her need for homecare assistance. They discussed a house near the Collingwood Home that just sold for $1 million over asking. He testified that Ms. Murray said that she “figured she could get $2.5 million” out of the Collingwood Home.
[151] Under the terms of 2013 Will, any increase in the value of the Collingwood Home benefited the BC SPCA, as the recipient of the residue remaining after the specific gifts to Ms. Murray’s family, which did not change regardless of an increase in the home’s value.
[152] Further, in cross-examination, Ms. Crawford stated that Tim and Brian were “frustrated” that Ms. Murray had not spoken to Ms. Deprez about her will on February 22, 2017. Ms. Crawford was an entirely credible witness with nothing to gain from testifying.
Hospitalization in March to April 2017
[153] The concerns about Ms. Murray’s health continued despite her releases from VGH in January and February 2017.
[154] Tim observed that during this time, Ms. Murray was having difficulty managing her hygiene because of bladder and bowel incontinence. She did not have daily showers or baths but told him she had done so. He described her as becoming more confused and agitated as the day went on.
[155] After Brian returned to the Kootenays in March 2017, Tim tried to arrange for care workers to be in the Collingwood Home while he was at work. Ms. Murray became angry and would not let them into the home. Tim believed Ms. Murray would not be safe if left alone.
[156] As she was rejecting third-party care workers, on March 12, 2017, Tim and Verna tricked Ms. Murray into going to VGH on the basis that doctors needed to look at her heart. There was nothing wrong with her heart, but they did not think she would go voluntarily.
[157] Ms. Murray was hospitalized until April 13, 2017. Tim visited her each morning and at lunch. When he came in the morning, she was often asleep, but when she wakened, she knew him and that she was in the hospital. Ms. Murray continued to believe that the doctors were examining her heart. Tim testified that he observed Ms. Murray’s confusion increasing as the day went on. He said that if he visited after he got off work, between 5 and 7 p.m., Ms. Murray was agitated.
[158] During this hospital stay, Tim was told that Ms. Murray had been diagnosed with vascular dementia.
[159] Dr. Fernando provided non-opinion evidence about her observations of Ms. Murray during her March–April hospital stay at VGH. She did not provide an expert report. She had no independent recollection of Ms. Murray and relied on her contemporaneous notes. I have given no weight to the few occasions when Dr. Fernando slipped into giving opinion evidence.
[160] Dr. Fernando first met Ms. Murray on March 13, 2017. Dr. Fernando recorded that Ms. Murray had a bilateral frontal stroke, and that the family reported that they were beginning to notice more significant cognitive and functional decline, including “sundowning”, which she explained is increased confusion over the course of a day.
[161] Dr. Fernando met and observed Ms. Murray on March 15, 17, and 22, 2017. On March 22, 2017, Dr. Fernando recorded that Ms. Murray continued to present as “irritable” and reported to Dr. Fernando that her family had concerns about her returning home because of their “own interest”, alluding to “inheritance”. Of course, that statement is hearsay. It is not proof that Ms. Murray’s family was, in fact, concerned about their own interests or were pressuring her with respect to an inheritance. There is no allegation of undue influence in this case. However, the fact that Ms. Murray made the comments that Dr. Fernando recorded is some evidence of her capacity to understand her circumstances. I give them very little weight.
[162] On March 22, 2017, Dr. Fernando also observed that Ms. Murray was exhibiting repetitive thought form. Dr. Fernando planned to complete cognitive testing the following day.
[163] Cognitive testing was performed on March 23, 2017. Dr. Fernando administered a Montreal Cognitive Assessment (“MoCA”) and a Mini-Mental State Exam (“MMSE”). Both are commonly-used screening tests: the MoCA tests for whether a person is developing mild cognitive impairment; the MMSE tests for dementia.
[164] Ms. Murray scored 13 out of 25 on the MoCA and 19 out of 28 on the MMSE. Both tests are normally scored out of 30, but Ms. Murray’s vision issues meant that she did not complete the parts of the test that require vision. Dr. Fernando said a “normal” score on the MMSE is 26/30. Dr. Fernando also noted that Ms. Murray did not recall her previous day’s conversation with Dr. Fernando.
[165] On March 23, 2017, Dr. Fernando recorded that Ms. Murray was suffering from vascular dementia.
[166] On April 3, 2017, Dr. Fernando wrote a Personal Capacity Assessment for Ms. Murray. Dr. Fernando’s notes indicate that Ms. Murray:
- a)could not describe what her medications were;
- b)had poor judgment and limited comprehension of concerns at home;
- c)had very limited insight into her functional decline and a need for support;
- d)had retrieval deficits;
- e)had executive dysfunction which was likely secondary to underlying cognitive dysfunction; and
- f) that due to underlying major neurocognitive disorder (vascular), she was at a higher risk of decline if not supported.
Move to Haro House
[167] On her release from VGH, on about April 13, 2017, Ms. Murray moved into Haro House, a long-term care facility.
[168] The family members who visited Ms. Murray in Haro House said that she was miserable: Gina, Carla, and Verna called the facility “Horror House”. Gina described Haro House as dirty, and said that residents were often left sitting in the hallways with dirty diapers. Residents would wander into Ms. Murray’s room. Carla testified that Ms. Murray seemed very unhappy in Haro House, she just wanted to be at home.
[169] Tim observed that Ms. Murray was not “quite herself” while in Haro House. She was unhappy there. After she attempted to leave, she was placed in a dementia locked unit, and she had no one to talk to as the other residents were not able to converse and staff were too busy to talk to her. Tim testified that, physically, Ms. Murray required a walker and needed support in bathing, dressing, and self-care. Mentally, her cognition fluctuated. She often regressed and said she wanted to go back to where she was before, the United States. When she was back to herself, she would still have spunk and was “with it”. While her long-term memory seemed intact, Tim observed that her short-term memory was not good. She had no difficulty recognizing her family.
Ms. Myler and Ms. Crawford Visit Vancouver in May 2017
[170] In early May 2017, Joyce Myler and Kim Crawford visited Ms. Murray from Spokane, Washington. They came to celebrate Ms. Murray’s 99th birthday. Ms. Myler had known Ms. Murray for about 60 years and was one of the named executors in the 2013 Will. Ms. Crawford had known Ms. Murray for about ten years. In the ten years before Ms. Murray’s death, Ms. Myler and Ms. Crawford visited Ms. Murray in Vancouver at least twice a year; in May for Ms. Murray’s birthday, and again in the fall.
[171] Ms. Myler and Ms. Crawford knew of Ms. Murray’s recent health issues, and about her recent admission to VGH because Tim kept Ms. Myler aware of his great-aunt’s condition.
[172] Before their trip, and because of difficulties Ms. Crawford had recently experienced with respect to her mother’s estate, she suggested that Ms. Myler, as co-executor, review Ms. Murray’s will to ensure that she understood Ms. Murray’s wishes. Ms. Myler agreed.
[173] Ms. Myler and Ms. Crawford stayed at the Collingwood Home during their visit. They went to see Ms. Murray every day after they arrived.
[174] Ms. Myler and Ms. Crawford were both retired registered nurses. For the last one or two years of Ms. Murray’s life, and during her visit in the first week of May 2017, Ms. Myler observed that Ms. Murray’s brain began “slipping down a little bit”, and a few of her comments were a “little off”. Ms. Myler observed that Ms. Murray was “struggling to cover up her slipping” and was a “little bit more distant”. Over time, Ms. Myler noticed that these “slips” got progressively worse, and that Ms. Murray was more forgetful and less assertive than she had been. Ms. Murray would tire very easily and doze off.
[175] Particularly in May 2017, while Ms. Murray was at Haro House, Ms. Myler deposed that her impression was that Ms. Murray was not as sharp as she normally was. As an example, she said that she and Ms. Crawford took Ms. Murray for a car ride past the Collingwood Home. Ms. Myler thought it odd that Ms. Murray did not mention her home or express a desire to go inside.
[176] In Ms. Myler’s affidavit, she said she asked Tim where Ms. Murray kept her will and he told her it was in a lockbox at the Collingwood Home. Ms. Crawford said that Tim left the key in the lockbox.
[177] In Tim’s affidavit, he said that he knew Ms. Murray kept her will in a locked lockbox under the staircase and, latterly, under a desk in the living room of the Collingwood Home. He said that he was not certain if the lockbox was always locked but, when home care workers were in the house, Ms. Murray kept the key to the lockbox around her neck and Ms. Murray told him that it made her feel safer to have the key with her. Tim’s evidence is that there were two keys to the lockbox: one around Ms. Murray’s neck, and one kept at the Collingwood Home with other keys.
[178] Ms. Myler and Ms. Crawford arrived at the Collingwood Home on about May 1 or 2, 2017. Ms. Myler retrieved the 2013 Will from the lockbox and found the Note. A copy of the note is reproduced below:
[179] Ms. Myler noticed the differences between the content of the Note and the terms of the 2013 Will. She wrote down the gifts in the will on a separate piece of paper to discuss them with Ms. Murray. Ms. Myler said in her deposition, and Ms. Crawford testified, that there was another note in the kitchen, with similar notations on it; however, Ms. Crawford believed that the note was thrown out.
[180] There is no dispute on the evidence that the Note was primarily in Ms. Murray’s handwriting.
[181] In her affidavit, Ms. Myler said when she took the Note out of the lockbox, it did not have black lines on it crossing off certain names.
Lunch at the Breka Café and the Discussion about the Note
[182] On Ms. Murray’s 99th birthday, May 4, 2017, Ms. Myler and Ms. Crawford drove to Haro House and visited Ms. Murray for a short time in her room. Ms. Crawford testified that Ms. Murray was delighted to see them and keen to go out with them. In her affidavit, Ms. Myler said that she told Ms. Murray that she wanted to have a conversation about her will, to make sure everything was settled. Ms. Murray agreed. They took her to the Café.
[183] There is some confusion in the evidence about whether Ms. Myler brought the Note with her to the Café. In her affidavit, Ms. Myler said that she took the Note with her, together with the notes she made about the content of the 2013 Will. She left the 2013 Will at the Collingwood Home because it was an original.
[184] At her deposition, Ms. Myler said that she left the Note in the lockbox with the 2013 Will and believed that she made notes at the lunch with Ms. Murray and, after she returned to the Collingwood Home, she made changes to the Note to reflect their discussion. She testified that she was probably treating the Note as an original will and that she did not bring it with her. She did not remember clearly.
[185] The questions about the meeting at the Café were near the end of a four-hour video deposition, and Ms. Myler was visibly tired on the video. She said so.
[186] Ms. Myler was 81 and she was deposed due to concerns about her health and memory. I conclude that Ms. Myler’s affidavit, sworn 18 months before the deposition, and closer in time to the meeting at the Café meeting, is more likely to be accurate.
[187] Ms. Crawford testified that Ms. Myler brought the Note to the meeting. I accept on the weight of the evidence that Ms. Myler had the Note with her.
[188] As Ms. Murray had trouble hearing, and had vision issues, Ms. Crawford sat between Ms. Myler and Ms. Murray to clarify any issues.
[189] Ms. Myler said in her affidavit that she spent 20–30 minutes with Ms. Murray, going through her notes of the names and the amounts from the 2013 Will, checking them against the Note. She went through each of Verna, Gina, Carla, Tim, Dan, Ron, Don, Connie, Julia, Sandy, the BC SPCA, and John. Ms. Murray told her to either leave it as she had written it in the Note, or take it out. For Verna, Gina, Carla, Tim, the BC SPCA, and John, Ms. Murray told her to leave it as she had written it in the Note. For Dan, Ron, Don, Connie, Julia, and Sandy, she told her to take them out.
[190] Ms. Crawford testified that once the three friends were settled on the patio, Ms. Myler began to go down the names on the Note. She posed the names to Ms. Murray, with the respective monetary amounts, and said words to the effect of, “your will says Verna gets $60,000 but your Note says $100,000. What do you want to do?” For each of the first four names on the list, Verna, Carla, Gina, and Tim, Ms. Murray said to increase the gift from $60,000 to $100,000.
[191] The next name on the Note is Dan Henderson, Ms. Murray’s nephew, now deceased. When Ms. Myler read out Dan’s name and the $40,000 gift in the 2013 Will, Ms. Murray said to take him out, and Ms. Myler crossed off his name. At her deposition, Ms. Myler’s recollection was that Ms. Murray did not want Dan to get anything as he and Ms. Murray had not been in touch for years.
[192] The next name on the Note is Ron Tekano, Ms. Murray’s nephew and one of the plaintiffs. Brian and Ms. Crawford testified that Ms. Murray was not fond of Ron and that they fell out because Ms. Murray mistakenly believed that he had stolen some of her jewelry. Ms. Murray apologized when she learned she was mistaken, but their relationship did not recover. When Ms. Myler read out Ron’s name and the amount, Ms. Murray said to take him out, and Ms. Myler crossed off his name. Ms. Myler confirmed this at her deposition. She said that Ms. Murray did not want to leave Ron anything. This is consistent with Tim’s affidavit evidence, that over Ms. Murray’s last couple of years, she told Tim that she did not want Ron to “receive anything”.
[193] When Ms. Myler read the name of Ms. Murray’s friend John Basich to her and the amount of $40,000, Ms. Murray told her to leave it at $40,000.
[194] In Ms. Crawford’s testimony, she described Ms. Myler’s discussion with Ms. Murray over the residue of the estate. Ms. Myler discussed with Ms. Murray that even after increasing the gifts to her family members, and adding the gift to Mr. Basich, there was still going to be a lot of money remaining. Ms. Crawford believed that Ms. Myler told Ms. Murray that the money remaining would be in excess of a million dollars, and that the way the 2013 Will was written, it would go to the BC SPCA. Ms. Murray responded that it was “way too much.” Ms. Myler then asked if Ms. Murray wanted the BC SPCA on there and, if she did, how much she felt was appropriate. Ms. Murray responded that she could see $100,000, the same amount as her close family members, but no more than that.
[195] It is not clear on the Note whether the amount of the gift to the BC SPCA was originally recorded by Ms. Murray as $60,000 and increased to $100,000 as was done with Verna, Gina, Carla, and Tim. Based on Ms. Crawford’s evidence, Ms. Myler wrote in $100,000.
[196] After speaking about the Note, Ms. Murray was tired and ready to go back to Haro House to watch television and have a nap. Ms. Myler and Ms. Crawford dropped her off and got her settled. In her affidavit, Ms. Myler said that after they returned Ms. Murray to Haro House, she again asked Ms. Murray if she was sure she wanted to leave the BC SPCA “all that money”. She did not recall Ms. Murray responding. Ms. Crawford recalled that Ms. Myler went through the Note with Ms. Murray once more and Ms. Murray agreed that it was correct, including the amount that the BC SPCA was to receive.
[197] Ms. Myler and Ms. Crawford returned to the Collingwood Home. Ms. Myler put the Note back into the lockbox where the original 2013 Will remained. Ms. Myler and Ms. Crawford did not discuss the Note with Ms. Murray again on their visit.
[198] At Ms. Myler’s deposition, she said that she did not ask Ms. Murray if there was anyone else she wanted to add to the Note. The beneficiaries discussed at the Café were guided solely by the names already on the Note. Ms. Crawford wondered why Ms. Murray did not leave funds to the Vancouver Opera or to the Playhouse Theatre at Granville Island, as Ms. Murray had discussed with others in the past, but did not bring this up with Ms. Murray.
[199] Ms. Myler and Ms. Crawford both said that Ms. Myler did not read all of the names on the Note to Ms. Murray. Ms. Myler said in her deposition that she did not know who crossed off some of the other names on the Note.
[200] The following names and matters were not discussed:
- a)Certain names were already crossed off on the Note, including Brandy and Robert Trent, and were not read out to Ms. Murray.
- b) Crawford did not recall Ms. Myler reading out the names Don Murray, Constance Kennedy, or Julie Hawks. In Ms. Myler’s affidavit, she says that she read those names out.
- c) Myler did not recall reading out the names of Carla’s sons “Austin” and “Jarrod”. Their names appear beside a name which is unclear, but might read “Sandy” or “Lindy”, and is crossed off. In her affidavit, Ms. Myler said that she assumed that Ms. Murray crossed off the name when she prepared the Note. In her deposition, Ms. Myler said she did not know if she crossed the name off but said she did not talk to Ms. Murray about Austin and Jarrod because she did not think she knew who they were at the time.
There is no monetary amount beside Austin’s or Jarrod’s names on the Note. In Tim’s affidavit, he said that Ms. Murray had expressed to him that she wanted Carla’s sons and stepdaughter to receiver $5,000 each from her estate.
- d)The words “Animal Shelter” also appear on the Note, beneath the “BC SPCA”. “Animal Shelter” is not crossed off. It is not clear whether the words “Animal Shelter” refer to the BC SPCA or to some other animal shelter. Ms. Murray knew of at least one other animal shelter. Mr. Basich said in his affidavit that Ms. Murray asked him to drive her, and an injured duck, to a wildlife facility in Langley. Ms. Myler said she did not remember reading out the “Animal Shelter” to Ms. Murray because she believed it referred to the BC SPCA.
- e)The name Brandy was also on the Note. Ms. Myler said in her affidavit that Brandy was a mailperson who knew Ms. Murray. Ms. Myler said she did not cross off her name. She assumed Ms. Murray did so. Ms. Myler did not remember reading out Brandy’s name or Ms. Murray saying anything about her. In her deposition, Ms. Myler said that she didn’t discuss Brandy with Ms. Murray because her name was crossed off.
- f) The name Robert Trent, the ex-husband of one of Ms. Murray’s sisters, was also crossed off. In her affidavit, Ms. Myler said that the writing and the crossing off was in black ink. Ms. Myler said she assumed it was crossed off by Ms. Murray. Ms. Myler did not remember reading Mr. Trent’s name to Ms. Murray and did not remember her saying anything about him. In her deposition. Ms. Myler said she did not know who crossed off his name.
[201] Both Ms. Myler’s and Ms. Crawford’s evidence is that they did not discuss with Ms. Murray what was to be done with the remainder of her estate, which Ms. Myler told her would likely be over $1 million, after payment of the amounts in the Note. In her affidavit, Ms. Myler said that when she finished going through her notes of the will and the Note, she considered her questions answered and finalized and she returned the Note with the changes to the lockbox. She said that Ms. Murray was always a very decisive person, to the point of being prickly or even rude at times. She was decisive and lucid during their meeting at the Café, and Ms. Myler did not have any concern about Ms. Murray’s understanding of what they were doing—finalizing the dispositions in her 2013 Will. In her deposition, Ms. Myler said that she thought that what was left in the estate would be equally divided among those already named in the Note. She said that to the best of her memory, she never discussed with Ms. Murray what would happen to the rest of her estate.
[202] Ms. Crawford testified that at the end of their visit to the Café, they all understood there was “more work to be done”, given the remaining funds in Ms. Murray’s estate which were not addressed in the Note. Ms. Crawford testified that while at the Café, she believed they discussed that Ms. Murray needed to go to “the lawyer”.
[203] I accept that they did so because of the specifics of Ms. Crawford’s recollection. She testified that, because May 4 was a Thursday, and Ms. Murray’s birthday celebration was planned for Sunday, they figured they did not have time to make an appointment with a lawyer. It was unlikely a lawyer would be open for business on a Saturday or Sunday, and Ms. Murray and Ms. Crawford were leaving on Monday. They agreed they would deal with a lawyer when they came back to Vancouver in the fall.
[204] At the time, Ms. Crawford said that Ms. Murray was convinced she would live to see 100 years of age and talked about the party she would have. Gina testified that Ms. Murray had been making plans for her 100th birthday since she turned 96.
[205] Tim said in his affidavit that after Ms. Myler and Ms. Crawford arrived in May 2017, Ms. Myler read him Ms. Murray’s 2013 Will over the phone and that this was the first time he learned of the contents. He said the 2013 Will did not reflect what Ms. Murray had often discussed with him. In particular, Brian was not mentioned in it, and Tim did not receive the Collingwood Home or the residue of her estate, as she told him he would.
[206] Ms. Crawford was surprised that Dan was mentioned in the Note but Brian was not, but she did not ask Ms. Murray why Brian had been left off the Note. She said she had heard Ms. Murray mention Brian but not Dan.
[207] Ms. Crawford testified that she thought Ms. Murray felt that Tim did a lot more for her that Brian did. She did not recall Ms. Murray saying to her, or in conversations with others, that she was going to leave Tim the Collingwood Home or the rest of her estate.
[208] After Ms. Myler spoke to Ms. Murray at the Café, Ms. Myler showed Tim the Note and said Ms. Murray had updated her 2013 Will.
[209] Tim said the Note was closer to what Ms. Murray expressed to him over many years but did not perfectly reflect it. It did not leave money to the arts, the ducks at Jericho Pond, or the residue to him. There is no evidence that Tim spoke to Ms. Murray about the inconsistency or took any steps to revisit the issue of her estate with her.
[210] Ms. Crawford acknowledged that she thought Ms. Murray leaving the BC SPCA the residue was “too much”. Ms. Myler asked Ms. Murray at least twice if she was “sure she wanted to leave the BC SPCA all that money”.
Move to Delta View
[211] On July 15, 2017, Ms. Murray moved from Haro House to the Delta View Life Enrichment Centre, which was close to Verna’s home and with which Verna, Gina, and Carla were familiar.
[212] Ms. Murray did not live to see her 100th birthday. She died on October 4, 2017. She never visited a lawyer to change her 2013 Will.
[213] Following Ms. Murray’s death, Verna died on April 12, 2018. The administration of her estate is being carried out by her daughters Gina and Carla. Dan died on September 1, 2018. The administration of his estate is being carried out by Kenneth Smith, a lawyer.
Problems with the Note
[214] The Note is not dated, and there was no evidence on which I could find when it was prepared. Ms. Myler did not ask Ms. Murray when she wrote the Note. It may have been prepared at any time after the 2013 Will was finalized. It must have been prepared sometime before March 12, 2017, since Ms. Murray had not lived in the Collingwood Home since that date, and Ms. Myler and Ms. Crawford found it in Ms. Murray’s lockbox on May 4, 2017.
[215] Tim began living with Ms. Murray after her hospitalization in mid-December 2016. He did not say, in his affidavit or his evidence, that he had seen Ms. Murray write the Note or that he was aware of it. Brian moved into the Collingwood Home sometime in January and stayed until March 2017. He, too, did not say, in his affidavit or his evidence, that he had seen Ms. Murray write the Note or that he was aware of it.
[216] There is no evidence to suggest Ms. Murray referred to the Note when she told Ms. Deprez she wished to change the 2013 Will at their January 10, 2017, meeting. Ms. Deprez’ notes from the February 22, 2017, home visit to purportedly discuss changing the 2013 Will also do not mention the Note.
[217] The Note is untitled, unsigned, and not witnessed.
[218] The Note appears to have markings on it made by different people as they are in different ink. At least half of the names on it were in Ms. Murray’s handwriting. It appears likely that Ms. Murray wrote all of the names, although Ms. Myler’s affidavit says that she completed Dan Henderson’s surname. The Note originally read “Dan H”. It is not clear who crossed out some of the names on the Note. Ms. Myler thought the Note had one line through the names which were crossed off when she first saw it and that she added other lines as she discussed the names with Ms. Murray. Some names were crossed off in blue ink, which may have been done by Ms. Murray, although this was not clarified with Ms. Murray at the Café meeting, and Ms. Myler said she crossed off the names on the Note in black ink.
[219] It was also not clear who increased the amount of the gifts from the amounts in the 2013 Will. Both Ms. Myler and Ms. Crawford testified that the original monetary amounts may have been written by Ms. Murray and the changes also made by her, or that the changes were made by Ms. Myler at Ms. Murray’s direction.
[220] It is also not clear who made the other markings on the Note. Ms. Myler’s affidavit was clearer than her deposition evidence.
[221] Ms. Myler did not ask Ms. Murray why Brian had been left off the Note. Brian, Tim, and Ms. Crawford all testified that, on occasion, Ms. Murray confused Brian and his brother Dan. Ms. Crawford agreed in cross-examination that she never personally observed that confusion; she heard about it from Tim. Ms. Myler said in her deposition that Ms. Murray often called Brian, Daniel.
[222] Brian testified that Dan was “estranged” from the family and he did not believe Ms. Murray was close to Dan. Ms. Crawford testified that she found it “real questionable” that Dan was written down and not Brian. Nonetheless, Ms. Murray appeared to know who Dan was when she executed the 2013 Will, as in the checklist she provided to Ms. Deprez, she accurately recorded that he resided in Lac La Hache.
[223] Ms. Murray named the BC SPCA in both her 2010 and 2013 Wills. In 2010, Ms. Murray treated the BC SPCA on equal footing with her family. In 2013, according to Ms. Deprez’ evidence, Ms. Murray opted to “rein in” the specific gifts to her family and leave the BC SPCA the residue of her estate. Even in the Note, Ms. Murray treated the BC SPCA on the same footing as the most favoured members of her family. She mentioned to Ms. Myler that she was leaving funds to the BC SPCA from her estate. Ms. Murray donated to the BC SPCA from 1986 to 2000.
[224] From the evidence of her family and friends, Ms. Murray made various comments during the last ten years of her life about her estate, not all of which were borne out in the 2013 Will or the Note.
[225] Brian and Tim testified that Ms. Murray said she wished to leave $5,000 each to Carla’s sons, Austin and Jarrod, and mentioned giving funds to the Vancouver Opera, the Playhouse Theatre at Granville Island, and the Queen Elizabeth Theatre. Ms. Crawford was surprised that Ms. Murray left no money for arts organizations. She did not allocate funds to any arts organizations in the 2013 Will or the Note.
[226] According to Tim, in 50 to 100 conversations he had with Ms. Murray over seven to ten years, she told him that she would leave him whatever was left in her estate and/or the Collingwood Home. Neither was left to him in the 2013 Will or in the Note. Ms. Myler testified that Ms. Murray made a comment to her that Tim wanted the Collingwood Home once she passed, but that it was “not going to happen.” Tim also said that Ms. Murray was consistent in saying that Brian would receive “something financial” in her will. He did not receive anything in either the 2013 Will or the Note.
Legal Framework
Formal Requirements for a Valid Will
[227] The parties agree the Note did not meet the formal requirements of s. 37 of WESA. It was not signed at its end by Ms. Murray, and not witnessed by any witnesses. Thus, it is not a valid testamentary instrument.
[228] To establish that the Note is fully effective as a valid will or codicil, despite not meeting the formal requirements, the plaintiffs must succeed in curing the Note under s. 58 of WESA, which provides:
Court order curing deficiencies
58 (1) In this section, “record” includes data that
(a) is recorded or stored electronically,
(b) can be read by a person, and
(c) is capable of reproduction in a visible form.
(2) On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents
(a) the testamentary intentions of a deceased person,
(b) the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or
(c) the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.
(3) Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made
(a) as the will or part of the will of the deceased person,
(b) as a revocation, alteration or revival of a will of the deceased person, or
(c) as the testamentary intention of the deceased person.
[229] In their submissions, the plaintiffs describe the Note as a codicil to the 2013 Will altering some of its terms. They do not suggest that it is covered by s. 54 of WESA as an alteration to a will.
[230] The Note is a completely separate document from the 2013 Will. There is no reference in the Note to the earlier will. The gifts and the beneficiaries differ from those in the 2013 Will. It is also not an alteration to the face of the 2013 Will. As I understand the plaintiffs’ position, they wish the Note to be considered as a codicil to the 2013 Will, changing some of the gifts in it, not as an entirely new will.
The Court’s Curative Power under s. 58 of WESA
[231] Section 58 is a curative provision, conferring broad discretion on the court to relieve against the consequences of non-compliance with strict testamentary formalities otherwise required by WESA in order to find that a record, document or writing, or a marking on a will or document, represents the testamentary intentions of the deceased. In Hadley Estate (Re), 2017 BCCA 311 at para. 34, the Court of Appeal describes s. 58 as “remedial in nature”.
[232] The focus is on whether the document represents the testamentary intentions of the deceased.
[233] In Hadley, the Court of Appeal said that s. 58 is similar to a curative provision in Manitoba. It cited and relied on the leading appellate authority from Manitoba, George v. Daily (1997), 1997 CanLII 17825 (MB CA), 143 D.L.R. (4th) 273 (Man. C.A.).
[234] In George at para. 35, the court confirmed that testamentary intention meant more than an expression of how a person would like their property to be disposed of after death and the key question is whether it records a “deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death” at the material time. Such a finding is intensely context and fact specific.
[235] BC cases, and cases from other jurisdictions with similar curative provisions (Manitoba, New Zealand, and Australia), show the context and fact-specific nature of the analysis.
[236] In George, the court set out the following principles:
- The standard of proof on an application under the curative provision is proof on a balance of probabilities (para. 20).
- The greater the departure from the requirements of formal validity, the harder it may be for a court to be satisfied that the document represents the deceased’s testamentary intention (para. 19).
- The requirements for formal validity of a will serve several functions, including:
- an evidentiary function by providing the court with reliable and permanent evidence of testamentary intention and the terms of the will; and
- a cautionary function by impressing upon the testator the solemnity, finality, and importance of his actions in making his “last will and testament (at paras. 21–26).
- The evidentiary and cautionary functions are particularly relevant to the determination of whether or not a writing or document embodies the testamentary intentions of a deceased (para. 22).
- Not every expression made by a person, whether orally or in writing, concerning the disposition of his or her property on death embodies his or her testamentary intentions (para. 62).
[237] In Estate of Young, 2015 BCSC 182 at para. 35, Justice Dickson (as she then was), applying George, said that on an application under s. 58 of WESA:
[35] … The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death. A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a will, by its nature, is revocable until the death of its maker. Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.
[238] At para. 36 of Estate of Young, citing Manitoba cases, Justice Dickson set out a list of factors relevant to the determination of whether a document, that does not otherwise comply with the formal requirements of WESA, expresses the deceased’s testamentary intention. The list is non-exhaustive and includes the deceased’s handwriting, the deceased’s signature or witness’ signatures, a revocation of previous wills, funeral arrangements, specific bequests, and the title of the document.
[239] Based on the applicable provisions of s. 58(2)(b), in this case the question is whether the, “Note … represents the intention of Ms. Murray to … change … a will or testamentary disposition”. Reframed slightly, does the Note represent Ms. Murray’s fixed and final intention to change the 2013 Will? The relevant intention is the intention to change a will.
Presumption of Due Execution Not Applicable to the Note
[240] Where it appears that a testamentary document has been properly executed, there is an evidentiary presumption that the substantial requirements have also been complied with, including knowledge and approval of the contents, and testamentary capacity. In the case of a formally valid will, the evidentiary burden is initially on the party challenging the will to establish lack of knowledge and approval or lack of capacity: Kaye et al. v. Chapman et al., 2000 BCSC 1195 at para. 55.
[241] As the Note does not meet the formal requirements of a will, the plaintiffs do not benefit from the presumption of testamentary capacity or knowledge and approval. The BC SPCA argues that there were suspicious circumstances at the time the Note was made. It is unnecessary to address these arguments since the plaintiffs conceded that the onus is on them to prove that Ms. Murray had testamentary capacity and knowledge and approval of the content of the Note.
Testamentary Capacity
[242] The BC SPCA submits that in May 2017, Ms. Murray lacked the requisite capacity to execute the Note or revoke her 2013 Will. It submits that testamentary capacity is a legal construct, based on the principle that in order to make a valid will, a testator must have a “baseline level of mental acuity” in order to appreciate the “judicially delineated components of the nature and effect of the testamentary act”: Laszlo at para. 185.
[243] Determining whether a testator has testamentary capacity is a highly individualized and fact-specific inquiry. The analysis distinguishes between capacity as a medical concept or diagnosis, and as a legal construct. Testamentary capacity concerns the latter, not the former.
[244] The essential requirements of testamentary capacity are well settled. The testator must have a “baseline level of mental acuity” sufficient to appreciate and comprehend the nature and effect of the essential elements of a testamentary act. The elements include: (1) the nature and extent of [their] property; (2) the persons who are the natural objects of [their] bounty; (3) the testamentary provisions [they] are making; (4) the appreciation of these factors in relation to each other; and (5) forming an orderly desire as to the disposition of [their] property: Justice Laskin (dissenting on other grounds) in Schwartz v. Schwartz (1970), 1970 CanLII 32 (ON CA), 10 D.L.R. (3d) 15 (Ont. C.A.) at 32, aff’d 1971 CanLII 17 (SCC), [1972] S.C.R. 150, setting out a modern restatement of Chief Justice Cockburn’s decision in Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 (Eng. Q.B.).
[245] A testator must have capacity at two points in time. First, when they give their will instructions, and second, when the will is executed: Laszlo at para. 189, citing Parker v. Felgate (1883), L.R. 8 P.D. 171 (Eng. P.D.A.) and Brownhill Estate, Re (1986), 72 N.S.R. (2d) 181 (N.S. Prob. Ct.).
[246] Schwartz was relied on in Laszlo where the court said at paras. 191–192, 194:
[191] To lack testamentary capacity does not mean that the testator must be in a perpetual state of substandard competence. Seemingly rational persons may be without it, while seemingly compromised persons may possess it. A testatrix’s cognitive and psychological state is amorphous and seldom static. It may change and fluctuate slightly or wildly, such that at times she is not of sound mind, while at other times she is perfectly lucid. Accordingly, a will made by a compromised testatrix executed during a lucid interval may still be valid.
[192] Implicit and explicit in the jurisprudence is an acknowledgement of the complexity and subtleties of diminished cognitive functioning and the way in which we perceive, present to and interact with the world around us. For example, although it is recognized that dementia can impair a testator’s mental powers such that he is not capable of making a will, a diagnosis of dementia, standing alone, does not automatically correspond to testamentary incapacity … Similarly, a person who is judicially declared incapable of managing his or her affairs pursuant to adult guardianship legislation or suffers a chronic psychotic illness such as schizophrenia may still have the capacity to make a valid will …
…
[194] It is well-settled that a testator’s ability to provide rational responses to questions or follow a learned pattern or habit is not conclusive of capacity. The reasons of Mr. Justice Rand writing for the majority of the Supreme Court of Canada in the important decision of Leger v. Poirier, 1944 CanLII 1 (SCC), [1944] S.C.R. 152 (S.C.C.), at 161, remain instructive of the point:
But there is no doubt whatever that we may have testamentary incapacity accompanied by a deceptive ability to answer questions of ordinary and usual matters: that is, the mind may be incapable of carrying apprehension beyond a limited range of familiar and suggested topics. A “disposing mind and memory” is one able to comprehend, of its own initiative and volition, the essential elements of will-making, property, objects, just claims to consideration, revocation of existing dispositions, and the like …
[Emphasis added, internal citations omitted].
[247] Because testamentary capacity is a legal construct and not a medical one, medical evidence—while important and relevant to determining capacity—is not essential or conclusive. This is consistent with cases on testamentary capacity, which recognize—particularly with the elderly—that a testator’s cognitive and psychological state is “amorphous and seldom static”: Laszlo at paras. 189, 191.
[248] While dementia can impair a testator’s mental powers to the extent they may be unable to make a will, a diagnosis of dementia—standing alone—does not automatically negate testamentary capacity. Similarly, being judicially declared as incapable of managing one’s affairs pursuant to adult guardianship legislation does not, in itself, negate capacity: Laszlo at paras. 191–192.
[249] The testamentary capacity analysis also involves the evidence of lay witnesses, and a court may accord greater weight to the lay evidence than to the medical evidence, reject the medical evidence altogether, or even reach a conclusion that conflicts with the medical evidence: Laszlo at paras. 198–199.
[250] The only medical evidence in this case is Dr. Fernando’s notes which indicate that in April 2017, one month prior to the meeting at the Café, Ms. Murray was not capable of managing her own affairs and had been diagnosed with vascular dementia. Dr. Fernando recorded that Ms. Murray had limited insight into her cognitive decline.
[251] Dr. Fernando agreed in cross-examination that a variety of factors may affect cognition, including a urinary tract infection; being put on a new medication such as Dilantin, if not previously taken regularly; alcohol withdrawal; being in new surroundings; and a doctor’s personal rapport with the patient.
[252] Dr. Fernando was also taken to Ms. Murray’s MMSE done at Haro House on June 26, 2017, where her score improved from 19/28 at VGH to 23/30. She agreed that this was an improvement and that large changes, while not impossible, are unusual.
[253] Most of the available evidence as to Ms. Murray’s capacity comes from the observations of lay witnesses including Ms. Myler, Ms. Crawford, and Ms. Murray’s caregivers, Tim and Brian. Assessing their evidence requires considering its credibility and reliability. Credibility involves an assessment of the trustworthiness of a witness’ testimony based upon the veracity or sincerity of a witness and the accuracy of the evidence that the witness provides.
[254] The validity of a witness’ testimony depends on whether their evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at that time: Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.) at 357.
[255] In Bradshaw v. Stenner, 2010 BCSC 1398, aff’d 2012 BCCA 296, Justice Dillon adopted a three-step approach in which the court first considers the testimony of a witness on a “stand alone” basis followed by an analysis of whether the story is inherently believable. If the testimony survives the first part of the test, the second step is to evaluate the testimony based upon its consistency with other witnesses and with documentary evidence. Lastly, the court determines “which version of events is the most consistent with the ‘preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions’”: at para. 187.
[256] At para. 186 of Bradshaw, Justice Dillon set out a non-exhaustive list of the factors to be considered in assessing a witness’ evidence:
- the capacity and opportunity of the witness to observe the events at issue;
- his or her ability to remember those events;
- the ability of the witness to resist being influenced by his or her interest in recalling those events;
- the internal and external consistency of the witness’ evidence;
- whether the witness’ evidence harmonizes with or is contradicted by other evidence, particularly independent or undisputed evidence;
- whether his or her evidence seems unreasonable, improbable or unlikely, bearing in mind the probabilities affecting the case; and
- the witness’ demeanor, meaning the way he or she presents while testifying.
[257] The testimony of non-party disinterested witnesses may provide a “reliable yardstick for comparison”: Bradshaw at para. 187. In this case, Ms. Myler and Ms. Crawford are disinterested witnesses as they do not benefit under the will.
[258] Ms. Crawford’s evidence was not seriously challenged in cross-examination.
[259] Ms. Myler gave her evidence by way of an affidavit and by a taped video deposition. At the time of her deposition, her memory and recall of events were poor, raising concerns about its reliability. While I have determined that her affidavit evidence is more likely to be accurate, it was not the subject of cross-examination.
[260] The plaintiffs suggest that I should give Gina and Carla’s evidence considerable weight because of their personal experience with their father’s dementia over twelve years. Their father suffered from Pick’s Disease, a kind of dementia. Absent expert evidence on the similarities between dementia caused by Pick’s Disease and vascular dementia or dementia related to aging, I cannot find that Gina and Carla’s experience with their father gave them any additional insight.
[261] Both Gina and Carla had limited opportunities to observe Ms. Murray’s capacity. Gina saw Ms. Murray two or three times between October and December 2016, one or two times after Ms. Murray was in hospital, and a further two to four times at Haro House. Carla visited Ms. Murray in the hospital a few times, though she was unable to recall specifically how many, and three times at Haro House.
[262] All of Brian, Tim, Gina, and Carla have a direct or indirect interest in the outcome of this proceeding. As a result, in the absence of corroborating evidence, I treat their evidence about Ms. Murray’s capacity with some caution.
[263] Ms. Crawford described Ms. Murray as being “totally with it, you know, very lucid” on May 4, 2017, at the Café. Ms. Crawford did not think Ms. Murray was aware of how much money was “wrapped up” in the Collingwood Home or how much was going to be left over for the BC SPCA in accordance with the 2013 Will. When Ms. Myler told her that it was going to be a lot of money, in excess of a million dollars, Ms. Crawford said that Ms. Murray said that it was “way too much”. Ms. Myler asked Ms. Murray whether she wanted the BC SPCA to remain as a beneficiary and if so, how much she wished to give them. Ms. Murray responded that she could see $100,000 like she was “giving the other people” but no more than that. Ms. Crawford testified that Ms. Murray was definite in her answer.
[264] Brian provided affidavit evidence and testified. He testified about his decision to move into the Collingwood Home to live with Tim and Ms. Murray between January and March 2017. He said he was concerned about Ms. Murray’s well-being after her stroke and an incident involving leaving a pot on the stove. He denied that he was concerned about her metal capacity and said his concern was focused on her physical health and that she might hurt herself when falling.
[265] Brian also gave evidence about Ms. Murray wandering around at night because she believed she had doctor’s appointment or was going out to get some wine. He was concerned enough about her doing so that he arranged to have a latch put on her door.
[266] Tim described Ms. Murray as not being quite herself when she was in Haro House. He noted she had some fluctuations where she would regress back to the past and then 20 minutes later she would be back to her normal self and with “spunk still there”. He described her short-term memory as not good but her long term memory as intact.
[267] Gina and Carla testified that they had no concerns about Ms. Murray’s cognitive ability in the last few years of her life.
[268] Ms. Murray was 99 years old at the May 4, 2017, meeting at the Café and had been demonstrating signs of cognitive impairment since about December 2016. Ms. Myler and Ms. Crawford did not ask Ms. Murray any questions to determine her capacity. The entire conversation surrounding the Note was led by Ms. Myler, and it was not a general discussion of what Ms. Murray wished to do with her estate but was based on the content of the Note itself.
[269] During the discussion at the Café, Ms. Murray did not volunteer any additional names of potential beneficiaries beyond those listed in the Note. While Ms. Murray answered Ms. Myler’s questions as posed, pursuant to Laszlo, the ability to provide rational responses to questions is not conclusive of capacity. A “disposing mind and memory” is one able to comprehend, of its own initiative and volition, the essential elements of will-making.
[270] The BC SPCA points to the following facts in support of their argument that Ms. Murray did not have testamentary capacity in May 2017. They submit Ms. Murray did not bring up the commonly discussed objects of her planning in the conversation at the Café, including the $5,000 gifts to each of Jarrod and Austin, gifts to the Vancouver Opera or the Granville Island Playhouse, or gifts to an animal shelter other than the SPCA. She did not bring up a gift to Tim of the Collingwood Home, a gift to Brian, or discuss the residue of her estate.
[271] The BC SPCA submits that Ms. Crawford may have influenced or confused Ms. Murray, perhaps unintentionally, when Ms. Murray became tired toward the end of the lunch. Her tendency towards fatigue over the course of a day and health issues over the past five or six months made her vulnerable to influence. Ms. Crawford thought the amount left to the BC SPCA was too much. Ms. Myler repeatedly asked whether Ms. Murray was “sure” she wanted to leave “all” that money to the BC SPCA, which the BC SPCA submits may have influenced Ms. Murray.
[272] Additionally, Ms. Murray was 99 years old, had been hospitalized and had moved into Haro House, then to Delta View, and had suffered a stroke, seizure activity, and been diagnosed with vascular dementia. Dr. Fernando observed that Ms. Murray was irritable, and exhibiting signs of paranoia and repetitive thought form. Dr. Fernando also observed that Ms. Murray had poor judgment, very limited insight into her functional decline, retrieval deficits, and executive dysfunction. The BC SPCA submits these are all signs that she lacked capacity.
[273] Gina and Carla gave evidence that they had no concerns about Ms. Murray’s capacity. The BC SPCA submits little weight should be placed on their evidence, since other family and friends who had more consistent contact with her noticed instances of decline. Ms. Myler said Ms. Murray was attempting to hide her slipping cognition, she would tire easily, doze off, and was not as sharp as she normally was. Tim observed that Ms. Murray’s cognitive fluctuations were becoming more frequent while at Haro House.
[274] Ms. Murray’s diagnosis of vascular dementia does not conclusively determine whether she had capacity at the time of the Note. Her moments of confusion and “sundowning”, or tendency to become confused over the course of the day, do not undermine the unbiased and clear evidence of her capacity from Ms. Crawford and Ms. Myler. One would expect some lapse of acuity and tiredness from a person of ailing health at that age, but those lapses are not indicative of a lack of capacity. Nor is her failure to bring up all the planning objectives she had discussed in the past, since the Note indicates she considered many of the same beneficiaries she had considered in the past. It is not the type of testamentary document that is so far removed from the testator’s previous wills or codicils that it brings capacity into question. The facts of this case are not similar to those in Laszlo, where evidence indicated the testator suffered from paranoia, auditory and visual hallucinations, confusion, compromised short-term memory, impaired judgment, disorganized thought, and zero insight, mostly attributable to Alzheimer’s disease.
[275] Taking all the evidence into account, I am satisfied, on a balance of probabilities, that Ms. Murray had the requisite testamentary capacity to confirm the content of the Note on May 4, 2017. Ms. Crawford presented as a sincere and credible witness throughout, her evidence was compelling, and she had nothing to gain from giving it. Ms. Crawford and Ms. Myler spent a week with Ms. Murray in early May 2017. They saw her every day, and Ms. Crawford had the opportunity to observe her mental state during that week. Their evidence indicates Ms. Murray was alert, lucid, and actively engaged in the conversation about the Note and gave specific instructions for adding names, crossing off names, and changing the amounts.
Knowledge and Approval
[276] Knowledge and approval requires the ability to understand and approve the choices that have been made. To have knowledge and approval of testamentary dispositions, it is necessary for the will-maker to be aware of the contents of the will she is executing. While capacity includes the ability to make choices, for knowledge and approval the will-maker must also be aware of the magnitude of the residue of her estate and appreciate the effect of the disposition of her estate: Geluch v. Geluch Estate, 2019 BCSC 2203 at paras. 124–127.
[277] In this case, there is no evidence that Ms. Murray appreciated the effect of the Note on the disposition of her estate, particularly the effect of not dealing with the remaining residue. Both Ms. Myler and Ms. Crawford said they did not discuss the residue of her estate with Ms. Murray. Because the Note does not contain a residue clause, what remained in Ms. Murray’s estate, after the specific bequests were paid to family members, passes on intestacy to the plaintiffs. Two of the plaintiffs, Ron and Daniel, were specifically crossed out on the Note, and Brian was not included at all.
[278] If the Note is a valid will, 75 percent of the residue of Ms. Murray’s estate goes to three individuals whom Ms. Murray expressly did not wish to benefit from her estate. It is difficult to see how Ms. Murray could have had knowledge and approved of this result.
[279] As I have said, on the evidence it is impossible to conclude when the Note was authored. Some of the notations were not identified by Ms. Myler as having been there when she went over the Note with Ms. Murray. Ms. Murray’s vision was impaired, and Ms. Myler had difficulty hearing, and Ms. Myler and Ms. Crawford’s evidence is that not all the names on the Note were read out to Ms. Murray. Even though Ms. Myler may have gone over what is in the Note with Ms. Murray, it is not clear that Ms. Murray reviewed and approved the version of the Note as it is presented before me.
Can the Note be Cured by s. 58 of WESA?
[280] In the alternative, if Ms. Murray is found to have been capable, with the requisite knowledge and approval of the content of the Note, the BC SPCA says that the Note does not represent Ms. Murray’s fixed and final testamentary intentions and, as a result, the 2013 Will remains in effect.
[281] As set out in Young at paras. 34–37, the further a document departs from the formal requirements of a will, the harder it may be to find that it embodies the deceased’s testamentary intention. Later BC cases have held that, particularly when key requirements are absent, such as the deceased’s or witnesses’ signatures, compelling and reliable evidence is required to satisfy the court that the document represents the testamentary intention of the deceased. Accordingly, extrinsic evidence of the testator’s intentions is relevant, even if such evidence concerns events before or after the creation of the document at issue: Hadley at para. 40 and Poulk Estate, 2018 BCSC 1321 at para. 43.
[282] Other factors include whether the language in the document is precatory or connotes a sense of finality: Lane Estate, 2015 BCSC 2162 at para. 44; Mace Estate (Re), 2018 BCSC 1284 at para. 47.
[283] The factors supporting that the Note represents Ms. Murray’s final intentions are:
- it was left in Ms. Murray’s lockbox with her 2013 Will;
- at least until Ms. Murray went into VGH, she kept a key to the lockbox around her neck;
- all ten beneficiaries in the 2013 Will are also listed on the Note and, with one exception, where two of the names were reversed, the Note tracked the order of the names in the 2013 Will;
- Mr. Basich was added. He was a close friend of Ms. Murrays, and she repeatedly told him that she had left him something in her will. When he asked her not to mention it again, she responded that it was “too late” as he was already in her will;
- Ms. Myler’s specific intent at the meeting at the Café was to settle the different dollar amounts set out in the 2013 Will and the Note, and Ms. Murray agreed to discuss it with her. Although Ms. Myler and Ms. Crawford did not witness the Note, they gave some evidence which confirmed that some of its contents reflected Ms. Murray’s wishes;
- for the most part, the changes Ms. Murray made to her will, as reflected in the Note, are rational and consistent. Given Ms. Murray’s friendship with Mr. Basich, her addition of a gift to him is understandable. The increased amounts are also proportionate to the increase in the approximate value of her assets.
[284] The factors in this case that do not support a finding that the Note represents Ms. Murray’s final intentions are:
- Ms. Murray did not sign the Note, and it was not witnessed. The Note lacks all of the hallmarks of formal validity;
- the Note is not titled, and it does not contain formal language revoking the 2013 Will or expressing an intent to change it and no language to show that the Note was intended to have testamentary effect;
- the Note is not written on formal paper, but on a page from a note pad, suggesting an impermanence or informality rather than a fixed and final intention;
- there is no express revocation of Ms. Murray’s 2013 Will or expression of her intention to change or alter it;
- Ms. Murray did not tell anyone about the Note and did not provide a copy of it to her executrices;
- the Note is a mix of Ms. Murray’s handwriting and Ms. Myler’s handwriting and notations. In some cases, the evidence is unclear as to who made what markings on the Note;
- the Note did not reflect what Ms. Murray said in discussions with family members about the disposition of her estate;
- some of the names written on the Note, and not crossed out, did not have a monetary gift assigned to them, suggesting they were not discussed at the May 4, 2017, meeting and that the Note was a work in progress;
- the Note is a list of certain names with amounts, and in some cases with no amounts. Another note, containing similar information, was found in the kitchen by Ms. Crawford and thrown out. The existence of several notes, with similar writing, suggests an ongoing thought process rather than a final testamentary intent;
- when Ms. Murray sought to change her 2010 Will, she wrote directly on the original of the Will. There was no writing on the 2013 Will; a signed copy of it remained in the lockbox;
- the Note does not dispose of the entirety of Ms. Murray’s estate or specify what should happen to the residue of the estate.
[285] In addition, the circumstances surrounding the Note do not suggest a fixed and final intention on Ms. Murray’s part. In 2010, Ms. Murray met with a lawyer to prepare the 2010 Will. In 2013, she met with a notary to prepare the 2013 Will. Ms. Murray brought the 2010 Will to Ms. Deprez to discuss it. She clearly knew she had to “go in” to make changes to her will.
[286] Ms. Murray’s pattern of behaviour was to see a legal professional in order to change a will. Ms. Murray understood the formal process of attending at a professional’s office and going through the process of instructing the professional and formally executing a valid will. With respect to the 2013 Will, at their meeting on January 10, 2017, Ms. Murray told Ms. Deprez that she wished to change her will and she brought her 2013 Will to the meeting. She told Brian that she needed to change her will, and Tim made the appointment for Ms. Deprez to come and see her in February 2017.
[287] Ms. Myler and Ms. Crawford did not ask Ms. Murray to sign the Note they discussed at the Café, and there was no evidence that it was impressed on Ms. Murray that the Note would stand as her last will and testament. There is no evidence that at their meeting at the Café, Ms. Murray considered that the Note she discussed with her friends was a formal document that would govern how her estate was disposed of upon her death.
[288] Ms. Myler and Ms. Crawford did not discuss with Ms. Murray what was to happen to the residue, or what was left, of Ms. Murray’s estate after payment of the gifts to her extended family and her friend. In fact, Ms. Crawford testified that after the discussions at the Café, the three friends discussed the need to see a lawyer to finish what was left. Such a meeting was not possible in May 2017, but was planned for Ms. Myler and Ms. Crawford’s fall visit.
[289] There is no evidence that Ms. Murray turned her mind to how the Note would affect the disposition of the residue of her estate. It would pass on intestacy to three persons who were expressly excluded from the Note. Daniel and Ron were crossed off in the Note, and Brian was not named at all (nor had he been in the 2010 or 2013 Wills). Ms. Murray also made it clear to Ms. Myler that $100,000 was a sufficient gift to Verna.
[290] It cannot have been Ms. Murray’s fixed and final testamentary intention to allow 3/4 of the residue of her estate, approximately $982,500, to pass to her three nephews, when she made it clear she did not wish to leave them anything. Nor can it have been Ms. Murray’s fixed and final testamentary intention that over $300,000 would go to Verna, when she had said $100,000 was enough. The failure to deal with the residue in the Note, in addition to the other factors I have outlined, weighs against accepting the Note as a codicil to Ms. Murray’s 2013 Will or as a new testamentary document. Curing the Note under s. 58 would provide each of Dan, Ron, and Brian with the largest gifts out of her estate, which was not Ms. Murray’s testamentary intention.
[291] I cannot speculate as to what Ms. Murray would have done with the residue of her estate if she had gone through the formal process of executing a new will in 2017. Perhaps, it would have been shared equally among all of those who benefitted under the 2013 Will which was what Ms. Myler said in her deposition that she thought would happen. Perhaps, based on advice, she would have made a different arrangement entirely.
[292] Although the plaintiffs make much of the fact that the size of the gift to the BC SPCA in the 2013 Will was unusual and inconsistent with the average testamentary gift to the charity, it is not determinative in the analysis. Ms. Murray had no immediate family. It is entirely possible that she chose to benefit a charity that reflected her love of animals as opposed to extended family members. The question is what Ms. Murray subjectively intended, not what an average person would choose to do with their estate.
[293] The plaintiffs also suggest that the timing of the Note supports the inference that Ms. Murray intended it to be a final alteration. Their submission is based on the assumption that the Note was prepared when Ms. Murray was 99, suffering from health issues, and understood that she was nearing the end of her life. As I have said, there is no evidence of when Ms. Murray prepared the Note. The evidence suggests that she did not anticipate a rapid decline in her health around the time of her 99th birthday, since Ms. Myler and Ms. Crawford’s evidence is that they intended to carry on the work of revising and completing Ms. Murray’s will when they return in the fall. I cannot draw the inference the plaintiff suggests.
[294] A document like the Note was analysed in Re Lynch, [2016] VSC 758, a decision of the Supreme Court of Victoria in Australia. The legal principles developed under s. 9 of the applicable Wills Act in that case are similar to those under s. 58 of WESA.
[295] At issue in Lynch were two documents prepared eight years before the deceased’s passing: a handwritten page appointing an executor that was signed and witnessed, and a handwritten, undated, unsigned, and unwitnessed list of names with dollar amounts next to them, written in both blue and black ink. Both documents were created in the hospital before Mr. Lynch underwent surgery, and he was worried that he did not have a will. He did not plan to see a lawyer and said he could do his will “right then and there”. The document was created in front of three witnesses in black ink by the deceased with edits later made in blue ink after discussions at the hospital. Following the page with the beneficiaries and dollar amounts, which remained unsigned and unwitnessed, the page naming the executor was created which was signed and witnessed. One of the witnesses took the documents and placed them in his filing cabinet at home: paras. 41, 43, 45, 48, 55, and 63.
[296] The court in Lynch reviewed cases from that jurisdiction and said that, in determining whether the deceased intended the document to be a will, the court must be satisfied that the deceased demonstrated an intention that, without any alteration or reservation, the document should have effect as his will. The person must have “intended the document to be a legally operative act that disposes of the person’s property upon his or her death, rather than a provisional, preliminary, or tentative proposal.” The court relied on a similar principle to that explained in Young and in Hadley, in the context of s. 58 of WESA, that the further away from formal compliance a document is, the more difficult it will be for the court to be satisfied that the deceased intended the document to be his will: at paras. 11, 15–22.
[297] The court concluded that the second document could not have been intended to have the effect of a will. There was no strong nexus between the list of names and the signed executor page. The list of names had no heading and was not signed, dated, or witnessed. The court said it bore the “hallmarks of a provisional, preliminary or tentative thought process, rather than a legally operative act that disposes of the deceased’s assets upon his death.” It was relevant that the specific gifts did not add up to the deceased’s entire estate, which brought into question whether the deceased intended to dispose of his estate by way of the list: at paras. 76–78, 87.
[298] There was evidence in Lynch of conversations about seeing a lawyer after the list was created. The discussion was to have the documents reviewed, “if not revised” by a solicitor and that Mr. Lynch should take the documents to a lawyer.
[299] In this case, the Note disposes of $540,000 in specific gifts to Ms. Murray’s extended family and friends, leaving $1,310,000 in the residue (based on a distributable amount of $1.85 million). A failure to deal with an amount of that size weighs against the Note representing Ms. Murray’s fixed and final intentions. Also, as I have said, Ms. Murray, Ms. Myler, and Ms. Crawford discussed how it would be difficult to see a lawyer during Ms. Myler and Ms. Crawford’s May 2017 visit, and they planned to see one in the fall.
Conclusion
[300] For the reasons given, I answer the questions to be addressed as follows:
- Ms. Murray was aware of and approved of the residual bequest to the BC SPCA under the 2013 Will.
- The Note does not reflect Ms. Murray’s fixed and final intention to change the 2013 Will and is not fully effective as a codicil or alteration to the 2013 Will.
- Ms. Murray had the requisite testamentary capacity in May 2017 to execute the Note as a codicil to the 2013 Will.
- Finally, Ms. Murray did not know, understand, and approve of the amendments to the 2013 Will made by the Note.
[301] Counsel for the BC SPCA advised that he has been provided with irrevocable instructions from his client to honour the gift to John Basich of $40,000 as set out in the Note in the event that the 2013 Will is found to be Ms. Murray’s last will and testament. He is the only potential beneficiary excluded from the 2013 Will when the two documents at issue in this proceeding are compared.
Costs
[302] The parties did not speak to costs. If, after receiving this decision, they are unable to agree on a costs order, they may arrange through Court Scheduling to appear before me, to discuss the filing of costs submissions.
“MacNaughton J.”