Previously, our Vancouver estate law team discussed how the failure to meet formal validity requirements in a will can lead to BC estate litigation. As noted in that post, BC estate law gives BC courts the power to cure deficiencies in some circumstances where a will-maker has taken real steps to make a will, but certain formalities have fallen short. The Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [“WESA”], which applies in Vancouver estate law matters, recognizes that the failure to meet formal requirements should not automatically result in a will-maker’s “testamentary intentions” being defeated for that reason alone.
Intended beneficiary’s Vancouver estate law claim
This post will build on that discussion by examining a recent high-profile Vancouver estate law claim brought by the daughter of Pat Quinn, the former coach of the Toronto Maple Leafs. In Quinn Estate v. Rydland, 2019 BCCA 91 the BC Court of Appeal affirmed that the curative provisions of WESA do not exist to enable the court to validate documents that allow a will-maker to circumvent or avoid testamentary formalities altogether. This resulted in a declaration that a portion of Mr. Quinn’s will was invalid, which meant that the residue of Mr. Quinn’s estate passed on intestacy to the disadvantage of Mr. Quinn’s daughter (one of his intended beneficiaries).
“Pour-over” clauses in Vancouver estate law
The Vancouver estate litigation in the Quinn Estate matter arose because of what is known as a “pour-over” clause in Pat Quinn’s will. A “pour-over” clause purports to make a gift to a trust that is in existence at the time the will is made (i.e., an inter vivos trust). Pour-over clauses have not found much support in Canada. One problem with pour-over clauses is where the gift is made to an existing trust, but the gift contemplates future amendments to the trust. If the trust is amended following the date of the will, the amendment will usually fail to comply with the formalities set out in WESA. That was the problem that gave rise to the Vancouver estate law claim in Quinn Estate.
Facts in the Quinn Vancouver estate law claim
In Quinn Estate, Mr. Quinn prepared a will in 1996 that dealt with his Canadian assets. The will was executed in accordance with all of the BC formality requirements. The sixth clause of his will contained the pour-over clause:
SIXTH: Residue. I give, devise and bequeath the residue of my estate to the Trust known as the QUINN FAMILY TRUST dated March 4, 1996, between J.B. PATRICK QUINN and SANDRA QUINN, as Settlors and J.B. PATRICK QUINN and SANDRA QUINN, as Trustees, to be added to principal and thereafter to be held, administered and distributed under the terms of such agreement.
The Quinn Family Trust (“the Trust”) was settled on March 4, 1996, prior to the execution of the will. Mr. Quinn executed the trust declaration contemporaneously with the execution of his will. The Trust could be amended and was revocable, and in fact, on March 17, 1997 the Trust was amended to require the trustees to comply with certain U.S. bank requirements. Those amendments to the Trust were not witnessed in accordance with the formal validity requirements of wills pursuant to BC estate law, nor was the trust document itself. Mr. Quinn died on November 23, 2014.
Pour-over clause found to be invalid
Following Mr. Quinn’s death, a Vancouver estate law claim was brought, which resulted in a declaration that the pour-over clause was invalid. This meant that the residue of Mr. Quinn’s estate passed on intestacy to the disadvantage of Mr. Quinn’s daughter, who was one of the ultimate beneficiaries of the Trust. The pour-over clause was found to be invalid by the chambers judge for two reasons, both of which arose from the fact that the Trust was amendable and revocable and the fact that it was so amended after the execution of Mr. Quinn’s will – without regard to the formal validity requirements of wills pursuant to BC estate law. More particularly, the problems were as follows:
- The pour-over clause effectively purported to reserve onto Mr. Quinn the right to make a testamentary disposition in the future without complying with the formalities of the Wills Act (which was in force at the time but has since been replaced by WESA).
- Because the Trust was amendable, it could not be known with certainty the actual disposition purported to be made by Mr. Quinn — it is governed by terms that are not found in the will itself.
Mr. Quinn’s daughter appealed that decision, relying on two lesser-used doctrines (the doctrine of incorporation by reference and the doctrine of facts of independent significance), or in the alternative on s. 58 of the WESA to “cure” the deficiencies. Her appeal was dismissed, with the BC Court of Appeal finding that the doctrine of incorporation by reference could not be invoked to incorporate a revocable, amendable trust; that the doctrine of facts of independent significance should not be interpreted to extend to an inter vivos trust; and that s. 58 could not cure the substantive invalidity.
Take home point on Vancouver estate law
Failure to comply with execution and attestation formalities may give rise to Vancouver estate law litigation. As the Quinn Estate matter demonstrates, the curative provisions of WESA do not exist to enable the court to validate documents that allow a will-maker to circumvent or avoid testamentary formalities altogether. The gift in that case could not “pour-over” because the gift was made to the Trust which allowed for future amendments of the Trust, and the Trust was so amended. To allow the gift to pour-over would have the effect of permitting the will-maker to amend his will without complying with the legislative formalities. The provision in the will was invalid and the residue of the estate was distributed on intestacy, resulting in a disappointed beneficiary. If you would like to discuss a Vancouver estate law claim, we invite you to call (604) 900-2538 to schedule a free 30-minute consultation with our estate litigation team at Onyx Law Group.