In Vancouver estate law matters, and BC estate law matters in general, it is often the case that the claim can only be fully answered by the evidence of the deceased person. For that reason, where a person makes a claim against an estate, the court will be particularly cautious in assessing credibility and evaluating assertions of fact. As noted by the BC court in Wharton v. McMinigal Estate, 2014 BCCA 434 at para. 35, claims against deceased persons must be approached with “the most careful scrutiny and indeed at the outset with some suspicion”.
In Vancouver estate law matters, and BC estate law in general, the following elements will be of critical importance when evaluating a claim against a deceased person:
In cases where a person makes a claim against an estate, and relies upon assertions of fact that can really only be fully answered by the evidence of the deceased, the court will be particularly cautious in assessing credibility and examining inconsistencies in the evidence against any objective evidence and the weight of the evidence as a whole.
The estate litigation in Wharton v. McMinigal Estate arose over ownership of a home. The parties were common-law spouses for 22 years, owning a home as joint tenants. After they separated in 1997, the wife continued to live in the home. The wife prepared a separation agreement in 1997 which stated that the home was to remain in joint tenancy until one of them died, but the agreement was never signed by the husband. The husband later severed the joint tenancy without the wife’s knowledge. When the wife became aware, she commenced legal action against him for breach of an oral contract. The husband died by the time of trial. The husband had remarried before his death, so his new spouse inherited his interest in the house as a tenant in common.
At trial in 2014, the first wife alleged that she and her ex-husband had orally agreed to accept her draft separation agreement. She maintained that they agreed that the home would remain in joint tenancy, which meant that ownership of the home would pass to her upon his death (see here for my earlier discussion of joint tenancies and the right of survivorship). The second wife counterclaimed, seeking partition and sale of the property under the Partition of Property Act, R.S.B.C. 1996, c. 367.
The court noted that some conduct of the husband may have been consistent with aspects of the draft separation agreement (e.g., he paid spousal support and costs to maintain the home, which were dealt with in the draft agreement), but there was ample evidence that the husband had not agreed to the alleged agreement. The husband had been given legal advice by his solicitor not to sign the alleged agreement, and the judge was satisfied that the husband followed that advice by not signing.
After examining all of the evidence and weighing credibility, the court was satisfied that there was no agreement that the home would remain in joint tenancy. Factors that weighed against the credibility of the first wife’s claim against the deceased’s estate included the following:
The first wife’s claim was dismissed and the court ordered that the property be sold, with the net proceeds divided equally among the first wife and second wife.
In Vancouver estate law matters, and BC estate law matters in general, it is frequently the case that the claim can really only be fully answered by the evidence of the deceased person. Claims against the estate of a deceased person are approached with “the most careful scrutiny and indeed at the outset with some suspicion” in BC estate litigation. The court must assess the credibility of each witness and carefully examine all of the evidence to resolve the conflicting evidence and make findings of fact.
Onyx Law Group represents clients in family law, estate and trust litigation, estate planning and probate matters. Consult with our experienced team at