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Vancouver Estate Law: Proving Claims Against Deceased Persons


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  • Vancouver Estate Law: Proving Claims Against Deceased Persons

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”.

Proving claims against a deceased person in Vancouver estate law

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:

  • The credibility of the person making the claim against the deceased person’s estate.
  • The credibility of other people involved in the matter who provide evidence about key events (including other family members or friends – but the court will always be cautious when these witnesses are “interested parties” who may benefit from the estate).
  • The conduct of the deceased.
  • Written agreements or other documents, including wills and trusts, that demonstrate the deceased person’s intentions or wishes.
  • Evidence from solicitor(s) who gave legal advice or prepared documents for the parties.

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.

Case example of Vancouver estate law’s approach

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.

Examining conduct of the deceased in Vancouver estate law claims

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.

Importance of credibility of the claimant

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:

  • She admitted that she had no recollection of the draft separation agreement until it was discovered in the file of her husband’s lawyer; her claim was originally that her ex had breached a wholly oral contract.
  • She had signed an agreement in 1999 that was less favourable to her than the draft agreement which was prepared in 1997 but never signed. The judge found it implausible that she would have signed the 1999 agreement if she thought that the earlier agreement was enforceable.

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.

Take home point on proving Vancouver estate law claims

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.

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