2023 BCSC 559, 2023 BCSC 559

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Bennett Estate (Re), 2023 BCSC 559 Date: 20230412 Docket: Nelson Registry: 21989 In the Matter of the Estate of Robert Walter Bennett, Deceased Before: The Honourable Madam Justice Lyster Reasons for Judgment Counsel for the Applicants: P. A. Beug Place and Date of Hearing: Nelson , B.C. February 27, 2023 Place and Date of Judgment: Nelson, B.C. April 12, 2023 Introduction [ 1 ] This is an application to the court for a declaration or directions with respect to the estate of Robert Walter Bennett (the “Estate”). Mr. Bennett died on September 29, 2020.

He executed a will on March 3, 2015 (the “Will”). [ 2 ] The applicants are Richard James Bennett, Bonnie Eloise Athona Wheelhouse and Michael William Wheelhouse. Richard and Bonnie are Mr. Bennett’s children, and Michael is Bonnie’s husband. Richard, Bonnie and Michael are named as executors of Mr. Bennett’s Estate under the Will. [ 3 ] The applicants provided notice of this application to themselves, as well as to Robert Wayne Bennett, Jocelyne McAllister and Wes Nichol. Robert is Mr. Bennett’s third child, and the sibling of Richard and Bonnie. Jocelyne was Mr. Bennett’s caregiver between 2012 and 2017.

She and her then partner Wes are beneficiaries under the Will of a specific legacy of three firearms and ammunition. None of the persons provided notice of the application responded or appeared at the hearing. [ 4 ] In evidence before me are the affidavits of Richard, Bonnie and Robert. Richard’s is his third affidavit, the earlier ones having been filed in support of his application for grant of probate with will annexed. [ 5 ] The original of the Will has not been found. Probate was earlier sought by Richard on the basis of a copy of the Will. [ 6 ] The applicants seek a declaration from the Court that either:

a) The Will was revoked and the submission for estate grant of probate filed November 23, 2021, be converted to an application of administration without will annexed; or

b) In the alternative, the Will was not revoked and that probate may be granted on the basis of a copy of the Will. [ 7 ] In the further alternative, they seek an order for directions as to how the Estate should be executed or administered. Facts [ 8 ] At the time of his death on September 28, 2020, Mr. Bennett was living in New Brunswick, close to Bonnie and Michael. He moved there in April 2017. Before that, he lived in Salmo, British Columbia on a property he owned in joint tenancy with Richard and Bonnie. Robert lived close to that property.

Richard lived in Washington State. [ 9 ] At the time of his death, Mr. Bennett was nearly 88 years of age. There is medical evidence that he was suffering from cognitive decline due to dementia in the years leading to his death, which was documented starting in 2014. [ 10 ] Jocelyne acted as Mr. Bennett’s caregiver between January 2012 and April 2017. [ 11 ] Robert was the only child who lived close to Mr. Bennett, some five minutes away. Mr. Bennett’s relationship with Robert was strained in the last years of his life.

In his affidavit, Robert says that they had a generally good relationship until 2013, and would see one another regularly. That changed on Christmas Day 2014, when Robert went to Mr. Bennett’s house for Christmas. Mr. Bennett was aggressive, swore and told Robert to leave, ultimately coming out of the house swinging a large sword at Robert. Robert called the

RCMP. After this incident, Robert says that it became more difficult for him to see Mr. Bennett. Some days he would seem alright, and other days he would act strangely, be angry for no reason, or talk about conspiracy theories. After a while, Mr. Bennett stopped talking to Robert altogether. [ 12 ] Robert also discusses firearms in his affidavit. He says that Mr. Bennett’s brother, Richard H., owned a large number of firearms. Richard H. died in 1982. His firearms were transferred to Mr. Bennett in order to sell them.

A number of Richard H.’s firearms were ultimately transferred to Robert, including an HY Hunter Frontier Derringer and a Cooey shotgun. [ 13 ] When his children were young, Robert stored his firearms, not including the Derringer and the shotgun, at Mr. Bennett’s home in a locked cabinet. In 2014, an incident occurred when Robert’s wife, Donna, noticed that the cabinet was unlocked. When asked, Mr. Bennett told Robert that he had just wanted to look at the rifles. Robert and Donna locked the cabinet and hid the key. [ 14 ] A couple of months later, Robert noticed that the clasp on the cabinet was broken.

Robert was surprised that Mr. Bennett had had the strength to break it. Robert realized it was no longer safe to store his firearms at Mr. Bennett’s home and decided to move them to store at his home. While he, Donna and their son Brad were loading the firearms up, Mr. Bennett became aggressive and started swearing at them. Mr. Bennett called the RCMP, and according to Robert, RCMP attended and agreed that the firearms should no longer be stored at Mr. Bennett’s home. [ 15 ] Robert says that to his knowledge the last time Mr.

Bennett owned a firearm was in 1985, and that all the firearms he removed in 2014 belonged to him. [ 16 ] On March 3, 2015, Mr. Bennett and Jocelyne attended at Pigott & Co. Law Office in Nelson, at which time Mr. Bennett executed the Will. He named Richard, Bonnie and Michael as the executors of his Estate. He left a specific bequest to Jocelyne and Wes of his “Shotgun, [his] Webley double barreled Derenger and .308 rifle and ammunition” (reproduced as written). The residue of his Estate was to be divided between Richard and Bonnie. Nothing was left to Robert. [ 17 ] Mr.

Pigott provided a copy of his file relating to the Will to counsel for the applicants. It does not indicate that any issue was raised at the time about Mr. Bennett’s capacity. Mr. Pigott has no recollection of Mr. Bennett or his Will. According to Richard’s second affidavit, which was attached as an exhibit to his first affidavit, filed in support of a grant of probate with will annexed, the copy of the Will was retrieved from the files of Watson & Company, Lawyers, where Mr. Watson informed him that it had been delivered by Mr.

Bennett shortly after it had been executed, as evidence of his wishes after death. [ 18 ] None of the children appears to have been aware of the Will at the time it was made. Richard says that he only learned of it when he was informed of it by Allison Edgar of Watson & Company in March 2017. Richard says he was also unaware of any previous wills that Mr. Bennett had executed until a wills search was done after his death. [ 19 ] As the children’s concerns about Mr. Bennett’s dementia grew in 2015-2016, Richard worked to have his capacity assessed.

In 2017, Richard began acting under an enduring Power of Attorney to manage Mr. Bennett’s affairs. The children were worried about Jocelyne’s influence over Mr. Bennett and that she was taking advantage of him. Jocelyne made allegations that the children were taking advantage of Mr. Bennett. [ 20 ] In his affidavit, Richard says that in May 2016, Mr. Bennett fell at home and broke his hip. He was admitted to hospital on May 26, 2016, where he remained for 22 days. After he was released, Mr. Bennett fell at home and broke his left arm. He returned to the hospital on June 21, 2016.

Richard says that during one of those two hospitalizations he spoke with Jocelyne. According to Richard, Jocelyne told him that Mr. Bennett had, in a fit when he was angry with her, torn up his will. Richard describes this as a “boastful rant about how much she did for him”. Jocelyne did not tell him when this occurred. [ 21 ] Richard says that he did not give much credence to the story about Mr. Bennett ripping up his will at the time. He and his siblings were suspicious of Jocelyne. Due to Mr.

Bennett’s dementia, it was difficult to discuss sensitive issues with him, so Richard was unable to confirm whether the story was true. [ 22 ] After Mr. Bennett died, Richard was dealing with his affairs. He never found the original Will, either before or after Mr. Bennett’s death. It was not with Mr. Bennett’s other financial and legal paperwork. He asked Robert and Donna to search Mr. Bennett’s Salmo home; the Will could not be found. A wills search came back with two wills notices: one for the March 3, 2015 Will, and one for a will dated February 19, 1992.

The original of neither was never found. [ 23 ] The executors decided to attempt to probate with the copy of the Will from Mr. Watson’s office. Richard says that, at the time, he did not remember the story Jocelyne had told him about Mr. Bennett ripping up his Will.

In his second affidavit sworn in support of the probate application Richard had stated: I believe that the original Will was either lost or destroyed when ROBERT WALTER BENNETT moved from Salmo, British Columbia to Three Brooks, New Brunswick or thereafter and that ROBERT WALTER BENNETT did not destroy it with the intention of revoking it or otherwise. [ 24 ] Richard now says that that statement may not have been true. He says that at the time he swore that affidavit he did not recall the conversation with Jocelyne. He denies ever intending to mislead or lie to the court.

He says that he did not remember the conversation, nor appreciate the potential impact of the Will having been destroyed. [ 25 ] It was only after the Nelson Court Registry contacted the applicants’ solicitor to enquire about the firearms bequest that Richard recalled the conversation with Jocelyne. He says that he turned his mind to why the firearms would have been in Mr. Bennett’s Will, and to his well-being at that time.

He says that it was then that his memory came back to him about his discussion with Jocelyne and that he realized his previous affidavit may have been inaccurate. [ 26 ] In her affidavit, Bonnie says that she spoke with Richard after he realized that his previous affidavit may have been incorrect.

During that conversation she had “a vague recollection” about a telephone conversation with Jocelyne about Mr. Bennett destroying hisWill. Bonnie has no recollection of the context of that conversation, or any knowledge whether there is any basis for it being true. [27] In preparing for this application, the applicants’ counsel spoke with Jocelyne, and followed up on that conversation with a letterto her.

In an unsworn response to that letter, Jocelyne denies ever saying anything like what Richard alleges to him or any other memberof the family. [28] Richard and Bonnie say that they have agreed that if the Estate is to be distributed in accordance with the Will, they will giftRobert a portion of what they each receive so that it will be as if they each received equal shares. In other words, the three siblings willeach share equally in the residue of the Estate, regardless of any declaration this Court might make.

Analysis [29] In his submissions, counsel for the applicants made clear that he was not advocating for either one of the two alternativedeclarations sought in the notice of application; the applicants simply want clarity from the Court about how to proceed. [30] In support of the first declaration referred to in the notice of application, that the Will was revoked, counsel referred to thepresumption of revocation. The presumption of revocation was explained as follows by Wilson J. in Haider v.

Kalugin, 2008 BCSC 930[Haider] at paras. 9–11: [9] If a Will last known to be in custody of testator is not found at his death, the presumption is that the testator destroyed it with theintention of revoking it (“animo revocandi”). However, that presumption may be rebutted by evidence, written or oral, of the facts. Thestrength of the presumption will depend upon the character of the custody which the testator had over the Will: Sugden v. Lord St.Leonards (1876), 1 P.D. 154 (English C.A.). [10] In Sigurdson v.

Sigurdson (MB CA), [1935] 2 D.L.R. 445 (S.C.C.), at paragraph 49, Davis J. said: [49]1 It needs very clear and convincing evidence to establish what is alleged to be a lost will. . . .The person propounding such a willhas a burden of proof that persists throughout the whole trial to satisfy the court at its conclusion that the will is in fact lost and was notdestroyed by the testator with the intention of putting an end to it. Each case of course turns upon its own facts but the principlesrespecting the well-settled presumption against the Will must be applied to the facts. [11] In Welch v.

Phillips (1836) 1 Moo PC 299, at 302, referred to in Bobersky Estate (Re) [1954] A.J. No. 12 (Alta Dist. Crt.), atparagraph 6, the court said: [6] If a will traced to the possession of the deceased, and last seen there, is not forthcoming on his death, it is presumed to have beendestroyed by the deceased himself; and that presumption must have effect, unless there is good and sufficient reason to repel it.

It is apresumption founded on good sense, for it is highly reasonable to suppose that an instrument of so much importance would be carefullypreserved, by a person of ordinary caution, in some place of safety and would not be either lost or stolen, and if, on the death of a maker,is not found in his usual repositories or else where he resides, it is in a high degree of probable that the deceased himself has purposelydestroyed it.

But this presumption, like all others of fact, may be rebutted by others, which raises a higher degree of probability to thecontrary. [31] Haider was considered by Bracken J. in Whitehead Estate, 2010 BCSC 348 [Whitehead]. At para. 28, the Court concluded thatthere was no evidence upon which it could conclude that the will of the deceased was properly executed or a true copy of the originalwill. At para. 29, the Court went on to consider what the situation would be if that conclusion was incorrect, and the will was properlyexecuted and a true copy.

The Court stated that in that case: … the next issue is whether the original will can be traced to the possession of the deceased.

If it can be traced to her possession then ona finding that the original has been lost, the presumption arises that it has been destroyed with the intention of revoking the will. [32] After referring to Haider at para. 30, the Court in Whitehead concluded at para. 31: [31] On the evidence presented in this case, I am not able to find that the deceased ever had possession of the original will andtherefore the presumption that the will has been destroyed with the intention that it be revoked does not apply. [33] Any reliance on the presumption of revocation in this case founders on the same basis.

There is no evidence before the Courtupon which I could conclude that Mr. Bennett ever had possession of the original of the Will. None of his children ever saw it before hisdeath, and none of them were able to find it after his death among his possessions. In particular, Richard said that at no time while Mr.Bennett was alive while he was acting as his power of attorney did he find the original copy of the Will, and that shortly after retainingcounsel after Mr. Bennett’s death, he discovered that the original Will was not in with his other financial and legal paperwork. [34] As I am unable to find that Mr.

Bennett ever had possession of the original Will, the presumption of revocation that the originalWill was destroyed with the intention it be revoked does not apply. [35] What of the evidence regarding Richard’s conversation with Jocelyne? As I have already recounted, Richard originally swore anaffidavit in support of obtaining probate in which he stated that he believed the original Will was either lost or destroyed when Mr.Bennett moved from Salmo to New Brunswick, and that he did not destroy it with the intention of revoking it.

In support of thisapplication, Richard swore an affidavit saying that he might have been mistaken in that affidavit, and that he now remembers aconversation with Jocelyne in which she said Mr. Bennett had torn the Will up. For her part, in an unsworn statement, Jocelyne deniesever saying that to Richard. [36] The evidence before the court does not provide a reliable basis upon which I could conclude that Mr. Bennett tore up the original

of the Will. Jocelyne, in her unsworn statement, denies ever telling Richard that Mr. Bennett had done so. Richard has provided two inconsistent sworn statements about the matter. While Richard has provided an explanation for the inconsistency, I do not find that I can rely on his current affidavit for the contents of the conversation with Jocelyne, particularly in the face of her denial, albeit unsworn. [ 37 ] This leaves the Court without any basis to find that Mr. Bennett revoked his Will. I declare that the Will was not revoked. [ 38 ] Evidence of Mr.

Bennett’s declining cognitive state at or around the time he made the Will was provided by the applicants. They did not submit, however, that he lacked testamentary capacity at the time he made the Will. Mr. Pigott has provided his file notes to counsel for the applicants, and they do not on their face indicate that he had any concerns about Mr. Bennett’s testamentary capacity. [ 39 ] Capacity can come and go. In his affidavit, Robert said that some days when he saw Mr. Bennett he would be alright, and other days he would be acting strange. In his affidavit, Richard expressed concerns about Mr.

Bennett’s capacity, but he also said that on occasion, as when he took him to Ms. Edgar’s office on March 3, 2017 to execute the enduring power of attorney, “he seemed his usual self”. [ 40 ] In Grace Estate (Re) , 2022 BCSC 1283 at paras. 17–31 , I discussed the presumption of due execution, and its relationship to the presumption of testamentary capacity. The presumption of due execution applies to the Will, as it was executed in accordance with the statutory formalities, having been signed by Mr.

Bennett in the presence of two witnesses, one of whom was the solicitor who drafted the Will, and both of whom signed the Will. There is an attestation clause. [ 41 ] I infer, as a result of the presumption of due execution, that Mr. Bennett knew and approved of the Will’s contents. That means that the presumption of testamentary capacity applies. On the evidence before me, and in particular in the absence of any evidence of suspicious circumstances, and in the absence of any argument that Mr.

Bennett lacked testamentary capacity on March 3, 2015, I accept that he had testamentary capacity at that time. [ 42 ] No issue is taken with the authenticity of the copy of the Will submitted by the applicants in their probate application. It is identical to the signed copy of the Will found in Mr. Pigott’s file, and Mr. Pigott is listed as one of the two witnesses to Mr. Bennett’s signature. [ 43 ] Section 58(2) and (3) of Wills, Estates and Succession Act , S.B.C. 2009, c. 13 provides

(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) E ven 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. [ 44 ] I find that the copy of the Will represents the testamentary intentions of Mr. Bennett. I order that probate be granted on the basis of the copy of the Will attached as Exhibit A to Richard’s first and third affidavits. Conclusion [ 45 ] I declare that the Will was not revoked and that the copy of the Will represents the testamentary intentions of Mr. Bennett. I order that probate with will annexed be granted on the basis of the copy of the Will. “L.M. Lyster J.” LYSTER J.