Clifford v. Doyle Estate, 2024 BCSC 98

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Clifford v. Doyle Estate, 2024 BCSC 98 Date: 20240122 Docket: S213290 Registry: Victoria Between: Maureen Clifford, Dennis Doyle, Brian Doyle, Kathleen Clarke, Michael Doyle and Kevin Doyle Plaintiffs And Eileen Doyle as Executor of the Will of Trustee of the Estate of Winnifred Margaret Doyle, Eileen Doyle, Colin Doyle, Patrick Doyle, and Sheila Colleen Doyle Defendants Corrected Judgment: The text of the judgment was corrected at paragraph 38 on February 9, 2024.

Before: The Honourable Justice Chan Reasons for Judgment The Plaintiff, Maureen Clifford, appearing in person: M. Clifford The Plaintiff, Dennis Doyle, appearing in person: D. Doyle The Plaintiff, Brian Doyle, appearing in in person: B. Doyle The Plaintiff, Kathleen Doyle, appearing in in person: K. Doyle The Plaintiff, Michael Doyle, appearing in in person: M. Doyle The Plaintiff, Kevin Doyle, appearing in in person: K. Doyle Counsel for the Defendant, Sheila Doyle: H.D.

Fisher The Defendants, Eileen Doyle (as Executor of the Will of Trustee of the Estate of Winnifred Margaret Doyle and in her personal capacity), Colin Doyle, and Patrick Doyle: Not appearing at this hearing Place and Dates of Trial/Hearing: Victoria, B.C. October 13 and December 13–14, 2023 Place and Date of Judgment: Victoria, B.C. January 22, 2024 Table of Contents Introduction .. 4 Background Facts .. 4 The Application .. 7 Admissibility of Evidence in the Application to Strike . 8 Should the claim that the Will is invalid be struck: Paragraph 1 of

Part 2 and Paragraphs 1 and 2 of

Part 3? . 8 Should the claim that the transfer of the Family Home to Sheila be set aside be struck: Paragraph 2 of

Part 2? . 11 Should the claim that the transfer of inter vivos gifts of cash to Sheila be set aside be struck: Paragraph 3 of

Part 2? . 12 Should the claim for an order that Sheila pass her accounts be struck: Paragraph 5 of

Part 2? 13 Conclusion .. 13

Introduction [ 1 ] The applicant, Sheila Doyle, was the youngest of ten children born to Winnifred Margaret Doyle. The plaintiffs are six of the siblings. The four remaining siblings are the defendants, including Sheila Doyle. As most of the parties share the same last name, I will refer to them using their first names. I mean no disrespect in doing so. [ 2 ] Winnifred passed away on August 29, 2018, at the age of 99. She left a last will and testament dated March 26, 2018 (“Will”). Eileen was named as executor of the estate in the Will. A grant of probate was issued by the court to Eileen on May 5, 2021.

In the Will, Winnifred divided the residue of her estate in unequal shares to the siblings. [ 3 ] The plaintiffs filed a notice of civil claim (“NOCC”) on November 1, 2021, seeking a declaration that the Will is invalid and setting aside the inter vivos transfer of Winnifred’s residence and gifts of cash made by Winnifred to Sheila before Winnifred’s death. The plaintiffs further seek to vary the Will pursuant to s. 60 of the Wills, Estates and Succession Act , S.B.C. 2009, c. 13 [ WESA ], arguing the Will does not provide adequate, just and equitable provision for them.

The plaintiffs seek a passing of accounts from Sheila, in her capacity as power of attorney for Winnifred, and seek an accounting and tracing of the estate funds. [ 4 ] In this application, Sheila seeks to strike out parts of the NOCC pursuant to R. 9-5 of the Supreme Court Civil Rules [ Rules ]. Sheila argues the NOCC discloses no reasonable claim. Further, Sheila argues the plaintiffs do not have standing to pursue claims to set aside inter vivos transfers made by Winnifred so those assets form part of the estate, as the plaintiffs have not obtained leave of the court pursuant to s. 151 of WESA .

Background Facts [ 5 ] I take the following from the NOCC. [ 6 ] Winnifred was a widow aged 99 at the time of her death on August 29, 2018. Winnifred lived in her home in Victoria (“Family Home”) with Sheila, who moved in with her in the mid-1990s. [ 7 ] On May 25, 2000, Sheila’s name was put on title to the Family Home as a joint tenant. The plaintiffs allege this was for estate planning purposes and that Winnifred had advised the plaintiffs that the Family Home was to go to the family.

The plaintiffs allege Sheila at all times held an interest in the Family Home in trust for the estate. [ 8 ] In 2016, Winnifred’s health began to decline.

Winnifred executed a power of attorney naming Sheila as attorney (“Power of Attorney”) and a representation agreement naming Sheila as a representative. [ 9 ] In late 2017 and early 2018, Winnifred received an inheritance of approximately $167,000 USD from her cousin’s estate, which she gifted to Sheila. [ 10 ] On June 1, 2017, Winnifred signed a deed of gift gifting Sheila the Family Home. [ 11 ] Winnifred held three joint bank accounts with Colin, Maureen and Sheila.

In the spring of 2018, most of the funds were withdrawn from the joint accounts with Colin and Maureen, without their knowledge. [ 12 ] Winnifred had significant assets prior to her death which included the Family Home and substantial savings in excess of $300,000. [ 13 ] Sheila has not provided any accounting with respect to her management of Winnifred’s assets while acting in the capacity of Power of Attorney. [ 14 ] After Winnifred’s death, the plaintiffs were advised by Eileen that a new will was made approximately five months prior to the death, on March 26, 2018 (the Will).

Eileen is the executor named in the Will. The Will provides that the residue of the estate be left to the 10 siblings in unequal shares as follows: • 1 share to Brian; • 1 share to Kathleen; • 5 shares to Michael; • 20 shares to Dennis; • 20 shares to Maureen; • 5 shares to Kevin; • 20 shares to Eileen; • 5 shares to Colin; • 1 share to Sheila; and

• 20 shares to Patrick. [ 15 ] Winnifred also executed a statutory declaration on March 26, 2018, in relation to her Will. [ 16 ] In June 2019, Eileen advised the plaintiffs the estate had more debt than assets and probate was not required. [ 17 ] Eileen has refused access to Winnifred’s financial records or how the assets were distributed, other than to advise that significant gifts were made by Winnifred prior to her death. [ 18 ] The plaintiffs filed the NOCC on November 1, 2021. The NOCC seeks the following relief in

Part 2: 1. A declaration that the March 26, 2018 Will is invalid; 2. An order setting aside the June 1, 2017 Deed of Gift and transfer of the Family Home to Sheila so that those assets form part of the estate of the Deceased; 3. An order setting aside the inter vivos gift of cash made to Sheila from 2017 to the date of death of the Deceased so that those assets form part of the estate of the Deceased; 4. An order under Wills, Estates and Succession Act , [ SBC 2009]

Chapter 13 , for such provision as this court deems adequate, just and equitable in the circumstances from the estate, in favour of the Plaintiff; 5. A passing of accounts by Sheila, in her capacity as Power of Attorney; 6. An accounting of the estate funds and a tracing order if estate funds have been distributed or otherwise used; 7. Costs of this action; and 8. Such further relief as this Honourable Court deems just. [ 19 ] The NOCC sets out the legal basis in

Part 3, which reads in part: Undue Influence : 1. Undue influence is an equitable doctrine that is designed to redress an abuse of trust, confidence or power in a broad range of transactions, including gratuitous inter vivos transfers of gifts, testamentary gifts, and commercial transactions. There are two classes of undue influence: actual and presumed (Allcard v. Skinner (1887), 36 Ch. D. 145 (Eng. C.A.) at 171 . 2. With respect to estate planning and inter vivos transfers, the Deceased was being unduly influenced by Sheila. The Application [ 20 ] Sheila seeks to strike out parts of the NOCC pursuant to R. 9-5 of the Rules . Sheila seeks to strike out paras. 1, 2, 3 and 5 of

Part 2, set out above. As well, Sheila seeks to strike out paras. 1 and 2 of

Part 3, set out above. [ 21 ] Rule 9-5 sets out the following: Scandalous, frivolous or vexatious matters

(1) At any stage of a proceeding, the court may order to be struck out or amended the whole or any part of a pleading, petition or other document on the ground that (

a) it discloses no reasonable claim or defence, as the case may be, (

b) it is unnecessary, scandalous, frivolous or vexatious, (

c) it may prejudice, embarrass or delay the fair trial or hearing of the proceeding, or (

d) it is otherwise an abuse of the process of the court, and the court may pronounce judgment or order the proceeding to be stayed or dismissed and may order the costs of the application to be paid as special costs. Admissibility of evidence

(2) No evidence is admissible on an application under subrule (1) (a). Admissibility of Evidence in the Application to Strike [ 22 ] Sheila takes the position that pursuant to R. 9-5(2), no evidence is admissible on an application to strike under R. 9-5(1)(a), for disclosing no reasonable claim. [ 23 ] The plaintiffs argue the notice of application filed by Sheila refers to all grounds in R. 9-5(1)(a) – (d), and not to only (a), for

disclosing no reasonable claim. The plaintiffs further argue Sheila also filed an affidavit in this application. [24] There were numerous affidavits filed and referred to by the plaintiffs during the hearing of this application. To the extent that theaffidavits filed by both the plaintiffs and the defendant provide background and context, I find them admissible as evidence. However, Iagree these further affidavits do not and cannot cure any defects in the NOCC, if such defects exist. Should the claim that the Will is invalid be struck: Paragraph 1 of

Part 2 andParagraphs 1 and 2 of

Part 3? [25] Sheila argues the plaintiffs failed to plead any material facts to support a claim that the Will is invalid. In paras. 1 and 2 of

Part 3of the NOCC, the plaintiffs allege that Winnifred was unduly influenced by Sheila with respect to estate planning and inter vivostransfers. If this is a conclusion of law, as this is listed under the

section under “Part 3: Legal Basis”, Sheila argues this part of the claimought to be struck as there are no material facts supporting this conclusion of law. Alternatively, Sheila argues if this was not pleaded as aconclusion of law, but a pleading of undue influence as a material fact, there are insufficient particulars. Sheila relies on R. 3-7(18),which states that a pleading of undue influence requires full particulars. [26] The plaintiffs argue sufficient facts are pleaded in the NOCC to support an allegation of undue influence.

They argue thepleadings set out that Winnifred was a vulnerable person, and that Sheila was in a relationship with Winnifred with a potential for undueinfluence. They argue this is sufficient to create a presumption of undue influence. [27] Both sides relied on the decision of Master Elwood, as he then was, in Zen v. De Jesus, 2021 BCSC 768. The facts in Zen arevery similar. The plaintiff brought an application to vary the last will of her late father. The defendants are siblings of the deceased, aswell as the executor of the estate. Ms.

Zen argued her late father was under undue influence of his siblings and as a result, changed hiswill and gave the siblings gifts before he died. Ms. Zen sought a declaration that the inter vivos gifts be set aside due to undue influence,and a declaration that the defendant siblings hold any assets they received as gifts in trust for the estate.

She also sought to vary the willpursuant to WESA. [28] Master Elwood set out the approach the court should take on an application to strike: [12] On an application under Rule 9-5(1)(a), the question is whether it is plain and obvious the pleading discloses no reasonableclaim. The application proceeds on the basis the facts pleaded are true, unless they are manifestly incapable of being proven. Theapproach is generous; if an amendment can salvage an otherwise questionable claim, the court should permit the plaintiff an opportunityto amend: R. v.

Imperial Tobacco Canada Ltd., 2011 SCC 42, at para. 17, 21-22; Krist v. British Columbia, 2017 BCCA 78, at paras. 22-23; Berthin v. Berthin, 2016 BCSC 2235, at para. 13 to 15. [29] In my view, the NOCC does not set out sufficient particulars of the undue influence relied on by the plaintiffs. I agree with Sheilathat the NOCC only set out a bare allegation, with no indications of how, when and where Sheila exercised undue influence over her latemother.

Other than a reference to her declining health and her age, the NOCC does not set out how Winnifred was vulnerable and thenature of the relationship between her and Sheila. The plaintiffs have not pleaded material facts to support an allegation of undueinfluence. The following comments by Master Bouck in Harrison v. Apperloo, 2016 BCSC 1129, offer some guidance as to what mustbe pleaded: [13] The plaintiff says that the details or particulars of the undue influence claim will be fleshed out from the defendants through thediscovery process.

Aside from the fact that the plaintiff ought not to make pleas that have no known factual basis, authorities wereoffered which allow the plaintiff’s obligations under Rule 3-7(18) to await completion of the discovery process. The plaintiff can lateradd to or elaborate on the initial particulars, following the examinations: Rule 3-7 (20). Nevertheless, in order to identify the actual issuesbetween the parties as well as permit the defendant to comply with the discovery obligations and prepare herself for an examination, it isexpected that purported facts of undue influence have more than a generic quality to them.

Without intending to do the plaintiff’s job forher, some particulars that might be offered are: How was the testator under the direction and control of the plaintiff? What position oftrust and confidence did the defendant hold over the testator? When or how did the defendant coerce the testator? Guidance on thematerial facts to be pled and proven may also be found in Geffen v. Goodman Estate, (SCC), [1991] 2 S.C.R. 353, anauthority cited by the plaintiff. [30] Sheila also argues another basis to strike para. 1 of

Part 1 is that the plaintiffs are seeking an order that the Will is invalid, whichmust be decided in a proof in solemn form proceeding pursuant to R. 25-14(4): Naidu v. Yankanna (Estate), 2018 BCSC 878 atparas. 19–20.

The plaintiffs are also seeking to vary the Will pursuant to s. 60 of WESA, which Sheila argues is an inconsistent relief, asthe Will cannot be varied until it has been determined to be valid. [31] The plaintiffs argue R. 25-14(4) allows the court to grant an order proving a will in solemn form in proceedings not started bypetition, if there is an “existing proceeding” in which it is appropriate to seek that order. As I understand it, the plaintiffs argue thisaction is an “existing proceeding” within the meaning of R. 25-14(4).

The plaintiffs argue the relief of a wills variation is pleaded in thealternative, if the Will is found to be valid. As such, the relief sought of a wills variation is not inconsistent with the relief sought of anorder that the Will is invalid. [32] In my view, the plaintiffs ought to be provided an opportunity to amend the NOCC to provide further particulars of theallegations of undue influence. The court should provide an opportunity to amend where it may salvage the claim. It appears there arefurther particulars known to the plaintiffs to support their claim.

The NOCC was filed in November 2021, and the response to civil claimwas filed by Sheila on April 1, 2022, which had identified deficiencies in the NOCC. This application to strike was filed by Sheila onDecember 8, 2022. It is unclear to me why the plaintiffs have taken no steps to amend the NOCC. [33] As for the argument that this proceeding is the incorrect forum to seek an order that the Will is invalid, I find Sheila’s position islikely correct. The plaintiffs ought to challenge the validity of the Will in the probate proceeding, as this action likely does not qualify as

an “existing proceeding” pursuant to R. 25-14(4). However, I find overall the plaintiffs’ claim that the Will is invalid is suitable to be decided with the other issues raised in this action and it does not need to be brought in the probate proceeding. Further, if the relief of a wills variation is an alternative remedy, the plaintiffs ought to properly plead that it is so. [ 34 ] The plaintiffs shall be provided with 30 days from the date of this ruling to file an amended NOCC to cure the above defects. Should the claim that the transfer of the Family Home to Sheila be set aside be struck: Paragraph 2 of

Part 2? [ 35 ] Sheila argues the plaintiffs have no standing to seek orders to recover assets to the estate, as such a claim must be commenced on behalf of the personal representative of the estate or with leave of the court, pursuant to s. 151 of WESA . The plaintiffs have not obtained such leave. [ 36 ] The plaintiffs argue a claim by a wills variation claimant for an order to declare assets are held in trust for an estate does not require leave pursuant to s. 151 of WESA . The plaintiffs rely on Zen : [35] The defendants argue that Sharma is distinguishable because, unlike Ms. Sharma, Ms.

Zen can apply for leave under s. 151 of WESA . She is a beneficiary under her father’s will. Also, s. 151 of WESA was amended effective September 16, 2019, to add wills variation applicants to the categories of people who may apply for leave to bring proceedings on behalf of an estate. [36] In my view, Sharma affirms the standing of a wills variation applicant, apart from s. 151 of WESA , to seek a declaration concerning the assets of an estate in which she claims an interest, where the true size of the estate is material to the claim. In Doucette v.

McInnes, 2007 BCSC 289 , for example, Madam Justice Dorgan found that a legatee could amend his claim in a wills variation action to include a declaration that certain joint accounts were held in trust rather than constituting inter vivos gifts. [37] Ms. Zen is a legatee and a wills variation claimant.

She cannot claim damages or restitution from the defendants, except on behalf of the estate with leave of the court under s. 151 ; but, on the authority of Doucette and Sharma, she can seek a declaration that the defendants hold assets in trust for the estate. [ 37 ] However, the plaintiffs have not referred to the paragraphs immediately following, where Master Elwood held that while the plaintiffs can seek a declaration that defendants hold assets in trust for the estate, the plaintiffs, without leave of the court, cannot seek the consequential relief of setting aside transfers of assets to the defendants: Zen at paras. 38 – 41 .

The plaintiffs in the NOCC have sought to set aside the transfer of the Family Home and the transfer of gifts of cash inter vivos to Sheila. [ 38 ] I agree the plaintiffs need to obtain leave of the court pursuant to s. 151 for standing to seek to set aside the transfer of the Family Home to Sheila. However, in these circumstances where the plaintiffs are self-represented, instead of striking out this part of the claim, I find it ought to be stayed until the plaintiffs obtain such leave: Engel v. Engel , 2005 BCSC 33 ; Raye v. Phillip Estate , 2021 BCSC 387 at para. 37 .

I find this is fair and just, to allow the plaintiffs an opportunity to obtain leave so their claims can be heard on the merits. [ 39 ] The plaintiffs must file an application seeking leave pursuant to s. 151 of WESA within 30 days of this ruling. While I will not put any time limit on when the application for leave is to be heard, in my view, it should be heard promptly. Should the claim that the transfer of inter vivos gifts of cash to Sheila be set aside be struck: Paragraph 3 of

Part 2? [ 40 ] In my view, for the reasons discussed above, the plaintiffs require leave of the court pursuant to s. 151 of WESA to pursue this relief. [ 41 ] This portion of the claim is stayed until the plaintiffs obtain leave. The plaintiffs must file an application seeking leave pursuant to s. 151 of WESA within 30 days of this ruling. While I will not put any time limit on when the application for leave is to be heard, in my view, it should be heard promptly. Should the claim for an order that Sheila pass her accounts be struck: Paragraph 5 of

Part 2? [ 42 ] Sheila argues the plaintiffs have no standing to seek a passing of accounts from her in her capacity as attorney. The duty to account is a duty owed to the grantor of the power of attorney if she is alive, or the personal representative of the deceased: Sull v. Pengelly , 2019 BCSC 575 at para. 116 . As such, leave of the court is required pursuant to s. 151 of WESA to enforce this obligation owed to the estate. [ 43 ] This portion of the claim is stayed until the plaintiffs obtain leave. The plaintiffs must file an application seeking leave pursuant to s. 151 of WESA within 30 days of this ruling.

While I will not put any time limit on when the application for leave is to be heard, in my view, it should be heard promptly. Conclusion [ 44 ] The Court makes the following orders:

1. The plaintiffs have 30 days from the date of this ruling to file an amended NOCC to set out particulars of the allegations of undue influence. 2. Paragraphs 2, 3 and 5 of

Part 2 of the claim are stayed until the plaintiffs obtain leave of the court. The plaintiffs must file an application seeking leave pursuant to s. 151 of WESA within 30 days of this ruling. The application for leave should be heard promptly. 3. As Sheila has been substantially successful, she ought to have her costs of this application at the ordinary scale in any event of the cause. “Chan J.”