Estate of Joyce Schulz v. Locke, 2024 BCSC 293

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Estate of Joyce Schulz v. Locke, 2024 BCSC 293 Date: 20240221 Docket: S251760 Registry: New Westminster In the Matter of the Estate of Joyce Schulz, Deceased Between: Estate of Joyce Schulz, Deceased, by her Trustee and Litigation Representative, Sandra Sutherland Petitioner And Tara Locke, Chris Legault, and Lynn Houston Respondents Before: The Honourable Mr. Justice Riley Reasons for Judgment Counsel for the Petitioner: B. Kibur Counsel for the Respondent Tara Locke: G.T. Behan No other appearances Place and Date of Hearing: New Westminster, B.C.

January 17, 2024 January 22, 2024 Place and Date of Judgment: New Westminster, B.C. February 21, 2024 Introduction [ 1 ] These are reasons for judgment on a petition seeking rectification of a testamentary instrument under s. 59 of the Wills, Estates and Succession Act , S.B.C. 2009, c. 13 [ WESA ]. The petitioner Ms. Sutherland is the executor, trustee, and one of three beneficiaries of the estate of her deceased mother.

She says that a codicil that was duly executed on 22 November 2017 erroneously alters her mother’s will dated 26 October 2012, when her mother’s true intent was to alter a subsequent will dated 17 December 2013. The respondents Ms. Locke and Mr. Legault — the petitioner’s niece and nephew, and the grandchildren of the deceased — are the other two main beneficiaries of the estate. They oppose the petition, asserting that there is no basis for calling into question the manifest intention of the deceased, as reflected in the codicil. They say the evidence presented by Ms.

Sutherland is unconvincing and does not meet the burden resting on a party seeking to rectify a testamentary instrument on the basis of an alleged error or failure to implement the testator’s instructions.

Facts [ 2 ] At the time of her passing, the deceased Joyce Schulz had one surviving child from her first marriage (the petitioner Sandra Sutherland), two grandchildren (the respondents Tara Locke and Chris Legault, who are the petitioner’s niece and nephew), and one surviving step-child from her second marriage (the respondent Lynn Houston, who is now deceased). [ 3 ] There is evidence in the record of three separate testamentary instruments duly executed by Ms. Schulz. All three instruments were prepared by Ms. Schulz’s solicitor, Mr.

Einarsson, who is also now deceased. [ 4 ] The first testamentary instrument in point of time is a will dated 26 October 2012 (the “2012 Will”). The 2012 Will revoked all previous wills and appointed Ms. Schulz’s second husband (Mr. Schulz) and her daughter (Ms. Sutherland) as joint executors and trustees. The 2012 Will provided that should Ms. Schulz survive her second husband (which she did), then the residue of her estate was to be divided equally amongst three beneficiaries or groups of beneficiaries: (

i) one-third to her daughter Ms. Sutherland, (ii) one-third to

her step-daughter Ms. Houston, and (iii) one-third to her grandchildren Ms. Locke and Mr. Legault. [ 5 ] The second testamentary instrument is a will dated 17 December 2013 (the “2013 Will”). The 2013 Will again revoked all previous wills and appointed Mr. Schulz and Ms. Sutherland as joint executors and trustees. The 2013 Will provided that should Ms. Schulz survive her second husband, then (

a) her daughter Ms. Sutherland was to inherit Ms. Schulz’s condominium property on Bartlett Court in Burnaby, and (

b) the residue of the estate was to be divided equally amongst the same three beneficiaries or groups of beneficiaries, namely (

i) Ms. Sutherland, (ii) Ms. Houston, and (iii) Ms. Locke and Mr. Legault. [ 6 ] The third testamentary instrument is a codicil dated 22 November 2017 (the “Codicil”). It stated that it was a “Codicil to the last Will of me, Joyce Schulz”, “which last Will is dated the 26th day of October 2012 and is referred to in this Codicil as ‘My Will’”. The Codicil went on to quote and alter specific passages in the 2012 Will, referencing them by paragraph numbers and subparagraph letters and setting out language that corresponds to particular paragraphs and subparagraphs, some of which were unique to the 2012 Will.

The Codicil effected two substantive changes to the 2012 Will. One change was to make specific gifts of $5,000 to each of Ms. Schulz’s two grandchildren (Ms. Locke and Mr. Legault) and to two step-grandchildren, the offspring of her step-daughter Ms. Houston. The other change was to provide that should Ms. Schulz survive her second husband, the residue of her estate was to be divided equally between two beneficiaries or groups of beneficiaries: (

i) Ms. Sutherland, and (ii) Ms. Locke and Mr. Legault. [ 7 ] The latter of these substantive changes clearly had the effect of removing Ms. Schulz’s step-daughter Ms. Houston as a residuary beneficiary. The evidence in the record explains that this change was made in recognition of the fact that Ms. Schulz and her second husband Mr. Schulz made an inter vivos gift of $100,000 to Ms. Houston upon the sale of their former family home. [ 8 ] Ms. Schulz passed away on 28 April 2022. Because Ms. Schulz outlived her second husband, Ms.

Sutherland became the sole executor and trustee, under whichever version of the will governs. However, a dispute has now arisen with respect to the legal effect of the Codicil, which purports to modify the 2012 Will, notwithstanding the existence of the duly executed 2013 Will. [ 9 ] In her petition, Ms. Sutherland contends that the Codicil erroneously modifies the prior will, when her mother’s intent was to modify her most recent will. By way of background, Ms. Sutherland explains that her sister Brenda Krutow passed away in 2004, leaving two children, Ms. Locke and Mr.

Legault (who were then 12 and 15 years old respectively). Ms. Krutow left her estate, which included the Krutow family home, to her children in trust. After Ms. Krutow’s death, her sister Ms. Sutherland sold her own home, moved into the Krutow home, and became the guardian of the children and administrator of the trust. Ms. Sutherland explains in her affidavit that in recognition of the sacrifices she made in looking after her sister’s two teenage children, her mother’s 2013 Will specifically gifted the Bartlett Court condominium to her. As evidence of Ms.

Schulz’s intentions regarding the Bartlett Court condominium, Ms. Sutherland refers to a property transfer document showing that when the condominium was acquired in 2006, Ms. Sutherland was listed on the title as a joint owner, along with Ms. Schulz and her second husband Mr. Schulz. [ 10 ] Ms. Sutherland’s supporting affidavit includes a number of averments regarding her mother’s intention with respect to the Bartlett Court condominium. For example, paragraph 41 of Ms.

Sutherland’s affidavit states, “The Deceased made it clear that upon her death I would have the condo to help me get back into the housing marketing [ sic ] since I was still renting after selling my home in 2004”. Paragraph 42 of Ms. Sutherland’s affidavit states that Ms. Schulz was “adamant about this point”, and that she “attended with her lawyer in 2013 to clarify her testamentary instructions that the family home would be bequest to me and then she made provisions for the distribution of the residue of her estate”. [ 11 ] Ms.

Sutherland goes on to assert that her mother’s intention in executing the Codicil was not to revert to the prior arrangement in which the entire residue of the estate (including the Bartlett Court condominium) was divided equally between herself and the other beneficiaries, but rather to simply remove Ms. Schulz’s step-daughter Ms. Houston as one of the residuary beneficiaries. Ms. Sutherland asserts that it was the continuing intention of her mother to leave the Bartlett Court condominium to her, thereby keeping it out of the residue of the estate that was to be divided amongst the residuary beneficiaries.

Thus, Ms. Sutherland maintains, the reference in the Codicil to the 2012 Will, and the references to specific clauses and subclauses in that will, are the product of a clerical error or mistake by the solicitor, in effecting modifications to the wrong will. Ms. Sutherland maintains that Ms. Schulz’s clear intent was to use the Codicil to simply update the provisions of her most recent will. [ 12 ] The gist of Ms. Sutherland’s position regarding the alleged solicitor error is addressed at paragraphs 61 and 62 of her affidavit, which read as follows: 61.

I believe that the Deceased intention to update her 2013 Will by way of the 2017 Codicil but that the solicitor made an error in referencing the 2012 Will instead. 62. It is my position, therefore, that the solicitor made an error in following the testator’s instructions, by referring to the already revoked 2012 Will instead of the valid 2013 Will. [ 13 ] The petition was brought by Ms. Sutherland in her capacity as the executor of Ms. Schulz’s estate. It was duly served on all parties with a potential interest in the estate, namely Ms. Locke, Mr. Legault, and the estate of Ms. Houston. [ 14 ] Ms.

Locke filed a response to the petition and a supporting affidavit, opposing rectification. Mr. Legault filed a separate response to the petition endorsing or adopting the position taken by Ms. Locke. He was notified of the petition hearing but did not participate. Ms. Houston’s estate did not file a petition response. The estate was notified of the hearing but no one attended on its behalf. [ 15 ] In response to the petition, Ms. Locke asserts that Ms. Schulz’s manifest intent in the Codicil was to revive and modify the first will. More specifically, Ms.

Locke’s position is that the intent of the Codicil was that the entire residue of the estate, including the Bartlett Court condominium, be divided equally between Ms. Sutherland on the one part, and Ms. Locke and Mr. Legault on the other part. [ 16 ] Ms. Locke says her grandmother’s consistent approach over time had been to ensure equal treatment as between her daughter Ms. Sutherland on the one hand, and the two children of her other daughter Ms. Krutow on the other hand. Thus, Ms. Locke explains,

whenever Ms. Schulz provided a benefit to Ms. Sutherland, she provided an equal benefit to Ms. Locke and Mr. Legault. In her affidavit, Ms. Locke cites three examples in 2016 and 2017 in which Ms. Schulz gave substantial amounts of money to Ms. Sutherland and gave equal amounts to Ms. Locke and Mr. Legault. [ 17 ] With regard to the Bartlett Court condominium, Ms. Locke avers that she does not know what her grandmother told Ms. Sutherland, and she is only able to comment on what her grandmother said directly to her. Ms. Locke recounts a conversation in which she told Ms.

Schulz about the settlement of her mother’s estate, which included an agreement by Ms. Locke and Mr. Legault to pay Ms. Sutherland a total of some $58,000 for her role in administering the family trust. Ms. Schulz responded that she thought it was “unfair” that Ms. Locke and Mr. Legault had to pay Ms. Sutherland that much. In the “same conversation”, Ms. Schulz also said “she wanted Chris and me to inherit a share of [the Bartlett Court condominium]”. Ms. Schulz “told me specifically that Sandra would get 50% and Chris and me would get 25% each”. Ms. Locke avers that she had this conversation with Ms.

Schulz about three months after the settlement of the Krutow trust. On this basis, I infer that the conversation took place some time in the fall of 2016. Ms. Locke adds that Ms. Schulz stated on several occasions that “she would update her will” accordingly. [ 18 ] As noted, the solicitor Mr. Einarsson is now deceased, making it impossible to get his input regarding Ms. Schulz’s intention in executing the Codicil. The entire solicitor’s file has been made available to the parties to this litigation. The file contents have been appended to Ms.

Sutherland’s affidavit, and I am told that the documents are presented in the exact same order as they were found in Mr. Einarsson’s file. [ 19 ] The solicitor’s file includes five handwritten notes. [ 20 ] The first note is dated 23 November 2016 at 11:00 am. It refers to “Joyce Schulz”. It includes, among other things, the following handwritten text: “5. Sandra is sole trustee – alt Tara”; “7(

c) sell family home”; “divide 50% Sandra – 50% for Chris and Tara”; and “sever joint tenancy” . [ 21 ] The second note is dated 23 November 2016 at 2:30 pm. It refers to “Joyce”. It includes, among other things, the following handwritten text: “Advised that land was in 3 joint names. So are bank accounts – she will take all money from the bank account + open new in her name. Then will to Tara + Chris; Wants to think about it for a day”. [ 22 ] The third note is dated 27 February 2017.

It includes, among other things, the following handwritten text: “Joyce had a fall + may have had a stroke – would like the condo to go 50% to Davids family + 50% to Sandra + the two grandchildren”; I said it could be sold using POA + then divide the money. She may go to a care home (W Rock?); “will discuss with Sandy”. [ 23 ] The fourth note is dated 15 November 2017. It refers to “Joyce Schulz + Sandra”.

It includes, among other things, the following handwritten text: “all accounts and condo are in 3 joint names”; “Lynn received $100000 when Joyce + David sold White Rock home”; “grandchildren expect a share of the condo when it sells”; “do a new will with no mention of Lynn => do a codicil to delete Lynn in para 7(c) $200”. [ 24 ] The fifth and final note is undated. It includes, among other things, a handwritten reference to “2)(i)(ii) as is”, and then goes on to reference specific bequests to be made from a Vancity savings account, in the amount of $5,000 each, to Ms. Locke, Mr. Legault, and each of Ms.

Houston’s two children. (All of this corresponds more or less exactly with terms (2)(

i) and (ii) of the Codicil). The note continues with the following handwritten text: “residue => of this account to Lynn Houston and Sandra my executor”. Analysis Determination of the Petition by way of a Chambers Hearing [ 25 ] This proceeding was commenced by way of petition. At one point, the case law held that proceedings brought by petition ought to be referred to the trial list whenever there were contentious points of fact or law that gave rise to a “triable issue”, unless the party seeking a trial was bound to lose: Kerfoot v.

Richter , 2018 BCCA 238 at paras. 20 , 27, applying British Columbia (Milk Marketing Board) v. Saputo Products G.P. / Saputo Produits Laitiers Canada S.E.N.C. , 2017 BCCA 247 . [ 26 ] On the other hand, there is recent case law emphasizing the “presumptively

summary” process for petition proceedings dealing with proof of a will, in the interests of “[e]fficiency, affordability, and proportionality”: Waibel Estate (Re) , 2023 BCSC 322 at para. 9 . What is more, Cepuran v. Carlton , 2022 BCCA 76 signals a move away from the “triable issue” paradigm articulated in Saputo . Under the reasoning in Cepuran , chambers judges are reposed with a broad discretion to determine the appropriate procedure for adjudication of petition proceedings. [ 27 ] In this particular case, both parties urged the court to decide the points in issue by way of a

summary process, based on affidavit evidence. While there are factual disputes in the record, the parties say they can be resolved without credibility findings, although there may still be some need for a qualitative assessment of the evidence. They also point out that there has been full disclosure of the solicitor’s file, the entirety of which has been included in the record as an exhibit to the petitioner’s affidavit. Finally, the parties submit that the principle of proportionality weighs in favour of resolving the dispute by way of a chambers hearing, rather than referring the matter to the trial list.

I accept all of these submissions, and on that basis I am prepared to decide this matter by way of a

summary hearing in chambers. Admissibility of “Extrinsic Evidence” of Testamentary Intention [ 28 ] As a preliminary point, counsel for Ms. Locke objects to the admissibility of paragraphs 41, 42, 53, 57, 61, and 62 of Ms. Sutherland’s affidavit. Ms. Locke’s application response contends that these paragraphs contain “bald assertions, impermissible [ sic ] beliefs, argument, and opinion”. I will assume that counsel’s use of the phrase “impermissible beliefs” is a typographical error and the

true objection is that the impugned passages in Ms. Sutherland’s affidavit contain “inadmissible beliefs”. Obviously, Ms. Sutherland ispermitted to believe whatever she wants. The issue is whether her statements of belief are admissible evidence. [29]

Section 59 of WESA governs rectification of wills. Section 59(2) provides that, “[e]xtrinsic evidence, including evidence of thewill-maker’s intent, is admissible to prove the existence of a circumstance described in subsection (1)”.

This provision allows the court toconsider “extrinsic evidence”, that is, evidence outside of the testamentary instrument itself, in determining whether the instrument “failsto carry out the will-maker’s intentions” due to an error arising from an accidental slip or omission, a misunderstanding of instructions,or a failure to give effect to those instructions as contemplated in s. 59(1). [30] The reason for allowing “extrinsic evidence” was alluded to in Jamt Estate (Re), 2021 BCSC 788 at paras. 34–36, drawing onHadley Estate (Re), 2017 BCCA 311 at para. 40.

To paraphrase, the task of determining testamentary intent in a probate proceeding is“inherently challenging because the person best able to speak to these intentions – the deceased – is not available to testify”, and alsobecause the relevant documents have very often been drafted without legal assistance.

In this context, the “court will benefit fromlearning as much as possible about all that could illuminate the deceased’s state of mind, understanding and intention regarding thedocument”: Hadley Estate at para. 40. [31] While certain provisions of WESA, including s. 59(2), allow for “wide-ranging evidence regarding the testator’s state of mind,understanding and intentions”, the statutory authority for the court to consider extrinsic evidence is still “subject to” rules ofadmissibility: Jamt Estate at para. 36, citing Hadley Estate at para. 40.

In other words, s. 59(2) permits the court to consider “extrinsicevidence”, but does not do away with the ordinary rules governing admissibility.

Even under s. 59(2), evidence of a will-maker’s intentcan only be tendered in a form that is admissible. [32] Statements of a deceased will-maker’s intent “may be admissible under a traditional exception to the hearsay rule as evidence ofthe deceased’s state of mind, or under the ‘principled approach’ to hearsay evidence” where the statements satisfy the twin criteria ofnecessity and reliability: Dickinson-Starkey Estate (Re), 2022 BCSC 93 at para. 40, citing Peterson v. Welwood, 2018 BCSC 1379 atparas. 70–78. [33] In this case, I am able to deal with the admissibility of the statements attributed to Ms.

Schulz under the state of mind exceptionto the hearsay rule, making resort to the principled approach to admission of hearsay evidence unnecessary. At first instance, out of courtstatements made by a deceased declarant are inadmissible when tendered for the truth of their contents. However, the “state of mind”exception to the hearsay rule allows for admission of a deceased declarant’s utterances as to a contemporaneous intention or state ofmind, to prove the declarant’s intent or state of mind, but not for the truth of any underlying factual assertions: Rawlins v. Rawlins, 2023BCSC 466 at para. 95, citing R. v.

Smith, (SCC), [1992] 2 S.C.R. 915, R. v. Evans, 2002 BCSC 1674 at para. 35, andPasko v. Pasko, 2002 BCSC 435. [34] The first three paragraphs in Ms. Sutherland’s affidavit objected to by Ms. Locke are paragraphs 41 to 43, which read as follows: 41. The Deceased made it clear that upon her death I would have the condo to help me get back into the housing marketing [sic] since Iwas still renting after selling my home in 2004. 42.

She was so adamant about this point, that she attended with her lawyer in 2013 to clarify her testamentary instructions that thefamily home would be bequest to me and then she made provisions for distribution of the residue of her state, asides from the familyhome. 43. The clarification of the bequest of the property to me alone was the primary reason for updating her 2012 Will just a year later in2013. [35] Certainly, portions of these three paragraphs are admissible under the state of mind exception. In my view, the entirety ofparagraph 41 is Ms. Sutherland’s recounting of one or more statements made by Ms.

Schulz as to her testamentary intent with respect tothe Bartlett Court condominium. The first phrase in paragraph 42, to the effect that Ms. Schulz was “adamant about this point” is, in myview, also admissible under the state of mind exception to the hearsay rule. However, one of the limitations of this evidence is thatMs. Sutherland does not say precisely when it was that Ms. Schulz made these statements of testamentary intention. Using the balance ofparagraph 42 and the entirety of paragraph 43 as context, I conclude that Ms.

Schulz made these statements at some point prior toexecuting the 2013 Will on 17 December 2013. [36] The challenge in assessing the admissibility of the balance of paragraph 42 and the entirety of paragraph 43 is that to some extentthe evidence of Ms. Schulz’s statements of intent are bound up with and mixed in together with Ms. Sutherland’s own evidence as to thesignificance of those stated intentions. It would certainly appear that some of what Ms. Schulz says in paragraph 42 — most notably thecomment about “provisions for the distribution of the residue of her estate” — is not evidence of a statement by Ms.

Schulz as to herstate of mind, but is rather Ms. Sutherland’s own opinion on the construction of Ms. Schulz’s will. Further, I would consider the entiretyof paragraph 43 to be an expression of Ms. Sutherland’s opinion as opposed to a statement of Ms. Schulz evidencing her own state ofmind. [37] In the result, I would admit the entirety of paragraph 41 and the first phrase in paragraph 42 under the state of mind exception tothe hearsay rule. I would not admit the balance of these paragraphs for the truth of their contents, but only for the limited purpose ofascertaining the time frame within which Ms.

Schulz made the statements of testamentary intent as recounted by Ms. Sutherland. [38] The next portion of Ms. Sutherland’s affidavit to which objection is taken is paragraph 57, which reads as follows: 57. I believe that the Deceased made changes to the 2013 Will via Codicil to further reduce Lynn’s share of the inheritance from theDeceased’s estate. Lynn Houston, prior to her death, had expressed to me that she believed that she had already been given herinheritance and that the balance of the Deceased’s estate was to be provided to me. [39] I agree with counsel for Ms.

Locke that the first sentence in paragraph 57 is inadmissible opinion evidence, or an inadmissible

statement of conclusion offered by Ms. Sutherland. The next sentence, recounting a statement made by the now-deceased Ms. Houston, could in theory be admitted under the state of mind exception, because it is a recounting of a declaration made by Ms. Houston as to her state of mind regarding her own expectations of inheritance. However, this statement is of exceedingly limited relevance, since the issue to be decided in this litigation turns on Ms. Schulz’s testamentary intent, not her step-daughter’s expectations of inheritance. I suppose the evidence showing that Ms.

Houston’s expectations lined up with some of the changes reflected in the Codicil could be some circumstantial evidence of Ms. Schulz’s testamentary intent, but I would assign little to no weight to that evidence because there is never any guarantee that a testator’s final intentions will line up with the expectations of inheritance of all potential beneficiaries. In any event, the final phrase in paragraph 57, recounting Ms. Houston’s belief as to what should become of “the balance” of Ms. Schulz’s estate after accounting for Ms.

Houston’s own interests, is completely irrelevant. [ 40 ] The final two paragraphs of Ms. Schulz’s affidavit to which objection is taken are paragraphs 61 and 62. I have already quoted them above but for ease of reference I will repeat them here, as follows: 61. I believe that the Deceased intention to update her 2013 Will by way of the 2017 Codicil but that the solicitor made an error in referencing the 2012 Will instead. 62.

It is my position, therefore, that the solicitor made an error in following the testator’s instructions, by referring to the already revoked 2012 Will instead of the valid 2013 Will. [ 41 ] I certainly agree with counsel for Ms. Locke that these passages do not contain any admissible evidence of Ms. Schulz’s testamentary intent. However, I regard these parts of Ms. Sutherland’s affidavit as merely stating her position or reason for bringing the petition and for framing what occurred as an alleged solicitor’s error in failing to give effect to Ms.

Schulz’s instructions in the preparation and execution of the Codicil. I would not strike these paragraphs, but I would certainly not give the assertions contained therein any weight when it comes to analyzing the issue of whether rectification of the Codicil is warranted under s. 59(1) of WESA . [ 42 ] Although counsel for Ms. Sutherland did not formally object to the admissibility of any parts of Ms. Locke’s affidavit, in the interests of fairness and consistency, the rules of admissibility discussed above ought to be applied with equal force to Ms. Locke’s evidence. [ 43 ] Insofar as the issue of Ms.

Schulz’s testamentary intentions are concerned, the key paragraphs of Ms. Locke’s affidavit are as follows: 20. After the Settlement [a defined term, referencing the winding up and settlement of the Krutow family trust as between Ms. Locke, Mr. Legault, and Ms. Sutherland], I spoke with my Grandma about it on several occasions. At one point approximately three months after the Settlement, I showed my Grandma a copy of the Settlement agreement and the legal accounts which Chris and I had paid. Grandma told me that she thought it was unfair that Chris and I had paid that much. 21.

During these same discussions, Grandma told me that she wanted Chris and me to inherit a share of the Property [a defined term, referencing the Bartlett Crescent condominium]. Grandma said to me specifically that Sandra would get 50% and Chris and me would each get 25%. Grandma remarked on a few occasions that she would update her will. 22. After these initial discussions, Grandma repeated this to me on a number of occasions, over several years.

She was unequivocal about it; Sandra would get 50% of the Property, and Chris and I would each get 25%. [ 44 ] Applying the same rules of evidence discussed above, standing on its own, the statement attributed to Ms. Schulz in the last sentence of paragraph 20 would be inadmissible, because it is not a statement of testamentary intent. It is, rather, a statement of Ms. Schulz’s view of the fairness of the Krutow family trust settlement as between Ms. Locke, Mr. Legault, and Ms. Sutherland. However, in my view the entirety of paragraph 20, including the statement attributed to Ms.

Schulz, is admissible for two purposes. The first is to identify the timing of the statements attributed to Ms. Schulz in paragraph 21 of Ms. Locke’s affidavit. The second is to provide Ms. Schulz’s own explanation for her statements of testamentary intent in paragraphs 21 and 22 of Ms. Locke’s affidavit. In other words, the statement attributed to Ms.

Schulz in paragraph 20 was a contemporaneous declaration of her state of mind, which is relevant to her testamentary intent in paragraphs 21 and 22. [ 45 ] I have no difficulty concluding that on the basis of the rules of evidence discussed above, the statements attributed to Ms. Schulz in paragraphs 21 and 22 of Ms. Locke’s affidavit are clearly admissible under the state of mind exception to the hearsay rule. They are classic statements of testamentary intention. [ 46 ] I should also note at this point that the timing of these statements is significant in my legal analysis below. Ms.

Locke explains in her affidavit that these statements were made about three months after the Krutow family trust was settled. The settlement was in the summer of 2016, so Ms. Schulz’s statements of an intention to leave Ms. Locke and Mr. Legault each a 25% share of the Bartlett Court condominium and to amend her will accordingly were made in the fall of 2016. These statements were made almost three years after Ms. Schulz executed her second will on 17 December 2013, around the time of Mr.

Einarsson’s second and third notes made on 23 November 2016, and one year prior to the execution of the Codicil on 22 November 2017. Rectification of a Testamentary Instrument under WESA [ 47 ] Section 59(1) of WESA gives the court the statutory power to rectify a will. The term “will” is defined in s. 2 of WESA to include a codicil. Prior to the enactment of s. 59 , courts in British Columbia had been unwilling to extend the equitable remedy of rectification to wills, and “the court’s power to rectify a will was virtually non-existent”: Simpson v.

Simpson Estate , 2022 BCCA 208 at paras. 65 , 70: Jamt Estate at para. 42. [ 48 ] In Simpson Estate at para. 71 , Justice Grauer urged a cautious approach to rectification under s. 59(1) of WESA in view of the “dangers of engaging in an overly-subjective exercise of guessing about the will-maker’s understanding, and of unintentionally remaking

a will”. Later in the decision, Grauer J.A. explained that the “court’s task is not to fill a gap” or somehow make up for a “lack of intention, but rather to discern whether the evidence establishes a true intention”.

This fits with the broader purpose of the doctrine of rectification, which is to give effect to true intentions, where there has been “an erroneous transcription or incorrect expression of those true intentions” in a written instrument: Simpson Estate at para. 97 . [ 49 ] In Simpson Estate at paras. 78–79 , the Court endorsed the three-part analysis articulated by Justice Coval in Jamt Estate at para. 45, drawing on English authorities, as follows: First, what were the testator’s intentions with regard to the issue for which rectification is sought?

Second, does the Will as written fail to carry out those intentions? Third, is that failure a consequence of one of the reasons specified in ss. 59(1) (a)-(c)? [ 50 ] The evidence as to the will-maker’s true intention must exhibit “a high degree of clarity, persuasiveness and cogency” in order to justify judicial alteration of a duly executed will: see Simpson Estate at paras. 102–103 , drawing on the reasoning in Canada (Attorney General) v. Fairmont Hotels Inc. , 2016 SCC 56 at para. 36 .

To be clear, the civil standard of proof on a balance of probabilities continues to apply, and the court can legitimately draw reasonable inferences from the evidence: Simpson Estate at para. 103 . Nevertheless, the court must proceed with caution, and ought not to make alterations to a duly executed will in the absence of clear and cogent evidence that the will fails to give effect to the testator’s true intentions due to an accidental slip, a misunderstanding as to the will-maker’s instructions, or a failure to give effect to those instructions. [ 51 ] In Robinson Estate v. Rondel , [2010] O.J.

No. 2771 (S.C.) at para. 25, aff’d 2011 ONCA 493 , Justice Belobaba observed that rectification cases are “typically supported with an affidavit from the solicitor documenting the testator’s instructions and explaining how the solicitor or his staff misunderstood or failed to implement these instructions or made a typographical error”. Courts are “more comfortable” acting on “extrinsic evidence of testator intention when it comes from the solicitor who drafted the will” and “made the error”.

By contrast, courts are “much less comfortable” relying on often self-serving assertions from “putative beneficiaries who purport to know what the testator intended”: Robinson Estate at para. 26 . This is not because the court is applying a different legal test or a heightened level of scrutiny to the evidence in a case where the solicitor does not offer affirmative evidence of an error or mistake in relation to the testator’s instructions.

It is simply a function of the fact that in the absence of affirmative evidence from the solicitor, the evidence of an error or mistake will necessarily be indirect, and the evidence of the will-maker’s intent is much less likely to emanate from an independent or disinterested source. [ 52 ] I acknowledge that Robinson Estate is an Ontario case which considered equitable principles of rectification.

Nonetheless, Belobaba J.’s observation that most rectification cases are supported by evidence from the solicitor documenting the testator’s instructions and explaining how they were misunderstood or erroneously implemented would appear to be borne out by the case law on rectification of wills in British Columbia. I was referred to three reported cases dealing with rectification under s. 59 of WESA , namely Huber Estate (Re) , 2019 BCSC 866 , Jamt Estate , and Simpson Estate .

In all three cases, the request for rectification was supported by, among other things, evidence from the solicitor who drafted the impugned will. [ 53 ] Huber Estate was an uncontested rectification application supported by an affidavit from the solicitor who drafted the will, attesting to a miscommunication as to the number and status of the will-maker’s children. This error was shown to have had a direct bearing on the relevant terms of the will.

Justice Francis granted the application for rectification, on the basis that the will as executed reflected a misunderstanding of the will-maker’s instructions. [ 54 ] Jamt Estate was an unopposed petition for rectification, once again supported by an affidavit from the solicitor who drafted the will.

Justice Coval granted the petition, finding that the will as written failed to carry out the will-maker’s intention, due to an accidental slip in confusing the middle name of the intended sole beneficiary with the middle name of another relative who died many years before the will was executed. [ 55 ] The request for rectification in Simpson Estate was more controversial.

The Court of Appeal reasoned that the issue there was not so much a manifest error or mistake in failing to give effect to the testator’s true intention, but rather a situation in which the testator failed to advert to or come to grips with the effect of the relevant terms of the will. In these circumstances, the Court was not prepared to grant the remedy of rectification under s. 59(1) of WESA .

Still, in seeking an order of rectification, the moving party presented evidence from the will-maker’s solicitor in support of its position that an error or failure to give effect to the will-maker’s instructions had occurred. [ 56 ] The matter before me is different from these earlier rectification cases, because the petition is not supported by evidence from the solicitor who drafted the will. I appreciate that this is a situation beyond the control of the petitioner, because the solicitor who prepared the impugned testamentary instrument is deceased.

Nevertheless, the absence of any affirmative evidence from the drafting solicitor of a mistake or failure to understand or give effect to the testator’s instructions makes the claim for rectification more difficult to establish. This is not because the court is applying a different legal test or a higher level of scrutiny to the evidence in such circumstances.

It is simply a reflection of the practical difficulty in establishing that the impugned testamentary instrument contains a drafting error, or is drafted in a way that fails to give effect to the testator’s instructions, when the person responsible for the drafting is not available to give affirmative evidence to this effect. [ 57 ] On my assessment of the case, Ms. Sutherland’s claim for rectification rests on two inter-related planks. I will address each of them in turn, while acknowledging that these are not independent points that stand on their own.

The petitioner relies on both points, taken together. [ 58 ] The first plank of the petitioner’s case is the fact that the Codicil purports to make changes to the 2012 Will, despite the existence of the duly executed 2013 Will. This is effectively a point of logic. The contention is that where a testator instructs a solicitor to prepare a codicil to an existing will, the natural expectation is that the codicil will be used to modify the most recent will, not a prior will.

There is indeed some logic to this submission, but it might fairly be criticized as speculative, in the absence of some indication in the documents themselves that the true intent was to make changes to the most recent will, as opposed to reviving an earlier will. [ 59 ] The second plank of the petitioner’s case is her own evidence as to her mother’s testamentary intent. Ms. Sutherland says that

Ms. Schulz stated an intention to leave the Bartlett Court condominium to her, in recognition of her sacrifices in selling her home and serving as a guardian for her niece and nephew following the passing of her sister in 2004. Ms. Sutherland says that by preparing and appending the Codicil to the 2012 Will rather than the 2013 Will, Mr. Einarsson made an error or otherwise failed to give effect to Ms. Schulz’s testamentary intent. As I will explain below, the challenge for Ms. Sutherland on this aspect of her case is that her evidence of Ms.

Schulz’s testamentary intent appears to be focussed on the period prior to or leading up to the execution of the 2013 Will rather than the period leading up to the execution of the Codicil. [ 60 ] Having considered the terms of the Codicil, the 2012 Will that it purports to amend, and the 2013 Will, together with all of the admissible extrinsic evidence that I have discussed above, my conclusion is that Ms.

Sutherland has failed to establish the required elements of her rectification claim on a balance of probabilities. [ 61 ] I find it significant that the changes made in the Codicil marry up with specific paragraphs and subparagraphs of the 2012 Will. This weighs against the suggestion that Mr. Einarsson made a mistake in failing to append the Codicil to the most recent version of Ms. Schulz’s will, or in working from the wrong will when drafting the Codicil. On the face of it, the Codicil clearly modifies specific provisions of the 2012 Will.

The changes reflected in the Codicil do not match with the paragraph and subparagraph numbering of the 2013 Will. Further, there is nothing in the solicitor’s notes that would call into question the conclusion that the Codicil was clearly intended to effect substantive changes to the 2012 Will, and not the 2013 Will. Not only is the suggestion that Mr.

Einarsson made a mistake in using the Codicil to effect changes to the wrong will speculative, but the contents of the document itself, and the solicitor’s notes, are inconsistent with such an inference. [ 62 ] With regard to testamentary intention, the strongest evidence of Ms. Schulz’s intent at the time the Codicil was executed comes from the duly executed Codicil itself. The Codicil expressly states an intent to modify the terms of the 2012 Will, and references specific paragraphs or passages in the 2012 Will. [ 63 ] The extrinsic evidence of Ms. Schulz’s testamentary intent cuts in both directions.

On the one hand, there is Ms. Sutherland’s evidence that, at least at the time of the 2013 Will, it was Ms. Schulz’s intention to leave the Bartlett Court condominium to Ms. Sutherland, in recognition of her sacrifices in acting as a guardian for her niece and nephew. On the other hand, there is Ms. Locke’s evidence that by the fall of 2016, Ms. Schulz had formed an intention for the Bartlett Court condominium to be divided equally between Ms. Sutherland on the one hand, and Ms. Locke and Ms. Legault on the other hand. [ 64 ] If this was a case of two conflicting yet equally plausible accounts of Ms.

Schulz’s testamentary wishes, and the terms of the Codicil lined up with Ms. Locke’s account and not with Ms. Sutherland’s account, then I would be bound to dismiss the petition on the basis that Ms. Sutherland did not meet her burden in establishing on a balance of probabilities that the Codicil failed to carry out Ms. Schulz’s true testamentary intentions. [ 65 ] However, in my view, the case does not rest entirely on the petitioner’s failure to meet her burden of proof in the face of two equally plausible theories. On balance, the evidence establishes that in fact Ms.

Schulz’s testamentary intent at the time the Codicil was executed is entirely consistent with the terms of the Codicil. I emphasize here that the focus of the analysis must be on Ms. Schulz’s testamentary intention at the time that the Codicil was executed on 22 November 2017. [ 66 ] Ms. Sutherland’s affidavit speaks to her mother’s testamentary intention at a much earlier point in time, leading up to the execution of the 2013 Will. At that time, Ms. Schulz clearly had the intention to leave the Bartlett Court condominium to Ms. Sutherland, as reflected in the terms of the 2013 Will. Ms.

Sutherland’s evidence explains why this was so, namely because Ms. Schulz wanted to recognize Ms. Sutherland’s sacrifices in caring for her niece and nephew following the passing of their mother. [ 67 ] Ms. Locke’s evidence speaks to a change in Ms. Schulz’s testamentary intention, some time in the fall of 2016. When Ms. Schulz came to learn that her grandchildren paid Ms. Sutherland some $58,000 to settle the Krutow family trust, Ms. Schulz’s view was that they should not have had to pay this much. In those circumstances, Ms. Schulz stated that her intent was for the Bartlett Court property to be left to Ms.

Sutherland (50%) and Ms. Locke and Mr. Legault (25% each). [ 68 ] The evidence of a change of testamentary intention also accords with the solicitor’s notes. Mr. Einarsson’s note of 23 November 2016 at 11:00 am includes, among other things, an entry stating, “7(

c) sell family home”; “divide 50% Sandra – 50% for Chris and Tara”; and “sever joint tenancy”. This was in the fall of 2016, around the time that Ms. Locke says she discussed the Krutow family trust with Ms. Schulz, and Ms. Schulz stated that she wanted to change her will to provide that the condominium would be divided between Ms. Sutherland (50%) and Ms. Locke and Mr. Legault (25% each). Further, Mr. Einarsson’s note of 15 November 2017 includes an entry stating, “grandchildren expect a share of the condo when it sells”.

This note also references a codicil, and was made a matter of days before the Codicil was executed on 22 November 2017. [ 69 ] All of this evidence is entirely consistent with the conclusion that at some point in the fall of 2016, having learned of the manner in which the Krutow family trust was resolved, Ms. Schulz made a decision to change her will, to provide that the Bartlett Court condominium would be divided between her surviving daughter (Ms. Sutherland) and her two grandchildren (Ms. Locke and Mr. Legault). This was accomplished by way of the Codicil reviving the 2012 Will, and removing Ms.

Schulz’s step daughter (Ms. Houston) as a residuary beneficiary, leaving two residuary beneficiaries or groups of beneficiaries, namely her daughter (Ms. Sutherland), and her two grandchildren together (Ms. Locke and Mr. Legault). [ 70 ] My conclusion is that Ms. Sutherland has not established that the Codicil “fails to carry out the will maker’s intentions” as contemplated in s. 59(1) of WESA . I refer here to the three-part analysis endorsed in Simpson Estate at paras. 78–79 . The evidence does not prove (

i) that the will-maker’s intentions at the time were other than those reflected on the face of the Codicil, (ii) that there was a failure to give effect to the will-maker’s intentions, or (iii) that there was an error, a misunderstanding of the will-maker’s instructions, or a failure to carry out those instructions. For Ms. Sutherland to succeed in her petition for rectification of the Codicil, all of these elements must be made out on a balance of probabilities, and I find that she has not proven any of them. Cross-Application for a Declaration that the Codicil Revived the 2012 Will

[ 71 ] It should be obvious from my analysis above that I am satisfied Ms. Schulz’s intent when she executed the Codicil on 22 November 2017 was to revive and modify the 2012 Will. However, out of an abundance of caution, and to resolve any further disputes about which will is operative in this situation, Ms. Locke filed a cross-application for a declaration that the 22 November 2017 codicil (

a) revoked Ms. Schulz’s will dated 17 December 2013, and (

b) revived Ms. Schulz’s will dated 26 October 2012. [ 72 ] Pursuant to s. 57 of WESA , a will that has been revoked may be revived by a subsequent will that shows an intention to give effect to the revoked will. The term “will” is defined in s. 2 of WESA to include a “codicil”, and the term “codicil” is specifically referenced in s. 57(3) , thus making it clear that a previously revoked will can be revived by codicil. [ 73 ] At common law, it appears that a codicil’s mere reference by date to a revoked will may not be sufficient to constitute revival, since there is no rule of implicit revival: Macdonell v.

Purcell , 1893 CanLII 27 (Ont. C.A.) at paras. 4–5 , 24–29, aff’d 23 S.C.R. 101, 1894 CanLII 7 . However, revival can be found where there is a direct expression of an intention to revive, a disposition of property that is inconsistent with any other inference, or expressions showing with reasonable certainty an intention to revive: Macdonell at para. 3 . [ 74 ] In the case at bar, based on my findings above, I conclude that the clear intent of the Codicil was to revoke the 2013 Will and revive the 2012 Will and alter its terms in certain specific respects.

The text of the Codicil not only purports to alter the terms of the 2012 Will, but also includes references to paragraph and subparagraph numbers that are particular to the 2012 Will and do not correspond with or make sense when one refers to the 2013 Will. [ 75 ] If it were necessary to resort to the “extrinsic evidence”, it would certainly reinforce the conclusion that the intent of the Codicil was to revoke the 2013 Will and revive the 2012 Will. I refer here to Ms. Locke’s evidence of her grandmother’s stated intention to change her will, and Mr.

Einarsson’s note of 15 November 2017 (written mere days before the Codicil was executed) which includes an entry stating, “grandchildren expect a share of the condo when it sells”, and also references the term “codicil”. [ 76 ] I would therefore grant Ms. Locke’s cross-application for a declaration that the codicil duly executed by Ms. Schulz on 22 November 2017 (

a) revoked her will dated 17 December 2013, and (

b) revived her will dated 26 October 2012. Costs [ 77 ] All parties seek special costs payable by the estate. As noted in Hadley Estate at para. 47: In estate litigation, courts commonly award special costs payable out of the estate to all parties. This practice is based on the principle that where an estate issue must be litigated to remove any doubts, all interested parties must be joined and all are entitled to be heard. In such circumstances, they should not be out of pocket if, in the result, the litigation does not conclude in their favour.

The central question as to costs is whether the contested issue arises from the conduct of the deceased or the conduct of another. In the case of the former, an award of special costs from the estate will usually be made. [ 78 ] In this particular case it appears that the contested issues relate to the manner in which Ms. Schulz, with the benefit of advice from her solicitor, chose to effect changes to her will by using a codicil to amend a previously revoked will. This evidently created some room for argument that required recourse to the courts.

In these circumstances, I would not conclude that the contested issues arose from conduct attributable to either of the parties. I would therefore award special costs to both parties, payable out of the estate. “Riley J.”