First, the committee examined whether section 28 of the Family Law Act should continue to limit the maximum number of parents for a posthumously conceived child to two. Currently, section 28 states that the child’s parents are the deceased person and their spouse. Ontario, Saskatchewan, and Prince Edward Island also limit the number of parents to two. See section 12 of Ontario’s Children’s Law Reform Act, section 63 of Saskatchewan’s Children’s Law Act, 2022, and section 22 of PEI’s Children’s Law Act. The committee’s discussion focused on intentions versus biological models of parentage, what procedural requirements may be needed, and crossover with the federal Assisted Human Reproduction Act.

Second, the committee examined whether section 8.1 of the Wills, Estates and Succession Act should continue to require a genetic connection between the deceased person and the posthumously conceived child as a basis for inheritance. Currently, section 8.1 requires that the deceased person’s reproductive material be used to conceive a child through assisted reproduction after their death. Ontario’s Succession Law Reform Act does not require a genetic connection between the deceased person and the posthumously conceived child – there is no requirement that the reproductive material come from the deceased person (see sections 47(10) and 1.1). While Saskatchewan has family law legislation addressing parentage for posthumously conceived children, Saskatchewan’s Intestate Succession Act, 2019 does not address inheritance for posthumously conceived children. The committee’s discussion focused on the implications of removing the genetic connection requirement for inheritance.

Third, the committee examined whether section 8.1 of the Wills, Estates and Succession Act should continue to require a spousal relationship between the parents as a basis for inheritance. Currently, section 8.1 requires that the spouse give notice that they may use the deceased person’s reproductive material to conceive a child through assisted reproduction. The deceased and their spouse must be married or in a marriage-like relationship at the time of death. Ontario’s Succession Law Reform Act also requires a spousal relationship between the posthumously conceived child’s parents as a basis for inheritance (see sections 47(10) and 1.1). California’s Probate Code is an example of a jurisdiction where there is no spousal relationship requirement – the deceased chooses a designated person to control their reproductive material (see §249.5). The committee’s discussion focused on the implications of removing the spousal relationship requirement for inheritance and the uncertainty this could potentially cause.

At the next committee meeting in January, the committee will be discussing donor-conceived children’s right to information about their biological origins.

The goal of these discussions is to develop tentative recommendations to reform part 3 for a public consultation to be held later in the life of the project.

The post Parentage committee discusses inheritance and parentage for posthumously conceived children first appeared on British Columbia Law Institute.

The legal framework for posthumous conception spans three pieces of legislation – the federal Assisted Human Reproduction Act [AHRA], and BC’s Family Law Act and Wills, Estates and Succession Act. At the November meeting, the committee focused on two issues relating to who can be named a parent for a posthumously conceived child under section 28 of the Family Law Act – the requirements for a genetic connection between parent and child, and the requirement for a spousal relationship between parents.

First, the committee examined whether section 28 of the Family Law Act should continue to require a genetic connection between the deceased person and the posthumously conceived child for the deceased person to be named a parent. Currently, section 28 requires that the deceased person provided the sperm, eggs, or embryos for their own reproductive use to be named the parent. Ontario and Saskatchewan’s legislation do not require a genetic connection between the deceased person and the child. See section 12 of Ontario’s Children’s Law Reform Act and section 63 of Saskatchewan’s Children’s Law Act, 2022.

The committee’s discussion focused on the downstream effects of removing the genetic connection requirement. Of particular concern was the implications for inheritance. The committee also discussed what type of consent should be required showing the deceased person consented to being a parent to a posthumously conceived child.

Second, the committee examined whether section 28 of the Family Law Act should continue to require a spousal relationship between the parents of a posthumously conceived child for the deceased person to be named a parent. Currently, section 28 requires that the deceased person’s sperm, eggs, or embryos are used by a person to whom the deceased person was married or in a marriage-like relationship at the time of death. The two people who can be named parents are the deceased person and their spouse. Currently, all Canadian jurisdictions with legislation on parentage and posthumous conception require a spousal relationship.

The committee discussed the implications for removing the spousal relationship requirement in light of the provisions in the Assisted Human Reproduction Act. The AHRA governs what consents are required for any type of assisted reproduction, including posthumous conception. There is a question of whether the AHRA requires a spousal relationship for use of the deceased person’s reproductive material to conceive a child after death.

At the next committee meeting this December, the committee will continue its discussion of parentage for a posthumously conceived child, and discuss issues relating to posthumously conceived children inheriting from a deceased relative’s estate under BC’s Wills, Estates and Succession Act.

The goal of these discussions is to develop tentative recommendations to reform part 3 for a public consultation to be held later in the life of the project.

The post Parentage committee discusses parentage of posthumously conceived children first appeared on British Columbia Law Institute.

First, the bill’s amendments will make permanent the changes on remote witnessing of wills that were enabled by a recent ministerial order. As a government news release explains,

The changes will benefit British Columbians who, for example, have a disability, are quarantined, live in rural or remote communities, or would have difficulty attending a lawyer’s or notary’s office due to child care or other responsibilities. . . . The amendments will [allow] the use of technology for the witnessing of wills by people who are in different locations.

Once the bill is enacted, the ministerial order will be repealed and the amendments relating to electronic witnessing of wills will be deemed to have taken effect on 18 March 2020 (the date on which a provincial state of emergency in relation to COVID-19 was declared).

Second, the amendments “will enable the courts to accept wills that are created on a computer and signed electronically, and for which there is no printed copy”:

The amendments respond to concerns raised by the public and the legal profession about a lack of flexibility in the rules regarding wills. The changes are based on work being undertaken by the Uniform Law Conference of Canada, which makes recommendations to harmonize and reform laws across the country.

Under the amendments, an “electronic will” is defined as “a will that is in electronic form.” A will is in “electronic form” if it

• is recorded or stored electronically,
• can be read by a person, and
• is capable of being reproduced in a visible form.

An electronic will is signed by an “electronic signature,” which “means information in electronic form that a person has created or adopted in order to sign a record and that is in, attached to or associated with the record.”

Under the amendments, “[a]n electronic will is conclusively deemed to be signed if the electronic signature is in, attached to or associated with the will so that it is apparent the will-maker intended to give effect to the entire will.” The amendments also give directions on how to alter or revoke an electronic will.

The sections of the amendments relating to electronic wills will come into force by regulation at some future date that the government has yet to announce.

The post Amendments to the Wills, Estates and Succession Act enable electronic wills and electronic witnessing of wills first appeared on British Columbia Law Institute.

In order for a will to be valid, a will must meet certain formal requirements. These requirements, often referred to as “testamentary formalities,” are relatively standard throughout the common-law world and also relatively well-known: a will must be in writing, signed or by the testator (will-maker) or the signature acknowledged in the presence of two witnesses who also sign the will in the testator’s presence. BCLI’s 2006 report Wills, Estates and Succession: A Modern Legal Framework (“2006 Succession Law report”) contained recommendations concerning testamentary formalities. In its recent consultation paper, “Making A Will,” the Law Commission of England and Wales also makes provisional recommendations with respect to the reform of testamentary formalities. This final instalment of the wills series compares the law reform approaches of BCLI and the Law Commission to the law of wills.

Will Formalities and their Functions

In 1975, John H. Langbein identified and analyzed four purposes and functions of testamentary formalities in the article  “Substantial Compliance with the Wills Act” published in the Harvard Law Review: the evidentiary function, the channeling function, the cautionary function, and the protective function. Langbein’s article was drawn upon by both the Law Commission in its 2017 consultation paper and by BCLI in our 2006 Succession Law report.

Formalities serve an evidentiary function by indicating that the will is in fact genuine and the testator had the intention to create it.. With respect to this function, Langbein says, “[t]he primary purpose of the Wills Act has always been to provide the court with reliable evidence of testamentary intent and of the terms of the will.” The Law Commission adds that, “[t]his evidentiary function is particularly important as the will may have been executed decades before the testator’s death and its validity challenged only after his or her death.”

Langbein’s channeling function refers to how formalities serve to standardize testation. Langbein states, “[c]ompliance with the Wills Act formalities for executing witnessed wills results in considerable uniformity in the organization, language, and content of most wills.”

Formalities also serve a cautionary function in that they cause the testator to reflect on the document and its significance.

Finally, formalities can protect individuals from fraud and undue influence. For this reason, Langbein terms the fourth function of formalities the “protective function.” The Law Commission elaborates by saying: “a signed document is more difficult to forge than an unsigned document and the presence of disinterested witnesses could protect the testator from pressure exerted by a beneficiary.”

Testamentary Formalities in British Columbia

In British Columbia, the rules governing will-making are now contained in the Wills, Estates and Succession Act (“WESA”). The main provision is section 37(1) of WESA, which stipulates that,

37  (1)  To be valid, a will must be

(a) in writing,

(b) signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and

(c) signed by 2 or more of the witnesses in the presence of the will-maker.

The WESA provision was essentially carried forward from the former Wills Act of British Columbia, but with the addition of an important reform regarding the consequences of non-compliance, as explained below in this post.

Testamentary Formalities in England and Wales

In their review of testamentary formalities, the Law Commission suggests how there must be a balance between two equally important objectives. The Law Commission states that on the one hand, formalities can be a barrier to people writing wills because their wishes might not be upheld if certain formality requirements are not met, effectively deterring people from making wills to give effect to their testamentary wishes. The Law Commission further notes that, “[o]n the other hand, if formality requirements are not effective, then there is a risk of wills being accepted as valid that do not in fact represent the testator’s wishes.” The Law Commission paper gives three examples: the will could be forged, the testator did not understand or appreciate that the document would be given effect as a will, and the testator could be subject to undue influence.

The Law Commission also concludes that it is important that formal requirements remain simple and accessible, so that people are encouraged to make wills instead of deterred from doing so. This said, the Law Commission further notes that some complexity is necessary “to ensure that formalities perform their functions.” The Law Commission invites consultees to contribute their perspective on whether current formality rules deter people from making wills, and if so, what the main barriers are.

As stated earlier, in England and Wales, the law of wills is governed by the Wills Act, 1837. Section 9 of the Wills Act deals with formal requirements:

No will shall be valid unless—

1. it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
2. it appears that the testator intended by his signature to give effect to the will; and
3. the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
4. each witness either—

1. attests and signs the will; or
2. acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness),

but no form of attestation shall be necessary.

The Law Commission considered a number of proposals for reform of testamentary formalities in English law. One pertains to who can sign a will on behalf of the testator. The Law Commission notes there is presently no restriction on who can sign a will on the testator’s behalf. Hypothetically, the person signing for the testator could be a beneficiary of the will, or even the sole beneficiary. The Law Commission identifies this as a cause for concern, and states that, “[i]t seems incongruous that, while section 15 of the 1837 Act ensures that a witness to a will cannot benefit from the will, no such limitation is imposed on a person who signs a will on behalf of a testator.”

The Law Commission provisionally proposes that a person who signs the will on behalf of the testator per section 9(b) of the Wills Act, 1837 should be treated the same as a witness, and that the consequences of that person signing should be the same. The Law Commission’s provisional reform proposal is that “a person who signs a will on behalf of the testator should not be able to be a beneficiary under the will.”

At present, under section 9(d)(ii) of the Wills Act 1837, witnesses do not need to be in each other’s presence when they sign and attest the will. The Law Commission provisionally proposes no change regarding this.

A Dispensing Power in British Columbia’s Wills Legislation

Our 2006 Succession Law report did not recommend changes to the testamentary formalities themselves, but did recommend that British Columbia enact a “curative provision” in the wills legislation that would allow a court to validate a will despite imperfect compliance with formal requirements..

The 2006 Succession Law report referred to the case of Ellis v Turner (1997), 43 BCLR (3d) 283 (CA) to illustrate that the courts then lacked any jurisdiction to give any relief from a failure to meet all formal requirements for a valid will.  The will-maker’s name was affixed at the top of the document, but not at the bottom. Further, the will-maker did not sign in the presence of two witnesses, and she did not acknowledge the signature at the top as her own. The relevant provisions related to formalities in the wills legislation at the time were examined by the Court, and it was determined that the will was invalid.  In the British Columbia Court of Appeal, Madam Justice Ryan concluded that, “[t]o declare the will in this case to be valid would be to by-pass the clear provisions of the Wills Act and to create a discretion in this Court which is not found in the Act. This is something which we cannot do.” (para 9)

The recommendation for a curative provision to provide a remedy in cases where a formal defect is present in a will, but there is no doubt as to the authenticity of the document as the last will of the deceased, was implemented  in section 58 of WESA.

Section 58 of WESA reads as follows:

Court order curing deficiencies

58  (1) In this section, “record” includes data that

(a) is recorded or stored electronically,

(b) can be read by a person, and

(c) is capable of reproduction in a visible form.

(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) Even 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.

(4) If an alteration to a will makes a word or provision illegible and the court is satisfied that the alteration was not made in accordance with this Act, the court may reinstate the original word or provision if there is evidence to establish what the original word or provision was.

A Dispensing Power in England and Wales

The Law Commission’s recent consultation paper notes that a number of jurisdictions besides British Columbia have implemented dispensing powers enabling courts to recognize wills as valid despite defects in compliance with formal requirements. The Law Commission suggests that England and Wales are in a position to learn from the experience with these provisions elsewhere, stating:, “[g]iven the important role that a dispensing power can play in upholding the intentions of testators, and therefore testamentary freedom, and the fact that the main criticisms are now answerable, we think it right to propose provisionally that a dispensing power be introduced in England and Wales.”

The terms of the Law Commission’s provisional proposal with respect to a dispensing power are as follows:

We provisionally propose a power that would:

(a) be exercised by the court;

(b) apply to records demonstrating testamentary intention (including electronic documents, as well as sound and video recordings);

(c) operate according to the ordinary civil standard of proof;

(d) apply to records pre-dating the enactment of the power; and

(e) allow courts to determine conclusively the date and place at which a record was made.

Consultees are invited by The Law Commission to comment on whether they agree.

Conclusion

BCLI’s 2006 Succession Law report maintains that formalities “remain an important bulwark against fraud and forgery.” As discussed above, questions of the reform of testamentary formalities must be approached carefully, with consideration for a balance between encouraging individuals to make wills, while also ensuring the wills they make are authentic and represent their final wishes.

In the 2006 Succession Lawreport, BCLI recommended that a dispensing power to relieve against formal invalidity of a will in proper cases be included in British Columbia’s wills legislation. This recommendation was enacted, and can be found in section 58 of WESA.  In 2017, the Law Commission of England and Wales has made a provisional proposal to include a similar dispensing power in wills legislation.

While there are some differences between how BCLI and the Law Commission have approached testamentary formalities, both law reform agencies have addressed the need to modernize wills legislation in their respective jurisdictions.

The post Will-Making Formalities first appeared on British Columbia Law Institute.

Undue influence can be defined as a situation where a person is pressured to perform a legal act, and where that person does not truly wish or intend to perform that act. Using will-making as an example, undue influence would be a situation where a person influences or pressures another person to create a will. Individuals who are in a vulnerable situation may be subject to undue influence to carry out legal acts, such as gift giving, or creating a will.

The topic of undue influence is especially significant in the law of wills, as one of the prerequisites for a valid will is the absence of undue influence. BCLI recognized the importance of legal practitioners being alive to the issue of undue influence, and published Recommended Practices for Wills Practitioners Relating to Potential Undue Influence: A Guide (“BCLI’s Guide”) in 2011. BCLI also examined undue influence in our earlier publication, Wills, Estates and Succession: A Modern Legal Framework.

This week’s post in the wills series considers how BCLI and the Law Commission of England and Wales have approached the topic of undue influence in the context of will-making.

The Law Commission’s Approach to Undue Influence

The Law Commission’s new consultation paper, entitled Making a Will, notes that the question at the heart of their examination on undue influence is how the law can best protect testators who have testamentary capacity, but who may be subject to undue influence.

The Law Commission observes that the person challenging the will bears the burden of proving undue influence and that undue influence will not be presumed in English law.  

The Law Commission suggests that the need to protect testamentary freedom must be the central consideration for reform, but it is also necessary to balance two equally important objectives:

“(1) The law must provide adequate protection to vulnerable testators by ensuring that wills that do not reflect the freely made wishes of the testator are able to be challenged.

(2) The law must not encourage speculative or spurious claims by disappointed beneficiaries.”

With regards to financial abuse, the Law Commission states that, “[s]takeholders we have spoken to have expressed concern that it is currently too difficult to challenge a will on the basis of testamentary undue influence. In particular, stakeholders are concerned that vulnerable testators are not adequately protected from financial abuse in older age.”

The Law Commission has provisionally concluded that, “there is a need for a specific, statutory form of testamentary undue influence that can focus on the particular harm that undue influence seeks to prevent in the testamentary context.” The Law Commission then asks consultees for their feedback as to whether a doctrine of testamentary undue influence should or should not be created in statute.

In considering how testamentary undue influence should be captured in statute, the Law Commission made note of section 52 of British Columbia’s Wills, Estates and Succession Act. Section 52 of WESA states that,

In a proceeding, if a person claims that a will or any provision of it resulted from another person

(a) being in a position where the potential for dependence or domination of the will-maker was present, and

(b) using that position to unduly influence the will-maker to make the will or the provision of it that is challenged,

and establishes that the other person was in a position where the potential for dependence or domination of the will-maker was present, the party seeking to defend the will or the provision of it that is challenged or to uphold the gift has the onus of establishing that the person in the position where the potential for dependence or domination of the will-maker was present did not exercise undue influence over the will-maker with respect to the will or the provision of it that is challenged.

The Law Commission suggests in the consultation paper that the WESA provision on undue influence (s. 52) makes the scope too wide. The Law Commission states that, “[i]t focuses on the finding of a relationship of influence, to the exclusion of any requirement that the disposition calls for explanation.”

The Law Commission suggests that there could be two approaches to a statutory doctrine of testamentary undue influence. These two approaches are discussed in more detail below.

The Structured Approach

With the structured approach, “a presumption of undue influence would be raised (as it is under the general doctrine) where two pre-requisites are shown in the evidence:

• the existence of a relationship of influence, which would be presumed in respect of some relationships; and
• the disposition calls for explanation.”

The Law Commission listed four instances where there would be a relationship of influence, and where the irrebuttable presumption would be raised where a testamentary gift is made by the testator to: (a) a trustee; (b) a medical advisor; (c) a person who prepared the testator’s will for remuneration; and (d) a professional carer.

With respect to the second prong of the structured approach, the Law Commission noted that, “[g]reat care must be taken to ensure that this provision regarding the conduct of the beneficiary is not interpreted too widely.” Further to this point, the Law Commission states that, “[t]he second factor is designed to catch circumstances where the beneficiary has not been involved in making the will, or the beneficiary’s involvement is not such as to suggest that the will calls for explanation, but the circumstances in which the will is made are such to cast suspicion of undue influence.”

The Discretionary Approach

In contrast to the structured approach discussed above, the discretionary approach would, “give the court the power to presume undue influence while only having to take into account these factors [the structured approach prongs] and the general circumstances of the case.” The discretionary approach would consider the prongs of the structured approach, but there would be “less focus on the precise scope of those concepts” and this would “ensure greater flexibility.” If courts were afforded the opportunity to presume undue influence through statute, it would then be up to the proponent of the will to rebut that presumption.

BCLI’s Approach to Undue Influence

Over the course of the Wills, Estates and Succession Project, “an intense debate took place regarding whether the principles and presumption respecting inter vivos dispositions of property should be applied in cases of alleged undue influence in relation to wills.” While a subcommittee recommended a provision along the lines of what was later enacted as section 52 of WESA, there was no consensus reached amongst Project Committee members regarding a change to the principles of undue influence with respect to wills. For this reason, the final recommendations that ultimately went forward and culminated in the enactment of WESA did not address testamentary undue influence. Section 52 nevertheless appeared in the reform legislation when passed.

“Recommended Practices for Wills Practioners Relating to Potential Undue Influence: A Guide”

In 2011, BCLI developed a guide for legal practitioners who might come across undue influence in the context of their work. BCLI’s Guide recognizes that section 52 of WESA lessens the evidentiary hurdles that a challenger would have faced before section 52’s implementation. The Guide notes that this could “lead to increased litigation on grounds of undue influence, which would mean that practitioners may find themselves testifying increasingly often as witnesses in these cases.”

The Guide cautions that practitioners must be more alive to the fact that undue influence could be a potential source of estate litigation as well as invalidity of wills. Further, the Guide suggests that practitioners should be able to recognize and respond appropriately to “red flags” of potential or actual undue influence. The Guide states that practitioners should be able, “to interact tactfully but effectively with the will-maker in order to elicit the information necessary for them to properly assess the will-maker’s situation and ability to act freely.” Lastly, the Guide suggests that practitioners should keep and retain appropriate records.

Conclusion

Undue influence in the context of will-making is a contentious issue, and one that the Law Commission has approached differently than BCLI. The Law Commission has provisionally concluded that legislation should provide for an evidentiary presumption of undue influence once a circumstantial foundation has been laid, and asks consultees whether they agree or disagree. The Law Commission identified two approaches to a statutory presumption of undue influence; the “structured approach” and the “discretionary approach.”

BCLI did not originally recommend statutory relaxation of the evidentiary burden on a will challenger to prove undue influence. However, the enactment of section 52 of WESA induced BCLI to create a practical tool for legal practitioners to deal with the effect of that change in the law.

Undue influence will be a topic at the Canadian Centre for Elder Law’s upcoming Elder Law Conference, Coming of Age: Elder Law in Canada and its Future. The conference take place on November 2^nd and 3^rd, 2017 in Vancouver. The session on undue influence is entitled, “Capacity, Undue Influence, and Independent Legal Advice: How to Interview and When to Insist on Independent Legal Advice,” and is scheduled for Thursday, November 2. Presenters at this session will be Sara Beheshti of O’Sullivan Estate Lawyers LLP, Stanley Rule of Sabey Rule LLP, and Kimberly A. Whaley of WEL Partners. More details on the conference and its agenda can be found here!

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