Estate Litigation Disputes – Testamentary Intent & Trial

One of the central issues in many estate litigation disputes centers around a specific question: what was the testator’s intent?

Section 58 of the Wills Estates and Succession Act provides potential with a useful tool to cure defects in a will and to ensure that the testator’s last wishes get fulfilled even if they are some issues with respect to the formalities of their will. In the decision of Estate of Palmer, 2017 BCSC 1430, the Honourable Mr. Justice Kent was asked to determine whether various handwritten alterations on the will of Deceased were sufficient to constitute testamentary intent. This case is interesting because, the Application was being made in chambers the Court determined that there was bona fide issue that needed to be resolved at trial. When there is a disupte on affidavit evidence, a Court can order that the matter proceed to trial so that it can hear oral evidence to better make decisions on credibility. The Court stated:

[18] It appears from his affidavit that Mr. Homeniuk’s only contact with Ms. Palmer was by way of telephone and he did not actually visit her in British Columbia. This may be the reason why he is unable to comment on her health but evidence on such matters could have been provided through medical or hospital records and/or any health professionals who might have looked after Ms. Palmer in the years before her death.

[19] I wish to make it perfectly clear that my critique of the Homeniuk affidavit is not meant to be a negative reflection of Mr. Homeniuk’s credibility or the truthfulness of his evidence. The difficulty arises only because of the affidavit testimony of Sean and Daryl Palmer who each in their own way cast aspersions on the credibility and reliability of Mr. Homeniuk’s evidence.

[30] I have attempted to explain above why the affidavit evidence tendered on this application respecting certain matters is insufficient to do justice to the testamentary intentions of Ms. Palmer. In my view, oral evidence from the three affiants is desirable including cross-examination of those affiants on certain aspects of their testimony. As well, evidence must be adduced respecting Ms. Palmer’s physical and mental health and, in particular, her testamentary capacity at the time the changes to her will were made.

[31] Furthermore, three of the potential beneficiaries under WESA have not been included in the proceedings to date. It appears that Ms. Perret has no interest in actively participating in the present proceeding, however the court is not satisfied that any meaningful effort has been invested by any of the parties in tracing and notifying each of Bradley Palmer, Grant Palmer and Dolores Palmer. Their legal interests are at stake in this proceeding and they cannot simply be ignored.

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