Does an Unidentified Interpreter Equal Suspicious Circumstances? Bhalla Estate
Bhalla Estate, 2017 BCSC 1867 (CanLII), http://canlii.ca/t/h6qkw
In Bhalla Estate[1], the British Columbia Supreme Court considered the issue of suspicious circumstances surrounding the execution of a Will. The Will in question was prepared with the assistance of an unidentified interpreter. The testatrix’ daughter ( the executrix) sought an Order granting probate of the Will in question. The Will left the entire Canadian estate to the deceased’s grandson (also the executrix’ son) who was living with the testatrix/deceased at the time the Will was executed. The deceased’s other children other than the executrix, opposed the application.
Background
The testatrix, who did not speak English and could not read or write in any language, had three daughters and several grandchildren at the time of her death. Her Will was prepared with the assistance of a solicitor, who had a longstanding relationship with her family. There was evidence indicating that the testatrix had enlisted the assistance of a family member or friend as an interpreter. The Will was duly executed and witnessed.
The solicitor’s notes with respect to the transaction were very limited, as was his recollection. While he was absolutely certain that there was an interpreter and that he took and confirmed instructions and later had the Will signed by the testator, he was uncertain about the identity of the interpreter. He believed it was one of the testator’s daughters, Malkit, but Malkit denied this. The solicitor testified that he had no doubt that the testator understood the contents of the Will and he had no knowledge of any undue influence.
In his affidavit, the grandson who received the entirety of the deceased’s estate indicated that he had no knowledge of the contents of the Will. He also testified that at the time that the Will was purportedly executed, his mother (the executrix) lived abroad and had limited contact with the deceased. The executrix did not provide any direct evidence on this issue.
The executrix argued that the Will was properly executed and witnessed and relied upon the resulting rebuttable presumptions of knowledge and approval of the Will and of testamentary capacity. She argued there were no suspicious circumstances to rebut those presumptions.
The Respondents argued that the absence of evidence from the unidentified interpreter indicates that proper execution had not been established. Furthermore, the lack of information about the interpreter and the exclusion of the daughters from the estate, and the limited notes and recollection of the solicitor, created suspicious circumstances that rebutted the presumptions.
Analysis
Justice Betton noted that, although the propounder of the Will has the onus to prove proper execution, knowledge, approval and testamentary capacity, the propounder is aided by a rebuttable presumption. Where, however, suspicious circumstances are present, that presumption is spent, and the onus shifts back to the propounder.
After concluding that the Will was duly executed and complied with the formal requirements, Justice Betton turned to the issue of suspicious circumstances.
The Respondents’ assertions of suspicious circumstances stemmed from the fact that at the time the Will was prepared, the testatrix lived with the grandson and may have been unduly influenced by him or his mother.
With respect to suspicious circumstances, Justice Betton noted, in agreement, the following statement: “[it] is not sufficient that circumstances create a general miasma of suspicion that something unsavoury may have occurred.”[2]
Justice Betton ultimately found the Respondents’ statements to be speculative and unsupported by evidence. There was no indication or evidence before the Court of undue influence or that the testator was in a particularly vulnerable state at the time that might raise any suspicion. The unequal division of the estate had been properly explained.
The lack of information about the interpreter and unequal division of the estate was not enough to create suspicious circumstances to rebut the presumptions.
Takeaways
Suspicious circumstances involve more than mere speculation that something unsavoury may have taken place. Such circumstances must be proven on a balance of probabilities. Lack of information about the interpreter, unequal division of property (which was explained) and unsubstantiated beliefs was not sufficient to create suspicious circumstances.
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[1] 2017 BCSC 1867
[2] Justice Wilson in Watson v. Watson & Yelich, 2004 BCSC 1724, at para 64
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Written by: Kimberly A. Whaley
Posted on: January 22, 2018
Categories: Commentary, WEL Newsletter
Bhalla Estate, 2017 BCSC 1867 (CanLII), http://canlii.ca/t/h6qkw
In Bhalla Estate[1], the British Columbia Supreme Court considered the issue of suspicious circumstances surrounding the execution of a Will. The Will in question was prepared with the assistance of an unidentified interpreter. The testatrix’ daughter ( the executrix) sought an Order granting probate of the Will in question. The Will left the entire Canadian estate to the deceased’s grandson (also the executrix’ son) who was living with the testatrix/deceased at the time the Will was executed. The deceased’s other children other than the executrix, opposed the application.
Background
The testatrix, who did not speak English and could not read or write in any language, had three daughters and several grandchildren at the time of her death. Her Will was prepared with the assistance of a solicitor, who had a longstanding relationship with her family. There was evidence indicating that the testatrix had enlisted the assistance of a family member or friend as an interpreter. The Will was duly executed and witnessed.
The solicitor’s notes with respect to the transaction were very limited, as was his recollection. While he was absolutely certain that there was an interpreter and that he took and confirmed instructions and later had the Will signed by the testator, he was uncertain about the identity of the interpreter. He believed it was one of the testator’s daughters, Malkit, but Malkit denied this. The solicitor testified that he had no doubt that the testator understood the contents of the Will and he had no knowledge of any undue influence.
In his affidavit, the grandson who received the entirety of the deceased’s estate indicated that he had no knowledge of the contents of the Will. He also testified that at the time that the Will was purportedly executed, his mother (the executrix) lived abroad and had limited contact with the deceased. The executrix did not provide any direct evidence on this issue.
The executrix argued that the Will was properly executed and witnessed and relied upon the resulting rebuttable presumptions of knowledge and approval of the Will and of testamentary capacity. She argued there were no suspicious circumstances to rebut those presumptions.
The Respondents argued that the absence of evidence from the unidentified interpreter indicates that proper execution had not been established. Furthermore, the lack of information about the interpreter and the exclusion of the daughters from the estate, and the limited notes and recollection of the solicitor, created suspicious circumstances that rebutted the presumptions.
Analysis
Justice Betton noted that, although the propounder of the Will has the onus to prove proper execution, knowledge, approval and testamentary capacity, the propounder is aided by a rebuttable presumption. Where, however, suspicious circumstances are present, that presumption is spent, and the onus shifts back to the propounder.
After concluding that the Will was duly executed and complied with the formal requirements, Justice Betton turned to the issue of suspicious circumstances.
The Respondents’ assertions of suspicious circumstances stemmed from the fact that at the time the Will was prepared, the testatrix lived with the grandson and may have been unduly influenced by him or his mother.
With respect to suspicious circumstances, Justice Betton noted, in agreement, the following statement: “[it] is not sufficient that circumstances create a general miasma of suspicion that something unsavoury may have occurred.”[2]
Justice Betton ultimately found the Respondents’ statements to be speculative and unsupported by evidence. There was no indication or evidence before the Court of undue influence or that the testator was in a particularly vulnerable state at the time that might raise any suspicion. The unequal division of the estate had been properly explained.
The lack of information about the interpreter and unequal division of the estate was not enough to create suspicious circumstances to rebut the presumptions.
Takeaways
Suspicious circumstances involve more than mere speculation that something unsavoury may have taken place. Such circumstances must be proven on a balance of probabilities. Lack of information about the interpreter, unequal division of property (which was explained) and unsubstantiated beliefs was not sufficient to create suspicious circumstances.
—
[1] 2017 BCSC 1867
[2] Justice Wilson in Watson v. Watson & Yelich, 2004 BCSC 1724, at para 64
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