1. Introduction

Wicklund v Denis and Yvonne Blakely 2015 Joint Partner Trust^[1] is a massive case,^[2] partly because it raises a plethora of issues and partly because of a massive amount of evidence, which Justice Douglas discusses in great detail. The case is significant for both the issues and the punctilious manner in which the court addresses the evidence. This means that I shall have to cover a lot of ground and examine a large number of issues. So, fasten your seatbelts and enjoy the ride. I shall refer to several of the authorities cited by the court but by no means all and refer the reader to the reported decision for that purpose. To facilitate that, I will mention the paragraph numbers in which the court reaches specific decisions. Indeed, in my view the case is well worth reading in extenso. And therefore, tolle lege, take up and read!

2. Facts

Denis and Yvonne Wicklund settled a joint partner trust, the Denis and Yvonne Blakely 2015 Joint Partner Trust on 28 July 2015 with the assistance of an experienced trusts and estate planning lawyer. They amended the Trust less than three months later on 19 October 2015.

Denis had three children from a previous marriage, Kevin, a lawyer, Victoria, and Roberta. Kevin and Victoria are the trustees of the Trust, Yvonne also had three children from a previous marriage, Cindy and two other children from whom Yvonne was estranged. Cindy has two adult children; Kirsten and Evan. Denis died on 3 January 2016. Yvonne died on 14 November 2023.

The trust provides that after the death of the last surviving settlor; the trustees could pay various taxes and expenses. Thereafter they would divide and distribute the remainder of the trust fund into three equal shares: 45% to Yvonne’s side of the family, 45% to Denis’s side of the family, and 10% to charity. Yvonne’s share was divided as to 32% to Cindy and 32% to each of Kirsten and Evan. Denis’s share was divided into three equal thirds to each of Dennis’s three children. The Settlors retained the power to amend the Trust. They both signed the Trust.

The trust amendment changed the settlors’ shares significantly. Yvonne’s share now gave 30% to Cindy, Kirsten and Evan, and 70% to charity. Denis’s share now gave 100% to his three children with nothing to charity. The amendment was prepared by Kevin at the request of Denis and Yvonne. In error, Kevin originally failed to make the change in Denis’s share, but he corrected it when Dennis pointed the error out to him.

With respect to the making of the amendment to the trust, Kevin’s uncontradicted evidence was that Denis called him at his office about his and Yvonne’s wish to amend the trust, and that he heard Yvonne’s voice in the background stating that the children would get very little. Kevin also testified that he met with both Denis and Yvonne in his office and met separately with Yvonne during part of the time. He testified that Denis and Yvonne both spoke of their wish that Yvonne’s charitable gift would go to a children-based charity, such as a children’s hospital

Cindy, Kirsten, and Evan (the ‘Plaintiffs’) brought this action in March 2024 in which they sought to set aside the trust amendment as being invalid, void, and unenforceable. They allege that there were suspicious circumstances at the time the amendment was made, that Yvonne lacked capacity to amend the trust, and that Denis exercised undue influence over Yvonne. They and the Trustees, Kevin and Victoria, the defendants both brought summary trial application.

Yvonne also signed an enduring power of attorney on 28 July 2015, the same day the trust was signed. She made her Will on 2 September 2015 appointing Denis as her executor and trustee, and Victoria and Kevin as substitute co-executors and trustees. The Will divided the residue of her estate into two equal portions and gave one share to Cindy with a gift over to her children if she died before the distribution date, and the other share equally to Denis’s children. Yvonne also signed a representation agreement on 2 September 2015. In it she appointed Denis as her primary representative, Victoria as the substitute and failing her, Kevin.

3. Preliminary Evidentiary Issues

3.1 Admissibility of Hearsay Evidence

Both parties relied on hearsay evidence contained in their submitted affidavits. Justice Douglas noted that hearsay statements are presumptively inadmissible, but the presumption can be overcome if the evidence falls into a traditional exception or the principled exception to the general rule. Under the principled exception hearsay evidence may be admitted if it is necessary and the surrounding circumstances provide sufficient assurance that the statement is reliable. Threshold reliability can be established if there are adequate substitutes for testing and accuracy (procedural reliability), or when there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability). Examples of circumstantial reliability include the declarant’s disinterest, the fact that the declaration was made before the dispute, and the peculiar means of knowledge of the declarant.

Justice Douglas found that the common law requirement of necessity was met, since both Denis and Yvonne are deceased. [Para 18]

3.2 Admissibility of Medical Records

Justice Douglas noted that the records are admissible because they were made and kept in the usual and ordinary course of business at or about the time the event or fact described occurred.^[3] She concluded that the medical evidence comprised admissible evidence of facts recorded in them. [Para 26]

3.3 Admissibility of Unsworn Estate Documents

Justice Douglas held that certain unsworn statements made by Denis and Yvonne and attached to their advance directives, as well as an undated note by Denis to Yvonne were admissible as evidence that the factual statements in them were made, and as some evidence of the authors’ state of mind.^[4] [Para 32]

4. Law and Analysis

4.1 Is the Matter Suitable for Summary Trial?

The parties agreed that the matter is suitable for a summary trial and Justice Douglas agreed since most of the facts are non-contentious or uncontradicted, and credibility is not a central issue. [Para 61]

4.2 Is the Trust an Inter Vivos or a Testamentary Trust?

Justice Douglas noted that this is a question of fact and depends on the intention of the maker.^[5] In her view the trust amendment forms an integral part of the trust. She found that the evidence clearly supports the conclusion that the trust as amended took immediate effect. Thus, it is an inter vivos trust and the formal requirements of a will did not apply to it. [Para 70]

4.3 Did Yvonne Sign the Trust Amendment

The plaintiffs suggested that Yvonne may not have signed the amendment. There was no expert evidence before the court to prove the authenticity of Yvonne’s signature on the amendment. However, Justice Douglas compared the signature with other of her signatures on previous documents and found that there were no material differences between the different signatures. Accordingly, she found that Yvonne signed the trust amendment. [Para 76]

4.4 What is the Applicable Test for Capacity?

Justice Douglas noted that the capacity required for an inter vivos trust requires only that the settlors understand the nature and effect of their gift,^[6] and that there is a rebuttable presumption of capacity for inter vivos dispositions.^[7] In contrast, if the test is like that of testamentary capacity, the presumption of capacity is rebuttable.^[8] She noted further that if an inter vivos gift is made as part of an estate plan, or if the gift comprises most of the donor’s estate, the court may apply the test for testamentary capacity.^[9] Justice Douglas determined that since the amended trust effectively provided for the distribution of Yvonne’s entire estate, it was appropriate to apply the testamentary capacity test. [Para 82]

4.5 Are Suspicious Circumstances Present?

Justice Douglas noted that suspicious circumstances are circumstances that raise a well-grounded suspicion that the disposition that is being attacked does not express the mind of the testator.^[10] To determine the question whether there were suspicious circumstances, he considered Yvonne’s mental status, the medical records, the expert evidence of two medical specialists who based their evidence on the factual assumptions they made and their review of records. She also considered a couple of emails by Kevin and Cindy.

Justice Douglas made the following conclusions: (1) the medical evidence does not support the conclusion that there was a material change in Yvonne’s physical or mental condition between the time of the originals settlement and the time of the amendment [Para 110]; (2) the expert opinions are of limited assistance in determining Yvonne’s mental capacity at the time of the trust amendment [Para 125]; (3) the emails should be given less weight than the contemporaneous medical records but they do not suggest a material decline in Yvonne’s functional or cognitive status between the date of the originals settlement and the amendment. [Para 130]

With respect to the parties’ evidence, Justic Douglas concluded that the overall sameness, quality, and tenor of the plaintiffs’ sworn evidence detract from its persuasiveness. Thus, she approached their evidence with some caution. [Para 149] In contrast, she found the affidavits of Kevin, Victoria, and Roberta to be more precise, nuanced, and more consistently corroborated than those of the plaintiffs. [Para 150]

The plaintiffs argued that Denis’s personality and involvement in having the trust amendment completed gave rise to suspicious circumstances. However, Justice Douglas found nothing suspicious about the fact that Denis made a call to Kevin, a lawyer, about the trust amendment, or that Denis, being a settlor, was involved with the preparation of the amendment. She found that Denis and Yvonne had a loving and supportive relationship, that Denis was protective of Yvonne, and that he wanted to ensure that she would be adequately provided for after his death. [Para 171]

The plaintiffs also argued that Kevin, as a beneficiary under the trust and a trustee, ought to have refused to prepare the amendment. However, Justice Douglas was not persuaded that Kevin’s involvement gave rise to suspicious circumstances, considering that Denis and Yvonne could have drafted the amendment themselves. [Para 188] Justice Douglas also was not persuaded that the timing of the trust amendment gives rise to suspicious circumstances in light of the fact that Denis and Yvonne had compelling reasons to finalise the amendment. [Para 193] Nor did she consider that any complexity in the planned change to the trust gave rise to suspicious circumstances. In fact, the change made by Yvonne was a simple one. [Para 199] Justice Douglas also found that the manner in which the amendment was executed did not give rise to suspicious circumstances. [Para 205]. In light of the undisputed evidence that Yvonne and Denis told Kevin that Cindy would ‘cause trouble’, she found it unsurprising that Yvonne did not disclose the amendment to Cindy or her children. Moreover, the evidence refuted Cindy’s assertion that Yvonne did not keep secrets from her. [Paras 213, 214] Finally Justice Douglas held that she did not share the plaintiff’s view that anything other than distribution of all, or most of Yvonne’s share of the trust to them is illogical. She held that the evidence informs her view that the trust amendment is reasonable and that it does not give rise to suspicious circumstances. [Paras 227-230] Had any of the grounds for undue influence alleged by the plaintiffs been proved, the effect would have been to displace the presumption of testamentary capacity. But since none were proved as found he Justice Douglas, that is effectively determinative of the issue of capacity. In other words, the plaintiffs have failed to rebut the presumption of testamentary capacity. And therefore, Yvonne had the required testamentary capacity. Moreover, she knew and approved the contents of the trust amendment.

Justice Douglas went on to consider whether Yvonne was subjected to undue influence by Denis. She found that the medical records do not make any reference to Denis being a controlling or domineering spouse or that Yvone was subject to a corresponding risk. On the contrary. The evidence does not support the view that Yvonne did what Denis suggested. Rather, it shows that Yvonne had a mind of her own and was committed to amending the trust, despite the fact that Denis expressed some misgivings about it. [Para 246] Justice Douglas therefore found that the relationship between Denis and Yvonne did not give rise to the potential for domination. On the contrary, the preponderance of the evidence supports the opposite conclusion: theirs was a loving and supportive relationship, and therefore there was no evidence of undue influence on Denis’s part. [Para 250]

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[1] 2025 BCSC 1894.

[2] It has 252 paragraphs and is 55 pages long!

[3] Citing the Evidence Act, RSBC 1996, c 124, s 42(2).

[4] Citing relevant cases.

[5] Citing Norman Estate v Watch Tower Bible and Tract Society of Canada, 2014 BCCA 277, paras 18-22.

[6] Geluch v Geluch Estate, 2019 BCSC 2203, para 103.

[7] York v York, 2011 BCCA 316, para 36.

[8] Citing, inter alia, Geluch, supra, paras 110-114.

[9] Geluch, ibid, paras 104-105.

[10] Geluch, ibid, paras 113-115.