BC Supreme Court reconciles last will’s inconsistent clauses using extraneous proof

Court considered the testator's letter to his lawyer on the same day he executed the will

BC Supreme Court reconciles last will’s inconsistent clauses using extraneous proof

The BC Supreme Court has considered extraneous evidence in reconciling seemingly inconsistent clauses in a last will.

In Zaleschuk Estate, 2023 BCSC 523, Victor Zaleschuk was a Canadian businessman operating a wholesale flower business in California. He died of a brain tumour in 2021. He was survived by his wife of 14 years, Wendy Chen, who was also named executrix of his estate. He was also survived by two adult sons from a previous marriage, Shane and Christian Zaleschuk.

Most of the deceased’s assets are in California, but he has a residential property in Victoria, BC. Shane Zaleschuk lived in a suite in the residence’s basement without paying rent, utilities, or other property expenses. Shane said that for most of his life, he has worked for his father and lived in other residential properties owned by his father without paying rent. He said he had an understanding with his father that he was contributing to the family business.

Victor executed a last will shortly before he died. Chen, as executor, applied for an order that the Will be proved in solemn form. Shane filed a notice of dispute, challenging his father’s testamentary capacity.

Testamentary capacity

The BC Supreme Court declared the will proved in solemn form, finding that the deceased had the capacity to make a will and that the will was made in conformity with s. 37 of the Wills, Estates and Succession Act (WESA). The deceased’s next-door neighbour, who witnessed the will’s execution, testified that he did not see any change in his mental capacity before his death. Shane also failed to provide evidence to support his challenge to his father’s capacity to execute the will.

Accordingly, the court was satisfied that the deceased had the capacity to make a will and that the will was in solemn form.

Inconsistent clauses

The executrix asserted that there are clauses in the will that are confusing and unclear, or ambiguous. In particular, the will gifted the entire BC residence to Wendy Chen, but the deceased also provided a cash gift for Shane when and if the property was sold. The court pointed out that no other cash exists in the estate, so this cash distribution only crystallizes if the residence is sold. The court said the will “appears to impose a trust obligation on Ms. Chen after the property is sold, but no trust is expressly established in the will.”

Chen asserted that the clause is inconsistent as she has been given a complete gift, and then in a subsequent clause, something was taken out of that gift without trust provisions. She asserted that the will’s cash legacy clause must be disregarded.

On the other hand, Shane argued that if there are inconsistencies in a will, the court should consider extraneous evidence to support the testator’s intention. He asked the court to consider another document signed on the same day the will was signed. The document is a letter from the deceased to a solicitor in California.

Extraneous evidence

The court explained that courts generally use the “four corners” approach and the “armchair” approach in determining whether to consider extraneous evidence in interpreting a will. The “four corners” approach focuses on the four corners of the document itself and does not consider surrounding circumstances in determining the testator’s intention. On the other hand, the “armchair” approach requires the court to place itself in the position of the testator at the time they wrote the will and consider the surrounding circumstances and context at the time the will was written to ascertain the subjective intentions of the testator.

To explore the deceased’s intention and in keeping with the modern trend in jurisprudence since the enactment of the WESA, the BC Supreme Court applied the subjective or armchair approach by considering the letter written by the deceased to his American lawyer.

The court found that the letter was authentic, signed and witnessed on the same day the will was signed and witnessed. In the letter, the deceased described to his American solicitor how he had disposed of his Canadian assets. By analyzing the letter, the court found that the deceased intended to gift the BS residence to his wife, Wendy Chen, subject to a trust obligation to pay $150,000 to Shane and $25,000 to a minor, Steve Widner, if Chen sold the property. The court emphasized that the letter and the will are consistent to that extent.

The court further found that the words in the letter that “Suite will remain as Shane Zaleschuk’s residence” is inconsistent with the will as it was never provided for in the will. The court said there was no other evidence to support this intention. Accordingly, the court concluded that a gift to Shane of a life estate as to the suite in residence is inconsistent with the gift of the property Wendy.

The court further concluded that although the cash legacies to Shane and Steve Widner are inconsistent with an absolute gift to Wendy Chen, the cash legacy clause must be read in as a trust imposed on Chen to pay if she sells the residence.

The court ultimately ruled that the will is proved in solemn form, the residue of the estate be split equally between Wendy Chen and Shane, and cash be paid to Shane and Steve when and if the property is sold.

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