IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	Riguidel Estate (Re),
	2017 BCSC 1667

Date: 20170921

Docket: 54435

Registry: Kamloops

In the Matter of the Estate of Larry Glen Riguidel, Deceased

Before: The Honourable Madam Justice Hyslop

Reasons for Judgment

Counsel for the Petitioner:	C. AuBuchon
No other persons appeared:
Place and Date of Hearing:	Kamloops, B.C. July 11, 2017
Place and Date of Judgment:	Kamloops, B.C. September 21, 2017

INTRODUCTION

[1] The petitioner, Deborah Joyce Riguidel, seeks a determination pursuant to s. 58 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [WESA], whether the signed document of the deceased, Larry Glen Riguidel, dated Sunday, February 7, 2016, represents his intentions to replace or alter his Last Will and Testament dated August 11, 2015 (the “Will”). This Petition is not opposed. No one filed a response.

[2] The petitioner is one of the deceased’s daughters.

STATUTORY FRAMEWORK

[3] 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

(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

(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.

THE DECEASED’S WILL OF AUGUST 11, 2015

[4] The deceased made a Will dated August 11, 2015. The deceased appointed his wife as executor and trustee of his estate. The deceased’s wife was the sole beneficiary of the estate. She pre-deceased the deceased on October 22, 2015.

[5] The Will provided that in the event the deceased’s wife pre-deceased him, the petitioner or her sister, Donna Jean Malley, was appointed executor of the Will and trustee of his estate. In the Will, his estate was to be divided into six equal shares; one-sixth to go to each of his daughters: Donna Jean Malley; Kimberly Joanne Laity and Deborah Joyce Riguidel; and one-sixth each to his grandson, Mathew Kenith Gerald Herman; one-sixth to his grand-daughter, Randi Leigh Jean Herman and one-sixth to his grand-daughter, Nicole Amber Margaret Laity. All of these grandchildren are adults.

SERVICE OF THIS PETITION AND SUPPORTING AFFIDAVITS

[6] I am satisfied that all the beneficiaries have been served with the Petition and supporting Affidavits pursuant to Rule 4-6(1) of the Civil Rules, by email, and that each person served agreed to being served by email, except Donna Jean Malley. Tyson McNeil-Hay, a lawyer, accepted service on her behalf and advised counsel for the petitioner that he would not be filing a response. Vincent Albert Kapinus was not served. However, he is the husband of the petitioner and has filed an Affidavit accompanying this Petition.

ISSUE

[7] The issue is whether the non-complaint documents dated February 7, 2016 set out the testamentary intentions of the deceased sufficient to revoke or replace the Will.

BACKGROUND

[8] The petitioner and her spouse, Mr. Kapinus, lived with the deceased and his wife during the period 2002 to 2016 from time-to-time. At first they lived with them in Vernon, and then in 2005, they all moved to Kamloops. In May 2011, the deceased and his wife purchased 985 Schreiner Street, Kamloops, British Columbia (“Schreiner Street Residence”), which forms part of the deceased’s estate.

[9] The petitioner and Mr. Kapinus paid rent to the petitioner’s parents and assisted them financially. Mr. Kapinus assisted the deceased and his wife with the maintenance and upkeep of their home, which is described in paragraph 5 of his Affidavit sworn April 10, 2017.

[10] The deceased’s wife and the petitioner’s mother’s health started to fail. The deceased suffered a great deal of pain, stopped leaving the house and was prescribed a number of medications, including Fentanyl for pain management.

[11] Starting in 2011, the petitioner assisted her mother for more than five hours each day with household duties, which she describes in paragraph 17 of her Affidavit sworn April 10, 2017. In 2014, the petitioner quit her job as she could not hold down a job while looking after her mother. Her mother died October 22, 2015.

[12] The petitioner states in or about 2014, “Vince and I paid most of the bills for my parents and we were not able to move because my parents depended on us financially”.

[13] The deceased became ill in December 2015 and was diagnosed with lung cancer in late January 2016. He died February 28, 2016.

[14] Between January 17 and January 24, 2016, the deceased was hospitalized on two occasions. From January 24 to February 9, 2016, the deceased lived at home. On February 9, 2016, he was admitted to hospital until his death on February 28, 2016.

[15] On February 10, 2016, while in hospital, the deceased presented Mr. Kapinus with a handwritten document (exhibit B attached to the Affidavit of Carolyn Lee Leonard sworn November 30, 2016). The deceased asked Mr. Kapinus to type out the handwritten document, which Mr. Kapinus did.

[16] On February 11, 2016, Mr. Kapinus returned to the hospital with the handwritten and typed Will (exhibit A attached to the Affidavit of Ms. Leonard).

[17] In the presence of Ms. Leonard and Mr. Kapinus, the deceased signed both the handwritten and typed documents. Copies of these documents are attached as Appendix 1 to these reasons.

[18] Mr. Kapinus believed on February 9, 2016 that the deceased would not live through the night. The deceased’s condition was eventually stabilized.

[19] Ms. Leonard and her husband had a contract with New Gold – a mine located in Kamloops. In 2011, Ms. Leonard met the deceased through his employment with New Gold. Ms. Leonard and her husband became friends with the deceased and eventually met the petitioner and her spouse, Mr. Kapinus.

[20] In December 2015, after the deceased had gone to hospital and before his lung cancer diagnosis, Ms. Leonard started to talk to the deceased about whether he had an up-to-date Will. He told Ms. Leonard that he did not agree with the terms of the Will that he and his wife had made previously. The deceased told Ms. Leonard that the petitioner would look after carrying out his wishes and determine who the beneficiaries were under the Will. Ms. Leonard suggested the deceased write a letter to each of his daughters “explaining his wishes, getting anything unresolved off of his chest, and saying goodbye”. Ms. Leonard further suggested to the deceased that he add Debi [the petitioner] and Vince [Mr. Kapinus] to the title of his vehicles and property so they would receive it after his death.

[21] From the Affidavit and the chronology of events in the Affidavits, I have assumed that these conversations that Ms. Leonard had with the deceased occurred before his diagnosis with lung cancer.

[22] Ms. Leonard believed that the deceased wanted to change the Will because, for as long as she had known the deceased, the petitioner and Mr. Kapinus had lived with the deceased and his wife and they had maintained their residence for them. In addition, Mr. Kapinus and the deceased had a very close relationship. They spent a lot of time together and they golfed together.

[23] Ms. Leonard stated that she spoke to the deceased on the telephone (no date given) while he was still at home, and the deceased told her that he wanted to remove his daughters, Kim and Donna, from the Will.

[24] Ms. Leonard swears that she spoke to the deceased six times about preparing a new Will and, in January 2016, spoke to him once a week encouraging him to get his affairs in order.

[25] Ms. Leonard states she was not aware that two witnesses were required, nor did she think that the deceased knew this (she provided no explanation as to why she thought this). She states at paragraph 22 of her Affidavit “There was no question in my mind that the Deceased intended the Will [documents] to be his final will and to accurately document his final wishes”.

[26] Ms. Leonard swore to the following:

24. The Deceased appeared confident about signing the Will. He did not hesitate when he signed it. I asked him if the Will was exactly what he wanted and he advised me that it was.

25. Initially the Deceased was confused about the difference between a will and a living will. It was this confusion that lead to the change in the title of the Will.

26. Within 15 minutes of the Deceased signing the Will, his doctor was asked to come in to explain to the Deceased what a living will was and to get his direction for end of life decisions.

[27] The people present when the deceased signed the handwritten and typed documents were the deceased, Ms. Leonard and Mr. Kapinus. The deceased was present when Ms. Leonard and Mr. Kapinus signed their names as witnesses to the deceased’s signature.

[28] Mr. Kapinus also states that he was unaware that two witnesses were required. He used the same language as Ms. Leonard did in her Affidavit, where he swore:

16. The Deceased appeared confident about signing the Will. He did not hesitate. I asked him if the Will was exactly what he wanted and he advised me that it was.

17. At no time did I observe anyone pressuring the Deceased to change his Will or to make any specific gift.

18. The Deceased and I discussed the Will and it was clear that it reflected his final wishes. The Will is consistent with my prior discussions with the Deceased.

19. I have no reason to believe that the Will is not an accurate reflection of the Deceased’s final wishes. I observed no evidence that the Deceased was forced or compelled to distribute his estate in the manner set out in the Will. The Deceased appeared to be thinking clearly at the time. He was not confused and he understood what he was doing.

[29] The most compelling evidence is that of Donna Malley, the deceased’s daughter. She states that when she learned of her father’s cancer diagnosis in January 2016. She travelled to Kamloops in order to be with him, arriving on or about February 11, 2016. She swears to the following:

3. I have learned that prior to my arrival on February 11, 2016, my father signed a document to vary his will (the “Codicil”), a true copy of which is attached hereto as Exhibit “A”.

(Exhibit A is the typewritten document prepared by Mr. Kapinus).

[30] Ms. Malley also swears the following:

4. On or about February 13, 2016, I had a conversation with my father, at which time he advised me that it was important to him that my sister, Debi, was to obtain the house that he owned after he died, as she had done so much for him.

5. Debi and her husband, Vince, lived with my parents for many years and contributed to the construction and upkeep of the house.

6. It is my understanding and belief that after my mother died, my father realized that he did not have enough money to pay his mortgage. In or about early November 2015, I was present during a conversation between my sister Debi Riguidel, Vince Kapinus, and my father in which Debi and Vince told my dad not to worry that they would pay his mortgage and bills and ensure that he would always be taken care of financially.

[31] In her Affidavit, Ms. Malley sets out her understanding as to why her sister and Mr. Kapinus were to receive the house, and describing their relationship as a “trusting and loyal friendship”, and that it is “his way of saying that he will always take care of them in the same way that they did for him”. She further swears:

11. I believe that my father intended to provide Debi and Vince with his house in part because both my sister, Kimberly, and I have houses of our own and we did not live with my parents as adults.

12. I am confident that the February 11, 2016, Codicil prepared by my father and attached hereto as Exhibit “A” is a true and accurate reflection of my father’s wishes.

[32] Counsel for the petitioner advised me that all the beneficiaries under the Will are aware of the value of the estate and provided proof in emails confirming this. Counsel for the petitioner produced to the Court a Statement of Assets and Liabilities and Distribution setting out the assets of the deceased’s estate and some of his debts. This document is not complete as to the amount on deposit at two banks, and the amount owing for property taxes and funeral expenses.

[33] Counsel also produced an agreement signed by Kimberly Joanne Laity and the petitioner which provides the deceased’s estate to pay Ms. Laity the sum of $16,500.00, provide Ms. Laity with any of the deceased’s furniture that she may want, and transfer the car that belonged to the deceased’s late wife. In addition, the estate is to pay the cost of a flight for Ms. Laity and her daughter, Nicole Laity, from Winnipeg to Kamloops in order to retrieve the furniture and car. In the agreement, the ring belonging to the deceased’s late wife is to be given to Nicole Laity. This agreement bears the signature of Ms. Laity and that of the petitioner.

THE LAW

[34] In Young Estate (Re), 2015 BCSC 182, Madam Justice Dickson, as she then was, described some of the factors that should be present when seeking a non-compliant document to represent the deceased’s person’s intention under the curative provisions of s. 58(3) of WESA. In determining the deceased’s final testamentary intentions, Madam Justice Dickson wrote:

[36] The burden of proof that a non-compliant document embodies the deceased's testamentary intentions is a balance of probabilities. A wide range of factors may be relevant to establishing their existence in a particular case. Although context specific, these factors may include the presence of the deceased's signature, the deceased's handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests and the title of the document: Sawatzky at para. 21; Kuszak at para. 7; Martineau at para. 21.

[37] While imperfect or even non-compliance with formal testamentary requirements may be overcome by application of a sufficiently broad curative provision, the further a document departs from the formal requirements the harder it may be for the court to find it embodies the deceased's testamentary intention: George at para. 81.

[35] The curative provisions of s. 58(3) of the WESA are fact sensitive.

[36] Extrinsic evidence is permitted in order to determine whether the non-compliant document is the deceased’s final expression, as to his or her testamentary intentions pursuant to s. 58(3) of WESA: Litke Estate (Re), 2017 BCSC 1079 at para. 39.

[37] It comes down to this – whether the document presented was prepared by the deceased and that its contents represent a “deliberate or fixed and final testamentary intention at the material time for the disposition of the estate: Litke Estate (Re) at para. 42.

DISCUSSION

[38] I am satisfied, on the evidence, that the documents dated February 7, 2016, copies of which are in Appendix 1 to these reasons, are the deliberate expressions of the deceased’s wishes as to the disposition of his property upon his death.

[39] I also find that the handwritten document signed by the deceased and the witnesses, Ms. Leonard and Mr. Kapinus, in the deceased’s presence was to record and confirm that the typewritten document set out the terms of the handwritten document, which reflected the deceased’s intentions before the deceased signed the typewritten document.

[40] It is clear from all of the evidence that the deceased recognized a moral, if not a legal obligation, to his daughter and son-in-law for their contributions to his estate.

[41] I determine that the typewritten document dated February 7, 2016 represents and embodies the deceased’s testamentary intentions sufficient to alter his Will as to the disposition of the assets of his estate and is effective as part of the Will.

[42] I am also aware that this may leave the residue of the deceased’s estate unadministered or disposed. The petitioner, in its proposed Order, but not in its Petition, seeks the typewritten document of the deceased be treated as a codicil. I will not as this was not sought in the Petition, nor argued by the petitioner.

[43] The petitioner in her Petition seeks:

b. an order and declarations setting out the results of and giving effect to the court’s determination under paragraph 1(a), above;

[44] I have assumed that the petitioner wishes me to interpret the typed document of February 7, 2016 in conjunction with the Will. No argument or case law was placed before me. I note there is uncertainty between the petitioner and her sister, Ms. Malley, as to the appointment of the executor and trustee in the Will. I decline to do this.

COSTS

[45] The costs of this proceeding shall be paid from the deceased’s estate on a full indemnity basis.

“H.C. Hyslop J.”

HYSLOP J.Appendix 1