2007 BCCA 303 Singh Estate v. Shandil

Before:	The Honourable Chief Justice Finch
	The Honourable Mr. Justice Low
	The Honourable Mr. Justice Thackray

D.S. Gosal	Counsel for the Appellant
J.A. Thomson	Counsel for the Respondents
Place and Date of Hearing:	Vancouver, British Columbia
May 1, 2007
Place and Date of Judgment:	Vancouver, British Columbia
June 7, 2007

Written Reasons by:

The Honourable Mr. Justice Thackray

Concurred in by:

The Honourable Chief Justice Finch

The Honourable Mr. Justice Low

Reasons for Judgment of the Honourable Mr. Justice Thackray:

[1] The appellant, executor of the estate of Ram Prakash Singh, appeals the order of the Supreme Court of British Columbia, drawn pursuant to the decision of Mr. Justice Romilly, and entered on 2 December 2005. The order dismissed the claim of the estate against the defendants.

[2] The neutral citation for the judgment is 2005 BCSC 1448. The judgment is reported and can be found on QuickLaw™ at [2005] B.C.J. No. 2192, and on Westlaw®-e-Carswell® at 2005 CarswellBC 2466. It is also reported at 20 E.T.R. (3d) 106.

Background

[3] On 19 December 2000 the testator loaned his daughter Chandra Pushpa Shandil $100,000 to help her and her husband, Rajendra Sharma Shandil, with a residential mortgage. In May 2001 the testator became ill, was hospitalized and became unable to resume residing in his Halifax home. His daughter offered him accommodation with her family in Vancouver. The Shandrils sold their home and had a house built with a suite for the testator. The testator moved to Vancouver.

[4] On 5 June 2003 the testator executed a will which revoked a will dated 27 March 2003. The new will made no mention of the loan and provided for a cash gift to Ms. Shandil of $20,000. At the same time the testator executed a statutory declaration which commenced as follows:

1. I have executed my last Will today. This declaration is made as an explanation of the provisions of my Will.

Clauses 2 and 3 outlined that the testator had become ill whereupon his daughter made arrangements for him to live with her. The declaration continued:

4. As a token of my appreciation, I have forgiven Chandra the $100,000 originally loaned to her, to pay her mortgage. This forgiveness of debt is intended as an immediate gift to Chandra for her use personally and is not to be considered part of my estate.

[5] The testator's relationship with the Shandrils deteriorated and he moved out of their home in February 2004. On 26 February 2004 the testator executed a will which instructed his executor to collect "the $100,000 which I loaned to Chandra." He also signed the following which was written on his solicitor's letterhead paper:

I hereby revoke my Will of June 5, 2003 and Statutory Declaration to this Will.

Proceedings

[6] On 27 February 2004 Mr. Singh's lawyer wrote to the Shandrils demanding repayment of the loan with interest. A writ of summons and statement of claim were filed on 18 October 2004. Mr. Singh died on 22 March 2004. A statement of defence was filed on 20 December 2004. A notice of motion filed in the action on 3 October 2005 applied for an order that:

1. The June, 2003, Statutory Declaration's existence was, in accordance with the testator's intent, necessarily dependant upon the existence of the June 2003 Will;

2. The June 2003 Will … and therefore necessarily the June, 2003 Statutory Declaration were revoked by the subsequent testamentary instrument being the February, 2004 Will;

3. Neither the June, 2003 Will nor the June, 2003 Statutory Declaration would come into force and effect until the triggering event of the death of the deceased-testator;

4. That the June, 2003 Statutory Declaration was a testamentary document, and could not provide an inter-vivos gift to be gifted immediately;

5. The Loan in the amount of $100,000.00 is due and owing; and

6. Court Order Interest.

[7] That application was heard by way of a summary trial on 4 October 2005. The evidence presented was by way of two documents, one being an affidavit of a legal assistant in the office of counsel for the estate annexing the relevant documents and the other being an Agreed Statement of Facts which read as follows (with the deletion of the letters identifying the exhibits):

1. Anay Prakash Singh ("Anay") is the Executor and Trustee of the Last Will and Estate of the Plaintiff, Ram Prakash Singh also known as Ram Perkas Singh, Deceased (the "Deceased"), and Anay resides at […], in the City of Surrey, in the Province of British Columbia.

2. Anay has the lawful power to commence this action.

3. The Defendant, Rajendra Sharma Shandil, is a Manager of Radio Shack and resides at […], in the City of Surrey, in the Province of British Columbia.

4. The Defendant, Chandra Pushpa Shandil, is an Administrator and resides at […], in the City of Surrey, in the Province of British Columbia.

5. On or about December 19, 2000, the Deceased agreed to provide, and did provide the Defendants with a loan - by cheque - in the amount of $100,000, made payable to both Defendants (the "Loan"). …

6. The Loan was advanced on the understanding that the Loan was to be used by the Defendants to pay off the Defendants' mortgage, and that the Loan was to be repaid.

7. The Deceased executed a Last Will and Testament on June 5, 2003 (the "June 2003 Will"). …

8. The June 2003 Will revoked the Deceased's previous Last Will and Testament dated March 27, 2003 (the "March 2003 Will").

9. The Deceased also executed a Statutory Declaration on June 5, 2003 (the "June 2003 Stat. Dec.") which was drafted and executed in order to explain the provisions of the June 2003 Will.

10. One of the declarations in the June 2003 Stat. Dec. was that the Loan be forgiven against Chandra. [See para. 4 of the June 2003 Stat. Dec.]

11. After the execution of the June 2003 Will and the June 2003 Stat. Dec., the Deceased advised the defendant-daughter, Chandra Pushpa Shandil, that he had revoked the March 2003 Will, executed the June 2003 Will and June 2003 Stat. Dec., and provided her with a copy of June 2003 Stat. Dec.

12. On February 26, 2004, the Deceased executed a new and final Last Will and Testament (the "February 2004 Will"). …

13. The February 2004 Will revoked by its express terms, all prior wills. [See para. 1 of the February 2004 Will]

14. On February 26, 2004, the Deceased also signed a document on Solicitor Rosalyn Manthorpe's letterhead confirming specific revocation of the June 2003 Will and the June 2003 Stat. Dec. (the "February 2004 Document"). …

15. Solicitor Rosalyn Manthorpe made certain notes at the time of drafting the February 2004 Will. A copy of those notes and papers are attached…

16. The February 2004 Will instructed the executor to, inter alia, collect the Loan from Defendant Chandra. [See para. 7(a) of the February 2004 Will]

17. The June 2003 Will, June 2003 Stat. Dec., February 2004 Will, and February 2004 Document were all drafted by the same solicitor, Rosalyn D. Manthorpe, Esq., of Surrey, British Columbia.

18. Solicitor Rosalyn Manthorpe, Esq., also made certain notes and papers respecting the drafting of the various Wills. …

19. On February 27, 2004, the Deceased, through his counsel, Dilraj S. Gosal, Esq., sent a demand letter to the Defendants requesting repayment of the Loan with interest. …

20. The Deceased died on or about March 22, 2004 at Lautoka, Fiji.

21. The February 2004 Will was proved and sealed before the Supreme Court of British Columbia, and Anay was granted Executor Status. …

Reasons for judgment:

[8] Mr. Justice Romilly identified three issues:

(a) Did the Loan forgiveness clauses in the Statutory Declaration create a testamentary disposition or an inter vivos gift?

(b) If the Loan forgiveness clauses created an inter vivos gift, was this gift completed?

[9] Mr. Justice Romilly stated: "two elements must be present to establish a gift: (a) The donor must have intended to make a gift and (b) The donor must deliver the subject matter of the gift to the donee"; "The burden of proof rests upon the donee to establish these two elements beyond a reasonable doubt". "Once a gift has been made, it cannot be revoked unless an express power of revocation is preserved. A power of revocation cannot be implied no matter how natural such an implication might be." He cited cases in support of each proposition.

[10] At paragraph 21 Mr. Justice Romilly found, "the Deceased intended the Loan forgiveness clauses to give effect to an inter vivos gift to the Defendants." At paragraph 23 he noted paragraph 4 of the statutory declaration and said: "the Deceased intended for these gifts to take effect at different times: the Loan forgiveness [in the Statutory Declaration] immediately, and the cash gift [in the June 2003 Will] upon his death." The judge also noted as follows at paragraph 26:

The Deceased intended to forgive the Loan as an inter vivos gift with immediate effect. I further find that the delivery requirements of a gift are satisfied in this case. Since there was no power of revocation reserved by the Deceased in the Statutory Declaration or otherwise, I find that the subsequent revocation of the gift in the February 2004 Will and its accompanying signed document is of no force or effect.

[11] Mr. Justice Romilly concluded as follows at paragraph 27: "The Loan has been forgiven in its entirety and the Estate has no entitlement to repayment of the Loan."

Analysis

[12] The appellant's appeal was presented on the basis that the judge erred in four ways. I will analyze those in the order that they appear in the factum.

1. Did Romilly J. make a prejudicially erroneous finding of fact that only a copy of the June 2003 Statutory Declaration and not a copy of the June 2003 Will was delivered to defendants?

[13] Paragraphs 11 and 25 of the judge's reasons for judgment are as follows:

[11] After execution of the June 2003 Will and the Statutory Declaration, the Deceased advised Ms. Shandil that he had revoked the March 2003 Will and executed the June 2003 Will and Statutory Declaration. He also provided her with a copy of the Statutory Declaration.

[25] The Deceased's subsequent action in delivering the Statutory Declaration to Ms. Shandil is also informative. There is no evidence before me that the Deceased delivered the June 2003 Will to Ms. Shandil. This supports the view that the Deceased believed the Statutory Declaration to have had individual effect beyond its use as an interpretive tool for the June 2003 Will.

[14] In the "Statement of Fact" in the appellant's factum is the following:

The Defendants-Respondents did receive a copy of both the June 2003 Will and the June 2003 Statutory Declaration together from the deceased shortly after their execution.

The respondent's factum states: "The Respondents agree with the Appellant's Statement of Facts." However, the Agreed Statement of Facts that was before Romilly J. stated:

[15] There is thereby uncertainty on this point, but it cannot be said that the judge erred. However, even if the June 2003 will was delivered to the defendants along with the June 2003 statutory declaration, it is not a significant factor. As noted by the judge, the important issue was whether the statutory declaration declaring forgiveness of the loan was delivered. Clearly it was delivered and whether it was delivered with or without the will is of no moment.

2. Did Romilly J. err by misapprehending evidence that the same solicitor had drafted the June 2003 Will, its accompanying June 2003 Statutory Declaration and the February 2004 Will and February 2004 Revocation Letter, and in failing to give sufficient consideration or weight to same?

[16] This matter was presented in the appellant's factum on the basis that "it is doubtful that an experienced Will and Estate Solicitor would draft an inter vivos gift within a document that is expressly stated to be an interpretative tool for a testamentary disposition." The suggestion is that the solicitor, being the drafter of all of the documents, "knew" that the "gift" made in the statutory declaration was revocable "by the subsequent testamentary instrument being the February 2004 Will." However, that argument, if admissible at all, could only be made if such evidence was before the judge. It was not. No affidavit from the solicitor was tendered in evidence. The proposition is no more than speculation on the part of the appellant.

[17] I would note that the solicitor's notes were accepted as an exhibit at the trial. This was done in spite of the fact that they were not verified or explained by an affidavit from the solicitor. I find this a troubling laxity with respect to the rules of evidence.

3. Did Romilly J. err in finding that the Statutory Declaration was more than a mere interpretive document, designed solely to explain the provisions of the will?

[18] The appellants argue that paragraph 1 of the statutory declaration restricts the purpose of the entire document. It reads:

1. I have executed my last Will today. This declaration is made as an explanation of the provisions of my Will.

The appellant thereby suggests that the sole and only purpose of all of the provisions of the statutory declaration must be "an explanation of the provisions of [the June 2003] Will."

[19] I disagree. Romilly J. held "that the Deceased intended the Loan forgiveness clauses to give effect to an inter vivos gift to the Defendants" and that "the Deceased did not intend for the Loan forgiveness to be a testamentary disposition in the Statutory Declaration, but rather an immediate and outright gift." I can see no error in the judge's interpretation of the statutory declaration and I agree with his conclusion "that in setting out an inter vivos gift in the Statutory Declaration, the Deceased was alerting the eventual Executor or Executrix that the estate had no entitlement to repayment of the Loan."

4. Did Romilly J. err in finding that the gift had been perfected by misapplying the standard as set out in Kooner v. Kooner , 100 D.L.R. (3d) 76 (B.C.S.C.) that in order to establish a gift, the donor must both: (1) have intended to make a gift; and (2) deliver the subject matter of the gift to the donee?

[20] Kooner does not set a standard. It sets out the law with respect to the making of a gift. Mr. Justice Romilly found that the testator intended to make a gift and he delivered the subject matter of it to the Shandils. As noted earlier, he held that the testator "intended to forgive the Loan" and "that the delivery requirements of a gift are satisfied."

[21] What the appellant is really suggesting is that Romilly J. erred in finding that there was a gift to take effect immediately. The proposition being advanced is that because the opening words of the statutory declaration referred to the will, the "forgiveness" was to take effect upon the death of the declarant. On the basis of the wording of the statutory declaration the judge held that the loan forgiveness was an immediate inter vivos gift and the only relationship the declaration had to the will was to alert the executor "that the estate had no entitlement to repayment of the loan."

[22] That conclusion by Mr. Justice Romilly is, in my opinion, unassailable. To repeat again from the statutory declaration:

4. … This forgiveness [of the loan] is intended as an immediate gift to Chandra for her use personally and is not to be considered part of my estate.

[23] The appellant nevertheless submits that the opening words in the statutory declaration make it part of the testamentary documentation. However, those words: "This declaration is made as an explanation of the provisions of my Will", cannot be said to make the statutory declaration a testamentary document. Counsel for the appellants conceded that he could not cite any legal precedent for such a proposition.

5. Did Romilly J. err in his application of the standard of proof beyond a reasonable doubt when determining if a gift had been perfected?

[24] The judge held that the burden of proof is upon a donee to establish “beyond a reasonable doubt” that the donor intended to make an inter vivos gift. He cited Kibsey Estate v. Stutsky (1990), 63 Man. R. (2d) 34 (C.A.) in support. However, the Court in Kibsey, relying upon Johnstone v. Johnstone (1913), 12 D.L. R. 537 (Ont. C.A.), stated: “As to the standard of proof necessary to prove the gifts … it must be such as to leave no reasonable room for doubt as to the donor’s intentions.”

[25] In Rashid v. Singh, [1996] B.C.J. No. 1428 (S.C.) (QL) Taylor J. said:

The degree of proof of intention where intention is disputed is such that the donee cannot succeed unless she meets the standard of proof which allows no reasonable room for doubt as to the donor’s intention. See Wettstein v. Wettstein (11 May 1992), Vancouver A892252 (B.C.S.C. following Kibsey Estate v. Stutsky, [1990] 2 W.W.R. 632 (Man.C.A.).

[26] The words “no reasonable room for doubt” cannot, in my opinion, be elevated to the criminal standard of “beyond a reasonable doubt” in the context of a civil case. By interpreting Kibsey in that manner the judge erred. However, nothing turns on that in the instant case in that the judge held that the respondents had attained an even higher standard of proof. I am of the opinion that the burden for the donees in the case at bar was the usual civil standard of balance of probabilities.

[27] However, the appellant argues that “the evidence taken on its worst footing for the appellant leaves an ambiguous document, with uncertain intentions.” As must be clear from my reasons, I am of the opinion there was no uncertainty in the gifting carried out by the statutory declaration. On the evidence that was before the judge there was no reasonable possibility that the testator intended other than to make an immediate inter vivos gift to the Shandils of the balance outstanding on the loan. It follows that the respondents satisfied their onus on a balance of probabilities.

[28] I would dismiss the appeal.

“The Honourable Mr. Justice Thackray”

I AGREE:

“The Honourable Chief Justice Finch”

I AGREE:

“The Honourable Mr. Justice Low”