2006 BCSC 1610 Gin v. King et al

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	*Gin v. King et al.,*
	2006 BCSC 1610

Date: 20061101
Docket: L041809
Registry: Vancouver

Between:

Trevor Thomas Gin

Plaintiff

And

Ernest Wing King, Antoinette Chan-Pensley, Lily Gin, Donald Gin (a.k.a. Feng Tai Wong Gin), Yook Ying Gin, Dawn Gin, Sandra Lam, Terry Jack Kee, Roger Soon Shiong, Jeremy Soon Shiong, Michele Soon Shiong, and Marjorie Jack Lee

Defendants

Before: The Honourable Mr. Justice Nathan H. Smith

Reasons for Judgment
(In Chambers)

Counsel for the Plaintiff	R. Barry Fraser and Tyler Galbraith
Counsel for the Defendants Ernest Wing King and Antoinette Chan-Pensley	Hugh McLellan
Counsel for the Defendants Sandra Lam, Terry Jack-Kee, Roger Soon Shiong, Jeremy Soon Shiong, Michel Soon Shiong and Margery Jack Kee	D. Rodney Urquhart
Date and Place of Hearing:	October 6, 2006
	Vancouver, B.C.

[1] Adon Florrie Gin died at the age of 89 on January 10, 2004, leaving an estate of approximately $1.5 million in cash. Four years before she died, Ms. Gin made a will under which the plaintiff Trevor Thomas Gin is both executor and major beneficiary.

[2] When the plaintiff commenced action for probate of that will, only two of the 12 potential beneficiaries who were named as defendants filed statements of defence. Two years later and shortly before trial, those two defendants agreed to a settlement with the plaintiff. Only then did six other defendants file pleadings and seek discovery of documents.

[3] The plaintiff now seeks:

a) an order striking the recently filed statements of defence;

b) approval of the settlement and judgment in the probate action on summary trial under Rule 18A.

The defendants who filed the new pleadings say they should be allowed to defend the action and seek an order compelling discovery of documents.

Background

[4] The deceased, Adon Florrie Gin, was born and raised in South Africa and later lived in Hong Kong before coming to Canada in 1996. She had two siblings and a number of nieces and nephews, but she never married and had no children of her own. The plaintiff, Trevor Gin, was a nephew and sponsored her immigration to Canada.

[5] In July, 1998, the deceased executed a will that had been prepared by a lawyer in Toronto (the “1998 will”). That will made one specific bequest of $10,000, then divided the balance of the estate into ten equal shares, of which the plaintiff was to receive two. On January 3, 2000, the plaintiff assisted her in the preparation of a new will, (the “2000 will”) using a commercial will kit. The new will gave seven individuals $10,000 each, with the remainder of the estate going to the plaintiff.

[6] In March, 2000, the deceased was diagnosed as suffering from dementia. The plaintiff, who is a medical doctor, says her condition in March 2000 was markedly different from what it had been at the time the will was executed and he thought she may have suffered a stroke. The deceased’s treating physician says there had been no indication of dementia when she last saw her in November, 1999.

[7] The defendants Ernest Wing King and Antoinette Chan-Pensley were friends of the deceased. Under the 1998 will, Ms. Chan-Pensley was to receive two shares and Mr. Wing King one share of the estate. Neither was mentioned in the 2000 will. Terry Jack Kee, Sandra Lam and Barbara Soon Shiong were children of the deceased’s sister. They would have each received a one-tenth share of the estate under the 1998 will, but were given only $10,000 each in the 2000 will.

The Probate Action

[8] When a grant of probate is sought for a will and there is a dispute about its validity, Rule 62 of the Rules of Court requires that an action be commenced by writ of summons and that all persons with an interest in upholding or disputing the validity of the will be named as defendants. However, when a defendant does not file an appearance or a statement of defence, Rules 62(7) and 62(11) make clear that the usual procedures for default judgment are not available in a probate action. Rule 62(13) provides that no probate action shall be compromised without leave of the court.

[9] This probate action was begun in July, 2004, naming 12 potential beneficiaries as defendants. The defendants, Mr. Wing King and Ms. Chan-Pensley, filed statements of defence alleging that the 2000 will was procured by undue influence and that the deceased lacked testamentary capacity. They also filed counterclaims asking the court to pronounce in favour of the 1998 will.

[10] On August 18, 2004, the defendant, Sandra Lam, filed an appearance, accompanied by a letter to the court registry that read, in part:

I wish to place on record that without any prejudice to my position as a beneficiary to the wills, I am not a party to any legal proceedings and have not given consent or agreed to any legal costs being deducted from my share as a beneficiary.

[11] Along with that letter, Ms. Lam also enclosed an appearance for her mother, the defendant, Margery Jack Kee, who was not a beneficiary under either will. Ms. Lam’s brother, the defendant Terry Jack Kee, filed an appearance and a similar letter on August 25, 2004. (Sandra Lam, Margery Jack Kee and Terry Jack Kee will be referred to collectively as the “Jack Kees”)

[12] The deceased’s niece, Barbara Soon Shiong, predeceased her, but her husband Roger Soon Shiong, her son Jeremy Soon Shiong and her daughter Michelle Soon Shiong would inherit in her place and were named as defendants. They were served during the summer of 2004, but took no steps until July, 2006, when they received copies of the notice of trial. At that point, they sent virtually identical letters to plaintiff’s counsel that read in part:

(we) have no recollection of agreeing to participate in any lawsuit nor have we appointed any attorneys to represent us in any lawsuit. Please note that my family and I as named above are not a party to whomever has appointed you to represent them in the case.

(Roger, Jeremy and Michelle Soon Shiong will now be referred to as the “Soon Shiongs”.)

[13] The litigation involving the defendants Mr. Wing King and Ms. Chan-Pensley proceeded for two years, including exchange of documents and examinations for discovery. The trial was set for August 28, 2006 but a settlement was reached a few weeks earlier. Under the settlement, the participating defendants agreed to the probate of the 2000 will. Following the grant of probate, the plaintiff is to pay $145,000 to Mr. Wing King and $290,000 to Ms. Chan-Pensley, along with $25,000 to each of them for legal costs. In the result, those two defendants will receive almost as much as they would have under the 1998 will.

[14] The trial was adjourned and a motion for summary trial and approval of the settlement was served on all defendants. After being served with notice of that motion, the Jack Kees and Soon Shiongs filed statements of defence and counterclaims. Those pleadings give essentially the same reasons for opposing the will as had been set out in the pleadings of the defendants who have now settled. The Jack Kees and Soon Shiongs also served demands for discovery of documents, but the plaintiff has refused to deliver a list of documents

[15] Sandra Lam says in an affidavit that she did not previously defend this action because Mr. Wing King was contesting the 2000 will and the court would therefore determine its validity one way or the other. She says the purpose of her letter to the registry in 2004 was to make clear that she was opposed to legal costs being paid out of the estate, but she did not mean she wasn’t disputing the 2000 will and she didn’t anticipate that Mr. Wing King would enter into a settlement without informing her or the other beneficiaries. Ms. Lam says she has discussed the matter with the other defendants who now wish to contest the will and they all took a similar position. She says “all are surprised that a settlement was entered into without informing us.”

[16] Counsel for the Jack Kees and Soon Shiongs concedes that is not a very satisfactory explanation, but says there are real issues about the validity of the 2000 will. He says the court must consider the relative prejudice to the parties and that balance favours his clients being now allowed to defend the action.

The Plaintiff’s Application To Strike The Pleadings

[17] The statements of defence and counterclaims filed by the Jack Kees and Soon Shiongs were filed approximately two years after the time they should have been filed under the Rules of Court. The plaintiff says they should be struck out, either because leave of the court was required to file them, or because they are an abuse of process.

[18] Rule 14(3) sets out the time in which an appearance is to be filed. The normal time is seven days after service of the writ, although a longer period is provided for defendants outside the jurisdiction, as these defendants are. Rule 21(5) requires a defendant to file and deliver a statement of defence and any counterclaim within either 14 days after of the delivery of the statement of claim or 14 days after the deadline for filing an appearance, whichever is later. In this case, all defences and counterclaims should have been delivered by early October, 2004.

[19] There is nothing in the rules to prevent the filing of either an appearance or a statement of defence after those time limits have expired (and late filing of statements of defence is particularly common) but a defendant who does not file in time and does not negotiate an extension with plaintiff’s counsel usually runs the risk of the plaintiff taking a default judgment under Rule 17 (if no appearance is filed) or Rule 25 (if no statement of defence is filed.) However, as said above, the usual default procedures are unavailable in probate actions.

[20] Counsel for the plaintiff submits that the recently filed statements of defence should be struck because they could not properly be filed after such a long delay without leave of the court. He relies on the decision of Beames J. in Summerland (District) v. No Strings Enterprises, [1997] B.C.J. No. 1980 (S.C.) (Q.L.). In that case, a counterclaim was filed five months after the statement of defence and Beames J. held that leave was required.

[21] The Summerland case turned on the requirement in Rule 21(5) that any counterclaim be filed with the statement of defence. This is because the effect of a counterclaim is to introduce a different cause of action, which the plaintiff should get notice of at the same time he or she gets notice of the grounds on which the main action is being defended. That reasoning does not apply directly to this case. The counterclaims were filed with the statements of defence and there is nothing in the rules that suggests leave is required for late filing of a statement of defence in the absence of any default proceedings.

[22] Plaintiff’s counsel also says the pleadings should be struck under the court’s inherent jurisdiction to control its own procedures in order to avoid abuse of process. If the extremely late filing of these pleadings can be characterized as an abuse of process, it may be that they could also be struck under Rule 19(24) (d), but the plaintiff did not make that submission.

[23] Rule 1(5) says that the purpose of the rules is the just, speedy and inexpensive determination of every proceeding on its merits. In order to realize that goal, parties to litigation must fulfill their responsibilities to the court and to each other in a timely manner. Although defendants in probate actions are protected from default proceedings, I do not interpret that as eliminating the normal right of a plaintiff to know at a reasonably early stage who is defending the action and on what basis.

[24] The Jack Kees and Soon Shiongs were fully aware of this action from the beginning and chose to ignore it. The reasonable inference is that they expected to benefit from whatever success the other defendants had, without any effort or expense of their own. The settlement between the plaintiff and the other defendants cut off the “coat tails” on which they expected to ride. They say they did not expect the matter to be settled without them being informed, but that is precisely the risk they should have been aware of when they decided not to defend the action.

[25] The conduct of these defendants was irresponsible, unwise and disrespectful, but I am not satisfied that it amounts to deliberate abuse of process or that it should be the sole basis on which this matter is decided. It is, however, a factor to consider in deciding whether or not it would be unjust to give judgment under Rule 18A.

The plaintiff’s application for judgment and approval of the settlement

[26] The plaintiff seeks judgment in the probate action under Rule 18A and approval of the settlement under Rule 62(13). The relevant portions of Rule 18A are as follows:

(1) A party may apply to the court for judgment, either on an issue or generally, in any of the following:

(a) an action in which a defence has been filed;

…

(11) On the hearing of an application under subrule (1), the court may

(a) grant judgment in favour of any party, either on an issue or generally, unless

(i) the court is unable, on the whole of the evidence before the court on the application, to find the facts necessary to decide the issues of fact or law, or

(ii) the court is of the opinion that it would be unjust to decide the issues on the application

[27] The Jack Kees and Soon Shiongs argue that the 2000 will is a dramatic departure from the 1998 will and is a handwritten document prepared without legal advice by the person who stands to gain the most. They say there is evidence suggesting that the testator’s capacity is in issue and they should have the opportunity to review the documents in possession of the plaintiff and other parties. If they cannot now defend the action, they say the issues raised will remain unresolved. In effect, these defendants say it would be unjust to decide the matter on a summary trial, given the current state of the evidence.

[28] These defendants have no direct evidence to give about the circumstances of the 2000 will or the testator’s capacity at the time. Sandra Lam’s affidavit indicates that she had no direct contact with the deceased after January, 1998. None of the other defendants who now wish to contest the will have provided any evidence at all of their dealings with the deceased. These defendants rely on statements made in examinations for discovery by the defendants who have now settled. For example, Mr. Wing King, in his examination for discovery, expressed the opinion that the deceased was demented as early as July, 1999, but in an affidavit sworn after he settled, he said he believes she had the ability to handle her affairs until March, 2000.

[29] Discovery evidence is only admissible as against the party who gave that evidence, so, in the context of this application, Mr. Wing King’s discovery evidence is not admissible to prove or disprove testamentary capacity. However, the existence of that evidence may be used to demonstrate that it would be unjust to decide the issues on a Rule 18A application (see Pete v. Terrace Regional Health Care Society, [2003] 12 B.C.L.R. (4^th) 303, 2003 BCCA 226 at ¶12).

[30] The Jack Kees and Soon Shiongs also rely on the affidavit of Delphine Gin, who accompanied the deceased on a transatlantic flight in March 1999 and says that she appeared confused and unable to fully understand what was said to her.

[31] In my view, the best evidence of the deceased’s mental condition in the months leading up to the preparation of the 2000 will is contained in the affidavit of Dr. Janet Sun, who was the deceased’s treating physician. Dr. Sun had to specifically consider the deceased’s mental condition in July, 1999, when the deceased was applying to move into an independent living residence for seniors. As part of the application process, Dr. Sun signed a medical certificate that stated, among other things, that there were no indications of dementia. In her affidavit, Dr. Sun said the deceased was not suffering from dementia in July 1999 and her mental condition had not changed as of November, 22, 1999, when the deceased made her last visit to Dr. Sun’s office.

[32] The plaintiff also relies on an affidavit of his sister, Lily Gin, who saw the deceased at Christmas 1999 and on New Years Day 2000. Ms. Gin says that on those occasions the deceased appeared mentally competent and was able to recognize and converse with others who were present. Her evidence is therefore consistent with that of Dr. Sun.

[33] Ms. Gin also says that the deceased told her at Christmas 1999 that she wanted to change her will to leave the bulk of her money to the plaintiff. She says the deceased was asked how much money she had and replied that it was in excess of $1 million. I note here that Lily Gin is also a named defendant in this action. She has not contested the 2000 will, although it reduced her inheritance to $10,000 from the full one-tenth she would have received under the 1998 will.

[34] The plaintiff’s affidavit describes the making of the 2000 will. He states the deceased gave him specific instructions that were incorporated into the will and stated her reasons for disposing of the estate in that manner.

[35] In order to give judgment in favour of the 2000 will, the court must be satisfied on the balance of probabilities that the deceased knew and approved the contents of the will and that she had the necessary testamentary capacity at the time it was made. These elements are normally presumed once it is shown that the will was properly executed, but that presumption does not apply where there are suspicious circumstances surrounding the will. In the presence of suspicious circumstances, the propounder of the will bears the burden of proving that the testator knew and approved the contents of the will and had testamentary capacity. The Supreme Court of Canada said in Vout v. Hay, [1995] 2 S.C.R. 876, 125 D.L.R. (4^th) 431.

Where suspicious circumstances are present, then the presumption is spent and the propounder of the will reassumes the legal burden of proving knowledge and approval. In addition, if the suspicious circumstances relate to mental capacity, the propounder of the will reassumes the legal burden of establishing testamentary capacity. Both of these issues must be proved in accordance with the civil standard. There is nothing mysterious about the role of suspicious circumstances in this respect. The presumption simply casts an evidentiary burden on those attacking the will. This burden can be satisfied by adducing or pointing to some evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity. In this event, the legal burden reverts to the propounder. (¶27).

[36] A different test applies in relation to the allegation of undue influence. That is an affirmative defence that those attacking the will must prove. The court said in Vout v. Hay at ¶28:

… No doubt this reflects the policy in favour of honouring the wishes of the testator where it is established that the formalities have been complied with, and knowledge and approval as well as testamentary capacity have been established. To disallow probate by reason of circumstances merely raising a suspicion of fraud or undue influence would tend to defeat the wishes of the testator in many cases where in fact no fraud or undue influence existed, but the propounder simply failed to discharge the legal burden. Accordingly, it has been authoritatively established that suspicious circumstances, even though they may raise a suspicion concerning the presence of fraud or undue influence, do no more than rebut the presumption to which I have referred. This requires the propounder of the will to prove knowledge and approval and testamentary capacity. The burden of proof with respect to fraud and undue influence remains with those attacking the will.

[37] There clearly are suspicious circumstances in relation to this will. Although medical evidence shows that the deceased had testamentary capacity in November, 1999, she had clearly lost that capacity by March, 2000. The will at issue was made between those dates. The disposition of the estate was significantly changed from the earlier will. That change was to the benefit of the plaintiff, who assisted the deceased in making the will without legal advice.

[38] In the presence of those suspicious circumstances, there is an evidentiary burden cast on the plaintiff. That burden has been met by the evidence of Dr. Sun, Lily Gin and the plaintiff. The Jack Kees and Soon Shiongs point to some evidence questioning the deceased’s mental capacity, but that evidence is based on observations that pre-date Dr. Sun’s specific medical consideration of the issue and, in my opinion, is not entitled to any weight.

[39] The evidence of the plaintiff and of Lily Gin relates to a time a few weeks after Dr. Sun last saw the deceased, but describes the deceased’s mental condition in a way that is consistent with Dr. Sun’s last observation.

[40] In my view, the plaintiff has presented ample, uncontradicted evidence on which the Court can find the necessary facts to give judgment. On the question of undue influence, where those challenging the will have the burden of proof, the defendants have presented no evidence. The question is whether it would be unjust to give judgment without giving the Jack Kees and Soon Shiongs the opportunity to seek other evidence that may support a different result.

[41] As none of these defendants were in contact with the deceased at the time she wrote the 2000 will, it is highly unlikely that they would ever be able to find evidence that would outweigh Dr. Sun’s considered medical opinion. In any event, speculation that such evidence may be found is not a ground for denying judgment in these circumstances.

[42] In Hamilton v. Sutherland, [1992] 68 B.C.L.R. (2d) 115, 5 W.W.R. 151 (C.A.), the Court of Appeal upheld a summary trial decision to grant probate of a disputed will. The Court rejected the argument that it was unjust to grant judgement because “something might turn up” in the discovery process.

[43] In Anglo Canadian Shipping v. Pulp, Paper and Woodworkers of Canada, (Local 8), [1988] 27 B.C.L.R. (2d) 378 (C.A.), the Court of Appeal said the summary trial process in Rule 18A should not be frustrated by one party delaying pre-trial procedures:

I am not suggesting that there was any intentional delay in this case. But it must be the case that if adequate notice is given to an opposing party that a summary trial application is going to be brought on, there then falls on that party an obligation to take every reasonable step to complete as much of the pre-trial procedures as is reasonably possible before the summary trial proceedings are heard. He cannot, by failing to take those pre-trial procedures, frustrate the benefits of the summary trial rule. (page 382)

[44] That comment applies with greater force when parties who are served with pleadings choose not to take part in the proceedings. These defendants had two years to seek evidence if they had wanted to do so. If they had not refused to participate in this action, they would have had access to full discovery and would have been in a position to present evidence either at trial or on this application.

[45] The defendants rely on Hicks v. Beaver Lumber, [1993] B.C.L.R. (2d) 206 (C.A) and International Forest Products Ltd. v. Moody, [1997] B.C.L.R. (3d) 257 (C.A.) as authority for the proposition that the Court should base its decision on which party is most at risk of prejudice. In Hicks, Lambert J.A. said at ¶16:

In all of these matters under the Rules it is important to consider the interests of justice as they are revealed by an assessment of the prejudice suffered by each party through the application of the Rules.

[46] Both of those cases dealt with inadequacies in the endorsements on writs and the question of whether such inadequacies nullify a writ. Both are cases applying Rule 2(1), which provides that a failure to comply with the Rules will generally be treated as an irregularity that does not nullify proceedings. Goldie J.A. said in Hicks that the court should ensure that “technical matters do not drive a plaintiff from the judgment seat.” (¶19).

[47] This is not a case of a merely technical irregularity. These defendants made a deliberate decision to not participate in the action. The plaintiff proceeded for two years on the basis that these defendants were taking no position and that he only had to overcome the arguments being raised by the defendants Mr. Wing King and Ms. Chan Pensley. If these defendants actually believed that their interests were being protected by Mr. Wing King and Ms. Chan Pensley, they had no reasonable basis in fact or law for such a belief. Any prejudice suffered by these defendants is entirely self-inflicted and there is nothing unjust about granting judgment.

[48] Accordingly, the will made January 3, 2000 is declared proved in solemn form. Probate is granted with the plaintiff being declared the sole executor and the settlement of this action between the plaintiff and the defendants Wing King and Chan-Pensley is approved. It follows that the application of the Jack Kees and Soon Shiongs to compel discovery of documents is dismissed.

“Nathan H. Smith, J.”
The Honourable Mr. Justice Nathan H. Smith