B.C. COURT OF APPEAL
REASONS FOR JUDGMENT

TRUSTS / ESTATES 2001

• 2001 BCCA 509 Romaine Estate v. Romaine
  An uncle sued his nephew and the nephew’s companies for the return of property the uncle had transferred to one of the companies, claiming the company held it on a resulting trust. The uncle’s estate continued the action after the uncle’s death. The trial judge agreed with the estate, and the nephew and his companies appealed. Held: appeal allowed. The uncle had executed documents under seal transferring the beneficial ownership of the property to the nephew and the nephew’s wife, who in turn transferred the property to the company. The uncle also executed a Form A transfer of the property to the company. The documents under seal were legally enforceable as sealed contracts. In addition, the evidence surrounding the execution of the documents and the Form A transfer rebutted the presumption of resulting trust.
• 2001 BCCA 413 Callender v. Callender
  The appellant appeals the order dismissing her application to be appointed as guardian ad litem for her mother who is a patient under the Patients Property Act. On behalf of her mother, the appellant seeks to set aside an estate freeze transaction that was entered into by her father.  Low J.A. (for the court): Section 22(1) of the Patients Property Act provides that a person other than the committee of the patient must not bring an action on behalf of the patient. The committee in this case took legal advice and decided not to pursue the claims that the appellant now seeks to pursue on behalf of her mother. Therefore, the appellant sought a discretionary order under Rule 6(6) of the Supreme Court Rules.  Held: the appeal is dismissed. In exercising his discretion under the Rules, the Chambers judge had to consider whether the committee acted prudently under the Patients Property Act, especially s.18 thereof. The Chambers judge applied the proper test and committed no error in the exercise of his discretion.
• 2001 BCCA 400 Price v. Price
  Appeal dismissed for reasons given by trial judge.
• 2001 BCCA 387 Estate of Shippman v. Shippman
  Costs of executrix beneficiary and other beneficiary ordered payable as special costs from estate - Re Kanee Estate (1992), 69 B.C.L.R. (2d) 89 followed.
• 2001 BCCA 267 James v. Field
  Prowse J.A. (for the majority): Appeal from the decision of a trial judge admitting a will to probate on the basis that the testator had testamentary capacity and was not under undue influence at the time the will was executed. Held: Appeal allowed and a new trial ordered. The trial judge erred in law by excluding relevant and potentially critical evidence relating to the issues of testamentary capacity and undue influence.Rowles J.A. dissenting: The appeal ought to be dismissed as no error in principle was shown and the trial judge was not plainly wrong in result.
• 2001 BCCA 195 Estate of Shnippman v. Shippman
  Variation made in proportion of future taxes to be the responsibility of estate beneficiaries because of contingencies affecting future payment and fact that payment will only accrue, probably many years into the future.
• 2001 BCCA 100 Moiny Estate (Re)
  Appeal from judgment dismissing appellant's application for Letters of Administration, finding that a Canadian Forces instrument was a Will, finding it was the deceased's intention that the respondent would inherit all of the estate, and finding there was authority to interpret a will as if it contained words not appearing in the instrument.   Critical question is whether the instrument is dispositive. In this case, the conclusion is that the deceased intended the instrument to have a legal consequence and the only legal consequence which makes sense is that he intended the respondent to have his estate. The learned judge did not err in holding there are cases in which it is legally correct to read words into an instrument obviously intended to be a testamentary disposition. Appeal dismissed. Appellant's costs to be paid out of estate.
• 2001 BCCA 54 Wieler et al. v. Eastman et al.