Earlier this week, I blogged about criminal offences involving the theft and destruction of testamentary documents. Case law dealing with these provisions of Canada’s Criminal Code is sparse.
The 2015 British Columbia Supreme Court decision in D’Angola v. British Columbia involved multiple allegations, including an accusation that a last will and testament had been fraudulently concealed contrary to section 340 of the Criminal Code. The matter featured a mandamus application by the daughter of the deceased, who sought her sister’s prosecution for this and various other alleged violations of the Criminal Code.
The deceased, the father of the sisters, had left a will dated May 6, 2003. The will named the applicant’s sister as estate trustee and otherwise treated both sisters equally. The applicant had apparently inquired of her sister whether the deceased had a will after their father died and did not receive a clear response. Approximately five months later, the named estate trustee contacted the applicant by email and informed her of the existence of their father’s will. Eventually, the applicant was informed, by counsel for the applicant’s sister, that the sister had been named as estate trustee, was in the process of administering the estate, and that the deceased’s property located in Italy had been transferred to the two sisters and their mother in accordance with Italian succession law. The applicant later became dissatisfied with the estate trustee’s administration of the estate, stating that her conduct in that regard had been both negligent and criminal.
In summarizing the Lower Court’s decision regarding the allegation of criminal concealment of the will, Justice V. Gray noted that “even if the Sister concealed the Late Father’s will, there [was] no evidence of a fraudulent purpose on the part of the Sister, and there was nothing for the Sister to gain by concealing it.” Justice Gray declined to exercise the discretion to order a reconsideration of the issues by the Court.
Although few other decisions consider allegations of criminal theft and/or concealment of wills, this decision by the British Columbia Supreme Court suggests that, with respect to allegations of concealment under section 340 of the Criminal Code, a fraudulent purpose will be a prerequisite. Further, the Court’s considerations may include whether any benefit has been received by the accused in concealing the testamentary instrument.
Thank you for reading.
Listen to The Process of Administering an Estate
This week on Hull on Estate and Succession Planning, Ian and Suzana talk about the first, pre-probate stages of administering an estate.
As with any other type of litigation, documents obviously play a pivotal role in estate disputes. A claimant against an estate will often be reliant upon documents last seen in the possession of the deceased. But what if the documents so critical to the claimant’s case cannot be located in the estate residence?
Estate litigation is somewhat unique in that the custodian of the key documents in the case may be the party who has a great deal to gain from their loss or destruction. The ethical issues are front and centre and surely the advise of the estate solicitor to the estate trustee must be that he or she preserve all documents in the estate residence that could in any way have an impact upon a claimant’s case.
Sometimes, whether inadvertently or not, documents inexplicably go missing. The disappointed or suspicious claimant may avail himself of the legal doctrine or spoliation* which posits that an adverse inference will be drawn against a party who loses documents that were conclusively shown to have been in his custody.
David M. Smith
*For a more detailed discussion on spoliation, see the article "Spoliation and Other Evidentiary Issues" on the Cassels Brock Blackwell LLP website.