Will unsigned due to COVID recognized, UVic resists class action over parking, and UBC advisor fired for use of gay dating app
This week on Legally Speaking with Michael Mulligan:
In British Columbia, the Wills, Estates and Succession Act sets out requirements for a will to be valid. These include a requirement that a will be signed by the will-maker as well as two or more witnesses.
In a case discussed on the show, a 76-year-old woman was living in a care facility and provided instructions to her lawyer to draft a new will. Unfortunately, the appointment to sign the will was scheduled for March 20, 2020. The appointment was cancelled because the care home the woman was living at prohibited residents from leaving, or visitors from attending, because of COVID.
Sadly, the woman passed away before the will was signed. She had no children, and her husband had predeceased her.
In a previous will, from 2014, a large portion of the woman’s estate would have gone to the Kelowna General Hospital Foundation. In accordance with her instructions, the new will that was drafted, but not signed, did not include the Kelowna General Hospital Foundation but, instead, left most of the estate to the woman’s nephew and nice-in-law.
According to the correspondence with her lawyer, the woman was clear that she did not wish to leave any money to the Kelowna General Hospital Foundation because she had no connection to the organization. She indicated that this had been a suggestion by her late husband.
The Wills, Estates and Succession Act allows a court to “cure deficiencies” in a will that would otherwise be invalid. One of the things that a judge needs to be satisfied of in order to exercise this authority is that the will must represent fixed and final intentions regarding the disposal of property upon death.
The Kelowna General Hospital Foundation argued that the unsigned will should not be relied upon because in a note to her lawyer, after reviewing the draft will the woman said, “no charities at this time.”
Despite this, the judge hearing the case concluded that the unsigned will did represent the woman’s fixed and final intentions and found it to be valid even though it hadn’t been signed or witnessed.
Also on the show, the University of Victoria is resisting a proposed class action seeking refunds of parking pass fees for the period of March 16, 2020, to August 31, 2020. After selling the parking passes, the university closed the campus because of COVID.
The university was successful in an application to permit it to make an argument to have the claim dismissed, prior to a hearing to determine if the case should be certified as a class action. The practical implication of this is that the student acting as the proposed representative plaintiff could be ordered to pay thousands of dollars in costs if the university is successful. If a case is certified as a class action, the representative plaintiff is no longer at risk of being ordered to pay the costs of the defendant.
Finally, on the show, an unsuccessful judicial review of a Human Rights Tribunal decision. The case involved an academic advisor who was fired from his job at UBC because he was using gay dating apps to meet people, including students, at the university. UBC took the position that this was a conflict of interest. The academic advisor argued that this was discrimination based on sexual orientation.
The judge hearing the case found that while the evidence in the case could have supported inferences of discrimination, that this was not sufficient to overturn the decision of the Human Rights Tribunal. To reverse this kind of decision the judge would need to be satisfied that it was patently unreasonable.
Follow this link for a transcript of the show and links to the cases discussed.