Yen Estate v. Yen-Zimmerman et al., (2013) 344 B.C.A.C. 64 (CA)
| Judge | Chiasson, Tysoe and Hinkson, JJ.A. |
| Court | Court of Appeal (British Columbia) |
| Case Date | September 06, 2013 |
| Jurisdiction | British Columbia |
| Citations | (2013), 344 B.C.A.C. 64 (CA);2013 BCCA 423 |
Yen Estate v. Yen-Zimmerman (2013), 344 B.C.A.C. 64 (CA);
587 W.A.C. 64
MLB headnote and full text
Temp. Cite: [2013] B.C.A.C. TBEd. OC.004
Barbara Hsia, Executrix of the Will of Chester Hugh Yen, also known as Yen Ching Hai, Deceased (respondent/plaintiff) v. Michael Chan and Christopher Chan (appellants/defendants) and Shirley Margaret Yen-Zimmerman, also known as Margaret Chow, Mary Yen Chang, and Stephen Yan, also known as Wen Yan (respondents/defendants)
(CA040424; 2013 BCCA 423)
Indexed As: Yen Estate v. Yen-Zimmerman et al.
British Columbia Court of Appeal
Chiasson, Tysoe and Hinkson, JJ.A.
October 2, 2013.
Summary:
Yen executed a will in August 1973, less than one year after the death of one of his daughters (Lily), who, at the time, had three young children. Yen's estate was left to his wife. If she predeceased him, the estate was left to his three remaining daughters or their survivors. No provision was made for Lily's children, two of whom (the appellants) survived. Yen's wife predeceased him. Yen died in February 2010. The appellants filed a caveat following his death, requiring proof of the will in solemn form. At issue was whether (1) the formalities of execution of the will had been proven, (2) Yen knew and approved of the contents of the will and (3) Yen had testamentary capacity when he signed the will.
The British Columbia Supreme Court, in a decision reported at [2012] B.C.T.C. Uned. 1620, found against the appellants on all three issues, finding that the will had been proven in solemn form. The appellants appealed regarding the first and second issues only. They did not appeal from the finding of testamentary capacity.
The British Columbia Court of Appeal dismissed the appeal.
Wills - Topic 1504
Preparation and execution - General - Requirement of knowledge of contents - See paragraphs 27 to 32.
Wills - Topic 1884
Preparation and execution - Evidence and proof - Presumption of due execution - See paragraphs 10 to 26.
Cases Noticed:
Maliwat v. Gagné, [2009] B.C.T.C. Uned. 1447; 2009 BCSC 1447, affd. [2010] B.C.A.C. Uned. 63; 2010 BCCA 323, refd to. [para. 10].
Laxer Estate, Re, [1963] 1 O.R. 343; 37 D.L.R.(2d) 192 (C.A.), refd to. [para. 12].
Guardhouse v. Blackburn (1866), L.R. 1 P. & D. 109 (Prob. Ct.), refd to. [para. 12].
Harris v. Knight (1890), 15 P.D. 170 (C.A.), refd to. [para. 14].
Dalziel v. Bradford (1985), 62 B.C.L.R. 215; 18 E.T.R. 261 (S.C.), refd to. [para. 15].
Beniston Estate v. Shepherd, [1996] B.C.T.C. Uned. I40; 16 E.T.R.(2d) 192 (S.C.), refd to. [para. 15].
Beaudoin Estate et al. v. Taylor et al. (1999), 8 B.C.T.C. 302; 27 E.T.R.(2d) 208 (S.C.), refd to. [para. 15].
Bolton v. Tartaglia et al., [2000] B.C.T.C. 90; 2000 BCSC 576, refd to. [para. 20].
Ellis et al. v. Turner et al. (1997), 100 B.C.A.C. 244; 163 W.A.C. 244; 43 B.C.L.R.(3d) 283 (C.A.), refd to. [para. 20].
Vardy Estate, Re (2005), 249 Nfld. & P.E.I.R. 112; 743 A.P.R. 112; 2005 NLTD 111, refd to. [para. 23].
Hay Estate, Re, [1995] 2 S.C.R. 876; 183 N.R. 1; 82 O.A.C. 161; 125 D.L.R.(4th) 431, refd to. [para. 24].
Vout v. Hay - see Hay Estate, Re.
Musgrove Estate; Davis v. Mayhew, [1927] P. 264 (C.A.), refd to. [para. 28].
Barry v. Boutlin (1838), 12 E.R. 1089; 2 Moo. P.C. 480, refd to. [para. 29].
Maddess v. Racz et al., [2009] B.C.A.C. Uned. 127; 2009 BCCA 539, refd to. [para. 29].
Maddess v. Gidney Estate - see Maddess v. Racz et al.
Statutes Noticed:
Wills Act, R.S.B.C. 1996, c. 489, sect. 4 [para. 11].
Counsel:
R.A. Kasting, for the appellants;
H.S. McLellan, for the respondent, Barbara Hsia, executrix of the will of Chester Hugh Yen, also known as Yen Ching Hai, deceased.
This appeal was heard at Vancouver, B.C., on September 6, 2013, by Chiasson, Tysoe and Hinkson, JJ.A., of the British Columbia Court of Appeal. On October 2, 2013, Tysoe, J.A., delivered the following reasons for judgment for the court.
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