The Significance Of Testamentary Documents

• Published date: 18 March 2021
• Subject Matter: Litigation, Mediation & Arbitration, Family and Matrimonial, Trials & Appeals & Compensation, Wills/ Intestacy/ Estate Planning
• Law Firm: Clark Wilson LLP
• Author: Ms Emily Clough

A recent decision from the BC Supreme Court highlights the special nature of testamentary documents, and the consequences that may result where an executor fails to comply with their obligations.

In Sarzynick v. Skwarchuk, 2021 BCSC 443, Justice Morellato considered a case involving a dispute between two siblings over the estate of their mother, Mary. Mary was survived by her two children, Leonard and Caroline, who were the only beneficiaries under the will. Mary appointed Leonard as her executor, and named Caroline as her alternate executor. Prior to Mary's death, Leonard had also been her attorney under a power of attorney document.

After Mary died, Caroline argued that Leonard had breached his obligations to Mary as her attorney, and to the Estate as Executor, and has misappropriated his mother's assets for his own use. Leonard denied Caroline's allegations, asserting that he had a loving and caring relationship with both his parents.

Failure to Disclose

The judge's resolution of the dispute was complicated by Leonard's conduct. The judge described Leonard's lack of disclosure as 'egregious', noting that he had failed to disclose numerous key documents, such as his parents' banking documents.

Here, however, Leonard's lack of disclosure started even before the litigation began. Despite repeated request, and Caroline's status as an equal beneficiary, Leonard refused to provide Caroline with a copy of Mary's will. His refusal persisted even after a warrant was issued for his arrest:

[22] Prior to the onset of this litigation, Caroline repeatedly asked Leonard for their mother's Will and he refused to produce it, despite the fact that Caroline was a named beneficiary and he was acting as an executor. Caroline was required to requisition a Subpoena, for the production and deposit of the Will at the Supreme Court Registry. Leonard evaded service of the Subpoena, requiring an order for substitute service. Still, Leonard did not disclose the Will, and it was necessary to issue a Warrant After Subpoena which resulted in the defendant actually being arrested and jailed for failing to disclose the Will. Even following his arrest, it took several weeks for Leonard to produce his mother's Will.

The judge undertook as thorough an analysis as she could on the evidence before her, noting that it was difficult to ascertain Leonard's misappropriations with certainty given the significant non-disclosure issues. Ultimately, she concluded that Leonard was required to...