TAKE FIVEonpointlaw.com/wp-content/uploads/2020/07/BC-Take-Five...OnPoint Legal Research Take...

July 2020BRITISH COLUMBIA EDITION

INSIDE THIS ISSUE:

Labour Arbitrations; Jurisdiction of a Labour Arbitrator; Police Act

Setting Aside Spousal Support Agreements; The Test from Miglin v. Miglin

Family Law Act; “Interim Orders” vs “Final Orders” in the Family Law Act; Appeals from Provincial Court Family Orders ~ With Counsel Comments

The Tort of Conspiracy; Place of the Tort; Territorial Competence; Real and Substantial Connection ~ With Counsel Comments

Secret Trusts; Intestate Heirs ~ With Counsel Comments

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On July 5, 2015, the petitioner - a conservation officer employed with the Ministry of Environment with an appointment as a Special Provincial

Constable under the Police Act- attended at a property in response to a complaint about a female bear and her two cubs who had found their way into a freezer. The petitioner’s supervisor ordered him to euthanize all three bears, but the petitioner refused: his consistent position afterwards was that, as a conservation officer, he had an independent obligation to assess the situation and determine how to proceed in light of Ministry policy. In his view, the order to euthanize the cubs was an unlawful order to discharge his firearm. He therefore euthanized the adult bear, but transported the cubs to a veterinarian. The vet concluded the cubs were eligible for placement in a wildlife recovery centre, where they were successfully placed and eventually released back into the wild.

The petitioner’s supervisor complained about this failure to obey an order and the next day the Ministry suspended the petitioner without pay (a couple of days later that was modified to a suspension with pay). The petitioner’s union grieved the suspension, but before that could be resolved, the Ministry terminated his employment as a conservation officer, saying that he was unsuitable for the position. He was, however, offered another position in another government ministry. The union grieved that dismissal and transfer as well.

The grievances proceeded to arbitration. The arbitrator made a preliminary ruling (called the “Scope Ruling” in the chamber decisions: this allowed the employer to lead evidence about other alleged instances of non-compliance with instructions, even though they were not relied upon by the employer at the time of the suspension or transfer). However, the union and employer settled the matter before the merits could be determined by the arbitrator. The petitioner signed

Casavant v. British Columbia (Labour Relations Board), 2020 BCCA 159Areas of Law: Labour Arbitrations; Jurisdiction of a Labour Arbitrator; Police Act

~A labour board does not have jurisdiction to deal with a police disciplinary matter governed by a distinct process~

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https://www.canlii.org/en/bc/bcca/doc/2020/2020bcca159/2020bcca159.pdf

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Casavant v. British Columbia (Labour Relations Board), (cont.)

the agreement, but after obtaining two internal reports from the employer under the Freedom of Information and Protection of Privacy Act, sought to set it aside for having been “obtained on an improper basis.” The first report was from a psychologist who went beyond a general workplace environment assessment and instead opined on the petitioner’s suitability for the position (the psychologist who prepared the report was later sanctioned the College of Psychologists because of the report’s unreliability). The second was from an Employee Relations Specialist, who noted that “operational policy and procedures were not addressed” in the report.

The arbitrator found that this situation did not qualify as involving the sort of exceptional circumstances that would permit the petitioner to pursue the grievances independently from the union (this is called the “Standing Order” in the chambers reasons).

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The main issue on appeal was the jurisdictional issue. The Court of Appeal reviewed the record before the Board and found that, although the

petitioner (who was self represented at the Court of Appeal, as he had been before the Board) had not used the specific language of a jurisdictional challenge, he had raised whether the process was lawful under the Police Act and Special Provincial Constable Complaint Procedure Regulation. In the administrative processes, the petitioner had repeatedly referred to the Police Act and alleged that the Ministry was following the wrong process. Viewed as a whole, the petitioner’s position before the Board that he had been subjected to an “unfair and wrong process” was, in substance, a jurisdictional complaint.

APPELLATE DECISION

The petitioner applied to the Labour Relations Board to have the Scope and Standing Orders set aside. The Board upheld both decisions, in particular the union’s exclusive control over the grievance. The petitioner sought a reconsideration of that decision, but that was dismissed as well. The petitioner then sought judicial review of the reconsideration decision.

On judicial review, the petitioner relied on the same arguments he had tried to advance in the arbitration – including that the union had failed to fairly represent him, and the settlement agreement had been signed under duress – but also raised a jurisdictional issue. His appointment as a Special Provincial Constable, he said, required the disciplinary hearings be conducted under the Police Act, and not under the collective agreement.

The chambers judge applied the “patent unreasonableness” standard of review, and found it had not been met. The chambers judge declined to consider the jurisdictional argument, finding that it was being raised for the first time and a judge on judicial review should consider only the record before the administrative decision maker. The petition for judicial review was therefore dismissed.

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The Court of Appeal therefore considered the question and found that there is a principle that “a labour board does not have jurisdiction to deal with a police disciplinary matter governed by a distinct process.” The employer tried to characterize the question broadly as whether the petitioner was “suitable” for the position, but the “disciplinary nature of the dismissal…is self-evident.” The inevitable result of the jurisdiction question was therefore that the arbitrator and the Board had no jurisdiction to deal with the matter. Remitting the question back to the Board would therefore serve no purpose and the Court declared the arbitrator and Board lacked jurisdiction and the proceedings before them were a nullity.

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This was a family matter involving divorced spouses as well as the

family business and its subsidiary. The individual parties had entered into a separation agreement dated October 21, 2015, that had settled custody, access, and support for the children, as well as the division of family property and spousal support. The separation agreement had been reached following mediation in which both parties were represented. However, in March and September of 2018, the claimant brought two applications seeking to revisit the child and spousal support agreements.

The chambers judge applied the Supreme Court of Canada decision of Miglin v. Miglin, 2003 SCC 24, to determine whether the agreement on spousal support should be set aside and revisted by the court. The claimant argued the spousal support agreement should be set aside as,

Nicholl v. Nicholl, 2020 BCCA 173Areas of Law: Setting Aside Spousal Support Agreements; The Test from Miglin v. Miglin

~The test for revisiting an agreement on spousal support is governed by the Supreme Court of Canada decision of Miglin v. Miglin which considers the circumstances of the agreement both at the time it was made and at the time it is challenged~


though she was represented by counsel, she was nonetheless vulnerable and had continued to rely on the claimant’s perceived superior financial knowledge. She also argued there had been a change in circumstances as she had not anticipated that the separation agreement would result in as drastic a difference in incomes as had resulted, and the federal government had changed tax policies in a way that limited her ability to draw income from the family business. Finally, the terms of the agreement were not consistent with the Family Law Act and Divorce Act.

The chambers judge rejected all three arguments and upheld the separation agreement. On the issue of child support, the chambers judge found that the agreement met the children’s needs and would continue to do so in the future, so the agreement should not be set aside.



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Nicholl v. Nicholl, (cont.)

APPELLATE DECISION

The claimant appealed, which led the Court of Appeal to conduct a thorough review of the law on setting aside an agreement on spousal support as set out

in Miglin v. Miglin. Before that, though, the Court found the support issues here were governed by the Divorce Act, and not the Family Law Act, and urged counsel to correctly identify the applicable legislation so that the analysis could proceed appropriately.

The Court summarized Miglin as establishing a two-stage test for setting aside a spousal support agreement. The first stage of the test considers the agreement at the time it was made and has two parts. The first part of the first stage is to consider the circumstances in which the agreement was negotiated and executed, paying attention to any circumstances of oppression, pressure, or other vulnerabilities. At the second part of the first stage, the courts should consider

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the substance of the agreement, and measure it against the factors and objectives in the Divorce Act. Where the agreement departs significantly from the objectives of the Divorce Act the courts may intervene.

If the agreement is not impugned based on the circumstances of its creation, and it is in substantial compliance with the general objectives of the Divorce Act, the agreement should be given great weight. It may still, however, be impugned under the second stage of the Miglin test. While the first stage considers the agreement at the time it was made, the second stage focuses on the circumstances at the time of the application to challenge the agreement. At this stage, the courts are to examine whether the agreement has operated in a manner consistent with the parties’ original intentions, and whether it has operated in a way that continues to comply with the Divorce Act. To succeed at this stage, the person seeking to vary the agreement must show a change in circumstances that is significant, but does not need to be “radically unforeseen”. The focus, though, is not the change itself, but on whether the agreement continues to be consistent with the parties’ intentions and the objectives of the Divorce Act. A convenient summary of the Miglin test is set out at para. 40 of the Court of Appeal decision.

Applying this test to the facts, the Court concluded that the chambers judge had erred in his application of the Miglin test. The chambers judge had considered the first part of stage one (whether there had been vulnerability at the time the agreement was created), but failed to consider the second part of stage one (whether, at the time it was created, the agreement was in substantial compliance with the Divorce Act). The chambers judge then considered whether there had been a material change in circumstances, but never performed the necessary analysis as to whether the agreement was in substantial compliance with the objectives of the Divorce Act at the time it was created, as required by the second part of the first stage (which does not require a change in circumstances to be triggered).



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The Court noted that it was not necessarily a reviewable error for a judge to simply not refer to some part of a legal test, but here, reading the chambers decision as a whole, the chambers judge had failed to correctly apply Miglin. The Court of Appeal therefore allowed the appeal and sent the spousal support question back to the Supreme Court for reconsideration. The order on child support, however, was upheld, as it was entitled to deference.

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Routkovskaia v. Gibson, 2020 BCCA 189Areas of Law: Family Law Act; “Interim Orders” vs “Final Orders” in the Family Law Act; Appeals from Provincial Court Family Orders

~The inclusion of a review process in a family court order does not necessarily mean the order is not a “final order” for purposes of determining whether an appeal lies from the order~

This case considers the meaning of an “interim order” versus a “final

order” under the Family Law Act.

The parties had a child in 2008 and have been involved in disputes regarding custody and access to the child since 2010. After initial orders were made in 2010 and 2012, a trial was held in the Provincial Court over 14 days across 2017 and 2018 that resulted in an order made in September 2018. The 2018 order established joint guardianship, primary residence, and a number of other issues. The September 2018 order included a term that “[a]ny


changes that need to be made shall be reviewed during April of 2019”.

One of the parties appealed to the Supreme Court, but that was not heard until after the review contemplated in the September 2018 order. At the appeal, the judge of the Supreme Court concluded that the September 2018 order was an interim order, not a final order, and that no appeal lay from it. The Supreme Court judge relied largely on the provision for the April review, which was found to be inconsistent with the order being a “final order”.


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Routkovskaia v. Gibson, (cont.)

APPELLATE DECISION

The appeal proceeded to the Court of Appeal, which began by noting that the Family Law Act does not define the difference between interim and final

orders, but does provide for interim orders. Section 216 of the Family Law Act sets out the jurisdiction for the courts to make “interim orders”, which generally “contemplates that interim orders are temporary pending trial, intended to preserve the status quo or put in place arrangements that bridge the gap to trial.” The Court therefore accepted the proposition that, generally speaking, interim orders “are time limited and interlocutory in nature” and intended to “bridge the parties to trial”. The trial then results in a “final order” that provides a definitive result to the parties in the adjudication of their rights.

The Court of Appeal noted that, in a colloquial sense, family law orders may never be “final”. The law itself allows for orders to be revisited, and an order itself may contemplate further review. Such orders may still be “final orders” for purposes of appeals.

Applying these principles to the facts, the Court found that, in all the circumstances (which included a 14-day trial and orders as to residence and guardianship), the September 2018 order was a “final order” which was appealable. The purpose of the built-in review was to evaluate the details of the fairly complicated access arrangements contemplated by the order, and did not transform what would otherwise objectively be final orders into interim orders.

In the result, the September 2018 order was held to be a “final order” from which an appeal lay. The matter was remitted to the Supreme Court to hear that appeal.



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COUNSEL COMMENTS

Counsel Comments provided by

Peter Mennie, Counsel for the Appellant

“No appeal lies from an interim provincial court order under

s. 233 of the FLA. The provincial court judge stated explicitly that he made a temporary order and the appeal to the BCSC was dealt with on that basis. The BCCA only asked for submissions on the nature of the order under appeal, and ultimately held it was a final order despite the provincial court judge’s statements. In a similar case called Tarbujaru v. Tarbujaru, 2016 BCCA 214, the

Routkovskaia v. Gibson, 2020 BCCA 189

BCCA went on to deal with the merits underlying the appeal. The Court took a

different approach in this case and remitted the case to the BCSC. I think the takeaway is that flexibility is inherent in many family law orders and this does not make them interim. Interestingly, you can appeal an interim provincial court order through a judicial review (see Carpentier v. British Columbia (Director of Family

Maintenance Enforcement), 2017 BCSC 250), but that route was not taken by the appellant.

Peter Mennie

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Ewert v. Höegh Autoliners AS, 2020 BCCA 181Areas of Law: The Tort of Conspiracy; Place of the Tort; Territorial Competence; Real and Substantial Connection

~The place of the tort of conspiracy is a place where harm was suffered because of the conspiracy, and the British Columbia courts have jurisdiction over a conspirator who, through its participation in the conspiracy, does harm in British Columbia, even if that party has no business presence here~

Vehicles that are transported to British Columbia for sale are often transported on “RoRo” vessels – roll-on/roll-off. This is (unsurprisingly) a

global industry. Two companies that carry out this business are Höegh Autoliners AS (based in Norway) and its wholly owned subsidiary, Höegh Autoliners, Inc. (incorporated in New York but based in Florida).

There is a proposed class action in British Columbia that alleges that these companies, along with numerous others, participated in a global price-fixing conspiracy. It has not yet been certified. The essential allegation is that the defendants conspired to limit competition and inflate prices by dividing up global markets amongst themselves, leading to higher prices for everyone who has purchased a vehicle in British Columbia.

The two Höegh defendants brought an application under the Court Jurisdiction and Proceedings Transfer Act and Supreme Court Civil Rule 21-8 to challenge the territorial competence of the British Columbia courts. The essence of their argument was that they have no business presence in British Columbia, and do not ship vehicles that have been sold in British Columbia.

The chambers judge began by considering s. 3 of the CJPTA, which establishes the circumstances in which the British Columbia courts have territorial competence. One of these is essentially a codification of the common law, and provides that the BC courts have territorial competence when “there is a real and substantial connection between British Columbia and the facts on which the proceeding against that person is based.” That was the provision relied upon





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Ewert v. Höegh Autoliners AS, (cont.)

by the representative plaintiff to establish territorial competence over these two defendants.

Section 10 of the CJPTA then sets out a non-exhaustive list of factors that establish a real and substantial connection. Among these is if the claim “concerns a tort committed in British Columbia”. Given the allegation of conspiracy, then, the question is where the place of the tort of conspiracy is. The chambers judge found that the case law showed that, in a conspiracy claim, a real and substantial connection is established when harm is suffered in a given jurisdiction.

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The Court of Appeal set out to summarize the existing jurisprudence and provide a simple framework for analyzing jurisdictional challenges to

territorial competence. First, the plaintiff must show that one of the enumerated connecting factors set out in s. 10 of the CJPTA exists. In this analysis, the “jurisdictional facts” pleaded in the plaintiff’s claim are taken to be true. The defendant is entitled to lead evidence to challenge the pleaded jurisdictional facts, and if that happens, the plaintiff is only required to show that there is a good arguable case that the pleaded jurisdictional facts can be proven. This is a low burden, as the chambers judge considering the issue must not prematurely decide whether the pleaded facts are true or not. This first step, then, can be satisfied either on the undisputed pleadings, or on disputed pleadings if the plaintiff makes out a good arguable case.

If this first step of the test is satisfied, then there is a mandatory presumption that a real and substantial connection exists (and the court therefore has territorial competence). This is a strong presumption that will usually be determinative, but the defendant can seek to rebut this presumption by establishing “facts which demonstrate that the presumptive connecting factor

APPELLATE DECISION

An agreement to divide up markets may result in all of the conspirators doing harm in all of the affected markets, even if a given conspirator does not directly do business in a given jurisdiction. A party to such a conspiracy cannot evade liability in a market just because that was not one of the markets given to it as part of the conspiracy.

The correct focus in a claim such as this, then, was not the defendant’s connection to the jurisdiction, but the “the case’s connection to British Columbia and in turn, the defendant’s connection to the case.” A conspiracy that does harm in British Columbia has a real and substantial connection to British Columbia. In the result, the jurisdictional challenge was dismissed.



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does not point to any real relationship between the subject matter of the litigation and the forum or points only to a weak relationship between them”.

The Court then turned to the appeal at hand, and readily found that the chambers judge had applied the correct test. The Court then considered several leading cases on the tort of conspiracy and concluded that, “for the purpose of assessing territorial competence…the tort of conspiracy is committed by a defendant in British Columbia when, on unchallenged pleadings or a good arguable case, that defendant participates in a conspiracy and the conspiracy causes harm in British Columbia.” In short, the place of the tort of conspiracy is a place where the conspiracy has caused harm. That was readily made out on the pleadings. There was therefore a strong presumption that a real and substantial connection existed, which had not been rebutted by the defendants: their argument that they did not do business in British Columbia was not a reason to depart from the mandatory presumption.

In the result, the appeal was dismissed and the territorial jurisdiction of the BC courts against these two defendants was upheld.

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COUNSEL COMMENTS


Reidar Mogerman, Q.C., Rebecca Coad, and David Jones,

Counsel for the Respondent Darren Ewert

“The crux of the parties’ dispute was whether the foreign defendants/

appellants Höegh Autoliners AS and Höegh Autoliners, Inc. (“Höegh”) could be sued in B.C., despite Höegh’s assertion that it did not carry on business in B.C. Put another way, the parties disagreed on the “jurisdictional facts” required to establish jurisdiction in B.C. in conspiracy cases.

The Plaintiff alleged Höegh participated in a global conspiracy to fix prices, which included allocating the global market between competitors, and resulted in damages in B.C. The chambers judge held the pleadings of conspiracy were

Ewert v. Höegh Autoliners AS, 2020 BCCA 181

sufficient to establish jurisdiction on the basis that the claims concern a tort committed in B.C. Whether a defendant carries on business in B.C. is a separate and distinct basis for jurisdiction (see s. 10(g) and (h) of the Court Jurisdiction and Proceedings Transfer Act). Höegh appealed.

While the parties disagreed on whether Höegh did in fact conduct business in B.C., both the chambers judge and the Court of Appeal held that Höegh’s evidence on this point was irrelevant to the question of jurisdiction in this case. Consistent with the decisions in Fairhurst v. De Beers Canada Inc., 2012 BCCA 257, and British Columbia v. Imperial

Rebecca Coad David JonesReidar Mogerman, Q.C.


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COUNSEL COMMENTS


Tobacco Canada Ltd., 2006 BCCA 398, the Court confirmed the tort of conspiracy is committed where damage is suffered.

Consistent with other cases, both the chambers Judge and the Court of Appeal accepted the jurisdictional facts as pleaded were true for the purpose of its jurisdictional analysis.

It was open to Höegh to contest the Plaintiff’s jurisdictional facts with evidence. Absent such evidence challenging the Plaintiff’s jurisdictional facts, both the Chambers Judge and the Court of Appeal held the pleadings were sufficient to establish jurisdiction.”

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Bergler v. Odenthal, 2020 BCCA 175Areas of Law: Secret Trusts; Intestate Heirs

~A secret trust may be established where, in addition to the usual requirement for the three certainties for creating a trust, two elements are made out on the usual civil standard of proof: a communication by the deceased to their devisee, legatee, or intestate heir, and acceptance by that person of the request that they will hold the property in trust~

This case deals with a concept that is now rarely encountered, the

“secret trust”.

In 2013 the plaintiff’s aunt was diagnosed with pancreatic cancer and passed away in a hospital two months later. The deceased had not made a will. What was at issue in this case were the nature of statements and conversations between the deceased, her common law spouse, the niece, and other family members. The niece and her sister testified that the day before her aunt died, they had met with the spouse at the hospital and he had told them that the deceased had told him that she wanted the niece to receive her entire estate, to support her return to school. The niece’s mother (and deceased’s sister) also testified that she had had similar discussions with the deceased in front of the spouse and another witness. The nature of these discussions was


that the deceased wanted her estate to return to her family should the spouse begin a new relationship (and, in fact, the spouse had since remarried).

These statements were admitted under the principled exception to the hearsay rule, satisfying both the necessity and reliability requirements.

The spouse did not dispute that the deceased had wanted her estate to go to her family, but said that they were only to receive the estate upon his death. To achieve that, he had created a will that would leave about the same value he had received from the deceased’s estate to the niece. However, in his testimony he had also agreed that the deceased had wanted the niece to receive the estate to support her education, which would suggest she was intended to receive the estate long before the spouse’s death.




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Bergler v. Odenthal, (cont.)

The trial judge stated the law to be that “[i]n circumstances where a person dies intestate relying on the fact that her intestate heir has accepted the trust, the law will compel the trustee to carry out the trust”. Reviewing the evidence, the judge found on a balance of probabilities that the deceased had intended for her estate to go to the niece, and the spouse had accepted that obligation. He therefore held the estate for the benefit of the niece.

APPELLATE DECISION

The Court of Appeal started by observing that a “secret trust” is established when (in addition to the usual requirements for a trust: the three certainties

of intention, objects, and subject-matter) two elements are made out: a communication by the deceased to their devisee, legatee, or intestate heir, and acceptance by that person of the request that they will hold the property in trust. The principal ground of appeal was the spouse’s position that the trial judge had erred by failing to sufficiently consider whether he had accepted the trust. Further, the appellant said the evidence and testimony at trial was not capable of supporting the inference that he had accepted it.

The Court agreed that it is a condition for the finding of a secret trust that the trustee accept the obligation. However, that is a matter of “ordinary proof”, and is subject to the usual civil standard of proof of the balance of probabilities. Further, there is authority for the proposition that acceptance can be made out by silence; Professor Waters, a leading authority on trusts, has said: “any person having received a request of this nature would be bound to say something if he rejected the idea that he himself should not enjoy the property beneficially.” The finding that the spouse had accepted the terms of the trust was a factual one that the Court of Appeal could only overturn if clearly and palpably wrong, which was not made out here. The Court therefore found that the spouse was required to transfer the estate to the niece either upon his death or when he began a new relationship, whichever occurred first; as he had since remarried, he was obliged to distribute the assets to the niece. The appeal was therefore dismissed.

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COUNSEL COMMENTS


James W. Zaitsoff, Counsel for the Respondent

“When a deceased person leaves a will, a disappointed

beneficiary may have a variety of available claims, including challenges to the validity of the will and, of course, wills variation claims. When a deceased person dies intestate, it may seem at first blush that a disappointed beneficiary has no recourse, as the legislation sets out a non-discretionary scheme as to how the estate is to be distributed.

However, in Bergler v. Odenthal 2020 BCCA 175, there was a remedy available: the secret trust.

As the Court of Appeal notes, secret trusts are “rarely encountered today” and this will likely continue to be the case. There is considerable risk in relying upon a secret trust to carry out your testamentary intentions. The person who would otherwise receive your assets (whether by will or intestacy) will directly benefit from denying the

Bergler v. Odenthal, 2020 BCCA 175

existence of a trust after your death Or, as happened in Bergler, the trustee make

seek to add a “clarification” to the terms of the trust, which would postpone his obligation to distribute the assets until his own death.

In Bergler, the appellant (the spouse of the deceased) argued that the trial judge failed to analyze the question of whether he

accepted a trust obligation (a necessary requirement to establish a secret trust). The appellant argued that there was considerable evidence of the deceased’s communication of her wishes, but no evidence that he accepted and agreed to abide by those wishes.

Fortunately, the plaintiff/respondent had good evidence. There was evidence elicited from the appellant in examination for discovery and cross examination at trial that he agreed to do what the deceased asked of him. The Court of Appeal agreed that the finding of acceptance was well supported by this

James W. Zaitsoff



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COUNSEL COMMENTS

Bergler v. Odenthal, (cont.)

evidence. The deceased also discussed her wishes/instructions with the appellant in front of others, and the appellant confirmed that he received instructions from the deceased to the plaintiff/respondent and her sister immediately prior to the deceased’s death.

When an alleged trustee denies the existence of a trust or seeks to add terms to their own benefit, a plaintiff seeking to prove the trust will likely need evidence like this: evidence from uninterested parties corroborating the creation of the trust, admissions by the trustee as to the existence of the trust, or ideally both. While the law today does not require corroboration of the acceptance of the obligation of secret trust, it would be very difficult to prove a secret trust based only on the word of the person who would benefit under that trust.

The court will also look at what makes sense in the circumstances. In Bergler, the Court of Appeal noted the trial judge’s observation that the stated purpose of the trust – to put her niece on better financial footing and allow her to continue her education – was inconsistent with the appellant’s position that he did not have to deliver the assets to the niece until his death.

The Court of Appeal referred with approval to Professor Waters’ observation that once the deceased’s communication of the trust obligation is established, acceptance can be spelled out of the silence of the trustee: “Any person having received a request of this nature would be bound to say something if he rejected the idea that he himself should not enjoy the property”. If the appellant intended to retain the assets contrary to her wishes, then he was required to tell her that. This would have allowed the deceased to take steps to prepare a will which set out the testamentary wishes that the appellant refused to follow.

Finally, the Court of Appeal confirmed that acceptance by one joint owner of an obligation of secret trust severs a joint tenancy. The idea that the legal owner may not be the beneficial owner is nothing new. However, in this case the Court of Appeal confirmed that if one joint owner instructs the second joint owner that he is to hold her interest in trust (and the second owner agrees), then the joint tenancy is severed, and the second owner now holds the first owner’s interest in trust.”

July 2020July 2020

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