Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
Wills, Words, And What Counts
A signed page beside a will. A daughter who gave up her life to care for her parents. A court is asked to decide whether a single sheet of paper can rewrite an estate. We dig into a recent BC Supreme Court ruling to unpack how WESA’s formal requirements and the curative power of section 58 actually work when intention, capacity, language, and timing collide. If you’ve ever wondered whether “wishes” are enough, this story shows why two witnesses, translation, and dated execution details matter more than heartfelt words.
Then we pivot from probate to plumbing with a small claims case that starts with a jailhouse phone call and ends with a $34,000 invoice. The homeowner’s mom acted as go‑between while crews replaced pumps, chased leaks, and tackled a failing septic system. With spotty records and no signed work authorizations, the judge had to reconstruct a contract from dispatcher notes, GPS logs, and receipts. The result lies between free fix and blank cheque: agency is recognized, unjust enrichment is avoided, and the final award is trimmed to what’s reasonably proven.
Across both cases, one theme holds: intent without process is a gamble. For families, that means executing wills to WESA standards, confirming capacity, and ensuring translation for non‑fluent testators. For trades and contractors, that means written scope, clear rates, change orders, and contemporaneous records that survive scrutiny. These aren’t legal niceties; they are the difference between peace and protracted fights—between getting paid and getting pared down.
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Follow this link for a transcript of the show and links to the cases discussed.
Well the the I'll give you this is a recent case that tends to decide whether a document found with a will um uh either could be cured to become a will or a codicill, like an amendment to a will. Uh and the background of the case, it involved a uh couple uh who lived a very long time. Uh eventually the husband passed away uh, I think when he was ninety years of age, and the uh uh wife passed away when she was ninety-three, so lived a long life. Uh they and their family were originally from uh Myanmar, Burma at the time they moved to Canada. Um and when they after moving here, they had executed a will, and everyone agreed that there was a will they made in 1991, and that will essentially divided uh everything equally amongst their seven children. Now, so far so good. Uh but as many of these things do, things got a bit complicated because uh found along with the will after the mother had passed away, um there was a one-page signed and typewritten document uh which had some different provisions in it. And that one page document, it was written in the uh voice of the deceased husband, uh, and it began with this letter is the wishes of my wife and me when we are mentally incapable misspelled of making decisions, misspelled. Um and that document um had a date on it of in June of 2005, uh, and it had type names for each of the two uh parents, we call them that, uh, and signatures uh above each of those things. Now you might think, well, what's the problem then? Um that that single page, by the way, essentially what it set out was that one of the children, who was a registered nurse, had lived with the uh couple, uh remained single, lived with them and cared for them in their home. Um and the single page letter, if we call it that, uh indicated that they thought it was fair. We strongly believe it's only fair that that daughter, because they she sacrificed her life living with them and taking care of them, should receive fifty percent of the value of the family home, with the balance being shared equally amongst the other six children. So that on the face of it is what this document called for. Now, the we have it in British Columbia uh an act called, some people refer to as Wesis, the Wills, Estates, and Succession Act. And that uh piece of legislation has in it, this is section 37, uh, a number of requirements for there to be a valid will. Uh and one of the uh the requirements there include uh that the will be signed uh in the presence of two or more witnesses who themselves must sign it. Uh and so the document that was found along with what everyone agreed was a valid will from night from the earlier actually valid will, the 1991 will, this letter, which was signed saying the uh 50% should go to the daughter who lived and took care of the couple, um, didn't have any witness signatures on it. And so it doesn't didn't comply with section 37 of WESA. Now, that's not the complete end of the matter, uh, because there are what are referred to as curative provisions found in 58 of that same piece of legislation. And those provisions allow a court uh to what's called cure a deficiency. Um so you know, let's say you had something looked like a will, but it only had one witness signing it. That might be a clear example. If there is otherwise no doubt about the authenticity and clarity of what was in there, just some they only had one and not two witnesses, for example, it would be very likely that a court would say, okay, well, we're gonna cure that defect uh to uh make that will valid. It's not requirement, but you know, it that court might well might well fix that sort of thing. But once you get outside of what uh the sort of the uh what is on the face of it required to make a valid will, uh a court has to consider a whole bunch of things, and the person who is uh arguing that this should be taken uh as a valid will, it should be cured, right, um as a will or as an amendment to uh a will, uh codicill. Uh that person then bears the burden of showing a number of things, including uh a burden to show that the document represented um the fixed and final intentions at the time it was made, along with other things, like they have to prove that it's authentic and the person had capacity, some of which might be presumed if the will is validly executed. And so here, the daughter, the registered nurse who lived with the couple and took care of them, had the burden of showing that. And she had some challenges, as is not surprising when you're trying to deal with some document that's, you know, twenty years old. So, for example, the problems included, given that there were no witnesses to this thing, you know, are those signatures valid? Did the mother sign that uh document, for example? And in that regard, um the both the other siblings and the daughter registered nurse wound up hiring handwriting experts to come in and try to offer expert opinions about whether uh the signature of the mother, and that's really the one that counted, which is interesting here. That became another problem, is that letter, well, signed purportedly by both uh the uh deceased uh husband and uh wife, um the husband passed away first. And so what mattered was the decision or the uh intentions of the uh mother. Um and the handwriting experts offered opinions based on comparisons of other signatures at different times, that the signature of the mother, which they both thought was likely genuine, uh would have been put on that document some years after the date on it, uh, based on changes to her signature. Um and no one could say when exactly that happened. Another challenge is that the mother, uh, according to the judgment, only had a basic understanding of English and would not have been able to comprehend what all was in that letter unless it was translated for her. And there was no evidence about, okay, well, did somebody translate that for her? Did she intend, did she understand what was in that when she signed it? Uh and then further complicating factors included the fact that the mother, um, she had uh Alzheimer's, which progressed eventually to the point that is clear by later than that, um, that she would not have had the capacity to um uh you know make a will or or make a change to it. Uh and so you're then left with questions like, okay, well, if she signed this later, when did she sign it? What was her capacity at the time? Did somebody explain this to her? Did she understand what was going on in that by signing it? All of which were left as sort of hanging unknown questions. And so the daughter of the nurse, you know, she had recollections of discussions with her father uh at various times about uh wanting to leave her the house, but that doesn't necessarily mean what the the that was the intention of the mother. There were no expressed conversations with her, and so you're left with this sort of uh thing that according to the experts were signed after the date that was listed on it without explanation of what the circumstances were or was it translated for her, or did she understand it, or would she have had capacity? And when you once you get outside of the sort of the technical requirements, like the witnesses and so on, the person who's saying, yeah, that should be valid has the obligation to prove that. Um and here, ultimately, the daughter, the nurse, just couldn't. The judge concluded, look, I just can't be satisfied that that was the wife's intention, that she had understood it, that she had capacity when she did sign it. It's all a question mark, given the absence of any information about like when was this actually signed and how did that come about and and so on. The only thing directly linking her to it was this signature, which, you know, the experts did say that that was probably her signature, but it appeared to be a version of it from later in her life, um just wasn't enough. Uh and so all of this, I I think really for people uh who are trying to, you know, manage their affairs, and I should say ironically, at the end of the letter uh that was in in issue here, uh it ended with we also wish that all children will accept our decision and not fight amongst amongst them over the house and money. Right? Kind of a prophetic wish. But you know, nothing brings out the uh worst in people, I guess, than when there's a dispute over money and a will. Uh and so at the end of the day, that may well have been the intention. As the judge pointed out, there'd be valid reasons why you know what was expressed in that letter might have been the intention or might have been a wise idea, certainly within the realm of the reasonable. Hey, she lived with us all this time and took care of us and and so on, uh, you know, so that's certainly understandable, but but that's not enough. And so if you want to make sure that your uh you know wishes are actually enforceable and you in fact want to avoid what happened here, which was a trial litigating this sort of an issue that's going to be expensive and time consuming, nobody wants that. Just really make sure that you have proper compliance with the requirements to make a will or make a change to it. Um and you know, they're not that complicated, and sort of the uh the amount of money somebody might spend getting a lawyer to help them do that is going to save many times that down the road in terms of this kind of litigation and potentially coming to a result that you really didn't want. Um and so uh, you know, make sure that you get that legal advice if you want to make a change to a will, make sure you meet the requirements, make sure it's in writing, make sure they're witnesses. There are a bunch of requirements, and they're not too complicated, but if you don't color within the lines, you then wind up with having to make these kind of discretionary decisions years after the fact, trying to pick you know pick out what people might have wished for, and here it just didn't get across the line. Um, so those are important things to know in terms of what it takes to make a will or change a will. Um, and that even though there are provisions to allow in some cases those deficiencies to be cured, that can be very hard after the fact, and it didn't happen here. So save your whole family a lot of trouble. Uh, and make sure it's uh what you're doing is clear and with the benefit of legal advice so you don't wind up with your estate being spent litigating the uh issue uh in court. So that's the latest from the BC Supreme Court on the uh requirements to make her change uh available.
Adam Stirling:Michael Mulligan from Mulligan Defense Lawyers will continue right after that. Michael Mulligan from Mulligan Defense lawyers. While they were in jail, what happened?
Michael Mulligan:As you can probably tell from that headline, uh not good things. So the the the the background this case is a uh small claims claim uh brought by a plumbing company for a whole bunch of work they wound up doing on a rural property uh to do with its water supply and and ultimately its septic system. Um and the uh as that uh opener suggested, um, it started with a phone call from the property owner who was in jail uh asking uh that this uh plumbing company uh go and fix a pump uh which was used to pump water from a lake next to where this uh house was located into the home. This water supply was the lake. Uh and the uh the fellow in jail, the homeowner, um, got the referral to this uh plumbing company from his mom. Uh and so sure enough, the plumbing company turned up uh at the uh home to start doing the work, despite the fact that the fellow wasn't there being in prison at all. Um and they were working away, and the mother actually showed up on more than one occasion to speak to and deal with the plumbing company, I guess, giving their son's uh location uh and her referral to them. Um and uh the work that had to take place, well, kind of spiraled, I guess would be the way to describe it. Um the pump uh was replaced, and then there were various other things, a shower valve, and then the plumbing company had some records of uh problems with the septic system, uh sort of sewage bubbling up or something. Uh and eventually they had uh multiple employees there for multiple days fixing all of these plumbing and septic issues, uh uh ultimately resulting in two hundred and twenty-five hours of work uh along with a whole bunch of supplies of parts and this and that, and a total bill of thirty-four thousand dollars. Now, as you might expect, that didn't get paid promptly. The mother, interestingly, paid a small portion of it, right? But then said, Oh, this is my son's problem. And so the issue became, well, what what you know, what is the agreement here, right? And what is the role of the mother? Is the mother on the hook for it? She was telling them about some things there, is the son on the hook for it? He only spoke to them once. Who's responsible? And one of the other underlying problems, this I must say I smiled as I read it, the uh the person who came and testified at the small claims trial was the owner of the plumbing company. They didn't have all the various plumbers come as witnesses. Maybe that's not surprising. There were several of them, you have the whole team there, I guess. Um, and the owner of a plumbing company admitted this, that getting his trade employees to quote, write anything was like pulling teeth. And so what you had was the owner of the plumbing company um saying, Well, you've got these records, what was done, and the invoice prepared and kind of notes from the dispatcher and all of that. Uh, and then one of the problems that arises there is that generally in court, hearsay evidence is generally not admissible. Hearsay would be like something something that was said outside of court that's being tendered for the truth of it, right? Somebody's saying, Well, you know, Bob told me that he went over there and fixed the um, you know, sump pump or something, right? Yeah. Uh there are some exceptions to that. Like there are things like uh business records sometimes can be uh admissible if there's proper notice given. And there's a little more latitude in small claims court, where in small claims court a judge has discretion to allow in evidence that might not meet all of the tech t all of the rules of evidence. So like hearsay is generally not admissible. But in small claims court, a judge has discretion to allow some of that, the theory being that not everyone's a lawyer, they may not appreciate what exactly is required, right? Uh but nonetheless you had this plumbing company owner there trying to, you know, testify about what all of these different employees had done, you know, and he had uh broken out there's there's several of them, Stefan, Devin, Matt, a whole bunch of these guys, right, running around doing various things, how far they'd driven and so forth, and what they'd spent and all the pieces. And so the judge here was left with trying to analyze, first of all, who's responsible for this, right? The bill at all. Who who is there a contract, right? For there to be a contract, it doesn't need to be in writing, but there has to be an offer, acceptance, consideration. Those are kind of the basic requirements for one. And the first thing the judge found is that the mother who she was there telling the, at least to some extent, about the the plumbing uh employees about work to do, the contract wasn't with her, the judge found. The judge concluded that the mother uh was really acting as an agent for the son who was in jail, right? And just like, for example, for the plumbing company, you know, the owner of the company uh isn't necessarily there entering into contracts, he's relying upon his agents, people who would have, you know, apparent authority to do things for the company, like the plumbers, right, who are showing up. And the judge found that first of all, the the mother was in a similar role. She amounted to uh an agent for the incarcerated son with the bad water problems and septic issues, right? Uh but because the evidence was poor, given that nobody wants to write anything down, um, the judge was having to try to pick through all of these uh like records about how far the plumbing trucks had driven, and GPS records about that, and receipts for this and that, and trying to figure out what exactly did the mother tell the plumbing company to do. And it was all very ambiguous and frankly secondhand, uh, because the uh you know their the plumbing company owner was relying on like notes from the dispatcher and notes from these employees that showed up, some of which look like they may have been mistaken. But so the judge found at the end of the day he could not be satisfied, you know, based on what the owner of the company has said, that the entire amount here, the thirty-four thousand dollars, was correct and that all of that work had been requested. But the flip side of that, right, is that you know, sometimes with contracts, even though there's this requirement for you know sort of an offer and acceptance and consideration and all that, sometimes there are are elements in a contract which are going to be sort of on the face of it ambiguous. Like nobody here, there's no record of the uh you know dispatcher telling the mother or the son with one phone call from the son like the hourly rate of the plumbers. There's just no record of that. Maybe they did, maybe but who knows? Yeah. Uh and so when you're left with that kind of ambiguity, what a judge would be required to do is to try to impute terms which would be sort of reasonable and expected terms in the contract. It's like if you phone up a plumbing company and say, uh, my hot water tank is blown, come over right away and fix it. And they say, Okay, we're on our way. Uh and there's no other discussion about the hourly rate or the how much the tank costs. You don't get a free tank and a free uh replacement, right? No. Uh even though those those terms weren't discussed. And so you you'd be left with uh you know, in that circumstance, a judge trying to figure out like what would be the what would a reasonable person have concluded was the term of this contract, and you know, what would be the sort of fair amount for that to be done? Certainly you don't get a free hot water tank, but you know, on the other hand, if the plumbing company said, yeah, there it all is, that tank was $150,000, there's the bill, right? That judge likes, well, hold on, that's not really what would have been reasonable here. And so by that process, given that nobody wrote anything down, uh the and frankly the other thing the judge found was that the son, maybe understandably given that he was in prison and then in a halfway house for a period of time and not at the property, was also not apparently terribly interested in what was going on. Like he didn't make any further inquiries or follow-up calls or uh anything else. He was just sort of uh, you know, the one call would go go fix my pump, and thought it would be a much smaller bill, and indeed they did wind up doing a whole bunch of other things, septic systems and so on, uh, septic system repair, and it was all quite ambiguous. And so the judge was left picking through all these things, trying to figure out what was reasonable, bearing in mind as well another principle, which is the idea that you wouldn't want to have sort of an unjust enrichment by the homeowner. There's no doubt that all this work was uh ultimately done, and that he's got the benefit of now a working water system and a working septic system, and also it looks like they fixed a problem with the tap in the kitchen and the some tap in the bathroom and so on, which the mother said she might have mentioned to them, right? So they fixed everything. It's all there. Um so uh with nothing being written down, the judge managed to pick through all the bits and pieces, including like the GPS records of how far the plumbing trucks had driven and the days that they were there and the pieces, and he was very careful about it if you're go getting down to things like you know how much of that impeller have cost, and should you have had one pump or two and uh and so on. And yeah, maybe it's the wisdom of Solomon. At the end of the day, the uh amount awarded to the plumbing company was roughly half uh of what was requested, $14,490.84. And so they now got a judgment, and the plumbing company will now have to go about trying to collect that judgment uh from the fellow who's now out of jail, presumably enjoying his shower and uh running water and functioning septic system. So uh really the takeaway here for people includes trying to do your best to try to get it in writing, appreciate it might be painful at the time, but it would be a very good practice if, for example, you know, the dispatcher were to, you know, send out an email or something confirming, hey, we're on our way, this is what we charge, and you know, confirming here's the work being done, rather than you know, uh five words being written down about you know, phone call fix pump dispatched, something to that effect, right? Um and so that's the latest out of the uh BC provincial court uh in terms of how it works when you've got a ambiguous contract for a person who's not physically there and you're relying on somebody else who might be your agent to point out additional things and problems to be fixed. You don't get it all for free, but on the other hand, if you're the plumbing company or contractor, you may not get everything that you uh are entitled to unless you've got that better recorded or some clear evidence about uh why it and what you did. That's the latest from the BC Provincial Court on plumbing.
Adam Stirling:Michael Mulligan with Mulligan Defense Lawyers Legally Speaking during the second half of our second hour every Thursday. Michael, thank you so much. Pleasure as always. Thanks so much. Always great to be here. All right, quick break news is next.