Murder and a will, fraud by a translator, and a successful family law prototype in Victoria

This week on Legally Speaking with Michael Mulligan:

As a matter of public policy, courts will not recognize a benefit accruing to a criminal for his crime. As a result, a murderer cannot collect life insurance or a gift in a will from the person they murdered.

A recent BC Supreme Court case considered how the estate of a mother, who was murdered by one of her two adult sons, should be divided.

The son, who committed the murder, had a daughter who was born 11 days after the murder.

The mother’s will provided for her estate to be divided equally between her children, however, if one of them were to predecease her, their share was to be given to their children. Failing this, the residue of the estate was to be given to two charities. 

Section 86 (1) of the Trustee Act allows the executor of a will to seek advice from a judge with respect to the administration of an estate.

As the son who committed murder was not dead, it was unclear who his share of the estate should pass to: his brother, his infant daughter, or the two charities.

One of the executors of the estate provided the judge with an affidavit indicating that the deceased mother told her that that her relationships with her sons had eroded and that she was considering changing her Will to ensure her grandchildren were provided for.

When deciding how a will should be interpreted, the paramount concern for a court is the intent of the testator at the time the will was executed.

As a result, the judge hearing the application directed that the share of the estate that would have otherwise gone to the son who committed murder should go to his daughter.

Because the daughter was only five years old, the funds will be managed by the Public Guardian and Trustee of British Columbia.

The next case discussed on the show involved an appeal by an English to Arabic translator who was convicted of defrauding ICBC by helping clients cheat on the knowledge test for their learner’s licences.

The actus reus of the offence of fraud has two elements: 1) a dishonest act and 2) deprivation.

A central issue on the appeal was whether ICBC was deprived of anything.

Relying on a Supreme Court of Canada case that involved an unsuccessful effort to fix a horse race by injecting a horse with a performance-enhancing drug, where the injected horse still came in sixth, the BC Court of Appeal upheld the fraud conviction.

The risk that ICBC could face higher costs because of unqualified drivers getting into accidents was found to be sufficient to amount to a deprivation.

Finally, on the show, an evaluation of a prototype model to promote the early resolution and management of family law cases in Provincial Court is discussed.

The Early Resolution and Case Management Model was tried in Victoria. It required people wanting to make family court application to first engage in a needs assessment and dispute resolution though a Justice Access Centre.

The result was a significant reduction in adjournments, court appearances, and time in court.

Because of significant cuts to legal aid funding several years ago, many people with family court issues do not have a lawyer to assist them. This has resulted in more court time being used as judges have struggled to assist unrepresented people with complex family law issued.

The needs assessment and dispute resolution rules are an attempt to alleviate some of this.

Follow this link for a transcript of the show and links to the cases discussed.