



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Leung v. Chang,









2014 BCCA 28




Date: 20140121

Docket: CA041020

Between:

Elizabeth Foo-Yun
Chang Leung, Executrix of the Estate
of Hsieu Chang, also known as Chen Hsieu Chang,
also known as Chang Chen Hsieu, Deceased

Respondent

(Plaintiff)

And

Da Wei Chang

Appellant

And

Dai Hon Chang and
Dan Dai Sing Chang

Respondents

(Defendants)




Before:



The Honourable Mr. Justice Donald

The Honourable Madam Justice Saunders

The Honourable Mr. Justice Frankel




On appeal from: Supreme
Court of British Columbia, June 3, 2013
(
Leung v. Chang
, 2013 BCSC 976, Vancouver Registry S083532)

Oral Reasons for Judgment




Appearing for Appellant:



V. Chiang (daughter)





Counsel for the Respondent, Elizabeth Foo-Yun Chang Leung:



J.D. Whyte





Place and Date of Hearing:



Vancouver, British
  Columbia

January 21, 2014





Place and Date of Judgment:



Vancouver, British
  Columbia

January 21, 2014








Summary:

The appeal
is from an order admitting a last will and testament into Probate.
Held: appeal dismissed. There was evidence before the judge to support her
findings of fact, and the principles of law applied by the judge are correctly
stated.

[1]

SAUNDERS J.A.
: Mr. Chang appeals from the order of Madam
Justice Dardi made June 3, 2013. The order admitted the last will and
testament dated July 10, 2000, and a codicil dated July 6, 2005,
together as the last will of Hsieu Chang into probate, cancelled caveats
registered against real property, and dismissed an appeal from a Masters
order.

[2]

Mr. Chang has not appeared today. Ms. Chiang, his daughter,
appeared on his behalf, asking for an adjournment for medical reasons. The
application was opposed by the respondent Ms. Leung. Mr. Justice Donald
has explained why we have proceeded. He has also explained that we have the
written arguments of the parties in the form of factums, and the other material
filed on the appeal including, importantly, the reasons for judgment leading to
the order appealed.

[3]

As is our custom, we have read the factums, and reasons for judgment,
and reviewed the material filed as we considered necessary for preparation for
the hearing today. I have relied upon that material in reaching my conclusions
on the appeal.

[4]

The deceased Ms. Chang is the mother of the appellant, two other male
children who take no part in this appeal, and the respondent Ms. Leung,
who is her daughter and the sister of Mr. Chang.

[5]

Ms. Chang died on May 25, 2007. A residential property in Surrey is
the only asset of significance on the estates probate inventory. Originally,
the appellant Mr. Chang was registered as a joint tenant with his parents
on title of that property. However, throughout the 1990s the relationship
between Mr. Chang and his parents soured and in 1998 the parents severed
the joint tenancy, leaving Mr. Chang with a 1/3 interest as a tenant in
common.

[6]

In her will of 2000 Ms. Chang bequeathed $10 to Mr. Chang with
the remainder of the estate to be divided between her other children. Ms. Chang
stated in the will that the minimal bequeath to Mr. Chang reflected both
their poor relationship and the financial assistance she had provided
Mr. Chang in the form of his interest in that Surrey property. In her
codicil, Ms. Chang gave as additional reasons for limiting Mr. Changs
inheritance, his receipt of proceeds of sale of property in Shanghai and her
view he did not need her financial support. Mr. Chang opposed
Ms. Leungs application for probate of her mothers estate. Ms. Leung
then sought to strike Mr. Changs claims, and sought a grant of probate.
Her application was allowed in 2009. On Mr. Changs appeal of that order,
this court set the order aside and remitted the matter for determination of
issues of undue influence and testamentary capacity. Accordingly, the matter
was heard by the trial court, leading to the order appealed.

[7]

In her reasons for judgment, the judge set out correctly the legal
framework that must be applied in a dispute over the validity of a will when
the presence of suspicious circumstances raises issues of capacity, undue
influence, absence of knowledge and fraud.

[8]

In her reasons, the judge first analyzed whether each of the will and
codicil were duly executed. The will was prepared by a notary public who had
several years of experience at the time Ms. Changs will was executed. The
codicil was prepared by a lawyer with several years of experience. Both the
notary public and the lawyer testified at trial concerning the process of
executing the documents and their belief that Ms. Chang understood the contents
of the documents which they had read to her. The judge found that both
instruments met the legal requirements of the
Wills Act
, R.S.B.C. 1996,
c. 489, thus creating a presumption of validity.

[9]

Next, the trial judge examined whether there were any suspicious
circumstances sufficient to rebut the presumption of validity, starting with
the issue of capacity. The judge examined the evidence of capacity of the
testatrixs doctor and granddaughter, as well as Ms. Leung, the notary and
the lawyer, and concluded there were no facts capable of arousing suspicion as
to Ms. Changs capacity.

[10]

The judge addressed Mr. Changs submission that a lack of mental
capacity was demonstrated by his mother in her reference to Mr. Chang
benefitting from the Shanghai and Surrey properties. He said she knew they were
not hers, and yet still purported to dispose of them in her will. The judge
concluded that there was no evidence that Ms. Chang had alienated any
beneficial interest in the Surrey property prior to her death and there was no
cogent evidence to call into question ownership of the Shanghai property. The
judge accordingly was not persuaded that the statement regarding the Shanghai
property in the codicil was capable of giving rise to suspicious circumstances
or calling into question the testatrixs testamentary capacity.

[11]

The trial judge noted that both the notary and lawyer were experienced
professionals, fluent in Mandarin and Cantonese languages, whose practices
included taking instructions from clients, like Ms. Chang, who spoke only those
languages. The judge found the evidence of the lawyer and the notary supported
the conclusion that Ms. Chang was competent to make a will, and was free of
undue influence when she executed the instruments.

[12]

The judge next analyzed whether the provisions of the last will were
rational on its face. There she admitted Ms. Leungs testimony concerning
her mothers statements of disappointment and distress concerning
Mr. Chang. She concluded that the will was rational on its face.

[13]

Last, the judge examined Mr. Changs claim that Ms. Leung had
exerted undue influence and coerced the testatrix into making the will. The
judge found that the testatrix made the last will independently and of her own
free-will. She further found that at no time did Ms. Leung initiate any
steps or attempt to influence her mother in making that will. She concluded
that Mr. Chang had failed to demonstrate that his mother had acted under
undue influence.

[14]

In his factum Mr. Chang asks the Court to set aside the order and
award him sole title of the Surrey property, appoint him as the legal
representative of Ms. Changs estate and award him costs against Ms. Leung
personally.

[15]

He says that the will and codicil are invalid because they are illegal
documents. He says the respondent hid relevant evidence to his detriment and
that she did not perform her duties as executrix honestly. He submits that the
Surrey property was not the testatrixs to dispose of and says that it was up
to Ms. Leung to prove that he received the proceeds of the sale of the
Shanghai property as recited in the codicil. He takes issue with the trial
judges dismissal of his applications to adjourn the trial and her refusal to
allow certain questions.

[16]

Mr. Chang further asserts that a document referring to the Surrey
property should not have been accepted as evidence since the change from joint
tenancy to tenancy in common was improperly effected. He raises other issues
concerning the listing of assets in the estate. He challenges the findings of
fact concerning suspicious circumstances and undue influence.

[17]

As I understand Mr. Changs arguments set out in his factum, some
of the matters raise issues that were not part of the trial, such as the state
of title of the Surrey property. We do not consider issues not put before the
trial court and accordingly I propose to say no more about the issues raised
for the first time before us.

[18]

Nor would I accede to the complaints of Mr. Chang about the
proceedings in the trial court, in particular the dismissal of his applications
to adjourn the trial and the refusal to allow certain questions to be asked. We
show considerable deference to trial judges in the management of litigation.
Nothing that is said in the factum in complaint of the manner in which the
trial was conducted demonstrates any error in principle or misunderstanding of
the circumstances such as might persuade us to interfere with the result on the
basis that a fair trial was not conducted. It appears that Mr. Chang was
provided full opportunity to advance his case.

[19]

Mr. Changs significant complaint as set out in his factum concerns
the findings of the trial judge on the issues of suspicious circumstances,
undue influence and the mental capacity of the testatrix.

[20]

It is well known that as an appeal court we do not lightly interfere
with the findings of fact of a trial judge. In particular, where there is
evidence to support the findings of a judge we may not interfere.

[21]

The submissions of Mr. Chang in his factum on suspicious
circumstances and undue influence challenge findings of fact of the judge.
There was, however, evidence before the Court which supported the findings of
fact that Mr. Chang challenges. It was for the trial court to determine
whether that evidence was reliable and to find the facts from the evidence
before the judge. I would not interfere with those conclusions.

[22]

Last is the issue of burden of proof. Mr. Chang contends that it
was up to Ms. Leung to establish that the will was not executed under
undue influence. That is not an accurate understanding of the law. In general
terms, the burden of proof lies upon the person who makes the assertion. In
this case, it was for Mr. Chang to prove undue influence. He called no
evidence to support that allegation and the judge rightly dismissed that claim.

[23]

For these reasons I would dismiss the appeal.

[24]

DONALD J.A.
: I agree.

[25]

FRANKEL J.A.
: I agree.

[26]

DONALD J.A.
: The appeal is dismissed.

The
Honourable Madam Justice Saunders


