When someone is declared mentally incapable under the law, a
committee is appointed to make his or her personal or financial
decisions. The committee is under a fiduciary duty to act in the
patient's best interests. Questions may arise: Should the
committee sell the patient's family home? What if that
property was a treasured family place?
Whether a court will allow a committee to sell property
belonging to the patient he or she represents will depend on the
circumstances. Under the Patients Property Act, RSBC 1996,
c 349, the committee must act for the benefit of the patient and
his or her family. The court will consider whether the sale of
property is "necessary for or in the interests of the proper,
honest, and prudent management of the estate". This has been
interpreted to be a question of whether a reasonable and prudent
businessperson would think the transaction is beneficial to the
patient and his family, given the circumstances that are known and
the possibilities that may arise, such as likelihood of recovery or
increased care costs. The committee does not necessarily need to
show that the sale is required for the patient's care or
maintenance of his or her estate.
A recent decision by the BC Supreme Court illustrates how the
court approaches this question where the patient's immediate
family disagrees about the sale of a family property. In
Bronson v. Coates, 2015 BCSC 1207, Margaret
Coates had been appointed committee of her father's person and
estate. Mr. Coates was indefinitely hospitalized and suffering from
irreversible severe dementia. Ms. Coates applied for an order
allowing the sale of two properties owned by her father. She
submitted evidence that the offers were for fair market value. Mr.
Coates did not need the money for his care or maintenance. Ms.
Coates planned to invest the proceeds of the sale for his
Mr. Coates' other children opposed the sale. They wanted to
keep the properties in the family and ultimately buy the properties
themselves, using their inheritance from their father. They argued
that this is what Mr. Coates wanted. There was no indication
of this intention in his Will. On the evidence before the court, it
was not clear how much longer Mr. Coates would live and, as such,
when the other children could expect to purchase the
The properties at issue were a waterfront parcel where the
family home was located, and an adjoining 14-acre farmland lot,
which mitigated water supply issues on the home property. The land
and home had been unoccupied for approximately two and a half
years, as Mr. and Mrs. Coates had moved into a care facility. Ms.
Coates estimated that running the properties cost at least $20,000
annually, and noted that she had had to spend almost $54,000 on
repairs and maintenance in one year. While her siblings argued she
ought to have rented the property out to offset these expenses,
market rent would not meet these costs.
The court allowed the sale, despite the opposition of Mr.
Coates' two other children and their plan to buy the
properties. Master Bouck cited various factors to support his
decision that selling the properties would be beneficial to both
Mr. Coates and his family:
(a) the sale of the property would
result in a "probable increase" rather than a
"definite diminution" of the value of Mr. Coates'
estate, thereby benefitting both him and his family. The high
maintenance costs associated with the property were a drain on the
estate. The sale proceeds would likely grow if Ms. Coates invested
(b) the sale made practical sense in
that the offer related to both the waterfront parcel and the
adjacent farmland, such that the water supply issues to the home
property would be addressed;
(c) the offer was for the fair market
(d) Mr. Coates had made no effort to
keep the properties in the family through his estate planning or by
transferring the properties into joint tenancies with the
As a result, the sale of the properties was allowed to proceed
over the objections of two of the three Coates children. In making
this decision, Master Bouck stated that the Court is "not
entitled to consider the wishes of the patient's heirs, only
whether the family will benefit from the sale". In the
circumstances, the family as a whole would benefit from the
committee's disposal of the patient's property, even though
it meant losing "a venue of past happy times".
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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It is not uncommon for parents to provide monetary gifts to their adult children. Parents may wish to help their child with a down payment on a property, or help pay out their child's existing mortgage.
On March 31, 2014, BC's new Wills, Estates and Succession Act1 ("WESA") will come into force. WESA introduces new protections for beneficiaries of estates that are in danger of being disputed or deemed ineffective by a court.
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