Section 46 WESA and Lapsed Gifts

Section 46 WESA deals with the lapsed gifts in wills often caused by poor will drafting ,  failure by the parties to properly consider what the future may bring , or the beneficiary predecaesing, any of which results in   disappointed beneficiaries not receiving the intended gift.   Instead… Read more

Burden of Proof In Mental Capacity

Becker v Becker 2016 BCSC 487 nicely summarizes much of the law relating to mental capacity aka testamentary capacity including the law re the burden of proof in mental capacity cases.    THE  LAW   51      The burden of proving testamentary capacity is on the… Read more

Joint Venture Agreement

Leontowicz Estate v Bakus 2016 BCSC 601 dealt with the validity of a trust relating to mining stakes where it was argued that the deceased had entered into a Joint Venture Agreement that must be based on whether or not there is a binding contract… Read more

S. 52 WESA-Undue Influence Presumption re Dependence

S. 52 WESA is a new provision that applies where a person establishes that a party was in a position where there was potential for dependence or domination of the will maker, and alleges that a gift in the will, resulted from the party using… Read more

Defective Will “Cured” S. 58 WESA

S. 58 of WESA ( Wills, Succession and Estates act) once again came to play to cure an otherwise  defective will in Re Smith Estate 2016 BCSC 350. Once again the leading case in BC to date  of re Young estate 2015 BCSC 182 was followed… Read more

Wills Made Before March 31, 2014 Need Strict Compliance

Wills made before March 31, 2014 , are still subject to the strict rules of compliance that existed prior to when WESA came into force as per Public Guardian BC v Sheaffer et al 2015 BCSC 1306. The deceased died in 2011 leaving a 1974… Read more

Memorandums to Wills

Willmakers often leave an unsigned, un-witnessed and undated memorandums alongside his or her Will  that usually purports to  dispose of largely sentimental valued personal effects and household items, that may or may not be of legal effect.   The question generally is whether the memorandum was… Read more

Estranged Adult Child Awarded %40 MOdest Estate

A disrespectful, estranged adult child and almost abusive,who was also virtually unemployable and living on welfare, was awarded 40% of the $50,000 estate of his mother, Bronson v Bronson Estate 1996 BCJ 3038 The plaintiff was raised as a single child in abject poverty by… Read more

Incorporation of Documents Into a Will

Because the facts in  Yaremkewich Estate 2015 BCSC 1124 resulted in the Justice allowing a 12 page detailed document relating to specific bequests to form part of a will likely signed prior to the date of said document, the court dealt with the law relating… Read more

Vested – Did You Inherit?

Black’s Law dictionary defines vested or vesting “as having the character or given the rights of absolute ownership; not contingent; not subject to be defeated by a condition precedent.” To be vested, a right must be more than a mere expectation based on an anticipation… Read more

WESA S.58 Curative Provisions for Defective Wills

Defective Wills in WESA S.58 Estate of Young 2015 BCSC 182 is the first reported case of the Court’s curative powers under Section 58 of WESA to cure otherwise defective wills. The executor brought an application for a Court determination as to whether two additional documents… Read more

UBC Property Transfer Set Aside For Being a “Fraud On a Power”

Fraud On a Power It is a fraud on a power contained in a will to use a society created in accordance with the terms of the will to achieve indirectly the transfer of property to a non-object of that power which could not be done… Read more

Sibling Greed After Death

Sibling Greed After Death is an excerpt taken from a longer article I have written on the topic of just how greed enters the equation amongst siblings after the death of a parent, especially the last one. It is almost guaranteed that upon the death… Read more

The Differences Between Joint Bank Account and Joint Property

There are some particular features of a joint bank account that distinguish it from a joint tenancy in real property and these have been discussed by our Court of Appeal (Bergen v. Bergen, 2013 BCCA 492): ( see my blog on Bergen dated August 26.14… Read more

Mental Capacity Required For a Will Is the Same as Inter Vivos Transfer

 Mental Capacity Required For a Will   Brydon v Malamas 2008 BCSC 749 at paragraph 47 confirms that the test for mental capacity for an inter vivos transfer ( while  alive), is the same as the test of testamentary capacity, including the shifting of the… Read more