Court Ordered Interim Distribution in Wills Variation Claims

Court Ordered Interim Distribution in Wills Variation Claims

There is both court authority and statutory authority allowing the court to exercise its discretion to release a part of the testator’s estate as an interim distribution in a wills variation action. Section 66 WESA allows the court the power to release a part of… Read more

Divorcee Lacks Standing to Contest Deceased Former Husband's Will

Divorcee Lacks Standing to Contest Deceased Former Husband’s Will

In Carswell v Engle Estate 2018 BCCA 164 the Court of Appeal confirmed that a divorced widow did not have legal standing to apply to vary her former deceased spouse’s will and challenge its validity. The court held that she was clearly not a spouse… Read more

Wills Variation (S 60 WESA) and the Second Spouse

Will Variation (S 60 WESA) and the Second Spouse

In Unger v Unger Estate 2017 BCSC 1946 the court considered the legal and moral claims of a long time second spouse against the estate of her late husband who did not provide for her in his will. The plaintiff Mr. Unger aged 80 was… Read more

Wills Variation: Second Long Marriage

Wills Variation: Second Long Marriage

Unger v Unger 2017 BCSC 1946 Involves a wills variation claim brought by an 80-year-old surviving spouse against the estate of her 82-year-old deceased husband, after a second marriage that lasted 34 years. The husband’s will left the residue of his estate to his four… Read more

Jerry Lewis and Wills Variation

Jerry Lewis and Wills Variation

In British Columbia, Jerry Lewis’s six disinherited children would have a wills variation claim under Section 60 of WESA. The news today reported: When comedian Jerry Lewis died from heart failure in August at the age of 91, as it turns out, he left the… Read more

Release of Claims and Different Claim

Release of Claims and Different Claim

Bykerk v Kappalka Estate 2017 BCSC 655 discussed a previous Release of Claims signed by the parties to a second court action under the Wills Variation act (Section 60 WESA) and found that the Release was not binding to prevent the latter claim. The court… Read more

Wills Variation: 84 Year Old Second Spouse With Dementia

Wills Variation: 84 Year Old Second Spouse With Dementia

Philp v.  Philp Estate 2017 BCSC 625 in a wills variation claim awarded an 84 year old second spouse with dementia $300,ooo from an estate of $660,000 after a 35 year marriage. The widower was a retired doctor who had contributed substantial sums of his… Read more

Renewal of Wills Variation Claim Not Served In Time

Renewal of Wills Variation Claim Not Served In Time

Rodgers v Rodgers Estate 2017 BCSC 518 dealt with an application for a  renewal  court proceedings in a wills variation claim under S 61 WESA that states in 61 ( B) that the proceeding must be served on the executor of the will no later than 30… Read more

Conflict of Law: "Ordinarily Resident"

Conflict of Law: “Ordinarily Resident”

Cresswell v Cresswell Estate 2017 BCSC 178 dealt with a conflict of law situation and held that the jurisdiction of the BC court should be denied for a wills variation action and held that it should properly be filed under Alberta court jurisdiction as the… Read more

Wills Variance and the Estranged Child

Wills Variance and the Estranged Child

J.R.v J.D.M. 2016 BCSC 2265 discusses in great detail the law and related facts of the case in a wills variance case brought by the  estranged child of the deceased. No explanation was left by the deceased for the disinheritance other than the notaries notes that he… Read more

Wills Variation: Court Criteria Between Disinherited Adult Children and Second Spouses

Wills Variation: Court Criteria Between Disinherited Adult Children and Second Spouses

R. (J.) v M. (JD) 2016 BCSC 2265 summarized the court criteria will consider when deciding the competing moral claim of a disinherited  adult independent child  and a second spouse who inherited  the entire estate. The adult child had been disinherited and had been estranged from… Read more

Severance of Court Actions Upheld On Appeal

Severance of Court Actions Upheld On Appeal

The Court of Appeal in Johnston v Johnston Estate 2017 BCCA 59 upheld the trial decision found at 2016 BCSC 1388 where an action seeking that a will was invalid, or alternatively if it was valid it should be varied under the wills variation provisions… Read more

"Adopted Out" Child Cannot Contest Biological Parent's Estate Under Wills Variation

“Adopted Out” Child Cannot Contest Biological Parent’s Estate Under Wills Variation

Boer v Mikaloff Estate 2017 BCSC 21 confirmed that an “adopted out” child cannot contest the will of the biological parent’s estate under S.60 WESA (the wills variation provision) when it answered the following posed question negatively: Does a child who is adopted by other… Read more

Executor Added After Expiration of Wills Variation Limitation

Executor Added After Expiration of Wills Variation Limitation

 Under the provisions of section 60 WESA, an action under the wills variation provisions must be commenced within 180 days of the grant of probate or the action is statute barred. In the 1987 decision Cowan v Cowan 17 BCLR ( 2d) 114, the plaintiff… Read more

Abuse, Neglect and Wills Variation

Abuse, Neglect and Wills Variation

In my four decades of experience most wills variation claims  bring with them an individual or even sibling collective  story of abuse, neglect, and  other dysfunctions that result in a disinheritance to top it all off. It is settled law that the wills variation act ( now… Read more