Will Varied to Give Daughter Entire Estate

Hagen-Bourgeault v. Martens 2016 BCSC 1096 varied a will (S. 60 WESA) to give a 25 year old daughter with two young children on social assistance, the entire estate of $2,200 per month until 2025, instead of her husband of two years who was well… Read more

Interim Payments Under Wills Variation

Interim Payments Under Wills Variation Grant v Grant estate 1997 Carswell BC 3773 allowed a widow in need of funds to receive interim payments under the wills variation provisions of WESA. The Grant and Hecht cases are only a few reported cases of the ability to… Read more

Public Policy Protects Wills Variation Claims

If a will contains a penalty provision, known as a forfeiture clause, threatening to impose a penalty upon a beneficiary if a will is contested, then in that event,  wills variation claims are protected by public policy so that such a clause is not enforceable in… Read more

Wills Variation – Elderly Common Law Spouse

  Mars v Blais 2011 BCSC 1714 involved a 91 year old widow who brought a wills variation action ( now S. 60 WESA) against the estate of her late common law partner of 9 years. The wills variation  action was prior to WESA but… Read more

Executor Cannot Use Estate Funds To Defend Personally

In a Wills variation claim ( now section 60, WESA) an executor cannot use estate funds to defend him or herself if a beneficiary, and may  use reasonable estate  funds to defend the claim but only in the capacity of executor and not beneficiary. In… Read more

Long Delayed Court Action Justified

An application for dismissal of the court action for want of prosecution was dismissed when the court found that the reasons for the 13 year delay of the court action was justified. The law relating to dismissal for want of prosecution was recently summarized in… Read more

S 60 WESA (Wills Variation) – Second Marriages/Families

  Wong v Soo 2015 BCSC 1741 involves the increasingly familiar fact scenario of second or third marriages resulting in the death of one spouse and leaving his or her entire estate to the children of the first marriage to the exclusion of the surviving… Read more

S. 60 WESA (Wills Variation) Explained

  I was counsel for the plaintiffs in both the WESA case Brown v Pearce Estate 2014 BCSC 1402 which relied upon the law as set out in detail in McBride v Voth estate 2010 BCSC 443 in which I was also counsel, and both… Read more

Children Defined Under S.60 WESA

S. 60 of WESA contains the provisions of the former Wills Variation Act which was largely unchanged under WESA except to be incorporated into WESA, and the case of Sari v Sari confirms the definition of a child or children under S. 60 WESA.  … Read more

Wills Variation – Appealing a Judge’s Exercise of Discretion

Judges have a broad discretion in their judicial interpretation of wills variation cases and generally speaking, a litigant cannot appeal finds of fact made by the trial Judge after exercising that discretion. Appeal court are reluctant to substitute their discretion for that of the trial… Read more

Wills Variation – Long Time Spouses “Non Traditional”

A five court appeal panel heard Kish v Sobachak Estate 2016 BCCA 65 , reduced  a wills variation award involving two long time companions who met later in life having had children from previous marriages. They remained financially independent, maintained separate homes, and did not wish to… Read more

Wills Variation and Second Long Marriages

Anderson v Coles 2016 BCSC 13 involves the approach by the court when dealing with a wills variation action between a surviving spouse of a 20 year second marriage and the interests of competing children born of the first marriage. The court essentially divided the matrimonial… Read more

Wills Variation and Discretion

One of the difficulties in advising clients in wills variation cases is that under the WESA provisions relating to the variance of wills, the trial judge has an absolute discretion in his or her award, if any, under the act. The five panel appeal decision… Read more

Gratuitous Land Transfer Is a Trust

McKendry v McKendry 2015 BCSC 2433 dealt with a very common fact pattern in estate disputes- where a parent puts the property in joint names with one child and excludes the  other children, thus disinheriting them. In  McKendy the transfer was held to be a… Read more

Percentage Awards In Wills Variation Claims Favoured

The Courts prefer to use percentage awards in wills variation claims rather than specific sums. One of the major reason is the fluctuation in value of  some assets over time.   The recent dramatic rise in lower mainland property values has presented a mild dilemma… Read more