Wills Variation and Court Costs

Wills Variation and Court Costs

Two recent wills variation cases awarded the usual order of court costs to a winning party, namely Scale B. In Dakin v Patry 2016 BCSC 1006 a plaintiff won a summary  trial and was awarded scale B . In Ciarniello v James 2016 BCSC 1805 the… Read more

Wills Variation and Long Marriages

Wills Variation and Long Marriages

Ciarniello v James 2016 BCSC 1699 is a good example on how the court treats the division of estate assets  at the end of  long marriages when the survivor brings a wills variation action on the basis that she was not adequately provided for in her… Read more

Assets Passing Outside of the Estate

Assets Passing Outside of the Estate

Assets Passing – Probably most people in North America die holding assets that pass from their name to others or their estate that pass both ” inside” and “outside” of the estate. A deceased’s will only distributes assets that were personally owned by the deceased at… Read more

Interim Distribution Ordered

Interim Distribution Ordered

An interim distribution of $250,000  of his maximum estate entitlement of $460,000 was ordered to a 76 year old former spouse of the deceased who needed funds in Davis v Burns Estate 2016 BCSC 1982. The application was made  under section 155 of the Wills,… Read more

Civil Conspiracy

Civil Conspiracy

Klaus v. Hamilton, 2015 BCSC 2386 involved a claimant who sued alleging he was a spouse of the deceased, for a variance of her will and for damages for civil conspiracy for alleging he was not a spouse. The tort of civil conspiracy has two branches (Cement… Read more

Court Discretion In Wills Variation Claims

Court Discretion In Wills Variation Claims

In wills variation cases now brought under S. 60 WESA , the judge has “entire discretion” in deciding pro or against a claimant on its findings of fact. In Swain v Dennison 1967 SCR 7 the Supreme Court of Canada held that the jurisdiction of… Read more

Court Overturns Man's Will on Moral Grounds

BC Court Overturns Man’s Will on Moral Grounds

The British Columbia Court over turned and varied a will where his four daughters had been left with nothing. William Werbenuk died more than two years ago with just enough money in the bank to pay for his funeral. The 86-year-old widower’s will gave all… Read more

Disabled Adult Succeeds Wills Variation

Disabled Adult Succeeds Wills Variation

Willott v. Willott Estate 1997 CarswellBC 2016, [1997] B.C.J. No. 2073, 20 E.T.R. (2d) 211 is a 1997 wills variation action where a deceased parent’s estate was required to pay additional monies to a disabled son who unable to work, survived on a small disability… Read more

Will Varied to Give Daughter Entire Estate

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 apply to court for an… Read more

Public Policy Protects Wills Variation Claims

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

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 would… Read more

Executor Cannot Use Estate Funds To Defend Personally

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 a… Read more

Long Delayed Court Action Justified

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

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 spouse…. Read more