Forfeiture Clauses in Wills

Bellinger v. Fayers, Nuytten  2003  BCSC  563 discussed inter alia forfeiture clauses in wills On June 11, 2002, Justice Hood handed down Reasons for Judgment, subsequent to the trial reasons,  in the case of Bellinger v. Fayers, Nuytten. In this case I represented the plaintiff,… Read more

The Cy-Pres Doctrine

Those of us living in Vancouver know Children’s Hospital–surely that goes without saying. Check a little closer, however, and you may be surprised to learn that no such legal entity exists. In estate law it is relatively common to discover that a charitable institution, named… Read more

Revocation of Wills

Every will is revocable even a will, whose terms purport to make it irrevocable, is in fact revocable. Generally speaking a will may be either be revoked by the operation of law or may be deliberately revoked by the testator . Deliberate revocation requires a… Read more

Wills Variation Act Not Changed Under WESA

Wills Variation Act Not Changed Under WESA

  In the summer of 2006 the British Columbia Law Institute delivered to the Attorney General a sweeping report entitled Wills, Estates and Succession: A Modern Legal Framework. Many of that report’s recommendations involve well-considered and welcome changes. There are two recommendations in that report,… Read more

The BC Wills Variation Act

The BC Wills Variation Basics

Any discussion of the BC Wills Variation Act requires an understanding of the English common law which provides the background for this Act. English common law, developed by the English judges over the centuries, provided that when a person died, that person could leave his… Read more

Disinheriting Adult Independent Children

Disinheriting Adult Independent Children As long as testamentary freedom exists, some parents will try to disinherit their children. In British Columbia a determined parent can do so with expert estate planning. If a parent simply uses their will to disinherit a child, however, that parent… Read more

BC WILLS VARIATION ACT: Consideration of Benefits Passing Outside Estate

The British Columbia Wills Variation Act is the statute which permits an eligible claimant to contest a will. The class of claimants eligible to bring a wills variance claim includes any spouse, common-law spouse (f they cohabited for 2+ years) and any child of the… Read more

Limitations for Wills Variation Claims

There is a relatively short limitation period for wills variation claims brought under British Columbia`s Wills Variation Act. Under WESA, a claimant must start any court action within 180 days  of the grant of probate to the executor of the impugned will. This allows for… Read more

Dysfunctional Families Are Everywhere

  Dysfunctional families are everywhere.   Some years ago the Vancouver Sun ran a feature on dysfunctional families and  reported that one in three British Columbians expect to be disinherited by their parents. Practising estate litigation for over 40 years, it is easy to believe… Read more

A Tribute to The BC Wills Variation Act

The question of a child’s ‘entitlement’ to share in a parent’s estate often provokes a very lively discussion. Many believe that a parent`s obligation ends once they have “fed, clothed, educated and sent the child on his or her way”. They argue that testators should… Read more

Reasons For Disinheritance In a Will Must Be “Valid and Rational”

A will makers reasons for disinheriting a child in his or her will must be valid and rationale Fuller v Fuller 2008 BCSC 702 is a familiar scenario in estate litigation. The will that states that no provision is being made for a child due… Read more

Don’t Bank On an Inheritance

Do not expect to receive an inheritance is the advice of most financial planners, as well as my own. In the early 1990’2 I read a survey taken by the Vancouver Sun stating that 1/3 of BC residents expect to be disinherited. In my many… Read more

Children “Adopted Out”Cannot Inherit From The Natural Parent On an Intestacy

The BC Court of Appeal decision of Clayton v Markolefas 2002 BCCA 435 stands for the proposition that a natural child of the testator, who has been adopted by another parent, is NOT entitled to inherit from the estate of his intestate natural parent. Nor… Read more

The Equitable and Discretionary Remedy of Rectification

Rectification: The Governing Legal Principles The Ontario case of Kanji v Canada Attorney General 2013 ONSC 781 provides a good review of the law of rectification of a mistake. A taxpayer attempted unsuccessfully to rectify a trust that was going to incur a great deal… Read more

Abandoned Infant Wins Wills Variation Claim

McMain v Leblanc 2013 BCSC 891 involves a fact pattern that is all too frequent in wills variation cases-the abandoned infant  who subsequently finds himself or herself disinherited from the absconding parent, often under the pretext of lack of contact, or even estrangement, but rarely the… Read more