General Rule In Wills Variation Actions Is Loser Pays the Winners Court Costs

Wills Variation Actions Todd v Walker 2009 BCSC 537 is authority for the above proposition re costs. The parties were half siblings. The deceased left $1 to her daughter plaintiff, and the residue to her son, who was also the executor. At trial the daughter… Read more

Adult Children Need Not Be Treated Equally In a Will, Just Adequately

Gray v Gray Estate 2012 BCSC 1310 is an increasingly common estate litigation scenario- a fight between the adult children of a first marriage and those of second or even third marriages, who are often much younger then the first set. The law in BC… Read more

The Presumption of Due Execution In Wills

Due Execution In Wills Yen Estate v Yen- Zimmerman   aka Hsia v Yen- Zimmerman, 2012 BCSC 1620 contains a long analysis of the law relating to the requirements for execution of the will, and focusing on the presumption of due  execution of the will when him… Read more

Who Gets What When You Die Without a Will

Die Without a Will? My late mother was convinced that if you die without a will, it all goes to the government. I don’t know where that notion came from, but she wasn’t the only person who believed that. If a person dies without a… Read more

Charitable Intent Found In Impractical Trust, Cy-Pres Doctrine Applied

Bentley v Anglican Synod of the Diocese of New Westminster 2009 BCSC 1608 is indicative of the type of litigation that can ensue between various charities that are or had previously been closely aligned. Several churches in recent years have undergone bitter disputes amongst its… Read more

Will Invalid For Not Being Signed At Its End

Will Invalid Ellis v Turner 20 ETR (2d) 306 BCCA involved a decision of the British Columbia Court of Appeal were by the court upheld the trial judge’s decision that the will of the deceased was invalid by reason of the fact that he printed… Read more

Marriage Separation Agreement Not a Bar to a Wills Variation Claim

Marriage Separation Agreement Ward v. Ward et al, 2006 BCSC 448 is one of a few BC court decisions that hold that a marriage separation agreement is not a bar to a claim subsequently brought under the Wills Variation act by a surviving former spouse…. Read more

What Does a Hotchpot Clause In a Will Mean?

Hotchpot clause has been around since at least the 12th Century, although has seen fewer in more recent years than even 25 years ago. The purpose of such a clause in a will is to equalize the benefits that beneficiaries have or will receive, as… Read more

Estate Funds Not to Be Used To Defend Wills Variation Claim ( S. 60 WESA)

Defendants may not use estate funds to defend their personal interests in wills variation cases ( now section 60 WESA) As plaintiff’s counsel, Steernberg v. Steernberg Estate (2007), 33 E.T.R. (3d) 78, 74 B.C.L.R. (4th) 126, 40 R.F.L. (6th) 106, 2007 BCSC 953, 2007 CarswellBC… Read more

When Interpretting Wills, The Courts Have a Strong Presumption Against Intestacies

Young v Abercrombie 2008 BCSC 389 involved an estate dispute relating to a conflict between the wording of the deceased’s will and the subsequent codicil to the will. Donald William Abercrombie (“Donald”) died on December 16, 2005, leaving a will executed on November 19, 1981,… Read more

Forfeiture Clauses In Wills Variation actions are Not Valid

Forfeiture clauses in wills variation actions are not valid as a defence Testators sometimes attempt to intimidate beneficiaries from contesting the will, by inserting punitive clauses called forfeiture clauses, purporting to take away a benefit given under the will, if the will is challenged. These… Read more

Phillipino Plaintiff Who Deceased Met On Holidays Found to Be Common Law Spouse-Receives 1/6 of Estate

The Plaintiff was born in Philippines. 1) was the plaintiff a common law spouse? 2) if so, what was her wills variation action worth out of a $600,000 estate? In June 2005, the plaintiff was on vacation in Australia when she met the testator. She… Read more

Presumptions of Resulting Trust and Undue Influence Applied In Manitoba Case

Presumptions of Resulting Trust The deceased’s mother died intestate. At date of death, a number of monies were in joint accounts bearing names of deceased,daughter L and granddaughter R L took more interest in deceased than did daughter M and cared for her during last… Read more

Must Have Legal Claim Before Death, Before It is Fraudulent Conveyance re Wills Variation Act

Legal Claim Before Death Todays case discussion is Hossay v Newman 1998 BCJ 3289 The plaintiff was adult son of the testator. The Testator placed his major assets in joint tenancy with one of defendants shortly before his death with result that assets passed to… Read more

Ademption – Testator Must Own the Specific Gift At Death Or the Gift Fails

The law relating to ademption applies when a particular item in a will is described with such specificity that it is clearly distinguished from other property owned by the deceased. If that specific property is not found among the testator’s assets after death, the gift… Read more