Suspicious Circumstances and Testamentary Capacity | Disinherited

Courts Must Scrutinize Claims Against Estates

Wharton v McMinigal 2014 BCCA 434 is authority for the legal proposition that claims against deceased persons estates must be approached by the courts with the most careful scrutiny and indeed at the outset with some suspicion.

The defendant was the executor of the estate of her late husband. They had lived in a common-law relationship for 22 years and then separated.

Title to the matrimonial home had been in joint tenancy, but several years after separation the deceased severed the joint tenancy without the plaintiff’s knowledge.

The plaintiff asserted that she and the deceased had an agreement between themselves not to sever their joint tenancy.

The court held that the plaintiff had not proven, on the balance of probabilities, that there was such an agreement between herself and the deceased not to sever the joint tenancy.

In fact, the court stated that as an owner of one half interest in the property, the defendant had a prima facie right to partition the property and have it sold. The court in fact did order that the property be partitioned and the net proceeds divided equally.

In finding that claims against deceased persons must be approached with the most careful scrutiny and indeed at the outset with some suspicion, the court followed two decisions by previous BC Supreme Court judges, namely:

Miller v Miller (1987) 14 BCLR 42 at paragraph 51

Miller was followed and quoted with approval in Fraik v Pilon 2012 BC SC 528 at paragraph 2

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 45 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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