DRAFTING ERRORS AND THE RULE IN SAUNDERS V. VAUTIER

DRAFTING ERRORS AND THE RULE IN SAUNDERS V. VAUTIER

Will and court order drafters should be aware of the rule in Saunders v. Vautier, (1841) 41 E.R. 482), a decision of the English courts of equity from 1841. The rule occasionally comes to my attention when a will attempts to make a bequest to… Read more

Executor Remuneration and Passing of Accounts

Unsent Draft Text Message Valid Will – Australia

A court in Australia has accepted an unsent, draft text message on a dead man’s mobile phone as an official will. The 55-year-old man had composed a text message addressed to his brother, in which he gave “all that I have” to his brother and… Read more

Proof In Solemn Form and Attestation Clauses

Proof In Solemn Form and Attestation Clauses

Bhall Estate 2017 BCSC 1867 involved a contested application to prove a will in solemn form where the court inter alia relied upon the presence of the attestation clause to be of some significance. The will was drafted by a lawyer who kept very few… Read more

Termination of Trusts: Saunders v Vautier

Termination of Trusts: Saunders v Vautier

Ward v Roberts 2017 BCSC 1768 allowed the termination of a trust on the basis that there was no ” gift over” and thus it violated the rule in Saunders v Vautier. The deceased executed a will in 2009 that provided that placed equal share… Read more

Section 58-59 WESA Rectification Application Referred to Trial

Section 58-59 WESA Rectification Application Referred to Trial

Estate of Palmer 2017 BCSC 1430 dealt with an application by affidavits pursuant to Sections 58 and 59 WESA to cure deficiencies in a will left by a deceased who hand wrote certain changes to a typed and properly witnessed prior will. The  Judge referred… Read more

Is a Will Valid By A Grant of Probate?

Is a Will Valid By A Grant of Probate?

Seepa v Seepa 2017 ONSC 5368 revisited the question of whether a will is recognized as valid by a grant of probate. The Court followed Neuberger v. York, 2016 ONCA 191: a. The court’s jurisdiction in probate is inquisitorial because the court’s decision does more… Read more

Rambling Journal Upheld As NOT a Valid Will

Rambling Journal Upheld As NOT a Valid Will

Re Hadley Estate 2017 BCCA 311 was upheld by the Court of appeal in finding that a rambling journal was not a will that could be “cured” by S 58 WESA. This was the first appeal court decision on Section 58 WESA. Section 58 of… Read more

Can An Unwitnessed Will be Valid?

Unwitnessed Will Valid

Section 58 WESA was once again successfully used in Re Litke Estate 2017 BCSC 1079 to find a hand written unwitnessed signed “will-like” document to be a valid will. Such documents are now routinely found valid by the courts if certain criteria are met. The… Read more

Lawyer Duty Taking Will Instructions: Suspicious Circumstances

Lawyer Duty Taking Will Instructions: Suspicious Circumstances

The duty of a lawyer/solicitor  in taking will instructions when suspicious circumstances are present was discussed in Shroff v Schroff 2017 MBQB 51. Suspicious Circumstances Suspicious circumstances have been found to exist in a wide array of situations and are not necessarily sinister in nature. There is… Read more

Fraudulent Wills

Fraudulent Wills: Vancouver Sun Article

The Vancouver Sun published an article I wrote on the increased risk of fraudulent wills that may occur under WESA. The B.C. inheritance-and-estate law brought in two years ago has increased the risk of forged and fraudulent wills, says a lawyer involved in the debate… Read more

Gift to Witness to Will Cured By S 43 WESA

Gift to Witness to Will Cured By S 43 WESA

Bach Estate 2017 BCSC 548  cured a gift to witness to will to be valid   when prior to WESA  on March 31, 2014 it would  have been invalid. One of the witnesses to the will was the husband of the deceased and a beneficiary under her… Read more

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

Copy of Will Probated

Copy of Will Probated

Under certain circumstances a copy of a will rather than the original, may be admitted to probate as the last valid will of the deceased. The competing claimants will typically  argue that there is a presumption of revocation when the original will cannot be produced…. Read more

Gifts In Contemplation of Death

Gifts In Contemplation of Death

Deathbed gifts happen surprisingly often. It is relatively common for people, during their last days, to make sizable gifts to caregivers and loved ones. Frequently the purported gift is at odds with the will of the dying person. Like deathbed wills, deathbed gifts’ often result… Read more