“Inheritance” Given Broad Interpretation

"Inheritance" Given Broad Interpretation

The words inherit and inheritance were given a very broad interpretation in Lotimer v Johnston 2019 BCSC 2098.

The parties were married for many years, but separated in 2007 and negotiated a separation agreement.

The husband agreed that as the wife had shared an inheritance she received from her mother during the marriage, that he would provide to her 25% of any inheritance that he would receive from his mother. The agreement was negotiated between the couple and reduced to writing by lawyers.

Soon after the separation agreement was signed the husband showed the document to his mother, and a few months later, the mother changed her will, to instead leave the husband only $10,000, rather than sharing equally in her $1 million estate with his sister.

Between the date of the separation agreement and the mother’s death, the husband received gifts totaling $330,000.

The mother put the husband and his sister on title with her on her home as joint tenants.

By 2012 the mother had liquidated most of her assets and started to give them to her son, daughter and grandchildren,

The wife successfully argued that $310,000 of that sum was in fact the husband’s inheritance and ordered that the wife be paid one quarter of that said sum.

The husband argued that the dictionary definition of inherit and inheritance supports the view that it inheritances property received from an ancestor under the law of intestacy or from anyone pursuant to a will.. Both avenues contemplated transfer of property effective upon the death of the giver. He argued that the monies that he received from his mother during her lifetime were inter vivos gifts that were made not an expectation of death.

The court rejected this argument, and said that the words inherit and inheritance are not legal terms of art, having a specialized legal meaning that it must be assumed that the parties, assisted by their lawyers, intended to invoke. The court found that the agreement was substantially based on discussions between the parties, rather than careful legal drafting.

The court held that the interpretation of contractual language in most cases, including this one, is a question of mixed fact and law grounded in the circumstances at hand.

The word inheritance encompasses a range of meanings, and the court concluded that the concept of an inheritance does not require that the giver has died.

The court instead allowed a broader understanding of inheritance that encompass gifts made by the mother in her lifetime that she intended to substitute for a gift effective on death, and found that was consistent with the language used by the parties in light of the surrounding circumstances.

The gifts were found to be intended by the mother to stand in place of the testamentary bequests to her son.

Broken Inheritance Promises

Broken Inheritance Promises

Broken inheritance promises generally fall under the law of the doctrine of proprietary estoppel- the leading case Cowper-Smithv Morgan 2017 SCC 61 sets out the general principles of which are as follows:

An equity arises when:

1) A representation or assurance is made to the claimant, on the basis of which the claimant expects that he will enjoy some right or benefit over property;

2) The claimant relies on that expectation of inheritance by doing or refraining from doing something, and his or her reliance is reasonable in all the circumstances;

3) The claimant suffers a detriment as a result of his reasonable reliance, such that it would be unfair or unjust for the party responsible for the representation or assurance to go back on his or her word.

The representation or assurance may be express or implied. An equity that is under crystallized arises at the time of detrimental reliance on a representation or assurance. When the party responsible for the representation or assurance possesses an interest in the property sufficient to fulfill the claimant’s expectation, proprietary estoppel may give effect to the equity by making the representation or assurance binding.

Where a claimant has established proprietary estoppel, the court has considerable discretion in crafting a remedy that suits the circumstances. The claimant who establishes the need for proprietary estoppel is entitled only to the minimum relief necessary to satisfy the equity in his favor, and cannot obtain more than he expected.

There must be a proportionality between the expectation and the detriment. Estoppel claims concern promises which, since they are unsupported by consideration, are initially revocable. What later makes them binding, and therefore a revocable, is the promisee’s detrimental reliance on them. Once that occurs there is simply no question of the promisor changing his or her mind.

It is the promisee’s detrimental reliance on the promise which makes it irrevocable. The detriment need not consist of expenditure of money or other quantifiable financial detriment, so long as it is something substantial.

Generally speaking, the approaches to determine whether a purported repudiation of the promise or assurance is unconscionable and all the circumstances. The issue of detriment must be judged at the moment when the person who is given the assurance six to go back on it.

Wills Variation: Second Long Marriage

Wills Variation: Second Long Marriage

Unger v Unger 2017 BCSC 1946 involves a wills variation claim brought by an 80-year-old surviving spouse against the estate of her 82-year-old deceased husband, after a second marriage that lasted 34 years.

The husband’s will left the residue of his estate to his four children equally.

The will had a clause stating that he was not providing for the plaintiff widow as during his lifetime he caused to be transferred to his wife title to 50% of the matrimonial property without any contribution from her to the acquisition or preservation of that property.

The main asset of his estate was 50% of the net sale proceeds from the matrimonial home. His estate was valued at approximately $600,000.

  • The plaintiff received his TFSA of $20,000 after he died.
  • Her expenses were minimal as she lived with her son.
  • She had her own assets of approximately $540,000.

The court reviewed the moral duty that was owed by the husband to the plaintiff and referred to the decision JR v JDM 2016 BCSC 2265 , where the court set out the factors to be considered in assessing the moral claim in a second marriage at paragraph 92:

in assessing the strength of the legal and moral obligations owed by a testator to a second spouse, the court will consider factors such as:

1) The length of the marriage

2) when and how the testator’s assets were acquired;

3) the contribution of the second spouse;

4) how family assets would be divided under the applicable family legislation upon marriage breakdown;

5) financial circumstances of the spouse;

6) the size of the estate; and

7) the magnitude of assets passing to the spouse outside of the estate, in consequence of other pre-death transactions undertaken by the testator.

The court also referred to Wong v Soo 2015 BCSC 174 at paras 73-82.

The court found that the deceased purported rationale for excluding the plaintiff from his will was not valid. The clause suggested that the deceased cause 50% of the matrimonial home to be transferred to the plaintiff without any contribution by her to the acquisition or preservation of the property. The matrimonial home was in fact initially registered in joint tenancy at the time of its purchase in 1981. It was only as a result of the order of a master in the family law action when they briefly separated, that the joint tenancy was severed. Furthermore, although the plaintiff did not financially assist in the payment of the purchase of the home. She did make contributions to the preservation and enhancement of the matrimonial home, and the 30+ years of ownership.

The court awarded the plaintiff 30% of the residue of the estate with the other 70% to be equally distributed between the defendant adult children.

Unsent Text Message Valid Will In Australia

Unsent Text Message Valid Will In Australia

A court in Australia in Nichol v Nichol (2017) QSC 220 determined that a non-sent text message on a mobile phone from the deceased Mark Nichol, leaving everything to his brother and nephew was valid as his last will. The will, excluded Mark’s wife and estranged son.

The phone was found near his body after he committed suicide with the unsent message on his phone reading:

“Dave Nic and Jack keep all that I have house and superannuation, put my ashes in the back garden with Trish Julie will take her stuff only she’s okay gone back to her ex AGAIN , I’m beaten. A bit of cash behind the TV and a bit in the bank cash card pin (_)
MRN 1901162Q

My Will”

The evidence accepted by the court concluded that the name Dave Nic was an abbreviation for his brother’s name and that Jack was his nephew. Trish was Mark’s deceased first wife and Julie one of the parties to the court action was Mark’s wife . The initials and numbers were Mark’s initials and date of birth.

This decision under somewhat similar legislation in Australia that allows defective wills to be ”cured” may well be followed and applied in British Columbia if the necessary requirements of sections 58 and 59 WESA are met.

The application to prove the unsent draft text message as a valid will was opposed by the deceased wife, but the court found that the unsent text message, ending with the words “my will” showed that the man intended it to act as his will.

Expert evidence was presented following a forensic examination of the deceased’s mobile phone and the report confirmed:

1) the text message had not been sent;
2) that its content indicated that it was created on October 10, 2016;
3) that the unsent text message was likely to be saved by someone pressing the back arrow in the message editing views;
4) when the draft message is open for editing, a paperclip symbol is visible, which when pressed, enables the attachment of a picture or other to the message.
5) The report confirmed that there was no other document on the mobile phone that might be relevant to the deceased’s testamentary intention in the days immediately prior to and including October 10, 2016

The Australian court followed a decision Lindsay v . McGrath (2016) 2 Qd R 160 at 55 , a decision of the Queensland Court of Appeal that adopted three conditions for the execution requirements of the will to be dispensed with, namely:

1) Was there a document;

2) did that document purport to embody the testamentary intentions of the relevant deceased;

3) did the evidence satisfy the court that, either, at the time of the subject document being brought into being, or at some later time, the relevant deceased, by some act or words, demonstrated that it was his or her then intention that the subject document should, without more on her or his part operate as his or her will?

The court enumerated several facts that the court found stated the deceased testamentary intentions:

1) The text message says at the bottom that was “my will “

2) the message identifies the house and superannuation which are his principal assets, about which he also says” keep all that I have”

3) he refers to “Julie will take her stuff only she’s okay gone back to her ex AGAIN, I’m beaten “

4) he identifies that he has cash in the bank and provides the pin number

5) he identified where he wanted his ashes placed

The court held that the informal nature of the text did not exclude from being sufficient to represent the deceased’s testamentary intentions. The court referred to another decision in Australia where the deceased had written “my will” on a DVD, had discussed his intentions to suicide of the DVD and then was at pains to define what property he owned. Although very informal, the court accepted that the document purported to dispose of that property after his death, and made a declaration under the Australian legislation section 18 of the Succession act ( Mellino v WIlkins (2013) QSC 74.

The court further held that the suicide of the proposed testator does not raise a presumption against testamentary capacity Re Estate of Hodges (1988) 14 NSWLR 698 at 707 and Melino v Wilkins (2013) QS

Wealth Preservation

The concept of wealth preservation basically means that one heir is trying to pass his or her assets on to their heirs successfully without a challenge. The video is detailed. The article is detailed in the sense that five exhaustive areas of law are looked at. There’s various wills issues, various intestacy issues—that’s where there isn’t a will, various issues with respect to trust and under several pros and cons and dealings with respect to how to achieve wealth preservation and how to attack it.

Refusing Inheritance with Disclaimer

What disclaimer means is that if you inherit under a will, no one can force you to actually accept the inheritance. Now, why wouldn’t you want and accept an inheritance? But there are situations where it does exist.

For example, in one particular case, a deadbeat father had not paid child maintenance for many, many years. When his own father in fact died, and the deadbeat was about to inherit a substantial sum of money, he learned that his wife and his children were about to attach on to the inheritance. He accordingly disclaimed the interest in the inheritance just to further punish the wife and children and that right to disclaim was upheld by the courts.

Another benefit of disclaimer can be the introduction of the doctrine of acceleration. For example, if one person benefits for their lifetime and it is to be ultimately turned over to their essential beneficiaries upon their death, they can refuse the inheritance which will accelerate the inheritance of the residual beneficiaries. That can sometimes be advantageous to all parties.

Can Animals Inherit

Can animals inherit?

From the BBC News

While I have not actually researched the issue, I opine that animals  cannot inherit the funds in their own right, but instead can only do so by a trust.

Twenty  years ago I had a case where a single person with no net of kin died suddenly and left the use of her $1 million estate to her 4 cats and 2 dogs.

Cats can live 20 years.

After their death, the estate went to her business partners.

This is called an imperfect trust.

Presumably the law in India must be different to allow a money to inherit?

“Indian monkey set to inherit fortune from ostracised couple Shabista with Chunmun Shabista feeds Chunmun a diet of milk, fruit and home-cooked meals Continue reading the main story Related Stories India monkey ‘wedding ceremony’ held Indian villagers mourn dead monkey Thieving monkey hands out money An Indian couple who were ostracised after their families disapproved of their wedding have decided to leave all their property to their pet monkey. Brajesh Srivastava and wife Shabista told BBC Hindi they were “lonely for many years” before they bought Chunmun the monkey in 2005 for 500 rupees ($8). The couple, who have no children, say they have raised him like a son. Mr Srivastava is Hindu and his wife is Muslim, and inter-faith marriages are still controversial in parts of India. Mrs Srivastava says both their families shunned them after their marriage and that they were lonely until they bought Chunmun. “He was a baby then, less than a month old, and his mother had died after being electrocuted,” she says. She feeds Chunmun a diet of milk, fruit and home-cooked meals. His room has an air-conditioner to keep it cool in the summer and a heater to warm it in the winters. Brajesh Srivastava and wife Shabista The couple say they were “lonely for many years” until “Chunmun came into our lives” In 2010, the couple arranged a lavish wedding for Chunmun to a female monkey named Bitti Yadav. The two monkeys live together at the couple’s home, and have a party for their wedding anniversary every year. Mr Srivastava said his business has improved and the family has seen prosperity ever since they adopted Chunmun. The house in Raebareli town in the northern Indian state of Uttar Pradesh where the Srivastavas live is named Chunmun and the couple talk about the simian with the indulgence of fond parents. “For breakfast he has pomegranate and a glass of milk. At 10am, he has a home-cooked meal of lentils, bread, vegetables and chutney,” Mrs Srivastava says. She says Chunmun went through a phase where he would bite people. “A doctor we consulted said it was illegal to keep a wild animal as pet,” she says. “When we heard that we started crying and told him that Chunmun was like our son. He felt sorry for us and spoke to some officials on our behalf. He also levelled Chunmun’s teeth so that he won’t be able to bite people,” she says. Although some street performers train the simians to entertain people and earn a living through them, correspondents say not many Indians are known to keep monkeys as pets. In a rare case, a woman in the north-eastern state of Tripura was known to have adopted a monkey whom she used to breastfeed.”