Tag: Wills Issues

Kelly v Bell 2012 BCSC 841 is a  wills variance case ( WESA S 60)  where the court determined that the deceased did not intend to provide  %88 to one child and only %12 to another simply due to a dramatic increase in the value of a specific bequest to one of two children, and near doubled the award to the daughter.

 

This case involved one of historical friction between the deceased and her daughter, and greater contribution by the son , for the benefit of the deceased, and a greater need on the part of the defendant son for  future financial security.

The deceased had two children.

She left her house and half of her estate residue to the defendant son who had limited employment opportunities, and who was her caregiver.

She left the other one half of the residue to her plaintiff daughter, who had her own family, and who was financially comfortable.

When the testatrix reviewed her will in 2006, her house had a value of $1 million, and the residue had a value of $860,000.

At the time of her death two years later, the house had an assessed value of $2 million, and the residue had declined to just under $700,000.

The court held for the plaintiff and varied the will to the extent that the court found that the testatrix intended to divide her estate on the basis of 2006 values.

The court found that the deceased did not intend the daughter to receive only 12% as she would based on the 2008 values.

The court found that the daughter received 23% of the share of her estate as of 2006, and thus very the will to provide her with the same percentage based on the 2008 increased value, all of which was in the house bequeathed  to the son.

disinherited.com agrees with the reasoning and outcome of this decision.

The daughter may have been a thorn in her mother’s side, but the court was clearly correct in coming to the conclusion that the daughters behavior did not just entitled her so as to give her brother 90% of the estate.

Given the contributions and the relative financial disparity between the parties, together with the caregiver versus thorn in side, a variation of approximately 3/4 to 1/4 is well within the range of a proper outcome under these circumstances.

Digital executors are actually increasingly vital as ones “personal history on social media” is immortalized and sought after  death.

Trevor Todd was contacted by a local television station for the purpose of having an interview about the sudden “issue of the day “that was” Do you really need a special executor to protect your “digital afterlife, and who owns it after you die”?

A few television interviews were scheduled only to be canceled due to more pressing news such as a lost cat.

The issue seemed to disappear just as quickly as it had apparently become urgent.

I believe it started with the publication of a book entitled ” Your Digital Afterlife: When Facebook, Flickr and Twitter are your Estate, What is your Legacy? By John Romano and Evan Carroll.

One of the pressing points made by their book is to make sure that you name a digital executor to handle all of your digital assets.

The book apparently arose out of the personal experiences that the Romano  family, whose  close friend died leaving a robust online presence, only to find that estate litigation arose as to who owned the blogs, and whether or not they should be preserved ,as opposed to permanently removed from the Internet.

 

It would appear that the followers of hugely popular blogs feel that they have some form of legal interest in preserving the information contained therein.

I must admit that when I was asked,it simply reminded me of the first time lawyers realized that airline travel points were  valuable, but were an asset that existed somewhere else other than in a physical form.

That was 20 years ago.

As one can well imagine, there is a wealth of such Internet content that is valuable in more ways than monetary.

In fact ,in this digital age, people are accumulating assets digitally, with no trace of physical evidence of these assets, when these assets have traditionally had a physical existence in past times.

For example, photos, businesses, newsletters, and bank statements all existed in the physical form that were taken care of with traditional filing.

With the advent of social media and the Internet, and the movement for paperless offices and homes, together with cloud technology, more and more of our personal belongings, businesses and personal lives are now shared on the Internet.

Many people manage their finances on the Internet, through Internet banking, by paying their bills, doing money transfers, and receiving statements all online.

In fact, an increasing number of people make their living off the Internet,  through their websites and blogs.

 

The  legal question is – what happens to all of these digital assets after a person passes away?

 

The answer like most legal answers is it depends.

in most situations, your digital assets are simply another form of assets that form part of your estate,that will be distributed through your will.

 

For the purpose of estate planning, is more important in the writer’s opinion, that one keeps backing up your data.,and and providing you your executor and power of attorney with printed copies of banking records and other such valuable documents,

 

That is more important ,and once done you can then consider whether you need to or not,  appoint a specific person as digital executor and entrust that person with your  digital assets upon your death.

 

 

Most of the large social media outfits have a policy with respect to digital assets, and sos in legal terms, it often comes down to a matter of contract between you and the service provider, as to who owns the content after death.

 

As disinherited.com understands it, Facebook’s new policy is to provide the following options:

1. You can make a request as a close family member or executor to Facebook to memorize the deceased person’s account so that only friends can see the profile and located in the search. The profile will remain active for friends to post memories and condolences;

2. You can make a request as a close family member or executor to Facebook to delete the user account, removing the profile and all associated content from Facebook so that nobody can view it.

3. You can also download the account contents of the deceased, if prior authorization in a will or court order is present.

 

As a practical matter of advice, unless you are almost a professional writer or a very serious blogger, or someone who derives their business income from the Internet, disinherited.com does not opine that you need a digital executor to protect your digital assets after your passing.

More importantly, the practical concern is that you provide your Internet identification and passwords to your executor so that he or she can determine your online life, and access financial records and the like.

Similarly one should also provide his or her power of attorney with the same identification number and passwords, in case you are incapacitated and unable to provide same

Will Invalid

Calderaro v Meyer 2011 ONSC 5395 is an Ontario case where a will invalid as the deceased did not have knowledge and approval of the wills contents when it was executed.

The testator died in 2009.

Prior to that he lived in a common law relationship from Febraury 2005-February 2007 on property that the deceased had purchased.

After they separated the testator and his former partner signed an agreement that provided that after he died the property would become hers.

The testator suffered a stroke in February 2009 and his condition went rapidly downhill.

He subsequently sought to executre a will, which made his former partner the beneficiary of the same property.

He gave his wife the reside of the estate.

The testator was instructed to hold his mother’s hand and squeeze it to confirm that he understood and approved the terms of the will that was read to him.

The former partner brought an action for a declaration that the will was valid, or alternatively, the agreement for the land was binding.

 

Both claims were dismissed.

 

The will was invalid as the testator did not “know and approve ” of the contests of the will when he executed it, and thus it was invalid.

There was no evidence led by the mother that he understood the provisions of the will that were read to him

 

The court held there three criteria that must be established by the propounder of the will, who has the onus of proving its validity:

 

A) That the will was executed;

B) That the tesator had knowledge and approval of the will;

C) That the testator had the requesite capacity to make a will.

 

The Court found that due to his medical situation the requiements of “knowledge and approval” and testamentary capacity merged.

Hall v Bennett Estate 50 ETR (2d) 72   was followed:

The material time in determining testamentary capacity is when the testator signs the will.

The test to be met by the propounder is high

The propounder must establish not only that the testator was able to communicate his or her testamentary wishes, but also that those wishes are the product of  “sound and disposing mind”

Holvenstot v Holvestot Estate 2012 BCSC 923 is an excellent example of the wills variation claim brought by a disinherited son of the deceased.

The claim  was dismissed for some of the valid and rational reasons that the deceased stated as reasons for not having a moral obligation to provide for her son.

The deceased left a long list of complaints that she had with her son to support her reasons for his disinheritance, that included previous court transcripts where she told the court that she wanted to move away from her son and for him “not to bug her anymore”.

The plaintiff alleged  that the mother had a moral obligation to “make adequate provision” for him in her will.

He alleged that the size of the mother’s estate was adequate for such a provision, and no circumstances exist which would negate a moral obligation.

In particular, the plaintiff alleged in effect, that he did not commit any (or any significant) blameworthy conduct toward the mother, with the result that her reasons for disinheriting him are either untrue or not rationally connected to her decision to disinherit him.

Much of the judgment is spent by the court reviewing each of the reasons given by the deceased for disinheriting her son, with the court rejecting some reasons and upholding others.

The court found as a fact that, the plaintiff commenced an action against his mother to have her declared mentally incompetent. The action failed, and the mother was declared competent.

The mother was required to sue the plaintiff in order to prevent him from getting ownership of two acres of her land and to compel him to return items of her property.

All of this litigation cost the mother a considerable amount of money and caused her much emotional upset.

The court found the  reasons to be  true.

In my opinion, these reasons are rationally and logically connected to the mother’s decision to disinherit her son.

As I see it, a judicious parent, applying contemporary community standards in the circumstances existing at the time of the mother’s death, could reasonably have decided to disinherit the plaintiff, for these reasons alone.

Of course, there are several other reasons that I have found were true and were relied on by the mother. They only strengthen the conclusion that the court should defer to the mother’s decision to disinherit her son.

The general principles which apply in an action of this kind were set out by the Supreme Court of Canada in Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807. It was established that a testator may owe a legal obligation or a moral obligation to his or her independent adult child. A legal obligation will generally not arise unless the child contributed to the estate in some way. In the present case, it is conceded that the mother had no legal obligation to the plaintiff to make provision for him in her will.

In Tataryn v. Tataryn Estate at paragraph 31, in discussing a testator’s moral obligation, Madam Justice McLachlin stated in part, as follows:

…if the size of the estate permits and in the absence of circumstances which negate the existence of such an obligation [i.e., a moral obligation], some provision for such children should be made .

The circumstances which can negate the existence of a moral obligation include the reasons relied on by a testator, where those reasons are valid and rational. In Kelly v. Baker, the Court of Appeal defined the test for assessing reasons given by a testator in this way (at paragraph 58):

The law does not require that the reason expressed by the testator in her will, or elsewhere, for disinheriting the appellant be justifiable. It is sufficient if there are valid and rational reasons at the time of her death – valid in the sense of being based on fact; rational in the sense that there is a logical connection between the reasons and the act of disinheritance.

the decision of the Court of Appeal in Hall v. Hall, 2011 BCCA 354. At paragraph 43, speaking for the court, Madam Justice Neilson stated in part as follows:

[43]      … To succeed in his challenge to her will, Tony must establish these reasons were false or unwarranted: Bell v. Roy Estate …. In considering that proposition, it is not necessary to find the reasons were justifiable. It is enough if they were factually valid, and rational in the sense of having a logical connection to the act of disinheritance: Kelly v. Baker

[44) Having regard to this re-statement of the law in Hall v. Hall, I think it is questionable whether the reasoning in the earlier decisions of this court which I have discussed, should be followed. If I am wrong, then I would favour using the “judicious parent” test in deciding the issue of whether a “true” reason of a testator for disinheriting a spouse or child, is also rationally connected to the decision to disinherit. I would apply a test similar to that stated by Mr. Justice Sewell in paragraph 70 of LeVierge v. Whieldon (and not as stated by him in paragraph 61). That is, in deciding whether a testator’s reason is rationally connected to the decision to disinherit, it would be enough that a judicious parent could have made that decision, based on the reasons that existed. There should be no requirement that a judicious parent would have made the decision to disinherit in the same circumstances. In my view, if it were otherwise, the court would be deciding, in effect, whether the reasons were objectively “justifiable.”

In Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807 [Tataryn] the Supreme Court of Canada clarified the law of wills variations and held that a will may be varied under the WVA where there are legal or moral obligations to provide maintenance and support for a spouse or child.

 

In Tataryn, the testator husband and his wife had been married 43 years and, through their joint efforts, had amassed a home (in the testator’s name), a rental property and bank funds. There were two adult sons, J. and E. The testator disliked J. (for reasons that were not apparent). He feared that if he left his estate to his wife, she would pass it on to J. By his will, the testator gave E. full title to the rental property and created a discretionary trust dealing with the residue of the estate, including the home. Under the trust the wife was the beneficiary of a life interest in the home. E. was the trustee and residuary beneficiary taking full title to the home upon the wife’s death. J. received nothing under the will or the trust it created.

The trial judge in Tataryn revoked the bequest of the rental property to E. and granted the

wife a life interest in that property; directed that J. and E. each receive an immediate gift of $10,000 out of the residue of the estate. The trial judge also directed that when the wife died the residue of the estate, including the home and the rental property, was to be divided one-third to J. and two-thirds to E.

The wife’s appeal was dismissed by the British Columbia Court of Appeal: Tataryn v.

Tataryn Estate (1992), 74 B.C.L.R. (2d) 211 (C.A.).

The wife successfully appealed to the Supreme Court of Canada.

The court granted the sons an immediate gift of $10,000 each. The wife was granted title to the family home, a life interest in the rental property and the entire residue of the estate after payment of the immediate gifts to the sons. Upon the death of the wife, the sons were entitled to the rental property (one-third to J.; two-thirds to E.)

In Tataryn, McLachlin J. (as she then was) discussed the twin interests protected by the

WVA. McLachlin J. described the “main aim” as the “adequate, just and equitable provision for the spouses and children of testators” and that at the very least, that means preventing spouses and children from becoming a charge on the state (Tataryn at 815). However, said McLachlin J., it is equally

reasonable to suppose that the legislators were concerned with wives and children receiving a just and equitable share of the family wealth even in the absence of demonstrated need.

The second interest protected by the WVA is testamentary autonomy:

The Act did not remove the right of the legal owner of property to dispose of it upon death. Rather, it limited that right. The absolute testamentary autonomy of the 19th century was required to yield to the interests of spouses and children to the extent, and only to the extent, that this was necessary to provide the latter with what was “adequate, just and equitable in the circumstances” {Tataryn at 815).

[Emphasis in original]

The court went on to note that what is “adequate, just and equitable” must be judged by contemporary standards. Current standards require that both legal and moral societal norms be considered:

If the phrase “adequate, just and equitable” is viewed in light of current societal norms, much of the uncertainly disappears. Furthermore, two sorts of norms are available and both must be addressed. The first are the obligations which the law would impose on a person during his or her life were the question of provision for the claimant to arise. These might be described as legal obligations. The second type of norms are found in society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards. These might be called moral obligations, following the language traditionally used by the courts. Together, these two norms provide a guide to what is “adequate, just and equitable” in the circumstances of the case (Tataryn at 820-821).

With respect to variation on moral grounds, the court in Tataryn observed that dependent adult children are entitled to such consideration as the size of the estate and the testator’s other obligations may allow. With respect to independent adult children, the court said:

While the moral claim of independent adult children may be more tenuous, a large body of case law exists suggesting that, if the size of the estate permits and in the absence of circumstances which negate the existence of such an obligation, some provision for such children should be made… (Tataryn at 822-823) (emphasis added).

How are conflicting claims to be balanced against each other? Where the estate permits, all should be met. Where priorities must be considered, it seems to me that claims which would have been recognized during the testator’s life – i.e., claims based upon not only moral obligation but legal obligations – should generally take precedence over moral claims. As between moral claims, some may be stronger than others. It falls to the court

to weigh the strength of each claim and assign to each its proper priority……. Any moral

duty should be assessed in the light of the deceased’s legitimate concerns which, where the assets of the estate permit, may go beyond providing for the surviving spouse and children (Tataryn at 823) (emphasis added).

I add this. In many cases, there will be a number of ways of dividing the assets which are adequate, just and equitable. In other words, there will be a wide range of options, any of which might be considered appropriate in the circumstances. Provided that the testator has chosen an option within this range, the will should not be disturbed. Only where the testator has chosen an option which falls below his or her obligations as defined by reference to legal and moral norms, should the court make an order which achieves the justice the testator failed to achieve. In the absence of other evidence a will should be seen as reflecting the means chosen by the testator to meet his legitimate concerns and provide for an ordered administration and distribution of his estate in the best interests of the persons and institutions closest to him. It is the exercise by the testator of his freedom to dispose of his property and is to be interfered with not lightly but only in so far as the statute requires. (Tataryn at 824) (emphasis added).

 

McLachlin J. concluded that the testator’s only legal obligation was to his wife. Further, the

wife had the highest moral claim on the testator. Both claims were very strong.

 

By contrast, the claims of the sons were not strong:

The remaining moral claims on the testator are those of the two grown and independent sons. The testator gave nothing to one, everything to the other, subject to his provision of money to Mrs. Tataryn. The moral claims of the sons cannot be put very high. There is no evidence that either contributed much to the estate (Tataryn at 825).

Pre-Nuptial Agreement

Martinson v Anniko 2009 BCSC 14 is illustrative of where a marriage agreement  is ultimately  “fair”, it will be held to bar a spouse’s Wills Variation claim brought after the death of a spouse.  The Court was also critical of the steps taken by the surviving spouse in secretly severing the joint tenancy home, that she would ahve inherited had she not severed

The Plaintiff stood to inherit the entire matrimonial home but severed joint tenancy and gifted other monies received from the Testator to her daughters. These were her unilateral decisions and the court found there was no inequity on the part of the Testator.  

 

 The Testator and the Plaintiff marriedfor the second time  later in life.

During the period beginning immediately prior to their marriage and until the Testator’s death, the two signed four agreements regarding their respective property:

1. a pre-nuptial agreement in 1985 stipulating that the property each brought to the marriage would remain separate;
2. an amendment signed in 1986 stipulating that the 1985 agreement would have the force of law under s. 48 of the Family Relations Act (“FRA”), and would govern the ownership of respective assets in the event of divorce, death, or separation. The amendment also provided that the agreement as amended released both from any claim made by the other under either the Estate Administration Act (“EAA”) or the Wills Variation Act (“WVA”);
3. a second amendment to the original 1985 agreement signed in 1988 stating that the couple’s residence in Victoria, BC was purchased with the sole assets of the Testator and was held in joint tenancy as a matrimonial home. The amendment also stated that the Plaintiff held her interest in the home in trust for the Testator, who was the sole beneficial owner. Finally, it provided that if the Testator predeceased the Plaintiff, the Plaintiff would hold the entire property in trust and would sell the property and pay the proceeds of sale to the Testator’s family;
4. a third and final amendment to the original 1985 agreement made in 1995 that terminated the trust arrangement created in the second amendment and declared that the Plaintiff and the Testator held the matrimonial home as joint tenants.

The Testator made three Wills between 1996 and 2005, each providing something for the Plaintiff and her children from a prior marriage in recognition of s. 2 of the WVA.

The Testator’s final Will left nothing for the Plaintiff or her children from a prior marriage, but did provide a $50,000 bequest to the Plaintiff’s granddaughter.

The entire residue of the Testator’s estate went to his nephew, the Defendant.

The Testator noted in the Will that the Plaintiff would be provided with the matrimonial home, some jointly held investments, and would also receive some inter vivos gifts.

However, the Testator was unaware that the Plaintiff had already severed the joint tenancy on the matrimonial home and registered her half interest jointly in her and her children’s names. The Testator died and the Will, leaving the entire residue of his estate to his nephew.

The Plaintiff applied to vary the will but her claim was  dismissed.

 

The Court held that the Testator fulfilled his legal and moral obligations to the Plaintiff.

Marital agreements have the force of law under Section 65 of the Family Relations Act

 

The act also allowed  for the variation of marriage agreements where they were inequitable, but the court found no such inequity in the present case.

The successive Wills executed by the Testator between 1996 and 2005 made decreasing provision for the Plaintiff, with justifications citing the increase of value of the marital home, inter vivos gifts made by the Testator, and the growth in jointly-held investments.