Wills Variation: Court Criteria Between Disinherited Adult Children and Second Spouses

Wills Variation: Court Criteria Between Disinherited Adult Children and Second Spouses

R. (J.) v M. (JD) 2016 BCSC 2265 summarized the court criteria will consider when deciding the competing moral claim of a disinherited  adult independent child  and a second spouse who inherited  the entire estate. The adult child had been disinherited and had been estranged from… Read more

Severance of Court Actions Upheld On Appeal

Severance of Court Actions Upheld On Appeal

The Court of Appeal in Johnston v Johnston Estate 2017 BCCA 59 upheld the trial decision found at 2016 BCSC 1388 where an action seeking that a will was invalid, or alternatively if it was valid it should be varied under the wills variation provisions… Read more

"Adopted Out" Child Cannot Contest Biological Parent's Estate Under Wills Variation

“Adopted Out” Child Cannot Contest Biological Parent’s Estate Under Wills Variation

Boer v Mikaloff Estate 2017 BCSC 21 confirmed that an “adopted out” child cannot contest the will of the biological parent’s estate under S.60 WESA (the wills variation provision) when it answered the following posed question negatively: Does a child who is adopted by other… Read more

Executor Added After Expiration of Wills Variation Limitation

Executor Added After Expiration of Wills Variation Limitation

 Under the provisions of section 60 WESA, an action under the wills variation provisions must be commenced within 180 days of the grant of probate or the action is statute barred. In the 1987 decision Cowan v Cowan 17 BCLR ( 2d) 114, the plaintiff… Read more

Gifts to Witnesses: S. 43 WESA

Gifts to Witnesses: S. 43 WESA

Witnesses of a will and declares that such gifts are void, unless the court is satisfied that the will maker intended to make the gift to the person even S. 43 of  WESA governs the issue of gifts to though the beneficiary or his or… Read more

"Survive By Five Days"

“Survive By Five Days”

S  10 of WESA provides for when a person does not survive a deceased person by five (5) days or longer when provided for in an instrument(  ie a will) is conclusively deemed to have died before the deceased persona for all purposes and thus will… Read more

Abuse, Neglect and Wills Variation

Abuse, Neglect and Wills Variation

In my four decades of experience most wills variation claims  bring with them an individual or even sibling collective  story of abuse, neglect, and  other dysfunctions that result in a disinheritance to top it all off. It is settled law that the wills variation act ( now… 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

Fertility and WESA: Is This Reproductive Matter Property?

Fertility and WESA

A deceased husband’s frozen sperm at a fertility centre was declared to be personal property under WESA and previous case law and thus could be inherited by the widow on an intestacy. The court in KLW v Genesis Fertility Centre 2016 BCSC 1621 ordered to release of… 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

Assets Passing Outside of the Estate

Assets Passing Outside of the Estate

Assets Passing – Probably most people in North America die holding assets that pass from their name to others or their estate that pass both ” inside” and “outside” of the estate. A deceased’s will only distributes assets that were personally owned by the deceased at… Read more

Interim Distribution Ordered

Interim Distribution Ordered

An interim distribution of $250,000  of his maximum estate entitlement of $460,000 was ordered to a 76 year old former spouse of the deceased who needed funds in Davis v Burns Estate 2016 BCSC 1982. The application was made  under section 155 of the Wills,… Read more

Section 58 WESA: Journal Not a Will

Section 58 WESA: Journal Not a Will

Re Hadley Estate 2016 BCSC 765 held that an unwitnessed  journal entry written by the deceased in her daily entry and stated to be  ” my last will”  will, was not in fact her last valid will under the curative provisions of section 58 WESA. This… Read more

Children Defined Under S.60 WESA

Children Defined Under S.60 WESA

The decision of Sari v Sari 2015 BCSC 1865, while essentially an application for costs, reviews the law as to what the definition of a child or children is for the purposes of having the necessary standing to bring an action under S 60 WESA to… Read more

Wills Variation: Appealing a Judge's Exercise of Discretion

Wills Variation: Appealing a Judge’s Exercise of Discretion

Judges have a broad discretion in their judicial interpretation of wills variation cases and generally speaking, a litigant cannot appeal finds of fact made by the trial Judge after exercising that discretion. Appeal court are reluctant to substitute their discretion for that of the trial… Read more