Court Discretion In Wills Variation Claims

Court Discretion In Wills Variation Claims

In wills variation cases now brought under S. 60 WESA , the judge has “entire discretion” in deciding pro or against a claimant on its findings of fact. In Swain v Dennison 1967 SCR 7 the Supreme Court of Canada held that the jurisdiction of… Read more

Court Overturns Man's Will on Moral Grounds

BC Court Overturns Man’s Will on Moral Grounds

The British Columbia Court over turned and varied a will where his four daughters had been left with nothing. William Werbenuk died more than two years ago with just enough money in the bank to pay for his funeral. The 86-year-old widower’s will gave all… Read more

Adoption Purposes

Adoption Purposes

Adoption is for all purposes. I advised a legal enquiry today that he could not claim against the estate of his natural father (“birth parent”) since he had been adopted by another party and that for estate claims, his adoption was for “all purposes”. Section 3 WESA re Adoption… Read more

Disabled Adult Succeeds Wills Variation

Disabled Adult Succeeds Wills Variation

Willott v. Willott Estate 1997 CarswellBC 2016, [1997] B.C.J. No. 2073, 20 E.T.R. (2d) 211 is a 1997 wills variation action where a deceased parent’s estate was required to pay additional monies to a disabled son who unable to work, survived on a small disability… Read more

Will Varied to Give Daughter Entire Estate

Will Varied to Give Daughter Entire Estate

Hagen-Bourgeault v. Martens 2016 BCSC 1096 varied a will (S. 60 WESA) to give a 25 year old daughter with two young children on social assistance, the entire estate of $2,200 per month until 2025, instead of her husband of two years who was well… Read more

Interim Payments Under Wills Variation

Interim Payments Under Wills Variation

Grant v Grant estate 1997 Carswell BC 3773 allowed a widow in need of funds to receive interim payments under the wills variation provisions of WESA. The Grant and Hecht cases are only a few reported cases of the ability to apply to court for an… Read more

Public Policy Protects Wills Variation Claims

Public Policy Protects Wills Variation Claims

If a will contains a penalty provision, known as a forfeiture clause, threatening to impose a penalty upon a beneficiary if a will is contested, then in that event,  wills variation claims are protected by public policy so that such a clause is not enforceable in… 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

Burden of Proof In Mental Capacity

Burden of Proof In Mental Capacity

Becker v Becker 2016 BCSC 487 nicely summarizes much of the law relating to mental capacity aka testamentary capacity including the law re the burden of proof in mental capacity cases.  THE  LAW 51      The burden of proving testamentary capacity is on the party propounding… 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

Wills Variation and Discretion

Wills Variation and Discretion

One of the difficulties in advising clients in wills variation cases is that under the WESA provisions relating to the variance of wills, the trial judge has an absolute discretion in his or her award, if any, under the act. The five panel appeal decision… Read more

Percentage Awards In Wills Variation Claims Favoured

Percentage Awards In Wills Variation Claims Favoured

The Courts prefer to use percentage awards in wills variation claims rather than specific sums. One of the major reason is the fluctuation in value of  some assets over time. The recent dramatic rise in lower mainland property values has presented a mild dilemma to… Read more

The Legal Obligation to Provide For Infants

The Legal Obligation to Provide For Infants

Heatherfield ( Litigation Guardian of) v Heatherfield Estate 2015 BCSC 505    is one of the few reported cases as to of what constitutes adequate provision for a minor, dependent child beyond the decision in Cameron (Public Trustee of) v. Cameron Estate (1991), 41 E.T.R. 30 (B.C.S.C.) [Cameron]…. Read more

Judgement Does Not Sever Joint Tenancy

Will Drafters File Privileged In Wills Variation Claims

In an unreported decision, Brown v Terins et al, 20150505, Madam Justice Fisher refused an application brought by the plaintiffs in a wills variation action for access to the will drafters file so as to determine inter alia, the reasons for the disinheritance, so as… Read more