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

Wills Variation: Elderly Common Law Spouse

Wills Variation: Elderly Common Law Spouse

Mars v Blais 2011 BCSC 1714 involved a 91 year old widow who brought a wills variation action ( now S. 60 WESA) against the estate of her late common law partner of 9 years. The wills variation  action was prior to WESA but would… Read more

S 60 WESA (Wills Variation): Second Marriages/Families

S 60 WESA (Wills Variation): Second Marriages/Families

Wong v Soo 2015 BCSC 1741 involves the increasingly familiar fact scenario of second or third marriages resulting in the death of one spouse and leaving his or her entire estate to the children of the first marriage to the exclusion of the surviving spouse…. Read more

S. 52 WESA: Undue Influence Presumption re Dependence

S. 52 WESA: Undue Influence Presumption re Dependence

Positions of dependence or domination are frequently involved in estate litigation and typically relate to caregiving or predator type behavior that ultimately takes advantage of  feeble mind. Elder Estate v Bradshaw 2015 BCSC 1266 involved a contested court action re  the validity of the deceased’s… Read more

S. 60 WESA (Wills Variation) Explained

S. 60 WESA (Wills Variation) Explained

I was counsel for the plaintiffs in both the WESA case Brown v Pearce Estate 2014 BCSC 1402 which relied upon the law as set out in detail in McBride v Voth estate 2010 BCSC 443 in which I was also counsel, and both cases… 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