Clauses to Revoke Bequests Will Contested Under WESA Not Valid

Forfeiture clauses in wills variation actions are not valid as a defence

Testators sometimes attempt to intimidate beneficiaries from contesting the will, by inserting punitive clauses called forfeiture clauses, purporting to take away a benefit given under the will, if the will is challenged.

These clauses may be enforceable in certain situations ( see article entitled Forfeiture Clauses in Wills on this website under articles), but they are NOT enforceable with respect to Wills variation actions.

Public policy dictates that spouses and children of a deceased should not be prevented from bringing a wills variation action.

This principle was confirmed in Kent v McKay 1982 BCJ 67  

The testator  provided in paragraph 9 of his will that:

I HEREBY WILL AND DECLARE that if any person who may be entitled to any benefit under this my Will shall institute or cause to be commenced any litigation in connection with any of the provisions of this my Will other than for any necessary judicial interpretation thereof or for the direction of the Court in the course of administration all benefits to which such person would have been entitled shall thereupon cease and I HEREBY REVOKE all said benefits and I DIRECT that said benefits so revoked shall fall into and form part of the residue of my Estate to be distributed as directed in this my Will; PROVIDED that if such person whose benefits are so revoked would otherwise share in the residue of my Estate his or her benefits so revoked shall be divided equally among the remaining shares into which the residue of my Estate may be divided or as if such person had predeceased me and had left no issue surviving me.

The Court followed the Australian decision of In the Will of Gaynor, deceased 1960 VLR 64, where a similar clause in a will was found void on the basis that offended public policy.

“17 It cannot be denied with respect that the intent of the Legislature in creating the Wills Variation Act (supra) is to ensure adequate maintenance and support for specified individuals. It is a matter of public policy that support and maintenance be provided for those defined individuals and it would be contrary to such policy to allow a testator to circumvent the provisions of the Wills Variation Act by the creation of such as paragraph 9. It is important to the public as a whole that widows, widowers and children be at liberty to apply for adequate maintenance and support in the event that sufficient provision for them is not made in the will of their spouse or parent. I have concluded that the intent of clause 9 was to prevent any such application. It is not necessary for the purposes of this decision to conjure up scenarios wherein inequitable and distressing results are created for a widow, or children by being deprived of maintenance and support while an “undeserving” beneficiary takes under a will.

Clause 9 therefore is void as against public policy.

Deceased Plaintiff Met On Holidays Found to Be Common Law Spouse

The Plaintiff was born in Philippines.

1) was the plaintiff a common law spouse?

2) if so, what was her wills variation action worth out of a $600,000 estate?

In June 2005, the plaintiff was on vacation in Australia when she met the testator.

She and he  agreed that the plaintiff would apply to come to Canada and that the testator would sponsor her as his common-law wife.

In July 2006, the plaintiff moved in with the  testator until her visitor’s visa expired .

In July 2007, the  plaintiff came back to Canada and returned to live with the testator.

On November 7, 2008, the testator died of a heart attack, leaving a  will, but made no provision for the plaintiff.

His estate was $600,000.

The  Plaintiff brought an application for a share in the testator’s estate under the Wills Variation act.

Her Application was granted and she  was entitled to $100,000 from the  testator’s estate on the basis that the  Testator owed a legal duty to plaintiff.

The  Court found that the Plaintiff and the testator were living as spouses at time testator passed away, follwoing the BCCA case of Gostlin v Kergin (1986) 3 BCLR (2d) 264 that is the leadidng case in BC on the issue of common law marriages.

The  Plaintiff would have had right to claim for maintenance and share of property had parties separated.

The matter would have been examined on the basis that there was a valid legal obligation to consider.

The Court followed the two chestnuts of Tataryn and Clucas, as follows:

The governing authority with respect to such applications is found in the decision of the Supreme Court of Canada in Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807. There the Court provided comprehensive direction with respect to the approach to be taken to the application of the Act. A succinct statement of the general principles that will ground the application is set out in the final submissions of the defendants:

a.         The Wills Variation Act is an attempt to balance the protection of the interests of
children and spouses of the testator on the one hand with testamentary autonomy on the
other, (pages 11-12)

b.          Need, although a factor in this balance, is not a requirement for Wills Variation
relief, (page 16, 2nd para)

c.          A Wills Variation analysis requires a determination, firstly of whether there is a
“legal duty” which the testator has towards his wife or children. After assessment of the
legal duties, the court will review the “moral duties” of the testator towards his wife or
children, (pages 18-21)

d.         If the testator chose an option within the range of what is “adequate, just and
equitable”, the Will will not be disturbed. It will be interfered with only in so far as the
statute requires, (page 21)

[80]    A further very helpful discussion of the issue, including recognition of other relevant

authorities, is found in the decision of Satanove J. in Clucas v. Clucas Estate (1999), 25 E.T.R.

(2d)175(B.C.S.C):

[12]     Many cases have been decided under the Wills Variation Act. The considerations governing the court’s decisions have evolved over time and there is a fairly comprehensive set of competing principles to which effect must be given. I have endeavoured to summarize these as follows:

  1. The main aim of the Act is the adequate, just and equitable provision for the spouses and children of testators. (Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807)
  2. The other interest protected by the Act is testamentary autonomy. 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 insofar as the statute requires. {Tataryn, supra)
  3. The test of what is “adequate and proper maintenance and support” as referred to in s. 2 of the Act is an objective test. The fact that the testator was of the view that he or she adequately and properly provided for the disinherited beneficiary is not relevant if an objective analysis indicates that the testator was not acting in accordance with society’s reasonable expectations of what a judicious parent would do in the circumstance by reference to contemporary community standards  Walker v. McDermott, [1931] S.C.R. 94; Price v. Lypchuk Estate (1987), 11 B.C.LR. (2d) 371 (C.A.); Dalzielv. Bradford etal. (1985), 62 B.C.LR. 215 (B.C.S.C.))
  1. The words “adequate” and “proper” as used in s. 2 can mean two different things depending on the size of the estate. A small gift may be adequate, but not proper if the estate is large. {Price v. Lypchuk Estate, supra)
  2. Firstly, the court must consider any legal obligations of the testatrix to her spouse or children and secondly, the moral obligation to her spouse or children. (Tataryn, supta)
  3. The moral claim of independent adult children is more tenuous than the moral claim of spouses or dependent adult children. But if the size of the estate permits, and in the absence of circumstances negating the existence of such an obligation, some provision for adult independent children should be made. (Tataryn, supra)
  4. Examples of circumstances which bring forth a moral duty on the part of a testator to recognize in his Will the claims of adult children are: a disability on the part of an adult child; an assured expectation on the part of an adult child, or an implied expectation on the part of an adult child, arising from the abundance of the estate or from the adult child’s treatment during the testator’s life time; the present financial circumstances of the child; the probable future difficulties of the child; the size of the estate and other legitimate claims. (Dalziel v. Bradford, supra and Price v. Lypchuk, supra)
  5. Circumstances that will negate the moral obligation of a testatrix are “valid and rational” reasons for disinheritance. To constitute “valid and rational” reasons justifying disinheritance, the reason must be based on true facts and the reason must be logically connected to the act of disinheritance. (Bell v. Roy Estate (1993), 75 B.C.L.R. (2d) 213 (B.C.C.A.); Comeau v. Mawer Estate, [1999] B.CJ. 26 (B.C.S.C); and Kelly v. Ba/cer(1996), 15 E.T.R. (2d) 219 (B.C.C.A.))
  6. Although a needs/maintenance test is no longer the sole factor governing such claims, a consideration of needs is still relevant. (Newstead v. Newstead ^996), 11 E.T.R. (2d) 236 (B.C.S.C.))

[81]    The proper approach to the determination of the adequacy of the provisions made by the Testator was explained in Tataryn, at 820-821:

If the phrase “adequate, just and equitable” is viewed in light of current societal norms, much of the uncertainty 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.

Presumptions of Resulting Trust and Undue Influence in MB Case

Presumptions of Resulting Trust

The deceased’s mother died intestate.

At date of death, a number of monies were in joint accounts bearing names of deceased,daughter L and granddaughter R

L took more interest in deceased than did daughter M and cared for her during last years of her life

The deceased and M were not estranged , while the relationship between L and M ( the sisters) was distant.

M was happily married and financially secure, while L was not

M as administratrix of estate brought action for monies in joint accounts to accrue to deceased’s estate.

The Court  allowed the action as monies held in joint accounts were held on resulting trust for deceased’s estate, and there was a presumption of undue influence that was not rebutted.

L was unable to establish that the joint accounts were gift from deceased.

A Presumption of undue influence arose because L had opportunity to influence deceased .

The deceased was elderly with physical disabilities and depression, and lived in L’s home .

The presumption of undue influence was not rebutted .

Historically, there was equality of treatment by deceased and her husband towards daughters .

L’s ill will toward M may have influenced deceased’s feelings toward M.

L was involved with all of deceased’s investment transactions.the deceased did not sign many documents relating to joint accounts.

Without evidence that deceased was independently advised of these transactions, it was not assumed that deceased intended that one daughter was to be disinherited by them .

The Courts’ analysis is as follows. Besides the two Supreme Court of Canada cases, they also cited an American decision, which is quite rare in Canadian law.

The law regarding the use of a joint account as a method of devising property upon a donor’s death has recently received the attention of the Supreme Court of Canada in the case of Pecore v. Pecore, 2007 SCC 17 (S.C.C.), and Saylor v. Madsen Estate, 2007 SCC 18 (S.C.C.). Essentially, the basic principles are that where the other joint holder is an adult child of the person who is providing the monies, the opening of the account is to be characterized as a gift made at the time that the monies are placed into the account. Since they are a gift, prima facie, the monies are deemed to be the subject of a resulting trust back to the donor unless the donee can demonstrate on a balance of probabilities that the donor intended the monies to be a gift. It essentially boils down to a question of the donor’s intent and whether the donee has overcome the onus of proof. The proof of intent would need to include the existence of a desire on the part of the donor that the monies are to accrue to the donee upon the donor’s death, rather than simply a desire that the donee only administer the funds during the donor’s life.

” 29     There is another presumption that may enter into the mix in this case. That is the presumption which is applicable to gifts made in circumstances where the donee has the opportunity to unduly influence the mind of the donor. This presumption was set out in the judgment of Wilson J. in the case of Goodman Estate v. Geffen, [1991] 2 S.C.R. 353, [1991] S.C.J. No. 53 (S.C.C.). In that case, Wilson J. outlined the need to examine first the relationship that existed between the donor and the donee. If that relationship allowed for an opportunity on the part of the donee to influence the donor, then a presumption of undue influence arises. As to the degree of influence, Wilson J. said, at para. 40:

It seems to me rather that when one speaks of “influence” one is really referring to the ability of one person to dominate the will of another, whether through manipulation, coercion, or outright but subtle abuse of power.

30     Wilson J., further went on to say:

45 Once the plaintiff has established that the circumstances are such as to trigger the application of the presumption, i.e., that apart from the details of the particular impugned transaction the nature of the relationship between the plaintiff and defendant was such that the potential for influence existed, the onus moves to the defendant to rebut it. As Lord Evershed M.R. stated in Zamet v. Hyman, supra, at p. 938, the plaintiff must be shown to have entered into the transaction as a result of his own “full, free and informed thought”. Substantively, this may entail a showing that no actual influence was deployed in the particular transaction, that the plaintiff had independent advice, and so on. Additionally, I agree with those authors who suggest that the magnitude of the disadvantage or benefit is cogent evidence going to the issue of whether influence was exercised.

31     The reasoning for such a presumption is to ensure that people in dependent circumstances are not taken advantage of by those upon whom they are dependent. Not every case of an elderly person making a gift to an adult child will occur in circumstances of dependency. However, where such circumstances of dependency do occur, placing the onus upon a donee is the law’s way of protecting against unfair transactions.”

Precatory Words Are Not Binding In Wills and Trusts

 

wish-precatoryIn the law of wills and trusts, precatory words have been defined as words of wish, hope, desire or entreaty accompanying a gift, that the done will dispose of property in some particular way, which may show that a trust was intended.” [At para. 25.] Ladd v. Ladd (2002), 47 E.T.R. (2d) 251, 2002 CarswellOnt 3608 (Ont. S.C.J.).

There are many case examples where such words as “wish, desire, hope, ” are found to be precatory and thus legally non binding.

These words of expression only can be  juxtaposed against legally enforceable words such as “shall or must” and other mandatory words.

 

Rudaczyk Estate v. Ukrainian Evangelical Baptist Assn. of Eastern Canada (1989), 1989 CarswellOnt 534, 69 O.R. (2d) 613, 34 E.T.R. 231, Watt J. (Ont. H.C.) is a good example of this principle.

 

By her will dated September 28, 1981, the testatrix gave the residue of her estate to her trustees on trust to “pay or transfer” it to the Ukrainian Evangelical Baptist Association of Eastern Canada “for its own use absolutely”.

The will also gave to the trustees the various powers set out in a “Schedule Of Trustee’s Powers” which was initialed, attached to and expressly made part of the will.

By a “Memorandum To Trustee” which was signed by the testatrix in the presence of the same two witnesses as the witnesses to the will and which was dated September 28, 1981 the testatrix stated the following:

IT IS MY WISH that you set aside one-quarter of the residue of my estate for the benefit of my niece, [M.K. in the Ukraine] … and use this sum for the purchase and mailing of food, clothing, and other articles as my said niece, may request and you in your absolute discretion shall think fit.

The “Memorandum” was not referred to in the will. ( underlining added for emphasis)

The testatrix died in 1987 and letters probate were issued to the executors of her estate including both the will and the “Memorandum”.

The executors sought the opinion, advice or direction of the Court as to whether the memorandum was legally binding on the trustees or was merely precatory.

The preliminary issue arose as to the admissibility of the affidavit evidence of two persons which evidence related to the making of the will and the “Memorandum”.

Held:

(1) The affidavit evidence relating to the making of the will and memorandum was not admissible since it fell within the general exclusionary rule forbidding the introduction of direct extrinsic evidence of a testator’s actual intention and there was nothing which took the affidavit evidence out of the general rule.

(2) Although the “Memorandum” was executed in accordance with the requirements for making a will, it was to take effect after the testatrix’s death, and contained provisions relating to the disposition of the deceased’s property, its permissive language (particularly when contrasted with the imperative terms used in the will) and its existence as a separate document from the will indicated that it was merely precatory and not legally binding on the trustees

Must Have Legal Claim Before Death, Before It’s Fraudulent Conveyance

Legal Claim Before Death

Todays case discussion is Hossay v Newman 1998 BCJ 3289

The plaintiff was adult son of the testator.

The Testator placed his major assets in joint tenancy with one of defendants shortly before his death with result that assets passed to that defendant by operation of law and did not form part of testator’s estate .

The son sued to set aside the Joint tenancies on the basis they were Fraudulent conveyances meant to defeat his claim as a creditor under the Wills Variation act.

The court dismissed the claim.

Section 1 of Fraudulent Conveyance Act does not apply to claims that arise solely on death of debtor/testator but rather contemplates situation where the claimant had some legal or equitable claim against debtor during debtor’s life.

Where claim arises solely on death under Wills Variation Act, claimant does not come within “creditors or others” within meaning of s. 1 of Fraudulent Conveyance Act.

As the plaintiff’s claim under Wills Variation Act arose solely on testator’s death, s. 1 of Fraudulent Conveyance Act did not apply to the inter vivos transfer by testator to the defendants.

 

If there is no legal or equitable claim which pre-exists the death of the testator, then the claim is solely one arising on death under the Wills Variation Act. Without any prior foundation, the claimant does not have the status of creditor or others within the meaning of s. 1 of the Fraudulent Conveyance Act.

Ademption – Testator Must Own the Specific Gift At Death Or the Gift Fails

The law relating to ademption applies when a particular item in a will is described with such specificity that it is clearly distinguished from other property owned by the deceased. If that specific property is not found among the testator’s assets after death, the gift is said to have adeemed-the gift fails and the technical term for the failure of the gift in such circumstances is ademption. The gift is said to have adeemed.

The rule applies whether the testator ever really did own the property or not .

For example testators often believe that they are the owners of property and after death, it is learned that the property was actually in another name such as a corporate entity or in joint tenancy.

The other common example that disinherited.com has witnessed is simply caused by  poor draftsmanship in a will.

The will often specifies a specific civic address to be left to a beneficiary,  when upon death it is learned that the property had been sold during the lifetime of the testator, who instead died owning another parcel of property with a different civic address.

(The proper wills drafting should have been instead something like “any residence that I own at the time of my death I hereby bequeath to ?”

In both situations the gift of the property will have adeemed.

Whether or not a gift has actually adeemed can in certain circumstances, be very difficult to determine.

Here are two examples of such litigation-there are many:

RE DEARDEN ESTATE; SHOEMAKER et al. v. PITTMAN et al.

            1987 CarswellMan 131, 26 E.T.R. 111, 46 Man. R. (2d) 222

 

By his will, made in 1970, the testator gave his dry-cleaning and laundromat business and the land where it was carried on to his nephew, MSM, and he gave the residue of his estate to his sisters and brother.

In February 1986, the testator entered into a contract to sell the business along with the land. The completion date for the contract was August 30, 1986. The testator died in June 1986. The contract, which was never in fact completed, was subject to certain conditions. In particular, the vendor was to subdivide the property by August 1, 1986; all structures on the land were not to encroach on any adjoining property; and the purchaser had a right to rescind if the financial position of the business was worse than that disclosed in financial statements provided by the testator. These conditions were never satisfied since subdivision had not occurred as of the date of the deceased’s death or as of the completion date; the building in question did encroach on land owned by the municipality and an agreement to resolve this encroachment was never made with that municipality; and the financial statements provided by the testator were in fact inaccurate, showing grossly inflated amounts for income.

The executors of the testator’s estate applied for the directions of the Court.

The Court held that there was no ademption-the he specific gift of the dry-cleaning and laundromat business, and the land on which it was carried on, was not adeemed by the contract of sale made by the deceased.

The doctrine of conversion applies only to a contract that is enforceable by and against the testator.

The contract made by the testator was not in fact enforceable by or against him since it was subject to two true conditions precedent (the conditions relating to zoning and encroachment) that were never satisfied. In addition, the contract was subject to the condition relating to financial statements which was not satisfied and which, not having been waived by the purchaser, rendered the contract unenforceable against the purchaser.

 

RE CUDECK

               1977 CarswellOnt 387, 1 E.T.R. 17, 16 O.R. (2d) 337, 78 D.L.R. (3d) 250

   Ontario Supreme Court, Court of Appeal

 

The testator’s will directed his trustee to pay M “the proceeds of a Term Deposit of $28,000.00 principal plus interest, … said Term Deposit having been made on or about November 10th, 1973.” At the time he executed his will, the testator had a term deposit of $28,000 at his bank. The testator subsequently cashed his term deposit and deposited the proceeds in his bank account. Thereafter the testator periodically purchased new term deposits, including a term deposit of $40,000, with the proceeds of the original and subsequent term deposits. During the currency of the $40,000 term deposit, the testator executed a codicil which in effect altered the terms of the original legacy so as to read:

To deliver and pay my friend, [M], … the proceeds of a Term Deposit of $40,000, … said Term Deposit having been made on or about November 10th, 1973, or at any time thereafter. …

The following year, the term deposit for $40,000 matured and its proceeds were deposited in the testator’s account. Subsequently, using the term deposit proceeds, the testator purchased a further term deposit for $36,000 and cashed it for $36,258.90. The testator supplemented the $36,258.90 with personal funds and purchased 37 one-thousand-dollar bills, which he deposited in his safety deposit box. At the testator’s death these bills were found in his safety deposit box along with a handwritten note which indicated that in the event of the testator’s death M was to get the contents of the box as a bequest.

At trial, the trial Judge found that M was entitled as a legatee, under the testator’s will, to $36,000.

On appeal, held, the trial Judge’s order was varied to include the interest received from the last term deposit, with the result that M was entitled to be paid $36,258.90 out of the $37,000 found in the safety deposit box.

No ademption.

The legacy to M would have been lost if:

(i) the proceeds of the term deposit could not have been traced, or

(ii) the testator in cashing the deposits had clearly appropriated the proceeds to himself, in which case they would have been adeemed.

Though the note found in the testator’s safety deposit box was not itself given testamentary effect, it was used to trace and identify the proceeds given by the will and codicil.

Holograph Wills Not Valid In British Columbia (BC)

Holograph willsPlease note that since the date of this original blog, the curative provisions of s 58 of WESA may have altered the law relating to the topic of holograph wills.

Holograph wills are ones that is entirely written and signed by the testator, but does not have the witness attestation that is required in British Columbia in order to make a will valid. ( Two witnesses and the testator sign the will,  all in the presence of each other, is required in British Columbia)

Many non lawyers have heard the story of the Alberta farmer pinned under his tractor and dying, who wrote on the dust of the tractor’s fender “everything to mom”.

The holograph will/fender was not dated, but the fender was admitted into court as the last valid holograph will of the deceased, and everything went to mom..

That would not be a valid will in British Columbia for a few reasons, but most primarily, the absence of the two witnesses.

The holograph will must still have the necessary animus testandi, meaning the deliberate intention to dispose of property after death.

There cannot be any question of this testamentary intention as there is no requirement that the holograph will identify itself as a will.

There are examples where letters have been held sufficient to be admitted to probate as holograph wills.

The decision Re Neilson Estate (1989) 96 NBR (2d) 2 involved a deceased who had delivered three pages of handwritten instructions to her lawyer, and then signed the last page with her first name, and  put the pages in an envelope with her full name on the outside.

The court admitted these instructions as a valid holograph will .

disinherited.com is strongly supportive of the existing law in  British Columbia requiring two witnesses to all be present, and both watch the testator sign his or her name, and then the testator watching the witnesses attest their names, all at the same time.

There is already far too much  abuse in the wills and estates arena, and the absence of two witnesses can only lead to further wills and financial  abuse, particularly of the elderly.

A Will Containing Photographs

disinherited.com has over the course of 38 years both prepared and litigated over countless last will and testaments. ( wills).

An  unusual will appeared  today that warrants comment..

The will contained several photographs  pasted in througout the document ,including two of the testator, being one at the beginning and one at the end, photos of the intended heirs, and photos of various specific bequests.

It was very unusual indeed but having reflected upon it, I thought it noteworthy of mention, and in certain circumstances, perhaps even a very good idea.

The will conformed with the execution requirements of the Wills Act, RSBC, so there was certainly nothing about the photographs that in any way affect the validity of the will.

Wills Directives to Employ Certain Lawyers, Accountants and the Like are NOT Binding

Wills Directives

It is fairly common for testators to include a provision in a will that the executor should use the services of a particular lawyer or accountant or other such professional, in assisting the executor in the duties that will be performed by the executor.

I would venture to opine that in most of these circumstances it is not a contentious issue and the directive is followed.

However, that can also not be the case, and the chestnut decision of Foster v. Elsley 30 W.E. 596 dealt with that very issue as far back ago as 1881.

In that the decision that there was a testamentary directive to employee a certain lawyer to perform the legal services required by the executor.

The court held that such a directive is not binding upon the executor, but is simply an advisory provision which the executor may disregard of he or she chooses to do so.

The executor is personally liable for proper the administration of the estate.

The position of executor is one where the he or she stands in the” legal shoes” of the deceased so to speak, and it being such a responsible duty, the courts do not want to saddle the individual discretion of the executor to choose an alternate professional, other  than the one directed to be used in the will.

Wills Variation- Provision For Adult Child, With Life Interest to Commonlaw Spouse

will varied common law spouseWill Varied to Small Provision For Adult Child, With Life Interest to Commonlaw Spouse of 4 years, and Gift Over to Son If He Survives Wife

Hall v Roy Hall Estate 2010 BCSC 529 involves a wills variation action between one long estranged son who reconciled 1 1/2 years before his father’s death, another child who remained estranged from his father, and a common-law spouse of four years.

The testator made a will shortly before his death whereby he left the bulk of his estate of approximately $438,000 to his common-law partner of four years.

He left $10,000 and a car to the plaintiff, who was the son who had reconciled the year before.

The court found that the testator failed to make adequate provision for the plaintiff, who was age 60 at trial.

The court gave the plaintiff a $20,000 bequest, with a life estate in the remaining  $418,000 to the common-law spouse,  aged 65, and a gift over to the plaintiff should he survive the common-law spouse.

The court analyzed the two-step process that must occur in a wills variation analysis:

A. The first step is to determine whether adequate provision has been made for the proper maintenance & support of the plaintiff;

B. If the answer to that question is no, then the question on the second step is what provision is adequate, just and equitable in the circumstances of the case.