What Is a Testamentary Document?

It is often difficult to determine if a document is testamentary or not when it purportedly takes effect upon death. Shortly before writing this article, I settled a Wills Variation action on the eve of trial where the deceased had deliberately used an estate planning… Read more

Lost Wills

Lost Wills An update to this article is that since the introduction of WESA on April 1, 2014, I anticipate that the courts will be more willing to allow copies of wills as proof of the testator’s intention to more easily admissible into probate. Many… Read more

Forfeiture Clauses in Wills

Bellinger v. Fayers, Nuytten  2003  BCSC  563 discussed inter alia forfeiture clauses in wills On June 11, 2002, Justice Hood handed down Reasons for Judgment, subsequent to the trial reasons,  in the case of Bellinger v. Fayers, Nuytten. In this case I represented the plaintiff,… Read more

The Cy-Pres Doctrine

Those of us living in Vancouver know Children’s Hospital–surely that goes without saying. Check a little closer, however, and you may be surprised to learn that no such legal entity exists. In estate law it is relatively common to discover that a charitable institution, named… Read more

Common Law Marriage or Mere Housemates?

There is currently a good deal of litigation arising in estate disputes as to claims that lovers were spouses and not mere housemates. Historically the law did not recognize the claim of a common-law spouse against the estate of their deceased partner.  Indeed these relationships… Read more

How to Win an Undue Influence Case

How to Win an Undue Influence Case

In my experience in estate litigation, probably the most difficult issue to win at trial is that of undue influence. A review of case law makes clear the majority of such allegations are dismissed at trial due to insufficient proof. Frequently the court simply finds… Read more

Mr. Attorney – Shine The Light on Undue Influence

( This article was written in 2006 to the attorney general to encourage the introduction of a presumption of undue influence when large bequests are left to person  in a position of dominance or dependence. It was successful and resulted in Section 52 of WESA,… Read more

Revocation of Wills

Every will is revocable even a will, whose terms purport to make it irrevocable, is in fact revocable. Generally speaking a will may be either be revoked by the operation of law or may be deliberately revoked by the testator . Deliberate revocation requires a… Read more

Wills Variation Act Not Changed Under WESA

Wills Variation Act Not Changed Under WESA

  In the summer of 2006 the British Columbia Law Institute delivered to the Attorney General a sweeping report entitled Wills, Estates and Succession: A Modern Legal Framework. Many of that report’s recommendations involve well-considered and welcome changes. There are two recommendations in that report,… Read more

The BC Wills Variation Act

The BC Wills Variation Basics

Any discussion of the BC Wills Variation Act requires an understanding of the English common law which provides the background for this Act. English common law, developed by the English judges over the centuries, provided that when a person died, that person could leave his… Read more

Disinheriting Adult Independent Children

Disinheriting Adult Independent Children As long as testamentary freedom exists, some parents will try to disinherit their children. In British Columbia a determined parent can do so with expert estate planning. If a parent simply uses their will to disinherit a child, however, that parent… Read more

BC WILLS VARIATION ACT: Consideration of Benefits Passing Outside Estate

The British Columbia Wills Variation Act is the statute which permits an eligible claimant to contest a will. The class of claimants eligible to bring a wills variance claim includes any spouse, common-law spouse (f they cohabited for 2+ years) and any child of the… Read more

The Use of DNA in Estate Litigation

DNA in Estate Litigation The Deoxyribonucleic acid (DNA for short) is the genetic code found in the nucleus of each of our body cells and is increasingly used in estate litigation. Because each person’s genetic code is unique, it is like a genetic “fingerprint”. Initially… Read more

Limitations for Wills Variation Claims

There is a relatively short limitation period for wills variation claims brought under British Columbia`s Wills Variation Act. Under WESA, a claimant must start any court action within 180 days  of the grant of probate to the executor of the impugned will. This allows for… Read more

A Tribute to The BC Wills Variation Act

The question of a child’s ‘entitlement’ to share in a parent’s estate often provokes a very lively discussion. Many believe that a parent`s obligation ends once they have “fed, clothed, educated and sent the child on his or her way”. They argue that testators should… Read more