“Marriage Like Relationship” Upheld

The criteria for a marriage like relationship was upheld in the Duga case. The courts have been grappling with the often difficult to determine issue of what is a marriage like relationship for several years. Many of the earlier decisions were difficult to reconcile, especially… Read more

Charitable Gifts

Canadian tax laws are structured such that in the area of estate planning, donations if made to a registered charity, can give rise to tax credits that can be used to offset the income of the deceased. Accordingly, if a deceased person leaves a charitable… Read more

“Tenor of the Will”

Sometimes poorly drafted wills fail to expressly provide for the appointment of an executor. The will however may direct a person to perform one or more duties that may be described as those of an executor, and accordingly the courts have developed the concept of… Read more

Termination of Trusts: Saunders v Vautier

Collapse of Gift- Saunders v Vautier

The Rule of Saunders v Vautier For various reasons parents often wish to delay any bequest to a child for many years, often to the point where the child would be a senior citizen before the child inherited. Very often these types of trusts provide… Read more

The Law of Equitable Set Off and Restitution

The Law of Equitable Set Off and Restitution Kessel Estate v Rikxoort 2012 BCSC 1270 involves a dispute arising from a complex financial transaction between the deceased and the defendants. The parties had entered into a buy sell agreement which provided that the survivor of the… Read more

Court Adds Bequest to Will Omitted By Drafting Solicitor

Drafting Solicitor Daradick v McKeand Estate 82 ETR (3d) 324, the Ontario Supreme Court made a very practical decision to allow the rectification of the will where there had been obvious drafting solicitor negligence in omitting a specific and substantial bequest. The case reviews both… Read more

Disclaimer of Life Interest Accelerates Children’s Subsequent Interests

    Disclaimer and Acceleration in estate disputes   Re Brannan Estate v Public Trustee (1991) 41 ETR 210 BCCA. The deceased testatrix who died in 1987, directed her trustees to pay $400 per month to her husband until his death or remarriage, whichever occurs… Read more

Court Considers the Equities of Assets that Passed Outside of the Estate

In Nightingale v Hepting 2010 BCSC 1214, the evidence was that the testator wanted to marry H, whom he met in 1976, but that they instead remained friends and vacationed together, and that H drove the testator around . H had a net worth of… Read more

Adult Child’s Share In Will Doubled to 50% For Invalid Reasons

Share In Will Doubled to 50% For Adult Ch ild Under Wills Variation Act Schipper v. Schipper Estate 2010 BCSC 1067 The Plaintiff adult daughter was only child of the testator and her husband. The daughter had very close relationship with her parents until about three years… Read more

Elderly Spouse Awarded The Home and Half of the Residue

Orr v Orr 2013 BCSC 208 is a wills variation action d brought by an 82 year old surviving spouse who was not adequately provided for in her husband’s last will, and whom was awarded the house and half the residue. He died at age… Read more

Lost Will Results In Presumption of Intestacy

Thierman Estate v Thurman 2013 BCSC 503, involved a testator who died in 2010 at the age of 92, leaving a copy of his 2006 will in a dresser or in his bedroom. A search for the original will that had been in his safety… Read more

“Wishes” and “Requests” Are Not Legally Binding In Will Construction

Will Construction Rudaczyk Estate v Ukrainian Evangelical Baptist Assn. 1989 ( 34) ETR 231 involved a court application to interpret and construct a will with a memorandum executed the same time as the will and in accordance with the requirements for execution of the will…. Read more

Executor Appointed Amicus (Friend) of Court to Defend Wills Variation Claim

Defend Wills Variation Claim Ketcham v Walton 2012 BCSC 175 [10] The basic principle of an Executor’s duty to specified and potential beneficiaries of the Will is neutrality. [11] Mr. Justice Bouck stated in Quirico v. Pepper Estate (1999), 22 B.C.T.C. 32 at paras. 15-17:… Read more

Undue Influence Summarized

  Buccilli v Pillitteri 2012 ONSC 6624, involved a family estate dispute after a tragic death where all the parties had a one third interest in a family business. After the deceased’s death, his surviving widow, on the advice of her brothers-in-law, signed transfers of… Read more

Dying Intestate With No Next of Kin Will Escheat

Many people mistakenly believe that if a person dies intestate(without a will), then the estate goes to the government.This is not the case as the provision of the Estate Administration act before deaths occurring March 31,2014 and WESA thereafter,  will prevail with an intestacy formula… Read more