Special Costs Awarded Against Plaintiffs Who Alleged But Failed to Prove Undue Influence

Stewart v McLean 2010 BCSC is one of several decisions where plaintiffs have alleged, and then failed to prove an allegation of undue influence. The rationale is that undue influence is a form of civil fraud, which is a serious allegation to advance. Special costs… Read more

Beneficiaries Can Refuse Disclaim an Inheritance

Refuse Disclaim an Inheritance What do you do when a formerly beloved relative dies, bequeathing to you a piece of swampland polluted by atomic waste? Must you accept this “gift”? The legal answer is clearly “No” so long as you disclaim the gift in a… Read more

General Rule In Wills Variation Actions Is Loser Pays the Winners Court Costs

Wills Variation Actions Todd v Walker 2009 BCSC 537 is authority for the above proposition re costs. The parties were half siblings. The deceased left $1 to her daughter plaintiff, and the residue to her son, who was also the executor. At trial the daughter… Read more

Valuation of Trust Assets

Valuation of the  Fair Market Value of Trust Assets It can often be difficult for the parties in estate disputes to agree upon the fair market value of trust assets that range from antiques, to recreational property, the former matrimonial home, to a small business,… Read more

Adult Children Need Not Be Treated Equally In a Will, Just Adequately

Gray v Gray Estate 2012 BCSC 1310 is an increasingly common estate litigation scenario- a fight between the adult children of a first marriage and those of second or even third marriages, who are often much younger then the first set. The law in BC… Read more

Mischievous Wills

Looking back on the innumerable wills that Disinherited.com has reviewed, it is odd that I can really think of only one that was not so much mischievous, as just a “bad” idea  will. Nevertheless, the result was that the deceased’s 6 cats and 2 dogs… Read more

The Presumption of Due Execution In Wills

Due Execution In Wills Yen Estate v Yen- Zimmerman   aka Hsia v Yen- Zimmerman, 2012 BCSC 1620 contains a long analysis of the law relating to the requirements for execution of the will, and focusing on the presumption of due  execution of the will when him… Read more

Who Gets What When You Die Without a Will

Die Without a Will? My late mother was convinced that if you die without a will, it all goes to the government. I don’t know where that notion came from, but she wasn’t the only person who believed that. If a person dies without a… Read more

Charitable Intent Found In Impractical Trust, Cy-Pres Doctrine Applied

Bentley v Anglican Synod of the Diocese of New Westminster 2009 BCSC 1608 is indicative of the type of litigation that can ensue between various charities that are or had previously been closely aligned. Several churches in recent years have undergone bitter disputes amongst its… Read more

Will Invalid For Not Being Signed At Its End

Will Invalid Ellis v Turner 20 ETR (2d) 306 BCCA involved a decision of the British Columbia Court of Appeal were by the court upheld the trial judge’s decision that the will of the deceased was invalid by reason of the fact that he printed… Read more

Marriage Separation Agreement Not a Bar to a Wills Variation Claim

Marriage Separation Agreement Ward v. Ward et al, 2006 BCSC 448 is one of a few BC court decisions that hold that a marriage separation agreement is not a bar to a claim subsequently brought under the Wills Variation act by a surviving former spouse…. Read more

What Does a Hotchpot Clause In a Will Mean?

Hotchpot clause has been around since at least the 12th Century, although Disinherited.com has seen fewer in more recent years than even 25 years ago. The purpose of such a clause in a will is to equalize the benefits that beneficiaries have or will receive, as… Read more

Estate Funds Not to Be Used To Defend Wills Variation Claim ( S. 60 WESA)

Defendants may not use estate funds to defend their personal interests in wills variation cases ( now section 60 WESA) As plaintiff’s counsel, Steernberg v. Steernberg Estate (2007), 33 E.T.R. (3d) 78, 74 B.C.L.R. (4th) 126, 40 R.F.L. (6th) 106, 2007 BCSC 953, 2007 CarswellBC… Read more

Conditional Gift In Will Found Invalid

A Conditional gift in will is surprisingly common, and depending on their particular proviso, the Court may or may not uphold the gift. The 1996 BC case of Unger v Gossen is a case where the conditional gift was found to be invalid.The testator in BC left… Read more

Beware The Words Issue Per Stirpes and Per Capita

Issue per stirpes and per capita should not be used when drafting wills. There seems no end to the ongoing litigation that arises in will interpretation cases due to the coontinued use of the legal terms” issue per stirpes” or “issue per capaita” and other… Read more