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

“Money and Cash” Interpretted In Will

“Money and Cash” Interpretted In Will The words used in many wills are often ambiguous or capable of different interpretations,which often then results in a court application to determine the meaning of the words used in the will. Such was the case with the use… Read more

When Interpretting Wills, The Courts Have a Strong Presumption Against Intestacies

Young v Abercrombie 2008 BCSC 389 involved an estate dispute relating to a conflict between the wording of the deceased’s will and the subsequent codicil to the will. Donald William Abercrombie (“Donald”) died on December 16, 2005, leaving a will executed on November 19, 1981,… Read more

Court Rectifies Will By Deleting Words

Court Rectifies Will ( see Blog Dated March 24,2014 for the WESA update on the courts expanded powers to interpret wills) Verity Estate v Fedorek 2012 BCSC 650 involves a successful application brought by the executor of the deceased to rectify the last will of… Read more

Forfeiture Clauses In Wills Variation actions are 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… Read more

Phillipino Plaintiff Who Deceased Met On Holidays Found to Be Common Law Spouse-Receives 1/6 of Estate

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… Read more

Presumptions of Resulting Trust and Undue Influence Applied In Manitoba 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… Read more

Precatory Words Are Not Binding In Wills and Trusts

  In 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…. Read more

Must Have Legal Claim Before Death, Before It is Fraudulent Conveyance re Wills Variation Act

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… Read more

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… Read more

Holograph Wills Not Valid In British Columbia (BC)

Please 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… Read more

A Will Containing Photographs 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… Read more

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… Read more

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

Will 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… Read more

Will Varied to Double Award to Daughter

Kelly v Bell 2012 BCSC 841 is a  wills variance case ( WESA S 60)  where the court determined that the deceased did not intend to provide  %88 to one child and only %12 to another simply due to a dramatic increase in the value of… Read more