Severance of Court Actions Upheld On Appeal

Severance of Court Actions Upheld On Appeal

The Court of Appeal in Johnston v Johnston Estate 2017 BCCA 59 upheld the trial decision found at 2016 BCSC 1388 where an action seeking that a will was invalid, or alternatively if it was valid it should be varied under the wills variation provisions… Read more

"Adopted Out" Child Cannot Contest Biological Parent's Estate Under Wills Variation

“Adopted Out” Child Cannot Contest Biological Parent’s Estate Under Wills Variation

Boer v Mikaloff Estate 2017 BCSC 21 confirmed that an “adopted out” child cannot contest the will of the biological parent’s estate under S.60 WESA (the wills variation provision) when it answered the following posed question negatively: Does a child who is adopted by other… Read more

Executor Can Waive Solicitor Client Privilege

Executor Can Waive Solicitor Client Privilege

Haas Estate v Jane Doe 2017 BCSC 12 confirmed that an executor( personal representative ) of an estate can waive any solicitor client privilege that existed prior to the deceased’s passing. Mr. Haas died on February 15, 2016, leaving a will naming his only child,… Read more

Executor Added After Expiration of Wills Variation Limitation

Executor Added After Expiration of Wills Variation Limitation

 Under the provisions of section 60 WESA, an action under the wills variation provisions must be commenced within 180 days of the grant of probate or the action is statute barred. In the 1987 decision Cowan v Cowan 17 BCLR ( 2d) 114, the plaintiff… Read more

Wills Variation and Long Marriages

Wills Variation and Long Marriages

Ciarniello v James 2016 BCSC 1699 is a good example on how the court treats the division of estate assets  at the end of  long marriages when the survivor brings a wills variation action on the basis that she was not adequately provided for in her… Read more

Court Discretion In Wills Variation Claims

Court Discretion In Wills Variation Claims

In wills variation cases now brought under S. 60 WESA , the judge has “entire discretion” in deciding pro or against a claimant on its findings of fact. In Swain v Dennison 1967 SCR 7 the Supreme Court of Canada held that the jurisdiction of… Read more

Disabled Adult Succeeds Wills Variation

Disabled Adult Succeeds Wills Variation

Willott v. Willott Estate 1997 CarswellBC 2016, [1997] B.C.J. No. 2073, 20 E.T.R. (2d) 211 is a 1997 wills variation action where a deceased parent’s estate was required to pay additional monies to a disabled son who unable to work, survived on a small disability… Read more

Will Varied to Give Daughter Entire Estate

Will Varied to Give Daughter Entire Estate

Hagen-Bourgeault v. Martens 2016 BCSC 1096 varied a will (S. 60 WESA) to give a 25 year old daughter with two young children on social assistance, the entire estate of $2,200 per month until 2025, instead of her husband of two years who was well… Read more

Interim Payments Under Wills Variation

Interim Payments Under Wills Variation

Grant v Grant estate 1997 Carswell BC 3773 allowed a widow in need of funds to receive interim payments under the wills variation provisions of WESA. The Grant and Hecht cases are only a few reported cases of the ability to apply to court for an… Read more

Marriage Like Relationships

Marriage Like Relationships

Weber v Leclerc 2015 BCSC 6550 reviewed the law relating to what constitute a marriage like relationship in a matrimonial dispute where the female was against the institution of marriage and opposed such a finding of being in a marriage like relationship. The parties did… Read more

WESA: Forcing the Executor to Act & Rule 25-11

WESA: Forcing the Executor to Act & Rule 25-11

Forcing Executor to Act. Rule 25-11 of WESA permits ‘a person interested in the estate’ to use a Citation to compel the named executor to apply for probate or be deemed to have renounced. This is an important tool in the arsenal of estate litigators… Read more

Wills Variation: Elderly Common Law Spouse

Wills Variation: Elderly Common Law Spouse

Mars v Blais 2011 BCSC 1714 involved a 91 year old widow who brought a wills variation action ( now S. 60 WESA) against the estate of her late common law partner of 9 years. The wills variation  action was prior to WESA but would… Read more

Executor Cannot Use Estate Funds To Defend Personally

Executor Cannot Use Estate Funds To Defend Personally

In a Wills variation claim (now section 60, WESA) an executor cannot use estate funds to defend him or herself if a beneficiary, and may  use reasonable estate  funds to defend the claim but only in the capacity of executor and not beneficiary. In a… Read more

Long Delayed Court Action Justified

Long Delayed Court Action Justified

An application for dismissal of the court action for want of prosecution was dismissed when the court found that the reasons for the 13 year delay of the court action was justified. The law relating to dismissal for want of prosecution was recently summarized in… Read more

S 60 WESA (Wills Variation): Second Marriages/Families

S 60 WESA (Wills Variation): Second Marriages/Families

Wong v Soo 2015 BCSC 1741 involves the increasingly familiar fact scenario of second or third marriages resulting in the death of one spouse and leaving his or her entire estate to the children of the first marriage to the exclusion of the surviving spouse…. Read more