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

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