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

“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