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

The Digital Executor?

Digital executors are actually increasingly vital as ones “personal history on social media” is immortalized and sought after  death. Trevor Todd was contacted by a local television station for the purpose of having an interview about the sudden “issue of the day “that was” Do… Read more

Will Invalid for Lack of “Knowledge and Approval” When Executed

Will Invalid Calderaro v Meyer 2011 ONSC 5395 is an Ontario case where a will invalid as the deceased did not have knowledge and approval of the wills contents when it was executed. The testator died in 2009. Prior to that he lived in a… Read more

The Four Elements of a Will

ELEMENTS OF A WILL  There are basically four elements of a will: 1) Intended to Have Disposing Effect A Will must express the testator’s real donative intention. It will not be a valid Will if the testator merely writes a statement importing information about his… Read more

Son Disinherited For Valid and Rational Reasons

Holvenstot v Holvestot Estate 2012 BCSC 923 is an excellent example of the wills variation claim brought by a disinherited son of the deceased. The claim  was dismissed for some of the valid and rational reasons that the deceased stated as reasons for not having a moral… Read more

Tataryn – The Leading Wills Variation Case in BC

In Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807 [Tataryn] the Supreme Court of Canada clarified the law of wills variations and held that a will may be varied under the WVA where there are legal or moral obligations to provide maintenance and support for… Read more

Pre-Nuptial Agreement Held to Be Bar to Wife’s Wills Variation Claim

Pre-Nuptial Agreement Martinson v Anniko 2009 BCSC 14 is illustrative of where a marriage agreement  is ultimately  “fair”, it will be held to bar a spouse’s Wills Variation claim brought after the death of a spouse.  The Court was also critical of the steps taken… Read more