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

Abandoned “Love Child” Fights Back

Austin v Les 2006 BCSC 2100 is a wills variation case where disinherited.com was the plaintiff’s counsel representing a 62-year-old daughter of the deceased person who was essentially given away to be raised by others. Marg Austin was born at a time when it was… Read more

Independent Legal Advice and Rebutting A Presumption of Undue Influence?

Independent Legal Advice Modonese v Delac Estate 2011 BCSC 82 has a very interesting discussion on whether or not independent legal advice will rebut a presumption of undue influence where that presumption might exist. The function of independent legal advice is to remove a taint… Read more

Bequests To a Non Existent Person

Gertrud Eberwein ( Re Eberwein Estate 2012 BCSC 250) and her very deficient will, made a bequest to a non existent person. Yesterday’s blog related to what happened to her bequest to a Charity that she had previously donated to, but no longer existed at… Read more

Charity No Longer Exists, So Wills Bequest Lapses Into Residue

Wills Bequest Lapses Into Residue Our previous blog related to the wills interpretation issues related to the Eberwein Estate 2012 BCSC 250. One of the issues involved in the interpretation of this will related to a charitable gift to an organization called Aid to Animals In… Read more

A Summary of the Principles Relating to the Interpretation and Construct of Wills

Interpretation and Construction of Wills The Estate of Gertrud Eberwein 2012 BCSC 250 is an excellent example of a wealthy person dying with a poorly drafted will that needs interpretation and construction by the court. The deceased died in 2010 at age 85 years. She… Read more

Disclaimer – “Thanks, But No Thanks”

Disclaimer- Thanks, but No Thanks 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… Read more

Construction of Wills – Grandchildren and Great Grandchildren Restricted to Legal Descendants

Construction of Wills Re Lang 2011 BCSC 972 involved a court application for an interpretation of the commonly used words “grandchildren” and “great grandchildren” that were used in the testator’s will. The testator divided the residue of her estate to her grandchildren and great-grandchildren. At… Read more

Court Will Not Order Production of Drafting Lawyer’s Will File in Wills Variation Claims

Production of Drafting Lawyer’s Will File It is very common in estate litigation for the party attacking a will to want production of the drafting lawyer’s will file relating to the taking of instructions, preparation of, and execution of the deceased’s last will. As a… Read more