Executor Remuneration and Passing of Accounts

Unsent Draft Text Message Valid Will – Australia

A court in Australia has accepted an unsent, draft text message on a dead man’s mobile phone as an official will. The 55-year-old man had composed a text message addressed to his brother, in which he gave “all that I have” to his brother and… Read more

S.58 and 59 WESA Application Ordered to Trial

S.58 and 59 WESA Application Ordered to Trial

Estate of Palmer 2017 BCSC 1430 dealt with  an application to cure defects in a will under sections 58 and 59 of WESA, but was ordered to trial rather than having been dealt with summarily by affidavits. Ms. Palmer executed a short will on August… Read more

Unwitnessed Will Valid: S.58 WESA

Unwitnessed Will Valid: S.58 WESA

Re Riguidel Estate 2017 BCSC 1667 found a signed but unwitnessed will to be valid by invoking the curative provisions of Section 58 WESA. The Facts: The people present when the deceased signed the handwritten and typed documents were the deceased, Ms. Leonard and Mr…. Read more

Public Policy Protects Wills Variation Claims

Public Policy Protects Wills Variation Claims

If a will contains a penalty provision, known as a forfeiture clause, threatening to impose a penalty upon a beneficiary if a will is contested, then in that event,  wills variation claims are protected by public policy so that such a clause is not enforceable in… 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

Section 46 WESA and Lapsed Gifts

Section 46 WESA and Lapsed Gifts

Section 46 WESA deals with the lapsed gifts in wills often caused by poor will drafting ,  failure by the parties to properly consider what the future may bring , or the beneficiary predeceasing, any of which results in   disappointed beneficiaries not receiving the intended gift. Instead of … 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

S. 52 WESA: Undue Influence Presumption re Dependence

S. 52 WESA: Undue Influence Presumption re Dependence

Positions of dependence or domination are frequently involved in estate litigation and typically relate to caregiving or predator type behavior that ultimately takes advantage of  feeble mind. Elder Estate v Bradshaw 2015 BCSC 1266 involved a contested court action re  the validity of the deceased’s… Read more

S. 60 WESA (Wills Variation) Explained

S. 60 WESA (Wills Variation) Explained

I was counsel for the plaintiffs in both the WESA case Brown v Pearce Estate 2014 BCSC 1402 which relied upon the law as set out in detail in McBride v Voth estate 2010 BCSC 443 in which I was also counsel, and both cases… Read more

Deceased Beneficiary May Claim Wills Variation (WESA)

A Wills Variation Action  ( S. 60 WESA) may Be commenced even after death of Disappointed Beneficiary by his or her personal representative as per Currie Estate v Bowen ( 1989) 35 BCLR (2d) 46. In that case the husband died six weeks before his… Read more

Can animals inherit?

Can Animals Inherit

From the BBC News While I have not actually researched the issue, I opine that animals  cannot inherit the funds in their own right, but instead can only do so by a trust. Twenty  years ago I had a case where a single person with… Read more

Winning an Undue Influence Case

Winning an Undue Influence Case

A review of case law makes clear the majority of such allegations are dismissed at trial due to insufficient proof. Frequently the court simply finds the testator had sufficient mental capacity and therefore allows the will to be propounded. The loss of an undue influence… Read more

What the Court Needs to Know to Win a Wills Variation Action

S 60 of WESA allows the court to exercise its discretion re the claims of spouses and children against the assets of a deceased’s estate, on the basis that they were not adequately provided for in the estate.   The right to bring a Wills… Read more

Wills Variation Act Not Affected By WESA

The original plan for WESA was to restrict the right of an independent adult child to bring a claim against his or her parents estate on the basis that he or she will was not adequately provided for. A great deal of discussion took place… Read more